Environment: legal implications of Brexit for your business

For UK environmental law, the three main implications of Brexit are as follows:

• An immediate review of EU environmental law obligations which have direct effect (e.g. REACH) and indirect effect (e.g. WEEE) will need to be conducted. The EU REACH regime governs and polices the import and use of hazardous chemicals in commercial and domestic applications, and is a highly complex piece of ‘direct’ EU regulation which currently binds the UK. Its removal would present challenges to the UK government on how it tracks, evaluates and registers the (often seriously hazardous) chemicals that are used products in commercial supply chains.
• A detailed review of business planning will also need to be carried out in the context of the likely UK abandonment of current EU legislative environmental programmes, such as the Circular Economy Package.
• Utilities should seek urgent clarification from Government on their position in the light of EU environmental law which will materially impact their long-term strategy in the UK, including Emissions Trading, Environmental Permitting, Greenhouse Gas Emissions targets.

Beyond this, subject to the precise form it takes, Brexit is likely to have far-reaching repercussions on the shape of UK environmental law across a wide array of UK business sectors. This is because the overwhelming majority of UK environmental law is based upon EU directives. UK laws relating to waste, chemicals, nature conservation, environmental protection, climate change, producer responsibility and industrial emissions all largely stem from the EU and its energetic development of environmental law over the last 25 years.

Large industrial facilities

• UK industrial operators in sectors such as energy, waste, manufacturing and mining are currently required to obtain complex environmental permits to regulate their emissions and environmental impact on air, water and land.
• The current manifestation of this regime is the Industrial Emissions Directive, which is set to introduce stricter emissions controls, notably in relation to power plants.
• A form of Brexit which resulted in a move away from these regimes would create a regulatory void in how these facilities are regulated.

Greenhouse gas emissions

• The UK is currently seeking to meet a variety of challenging EU targets which are binding on the UK involving reducing GHG emissions to below certain levels, and the sourcing of energy from renewable sources.
• These EU targets spurred rapid development of the UK’s renewable energy sector and the subsidy regimes which support it.
• Large industrial emitters of GHGs are also currently obligated to participate in an EU Emissions Trading Scheme which, like the GHG targets, could be dispensed with in the event of Brexit.

Chemicals

• The EU REACH regime, which governs and polices the import and use of hazardous chemicals in commercial and domestic applications, is a highly complex piece of ‘direct’ EU regulation which currently binds the UK.
• Its removal would present challenges to the UK government on how it tracks, evaluates and registers the (often seriously hazardous) chemicals that are used products in commercial supply chains.

Waste

• European law, whether through decisions by the European Court of Justice or by EU Directives (for example the Waste Framework Directive), is fundamental to UK laws relating to waste.
• The European waste hierarchy (of prevention, reuse, recycle, recovery and disposal), which is the bedrock of how the law relates to waste, is now enshrined in UK law through UK regulations. EU law not only governs how the UK defines what waste is, but it governs amongst many things its management, storage and disposal.
• Over recent years, EU directives have set challenging targets on recycling volumes, packaging waste and diverting waste from landfill, as well as creating obligations and regimes for dealing with waste products at their end of life (for example waste electrical items and batteries), all of which binds the UK and its business sectors.
• In addition to current laws, the EU has also announced proposals for a new “Circular Economy” package of legislation (reforming key waste directives) which, following Brexit, may not now be transposed into UK law.