Environmental protections have been referenced a lot in the context of Brexit. And with good reason: overall, joint action across the EU has been a good thing, enabling us to tackle environmental issues such as pollution and climate change in a coordinated way across 28 different countries. Environmental policy has been an EU competence for decades with the first EU – European Economic Community back then – environmental piece of legislation to protect wild birds adopted in 1979. This was 40 years ago.
As such the prospect of EU exit poses a number of significant risks for our environment and our ability to hold governments to account when it comes to enforcing important legislation, from air quality and climate change to the protection of our species and habitats.
While many ENGOs suggested ahead of the 2016 referendum vote that on the basis of environmental grounds, it would be safer for the UK to remain in the EU, since then ENGOs in Scotland and across the UK have been trying to find ways to ensure our environment does not suffer as a result of Brexit, if and when this happens.
Under any Brexit deal, it is commonly acknowledged that governments across the UK would need to agree on additional measures to safeguard our environment. Indeed, even with a deal the timeframes are tight: if a deal similar to the one being negotiated by the UK Prime Minister and the EU comes to pass, this allows for a transition of up to two years which unless extended would mean the UK and Scotland would need to ensure effective environmental protection and governance mechanisms are in place as of January 2021. So, already there is little time to put together firm legislative and policy proposals to make that happen.
Important proposals have been put forward, particularly the prospect of legislation to replicate important protections, such as the introduction of a Scottish Environment Act as supported by the joint Scottish Environment LINK campaign Fight for Scotland’s Nature. This would see important EU and international environmental principles embedded in Scots law, the creation of an independent watchdog to ensure legislation is implemented and enforced, and ambitious future targets for environmental protection.
But all this does not mitigate against the very real, very imminent and very considerable risks of a No Deal Brexit on 29 March.
Greener UK, a coalition of 14 major environmental organisations, issued a stark warning in its recent update of the UK Environment Risk Tracker. The verdict for all policy areas investigated is one of high risk and Greener UK cautions that “leaving without a deal poses potentially dire consequences for the environment, in the short and longer term”.
This applies to Scotland’s environment, as well.
1. A No Deal Brexit means that the full spectrum of existing environmental protections will not be fully operational on 29 March
The prospect of EU exit led to the need for existing EU laws to be transposed to domestic law in a way that ensures that this legislation can operate post-Brexit. This has led to civil servants in the UK and Scottish Governments reviewing each piece of EU legislation, including environmental legislation, to amend it so it can continue to function as of 29 March.
This arduous process will not be finished by the end of March. Indeed, even for legislation that has already gone through this process, it is anticipated that a further review will be needed to catch any errors. This was to be expected given the enormity of the task and the resources required to support it. But the risk of a No Deal means that the UK Government commitment to have a fully functioning statute book by exit day will not be met.
In addition, environmental NGOs including members of Scottish Environment LINK have expressed concerns about whether the way that EU law is being transposed in domestic law fully retains the spectrum of environmental protections we currently enjoy. This is partly because this process is not replicating the important EU governance mechanisms which ensure that legislation is effectively implemented, as explained below.
2. A No Deal Brexit means Scotland will not have access to EU enforcement mechanisms
A No Deal Brexit means Scotland will no longer be able to have recourse to important EU mechanisms which ensured that environmental legislation was effectively monitored, reported on and enforced.
Of particular concern are the key functions of the European Commission and European Court of Justice in terms of investigating and addressing cases where environmental law was not enforced. The European Commission’s complaints procedure has led to positive results of our environment. It is therefore key that these functions are replicated, if and when Brexit happens.
To address this, Scottish Environment LINK members have called for the creation of an independent and well-resourced watchdog. However, the Scottish Government launched a consultation on this matter only in mid-February and will not have begun serious deliberations on solutions to this issue before mid-May.
What is more, the Scottish Government has not publicised any views about the measures it will take under a No Deal scenario. In other words, there is no publicly available information that provides reassurances about what interim measures the Government is proposing to take forward in the case of No Deal.
This means that on 29 March, in practice, legislation for the environment in Scotland may not only be incomplete, but it will also be less enforceable compared to today.
3. A No Deal Brexit means Scotland’s environment will lose access to EU environmental principles
While the Scottish Government is proposing a duty for Ministers to have regard to the EU’s environmental principles, this will not be in legislation before 29 March. This is because this proposal is being consulted on at the moment, alongside the potential governance concerns and solutions highlighted earlier.
In 2017, Environment Secretary Roseanna Cunningham stated that “the four EU principles of precaution, prevention, pollution at source and ‘polluter pays’… are essential to maintaining Scotland’s environmental achievements”. As part of the EU, Scotland’s courts, businesses and governments have been able to apply the four EU environmental principle in their decision-making. They have formed an essential component of environmental law and underpin most of our environmental legislation.
Under a No Deal Brexit, we will lose the overarching framework for policy-development provided by the EU and underpinned by these principles. Even more worryingly, in that scenario we will have nothing similar to fall back to. Scotland, in contrast to countries such as Wales, France or Switzerland, has not embedded environmental principles in domestic law.
So, while it is comforting that the Scottish Parliament has already voted against a No Deal, it is the ‘meaningful vote’ taking place in the House of Commons that will determine whether a No Deal Brexit is really taken off the table.
Environmental charities from across the UK strongly believe that a No Deal Brexit needs to be averted at all costs. If Brexit is to go ahead, this cannot come at a cost to our environment. We simply cannot afford to unpick environmental protections at a time of global ecological crisis.
By Daphne Vlastari, Scottish Environment LINK Advocacy Manager