The UK’s environmental policy and legal landscape post-Brexit

Businesses must carefully consider the possible interruption and consequences of changes to environmental legislation and regulation that Brexit would bring. In the event of the UK leaving the European Union (EU) with a deal, there will be a transition period providing continuity during that time.

However, in the event of a no-deal Brexit, current registration regimes, for example relating to the sale and use of chemicals, may be subject to suspension and change at short notice and businesses should be ready to react quickly to any new guidance and requirements.

We also consider the potential impact of Brexit on the UK’s environmental strategy moving forward.

What will happen to EU law in the UK post-Brexit?

Many of the UK’s most important environmental policies and priorities can be traced back to the EU. Implementation of EU directives and regulations has required the UK to make legislative commitments to environmental policy and regulation, including emissions limits and air quality, sewage transportation, waste treatment and the control of chemical substances.

Through membership of the EU, the UK has also been subject to a non-domestic judicial enforcement process.

Directives are EU legislation that have been adopted into UK law by domestic legislation and will remain binding post-Brexit. EU regulations, on the other hand, have immediate direct effect in the UK and there is no need for implementing domestic legislation. This means that upon the UK’s departure from the EU, without additional legislation, EU regulations will no longer have effect, but directives will.

To close that gap, the European Union (Withdrawal) Act 2018 (which provided for the repeal of the European Communities Act 1972) will effectively transpose all current EU law not directly effective in the UK into domestic law. However, this may in turn cause confusion and inconsistency, because environmental legislation either implemented or instigated by the EU is naturally based on the European regime for regulation and enforcement. Once Britain leaves the EU, it will of course not be part of this regime.

Greener UK (a coalition of 14 major environmental organisations) has expressed significant concern over the prospect of a no-deal Brexit. It has asserted that “co-operative mechanisms with the EU would be lost immediately, while domestic replacements for vital EU functions would struggle to do the job.”

Office of Environmental Protection

Currently, the European Commission is the EU body that polices member states’ compliance with EU environmental laws. Post-Brexit (under the Draft Environment (Principles and Governance) Bill) the UK Government will establish the Office for Environmental Protection (OEP).

Independent of parliament, the OEP will oversee government and public bodies’ compliance with environmental law. In fact, the government has decided that the OEP ought to have the power to take legal action to enforce compliance, and has proposed that it scrutinise and report on the progress made in improving the natural environment.

The OEP has been criticised by the Labour Party as being a “toothless watchdog, appointed by ministers” and has criticised the fact that it will be unable to fine ministers for missing targets.

Either way, if the UK leaves the EU with a deal then there will be an implementation period during which the government will presumably work to establish the OEP as quickly as possible whilst the European Commission retains standing. If there is a no-deal Brexit then the European Commission will cease to have standing immediately whilst the OEP is established (presumably with haste).

It is likely in any event there will be a gap in environmental governance whilst the OEP is established and it is not entirely clear at this stage whether a domestic enforcement body will have the requisite independence, authority and power to drive compliance.

REACH – chemical regulation

The chemicals industry in the UK is regulated through a framework largely based on EU legislation. The main regulator is the European Chemicals Agency (ECHA) and the primary piece of legislation is REACH (EU Regulation concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals). Practically speaking, the main impact of REACH is that EU companies must register chemicals with ECHA before placing them on the market. It also imposes additional controls in respect of the use of hazardous chemicals.

In the event the UK Government agrees a deal prior to leaving the EU, there will be an implementation period during which, REACH will continue to apply in the UK and registrations and approvals in place prior to Brexit will remain valid. During this time the Health and Safety Executive (HSE), who will become the main UK regulator post-Brexit, will no doubt look to implement their own regime.

A no-deal Brexit, however, will have the following implications:

  • UK companies registered with REACH will not be able to sell into the European Economic Area (EEA) market without transferring their registrations to an EEA-based organisation.
  • UK users currently importing chemicals from an EEA country would face new registration requirements.
  • Importers would also have to register the chemicals within the UK, as REACH will no longer be applicable.

In any event, the HSE have indicated an intention to carry across existing REACH registrations held by UK based companies into the UK’s replacement for REACH, to ensure business continuity. It will also endeavour to carry into the UK system all existing authorisations that have gone through the full REACH authorisation process so that those chemicals can continue to be used by UK companies. What is clear is that companies that will be importing and exporting chemicals in and out of the EU post-Brexit will need to consider carefully the registration position of their products post-Brexit and plan for the possible interruption the change in regime may cause.

A new Prime Minister and cabinet reshuffle

In Boris Johnson’s cabinet reshuffle, Michael Gove has moved to the Cabinet Office while Brexiteer Theresa Villiers has become the new Secretary of State for Environment, Food and Rural Affairs. The chair of the Environmental Audit Committee, Mary Creagh, is reported to have warned that against a background of a no-deal Brexit threatening the UK’s environmental protections, Villiers’ primary job will be to make sure that investment in the environment remains high on the agenda in next year’s spending review.

Others have queried her commitment to the environment, Villiers having previously voted against climate change measures, increased fracking regulation and additional renewables incentivisation. Closer to home, however, she has a track record of championing the improvement of waste management, litter picking in her local constituency and exhorting the authorities to pursue and punish fly tippers.

With a window of time between now and 31 October, the opportunity is there for business to fill the inboxes of Johnson’s team with new ideas.

Comment

The landscape of environmental regulation, enforcement and compliance is uncertain for the time being. What is clear is that, once the UK leaves the EU and with a new Prime Minister at the helm, there will be opportunities to strengthen the UK’s commitment to improving the environment both locally and globally. With opportunity comes risk, however, and it will not become clear for some time whether the UK will capitalise on that opportunity.