whilst the White Paper does provide that the power to correct the law would allow the Government to amend our domestic legislation to ‘replace the reference to the Commission with a UK body’, the likelihood seems a mere possibility. This is shown by the fact that, despite the House of Lords EU and Energy and Environment Sub-Committee’s report finding that evidence strongly suggested that ‘an effective and independent domestic enforcement mechanism will be necessary’, the Government have insisted that the current mechanisms of judicial review and parliamentary scrutiny are adequate.

Moreover, even if a replacement body were to be mirrored by the UK, it is unlikely to have the same proficiency as its EU equivalent. Case law emanating from the European Court of Justice (CJEU) currently plays a vital role in filling the gaps when EU legislation is imprecise or new issues arise. Therefore, the risk is that, without reference to the CJEU’s interpretations and judgments, UK courts may be able to interpret EU law in a different and less rigorous way, potentially weakening environmental protection entirely.

This may be the case, for example, in respect to UK air quality. During the early stages of EU membership, the UK was known as ‘the dirty man of Europe’, suffering from extreme pollution which resulted in issues such as acid rain and premature deaths. The impact of the EU on this area has been immense, shown by the fact that sulphur dioxide emissions decreased by 94% by 2011. The UK has still, however, persistently exceeded the EU maximum emission levels determined by the Ambient Air Quality Directive. As a result of this, proceedings were brought against the UK in the case of Client Earth, in which it was found that the UK was in breach of its obligations under EU law. Since the UK’s air quality standards are clearly dependent on enforcement of EU law, without an overarching body with the ability to take steps akin to the Commission, the UK will be able to set the bar to its own lower standards. Those in support of this view were recently provided with their reinforcing evidence as the Government admitted in the Administrative Court that the reason that the preferred target date for compliance with the air quality directive was 2020 was because it was the earliest date possible for the EU Commission to impose infraction fines against the UK. Clearly environmental well-being in this respect has not been at the forefront of the UK’s priorities.
The Government has, however, proposed that key environmental principles will be introduced in both the legal context, via primary legislation, and through policy context, whereby environmental principles are supported by ‘policy statements’ which the Government must have reference to. This seems to replicate the approach taken in Fisherman and Friends of the Sea case. Here, rare judicial consideration was given to the polluter-pays principle, which founded a successful argument brought by an environmental non-governmental organisation. Although this case cannot act as precedent beyond the jurisdiction of Trinidad and Tobago where it was contested, it does potentially offer some guidance to a post-Brexit Britain in which environmental principles may gain greater legal prominence.

However, in reality, these principles mandate very few concrete outcomes