Civil society will be preoccupied in the years to come with ensuring the maintenance of environmental standards formerly set by EU environmental law. Keeping the same headline environmental standards post-Brexit will be a victory worth celebrating. Day to day questions of governance are however fundamental if we are to ensure that we create not just the appearance of strong environmental law, but environmental law that means something in practice. This blog provides some thoughts on the less visible aspects of EU environmental governance, aspects that must be held up to scrutiny as we develop an accountability framework ‘independent’ of the rules and institutions of the European Union.
Certain aspects of environmental law, such as quality standards for water and air, rights to participate in environmental decision making, substantive protection of sites hosting valued species and habitats, are highly visible. Important as they are, however, they are just the beginning. EU law has also shaped UK environmental protection less direct, less easily visible, ways. It routinely imposes a framework of governance obligations on Member States: to plan publicly for implementation; to report publicly and to the Commission and other Member States on how they’re doing; to explain failures to comply, or the lawful use of derogations and exceptions; and to explain how compliance will be achieved in the future. Even if the reporting sometimes falls short of its potential, these obligations require the generation and publication of powerful environmental information, and constitute an important part of environmental accountability, enabling political and legal, formal and informal, peer and citizen, scrutiny of government action.
The long reach of EU governance mechanisms can be seen throughout environmental law. The hard substantive protections provided by the Habitats Directive are famously vulnerable post-Brexit. There will be a battle over standards, but we should not forget that these standards are bound up in a typical multi-level governance framework, which is crucial to their application. The Directive contains the usual obligations to report periodically to the Commission on the implementation of the Directive. Any exception to the prima facie position that a project that will ‘adversely affect the integrity’ of a protected site cannot go ahead, involves the Commission, and a certain amount of publicity. A harmful project can go ahead only for ‘imperative reasons of overriding public interest’, provided also that there are no alternative solutions, and that the Member State takes appropriate ‘compensatory measures’; the Commission must be informed. Even more strikingly, when the site hosts a priority habitat type or species, imperative reasons of overriding public interest other than human health, public safety or ‘beneficial consequences of primary importance for the environment’, may only be considered ‘further to an opinion from the Commission’.
The Habitats Directive is certainly a special piece of environmental law. But the multi-level, dense relationship it illustrates is far from unique. The River Basin Management plans required by the Water Framework Directive, for example, must contain a wealth of material, including: a summary of the measures put in place to achieve ‘good water status’ and ‘no-deterioration’; an explanation of any failure to meet those objectives, or any risk of failure; an explanation of the extra monitoring and remedial obligations that kick in when basic aims are not met; an explanation of the use of alternatives or exceptions to the good water status or no-deterioration norms. As under the Habitats Directive, derogations and exceptions cannot be used quietly – they must be explicitly acknowledged and explained, creating an opportunity for the application of political or legal pressure.
There will be a battle over standards, but we should not forget that these standards are bound up in a typical multi-level governance framework, which is crucial to their application.
The first question raised by Brexit is whether we want continued reporting and planning in UK (English, Northern Irish, Scottish, Welsh) environmental law. Are the obligations to report, plan and disclose an important form of accountability and an opportunity for iterative environmental improvement, or are they ‘red tape’? The way I pose the question probably makes my own views clear. If we decide that planning, reporting, and explaining has the potential to improve process and substance, the next question is who the plans, reports and explanations are for. Simply to require publication, so that anyone can see the material, scrutinise and respond, would be relatively straightforward. Such publicity is important, but the demands it makes on civil society should not be underestimated – and if these reports go into a void, they become red tape, in a self-fulfilling prophesy. An obligation on a specific public body to respond to reporting and planning, as the Commission currently does, creates the beginnings of an accountability loop.
And when an external assent is necessary, who gives it? It is far from obvious who should take the role of the Commission under the Habitats Directive, and Brexit could mean the loss of a whole level of institutional checks. Moreover, even if a formal opinion isn’t demanded, the scrutiny goes in part to a check on the legality of government actions. The special space for the enforcement of EU environmental law, through Commission action and in the national courts, will be much missed post-Brexit – not just by those who litigate, but by those who use the authority of law to shape political change.
And finally for now, how will the substantive, but often sparse, norms set out in legislation be developed and interpreted? So far, this has largely been dealt with as a fairly straightforward technical question – we shall provide in well-drafted legislation for the role of existing and future ECJ judgments. But that avoids the sensitivity of these questions. What constitutes an ‘imperative reason of overriding public interest’, and who decides? Is housing such a reason? Do we turn to government agency, courts alone, committees, lists altered at ministerial discretion, or statutory instrument?
As we try to work these questions through, we may find at least the beginnings of a national model in the Climate Change Act 2008: a highly structured system of mandatory (probably justiciable) planning and reporting, depending on independent expertise, ministerial responsibility and parliamentary (as well as public) scrutiny. Importantly, this isn’t a closed national approach, but is explicitly open to developments at international and EU level.
Understanding the ways in which the EU’s institutional and legal machinery enhances accountability is less headline-grabbing than standards for the protection of bats and birds, just as tricky as standards for toxics or waste, and as important as either. How we fill the gaps post-Brexit is not a small technical detail, which can comfortably be left to the bureaucrats while civil society concentrates on the meaty substance. It is a profound political question. The location of authority in decisions on our environment, and the mechanisms through which that authority may be held to account, must be made visible in the debate around Brexit, and subjected to careful scrutiny and noisy debate.
Featured image credit: Europe-England. CC0 Public Domain via Pixabay.