Clarity on environmental law enforcement needed post-Brexit, says Greener UK
As the government prepares to publish its position paper on the European Court of Justice (ECJ) this week, Greener UK, a group of 13 major environmental organisations, has highlighted the need for clarity on how environmental law will be enforced after Brexit.
The government promised earlier this year that the ‘whole body’ of EU environmental law will be transposed to domestic law via the Repeal Bill, but Greener UK and other environmental groups have expressed concern that without the regulatory powers of the ECJ, these laws could be weakened or not enforced at all.
In a new briefing released this week, Greener UK emphasised that as judicial responsibilities are transferred from the EU to the UK, the courts that take them on must be sufficiently empowered and accessible to the public.
Government needs “robust enforcement mechanisms”
The briefing observes that as it stands, EU institutions can take forward complaints made by individuals and civil society organisations about the actions or inactions of governments or businesses that affect the environment, so justice is relatively affordable.
It also notes that the ECJ can fine governments if they fail to comply with judgements – a penalty which Greener UK believes it is important to retain. Earlier this year Romania was taken to the ECJ by the European Commission for their inaction over the closure and rehabilitation of illegal landfills.
Greener UK also says that institutions must be strengthened to avoid a domestic 'governance gap', in addition to dispute resolution between the EU and UK. As with cross-border complaints, while in the EU, UK citizens could also make complaints cheaply and without special expertise about the actions of the government of the UK itself.
However, the government’s current proposals for enforcing domestic environmental law post-Brexit rely on judicial review, a system that Greener UK believes to be “a wholly inadequate and incomplete enforcement mechanism for this task”, stating that amendments in terms of costs and scope are needed as part of an effective system to implement and enforce environmental law.
Providing an example of the importance of having a judicial system with teeth, the briefing points to earlier this year when the UK government was challenged on its clean air record. It was forced to act due to the fact that, unlike the UK’s Supreme Court, the ECJ can ultimately impose fines on the UK government if it refuses to comply.
Commenting on the release of the new briefing, Shaun Spiers, Executive Director of the Green Alliance think tank and Chair of Greener UK, said: "A week may be a long time in politics, but environmental processes unfold over years and decades. Without strong institutions to hold government to account, nature can't compete with shorter term political pressures – yet a healthy environment is essential to our well-being and prosperity, and that of future generations. If the government is to achieve its environmental aspirations, it must ensure we have robust enforcement mechanisms, rather than hollowing out the law."
Growing fears of “zombie legislation”
Despite repeated assurances from the government that EU environmental laws will not be ‘watered down’ post-Brexit, this briefing from Greener UK is just one of many warnings issued by environmental bodies concerning domestic law enforcement.
Earlier this year, Parliament’s Environmental Audit Committee (EAC) produced a report, ‘The Future of Natural Environment after the EU Referendum’, in which it emphasised the need for government to allow full parliamentary scrutiny of its plans for environmental legislation post-Brexit. The report expressed fears that without a body to enforce them, EU environmental laws could become ineffective ‘zombie legislation.’
Green Party leader Caroline Lucas also issued a report warning of 12 ways in which Brexit could threaten environmental policy, and establishing five guarantees for the government to make ahead of Brexit to ensure that the environment is not forgotten.
In another attempt to increase government scrutiny, Greener UK launched the Brexit Risk Tracker – a tool set up to reflect the risks to environmental policy throughout the Brexit process. It uses a traffic light system to evaluate risk based on analysis of the government’s actions and commitments, with the waste and resources industry was receiving a ‘medium risk’ amber rating. The tracker argued that the government’s decision to end the jurisdiction of the ECJ in the UK will be ‘very significant’ for resources policy, with a large body of case law setting rules on waste treatment, targets compliance and product standards subject to ECJ decisions.
New Environment Secretary Michael Gove did address the issue in his first public speech in the post in July.
Gove told those at the WWF-UK’s centre in Woking that he saw an opportunity to create a new industry of environmental enforcement in the UK: “I can understand why, for some, this is a moment of profound concern. The European Union has, in a number of ways, been a force for good environmentally…. and I have no intention of weakening the environmental protections we have put in place while in the EU.
“Inside the EU, the European Commission and the ECJ have provided enforcement mechanisms. Understandably, some are asking what could or should replace them. My view is that we have an opportunity, outside the EU, to design more effective, more rigorous and more responsive institutions and other means of holding individuals and organisations to account for environmental outcomes.”
He continued: “We can not just help protect our precious environmental assets, we can also create an economic asset for the country. Just as Britain enjoys a massive competitive advantage in the provision of legal services because the world knows we have the best courts and judges, and so chooses to settle its disputes here, so if we establish ourselves as the home of the highest environmental standards, the most rigorous science and the most ambitious institutions then the world will look to us for environmental innovation and leadership.”