Greener UK

Most of the UK’s environmental protections stem from EU law. The extent of those protections, which the UK could either improve upon, maintain, or lose while leaving the EU, is set out below.

Air pollution
Principles and strategies

EU law generally defines limits and ceilings of air pollution in order to protect the environment and human health.

The European Commission adopted a Clean Air Policy Package in December 2013, consisting of a new Clean Air Programme for Europe with air quality objectives for the period up to 2030, a revised National Emission Ceilings (NEC) Directive with stricter national emission ceilings which was finalised in December 2016, and a proposal for a new Directive to reduce pollution from medium-sized combustion installations.

Legislation

There are two main EU Directives on air quality. The Ambient Air Quality Directive (AAQD) is transposed into UK law through the Air Quality Standards Regulations 2010 (AQSR), which are key regulations for achieving and maintaining levels of ambient air quality in all areas of the UK. The National Emissions Ceiling Directive (NEC Directive), sets national ceilings for certain air pollutants, such as nitrogen dioxide. This is due to be fully replaced by a new Directive on 30 June 2018. The EU also has rules on industrial emissions, set out in the Industrial Emissions Directive (the IED Directive) and transposed in several pieces of UK law.

The UK is currently compliant with the ceilings set out in the NEC Directive, but it is in breach of the limit values for nitrogen dioxide set out in the AAQD in 37 out of 43 zones and agglomerations and is subject to ongoing infringement action in respect of this breach. As the UK government is struggling to comply with existing EU standards, there is a risk of limits being weakened after Brexit, which would have harmful impacts on public health and the environment.

In relation to the IED Directive the UK has chosen to transpose this legislation largely by reference (ie the transposing legislation in many cases simply refers to the Directive rather than actually setting out the obligations in the national law), which is likely to throw up problems of interpretation during the Brexit process, because the national legislation is incomplete.

Capacity and funding
Nothing significant to report.
Governance

The UK currently reports on its level of air quality to the European Commission. The reporting is made available to the public and is analysed by the European Environment Agency. The UK is unlikely to continue reporting to EU agencies after Brexit as it will no longer be a member of the EU and therefore not bound by the reporting requirements set out in the directives, and it is unclear whether the current levels of public information and expert analysis will be maintained in the absence of EU reporting requirements.

In respect of ambient air quality it is clear that the threat of infringment proceedings brought by the Commission has been a significant motivator for the UK government. During the last drafting of air quality plans the government aimed not for the shortest time possible, but for the first date on which they were likely to receive fines levied by the ECJ. This motivation will be lost after the UK leaves the European Union.

Co-operation
EU law recognises issues associated with transboundary air pollution. Air pollution does not stop at national borders, so the Directives recognise there are transboundary risks. This is a key area of risk from Brexit because the UK will no longer be an EU Member State and therefore will have less influence over the standards applied by neighbouring member states.
Chemicals
Principles and strategies

EU environmental policy aims at a high level of protection, and is underpinned by principles set out in the Lisbon Treaty including the precautionary principle and polluter pays principle. One implementation of the precautionary principle is the use of generic risk assessment, where chemicals with certain hazardous properties, such as carcinogens, are not used in groups of applications, like pesticides or children’s toys. Generic risk assessment is sometimes called a ‘hazard based’ approach.

The EU’s regulatory systems for chemicals are generally viewed as the best in the world, even though they are not perfect. If the UK leaves these regulatory systems it is likely that UK will have a weaker regulatory system, with less safety data and slower action on problematic chemicals. The danger is that this would make the UK a dumping ground for products that had been banned in the EU, and a centre for manufacturing processes that have been banned in the EU.

Legislation

The main EU law regulating the use of industrial chemicals is REACH, which covers both the chemicals themselves and their use in supply chains. Other laws cover specific uses of chemicals, including the authorisation of plant protection products (pesticides)biocideschemicals in food contact materials and pharmaceuticals. Further regulations address environmental pollution from chemicals, including the Industrial Emissions Directive and the Water Framework Directive

Some areas of legislation are incomplete, for example there is no harmonised EU regulation of the chemicals used in food contact materials (eg packaging) made of paper or card, or of coatings, inks and glues used in food contact, though these are now being discussed. There is also little consideration of water pollution from pharmaceuticals.

Many areas of EU chemicals regulation move too slowly or are too unwilling to restrict chemicals, including the identification and control of hazardous chemicals in REACH, the failure of the EU to define criteria to identify hormone disrupting chemicals and lack of control on hazardous pesticides.

Capacity and funding

REACH is a very centralised system, with the European Chemicals Agency in Helsinki (ECHA) managing the registration, evaluation and control of tens of thousands of chemicals, in collaboration with experts from EU and EEA member states.

Because of the centralised nature of the REACH system, with a single database of chemical safety, and the fact that this database is not fully available to countries who are outside REACH, and the expense and legal complexity that has gone into creating this database, it is not possible for the UK to copy this database.

The UK authorities focus on assisting UK companies with the system, enforcement and evaluating chemicals as part of the processes co-ordination by ECHA.

Governance

The EU’s REACH chemicals laws are an EU Regulation, which means they are directly legally applicable in the UK.

The UK’s role in REACH governance is through its both its normal EU regulatory role in EU-level decision making committees and in creating new policies at a political level, and through representation throughout ECHA, from the management board to a number of expert committees.

ECHA also co-ordinates the EU’s rules for biocides, while pesticides regulation is co-ordinated through the European Food Safety Agency EFSA. Chemicals in plastic food contact materials are regulated by EFSA, while for most other materials the regulation takes place at a national level, with some EU member states doing more than others.

Best available techniques in the industrial emissions directive are established by the European IPPC Bureau in Seville.

The Water Framework Directive priority substances are set in EU legislation, in a process led by the European Commission’s DG Environment and subject to the normal EU democratic controls.

Co-operation
The bulk of EU co-operation on chemicals occurs within the formal governance structures of REACH, the Water Framework Directive and other legislation, discussed above. If the UK leaves the EU without retaining involvement in these processes then it will lose access to these sources of knowledge, and in many cases will no longer be able to access the data on which EU decisions are made.
Climate & energy
Principles and strategies

The EU energy and climate acquis is underpinned by the Energy Union initiative which has five broad dimensions: security, solidarity and trust; a fully integrated internal energy market; energy efficiency; climate action and decarbonisation; research, innovation and competitiveness.

The Clean Energy Package, currently under revision and awaiting member state adoption, forms the baseline of EU principles and strategies which are designed to meet three specific objectives: energy security, affordability and low carbon energy. To meet these objectives, the union has set out a 2020 and 2030 energy strategy. These strategies provides a framework for delivery of energy and climate targets against a 1990 baseline, which include:

Reduce greenhouse gases by at least 20 per cent by 2020, and 40 per cent by 2030

Increase the share of renewable energy in the EU's energy mix to at least 20 per cent of consumption by 2020, and 27 per cent by 2030

Improve energy efficiency by at least 20 per cent by 2020, and potentially 30 per cent by 2030 (with the EU parliament proposing a 40 per cent target)

Legislation to meet these targets is in the process of being formally adopted by the EU parliament by the end of 2018, before the UK is due to leave the EU.

Unlike many other areas of environmental policy, the climate change framework stems from UK rather than EU law, with the Committee on Climate Change recommending carbon targets (‘budgets’) for the UK parliament to establish in law. However, EU policy is important in facilitating the delivery of those targets. 55 per cent of the UK’s 2030 emissions savings are expected to come from EU level policies and they have already contributed to 40 per cent of UK’s emissions reductions since 1990.

Legislation

Key pieces of EU legislation covering climate and energy are:
- Internal Market for Energy Directive, overseeing EU-wide electricity trading
- Renewable Energy Directive, establishing domestic targets and mechanisms to achieve them 
- Regulation covering the Agency for the Cooperation of Energy Regulators (ACER)
- Energy Efficiency Directive, establishing EU-wide efficiency targets across specific sectors
- Energy Performance of Buildings Directive, as well as laws covering waste, transport and land use


The directives are transposed into UK law through primary and secondary legislation, for instance the Renewable Transport Fuel Obligation and the Promotion of the Use of Energy from Renewable Sources Regulation, which transpose specific obligations under the EU directive on renewable energy.

Capacity and funding

The European Investment Bank has invested more than £9 billion into the UK’s power and energy infrastructure, with roughly £3.6 billion for renewable energy. The role of the EIB in financing the UK’s energy sector after the UK leaves the EU is unclear and depends on the outcome of the negotiations.

Governance

Incomplete transposition, delayed adoption and non-compliance with certain laws can be found across the UK. Infringement proceedings against the UK are underway on areas of policy covering waste, transport and energy efficiency.

These infringement cases open up important questions on the UK’s willingness and/or capacity to comply with certain environmental standards after it leaves the EU. There remains an opportunity for the UK to strengthen its domestic compliance under similar or stronger standards.

The EU climate and energy acquis has made a significant contribution to reducing the UK’s greenhouse gas emissions and has provided investment incentives to boost the deployment of renewable energy infrastructure. But the EU governance framework is not as effective as it could be, with ClientEarth finding “significant deficiencies in accountability under the 2020 climate and energy package including lack of reporting by member states, fragmented reporting across various policies, failure on the part of the Commission to enforce, consequent opportunities to game the system and difficulties for 3rd parties (eg NGOs) to enforce”.

EU energy agencies that require member state co-operation like ACER, ENTSO-E, ENTSO-G and Euratom are quite effective in meeting their goals. If the UK’s involvement ceases, this creates an avoidable risk of diverging technical standards.

Co-operation

The EU negotiates as a single bloc at the UN climate negotiations, requiring effective co-operation, and has also an established effort sharing mechanism that equitably allocates the burden of cutting carbon emissions amongst member states based on their per capita GDP levels. Co-operation amongst member states on information sharing, reporting, free trade, movement of labour, nuclear energy and several others has played a mutually beneficial role in making EU a climate leader.

The EU mechanisms that enable and support co-operation between EU member states include co-ordination groups that focus on security of supply, gas, electricity and other matters of energy and climate. They bring together a host of institutions from across the member states to achieve the outcomes of the energy union.

Farming & land use
Principles and strategies

The EU’s Common Agricultural Policy (CAP) is the key EU policy framework affecting land use. It is structured around two ‘Pillars’. Pillar I aims to provide income support for farmers, and to reduce the vulnerability of the agricultural sector. It also includes so-called “greening” measures aimed at enhancing sustainability, although evidence suggests that these have not led to substantial improvements in biodiversity and the wider environment. Pillar II includes a wider set of priorities around rural development, including the environmental objectives of restoring, preserving and enhancing agricultural and forest ecosystems, promoting the efficient use of resources, and supporting the transition to a low carbon economy.

The implications for biodiversity of leaving the EU and withdrawing from the CAP are mixed. On the one hand, agri-environment schemes, funded by Pillar II, are the single largest source of funding for the conservation of terrestrial biodiversity in the UK. However, evidence suggests that agriculture is still the biggest driver of biodiversity decline in the UK, and the CAP as a whole has failed to address this. The result is that public funding is being used to support contradictory activities, which both improve and harm nature. Moving away from the CAP, and Pillar I payments specifically – widely recognised to be an inefficient use of public money – represents an opportunity to secure much better value for money.

Legislation

The CAP provides a common policy framework that applies to all member states, underpinned by (and implemented via) a wide array of EU regulations.

‘Cross compliance’ defines a set of common standards to which CAP beneficiaries (landowners) must adhere, including compliance with a range of EU regulations regarding food safety, animal welfare, land management and the environment. Although cross compliance is far from perfect, making public payments dependent upon compliance with the law ensures these regulations are delivered effectively and that the CAP maintains (and ideally adds value to) these basic regulatory requirements.

Brexit could risk the erosion of this framework of standards, or the breaking of the link between payments and compliance. If this were to happen, incentives such as agri-environment payments would be much less effective, risking becoming little more than a mechanism for achieving minimal environmental standards previously secured through regulation.

The centralised legislative framework of the CAP allows considerable flexibility for each Member State to develop its own national Rural Development Programme. This flexibility also applies to the four countries of the UK, with additional domestic legislation underpinning this arrangement. Changes to this domestic legislation will also be required to support any post-Brexit agricultural policies going forward.

Capacity and funding

Agricultural land use
Total UK CAP expenditure was £3.5 billion in 2016, although Pillar I payments accounted for much of this total whilst delivering little environmental benefit. Agri-environment schemes funded by Pillar II equate to roughly £500 million per year, and according to Defra are “the single most important funding source across the UK for biodiversity”, accounting for more than 50% of UK public spending. Over time, domestic spending on terrestrial biodiversity has been reduced, with increased reliance on EU funding to plug the gap and meet a range of domestic and international commitments and obligations. It takes 5-10 years of commitment to secure environmental outcomes, requiring consistent investment over a longer timeframe than the normal political and budgetary cycles. Given the importance of Pillar II funding for environmental delivery in the UK, Brexit will necessitate a renewed, long-term commitment from UK administrations and finance ministers if major environmental degradation is to be avoided. Brexit could present an opportunity to ensure that future policy delivers better value for money, ensuring that funding is focused on ensuring the delivery of ‘public goods’.
 
Land use planning
Resourcing Environmental Impact Assessment can be an issue across government departments, statutory agencies and planning authorities in the UK due to funding cuts and consequent reductions in staff, particuarly access to technical specialists such as ecologists. This impacts on EIA practice through, for example, delays in the process, reduced specialist scrutiny and input and reduced capacity to follow up on projects post-consent (e.g. monitoring and enforcement). Planning authorities in England generally outsource Strategic Environmental Assessment of development plans to consultants, although increasingly these are undertaken in-house as authority budgets are squeezed, which can result in less robust SEAs. Implementation of EU environment legislation is supported at EU level by the European Commission and European Environment Agency (EEA). The ECJ adjudicates EU environmental assessment cases.  

Governance

Currently, the Common Agricultural Policy (CAP) provides the framework for devolved implementation, administered by Defra and the Scottish, Welsh and Northern Ireland governments and their paying agencies. The CAP framework offers sufficient flexibility to reflect the different priorities of the four UK countries whilst ensuring common standards. For example, agri-environment schemes are a compulsory part of Rural Development Programmes. The CAP also provides the budget, and stipulates minimum co-financing rates. Devolution arrangements will be fundamental in shaping the direction and budget of future agriculture and land management policy.

Co-operation

The European Commission plays a pivotal role in coordinating and overseeing the implementation of the CAP by member states. It facilitates consultation on CAP reform and sets future direction of the policy. It also plays an important role in facilitating Knowledge Exchange between member states, in funding multi-national research projects on agriculture and the environment (eg viaHorizon2020) and in supporting European Innovation Partnerships. Environmental delivery via Pillar II of the CAP is often supported by additional funding, eg via the EU’s LIFE programme.

Brexit raises questions about the extent to which the UK will be able to continue to participate in such shared programmes, and the role that UK and devolved administrations will play in overseeing the implementation of any future UK and/or devolved policy.

Fisheries
Principles and strategies

Currently, UK fisheries are governed by the EU Common Fisheries Policy (CFP): rules for managing European fishing fleets and conserving fish stocks. It gives all European fishing fleets equal access to EU waters and fishing grounds. Key elements include: setting catch limits to achieve Maximum Sustainable Yield (MSY) by 2020; the principle of ‘relative stability’ of member state quota shares; the obligation to land all commercial fish by 2019, rather than discarding unwanted fish; control and enforcement; common marketing standards, consumer information and competition rules; the duty to ensure that all EU flagged vessels comply with all relevant rules in their areas of operation; and regional management plans. The CFP includes a commitment to an ecosystem-based approach to fisheries management and is underpinned by principles set out in the Lisbon Treaty such as the precautionary principle.

If aspects of the CFP are not applied upon leaving the EU, there is a risk the UK will not be able to achieve sustainable fisheries management. Many of the UK’s fish stocks are shared with our neighbours; therefore, it is vital that management is coordinated. However, there is the potential to go beyond current EU commitments and deliver world leading legislation for fisheries management in the UK.

Legislation

The Common Fisheries Policy (CFP) is the central piece of policy governing fisheries in the EU. In addition, there are other pieces of legislation which serve to implement and support the CFP including: the Control and IUU Regulations, Technical Conservation Measures, regional multiannual management plans, and discard plans. This legislation is all directly applicable to the UK while it is a member of the EU.

The EU Marine Strategy Framework Directive (MSFD) has reciprocal links with the CFP and sets targets for fisheries to help European waters reach ‘Good Environmental Status’. The Birds and Habitats Directives  provide high levels of protection for important marine species and habitats.

Currently the implementation of the discard ban is being delivered in line with requirements but there is concern as to whether effective monitoring and enforcement is in place to give full confidence in its delivery. Currently approximately 47 per cent of fish stocks in Europe that are monitored against MSY are overfished, which represents an improvement but highlights the significant challenge of achieving sustainable fishing levels for all harvested species by 2020 as required by the CFP and international obligations. As the UK leaves the EU, a key risk is that environmental standards and requirements are weakened compared to EU law.

Capacity and funding

Currently there is low to sufficient capacity to operate in a fisheries management system shared with the rest of the EU. After the UK leaves the EU in 2019, government capacity will need to increase comensurately to agree and manage new access agreements, new ways of engaging with Advisory Councils (or new multi-stakeholder consultation bodies established in the UK) or new shared management frameworks. The EU is likely to be better equipped to negotiate new agreements, as the UK began the negotiations with limited its human resources capacity.

There is €243 million commited by the European Maritime Fisheries Fund (EMFF) for UK projects until 2020, but beyond this point resourcing of fisheries projects to improve sustainability and address socio-economic issues remains uncertain.

It is unclear whether the UK can continue to benefit from certain bodies, including the scientific advice from the International Council for the Exploration of the Seas that informs fishing levels, the multidisciplinary advice from the EU’s Scientific, Technical and Economic Committee for Fisheries, and the advice and coordination of the European Fisheries Control Agency (EFCA).

Governance

Under the reformed CFP in 2013, an increase in regionalised decision-making has provided new opportunities for stakeholder engagement at the regional level (albeit variable between regions), though participation puts a strain on the resources of NGOs and national administrations.

Leaving the EU will bring fisheries management and governance to the UK governments. However, more than 90 of the UK’s fish stocks are shared with neighbouring countries, meaning sustainable management is only possible if coordinated internationally. After it leaves the EU, the UK might be involved in Advisory Councils and other EU structures that aid regional co-operation and stakeholder input, but is unlikely to have any decision-making or influencing powers.

Currently, member states have responsibilities for monitoring, control and enforcement of fishing activities, but the European Fisheries Control Agency (EFCA) co-ordinates national operational activities and assists member states in their application of EU control-related rules. It is unclear how the UK’s enforcement agencies will engage with EFCA after Brexit.

Leaving the EU means that the UK will lose influence on EU decision-making and will lose the European Commission and CJEU as arbitrators of legal requirements and commitments. However, it could also mean that the UK adopts more progressive governance approaches to fisheries management.

Co-operation

The importance of regional coordination has been recognised through the CFP, with the 2013 reform increasing regionalisation of fisheries management. The EU Advisory Councils provide a forum for fisheries stakeholders to provide advice to national administrations and EU institutions on important issues in the North Sea and the North West Waters – areas of relevance to the UK. The European Commission currently is well set-up to negotiate new agreements and facilitate co-operation between neighbouring states. It is unclear what body in the UK will take on this role.

Once the UK has left the EU, these mechanisms will continue to exist and the UK will need to determine how it can be involved in order to secure the management agreement that will be necessary to deliver sustainable fisheries. It is unclear how this will be achieved and whether the UK will have any influence on current mechanisms for regional coordination. Ongoing engagement and communication between devolved governments will be essential to deliver consistency of approach. It is possible that the EU could use trade negotiations to ensure ‘regulatory equivalence’ with the UK, which would mean UK policy is at least equivalent to the EU in terms of standards around sustainability of fish stocks and impacts on the wider marine environment.

Nature protection
Principles and strategies

The EU has a Biodiversity Strategy with a headline target of halting the loss of biodiversity and the degradation of ecosystem services by 2020, and restoring them in so far as feasible. This target is derived from international biodiversity conservation commitments the EU and UK have signed up to under the Convention on Biological Diversity. The headline target is underpinned by six sub-targets, including targets on nature conservation.

EU environmental law identifies overarching objectives, such as achieving favourable conservation status, and there are usually clear trajectories setting deadlines for progress and delivery.

EU nature policy also provides a coherent framework for delivery on international biodiversity conservation commitments by the EU and its member states.

In leaving the EU, there is a high risk that UK will lose the strategic framework and mechanisms for joint action to achieve international targets, because, unlike regulations and directives, these are not expected to be transposed into UK law through the Repeal Bill process.

Legislation

The key EU nature laws are the Birds Directive and Habitats Directive, as part of a comprehensive legal framework for conservation that includes the Invasive Alien Species Regulation, Water Framework Directive, Environmental Impact Assessment Directive, and Marine Strategy Framework Directive.

These are transposed into UK law through primary and secondary legislation at UK and devolved levels, including the Wildlife & Countryside Act 1981 (as amended), and the Conservation (Natural Habitats, &c.) Regulations 1994, and provide a significantly higher standard of protection than that afforded by non-EU derived domestic legislation.

Implementation of both of these Directives remains incomplete as highlighted by the EU’s recent ‘fitness check’ of regulations, notably in the marine environment. This is holding back progress in achieving the Directives’ objectives. EU nature conservation legislation is proven to be effective where implemented, and part of a wider coherent legislative framework.

Capacity and funding

In 2012, NGOs highlighted that the ability of Natural England to act as an independent scientific advisor is critical to the effective, consistent and streamlined implementation of the Habitats Regulations. Between 2009-10 and 2015-16, the real terms cut in Natural England’s budget is greater than 40 per cent. Similar issues of declining expertise and funding also apply to all other statutory nature conservation bodies, including the Joint Nature Conservation Committee (JNCC).

Implementation of EU environment legislation is supported at EU level by the European Commission and European Environment Agency (EEA). These provide data, information and expertise in support of nature conservation in the UK and across the EU28. EU funding to support nature conservation is provided through the dedicated LIFE fund, as well as through EU sectoral funds like the CAP and CFP, and is a significant source of funding for UK nature conservation.

In the UK, the requirements of the Birds and Habitats Directive have acted as a catalyst and driver for projects which deliver multiple benefits far in excess of their costs which would never have been undertaken without this. Funding associated with the EU nature legislation has been fundamental in the creation, restoration and management of habitats and the recovery of many species in the UK.

Governance

Effective action to protect habitats and species at UK level has relied on the existence (and both the threat and the reality of enforcement of) the Birds and Habitats Directives. Objectives are aligned with regulatory and accountability frameworks to check on progress and facilitate action where insufficient progress is being made, and EU complaints processes enable all citizens to raise concerns with the Commission without cost or other barriers.

The European Commission accepts complaints concerning infringements of EU laws from individuals. Complaints by individuals can and do result in infraction proceedings in the ECJ, and remedies include injunctions, orders to restore or compensate any environmental damage caused, and heavy fines if court orders are ignored.

Co-operation

As nature does not respect national borders, co-operation is essential for effective conservation action. The UK network of sites protected under these Directives make up part of a biologically coherent EU-wide network, and they have all been created to meet the same objectives. There is a risk of a lack of coordination post-Brexit as well as the loss of EU guidance, enforcement mechanisms and funding. Reporting under the Birds and Habitats Directives helps to ensure that conservation action is coordinated across political borders, and provides an essential benchmark for identifying and assessing changes in the status and distribution of species, and correctly attributing those to the anthropogenic or natural drivers responsible. EU level coordination facilitates effective trans-boundary action for habitats, species, and actions to improve the wider environment.

EU level mechanisms that enable and support co-operation between EU member states in the field of nature conservation, include the Co-ordination Group for Biodiversity and Nature (CGBN) which brings together the Commission, the EEA, member states’ representatives, and various stakeholder (mainly NGOs). These mechanisms support implementation of the EU Biodiversity Strategy and the achievement of shared nature conservation objectives. Brexit means the UK will lose robust EU mechanisms, and will need to rely on less effective international ‘soft law’.

Waste & resources
Principles and strategies

EU resources policy is grounded in its Resource Efficient Europe flagship initiative, which sets indicators and strategy to foster a circular economy. EU waste policy is set out in the Community Strategy for Waste Management. It is based on the waste management hierarchy and is underpinned by the principle of producer responsibility, the precautionary principle and the polluter pays principle.

The EU’s 2014 circular economy package sets out priorities to develop markets for recycled materials, introduce new product standards and promote industrial symbiosis. The package contains recycling targets of municipal and packaging waste, a variety of sectoral recycling targets, and targets for reducing the landfilling of a variety of materials. A new package was published in 2015 which included an EU Action Plan focused on ecodesign (design requirements for products), plastics, marine litter and other issues, all linked to an implementation timetable for the circular economy. The 2015 package also includes four proposed directives on waste, packaging waste, landfill and electrical and electronic waste.

A shift in waste and resources policy has the potential to impact product quality and responsibility of producers. Any major changes to rules in the UK have the potential to impact trade flows on both sides.

Legislation

UK waste policy has mostly been developed at EU level. EU waste policy has been implemented through:

The Waste Framework Directive, which is the foundational directive for waste policy. It introduced the waste hierearchy, rules on the collection, transport, recovery and disposal of waste, and recycling policies.

The Basel Convention, which limits dumping of hazardous wastes in developing countries

The WEEE directive, which places reponsibility on producers of EEE to ensure environmentally sound recycling and disposal of WEEE through producer compliance schemes

The Ecodesign Directive, which sets product standards for energy and material efficiency

A range of other directives, including on radioactive waste, mining waste, sewage sludge, batteries, cars, landfill, packaging and persistent organic pollutants.

Without a new domestic legislative agenda, waste management efforts will stall and this will reduce business confidence in waste and recycling based industries.

However, EU waste law, including its implementation, has not been perfect. Brexit provides an opportunity to precisely define end of waste criteria and to improve on implementation. There is potential to develop new, ambitious recycling targets in England for 2025 and 2030, as well as separate collection provisions. Brexit also provides an opportunity for regulation and enforcement that better facilitates innovation and more sustainable secondary use of raw materials, if regulators are well resourced and appropriately supported by legislation.

Capacity and funding

The EU Action Plan in the new circular economy package sets out a series of measures to drive innovation and investment through the European Investment Bank, as well as other sources including Horizon 2020 and Cohesion Funding. There is a particular focus on small and medium enterpises and skills training.

In January 2017 the European Commission announced the creation of the Circular Economy Finance Support Platform with the European Investment Bank. The initiative aims to unite investors and innovators by bringing together the Commission, the European Investment Bank, national banks, institutional investors and other stakeholders. The platform will aim to raise awareness of circular economy investment opportunities and promote best practices among potential promoters.

The main risks and opportunities for Brexit will lie in the UK’s institutional capacity to regulate waste and resource policy effectively, to provide early stage finance for innovative circular economy companies and technologies, and to effectively set detailed product standards for energy efficiency, repairability, durability, and recyclability.

Governance

There are several key governance challenges resulting from Brexit, which include:

Adequately managing certain waste streams through developing forward planning, organisational facilities and capacity as well as recovery facilities

Overcoming the challenge of the illegal waste trade and illegal waste disposal. The Commission currently takes action for lack of control on illegal landfills and there have been significant rulings by the European Court of Justice, including fining member states large sums for failing to tackle illegal waste dumping.

Collecting and processing relevant comparative data on resource use, including the range of indicators used in the EU’s Resource Efficient Europe scoreboard.

Developing relevant product regulations which adequately incentivise manufacturers to improve products, while recognising the UK’s relatively modest market power for complex products

The EU Action Plan sets out a monitoring framework to measure progress towards a circular economy. The Action Plan lays out a timing for each element with some having started in 2016 and with all having been implemented by 2018.

In the UK, Defra and the Environment Agency are responsible for dealing with waste crimes, however, since 2015 the department has faced large cuts to its resources budget. This has raised questions about whether it will be able to ensure effective governance of waste policy once the UK leaves the EU.

Co-operation

The overarching goal of the EU’s resources and waste management policies is to reduce the environmental and health impacts of waste and improve Europe’s resource efficiency. Regional coordination is particularly advantageous as many of the environmental impacts of waste are transboundary, particularly product design and secondary raw material standards.

Environmental goals aside, changes to waste management and resources laws in the UK after it leaves the EU would impact trade flows. For example, legislation on specific waste streams is likely to affect both product quality and the responsibility of producers. Similarly, potentially different product standards can act as non-tariff barriers to trade, putting UK consumers and manufacturers at a disadvantage, whether through the purchase of shoddy products or domestic competition by low cost, low standards, low quality products.

Water
Principles and strategies

EU environmental policy aims at a high level of protection, and is underpinned by principles set out in the Lisbon Treaty including the precautionary principle and polluter pays principle. These are fundamental to ensuring adequate protection and management of the water environment.

The 2012 EU water strategy, a Blueprint to Safeguard Europe's Water Resources, outlines actions and a timeline up to 2050. The Blueprint focuses on better implementation of current water legislation, including the Water Framework Directive (WFD), integration of water policy objectives into other policies, and filling the gaps in regard to standards for water quantity and efficiency. It also covers policy on water scarcity and drought. The EU also has a strategy for green infrastructure, which is an important tool for delivering wildlife habitats in urban environments and reducing flood risk, but the UK has not created a national green infrastructure strategy.

In leaving the EU the UK is unlikely to adhere to the strategy and resultant conclusions around better implementation and potential future filling of gaps in standards. Without a national or the requirement to adhere to an EU strategy on green infrastructure weakens the driver for green infrastructure development.

Legislation

The key EU law for water policy is the Water Framework Directive (WFD) and its daughter directives, which include the Groundwater Directive and the Priority Substances Directive. The WFD is an essential framework for improving water quality and enables habitat restoration and creation. It requires an increase in water quality through the delivery of river basin management plans, and for no water body to experience deterioration (a recent ECJ ruling in support of no deterioration is now accepted as case law). There is risk that the UK will seek to water down standards, for example by extending the target for achieving good quality from 2021 to 2027 and beyond.

Transposition of the WFD has been only partial to date. In many cases, Defra used existing legislation as evidence of compliance; the Commission informed the RSPB that Defra had submitted 100 pieces of legislation and was reluctant to add significant new legislation, so there are gaps. The most notable are:

Abstraction – the WFD requires comprehensive controls, but the UK’s existing system continues to exempt certain activities and does not guarantee meeting WFD objectives.

Diffuse pollution – the WFD requires controls (Scotland put in place general binding rules) but there has been nothing in England & Wales. Water protection zones were amended specifically to fulfil this requirement, but have yet to be used.

Other important laws affecting water quality are:

Nitrates Directive is vital in controlling fertiliser inputs into the aquatic environment.

The Urban Waste Water Treatment Directive controls sewer discharges

The Bathing Waters Directive has resulted in an impressive improvement in the quality of the UK’s beaches and coastal waters with respect to particular faecal pollutants

The Floods Directive has enabled a strategic national approach to managing and mitigating flood risk

Chemicals regulation (see chemicals section above) is vital to avoid water pollution, as it controls pollutants at source

Land management policy including the Common Agricultural Policy and legislation on pesticides and biocides. Baseline measures and compliance around soil management and erosion, nutrients and pesticides are particularly important.

A number of water quality and flood risk requirements are included within the Environmental Permitting Regulations.

Capacity and funding

Most of the directives relevant to water policy are monitored and managed by the Environment Agency. Both Defra and the Environment Agency are under increased pressure and resource constraints, and cuts in recent years have resulted in a reduction in monitoring and inspections.

The government funds improvements to water quality, including habitat creation and restoration to help meet WFD requirements. If this funding is reduced, due to there no longer being a risk of infringement, or due to a national weakening of WFD requirements, there will be far fewer river restoration and water quality improvement projects.

In partnership with the Environment Agency, water companies have undertaken a chemicals investigation programme to assist understanding of WFD priority substances. This has resulted in substantial monitoring especially around emerging chemicals. The UK is significantly under resourced and under capacity to deal with chemicals regulation.

Governance

The EU sets objectives and monitoring requirements for water policy, which are relevant in planning decisions and enforceable in the courts. Governance structures in England have been based on a series of plans and protection zones, administered by the Environment Agency (EA), which also levies fines on polluters. The Water Framework Directive objectives are delivered in England through river basin management plans. The Floods Directive is delivered through flood risk management plans which lay out the flood risk and projects to reduce these risks. These plans open up funding for the delivery of projects to achieve plan objectives.

The various directives have resulted in the government creating a number of protection zones. These are governed, monitored and managed by the EA.

The EU sets requirements around monitoring, particularly around priority substances. Without the EU’s requirements, monitoring may be reduced, thereby reducing the UK’s ability to understand how human activities are impacting the water environment. There is particular risk of losing the biological quality elements of WFD monitoring, as this is an area the EA is already looking at.

The UK has a number of infraction proceedings relating to waste water including the Thames and Llanelli. The EU has warned the UK with infraction proceedings regarding its lack of action to tackle diffuse agricultural pollution, particularly phosphorous. This suggests that the UK might not be willing or able to comply with some water standards after it leaves the EU.

Co-operation
It will be important to continue co-operation between Northern Ireland and the Republic of Ireland around the three cross-boundary water bodies, which will still be subject to the Water Framework Directive after Brexit. So far, the competent authorities have maintained a high level of co-ordination.