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Brexit poses many environmental law challenges

Jaclyn Jaeger | July 3, 2017

A taskforce of environmental lawyers in the United Kingdom gathered in London last month to discuss how to roll over environmental law after withdrawal from the European Union.

The United Kingdom Environmental Law Association (UKELA) and E3G, an independent climate-change think tank, held a press conference on 28 June to discuss the many challenges that environmental law will pose in the run-up to Brexit.

UKELA is the foremost body of environmental lawyers in the U.K., composed of 1,200 academics, barristers, solicitors, consultants, and judges involved in the practice, study, and formulation of environmental law across England, Scotland, Wales and Northern Ireland. UKELA aims to promote better law for the environment and to improve understanding and awareness of environmental law.

During the press conference, UKELA outlined five “Brexit and Environmental Law” reports—the first in a series—that it will be publishing over the coming months.

“UKELA’s reports will be as practical as possible,” Andrew Bryce, co-chair of the UKELA Brexit Task Force, said at the conference. “They will be living instruments and we will be updating them as events unfold.”

UKELA’s Brexit Task Force was established in September 2016 to advise on all matters relating to and arising from the U.K.’s decision to leave the EU insofar as this impacts environmental law, practice, and enforcement in the United Kingdom. The 27 members of the task force include experienced environmental law solicitors and barristers, legal academics, and members of the judiciary with representation from all the U.K. jurisdictions.

The Brexit Task Force has been examining the legal and technical implications of separating domestic environmental laws from the EU and how a smooth transition can be achieved. The task force aims to inform the debate on the effect that withdrawal from the EU and draw attention to potential problem which may arise.Bottom of Form

The five reports that UKELA plans to publish over the coming months include:

  • The U.K. and International Environmental Law after Brexit. This report analyses over 40 international environmental agreements to which the U.K. is a party—some currently within the exclusive competence of the EU, some wholly the U.K., and many so-called “mixed competence agreements.”
  • Enforcement and Political Accountability Issues. This report considers the extent to which legal and political accountability mechanisms will continue after Brexit. Even if the government succeeds in its intention of maintaining the substance of existing EU environmental law within the national system, there are significant features of current arrangements for ensuring accountability and compliance which will not necessarily be replicated.
  • Environmental Standard Setting Outside the EU. EU environmental law will continue to evolve after Brexit. This report considers the approach that the U.K. government and devolved administrations should take to setting and revising environmental standards after withdrawal from the EU.
  • The U.K. and European Environmental Bodies. This report identifies over 20 environmental cooperation bodies, networks, and other groups relevant to the implementation, review, or operation of environmental law in the EU. It examines the specific responsibilities of each body, the potential regulatory ‘hole’ that would be left if the U.K. ceased to have membership and the implications this would have for wider environmental governance. The report considers the value of remaining associated with each body post-Brexit and whether this would be legally possible.
  • Exit from the ‘Euratom Treaty’ and its environmental implications. A secure future for the nuclear industry in Britain depends upon provisions of the Euratom Treaty. This paper sets out the risks that departure from Euratom poses for the UK’s continued involvement with nuclear regulatory bodies, external relations with third-party states under Nuclear Co-operation Agreements and for meeting imminent deadlines from international convention review mechanisms.

UKELA announced that it would also provide informed commentary on the environmental provisions in the Repeal Bill throughout its passage through Parliament, identifying legal ‘pinch points’ which will require extra attention. UKELA remained neutral on the Brexit Referendum. UKELA’s full position on Brexit can be found at www.ukela.org/ukelaposition