COMMENT: Dr Annalisa Savaresi is lecturer in Environmental Law at the School of Law, University of Stirling

ENVIRONMENTAL protection standards in the UK and Scotland have significantly been enhanced by EU membership. So Brexit raises crucial questions for environmental protection here.

After Brexit, the UK will re-acquire law-making powers on environmental matters that are presently within the remit of the EU. These powers are wide-
ranging, and cover subjects as diverse as agriculture, air quality, chemicals, climate change, fisheries, protected areas and waste. 

READ MORE: Scots ministers face legal action by lawyer group over clean air failures

The approach of EU law to regulating environmental protection varies greatly. Some areas are heavily centralised, vesting a great deal of control in the EU, such as chemical regulations. In others, EU legislation simply sets targets, for example in relation to renewable energy usage, leaving member states considerable discretion over how to achieve them.

Little is known about how – and to what extent – the UK Government plans to cut loose from EU environmental law. What seems certain is that decisions will have to be made about who will assume the competences presently exercised by the EU. 

This is a crucial matter for Scotland. Environmental protection is one of the devolved competences of the Scottish Parliament. However, whether EU powers will by default go to the Scottish Parliament and other devolved administrations – or will be “re-reserved” to Westminster – is yet to be seen.

Another vital issue is the enforcement of environmental law. The EU exercises unique powers over the implementation of environmental law in Member States. 

In the past, the EU Commission has taken legal action to enforce EU law on matters such as waste water collection and treatment and air quality standards in the UK. The exercise of enforcement action can result in hefty fines being imposed on member states, until they comply with EU law.

Furthermore, the public can initiate legal action before UK courts to request compliance with EU law, as exemplified by recent litigation concerning air pollution. With Brexit, a powerful means of external and internal oversight on how the UK manages its environment will be lost, with no obvious replacement for it.

READ MORE: Scots ministers face legal action by lawyer group over clean air failures

Finally, EU competences over environmental matters encompass cooperation between member states in areas such as protected areas, or funding for new renewable energy technologies. The UK and Scotland have greatly benefitted from this, for example in relation to development of tidal and ocean energy.

The recently adopted EU Ocean Energy Roadmap charts a path to 10 per cent of Europe’s energy needs being met by tidal and wave energy by 2050. As a pioneer in this technology, Scotland has a strong interest in remaining engaged with EU co-operation. It remains to be seen, however, which collaboration and funding avenues will still be available to Scotland and the UK after Brexit.