• Miriam Aczel

Schrödinger’s Brexit: Letting the Cat Out of the Box

Updated: Apr 5, 2018

Although it’s been several months since the United Kingdom’s populist vote to leave the European Union, it seems as though the U.K. is trapped in a bit of Euro-divorce limbo. Some have even gone as far as to call it “Schrödinger’s Brexit,” invoking quantum physicist Erwin Schrödinger’s famous thought experiment to explain the government’s policy folly. Like the fate of Schrödinger’s cat, Britain’s future is unclear: Article 50 in the Treaty of Lisbon, which delineates the rules for exiting the European Union, has not yet been triggered. In other words, despite the outcome of the popular referendum, Britain has not yet officially declared whether it is leaving the EU. There have not yet been official negotiations on the terms of Brexit, and there cannot be until the Article is actually triggered.

With Britain’s unprecedented decision to leave the EU, change has already happened—and there has even been talk of other European countries choosing to leave as well. But no matter what happens next, Italexit, Frexit, or Czechout, it is clear that the U.K. and the wider EU are at a critical juncture to protect environmental regulations. With 40 years of intertwined regulations, many of the EU’s current environmental laws are incorporated into the U.K.’s existing regulations, there may still be gaps. According to a recent report by the House of Commons Environmental Audit Committee, several protections for Britain’s wildlife and habitats may be weaker unless the government acts to prevent erosion of these protections prior to the triggering of Article 50.

The U.K.’s government has said that it will use a “Great Repeal Bill” that will incorporate much of the EU directives that currently protect U.K. wildlife and environmental quality. However, according to Andrea Leadsom, the U.K. Environment Secretary, while roughly two-thirds of the legislation “will be able to be rolled forward with just some technical changes,” the remaining third would be hard to translate to U.K. law, meaning that "there will be work to do to ensure we can continue to make these measures work once we leave the EU."

According to Steve Trotter of The Wildlife Trusts (England), crucial issues include dealing with the “precautionary principle that is currently embedded within the European legislation,” as well as transposing rationales for “overriding public interest” in consideration of environmental mitigation. National Parks England says another issue is the fact that the EU’s laws have more “clout” than the U.K.’s legislation. For example, if the EU Habitats Directive is made irrelevant, the U.K. will be challenged to establish “equivalent fully independent administrative systems, to protect the most important wildlife sites,” and may necessitate the implementation of new regulatory systems if current enforcement mechanisms (such as the ECJ and European Commission) “becomes irrelevant.”

The Great Repeal Bill leaves open the risk that incorporation of EU law into the U.K.’s law may lead to ‘zombie laws,’ or laws that are not updated and easily removed. Furthermore, because many regulatory mechanisms may become irrelevant, merely transposing the regulations will weaken many environmental protections if the current arrangements are not replaced.

The House of Commons’ report concludes with seven recommendations, including identifying legislation that may prove hard to transpose and introducing a new Environmental Protection Act in order to “ensure environmental standards are not weakened when we leave the EU—whether through leaving the Single Market, changes in trading status or through the creation of ‘zombie legislation’ resulting from our departure from EU governance and enforcement structures.”

According to the report, in order to meet the U.K. manifesto commitment to “be the first generation to leave the environment in a better state than it found it,” the government has a lot of work to do, to ensure that its own environmental protection is “equivalent or better” than the EU’s level of protection. And all of this must be done before opening the box triggering Article 50 and leaving the EU, to leave a living cat—er, environment—for future generations.

Pollution and environmental degradation does not follow arbitrary state borders, and the decisions the U.K. makes impact all of its neighbors. But taking a precautionary approach and using the EU’s regulations as “mandatory minimum” could positively influence the future of the EU and its environmental regulations.

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This article originally appeared on the Environmental Law Institute's blog, Vibrant Environment:ödinger’s-brexit-letting-cat-out-box

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