Scotland after Brexit: Environmental Law
Wednesday 24 May 2017
These issues were discussed at a recent academic-practitioner workshop on Brexit and the environment in Scotland organised at the University of Strathclyde by the Strathclyde Centre for Environmental Law and Governance on 3 May 2017.
This IPPI blog post is the responsibility of the author alone and is his reflections on the topics and papers discussed in that forum; it does not reflect the views expressed at the workshop.
An extended version of this post can be found in Colin's Occasional Paper.
Environmental law is a founding competence of the Scottish Parliament. It is also an area of extensive EU competence as a flanking policy of the single market. Setting a Scottish specific approach to the repatriation of environmental competence from the EU will be a key area of policy development during and after the Brexit negotiations. As such it will be a key shaper of the overall approach Scotland takes to determining its post-Brexit future.
Scottish Government Environment Policy
The Scottish Government is committed to making Scotland a leading low carbon investment destination, developing an innovative approach to waste management through a circular economy strategy and developing Natural Capital to benefit communities across Scotland. Roseanna Cunningham MSP, the Scottish Environment and Climate Change Cabinet Secretary, believes that the European Union has been a significant driver of environmental policy and legislation for the past 40 years, which has helped Scotland achieve a high level of environmental protection and helped Scotland progress its world leading low carbon ambitions. She is keen that Scotland continues to protect its position as a climate change leader, where EU climate leadership and diplomacy was central to delivering an ambitious international climate agreement, and contribute to EU-wide environmental policies.
UK policy on leaving the EU
The UK White Paper on the Great Repeal Bill states that the UK’s current legislative framework at national, EU and international level has delivered tangible environmental benefits, such as cleaner rivers and reductions in emissions of sulphur dioxide and ozone depleting substances emissions. It intends that the Great Repeal Bill will ensure that the whole body of existing EU environmental law continues to have effect in UK law. The UK Government has made it clear that its longer term aim is to improve the environment over a generation through an outcome based approach. The environmental coalition Greener UK is arguing for policies and investment to return the UK’s land, seas, lochs/lakes and rivers to good health via an ambitious new Environment Act, which aims restore the “natural commonwealth”. There have been, however, press reports that the UK Government is looking at ways to reduce the burden of EU environmental legislation, with the UK press reporting in Spring 2017 that UK Government intends to review and possibly repeal the EU habitats directive after Britain exits the EU.
Powers of the Scottish Parliament and Brexit
In Scotland, and especially on the part of the current Scottish Government, there is a widely held view that where policy issues such as agriculture, fisheries and the environment are not reserved under the Scotland Act, the Scottish Parliament has powers over the range of policy issues covered by that subject. There is a clear expectation that where questions of further devolution, or amendments to the current system are discussed, the starting point should be that where powers are not explicitly reserved the expectation would be that Scotland would expect to frame the basis of the way the new powers would be applied.
The UK Government, on the other hand, takes the view that the powers of the Scottish Parliament, in the context of the reservations set out above, are those as currently exercised – they are not absolute across all aspects of the subject matter. It makes clear that the UK Government acts in the interests of the whole UK and is responsible for the UK's international relations, including negotiations with the EU. “The guiding principle will be to ensure that – as we leave the EU – no new barriers to living and doing business within our own Union are created. The UK Government will maintain the necessary common standards and frameworks for our own domestic market, empowering the UK as an open, trading nation to strike the best trade deals around the world and protecting our common resources.”
Implications of Brexit for environmental law in Scotland
The Scottish Universities Legal Network on Europe has published a scoping paper setting out key implications of Brexit for environmental law in Scotland. It notes that EU environmental regulation can be divided into 5 types:
- nature protection
- citizens’ environmental rights
- regulation of activities
- regulation of products; and
- repartition (management) of common resources.
The first three types tend to be ones which are devolved to Scotland, with certain elements (overall objectives, timelines and general policy frameworks) being set at EU level. In these cases the key question for Scotland and UK will be whether there is a need for a general framework at UK level to replace the EU level and how such a framework, if needed, would be agreed.
The fourth category, regulation of products, applies directly, mostly without any discretion left to the Member States. Presently, as norms concerning the regulation of products affect the internal market, their implementation falls within Westminster’s reserved trade competence. It can be expected that the UK Government will argue that this area needs to be primarily left to UK competence given its implications for international trade, although the devolved authorities will wish a degree of involvement in the process, given the environmental implications of these decisions. The Scottish Government already applies an opt-out available under the EU directive for the registration of GMO seeds and will wish to see this continue in the future.
The key area in the fifth category, management of common resources, is the Common Fisheries Policy - discussed in more detail in the IPPI blog Brexit, Powers and the Scottish Parliament: The Case of Agriculture and Fisheries.
Key Policy Issues
At present, the EU dimension plays a key role in the enforcement of environmental legislation in Scotland. As part of its powers to supervise the implementation of EU treaty and legislative obligations, the Commission can act to ensure Member States and their authorities act effectively, with recourse to the European Court of Justice if necessary. With Brexit, these enforcement mechanisms will cease to apply to the UK. UK citizens will only be able to access national courts to complain about breaches of domestic environmental law. After Brexit, both Scotland and the UK could explore new avenues to ensure better law enforcement, such as the establishment of a dedicated environmental court, and/or an environmental ombudsman, but this could be a major area of tension between the Scottish and UK Governments if there are different policy approaches north and south of the border.
The EU does not have competence over land use planning, which is the responsibility of the relevant national or devolved Government. Key EU legislation does however impact directly on planning law, notably through the environmental impact assessment directive which sets procedures for issues such as public consultation for projects with environmental impact which is transposed into legislation in Scotland through the Environmental Assessment (Scotland) Act 2005. Another key EU piece of legislation which impacts on planning decisions is the Habitats directive (Natura 2000), which sets out a broad range of measures to promote and protect species and habitats across the EU. The Scottish Government led work in Europe to demonstrate and embed good practice in environmental and community impact of windfarms in a major cross European project GP WIND in 2012-13. The Scottish Government also provided support to the European Commission for its regulatory review of the Habitats Directive in 2015-16, which concluded that the system in place was working effectively.
The EU has been a key driver of climate change law and policy in the UK. At present Scotland sets its climate change targets separately from the UK through the Climate Change Scotland Act and uses its devolved powers to promote climate change action (for example promoting renewables through its housing and planning powers and its newly strengthened responsibilities for energy efficiency). But a range of measures crucial to climate change delivery lie with the UK Government, notably the financial support for renewable energy set through the electricity market reform process (the CFD’s - contracts for differences). In addition the Scottish Government has agreed to implement a range of devolved measures such as the ETS (Emissions Trading Scheme) through cross border measures which in effect depend on UK legislation.
The policy environment in London and Edinburgh on renewables has already diverged strongly, with the UK Government committed to a moratorium on wind energy in England and (according to press reports) planning to withdraw at an early stage from the EU’s renewables target. There is also evidence that the UK Government, previously a leader within the EU on climate change ambition, is downgrading the importance it attaches to this work in preparation for focusing its international efforts on trade. For this reason it seems unlikely that it will be easy for Edinburgh and London to agree on UK wide frameworks on climate change and that this could be a major area of tension in future years.
The UK leaving the EU would remove Scotland from many networks, partnerships and joint projects which are directly linked to the delivery of EU legislation and policy, often supported by EU funding. Such cooperation promotes the practicability and enforceability of environmental law through exchange of information and experience and the development of capacity building. For example the Scottish Environment Protection Agency (SEPA), with its world leading expertise on a risk based approach to managing the environmental impact of industry, plays a leading role in the European Union Network for the Implementation and Enforcement of Environmental Law (IMPEL), which aims to strengthen the implementation of environmental law in Europe. Scotland would also lose direct contact with the key European level agencies which play key advisory and regulatory roles in policy implementation, including the European Environment Agency.
Keeping close to the EU
A key unresolved issue for the Scottish Government in its approach to Brexit is its wish to keep close to the European Union whatever Scotland’s future constitutional position. In this context environmental policy and law offer a clear focus for such activity. The absence of Scotland from of a strong EU policy framework for enforcement and policy development in areas such as climate change is likely to be exacerbate growing tensions between Scotland and the UK Government about the direction of policy in future years.
There are likely to be growing synergies between Scottish and EU partners in areas such as nature protection, industrial emissions and renewable energy development, including floating wind and tidal energy, where EU investment in recent years has been the main source of investment in Scotland (Source: Scottish Enterprise internal report). How such synergies will be effected and managed is a moot point. Notwithstanding this, they would also provide a very clear context for deciding where Scotland should best place its future focus in terms of international cooperation following the implementation of Brexit.