Skip to main content

UK Environmental Law Post Brexit

Veerle Heyvaert and Aleksandra Čavoški

elni Review 2017, Issue 1, pp. 2-10. https://doi.org/10.46850/elni.2017.001

While much of the post referendum Brexit discussion has focused on economic and constitutional issues, the future of environmental law and policies has received much less attention. Environmental protection barely featured as a campaign issue on either side of the referendum debate, and it is notably overlooked in the Brexit White Paper. Yet UK environmental law is deeply rooted in EU law and policies, and departure from the EU may herald significant changes within national law. Environmental law covers a broad range of public policies including biodiversity protection, air and water quality control, climate change and waste management, and deeply impacts other key domestic policies such as agriculture, transport, industrial and energy policy. Moreover, uncertainty in environmental regulation significantly jeopardises its chance of effectiveness. Therefore, careful reflection on the impact of Brexit on environmental law is essential.
This article investigates what a gradual repatriation of EU law might mean, for specific areas (climate, ETS, biodiversity, air and water), for public authorities but also for civil society. The authors of this article envisage how cooperation between the UK and the EU could actually proceed in the future, on environmental law issues. Because there is actually no escape, or rather “an inescapable physical reality”: environmental problems will continue to require concerted action.

Access full article

References

  1. Michael Dougan (ed), The UK after Brexit – Policy and Legal Challenges, Intersentia, Cambridge, 2017.
  2. HM Government, ‘The United Kingdom’s exit from and new partnership with the European Union', (Cm 9417, 2017).
  3. Council Directive 70/220/EEC of 20 March 1970 on the approximation of the laws of the Member States relating to measures to be taken against air pollution by gases from positive-ignition engines of motor vehicles OJ 1970 L 76/1.
  4. Single European Act OJ 1987 L 169.
  5. Court of Justice of the European Union, 1993, Judgment of the Court of 14 July 1993. 
    Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland. Directive 76/160/EEC - Bathing water (Case C-56/90).
  6. Court of Justice of the European Union, 2014, Judgment of the Court (Second Chamber), 19 November 2014. The Queen, on the application of: ClientEarth v The Secretary of State for the Environment, Food and Rural Affairs. Request for a preliminary ruling from the Supreme Court of the United Kingdom. Reference for a preliminary ruling — Environment — Air quality — Directive 2008/50/EC — Limit values for nitrogen dioxide — Obligation to apply for postponement of the deadline by submitting an air quality plan — Penalties (Case C‑404/13).
  7. Regulation (EC) No 1829/2003 of the European Parliament and of the Council of 22 September 2003 on genetically modified food and feed OJ 2003 L 268/1.
  8. Regulation (EC) No 396/2005 of the European Parliament and of the Council of 23 February 2005 on maximum residue levels of pesticides in or on food and feed of plant and animal origin and amending Council Directive 91/414/EEC OJ 2005 L 70/1.
  9. UK Conservation of Habitats and Species Regulations 2010 SI 2010/490 (as amended).
  10. Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law, OJ 2008 L 328/28.
  11. Andrea Leadsom, speech on priorities for building world-leading food and farming industries at the National Farmers' Union Conference, 21.02.2017.
  12. HoL, European Union Committee ‘Brexit: Environment and Climate Change’, 12th Report of Session 2016–17.
  13. House of Commons Environmental Audit Committee, ‘EU and UK Environmental Policy’, Third Report of Session 2015–16.
  14. Court of Justice of the European Union, 1988, Judgment of the Court of 20 September 1988. Commission of the European Communities v Kingdom of Denmark.  Free movement of goods - Containers for beer and soft drinks (Case 302/86).
  15. Court of Justice of the European Union, 2011, Judgment of the Court (Grand Chamber) of 21 December 2011. European Commission v Republic of Austria. Failure of a Member State to fulfil obligations - Articles 28 EC and 29 EC - Free movement of goods - Measures having equivalent effect to quantitative restrictions on imports and exports - Transport - Directives 96/62/EC and 1999/30/EC - Sectoral traffic prohibition for lorries of over 7.5 tonnes carrying certain goods - Air quality - Protection of health and the environment - Principle of proportionality – Consistency (Case C-28/09).
  16. Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC, OJ 2006 L 396.
  17. Government UK, Oral statement to Parliament: Exiting the EU next steps: Ministerial statement 10 October 2016.
  18. HoC Environmental Audit Committee Report, ‘The Future of Natural Environment after the EU Referendum’, Sixth Report of Session 2016–17.
  19. Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC, OJ 2003 L 275/32.
  20. S BELL, D McGILLIVRAY and OW PEDERSEN, Environmental Law, Oxford University Press, Oxford 2013.
  21. HoC Library Briefing Paper, Legislating for Brexit: The Great Repeal Bill, Number 7793, 21 November 2016.
  22. ‘Government announces end of European Communities Act’: Ministerial statement 2 October 2016.
  23. Scotland Act 1998.
  24. Government of Wales Act 1998.
  25. Northern Ireland Act 1998.
  26. EA KIRK and KL BLACKSTOCK, 'Enhanced Decision Making: Balancing Public Participation against ‘Better Regulation’ in British Environmental Permitting Regimes' (2011) 23 Journal of Environmental Law, pp. 97-116. DOI: https://doi.org/10.1093/jel/eqq024.
  27. ‘The Government's negotiating objectives for exiting the EU’: PM speech, 17.01.2017.
  28. Memorandum of Understanding and Supplementary Agreements between the United Kingdom Government Scottish Ministers, the Cabinet of the National Assembly for Wales and the Northern Ireland Executive Committee, (Cm 5240 December 2001).
  29. R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5, 24 Jan 2017.
  30. Parliamentary written Question 63096 of 06.02.2017 (C. Lucas) - Agriculture and Environment.
  31. Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consumption, OJ 1998 L 330/32.
  32. S KINGSTON, V HEYVAERT and A CAVOSKI, European Environmental Law, Cambridge University Press, Cambridge 2017, pp. 273-275.
  33. Regulation (EC) No. 1123/2013 of 8 November 2013 on Determining International Credit Entitlements pursuant to Directive 2003/87/EC of the European Parliament and of the Council, OJ 2013 L 299/32.
  34. UNFCCC Conference of the Parties, 2015, Paris Agreement.
  35. Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds, OJ 2010 L 20/7.
  36. Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habits and of wild fauna and flora, OJ 1992 L 206/7.
  37. J HOLDER and M Lee, Environmental Protection, Law and Policy, Cambridge University Press, Cambridge 2007.
  38. Court of Justice of the European Union, 2004, Judgment of the Court (Grand Chamber) of 7 September 2004. Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en Visserij. Reference for a preliminary ruling: Raad van State - Netherlands. Directive 92/43/EEC -Conservation of natural habitats and of wild flora and fauna - Concept of "plan' or "project' - Assessment of the implications of certain plans or projects for the protected site (Case C-127/02).
  39. Court of Justice of the European Union, 2013, Judgment of the Court (Third Chamber), 11 April 2013 Peter Sweetman and Others v An Bord Pleanála Request for a preliminary ruling from the Supreme Court (Ireland) Environment — Directive 92/43/EEC — Article 6 — Conservation of natural habitats — Special areas of conservation — Assessment of the implications for a protected site of a plan or project — Criteria to be applied when assessing the likelihood that such a plan or project will adversely affect the integrity of the site concerned — Lough Corrib site — N6 Galway City Outer Bypass road scheme (Case C‑258/11).
  40. English Coastal and Inland Bathing Waters: A Summary of Compliance with the 2006 Bathing Water Directive.
  41. R v Secretary of State for the Environment, Food and Rural Affairs [2015] UKSC 28.
  42. Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe, OJ 2008 L 152/1.
  43. D CARRINGTON, 'London Breaches annual air pollution limit for 2017 in just five days' The Guardian, 6 Jan. 2017.
  44. Court of Justice of the European Union, 1999, Judgment of the Court (Fifth Chamber) of 22 April 1999. Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland. Failure to fulfil obligations - Directive 80/778/EEC - Water intended for human consumption - Rules designed to ensure implementation of water-quality standards (Case C-340/96).
  45. European Commission, 2017, Commission warns Germany, France, Spain, Italy and the United Kingdom of continued air pollution breaches.