Brexit’s impact on the UK’s environmental, health and safety regulations

Brexit

On 23rd June 2016, the United Kingdom became the first member state to vote to leave the European Union and trigger the Article 50 withdrawal process. Over an estimated timeframe of two years, the UK and EU will negotiate the least disruptive exit possible. The first Brexit negotiation phase begins in June 2017. Four months into the negotiation process, the reality appears to be a political deadlock.

Current political commotion aside, there is the question of the mammoth and complex task of organising the UK’s environment, health, and safety regulations (EHS). This article will explore the potential changes required to keep this intact post-Brexit, taking into consideration the UK government’s current position of favouring less interaction with the EU. The UK will also be leaving the European Economic Area, and will no longer be subject to EU laws[1] once the Repeal Bill has swapped EU laws for new UK laws.

EU legal impact on the UK

Environmental issues transgress borders by nature. Widespread  improvements have been seen across the EU – with significant impact in the UK[2] – thanks to its sustainable development objectives, notably the Waste Framework Directive, REACH (Registration, Evaluation, Authorisation and Restriction of Chemicals), and product standard regulation. A quarter of all EU laws can be found within the UK’s Department for Environment, Food & Rural Affairs alone.[3]

The UK has shaped transnational electricity and gas markets and pushed for further carbon reduction within the EU, itself having reduced carbon emissions by 34% between 1990-2014.[4]

The UK’s Health and Safety Executive (HSE) is widely considered world-class in its kind.  But the EU has its role to play, too; for instance, its Management of Health and Safety at Work Regulations 1999 establishes ways in which employers must ‘identify, evaluate, avoid, and reduce workplace risk’.[5]

Environmental compliance

There has been widespread concern over Brexit’s potential impact on changes to domestic environmental legislation. Environmental groups and professional bodies alike have voiced concerns that by leaving the EU and EEA, environmental standards in the UK could be trimmed down.[6] Furthermore, laws transferred through the Repeal Bill would be through statutory instruments or secondary legislation, which can be amended or revoked by the government in the future.[7] Uncertainty is unconducive to business’ ability to make long-term plans – therefore it is important that both the UK government and the EU Commission maintain transparency about potential changes.

Air pollution & chemicals

air pollution

One of the biggest environmental questions that Brexit will entail is that of air pollution. While the UK’s air quality has improved as a result of EU membership, it is still one of the country’s biggest environmental issues. As a result of repeated air pollution breaches, specifically breaches of NO2 limit value,[8] the European Commission issued a final warning. The current UK environmental policy is barely regarded as an actual preventative solution.

The EU chemical industry’s four key regulations are REACH, CLP Regulation, Biocidal Products Regulation, and Prior Informed Consent Regulation. REACH is key in chemical product marketing, its dynamicity bringing it of potential post-Brexit changes. Its implementation requires the involvement of regulatory bodies like the European Chemicals Agency, which may well no longer exist by the time the UK leaves, meaning REACH could theoretically become ‘zombie legislation’.

While it may seem beneficial to replicate REACH with a UK law so that British products remain competitive on the international market, ultimately the EU will still stipulate that products meet the original or expanded requirements – otherwise, it may not recognise new legislation equivalent to REACH, meaning importation registration costs would increase. Any new legislation should therefore either meet or surpass current EU legislation to minimise future problems for chemical manufacturers.

The UK has a complex system regulating industrial processes with potentially grave effects on the environment. The EU’s Industrial Emissions Directive is historically derived from the British model, meaning widespread changes to the UK system are not expected.[9] Its reputation as an effective management tool means it is unlikely to face significant changes.

Waste

nuclear waste

Through its Waste Framework Directive, the EU has had a remarkable impact on the British environment, enforcing stricter waste collection and disposal facilities while creating a circular economy. The Hazardous Waste Regulations and WEEE Directive indicate that the key concern is how human and environmental health. The waste industry is becoming increasingly international, so it is imperative for traders to comply with these set standards. This area is particularly vulnerable to the consequences of Brexit, as there is a national shortage of facilities for processing refuse-derived fuel and recyclates, which has resulted in exporting waste to other member states.

Nuclear waste disposal will be affected by withdrawal from the EU and subsequently from Euratom – a key player in regulating the development of nuclear energy in Europe since its inception in 1957. The UK government will need to replicate the alliance’s safeguarding arrangement with the International Atomic Energy Agency immediately to avoid serious consequences.

Compliance and Energy in Businesses post-Brexit

Businesses in the UK are bound by the EU’s Energy Savings Opportunity Scheme Regulations 2014, the primary regulation to lower energy consumption for large undertakings. The scheme (ESOS) is mandatory for businesses that meet the financial and employee number requirements, transposing Article 8 of the EU Energy Efficiency Directive. It requires businesses to[10]:

1) Calculate total energy consumption

2) Identify areas of significant energy consumption

3) Appoint a lead assessor

4) Notify the applicable environmental agency

5) Keep records

ESOS Phase 2 is due in 2018, as part of its on-going 4-year cycle. Compliance with the regulations for qualifying companies will not change as a result of the UK leaving the UK, as it has been adopted in the UK’s energy regulations. Compliance, therefore, must be submitted to the relevant environment agency, depending on the location of the undertaking. Improving on energy usage across the lifecycle is fundamental to achieve UK’s carbon reduction objectives, and therefore as we look ahead to the UK outside of the EU, substantial changes to ESOS are not expected.

The challenges surrounding Brexit have only just begun. There will be unmatched chaos among businesses and individuals with regard to their EHS obligations and the enforcement of remnant EU laws. With the UK pushing for a trade deal allowing access to the single market, it will be difficult to deviate too far, as any new UK regulations must comply with the European standards in order to keep their trading relationship.

[1] House of Lords European Union Committee, 2017

[2] IEEP, 2016

[3] Rowe, 2017

[4] Fischer and Geden, 2016

[5] Bridges, 2016

[6] CIWEM, 2017

[7] Lucas, 2017

[8] European Commission, 2017

[9] Clifford Chance, 2016

[10] Evers and Sear, 2017

 

Author:

Alex Brown

EHS Expert,  Red-on-line UK