Mapping post-Brexit environmental law
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Mapping post-Brexit environmental law Colin T. Reid1
© The Author(s) 2020
Abstract The UK’s withdrawal from the EU will not bring about immediate changes to the substance of environmental law in the UK, but that law will become easier to change. The future position is complicated by devolution within the UK, where differing policy objectives on continuing alignment with the EU and weaknesses in the inter-governmental structures are causing problems. Environmental principles are being given legal recognition and new structures for environmental governance being created for each nation. These include environmental watchdogs that go some of the way to making up for the loss of the oversight provided by the EU institutions. Keywords Brexit · Environment · Environmental governance · Environmental principles · Devolution
1 Background When I participated in a conference in 2015, almost a year before the Brexit referendum and when the idea of the UK leaving the EU was a speculative thought experiment, not a practical reality, a number of key issues for environmental law were identified:1 – would the legislative slate be wiped clean, with all the law coming from the EU having to be removed and replaced, or would existing EU law be carried over and continue in force? 1 See Reid [1], [2].
B C.T. Reid
[email protected]
1
Professor of Environmental Law, University of Dundee, Park Place, Dundee DD1 4HN, UK
C.T. Reid
– would the future see major divergence between EU and UK laws, and in particular would the UK embark on a programme of deregulation? – would environmental law become more volatile and subject to short-term shifts in policy? – in the absence of the European Commission (Commission) and the Court of Justice of the European Union (CJEU), how would the government be held to account for its environmental performance and its success or failure in meeting targets? These questions are considered in the rest of this paper and at the time of writing in August 2020, not all of them have been answered, even though Brexit has now formally taken place. The legal basis for this in the UK is the European Union (Withdrawal) Act 2018 (Withdrawal Act) (passed before there was any Withdrawal Agreement settled between the UK and the EU). This has now been amended by the European Union (Withdrawal Agreement) Act 2020 (2020 Act), reflecting the terms of the Agreement made in late 2019 between the Johnson government and the EU.2 At present we are in the transition or implementation period provided for under that Agreement and although the UK formally left the EU on 31 January 2020, very little has changed. The big change will come at the end of this period, on 31 December 2020. At that date the ties are fully severed, unless the negotiations for a new agreement on future trading and other relations reach a successful conclusion before then. Looking back at political developments over the past few years within the UK, one of the big surprises is that the environment has featured so strongly in the planning for a post-Brexit fut
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