How will UK Environmental Impact Assessment (EIA) law be affected by exit from the EU?1
On 5 June 1975, 65 per cent of UK voters elected for the UK to join the European Economic Community. On 23 June 2016, over 41 years on, 52 per cent of UK voters declared they wished to leave.
Within the EU, town and country planning is largely left to Member States under the subsidiarity principle. It would be up to each of England, Scotland, Wales and Northern Ireland to retain as much or as little of EIA, habitats and species protection, air quality and water quality as they wished or agreed, subject to international environmental treaty obligations and any provisions regarding cross border environmental standards and decision-making processes that may form part of the new trading arrangements with the EU.
Exit from the EU would not automatically undo UK laws which have been put in place to implement EU Directives. Those laws would remain in place pending change.
This potentially impacts a range of areas, including the environmental permitting regimes of large industrial facilities in sectors such as energy, waste, water, manufacturing and mining. Much of UK law relating to waste, such as WEEE, packaging waste and the management, storage and disposal of waste, falls into this category. Equally, the requirement for comprehensive Environmental Impact Assessments (EIA) on the development of large or environmentally significant facilities derives from an EU Directive on EIA. If the UK takes any path forward other than the Norway/EEA model, careful consideration will be needed as to what the UK’s position should be in relation to the requirements under these Directives.
What about rulings of the European Court of Justice (ECJ)?
UK courts would no longer be bound by the rulings of the ECJ. Any material difference between the interpretations of EU based laws by UK courts and the interpretations of similar laws in EU jurisdictions could present challenges.
The UK is a party to several UN environmental conventions which are currently implemented through EU legislation. In the event of an exit from the EU, the UK would have to consider how its obligations would be covered. These include matters such as climate change (the Framework Convention, Kyoto Protocol and Paris Agreement), access to justice in environmental matters (Aarhus Convention), habitat protection, and the protection of endangered species. Others will not be affected, where EU legislation does not implement the UK’s obligations, such as the OSPAR Convention (Convention for the Protection of the Marine Environment of the North-East Atlantic) whose implementation is coordinated by Defra (the Department for Environment Food and Rural Affairs). The Espoo (EIA) Convention (UN Treaty) sets out the obligations of Parties to assess the environmental impact of certain activities at an early stage of planning. It also lays down the general obligation of States to notify and consult each other on all major projects under consideration that are likely to have a significant adverse environmental impact across boundaries.
The requirement or otherwise for EIA, it is clear that nothing will change for the foreseeable future. The EIA Directive still remains in force, as do the current separate EIA Regulations for England, Scotland and Wales. The requirement for the ‘new’ Directive 2014/52/EU to be transposed into UK law by 16 May 2017 also remains. Even if Article 50 of the Treaty on the European Union is invoked, the UK has 2 years to complete the process (and an extension if requested can be provided), with EU legislation remaining firmly in place until the UKs exit is formalised. One benefit of the UK’s EIA Regulations (Statutory Instrutments) is that they are a standalone set of regulations that will remain in force for qualifying development projects.
With regards to the years of case law accumulated since 1985 on the interpretation of EU Directives which influences EIA work on an almost daily basis, legal experts have mooted that a guillotine or cut off date be set to clarify when matters should be referred to which court and to define the applicability of existing case law. Even after the cut-off date, European Court cases will still be relevant and should still be binding – although a litigious elements may come forward that seeks to challenge decisions made by a different decision-maker, under different law.
However, it seems that, in these uncertain times, there is actually a great deal of certainty about EIA. It is not going to disappear.
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1This note has drawn on similar advice provided by Nathaniel Lichfield & Partners, Eversheds LLP, Bond Dickinson LLP Bircham Dyson & Bell, Pinsent Masons LLP, Burgess Salmon, Norton Rose Fulbright, Osborne Clarke.