Brexit: Opportunity or Threat for the Environment?

Over three years have passed since the contentious Brexit referendum of June 2016, and yet there are still a number of uncertainties in the realm of British environmental (and climate change) policy and law. However, the prospect of Brexit and the lack of certainty surrounding policy has potentially put the environment, and human well-being, at risk of irrevocable damage.

Whilst Brexit may have offered the United Kingdom (UK) a unique opportunity to become one of the frontrunners in environmental protection and preservation, the reality has been somewhat different. The government’s stance on environmental policies since the referendum has started a chain of events that may lead to cataclysmic consequences, including the recession of progressive environmental policies and a turn away from environmental commitments. The release of the draft Environment Bill in October 2019 has evidenced this point.

Air pollution and unmonitored, excessive sewage dumping in the 1970s led to the UK receiving the reputation of the ‘dirty man of Europe.’ European Union (EU) membership (and progressive EU legislation), has pushed the UK to improve its environmental policies in a number of policy sectors. However, Brexit raises a number of unresolved issues in respect to the future of environmental legislation in the UK.

Although EU law is incorporated into UK domestic law through case law, Acts of Parliament and Statutory Instruments, it is unclear whether legislation that originated directly from the EU will be retained. Furthermore, and perhaps more importantly, the EU will no longer be present to pressure the UK Government and Parliament to adopt progressive environmental legislation that would have otherwise not been implemented. The EU is the source of a vast number (80%) of important UK environmental policy, including wildlife, water and air pollution laws, and has acted as a mechanism of environmental accountability in these areas. The potential exit from the EU raises significant questions about the ability of the UK to enact adequate policy in the Brexit legal vacuum, despite being a persistent environmental offender in the realms of pollution and air quality. There is also the fact that environmental policy is devolved to the individual national governments of England (via DEFRA), Wales, Scotland and Northern Ireland which results in a piecemeal and overly complicated approach to the environment across the United Kingdom. Further proposed legislation such as the Environment Bill complicates this.

The Environment Bill is not convincing in its pledge to fill the legal vacuum and is not a secure commitment to a new age of environmental protection. Its targets are legally binding but there is an excessively long 15 year timeframe for meeting these targets and the Bill falls victim to the same vague language used by the Climate Change Act 2008 in respect of missed targets. De-regulation and weaker standards in tandem with the weak monitoring and enforcement process of the Office for Environmental Protection and limited procedural protections in respect of environmental improvement targets create a “perfect storm” that will have severe consequences for humans and nature alike. Furthermore, the impending election means the Bill itself has an uncertain future and therefore should not be relied on as a concrete legal commitment to the environment.

There also remains the question of what will become of the Precautionary Principle. This principle, as stated in the Rio Declaration of 1992 decrees that, ‘Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.’ The government’s approach to neonicotinoid pesticides is an unfortunate example of this. Various studies have addressed the long-term effects of pesticides on insects, particularly bee colonies, and such studies have captured the attention of the public and policymakers. The EU implemented a total ban on these, and in this year it moved towards banning the most widely used pesticide in the UK. However, the current propensity of the UK Government to prioritise consumer yields and an economic agenda over environmental protection appears to fulfil an alternative principle set out by George Monbiot as the ‘providential principle’. This principle means that in the cost-benefit analysis of governmental policy, if there is even a minute chance the policy might not cause catastrophe, it will be adopted. This is reflected in problematic reports of increased pesticide exposure due to weakened regulations after Brexit.

The UK’s impending departure from the EU also poses significant implications in respect to its commitment to reducing emissions and the Paris Agreement. The UK is able to rely on the EU’s collective commitment to submitting nationally determined contributions (NDCs) and the EU Emissions Trading System for processes such as carbon off-setting, but Brexit will likely impede on participation in this system, (especially under a no-deal Brexit). Moreover, the dissolution of the Department of Energy and Climate Change and its replacement with an advisory body, the Committee on Climate Change, casts doubt on the ability of the Government to commit to any meaningful post-Brexit climate policy. The lack of clarity surrounding Brexit and the Government’s consistent approach of placing Brexit at the forefront of its agenda to the detriment of any other policy indicates that policy in this area will be increasingly complicated to navigate as time passes. Further clarification and action is needed.

Brexit has introduced a great deal of uncertainty into UK policy and law. This only contributes to the threats we face in the wake of environmental damage and climate breakdown and necessitates further clarification and engagement across all relevant actors in Government, Parliament and the wider policy sector. It is unclear how the UK will be held accountable to its environmental and climate commitments going forward, and moreover, whether these commitments will be further relaxed. The public should therefore closely follow developments in the forthcoming General Election and the approach to the extended January 2020 Brexit deadline, as it will likely dictate the ongoing UK approach to the environment and climate change.