Northern Ireland faces unique challenges to environmental protection as a result of Brexit.

Northern Ireland and the Republic of Ireland share several cross border protected sites, three international river basin districts and the management of Carlingford Lough and Lough Foyle.

Environment is also one of the areas of co-operation under the Good Friday Agreement.

Most of our environmental laws are derived from EU law. The European Commission and European Court of Justice play a central role in ensuring that they are properly implemented and enforced.  After the implementation period, there will no longer be recourse to the European Court of Justice or European Commission.  In the absence of such oversight bodies there are concerns that our environmental protections will be eroded.

The Environment Bill, which had its second reading on 26 February, introduces measures designed to plug the gaps left by the UK’s exit from the EU.  A key provision is the establishment of an Office of Environmental Protection (OEP) which will have jurisdiction in Northern Ireland as well as England.

The OEP will:

• Monitor and provide independent annual assessments of progress on the current Environmental Improvement Plans, including any possible improvements.
• Monitor the implementation of environmental law.
• Advise the government on any changes to environmental law.
• Investigate failures by public authorities to comply with environmental law, including taking enforcement action for serious breaches of environmental law. This will include considering complaints.

 

The OEP can investigate complaints. The OEP can ultimately issue a decision notice which will include recommendations. However, crucially, the recommendations are not binding and the OEP does not have the power to issue a sanction for the non-compliance.

The OEP can initiate Judicial Review proceedings in respect of the subject matter of the complaint (not non-compliance with the decision notice), within three months of the date for response to the decision notice – this could be over a year after the decision complained of was taken and amounts to a massive extension of the judicial period.

The powers of the proposed OEP are very limited. Furthermore, it remains to be seen how well resourced OEP functions in Northern Ireland will be.  A further issue arises in that in accordance with the Ireland/ Northern Ireland Protocol, which forms part of the Withdrawal Agreement, Northern Ireland is likely to have significantly greater regulatory alignment with EU Environmental law than the rest of the UK in order to preserve its place within the Customs Union.  Therefore, it may have been more appropriate for Northern Ireland to have had its own separate Office for Environmental Protection which would reflect Northern Ireland’s unique position.

While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.