How much change can we expect to current environmental requirements post Brexit?

As the Prime Minister prepares to trigger Article 50, this blog post looks at the potential consequences for environmental standards here in Northern Ireland.

The European Union began to legislate for the environment following the Single European Act 1987 when environmental issues were added to its competence. However, according to the UK’s Review of Balance of Competences on Environment and Climate Change (2014), the EU adopted many environmental measures before there was any specific legal base, in order to accommodate the requirements of the Common Market.

A recent House of Lords Select Committee Report highlighted the influencing nature of the EU’s internal market and trade over environmental requirements and standards to date. Until more information is available on any finalised new trade deal between the UK and EU post Brexit, it will be difficult to predict what environmental requirements and regulations may be kept or changed. The full impact on NI will only become clear once the extent of devolution of these policies is known.

That being said, it may be helpful for us to break down areas of environmental legislation into three separate categories:

• Global agreements that may remain regardless of an EU exit should the UK become a signatory in its own right.
• Areas of UK regulation that pre-date the EU; and
• Areas of EU environmental legislation which are either seen as beneficial or suggested for continuation by the UK.

Global agreements

During the formulation of policy and legislation, the EU has both internal influences, e.g. best practice examples/policy suggestions from Member States, and external influences. External influences may include requirements to be written into EU legislation that complement global, multi-lateral agreements signed up to by the EU on behalf of Member States. Table 1 gives a number of examples of these agreements.

Table 1: Examples of international environment treaties

It is not known at this stage exactly what agreements would be continued under the auspices of the UK as a signatory. However, the Lords Select Committee Report (February 2017) stated that international environmental conventions to which the UK is party:

…will apply regardless of the nature of the UK’s future relationship with the EU, and may constrain the extent to which the UK is able to pursue new approaches to environment or climate change policy.

This concurs with the view of UK Environment Minister Dr Thérèse Coffey MP who has stated:

It is my understanding that as the UK is already a party in its own right it absolutely will stick to the commitments, and is obliged to, once we leave.

That being said, an exit from the EU would leave the UK free to choose how to implement these commitments. There has been little detail provided on whether any assessment of the opportunities and threats, such as the benefits and costs, of continued compliance will be done, and whether this would have any influence on the continued approach over time.

To ensure effective implementation and adherence, the EU has relied on enforcement through legislation. However, it is yet to be established whether the UK would use similar methods, or adopt approaches which are more or less stringent. On this basis, the Lord’s Select Committee recommends:

Given that such agreements are often less detailed than the EU legislation through which they are implemented, and lack the institutional enforcement mechanisms offered by the EU, the Government will need to consider carefully the means by which they are given effect in domestic law, so as to ensure that the UK’s adherence to its international commitments is not watered down post-Brexit.

However, it remains to be seen whether a non ‘watered down’ approach will be continued over time, particularly if costs are onerous and penalties minimal.

Areas pre-dating the EU

According to the UK Government’s Balance of Competence Review:

…a number of pieces of EU legislation have been based, partly or in full on preceding UK policy and legislation.

The following are examples of areas which pre-dates EU involvement.

• Habitats and nature conservation: According to the European Commission, the Birds Directive is in fact the oldest piece of EU legislation in the area of the environment. Indeed, both the Birds and Habitats Directives introduced environmental protection and conservation requirements in 1979 and 1992 respectively. A paper by the House of Commons Library points out that the UK already had a body of legislation on environmental designation and protection stretching back to 1949 which may have influenced EU activity in this area. This includes the UK’s systems of Sites for Special Scientific Interest (SSSIs), introduced under the Wildlife and Countryside Act 1981 (as amended), and Town and Country Planning legislation from the 1940s which restricted development on protected sites.
• Air Pollution: As detailed in the Balance of Competences review, the EU’s integrated pollution prevention and control (IPPC) regime, introduced under the IPPC Directive 2008 (amended by the Industrial Emissions Directive 2010), was influenced by the UK’s system of integrated pollution control under the Environmental Protection Act which dated back to 1990.
• Emissions: According to a DEFRA study on the UK Emissions Trading Scheme (UK ETS), this scheme launched in 2002 as a forerunner to the EU’s ETS which launched in 2005. The UK ETS ran on a voluntary basis for public and private businesses, with the objective to ‘…give UK companies early experience of emissions trading, with a particular view to being ready for the European Union Emissions Trading Scheme’. However, post ‘Brexit’ the UK could not continue trading in the EU’s ETS unless a deal is struck with the EU to remain in the scheme. For example, Switzerland is in negotiations to link with the EU ETS to be part of a bigger market.

Some areas suggested for continuation or review

In a recent report by the House of Commons Environmental Audit Committee, MPs called for the introduction of a new Environmental Protection Act to safeguard and maintain environmental protections to ensure no weakening of standards during negotiations and post-Brexit. According to the report,

Ministers have indicated that approximately a third of the over 800 pieces of EU environmental legislation will be difficult to transpose into UK law.

According to the UK Government the use of the Environmental Liability Directive (ELD) is substantially higher in England and Wales than in Northern Ireland. In a UK report on the effectiveness of the ELD, the UK listed a number of strengths to the ELD such as increased implementation of the polluter pays principle, compensatory remediation, damage remediation and increased powers for cost recovery.

In a speech in January 2017, Prime Minister Theresa May confirmed support for the UK to continue collaborations with EU programmes for science, research and innovation. Countries outside the EU such as Switzerland and Norway, for example, pay the EU for the benefits of membership to programmes such as Horizon 2020.

There are also a number of areas of environment legislation which may potentially be reviewed following an exit from the EU.

Air and water quality

In the past the UK has been in breach and subject to EU infraction proceedings on NO2 limits under the Air Quality Standards Directive. While an exit from the EU may remove any future threat of fines, the UK would also be able to set its own limits and deadlines – but whether this would involve a relaxation or not is unknown at this stage. However, the Lords Select Committee Report (February 2017) made reference to the following concern expressed by some stakeholders:

We have seen that the Government have been trying to weaken the Ambient Air Quality Directive, particularly in relation to nitrogen dioxide, for years.

The Lords Select Committee expressed concern to the European Commission regarding the ‘one out all out’ rule for classification of water body quality, as required by the Water Framework Directive (WFD). The ‘one out all out’ rule means that an individual water body can fail for not being up to standard in just one of up to 40 elements assessed. In the opinion of the Lords Select Committee, this does not provide a true reflection of water quality improvement. However, it is not known whether an exit would provide the opportunity for a new approach to be adopted by the UK, and how this would in turn impact Northern Ireland would depend on the level of future devolution in this policy area.

Habitats and conservation

As previously mentioned, while some UK conservation and protection measures pre-dated the EU, the Birds and Habitats Directives did, however, introduce new concepts and slightly higher protection for certain species. In light of this, a House of Commons Library Report highlights the difficulties the UK has had in meeting and implementing some of these protection requirements under the Directives. For example:

• The UK Government’s review of the Habitats and Birds Directive in 2012 identified a number of areas of difficulty, one being the complexity of some of the legislation and guidance and linked this to delays experienced with development.
• Under the Environment and Climate Change: review of the balance of competences report (in 2013/14), the requirements relating to bat and newt relocation were identified as being particularly problematic for businesses, due to costs versus the environmental benefits.

It is unclear, as yet, where NI will stand in relation to the development of environmental standards should a trade deal be negotiated with the EU or not. Once the UK enacts the Great Repeal Bill to transfer existing EU law into UK law, over time, the UK Government may decide to unpick some of these requirements so as to suit the UK’s position outside the EU. However, it remains to be seen whether this will result in much change to the status quo given some of the points raised in this blog post. The full impact on NI will only become clear once the extent of devolution, or scrutiny of these policies, is known at the NI level.