giovedì, Maggio 30, 2024
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Post-Brexit: the future of Enviromental Law in UK

At the beginning of this month, the UK has officially (and after a long-troubled path) exited the European Union. Fortunately enough, the withdrawal has been orderly in the sense that an agreement has been approved by both blocks and sets out the duty of the UK to keep contributing to the Union’s budget for the rest of the year, as well as the consesus on the borders on the shared geographical territories (in primis, on the island of Ireland) and on citizenship rights of Europeans in the UK and vice versa[1]. The latter’s protection, in particular, has been ensured thanks to a mutual understanding prior to the finalisation of the Withdrawal Agreement (WA) for the sake of legal certainty. This implies the continued exercise of the right to freely move and work in the place of residence for all citizens[2].

The Transition Period (TP) and Institutional Changes

The WA will be valid until the end of the Transition Period (31st December 2020), the time lapse within which the EU and the UK need to agree on their future relationship unless a prorogation is requested. In these eleven months, the UK will still have access to the Single Market and be subject to the EU acquis[3].

Major changes have been however set in motion: first of all, the 73 British MEPs have ceased their mandate. In order to offset such underrepresentation – as a consequence of demographic change in the EU – 27 seats have been at the same time redistributed to some other MS, while the remaining 46 have been put on hold for future EU Member States. The total amount of MEPs has hence shrinked from 751 to 705[4]. Closely connected comes the second key change: the UK neither takes part in the legislative process at EU level any longer, nor has a say on the annual budget, although it will still need to contribute to it. Third, both the British Prime Minister and Commissioner will likewise no longer represent the country in the European Council and European Commission respectively.

Future Relationship and the Question over Future Environmental Law

This notwithstanding, the Brexit process is far from being over: In the upcoming months, the EU27 and the UK are going to find an agreement on future relationship between them, the starting point being the non-legally binding Political Declaration that has accompanied the WA’s publication[5].Trade, fisheries, freedom of movement, healthcare, defence and judicial cooperation are among the various matters of debate[6]. Besides, there is one  field which deserves special attention, environmental law.

Currently, and until the end of the TP,  this domain is still regulated by EU Law, a shared competence between the Union and its Member States[7]. As the need to preserve natural resources, prevent biodiversity loss, and more generally fight climate change are common challenges, which also extend beyond European borders, it will become vital to ensure an agreement whereby efforts by the two blocks move in the same direction and on the same wavelength.

The reason is that to date the EU has achieved great progress in addressing the environmental threats via the establishment and implementation of ambitious standards of protection, matched with a comprehensive regulatory framework, and adequate enforcement mechanisms and incentives to turn to a Green Economy[8]. With the Brexit, however, a daunting scenario looms large: that no agreement on upholding the current legislation will be found, and so differential regulations in the former MS will ensue.

The different regulatory framework in question has been, in point of fact, recently issued by the UK Government under the name of Environment Bill, which is now for the Parliament to debate on for the adoption[9]. Arguably, this Bill would water down European’s environmental principles and standards, and so wipe out all the achievement hitherto accomplished – unless, we must keep in in mind, the matter will be object of consensus during the negotiations on the future relationship.

The Enviromental Bill’s positive features

As it currently stands, the Bill has the merit of setting out two new important commitments: to stop the export of public waste to non-OECD countries; and to carry out a two-year review of significant developments in international legislation[10]. Besides, some elements which featured also the previous versions of the Bill have remained, including the Government’s intention of banning the single-use plastic items and incentivise reusable alternatives[11], as well as of setting out an ‘ambitious’ target to reduce fine particulate matter, which is extremely dangerous for human health[12].

The Shortcomings

Evidently, many criticalities emerge: first of all, the mentioned commitments are a mere pledge by the Government without any legally binding force.  Second, even if they should turn into written law, they would not come into force before October 2022 – as wide Government consultation is needed beforehand[13].

A political aspect must also be considered: the current UK Government has repeatedly declared the intention of concluding close trade agreements with the USA, whose Presidency is known for prioritising the oil industry over environmental change concerns. Hence, the  hazard  might be a race to the bottom[14] whereby North American polluting industries can produce in a post-Brexit UK which is no longer governed by strong environmental standards.

What shall we expect?

In light of these considerations, what is clear is that nothing is clear. Discussions on future relationship have just begun and the focus seems to be on topics different from the Environment, at least from the Withdrawing State side. At the same time, however, the EU has a political environment-centred Agenda[15], hence giving hope that this eco-commitment will feature in several domains of a different kind.

 

[1] https://www.gov.uk/government/publications/new-withdrawal-agreement-and-political-declaration.

[2] Ibid.

[3]https://www.consilium.europa.eu/en/press/press-releases/2020/01/30/brexit-council-adopts-decision-to-conclude-the-withdrawal-agreement/.

[4] https://www.europarl.europa.eu/meps/en/home.

[5]https://ec.europa.eu/info/european-union-and-united-kingdom-forging-new-partnership/future-partnership_en.

[6] Ibid.

[7] Art. 4.2.e, TFEU.

[8] https://ec.europa.eu/clima/policies/eu-climate-action_en.

[9]https://www.gov.uk/government/publications/environment-bill-2020/30-january-2020-environment-bill-2020-policy-statement.

[10] https://www.letsrecycle.com/news/latest-news/enhanced-environment-bill/.

[11] Ibid.

[12]https://www.theguardian.com/environment/2020/jan/30/plastic-waste-exports-targeted-in-new-environment-bill.

[13] Ibid.

[14]https://www.businessgreen.com/news/4009922/environment-leaves-wriggle-weaker-standards-brexit-green-warn.

[15] The European Green Deal – see for more detail: https://www.iusinitinere.it/a-green-europe-the-proposal-for-a-european-green-deal-25045.

Margherita Trombetti

Born in Bologna in 1994, she graduated from Alma Mater Studiorum - University of Bologna with a thesis in EU Law on The Consequences of Brexit on Citizenship rights. Currently enrolled in a Master in International and European Union Law (LL.M) at Tilburg University. Writing on legal issues and topics is one of the ways through which she expresses her dedication to International and EU Law.  Besides, she is VP in the traineeships area of the ELSA Bologna team and constantly looks for new stimulating challenges. Her project is to become a EU Law experts, with a focus on environmental law and Human Rights. She's always down for a cup of tea and some chocolate, as well as for travelling around Europe with her beloved backpack.

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