Environmental Law after 31 December 2020

Much of environmental legislation in the UK (with some notable exceptions) stem from EU legislation. This includes domestic legislation relating to waste management, Environmental Impact Assessment and Strategic Environmental Assessment, carbon trading, energy efficiency, water pollution, chemicals, and those relating to the protection of certain habitats and species - which derive from, and/or implement, various EU legislation (i.e. Directives, Regulations, and Decisions).Environmental professionals, businesses and public sector bodies whose operations are affected by these environmental regimes will therefore want clarity on the practical implications of Brexit with the transition period coming to an end at 11pm on 31 December 2020 (this date is also commonly referred to as the “IP completion day”).It is therefore crucial to understand how judgments of our domestic courts and the Court of Justice of the European Union (“CJEU”), as well as any related guidance documents published by EU institutions (such as the European Commission), will be treated when the transition period ends on 31 December 2020.

Will existing EU-derived domestic legislation and Direct EU legislation continue to apply in the same way after 31 December 2020?

In general, yes.A new body of law (known as “retained EU law”) will be created by virtue of the European Union (Withdrawal) Act 2018 (as amended) (the “Withdrawal Act”)”. The aim of the Withdrawal Act is to preserve, as far as possible, the domestic effect of EU legislation as it applied to the UK immediately before the 31 December 2020.Under the Withdrawal Act, EU-derived domestic legislation (such as existing environmental regulations that implement EU Directives) and Direct EU legislation (such as EU regulations and decisions) which were in force immediately prior to the end of the transition period will continue to form part of UK domestic law after 31 December 2020.Going forward after 31 December 2020, however, Parliament will be at liberty to introduce future changes to the existing legislation since, after 31 December 2020, the UK will no longer be bound by EU legislation.

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Will CJEU judgments / domestic court judgments given prior to 31 December 2020 remain binding after 31 December 2020?

In general, yes. At the present time the position, under section 6(3) of the Withdrawal Act, is that the courts in the UK, with the sole exception of the Supreme Court, will continue to be bound by judgments handed down by the CJEU and by domestic courts prior to 31 December 2020 when interpreting retained EU law. This is the case as long as the relevant piece of legislation remains unmodified by Parliament. The Supreme Court will, however, be at liberty to depart from these judgments after 31 December 2020 if they consider it appropriate to do so. In deciding whether to depart from any CJEU judgments given prior to 31 December 2020, the Supreme Court must apply the same test as it would apply in deciding whether to depart from its own case law (namely, “whether it appears right to do so”) (*1) .However, the Government is proposing to extend to other domestic courts the power to depart from pre-31 December 2020 CJEU judgments. The Government held a consultation on 'Departure from retained EU case law by UK courts and tribunals' between 2 July and 13 August 2020. Following that consultation, the draft European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020 were laid before Parliament on 15 October 2020 which would extend the power to depart from pre-31 December 2020 CJEU judgments to the following “relevant courts”:

• the Court of Appeal in England and Wales;
• the Inner House of the Court of Session in Scotland;
• the Court of Appeal in Northern Ireland;
• the High Court of Justiciary in Scotland, when sitting as a court of appeal in relation to a compatibility issue with EU law or a devolution issue in Scotland;
• the Registration Appeal Court in Scotland;
• the Lands Valuation Appeal Court in Scotland; and
• the Court Martial Appeal Court.

Under the draft regulations, the above relevant courts will not be bound by (and therefore can choose to depart from) any CJEU judgments given prior to 31 December 2020 (including those relating to environmental law matters), except in so far as “there is post-transition case law which modifies or applies that retained EU case law and which is binding on the relevant court”. This means that, in England and Wales, the Court of Appeal will be at liberty (as well as the Supreme Court) to depart from CJEU judgments if it wishes to do so.

1. The only exception to this would be where the Court of Appeal is dealing with a CJEU judgment which, after 31 December 2020:
2. has already been “modified or applied” by the principles or decisions of a UK court or tribunal (i.e. “post-transition case law”); and the court or tribunal which decided to modify or apply the CJEU judgment is one whose decisions are binding on the Court of Appeal (so, in other words, the modification or application was by the Supreme Court or by an earlier decision of the Court of Appeal).

Courts lower than those relevant courts listed above will continue to be bound by pre-31 December 2020 CJEU judgments i.e. the above proposed regulations do not affect them. In extending the powers of the court to depart from EU law in these proposed regulations, the Government has confirmed that its aim is to enable retained EU caselaw “to evolve more quickly than otherwise might have been achieved." (*2)Please note that at the time this article was being written, the draft instrument has not yet completed the first stage of the approval process for this type of legislation (i.e. the instrument had not yet been considered by the Joint Committee on Statutory Instruments).

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Would the Court of Appeal in England and Wales continue to be bound by domestic court judgments given prior to 31 December 2020 after this date?

Yes. It is important to note that the Government, following responses received during the consultation, has deliberately limited the power of the above relevant courts (so, the Court of Appeal in England and Wales) under the proposed regulations to the departure from CJEU judgments given prior to 31 December 2020 only (and not to domestic judgments given prior to 31 December 2020).The Government concluded in its response “that it is not desirable for courts with the power to depart from retained EU law [sic] to be able also to depart from retained domestic case law and that development of such law should be governed by the existing rules of precedent.”(*3) One concern raised during the consultation was that by allowing lower courts to depart from the reasoning of senior courts (or in the case of the Court of Appeal, its own past judgments), the common law system could be exposed to the risk of conflicting precedents which would give rise to legal uncertainty.

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Will CJEU judgments given after 31 December 2020 be binding?

No. Decisions of the CJEU on environmental law matters made after 31 December 2020 will no longer be binding on any of the courts in the UK. It will also no longer be possible for UK courts to refer cases to the CJEU after that date. However, that is not to say that CJEU decisions post 31 December 2020 will cease to be relevant altogether after 31 December 2020. At present, section 6(2) of the Withdrawal Act provides that “a court or tribunal may have regard to anything done by the CJEU or another EU entity or the EU so far as it is relevant to any matter before the court or tribunal”. This means that domestic courts and tribunals will have the option to “have regard to” (although will not be bound to follow) decisions of the CJEU when deciding on issues in various environmental regimes. This also means there is some scope for those wanting to rely on CJEU judgments handed down after 31 December 2020 (for example, when putting forward arguments to support planning applications) to still refer to these judgments, even though these judgments will not be strictly binding. In doing so, one should refer to section 6(2) of the Withdrawal Act.

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Can I still rely on guidance documents published by EU institutions (such as the European Commission) in future?

EU institutions, such as the European Commission, have published various guidance documents which often assist private and public bodies as well as environmental professionals on the interpretation of certain key concepts relating to specific EU environmental legislation. The good news for those wanting to continue to rely on existing guidance documents is that these documents may still have some influence on domestic courts after 31 December 2020. This is because, as noted above, under section 6(2) of the Withdrawal Act, courts and tribunals “may have regard to anything done by the CJEU or another EU entity [e.g. the European Commission] (...) so far as it is relevant to any matter before the court or tribunal”. Note that the legislation is not specifically empowering administrative bodies (such as Local Planning Authorities / the Planning Inspectorate) to have regard to “anything done by the CJEU or another EU entity”, but the logic would be that other public bodies could also do so given that the Courts above them will have this option.

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• (*1) The UK Supreme Court test in deciding whether to depart from its own case law is set out in the House of Lords Practice Statement of 26 July 1966. This has been confirmed to apply to the Supreme Court in subsequent case law (Austin v Mayor and Burgess of the Borough of Southwark [2010] UKSC 28) and in the current UKSC practice direction (https://www.supremecourt.uk/docs/practice-direction-03.pdf).
• (*2) Government response to consultation: Response to the consultation on the departure from retained EU case law by UK courts and tribunals. Pages 8.(*3) (*3)
• (*3) Government response to consultation: Response to the consultation on the departure from retained EU case law by UK courts and tribunals. Pages 48-9.

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Freeths LLP's Environmental Law Team will continue to monitor the impact of Brexit on various areas of environmental law. In the meantime, please feel free to contact us if you have any queries regarding the content of this article or any other environmental law issues. We are always happy to answer quick queries without any charge and would encourage you to be in touch.