Environmental protections in the wake of Brexit

Alexandra Jones and Howard Hartley offer an overview of the new government guidance on how to maintain environmental standards after the transition period. It was a truly remarkable year in a number of different ways. 2020 saw great world economies brought to their knees by an infectious virus, testing the limits of international cooperation. On 8 December, that global effort paid off when Margaret Keenan, a 90-year-old woman from Coventry, received the first vaccine for Covid-19, just 12 months after the first case was reported. The vaccine has demonstrated that problems on a grand scale can be overcome when humankind is resolute, and remarkably quickly too. Becoming sidelined only by Covid-19, the issue of Brexit has otherwise dominated political commentary for the past four and a half years. Inevitably, future trade arrangements were at the fore of the debate. Yet issues of environmental standards and sustainability have received remarkably little attention throughout. Almost five years after the referendum, the UK has left the European Union. Over four decades of membership, the UK has reversed its reputation as the “dirty man of Europe”, occasionally being a leading player on the world stage on the issue of the environment. That is, in part, thanks to the advantages offered by the EU as a unique organisation for tackling climate change: it is an overseeing body with powers of sanction over sovereign states; a mechanism for agreeing cross-border regulations; and traditionally more removed from immediate political repercussions which can hinder ambitious domestic policy changes. The UK government has said repeatedly, and somewhat predictably, that its aim is to maintain environmental standards once the transition period ends. But just how have ministers prioritised tackling climate change? The UK government’s stance on climate change In July 2017, Michael Gove (the then environment secretary) announced that the government was committed to implementing a “green Brexit”. Then, in January 2018, Theresa May’s government published A Green Future: Our 25 Year Plan to Improve the Environment. While not legally binding, this set of ambitious targets was a strong political statement of the government’s intent. Some of the key targets can be summarised as follows: Halving the effects of air pollution on health by 2030; Ending the sale of new petrol and diesel cars by 2040 (subsequently brought forward to 2030); Reducing damaging abstraction from rivers and groundwater; Increasing woodland in England to 12% cover by 2060 (planting 180,000 hectares by 2042); Restoring marine biodiversity; Having all of England’s soils managed sustainably by 2030; Ensuring that all policies and investment decisions take into account environmental impact; and Reaching zero avoidable waste by 2050. Further, in June 2019, the UK became the first major economy to set a “net-zero” greenhouse gas emission target (by 2050). There is also a new Environment Bill proposed by the government, currently working its way through parliament. The most optimistic change tabled by the Bill is the establishment of a new statutory body responsible for overseeing compliance with international law, the Office for Environmental Protection. The OEP would be able to bring legal proceedings against the government and public bodies, as well as “scrutinise and advise government”. This, the guidance hopes, will ensure that future policy is influenced by environmental concerns. Interim measures will be introduced before the OEP is set up, which will continue until the OEP becomes fully operational. A UK Emissions Trading Scheme replaced the UK’s participation in the EU ETS on 1 January 2021. All of the devolved administrations have jointly established the UK ETS to protect environmental standards as well as the competitiveness of participating companies. EU regulations on environmental standards The EU has strict environmental standards. Under Article 191 of the Treaty on the Functioning of the European Union, combating climate change is made an explicit objective of the EU. Sustainable development is also an explicit overarching objective, under Article 3. The EU has stated that it is committed to implementing the Paris Agreement and the EU’s Emissions Trading System, which allows participating businesses to sell emissions allowances, incentivising sustainability. The EU also leverages pressure on its members to keep to environmental targets. New government guidance On 13 October 2020, the Department for Environment, Food and Rural Affairs published its guidance entitled “Upholding environmental standards from 1 January 2021”. One month later, the UK Department for Business, Energy and Industrial Strategy updated its more extensive guidance entitled “Meeting climate change requirements from 1 January 2021”. The October 2020 Defra guidance is split into two sections: 1) what will stay the same; and 2) what will be changed or introduced. It states that the existing EU environmental laws will continue to operate in the UK. In addition, there will be no change to the UK’s system of regulating domestic environmental practices and enforcing domestic environmental legislation, and permits and licences issued by UK regulatory bodies will not change. In terms of what is introduced from 1 January 2021, the guidance states that the current legislation will be altered in order to: remove references to EU legislation; transfer powers from EU institutions to UK institutions; and make sure the UK meets international agreement obligations. The BEIS November 2020 guidance sets out the key practical considerations from an industrial standpoint for: 1) entities with accounts in the Kyoto Protocol Registry; 2) businesses involved in the geological storage of carbon dioxide; and 3) businesses affected by eco-design and energy labelling standards. It contains lots of recommendations and detail for businesses, but crucially it clarifies that UK participation in the EU ETS ended after the transition period (although participating entities must still comply with the reporting obligations until April 2021). This means that participating UK operators must continue to meet their 2020 compliance obligations, by submitting annual emissions reports by 31 March 2021, with allowances for 2020 emissions having to be surrendered by 30 April 2021. Collaboration remains key We have seen with Covid-19 that the world can work well together when there is a sufficiently obvious and immediate common cause, but as we set our own course away from the EU, the UK must play its part in the effort to curb climate change and ensure that environmental standards are maintained and implemented. 10 ways environmental standards can be retained The following are 10 suggestions for how the UK government could protect and maintain its environmental standards post-Brexit: It has been said before many times, but environmental issues do not respect political borders. England should seek agreement with the devolved administrations, adopting an aligned (if not a common) environmental policy. The problem of enforcement within the UK could conceivably be overcome by granting the Office for Environmental Protection power over the devolved administrations, or having separate but aligned overseeing bodies. The UK should seek to introduce policies that give the private sector confidence in its support of environmental standards. This must be done in an easy-to-understand way. It could do this using domestic initiatives or by seeking binding regulatory agreements with foreign countries. Environmental policies which are confusing and unclear may dissuade businesses from investing in the UK over the long term. The promises made in the UK’s 25-year plan, implemented in 2018, should be taken seriously, and proper thought given to the wider impact of everyday policy decisions. The government should continually review and update its environmental strategy. One of the main drawbacks of the EU was that policy updates and legislative changes could be slow-moving. The UK should use its new-found independence as an opportunity to adopt an environmental framework which is groundbreaking. The implementation of the Environment Bill is an important part of ensuring environmental standards are upheld throughout the UK. However, the transition period has now passed and the Bill has not yet gone to the House of Lords for debate. It has been constantly delayed, and this has resulted in scepticism of the government’s commitment to upholding environmental standards and a worry that a gradual erosion of environmental standards may be ushered in under the guise of more immediate Brexit concerns. The government should prioritise the Bill, or, if this is not feasible, then it should introduce emergency temporary measures to ensure environmental standards are upheld in the interim. The establishment of the new OEP, if enacted by parliament, could be used as a tool to vigorously hold public bodies to account. Our membership of the EU has shown that the threat of enforcement through the European Court of Justice has had a real deterrent effect on successive UK governments. The establishment of a domestic entity with sufficient powers of sanction may be a persuasive tool. However, the OEP would not have power over the devolved administrations. The UK Emissions Trading Scheme is a big step in the right direction for environmental standards, as participating companies trade emissions within a system of quotas, thereby incentivising green activities and enabling greener companies to compete. This should operate in alignment with the EU ETS to encourage emissions trading with continental Europe. As an alternative/additional measure to the UK ETS, a carbon emissions tax could be implemented as a means of pricing carbon. Dependent on negotiations, there will be a huge impact on the REACH chemicals regime. This may result in companies needing to register their substances and mixtures under both the EU and UK regimes to ensure they can place products on both markets. A domestic REACH scheme has been tabled. The EU has set out that the implementation of a level playing field on minimum environmental standards is crucial for future trading relations. In the interests of protecting the UK’s market from an influx of cheap goods from the US with lower environmental standards, the UK should value an agreement on trade goods with the EU more highly. A closer relationship with the EU should be sought. The UK has left the EU, but it has not left the European continent. This is particularly pertinent for Northern Ireland, which borders an EU country. Inevitably, the EU rules on environmental standards will have an effect on the UK going forward. There is an argument for the UK aligning itself as closely as possible to the EU and its member states, in order to exert influence over policy decisions at the European level. Alexandra Jones is an associate and Howard Hartley is a trainee solicitor at Brabners Photo: Francisco Seco/AP/Shutterstock An environmental activist inside a hot air balloon at a demonstration outside an EU summit in Brussels in December 2020