Deep-rooted Environmental Law Will Burden Brexit

Transposing EU law might foster stability, but it won’t happen easily

Published: March 22, 2018

Author: Markus Gehring

Following the United Kingdom’s announcement of a “hard” Brexit, with no more than free trade ties to the rest of Europe, deregulatory pressure can be expected to mount significantly post-Brexit. As a result, the environmental promises made by those in favour of Brexit have become very empty.

Although the recent environmental law evidence sessions in the House of Lords sounded somewhat positive, the current stated policy could make it nearly impossible for the government to resist the urge to radically lower environmental standards. 

Decades of Embedded Legislation

Nearly five decades of EU environmental legislation has had a profound influence on the substantive and procedural evolution of domestic law in the United Kingdom. The full breadth and depth of the EU environmental acquis is difficult to fully ascertain, given that more than 200 purely environmental instruments are in place at the EU level, excluding internal market aspects. Product standards and labelling, governance of agriculture, fisheries and energy sectors all make the list. And when areas of shared competency are included, more than 1,100 pieces of directly applicable legislation can be identified as falling under the remit of the UK Department for Environment, Food and Rural Affairs.

Overall, EU environmental and climate legislation, policy and jurisprudence are deeply embedded in the corpus of UK environmental law, making the task of directly transposing the entire framework into domestic law a daunting and complex affair. It is not surprising, then, that the United Kingdom’s previous coalition government concluded in a balance of competence review. By and large, the European Union possessed the right competences in this field, and if anything, was perhaps lacking further competences in the field of climate change.

More Than Environmental Policy at Stake

Maintaining a level playing field for intra-Union trade while balancing the costs and benefits of administration is a crucial aspect of the common and harmonized environmental framework. The EU market, which accounted for 23.8 percent of the €58.7 trillion global GDP in 2014, has benefited from the stability, continuity and climate-focused long-term perspective of regulations driving innovation and creating sufficient critical mass. According to the aforementioned balance of competences review, this allows for broad development and deployment of low-carbon technologies.

That said, Brexit isn’t being regarded as a means of implementing improved environmental protection (incidentally, many Brexiteers are also climate change deniers). Instead, Brexit is being viewed as an easy way to lower the administrative burden of compliance on organizational protocols, permitting, reporting and data sharing with EU environmental and climate legislation.

The Challenges of Transposing Law

Following the Brexit vote, Prime Minister Theresa May announced plans to introduce a “Great Repeal Bill” — now called the EU Withdrawal Bill — which would repeal the European Communities Act 1972 and transpose EU law into the domestic law of the United Kingdom in accordance with bilateral and multilateral agreements.

While transposing EU environmental law might foster continued market stability, it will give rise to several significant challenges:

  • Determining the appropriate legislative or regulatory instrument for transposing EU regulations, directives and decisions is a complex process.
  • Wide use of “legislation by reference,” or legislation that uses a definition or mechanism from another piece of legislation through direct integration, provides a range of unique complexities.
  • Core obligations and definitions have evolved through interpretation and application of the European Court of Justice (ECJ). There is continuing uncertainty as to how or whether past ECJ jurisprudence will be incorporated into the common law on Brexit Day. One commentator noted the potential for an interpretive approach, which would allow UK courts to interpret and develop domestic law in accordance with the law of the European Union. Post-Brexit, as the corpus of EU law would continue to evolve, but would no longer be supreme, one can expect that divergence between EU and UK law will pose a risk to compliance terms for continued market access.
  • Where the ECJ and EU institutions previously played integral roles in maintaining compliance of member states and domestic actors, Brexit leaves a gap in access to accountability mechanisms for national measures, which UK courts will struggle to fill.
  • The United Kingdom’s departure from the European Union will include restrictions on access to funding programs supporting legislative implementation, research and innovation.
  • Any potential trade agreement with the European Union will include compliance with many environmental and market standards, such as the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) regulation, utilized by partners in Asia and North America. Going forward, the United Kingdom may be required to comply with the EU environmental framework to maintain trade flows without the ability to influence legal development.
  • Finally, the UK government has made the comment that ministers will be allowed to unilaterally change or rescind EU laws under the EU Withdrawal Bill. While it is constitutionally doubtful that such far-reaching authorizations could be given, it is clear that while some continuity is intended, many parts of EU environmental law not currently transposed into UK law could face governmental repeal.

The vast differences in environmental standards would not be acceptable to UK trading partners in the future. While the World Trade Organization allows for certain variants in this regard, its aim remains a level playing field for international trade. Under both the Sanitary and Phytosanitary and Technical Barriers to Trade agreements, many international standards become de facto binding. With scientific proof supporting higher EU standards, they could be justified, further increasing the regulatory pressure for the post-Brexit United Kingdom to comply with EU environmental law.

The opinions expressed in this article/multimedia are those of the author(s) and do not necessarily reflect the views of CIGI or its Board of Directors.