Aspects of environmental regulation as they apply to the delivery of major infrastructure projects

Christopher Muttukumaru CB argues that, in a post Brexit UK, the environmental protection rules that apply to the delivery of major infrastructure projects would be difficult to abandon, either as a matter of policy or because the legal issues go far deeper than merely abandoning EU rules.

1. It is difficult to predict the course of events which will unfold in the exit negotiations between the UK and the EU. In order to gain access to the EU Single Market, the UK might seek to negotiate membership of the European Economic Area or might wish to negotiate bilateral agreements, as Switzerland has been doing for some years. To the extent that environmental protection rules which affect the delivery of major infrastructure projects are considered by the negotiators to form part of the Single Market acquis,  the UK would be required to continue to comply with them. Even if not, the probability is that the EU would demand that the UK should comply with them.
2. It is also possible that the UK might choose not to seek access to the Single Market on either basis set out above. In the context of delivery of major infrastructure projects, the purist Brexit thinker may argue that the UK should be free to abandon environmental (over-) regulation stemming from EU Law and instead to implement domestic regulation which better suits the UK . Significantly, however, even if the UK Government were to decide to abandon EU-derived environmental protection rules, it seems probable that the Government would decide to maintain some aspects of regulation as a matter of domestic policy rather than leave some sectors unregulated. But even if the UK were to decide to abandon its EU environmental obligations , what would happen to cases where, in that field, the UK is already under a duty to comply with pre-existing public international law obligations?
3. With decisions in prospect on major infrastructure projects such as Heathrow or Gatwick expansion or the building of High Speed Two Phase 2 , what might happen in respect of the applicability of the EU rules on (a) strategic environmental assessment under the Strategic Environmental Assessment Directive)(“SEAD”) , (b) environmental impact assessment under the amended Environmental Assessment Directive (“EAD”) and (c) air quality under the Ambient Air Quality Directive (“AQD”)?
4. First, the answer to the question requires consideration of the policy reality of abandonment of rules that are intended to strike a balance between two national interests – on the one hand, the delivery of major infrastructure projects to drive economic growth and, on the other, the protection of the environment.
5. Given the UK’s high profile stance as a global leader in encouraging/taking action on combating climate change and protecting the environment , is it realistic to think that the Government would sweep away adherence to strategic environmental assessments and environmental impact assessments ? Is it credible to think that, at a time when there is an increasing domestic focus on the transparency of public authorities, the Environmental Information Regulations (derived from the EIAD) would be dispensed with? Finally, given the evidence that a failure to reduce air pollutants contributes to significant (and costly) health risks, is it conceivable that the UK could sensibly abandon the content of the rules under the AQD, designed to mitigate against harmful ambient air quality risks?
6. Secondly, the Government would , if it wished to abandon, wholly or in part, the requirements of the SEA and EIAD , have to address the extant obligations which would still arise under public international law:

• The SEA Protocol. The obligations under the SEAD are broadly paralleled in the SEA Protocol, a UN/ECE Convention signed by the UK on 21 May 2003. By Decision dated 20 October 2008, the Council decided that the SEA Protocol was thereby approved by the European Community. The President of the Council was authorised to deposit the instrument of approval with the United Nations. The European Commission , which had competence in the matters covered by the Protocol, notified the then EC’s compliance measures on behalf of the Member States. It follows that, even if the UK were to cease to be bound by the SEAD as part of its Brexit negotiations and even if it sought to revoke the domestic regulations implementing the Directive, it would also have to take steps to comply with its obligations under , or withdraw from, the SEA Protocol.
• The Aarhus Convention. Most obligations arising under the amended EIA Directive also derive from an antecedent international convention, the Aarhus Convention. The Convention was opened for signature in 1998 and ratified by the UK in February 2005. The Commission, in its declaration on the Convention , affirmed that the EC had adopted several legal instruments , binding on the Member States, implementing the Convention. By way of illustration, the First Pillar of the Aarhus Convention gives citizens the right to access environmental information held by public authorities, by private companies providing public services and by the EU institutions. The First Pillar of the EIAD is implemented in the UK through the Environmental Information Regulations. If the UK, as part of its exit negotiations, were to cease to be bound by the EIAD, it would also have to take steps to comply with, or withdraw from, the Aarhus Convention too.
• Ambient Air Quality Directive. The UK is already in breach, as are a number of other Member States, of the AQD. In the event of exit from the EU, might the Government take the opportunity to abandon compliance with the directive? The applicable policy factors would be finely balanced. But ultimately the Government would have to weigh the costs of the AQD’s restrictions on delivery of major infrastructure projects against the human costs of serious ill health if adequate action against poor air quality concentrations were not taken. The fate of extant legal proceedings in respect of breaches of the AQD would also need to be addressed.

The subject matter of this article is covered more fully in the text of Christopher Muttukumaru’s talk to the Society of Construction Law in April 2016 [read here]

A further post by Peter Oliver on the subject matter of this post is likely to follow in the autumn.