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The implications of Brexit for environmental law in Scotland

Cardesa-Salzmann, A. and Combe, M.M. and Geelhoed, M. and McHarg, A. and Ntona, M. and Reid, C.T. and Roger, A. and Sindico, F. and Switzer, S. (2016) The implications of Brexit for environmental law in Scotland. [Report]

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    Abstract

    This report maps the possible implications of Brexit for environmental protection in Scotland, identifying core questions as well as solutions that may be adopted, with the objective of initiating a conversation about this complex subject matter. The report has been prepared as a joint endeavour by a group of environmental law experts based at Scottish Universities. Each section was drafted by a lead author, with inputs from the rest of the group. The paper is meant for a broad audience and intentionally uses a non-technical writing style. The paper is divided in two sections. The first section addresses cross-cutting questions affecting environmental governance after Brexit, focusing on the main Brexit scenarios and their trade, competition, and law enforcement implications. This analysis identifies a series of common challenges for nvironmental law in Scotland after Brexit, which relate to: •Loss of scrutiny and enforcement powers associated with the operation of EU law and institutions; •Loss of long-term policy horizon and of the stable regulatory framework provided by EU law; •Repositioning of the UK and Scotland in international and regional environmental governance cooperation; and •Restriction/loss of access to EU funds and programmes. The second section analyses specific questions likely to emerge in elected areas of environmental law, distinguishing between different types of EU environmental legislation and the related allocation of competences within the UK. The transposition of EU environmental law into domestic law takes place in different ways. Some pieces of EU environmental law have been transposed into UK/Scottish law and configure distinctively UK/Scottish solutions. After Brexit, retaining these pieces of legislation is going to be relatively straightforward. Other pieces of EU environmental law, conversely, heavily rely upon EU processes and institutions and will no longer be applicable in their present form after Brexit. On these matters, EU powers and competences will be repatriated, raising fundamental questions concerning the allocation of powers between the UK’s central and evolved administrations. Finally, EU membership has important implications concerning the UK’s implementation of international obligations in areas such as climate change law or air pollution. In these areas, EU law is often more ambitious than the underlying international obligations. Brexit will therefore confront the UK and devolved administrations with fundamental choices regarding how to continue to comply with international obligations, and maintain and enhance their current level of commitment and ambition over time.