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The prospect of the UK leaving the EU presents a significant opportunity for UK environmental law. Whilst the UK government’s environmental ambitions centre on leaving ‘the natural environment in a better state than it found it’, post Brexit EU-UK relations will be integral in modelling the UK’s future environmental ambitions. 

Since the first Environmental Action Programme in 1972, the EU has steered the UK’s approach to the environment, setting the tone of all environmental policy across the EU through legislation, enforcement and funding. The House of Commons Environmental Audit Committee determines that 80% of the UK’s environmental rules derive from EU directives. A plethora of these policies stem from the EU Environmental Acquis (an expansive list of environmental policies and how they should be implemented) which, according to the Department for Environment, Food and Rural Affairs (DEFRA), constitute more than 1,100 pieces of legislation of relevance.

The European Commission and Court of Justice of the European Union (CJEU) aim to ensure the implementation of these laws. The European Commission may intervene if a specific member state fails to comply with a piece of European legislation and recommend substantial fines to the CJEU. According to The Institute for Government, half of the CJEU’s rulings on UK infringements of EU law have been related to the environment. Despite these penalties , a number of EU countries still fail to properly implement these regulations, causing 400,000 premature deaths through air pollution according to a 2018 joint report on air quality.

An important part of the EU’s environmental programme is funding granted to Member States. For instance, the LIFE programme directly supports conservation efforts and climate change, whilst Horizon 2020 provides funding for research that may encompass environmental projects. The European Investment Bank (EIB) pours vast sums into climate action and environmental policies, investing €15.5 billion in 2018. One vital project undertaken by the EIB in 2018 includes improving water security through €2.4 billion worth of funding in related projects.

These policies have come under fire for being “about integration and not about science”, according to senior contributor at Bloomberg New Energy Finance Michael Liebreich. If one searches through the 2,000 projects of Horizon 2020, the number related to ‘graphene’, ‘batteries’ and ‘PV’ (three key technologies for future clean energy) account for just 45 projects. In comparison, those related to ‘social’ account for 262 projects whilst those concerning ‘cooperation’ amount to 142 projects. Post-Brexit UK environmental policy could be more focused on addressing environmental challenges.

The EU’s control over environmental matters has led to further criticism. For some, the overfishing of UK waters – which was 24.3% in excess of scientific advice in 2019 – embodies this. Bertie Armstrong, the chief executive of the Scottish Fisherman’s Federation has criticised the fisheries policy for its un-sustainability, stating an exit from the CFP “will allow us to develop a superior fisheries management policy, with sustainability featuring as a key priority.” The UK has also introduced its own 2050 net zero carbon emissions goal, in stark contrast to the EU which has failed to introduce a similar target.

What opportunities would a No-Deal Brexit provide for the UK’s environmental law? Some have argued the loss of EU framework would leave the UK weakened in the fight against environmental challenges. Friends of the Earth have raised their concerns that a No Deal Brexit may well lead to a deterioration in UK environmental standards and lax enforcement of environmental regulations. Nevertheless, there is potential for the UK to seize the initiative on establishing a green environmental platform.

Uncoupling the UK from the EU would allow for a new and independent environmental policy agenda, since there will be no requirement for regulatory realignment. The UK Government has committed to ensuring this realignment will not result in worsened environmental standards following Brexit. This doesn’t not necessarily mean a shedding of all EU environmental policy. Whatever regulations deemed effective may well be kept as part of a new package. The 25 Year Environment Plan and 2008 Climate Change Act established by the UK government will act as the cornerstone for the UK’s environmental policy, with the potential to be greener and better suited than the Environment Acquis. 

With regards to enforcement of environmental legislation, a No-Deal Brexit would herald a complete end of EU Commission and CJEU enforcement over the UK. Through enforcing environmental law at a domestic level, the new proposed ‘green watchdog’ may be more precise in effectuating any new environmental legislation. The fundamental issue with the current EU enforcement system is the vast geographical region that is covered, as well as the numerous national governments. Consequently, there has been a vast discrepancy in air quality across each Member State. 

Funding is likely to be the area most adversely affected by a No-Deal Brexit. In 2017, the UK received €6.3 billion. Nevertheless, the UK government has already committed to funding projects funded by the EU up until 2020. In the long term, the UK government may well replace funding from EU programmes with UK programmes with similar, or more ambitious targets, predominantly modelled upon the Horizon 2020 and LIFE programmes. Such programmes would further build on EU environmental policy. The Agricultural Bill, which will replace the Common Agricultural Policy and incentivise farmers to improve their environmental records through rewards, embodies this.

No-Deal Brexit should not be seen as a threat to environmental policy. Through adequate preparations by the government, No-Deal Brexit presents an opportunity to tailor a pertinent, comprehensive and effective set of environmental policies. 

Luke Warren is a graduate from the University of Exeter having studied History and International Relations. He has worked in the European Parliament for a year. The views expressed in this article are those of the author, not necessarily those of Bright Blue.