The EU is internationally recognised as a leader in sustainability, having enacted a number of laws and policies aimed at promoting a green transition and sustainable development. The UK has historically been bound by EU environmental law and has largely adopted the same approaches. However, since Brexit, the UK has been free to develop its own environmental policy – something the country has been doing over the past several years.

This change has brought a number of challenges and has been a topic of hot debate among experts. In order to better understand this discourse, I spoke to Professor Robert Lee and Simon Boyle, renowned experts in this field. Lee is a Professor of Law at the University of Birmingham, who has acted as a specialist adviser to various international agencies including the European Parliament, European Commission, UNEP and UNDP. Boyle, Environmental Law Director at consultancy Argyll Environmental, has 25 years’ experience as an environmental lawyer which has included working in local government and for a major manufacturing company.

Discussing the main challenges that Brexit brings to the UK regarding environmental protection from a legal perspective, three main consequences stood out: devolution, lack of enforcement, and loss of data – each of which come with their own obstacles.

Devolution

To fully understand the effects of Brexit on environmental legislation in the UK, it is important to acknowledge that the region is formed by four very different nations, each with distinct priorities and legal decisions made based on those priorities.

When the UK was legally bound by EU law, this brought a number of advantages, a clear one being uniformity: EU law kept legislation the same across the UK. Now, the glue that held everything together has gone – Wales, Scotland, Northern Ireland, and England are all using different approaches to tackle their environmental policies. As Professor Lee comments: ‘The days when we had a united UK environmental legal regime are pretty much gone.’

EU directives required all regions of the UK to adhere to minimum legal standards, resulting in a consistent framework of environmental laws across the nation. However, in the absence of a unified instrument like a directive, different governments may now take separate paths, leading to potential divergence in environmental legislation.

Take as a case study the UK’s approach to agricultural policy: After Brexit, each nation developed different agriculture provisions and different legislative measures. For instance, in England, there will be money allocated for farming biodiversity from 2024 onwards; meanwhile, we don’t see this for the other three nations. The issue here is clear: Will certain regions fall behind because of a lack of uniformity?

Losing the uniformity we got from following EU legislation will mean replacing it with an untested approach from the Westminster government. This raises important questions for regions such as Wales, which has a considerably lower GDP than England: Would this mean that Wales gets less funding? How would negotiations on the topic between Westminster and the devolved parliaments go? Administrations and governments can only operate within their financial constraints, so a lack of funding could pose a significant issue.

Enforcement

Under the EU, environmental enforcement matters were supervised by the European Commission. Now, in England, this has been replaced by the Environment Agency. Going back to the point above, each of the UK’s four nations have their own approach to enforcement, and the remaining three countries are still working towards solutions, having no formal legislative mechanism.

Will the new enforcement system in England have the same level of scrutiny and oversight as the European Commission? This is something that should become clearer over time. Presently, according to Boyle, polluters are allowed to get away with too many illegal breaches. An example is the lack of action by the Environment Agency when it comes to water pollution, which has resulted in not a single river in the UK being in good environmental health. In England alone, there are over 800 illegal discharges of waste to water a day, and the vast majority of those are going unenforced.

In Boyle’s opinion: ‘The UK needs a strong regulation system that achieves something, and where people are held accountable. However, that has been lacking.’ It’s evident the UK needs to focus more attention on enforcement. After all, no amount or quality of legislation will be enough if there isn’t an effective enforcement system.

Data

Another big issue raised by both Boyle and Professor Lee is data. The EU Environment Agency (not to be confused with the UK Environment Agency) collects a significant amount of data every year, providing a clear picture of the environmental situation at hand, which in turn helps governments discern which environmental policies are working and which ones aren’t. This information is extremely useful when it comes to developing new environmental legislation.

While the UK can still access public data relating to this, it no longer has governmental access to it. For example, chemicals and chemical pollution matters are dealt with under two main provisions in EU law, and since 2008 EU member countries have been forced to register chemicals circulating in the market (under the REACH regulation). Those data sheets contain valuable information, which the UK can no longer access.

Similarly, the European Atomic Energy Community (EURATOM) Treaty established a single market for the trade in nuclear materials and technology – after Brexit, the UK is no longer a part of it, and as a result has lost access to important data on nuclear testing facilities as well as nuclear scientific collaborations.

Data is also important when it comes to environmental permitting, which is based on best available technique reference documents or BREF notes in the EU (these set out how to prevent or control pollution and other adverse environmental impacts originating from a number of activities). Again, the UK will have access to public information on this, but it no longer sits at the table which determines what the best techniques for industrial processes are, and it is no longer a part of the data generation exercise.

There are certain areas, such as biodiversity, where both the EU and UK currently lack data: This is a key issue which needs to be solved soon, and one which the UK could take the lead on.

More obstacles

In addition to a lack of uniformity across governments, a lack of data, and a lack of enforcement, another issue that could get in the way of the UK developing effective environmental policy is a lack of resources. As Professor Lee states, ‘How much we can achieve will depend on how ambitious each one of the four governments in the UK are, and also on how much resources they have.’

In Boyle’s opinion, too often, the UK government puts policies in place which aren’t ambitious enough. As he puts it, ‘It is time to make it clear, we can’t carry on like this.’ It is essential that we have individuals in the government who understand the importance of uniformity, resources, enforcement and data gathering, and are willing to push for a change, matching their words with actions.

Yet another key point to consider is that of sustainable development: balancing social, environmental, and economic concerns. Boyle comments: ‘We need to focus a bit less on economic growth, and a bit more on sustainable development.’ Whilst there are important economic issues to consider, prioritising environmental protection over short-term economic growth would be beneficial for everyone – including from an economic perspective – in the long term.

An opportunity?

Both Boyle and Professor Lee agree that at first glance Brexit is not beneficial for environmental legislation and protection in the UK for multiple reasons. However, we should be thinking about how we can benefit from it. While Brexit undoubtedly brings many challenges, the UK could potentially use Brexit as a means to create even better environmental legislation and therefore ensure even better protection than the EU.

Having different devolved governments implement their own environmental laws may not always be negative. In fact, certain nations could be more progressive than others, taking a stronger approach than even the EU, and serving as an example for other countries to follow.

When it comes to environmental protection, climate change issues, biodiversity and water pollution are all tightly interconnected, affect each other and can’t be separated. If the UK takes this into consideration, Brexit could also be used as an opportunity to take a more holistic and consolidated approach to environmental legislation compared to the EU.

With growing pressure from the general public, other governments, and not least natural disasters and the consequences of climate catastrophes around the world, the UK now has the chance to develop strong, meaningful and informed environmental legislation and get ahead in this area. Bearing in mind that EU law grew and developed over decades, it is however clear that the UK will need ambition, political will and sufficient allocated resources to do so.