Brexit: the implications for environmental law

Posted by John Mitchell on
Following the vote to leave the EU, there has been considerable speculation as to which EU laws will continue to apply once the UK has actually left the EU. This article considers the implications for environmental legislation.

The nature of the relationship which the UK will have with the EU after Brexit will have a significant bearing on this assessment. There seem to be five options: first, to trade with the EU under WTO rules, secondly, to enter into a customs union with the EU, thirdly, to have the sort of ad hoc arrangement that Switzerland has with the EU, fourthly, to enter into a comprehensive free trade agreement with the EU and, finally, to trade as a member of the European Economic Area.

The first option seems unlikely, since WTO rules don't guarantee barrier free or tariff free access, or, in many cases, any kind of access at all.

The second option seems similarly unlikely, since, although a customs union would avoid the obligation to allow the free movement of people, it would impose significant tariff obligations on the UK over which it would have no control (for example to apply all tariff additions, removals or adjustments agreed to by the EU with third countries) without necessarily providing concomitant benefits.

The third option also seems unlikely. Although Switzerland entered into its first free trade agreement with the EU in 1972 and since then has negotiated more than 100 bilateral agreements covering a range of sectors and goods, its agreements are not all-encompassing and do not offer as comprehensive a trading arrangement as that which the UK currently benefits from as a member of the EU. Furthermore, Switzerland has had to agree to the free movement of people. In any event, sheer economic necessity would suggest that the UK cannot spend over 40 years re-negotiating the entry of its current level of exports to the EU.

That leaves the UK with the options of membership of the European Economic Area or a standalone free trade agreement. Of the two it is difficult to say which is the more likely: membership of the EEA implies acceptance of the free movement of people, but a free trade agreement is unlikely to be tariff free, partly because other EU/third country free trade agreements are not tariff free and partly because the remaining EU members are likely to be reluctant to allow the UK tariff free access to the EU whilst not contributing to the EU budget or accepting any of the obligations of EU members other than those which relate to product standards.

Without a doubt, the best outcome for those who support the current scope and content of UK environmental law would be an arrangement based on membership of the EEA: under a free trade agreement, even if the EU insisted on the UK adhering to some EU environmental legislation as a condition of the agreement, the range of EU legislation protected would almost certainly be more restricted than if the UK were a member of the EEA.

The next part of this article considers how membership of the EEA might affect environmental law in the UK.

The EEA is currently underpinned by the EEA Agreement, to which the signatories are the 28 members of the EU and three of the four members of the European Free Trade Association (Norway, Iceland and Liechtenstein).

The EEA agreement is less comprehensive than the Treaty on the Functioning of the European Union, since it does not cover the areas of agriculture and fisheries. Within the areas of its competence, however, it guarantees the "Four Freedoms": the free movement of goods, services, persons and capital. It contains provisions on competition and state aid and then a series of "horizontal provisions" relating to social policy, consumer protection, environment, statistics and company law. Being a signatory to the EEA Agreement entitles a member state to unrestricted, tariff free access to the EU's Internal Market (the correct name for what press and politicians call the Single Market) for all products except fisheries and agriculture..

The EU has two types of legislation: on the one hand, that which applies only to EU member states and, on the other, that which has "EEA relevance" and consequently applies (in theory) to all 31 member states of the EEA. The practice of making a law which has been declared to have EEA relevance actually applicable under the EEA Agreement to the non-EU members of the EEA is complex (advocates of a reduction in bureaucracy as a result of the UK's secession from the EU should look elsewhere), but once it has passed through the appropriate procedure, it is added to the relevant Annex of the EEA Agreement and non-EU member states are then obliged to give equivalence to it in their domestic legislation.

Environmental legislation applicable in the UK is a mixture of UK "native" law, EU law applicable only in the EU and EU law with EEA relevance.

UK "native" law is law that the UK government has passed of its own initiative, often in response to international agreements. The Climate Change Act is an example of this type of law. It would be completely unaffected by the UK's exit from the EU. If it were to be repealed or curtailed, that would be because of the attitude of the party in government at the time.

EU law which has EEA relevance includes the Pesticides Regulation, the Packaging Waste Regulation, REACH, the Air Quality Directive, the Water Framework Directive, the Environmental Impact Directive and the Renewable Energy Directive (and other directives from the Energy Policy Package 20-20-20). If, therefore, the UK becomes a signatory to the EEA Agreement, all of this legislation will continue to apply. This will come as a disappointment to some, since REACH and the Environmental Impact Directive were singled out in the Balance of Competencies Review by critics of EU environmental law as being the most burdensome.

EU law which does not have EEA relevance includes the Bathing Water Directives, the Habitats Directive, the Wild Birds Directive and the Directive on trade in wild flora and fauna. The UK would no longer be required to apply these directives, although as they have been transposed into UK law by being enacted as UK regulations, they would not disappear from the rule book until they were repealed or modified by the UK Parliament. It is reasonable to hazard a guess that, paradoxically, it is these laws which the British public would regard as being examples of good environmental law and would not wish to be repealed. In any event, the law on trade in wild flora and fauna would have to be re-enacted at least in part to comply with the UK's obligations under the CITES convention.

The final part of this article considers in brief the potential effect of the UK entering into a free trade agreement with the EU outside the framework of the EEA.

In those circumstances, the effect on environmental law in the UK would depend to some extent on what was in the agreement. For example, the EU might insist on all environmental law remaining applicable or it might concede that none needed to continue to apply.

However, even if the UK government was legally free in theory to abolish all EU environmental law, politically, practicably and economically it would not be.

From a political perspective something would have to replace much of EU environmental law, even if that something could be portrayed as having less red tape involved, since the wholesale abolition of environmental law would provoke a public outcry.

From a practical point of view, too, some EU environmental law would have to stay. Take for example the regulation on the maximum residue levels of pesticides in food: after Brexit, the government will continue to need to protect the UK population against being poisoned by its food. However, as it could not afford to employ the number of scientists that would be necessary to replicate the work of the European Food Safety Authority (the current EU list of MRLs runs to about 2,500 pages), it would have to rely upon the work of an external agency such as the EU or the USA. Unless it wished to visit wholesale change on industries that will already be reeling from the need to adapt to the (positive or negative) effects of Brexit, by, for example adopting the US system, it would have little practical alternative but to stick with the EU list and adopt additions as they are made to it.

Economic necessity will also constrain the extent to which environmental law could be curtailed. Under any free trade agreement with the EU, the EU would insist on product standards being equivalent to the EU's. Any UK exporter wishing to trade with the EU under a free trade agreement, would have to comply with any environmental law relating to product standards, such as REACH, CLP (the chemical labelling regulation), the regulation on MRLs in food and the regulation on placing plant protection products on the market. The UK government might also find that some third countries may insist on compliance with EU standards as a condition of any new free trade agreement being negotiated with them. The government would, therefore, have to make a choice as to whether to adopt as part of UK law generally the EU laws which impose those standards or to allow what, in effect, would be a dual-regulation system: one for UK products manufactured for export to the EU and a different one (lesser or more stringent) for UK goods manufactured for the domestic market.

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About the Author

John specialises in risk and compliance, advising businesses in those areas of commercial life where the criminal law or penal sanctions are used to regulate business.

John Mitchell
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