There are many issues that the world is trying to address, and international law is attempting to deal with them by working towards a more globalised world. Entities such as the United Nations and the European Union have been making great strides in bringing nations together to create better reform and stronger strategies for conquering the worlds issues: famine, human rights, etc. The environment is one of these issues that has been seen as a united force, because if the human race hopes to survive, we need a healthy planet. Over the years, many nations have put in place measures to protect the environment but still, many have not. The EU has brought many nations together to make the environment a priority for all member states. But while the efforts of the European Environment Agency (EEA) has made real progress in environmental reform, some member states are slow to adopt the regulations. The UK, for example, is still working on enforcing the EEA-regulated limit on air pollution, and now that Brexit is a reality, there may be less of an incentive to control air pollution. Many of the critical measures that the EEA has enacted are now at risk of being dissolved at the point when the UK invokes Article 50. Until then however, the EU will likely continue to impose fines on the UK for the non-compliance. With other global developments, such as the 2016 US election, it appears that the once rapid rate of globalisation is now slowing. How will Brexit affect Britain’s environmental law, and how are global entities creating united reform?
In order to better understand what the potential outcome of invoking Article 50 may mean for Britain’s environmental law, I submit that it is necessary to look at what precedent English law has set in regards to the environment. What has Parliament done to ensure the health of Britain’s environment? And what does the new leadership in Number 10 foretell for the future of environmental law?
Britain’s history of environmental law stretches back to Alfred’s Case in 1619, which some believe to be the first case that specifically deals with environmental law. I submit too that this case also highlights the underlying purpose of having environmental law: to make a comfortable and safe place to live. Here, the courts held that having the smell of a pig sty being blown onto someone else’s land constituted nuisance, and that Alfred should not have to live with a smell that makes his property unbearable to live in. The courts held that the foul smell deprived Alfred of his dignity.
I find this to be very interesting, and have examined other acts of parliament which aim to aid the environment. All of these acts had the underlying goal of making Britain a clean, safe, and pleasant place to live. Environmental law often begs to be coupled with health, both of animals and of the environment itself. To ensure that Britain remains a clean, safe, and pleasant place to live post-Brexit, Parliament needs to show that they are committed to the task.
A major development in Britain’s environmental law, the National Parks and Access to the Countryside Act (1949) included the creation of National Parks and Areas of Outstanding Natural Beauty (AONBs). Their purpose is to conserve much larger areas of land in a way that is less strict than that of National Parks. With proper planning permissions, towns have been built within AONBs with the stipulation that they are not causing harm to the environment. This has led to the continued conservation of the emerald isles, while also allowing sustainable development to take place. I submit that AONBs are perhaps the greatest development of English environmental law, as they seek to harvest cleaner energy and promotes responsible practises.
With the passing of the Environmental Acts of 1990 and 1995 by Parliament, a greater attention was being paid to the environment. The 1990 Act was written to control environmentally unfriendly emissions and to control waste management. But it also expanded the laws surrounding people who were found to be contaminating or otherwise damaging the environment. The 1995 Act was a revisionary Act which saw the creation of the National Park Authorities and created new measures for waste management.
These two Acts once again proved that Britain was at least partially dedicated to being cleaner. Perhaps this rise in concern for the environment was linked to the reputation as the ‘dirty man of Europe’, but if this were the case, then perhaps Britain would have done more to comply with air quality standards that the EU passed.
‘In 2015, only two of London’s boroughs met EU standards for NO2 levels, causing the European Commission to launch action against the UK to enforce the Air Quality Directive.’ - Journal of Public Health
Indeed, the European Commission has been making efforts to fine the UK in order to make them comply with the standards, and in 2015, just days before David Cameron was re-elected as Prime Minister an advocacy group called ClientEarth won their five-year Supreme Court battle over deadly air pollution. The Supreme Court ordered the British Government to draft new measures to drastically lower emissions of Nitrogen Dioxide (NO2).
David Cameron ended up failing to deliver what he had pledged to be the ‘greenest government ever’ back when the coalition government was established in 2010. But the Labour government from years past had not done better.
‘Overall carbon emissions have risen since Labour came into power. The Government’s progress, after some real achievement in 1997-2000, has stalled and in many areas gone into reverse.’ -Friends of the Earth
Gordon Brown’s record was looked upon poorly, and as a new Conservative leader, David Cameron wanted nothing more than to right all the wrongs that the Brown’s government had created. But while wind energy, in particular, soared to new highs by the end of 2014, accounting for 9.3% of total energy generated for the year, David Cameron proceeded to cut new subsidies for the creation of new wind farms in the 2015 party manifesto. As a result, the number of new turbines built in 2015 dropped by over 50% from 2014 statistics. I submit that this was a bad move to make on his part, and while he claims that adverse public opinion was the cause for the cuts, other sources claimed that the public sentiment regarding wind energy was at an all-time high.
And even still, by the end of 2015, despite the efforts to build more turbines, the UK falls greatly short of the amount of wind energy that Germany produces, and is also nearly half of what Spain produces.
Now with the new Conservative government taking over post-Brexit, I find it to be crucial that Theresa May and her Environmental Secretary, Andrea Leadsom, make the environment a priority whilst they work on negotiations to exit the EU. Unfortunately, both May and Leadsom have voting records that often work against environmental reform. And in the first days of her premiership, May abolished the Department of Energy and Climate Change, a decision that I find to be deeply worrying when considering how she has voted against measures that supported the decarbonisation of the UK’s energy and was absent for many environmental and energy votes. Leadsom has been becoming a greener voter in recent months, voting for tighter measures of fracking but not for a decarbonisation target. And despite her shaky record, Leadsom promised to maintain the UK’s environmental commitments, saying that reducing greenhouse gasses was a duty to future generations. This pledge will become increasingly important as many of the paths that the UK is set on were instated by EU directives. And given how little effort the UK has shown in conforming to said EU directives, I worry that this new government will be putting the environment on the back bench.
It seems like the majority of modern environmental policy, which involves the UK, comes from EU directives: Natura 2000 protects the UK’s wildlife and promotes exercise, while EU directives on air, water, waste, and wildlife protect everything from the UK’s air to its beaches. However, like stated before, the British government does not usually cooperate fully with the EU directives, but fight any progressive reform, forcing the EU to impose fines on the UK when they become non-compliant. I am concerned by this, because if the EU has been pushing for reform that places them at the pinnacle of environmental reform, and the UK is fighting that reform despite being a member, then it seems like the UK will not have the environment as a top priority when negotiating their exit from the EU. As a result, British wildlife may be at risk if provisions are not made to keep Natura 2000, or some form of it. British air quality will have less restrictions and may not receive the attention it needs; and the same goes for Britain’s beaches (coastal bathing sites), only 59.5% of which were rated ‘Excellent’ in 2015 by the European Commission. This number may seem decent as another 27.4% were classified as ‘Good’, but compared to countries that have hundreds of sites more than the UK (Italy, France, Spain, Croatia, Greece, Denmark), the UK scored the lowest of the bunch, with only Sweden, Estonia, and Romania having less coastal bathing sites that were rated ‘Excellent’. This is yet another concern that the new government may not be willing to fix. And it only makes me more certain that the EU is the main force behind Britain’s environmental law.
With Britain on its way out of the EU, the new President-Elect of the USA, and the rise of other far-right candidates in other countries, the rhetoric that has been taking centre stage has struck me as uncomfortably nationalistic. Both Britain and the USA feel like they are having immigration problems, and with the world in disarray, it is no surprise to me that countries are becoming more self-centred. And both Brexit and a Trump presidency likely spells bad news for the environment. Trump has claimed that he will continue work on the Keystone XL pipeline, consider more off-shore drilling, and cancel the United States’ involvement with the Paris Agreement. His new cabinet appointment of Scott Pruitt, a leading climate change sceptic and one who is quite familiar with suing the EPA over various pro-environment issues, will undoubtedly use his love of coal to help President-Elect Trump save coal worker’s jobs and dismantle much of the legislation that President Obama has passed to prevent climate change, promote clean air and water, and save lives.
The Paris Agreement is by far the most important climate change tool that we have, and as of 4 November 2016, the Agreement became active. The beauty of the Paris Agreement is that the UN will hold it to be legally binding, immediately making all signed countries subject to international law.
The problem I see with the Paris Agreement, is that even though the UN could hold it to be legally binding in international courts, there is nothing they can do to force countries to change their policies, or make any progress at all. The only thing that is legally binding about it is that all states that have signed are obligated to have their progress observed and documented. In other words, the worst we can do right now to countries that are non-compliant is to publically shame them. Granted, many countries have already started to make changes, such as investing in renewable energy or decreasing dependence on ‘dirty’ energy (i.e. coal), but some countries will undoubtedly face challenges both political and economic. This may render the Agreement to be essentially useless apart from being a nice gesture towards limiting climate change on behalf of the world.
I find that the Paris Agreement has the possibility to be the most significant environmental reform in history. However, as globalisation slows and sometimes regresses, international law faces new challenges. The UN, in my opinion, needs to have the power to fully enforce their measures by whatever means necessary. This may involve the International Court of Justice (ICJ), or it may also mean having a UN military with the authority to enforce global agreements. The challenges with international law also lie in the existence of borders. Where there is a global effort, I think that international law needs to have the power to treat each nation equally and act without borders. And if the world can agree on one thing, I would hope that it is that every person has the right to live without polluted air and water, and in a world that has healthy places to live. That, is the essence of environmental law.
Note: This work was edited since last published.