Brexit and the Environment

Mcfaul, Hugh (2018). Brexit and the Environment. In: Prinz von Sachsen Gessaphe, Karl August; Garcia Blesa, Juan J. and Szuka, Nils eds. Legal Implications of Brexit. Hagener Rechtswissenschaftliche Schriften, 2. Münster: MV-WISSENSCHAFT, pp. 351–364.



Environmental law and policy was not a prominent feature of debate or discussion during the Brexit referendum campaign of 2016. Nor has it been a significant feature of the post referendum discourse on the future of the UK’s relationship with the European Union (EU). However, the lack of media attention given to this aspect of the UK’s current membership of the EU belies the fact that the EU’s environmental acquis has had an increasingly significant influence in shaping UK environmental policy since its accession in 1973. EU law and policy are key to the UK’s approach to water, air and nature conservation. Consequently, the forthcoming rupture in relations that will be a consequence of even a soft Brexit raises important questions for those concerned to at least maintain current levels of UK environmental protection post Brexit.

This paper explores the potential impact of Brexit on environmental protections within the UK. To do so it will address two issues. Firstly, it will provide an overview of the evolution and contemporary reach of European Union environmental legislation. Secondly, it will delineate some of the fundamental challenges faced by the UK in maintaining current standards of environmental accountability post Brexit.

To this end it will argue that the UK government’s current policy, outlined in the EU (Withdrawal) Bill, of transposing all EU legislation into domestic law to ensure stability on Brexit day, will only go some way to preserving and maintaining environmental protections in the UK. It is the contention of this paper that the particular nature of EU’s environmental acquis depends as much upon the EU’s institutional architecture as it does on the content of EU environmental regulations hemselves. The current enforcement of EU environmental law exists within a wider governance structure provided by the Members States, the Court of Justice of the European Union (CJEU) and the European Commission. A key aspect of the effectiveness of EU environmental law lies in the capacity to hold individual Member States to account for the standards of their environmental stewardship.

Notwithstanding the current lack of clarity from the UK government on its proposed future relationship with the EU, the logic of Brexit demands that the UK will seek to resist being held accountable by EU institutions on any matter of law, environmental or otherwise. This has the potential to leave a significant lacuna in the mechanisms available to hold the UK government to account as an environmental actor.

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