The Scottish Environmental Regulations 2019 (Environment (EU Exit) (Scotland) (Amendment etc.) Regulations 2019) are amongst the raft of transitional measures required to implement the UK’s exit from the EU.
The Scottish Ministers are empowered to make this secondary legislation by virtue of the European Union (Withdrawal) Act 2018. Under that Act, it is necessary that the regulations do no more than is appropriate to address deficiencies in devolved environment legislation arising from Brexit. Nevertheless, the approach does offer an insight into the future of Scottish environmental policy.
The Regulations aim to ensure that domestic provisions relating to environment protection, water, water industry, waste and bathing waters function appropriately after Brexit. Our existing domestic environmental legislation relies heavily on EU law in its language and interpretation so these Regulations are necessary to amend EU references; such as references to licensing requirements and environmental standards in EU directives, and also to amend references to functions conferred on EU bodies that will be inappropriate after exit day.
Notably, changes are introduced to ensure that SEPA has a legally enforceable basis for setting permit conditions. Permits are currently conditional on compliance with BAT (Best Available Technique) Conclusions which are set by the European Commission. Post-Brexit, the definition of BAT Conclusions will refer to new domestic standards which are to be published by Scottish Ministers.
A new statutory procedure will also be introduced to empower Scottish Ministers to determine when waste is deemed to be hazardous in terms of the Special Waste Regulations 1996. This is to allow for continued compliance with the EU Waste Framework Directive. Such continued compliance with EU environmental legislation and standards reflects the Scottish government position of maintaining and strengthening environmental protection.
Influence of UK legislation
One consequence of the Regulations is that greater reliance will be placed upon UK-wide legislation to fill the vacuum created by the loss of EU legislation. For example, definitions such as 'waste' or 'use of PCBs' currently rely on EU Directives but, after exit day, will rely upon the UK Environmental Protection Act 1990. Similarly, in respect of the definition of 'end of life vehicles', the definition from the Waste Directive will also be substituted with the Environmental Protection Act 1990. Accordingly, even though most environmental matters are devolved to Scotland, the UK wide framework will play an increasing role in the formation of Scottish environmental policy.
Maintaining EU standards
The influence of EU legislation does, however, remain prominent. Importantly, there are multiple references to the new category of 'retained EU law', particularly in reference to environmental objectives or standards. Regulation 4 in respect of water, for example, highlights that EU legislation or instruments that previously set out such standards have now been substituted with 'retained EU law'. Furthermore, consistent reference is made to directives 'as last amended'. These references, in culmination with the powers that have been conferred on Scottish Ministers to ensure continued compliance in respect of water and waste regulations, are indicative of an approach of maintaining the broader environmental obligations set by the EU.
Many of these regulations are simply housekeeping, ensuring that environmental legislation will continue to function effectively post-Brexit. However, the amendments provide an insight into the approach to environmental protection post-Brexit. This appears to be based on continued compliance with EU standards, a position which is in line with the Scottish Government's commitment to maintain and exceed EU environmental standards.
There is, however, concern in some quarters about the increasing role that UK-wide legislation will play, with the influence of such legislation apparent in these Regulations. Furthermore, the ability to rely on retained EU law may ultimately be dependent upon any deal that is decided by Westminster. Consequently, the future of Scottish environmental policy, an area that has been within devolved competency for the last 20 years, presently rests largely in the hands of the UK Government.