Brexit threatens environmental law enforcement

The UK will have to rethink its institutional and judicial system to maintain environmental standards.

Leaving the European Union means there won’t be a bad cop anymore to hold the British government to account on the environment.

That role is currently played by the European Commission and the European Court of Justice, but campaigners and environmental law experts worry that without them, nature protection in the U.K. could suffer.

Currently, about 80 percent of U.K. environmental rules are shaped in Brussels, according to a report by the British House of Commons environmental audit committee. Crucial legislation includes EU laws protecting wild species and their habitats or setting reduction targets for smog-causing air pollutants.

Under EU rules, national authorities must plan and report to the European Commission on, for instance, air pollution levels in their cities. The Commission acts as a regulator and a watchdog, and takes laggards to the European Court of Justice, where EU governments that aren’t following the rules face fines and legal action.

The U.K. is currently one of five countries facing a legal challenge over its air pollution levels. The Commission also took it to court over poor urban waste water treatment and its failure to protect marine species covered by EU nature laws.

Environmentalists worry that if the U.K. fails to comply in areas like air quality or water standards, the EU will also suffer because pollution crosses borders.

The European Parliament’s environment committee is pushing for any Brexit deal to “include a mechanism to ensure that the U.K. is bound to avoid damage to the EU environment … ensuring no weakening of current protection levels,” according to internal documents seen by POLITICO.

That could include an “arbitration mechanism … to ensure enforcement in the U.K.” and coordination with the rest of the EU for future legislation.

European Court a red line

Prime Minister Theresa May insists that the European Court of Justice will have no jurisdiction over the U.K. after Brexit.

“We will take back control of our laws and bring an end to the jurisdiction of the European Court of Justice in Britain. Leaving the European Union will mean that our laws will be made in Westminster, Edinburgh, Cardiff and Belfast,” she said earlier this year.

Nature campaigners are worried existing rules will become “zombie legislation” — no longer enforced or updated in line with the latest science.

“From an enforcement and institutional perspective, what do you do about the gap left by not having the Commission and ECJ having oversight?” asked Karla Hill, of environmental law charity ClientEarth.

Bodies such as the U.K. Environment Agency currently make sure businesses abide by nature laws. But the EU provides the legal and institutional framework for oversight of the government’s actions. “The question is whether and how we replace it,” said professor Maria Lee, an expert in EU environmental law at University College London (UCL).

Who ends up stepping into the Commission’s shoes to oversee the government remains to be seen, but it will have to be “some kind of body that is properly independent, empowered and resourced to hold the government to account,” said Hill.

If the government breaches the law, the question then becomes who takes it to court; and without the ECJ it will have to be before a national court. Another concern is that the British judicial system is not adequately equipped to deal with these cases.

“What we will rely upon is judicial review [the procedure through which British courts supervise public action] and, basically, NGOs to bring their actions,” Richard Macrory, professor of environmental law at UCL, told the House of Lords’ European Union committee.

But Macrory said judicial reviews are currently very expensive and time-consuming. Relying only on NGOs suing is also problematic. “We will have to consider creating some form of environmental ombudsman or somebody to be investigating some of these cases, if not, perhaps, to take the litigation,” he said.

Making rules

And then there’s the issue of just which rules regulators will be enforcing.

The challenge is going to be turning more than 1,100 EU environmental laws into national legislation, something that will be part of a much wider Great Repeal Bill transposing EU rules into U.K. law.

The government expects to have difficulties in transposing about a third of the nature legislation, Andrea Leadsom, secretary of state for environment, told the House of Commons environmental audit committee. Civil servants are currently meeting once or twice a week to deal with the issue.

The government says it is committed to provide “certainty and stability” for nature laws, and insists that leaving the EU won’t create any gap in their regulation and enforcement.

“We are committed to publishing a long-term plan that builds on our long history of wildlife and environmental protection, and sets out a new approach to managing the environment,” said Daniel Barnes, spokesman for the Department for Environment, Food and Rural Affairs.

But some British lawmakers are not convinced that there are checks in place to hold the government to its word. “The government’s assurances that future governments will, in effect, be able to regulate themselves … are worryingly complacent,” said the report from the House of Lords, which debates Brexit and its environmental implications Thursday.

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