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The PM’s referendum speech: the end of the world as we know it for UK environmental lawyers?

It is difficult for most UK environmental lawyers to now image environmental law without the EU. It is often said (rightly) that the vast majority of our domestic environmental law is there in order to transpose EU law. However, David Cameron’s long awaited speech now gives rise to the possibility of a referendum on EU membership and with that comes the risk of exit. The legal issues that this would give rise to are huge. And no sector would feel its impact more keenly that those practicing in environmental law.

The Prime Minister in his speech (http://www.guardian.co.uk/politics/2013/jan/23/david-cameron-eu-speech-referendum) mentioned the environment twice:

“And I would ask: when the competitiveness of the single market is so important, why is there an environment council, a transport council, an education council but not a single market council? ...
Countries are different. They make different choices. We cannot harmonise everything. For example, it is neither right nor necessary to claim that the integrity of the single market, or full membership of the European Union requires the working hours of British hospital doctors to be set in Brussels irrespective of the views of British parliamentarians and practitioners.
In the same way we need to examine whether the balance is right in so many areas where the European Union has legislated including on the environment, social affairs and crime”.

He also mentioned the Court of Justice saying

“The European treaty commits the member states to "lay the foundations of an ever closer union among the peoples of Europe". This has been consistently interpreted as applying not to the peoples but rather to the states and institutions compounded by a European court of justice that has consistently supported greater centralisation.”

Some recent judgments of the Court in environmental matters are indeed difficult to justify.

The decision in Case C‐567/10 Inter‐Environnement Bruxelles ASBL v. Région de Bruxelles‐Capitale [2012] Env. L.R. 30 is a good example. The Strategic Environmental Assessment (“SEA”) Directive (Directive 2001/42) contains words which clearly sought to limit its application to plans and programmes that were “required”. The Commission Guidance on SEA endorsed this limitation. Moreover, the Advocate-General in Inter‐Environnement pointed out that: (1) “Almost all the language versions of the second indent of Article 2(a) of the SEA Directive refer to plans or programmes which must be prepared or are required. Plans or programmes which are governed by law but which do not have to be adopted would not be covered. As the United Kingdom rightly points out, that was the basis of the Court’s judgment in Terre Wallonne”; (2) the travaux préparatoires supported this limitation; (3) it was clear the EU legislature only intended there to be requirement for SEA where the plan or programme was itself required; and (4) there was a logical reason for this: “the risk that, because of the costs connected with an environmental assessment, the authorities would elect not to adopt such voluntary plans. It is also reasonable to suppose that voluntary plans provide a more effective means of taking environmental interests into account, and offer greater opportunity for public participation, than the alternative of not adopting such plans at all. It may well be that this appraisal will change in the future as a result of positive experiences in the use of environmental assessments, but it is not appropriate to pre-empt such a change by interpreting the SEA Directive in a way which is contrary to the documented intention of the legislature”. Despite all this the Court of Justice ruled that the scope of the SEA Directive was not limited to plans and programmes that were required – such a “literal” reading it was said would compromise the scope and objectives of the SEA Directive. Accordingly, the Court said plans and programmes whose adoption is “regulated by national legislative or regulatory provisions, which determine the competent authorities for adopting them and the procedure for preparing them”, must be regarded as ‘required”. Such reasoning is difficult to accept. Of course where the legislature expressly impose a limitation on the scope of a Directive it will have the consequence of “restricting considerably the scope” of that Directive. There must be a concern where clear limitations imposed by the legislature can be so easily set aside by reference to the broad objectives of a Directive.

James Maurici acted for the UK Government which intervened in the Inter‐Environnement Bruxelles case.