Brexit: The Future of Environmental Law in the UK 

by Shelby Hickling

The UK’s decision to leave the European Union (EU) will have significant consequences for the laws and regulations that govern how humans interact with the environment, which may collectively be referred to as environmental laws. Through its 40-year membership with the EU, the UK emerged as a prominent figure and advocate for environmental protection. Many of the UK’s environmental laws consist of EU law which had been domestically incorporated, for example, the policies on standards of air, waste and water. This poses a challenge for the UK as it now has to disentangle these provisions and establish its own environmental policies post-Brexit. 

This article will explore the current position of EU environmental laws in the UK. We will also provide a brief overview of the UK’s steps to build the foundations of its environmental policy and landscape post-Brexit through the Environmental (Principles and Governance) Bill and the Office of Environmental Protection.

Where are we now? 

Under the EU’s environmental laws, member states are held accountable, as EU institutions such as the European Commission and Court of Justice of the EU have the power to warn and sanction in the event of non-compliance. After the end of the transition period, the UK will need to ensure that its environmental policy provides, ideally, the same standard of regulation as it did when it was still part of the EU. However, there is nothing to say in the withdrawal agreement that the UK’s environmental policies will have to be in line with the EU’s. Whatever the decision as to the policy, the UK’s environmental governance will affect Europe and the rest of the world.

The UK continues to be subject to much of existing EU environmental laws, however, this will change after the transition period. The withdrawal act, in 2018, ordered the Secretary of State to publish a draft bill and establish an independent public authority with enforcement powers such as legal action, to replace the European Commission. 

These environmental principles have been drawn from both current international and EU laws and include the precautionary principle, the polluter pays and sustainable development, just to name a few. All of which are substantial and will underpin the legal and political environmental frameworks in the UK. 

A step forward: Environment (Principles and Governance) Bill

As the UK leaves the EU’s environmental policy and legislative structures, the Environment (Principles and Governance) Bill lays out the UK’s new environmental governance framework. The draft bill was published on 19 December 2018, fulfilling the statutory requirements of the withdrawal act. The bill lays out the government’s overall plan for environmental reform and will set in law new governance structures responsible for managing and improving the environment post-Brexit. 

The bill is divided into eight separate sections and can be grouped into three primary focus areas. Firstly, the Secretary of State will be given the power to create legislation to control air quality, water usage, waste disposal and resource management, and biodiversity. The second area of focus would be the implementation of the UK’s environmental targets into its legal framework and, lastly, the creation of the Office of Environmental Protection (OEP) to enforce compliance with environmental laws. 

However, the bill’s passage was halted back in March this year, understandably as the COVID-19 pandemic became the top priority on the government’s agenda. With the transition period coming to an end soon, the need to fill the gap in the UK’s environmental laws is apparent, and the bill is essential in laying down the foundations for it.

Remaining Accountable with the Office of Environmental Protection (OEP) 

Following the transition period, the EC and CJEU will no longer have the power to police and sanction the UK. According to the Environment Bill, the UK Government has established an Office for Environmental Protection (OEP) to ensure that the government and public bodies comply with environmental law. Its functions include reporting and fielding complaints upon public bodies failure to comply with environmental law, as well as continually monitoring and assessing the secretary of state’s environmental targets and regulations. 

 Non-compliance: OEP’s Power to Sanction

In the event of non-compliance with environmental law, the OEP has significant enforcement powers. If satisfied on a balance of probabilities (i.e. more likely than not) that there has been non-compliance of the environmental laws, and if the failure is considered serious, then the OEP may issue a decision notice.

The decision notice will set out the failure and the steps that the public body should take to rectify it. Whilst the public body is not under a legal duty to carry out the prescribed steps, it is still required to respond within two months following the issuance of a notice, or by the date requested by OEP.  The response should address whether the failure is accepted if the remedial will be carried out and/or if the public body proposes alternative steps to remediate, mitigate and/or to prevent any similar contraventions in the future.  

The OEP can also apply to the Upper Tribunal for environmental review, after attempting the above notice process. Ordinary judicial review principles will be applied in considering whether the alleged non-compliance is unlawful, and if the Upper Tribunal rules it is, then a statement of non-compliance must be delivered. This will then allow the Upper Tribunal to access a suite of remedies. It will have the power to make a declaration, deliver a quashing order (making the public authority’s decision invalid) and prohibitory and mandatory orders (injunctions i.e. making the public authority do something or stop it from doing something), if appropriate. Any such remedies will have the same effect as if they are granted by the High Court, failure to adhere to the order will allow OEP to bring contempt of court proceedings against the public authority.  

If you wish to learn more about the role and powers of the OEP, please click here:   

https://publications.parliament.uk/pa/cm201719/cmselect/cmenvaud/1951/195108.htm

https://publications.parliament.uk/pa/bills/cbill/2019-2019/0003/en/003en09.htm

Although the OEP is scheduled to operate from 1 January 2021, there seems to remain certain areas that require clarification before it can exercise as a regulatory body. 

Moving Forward 

The future of the UK’s environmental policy and landscape post-Brexit remains uncertain. Undoubtedly, a robust legal framework must be implemented by the UK to deal with environmental matters post-Brexit.

Although the bill may still undergo amendments before it is enacted as law, the principles which will underpin UK’s environmental policies are apparent, as well as the powers of the OEP, in its role as the regulator.  There have, however, been some concerns raised by critics who have called the impartiality and independence of the OEP into question, as according to the current plans, the OEP will be answering to the government as opposed to the Parliament and as it’s hard to say if the two can entirely be independent. 

This article is intended for guidance only and must not be relied upon for specific advice.

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