First published in EG, May 2017
Under the Scotland Act, environmental regulation is one area of law-making that is almost entirely devolved. Over the past 18 years this has led to divergence in environmental legislation north and south of the border, particularly in the areas of waste, water and environmental assessment. However, up until now the impact of EU law has prevented any significant differences between Scottish and English legislation, more of which later.
In 2010, Defra introduced the Environmental Permitting Regulations (EPR) in England and Wales, which combine a number of regulations and licensing regimes that were previously regulated separately, including pollution prevention and control (PPC), waste management, water abstraction and discharge and radioactive substances. Although most breaches of environmental law are criminal offences, the penalties for which are usually an unlimited fine and/or imprisonment of up to two years, legislation was also introduced in 2010 to give regulators in England the power to impose civil sanctions on businesses as an alternative to prosecution for certain types of breaches, including breaches of environmental legislation. Penalties include fixed monetary penalties and ‘enforcement undertakings’ – specific reparations to make good or compensate for environmental damage.
In 2011, the Scottish Environment Protection Agency (SEPA) published proposals on sweeping changes to enable better environmental regulation. Many of the proposals emulated innovations that had already been introduced in England, including fixed and variable monetary penalties and enforcement undertakings. A consultation has recently closed on the implementation of an Integrated Authorisation Framework that aims to simplify and clarify the authorisation procedures across four regimes – waste, PPC, radioactive substances and water. The Framework will also re-transpose a number of EU directives and replace a number of pieces of existing legislation. Although the overall approach appears the same and SEPA have clearly developed their proposals with reference to the regimes in England, there are also some significant differences, mainly in the overarching outcomes and different tiers of authorisation proposed in Scotland.
So what about Brexit? The impact of EU law is particularly pronounced in the area of environmental law. Some instruments, such as the Birds and Habitats Directives, are directly applicable in the UK, establishing clear obligations to conserve biodiversity. The requirements of other instruments such as the Water and Waste Framework Directives have dominated the domestic law made in those areas. Even areas that have remained under predominantly national control such as the town and country planning systems have been significantly impacted by EU law. So it is not a straightforward task to identify those measures that are required by EU law and separate them from those that are purely domestic.
The Great Repeal Bill (GRB) will preserve the corpus of EU law until such times as the Government and Parliament replaces them. In Scotland, this will fall to the Scottish government and parliament to decide how to use the freedom that Brexit will bring. The Scottish government has confirmed that it has no plans to amend or revoke any environmental legislation as a result of the referendum. It has also expressed a desire to remain part of the European Single Market, retain freedom of movement and secure powers to serve Scotland’s interests post-Brexit. Demanding a second independence referendum is of course the SNP’s preferred means of achieving these aims; however even if Scotland remains part of the UK there could still be greater divergence in environmental regulations and standards across the UK. This could lead to practical difficulties for businesses with cross-border operations and interests. For example, even before Brexit, there was a drive towards deregulation in England (the “Red Tape Challenge”) that wasn’t seen in Scotland. Important sectors of Scotland’s economy, particularly tourism and food and drink, are strongly dependent on the perception of a pristine environment, providing a powerful driver for Scotland to conserve and use its biodiversity assets in a way that is unlikely to have the same prominence in England. However, the GRB White Paper introduced the concept of a “UK single market” and states that the Government’s guiding principle is to “ensure that no new barriers to living and doing business within our own Union are created” after leaving the EU. In reality, this could mean re-reserving of powers from Edinburgh to Westminster, something that will be strongly resisted by the SNP and pointed to as substantiating the argument for a second independence referendum.
The loss of stability that EU law brings could mean that over time, environmental law and policy become much more volatile and subject to short-term political goals. More frequent changes of policy and direction make it harder for industry to plan ahead and for investors to cost potential risks, for example expenditure on sustainability and energy efficiency measures in buildings. These types of uncertainties could affect where capital flows in the commercial property market.
The EU has also provided mechanisms for governments to be held to account over environmental commitments, allowing action to be taken to ensure that they meet their obligations. As there is no domestic equivalent, the loss of this layer of governmental accountability will create a serious “enforcement gap”. Unless new independent bodies are created, the only mechanism for challenging the government will be judicial review, which with the different legal systems in Scotland and England could again lead to further divergence in the law.
The GRB White Paper was very light on detail and as the Government does not intend to publish a draft bill, it is difficult to predict exactly what the implications of regulatory changes will be as a result of Brexit. One thing that is certain is that there is a unique opportunity to explore ways of improving environmental legislation and now is the time to be part of that conversation.