Until it is known what model the UK would favour in a post-Brexit world it is difficult to provide a comprehensive view on the impact on the UK’s Environmental law. There are a number of different options available in theory, ranging from a new agreement between the UK and the remaining 27 EU Member States to the UK reverting to reliance on the existing WTO rules.
Although it is too soon to give a comprehensive view of the likely changes that we might see to UK environmental legislation, it is possible to identify a few factors that might determine what sort of changes we may see.
One key aspect to consider when we are looking at the impact of Brexit on specific environment legislation is the role the EU and the UK have played in the development of a specific environmental policy and legislation.
It is true to say that much of UK environmental legislation in the last few decades has been largely shaped by an EU vision and indeed it is estimated that as much as 80-90% of the UK’s environmental legislation is derived from the EU. That might lead to the conclusion that the referendum result has created an opportunity for the UK to introduce reforms in its environmental legislation to suit its own agenda. However, this is not the complete story as there are other variables at play which may restrict the margins of manoeuvre. These include international agreements that the UK must comply with as well as pressure from public opinion and NGOs that would be against such change. It is well recognised that environmental law is one of those areas where the solution to environmental problems does not remain within national borders but is truly global and that a collaborative approach is required for the benefit of all. Equally, in those areas where the UK has been a prime mover in changes in EU environmental legislation and policy, or has developed its own regimes, it should not be assumed that there is no scope for change and that UK legislation will remain intact.
As explained above, it is a fact that the vast majority of UK policy and legislation derives from the EU. A good example of this is in the area of Waste. In 2015 the EU introduced a Circular Economy Package to increase waste recycling targets, which looked into all the stages of the waste chain as well as product design.
The EU Waste Framework Directive 2008/98/EC provides the main legislative framework for the collection, transport, recovery and disposal of waste, and includes a common definition of waste. It was implemented in England and Wales via The Waste (England and Wales) Regulations 2011 and in Northern Ireland by The Waste Regulations (Northern Ireland) 2011.
Even though the current model is largely a reflection of the EU perspective, any attempts to lower existing waste targets are likely to face significant pressure from NGO’s to retain existing waste standards. We also anticipate opposition from an increasingly environmentally-savvy public which recognises the benefits of such standards. In addition, despite the future departure of the UK from the EU framework, there will remain the obligation to comply with waste rules associated with the export of products to the EU. Examples of this are the rules on the content of refuse-derived fuel or new product design standards introduced under the Circular Economy Package.
Another two areas mainly framed by the EU perspective are Air and Water quality. In relation to Air quality, the 2008 Ambient Air Quality Directive (2008/50/EC) limits concentrations in outdoor air of major air pollutants that impact public health such as particulate matter (PM10 and PM2.5) and nitrogen dioxide (NO2). This Directive was implemented in the UK via the Air Quality Standards Regulations 2010. Moreover, the National Emissions Ceilings Directive 2001/81/EC sets national emissions ceilings for certain atmospheric pollutants. Compliance in the UK is via national air quality objectives and the National Emission Ceilings Regulations 2002.
The Large Combustion Plant Directive 2001/80/EC, superseded by the EU Industrial Emissions Directive 2010/75/EU (“the IED”), limiting flue gas emissions from combustion plant was introduced in the UK via The Large Combustion Plants (National Emission Reduction Plan) Regulations 2007. The IED has been implemented into UK law through the Environmental Permitting (England and Wales) Regulations 2010 as amended (“the EPR”).
Despite the existing domestic legislation, one area where some alterations might take place regards the rules covering combustion plant. Industry lobbying may lead calls to end or restrict the limitations on older plant to ensure that they can continue to operate and thereby contribute to security of energy supplies.
In respect to Water quality, the EU Water Framework Directive 2000/60/EC which aimed for 'good status' for all ground and surface waters (rivers, lakes, transitional waters, and coastal waters) was implemented in England and Wales through The Water Environment (Water Framework Directive) (England and Wales) Regulations 2003. In Scotland it was implemented through The Water Environment and Water Services (Scotland) Act 2003 and in Northern Ireland through The Water Environment (Water Framework Directive) Regulations (Northern Ireland) 2003.
It is possible that in the face of frequent criticism for non-compliance with EU environmental standards and legal challenges concerning the failure to achieve water quality standards, the UK might decide to relax standards and reduce controls.
A further case where the EU has had a major role in UK environmental policy is in relation to Chemicals and REACH. The 2006 REACH Regulations (Registration, Evaluation, Authorisation and Restriction of Chemicals) places a number of requirements on EU Manufacturers and importers, to analyse and register the substances contained in chemicals and products for their safety and environmental impact. There are also obligations imposed on the supply chain in relation to important substance information.
REACH has been typically regarded by industry as an expensive and complicated regime to manage. It is interesting to note that May 2018 is set as the ultimate date for the registration of small volumes of existing chemical substances. This deadline will be reached before the conclusion of the Brexit negotiations, the latter which are estimated to take at least two years.
It is also worth noting that REACH also applies to non-EU manufacturers wishing to place products in the EU market. So even with the UK leaving the EU, any export of UK chemical products into the EU market will have to comply with EU labelling and packaging standards. It is likely therefore to be more costly to adopt two different regimes, one purely for the internal domestic market and another for the EU market.
With this in mind, it seems unlikely that any changes will take place regarding REACH, but the key difference post Brexit will be that the UK will no longer have a place at the negotiating table nor the ability to play a formal role in the evaluation process to determine whether substances need to be authorised or restricted.
Moreover the UK is bound to detailed classification, labelling and packaging rules based on the UN GHS system. Again there is a tendency for the UK to maintain the GHS system as this is the system adopted by a number of international agreements to which the UK is a party, such as on transport of dangerous goods by air, road, rail, sea and waterways.
There are however, some areas where the UK has been a driver for stronger EU policy, such as integrated permitting, climate change policy and emissions reporting. In the case of Permitting,there is an Environmental Permitting (EPR) regime which regulates the environmental impacts of industrial processes. This legislation itself partly originates from the EU Integrated Pollution Prevention and Control regime (“the IPPC”), currently the IED.
We think it is unlikely that the current regime will be modified a great deal if at all. Firstly, because the UK system was used as the basis for the IPPC. Secondly, the current regime is considered efficient. Thirdly, this is the base on which adjustments are regularly introduced, such as the recent UK Government’s consultation to include water abstraction into the regime. However, one area where we may see some changes is in relation to environmental standards applicable to permits. EU environmental standards (known as BREFs) set out how the IPPC standard of "Best Available Techniques (BAT)" to protect the environment can be achieved. These BAT standards can represent significant additional costs for business. This may provide the ammunition for businesses to put pressure on Government to consider reverting to the previous model which was based on a cost-benefit analysis (as seen in the UK's previous integrated permitting regime).
Another area where the UK plays an active role is Climate Change.The key EU legislation on climate change stems from the EU's Kyoto Protocol (1995) targets and various subsidiary EU Commitments, with relevant EU Directives including:
- The Energy Efficiency Directive 2012/27/EU
- The Renewable Energy Directive 2009/28/EC
- The Fuel Quality Directive 2009/30/EC
- The Geological Storage of Carbon Dioxide Directive 2009/31/EC
The EU Emissions Trading Scheme (EU ETS) is codified in EU Directive 2003/87/EC (and its subsequent amendments) and establishes a scheme for greenhouse gas emission allowance trading. It is implemented in the UK via The Greenhouse Gas Emissions Trading Scheme Regulations 2012.
In regards to changes on climate-change laws it is not clear if there would be much room for modifications post Brexit. The UK has been a strong player in the International and European arena in relation to carbon reduction commitments. The UK 2008 Climate Change Act established an ambitious aim to reduce its level of domestic emissions by 80% until 2050. With such a strong commitment, it is likely that the Government will keep its Kyoto Protocol commitments and the Paris Climate Agreement (signed by the Government in April 2016). However, there has been a noticeable movement from this programme in the other direction. Over the last few years we have seen a decrease of investment in renewable energy projects (as evidenced by cuts to feed-in tariffs) and the Government has rejected the adoption of stronger binding targets for renewable energy generation and energy efficiency.
It is possible that we will see a weakening of the UK targets for emission reductions (e.g. through renewables or energy efficiency) after Brexit. In the case of renewable energy incentives, these are currently controlled by EU State Aid Rules and this framework will no longer be applicable after Brexit, which will in theory allow room for new criteria to be set. However, the UK would still be bound by the World Trade Organisation rules on subsidies and to the targets set under the Climate Change Act.
Another point to be considered by the UK Government is the EU Emissions Trading System (EU ETS). Access to the EU ETS would be lost after Brexit although the UK might consider (like Iceland, Norway and Lichtenstein) that it would make more sense to opt in to the EU ETS, not least to help it meet its current obligations under international treaties and agreements.
Depending on potential pressure from UK business and against a backdrop of a challenging economic situation it is possible that we may see some changes in this area.
The UK has also pursued its own environmental framework in areas such as contaminated land remediation. It is unlikely that the UK would opt for a different direction following Brexit. Contaminated land in the UK is generally managed under the planning system and the Contaminated Land regime (enacted in Part 2A of the Environmental Protection Act 1990). This Contaminated Land regime provides a method of dealing with contaminated land based on the “polluter pays” principle. It seems unlikely that we will see any major changes in this area. That being said, the EU Environmental Liability Directive as implemented in UK legislation (under the Environmental Damage (Prevention and Remediation) 2004/35/EC Regulations 2009) provides increased liability in relation to environmental damage caused by regulated industrial processes as well as protected species and habitats. It is not possible to say at this stage whether the UK would seek to remove or weaken these provisions. In any event, there are also a number of international agreements that will continue to have an impact on product standards such as the Stockholm Convention on Persistent Organic Pollutants (2001) to which the UK is a party in its own right
In summary we are unlikely to see changes in the core UK Contaminated land regime but we may see some changes in relation to the Environmental Damage Regulations.
The next few months are likely to be marked by considerable uncertainty as initial shock and slowdown gives way to debate over how the UK can move forward on areas previously covered by EU law. It seems unlikely that we will see much significant change in the short to medium-term. However, assuming the UK opts for a relationship with the EU based on a bilateral agreement, we may see the UK Government gradually moving away from certain EU rules where for example economic advantages are perceived.
Whilst in principle there would seem to be good reasons to think that reforms may occur in certain areas of Environmental Law and not in others, it is clear that the picture is far from straight-forward and different factors will be at play in determining where we may see changes. In those areas where we believe there is potential for change, DWF’s environmental team has the expertise to work with you to determine what those changes might look like and can also (through our specialist consultation advisory service) help you to present your arguments to Government.