12th March 2019
The EU environmental principles offer protection to our natural world. They act as guidance for judges and decision-makers, giving laws shape and meaning. They are used in a whole host of government and public authority decisions, including planning applications, management of marine protected areas and dealing with contaminated land.
Where there is uncertainty about the risk of environmental harm, the precautionary principle allows protective measures to be taken without having to wait until the harm materialises.
This principle is valuable in managing risk where there is uncertainty about the environmental impact of an issue.
This principle requires preventive measures be taken to anticipate and avoid environmental damage before it happens. It is central to the UK’s planning policy and underlies lots of environmental legislation.
Working alongside the prevention principle, this ensures damage or pollution is dealt with where it occurs. It operates in many areas of UK environmental policy to prioritise the way environmental damage is addressed.
As the name suggests this principle holds that the person who causes pollution should bear the costs of the damage caused and any remedy required. It plays a significant role in environmental management, acting as a deterrent and directing accountability for harm.
This principle requires that environmental protection is integrated into all other policy areas, in line with promoting sustainable development. That is to say all government departments have responsibilities to protect our environment.
The EU environmental principles work together to ensure high environmental standards by directing how judges and other decision-makers should interpret the law.
For example, the Court of Justice of the European Union ruled that the Habitats Directive – which protects over 1000 vulnerable species – must be interpreted in line with the precautionary principle, in the leading Waddenzee case:
“So, where doubt remains as to the absence of adverse effects on the integrity of the site linked to the plan or project being considered, the competent authority will have to refuse authorisation.”
In line with the polluter pays principle, a recent Court decision in Scotland found that an insolvent coal company could not just abandon its responsibility to clean up contamination on the land where it had been operating. The Court said the costs of cleaning up the land must be enforced and treated as liquidation expenses, meaning they could not just abandon the land.
EU environmental principles are used to interpret policies, provide a basis to scrutinise and challenge government actions in court, and guide local authority decision-making.
The government has promised the whole body of EU environmental law will continue to have effect in the UK after exit. But the current proposals to retain EU law – via the European Union (Withdrawal) Act – do not go far enough.
While the Withdrawal Act lists a handful of principles that must be included in legislation before the UK leaves the EU, it proposes that the principles will only bind central government as opposed to all public bodies.
It also fails to guarantee the weight with which decision-makers must factor the principles into their work, meaning the effectiveness of the principles to protect our natural world could be undermined.
These shortcomings pose a serious risk that means our environment is under threat after the UK leaves the EU.
If the government really wants to improve environmental standards after Brexit, the principles must properly shape decision-making by government and all public bodies.