The UK’s decision to leave the European Union (EU) has created enormous uncertainty as to the impact on UK environmental policy.
A substantial percentage of UK environmental law is derived from EU policy, including laws on waste, energy efficiency, habitat protection and climate change. Although the status quo is expected to continue until the UK officially withdraws its EU membership, an event anticipated for summer 2019, the future of UK environmental policy will be determined by the UK/EU relationship which emerges from exit negotiations. Chancellor Philip Hammond has, however, announced that all structural and investment fund projects, including agri-environment schemes, signed before this year’s Autumn Statement will be fully funded, even when these projects continue beyond the UK’s departure from the EU.
Although the Government has announced that other issues may take priority, one of the key considerations in negotiating Brexit will be access to the EU single market. The outcome of this issue will have an impact on the extent to which existing UK environmental laws are likely to be maintained, since UK exporters looking to export to the EU will be obliged to comply with EU product standards and safety regulations. Those UK exporters whose products have an internal UK market too may be content to comply and may indeed to campaign for UK laws to mirror their EU counterparts as much as possible in order to combat any advantages experienced by their non-exporting competitors in the domestic market.
One exit strategy which has been mooted is the so-called “Norway option”. Norway does not have full EU membership but is a member of both the European Free Trade Area (EFTA) and the European Economic Area (EEA). Such an exit plan would involve less upheaval than other options as the UK would still have to adhere to a significant amount of EU law. For example, the UK would continue to comply with rules such as pesticides regulations.
An alternative exit plan would be to follow Switzerland in remaining a member of the EFTA but withdrawing from the EEA, instead accessing the EU market via a series of agreements designed to closely resemble EEA membership. This strategy would involve complying with certain EU regulations, such as the Habitats Directive, but the UK would be free to reassess some policy areas, such as waste packaging regulations.
Other Brexit models under consideration include creating a customs union with the EU, or taking a unilateral free trade approach, in which the UK would move ever more distant from adherence to many EU regulations. If one of these arrangements, or an alternative, is not reached by the time Brexit takes effect, the default “World Trade Organisation” model would be applied. In this scenario, the UK would not be obliged to apply EU laws and would be subject to trade and services restrictions.
Although all of these potential exit strategies will mean some movement away from the EU laws which underpin our existing environmental policies, Brexit will not automatically discontinue those laws. EU Directives, which set out certain results which member states must achieve, simply provide the broad structure within which the UK makes its own policies. This is true of areas such as water quality, waste disposal and the protection of animal and plant species. The laws which have emerged from Directives such as the Wild Birds Directive and the Bathing Water Directives, will therefore remain in place unless the UK wishes to reassess them.
EU Directives have also provided a framework for the UK to meet its wider international obligations relating to issues such as climate change. A move away from those Directives would create policy gaps which would have to be assessed. Indeed, Lord Krebs, Chairman of the Committee on Climate Change’s adaptation sub-committee, has recently expressed his concern that EU legislation must be replicated by the Government and not left to slide, leading to increased pollution levels or lower energy efficiency.
There is a concern in some quarters that once the UK is freed from its EU obligations, economic pressure to shift public investment from environmental protection and development may prove too strong to resist. Moreover, if the different jurisdictions operating within the UK create their own individual measures to replace EU rules, businesses operating in the private sector could be negatively impacted by any incompatibilities.
Whatever happens, whether the approach taken by the UK leans more towards the maintenance of existing EU laws and regulations or not, policy-makers are facing an enormous unprecedented task in reviewing which of our existing environmental laws should be maintained, and which re-modelled or repealed.