Brexit and Environmental LawEnforcement and Political Accountability Issues

July 2017

The UK Environmental Law Association is the foremostbody of environmental lawyers in the UK. UKELA aimsto promote better law for the environment and toimprove understanding and awareness ofenvironmental law. UKELA is composed of 1,400academics, barristers, solicitors, consultants, andjudges involved in the practice, study and formulationof environmental law across England, Scotland, Walesand Northern Ireland.

UKELA remained neutral on the Brexit Referendum. Inorder to ensure regulatory stability and continuedenvironmental protection UKELA considers itimperative that the UK s current environmentallegislation is preserved pending proper review, andfull and open consultation on options for change.UKELAs full position on Brexit can be found atwww.ukela.org/ukelaposition.

UKELAs Brexit Task Force was established inSeptember 2016 to advise on all matters relating toand arising from the UKs decision to leave theEuropean Union insofar as this impacts environmentallaw, practice and enforcement in the UK. The TaskForce has been examining the legal and technicalimplications of separating our domesticenvironmental laws from the European Union and themeans by which a smooth transition can be achieved.With the assistance of UKELAs specialist workingparties the Task Force aims to inform the debate onthe effect of withdrawal from the EU, and drawattention to potential problem which may arise.

The UKELA Brexit Briefing Papers have beenproduced under the guidance and approval ofUKELAs Brexit Task Force chaired by Andrew Bryceand Professor Richard Macrory, and with input fromrelevant UKELA Working Parties and individuals.They do not necessarily and are not intended torepresent the views and opinions of all UKELAmembers.

This report is the first in a series to be published byUKELA on the implications of Brexit forenvironmental law.

Other titles will include:

1 Brexit and Environmental Law: Exit from theEuratom Treaty and its EnvironmentalImplications

2 Brexit and Environmental Law: the UK andInternational Environmental Law after Brexit

3 Brexit and Environmental Law: EnvironmentalStandard Setting Outside the EU

4 Brexit and Environmental Law: the UK andEuropean Environmental Bodies

First published in Great Britain in 2017 by: UK Environmental Law Association (UKELA)One Glass Wharf, Bristol, BS2 0ZX

www.ukela.org

UK Environmental Law Association

ISBN: 978-1-9997986-1-1

All rights reserved. Without limiting the rights under copyright reserved above, no part of this publication maybe reproduced, stored or introduced into a retrieval system, or transmitted, in any form or by any means(electronic, mechanical, photocopying, recording or otherwise), without the prior written permission of boththe copyright owner and the publisher of this book.

1

Table of ContentsExecutive Summary ....................................................................................................... 3

The Context ..................................................................................................................... 5

The supervisory role of the European Commission................................................. 7

Implementation Reports............................................................................................... 8

Reporting requirements post-Brexit .......................................................................... 9

Accountability of government and public bodies for discharging theirenvironmental legal obligations ................................................................................. 10

The need for a supervisory body................................................................................. 11

Appendix 1 Environmental ombudsmen and courts around the world.............. 15

Appendix 2 First-tier (Environment Tribunal) England and Wales........................ 21

2 Brexit and Environmental Law

Enforcement and Political Accountability Issues 3

The Government stated in the White Paper on theRepeal Bill that it will ensure that the whole body ofexisting EU environmental law continues to haveeffect in UK law. This is consistent with UKELAs viewthat the preservation of existing environmental law isimportant for regulatory stability and environmentalprotection pending a proper and open review of ourlegislation. The focus of attention of the EuropeanUnion (Withdrawal) Bill will be on the challenges ofthe effective roll-over of the black letter of EU law. Butthere are significant features under the EU systemconcerning legal and political accountability which areequally important for an effective system ofenvironmental law. A critical question is whether theywill be replicated within our national system in future.

Implementation Reports

Most EU environmental laws have required MemberStates to provide the European Commission withregular reports on their implementation in practice.These reports can provide vital information onproblem areas with the legislation and itseffectiveness. These obligations have not generallybeen transposed into national environmental law, andthere is therefore every likelihood they will be lostpost Brexit.

Systematic reporting on the implementation ofindividual laws has not been a general feature in ournational environmental law. We believe it is a gooddiscipline for government. It is all too easy to imposenew legal requirements without regularly assessingtheir actual implementation and effectiveness inachieving environmental outcomes. The principle ofsystematic reporting under EU environmentallegislation should be continued after Brexit but withreports to Parliament and the devolved Assemblies.

Accountability of Government andpublic bodies for discharging theirlegal obligations

Ensuring compliance by industry and individuals withtheir responsibilities under existing environmental lawis the task of local government and the specialisedenvironmental agencies. They must be adequatelyresourced to continue carrying on this vital function.Here, however, we are concerned with the legal dutiesof government and other public bodies underenvironmental law.

One of the functions of the European Commission todate has been to monitor the extent to which MemberStates comply in practice with the commitments they

have made under EU laws. The Commission employsdistinctive enforcement powers which can eventuallylead to action before the European Court which haspower to impose financial penalties on MemberStates. The Commission had developed a citizenscomplaint procedure under which anyone, free ofcharge, can alert it to a possible infringement. The vastmajority of infringement proceedings are settled indiscussion and negotiation without the need to go tocourt.

These powers are available in all areas of EU law, butthe majority of infringement proceedings have beenbrought in the environmental field. There are goodreasons for this. In many areas of European Union law(such as competition law, employment rights, internalmarket) there are individuals or bodies with clear legaland economic interests to protect and defend. Theenvironment is in a different position. It may beunowned, and while environmental organisations arecommitted to promote the general interest of theenvironment they vary in strength and coverage, andcannot be expected to take on the role of systematicsupervision. In this sense the environment can all tooeasily die in silence.

Post-Brexit the supervisory role of the Commissionand the citizens complaint procedure will disappear.The Government to date has suggested that in futurelegal accountability can be handled solely by ordinaryjudicial review brought by environmental NGOs.Judicial review can provide a powerful long-stopcheck, but we question whether the process can initself replicate the more systematic supervisionhitherto conducted by the European Commission.Apart from the costs involved, judicial review is ill-suited to resolving issues by discussion andnegotiation which has been a valuable feature of theCommissions investigatory functions.

A more imaginative approach

The loss of the European Commissions role asguardian of the treaty following Brexit presents anopportunity to innovate and improve on our domesticmechanisms for ensuring that duties on governmentand other public bodies are properly implemented.Rather than a single solution for legal accountabilitythe issue is best addressed with a range ofmechanisms, of which judicial review would form oneelement.

Other jurisdictions have recognised the particularvulnerability of the environment, and the need toestablish a specialised independent supervisory body.Examples include the New Zealand Parliamentary

Executive summary

4 Brexit and Environmental Law

Commissioner for the Environment, and variousspecialised environmental ombudsman in otherEuropean countries. We should learn from theirlessons. Such a body could investigate cases of allegedfailures of public duties, and provide a valuable sourceof independent information to Parliament, thedevolved assemblies and their relevant committees.

But whatever processes are developed, someenvironmental disputes will require resolution by anindependent court or tribunal. We need to considerhow we can strengthen the capabilities of our existingsystem to handle environmental disputes involvingpublic bodies in a less costly and more effective way.

Post-Brexit, the United Kingdom should aspire to be aleader in the design and implementation of effectiveenvironmental law, building on its existing strengthsand addressing areas of weakness. We support the UKGovernments goal to be the f