The European Union and the United Kingdom have reached a trade deal, but the effects of Brexit on British environmental policies remain unclear.
The environmental legislation of the European Union (EU) and its enforcement are among the strongest in the world. Despite this, or perhaps precisely because of it, ministers of the United Kingdom have often portrayed European law as particularly burdensome and at odds with their own government's plans, which are based on the principles of flexibility and discretion that frequently allow compromises between environmental and non-environmental objectives. Brexit now presents opportunities and challenges for the long-term development of UK environmental legislation. By leaving the EU, the country could seize the opportunity to become a world leader in environmental protection, but for the time being we do not know whether this path will be pursued.
The United Kingdom has a long history of environmental legislation, which has its roots in the industrial revolution. In the nineteenth century, environmental laws included detailed procedures but did not set out policy objectives, so emissions standards and similar requirements were often left to the discretion of regulatory bodies.
When the country joined the EU in 1973, the entry into force of European environmental legislation converted these precepts into precise policy objectives, emissions standards and binding targets, touching on subjects such as waste and chemical management and habitat protection. Since then, these regulations have become part of British law. For example, the previous official standard for drinking water in the United Kingdom was simply to provide "wholesome water". From 1980, under the European Commission's drinking water directive, precise rules on the matter were introduced.
After the end of the transition period on 31 December 2020, EU environmental legislation in force will continue to operate through a "roll-over" system; however, decisions taken by the Union will no longer be binding on UK courts. Brexit will also bring an end to the operations in the United Kingdom of certain European bodies, which will therefore need to be replaced. For example, the European committee that ensures the proper application of regulations will have to be replaced by an independent oversight body. In this regard, the Environment Act 2020 requires the establishment of an Office for Environmental Protection, a new independent statutory body (OEP) that will oversee compliance with environmental law and deal with those who breach it.
Overall, the United Kingdom will be able to set its own objectives, policies and laws. In the "white paper" of July 2018 on the future relationship between the United Kingdom and the EU, the previous government had promised to maintain high environmental standards and to continue following the 25-year environment plan established by former Prime Minister Theresa May, which aims to improve the cleanliness of air and water, to allow plants and animals to thrive, and to ensure a cleaner and greener country. In 2019 the United Kingdom also set an important precedent by becoming the first major economy to pass laws to achieve net zero carbon emissions and to establish a cleaner and more resilient society. At the beginning of December of this year, Prime Minister Boris Johnson also announced that the country aims to increase its emissions reduction target by 2030, raising it to 68 per cent. This would be an excellent milestone given that the EU's 2030 target is to cut emissions by 55 per cent (although the European Parliament is now pushing for 60 per cent).
According to a new agricultural policy announced by government ministers, the English countryside will change radically after the transition period: there will be more trees, meadows and wetlands, and fewer pastures. EU agricultural subsidies will be phased out, leaving more room for wildlife to flourish. Under the European Union's system, farmers receive subsidies based on the amount of land they farm (meaning the wealthier the farmer, the more money they receive).
Under the new British legislation, the Common Agricultural Policy will be replaced by an environmental land management system (known as Elm) that will subsidise farmers capable of implementing a range of initiatives to prevent flooding, plant woodland and protect wildlife through the use of hedgerows, capturing carbon dioxide, eliminating pesticides and reducing the use of antibiotics.
Elm is organised in tiers; the tier receiving the most financial support includes actions such as landscape and ecosystem restoration, the creation of large forests, the preservation of peatlands and other similar projects. The annual amount of funds to be converted from payments based on the size of farmed land to environmental subsidies will reach £1.8 billion, equivalent to €2 billion. Furthermore, the UK Department for Environment, Food and Rural Affairs (Defra) has invested £640 million (over €700 million) in the Nature for Climate fund, which will increase tree planting and peat restoration in England.
There are good reasons to believe that the environment in the United Kingdom could have a positive future. However, the path to achieving that future has yet to be mapped out: the ambitious bill relating to it is progressing very slowly, despite what Lord Gardiner of Kimble, Minister at Defra, stated at the beginning of 2020. For this reason, the United Kingdom left the EU without having activated the Office for Environmental Protection (the new independent statutory body) and without a proposed policy statement incorporating environmental principles into ministerial decision-making. This crack in environmental protection could cause further damage. According to Environment Secretary George Eustice, the government has planned interim measures to fill this gap, but no further details have emerged.
Despite the "roll-over" policy, the Withdrawal Agreement Act (the legislation adopted in January of this year that establishes the incorporation of the Brexit deal reached with the EU into United Kingdom law) includes a clause giving ministers the power to authorise any UK court to overturn rulings handed down by the Court of Justice of the EU, which means that the current interpretation of environmental law could be modified or challenged. The British National Farmers Union has already persuaded the government to recalibrate its original intentions, arguing that the hurdles to qualifying for Elm subsidies are too high. Furthermore, those who pollute will receive a warning letter rather than a fine: although the government states that it will target repeat offenders, a plan to achieve this aim is conspicuously absent.
A new report by Brexit & environment, the network of British and EU researchers analysing the effects of Brexit on the environment, reveals the risk of environmental regression in the United Kingdom: there are approximately 500 articles of European Union environmental legislation and policy that risk not being retained after Brexit, which would produce a major gap in environmental protection. The government did not address the issue in the Withdrawal Agreement Act, arguing that it had retained all relevant legislation in the form of statutory instruments (SIs), i.e. the detailed regulations that allow an act passed by parliament to come into force.
However, the report revealed that most of the instruments, once examined, had had their review clauses removed — clauses that would have facilitated their amendment and improvement. The absence of these clauses raises some doubt about the United Kingdom's commitment to avoiding regression, since there is no explicit intention to develop and improve the laws in the future. Moreover, these changes were made with great speed and little scrutiny because statutory instruments are part of secondary, or subordinate, legislation, which is not normally debated in parliament.
The speed of this process stands in sharp contrast to the need to address long-term environmental and social challenges with care and determination. It also carries the risk that environmental laws, even if retained, could succumb to what the Parliamentary Environmental Audit Committee has described as "zombification": these laws, while existing on the United Kingdom statute book, would find themselves with little practical effect due to their failure to be reviewed. The disappearance of so many clauses also reminds us that the country lacks a public plan for the future of all inherited EU legislation.
The Trade and Cooperation Agreement that defines the framework for trade relations between the European Union and the United Kingdom was agreed on 24 December, just days before the end of the transition period. "A key element of the negotiations was the so-called 'level playing field': a set of rules for fair competition, designed to underpin the trade agreement," explains an analysis by the London think tank Institute for Public Policy Research. "However, the commitments on labour and environmental standards are considerably weaker than expected; there is only a commitment not to lower current levels of environmental protection in cases where any reductions might affect trade or investment."
Furthermore, it is unknown what will happen to reports of violations of environmental law currently handled by EU institutions, and whether the government will cooperate with the latter to ensure they are not lost.
It is still unclear how the British government intends to protect its ecological heritage; it can also be argued that it is moving in the direction of both improved and reduced environmental protection. Hope rests with organisations such as Climate Alliance, the UK Student Climate Network, Extinction Rebellion, and above all with the pressure exerted by individual citizens to push the government to surpass European targets for a sustainable future, or at the very least to maintain the highest possible environmental standards.
Translated by Elettra Tsikoudis
