effect of the United Kingdom’s decision to leave the European Union on environmental law.

QUESTION ONE

INTRODUCTION-effect of the United Kingdom’s decision to leave the European Union on environmental law.

In June 2016, through a referendum, the United Kingdom declared its intention to exit the European Union, commonly referred to as (Brexit). Therefore, this paper seeks to extensively deal with the effect of the United Kingdom’s decision to leave the European Union on environmental law.  The Treaty on European Union has clearly laid out stipulations about a member state’s decision to leave the European Union.[1] The member state must carry out negotiations and conclude with an agreement concerning its withdrawal from the European Union from the treaty. After negotiation and conclusion have taken place, the member state seeking to leave will be guided by the agreement. For instance, the United Kingdom is presently governed by (Withdrawal) Act and the European Union (Withdrawal) Agreement. According to the agreement, The Withdrawal Act and the withdrawal agreement are set to be operational up until December 31, 2020. Generally, when member states enter into negotiations seeking to withdrawal to leave the union, the agreement entered into by the parties has operation in the member state for a period not exceeding two years.

To achieve the intended purpose of answering the question, this paper is clearly guided by Colin R. Reid’s article titled Brexit and the United Kingdom Environmental law’s future. This paper is subsequently divided into several chapters, all of which have the sole purpose of critically expounding this topic to arrive at a perfect, commendable conclusion. The first chapter of this paper deals with the definition of environmental law. The second chapter deals with the current relationship between the United Kingdom and the European Union and its advantages. The third chapter of this research paper deals with the United Kingdom’s decision to withdraw from the European Union (Brexit). Further, the fourth chapter deals with International obligations with regards to environmental-related issues. Devolution forms the fifth chapter, and the accountability of government forms the sixth chapter.

Environmental law

Environmental law is defined as the body of law or a network that consists of all laws and regulations about protecting the environment. National resource law having the idea of environmental pollution at its center also relates to environmental law. The main purpose of environmental law is to protect the environment as well as human health by extension. Environmental protection seeks to attain a balance between human activities on the environment and human protection. The balance seeks to evaluate how the environment is used critically and to ensure that the various practices used by human beings on the environment do not negative impacts on the environment, therefore causing harm.[2] To achieve its purpose of environment and human protection, environmental law is specifically concerned with certain areas: waste management, the safety of chemicals, the management of waste, water quality, air quality, cleanup of contaminants, and resource sustainability.[3] Without environmental laws, pollution, response to disasters, and even contamination areas would go unregulated. Environmental law protects the land, water, air, and soil. Negligence of environmental laws attracts jail time in extreme cases and community service or fines for minor offenses. International environmental law is a body of law created by different states for states. It concerns itself with the attempt or the need to control pollution within a sustainable development framework plan.[4] International Environmental law is also concerned with governing different environmental problems that arise between states. Ozone layer depletion, climate change, desertification, air, hazardous substances, sea, marine resources conservation, nuclear damage, water, population, trans-boundary water pollution, and land are topics covered by International Environmental Law.[5]

The current relationship between the United Kingdom and the European Union

The European Union is an international organization that consists of approximately 508 million people from 28 member states. The United Kingdom is a member of the European Union, and she joined the European Economic Community as it was then referred to as on January 1, 1963. The United Kingdom has negotiated certain exceptions of the European Law to suit its preferences. One important guiding principle of the European Union is that it only acts within the scope of the member states’ powers.[6] The European Union Law applies to member states in the following ways; some EU Laws are directly applicable.[7] States are under an obligation to formulate a law that is consistent with the EU Law. The European Court of Justice guides the national courts. Any state that is committed to promoting the European Union’s values can join the Union. The values are equality, freedom, respect for human rights, the rule of law, upholding human dignity, and democracy.

Currently, the United Kingdom is regulated by the European Union (Withdrawal) Act, a treaty that was agreed upon and negotiated between the United Kingdom and the European Union. Under the Act, the United Kingdom is to remain a member of the European Union until December 31, 2020, commonly referred to as a stand-still period. During that period, the European Union Law will continue to be operational in the United Kingdom, and it will be binding. Section 2 of the European Union Withdrawal Act states that EU- derived domestic legislation, as it affects domestic law immediately before exit day, continues to affect domestic law on and after exit day.[8]. The European Union was mainly formed to promote trade and commerce in the region. Before the EU membership, member states had different legislation governing their Environmental Law. However, the individual member states national laws caused chaos and led to disharmony instead of the unity sought in the community. The European Union serves as a signatory to several treaties, which automatically translate to individual states. The United Kingdom is a member state is also bound by the same treaties. The United Kingdom’s Environmental laws have a close resemblance to other environmental laws of different member states, which is attributed to members of the European Union.

The Advantages of European Union Membership

In matters specifically relating to the environment, the following are the advantages of European Union member states. First, the European Union provides relevant means for calling the government to account. This is because the European Union Law is binding to the member states. Once it is formulated or enacted, all members are required to act per the law. Secondly, the European Union has strict standards, and it imposes clear targets that must be met by member states. 20% reduction in greenhouse gases release by 2020 is a good example of a clearly imposed target. On the other hand, the fixed quality standard ensures that any consumer’s quality is the best and suitable for use by any consumer in any member state. Other environmental advantages include the condition and standard of beaches and water bodies have improved in these countries because of the Union’s directive requiring countries to formulate laws corresponding with the Bathing Water directive.

Other advantages enjoyed by member states include political, legal, and economic benefits.[9]. The economic benefits enjoyed include the boost of the block’s GDP, removal of non-tariffs in the region, which has led to the reduction of items’ costs and prices, and consumers can easily afford the products and the creation of the social security fund in the Union.  Aside from economic benefits, citizens of the member states can freely move from one country to the other. This movement of people and labor enables the creation of a free economy. Consumers enjoy other products and services since the Union protects them from the abuses of cartels and monopolies. The European Union has on several occasions’ deregulated airlines[10] and other service providers where consumer rights are abused or violated.

The United Kingdom’s decision to withdrawal from the European Union and the effect

After the end of the stand-still period, the Act and the agreement will enable the UK’s effective transition from European Union Law to its existing legislation. However, the UK may continue applying European Union Law only if the Union and UK reach a mutual agreement. Article 127 of the Withdrawal Agreement states that a member state shall continue to be governed by the European Union for the stand-still period up until the period expires. After the expiration of the time given, the European Union law ceases to bind the state, and the state can formulate new laws or continue applying the old ones to transition.

Concerning legal structures, the European Union law and, by extension, International Environmental law has authority within the United Kingdom’s jurisdiction.[11] However, Parliament may decide to do away with that law by repealing it, which means that the European Union law ceases to have authority in the state. However, permanently getting rid of European Union law may be an uphill task. After close to forty years of the United Kingdom’s membership in the European Union, it has borrowed a lot of European law legislation. As it has earlier been outlined in this paper, the United Kingdom’s laws relating to environmental law and other law areas have a close resemblance with other member states of the European Union. Therefore, Brexit may pose a challenge to areas where the United Kingdom’s law does not stand alone. The United Kingdom has, over the years, put measures in place that authorize public bodies to support the relevant authority and purposefully assist with enforcement. This particularly relates to directly applicable European Union Regulations and the law relating to Treaty provisions.[12] In the United Kingdom, directives have generally been the leading mechanisms used to make law. Through directives, the European Union requirements have been given full effect and legal form. The challenges that might affect environmental law following the United Kingdom’s withdrawal from the European Union are; first, the UK does more than what is usually required. That is concerning the implementation of the European Union Law. For instance, Scotland’s Act of 2005 on environmental assessment.[13] applies the plans related to environmental assessment better than the stipulations of European Union laws. The United Kingdom legislation makes express and specific reference to European Union law is the second challenge posed to the United Kingdom’s withdrawal. Due to the European Union’s express references, it is clear that the United Kingdom law is not self-sufficient or self-contained. A specific example concerning environmental law relates to the definition of waste. The United Kingdom’s legislation has not defined waste, and the state relies on the definition provided by the European Union Law. Therefore, the United Kingdom cannot cancel all European Union Law regulations because it has a significant impact on the state’s law as it has been established in this paper. However, the United Kingdom may critically examine and sort out various legislation directly or indirectly linked with the European Union. After sorting out the legislation, those directly linked with the European Union Law may be amended, replaced, or done away with to avoid creating loopholes in law if they are entirely done away with.

International obligations of states with regards to International Environmental law

Once a state becomes a member of the European Union, it acquires certain rights and obligations.  These rights and obligations also extend to the individual citizens of the state, its other organizations, and businesses. These rights and obligations do not arise from a single policy area. Rather they arise from multiple policy areas such as justice and home affairs and rules dealing with single markets. The laws regulating states on environment-related issues are formulated jointly between the council of the member states and the European Parliament. European Union members make decisions by voting. Alternatively, the European Union only set minimum requirements of the procedure and bare minimum standards. Therefore, the states must formulate more stringent regulations relating to environmental laws set to govern the state. A perfect example of a stringent directive introduced in the United Kingdom from the European Union is the Urban Waste Water and Bathing Water Directives to conform to the European Union’s law on bathing water and waste. Member states are also required to formulate and come up with penalties and punishments for environmental lawbreakers. Member states through the European Union also have an obligation to promote the following rights before certain decisions are made regarding the environment. The citizens’ right to have access to information dealing with the environment, right to public participation on environment-related topics. Additionally, environmental impact tests relating to project programs and plans as well should also be conducted.

Further, concerning climate change, member states have an obligation to work towards fulfilling the European Union’s 2020 target. The target focuses on the improvement in energy efficiency should be 20%, the greenhouse gas emissions will significantly reduce by 20%, and 20% of the block’s energy will be renewable.

European Union member states’ energy-related obligations are; the members must have available minimum stocks for oil. The stocks are to be released in instances where there is a shortage of oil in the market. This strategy prevents the energy crisis in the block. Further, member states are obligated to enforce minimum environmental standards in the gas and oil offshore. Member states must set minimum energy taxation rules and ensure that carbon dioxide waste emitted is safe. The granting of petroleum licenses without discrimination in the block is an obligation member states must strive to fulfill.

The United Kingdom’s Devolution and the European Union

The new Labor government launched a project for constitutional modernization that was wide ranged. In the campaign for constitutional modernization, devolution, among other features, were the key elements. Subsequently, under devolution arrangements, matters relating to the enforcement of European Union Laws were specifically dealt with by the United Kingdom’s national government. European Union law has a major impact on the formation of national laws. The law formulated in Northern Ireland, Scotland, and Wales is closely connected with the European Union Law. Therefore, this resulted in the growing campaigns of the named regions to want to be included in the interpretation of European Union Law at the national level. For instance, Scotland’s First Minister in a speech underlined Scotland’s commitment to ensure that the region’s policy closely aligned with European Union Law. To back this stand, the First minister stated categorically that the motivation following the support was based on the need to protect the peace and the health of citizens of Scotland, to make it easier for Scotland to return to the European Union when the time is right and further to protects its international reputation. Executive and legislative bodies were created in Wales, Scotland, and Northern Ireland after the enactment of Devolution settlements in 1998. Despite the differences in power and law interpretations among the three countries, environmental law is one area that is applied commonly in the three countries. The fact that European Union Law, to a great extent, forms the cornerstone of the countries’ environmental law has been a limitation towards the complete splitting of the three countries. Further, devolved administrations are prohibited by the European Union from acting in ways contrary to or incompatible with the stipulations of the Union.

Therefore, what is the effect of Brexit on devolution?

Once the United Kingdom exits the European Union, it means that the European Union law will have minimum or no authority in the state. With this stipulation, the devolved administrations may also opt-out from the main government to form their own individual environment laws. This may happen because, unlike when the United Kingdom was a member state of the European Union, being a non-member means that the devolved administrations can exercise unlimited authority. One of the purposes and aims for devolution is to promote substantive and reasonable differences. However, when those differences in ideologies lead to misinterpretation and abuse of the law, they are not worth being applauded. Consequently, to curb this challenge, countries need to develop new mechanisms to help the country tackle different appropriate or coordination levels for particular issues.

Despite the United Kingdom’s exit from the European Union, it will still be bound by the many International treaties it entered into while still a member. Under the Aarhus Convention, the United Kingdom will still be under obligations to ensure citizens have access to information, public participation, and promote access to justice.

Bathing water standards, access to environmental information, environmental assessment, and Birds and Habitats Directives are new areas in environmental law. These have constantly been introduced through various innovations. The United Kingdom’s government invested many resources to quickly build new and upgrade existing sewerage treatment systems after the bathing water standards were set.

Government accountability

This paper has highlighted that the European Union Law binds member states to the European Union. Failure to abide by the law would constitute a breach of the state’s compliance. The European Court of Justice may also be used to ensure there is compliance. Therefore, despite the United Kingdom’s exit from the European Union, the national courts are also obligated to make authorities fulfill their compliance with the long-term promises embodied in the European Union Law.

Conclusion

The United Kingdom will successfully exit the European Union on January 1, 2021. Afterward, the UK will determine what will happen with the European Union Law that it inherited. As this paper has established, that might prove not easy due to over-borrowing of European Union Law into the UK legislations. Regarding environmental law, the United Kingdom and its devolved administrations may either decide to disregard European Union law completely or continue applying it. On the same view, dismantling the European Union environmental law might pose a huge challenge because most of the environmental’s laws originate from the European Union. Even though the European Union has some flaws, it has managed to provide a stable legal framework on the environment, which keeps holds governments accountable and forces them to live up to their obligations.

Bibliography

Statutes/ Treaties

Environmental Assessment Scotland Act, 2005.

Europeans Communities Act, 1972.

European Union (Withdrawal) Act, 2018.

Treaty on the Functioning of the European Union, 1958.

Books

Richard J Lazarus, The Making of Environmental law. (University of Chicago Press, 2008).

Lakshman D Guruswamy, International Environmental Law in a Nutshell (West, 5^th ed, 2017).

Journals/ articles

Alan Dashwood, ‘Relationship between the Member States and the European Union/ European Community,’ Common Market L. Rev. (2004) 41, 355.

Colin T Reid, ‘Brexit and the future of UK environmental law,’ Journal of Energy & Natural Resource Law. (2016)34, pp 407-415.

Daniel Bodansky, International environmental law, (2007).

Tejvan Pettinger, Benefits of the European Union (2016) <https://econ.economicshelp.org/2007/03/benefits-of-european-union.html> ‘accessed on November 25, 2020.’

Ved Nanda, International environmental law &policy (1995).

[1] Treaty on European Union 1958, Article 50.

[2] Richard J Lazarus, The Making of Environmental law. University of Chicago Press, 2008.

[3] Ved Nanda, ‘International environmental law &policy’ (1995).

[4] Daniel Bodansky, International environmental law, (2007).

[5] Lakshman D Guruswamy, International Environmental Law in a Nutshell (West, 5^th ed, 2017).

[6] Alan Dashwood, ‘Relationship between the Member States and the European Union/ European Community,’ Common Market L. Rev. (2004) 41, 355.

[7] Treaty on the Functioning of the European Union 1958, article 288.

[8] European Union (Withdrawal) Act of 2018.

[9]  Tejvan Pettinger, Benefits of the European Union (2016) <https://econ.economicshelp.org/2007/03/benefits-of-european-union.html> ‘accessed on November 25, 2020.’

[10] ibid

[11] Europeans Communities Act, 1972.

[12] Colin T Reid, ‘Brexit and the future of UK environmental law,’ Journal of Energy & Natural Resource Law. (2016)34, pp 407-415.

[13] Environmental Assessment Scotland Act, 2005.