What Happens To Environmental Law When the UK Exits The EU?
It's been a long argument. If the UK public decides to exit from the European Union, then the UK will face both positive and negative consequences. To have a further notion of what we're getting ourselves into, here are a few things from an analysis.
Eversheds, an international law firm, said that many of the UK's environmental laws originate from the European Union. To exit Britain, many firms could get away with many environmental violations.
What would happen immediately after a Brexit?
It is likely to be business as usual from an Environmental law perspective immediately after a vote to leave the EU. The question is when are any changes likely, and what will they entail?
The general consensus seems to be that two years is the likely minimum period before the UK would actually leave the EU. The complex issues involved suggest that a longer period may be necessary. There is a mechanism in the EU treaty for a Member State to withdraw from the EU (Article 50 of the Treaty on European Union). Under this, the UK would give notice to leave followed by a period of negotiation to agree the terms of the withdrawal. Exit would take place at the earliest on signing the withdrawal agreement or two years after notice is given. The UK government will determine when the notice is served, which starts the two year period.
Uncertainty therefore is likely to prevail for a period of some years. The status quo is broadly expected to continue during that period.
What type of relationship might the UK have with the EU if it leaves?
This is the subject of much speculation, with different model examples for a future UK/EU relationship being touted.
One example is the Norway arrangement, in which the UK could leave the EU but remain part of the European Economic Area (EEA) and have a relationship with the EU. In those circumstances, the UK would remain bound to implement and apply much of EU law, including regulations such as REACH, but would have lost its ability to influence it. Reports suggest Norway adopts as much as three quarters of all EU legislation.
In other circumstances, the UK would not be bound by EU Environmental law unless it agreed otherwise, maybe as part of a deal to secure continued access to the EU’s single market. Other models include the Swiss model with the UK re-joining the European Free Trade Association (EFTA) and entering into a bilateral trade agreement with the EU, as Switzerland has done. A further model is the WTO (World Trade Organisation) alternative, in which the UK would leave the EU and (like China and the US) rely on its membership of the WTO as a basis for trade with the EU.
There is no easy option or answer. The bottom line is that no-one knows, and it seems likely that a bespoke arrangement would be negotiated to provide for the terms of the UK’s continuing relationship with the EU upon leaving.
How would UK Environmental law be affected by exit from the EU?
There will need to be a comprehensive review of Environmental law to identify what is derived from the EU, and to consider what should be repealed in whole or in part or changed. The UK’s scope for this will depend on the nature of the post-Brexit UK/EU relationship, and it is likely to be a significant task.
Exit from the EU would not automatically undo UK laws which have been put in place to implement EU Directives. Those laws would remain in place pending change, but without any opportunity to influence any changes going forward.
This potentially impacts a range of areas, including the environmental permitting regimes of large industrial facilities in sectors such as energy, waste, water, manufacturing and mining. Much of UK law relating to waste, such as WEEE, packaging waste and the management, storage and disposal of waste falls into this category. Equally, the requirement for comprehensive Environmental Impact Assessments (EIA) on the development of large or environmentally significant facilities derives from an EU Directive on EIA.
If the UK takes any path forward other than the Norway/EEA model, careful consideration will be needed as to what the UK’s position should be in relation to the requirements under these Directives. For example, what about the EU ETS (Emissions Trading Scheme) – would the UK leave the EU ETS, and what measures would there be to ensure that the UK complies with its international and domestic climate change commitments?
Because regulations work directly at EU level, not UK national level, there would be a regulatory gap following exit which would need to be addressed. This might at first sight seem like an appealing opportunity to be rid of some burdensome regulation. However, it should be borne in mind that UK exporters to the EU, would still have to ensure that their products comply with existing EU regimes including REACH, biocides and CLP in order to sell into the EU market. This may result in EU importers choosing an alternative supplier rather than facing additional burdens themselves under these regimes.
If the UK agreed an arrangement similar to Norway, practically not much may change e.g. under REACH UK companies would still have the same registration obligations.
If the UK adopts a different regulatory approach, this could result in different compliance obligations for companies manufacturing, importing or using chemicals in both the UK and EU (and wider markets for which similar regulation to REACH is increasingly the trend). From a practical perspective, any reduction in standards of environmental and safety protection could meet with public opposition. It is possible that industry may choose to continue to voluntarily apply EU standards to avoid reputational issues.
Another challenge with regulations is that even though they work directly at EU level, their enforcement and penalties are typically dealt with through national legislation. This national legislation would need to be revoked to avoid the bizarre situation that although in theory REACH would no longer apply, a company could still be guilty of an offence of failing to comply with REACH under UK enforcement legislation).
