Brexit and the Environment – same, but different?
Further to our earlier blog post in November 2017.
In its ongoing preparations for Brexit (whether a 'hard' or 'soft' Brexit), the Government response to Defra's consultation on the Environmental Principles and Governance Bill is due to be released by 26 December 2018, together with the draft Bill. The consultation, which opened on 10 May 2018 and closed on 2 August 2018, is likely to be significant for UK businesses and organisations, and particularly for those operating in the environmental sector. The plan is twofold: to establish a new independent statutory body to hold the government to account on environmental standards (replacing the role of the European Commission); and to produce a statutory statement of environmental principles to guide future government policy making.
On 13 September 2018 the UK government also published guidance on "Upholding environmental standards if there's no Brexit deal". That guidance states how the UK government will uphold environmental standards if the UK leaves the EU in March 2019 without a deal. The UK government is considering what interim measures may be necessary in a no deal scenario after 29 March 2019, and before the Environment Act is passed and comes into effect.
Further, the draft Withdrawal Agreement text published on 14 November 2018 includes limited specific reference to environmental issues and the Outline Political Declaration on the Future Relationship, released with the Withdrawal Agreement, briefly refers to environmental issues under the headings of "level playing field" and "global cooperation", again specifically referencing the Paris Agreement. No clear commitments are made. These references are minimal compared to the provision made in the context of regulation in Northern Ireland in the event that the 'backstop' Protocol is invoked where the EU and UK agree, for example, to uphold their commitments to international agreements to address climate change, namely the Paris Agreement. The parties also agree in the 'backstop' to respect a number of environmental principles, including the precautionary principle, the polluter pays principle and the principle of rectification at the source, as well as committing to non-regression in the level of environmental protection.
Status quo
Currently, there are three sources of environmental legislative protection within the UK: international law (including multilateral environmental agreements such as the Montreal Protocol, the Nagoya Protocol and the Paris Agreement); domestic law; and EU law. Under current arrangements, the European Commission monitors the implementation of EU environmental law by member states and, where necessary, brings cases to enforce it in the CJEU. Historically, most EU infringement proceedings against member states have related to environmental obligations. Domestically, the Environment Agency (and its equivalents in the devolved administrations), has monitored and enforced compliance with domestic environmental standards.
After Brexit
The Withdrawal Agreement and the UK government's guidance suggests that the UK's commitments to multilateral environmental agreements and UK domestic environmental legislation will be unaffected by Brexit and will continue to apply. This includes any environmental permits or licenses which are currently issued by UK environmental regulatory bodies.
The position in relation to EU law is more complex. The EU Withdrawal Act 2018 ensures that all existing EU environmental law continues to operate in the UK post-exit. Section 16 of the EU Withdrawal Act makes specific provision for a draft Environment Bill to be published in the six months after Royal Assent (i.e. by 26 December 2018). From there, the UK government has indicated the "opportunity, over time and with parliamentary scrutiny, to ensure the legislative framework for England … delivers [the Government's] aim to be the first generation to leave the natural environment in a better state than we inherited it".
So can we expect major changes to the retained EU environmental regulation framework, post-Brexit?
The Environmental Principles and Governance Bill
Thus far, it is difficult to predict what changes we can expect to UK environmental regulation in the future. With regard to environmental principles, the consultation document states that these will be drawn from current international and EU law. The consultation document asks for initial views on which principles should be included. An annex to the consultation lists examples such as sustainable development, the precautionary principle, polluter pays and rectification at the source. This is supported by the express reference to these key environmental principles in the Withdrawal Agreement.
Regarding the watchdog, the consultation document proposes three main functions:
- To provide independent scrutiny and advice for implementing environmental legislation and policy. This role would be advisory to government and similar to the role of the UK Committee on Climate Change.
- Responding to complaints about environmental issues (similar to an ombudsman such as the Local Government and Social Care Ombudsman or the Parliamentary and Health Service Ombudsman).
- Enforcing government delivery of environmental law. The new body would have the power to issue advisory notices requesting compliance (similar to the powers of the Information Commission's Office) and could have other enforcement mechanisms.
The emphasis therefore appears to be on making UK environmental law more effective and bespoke. The consultation document suggests that enforcement procedures in the Environment Bill will only operate against public authorities, not against private businesses. Enforcing environmental law against private companies will therefore remain the responsibility of the Environment Agency and Natural England.
What does this mean for you?
In terms of public law challenges to environmental regulation, the courts (together with Parliament) have historically played a major role in scrutinising compliance with environmental standards in the UK. Take for example, the UK government's ongoing battle with ClientEarth regarding its national air quality plans. Or more recently, challenges from NGOs in relation to the government's delivery on commitments made under the Paris Agreement (see Plan B litigation permission decision).
Depending on the result of the consultation and the direction of the draft legislation, the Bill could represent a fundamental rethinking of the principles at the foundation of UK environmental regulation. The intention seems to be to replace EU enforcement mechanisms and EU environmental principles with a uniquely UK approach. This is perhaps unsurprising given the important role environmental issues took in the Brexit campaign debate. Despite obvious and repeated attempts to reassure the UK public of the potential of a "world-leading independent statutory body", the intention of the consultation document is clear: the UK is now forging its own path on these issues.
While Ministers continue to promise a "green Brexit", some have suggested that the plan is hugely disappointing. There is a general apprehension of stripped-down environmental laws and enforcement powers post-Brexit. The consultation has sparked debate from NGOs and other expert bodies who suggest that established EU environmental principles are currently missing from the proposed list: the right to environmental information and access to environmental justice, for example. Notably, the draft Withdrawal Agreement includes a fuller list of environmental principles on which the UK agrees it should not regress (including access to environmental information and justice). This could help to quell some of these fears.
There are certainly many wrinkles yet to be ironed out - for example it remains unclear exactly how the Environment Bill will apply to and interact with the devolved administrations. The consultation document states that Defra is exploring whether or not the devolved administrations would like to take a similar approach in environmental governance post-Brexit, and if so whether Defra can co-design the new system with the devolved administrations. More recently the NAO has called into question whether Defra will even be able to deliver on its legislative Brexit programmes at all, given its heavy workload.
The Environmental Principles and Governance Bill is likely to present both opportunities and challenges to businesses and organisations within the UK. Regardless of the outcome, there is likely to be some uncertainty for business as to how the principles and the new environment watchdog will operate in practice. For organisations bringing or defending judicial review challenges on environmental grounds, the principles themselves may provide new avenues for public law challenges in the future.
However it has always been the case that new EU directives and CJEU decisions throw up periods of uncertainty and increased challenges – for example most recently the CJEU People Over Wind case on Habitats Regulations assessment. Practitioners and operators in environmental regimes are no strangers to uncertainty in what is one of the most dynamic and highly-scrutinised areas of law.
While the details are still hazy, we do not predict environmental Armageddon. Reading the tea-leaves of the UK-EU negotiations to date suggests we may be marking a new era for UK environmental regulation. Whether that allows for a bespoke UK approach akin to EU standards or will, in time, prove to be a marked difference is as yet unclear. Whatever path the UK chooses, don't expect it to happen overnight.