Wednesday, 22nd June 2016
  • Richard Lane (Senior Consultant)
  • Gill Cotter (Consultant)

Brexit: Environment and Air Quality

With the upcoming European Union (EU) referendum this Thursday, what would the implications of Brexit be on environmental policy and, in particular, air quality? Prior to joining the then European Community in 1973, the UK was often referred to as “the dirty man of Europe”, due to high levels of both air and water pollution. Since the Clean Air Act of 1956, much of the progress on improvements to air quality has also been as a result of rules and standards coming directly from collaboration between Member States. A key example of this is the European air quality directives and legislation, which have resulted in substantial reductions in emissions of many pollutants.

What could happen to air quality legislation if the UK left the EU?

If Brexit were the result of the referendum, depending on subsequent trade agreements, the UK might be able to set its own targets and regulate internally. Within the EU, Member States make decisions collectively. If this were not the case, there is a risk that economies would engage in a ‘race to the bottom’ whereby pollutant targets could be continually relaxed in order to support economic competitiveness at the expense of the environment and ultimately the health of the population.

Should the UK leave the EU but remain part of the European Free Trade Association (EFTA) (along with Norway, Iceland, Switzerland and Liechtenstein) or the European Economic Area (EEA), ongoing acceptance of EU legislation, including air quality limits, would still be required by the UK, should it wish to become and remain an EEA member along with Norway, Iceland and Liechtenstein.

The UK’s impact on EU air quality legislation:

Currently, the UK government is a leader in developing environmental legislation in the EU. EU policies such as the UK Emissions Trading Scheme, which acted as the basis for the EU Emissions trading Scheme and also the UK Integrated Pollution and Control regime (IPPC) which became the EU Integrated Pollution and Control directive (now the Industrial Emissions Directive (IED)). The UK has been described as pragmatic by the Commission in regard to the way it approaches the development of EU environmental policy. Leaving the EU would put this position and reputation at risk and would prevent the UK from contributing to, shaping and creating policy such as the National Emissions Ceilings Directive (NECD). European decisions would still have an effect on the UK. The NECD, for instance, is important for controlling transboundary air pollution.

The challenges a vote for leave might pose:

Leaving the EU would present a huge challenge to UK law makers as they would have the task of rewriting decades of complex environmental laws. In addition, if the UK set its own legislation, it might lead to Wales/Scotland/Northern Ireland/England taking distinctively different approaches, and with it the potential for competitiveness and inequality in support. If the UK were to set up its own legislation, this might allow for the devolved administrations to apply policies more suitable for the different conditions in each country; again, the issue of transboundary pollution arises.

The UK would still need to meet international environmental commitments, many of which are reflected in EU law. As EU law takes precedence over conflicting national law and has enforcement mechanisms which are more robust than those found in international law, a Brexit may weaken regulation and laws if these are not enforced externally. Furthermore, EU law confers rights on individuals and allows them to enforce these before their domestic courts, as with the current ClientEarth clean air court case.

As with many of the other aspects of the Brexit debate, there is a great deal of uncertainty as to how the UK would proceed should it leave the EU. Some environmental laws would be retained, but it is not clear which, as those who seek to leave the EU are divided in opinion. Either way the result of the referendum could have a significant impact on the UK’s environment.