While the March 2017 deadline looms ever closer, the question of how environmental legislation originating from the EU will be implemented in the UK, post-Brexit, remains unanswered. There is much speculation over whether the government will adopt a ‘soft’, ‘hard’ or other form of Brexit. One option identified in the immediate aftermath of the referendum, and which we understand is still on the table, is the ‘Norway option’. This would involve the UK having access to the Single Market (European Economic Area or EEA) but being outside the European Union.
This seminar provided an opportunity for EIC members and guests to hear directly from Signe Nåmdal, Director of the Department for Industry and Marine Environment and Harald Sørby, Section Head, Industrial Section at the Norwegian Environment Agency, about how Norway interprets and implements environmental protection and regulations outside of the EU but within the EEA. Participants discussed with Signe what lessons there may be for the UK as it sets out on the Brexit path.
Signe Nåmdal’s presentation explained that approximately 85% of Norway environmental legislation is derived from EU directives and regulations. Norway participates in the review and amendment of new policy and regulation in the same way as EU member states, relying on participation by its own technical specialists and advisors through formal review committees. Examples cited include chemicals policy and legislation, specifically REACH, and the Industrial Emissions Directive, which has been fully incorporated into Norwegian law and is supported by the adoption of BREF notes.
A key difference seen in Norway is that while it can engage in the review and development of regulation, it is excluded from the final approval and voting stage. Nevertheless, it retains some independence and flexibility in relation to new regulation. For example, it has similar derogation powers to Member States and has negotiated numerous derogations in past years. Further, it follows a structured process to assess the relevance of new regulation based on the substantive relevance of the proposal and its likely geographic scope. As an example, Norway will adopt the Carbon Capture and Storage Directive but will not adopt the Marine Strategy Framework Directive. Ultimate interpretation and enforcement is a matter for the Norwegian courts. With regards to implementation and enforcement, this is also a matter for the Norwegian courts, with the opportunity to refer to the higher jurisdiction provided by the EFTA Court. Decisions by the European Court of Justice are not binding, but are material to decisions in the Norway and EFTA legislature.
The Norwegian representatives said that whilst there are limitations, it retains effective access to the process of amending and developing legislation and an opportunity to exert influence. This is underpinned by Article 100 of the EEA Agreement, which ensures that the European Commission consults EFTA countries on emerging policy and legislation.
Responding to concerns voiced that, under the Norway model, the UK government might soften its approach to environmental protection, the Norwegian representatives argued that, on the whole, Norwegian business supports clear and consistent regulation. The fact that it is aligned with countries within the EU is helpful for those that trade across Europe. There was agreement from those present that UK business is likely to take a similar view.
Whether the Norway option is adopted, in part or in whole, as an approach to Brexit remains to be seen. The message from those in Norway is that as an EFTA country, it is possible to engage in and influence the approach to environmental regulation, supporting the protection of the environment and meeting the needs of business and the economy.
The meeting concluded with Matt Davies, UK Managing Principal at Ramboll Environ and Matthew Farrow, Executive Director of EIC, thanking Signe Nåmdal and Harald Sørby for their informative presentation and thoughtful contributions to the discussion.
For further detail on how the Norwegian approach might work in the UK, you can read the Norwegian government’s white paper, The EEA Agreement and Norway’s other agreements with the EU.
For more information on Ramboll Environ’s view on the effect of Brexit on environmental issues, contact Matt Davies.