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Brexit – What does this mean for UK Environmental Law?

28/06/2016

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United Kingdom

The people of the UK have voted to leave the EU and any exit will take a number of years and have a vast legal impact. Environmental legislation is particularly uncertain.

The people of the UK have voted to leave the EU. British citizens on both political sides are now waiting to see if the British Government will invoke formal Article 50 proceedings to leave. Any exit will take a number of years and the legal impact will be vast. Environmental legislation, most of which is derived from the EU is particularly uncertain.

EU Environmental Regulation is at present directly applicable, with domestic laws only addressing the enforcement of that law. Until the UK is actually in an exit transition, this will remain the case. Then the Government will need to outline its transitional position and review which laws it wishes to then legislate to retain. The impact of Article 50's timing and process and the influence by affected industries both in the UK and EU, in making this determination is not to be underestimated.

Similarly for other EU based environmental laws such as directives, until in exit transition, the current position remains.  However, the implementation into domestic law of EU Directives frequently makes reference to the Directive itself; creating a much wider political exercise of having to undertake a detailed review all existing domestic environmental legislation to bridge any gaps.

And there are likely to be many.

Nearly all of UK domestic waste, water, environmental impact, permitting, emissions, climate change commitments and wildlife legislation fall within this category; and the supporting technical guidance, research, standards and best available techniques which accompany them are all coordinated by the European Commission.  Unless adopted, significant time, resource and money are required to develop UK equivalent positions simply to facilitate our existing domestic legislation.

The interpretation of environmental laws was in any event a challenge relying heavily on input from the EU Courts and once in transition (and for a considerable period after any exit) this challenge is likely to increase, particularly given the restrictions of domestic political timetabling to successfully fill all of these gaps, when also competing with the need to legislate on copious amounts of non-environmental issues.  It is expected that the UK courts will over the next few years see an increase in environmental cases in an attempt to set some levels of clarity.  

Although some fear this could set back the strength of environmental protection and standards in the UK by decades, arguably the converse could also be said.  Environmental standards and evidence of environmental operational compliance within supply chains for goods and services that are exported to EU countries are likely to feature as critical issues in whatever form of negotiated trade agreements will now follow.  Many heavily regulated sectors are already pan-European and existing business requirements will dictate how operations continue.

The position and message to our clients both in the UK and the EU is that at present is as it was.

The future position is uncertain but the continuation, clarity and development of environmental legislation will be determined just as much by business needs as it will by political intervention.  

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