There have been a number of excellent, comprehensive studies on the environmental implications of the United Kingdom (UK) leaving the European Union (EU), often referred to as ‘Brexit’.Footnote 1 Detailed as these existing studies are, they do not always systematically set out the dynamic interaction between the UK and the EU, with influence – both positive and negative – travelling in both directions over time and across different policy areas in the field of environmental policy. Nor do they necessarily unpick the various factors which have a bearing on any assessment of whether leaving the EU is likely to be environmentally deleterious. In this article I aim to do both of these.
The article consists of two parts. In the first part, I consider the potential impact of Brexit on environmental policy and hence environmental quality. While this part considers the potential practical consequences, the second then considers the normative consequences of Brexit for issues of sovereignty and control – issues which featured strongly in the referendum debates. I argue that subsidiarity is central to the discussion and that repatriating environmental competence will typically fail to produce the desired level of effective control over environmental problems. I also highlight, as others have, that environmental sovereignty, once returned from Brussels, gives rise to questions about environmental federalism within the UK and the appetite of devolved administrations for a degree of Brussels-replacing central control. Both parts of the article therefore concern the title’s ‘impact of Brexit on the environment’: the first part covers environmental policy and quality; the second part relates to environmental governance.
In deciding whether Brexit is likely to be good or bad for the environment in policy terms, it is important to note that any such assessment is inevitably value-laden. Although Table 1 below presents a form of ledger of positive and negative aspects of Brexit, the discussion that follows illustrates that there may be room for reasonable disagreement on where a policy is placed. Different sides may be equally committed to environmental protection, but have competing visions of the best policy means for achieving this.Footnote 2 The EU Emissions Trading System (ETS) is a good example. To what extent one regards the ETS as a force for good is likely to depend in part on one’s faith in market-based instruments. Moreover, while this article focuses mostly on the potentially environmentally deleterious impact of Brexit on the specific policy areas that constitute the EU’s environmental acquis, it is also worth observing that some believe the very nature of the EU as a growth-based trading block as a whole is environmentally harmful and that the UK would therefore be better off out.Footnote 3
2 MULTI-DIRECTIONAL EFFECTS
Table 1 is designed to show the interaction between the UK and the EU in environmental policy in a bi-directional and bi-dimensional manner, to show that the impacts have not all been one way and have not been uniformly positive or negative, but rather a mix of both.Footnote 4 In the campaigning and debate leading up to the EU referendum, the Remain side typically emphasized the ways in which the EU had been good for the UK environment and that leaving would therefore be harmful. This side of the argument is captured by the bottom right-hand box of Table 1 and the policy areas contained within, such as drinking water, bathing water and waste policy, where EU directives have undoubtedly led to significant improvements in UK standards. A number of Remainers, however, did also mention the few EU policy areas in the bottom left-hand box that have not necessarily been environmentally beneficial for the UK, including in particular the Common Agricultural Policy (CAP) and the Common Fisheries Policy (CFP).Footnote 5 The CAP, for example, has gone hand in hand with an intensification of agriculture and has been associated with, inter alia, a decline in previously common farmland birds and diffuse nitrate pollution of watercourses from fertilizers.Footnote 6 In that respect, it can be argued that non-environmental EU policyFootnote 7 has had as much, if not more, of an effect on the quality of the UK environment as dedicated environmental policy. An assessment of the effects of Brexit on the environment, therefore, should not be limited to a consideration of environmental law and policy alone.
Understandably in a referendum aimed at persuading UK voters, the effects of UK membership on the EU received less attention. However, in assessing the overall effects of Brexit on the environment, these effects – set out in the top half of Table 1 – also require careful consideration as part of a bi-directional assessment. Some have been positive. For example, the UK has driven the EU on climate change targetsFootnote 8 and has encouraged the greening of the CAP.Footnote 9 It was also instrumental in the design of the Integrated Pollution Prevention and Control (IPPC) industrial emissions regime, which later became the Industrial Emissions Directive.Footnote 10 EU external policy on the environment has also been enhanced by UK input, especially in the area of climate change negotiations. Membership of the EU has given the UK more influence than it would otherwise have had – the UK gets the benefits of putting forward its own views but with the added weight of a larger bloc’s platform to support them.Footnote 11 Other effects, where the UK government has blocked or watered down EU environmental legislation, have been negative. Recent examples include policies on air quality,Footnote 12 fracking,Footnote 13 energy efficiency,Footnote 14 and soils.Footnote 15
3 A DYNAMIC RELATIONSHIP
It is tempting to see the relationship between the EU and UK in static rather than dynamic terms across time. The temptation is thus to regard the UK as forever the laggard and the EU as always the leader. While it is not hard to see why pre-referendum campaigning on the Remain side would take this stance, in reality the UK government’s environmental credentials have fluctuated over time and across environmental policy areas. The EU’s environmental record, too, changes according to the political complexion of the European Commission and Member State governments in the Council of Ministers. Some of the policy areas listed in Table 1 provide a good illustration of this. For example, the EU ETS could legitimately be placed in either the ‘EU policy diluted’ or the ‘EU policy strengthened’ box. Insofar as the UK pushed for this policy in the first placeFootnote 16 and it has become regarded by many as a somewhat ineffective neoliberal instrument,Footnote 17 it might legitimately be put in the negative top left-hand box. However, the UK has also been instrumental more recently in trying to strengthen the policy by restricting allowances,Footnote 18 which could mean UK influence belongs more in the positive top right-hand box. Similarly, while the UK was an early advocate of nature conservation laws and was thus supportive of the Habitats DirectiveFootnote 19 at the time of its inception,Footnote 20 in recent years the UK government, arguably, has come to regard the Directive as a burdensome obstruction to development projects.Footnote 21 As regards the EU’s changing stance vis-à-vis the environment, the current Juncker-led EU Commission, for example, worried some environmentalists with its Better Regulation-based ‘fitness check’ of the BirdsFootnote 22 and Habitats Directives.Footnote 23
The dynamic nature of the EU–UK environmental relationship requires consideration not only of the past and present but also looking to the future. In the lead-up to the referendum, the future direction of the UK government’s environmental policy was undoubtedly a cause for concern in some quarters. Anecdotally, many environmentally conscious voters appeared minded to vote Remain in part because of a fear that a Conservative government, which had previously referred to environmental issues as ‘Green crap’,Footnote 24 would see Brexit as an opportunity to deregulate troublesome environmental ‘red tape’.Footnote 25 Deregulation – both in general and in relation to the environment specifically – also featured strongly in the Leave campaign.Footnote 26 Nevertheless, the government’s balance of competences review on the environment and climate change in the run-up to the referendum in general revealed no obvious clamouring for deregulation by environmental and industry stakeholders .Footnote 27 As for the government’s own view, the Environmental Audit Committee (EAC) report made clear:
The Government’s renegotiation of the UK’s relationship with the EU did not explicitly include a reference to the environment. Mr Stewart, Minister at DEFRA, told us: ‘We are not intending to renegotiate those directives. […] The basic structure of the competences, the basic structure of European environmental law in relation to our Department I think is very close to what we think is sensible. It is what we would intend to do in the United Kingdom.’ Lord Bourne, Minister at DECC, said, ‘in this area of energy and climate change, the UK’s interests are very much within a strong EU. […] this area is not part of the renegotiation. We are very comfortable with the EU stance.’Footnote 28
Of course, while that was true of the pre-referendum government, no one knew what a post-Brexit government might look like. Many suspected that it might be led by pro-Brexit politicians on the right of the Conservative party, a number of whom had climate-sceptic views and were unsympathetic to the environment more generally. To that extent, therefore, any deregulatory fear was potentially well founded. In the end, the fall-out from the referendum produced a new government led by a supposedly ‘quiet Remainer’ Prime Minister, with a leading Leave campaigner as Environment Secretary and with three prominent ‘Brexiteer’Footnote 29 members of the Cabinet tasked with negotiations on Brexit, including those relating to the environment. This government remained in power after a snap election in June 2017, albeit with a much reduced majority.
It may be too early to predict the government’s ideological approach post-Brexit. However, in contemplating the impact of Brexit on the environment, political will is in any event only part of the equation. In practice, significant change in UK environmental policy seems unlikely for two reasons. Firstly, the policy literature tells us that path dependence from a relationship built up over many decades means that there will be a significant inclination towards maintaining the status quo.Footnote 30 Secondly, even if historically embedded ways of doing things were easily undone at the best of times (which path dependence tells us they are not), Brexit represents far from the best of times. The overwhelming work pressure on the UK government, Parliament and the civil service in dealing with many of the procedural mechanics of Brexit – both centrally and arguably even more so within the devolved administrations of Wales, Scotland, and Northern Ireland – means that there is unlikely to be time to carry out a root-and-branch overhaul of environmental policy, at least in the short to medium term. This does not mean that no changes will occur. Firstly, the government is on record as stating that roughly one third of EU environment legislation will not be carried across via the European Union (Withdrawal) BillFootnote 31 (the statute designed to repeal the future legal authority of EU law in the UK while simultaneously carrying over the existing body of EU law onto the UK books).Footnote 32 This is because there are some policies which, on leaving the EU, cannot easily take immediate legal effect through such a Bill. Obvious examples include legislation that requires some form of EU-level authorization process or involvement such as the REACH Regulation on chemicalsFootnote 33 and the EU ETS.Footnote 34 Anticipated changes are not driven by a deregulation rationale, but by the need to deal with the practical realities of transposition post-Brexit.Footnote 35 Secondly, while a root-and-branch overhaul of environmental legal frameworks is unlikely, small-scale tinkering could occur and could still produce a major change in the effect of the law. For example, keeping the structures of the BirdsFootnote 36 and HabitatsFootnote 37 Directives in place but adopting minor changes to the conditions for derogation or to the interpretation of ‘overriding reasons of imperative public interest’ to justify development that harms a European Site (and what constitutes acceptable compensation) could significantly alter the impact of the law.Footnote 38
For some time in the future after Brexit, then, a combination of path dependence and administrative pressures makes significant structural change to UK environmental policy unlikely, at least in areas that do not face Withdrawal Bill transposition difficulties. In that respect, UK policy in the short to medium term is not unlike that of the EU as far as ability to change is concerned. Although the EU is currently going through what might be characterized as a deregulatory phase in respect of its environmental policy, in practice the rate of change is not great: as the 2016 UK EAC report observed, given the need to secure agreement among many Member States, it is not easy to change EU environmental policy.Footnote 39 Thus, notwithstanding the fundamentally dynamic nature of the UK and EU relationship, the rate of change should not be overplayed. The EU environmental acquis, albeit not immobile, is relatively stable. The UK capacity to change after Brexit, in turn, is perhaps more constrained in practice than some might expect.
4 FUTURE RELATIONSHIP MODEL
Article 50 of the Treaty on European Union (TEU) provides for a two-year negotiation period once the UK government has triggered the Brexit process by formally communicating its intention to leave, which it did at the end of March 2017. The aim is for the UK and the EU to come to an agreement within this two-year period, at which point the UK will cease to be an EU Member State. If such an agreement cannot be reached then, under Article 50 TEU, the UK will drop out of the EU at the end of the period, unless the other 27 Member States unanimously agree to an extension beyond two years. While any agreement arising from this process is expected to include the terms of the ‘divorce’ – how resident EU citizens, EU staff pensions, existing UK budget contributions, assets, and so on are to be dealt with – the extent to which it will also include the terms of the UK’s future relationship with the EU remains less clear. There is a view that it may be impractical to cover both the divorce and the future relationship within the two-year negotiation period and that the future relationship will therefore be left to a separate ‘mixed’ agreement. In addition to European Parliament consent, this would require ratification by all EU Member States in accordance with their own constitutional arrangements (as with, for instance, the recent EU–Canada CETA bilateral trade deal).Footnote 40 The UK government has nevertheless expressed the hope that an Article 50 TEU agreement would cover both issues. This would secure the twin advantages of requiring only qualified majority voting by the Council (and the consent of the European Parliament) for its approval and avoiding a damaging gap period during which, in the absence of a future relationship agreement or a transitional arrangement, the UK’s relationship status with the EU could fall back on World Trade Organization (WTO) rules (and associated tariffs). The European Council, in contrast, has stated that it stands ‘ready to engage in preliminary and preparatory discussions’ on the future relationship agreement in the context of negotiations under Article 50 TEU, but only when it ‘decides that sufficient progress has been made in the first phase towards reaching a satisfactory agreement on the arrangements for an orderly withdrawal’.Footnote 41
Whatever legal form is finally adopted, the eventual model chosen for the UK’s future relationship with the EU is likely to make a significant difference to whether Brexit turns out to be positive or negative for the environment. Since the referendum there has been much discussion of the nature of the potentially available models. The adjectives used to describe Brexit have been many and varied, including, for example, ‘dirty’ Brexit, ‘clean’ Brexit, and even ‘red, white and blue’ Brexit. However, most commentators have settled on the UK’s options lying somewhere on a spectrum between ‘hard’ and ‘soft’ Brexit.Footnote 42 A hard Brexit could take a variety of forms but is essentially one that would take the UK outside the single market and probably also the customs union. A soft Brexit would preserve full single market access and could involve the UK remaining a member of the European Free Trade Area (EFTA) and joining the European Economic Area (EEA) (the so-called ‘Norway model’). A slightly less soft variant would involve entering into sector-by-sector bilateral agreements with the EU (the so-called ‘Swiss model’).
If the UK were to adopt a Norway model based on EEA membership, then most existing EU environmental policy would remain in place, with the key exceptions being the HabitatsFootnote 43 and BirdsFootnote 44 Directives and the Bathing Water Directive.Footnote 45 Under such a model, policy areas with significant environmental implications, notably agriculture and fisheries, would also return to UK control. A Swiss-style soft Brexit would preserve much less of the EU environmental acquis. In the Swiss case, there has merely been some attempt at coordination between the EU ETS and the Swiss ETS. Switzerland also enjoys (paid) membership of the European Environment Agency.Footnote 46 In the case of a hard Brexit followed by a Canada/CETA-style free trade agreement, there would not even be this minimal level of direct involvement in EU environmental policy institutions (although the CETA does provide for some cooperation on environmental issuesFootnote 47 ). In addition, the CETA largely preserves the right of each country to choose its own levels of environmental protection,Footnote 48 subject to certain exhortations not to lower standards in a race to the bottom.Footnote 49 Thus, if either a Swiss-style soft Brexit or a hard Brexit transpires, the landscape for UK environmental policy becomes less predictable than with the softer EEA Norway model, which preserves much of the status quo.
However, in terms of the impact of the UK’s future relationship with the EU on the dynamics at play in Table 1, either a hard or a soft Brexit scenario removes the top left- and right-hand boxes from consideration. In neither scenario will the UK retain the ability to block or dilute proposed EU legislation that it does not like. On this basis, Brexit of either kind would (ceteris paribus) be positive for the stringency of EU environmental policy (and, under the Norway model therefore also for environmental policy in the UK, which would be obliged to implement it);Footnote 50 nor, of course, will the UK be able to positively influence EU environmental policy.
Now, considering the inverse direction of influence represented in the bottom two boxes of Table 1, it should not be assumed that EU influence on UK environmental policy will disappear after Brexit, even on a hard Brexit model. The single market of the UK’s large trading neighbour is bound to exert a considerable influence over its domestic policy. This is particularly true with regard to environmentally related product standardsFootnote 51 (such as on vehicle emissions)Footnote 52 as UK manufacturers will most probably wish to continue to export to the single market.Footnote 53 There would inevitably be pressure to harmonize relevant UK standards with those of the EU. Hence, even after leaving the EU, the UK could still find itself in a position where its environmental policy is strengthened by the EU. However, for environmental and climate targets and associated process standards, the influence of competition from the single market could also be negative. If the EU adopts weaker standards than those of the UK, then the latter may find it hard to subject its own industriesFootnote 54 to unilateral stringent targets, which could harm their competitiveness when compared with the weaker EU rules facing their rivals. In this case, even after leaving the EU, the UK could still find itself in the bottom left box in Table 1, with its environmental policy weakened by the EU. Thus, even after a hard Brexit, the single market’s continuing influence on UK environmental policy means that the UK will still be affected both positively and, potentially, negatively. However, regardless of whether a soft or hard Brexit is pursued, the scope for the UK to continue to influence EU environmental policy will be severely curtailed.
As Burns and her co-authors note,Footnote 55 it is notoriously difficult to state with any degree of certainty that improvements to UK environmental quality were caused by EU membership. Some changes may have happened in time in any event, even without EU influence (as a result of, for instance, policy convergence), and it is not always possible to disentangle multiple causes of environmental change (for example, separating the impact of EU policy from improvements to environmental quality caused by deindustrialization, or other economic changes such as the ‘dash to gas’).
When assessing impact, time has a key bearing on assessing whether leaving the EU is positive or negative for the environment. Before the referendum, much was made of the significant positive impact the EU has had historically on UK environmental policy. Take the Bathing Water DirectiveFootnote 56 as an example. Many rightly point to the impact of this instrument, along with the Urban Waste Water Treatment Directive,Footnote 57 on the quality of UK bathing waters that were previously severely polluted with untreated sewage effluent. However, in trying to establish whether, on balance, the EU has been positive for UK environmental policy, we cannot easily assess whether the UK would, in time, have taken action itself in these areas in any event. All we can safely conclude is that, at the time, the UK was not acting and EU policy pressured it into doing so. Environmental impact assessment (EIA) provides a further example, including evidence of some prior UK action in this case. While the EU’s 1985 EIA DirectiveFootnote 58 undoubtedly pressured the UK to adopt EIA as a procedural mechanism within land-use planning decision making, the UK had in fact issued a report that considered EIA in 1977.Footnote 59 In doing so, it is likely to have taken inspiration from the United States’ (US) 1969 National Environmental Policy Act.Footnote 60 However, progress in implementing the report’s recommendations was very slow and was eventually overtaken by the requirements of the EIA Directive.Footnote 61 Although the UK may eventually have acted on EIA on its own accord, it was hostile to the proposed directive, which it managed to water down.Footnote 62 Even then, as Jordan notes, ‘left to its own devices, Britain would almost certainly have adopted a much more informal and voluntary system than the one promoted by the EU’ and with a narrower scope in terms of projects caught by the regime.Footnote 63
Moving away from the historical, there is the separate question of whether the EU remains a necessary current pressure for the UK in relation to environmental policy. With bathing water the answer is that it is less called for todayFootnote 64 in that over 96% of UK beaches are now of sufficient quality or above.Footnote 65 That said, there is no room for complacency as the UK remains second bottom in the EU in terms of the rates of bathing waters with poor quality.Footnote 66 Air quality is probably the most obvious area of environmental law where EU-based pressure today still plays a significant role. The number of lives lost as a result of NO2 pollution is one of the highest in the EU,Footnote 67 and EU law has been instrumental in the court-based efforts of non-governmental organization (NGO) ClientEarth to apply pressure on the UK government to improve air quality.Footnote 68
It is also worth pausing to consider the often mentioned ‘fall-back’ impacts of international law in terms of the causal relation between EU influence and UK impact in Table 1. Areas where UK environmental policy has been strengthened by the EU, identified in the bottom right box of the table, would not automatically be endangered by the UK’s departure from the EU. This is because in a number of areas the UK is subject to obligations under international environmental law that will provide fall-back protection,Footnote 69 albeit typically not as comprehensive or anywhere nearly as effectively enforceable as EU law. It cannot therefore be said that but for EU membership those areas of environmental policy would be completely jeopardized, because the UK’s international obligations will still exert a protective effect, albeit a lesser one.
The current section on devolution assumes that the UK will have a common, single future relationship model with the EU, as opposed to one that varies internally with, for example, Scotland remaining an EU member, or perhaps a member of the single market, while the rest of the UK leaves.Footnote 70 To the extent that environmental policy is a devolved matter in the UK, there are currently some differences in policy and performance across the various constituent parts of the UK,Footnote 71 but these differences are kept in check to a considerable degree by common EU standards across many areas.Footnote 72
Linking this back to the discussion above regarding the effects of Brexit on the UK environment, such effects are also likely to depend on the possible greater divergence between, for example, Scottish and English environmental law that leaving the EU might produce. The scope for such divergence depends firstly on the extent to which repatriated environmental competence is exercised centrally by Westminster or is devolved. There is obviously much greater scope for divergence in the latter scenario. Whether such divergence would be worse for the environment than the pre-Brexit position is hard to predict; it is at least conceivable that all of the devolved governments and England would improve environmental quality. Equally possible – although they have nearly all promised otherwiseFootnote 73 – is that we could see one or more of the component parts of the UK loosen its/their environmental controls from a Brexit baseline, while others (and the EU) maintain or raise theirs. Alternatively, and perhaps as likely, is that although standards might not fall below the Brexit baseline, some parts of the UK would climb beyond these while others would allow them to stagnate.Footnote 74
It would be a mistake to examine the potential environmental impacts of leaving the EU only with reference to a checklist of policy sectoral winners and losers. As noted by Lee,Footnote 75 one of the major gaps that could be opened up by leaving is an enforcement governance gap. Membership of the EU brings with it procedural reporting obligationsFootnote 76 on Member States and exposure to various enforcement mechanismsFootnote 77 to ensure compliance with EU environmental provisions. This broader architecture is an essential component of the effectiveness of environmental governance in the UK. Some existing UK laws, notably the Climate Change Act 2008, do have their own institutional, reporting and enforcement arrangements, which could serve as a source of inspiration when constructing a post-Brexit enforcement system.Footnote 78 However, these arrangements fall short of the political and legal accountability mechanisms that the UK has become used to through EU membership. In the end, leaving gives rise to concern not just about the future quality of environmental legislation, but also about the opportunities for citizens and NGOs to hold the government to account. Domestic judicial review will, of course, still be available,Footnote 79 but civil society could lose its ability to hold government to resilient environmental standards. One of the core strengths of EU environmental law is the idea that it represents a credible long-term commitment, which cannot be changed at the whim of individual governments just because, for example, they are struggling to meet existing targets.
The extent to which Brexit would produce an enforcement gap depends in large measure on the future relationship model that is eventually adopted. This is true of both public enforcement by the Commission and private enforcement by individuals in the national courts. With a hard Brexit, all of this would go. Public enforcement under a soft Brexit Norway/EEA model involves a surveillance authority with similar supervisory powers to the Commission. However, this arrangement lacks the ability to impose financial penalties on recalcitrant states.Footnote 80 The only recourse consists of a second appearance before the EFTA Court. This same arrangement applied in the EU before the introduction of penalty payments and lump sums, and was considered unsatisfactory. As for private enforcement, in EEA law there is still indirect effectFootnote 81 and state liability,Footnote 82 but there is no direct effectFootnote 83 and no principle of supremacy.Footnote 84 These latter two doctrines, in particular, have been central to the ability of citizens and NGOs to mobilize EU law effectively in their national courts.
8 BREXIT, SOVEREIGNTY AND CONTROL
While the first part of this article considered the potential practical consequences of Brexit for environmental policy and quality – principally in the UK but also more broadly within the EU – the second part examines the normative consequences of Brexit for issues of sovereignty and control. The principle of subsidiarity – which involves consideration of and justification for which geographical level of action is best suited to particular areas of policy – is very much at the heart of these debates.
Arguably the most powerful narrative put forward by the Leave side during the referendum campaign was one of ‘taking back control’ and restoring sovereignty to the UKFootnote 85 – both having supposedly been lost to ‘unelected bureaucrats’ in ‘Brussels’. While the key policy area in which many on the Leave side wished to regain control from the EU was undoubtedly immigration, with environmental policy much further down the list,Footnote 86 it is nevertheless worth exploring what implications this narrative might have for the latter.
8.1. Transboundary Environmental Problems
It has become something of a truism that the environment is an area where individual state sovereignty on its own is often powerless to achieve desired environmental outcomes. The environment typically does not respect national borders and, hence, states must act together to see results. This is a long-standing element within the academic literature on the environment and subsidiarity: supranational-level action on transboundary environmental problems is justified because one state acting alone cannot tackle an environmental problem without other states also cooperating.Footnote 87 Scandinavian acid rain in the 1970s–80s is often given as an example: it was no use, for example, Sweden acting on its own on acid emissions if the UK’s tall power station chimneys were largely responsible for the damage caused. Not surprisingly then, in the end, EU-level action was taken to tackle this problem via the Large Combustion Plant (LCP) Directive,Footnote 88 which imposed limits on acid gas emissions from power stations. What this example shows is that, in relation to transboundary problems like air pollution, state sovereignty in isolation gets one nowhere and that supranational EU-level coordination is likely to produce more effective pooled sovereignty and control.
8.2. International Law Obligations
If Brexit was about regaining sovereignty, a counter-narrative occasionally heard on the Remain side was that the Leave vision of ‘pure’, untrammelled sovereignty was a myth, in part because the UK would, after Brexit, remain subject to binding international law obligations.Footnote 89 These involved the UK voluntarily constraining its sovereignty in order to achieve collective action goals, in much the same way as it had done by joining the EU. Reference to these continuing obligations has since become a common feature of the emerging commentary on Brexit and the environment. However, this argument is something of a double-edged sword for environmentalist Remainers. While it rightly picks apart the myth that Brexit will return the UK to a land of ‘year zero’ unrestrained sovereignty,Footnote 90 at the same time it undermines an argument that any action transcending the national level must necessarily emanate from the EU. Indeed, no state can successfully act alone on many environmental issues, and sovereignty must often be constrained in concert with others, but this can be done internationally and not just supranationally. The Birds DirectiveFootnote 91 provides a good example. While very much focused, again, on the transboundary issue of migratory wild birds, which can only be adequately protected by states acting together, the Council of Europe Bern ConventionFootnote 92 and the Convention on the Conservation of Migratory Species of Wild AnimalsFootnote 93 also provide important international law protection for migratory wild birds. The 1979 Convention on Long-Range Transboundary Air PollutionFootnote 94 – introduced to tackle acid rain across Europe and which preceded the EU LCP DirectiveFootnote 95 – is another example.Footnote 96 To be sure, there are some additional advantages to supranational-level action over the international: EU rules tend to be more tightly framed than their international equivalents with concrete timetables for expected compliance, and they also benefit from more effective mechanisms for enforcement.Footnote 97 Nevertheless, the point remains, at least in part. In any event, as French has noted, after Brexit UK environmental lawyers can be expected to turn their attention much more closely to all relevant international law instruments.Footnote 98 Future research should look, in particular, at the gaps between EU law provisions and their supposedly equivalent international law counterparts.Footnote 99 The UK courts, too (aided by creative NGOs and their lawyers), might be expected to play a role in ensuring that international law obligations can be appropriately enforced.Footnote 100
8.3. UK Devolution Arrangements
If EU-level supranational coordination on the environment falls away, then what is to fill the gap? Is there then a justification for centralized or coordinated environmental action at the UK level, in line with a principle of subsidiarity similar to that which animated EU-level environmental action itself,Footnote 101 to deal with issues that the devolved parts of the UK cannot satisfactorily address on their own? The question arises because the environment is currently a devolved matter, where competence is effectively shared with the EU. After a hard Brexit, does repatriated EU competence over the environment similarly become devolved to become the exclusive competence of Scotland, Wales and Northern Ireland, or should at least some of it be centralized and competence be shared with Westminster?Footnote 102 This issue is all the more pressing where no equivalent international law fall-back exists to provide a direct replacement for EU law.Footnote 103
The difficulty that centralized Westminster control faces is one of wariness by the devolved nations, whose sovereignty over environmental policy and other areas was hard-won through the devolution settlements.Footnote 104 While repatriation of EU competence to Westminster would not involve a loss of existing sovereignty, devolved administrations are nevertheless understandably reluctant to replace the old EU master with a new, Westminster, version.Footnote 105 This reluctance may arise from the potential for Westminster to ultimately allow less discretion in implementation than that provided by the EU system, and also for it to be more capriciously deregulatory, again in contrast to the slow pace of change we have come to associate with mature EU environmental law. The various Brexit White Papers provide an interesting insight into the matter. The Scottish and Welsh documents both effectively claim a presumption in favour of full devolution in already devolved areas like environmental policy, with their consent needed for central pooling, in what would need to be a new joint arrangement.Footnote 106 The central UK and Welsh governments recognize a clear need for some form of arrangement where there is a risk of fragmenting the UK’s internal market.Footnote 107 This takes us back to subsidiarity and the various justifications for central control over the environment. Preserving an internal UK market from non-tariff barriers to trade forms one key justification for the central harmonization of standards. The definition of waste is an example of a case where the adoption of a common, UK-wide standard would be justified on this ground. Of course, since the UK exports a large amount of domestic waste to the rest of the EU in the form of refuse-derived fuel, this may well be an area where the UK chooses not to diverge from the EU definition. As the UK Environmental Law Association (UKELA) Waste Working Party observed:
It could, in theory, be possible to have one definition for waste that was traded only nationally within England and Wales while still applying the EU and Basel Convention definitions for waste exports. Would this result in a greater or lesser regulatory burden to industry?Footnote 108
In principle, it would also be possible to have different definitions of waste within the UK. Nevertheless, this too is unlikely to prove attractive in terms of legal certainty and ease of trading for businesses operating across the UK’s own internal market. Industry would hardly welcome having separate definitions for different jurisdictions within the UK. It would therefore require some form of UK regulatory governance framework to deliver an agreed definition of waste – whether this is one that matches the EU definition, or a common UK definition. Questions of waste are partly covered by international law (the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their DisposalFootnote 109 ), but its definition of waste – rather unhelpfully for present purposes – links back to national lawFootnote 110 and applies only to exports. In that sense it cannot directly replace EU law.
While crafting a common UK definition of waste, and potentially also streamlining it with the EU definition, may be considered on the basis of a product-type, trade justification, another typical subsidiarity justification for federal-level action on the environment relates to averting unfair competition between states in a race to the bottom on standards. For example, what if, in the absence of the EU Industrial Emissions Directive,Footnote 111 England decided to apply lower standards than those applicable in the devolved administrations, hoping to make itself more attractive to investment through lower pollution control costs? Would this justify a common set of UK BREF-typeFootnote 112 standards to avoid this unfair and environmentally harmful competition? Again, there is no obvious single international law replacement for the EU Industrial Emissions Directive. What of possible devolved administration concerns over central control on race-to-the-bottom grounds? One way of meeting these would be to set only minimum standards centrally. These would act as a floor, with the devolved administrations and England then free to choose their own standards above this level, but unable to go below it.Footnote 113 Such a floor might usefully be set at the level of existing EU standards. This approach would have much in common with EU law, which similarly typically allows Member States to adopt stricter measures (a point returned to again later).
A third major subsidiarity-based justification for centralized action on the environment applies when transboundary issues are involved, such as cross-border pollution or wildlife migration. In a UK context, the question arises of precisely what form such centralized control should take. For air pollution and migratory species which potentially range over large distances, central standards are likely to be justified. For water pollution, while a common set of standards can be justified at EU level because numerous cross-border watercourses transverse many continental countries, the UK situation involves much smaller numbers. This means that, instead of a centralized UK framework that draws up common regulatory standards across the various jurisdictions within the UK, one could instead seek to coordinate literally only at the borders.
As things stand, cross-border rivers within the UK (such as the Tweed between Scotland and England) are dealt with by legislation which seeks to coordinate the work of the respective environment agencies to achieve the river basin approach required by the EU Water Framework Directive.Footnote 114 However, this cross-border cooperation currently happens towards the achievement of common water quality standards laid down in the Directive. After Brexit, water quality goals within the UK might start to diverge. Maintaining common standards across the UK might still be justified on race-to-the-bottom, competition grounds, so that industry and farming do not face different ambient quality targets that will inevitably lead to different emissions standards and controls on diffuse pollution, but not on the grounds of controlling cross-border pollution. After all, the various national environment agencies within the UK could simply coordinate, on cross-border rivers only, to ensure that stricter standards are not compromised by those of their neighbour.
Rivers that cross from the UK into another EU Member State (such as the Shannon into Ireland) would also be affected by Brexit. These are currently dealt with under the Water Framework Directive as International River Basin Districts, requiring coordination between the Member States to achieve the Directive’s goals.Footnote 115 On Brexit, Northern Ireland would no longer be part of an EU Member State and would hence be subject to treatment by Ireland under Article 3(5) of the Directive, which states:
Where a river basin district extends beyond the territory of the Community, the Member State or Member States concerned shall endeavour to establish appropriate coordination with the relevant non-Member States, with the aim of achieving the objectives of this Directive throughout the river basin district. Member States shall ensure the application of the rules of this Directive within their territory.
Such coordination could in theory become more difficult given that Northern Ireland would no longer be subject to the requirements of the Directive and might end up with different standards. However, the Irish river example is unlikely to give rise to severe problems because of the United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses (Watercourses Convention),Footnote 116 to which the UK and Ireland are both signatories. Article 21(3) states:
Watercourse states shall, at the request of any of them, consult with a view to arriving at mutually agreeable measures and methods to prevent, reduce and control pollution of an international watercourse, such as: (a) Setting joint water quality objectives and criteria; (b) Establishing techniques and practices to address pollution from point and non-point sources; (c) Establishing lists of substances, the introduction of which into the waters of an international watercourse is to be prohibited, limited, investigated or monitored.
In the Scottish example in contrast, the Watercourses Convention would not apply because it applies only between states and not to devolved nations within states. However, some very similar form of cross-border cooperation would be needed.
8.4. New Governance and Multilevel Governance
‘New governance’, a key strand of practice and scholarship within EU law and politics during the previous decade,Footnote 117 is also worth considering in relation to issues of control and sovereignty. As Fisher and Harrison have suggested, there is a danger in seeing Brexit and environmental sovereignty in strictly binary terms, with control and sovereignty either completely preserved or completely lost.Footnote 118 While a large part of the original EU environmental acquis was very much aimed at uniformity across Member States, with centralization of power at EU level in order to achieve it, this ‘old governance’ approach has since then often been replaced by new governance. The latter allows greater discretion to be left in the hands of Member States, affording them greater determination of their own path via a decentralized approach. The new EU approach to genetically modified organisms (GMOs) provides a good example, allowing for a degree of flexibility in Member State choices on the cultivation of GM crops on their territory.Footnote 119 Renewables provide another example. The original EU Renewables DirectiveFootnote 120 imposed binding (albeit differentiated)Footnote 121 targets on Member States in order to reach the overall EU target.Footnote 122 Even these binding targets allowed ‘Member States a large discretion on the choice of national measures’.Footnote 123 Nevertheless, the proposal for a revised Renewable Energy Directive goes one step further in abandoning binding national targets altogether. Instead, it maintains an overall target for the EU but, espousing a bottom-up perspective similar to that reflected in the nationally determined contributions of the Paris Agreement, the overall target is said to be ‘best achieved through a partnership with Member States combining their national actions supported by a framework of measures as outlined in this Proposal’.Footnote 124
However, it would be mistaken to see the old approach to EU environmental governance as wholly centralizing. After all, directives, which famously leave Member States a degree of implementing discretion, were a key source of law used at that time.Footnote 125 Similarly, Article 193 of the Treaty on the Functioning of the European Union (TFEU)Footnote 126 has long allowed Member States, in many circumstances, to adopt more stringent measures than those contained in EU legislation.Footnote 127 EU environmental directives are seldom exhaustively harmonizing. Taking back control in this context therefore means taking back control to adopt weaker standards, because control to have stricter standards was already largely there under Article 193 TFEU.
It would be equally mistaken to claim that new governance is now wholly in the ascendant: in some areas, such as the EU ETS, initial decentralization (in setting national allocation plans (NAPs)) has since given rise to a more centralized system (with the Commission setting an EU-wide cap on emissions).Footnote 128 However, from a sovereignty and control perspective, the examples of new governance such as GMOs and renewables illustrate that EU environmental policy, especially in some of its more recent incarnations, does not always involve Member States losing all control to a highly centralized EU level. This phenomenon can also be explained through a multilevel governance (MLG) lens.Footnote 129 MLG theory argues that not all power rests with states; rather, it is diffused across multiple levels, potentially from the local to the international. Therefore, to the extent that states retain a degree of sovereign policy decision-making power over particular EU policy areas like GMOs and renewables referred to above, then sovereignty and control exist at more than one level.
Nevertheless, while it is important to point to the overlapping issues of new governance and MLG in order to establish that Brexiteers would be mistaken in thinking of EU environmental policy as an area over which the UK had fully lost control (which needed to be regained), these considerations should not be read as wholesale normative support for such approaches. Where the EU acts in a way that is perceived by the environmental movement as anti-environmental – such as on the subject of GMOs – then, of course, there will be a temptation to support new governance flexibility for Member States, as this would allow them to make their own, more ambitious environmental choices. However, by and large, EU environmental policy is environmentally progressive. In most cases, new governance flexibility could result in Member States watering down standards, which can hardly be regarded as a good thing environmentally. It remains to be seen, for example, whether the bottom-up approach of the proposal for a revised Renewables Directive will be as effective environmentally as the existing Directive with its binding Member State targets. That Member States are capable of watering down can be seen in relation to the EU ETS, where a number of Member States had come up with very weak NAPs. This led to more recent EU centralization, away from the previous ineffective new governance-style NAPs. This more centralized approach is likely to be environmentally beneficial and to secure greater collective control over climate change than national control over NAPs provided. Hence, there is often much to be said for old governance and EU as opposed to national control may well produce better environmental outcomes.
In recent years, the MLG governance approach has also been particularly prevalent in the context of the perceived ‘governance gap’ in relation to climate change.Footnote 130 The argument here is that lower governance levels (including citiesFootnote 131 and states within federal systems like that of the US) can to some extent make up for the lack of national and international progress on climate change. While this approach has a descriptive accuracy as well as a certain normative appeal, one should again be wary of attaching excessive importance to this perspective in relation to Brexit. While lower governance levels provide a much needed supplement to state and international action on climate change, they cannot provide a replacement for action at the latter levels. Thus, in the context of Brexit, the EU and climate change, and indeed environmental law more generally, one needs to beware of fallacious reasoning. The governance gap and the lessons from MLG that modern environmental law is not all about control at or by one single authority – the state – should not be misinterpreted as validating the proposition that any Brexit-resulting demise of forceful EU action on climate change or, indeed, any subsequent weakening of UK-level action in this area, is therefore unproblematic.
In assessing the environmental implications of Brexit, I have argued for a systematic and dynamic analysis of the effect on the environment of the UK’s membership of the EU. However, this should not be taken as a claim that leaving may, somehow, not be so bad after all. A benefit of using a table like that presented in this article is that the balance of positives to negatives can easily be seen, and a glance at the table confirms that there are far more positives than negatives to the UK’s existing relationship. The only way to preserve all of these would be by the UK remaining a full member. Given that this seems inconceivable, the second best solution would be an EEA-style soft Brexit or one where (unlike in the Swiss model) the EU insists on a considerable proportion of the environmental acquis being respected as a condition of single market membership.Footnote 132 Although the EEA route also seems improbable, the election result of June 2017 makes some form of soft Brexit a more likely outcome.Footnote 133 While these two particular soft Brexit options would not preserve the positive, top right box of Table 1, they would at least preserve much of the positive, bottom right qualities. However, even with a hard Brexit, given the single market influence, the bottom right and left boxes would not entirely disappear.
In considering issues of sovereignty and control in the specific context of environmental governance, I have stressed the importance of the principle of subsidiarity. Effective control over the environment often requires collaboration between states, particularly in the case of transboundary pollution or wildlife migration. While this might involve pooling sovereignty via multilateral or bilateral international agreements rather than via supranational EU-level action, the drafting and enforcement advantages of EU law mean that the latter will typically offer the most effective control. It also became clear that Brexit, depending on its eventual shape, is likely to give rise to contestation over environmental sovereignty and control within a devolved UK. In the absence of common EU federal action on the environment post-Brexit, subsidiarity suggests that there will be a need for the UK to create a similar centralized system internally in some areas of environmental policy. However, having fought hard for sovereignty over the environment as a devolved matter, the devolved administrations have already begun to express a degree of hostility towards the idea that Westminster might take back control at the centre when the EU environmental acquis is repatriated. In the end, then, the environment reveals sovereignty to be much more complicated than many Brexiteers may have imagined. The UK will still want many of the functions that the EU served in relation to the environment to be carried out. Taking the EU out of the equation simply means that these subsidiarity-justified functions have to be performed elsewhere: via international law cooperation and via central UK control. Pooling UK sovereignty with other states remains necessary for the former; and pooling at least some sovereignty that would otherwise be devolved seems inevitable for the latter.