The post-Brexit environment: how green is the grass on the other side?

On 23 June 2016, the UK public voted to leave the European Union (the EU). This briefing explores the implications of this decision on UK environmental legislation and controls.

The relationship between membership of the EU and UK environmental law and policy

Membership of the EU has played a significant role in the development of UK environmental law and policy. Environmental protection became one of the EU’s primary aims in the 1970s. Since then the EU has enacted hundreds of pieces of environmental legislation, covering pollution prevention and control, waste, protected species and habitats, water quality, air quality, renewable energy and energy efficiency. One of the key objectives of the EU¹ has been the “establishment of an internal market, which will work for the sustainable development of Europe” with “a high level of protection and improvement of the quality of the environment”.

Now that the UK will be leaving the EU, the future of UK environmental legislation and policy is uncertain. This period of uncertainty will continue for at least the next 2 years, as the UK begins the process of extricating itself from the EU.

The precise picture of the UK’s relationship with the EU will remain unclear while negotiations continue, however it is generally agreed that one of the following scenarios will eventuate:

• The UK will seek to remain a member of the European Economic Area (EEA) and the European Free Trade Association (EFTA) in an approach similar to that taken by Norway (the Norwegian Approach);
• The UK will seek to remain only a member of the EFTA, in an approach similar to that taken by Switzerland (the Swiss Approach); or
• The UK will seek to operate outside the EU entirely and will not seek to be part of the EEA or the EFTA (the New Approach).

The future of the UK’s environmental regulatory landscape will depend heavily upon whether the Norwegian Approach, the Swiss Approach or the New Approach is taken.

The Norwegian Approach

If the UK adopts the Norwegian Approach, then as a member of the EEA it will be subject to the principles of free movement of goods, services, people and capital and will also be required to comply with most European legislation.

As a party to the Agreement on the European Economic Area (the EEA Agreement), Norway is required to implement most European environmental legislation. However, Norway is not required to comply with the Common Agricultural Policy or the Common Fisheries Policy nor is it required to implement legislation bringing into effect certain European Directives such as bathing water, birds and habitats.

If the UK followed the Norwegian Approach, then it would still be required to comply with the majority of European environmental legislation but would have little influence on its development. As the UK has been influential in many areas of environmental regulation, it is likely that the impact of this change would also be felt across Europe as a whole.

The Swiss Approach

Unlike Norway, Switzerland is not a member of the EEA; however it is a party to a free-trade agreement with the EU and is a member of the EFTA. As a result, Switzerland is not compelled to comply with the majority of European environmental legislation, although as part of its policy of cooperation with the EU many of its laws have been harmonised with EU standards.

If the UK were to take the Swiss Approach, then there would likely be extensive revisions to the environmental regulatory landscape. However it is worth noting that many UK businesses would still be compelled to comply with European legislation when trading with the EU. In particular, businesses involved in manufacturing and exporting products to the EU would be required to comply with environmental legislation such as the REACH Regulation²; the CLP Regulation³; the WEEE Directive⁴ and the RoHS Directive⁵.

The New Approach

This approach holds the greatest uncertainty from an environmental perspective. If the UK does not seek to become a part of the EEA or the EFTA, then it will not be required to comply with any European legislation. While European Regulations (which are directly applicable in Member States) such as the REACH Regulation and the CLP Regulation will immediately fall away, the UK Parliament may need to review (and possibly decide to repeal) national legislation implementing European Directives.

As with the Swiss Approach, however, UK businesses seeking to trade in the EU will still need to comply with European environmental legislation relating to manufacturing such as limits on hazardous substances, chemical safety, labelling and packaging and therefore there may be little change in practice.

Conclusion

While it will be business as usual until withdrawal is finalised, there will be considerable uncertainty as to the direction of policy in the long term and uncertainty as to the application of EU standards in the short to medium term and the role of regulation.

Footnotes

1. Article 1(4) of the Lisbon Treaty
2. Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH)
3. Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 on classification, labelling and packaging of substances and mixtures
4. Directive 2012/19/EU of the European Parliament and of the Council of 4 July 2012 on waste electrical and electronic equipment (WEEE) (recast)
5. Directive 2011/65/EU of the European Parliament and of the Council of 8 June 2011 on the restriction of the use of certain hazardous substances in electrical and electronic equipment (recast)