Brexit: the future of environmental regulation in the UK
Notwithstanding the unprecedented challenges that 2020 has brought, environmental issues remain at the top of the political agenda. In recent years an increased awareness of the climate crisis has triggered tougher environmental regulation in the UK, but given that much of the legislation that UK regulators currently enforce derives from EU law it remains to be seen what UK environmental policy will look like following the transition period that was triggered by the European Union (Withdrawal Agreement) Act 2020.
Leaving the EU
In a speech earlier this year Sir James Bevan, the Chief Executive of the Environment Agency (EA), suggested that leaving the EU offers positive opportunities in respect of the UK environmental legislative landscape and its regulation, confirming that going forwards this will be “risk-based proportionate and business friendly regulation”. But what does this mean in practice and what can we expect UK environmental policy to look like post-Brexit?
The Environmental Bill 2020 creates the Office of Environmental Protection (OEP), an independent watchdog intended to hold the government to account in respect of environmental legislation, including through the courts if necessary. The OEP, which is due to be up and running by January 2021, will have the power to run its own independent investigations and enforce environmental law, including taking government and other public bodies to court where necessary. It has been suggested that the OEP will lack “teeth”, as it will not be able to directly fine the government if it breaches its environmental responsibilities. Nevertheless, it appears to be a significant step towards a UK system of environmental governance, taking over from the existing enforcement role of the EU Commission.
COVID-19 and the EA
Sir James Bevan has emphasised the EA’s desire to support businesses, and during the COVID-19 pandemic the EA appears to have delivered on this promise. In April 2020, the EA published guidance on its regulatory response to COVID-19, recognising that businesses may not be able to comply with the regulatory regime. The EA subsequently published a series of time-limited position statements intended to assist in minimising the risk to the environment and human health as a result of COVID-19. These also include the particular circumstances where there is a temporary relaxation of the regulatory requirements. Although the EA has shown support to businesses during the COVID-19 pandemic, it is unknown how far this support (for example, in terms of any ongoing temporary relaxation of regulatory requirements) will go in the wake of the pandemic. It appears that going forwards, the EA will be committed to supporting organisations who commit to fulfilling their environmental responsibilities.
In addition to supporting businesses, UK regulators have, in line with EU regulation, promoted environmental self-reporting. Although the requirements for self-reporting in the UK may not take their current form post-Brexit, the benefit of early reporting and prompt remedial action almost always prompts a more lenient sanction. Even when criminal prosecutions still follow, such actions remain beneficial in the form of mitigation. In addition to self-reporting we have seen an increase in reporting regimes such as the energy saving opportunities scheme, and greenhouse gas reporting for UK quoted companies. Given the perceived benefits of self-reporting and reporting regimes, it is unlikely that we will see a departure from this strategy in the coming years.
Despite the EA’s commitment to supporting businesses, Sir James Bevan has made it plain that the EA will not shy away from holding those organisations responsible for the worst environmental breaches to account. The introduction of the Environmental Offences: Definitive Guideline in 2014, has seen a significant increase in the fines placed on UK businesses, particularly larger organisations, that fall foul of environmental legislation. It is clear that high fines (running to several millions of pounds in some cases) for what the courts see as the worst offenders are here to stay.
The UK’s departure from the EU is likely to bring about a number of changes to the UK environmental legislative landscape, but what is clear is that it does not appear to be signalling a relaxation of environmental accountability.
It appears that the UK will continue to ensure that companies who commit to their environmental responsibilities will be supported, and that the requirement to self-report will remain in some capacity. That said, the regulators are unlikely to shy away from punishing the worst offenders and the severity of such punishments are set to continue to increase.
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