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Can UK and EU Environmental Law Stay Aligned After Brexit?

Can UK and EU Environmental Law Stay Aligned After Brexit?

by Roderic O’Gorman (Dublin City University)

One of the most significant achievements of the European Union is the range of integrated environmental protection regimes it has developed, in diverse areas including biodiversity, climate change, water quality and air pollution. Britain’s exit from the EU will undoubtedly lessen the effectiveness of these regimes. Considering the transboundary nature of pollution, it is worth examining ways in which some degree of consistency can be maintained between the environmental laws of UK and the remaining 27 Member States following the March 2019 departure.

Obviously, the legal nature of the post-Brexit relationship between the EU and the UK will shape the extent to which environmental cooperation can be maintained. The EU’s existing legal relationships with its neighbouring states gives some indication of the options available.

Countries that are signatories to the European Economic Area (EEA) Agreement are subject to a considerable body of EU environmental law, within those fields that were covered by European Community law when the EEA was signed in 1991. However, Annex XX of the EEA Agreement also provides for the explicit exclusion from it of a range of EU environmental policies. These include some of the most lauded EU schemes, such as the wildlife protection system established by the Birds and Habitats Directives, some water quality rules such as the Bathing Directive, radiation control and the Kyoto Protocol.

Switzerland, which is a member of the European Free Trade Association (EFTA) but which never joined the EEA Agreement, regulates much of its legal relations with the EU through a comprehensive series of “bilateral agreements”. Through the Bilateral II agreements of 2004, a range of environmental issues are addressed under this format. The practical nature of this system has seen Switzerland mirror a number of EU environmental provisions within domestic legislation.

If the UK chose to remain outside the Internal Market, but wished to engage in a customs union with the EU (as suggested by some in the British Labour Party) it would remain bound by a range of Union environmental requirements in relation to products, addressing issues like endangered species, chemical content, fluorinated gases, ozone-depleting substances and waste.

Should the UK wish to choose a relationship devoid of any of the supranational connotations associated with the agreements previously listed, it could shape its relationship with the EU in the context of a free trade agreement negotiated under the Union’s Common Commercial Policy (CCP), or through an association agreement. Where the Union has negotiated the former, some environmental matters do feature. The Comprehensive Economic and Trade Agreement signed with Canada (CETA) features chapters on Trade and Sustainable Development and Trade and Environment. A Committee on Trade and Sustainable Development is established and charged with responsibility for scrutinising the implementation of these chapters.

Association agreements are particularly flexible in that they can cover a wide range of legal relationships between the Union and third parties. A number of recent association agreements entered into with neighbouring states (such as that with Moldova in 2014) included ‘deep and comprehensive free trade agreements’. This element of the agreement shared similar features with free trade agreements referenced above, with chapters on the environment, climate change and sustainable development, and a Sustainable Development sub-committee to address any disputes between the parties under this chapter. The more comprehensive nature of the association agreement is illustrated where, again using the Moldova agreement as an example, we see a requirement for the approximation of domestic law with elements of 30 separate Union environmental directives and regulations, a deeper degree of integration than that provided for under a purely free trade situation.

In the event of a ‘no-deal’ scenario, the UK would obviously still be bound by any international law obligations it had entered into in respect of environmental agreements. A significant proportion of EU environmental law concerns the implementation of such international agreements, so initially at least, some consistency would exist. A recently detailed analysis by the UK Environmental Law Association has, among other things, flagged the need to give clarity regarding the legal status of ‘mixed agreements’ and EU-only environmental agreements, and whether the UK intends to accede to the latter in its own right.

Even if the UK is determined to resist any mechanism that would ‘give back control’ to the EU, it would still be at least feasible that it could maintain or re-join the European Environmental Agency, as its role is one of the provision and dissemination of statistical information, without having any sort of enforcement power. Other non-Member States such as Turkey also are members.

Given that even the most closely linked non-EU regime (the EEA Agreement) is fiercely resisted by many in the British Government, and that option itself excludes significant parts of the Union’s environmental acquis, the consistency needed for transnational environmental regimes will be undermined by the UK’s departure. The absence of key features of Union law (supremacy and the enforcement mechanisms of the Commission and the CJEU) also plays a major role. Despite Secretary of State Gove’s commitment to deliver a ‘Green Brexit’, it increasing looks like the UK’s environmental regime post March 2019 will be nationally, rather than transnationally centred.

Roderic O’Gorman joined the DCU School of Law & Government in 2012.  He currently acts as programme chairperson for the BA in Economics, Politics and Law degree. He completed his PhD entitled ‘Union citizenship, social rights and the Marshallian approach’ in Trinity College in 2011. He had previously undertaken his undergraduate law degree in Trinity, followed by a LLM in EU law in the London School of Economics. Roderic is also Chairperson of the Green Party – Comhaontas Glas and represents that party as a councillor on Fingal County Council.