EU environmental law and policy post-Brexit: models for engagement between the EU27 and the UK

Dr Roderic O’Gorman

The diversity of views on the optimum final outcome of Brexit that were on display at the recent Conservative Party conference and their highly entrenched nature provide yet another reminder that, six months away from the actual date, there is still huge uncertainty as to the what the eventual deal between the EU (soon to be the EU27) and the UK (or absence thereof) will be. This uncertainty forces lawyers, politicians, employers, NGOs – literally anyone with a stake in this issue – to cast their minds across the entire range of potential possibilities when trying to prepare for the nature of the future relationship.

In my recent article in the Northern Ireland Legal Quarterly, I consider what this new relationship might look like in the sphere of environmental law. In light of the success of the EU in creating coherent transnational legal regimes governing diverse thematic environmental issues, I ask what sort of system can ensure that the new relationship between the EU27 and the UK maintains as much coherence as possible. In order to do this, I review the EU’s existing set of relationships with neighbouring or developed non-Member States and look at how the environment has been treated within these. Having set out the existing models for co-operation, I consider the various ‘red-lines’ that have been stated by the British government and also conditions that have been outlined by the EU’s institutional actors. In light of this, I make some proposals regarding what the new regime could look like, bearing in mind the legal possibilities and the political realities. I also consider the situation in the event of a No-Deal scenario.

In looking at how the EU currently engages with neighbouring and developed non-Member States in the context of environmental protection, considerations that are particularly important include the range of legal coverage, the degree to which compliance can be achieved and breaches of compliance enforced. The European Economic Area (EEA) Agreement offers the most comprehensive range of protection, with some elements of enforcement, though key environmental regimes in the field of habitats protection and water quality are omitted. The much discussed Swiss-model does allow for deep co-operation between the EU and Switzerland in specific areas of environmental law where a bilateral agreement has been negotiated (e.g. placing environmental taxes on heavy road haulage), but it requires an individual agreement in each field of environmental protection. Continued or renegotiated membership of a Customs Union with the EU would require the UK to adhere to environmental standards contained in EU legislation for goods across a broad range of areas such as chemicals, ozone-depleting substances, fluorinated greenhouse gases, endangered species and waste.

Free trade agreements entered into by the EU, either in the more limited trade context of the Common Commercial Policy (CCP) or as part of a broader association agreement where the possibility of deeper integration with the Union exists, tend to contain provisions related to environmental law. As most of those states that enter association agreements are at least seeking to keep open the option of future membership of the EU, the EU can be more prescriptive in what it puts in those agreements, including requiring the signatory state to integrate clauses of EU environmental law into its domestic legal system. In contrast, free trade agreements under the CCP tend to be with states not seeking to join the EU. As such, the environmental provisions in these agreements tend to recognise that the signatory state and the EU each have the right to set their own environmental priorities and standards as regards the level of protection to be provided. Both types of agreement usually contain a clause whereby disputes on environmental provisions are sent for adjudication by an expert panel.

Despite the diversity of existing models of relationship, none are suitable for direct transposition onto the post-Brexit situation, as the UK has clearly outlined that certain red lines – taking back powers from the Court of Justice of the EU, control over immigration policy and the pursuit of an independent trade policy – must be adhered to. These immediately exclude some of the more comprehensive models, such as the EEA and joining a Customs Union. But, by expressing a desire for to create ‘a bold new strategic agreement’ addressing security, law enforcement and criminal justice co-operation as was stated by the British Prime Minister in her Florence speech, it is clear that the UK does anticipate a new form of relationship, with deep levels of co-operation in some areas. Will this deep co-operation be seen in the field of environmental law?

The sense from the EU institutional actors certainly appears to be that it should. Michel Barnier has spoken about the need for the new relationship to be compatible with the EU’s regulatory model, specifically referencing environmental standards. He has also raised the concept of a non-retrogression clause in the field of environmental law, which would act to prevent the UK watering down domestic standards which originated in Union legislation. The European Parliament’s Brexit Resolution in March 2018 also referenced non-retrogression in the field of environmental law, but went a step further in proposing that the UK should be aligned with future EU law in the field of the environment and climate change.

Assuming the Conservative government’s insistence on its red line means that an EEA, Swiss or Customs Union arrangement is off the table, I propose that the most likely deal is a free trade agreement built into an association agreement which allows for deeper co-operation between the UK and EU27 in fields beyond trade. What will be required of the UK in the field of environmental protection under the new arrangement – setting its own standards, not departing from existing EU standards or actually following new EU measures – will very much depend on the degree of priority that the EU negotiators put on environmental issues within the wider stakes of achieving a deal. Finally, I note that even in the event of a No-Deal scenario, there will be some continued coherence between the EU and UK environmental regimes: firstly, through common international law environmental agreements they have signed and implemented; but also through the extraterritoriality of EU law – the so-called ‘Brussels Effect’ – where EU norms in certain fields (including the environment) become de facto international standards.