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Environmental enforcement after Brexit: a body without bite?

In May 2018, the government launched a consultation on proposals to manage environmental standards after Brexit. Environmental protection has received particular attention in relation to enforcement standards post Brexit. This is because after Brexit we will still have much of the existing environmental law in place since EU environmental legislation is to become ‘retained EU law’ after Brexit day. However, it will be pointless to have such laws if they can no longer be enforced. As it is, the UK government is in continual breach of the air pollution standards set in European legislation and has had several cases taken against it before the UK courts and the Commission has now referred the UK to the Court of Justice for failure to fulfil their obligations under EU law.

Currently, the majority of enforcement of environmental standards is carried out by the Court of Justice and European Commission under the infringement mechanism and its associated financial sanction (Article 258 and 260 TFEU). Numerous other agencies and networks are all involved at the European level in ensuring environmental standards are maintained, including the European Environment Agency, EIONET, and IMPEL to name just a few. A concomitant agreement, the Aarhus Convention, has particularly important environmental provisions especially for the UK. It ensures that interested parties can bring judicial review cases in order to protect the environmental standards that the government has agreed to by protecting these cases from imposition of exorbitant costs. It ensures that access to justice for environmental cases remains real and not illusory. If the Aarhus provisions are not ‘retained’, but revert only to international law standards, even this basic protection will cease to be directly binding in the UK legal system.

The government consultation document proposes to create an advisory body to police environmental standards. It may take complaints about the implementation of environmental policy, but cannot do anything about them. It will have the ‘persuasive’ function of an Ombudsman but without being able to offer any Ombudsman remedies. It cannot take any legal action to protect environmental standards. The report proposes that:

‘The new body would need to scrutinise the implementation of existing environmental legislation for the purpose of exercising its proposed functions of dealing with complaints about and, where necessary, enforcing government delivery of environmental law. This would mean that the new body would be well placed to offer feedback and recommendations on the effectiveness of the legislation and its possible improvement. It could additionally be asked to express an independent opinion if government is planning to significantly change existing environmental law (domestic or retained EU law), with the specific aim of saying whether it thought the environmental outcome would be enhanced, maintained or diminished’.

In extreme cases the report countenances the possibility of the body having powers to issue ‘advisory notices’ to the UK government and, in what might be considered by this point apocalyptic circumstances, a ‘binding notice’. None of these compliance mechanisms appear to be different in substance from advice and recommendations.

What is blindingly obvious in this document is that the government is hostile to any suggestion that an independent body should be able to institute proceedings before a court. Its best offer is the right to intervene in a judicial review case brought by someone else, similar to the Equality and Human Rights Commission. In other words, there will be no ability to ensure government sticks to the environmental standards contained in current EU law, even if that law is retained EU law. There will be no ability to obtain damages against government or impose a fine on government for illegal behaviour. This significantly reduces the meaningful protection of environmental standards post Brexit.

The next turn in this saga came on publication of the European Union (Withdrawal) Act 2018 (26th June, 2018). Section 16 of the Act relates to arrangements for environmental principles and governance. It sets out the duty on the Minister to produce draft legislation on the environment and that it must:

make provision for the establishment of a public authority with functions for taking proportionate enforcement action (including legal proceedings if necessary) where the authority considers that a minister of the Crown is not complying with that environmental law.’

The DEFRA consultation document specifically ruled out any such body taking legal proceedings, but instead offered the possibility of an intervention in a case brought by another. As with so much of the fast moving terrain of Brexit, it is difficult to see whether these documents are in fact aligned – you might interpret an intervention as ‘legal proceedings’ - or whether they are in fact in direct conflict. Is this a telling example of yet one more Ministerial disagreement? What does ‘if necessary’ mean? Clearly, DEFRA considered it patently unnecessary. Time will tell.

On July 12 2018 the UK government released its White Paper on Brexit – a blue print for the future relationship between the UK and the EU mentions the environment under the section ‘Open and Fair Competition’. It proclaims that the UK undertakes to:

  • committing to high regulatory environmental standards through a non-regression requirement;

  • maintaining high standards on climate change, noting the UK’s world leading ambitions;

More detail reveals even less. The White Paper moves on to say:

The Government has been clear that the UK will maintain high environmental standards once it has left the EU…The UK has also fulfilled the commitment to consult on a new, independent, statutory body to hold the government to account on environmental protections. The UK is party to numerous Multilateral Environmental Agreements, and the UK is committed to upholding its international obligations under these agreements after it leaves the EU…The future relationship between the United Kingdom and the European Union cooperation, including in international fora, to solve shared global environmental challenges.’

The Aarhus convention is not name-checked here though it would have been easy to specifically include this with regards to access to justice on environmental matters.

It is still unclear as to whether any independent body will in fact have any legal competence to take the government to court if it fails to uphold its own environmental standards. Given the government's unwillingness to uphold existing air pollution legislation when there is a credible redress mechanism, a lack of any legal redress post Brexit does not bode well.

Much is yet to be decided on whether there will be meaningful environmental protection post Brexit.

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