If the UK remained a member of the ECAA, as mentioned above it would be required to accept EU laws in these areas. However membership of the ECAA may be incompatible with the stated desire of the UK Government to extricate the UK from the jurisdiction of the CJEU and for the UK to regain sole control of law making. Nevertheless, as EU-derived legislation is likely to be preserved by The European Union (Withdrawal) Act, in the short term at least UK rules on environmental protection and health and safety are likely to remain consistent with EU standards.
Following Brexit, the EU Emissions and Trading Scheme (EU ETS), which has been controversial in the aviation sector, would still apply to the UK if it became a member of the EEA (which now seems unlikely). However even in the case of a different Brexit scenario, non-EU airlines may well be subject to this or a similar regime either (a) depending on the International Civil Aviation Organization’s (ICAO) progress in implementing its “global market-based measure” regarding aviation emissions or (b) if the EU’s “Stop-the-Clock” decision is reversed.
Following Brexit, the UK is likely to retain a role in developing common technical specifications and common approaches to rail safety for the rail sector in Europe, irrespective of the Brexit model adopted.
Through its membership of the Channel Tunnel Intergovernmental Commission (IGC) and international rail organisations, such as OTIF, the UK is likely to continue to form part of working parties set up by the European Railway Agency (ERA) although is unlikely to retain membership of the ERA in its own right. The ERA establishes working parties of experts to assist it in establishing an integrated European railway sector and supporting the European institutions on technical matters regarding the implementation of EU legislation in the field of rail interoperability.
All electricity used by the UK rail industry, whether for traction or other purposes, is subject to the EU ETS. The only rail operations not covered by the EU ETS are the operation of diesel trains and road vehicles used to support rail operations. Irrespective of whether or not the EU ETS continues to apply following Brexit, we consider that the UK rail industry will seek to continue to improve its environmental performance and reduce emissions in line with the UK Government’s policy.
The primary regulations governing safety at sea and environmental issues are contained in international conventions: SOLAS1 (in relation to safety at sea) and MARPOL2 (in relation to environmental issues). UK shipping companies will still need to observe and operate within this international regulatory framework irrespective of Brexit. It is likely that, regardless of an exit from the EU, UK shipping companies will still have to comply with at least some current, as well as future, EU maritime policy by virtue of trading to, and using ports within, the EU.
Whilst the EU ETS does not currently apply to the shipping industry, the EU has introduced Regulation 2015/757, which creates an EU-wide legal framework for the monitoring, reporting and verification of CO2 emissions from maritime transport. This is part of a three step strategy:
- monitoring, reporting and verification of CO2 emissions from large ships using EU ports;
- greenhouse gas reduction targets for the maritime transport sector;
- further measures, including market-based measures, in the medium to long term.
UK shipping companies using EU ports are likely to be subject to such measures whether or not such measures are adopted more generally by the International Maritime Organisation.