Preparing for a no-deal Brexit: environmental standards

On 23 August 2018, the UK Government began publishing technical notes on the effect of a no-deal Brexit. These notes are intended to provide guidance to citizens, businesses, public sector bodies and Non-Governmental Organisations in the United Kingdom on how to prepare for the possibility of the UK leaving the EU next March without concluding a Withdrawal Agreement. It is expected that around eighty technical notes will be published in total. SPICe Spotlight is providing analysis and comparative information on a number of these. The first blog provided an overview of the UK Government’s Preparations for a no-deal Brexit.

This blogpost focuses on the technical notice Upholding environmental standards if there’s no Brexit deal.

The European Union provides a framework for many environmental standards across its member countries. This ‘level-playing field’ approach across the Single Market, coupled with mechanisms for reporting, monitoring and enforcement, is generally accepted to have driven up standards of environmental protection across the Union.

What are environmental standards?

Standards are normally understood to be one (crucial) part of environmental regulation. The UK Environmental Law Association describes the main types of environmental standards as:

  • Technical prescriptions – rules requiring the adoption of specific technologies, such as a requirement that power plant fumes are cleaned by wet scrubbing.
  • Emissions standards – rules specifying pollutant amounts that different kinds of installations may emit, often expressed as concentration values or reduction values (the degree to which pollutants must be removed from effluent).
  • Quality standards – standards relating to the quality of ambient air, rivers, lakes, coastal waters or groundwater. These are often expressed as limit values for the concentration of a particular substance in the relevant medium.
  • Product standards – rules relating to the design, manufacture or performance of products. Examples include standards for the construction and use of motor vehicles, or energy consumption for electrical goods (light bulbs and recently vacuum cleaners).
  • Sampling/compliance standards – these are requirements concerning sampling (such as the number and location of sampling points) and the data to be used for enforcement.

These types of environmental standards operate within a wider body of environmental law which includes mechanisms for reporting, monitoring and enforcement of the standards at Scottish, UK and/or EU levels.

What does the technical notice on standards say?

The UK Government’s technical notice on Upholding environmental standards tends to refer to action to maintain the wider body of environmental law on exit day. Some of the other technical notices published also cover environmental standards in some specific areas (see below).

In a no-deal scenario, the UK Government states it is:

“…committed to maintaining environmental standards after we leave the EU, and will continue to uphold international obligations through multilateral environmental agreements.”

The notice provides a very high-level explanation of how EU environmental law will be translated into domestic law:

“The EU Withdrawal Act 2018 will ensure all existing EU environmental law continues to operate in UK law… The UK government and devolved administrations will amend current legislation to correct references to EU legislation, transfer powers from EU institutions to domestic institutions and ensure we meet international agreement obligations.”

No more information in this note is given on the specific legislation requiring correction, powers to be transferred or international obligations referred to.

The technical notice goes on to outline policy action the UK Government intends to take:

  • Publish an Environment Bill applying to England and reserved matters which “builds” on the 25 Year Environment Plan.
  • Establish an independent statutory body to “hold government to account on environmental standards in relation to England and reserved matters after Brexit”.
  • Establish a “statutory statement of environmental principles to guide future government policy making”.

A UK Government consultation covering the last two points was published in May 2018 and is now closed. The proposals to create an independent “environmental watchdog” are designed to replace some of the reporting, monitoring and enforcement mechanisms of the EU. The foreword states:

“The role which has been played in the past by the EU Commission and courts should be filled now by a UK body embedded in the UK’s parliamentary democracy.”

In a no deal scenario, there is expected to be a gap between the UK’s exit and the creation of any new statutory watchdog. The technical notice states:

“We are considering what interim measures may be necessary in a no deal scenario after 29 March 2019 and before the Environment Act is passed and comes into effect.”

Scottish Government policy

Environmental powers are generally devolved to Scotland, with some specific reservations. Significant powers being transferred from the European Union on exit such as chemicals, plant health and waste regulation are subject to ongoing negotiations on UK common frameworks.

The Scottish Government’s discussion paper on Developing an Environment Strategy for Scotland (June 2018) says:

“Scotland is committed to maintaining or exceeding EU environmental standards and carrying forward EU environmental principles. It is also vital to ensure effective governance arrangements are in place to monitor and enforce these standards. We will consult later this year on post-Exit environmental governance in Scotland and the future application of EU environmental principles.”

This consultation is likely to be informed by the report on environmental governance from the Roundtable on Environment and Climate Change. This report’s conclusions state that:

“This paper has identified a number of functions, notably in reporting, monitoring and enforcement, that are carried out through the EU machinery but will be lost on the UK’s withdrawal. These are important for good governance in terms of transparency and accountability and for the proper functioning of Scottish authorities in fulfilling their environmental responsibilities.”

The planned consultation on governance and principles is not yet published.

Other technical notices

Three other technical notices are filed under ‘Protecting the environment’ and provide detail on regulatory, logistical and administrative changes for:

Other technical notices include significant implications for environmental law and standards including:

Detail on significant areas of environmental standards are not covered by the “no-deal” notices published so far. Examples include species and habitat protections, air quality, emissions trading, waste management and shared marine environment and fisheries issues.

Iain Thom, Researcher, Brexit, Environment and Rural Affairs