Brexit: the implications for environmental law

In brief

The EU is the driver for much of the UK’s environmental policy. The consequences of a Brexit will depend on how the UK defines its relationship with the EU after its departure. Rather than sweeping changes to all environmental EU-derived legislation, it is more likely that the scope of changes will be relatively limited in order that European markets for regulated products and services remain open. However there is stronger potential for divergence in areas where the UK has previously opposed stricter European controls such as renewable energy, or where it has fallen behind EU targets such as air pollution, or where it currently acts under a European umbrella, such as emissions reductions.

Overview

The impact of a Brexit on environmental policy would be entirely dependent on the relationship the UK establishes with the EU. If it joins the EEA, the impact may be quite limited since environment is one of the areas under the EEA Agreement where members must follow the EU’s lead, though EEA members have a significantly reduced impact on the formation of these rules compared with EU Member States. Even if outside the EEA, UK businesses would be forced to align their products, as well as gas and electricity services, with EU rules in order to access the internal markets for goods and energy.

From a procedural perspective, many UK implementations of EU directives are statutory instruments enacted under the authority of the European Communities Act 1972. If this central legislation is repealed, the statutory instruments under it will also lose effect, necessitating a wide ranging programme of legislative activity with no guarantee of the same texts being put back into place. In the event of the UK joining the EEA, it is more likely that the ECA would be “tweaked” but remain in force, resulting in less disruption to existing laws.

The UK Government, giving evidence to the House of Commons Environmental Audit Committee, stated that it was “very content with Europe in relation to energy and climate change” and therefore, subject to future governments having diverging opinions, no seismic shift in policy is expected to result from a Brexit in this area.

The extent to which the UK would be free to deregulate in the environmental sphere would be limited by its international obligations under several acts including the UN Framework Convention on Climate Change and its protocols and agreements, the Basel Convention on Transboundary Movement of Waste, the Stockholm Convention on Persistent Organic Pollutants, the Rotterdam Convention on Hazardous Chemicals, and the Geneva Convention on Air Pollution. A question mark exists over the impact that the UK could have in international negotiations such as COP, as a standalone nation rather than as part of the EU.

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