ENVIRONMENTAL LAW

IMPACT OF BREXIT ON UK’S ENVIRONMENTAL POLICY FRAMEWORK

VARSHA RAWTANI

ID- 2347

DATE-2 JANUA, 2020

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 TABLE OF CONTENTS

INTRODUCTION...............................................................................................................................3
RESEARCH METHODOLOGY...........................................................................................................4
THE CYCLE OF EUROPEANISATION AND THE GREEN TAPE RHETORIC......................................5
POLITICISATION OF THE ENVIRONMENT .......................................................................................5
STRUCTURAL IMPLICATIONS OF BREXIT ON UK’S ENVIRONMENT POLICY..............................7
CATEGORY I- AGREEMENTS SOLELY ENTERED INTO BY THE UNITED KINGDOM........................7
CATEGORY II- AGREEMENTS SOLELY ENTERED INTO BY EU......................................................7
CATEGORY III- MIXED AGREEMENTS..........................................................................................7
POLICY FORMULATION, INTERPRETATION AND IMPLEMENTATION..............................................8
PRACTICAL IMPLICATIONS OF BREXIT ON UK’S ENVIRONMENTAL POLICY...........................10
CHEMICALS-REACH....................................................................................................................10
EU ETS......................................................................................................................................10
1971 RAMSAR CONVENTION ON WETLANDS AND THE HABITATS DIRECTIVE..........................11
CONCLUSION.................................................................................................................................12
BIBLIOGRAPHY..............................................................................................................................13

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 INTRODUCTION

In the year 2016, the citizens of the United Kingdom voted in favour of departing from the
European Union. Although at a crude level, the referendum appears to have very clear-cut
repercussions, but with the change in UK’s political dynamics1, it has only led to uncertainty.

If one goes back and looks at the debates leading up to Brexit, they’d notice that environment
hardly featured in any of them. This is somewhat ironic as over the last four decades, the EU has
played a huge role in “europeanising” UK’s environmental policies. In fact, the latest report on
Brexit suggests that the Department of Environment, Food and Rural Affairs (hereinafter, Defra)
is the 2nd most Brexit-affected government department as 90% of its policies are EU based.2 Now
one might argue that once the European Communities Act, 1972 stands repealed, the influence of
the EU law on UK will automatically disappear and Defra will be able to escape EU’s influence
on its environmental policies.3 However, policy formulation is not as black and white as it
appears to be. After 4 decades of membership, EU’s environmental law principles are deeply
ingrained in UK’s domestic legal regime, and now it is impossible to detach the former from the
latter.

Through this paper, the researcher endeavours to discuss a few obstacles that lie ahead in form of
(a) the “green-tape” narrative; (b) structural and substantive implications of Brexit on UK’s
domestic environment policies and (c) difficulties in terms of enforcement of environmental
standards. In order to achieve the same, the researcher has divided this project into 3 segments-
the first one is a brief overview of how UK’s environment policies underwent europeanization
and subsequent de-europeanization as a result of party politicisation; the second one puts forth
the structural implications in case UK opts for a no-deal scenario and the third one discusses how
targeted projects like REACH, EU ETS and Habitat Directive will be affected by Brexit.

1
Here, changes are- (a) UK’s transition towards an enviro-septic rhetoric, (b) change in political leadership, (c)
conflicting opinions on withdrawal negotiations and Post-Brexit relationship.
2
Colin Reid, ‘Brexit and the future of UK’s Environmental Law’ 2016 34(4) JENRL
<https://discovery.dundee.ac.uk/ws/portalfiles / portal/9754032/A_290_16_Reidjernl2.pdf> accessed 24 December
2019
3
M. Hedemann-Robinson, ‘Enforcement of European Union Environmental Law: Legal Issues and Challenges’
2016 32(2) IJETMAS
<https://www.academia.edu/23647350/Enforcement_of_EU_Environmental_Law_Legal_Issues_
and_Challenges > accessed 25 December 2019

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 RESEARCH METHODOLOGY

AIM AND OBJECTIVES- Through this paper, the researcher aims at analysing the impact of Brexit
on United Kingdom’s environmental law framework.

I hope to achieve it by flagging and discussing some of the challenges that may come up in a
post-Brexit scenario. To exemplify, obstacles in form of (a) the “green-tape” narrative; (b)
structural and substantive implications of Brexit on UK’s domestic environment policies and (c)
interpretation and enforcement of environmental standards.

RESEARCH QUESTIONS- What was UK’s environmental policy like before joining the European
Union?

In what way were UK’s policies ‘europeanised’ after it became a member of the European
Union?

What would be structural implications of Brexit on UK’s environmental law policies?

Will the international agreements entered into by EU in the Pre-Brexit era continue to bind the
UK or not?

What would be the practical implications of Brexit on REACH, EU ETS and Habitat Directive?

CHAPTERISATION- The researcher has divided this project into 3 segments- the first one is a brief
overview of how UK’s environment policies underwent europeanization and subsequent de-
europeanization as a result of party politicisation; the second one puts forth the structural
implications in case UK opts for a no-deal scenario and the third one discusses how targeted
projects like REACH, EU ETS and Habitat Directive will be affected by Brexit.

SCOPE AND LIMITATIONS- The paper is limited to understanding the structural and practical
implications of Brexit in a no-deal scenario.

At this point, there is no clarity as to UK’s future relationship with the EU and the single market.
Therefore, it is extremely tough to accurately gauge the challenges that it will encounter in a
post-Brexit scenario.

SOURCES – The researcher has relied on secondary sources like newspaper articles, government
reports and scholarly pieces on this subject matter.

MODE OF CITATION – The researcher has used the OSCOLA citation style for this paper.

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 THE CYCLE OF EUROPEANISATION AND THE GREEN TAPE RHETORIC

In the early years of its induction into the EU, the United Kingdom was rather disruptive and
passive when it came to formulation and implementation of environmental policies. It focussed
more on voluntarist, end-of-the pipe solutions. In short, UK’s approach towards environmental
policy-making was at odds with the framework propounded by the Green Pioneers (Netherlands,
Germany and Denmark). As a consequence, it faced a volley of court cases for non-compliance
with the EU laws. Over the years, UK transitioned towards a more pro-active approach and
uploaded instrumental policy ideas like eco-auditing, eco-labels and integrated pollution control.
It also blocked EU’s proposals on soil taxation and environmental taxation. However, the extent
to which UK’s environmental policy pattern shifted seems variegated. For instance, it made
extensive changes in its air, water and renewables policy but had a very restrictive stance on its
land-use planning.4 The variegation indicates how UK’s policy framework will be similarly
differentiated in a post-Brexit scenario. To elaborate, areas where Europeanisation has been more
profound are likely to remain stable in the short run, whereas, sectors like land-use planning,
where europeanisation was limited may witness significant changes in a post Brexit scenario.

POLITICISATION OF THE ENVIRONMENT

During the early 1980s, both the Labour and Conservative parties favoured an ad-hoc, reactive
approach towards environmental law and climate change. However, UK’s performance (whether
good or bad) in the EU was occasionally used score political points. For instance, Britain was
labelled as “Filthy Man of EU’ when it failed to comply by EU’s environmental laws and the
Liberal Democrats used this epithet to run a campaign against the Conservatives.5

However, from 2007 onwards, UK witnessed active party competition over environment- related
issues and climate change. The competitive consensus acted as an impetus for the then Labour
Government to roll out the iconic Climate Change Act, 2008, which completely revamped UK’s
energy and climate policies. Apart from establishing an enforcement committee on Climate
Change, this Act chalked out fixed carbon budgets and long-term emission reduction deadlines.
At the same time, policy frameworks on domestic energy efficiency, feed-in tariffs, renewable
energy and infrastructure planning were introduced by the government.6 All this while, the EU
donned the role of an external policy driver and facilitated the implementation of these polices.
In fact, the 2008 EU agreement on Climate Change imposed a target on the UK to generate 20%

4
Richard Macrory, ‘Brexit-The International Legal Implications’ 2017 24(2) BIICR
<https://www.cigionline.org/sites/default/files/documents/Brexit%20Paper%20no.8.pdf> accessed 26 December
2019
5
Jed Odermatt, ‘Brexit and International Law’ 2016 Blog of the European Journal of International Law
<www.ejiltalk.org/ brexit-and-international-law> accessed 26 December 2019.
6
Robert G Lee, ‘Always Keep a Hold of Nurse: British Environmental Law and Exit from the European Union’
2017 29 (1) J Envtl L

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of its energy from renewable sources. In order to achieve the same, the government assumed an
interventionist role and rolled out new industrial incentives and increased subsidies. 7

However, the past five years have witnessed a shift towards ‘an anti-climate, enviro-sceptic
narrative’ in the UK. This Green Tape rhetoric is likely to mould the environmental politics in a
post-Brexit scenario.8

STRUCTURAL IMPLICATIONS OF BREXIT ON UK’S ENVIRONMENT POLICY

7
Joedon Burns, ‘De-europeanising or Disengaging-EU Environmental Policy and Brexit’ 2017 28(2) Environmental
Politics<https://pureadmin.qub.ac.uk/ws/portalfiles/portal/164354253/De_Europeanising_or_disengaging_EU_envir
onmental_policy_and_Brexit.pdf> accessed 29 December 2019.
8
V Gravey, ‘Does the European Union have a reverse gear? Policy dismantling in a hyperconsensual polity’ 2016
23(8) JEPP <doi:10.1080/13501763.2016.1186208> accessed 29 Decmenber 2019

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Broadly speaking, the UK was bound by 3 kinds of international agreements in the course of its
membership with the EU- First, where it independently negotiated and ratified the agreement;
where EU had the exclusive authority to negotiate and ratify the agreement; third, mixed
agreements where both EU and UK had the competence to negotiate and ratify, hence making
them both parties to the agreement.

In this chapter, the researcher aims to evaluate the post-Brexit enforceability of these
agreements.

CATEGORY I- AGREEMENTS SOLELY ENTERED INTO BY THE UNITED KINGDOM

Currently there are 27 environmental agreements which were solely entered into by the UK.
Examples of these would be the Ramsar Convention and the Whaling Convention. Now, as these
agreements were singlehandedly negotiated and ratified by the UK, they’d continue to be bound
by it even in a Post-Brexit scenario. However, domestic enforcement of these conventions was
usually facilitated through EU’s environmental policy framework. Thus, UK now has to ensure
that these conventions are implemented through a purely domestic mechanism.9

CATEGORY II- AGREEMENTS SOLELY ENTERED INTO BY EU

Even though these agreements are sparse in numbers, they form an instrumental part of UK’s
environmental jurisprudence and commitments by virtue of Article 216(2) of the Treaty of
Functioning of the European Union.10 Important treaties like the Minamata Convention on
Mercury, 2013 and the Water Convention, 1992 fall under this category.11

However, UK won’t be bound by the obligations under these agreements unless it ratifies them. 12
This is because Article 29 of the VCLT states that if a party enters into a treaty, its entire
territory would be bound by it. Now, in a post-Brexit scenario, UK is no more a part of EU’s
territory, hence its participation in such treaties is automatically precluded.

CATEGORY III- MIXED AGREEMENTS

Out of the 102 international environment-related treaties that UK is a part of, 48 fall under this
category. Now, whether these mixed agreements will fall apart due to Brexit or not is a matter of
contention. While some have argued that the UK will be precluded from the “EU only” elements
in a post-Brexit scenario, others are of the belief that a clear-cut demarcation between the
9
P. Slominski, ‘Energy and climate policy: does the competitiveness narrative prevail in times of crisis?’ 2016 38(3)
Journal of European Integration <doi:10.1080/07036337.2016.1140759> accessed 29 December 2019
10
As per Art.216(2) of TFEU, treaties ratified by the EU will be binding on its territory (ie. on all its member-
states). The members may implement such treaties by a combination of EU directives and their domestic laws.
11
Colin Radaelli, ‘Europeanisation: solution or problem? European Integration’ 2017 8 (16)
<http://eiop.or.at/eiop/texte/2004-016a.htm> accessed 1 January 2020
12
Section 20 of the Constitutional Reform and Governance Act 2010 states that for a treaty to be ratified, it must be
tabled before the Westminster along with a wriiten memo. If either house decides to not ratify, then they must pass a
resolution for the same.

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competences of the EU and the member-states cannot be made and, hence the former argument
will not float. This ambiguity can be erased only if UK agrees to re-negotiate its stance on this
issue while drafting the withdrawal agreement.13

POLICY FORMULATION, INTERPRETATION AND IMPLEMENTATION

Apart from looking at international treaties, it is also important to understand that, UK’s
domestic was being interpreted in accordance with the EU provisions and CJEU’s judgements
for the past four decades. As a result, the British courts started interpreting provisions in a
manner and to an extent which would seem far-fetched if a purely domestic approach had been
adopted. Now the question is- ‘Will the British courts revise all the existing interpretations
which were based on EU’s policy framework?’ If yes, then won’t that lead to uncertainty and if
not, then won’t that create a higher standard of compliance than what’s actually needed by UK’s
domestic rules.

Additionally, EU’s environmental law has not been directly transposed from the treaties to the
law books. Unlike the latter, it is way more intricate and hard-edged in term of targets, deadlines
and compliance standards. As a result, in the process of europeanisation, EU too started adopting
fixed quality standards and sure-shot deadlines. However, in the wake of Brexit and the ‘green
tape’ rhetoric doing the rounds, there is a high possibility that the UK will try and regain much
needed discretion in cases where the targets seem disproportionate or expensive or impractical.
To exemplify, as far as conservation of nature is concerned, UK might not fully dismantle the
EU environmental policy on protection of habitats and species but it might make the obligations
more diluted and qualified to further the goal of economic development.14

In a pre-Brexit scenario, the European Union and allied agencies (European Chemicals Agency
and European environmental Agency) played an instrumental role in helping UK formulate its
environment policies. The Union’s involvement ranged from data accumulation and expert
assistance to policy-implementation, supervision and accountability. In fact, by virtue of being a
member of EU, the UK was obliged to submit timely performance appraisal reports to the
Commission which were subsequently made publically available. CJEU had the authority to
prosecute the UK in case the reports suggested non-compliance. Since 2002, the UK has lost 22
out of 26 cases in the field of environmental law; these statistics are only indicative of how, in a
post-Brexit scenario, UK will need its own policing machinery to secure policy implementation.
In order to fill this regulatory gap, the UK proposes to establish the Office of Environmental
Protection.15 However, with the anti-environment/green-tape rhetoric doing the rounds, it is
13
Charlotte Burns. ‘Brexit and UK’s Environmental Policy and Politics’ 2018 20(1) JIPMR
<file:///C:/Users/HP/AppData/Local/Packages/Microsoft.MicrosoftEdge_8wekyb3d8bbwe/TempState/Downloads/B
rexit_and_UK_Environmental_Policy_and_Politics%20(1).pdf> accessed 26 December 2019
14
Neil Carter, and Philip Lowe ‘Environmental Politics and Administrative Reform’ 1995 65(3) Political Quarterly
file:///C:/Users/HP/AppData/Local/Packages/Microsoft.MicrosoftEdge_8wekyb3d8bbwe/TempState/Downloads/En
vironmental_Law_and_Administrative_Reforms.pdf> accessed 29 December 2019
15
Veerle Heywaert, ‘UK Environmental Law Post Brexit’ 2017 7(1) ELNI Review
<https://www.elni.org/fileadmin/elni/dokumente/Archiv/2017/Heft_1/elni2017-1_Charveriat-Farmer.pdf> accessed

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highly unlikely that OEP would fetch anything more than an advisory role. 16 Therefore, OEP’s
role and efficiency as a watchdog is rather lukewarm in comparison to CJEU.

PRACTICAL IMPLICATIONS OF BREXIT ON UK’S ENVIRONMENTAL POLICY

30 December 2019.
16
This enforcement body will not have the power to monetarily penalize the defaulters. Many have called the
watchdog a threat to economic competitiveness.

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In this chapter I endeavour to analyse the practical repercussions of Brexit in a no-deal scenario.
For this, I will be looking at the chemical industry, carbon pricing and emission and the Ramsar
Convention.

CHEMICALS-REACH

EU’s flagship chemicals regulation REACH aims at protecting human health & the environment
by establishing a blanket EU-wide mechanism for Registration, Evaluation, Authorisation and
Restriction of Chemicals. In simpler terms, if businesses wish to trade within the single market,
they’d have to comply by the EU Chemicals Law. By virtue of being a part of the EU, UK too
was bound by REACH and had no independent mechanism of its own. Now, in a no deal
scenario, the UK, which is a major producer of chemicals, will not have a voice in the
development of EU’s chemical policy.17

At this juncture, the UK can opt for one of the following 2 alternatives- One, it can adopt a
Switzerland-like model, that is, create a UK register which mirrors every decision taken by
REACH. Two, establish a UK specific stand-alone version of REACH with its own set of
compliances and regulations. Both alternatives are problematic for businesses trading between
EU and UK as they will have to comply with dual regimes of registrations and authorizations.18

In order to avoid such duplicity and red tape, the UK should try to remain a member of REACH,
even if the access is a paid one. This would allow UK businesses to access both EU and the UK
markets without incurring additional costs in terms of compliance and data generation.

EU ETS

ETS is EU’s flagship initiative on determining carbon pricing and reducing emissions at a global
scale. Now, if UK’s exit is without a deal, then its membership with the ETS will automatically
terminate. The short-term consequence of this would be adoption of a domestic carbon tax. In the
long run, UK may establish a market-based emissions policy.

Alternatively, if Britain’s withdrawal is accompanied by a deal, then its membership in ETS will
continue during the transition phase. Subsequently, it may enforce its own carbon pricing
mechanism mirroring EU ETS.19

1971 RAMSAR CONVENTION ON WETLANDS AND THE HABITATS DIRECTIVE

EU’s environmental law has not been directly transposed from the treaties to the law books.
Unlike the latter, it is way more intricate and hard-edged in term of targets, deadlines and
17
Andrew Farmer, ‘The Implications of Brexit on future EU Environmental Policy’ 2017 7(1) ENLI Review
<<https://www.elni.org/fileadmin/elni/dokumente/Archiv/2017/Heft_1/elni2017-1_Charveriat-Farmer.pdf>
accessed 30 December 2019.
18
Id.
19
S Vasilopoulou, ‘Mixed feelings: Britain’s conflicted attitudes to the EU before the referendum’ 2015
<http://www.policynetwork.net/publications_detail.aspx?ID=4964> accessed 28 December 2019

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compliance standards. For instance, EU’s Habitats Directive has taken inspiration from the
Ramsar Convention on Wetlands. Article 4.2 of the Ramsar Convention provides for protection
of wetlands and creation of additional nature reserves. The Habitat Directive is an extension of
this provision as it elaborates on compensation procedures and assessment standards. Now in a
post-Brexit scenario, UK will have a choice to fulfil its international obligations under Ramsar
either by duplicating the provisions enlisted in the Habitat Directive or by introducing its own set
of domestic standards. Irrespective of whatever choice it makes, Britain’s domestic code cannot
be an isolated piece of legislation and will highly rely on EU jurisprudence. To exemplify, UK’s
current environmental laws do not define the term “waste”; they have simply cited EU’s
definition on waste.20

CONCLUSION

Veerle
20
Heywaert, ‘UK Environmental Law Post Brexit’ 2017 7(1) ELNI Review
<https://www.elni.org/fileadmin/elni/dokumente/Archiv/2017/Heft_1/elni2017-1_Charveriat-Farmer.pdf> accessed
30 December 2019

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The above-mentioned discussions clearly indicate that UK’s environmental policy is bound to
get fundamentally revamped in a post-Brexit scenario. Although UK started off with a passive,
envirosceptic stance, it later transitioned into an asset when it came to climate change. However,
when the economic crisis swung around, the British Government clinched to an austerity agenda
and EU environmental policy became the focus of negative political narrative.

Now, keeping these political dynamics in mind, it would be interesting to see how UK deals with
the policies/principles inherited from the Union. However, one must appreciate that UK will not
have full-fledged autonomy in making these decisions as they’ll be impacted by its pre-existing
international commitments (in form of international treaties which bind it and its relations with
neighbouring states).

Because UK’s existing environmental policies are highly influenced by the EU Model, it is
rather unrealistic to expect it to fully overhaul them. Nevertheless, with the Green Tape rhetoric
doing the rounds, there is a high possibility that the UK will try and regain much needed
discretion in cases where the targets seem disproportionate, impractical or conflicting. UK might
also use this discretion to further/push for higher standards for policies that it is passionate about,
for instance, its animal welfare policy.

In a nutshell, as far as environmental law is concerned, decision making will be majorly

impacted by the growing enviro-sceptical narrative and the word of law might take a backseat.

BIBLIOGRAPHY

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 ARTICLES

 Andrew Farmer, ‘The Implications of Brexit on future EU Environmental Policy’ 2017

7(1) ENLI Review <https://www.elni.org/fileadmin/elni /dokumente/Archiv/
2017/Heft_1/elni2017-1_Charveriat-Farmer.pdf>
 Charlotte Burns. ‘Brexit and UK’s Environmental Policy and Politics’ 2018 20(1) JIPMR
<file:///C:/Users/HP/AppData/Local/Packages/Microsoft.MicrosoftEdge_8wekyb3d8bbw
e/TempState/Downloads/Brexit_and_UK_Environmental_Policy_and_Politics
%20(1).pdf>
 Colin Radaelli, ‘Europeanisation: solution or problem? European Integration’ 2017 8 (16)
<http://eiop.or.at/eiop/texte/2004-016a.htm>
 Colin Reid, ‘Brexit and the future of UK’s Environmental Law’ 2016 34(4) JENRL
<https://discovery.dundee.ac.uk/ws/portalfiles /
portal/9754032/A_290_16_Reidjernl2.pdf>
 Jordon Burns, ‘De-europeanising or Disengaging-EU Environmental Policy and Brexit’
EnvironmentalPolitics<https://pureadmin.qub.ac.uk/ws/portalfiles/portal/164354253/De_
Europeanising_or_disengaging_EU_environmental_policy_and_Brexit.pdf>
 M. Hedemann-Robinson, ‘Enforcement of European Union Environmental Law: Legal
Issues and Challenges’ 2016 32(2) IJETMAS
<https://www.academia.edu/23647350/Enforcement_of_EU_Environmental_Law_Legal
_Issues_and_Challenges >
 Neil Carter, and Philip Lowe ‘Environmental Politics and Administrative Reform’ 1995
65(3)
PoliticalQuarterly<file:///C:/Users/HP/AppData/Local/Packages/Microsoft.MicrosoftEdg
e_8wekyb3d8bbwe/TempState/Downloads/Environmental_Law_and_Administrative_Re
forms.pdf>
 P. Slominski, ‘Energy and climate policy: does the competitiveness narrative prevail in
times of crisis?’ 2016 38(3) Journal of European Integration
<doi:10.1080/07036337.2016.1140759>

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  Richard Macrory, ‘Brexit-The International Legal Implications’ 2017 24(2) BIICR
<https://www.cigionline.org/sites/default/files/documents/Brexit%20Paper%20no.8.pdf>
Jed Odermatt, ‘Brexit and International Law’ 2016 Blog of the European Journal of
International Law <www.ejiltalk.org/ brexit-and-international-law>
 Robert G Lee, ‘Always Keep a Hold of Nurse: British Environmental Law and Exit from
the European Union’ 2017 29 (1) J Envtl L
 S Vasilopoulou, ‘Mixed feelings: Britain’s conflicted attitudes to the EU before the
referendum’ 2015 <http://www.policynetwork.net/publications_detail.aspx?ID=4964>
 V Gravey, ‘Does the European Union have a reverse gear? Policy dismantling in a
hyperconsensual polity’ 2016 23(8) JEPP <doi:10.1080/13501763.2016.1186208>
 Veerle Heywaert, ‘UK Environmental Law Post Brexit’ 2017 7(1) ELNI Review
<https://www.elni.org/fileadmin/elni/dokumente/Archiv/2017/Heft_1/elni2017-
1_Charveriat-Farmer.pdf>

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