A trade deal was reached just days before the end of the transition period, yet the effects of Brexit on UK environmental policy and law remain unclear.
EU environmental legislation (and its enforcement) is one of the strongest in the world. Despite, or perhaps because of, this UK ministers have often represented European law as burdensome as it contrasts their own government’s planning based mainly on principles of flexibility and discretion, allowing for trade-offs between environmental and other objectives. Brexit presents opportunities and challenges for the long-term development of UK environmental law. The country’s departure from the European Union gives it the space to become a global leader in environmental protection, however whether it will decide to follow this path remains uncertain.
The UK has a long history of environmental legislation, starting from the Industrial Revolution. In the 19th Century, environmental laws were procedurally detailed but silent on policy goals, resulting in emissions standards and similar requirements often being left to the discretion of regulatory bodies.
Once the country joined the EU in 1973, the onset of EU environmental legislation converted these precepts into precise policy goals, emissions standards and target obligations, including for the management of waste and chemicals, and protection of habitats. These regulations have since become part of UK law. For instance, the standard for drinking water in the UK used to be simply that of supplying “wholesome water”. From 1980, under the European Commission’s Drinking Water Directive, precise standards for safe drinking water were written into law.
Following the end of the transition period on the 31st of December 2020, existing EU environmental legislation will continue to operate under the policy of “roll-over”, however decisions made by the Union will no longer be binding for courts in the UK. Brexit also signifies that certain structures will cease to exist in the UK and will thus need to be replicated, such as the European Committee’s supervisory role in ensuring regulations are properly applied: this means that an independent watchdog needs to be established. In these respects, the Environment Bill 2020 mandates the founding of the Office of Environmental Protection (OEP), a new independent statutory body that will oversee compliance with environmental law and hold those breaching it to account.
Overall, the UK will be able to set its own targets, policies and laws. In the July 2018 White Paper on the future relationship between the UK and EU, the previous government promised to maintain high environmental standards and continue to follow the 25 Year Environment Plan set out by former Prime Minister Theresa May, which aims for “cleaner air and water, plants and animals which are thriving, and a cleaner, greener country”. And in 2019 the UK set an important precedent by becoming the first major economy to pass laws for net zero carbon targets, and for a cleaner and more resilient society. In early December this year, Prime Minister Boris Johnson also announced that the country aims to increase its emissions reduction goal for 2030 to 68 per cent, surpassing the EU’s target which is set to be raised to 55 per cent (though the European Parliament is pushing for 60 per cent).
England’s countryside will radically change following the transition period, featuring more trees, meadows, wetlands, and fewer sheep and cows according to a new farming policy announced by government ministers. EU farm subsidies will be phased out, leaving more space for wildlife to flourish. Under the EU system, in fact, farmers gain grants based on the amount of land farmed (so the richer the farmers, the more money they receive).
Under new UK legislation, the Common Agricultural Policy will be replaced with an Environmental Land Management (ELM) system which pays farmers if they prevent floods, plant woodlands and help wildlife by expanding hedges, capturing carbon, cutting pesticides and reducing antibiotics. The novel ELM is organised into tier systems, with the eligibility for the highest paying tier being based on landscape and ecosystem recovery, the creation of large forests, peatland restorations and other such actions. The total amount of funds that will be converted from payments based on the size of farmed land to environmental subsidies will reach 1.8 billion pounds, equal to 2.44 billion US dollars, a year. The UK’s Department for Environment, Food and Rural Affairs (DEFRA) has also invested 640 million pounds (almost 870 million dollars) in the Nature for Climate Fund, which will increase tree planting and peat restoration in England.
There is good reason to believe that the UK’s natural environment could experience a positive future. However, the path ahead is yet to be determined: the flagship Environment Bill has progressed very slowly, despite what DEFRA Minister Lord Gardiner of Kimble claimed at the beginning of 2020. This will result in the UK leaving the EU without a running OEP and proposed policy statement embedding environment principles in ministerial policy-making. This chasm in environmental protection may result in extra damage. According to Environment Secretary George Eustice, the government has planned interim measures to cover this gap. However, no further details have emerged.
Despite the policy of roll-over, the Withdrawal Agreement Act – legislation adopted in January this year that sets out the incorporation of the Brexit agreement reached with the EU into UK law – includes a clause that gives ministers the power to authorise any UK court to overturn judgements handed down by the EU Court of Justice, meaning that current interpretation of environmental law could be changed or challenged. The British National Farmers’ Union has already persuaded the government to water down its original intentions, complaining that the hurdles to qualify for ELM grants are too high. In addition, polluters will receive a warning letter instead of a fine: although the government says it will target repeat offenders, a plan for delivering on this is noticeably absent.
A new report by Brexit & Environment, a network of UK and EU researchers analysing how Brexit affects the environment, reveals the risk of environmental regression in the UK: there are around 500 separate items of EU environmental law and policy which risk not being retained after Brexit, producing a gap in environmental protection. The government failed to address the issue in the Withdrawal Agreement Act, claiming it has retained all relevant legislation in the form of statutory instruments (SIs), i.e. the detailed regulations that allow for an act approved by parliament to come into force.
However, the report revealed that most SIs, once scrutinised, had removed review and revision clauses which would have facilitated the amendment and improvement of SIs. Their absence sheds some doubt on the UK’s commitment to non-regression, since there’s no explicit intention to build upon and improve the retained laws over time. Moreover, these changes have been made with great speed and little scrutiny as SIs are pieces of secondary, or delegated, legislation that aren’t normally debated in Parliament.
The speed of such a process deeply contrasts the need to approach long-term environmental and social challenges with care and intent. It leaves retained environmental laws at risk of succumbing to what the Parliamentary Environmental Audit Committee termed “zombification“, whereby they exist in the UK Statute Book, but the failure to review them will result in their reduced efficacy. The disappearance of so many clauses is a reminder that the UK lacks a public plan for what to do with retained EU legislation in general.
The Trade and Cooperation Agreement setting the framework for trade relations between the EU and UK was agreed on the 24th of December, just days before the end of the transition period. “A key element of the negotiations was the so-called ‘level playing field’ – the rules for fair competition designed to underpin the trade agreement,” an analysis by the London-based think tank Institute for Public Policy Research spells out. “However, the commitments on labour and environmental standards are considerably weaker than expected; there is only a commitment not to lower current levels of protection to the extent that any reductions may affect trade or investment”.
It is also unclear what will happen to complaints concerning breaches of environmental law that are currently handled by EU institutions, and whether the government will work with the EU to ensure none are lost.
It is still unclear how the UK government aims to protect its ecological heritage, and it can be argued that it is moving in the direction of both improved and reduced environmental protection. Hope rests with organisations such as the Climate Alliance, UK Student Climate Network, Extinction Rebellion, as well as the pressure exercised by individual citizens to push the government to maintain the highest possible environmental standards, if not exceed the EU in setting ambitious targets for a sustainable future.
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