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The EU legal framework is in some respects very well suited to effective environmental regulation. For example, it can:
This overarching structure confers stability and business certainty on the EU market. It is also (arguably) well suited to effective long-term environmental policy. For example, the setting of long term environmental objectives and targets (e.g. emissions or waste reduction targets) is dealt with at EU level and is removed from the political cycle in individual member states.
On the other hand, the government has little flexibility on the implementation of laws relating to the environment, including the timing of measures and the extent of regulation. Because of this it can be difficult to adapt UK legislation to respond to the UK's needs.
However, any disadvantages associated with the inflexibility of the EU framework need to be balanced against the advantages of a "level playing field". The EU environmental law framework ensures the enactment of environmental measures in the UK which are, by definition, consistent with legislation enacted in other EU members states. Arguably this encourages investment and business mobility across national boundaries. And, although influencing EU environmental policy can be difficult and frustrating both for UK government and commercial interests, whilst it remains a member of the EU, the UK government and business is entitled to and regularly does influence the development of EU environmental law at EU level.
Some sectors in fact benefit from strong regulation from Brussels. The waste and renewables sectors are good examples of this. In the waste sector, stringent controls from the EU on landfill and challenging targets for recycling and recovery rates have driven substantial investment in the sector. In the renewables sector, EU targets for renewable generation have driven substantial investment, particularly in wind and solar technologies.
But the UK Government has by no means unequivocally welcomed EU environmental legislation. It has reacted differently to different areas of EU regulation. Some proposals that have come out of the European Commission would under no circumstances have been adopted by the UK Government voluntarily. For example the UK has been opposed to a target for renewable energy and energy efficiency and has not supported aspects of the "circular economy" package currently at proposal stage in the EU. Another example is the Offshore Safety Directive, which was adopted in the wake of the Deepwater Horizon oil spill in the Gulf of Mexico. The UK was opposed to new legislation in this area, taking the view that the UK had a world-class regulatory regime for oil and gas and did not need new EU legislation. Nonetheless a new Directive on Offshore Safety was passed, and had to be implemented in the UK.
There are some areas of EU environmental law the development of which has actually been led and influenced by the UK, such as the pollution control regime and the Water Framework Directive. These areas of EU law are in some important respects modelled on the UK regime.
Some regulatory mechanisms work better at European level, such as the European Chemicals Agency. This organisation carries out work in regulating chemicals within the EU, which is expensive, technical and resource heavy, and benefits from the economy of scale achieved by an EU-wide framework. It would be difficult for the UK to replicate its work as a single nation.
EU environmental law, including new EU laws, will remain binding on the UK at least until such time as it exits the EU.
If the UK negotiates a Brexit package which includes single market access (like Norway) it is likely that the UK will continue to be bound by most EU environmental legislation, including any future changes and revisions to the regulatory framework. A few areas of EU law, e.g. conservation law such as the Habitats and Birds Directives and water quality legislation, would probably not have to be retained as part of a single market deal. However, we suggest the UK is likely to retain or replicate those areas of environmental protection.
If the UK does not negotiate access to the single market, but exits the EU anyway, the position is less straightforward. In that scenario, the UK will, starting on the day it leaves the EU, no longer be obliged to apply EU environmental laws. However, in practice, the status of UK environmental rules which are derived from EU legislation, and the extent to which the UK decides to continue to apply such rules, will be in the hands of the government of the day. We consider below some of the issues that are likely to arise if the UK does not negotiate access to the single market.
Law stated as at 11 July 2016
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