Recent weeks have seen a flurry of recent emerging developments related to EU/UK and intra-UK divergence in environmental law and policy.

In one of the few areas of post-Brexit environmental policy where the UK has flexed its newfound policy making muscles in favour of the environment, an arbitration panel was convened on 28 January to hear the first of its kind; a dispute between the EU and UK, as part of the Trade and Cooperation Agreement. The case brought by the EU against the UK centres on the UK government’s closure of the sandeel fishery for all fishing vessels in English and Scottish waters of the North Sea. Sandeels, a collective name for many species of small fish are vital for many ecosystems and are food for a wide variety of marine species and birds. The EU, who still permit sandeel fishing in its waters, claim the ban violates the Trade and Cooperation Agreement, lacks scientific evidence supporting the ban, and is discriminatory against Danish fisheries, who account for 96% of the EU’s sandeel quota in the North Sea. Nevertheless, the arbitration is heavily contested by NGOs such as the Marine Conservation Society and RSPB, who argue that tougher fishing controls are necessary to protect the many vulnerable marine species that rely on sandeels for food.

Despite this dispute, the UK [Labour] government has signalled its desire to improve EU-UK relations. An article published in the Financial Times suggests the Prime Minister is considering linking the UK with the EU Emission Trading Scheme. This alignment would support both the UK and EU in achieving net-zero targets, and would reduce disruption to UK businesses, who are concerned about additional costs and bureaucracy, particularly with regard to upcoming implementation of their respective carbon border adjustment mechanism schemes. This topic is expected to be discussed further at a planned summit to review UK-EU relations expected in April or May 2025.

The desire to reduce trade frictions is arguably reflected in other news. The Northern Ireland secretary Hilary Benn politely, but decidedly rejected calls by Unionist politicians for the use of the Stormont Brake when applying new chemical related rules in Northern Ireland, specifically EU rules on classification, packaging and labelling. The request for the brake to be used came from the DUP, who were concerned about how these new regulations would impact Northern Ireland’s trade with the UK. In his response, Benn highlighted that the UK government is committed to avoiding trade barriers between the EU and UK and within the internal market as they develop their own regulations on the classification, labelling and packaging of chemicals.

A Health and Safety Executive Opinion published in December 2024 outlined their views and recommendations to restrict the supply and outdoor use of lead ammunition which is harmful to wildlife that accidentally ingest it, and which would prevent an estimated 7000 tonnes of lead annually from entering the environment. The Government will now need to consider the HSE’s Opinion with amending legislation possibly coming in due course. Unlike the sandeel policy area described above, the EU has already banned lead gunshot within 100m of wetlands in 2023 and the Commission is expected to prepare a legislative proposal based on the ECHA’s proposed restrictions on lead in outdoor shooting and fishing, meaning that the UK is playing environmental protection catch up in this area of policy.

And in good news for the environment, the UK government has decided not to grant an emergency authorisation for the neonicotinoid-containing product Cruiser SB for the treatment of sugar beet seed in 2025. Defra Minister Emma Hardy concluded that the product’s risks to honeybees and other pollinators meant that its adverse effects outweighed its benefits. This increased caution over the granting of emergency authorisations brings the UK closer into line with the EU where, as of a 2023 Court of Justice of the European Union ruling, member states are no longer able to grant emergency authorisations for the use of prohibited neonicotinoids

Finally, while the sandeels case suggests the UK may be ahead of the EU in protecting marine species, the EU appears to be taking a tougher stance on marine pollution. The EU has recently passed a Directive amending the 2005 Directive on ship-source pollution by introducing administrative penalties for polluting vessels in European seas, and widening the scope of polluting substances to comply with the international convention for the prevention of pollution from ships (MARPOL). While the existing legislation includes provisions for criminal penalties, these criminal penalties are now covered under the new Environmental Crime Directive. This new amendment therefore enables administrative penalties for acts that do not qualify for criminal proceedings, further helping to deter pollution. While the UK is still able to apply criminal penalties under the pre-existing EU legislation, this amendment regarding administrative penalties and widening the scope of pollution will not apply, and the UK will also be unable to benefit from the new amendment’s focus on developing the capacity of member states to effectively identify and penalise infringements.

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