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Brexit Withdrawal Agreement: The Environment

Under the Brexit Withdrawal Agreement, there is a transition period which shall run from the date on which the agreement enters into force (expected to be 30 March 2019) until 31 December 2020. During that period, EU law will continue to apply in the UK (except in certain specified circumstances). This means that all EU environmental law will continue to apply in the UK until the end of 2020 (unless extended by decision of the Joint Committee of the EU and UK).

Once the transition period has come to an end, the Northern Ireland “backstop” will apply until a new agreement on the future relationship between the EU and UK has been agreed. Under the provisions of the backstop, the EU and the UK have agreed that certain directives mainly relating to products (for instance in relation to emissions standards from cars, chemicals, waste and GMOs) will apply whilst the backstop is in force.

Environmental protection post-Brexit

In all other cases, the EU and UK have agreed to ensure that the level of environmental protection will not be weakened in comparison to common standards of environmental protection in EU and UK at the end of the transition period. This “non-regression” agreement applies to a wide range of environmental protection including EIA and SEA, air emissions, biodiversity, protection of the marine environment and climate change. In addition, the UK has agreed to continue to take the necessary measures to meet its climate change obligations under the Paris Agreement and to implement a system of carbon pricing and trading which is at least as effective as the EU Emissions Trading Scheme.

Last, the Joint Committee will set minimum commitments to apply from the end of the transition period for: the reduction of national emissions of certain atmospheric pollutants (currently provided in the National Emissions Ceiling Directive); the maximum sulphur content of marine fuels which may be used in territorial seas, EEZs and ports; and the best available techniques, including emission limit values, in relation to industrial emissions (currently provided in the Industrial Emissions Directive).

The backstop also requires the UK, when legislating on environmental protection, to respect key four key principles of environmental protection:

  1. The precautionary principle;
  2. The principle that preventive action should be taken;
  3. The principle that environmental damage should as a priority be rectified at source; and
  4. The “polluter pays” principle.

A new “Green Watchdog”

Whilst this agreement is welcome, the arbitration mechanism provided for in the Withdrawal Agreement does not apply to environmental protection once the transition period has come to an end. Therefore, the monitoring and enforcement of environmental protection (currently undertaken by the Commission and CJEU) will be left to a new independent “Green Watchdog” who is to have the power to conduct inquiries and bring legal action for breaches of laws and regulations in respect of environmental protection.

The effectiveness of a Green Watchdog will be vital to securing a Green Brexit. However, DEFRA and the Treasury are reportedly locked in a long-running stand-off over the precise remit of the Green Watchdog with the Treasury citing fears a robust watchdog and demanding targets could hamper economic growth.