Green and pleasant land: UK environmental policy post-Brexit

Leaving the European Union was sold on promises of freedoms and autonomy for Britain, including on climate matters. Martin Guttridge-Hewitt navigates the resulting legal maze to understand what taking back control means for the planet.   

Almost eight years after the referendum, Britain’s EU exit remains incomplete. As of spring 2022, an overwhelming amount of legislation still needs updating, and few areas make this clearer than climate issues. 

Since formal departure from the bloc in January 2021 there has been movement, most notably with the Environment Act 2021 passing Royal Assent before Christmas. But in many areas the paper only introduced frameworks to set new targets. Air quality is one example, with specific limits only revealed last month and currently undergoing consultation.  

The most dangerous emissions – fine particulate matter (PM2.5) – will be halved to 10 micrograms per cubic metre by 2040 and population exposure reduced by 25%, compared with 2018 levels. These figures go further than pre-existing European directives, but are double recent World Health Organisation guidelines, with the EU also working to update its own policies.  

Any progress on air pollution is welcome, but the UK’s unique situation post-Brexit has created a quagmire of laws that could pose a threat to early environmental progress. Simply put, clarity on what new legislation looks like is slow to emerge, and, as Professor of Environmental Law at University College London (UCL), Eloise Scotford, explains, questions also hang over implementation. 

‘The majority of EU environmental law that applied to this country pre-exit has been retained. In that process, there were gaps, which is the motivation for what is now the Environment Act and Continuity Act in Scotland. Legislation is planned in Wales, but this has been held up politically, and Northern Ireland is in a very complicated position,’ says Scotford. ‘The puzzle is putting this together with what we retained from EU law under the Withdrawal Act 2018. In England, there’s a huge volume linked to the Environment Act, so legally it’s very tricky to read these bodies together, because they’re both on-the-foot.  

‘The issue is that we are faced with two tier regulation. And there is a risk that the uninitiated will just go to the Environment Act, look for the targets, and say that’s our environmental law post-Brexit. But, actually, the majority of air quality standards right now are in retained EU law, and this has stronger enforcement architecture because the legal consequences of standards being breached are harsher,’ she continues, citing the European requirement that exceedances of air pollution limits are addressed in ‘as short a time as possible’, while the UK Environment Act uses less instructive wording: ‘as soon as reasonably applicable’.  

Although less publicised, a new Air Quality Partners programme is also big news for the UK. Not least because it finally recognises that local authorities, long forced to hold most of the responsibility for air quality, find success difficult because the effects of pollution are felt in the local area, but the sources may not fall in their jurisdiction. Effectively, they can be powerless when it comes to addressing many problems.  

‘Air Quality Partners now means local authorities can identify the big source of air pollution at the moment, let’s say a highway, and bring in whichever authority is responsible for regulating it to work on a solution,’ says Scotford, emphasising that in return for greater powers to tackle the issue, there will now be much more pressure on and penalisation of local authorities that fail to act. However, glaringly, there has so far been no word on increased resources or funding for this.  

‘We’re beyond air quality being a siloed part of local authorities, so having investment in air quality personnel is important and integrating within wider structures is crucial. There is potentially hope authorities will get more assistance from organisations involved in the air quality partnerships, too, which could create efficiencies,’ she replies when asked about advice for councils.  

‘A worst case scenario example would be every authority asking Highways England to be their Air Quality Partner separately – that would be a bureaucratic mess,’ Scotford continues. ‘But if they join together and say “actually, many of us need to have this arrangement, why don’t we do it together?” you can imagine that being quite effective.’ 

Whatever differences policies and laws make, public authorities bound either to comply or enforce are now subject to scrutiny from the Office for Environmental Protection (OEP). Arguably the most significant development in UK climate policy post-EU, this new organisation sits above all others charged with climate defence, such as Natural England or the Environment Agency.  

‘If you look at the pre-consultation draft of what they have been tasked with, and their ambition, it’s very much not about just doing the job, but thinking really strategically and carefully about how to resolve environmental problems,’ Scotford says of the OEP. ‘They want to involve stakeholders, including the public, so there’s a sense of them being very open and wanting lots of input. They’ve got excellent staff, and a really exciting agenda.’ 

Air Quality News approached a spokesperson for comment on the organisation’s overall position, and they fed back details on a role that has only been active for a matter of months. ‘Our principal objective is to contribute to environmental protection and the improvement of the natural environment. We will do this by holding the government and public authorities to account against environmental laws and targets,’ says Natalie Prosser, OEP interim CEO.  

‘We are preparing to publish our first monitoring report of the government’s progress against the 25 Year Environment Plan,’ she continues. ‘We will also be responding to a number of government consultations, including on environmental targets, where we will be pressing for targets that reflect the urgency of the situation and the scale of the challenges faced.’ 

Scotford is optimistic about the OEP’s potential to be effective and based on Prosser’s remarks it’s not hard to understand why. But, as is clear in recent criticism of a chronically underfunded and short-skilled Environment Agency, not to mention the enormous damage already wrecked on nature across the countries and the mess of laws, the road to a greener, healthier, and more pleasant land post-Brexit looks long and rocky.