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What are the implications of Brexit on environmental regulation?

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No-deal Brexit: FCA regulated firms should ensure that they are prepared for all outcomes

UK environmental law is deeply rooted in EU law and policies, particularly in respect of waste management, air and water pollution, nature conservation and noise, to name just a few. However, some areas, such as environmental criminal law, are still primarily domestic. As EU and UK environmental law are therefore intimately entangled, what does this mean for environmental regulation in our current post-Brexit world?

On 31 December 2020, the transition period for the UK’s withdrawal from the EU ended. This means that the UK is now formally a third country and technically EU law no longer applies here. However, given that EU law is deeply embedded in the UK’s legal system, it was quickly recognised that extracting the EU elements was just not practicable.

For the purposes of legal continuity, it was therefore agreed that the legal position which existed immediately before 31 December 2020 will continue to be preserved, to a large extent, by virtue of retained EU law under the European Union (Withdrawal) Act 2018 (as amended) (the Withdrawal Act). Essentially this encompasses a snapshot of all of the EU law that directly applied in the UK at that point and brings it within the UK’s domestic legal framework as a new category of law.

This approach should in theory provide stability and certainty for those affected by environmental law, including environmental regulators and local authorities. However, as there is no specific list of retained EU law to refer to, each piece of EU environmental legislation will have to be considered individually to determine if it has been amended or revoked by post-Brexit domestic legislation. It is therefore a matter of statutory interpretation, which is likely to result in at least some degree of uncertainty for the foreseeable future.

The Withdrawal Act also provides a power for the government to amend retained EU law through statutory instruments, to ensure that it functions effectively after the end of the transition period. These powers were extended to allow amendments to legislation for up to two years after the end of the transition period.

In order to oversee the role of government in this respect, the Environmental Bill 2020 creates the Office of Environmental Protection (OEP), an independent regulator intended to hold the government to account in respect of environmental legislation, including through the courts if necessary. The OEP is intended to take over from the existing enforcement role of the EU Commission and in theory represents a significant step towards a UK system of environmental governance.

Sir James Bevan, the Chief Executive of the Environment Agency (EA), has suggested that leaving the EU offers positive opportunities in respect of the UK environmental legislative landscape and its regulation. However, with opportunity comes risk and it will not become clear for some time whether the UK government will seize that opportunity.  

Although the UK has now formally left the EU, the true impact of Brexit on environmental regulation still remains uncertain, particularly in light of the ongoing COVID-19 pandemic. To date, the EA has shown support to businesses facing challenges as a result of the COVID-19 pandemic, by taking a more lenient approach in respect of non-compliance with regulatory requirements, where this is due to the current exceptional circumstances. There has also been a temporary relaxation of some regulatory requirements, where compliance is anticipated to be more difficult in the current climate. However, it is unknown for how long and to what extent that support will continue.

In summary, the UK’s departure from the EU is likely to result in a number of changes to UK environmental regulation over time, but it is clear that environmental accountability remains a priority and a tougher approach may be taken now that the UK has more control over its environmental legislation. It therefore remains as important as ever for individuals and businesses to keep abreast of environmental legislation to ensure compliance and take prompt action in the event of any breach.

If you are facing an investigation by the EA or any other environmental regulator, please contact our specialist lawyers on 0161 696 6250 to discuss how we can assist with your case.