The Post Transition Environmental Law Landscape

Bryan Cave Leighton Paisner
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Summary

The vast bulk of UK environmental law is based on EU legislation.  How will it change when the Brexit transition period comes to an end on 31 December 2020 and what should businesses be doing to prepare?

There is so much that can be said on this subject, and in the coming weeks we will be issuing a series of notes on specific aspects of what lies in store.  For the moment, the headline points are set out below.

What happens at the end of the transition period?

In very general terms, little environmental law is likely to change immediately following the end of the transition.  This is because the great majority of the UK laws that implement EU legislation are deliberately being retained, at least for the time being, with small tweaks to ensure that they remain workable in the UK in the absence of EU governmental/regulatory input.  The small rump of UK environment law that does not owe its existence to EU legislation is also likely to remain unchanged – either because it cannot change (because it is in place in to ensure compliance with the UK’s wider international commitments) or because there is currently no domestic pressure to change it. 

More specifically, this means that in the short term:

  • The entire area of environmental liability (as opposed to environmental compliance) is unlikely to change. The Part 2A Contaminated Land Regime and the civil law torts will remain, as will the Regulations that implement the EU Environmental Liability Directive.
  • The structure of the environmental permitting system, which forms the backbone of regulatory compliance control and oversight in England and Wales, will remain, as will the current permit conditions.
  • Compliance laws that fall outside the environmental permitting system (for example relating to waste duty of care, energy efficiency, hazardous substances, etc) will also remain in place.
  • The current roles and powers of the key environmental regulators, for example the Environment Agency, Natural England and the local authorities, will remain.

There are, however, some important wrinkles to note.  There will of course be at least some short term changes.  At this stage, the most important areas where laws are likely to change are as follows:

  • The EU Emissions Trading Scheme. Rather than making provision for UK operators of affected operations to continue in the EUETS, it looks as though a UK emissions trading scheme will be set up alongside the EUETS.  UK operators within the EUETS will therefore need to take the steps necessary to transition to the new domestic scheme.
  • Chemicals. Rather than making provision for UK businesses to participate in and/or remain subject to the wide ranging EU chemicals regime administered through the European Chemicals Agency (“ECHA”), it looks as though a parallel UK chemicals regime will be set up to be administered by the Health & Safety Executive.  UK businesses and the EU and international companies that supply them will need to take the steps necessary to accommodate the new UK scheme.

Another important wrinkle relates specifically to laws that apply to goods that are released into the market (by either manufacturing or importing), distributed through the supply chain and used/consumed downstream (for example the laws that relate to Hazardous substances in electrical and electronic equipment, etc).  Whilst the relevant law remains largely in place, the removal of the UK from the EU market means that the status of UK businesses and their EU customers and suppliers under that law will change at the end of this year, and so therefore will their responsibilities.   In particular,  EU businesses that are supplied by businesses in the UK will be classed as importers of the supplied goods/materials for the first time and subject to more onerous obligations.  UK suppliers will need to ensure that their EU customers are comfortable with the new responsibilities.

Medium and long term changes

Moving to a medium and long term timeframe, things are already happening that could mean significant change.  The biggest threat to the status quo comes in the form of the Environment Bill which is at the Committee stage in Parliament at the moment.

As it currently stands the Bill essentially comprises two halves.  The first provides a legal framework for environmental governance to fill the governance gap on leaving the EU.  Among other things, it legislates for the adoption of environmental principles, and for the creation of a new public body, the Office for Environmental Protection, as a domestic independent watchdog.

The second half of the Environment Bill paves the way for a number of significant future changes in environmental regulation covering the following areas (which in most cases were previously dominated by EU law):

  • Waste and resource efficiency;
  • Air quality;
  • Water;
  • Nature and Biodiversity; and
  • Conservation Covenants

The Bill has some way to go yet before it becomes law, and will likely need the terms of the future EU/UK trading relationship to be clearer before it can be become law.  The Bill may well not have Royal Assent by the end of 2020.  Questions are already being asked as to whether, as things currently stand, it “does what it says on the tin”, i.e. represents “the most ambitious environmental program of any country on earth”, and whether the proposed framework for environmental governance is fit for purpose.  Things will become clearer once the Bill has passed the Committee stage.

The medium to long term could also see another important change, namely more significant divergence in the environmental laws of the constituent parts of the United Kingdom.  It seems quite possible that this will happen far more in the future than has been possible in the past.

An uncertain future?

All in all, it looks as though the UK’s emergence from EU environmental law from 2021 onwards will start slowly.  However, the Environment Bill (when enacted) will allow significant changes to be made in due course (as long as there remains the appetite for it), with consequences for environmental compliance generally including environmental permit conditions.  No assumption should be made that any new laws in England, Scotland, Wales and Northern Ireland will be exactly the same.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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