![Sample our Law journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5942/TOC-Subject-Sample-2021-Law.jpg"})
Abstract
The United Kingdom’s decision to leave the European Union will have major consequences for environmental law. EU law is integrated into the UK’s laws in many ways that will be difficult to disentangle and a continuity of laws provision seems desirable in order to avoid gaps in the law appearing. The effect of devolution within the UK is that most environmental matters will in future be the responsibility of the devolved administrations. The UK’s freedom of action will continue to be constrained by obligations in international law, including those establishing a new relationship with the EU. Environmental law in the UK has changed greatly during the four decades of its membership in the EU and most of the innovations introduced through the EU are likely to be retained, although there may be a wish to restore more discretion over the outcomes to be achieved as opposed to having strict obligations to satisfy targets and standards. In structural terms the biggest changes are likely to be the loss of the stability provided by the slow processes of making and changing EU law and the loss of means to call to account the UK government (and devolved governments in Scotland, Northern Ireland and Wales) over their performance in meeting their environmental commitments.
Notes
1 In particular, the fact that Scotland clearly voted to remain within the EU is seen as a possible trigger for a second referendum on Scottish independence, following the one in September 2014 which decided against separation from the UK, but with 45 per cent of those voting favouring independence.
2 The term ‘Brexit’ refers to Britain ‘exiting’ the EU.
3 The UK joined the EU on 1 January 1973; Treaty concerning the accession of the Kingdom of Denmark, Ireland, the Kingdom of Norway and the United Kingdom of Great Britain and Northern Ireland to the European Economic Community and to the European Atomic Energy Community [1972] OJ L73/5, art 2 (following a referendum after the treaty was agreed, Norway decided not to join and has remained outside the EU).
4 Under EU law certain provisions of the Treaties are regarded as having ‘direct effects in the legal relations between the Member States and their citizens’ so that Treaty provisions can be relied on directly as creating rights and obligations which will be recognised by national courts, without any need for further domestic measures to implement or specifically adopt them; Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1.
5 Under the Treaty on the Functioning of the European Union, an EU Regulation is ‘binding in its entirety and directly applicable in all Member States’ (art 288), which means that it has the same legal force as legislation made by the national authorities.
6 In contrast to the position with Regulations, an EU Directive is ‘binding as to the result to be achieved … but shall leave to the national authorities the choice of form of methods’ (ibid), requiring legislation at national level to implement the measure fully, giving it full legal effect in the national legal system, whether by amending existing laws or introducing new ones so that the requirements of the Directive are fully satisfied; enforcement proceedings can be taken against a State which has not fully implemented a Directive within the prescribed time period and some provisions of Directives can be given ‘direct effect’ where the State is in default, allowing individuals to claim against the State rights which they would have had if the State had not failed in its obligation to establish such rights in its national law (Case 41/74 Van Duyn v Home Office [1974] ECR 1337).
7 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora [1992] OJ L206/7, art 6.
8 Conservation (Natural Habitats, etc.) Regulations 1994, SI 1994/2716, Part 4; Conservation (Natural Habitats, etc.) Regulations (Northern Ireland) 1995, SR 1995/380, Part 4; Conservation of Habitats and Species Regulations 2010, SI 2010/490, Part 6.
9 See, eg, Environmental Permitting (England and Wales) Regulations 2010, SI 2010/675, reg 2.
10 Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment [2001] OJ L197/30.
11 Sarah Hendry, Frameworks for Water Law Reform (Cambridge University Press 2015) 15–18.
12 Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy [2000] OJ L327/1.
13 For example, the substance of the legal controls on the import and export of endangered species is wholly contained in EU Regulations (Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein [1997] OJ L61/1), with the UK legislation limited to providing some enforcement measures (Control of Trade in Endangered Species (Enforcement) Regulations 1997, SI 1997/1372), so that the loss of the EU rules would leave the UK with no law to satisfy its obligations as a party to the Convention on the International Trade in Endangered Species.
14 Government of Ireland Act 1920, s 61.
15 European Communities Act 1972, s 3(1).
16 See the comments of Carnwath LJ in R (OSS Group Ltd) v Environment Agency [2007] EWCA Civ 611, [2007] 3 CMLR 30, [2008] Env LR 8 [69].
17 Legislation can be made ‘for the purpose of implementing any EU obligation … , or enabling any such obligation to be implemented, or of enabling any rights enjoyed … by virtue of the Treaties to be exercised’ or ‘for the purpose of dealing with matters arising out of or related to any such obligation or rights’; European Communities Act 1972, s 2(2).
18 It also allows legislation to be made for the whole UK, overriding (with agreement in practice) the division of responsibility embodied in the devolution settlements, eg, Scotland Act 1998, s 57.
19 Scotland Act 1998, Government of Wales Act 1998 and Northern Ireland Act 1998, all subsequently subject to considerable amendment, extending devolved powers.
20 See, eg, Scotland Act 1998, s 29(2)(d).
21 One complication is that for treaties where the UK is currently bound because of the signature by the EU in areas of its exclusive competence the UK will have to become a party in its own right (subject to any negotiations with the EU and the other parties).
22 At present it is often overlooked that what are seen primarily as EU measures may in fact be required under wider international agreements.
23 The Common Agriculture and Fisheries Policies do not apply to European Economic Area members, but those were hardly major issues in the referendum debate.
24 See, eg, Association Agreement between the EU and Ukraine, [2014] OJ L161/3, arts 290, 292, 296.
25 For detailed examinations of this see House of Commons Environmental Audit Committee, EU and UK Environmental Policy, Third Report of Session 2015–16 (2015–16, HC 537); C Burns and others, The EU Referendum and the UK Environment: An Expert Review http://environmenteuref.blogspot.co.uk/p/the-report.html last accessed 31 August 2016; Institute for European Environmental Policy, The Potential Policy and Environmental Consequences for the UK of a Departure from the European Union www.ieep.eu/assets/2000/IEEP_Brexit_2016.pdf last accessed 31 August 2016.
26 Directive 2000/60/EC (n 12).
27 Waste Framework - Directive 2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste [2006] OJ L114/9.
28 Birds - Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds [1979] OJ L103/1 (now consolidated as Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds [2010] OJ L20/7); Habitats (see n 7).
29 Environmental Audit Committee (n 25) 3, 10.
30 Urban Waste Water – Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment [1991] OJ L135/40.
31 Bathing Water – Directive 2006/7/EC of the European Parliament and of the Council of 15 February 2006 concerning the management of bathing water quality and repealing Directive 76/160/EEC [2006] OJ L64/37.
32 With the added factor that each of the devolved administrations will be responsible for the law in their own country, subject to their own pressures on the legislative timetable, even where there are no differences in substance.
33 Environmental Audit Committee (n 25) 15–16.
34 Those arguing in the pre-referendum campaigning for the UK to leave the EU.
35 The steady stream of cases coming before the Court of Justice of the EU shows how often Member States are giving priority to other concerns over the conservation of biodiversity, despite the Court’s constant reminders of the obligations they have accepted; eg, Case C-258/11 Sweetman v An Bord Pleaná; Case C-600/12 Commission v Greece; Case C-141/14 Commission v Bulgaria.
36 Martin Hedemann-Robinson, Enforcement of European Union Environmental Law: Legal Issues and Challenges (2nd edn, Routledge 2015).
37 R (ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs [2015] UKSC 28, [2015] 4 All ER 724; this is an obvious area where even if air quality targets are maintained following Brexit, greater leeway might be introduced over how quickly and how far they have to be satisfied.
38 Nature Conservation (Scotland) Act 2004, s 1.
39 Water Industry Act 1991, s 3(2).
40 Colin T Reid, ‘A New Form of Duty? The Significance of “Outcome” Duties in the Climate Change and Child Poverty Acts’ [2012] Public Law 749.