Eloise Scotford

Brexit and Environmental Law: Challenges and Opportunities

The prospect of the UK leaving the European Union poses significant challenges for UK environmental law. Fundamentally, this is because environmental issues, both legal and physical, cannot be hermetically sealed within a single jurisdiction. Environmental law is an inherently multi-jurisdictional and transnational enterprise, making the EU a highly competent regulatory actor in pursuing many environmental objectives. Initially, Brexit appears to pose mainly technical challenges for UK environmental law, but these challenges reflect more fundamental normative and institutional issues. There is a complex legal task ahead in translating and disaggregating an extensive and intricate EU environmental acquis into ‘sovereign’ UK environmental law. Whilst the UK government has indicated that current EU law, including EU environmental law, will initially be ‘converted’ into domestic UK law by legal mechanisms introduced through a ‘Great Repeal Bill’, this apparently simple technical manoeuvre raises at least three problems. First, there will need to be new UK legislation translating substantive provisions of directly applicable EU regulations, such as the Waste Shipment Regulation and REACH, which set out regulatory provisions that are relied upon by operators in the waste and chemicals industries. Whilst the UK is a member of the EU, these provisions do not require domestic legislation to operate as

The Symbiosis of Property and English Environmental Law – Property Rights in a Public Law Context

This article argues that environmental regimes entailing considerable administrative discretion are now serving to contextualise and partly to constitute property rights in English law. In particular, rights to use land are ‘democratised’ to varying degrees through the administration of environmental regulation, and are adapted to land‐use problems on an evolving basis. In return, property rights affect environmental regulation, through legal protections for property interests, although the nature of the discretion exercised within environmental regimes seems to determine the kind and extent of this symbiotic influence. As a result, environmental law challenges property scholars to reflect on the impact of administrative decision‐making on property rights, conceptually, doctrinally and in terms of its legitimacy. At the same time, environmental lawyers need to take seriously the nature and legal treatment of property rights in the application and analysis of modern environmental law.

The Legally Disruptive Nature of Climate Change

Climate change gives rise to disputes and problems not easily addressed by existing legal doctrines and frameworks. This is because it is a polycentric problem; the assessment of future climate impacts must deal with uncertainty; climate change is socio-politically controversial; and addressing climate change requires recognising a dynamic physical environment. As such, climate change can be thought of as legally disruptive in that it requires lawyers and legal scholars to reconcile the legal issues raised by climate change with existing legal orders. The legal disruption catalysed by climate change has not only led to the creation of new legal regimes but also given rise to a multitude of legal disputes that require adjudication. A study of some of these cases highlights the need for active and deliberate reflection about the nature of adjudication and the legal reasoning embedded in it when confronted by a disruptive phenomenon like climate change.

Separate Waste Stream Collection and ‘Best Environmental Outcomes’

When the new Waste Framework Directive (the ‘Directive’) was introduced in 2008,1 it introduced the latest phase of EU waste law and policy. It was certainly the most ambitious development in EU waste law to date, both in length and in terms of its policy goals. The new Directive establishes a ‘waste hierarchy’, which prioritises the prevention of waste and promotes lengthening the life cycles of natural resources, and also aspires to create a ‘European recycling society’.2 However, for all its grand designs, the Directive contains a host of challenging new legal provisions and issues. This is partly because the Directive sought to fi x diffi cult legal problems with previous waste framework directives – such as the notoriously knotty question of when materials are to be defi ned as ‘waste’ – and its solutions raise as many questions as they answer.3 It is also because its new provisions and structure raise novel questions of legal interpretation. The case considered in this note – R (UK Recyclate Ltd) v Secretary of State for Environment, Food and Rural Affairs4 – addresses one of these new legal problems by considering how to interpret the Directive’s requirement for the separate collection of certain recycling streams. This might seem a relatively discrete issue in a lengthy directive, but it is an important case for two reasons. First, the Directive is beset by ambiguity over its policy priorities for managing waste – between regulating and preventing waste in the fi rst place,5 and between different modes of recovering waste once generated – and these tensions raise serious practical challenges across the 27 EU Member States, which employ varying administrative arrangements for managing waste. The reasoning in this case suggests that these tensions are to be resolved, in England and Wales at least, at the level of individual local authority decisions over waste management practices. Second, the practical signifi cance of the case – there were six applicants representing various actors in the recycling industry, and four inter-