SCOTLAND and the UK risks becoming the "dirty man of Europe" again with polluted air, sewage-filled beaches and flimsy conservation laws when it leaves the European union, experts have warned.
About 70% of Britain's environmental safeguards comes from European legislation – and it is feared they are all at risk from Brexit.
Britain in the early 80s, got its "dirty man" moniker because it produced more sulphur dioxide pollution, the main cause of acid rain, than any other European nation, and it was pumping large volumes of raw sewage into the sea.
READ MORE: Beyond Brexit: Hospitals risk losing EU staff lifeline
Environmental lawyers ClientEarth, a not-for-profit organisation – which has offices in London, Brussels and Warsaw – regularly uses EU laws to challenge governments across Europe on a wide range of issues, including air quality, nature, wildlife, toxics and transparency.
They campaigned against Britain leaving the EU because of the impact it would have on the environment and because of what they described as the importance of united action on issues such as air pollution and climate change, which do not respect international borders.
Vital birds and habitats directives, bathing water and waste water regulations could also be scrapped or weakened, it warned.
Earlier this month the environmental lawyers won its latest battle in legal action against the UK Government over levels of air pollution using EU law as a barometer.
The High Court ruled that ministers’ plans to tackle illegal levels of air pollution in many UK cities and towns were unlawfully poor.
ClientEarth had called air pollution a "public health crisis" and said the government has failed to tackle it.
The ruling in the judicial review called the government's plan "woefully inadequate".
Those proceedings followed a ruling won at the Supreme Court in 2015, where justices declared that "immediate" action was needed to address a national air pollution crisis, and set a deadline for the Government to produce new plans to comply with European Union (EU) law on limits for nitrogen dioxide in the air.
READ MORE: Beyond Brexit: Hospitals risk losing EU staff lifeline
The subsequent Air Quality Plan (AQP) was described as "flawed", "woefully inadequate" - and needed to be "drastically" improved.
In February, the Royal Colleges of Physicians and of Paediatrics and Child Health said outdoor air pollution was contributing to some 40,000 early deaths a year in the UK.
Today (Monday) ClientEarth return to the High Court hoping for a ruling that insists on a timeframe for the Department of Environment, Food and Rural Affairs to provide a revised plan.
The concerns with Brexit is not just about what regulations will be kept in Scotland and the UK, but how it will be enforced.
Within the EU, if there is dispute, it rests with concerned citizens – individuals, communities or non-governmental organizations (NGOs) such as ClientEarth – to take action with rights and responsibilities of citizens are given legal form through the United Nation’s Aarhus Convention.
A key element of the convention is access to justice and while the Scottish Government says it is in compliance with Aarhus, NGOs have previously disagreed and are supported by the Aarhus Compliance Committee in doing so.
They found that Scotland was in breach of the not ‘prohibitively expensive’ requirement in October 2015.
Catherine Weller, senior lawyer with ClientEarth said: "One of the big gaps which will be created by Brexit is over who will enforce environmental law, particularly when governments don’t act or break the law in the absence of the European Commission and the European Court of Justice. But like so many Brexit questions, it remains unanswered by ministers.
"Like other environmental organisations, we will be fighting for all EU laws to be retained and strengthened, not weakened in future. Ministers need to be held accountable now, and in the post- Brexit landscape, for ensuring we have a healthy environment."
ClientEarth said that Scotland would have to create new legislation to keep any EU environmental regulations that the Westminster scrapped, but in the meantime there would be no laws.
The raft of EU regulations that would be at risk include directives on air quality, water framework, bathing water, habitats, wild birds, wild flora and fauna, environmental impact and renewable energy and regulations covering pesticides and packaging waste.
Dr Annalisa Savaresi, lecturer in environmental law at the University of Stirling said that public access to justice on environmental matters is likely to be even more of a challenge after Brexit.
A report by academics of the Scottish Universities Legal Network on Europe, warns that one of the main risks arising from Brexit... is "losing the 'hard, enforceable edge' that EU law provides to the Aarhus Convention’s provisions..."
It warns of the risk of a "potential lowering of standards" in the domestic implementation of the Aarhus Convention if changes are made to existing legislation implementing EU law.
It said that 'private enforcement' of environmental law will become even more important post-Brexit, due to the loss of the EU’s strong enforcement powers, which, it said "have been a significant factor in the raising of environmental standards in the UK".
The authors added: "But, equally, Brexit will put to an end the use of EU enforcement powers to ensure compliance with the UK’s international obligations regarding procedural environmental rights."
Dr Savaresi said post-Brexit citizens will only be able to rely on access to remedies before UK courts to complain of breaches to UK environmental law.
She suggested a solution to better enforcement would be to create an ombudsman in charge of hearing complaints for breaches or failure to enforce environmental laws and regulations.
READ MORE: Beyond Brexit: Hospitals risk losing EU staff lifeline
"Given its informal and non-judicial nature, an ombudsman would have clear advantages vis a vis litigation before courts, which are expensive, time-consuming and not dedicated to hearing ‘environmental’ complaints," she said. There are no specialised environmental courts in the UK at present.
"An ombudsman could receive complaints from members of the public and NGOs and challenge various levels of government for failure to enforce environmental laws and regulations."
Another avenue, she said, would be to bolster public access to justice in relation to environmental matters.
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