Environmental Governance in Scotland after the UK's EU Exit: The State of Play
| Published date | 01 May 2020 |
| Author | |
| Pages | 289-296 |
| DOI | 10.3366/elr.2020.0635 |
| Date | 01 May 2020 |
It has long been known that EU exit would affect environmental law-making and enforcement in Scotland, as well as in the rest of the UK. It may therefore come as a surprise that, almost four years since the EU referendum, several environmental governance questions remain unresolved. The reasons for this state of affairs are twofold.
On the one hand, the magnitude of the gaps in environmental governance associated with EU exit can scarcely be overestimated. As I have already explained in this journal,
On the other hand, the political debacle over EU exit has sucked energy out of the complex technical decision-making process over how to address these environmental governance gaps. As a result, after the UK's formal exit from the EU on 31 January, a series of cross-cutting environmental governance questions remain unanswered, namely: how to replace environmental governance arrangements that presently depend on EU institutions – such as emissions trading and chemicals regulation; how to enable Scotland to “keep pace” with EU environmental standards, given that the UK Government does not intend to do the same; how to allocate law-making and enforcement powers presently exercised by the EU between UK and devolved administrations after exit; how to replace the EU's review and enforcement powers over UK public authorities; whether and how to maintain the role of EU environmental law principles in future policy making.
This article considers these questions in turn, analyzing and assessing the state of play of environmental governance in Scotland after the UK's EU exit. It looks at action already taken by the Scottish Government, in light of developments at the UK level. The conclusions highlight issues for further consideration.
The Scottish Government has expressed its ambition to maintain close ties with the EU, and to continue to “keep pace” with EU law after exit.
Presently, the future relationship between the UK and the EU remains to be determined. The non-binding Political Declaration attached to the Withdrawal Agreement concluded between the UK and EU (“Withdrawal Agreement”) provides for the negotiation of a Free Trade Agreement between them.
Comparatively more information is available on the likely degree of the UK's future alignment with EU environmental standards. While the 2018 Draft EU Exit Agreement explicitly committed the UK to continued regulatory alignment with the EU,
The Scottish Government
The Scottish Parliament did not support the Withdrawal Agreement, which was nevertheless enshrined in law by the European Union (Withdrawal Agreement) Act 2020. In 2019, the Scottish Government announced its plans to introduce a Continuity Bill that will enable the Scottish Parliament to “keep pace” with EU law in devolved areas, including the environment.
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