by Professor Margherita Pieraccini, University of Bristol Law School
Following the Brexit referendum, most environmental law scholars became preoccupied that domestic environmental standards may decrease, both substantively and procedurally. After all, the majority of domestic environmental law derives from EU law and the EU institutions have played a seminal role in enforcing environmental law.
Years later, the preoccupation has not faded away.
There have been numerous developments in the field. I do not intend to provide a comprehensive review here but to focus on one area of environmental law that is attracting much attention lately. No, it is not climate change. It is nature.
Nature in English Law
Nature is not easily definable. One could argue that it is synonymous with environment, encompassing the whole field of environmental law. Philosophically, one could question whether the category nature should even exit on its own, if we are serious about rejecting Cartesian dualisms (nature v society, mind v matter) and embracing more ecosystemic views.
However, the way that nature is defined in UK law has sufficiently precise boundaries: it encompasses the protection of habitats and species, and there are several dedicated legal instruments on nature. Such instruments include primary legislation introduced decades ago, such as the Wildlife and Countryside Act 1981, or more recently for the marine environment the Marine and Coastal Access Act 2009, Part V. They also include secondary legislation such as the Conservation of Habitats and Species Regulations 2017 (Habitats Regulations). The Habitats Regulations transpose the EU nature Directives (Habitats Directive and Birds Directive) into domestic law and have been amended due to Brexit. They fall into the category of retained EU law under the Withdrawal Act 2018, section 2.
Within ‘nature’ law, protected areas occupy an important space as they are deemed to be key spatial tools for the protection of habitats and species. In the remainder of this post, I offer reflections on two issues: the potential weakening of substantive protection and of procedural standards in relation to protected areas law.
The importance of retained EU law for nature
Let me start with Harris v Environment Agency, a very recent judicial review case decided in the High Court concerning provisions under the Habitats Directive and the Habitats Regulations. The court judgment is dated 6 September 2022.
At the centre of the case was a claim against the Environment Agency for not having carried out a comprehensive investigation of water abstraction licences affecting a Special Area of Conservation (SAC), which is a type of protected area designated under the Habitats Directive. The Environment Agency’s efforts to investigate environmental damage caused by the water abstraction had been limited to only three Sites of Special Scientific Interests, which are protected areas under the Wildlife and Countryside Act 1981, rather than the whole SAC. The claimants argued, inter alia, that the Environment Agency had breached EU law and domestic law and the court agreed with the claimants. More specifically, it was found that the Environment Agency had breached Regulation 9(3) of the Habitats Regulations which requires the appropriate authority (in this case the Environment Agency) to have regard to the requirements of the Habitats Directive. Johnson J offered a strong interpretation of ‘have regard to the requirements’, holding that it means for the appropriate authority responsibility to discharge those requirements (para 87) because requirements, differently from advice or guidance, usually are mandatory (para 83).
The Justice also held that, irrespective of the Habitats Regulations, Article 6(2) of the Habitats Directive—which requires taking appropriate steps to avoid the deterioration of natural habitats and the habitats of species in the SAC, as well as the disturbance of species for which the SAC has been designated—was directly enforceable and had been breached (paras 104, 106). It was possible to consider a breach of Article 6(2) because of section 4(2)(b) of the Withdrawal Act 2018, whereby rights etc arising under an EU Directive are recognised and available in domestic law and thus directly enforceable if they are of a kind recognised by the Court of Justice of the European Union or a domestic court in a case decided before exit day.
This case shows the importance of ‘retained EU law’ in the form of Regulation 9(3) Habitats Regulations and in the form of rights etc. saved under section 4 of the Withdrawal Act 2018. However, decisions of this sort, which ensure continuity with substantive EU environmental law standards and ensure accountability, may not be possible in the near future because of recent developments in government policy and law.
Worrying changes ahead
Continuity with substantive environmental law standards is under threat. Section 112 of the Environment Act 2021 permits to amend by regulation the general duties under the Habitats Regulations. This means that the Government could decide to modify (and reduce) current requirements. This power has not yet been used but it is taken seriously in the recent Nature Recovery Green Paper, which goes some way towards suggesting that the powers under section 112 of the Environment Act 2021 can be used to refocus Regulation 9 duties towards a domestic environmental law framework, rather than the EU one (p. 19). Not much evidence is provided in the Green Paper to support why this would be a positive step for nature. Thus, there is the risk that Regulation 9(3) could be amended to erase the references to having regard to the requirements of the Habitats Directive. Most worryingly, the Habitats Directive would stop being directly enforceable as a result of the Retained EU Law (Revocation and Reform) Bill (the ‘retained EU law Bill’), currently under scrutiny in Parliament. Clause 3 of the Bill will repeal section 4 of the Withdrawal Act 2018 by the end of 2023. Therefore, in the future English Courts would no longer be able to hold that rights etc arising under EU law are directly enforceable domestically. If these changes are brought in, cases such as Harris could not be argued.
Worrying developments go even beyond the possible amendments to the general duties of the Habitats Regulations under the Environment Act 2021 and the removal of section 4 of the Withdrawal Act 2018 under the Retained EU law Bill. This is because the Retained EU Law Bill is seeking to do something very radical and very problematic by introducing a sunset clause for all EU retained law. Clause 1 of the Bill will automatically revoke all EU-derived subordinate legislation and the retained EU direct legislation at the end of 2023. Extensions by a Minister of the sunset period up to 23 June 2026 are possible, under Clause 2. Extensions are likely to be needed considering that the UK government EU law dashboard lists 570 retained EU laws that the Department of Environment, Food and Rural Affairs will need to review. However, retained EU law may be kept only if a relevant national authority makes regulations excluding provisions from the sunset under Clause 1(2).
This means that section 112 of the Environment Act 2021 is not the only threat to the Habitats Regulations, as the Regulations may disappear altogether under Clause 1 of the Retained EU Law Bill.
Even if they are saved under Clause 1(2), under Clause 15 a relevant national authority has the power to revoke any retained EU law or to replace it by statutory instrument. Wide discretion is afforded to the relevant national authority: if retained EU law is revoked provisions replacing it must be of a kind that the authority considers having the same or similar objectives. What does similar mean? Also, the focus on objectives could mean that the procedures to achieve such objectives may be very different from the piece of retained EU law that is replaced, thereby not guaranteeing equivalent procedural standards. If the retained EU law is revoked, the relevant authority may make alternative provisions that it considers appropriate. No mention is made of the type of provisions that may be appropriate. The discretion of the relevant national authority is only tamed by Clause 15(5) and not in a way that will lead to improvements in environmental protection standards. Indeed, Clause 15(5) specifies that powers to revoke or replace EU retained law must not increase the regulatory burden. Burden is defined to include, inter alia, a financial cost, an administrative inconvenience, an obstacle to efficiency, productivity, or profitability, all of which are likely with protected areas designation and management.
Clause 16 enables a relevant national authority to update retained EU law to take account of changes in technology or developments in scientific understanding. This clause shows a commitment to adaptive governance, which is important for protecting nature in an age of global environmental change, as long as the rule of law is not undermined. Still, again, the appropriate national authority has wide (too much?) discretion given that it has the powers to update if it ‘considers appropriate’ to take those changes into account.
There are more flaws in the Bill affecting environmental law that others have explored but the point to make here is that Parliamentary scrutiny is removed or seriously downgraded by the Bill, the wide discretion afforded to the relevant public authority makes the environmental law landscape very uncertain and susceptible to changes and there is a risk is to lose key pieces of environmental law, such as the Habitats Regulations.
Although it is hoped that key legislation such as the Habitats Regulations will be among those saved, the emphasis on streamlining and simplifying protected areas law that is found in the Nature Recovery Green Paper points to potential amendments weakening key regulatory tools such as the Habitats Regulation Assessment, which are well known and have enabled protection of designated features from plans and projects likely to have significant effects on the protected areas.
A worrying picture overall.
 Ben Pontin was an exception with his book The Environmental Case for Brexit: a socio-legal perspective (Bloomsbury 2020).