Six weeks to go until Brexit: What's going to happen to environmental law?

14 February 2019

The UK is scheduled to leave the European Union at 11pm on 29 March 2019. Leaving aside the confusion surrounding how Brexit might happen (deal, no deal?), what will happen to the swathe of environmental laws and protections when the UK leaves the EU?



One of the great beneficiaries of the European Union has been the environment. Since the very beginnings of the EU, Member States have come together and enacted a great variety of environmental laws, leading to cleaner seas, flourishing habitats and healthier citizens.

With Brexit only a few weeks away, this article explains what will happen to environmental laws in the United Kingdom once it leaves the EU.

Sources of European environmental law and their effect in the UK

Directives

European Environmental law is broadly a mixture of Directives and Regulations. Directives are proposed by the European Commission, negotiated long and hard by the EU's Member States and are eventually agreed by the European Parliament and Council. Once made, EU Directives have to be transposed by each Member State within a set timeframe, usually two years (i.e. national laws must be brought into force which meets the goals set by the Directive). Where the transposition process is delayed or insufficient, the European Commission, as watchdog, may bring infringement proceedings against individual member states.

In the United Kingdom, EU Directives are implemented by a mixture of primary legislation (Acts of Parliament) and secondary legislation (Statutory Instruments). After the UK leaves the EU, Acts of Parliament and Statutory Instruments will remain binding law, notwithstanding that the driver for their creation was a European Directive.

Regulations

Like Directives, Regulations are heavily negotiated by the Member States prior to the European Parliament and Council adopting them. However, unlike Directives, there is no need for Regulations to be implemented by each Member State because Regulations have direct effect and there is no scope for differing implementation between the Member States.

Following Brexit, European Regulations, having direct effect in the UK, will immediately cease to apply in the United Kingdom.

European Court of Justice

The Court of Justice of the European Union (ECJ) ensures that European law, including environmental law, is interpreted and applied equally across the Member States and its decisions bind the courts of Member States. Traditionally, decisions of the ECJ have been very important in interpreting environmental laws and it has played a critical role in allowing citizens access to justice in environmental matters.

Post-Brexit - the UK's solution(s)

The European Union (Withdrawal) Act 2018

The European Union (Withdrawal) Act 2018 (the "Withdrawal Act") received Royal Assent on 26 June 2018 and provides for the repeal of the European Communities Act 1972 on 29 March 2019 at 11pm.

Amongst other things, the Withdrawal Act provides automatic saving for EU-derived domestic laws and what it calls "Direct EU Legislation", which includes European Regulations. In effect, the Withdrawal Act converts European environmental law (alongside other laws) into UK law. As a result of the Withdrawal Act, there should be little difference between environmental laws in the UK before Brexit and immediately following Brexit - on paper at least.

However, European Regulations were not written with the expectation that they would apply to a country no longer a member of the EU, and many of the institutions referred to in, or established by, those Regulations will not have the necessary powers to deal with issues affecting the UK. As a result, the British Government is rapidly making a series of rule changes to 'patch up' the legislative system.

Office for Environmental Protection

As noted above, the European Commission has the power to take action where there has been an infringement of EU law. The Commission can take action following its own investigations or upon receipt of a complaint from a citizen or other stakeholder. The governance role played by the Commission is a fundamental protection to ensure the good behaviour of national governments with respect to legal compliance.

Following the UK's departure from the EU, the Commission will not have any standing to take action, so who will 'police' the UK Government instead? The answer lies in the proposed establishment of the Office for Environmental Protection (OEP).

At the end of 2018, the Government published, in part, a draft Environment Bill, which contained its proposed clauses establishing the OEP and setting out its powers. We await the final publication of the Environment Bill in due course.

Based on the draft Environment Bill, the OEP will be a body independent of Parliament, which will hold the Government and public bodies to account on environmental matters. In a first for environmental protection in the UK, the OEP will have power to take legal action to enforce the implementation of environmental laws.

Proposed tasks of the OEP include:

  • scrutiny and annual reporting on progress made in improving the natural environment in accordance with Environmental Improvement Plans prepared by the Secretary of State, and the Secretary of State must respond to those reports;
  • monitoring and reporting upon the implementation of environmental law, again, which the Secretary of State must respond to;
  • advising the Government on proposed changes to environmental law and other environmental matters;
  • investigating complaints made to the OEP regarding a public authority failing to comply with environmental law;
  • issuing an information notice to a public authority which it suspects has failed to comply with environmental law, and subsequently issuing a decision notice if the OEP believes there has been a non-compliance; and
  • taking enforcement action following the issuing of a decision notice, by way of application for judicial review in the High Court.

While there has been some criticism regarding the OEP, it is undoubtedly a bold proposal and goes a considerable way to keeping the Government on a 'green' track. That said, the drafting of the Environment Bill has not been finalised; there is no provision restricting 'non-regression' of environmental law (i.e. nothing to stop laws being weaker post-Brexit); the Bill hasn't been debated or received Royal Assent; there is no sign of a draft Environmental Improvement Plan being published; and we have no idea how vigorous the OEP will be in pursuing suspected breaches. As a result, we are far from being able to see anything close to the full picture.

Chemicals regulation

One of the most significant EU environmental laws is REACH, concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals. REACH requires businesses to register chemicals with the European Chemicals Agency (ECHA) prior to placing them on the market. Because it is a Regulation, REACH applies in the UK without the need for national laws, and it will cease to apply in the UK after 11pm on 29 March 2019.

As noted above, the Withdrawal Act attempts to make provision for REACH (and other regulations) to apply in the UK following the UK's departure from the EU, however REACH - and the ECHA - simply isn't designed for this. Accordingly, the Government issued technical guidance at the end of last year and published draft legislation (the REACH etc (Amendment etc) (EU Exit) Regulations 2019) in January to address some of the key changes that will need to be made. The ECHA has also just published its own guidance to provide commentary and assistance.

In a no-deal Brexit, or following the expiry of a deal at the end of 2020, UK-based companies with REACH registrations will no longer be able to export or sell their products into the European Economic Area (EEA) unless they transfer their registrations to an EEA-based organisation or 'only representative'. Similarly UK companies importing or using chemicals from the EEA would need to register those chemicals in the UK, rather than relying solely on the existing REACH registrations.

The UK Government has attempted to mirror REACH as far as possible and to reflect the role of the ECHA (these duties will fall to the Health and Safety Executive).

For UK-based REACH Registration holders, it is proposed that UK REACH will recognise the European registration and will be 'grandfathered' from day one, but there will still be a duty to provide supporting data (similar to that currently held by the ECHA) and create an account at UK REACH IT - which could be particularly expensive and time-consuming, notwithstanding that Government's aim is to keep this 'light-touch'.

For those in the UK who use chemicals imported from the EU for their own purposes, there will be helpful transitional arrangements, but those entities will need to register the chemical under UK REACH, which could be an expensive process and not something that many 'downstream' users are expecting or familiar with.

Businesses wishing to place chemicals on the British and EU markets in the future would need to ensure that separate registrations are made.

F Gases and Ozone Depleting Substances

If the UK leaves the EU without a deal, businesses in the UK that produce or import Fluorinated Gases and Ozone Depleting Substances will need to register them on a new online system just launched by the UK Government. The online system will enable account-holders to apply for an emissions quota, manage it and submit annual compliance reports.

The UK system is designed to replace the EU system currently in place and registrations will need to be made before 12 April 2019 in order to receive a quota for 2019.

Red tape removal post-Brexit?

In addition to the above examples, there are guidance notes being published and updated by the UK Government relating to pesticides, waste shipments, emissions trading, controls on mercury, labelling of chemicals and so forth.

The Government has publicly stated its commitment to upholding environmental standards following Brexit, and to upholding international obligations through multilateral environmental agreements. While much of the UK's environmental law derives from European sources (in particular Directives), the bulk of it forms part of UK law and will be unaffected by Brexit on day one. The Withdrawal Act attempts to put a 'sticking plaster' over the environmental laws within Regulations but we expect to see significant teething problems in the immediate 24 months following Brexit during which unforeseen consequences or gaps in legislation will emerge and businesses will be seeking to apply best (or least-worst) practices in an effort to comply with unclear legislation. We also expect that finding substantial Parliamentary time to address these issues will be difficult.

Once the dust has settled, we expect the Government to introduce new flagship environmental policies and we do not expect fundamental issues such as air quality, waste reduction (including plastics), and decarbonisation of transport to be ignored. However, there may be some elements of environmental law that are examined closely in the future, and some rules may be relaxed, for example in relation to protected species protection. Furthermore, as time goes by, it is likely that there will be a divergence in terms of EU and UK standards of environmental protection and legal interpretations by the UK Courts who will be no longer bound by the decisions of the Court of Justice of the European Union. Navigating through environmental law is about to get a lot more difficult…


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