The standards of debate and discourse that preceded the United Kingdom’s 2016 referendum on continued membership in the European Union were, by any measure, lamentable. The environment did not figure largely, but Secretary of State for Foreign Affairs Boris Johnson — a prominent voice in the Leave campaign — did in fact scornfully refer to the topic of EU environmental law in an article he wrote in The Telegraph. His comments were presumably made for comedic effect rather than legal accuracy: “The more the EU does, the less room there is for national decision-making. Sometimes these EU rules sound simply ludicrous, like the rule that you can’t recycle a teabag, or that children under eight cannot blow up balloons, or the limits on the power of vacuum cleaners.”
Most regrettably, the key politicians in favour of remaining in the European Union failed to present the case for the environmental benefits of EU membership. Environmental groups like Friends of the Earth were left to make that case instead — and they did so strongly.
Regardless, the narrow majority in favour of Brexit has set the United Kingdom on a course that represents an unprecedented experiment in environmental law. It poses the question around the outcome of releasing the UK government from the controlling influence of EU law, after a period of 40 years. Over those four decades, EU law decisively shaped UK policy and environmental legislation.
It is, of course, impossible to know how environmental law would have developed in the United Kingdom had it not been a member of the European Union. There was certainly some justification for the 1970s gibe that the United Kingdom was “the dirty man of Europe.” Its relatively short and fast-flowing rivers were used as convenient conduits for industrial and human waste; the sea was used as a handy disposal facility for sewage sludge, radioactive waste and colliery spoil waste; the prevailing westerly winds carried the acid-laden emissions from its power stations and factories to harm the forests of Scandinavia and Germany; and old quarries were blithely filled with household and toxic waste without a thought as to the consequences for groundwater resources.
Such environmental neglect would not have been sustainable whether the United Kingdom had joined the “Common Market” in 1972 or not. However, EU law has led to major strides in the improvement of coastal and river water quality, heavy investment in new infrastructure to cut industrial emissions, sewage treatment before discharge and landfill sites that offer acceptable levels of environmental protection. Further, EU law has required forward-thinking approaches to reducing waste and conserving natural resources and energy. It has provided protection for vulnerable species and important habitats against damaging activities. Finally, it has created important rights for the citizen as a result of procedural requirements on environmental impact assessment and freedom of access to environmental information.
The bill currently before Parliament will essentially preserve the status quo as at the time of exiting the European Union. Of course, this preservation is subject to the myriad amendments that will be required for UK legislation to reflect the fact that the United Kingdom is no longer a member. EU law, frozen as at that date, will therefore be part of UK law, but will no longer have legislative supremacy.
The expected transposing of law gives rise to questions about whether, and how far, UK law will diverge in the future. This could come about either by deliberate decisions from legislators and administrations in England, Scotland, Wales and Northern Ireland to change the law, or simply by the domestic law failing to reflect or keep pace with changes in EU law.
The level of divergence from EU law — whether portions are repealed or amended — will vary across the wide subject matter covered by environmental law. In some cases, there will be a commercial imperative to retain rules that are compatible with EU requirements for products and chemicals, so as not to create obstacles to trade. Should the United Kingdom enter into a trade agreement with the European Union, this may provide further pressure for consistent law. There will certainly be pressure from businesses that have invested heavily in meeting EU requirements; relaxed rules could competitively disadvantage them. It is important not to forget that in some cases EU law is underpinned by, or reflects, continuing wider international law, such as the Aarhus Convention on public access to information, participation in environmental decision making and access to justice.
Next, there will surely be a time for real, rather than rhetorical, pressure to cut back the level of regulation provided by EU law. The UK government clearly finds EU standards on air quality both unwelcome and difficult to meet in major cities, judging from the litigation on this subject such as its third defeat by campaigning group ClientEarth in February 2018. It can be anticipated that there will be calls by the development lobby to reduce the constraints presented by EU habitats and species law. And if the United Kingdom is as keen on striking free trade deals as it appears to be, powerhouse countries like the United States or China could exert pressure to influence a less “precautionary” approach to environmental risk.
New institutions will be needed in the United Kingdom to provide a voice that ensures the environment will not suffer from these pressures. There have already been calls from parliamentary committees for the creation of an independent overseeing body.
The potential gap left in access to justice presents another major challenge. EU law has been a very potent weapon for citizens seeking to challenge government decisions, using arguments based on environmental impact assessment requirements or nature conservation law. The arguments based on the overriding supremacy of EU law will no longer be available. Nor will the process by which an individual can complain to the European Commission, free of charge, which the Commission will then investigate and, if necessary, pursue. While the UK government claims that straightforward judicial review can provide all the protection necessary, this protest rings hollow to anyone with experience of the cost, complexity, delay and risk of High Court proceedings in the United Kingdom. Some other mechanism, such as an environmental ombudsman service, will need to be created.
So far, the United Kingdom looks to be heading toward a chaotic Brexit in which little is certain or can be taken for granted. Maintaining current levels of environmental protection — themselves far from satisfactory in some areas — will be a significant challenge for environmental lawyers and law makers alike.