Indeed, under the terms of the deal it is possible that EU jurisdiction over UK environmental law has been extended. While this may be good news for the protection of the environment it’s not what most supporters of Brexit were looking for and it could create quick wins for lobbying NGOs such as the RSPB.
In the run up to the end of the Brexit transition period there was a good deal of speculation about what leaving the EU would mean for the aspects of UK law which protect the natural environment such as the Habitats Regulations. Some of my clients delayed submission of planning applications in the anticipation that there could be significant change following the UK’s exit, after all wasn’t that what Brexit was all about; freeing ourselves from EU derived red tape?
We now have the Trade and Cooperation Agreement in place and over the Christmas break I spent some time reading the document to assess the implications of the Deal on EU derived law that governs nature and biodiversity conservation.
The document is long and complex and there will no doubt be a considerable ‘shake down’ period as the full consequences of the Deal become clear and are tested through the domestic courts and arbitration systems which the Deal puts in place.
As someone who takes an interest in nature conservation law the most important part of the text for me is Title XI ‘Level playing field for open and fair competition and sustainable development’. This chapter does what it says on the tin, setting out how the ‘level playing field’ for trade and investment will be maintained and environmental regulation will not be downgraded by either Party to create an economic advantage. The key section is Chapter 7 on Environment and Climate. Article 7.1. of that chapter defines what is meant by “environmental levels of protection” and includes:
“(a) industrial emissions;
(b) air emissions and air quality;
(c) nature and biodiversity conservation;
(d) waste management;
(e) the protection and preservation of the aquatic environment;
(f) the protection and preservation of the marine environment;
(g) the prevention, reduction and elimination of risks to human health or the environment arising from the production, use, release or disposal of chemical substances; or
(h) the management of impacts on the environment from agricultural or food production, notably through the use of antibiotics and decontaminants.”
Article 7.2 then goes on to set out commitments to non-regression from levels of protection. It is worth reading this article in full.
Article 7.2: Non-regression from levels of protection
1.The Parties affirm the righty of each Party to set its policies and priorities in the areas covered by this Chapter, to determine the environmental levels of protection and climate level of protection it deems appropriate and to adopt or modify its law and policies in a manner consistent with each Party’s international commitments, including those under this Chapter.
2. A Party shall not weaken or reduce, in a manner affecting trade or investment between the Parties, its environmental levels of protection or its climate level of protection below the levels that are in place at the end of the transition period, including by failing to effectively enforce its environmental law or climate level of protection.
3. The Parties recognise that each Party retains the right to exercise reasonable discretion and to make bona fide decisions regarding the allocation of environmental enforcement resources with respect to other environmental law and climate policies determined to have higher priorities, provided that the exercise of that discretion, and those decisions, are not inconsistent with its obligations under this Chapter.
4. For the purposes of this Chapter, insofar as targets are provided for in a Party’s environmental law in the areas listed in Article 7.1 [Definitions], they are included in a Party’s environmental levels of protection at the end of the transition period. These targets include those whose attainment is envisaged for a date that is subsequent to the end of the transition period. This paragraph shall also apply to ozone depleting substances.
5. The Parties shall continue to strive to increase their respective environmental levels of protection or their respective climate level of protection referred to in this Chapter. [my emphasis].
It is clear therefore that the Deal clearly binds the UK to maintaining the levels of protection that are currently in place. Chapter 7 also includes a section on enforcement of domestic law (Article 7.5) which seeks to ensure that the UK’s judicial proceedings are effective, while Article 9 deals with how disputes will be settled.
Turning to my emphasis of Article 7.2.2 it is clear that non-regression only applies to anything that would affect trade or investment, however, I find it difficult to think of a situation where significant weakening or reducing environmental protection would not create a competitive advantage. For example, if the UK were to attempt to remove some of the more contentious parts of the Habitats Regulations (such as the requirement to prove the absence of adverse effects of a plan or project upon a protected site) it would clearly give the UK an advantage and tip the level playing field.
Evidently, as I stated above there is much to be interpreted in the Deal and no doubt my legal friends will be feasting on this text for many years to come. My initial assessment is that the Deal means that for the foreseeable future nature conservation law will remain unchanged and indeed any new law coming forward (such as the Environmental Bill) will need to be thoroughly assessed against Chapter 7 of the Deal to ensure it is compliant with non-regression. One could argue the EU now has an even wider remit in the UK environmental legislation as prior to Brexit the EU jurisdiction related only to the Directives but now the EU has a say in any environmental legislation that could have an impact on trade and investment.
Finally, it has occurred to me that the Deal puts the likes of the RSPB or other campaigning NGOs in a very powerful position. If the UK government were to try to down grade the protection afforded to birds or their habitats (for example) the RSPB would only need to flag the issue with the EU and, if the EU considered the case were sound, it could trigger the dispute settlement process which at first reading seems to be more rapid than bringing a case through the Court of Justice of the European Union.
Please join in the conversation. As professionals, we need to mull-over what the impact on our industry and our clients’ developments might be and how we can navigate any opportunities that arise.
Andrew Baker FCIEEM
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