Beware of zombie legislation post-Brext

Matthew Farrow
14 November 2016

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After Brexit

The UK’s decision to leave the EU has opened up a complex picture for future environmental regulation with big challenges ahead for companies working in the sector, says Matthew Farrow.

In the immediate aftermath of the EU referendum result, the debate over the impact on environmental legislation tended towards the black or white view – would a post-Brexit red tape bonfire make Britain the dirty man of Europe all over again, or would we be able to retain the full complement of EU standards and laws? But, as the months have edged past, a more complex picture has started to emerge.

We recently held a seminar for EIC members with academic experts on EU law to discuss how the Brexit process might unfold and how in detail the environmental business sector might be affected.  In the discussion, one of the academics used the phrase “zombie legislation” to discuss the possible fate of some EU environmental regulation post-Brexit. The phrase is a vivid one; the point was that the effectiveness of environmental regulation does not just depend on its existence on the statute book, but on a number of other factors.

First, monitoring and enforcement. Air quality is a good example – without the threat of EU infraction proceedings and the Supreme Court judgment it is unlikely that the government would be making meaningful efforts to comply. Equally there is already insufficient monitoring of sewer overflows to be sure of their impact on Water Framework Directive standards

Second, some legislation requires the UK (along with other member states) to submit plans and report progress to the Commission. The revised Waste Framework Directive, for example, has various clauses requiring the preparation and submission of national waste management plans.  Such plans help ensure there is a reasonable joined up sense of policy structure and direction that all stakeholders can work with. While the transposed law that gives effect to the Directive will remain in place after we leave the EU, clearly future ministers will not be submitting their homework to the EU, which raises the risk that the homework is not done at all, and plans such as these are never completed.

Third, EU environmental law is not static, and its ongoing effectiveness depends in part on drawing on Europe-wide scientific and environmental expertise to periodically revise standards and targets.  The Industrial Emissions Directive for example relies on documents which define best available technology in many different pollution control activities (the BREF documents) and the UK would no longer be involved in updating these. Even where there was the political will to undertake such revisions, it is questionable whether the UK still has the institutional capacity to do the work. The Royal Commission on Environmental Pollution was axed in 2011, along with the Sustainable Development Commission. Defra has also been heavily cut back.

So, there is a real risk that even if a combination of the ‘Great Repeal Bill’ and ministerial recognition that the public do not want environmental standards scrapped means that EU environmental law stays in place, we will find that its effectiveness in protecting the environment around us is limited.  And that’s not good news for anyone.  

Matthew Farrow is director of the Environmental Industries Commission, the leading trade body for environmental firms.