Environment after Brexit: Some Thoughts

24 Nov 2016

Environmentalists might have good reason to believe that the Government sends mixed signals about its commitment to environmental protection.

For instance, last month, it announced its plan to build a third runway at Heathrow, even though that is thought likely to lend to levels of pollution in the vicinity of the airport exceeding the ceilings laid down in the Air Quality Directive (here).On the other hand, last week, the Government ratified the Paris Agreement on Climate Change (here)(which the EU had ratified on 5 October and which had already come into force on 4 November 2016 throughout the EU and a host of other Parties, here).

Against this background, what might environmental law in England and Wales look like after Brexit day?

In considering this question, it is important to bear in mind that a very high proportion of our environmental legislation is derived from EU law.  As the Government’s Balance of Competences Review (here) put it, “there are now few aspects of the environment within the Member States which are not the subject of EU controls.”

First of all, like all other areas of EU law, the environmental legislation will be covered by the “Great Repeal Bill” (something of a misnomer, since it will be a massive exercise in preserving most EU laws).  But, that will no be easy matter.  For a start, as Michael Dougan has reportedly told The Times (here), “you can’t just take the whole of EU law and plonk it into the UK legal system, because so much of what the EU does is inherently cross-border in nature”.  What is more, a good deal of EU legislation requires or supposes some involvement by the European Commission and/or other EU bodies.  A classic example is Pillar 2 of the Common Agricultural Policy under which farmers receive EU funding to ensure sustainable development (here).

Quite apart from that, as my colleague George Peretz QC has pointed out on this website (here), those EU provisions which are preserved by the “Great Repeal Bill” would have a different character unless they are accompanied by the body of other principles and rights such as the principle of effectiveness (which ensures that adequate remedies for the enforcement of EU law are available in national courts) and the body of fundamental rights incorporated in the Charter of Fundamental Rights of the EU.  Needless to say, there is also the small question of whether the case law of the Court of Justice of the EU would be observed.

But of course the “Great Repeal Bill” is only the first step.  After that, decisions will be taken as to which of the preserved measures to amend or even repeal.  Supposing that the Government were minded to water down or repeal some of the current EU-based environmental legislation, how far could it go?  Just to take one example, what if the Air Quality Directive and/ or the Environmental Impact Assessment Directive (here) were amended so as to make it easier for the third runway at Heathrow to be approved?

Next week, I will show that international law would impose various constraints on the Government’s options, although it would enjoy a certain amount of leeway.