25/02/2020 07:03 GMT | Updated 25/02/2020 10:09 GMT

Exclusive: How Brexit Could Help The Government Dodge Punishment For Breaking Environmental Laws

The UK could find itself off the hook over cases such as breaches of air pollution levels and a failure to act on peat bog burning, which campaigners say can exacerbate flooding.

The British government could dodge sanctions for breaking a range of environmental laws because of a lack of clarity over what happens post-Brexit, it has been revealed.

There are currently 11 environmental protection cases that could end up in a “dead end” if they are not taken up by a new UK independent regulator after departure from the EU, analysis by Unearthed, Greenpeace’s investigations unit has found.

Campaigners say the findings will raise fresh concerns about the government’s future dedication to green concerns – an issue which will return to the fore on Wednesday, as the government’s environment bill has its second Commons reading.

Among the outstanding cases is the UK’s failure to bring nitrogen dioxide pollution, much of which comes from diesel vehicles, within legal levels. The court is yet to rule on the case, referred in 2018. 

“It’s a real concern for us, what may happen after Brexit and whether air quality will even be a real priority,” Jemima Hartshorn, founder of air quality activism group Mums For Lungs, told HuffPost UK.

“The government is simply going to be focused on making Brexit seem like a success, and it’s going to be very difficult to hold them to account when we are not a member of the EU.”

Kevin Coombs / Reuters
A low fog in Canary Wharf, London

Under the withdrawal agreement, the European Court of Justice (CJEU) will have jurisdiction over all referrals for breaches of EU law before the end of the Brexit transition period on December 31 – and cases can continue to be launched up until the end of 2024.

But legal experts say that there is a risk of them meeting a “dead end”, if for political and financial reasons the EU does little to proactively transfer them to the new Office of Environmental Protection, the UK’s post-Brexit environmental regulator.  Boris Johnson has also refuted the idea of EU jurisdiction after Brexit.

Environmental lawyers at ClientEarth, who brought similar cases against the government in the past and won, fear it will not progress to a stage where sanctions, such as a hefty fine, could be implemented. 

UK spokesperson Tom West said there is “nothing currently that guarantees” active cases will reach a conclusion.

“It’s also unclear whether or not the EU courts and EU commission will have the ability to impose fines on these cases,” he added.

“The other question is what is going to be the political dynamic of these cases - in what circumstances is it going to be seen as worthwhile or expedient for the Commission to bring such a challenge?”

Hartshorn, a mum-of-two, said: “We are really worried the government won’t feel compelled to act without the threat of court action that has acted as a driver in the past.”

Other cases referred to the CJEU include: 

  • A case originally from 2003 about sewage spills from facilities in London and Whitburn. The CJEU had already ruled that the UK had broken the law and the UK is now awaiting another court date, where heavy fines could be imposed.

  • A case from 2013 that accuses the UK of sewage spills or inadequate treatment of sewage in 17 locations

  • A 2013 case about a failure to protect sites for harbour porpoises, a threatened species in Europe. The UK has been ordered to create more conservation zones

  • A 2010 case regarding public access to justice and decision-making on environmental issues

Another case, at an earlier stage of infringement proceedings, concerns the burning of peat bogs on protected areas in Northern England.

Campaigners say the practice, carried out to improve habitat for grouse, exacerbates local flooding as the ground can no longer hold enough water.  The bogs are globally rare and can store huge amounts of carbon, but moorland owners burn them to support grouse shooting. 

Stop The Shoot
Filming of peat bog burning on the Yorkshire moors

Luke Steele, of Leeds-based campaign group Stop The Shoot, said:  “In recent weeks we have seen firsthand the effects of peat burning, with serious flooding in Yorkshire. 

“This not only has a human consequence, but also huge economic implications, costing communities millions of pounds. 

“We know climate change is only going to make incidents like this more common, so it’s vital that we, quite literally, hold back the water on the moors.”

Since the EU commission launched its case in 2016, the government has been in discussion with estates to encourage them to cut the practice and had pledged to introduce legislation to ban it, but efforts seem to have stalled. 

The RSPB’s head of casework told Unearthed: “This was promised two to three years ago, and the UK government hasn’t yet taken this vital last step, so it remains a risk that if the European Commission doesn’t continue to act because of Brexit, the government may not honour its commitment to conserve the UK’s peatlands.”

The case is one of six where the EU has begun infringement proceedings, but they have not yet been referred to the CJEU. The others are:

  • A case launched in 2012 that concerns one of Europe’s largest gas plants in Pembroke, Wales. The EU says that the cooling system is causing damage to a protected marine area and its fish, and that environmental assessments were inadequate. 

  • A 2007 case that states that the UK has not fully enacted the Water Framework Directive and that authorities lack the power to properly tackle water pollution. 

  • A case from 2015 about the UK’s failure to adopt conservation measures under the Habitats Directive

  • A case launched last year that states that the UK has not met a deadline to report on the environmental state of its seas

  • A case launched in 2017 about a failure to report to the EU on the transposition of new legislation on air pollution monitoring

 Experts say the future of these is more uncertain. 

Francesca Carlsson, legal officer at the European Environmental Bureau, said while the EU Commission claims it is committed to more enforcement, there is the issue of budgets, and whether it is wise for the commission to invest in cases regarding a member state that is not contributing.

She added: “Really, it should be up to the UK authorities to ensure compliance with what is now UK law anyway. In some ways, these cases are the first test of whether environmental standards are to be maintained in the UK or whether the government is already seeking to escape enforcement action.”

A spokesperson from the EU Commission said: “As set out in the withdrawal agreement, EU law continues to apply in full to the UK for the duration of the transition period. In particular, the UK remains subject to the EU’s enforcement mechanisms, such as infringement procedures.”

The UK’s new Office for Environmental Protection, which is being introduced as part of the government’s environment bill in parliament, will be able to start dealing with complaints from 1 January 2021.

Paul Childs / Reuters
Green Party MP Caroline Lucas said outstanding cases will be a "litmus test" for government.

Green MP Caroline Lucas said any outstanding cases would be “a litmus test” for the government’s pledge to remain “a world-leader in environmental protection” after Brexit.

“Environmental laws – whether over dirty air, polluted waters or anything else – must be enforced,” she added.

“The government has an opportunity to fix this in the environment bill.  It must transfer existing cases to the Office for Environmental Protection and, most crucially, grant the watchdog proper independence and real teeth, with enforcement powers similar or better than those of the EU courts and commission.”

Any cases currently before the CJEU, or new cases relating to allegations that took place before the end of the transition period and brought within four years of the end of the transition period, will remain under its jurisdiction.

Once the new office takes over, failures by public authorities to implement environmental law will no longer be considered through European enforcement processes.  Instead the new body will “engage with public authorities to reach a solution”.

Jemima Hartshorn, of Mums For Lungs Hartshorn, added: “It seems to me that this new ‘independent body’ will be far too closely linked to the secretary of state and department to properly hold it to account in any way.”

Doug Parr, Greenpeace UK chief scientist, said failing to deliver on such issues would “speak volumes” about the Johnson government’s reliability “when it comes to safeguarding people and planet”. 

“One thing he can be sure of is that any attempt to sweep the issues under the carpet will not go unnoticed or ignored by those who brought them to public attention. The only right and sensible thing for Johnson to do would be to insist his government properly manages each and every one,” he added.

A Defra spokesperson said: “The environment bill demonstrates our global leadership at a crucial time for the planet – creating a world-leading system for environmental governance, with the Office for Environmental Protection as our independent watchdog with the teeth to hold government and other public bodies to account.

“We have been clear we will not weaken any of our world-leading environmental standards. Now we have left the EU we will look to enhance these even further where possible.”