In the lead up to the sold out Brexit debate at the University of Bristol on Friday 29 April 2016, we are posting some blogs from our Cabot Institute members outlining their thoughts on Brexit and potential implications for environmental research, environmental law and the environment.
The EU plays a fundamental
role in shaping the environmental law regimes of its Member States and that of
the UK is no exception. A significant proportion of current domestic
environmental law derives from EU Regulations (that automatically become part
of English law) and EU Directives (that are implemented through national
legislation).
Nature conservation law,
i.e. the legal regime used to protect environmentally significant habitats and
species, is a case in point and the focus of this blog. Conserving nature is
key not only from a purely biodiversity standpoint but also from an ‘ecosystem
services’ perspective. Ecosystem services are the benefits nature brings to the
environment and to people, including supporting services (e.g. nutrient
cycling), provisioning services (e.g. food), regulating services (e.g. carbon
capture) and cultural services (e.g. recreation).
Site designation and
management is a favoured technique of nature conservation law. The well-known
Natura 2000 network, would not be there if it were not for EU Directives,
namely the Habitats (92/43/EEC) and Wild Birds Directives (2009/147/EC),
implemented in the UK by the Conservation of Habitats and Species Regulations
2010. Under Article 3 of the Habitats Directive, Member States are indeed
required to set up the Natura network composed of Special Areas of Conservation
(sites hosting the natural habitat types listed in Annex I and habitats of the
species listed in Annex II of the Habitats Directive) and Special Protection
Areas (sites for the protection of rare and vulnerable birds as listed in Annex
I of the Wild Birds Directive and for regularly occurring migratory species).
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| Greenfinch by Mschulenburg - Own work, CC BY-SA 4.0 |
In
the UK, there are a substantial number of European protected sites: 652 Special
Areas of Conservation (including candidate Special Areas of Conservation[1] and Sites of Community
Importance[2]) and 270 Special
Protection Areas, covering a total of 8,013,467 ha (JNCC statistics as of 28 January 2016).
Has the establishment of Natura 2000 made a difference to biodiversity protection?
As part of its
Smart Regulation Policy, the Commission has initiated a fitness check of the
Habitats and Wild Birds Directives to evaluate their effectiveness, efficiency,
coherence, relevance and added value. Though the final Commission report on the
results of the fitness check will be available only later this year, the draft
emerging findings prepared by a consortium of experts do suggest that the
Habitats and Wild Birds Directives have substantially contributed to the
conservation of nature and to meeting the EU’s biodiversity target.
It is fair to note that,
prior to the EU Directives on nature conservation, the UK did have its own
system for habitat protection, most notably based on the designation of Sites
of Special Scientific Interest (SSSIs). Introduced in the post-war period by
the National Parks and Access to the Countryside Act 1949, the law governing SSSIs
has been strengthened over the decades by the Wildlife and Countryside Act
1981, amended by Schedule 9 of the Countryside and Rights of Way Act 2000.
However, the management measures in place for SSSIs are not as stringent as
those for the protection of Special Areas of Conservation and Special Protection
Areas.
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| Sites of Special Scientific Interest (SSSI) were introduced in the post-war period in the UK to help manage habitat protection. |
It is also fair to note
that in the marine environment, the UK has taken important steps domestically:
the passing of the Marine and Coastal Access Act 2009 in England and Wales (and
similar Acts in the devolved administrations) has brought in new domestic
marine conservation zones that contribute to the establishment of an
ecologically coherent network in UK waters. But the building of such a network
is not so disentangled from EU law, considering Art 13(4) of the EU Marine
Strategic Framework Directive (2008/56/EC) requires the formation of marine
protected areas’ networks in the marine environments of Member States.
Clearly therefore, EU law
has contributed much to the development of nature conservation in the UK.
Moreover, being part of the EU means that the Commission can exercise its power
to bring infringement proceedings against Member States for incomplete or
ineffective implementation of EU law, thereby exercising an external check on
implementation (for nature conservation, see Commission v UK, Case C-06/04
[2005] ECR I-9017).
What would Brexit mean for the future of nature conservation law?
What is unknown however
is what would Brexit mean for the future of nature conservation law in the UK
because much depends on the type of post-Brexit EU-UK relationship and the
agreement that will be negotiated. However, it could be argued that compared to
other environmental sectors (such as waste and water) nature conservation may
be more at risk.
Indeed, even in the
not-too-radical scenario in which the UK chooses to stay within the EEA, the
future of nature conservation law will depend on whether there is political
willingness to continue to abide by existing commitments, rather than legal
obligations stemming from the EEA agreement. This is because, though the EEA
agreement does contain many environmental provisions, nature conservation is
excluded (Annex XX of the EEA agreement excludes the Habitats and Wild Birds
Directive). Consequently, the future of nature conservation law is very
uncertain in a post-Brexit world, even in the event of EEA membership.
[1] Candidate
Special Areas of Conservation are sites that have been submitted to the
European Commission, but not yet formally adopted.
[2] Sites
of Community Importance are sites that have been adopted by the European
Commission but not yet formally designated by the government of each country.
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This blog has been written by Cabot Institute member Dr Margherita Pieraccini, a Lecturer in Law at the University of Bristol.
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| Margherita Pieraccini |
Read other blogs in the Brexit series:
- The EU, Brexit and nature conservation law
- Brexit: A climactic decision?
- Why is populism popular? A psychologist explains
- Brexit, trust and the future of global environmental governance
- Sharing routine statistics must continue post-Brexit when tackling health and climate change