Lawyers seek to retain EU environmental regulation post-Brexit
Environmental lawyers in the UK are establishing a taskforce to prevent EU environmental protection legislation being discarded after Brexit. The taskforce is being led by Richard Macrory, professor of environmental law at University College London. At present, over 1,100 pieces of EU legislation, relating to issues such as chemical regulation, marine and coastal policies, noise and air pollution, waste and recycling, soil quality, climate change and conservation, pertain to UK environmental protections. The taskforce will publish five reports highlighting central aspects of EU law and governance which must be retained or replicated in UK law.

A taskforce of environmental lawyers is drawing up plans to stop thousands of EU rules protecting rivers, wildlife, coastlines and air quality from being dropped by the government after Brexit.

The EU is the source of most environmental protection in Britain and for 40 years has acted as a monitoring body and enforcer, with powers to fine member states for breaches in the law.

But the process of transferring EU laws, directives, regulations and principles – such as the “polluter pays principle” – into UK law under the government’s great repeal bill presents huge challenges, environmental lawyers say. There are fears that the complexity and scale of the work, and political resistance to European regulations will mean key protections are lost during the rollover into domestic legislation.

Richard Macrory, professor of environmental law at University College London, is leading the taskforce of lawyers. He said: “The last thing we want to find in Britain are a whole lot of legal gaps in the protections. The rollover [in the repeal bill] is going to be straightforward in some areas and more challenging in others. And in some areas unless there are particular agreements made with the EU it is going to be not at all easy.”

His team is made up of members of the UK Environmental Law Association (Ukela).

More than 1,100 pieces of EU legislation relate to the environment. These include chemicals regulation, marine and coastal policies, laws on noise pollution, the quality of our soil, waste and recycling, air quality, climate change and the protection of species.

One of the key areas Brussels has been responsible for over the last 40 years is enforcement of legislation through the European commission and the court of justice of the European Union – where proceedings against member states who have failed to comply with their obligations can be taken.

After Brexit there will be no equivalent monitoring and enforcement body which has powers to levy fines to make sure the UK government abides by environmental protections.

Macrory said most cases brought before the commission in the past had involved the environmental sector.

“One of the most important functions of the EU has been to supervise how member states implement their obligations,” he said. “These processes apply to all areas of law but the majority of cases have been brought in the environmental sector. There is a reason for that. In most areas of law there are very clear economic and legal interest groups who will protect their rights.”

But he said the environmentwas unowned and, quoting the veteran environmental lawyer Ludwig Krämer, added: “The environment dies in silence.”

Ministers told the House of Lords this year that the enforcement role could be carried out by UK courts via judicial reviews raised by NGOs or individuals. But Macrory said these were costly and complicated.

“So will something be replicated here after Brexit?” he said. “The government response to date has been rather unimaginative and minimalist – they say we can rely on judicial reviews brought by NGOs.

“We will question whether relying on judicial review is a sufficient substitute for a more systematic and independent supervisory function performed by the commission.”

He compared taking a judicial review – which costs as a minimum thousands of pounds – with a citizen complaint, which an individuals can take to the European commission for the price of a stamp if they believe their government has not upheld environmental protections or broken laws relating to the environment.

Sarah Mukherjee, director of environment for Water UK, which represents all water companies, recently told a Lords inquiry on the impact of Brexit on the environment, it was the ability to impose financial sanctions – something the British supreme court could not do – which focused government’s mind.

“Governments pay a lot of attention to the risk of being infracted because it is very expensive and it is not brilliant for your reputation,” she said.

The Lords EU committee on Brexit: environment and climate change concluded in its inquiry that judicial reviews in domestic courts would not amount to a sufficient enforcement body.

Peers said: “The evidence … strongly suggests that an effective and independent domestic enforcement mechanism will be necessary in order to fill the vacuum left by the European commission … such enforcement will need to be underpinned by judicial oversight and we note the concerns.. That existing domestic judicial review procedures may be inadequate and costly.”

Macrory and his team will publish five reports on key areas of EU law and governance which must be retained in British law or replicated in the coming weeks.