Brexit anniversary brings Greener UK warnings of holes in waste governance

Fears about the future of UK environmental regulation and the legal oversight and case law on resources persist on the anniversary of the referendum that kicked off Brexit.

That’s according to Greener UK, a coalition of 13 major environmental organisations, which has published the first assessment from its Brexit Risk Tracker, a tool set up to reflect the risks to environmental policy throughout the Brexit process.

Prior to the public vote in June 2016, several reports, including one from Parliament’s Environmental Audit Committee (EAC), highlighted the transformational role that membership of the European Union has had on the development of UK environmental policy, and prominent organisations from the waste and resources industry warned of the potential damage to investment and long-term vision for the industry in the UK.

Lingering uncertainty over what a post-Brexit UK will look like following the start of Brexit negotiations proper on Monday (19 June) has done nothing to ease fears over the transposition of environmental protections and legislation. Although the Great Repeal Bill, confirmed in this week’s Queen’s Speech, will be used to carry over ‘the whole body’ of existing EU environmental law into UK statutes, fears over ‘zombie legislation’ being lost and weakened have persisted.

Incorporating laws is not simply a case of cutting and pasting and, according to another report by the EAC, with ministers indicating that ‘approximately a third of the over 800 pieces of EU environmental legislation will be difficult to transpose into UK law’.

The report noted that the government must manage a number of international, legislative and financial issues throughout the process. In particular, it states that there is a risk that where EU legislation is transposed into UK law but is no longer updated and no longer has a body enforcing it that it could be eroded through statutory instruments with ‘minimal parliamentary scrutiny’.

Waste and resources given amber warning

Greener UK, coordinated by the Green Alliance think tank, was formed in late 2016 to ensure that the environmental implications of Brexit are not ignored, declaring that ‘leaving the EU presents significant challenges but offers important opportunities to go further and reverse the decline in the UK’s natural environment’.

Its Brexit Risk Tracker, which will be regularly updated throughout the Brexit process, uses a traffic light rating system to evaluate risk based on analysis of the government’s actions and commitments, with secure policy areas given a green rating, those with medium risk given an amber rating and those at high risk assigned a red mark.

Most in danger, according to the group, are the chemicals sector and air pollution policy. Chief cause for concern among the former is the UK’s lack of commitment to stay within the EU’s REACH system for regulating hazardous chemicals, with Defra ministers Therese Coffey and George Eustice reportedly suggesting that the UK should not follow the EU in banning certain chemicals and called for weaker controls on pesticides.

Regarding air pollution, the government’s latest plan to rectify its breach of EU air quality regulations has been widely criticised for not doing enough, and there is a risk that statutory limits on levels of nitrogen dioxide in the air could be weakened after Brexit, to make it easier for the government to meet its legal requirements.

Waste and resources has been given a less severe amber rating overall, though it warns that governance of the sector presents a high risk, stating: ‘The Great Repeal Bill White Paper does not make clear what, if any, domestic governance arrangements will be put in place to replace the European Court of Justice (ECJ) and the role it jointly plays with other EU institutions in providing the monitoring, oversight, accountability, and enforcement functions required to ensure the effective implementation of waste and resources legislation.’

It argues 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.

It continued: ‘Without some form of co-ordination mechanism, as decisions on these matters continue to be made, the UK may end up with conflicting rules on product standards, which would hinder trade, and on waste rules, which could strand investments in UK waste treatment facilities.’

Other elements of the sector, including Principles & Strategies, Legislation, Capacity & Funding and Co-operation, are given amber warnings, suggesting that while there are no clear commitments on carrying across general principles in EU treaties and adoption of the EU’s Circular Economy Package, these do not pose an immediate threat to the sector.

Repeal Bill will be ‘first key test of the government’s resolve’

Other sectors (Farming & Land Use; Fisheries; Nature Protection; and Water) have all been given amber warnings, with just Climate and Energy given a green, low-risk rating.

The amber ratings mostly reflect the general positive statements from government but a lack of reassurance on how all EU environmental law will be properly transposed into domestic law. There are also concerns about whether there will be adequate enforcement mechanisms after Brexit. Greener UK says that the Great Repeal Bill will be responsible for all of these issues and will be the ‘first key test of the government’s resolve’.

Amy Mount, head of the Greener UK unit at Green Alliance, said: “This is a pivotal parliament to determine the sort of country we want to live in as we leave the EU. The Conservative manifesto rightly set the bar high with its commitment to leave our environment in a better state and to be a world leader in environmental protection, and the government has also expressed its commitment that the body of EU environmental law will continue to have effect in domestic law.

“We are running this risk tracker to help the government live up to those ambitions, by highlighting the areas of greatest concern and celebrating any progress made.

“As well as the risks we’ve highlighted with this analysis, Brexit brings opportunities, particularly in agriculture, where subsidies could be better focused on public benefits, including nature conservation, flood management and reducing carbon emissions. We hope future updates of the tracker will show the red and amber ratings switch to green.”

The Greener UK’s Risk Tracker can be viewed on the group’s website.