The Impact of Brexit on Environmental Protection in Scotland: Some Early Reflections

Pages115-120
DOI10.3366/elr.2018.0461
Date01 January 2018
Published date01 January 2018
INTRODUCTION

With much of UK and Scottish environmental law presently originating in Brussels,1 experts have long warned of the specific challenges associated with Brexit in this sector.2 These concern the loss of the well-established and comparatively stable regulatory, enforcement and support frameworks provided by EU law. While nobody is seriously suggesting that in future the UK and Scotland will be incapable of upholding the rule of law on environmental matters, Brexit will nevertheless entail the loss of a powerful means to scrutinise and enforce environmental protection standards.

Brexit is also likely to entail the loss of access to EU funding and to cooperation programmes that, for good or ill, presently are the lifeblood of UK environmental policy tools, like farm payments, conservation and research-related initiatives. Scotland has benefitted greatly from EU funds for environmental protection and the development of new low carbon technologies, like tidal energy. It also receives a disproportionately large share of EU farm payments. Ahead of Brexit, finding replacements for these means of support will be crucial.

Finally, Brexit raises sensitive questions on the allocation of repatriated EU law and policy-making powers between UK and devolved administrations. When the unifying frame of EU law is removed, existing regulatory and policy differences between Scotland and the rest of the UK – on matters such as genetically modified organisms, fracking and renewable energy – are likely to increase. Such fragmentation in standards across the UK may well threaten the maintenance of present levels of environmental protection. Even more significantly, the spat on the European Union Withdrawal Bill (EUW Bill) has shown that the UK and the Scottish Governments hold rather diverging views on who should assume the regulatory competences presently exercised by the EU after Brexit.3

Whoever is in charge of environmental affairs after Brexit, one thing is already clear. The approach envisioned in the EUW Bill could be a viable solution for some areas of environmental law and policy, but not all. The reason for this lies in the fact that in some areas – such as, for example, chemicals or emission trading – EU law vests a great deal of regulatory power in EU institutions and structures, which will no longer service the UK post Brexit. In these areas, existing arrangements will have to be integrally revisited and replaced.

The challenges associated with the EUW Bill therefore are not just constitutional, but affect the very mechanics of environmental law-making, implementation and enforcement. The UK and Scotland have precious little time to replace existing EU regulatory and enforcement structures to ensure the continuation of present levels of environmental protection after Brexit.

Space precludes a detailed discussion of all emerging environmental challenges.4 This article therefore offers some general reflections on the likely implications of Brexit for environmental protection in Scotland and makes recommendations for solutions that may be adopted to address these.

ENVIRONMENTAL LAW-MAKING AND ITS ENFORCEMENT

Scottish and UK law-makers presently are largely norm-takers and implementers of regulatory frameworks more often than not devised and engineered by the EU. This phenomenon is far from unique...

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