• Environmental Law and Regulation Society

Post-Brexit Deterioration of Environmental Protection

By Hubert Sitnik

How UK courts may contribute to the deterioration of the environmental protection after Brexit.

On the 31st of January 2020, UK ceased to be part of the EU. Brexit has tremendous consequences, and so it is likely that you have personally experienced them: maybe the last time you went grocery shopping you could not find your favourite snack; maybe you are an entrepreneur dealing with workers shortages; maybe you are an EU citizen who had to apply for the EU Settlement Scheme to protect their rights; or perhaps, like me, you are a law student who was made to read both Miller judgements in full. All in all, there are various ways in which you could have been directly affected by Brexit. But have you ever thought about its indirect impact, especially on the environment? In this blog post, using the example of ‘Natura 2000’ Network, I will explore what Brexit may mean for the future of environmental protection in the UK.

‘Natura 2000’ Network is the largest coordinated network of protected areas in the world. [1] Created under Article 3 of the Habitats Directive, [2] it aims at providing a safe haven to Europe’s most valuable and threatened species and habitats. [3] It consists of Special Areas of Conservation (SACs) set up under Habitats Directive and Special Protection Areas (SPAs) designated under the Birds Directive [4]. [5] They are primarily protected by restrictions placed on developments which could adversely impact a given site. Following Article 6(3) of the Habitats Directive all plans or projects not directly connected or necessary for the management of the site but likely to have a significant effect thereon are subject to appropriate assessment. [6] This means that their implications for the site are assessed in view of the site’s conservation objectives. [7] A development can only be authorised if there is no reasonable scientific doubt that it will not adversely affect the integrity of the site concerned. [8]

Because the source and basis of the ‘Natura 2000’ Network is the EU, Brexit is an inherent concern. European Union (Withdrawal) Act 2018 (EUWA 2018) [9] repeals European Communities Act 1972 (ECA 1972) [10] which allowed for the EU law to have effect in the UK. However, EUWA 2018 does not render pre-existing EU law irrelevant or inapplicable. On the contrary, it seeks to preserve a significant amount of pre-Brexit EU law. [11] For the sake of the following discussion it is only important to note that, following Section 2(1) EUWA 2018, the EU-derived domestic legislation continues to have effect in the UK. The definition of EU-derived domestic legislation includes regulations created to transpose EU directives. As such Conservation of Habitats and Species Regulations 2017/1012 [12] dealing with Article 6 of the Habitats Directive remains in force. Although it was amended by Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019/579 [13] in order to prepare it for operation outside of the EU they do not change the requirement of appropriate assessment which is the main protective mechanism. Therefore, it can be observed that protection wise the law remains the same.

However, it is not the law itself but its interpretation that may prove to be decisive when it comes to the level of environmental protection because the standards of the judicial review differ in the UK and the EU. It is best, I think, to begin this part of the discussion with a brief explanation of what judicial review is. ‘Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body.’ [14] The courts exercise jurisdiction over the legality of an administrative action i.e., on matters such as the extent of a public authority’s powers or a proper observance of procedure. [15] Crucially, however, courts cannot challenge the merits, expediency, or efficiency of decision because these questions are deemed inherently political. [16] However, in some circumstances, an administrative decision may be set aside on the ground of unreasonableness. [17] If this ground is raised, a court must consider whether a decision that is otherwise within the powers of the authority is so unreasonable that it should be illegal. While this may look like a contradiction an investigation of courts’ approach to the unreasonableness analysis will prove otherwise. It is worth noting that unreasonable operates both as a self-standing ground of review (along other grounds e.g., irrelevant considerations, improper purposes, and error of law) and as a standard of review i.e., the level of scrutiny adopted by the court. [18] In the UK, the starting point is the Wednesbury reasonableness test: [19] an administrative decision can only be set aside for unreasonableness if the court finds that it was ‘so unreasonable that no reasonable authority could ever have come to it’. [20] Importantly, this test does not apply uniformly. If a decision concerns allocation of the scarce resources, the exercise of specialist expertise or innately political judgements, and the vast majority indeed do, the Wednesbury test is very difficult to meet, and the courts are usually deferential to public bodies. In contrast, where it is claimed that a decision interferes with the fundamental human rights the courts apply the standard of ‘anxious scrutiny’. [21] In R v Ministry of Defence, ex p Smith, [22] the Court of Appeal ruled: ‘The more substantial the interference with human rights, the more the court, will require by way of justification before it is satisfied that the decision is reasonable’. However, this is still a very demanding test. For instance, in the Smith case the Court upheld the government’s policy to ban homosexuals from serving in the armed forces. [23] To sum up, in the UK the general standard of review of administrative decisions is Wednesbury reasonableness as modified by the doctrine of ‘anxious scrutiny’. It affords significant leeway to public authorities.

The test developed by the CJEU is different. The Commission must show that the national authorities made a ‘manifest error of assessment’. [24] Like Wednesbury reasonableness this test is not applied uniformly – the level of scrutiny differs with the issue at hand. However, as Professor Richard Macrory argues, when intense scrutiny is required, this test allows for a far deferential approach. [25] A recent example of CJEU’s inmmense scrutiny is Commission v Poland (Białowieża Forest). [26] In its 269-paragraph-long judgement the CJEU ‘subjected the decision of Polish authorities to detailed evidential scrutiny, disagreed in part with the assertions of the Commission, and found at least four significant breaches of the Habitats and Birds Directives notwithstanding the stability or growth in the relevant bird populations’ [27] - a result unlikely to achieve when Wednsebury standard is applied.

British courts had to apply EU law. Consequently, they had to apply the ‘manifest error of assessment’ standard. The above discussion shows that Wednesbury reasonableness and ‘manifest error of assessment’ allow for extremely different level of scrutiny. Nonetheless, British courts tend to characterise the two test as equivalent. [28] This shows that even before Brexit the Courts were not sure about the appropriate standards of judicial control of decisions issued under Article 6 of the Habitats Directive or Part 6 of the Conservation of Habitats and Species Regulations 2017.

This means that even when the UK was still in the EU the level of scrutiny that a decision should be subjected to was unclear. However, had the UK stayed in the EU the CJEU could overtime clarify the appropriate level of scrutiny. While CJEU’s jurisprudence as effective immediately before exit day was retained within the UK’s legal system the CJEU can no longer bind the UK courts. Moreover, EUWA 2018 gives the Supreme Court the power to depart from any of the CJEU’s judgements. Therefore, it is possible that Brexit will only exacerbate the drift of the UK courts the deferential standard of Wednsebury reasonableness thereby affording more power to public authorities. In turn, this may adversely affect the level of environmental protection in the UK.

[1] Natura 2000 <https://ec.europa.eu/environment/nature/natura2000/index_en.htm> accessed 7 Dec 2021. [2] Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and wild fauna and flora [1992] OJ L206 (Habitats Directive). [3] Natura 2000 (n 1). [4] Directive 2009/147/EC of the European Parliament and the Council of 30 November 2009 on the conservation of wild birds [2010] OJ L20 (Birds Directive). [5] Habitats Directive, art 3. [6] Ibid, art 6(3). [7] Ibid. [8] C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee, Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris Van Landbouw, Natuurbeheer en Visserij [2004] ECR 7405. [9] European Union (Withdrawal) Act 2018 (EUWA 2018). [10] European Communities Act 1972 (ECA 1972). [11] David Elvin QC, ‘Environmental Law and Planning: The Road Ahead’ [2019] JPL 33, 46. [12] Conservation of Habitats and Species Regulation 2017/1012. [13] Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019/579. [14] Judicial Review <https://www.judiciary.uk/you-and-the-judiciary/judicial-review/#:~:text=Judicial%20review%20is%20a%20type,wrongs%20of%20the%20conclusion%20reached> accessed 7 Dec 2021. [15] A Bradley, K Ewing, and C Knight, Constitutional and Administrative Law (17th edn, Pearson 2018), 641. [16] Ibid 641. [17] Ibid 655. [18] Ibid 656. [19] Ibid 655-656. [20] Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223. [21] R v Home Secretary, ex p Bugdaycay [1987] AC 514, 531. [22] [1996] QB 517, 554 (Sir Thomas Bingham MR). [23] Ibid. [24] C-508/03 Commission v United Kingdom [2006] ECR 3969. [25] Elvin (n 11). [26] C-441/17 Commission v Poland [2018] ECLI:EU:C:2018:255. [27] Elvin (n11), 39. [28] R. (on the application of Evans) v Secretary of State [2013] J.P.L. 1027, [32]–[43]