The Government intends to retain all existing EU laws in domestic law through the “Great Repeal Bill”, to ensure continuity and stability when the UK leaves the EU. But the House of Lords warns of post-Brexit uncertainties over the transposition of EU environmental laws into UK legislation, which it says could affect trading arrangements with other EU countries and leave gaps in environmental protection policies. John Barwise explains.

Membership of the EU has had a fundamental impact on UK environmental legislation, and Brexit will affect nearly every aspect of the UK’s environmental policy. According to the House of Lords report, Brexit: Environment and Climate Change, the enormous breadth and depth of EU environmental and climate change laws mean that “transposing EU legislation into UK law will be immensely complex”.

Current EU environmental laws cover a diverse range of issues including nature and biodiversity, waste and recycling, pollution and chemicals regulation. The EU’s climate change policies include emissions trading, energy efficiency standards and support for low carbon technologies, all of which provide a level playing field to support a Europe-wide low-carbon economy. The Common Agricultural Policy (CAP) and Common Fisheries Policy (CFP), which are essentially economic instruments delivered through EU legislation, also have significant environmental regulations associated with them.

The environment is a cross-discipline subject that affects a range of government departments and regulators and ensuring a smooth transition from EU law to UK law presents a huge challenge for the Government.

EU legislation — the framework

EU law consists of the founding Treaties and the provisions of legislative instruments such as regulations and directives as enacted by the EU’s legislative institutions. EU law encompasses the case law of the Court of Justice of the European Union (CJEU), the General Principles of EU law (including the Charter of Fundamental Rights of the EU) and the law flowing from the Union’s external relations.

All these instruments and laws form part of the EU’s “acquis” — the accumulated legislation, legal acts, and court decisions which constitute the total body of EU law.

The three principal EU legislative instruments are the following.

  1. Regulations: these are binding in their entirety and directly applicable in all Member States.

  2. Directives: these bind the Member States as to the results to be achieved. They must be transposed into the national legal framework, which leaves a margin for manoeuvre as to the form and means of implementation.

  3. Decisions: these are fully binding on those Member States to whom they are addressed.

The EU’s institutions can also adopt non-binding recommendations and opinions. Further details of EU laws and institutions are available in the Legal Framework topic.

EU Law — how it is implemented

EU law is enforced by the European Commission (EC) and overseen by the CJEU, which can levy fines on Member States that are in breach of EU law. CJEU is comprised of three courts: the European Court of Justice (ECJ), the General Court and the European Civil Service Tribunal.

EU environmental and climate change laws are embedded in the institutional enforcement structures of the EU, overseen mainly by the ECJ. EU law is integrated into the national legal systems of the Member States, mainly but not exclusively through EU directives, which allows some flexibility on implementation. For example, Directive 96/61/EC concerning Integrated Pollution Prevention and Control was transposed into UK law through the Pollution Prevention and Control Act 1999, which has proved an effective mechanism for ensuring regulated plants adopt Best Available Techniques (BAT) to control pollution.

Other directives have proved harder to implement. In 2014, the EC launched legal proceedings against the UK for failing to cut excessive levels of nitrogen dioxide, in line with ambient air quality Directive 2008/50/EC. The long-running saga could result in fines costing millions of pounds. Other Member States face similar legal actions over breaches of EU legislation, including air pollution limits. Further details of CJEU powers and how it works are available here.

Key environment and climate change policies at the EU level

The EC states that the “environment acquis” alone comprises over 200 “major legal acts”, with additional legal instruments covering product standards, labelling, and other relevant internal market legislation, as well as the energy sector, agriculture and fisheries.

The exact proportion of UK environmental law that stems from EU legislation is difficult to quantify. Defra claims that “over 1100 core pieces of directly applicable EU legislation and national implementing legislation have been identified as Defra-owned”, which means they relate to policy areas that fall within the remit of the department.

Environment policies

  • Chemicals regulations (such as the registration, evaluation and labelling of chemical substances).

  • Circular economy (such as the avoidance of waste and promotion of new uses for materials).

  • Clean air (such as ambient air quality, industrial emissions and transport-related air policy).

  • Marine and coastal environment (such as the Common Fisheries Policy, and environmental aspects of coastal and marine policy).

  • Nature and biodiversity (such as biodiversity strategy, species protection and Natura 2000 protected areas).

  • Noise pollution.

  • Soil quality.

  • Urban environment.

  • Waste and recycling (such as packaging requirements).

  • Water resources (such as the Water Framework Directive, river basin and flood risk management, drinking water and bathing water).

  • Environmental aspects of the Common Agricultural Policy (CAP) (such as cross-compliance, environmental standards and biodiversity).

Climate action policies

  • Adapting to climate change.

  • Emissions trading.

  • Energy efficiency (such as the Ecodesign Directive setting standards for electronic goods, rules on buildings, industry, consumer products and transport).

  • Fluorinated greenhouse gases (GHGs).

  • Forest and agriculture emissions (such as deforestation, emission removal and storage).

  • GHG emission reduction.

  • International climate action.

  • Low carbon technologies.

  • Ozone layer.

  • Renewable energy (such as deployment targets and national action plans and support schemes).

  • Transport emissions (such as road transport, shipping, aviation and fuel quality).

EU environment and climate change laws are monitored and enforced by EU institutions, such as the EC and the CJEU, which have played a key role in driving improvements to the UK’s environment over the course of the UK’s membership of the EU, particularly through the threat of infraction proceedings.

The Lords European Union Committee (EUC), which produced the report says the Government faces “enormous challenges” in repatriating EU law into domestic law, particularly at Defra and BEIS, where environmental responsibilities are much broader and more demanding.

Following its inquiry into the impacts of Brexit on environmental law, the Lords EUC highlights several issues of concern.

Trade

The UK would need to comply with EU environmental standards, or adopt similar measures, in order to continue to trade freely with the EU. REACH regulations were highlighted as a case in point. Whatever the shape of the UK’s future free trade agreement with the EU, there is a strong shared interest in maintaining cross-border trade. A degree of alignment between the UK and the EU on environmental standards will thus continue to be key to maintaining access to each other’s markets across many sectors.

Enforcement

Almost all aspects of domestic environmental policy are bound up with EU policies and legislation and the process of disentangling legislation and governance structures will be a huge challenge, post-Brexit. The report highlights concerns raised by various institutions and organisations, that environmental regulations and large swathes of policy could be quickly deregulated. Environmental Law Professor, Richard Macrory told the inquiry: “In most areas of law — be it competition law, social security law or welfare law—there will be clear economic interests who will protect themselves, go to court or whatever. With the environment, bits of it may be unowned; there is no clear interest.”

Policy stability and investor confidence

The predictable policy review cycles provided by the EU have aided investor confidence and society’s ability to engage with environment and climate change issues. Once the UK has withdrawn from the EU, environment legislation and policy will be more vulnerable to short-term and less predictable changes at a domestic level. Environmental policy stability will, therefore, be critical in the process of withdrawing from the EU, the report argues.

The Great Repeal Bill

Defra Secretary, Andrea Leadsom, admits it will not be easy transposing all EU environmental legislation into domestic law. Speaking to the Environmental Audit Committee (EAC) she said: “As far as possible, we will be bringing all EU legislation into UK law, and at first glance it appears that will be feasible to do between two-thirds and three-quarters of legislation.” More work is needed and Defra have taken on 30 additional staff to work on the Bill.

But the Lords EUC is equally concerned about how the Bill will accommodate “legislation by reference”, such as environmental permitting regulations, which require the Environment Agency to have regard to EU directives. It also wants more detail on how EU judgments and Commission guidance notes — described as “important tools for interpreting and implementing environmental law” — will be transposed into domestic policy.

In summary

The Lords EUC said it welcomed the Government’s commitment to allow Parliamentary scrutiny of the Great Repeal Bill, which it says “will be vital to ensure current levels of environmental protection are at least maintained”. But the committee expressed concerns over Government assurances that future governments will be able to regulate themselves, without any enforcement mechanism, which it describes as “worryingly complacent”.

“The evidence we have heard strongly suggests that an effective and independent domestic enforcement mechanism will be necessary, in order to fill the vacuum left by the European Commission in ensuring the compliance of the Government and public authorities with environmental obligations. Such enforcement will need to be underpinned by effective judicial oversight and we note the concerns of witnesses that existing domestic judicial review procedures may be inadequate and costly,” the report states.

The Lords report describes the EU’s suite of environmental legislation and policies as “a patchwork quilt, drawing on a range of policy motivations and legal bases,” which suggests that the task of transposing EU environmental laws into UK domestic law will be more onerous than the Government first thought.

Last reviewed 14 March 2017