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Brexit and Environmental Law

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E3G is proud to present the following guest blog written by the UK Environmental Law Association.

UKELA remained neutral on the Brexit Referendum and we remain impartial in our analyses of the implications of Brexit for environmental law, practice and enforcement in the UK (our full position can be found here). In order to ensure that the UK’s current environmental legislation is preserved pending proper review we provide informed, expert analysis of the legal and technical implications of separating our domestic environmental laws from the European Union. To ensure regulatory stability and continued environmental protection we are working alongside UKELA’s specialist working parties and regional groups to inform the debate on the effect of withdrawal from the EU, and draw attention to potential problems which may arise. Most of our members are engaged in the day to day practice of environmental law, and their experience is an important and distinctive input into UKELA’s work.

After the referendum UKELA’s Brexit Task Force began mapping specific sectors of environmental law to look for ‘pinchpoints’ which would disrupt a smooth ‘roll-over’ of EU-derived law after Brexit. This exercise was essentially concerned with the black letter of the law and, as we progressed, we quickly found that it did not deal with a number of other significant issues. For instance, as we pointed out to the Environmental Audit Committee inquiry into the Future of Chemicals Regulation, duplicating the REACH regulations and establishing a stand-alone UK system for chemical regulation would create large-scale excessive cost, duplication and confusion for industry and would potentially make the environmental purposes of the regime more difficult to meet. Similarly, in relation to Brexatom our members highlighted crucial questions in relation to safety, the protection of human health and the environment which could not simply be rolled-over. These included the safety of nuclear installations and the responsible, safe management of spent fuel and radioactive waste.

Recent work has focussed on issues of environmental governance vital for the effective implementation of environmental law. We published a report on enforcement and accountability issues which looked at the important supervisory functions performed by the European Commission in ensuring that member states implement their EU obligations. Although infringement procedures could ultimately result in the imposition of penalty payments, infractions are more often resolved through discussion before they reach the European court. This – like many future governance issues – may not be unique to the environmental sector, but it is salient as the majority of infringement cases have been bought in the environmental field. Judicial review remains an important long-stop to hold government and other public bodies to their legal duties, but we questioned the government’s stated position that after Brexit judicial review by itself would be sufficient. Without advocating any particular model at this stage, we noted the development of various types of environmental ombudsmen and specialist environmental courts and tribunals in many other jurisdictions.

This thematic work will continue through several forthcoming reports looking at different aspects of Brexit and environmental law.

We have mapped the full extent of the UK’s international environmental obligations and how each international agreement has been implemented at a domestic and EU level.

We are finalising a report of our findings in order to inform the debate on which of these obligations will fall away on Exit Day and any actions the Government needs to take (or consider taking) in order to deliver on its promise that the UK will “continue to honour our international commitments and follow international law”. We are also analysing the extent to which Ministers will need to use the Henry VIII powers proposed in the Withdrawal Bill to amend Acts of Parliament through statutory instrument. We will also be analysing in detail how environmental standards such as those relating to industrial processes that currently apply in the UK are developed under various institutional arrangements within the EU, bringing practical experience to bear on how such standards might be developed after Brexit and which features of current EU processes need to be retained.

In conjunction with the regional groups we are continuing to develop our understanding of how these issues, both thematic and sectoral, resonate in the devolved administrations. UKELA have convened seminars with our Northern Irish members, and are in regular discussions with our Welsh and Scottish members on emerging issues in relation to each jurisdiction. Reports specific to each jurisdiction are being commissioned for publication later in the year.

If you are interested in this work please consider coming to the UKELA Brexit conference on the afternoon of 13 October at 39 Essex Chambers, London. Supreme Court Justice Lord Carnwath will oversee panel discussions looking at many of these issues, from the roll-over of the black letter of the law to key sectoral issues, and from UK-wide thematic issues to intra-national perspectives from the devolved administrations. E3G Chairman Tom Burke will close the event with comments on the political dimension to all this legalese.

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