Environmental impact has become a key area of focus in the debate over whether Britain should stay in the EU. As with many of the other topics under discussion around the EU referendum, common threads among the claims and counter-claims are:
Here at Mayer Brown, our work in transport infrastructure and building development often takes us into the environmental concerns of air quality (AQ) and noise pollution. So let’s have a look at the current situation and what may change in the future, if Britain were to leave the EU.
As with much of the EU conversation there is quite a bit of confusion as to how responsibilities and legislation work in practice.
Much of the guidance and restrictions regarding pollution which are applied within the UK, come from laws transposed from EU directives. Therefore, litigation for non-compliance can come through enforcement in the European court.
It’s worth looking at the different ways in which restrictions currently apply to air quality and noise pollution.
Currently, AQ legislation and guidance flows from the EU, via the 2008 Air Quality Directive (2008/50/EC) and is transposed, along with subsequent daughter directives, into UK law via the Air Quality Standards Regulations 2010. However, it has shown to be the case that European Law can override a ‘failing’ UK law.
A good example of this is the ongoing case of Clientearth, a legal firm which has served notice on the UK government, challenging the legality of UK pollution management plans, intended to avoid infraction. While the UK is applying its own air quality regulation, Clientearth argues that this is not being done rigorously enough to meet obligations under EU law and can use EU law to change the current state of play.
The EU’s aspirations for reducing noise exposure and the adverse effects noise has on health and quality of life are set out in the Environmental Noise Directive 2002/49/EC (END). The aims (to reduce adverse noise impacts on health and quality of life) are clearly laudable and are based on sound scientific evidence, most particularly research from the World Health Organisation.
The Directive requires us to produce noise maps and action plans to reduce noise levels from airports, major roads and railways that exceed objective values, and to preserve the tranquillity of open amenity spaces. These requirements are transposed into UK law by the Environmental Noise (England) Regulations 2006 (as amended).
So far, the government has complied with its duties to produce noise maps and action plans, but how do we fare when it comes to delivering these plans? The short answer is that it is still ‘work in progress’ and it is perhaps inevitable in these times of austerity, that the government’s action plans include the need to weigh the financial implications of noise control. So, is the Directive a vehicle that helps govern our own government and ensure that they work pro-actively to reduce adverse environmental noise impacts, or a potential albatross that could tie the Government to a financially burdensome need to implement impractical controls in the search of aspirational noise objectives?
But more to the point – do we need the EU to legislate for us? The UK has its own national policy statement on noise and national planning policy is aligned with those objectives. We wouldn’t lose access to the wealth of international research (e.g. the World Health Organisation) which are also formative to the END. We certainly have the ability to legislate for ourselves, but do we need the EU to keep us on track?
What about Britain’s impact on the rest of Europe?
Britain’s relationship with the EU is a two-way process – as well as our being subject to EU regulation, we can also influence the direction of that regulation.
It’s worth noting that while legislative clout comes from the EU, in many cases, much of the research that it is built on comes from international sources including the UK.
How would the situation change if the UK was outside the EU?
Put simply, if the UK were outside the EU, there would likely be less legal enforcement of standards and arguably this could cut the cost of development, reducing additional time and resources spent within the planning process.
However, without the backing of the EU, there would be less enforcement, and we could see an increase in air pollution across the UK and potentially experience noisier cities.
The subsequent costs associated with an increase in noise and air pollution, including health spending and environmental clean-ups could be substantial. Plus, on a social and political level, there is little appetite for repealing current controls which do appear to be working for the benefit of UK citizens, albeit slowly.