Nature Knows No Boundaries: Whither UK Environmental La...
Nature Knows No Boundaries: Whither UK Environmental Law Beyond Brexit?
Written by David M. Ong, Co-Director, Centre for Marine Ecological Resilience & Geological Resources (MERGeR), Nottingham Law School, Nottingham Trent University
What impact will Brexit have on present and future UK environmental law? Given the truism that ‘nature’ knows no boundaries, the implications for environmental protection of the narrow UK referendum result to leave the European Union (EU) is an important consideration (among many) for all those concerned with the future relationship between the UK and its continental neighbours. This note summarises the evidence and arguments presented so far on both sides of the debate as to whether Brexit will prove to be a positive or negative experience for UK environmental law and environmental protection generally within the UK.
While the responsible UK government minister, Michael Gove, the Secretary of State for the Department for Environment, Food and Rural Affairs (DEFRA), has been keen to emphasise the opportunities that Brexit will bring for future UK environmental law, environmental campaigners have highlighted the challenges and threats that Brexit represents for UK environmental protection as a whole. Early academic commentaries on the implications of Brexit for future UK environmental law have initially noted the enmeshed nature of EU/UK institutional, policy and legal frameworks for ensuring environmental protection. Disentangling these nested institutional governance, implementation and enforcement networks will in itself represent a forbidding challenge for officials in London and Brussels, as well as the devolved administrations of Scotland, Wales, and Northern Ireland.
On the legal (as opposed to the institutional) front, the UK Government has stated that it intends that, so far as possible, the same rules and laws will apply on (Bre)Exit Day as applied the day before. This will be achieved principally through the European Union (Withdrawal) Bill which, inter alia,
• preserves all ‘EU-derived domestic legislation’, (clause 2) such as the many statutory instruments that implement EU environmental directives
• incorporates ‘direct EU legislation’, (clause 3) such as EU environmental regulations into UK domestic law.
For now, the UK government has recently published an ambitious-sounding 25-year plan for UK environmental protection. Entitled: A Green Future, this government policy document purports to deliver ‘a Green Brexit – seizing this once-in-a-lifetime chance to reform our agriculture and fisheries management, how we restore nature, and how we care for our land, our rivers and our seas.’ The 25-year plan promises this Green Future through an improved level of environmental protection in several major areas, ranging from:
a) ensuring the sustainable use and management of land
b) recovering nature and enhancing the beauty of landscapes
c) connecting people with the environment to improve health and wellbeing
d) increasing resource efficiency and reducing pollution and waste
e) securing clean, healthy, productive and biologically diverse seas and oceans and
f) protecting and improving our global environment.
On all these fronts, the Plan has proposed, inter alia, developing a set of metrics to assess progress towards these 25-year goals.
Moving to the institutional aspect of this 25-year plan, the UK government intends to establish a new independent body to hold government to account and a new set of environmental principles to underpin policy-making. It is precisely on this former issue of a proposed ‘independent’ institution for ensuring the accountability of the UK State (as a whole) to its international and domestic environmental obligations where there is real potential for deficiency in the UK’s post-Brexit, governing framework for environmental protection. Currently, it is the EU Commission (in Brussels) and the Court of Justice of the EU (in Luxembourg) that play the roles of ‘prosecutor’ and ‘adjudicator’, respectively, in relation to any failure by UK government/public authorities to implement environmental law that is derived from EU sources. In recognition of the legal significance of these institutional accountability roles performed by the Commission and the Court, the UK government department, DEFRA has launched a consultation exercise in May, 2018 on ‘establishing a new, world-leading, independent, statutory body to give the environment a voice, championing and upholding environmental standards as we leave the European Union’. This consultation is meant to flesh-out the contents of a UK Environmental Principles and Governance Bill, ‘which will establish a world-leading body to hold government to account for environmental outcomes.’
However, closer scrutiny of the main elements of this proposed statutory body reveals uncertainties as to whether this new institution will in fact be able to ‘hold government to account publicly over its delivery of environmental law and exercising enforcement powers where necessary’. Specifically, the jury is still out as to whether the prosecutorial-type, enforcement powers presently wielded by the Commission to ensure EU Member State legal responsibility and liability for their EU environmental obligations will actually be replicated in the proposed new UK environmental accountability body. This continuing legal and institutional uncertainty can be summarised as follows: Will current UK State/government legal responsibility and liability for non-compliance with EU environmental law be replaced only by political accountability for UK environmental law post-Brexit?
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