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The Impact of Brexit on the Environment: Exploring the Dynamics of a Complex Relationship

  • Chris Hilson (a1)

Abstract

The departure of the United Kingdom (UK) from the European Union (EU) (often referred to as ‘Brexit’) is likely to have a significant impact on the environment. In this article I argue against seeing the traffic as all one way. While there was a temptation for the advocates of staying in the EU, in the context of referendum campaigning, to portray the UK as a laggard pressured into positive environmental performance by the EU as leader, the reality is that the UK has also strengthened the EU’s environmental policy in some areas and seen its own weakened in others. Influence in both directions has also varied over time. The article goes on to consider core ‘Leave’ arguments around sovereignty and ‘taking back control’, exploring the implications of these in the specific context of environmental governance. In discussing subsidiarity, it concludes that leaving the EU will not remove the need for pooling some sovereignty over environmental matters at the international level and, in the context of devolution, at the UK level.

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Copyright

Footnotes

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Earlier versions of this article were presented at the workshop ‘Re-Imagining Environmental Law in an Age of Sovereignty and Control’, University of Edinburgh (UK), 23 Nov. 2016; at the workshop ‘The Future of European Policy in the European Union’, University of Gothenburg (Sweden), 19–20 Jan. 2017; and at the British Academy, ‘Brexit and the Environment: A Roundtable’, 30 Jan. 2017. I am grateful for comments from those present and the journal’s referees.

Footnotes

References

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1 Environmental Audit Committee (EAC), Third Report of Session 2015–16, ‘EU and UK Environmental Policy’, HC 537, 19 Apr. 2016, available at: https://publications.parliament.uk/pa/cm201516/cmselect/cmenvaud/537/537.pdf; Institute for European Environmental Policy (IEEP), ‘Brexit: The Implications for UK Environmental Policy and Regulation’, Mar. 2016, available at: https://ieep.eu/uploads/articles/attachments/27e7d452-5435-46a5-9589-f6941e3febbc/IEEP_2016_Brexit_-_Implications_for_UK_Environmental_Policy_and_Regulations.pdf?v=63664509944; C. Burns et al., ‘The EU Referendum and the UK Environment: An Expert Review’ (2016), available at: http://ukandeu.ac.uk/wp-content/uploads/2016/04/Expert-Review_EU-referendum-UK-environment.pdf; C. Burns, A. Jordan & V. Gravey, ‘The EU Referendum and the UK Environment: The Future under a “Hard” and a “Soft” Brexit’ (2016), available at: http://ukandeu.ac.uk/wp-content/uploads/2016/08/The-Environment-under-Soft-or-Hard-Brexit.pdf; HM Government, ‘Review of the Balance of Competences between the United Kingdom and the European Union: Environment and Climate Change’ (2014), Ch. 2; Heyvaert, V. & Čavoški, A., ‘UK Environmental Law Post-Brexit’, in M. Dougan (ed.), The UK After Brexit (Intersentia, 2017), pp. 115133 .

2 E.g., the UK Environment Secretary, Michael Gove, has stated: ‘While the EU has often been a force for good in raising environmental standards, some of the means haven’t necessarily been the most effective regulatory tools – so getting those right will be critical to Brexit success’ (R. Harrabin, ‘Brexit “Will Enhance” UK Wildlife Laws – Gove’, BBC News, 19 June 2017, available at: http://www.bbc.co.uk/news/science-environment-40331919).

3 E.g., J. Jones, ‘The EU is an Outsized Behemoth Beyond Reform: The Green Case for Brexit’, The Guardian, 8 June 2016, available at: https://www.theguardian.com/commentisfree/2016/jun/08/eu-reform-green-brexit (‘The most profound weakness of the EU, from the Green point of view, is that it is a super-sized top-down dogmatic project of endless industrial development and growth. It fosters the pointless carting of goods [over] enormous distances, and it smashes local resilience and self-reliance. Often well-intentioned environmental policies are outweighed at every turn by the more fundamental drivers of its bid to turn the whole of Europe into a paradise for (environmentally damaging) agribusiness and industry’). The Green Party itself was in favour of Remain (being more concerned with the threat of Brexit to the environmental acquis): Green Party, ‘Natalie Bennett Unveils Our “Three Yeses” to Europe’, 23 Jan. 2013, available at: https://www.greenparty.org.uk/news/2013/01/23/natalie-bennett-unveils-our-three-yeses-to-europe.

4 IEEP, ‘Report on the Influence of EU Policies on the Environment’, Aug. 2013, p. 1 (stressing a two-way relationship), available at: http://assets.wwf.org.uk/downloads/final_report___influence_of_eu_policies_on_the_environment.pdf.

5 See also, e.g., biofuels, where EU policy has been questioned on environmental grounds both by those on the Leave side (see, e.g., dissenting report by P. Lilley, EAC, n. 1 above) and by the environmental movement (see, e.g., G. Monbiot, ‘These Brexiters Will Grind Our Environment into the Dust’, The Guardian, 20 July 2016, available at:https://www.theguardian.com/commentisfree/2016/jul/20/brexiters-make-britain-countryside-like-kansas).

6 Burns et al., n. 1 above, p. 37.

7 Although, of course, EU agricultural policy has for some time contained agri-environmental policy (albeit of questionable overall ambition).

8 IEEP, n. 4 above, pp. 7, 24; Burns et al., n. 1 above, p. 16.

9 Burns et al., n. 1 above, p. 38; Written Evidence of V. Gravey, C. Burns & A. Jordan, submitted to the House of Commons (HC), EAC Inquiry, ‘The Future of the Natural Environment after the EU Referendum’ (Session 2016–17), Aug. 2016, para. 13, available at: http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/environmental-audit-committee/the-future-of-the-natural-environment-after-the-eu-referendum/written/35891.html.

10 Directive 2010/75/EU on Industrial Emissions (Integrated Pollution Prevention and Control) (recast) [2010] OJ L 334/17. EAC, n. 1 above, para. 22; cf. Haigh, N., EU Environmental Policy: Its Journey to Centre Stage (Routledge, 2016), pp. 197203 (noting resistance to the British idea of a single permitting authority).

11 Burns et al., n. 1 above, p. 11; J. Gummer et al., ‘Within the EU, Britain Can Take the Lead on Tackling Climate Change’, The Guardian, 18 Apr. 2016, available at: https://www.theguardian.com/environment/2016/apr/18/within-the-eu-britain-can-take-the-lead-on-tackling-climate-change; EAC, n. 1 above, paras 15–18; IEEP, n. 4 above, p. 7; R. Davis, ‘Should Environmentalists Support the UK’s Membership of the EU?’, Energydesk Greenpeace, 17 Mar. 2016, available at: http://energydesk.greenpeace.org/2016/03/17/comment-brexit-environmentalists-support-uk-eu-membership.

12 A. Neslen, ‘EU Dilutes Proposal to Halve Air Pollution Deaths after UK Lobbying’, The Guardian, 3 June 2016, available at: https://www.theguardian.com/environment/2016/jun/03/eu-dilutes-proposal-halve-air-pollution-deaths-uk-lobbying.

13 D. Carrington, ‘UK Defeats European Bid for Fracking Regulations’, The Guardian, 14 Jan. 2014, available at: https://www.theguardian.com/environment/2014/jan/14/uk-defeats-european-bid-fracking-regulations.

14 EAC, n. 1 above, para. 23.

15 Department for Environment, Food & Rural Affairs (DEFRA), ‘Safeguarding our Soils: A Strategy for England’, Sept. 2009, p. 3, available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/69261/pb13297-soil-strategy-090910.pdf; G. Monbiot, ‘The Farming Lobby Has Wrecked Efforts to Defend Our Soil’, The Guardian, 5 June 2014, available at: https://www.theguardian.com/environment/georgemonbiot/2014/jun/05/the-farming-lobby-has-wrecked-efforts-to-defend-our-soil.

16 IEEP, n. 4 above, p. 25; Burns et al., n. 1 above, p. 16.

17 See, e.g., Winter, G., ‘The Climate Is No Commodity: Taking Stock of the Emissions Trading System’ (2010) 22(1) Journal of Environmental Law, pp. 125 .

18 Burns et al., n. 1 above, p. 18.

19 Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Fauna and Flora [1992] OJ L 206/7.

20 Burns et al., n. 1 above, p. 138; House of Lords Select Committee on the European Union, Energy and Environment Sub-Committee, ‘Brexit: Environment and Climate Change’, 26 Oct. 2016, oral evidence of T. Hutchings (World Wildlife Fund), p. 22, available at: http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/eu-energy-and-environment-subcommittee/brexit-environment-and-climate-change/oral/42398.pdf.

21 As opposed to ensuring sustainable development. For details of the government’s negative view see, e.g., HM Treasury Autumn Statement 2011, para. 1.99; A. Neslen, ‘Brexit Would Free UK from “Spirit-Crushing” Green Directives, Says Minister’, The Guardian, 30 May 2016, available at: https://www.theguardian.com/politics/2016/may/30/brexit-spirit-crushing-green-directives-minister-george-eustice.

22 Directive 2009/147/EC on the Conservation of Wild Birds [2010] OJ L 20/7.

23 IEEP, n. 1 above, p. 20; European Commission, ‘Fitness Check of the Birds and Habitats Directives’, available at: http://ec.europa.eu/environment/nature/legislation/fitness_check/index_en.htm; see further V. Gravey, ‘Nature Directives “Fit for Purpose”: A Turning Point for EU Policy Dismantling?’, Environmental Europe? blog, 7 Dec. 2016, available at: http://environmentaleurope.ideasoneurope.eu/2016/12/07/naturealertrefit.

24 J. Garman, ‘“Green Crap”? Cameron’s U-Turn on the Environment is Just as Shameful as Clegg’s on Tuition Fees’, The Independent, 21 Nov. 2013, available at: http://www.independent.co.uk/voices/comment/green-crap-camerons-u-turn-on-the-environment-is-just-as-shameful-as-cleggs-on-tuition-fees-8954747.html.

25 See further L. Fisher, ‘Sovereignty, Red Tape … and the Environment’, Political Studies Association (PSA) blog, 17 June 2016, available at: https://www.psa.ac.uk/insight-plus/blog/sovereignty-red-tape%E2%80%A6and-environment.

26 On the environment see, e.g., Neslen, n. 21 above.

27 HM Government, n. 1 above.

28 EAC, n. 1 above, paras 56–7.

29 Those on the Leave side in favour of Brexit have often been styled ‘Brexiteers’, with a nod to A. Dumas’s The Three Musketeers.

30 B. Flynn, ‘What a Difference a Vote Makes? Second Guessing British-EU Environmental Policy Interactions after Brexit’, Environmental Europe? blog, 1 Aug. 2016, available at: http://environmentaleurope.ideasoneurope.eu/2016/08/01/difference-vote-makes-second-guessing-british-eu-environmental-policy-interactions-brexit. On path dependence see, e.g., Pierson, P., ‘Increasing Returns, Path Dependence, and the Study of Politics’ (2000) 94(2) The American Political Science Review, pp. 251267 ; Krasner, S., ‘Approaches to the State: Alternative Conceptions and Historical Dynamics’ (1984) 16(2) Comparative Politics, pp. 223246 .

32 Oral evidence before the EAC Inquiry, ‘The Future of the Natural Environment after the EU Referendum’, 25 Oct. 2016 (Session 2016–17), Q. 327 (Andrea Leadsom MP), available at: http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/environmental-audit-committee/the-future-of-the-natural-environment-after-the-eu-referendum/oral/42022.html.

33 Regulation (EC) No. 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No. 793/93 and Commission Regulation (EC) No. 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC, [2006] OJ L 396/1. See further EAC, ‘The Future of Chemicals Regulation after the EU Referendum’, 11th Report of Session 2016–17, 29 Apr. 2017, HC 912, available at: https://publications.parliament.uk/pa/cm201617/cmselect/cmenvaud/912/912.pdf.

34 The Repeal Bill White Paper provides the example of Reg. 6(2)(b) of the Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001, SI 2001/1754, which contains a requirement to obtain an opinion from the European Commission. This will require removal (and possible replacement with a UK body) via secondary legislation: Department for Exiting the European Union, ‘Legislating for the United Kingdom’s Withdrawal from the European Union’, Cm 9446, 2017, p. 20.

35 House of Lords, European Union Committee, 12th Report of Session 2016–17, ‘Brexit: Environment and Climate Change’, HL Paper 109, para. 58.

36 N. 22 above.

37 N. 19 above.

38 I am grateful to one of the anonymous referees for this point.

39 EAC, n. 1 above, paras 29–32.

40 Comprehensive and Economic Trade Agreement (CETA) between Canada and the EU and its Member States, 15 Feb. 2017, available at: http://ec.europa.eu/trade/policy/in-focus/ceta/ceta-chapter-by-chapter.

41 European Council, ‘European Council (Art. 50) Guidelines for Brexit Negotiations’, 29 Apr. 2017, Press Release 220/17, available at: http://www.consilium.europa.eu/en/press/press-releases/2017/04/29-euco-brexit-guidelines (emphasis added).

42 It should be noted that this spectrum was rejected by the Prime Minister, Theresa May, in her speech to the 2016 Conservative Party Conference: ‘There is no such thing as a choice between “soft Brexit” and “hard Brexit”. This line of argument – in which “soft Brexit” amounts to some form of continued EU membership and “hard Brexit” is a conscious decision to reject trade with Europe – is simply a false dichotomy … it is not going to [sic] a “Norway model”. It’s not going to be a “Switzerland model”. It is going to be an agreement between an independent, sovereign United Kingdom and the European Union’: ‘Britain after Brexit: A Vision of a Global Britain’, available at: http://press.conservatives.com/post/151239411635/prime-minister-britain-after-brexit-a-vision-of.

43 N. 19 above.

44 N. 22 above.

45 Directive 2006/7/EC concerning the Management of Bathing Water Quality [2006] OJ L 64/37.

46 Agreement between the European Community and the Swiss Confederation concerning the Participation of Switzerland in the European Environment Agency and the European Environment Information and Observation Network, available at: https://www.eda.admin.ch/dea/en/home/bilaterale-abkommen/abkommen-umsetzung/abkommenstexte/umwelt.html.

47 CETA, n. 40 above, Arts 22.3 and 24.12.

48 Ibid., Art. 24.3.

49 Ibid., Art. 24.5.

50 M. Le Page, ‘Green Lining? Five Ways Brexit Could Be Good for the Environment’, New Scientist, 29 June 2016, available at: https://www.newscientist.com/article/2095482-green-lining-five-ways-brexit-could-be-good-for-the-environment.

51 As well as, in some instances, process standards (where the EU exerts extraterritorial control over process standards in relation to products that want access to the single market): see Scott, J, ‘Extraterritoriality and Territorial Extension in EU Law’ (2014) 62(1) American Journal of Comparative Law, pp. 87125 .

52 Directive 2007/46/EC Establishing a Framework for the Approval of Motor Vehicles [2007] OJ L 263/1.

53 IEEP, n. 1 above, p. 7; Heyvaert & Čavoški, n. 1 above, p. 125.

54 Including agriculture: Gravey et al., n. 9 above, para. 13.

55 Burns et al., n. 1 above, pp. 8–9 and 135–6.

56 N. 45 above.

57 Directive 91/271/EEC concerning Urban Waste Water Treatment [1991] OJ L 135/40.

58 Directive 85/337/EEC on the Assessment of the Effects of Certain Public and Private Projects on the Environment [1985] OJ L 175/40.

59 Scottish Natural Heritage (SNH), ‘Environmental Assessment Handbook’, Annex 6, available at: http://www.snh.org.uk/publications/on-line/heritagemanagement/EIA/annex6.shtml.

60 National Environmental Policy Act of 1969, 42 U.S.C. § 4332, § 102.

61 SNH, n. 59 above.

62 Jordan, A., The Europeanization of British Environmental Policy: A Departmental Perspective (Palgrave Macmillan, 2002), p. 180 .

63 Ibid., p. 181; see also p. 186.

64 IEEP, n. 4 above, para. 4.3.1.

65 European Environment Agency, ‘European Bathing Water Quality in 2016’, Report No. 5/2017, 23 May 2017, available at: https://www.eea.europa.eu/publications/european-bathing-water-quality-in-2016. This is compared with only 27% in 1990: DEFRA, Environment Agency & Rory Stewart MP, ‘England’s Bathing Water Results 2015’, 5 Nov. 2015, available at: https://www.gov.uk/government/news/englands-bathing-water-results-2015.

66 European Environment Agency, ibid.

67 European Environment Agency, ‘Air Quality in Europe – 2016 Report’, Report No. 28/2016, 23 Nov. 2016, p. 59, available at: https://www.eea.europa.eu/publications/air-quality-in-europe-2016.

68 From a line of cases see, e.g., ClientEarth (No. 2) v. Secretary of State for the Environment, Food and Rural Affairs [2016] EWHC 2740 (Admin).

69 A good example of this is provided by the Aarhus Convention (Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, Aarhus (Denmark), 25 June 1998, in force 30 Oct. 2001, available at: https://www.unece.org/fileadmin/DAM/env/pp/documents/cep43e.pdf). Others include the OSPAR Convention (Convention for the Protection of the Marine Environment of the North-East Atlantic, Paris (France), 22 Sept. 1992, in force 25 Mar. 1998, available at: https://www.ospar.org/convention/text) and the Bern Convention (Convention on the Conservation of European Wildlife and Natural Habitats, Bern (Switzerland), 19 Sept. 1979, in force 1 June 1982, available at: http://www.coe.int/en/web/bern-convention). These are all mixed agreements, where the UK is a party in its own right as well as the EU. Such agreements (unlike those which lie in the exclusive competence of the EU) are likely to remain binding on the UK post-Brexit without the need for renegotiation, although not everyone takes this view: see J. Newbigin, ‘International Environmental Law After Brexit’, UK Environmental Law Association (UKELA), 25 May 2017, available at: https://www.ukela.org/blog/Brexit-Task-Force/International-environmental-law-after-Brexit.

70 The Scottish government expressed a desire to remain part of the EEA: Scottish Government, Scotland’s Place in Europe (2016), para. 85. However, any form of unique continuing relationship for Scotland seems a remote prospect because of the likelihood of hostility from other Member States, such as Spain, wary that such an arrangement might encourage their own separatist movements.

71 See, e.g., divergent policy on genetically modified organisms (GMOs) between Scotland and England (S. Carrell, ‘Scotland to Issue Formal Ban on Genetically Modified Crops’, The Guardian, 9 Aug. 2015, available at: https://www.theguardian.com/environment/2015/aug/09/scotland-to-issue-formal-ban-on-genetically-modified-crops); and on waste law and the circular economy (S. Holmes, ‘Brexit and Environmental Law’ (2016) 28(1) Environmental Law and Management, pp. 37–41, at 40–1).

72 C. Reid, ‘Taking Back Control From Brussels: But Where To?’, OUPblog, 7 Nov. 2016, available at: http://blog.oup.com/2016/11/brexit-uk-eu-brussels: ‘At a less dramatic level, the removal of the need to comply with EU law will risk greater divergence within the UK in relation to environmental law’. See also Heyvaert & Čavoški, n. 1 above, p. 123. Cf. GMOs where recent reforms have left much more discretion in the hands of Member States in relation to cultivation of GM crops on their territory: see, e.g., Dobbs, M., ‘Attaining Subsidiarity-based Multilevel Governance of Genetically Modified Cultivation?’ (2016) 28(2) Journal of Environmental Law, pp. 245273 .

73 In their respective White Papers on Brexit, the current Scottish government has committed to ‘maintaining, protecting and enhancing’ the environment (n. 70 above, para. 93) and the Welsh government ‘at a minimum, to maintaining current standards in respect of air and water quality, emissions and environmental protection (Welsh Government, Securing Wales’ Future: Transition from the European Union to a New Relationship with Europe (2017), p. 29). In its Brexit White Paper, the UK Conservative government similarly states that it ‘is committed to ensuring we become the first generation to leave the environment in a better state than we found it’ (HM Government, The United Kingdom’s Exit from and New Partnership with the European Union (2017), Cm 9417, para. 8.41). However, this should be contrasted with the unwillingness of government ministers, when appearing before the EAC and having been asked seven times, to commit to retaining EU air quality limits following Brexit (Baroness Jones & Baroness Parminter, ‘Green Brexit: Safeguarding Britain’s Environment’, Politics Home, 16 Jan. 2017, available at: https://www.politicshome.com/news/uk/environment/house/82418/green-brexit-safeguarding-britains-environment.

74 I.e., there is a risk that in some areas the Withdrawal Bill’s transposition of EU environmental law may produce ‘zombie’ legislation that sits dustily on the shelf, poorly enforced and without being updated in accordance with developing scientific standards: EAC, ‘The Future of the Natural Environment after the EU Referendum’, 6th Report of Session 2016–17, HC 599, para. 39.

75 ‘Brexit: Environment and Climate Change’, n. 20 above, oral evidence of M. Lee, answers to Q. 9.

76 E.g. Directive 2000/60/EC Establishing a Framework for Community Action in the Field of Water Policy [2000] OJ L 327/1 (Water Framework Directive), Art. 15 (duty to report on river basin management plans to the Commission).

77 Both public, via Art. 258 of the Treaty on the Functioning of the European Union (TFEU) (infringement proceedings by the Commission), and private (in national courts, relying on doctrines such as direct effect).

78 ‘Brexit: Environment and Climate Change’, n. 20 above, oral evidence of M. Lee, answers to Q. 9.

79 Although the House of Lords European Union Committee report (n. 35 above) noted witness concerns that ‘existing domestic judicial review procedures may be inadequate and costly’ (para. 84). Improved access to justice is thus likely to be a necessity post-Brexit. Concerns have also been raised about the Withdrawal Bill’s lack of implementation of principles such as the precautionary and polluter pays principles, which have been used in judicial review: S. Laville, ‘UK Withdrawal Bill “Rips the Heart out of Environmental Law”, Say Campaigners’, The Guardian, 17 Oct. 2017, available at: https://www.theguardian.com/environment/2017/oct/17/uk-withdrawal-bill-rips-the-heart-out-of-environmental-law-say-campaigners.

80 R. Macrory, ‘Brexit Unlikely to Give UK Free Rein over Green Laws’, ENDS Report 499, Sept. 2016, pp. 22–3, at 22; Burns et al., n. 1 above, pp. 90, 95.

81 Case E-4/01 Karl K. Karlsson v. The Icelandic State [2002] EFTA Ct. Rep. 240, para. 28.

82 Ibid., paras 29–33.

83 Ibid., para. 28.

84 Case E-1/07 Criminal Proceedings against A [2007] EFTA Ct. Rep. 246, paras 40–1.

85 E. Fisher & J. Harrison, ‘Beyond the Binary: Brexit, Environmental Law, and an Interconnected World’, OUPblog, 19 Sept. 2016, available at http://blog.oup.com/2016/09/binary-brexit-environmental-law; S. Weatherill, ‘Why We Need the European Union’, OUPblog, 20 June 2016, available at: http://blog.oup.com/2016/06/european-union-control.

86 Although cf. Neslen, n. 21 above.

87 See, e.g., Hilson, C, Regulating Pollution (Hart, 2000), Ch. 3 ; Lee, M., EU Environmental Law, Governance and Decision-Making (Hart, 2014), pp. 2021 .

88 Directive 2001/80/EC on the Limitation of Emissions of Certain Pollutants into the Air from Large Combustion Plants [2001] OJ L 309/1, replacing Directive 88/609/EEC. The Directive has now been superseded by the Industrial Emissions Directive, n. 10 above. There was also international law coordination, considered further below.

89 A point also made by, e.g., D. French, ‘Alternate Realities: Brexit and Pokémon’, OUPblog, 10 Oct. 2016, available at: http://blog.oup.com/2016/10/brexit-pokemon-go-law; Reid, n. 72 above; and Fisher & Harrison, n. 85 above.

90 As Scotford notes, ‘[i]f we are to think again about what standards we want to subscribe to as a nation and how to enforce these, this does not happen in a vacuum of legal development and expertise once we leave the European Union’: E. Scotford, ‘Air Quality Law in the United Kingdom at a Crossroads’, OUPblog, 3 Oct. 2016, available at: http://blog.oup.com/2016/10/air-quality-law-environment/#sthash.Hq1ROMWO.QoyeWqC9.dpufhttp://blog.oup.com/2016/10/air-quality-law-environment.

91 Directive 2009/147/EC on the Conservation of Wild Birds [2010] OJ L 20/7.

92 N. 69 above.

93 Bonn (Germany), 23 June 1979, in force 1 Nov. 1983, available at: http://www.cms.int/en/convention-text.

94 Geneva (Switzerland), 13 Nov. 1979, in force 16 Mar. 1983, available at: https://www.unece.org/fileadmin/DAM/env/lrtap/full%20text/1979.CLRTAP.e.pdf.

95 N. 88 above.

96 Scotford, n. 90 above; see also Haigh, n. 10 above, pp. 49–51.

97 See also, e.g., Haigh (n. 10 above, pp. 50–1), who makes this point when arguing in favour of the LCP Directive, n. 88 above. However, the point is principally true of old governance-style EU directives. New governance measures, such as the proposed EU Directive on the Promotion of the Use of Energy from Renewable Sources (recast) (COM(2016) 767 final), offer a less impressively robust scope for enforcement.

98 French, n. 89 above. See also Reid, n. 72 above, who notes that ‘[t]he extent of such treaty obligations can be easily overlooked since in recent decades the measures needed to give effect to them have often been introduced into the UK through EU law’.

99 UKELA is due to produce an international law mapping report later in 2017, see: https://www.ukela.org/brexitactivity.

100 See Macrory, n. 80 above, for suggestions on this.

101 See Hilson, n. 87 above, Ch. 3, and Lee, n. 87 above, pp. 9–15.

102 This question is implicit in the title of Colin Reid’s blog, n. 72 above: ‘Taking Back Control From Brussels: But Where To?’.

103 Even where international law is in place, policing divergence across the various constituent administrations of the UK, so that the UK as a whole does not breach its obligations under that law, may be harder than with reference to EU law: see Reid, n. 72 above.

104 See Joint Statement by First Minister of Scotland, Nicola Sturgeon, and First Minister of Wales, Carwyn Jones in response to the introduction of the European Union (Withdrawal) Bill, 13 July 2017, available at: https://news.gov.scot/news/eu-withdrawal-bill (‘We … recognise that common frameworks to replace EU laws across the UK may be needed in some areas. But the way to achieve these aims is through negotiation and agreement, not imposition. It must be done in a way which respects the hard-won devolution settlements’).

105 See, e.g., S. Lewis, Plaid Cymru Welsh Assembly Member, Welsh Assembly, The External Affairs and Additional Legislation Committee, ‘Leaving the European Union: Implications for Wales – Environment and Marine’, 31 Oct. 2016, paras 151–2, available at: http://www.senedd.assembly.wales/documents/s55521/31%20October%202016.pdf; M. Dickie, ‘Theresa May Takes Hard Line on SNP Demand for Special Brexit Deal’, Financial Times, 3 Mar. 2017, available at: https://www.ft.com/content/dca43e96-0007-11e7-96f8-3700c5664d30.

106 Welsh Government, n. 73 above, pp. 26–7; Scottish Government, n. 70 above, para. 9(c).

107 ‘We recognise that in some cases, in the absence of EU frameworks which provide an element of consistency across the UK internal market, it will be essential to develop new UK-wide frameworks to ensure the smooth working of the UK market’ (Welsh Government, n. 73 above, p. 26); ‘We must also recognise the importance of trade within the UK to all parts of the Union … So our 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. We will maintain the necessary common standards and frameworks for our own domestic market’ (HM Government, n. 73 above, para. 3.6). See also the Repeal Bill White Paper, n. 34 above, paras 4.2–4.3.

108 UKELA, ‘Brexit: Implications of the UK Leaving the European Union: Waste Management’, e-law, Mar.–Apr. 2016, pp. 17–21, at 17 and 19, available at: https://www.ukela.org/elaw-newsletter-archive.

109 Basel (Switzerland), 22 Mar. 1989, in force 5 May 1992, available at: http://www.basel.int/Portals/4/Basel%20Convention/docs/text/BaselConventionText-e.pdf.

110 Art. 2(1) states: ‘“Wastes” are substances or objects which are disposed of or are intended to be disposed of or are required to be disposed of by the provisions of national law’ (emphasis added). That said, Art. 2(4) does provide a definition of disposal (‘any operation specified in Annex IV’).

111 N. 10 above.

112 Best available technique reference documents; see further at: http://eippcb.jrc.ec.europa.eu/reference.

113 Suggested by C. Burns in her oral evidence to the Welsh Assembly, n. 105 above, para. 131 (and see further oral evidence by Burns et al., paras 137–9, 153, 161–2).

114 N. 76 above. The Water Environment (Water Framework Directive) (Solway Tweed River Basin District) Regulations 2004, SI 2004/99.

115 Water Framework Directive, n. 76 above, Art. 3(3)–(4).

116 New York (NY, US), 21 May 1997, in force 17 Aug. 2014, available at: http://legal.un.org/ilc/texts/instruments/english/conventions/8_3_1997.pdf.

117 See, e.g., Scott, J. & Trubek, D., ‘Mind the Gap: Law and New Approaches to Governance in the European Union’ (2002) 8(1) European Law Journal, pp. 118 ; De Búrca, G. & Scott, J. (eds), Law and New Governance in the EU and the US (Hart, 2006); Sabel, C.F. & Zeitlin, J., ‘Learning from Difference: The New Architecture of Experimentalist Governance in the EU’ (2008) 14(3) European Law Journal, pp. 271327 .

118 N. 85 above.

119 Lee, M., ‘The Ambiguity of Multi-Level Governance and (De)-harmonisation in EU Environmental Law’ (2013) 15 Cambridge Yearbook of European Legal Studies, pp. 357381 ; Dobbs, n. 72 above.

120 Directive 2009/28/EC on the Promotion of the Use of Energy from Renewable Sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC [2009] OJ L 140/16.

121 Ibid., Recital 15: ‘The starting point, the renewable energy potential and the energy mix of each Member State vary. It is therefore necessary to translate the Community 20% target into individual targets for each Member State’.

122 Ibid., Recital 14: ‘The main purpose of mandatory national targets is to provide certainty for investors’.

123 Proposal for a Directive on the Promotion of the Use of Energy from Renewable Sources, COM(2016) 767 final, p. 4.

124 Ibid. Member States will still have binding obligations to produce National Energy and Climate Plans and to report on these (under a separate proposal on the Energy Union Governance).

125 Although, as noted by Dobbs (n. 72 above, p. 248), there is an important difference between implementation power and the power to make policy decisions.

126 Lisbon (Portugal), 13 Dec. 2007, in force 1 Dec. 2009 [2010] OJ C 83/47, available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2012:326:FULL:EN:PDF.

127 Langlet, D. & Mahmoudi, S., EU Environmental Law and Policy (Oxford University Press, 2016), p. 102 .

128 Hilson, C., ‘It’s All About Climate Change, Stupid! Exploring the Relationship between Environmental Law and Climate Law’ (2013) 25(3) Journal of Environmental Law, pp. 359–70, 368. See also industrial emissions: Lee, n. 119 above.

129 On MLG see, e.g., Dobbs, n. 72 above.

130 Vanhala, L. & Hilson, C., ‘Climate Change Litigation: Symposium Introduction’ (2013) 35(3) Law & Policy, pp. 141149 , at 143.

131 Via, e.g., the Covenant of Mayors, on which see further Heyvaert, V., ‘What’s in a Name? The Covenant of Mayors as Transnational Environmental Regulation’ (2013) 22(1) Review of European, Comparative and International Environmental Law , pp. 7890 .

132 D. Boffey, ‘MEPs in Bid to Force UK to Meet Environmental Regulations after Brexit’, The Guardian, 31 Jan. 2017, available at: https://www.theguardian.com/politics/2017/jan/31/european-parliament-force-uk-meet-environmental-regulations-after-brexit.

133 B. Maddox, ‘What Does the Election Result Mean for Brexit?’, Institute for Government, 9 June 2017, available at: https://www.instituteforgovernment.org.uk/blog/what-does-election-result-mean-brexit.

Earlier versions of this article were presented at the workshop ‘Re-Imagining Environmental Law in an Age of Sovereignty and Control’, University of Edinburgh (UK), 23 Nov. 2016; at the workshop ‘The Future of European Policy in the European Union’, University of Gothenburg (Sweden), 19–20 Jan. 2017; and at the British Academy, ‘Brexit and the Environment: A Roundtable’, 30 Jan. 2017. I am grateful for comments from those present and the journal’s referees.

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Transnational Environmental Law
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