Speech given by Nigel Haigh, Honorary Fellow of Institute for European Environmental Policy, at the Environment Ireland Conference 2018
The EU has achieved the following in the 40 years of its environmental policy:
– promoted economies of scale. States have learnt from each other’s policies, informed by data on the environment from the European Environment Agency (EEA).
– created EU wide institutions such as the Chemicals Agency (ECHA) in Helsinki; and the IPPC Bureau in Seville (which provides guidance on best industrial practice), in addition to the EEA in Copenhagen.
– been original. Some EU legislation is unlike anything that previously existed as it had to deal with problems that demand collaboration: acid rain, the ozone layer, climate change, chemicals are all examples.
– developed concepts and principles. The ‘precautionary principle’ was elaborated in Germany and is now in the EU treaties to enable action to be taken in advance of proof. ‘Burden sharing’ was promoted by the Netherlands for acid rain policy with targets appropriate for different countries. This became key to the global climate change agreements. But many concepts were developed at EU level such as the ‘waste hierarchy’ and ‘proximity principle’ for waste.
– had global impact. EU environmental policy is now the most mature and coherent in the world and is regarded as a point of reference by third countries. The EU’s global influence has been felt on the ozone layer and climate change, and many countries model their chemicals laws on the EU’s REACH. In a word, the EU has enabled its Member States to achieve results which they could never have achieved on their own.
The Single Market and the environment
The Single Market is one of the EU’s greatest achievements, and environmental policy is closely entwined with it. The dilemma for the UK Government is that, on the one hand, it wants frictionless trade and an open Irish border, and on the other hand, it wants to ‘take back control’ of its laws so they may diverge from EU laws. The question becomes: which EU laws will the UK have to stay aligned with in order to achieve trade with less friction?
Anyone leaving the EU leaves both the Single Market and the Customs Union. The differences between these two, and their connection to the environment, are explained in a paper I wrote. The Single Market goes well beyond requiring no tariffs and uniform standards for products. It also seeks a level playing field in other ways. To clarify how departing from EU environmental legislation could distort competition. I have divided it under 5 headings:
- Standards for traded products (the list is long and includes cars, light bulbs, chemicals and pesticides, domestic boilers, hazardous waste, recyclable materials, endangered species – not to mention food).
- Operational standards (emissions from industries, management of waste sites).
- Procedural standards (assessment of development projects, access to environmental information).
- Quality standards (water and air quality).
- Standards remote from the Single Market (protection of birds and habitats, bathing water).
Norway has to stay aligned with nearly all EU environmental legislation as part of the European Economic Area agreements to be part of the Single Market. Departing from EU environmental legislation can distort competition, though obviously some items have more effects than others. The Chequers White Paper concedes that that some food and product standards must remain aligned but it is likely that the EU 27 will insist that other standards are included too (industrial emissions, water and air quality for example). The EU’s great fear is that the UK will undercut the Single Market by becoming a deregulated, low tax, low standard economy – the very thing that some hard Brexiteers rather hanker after. Hence the EU’s insistence on ‘non regression’ in the negotiations. Astonishingly at this late stage, we still await clarity on these points. They may or may not be dealt with in the declaration on the future EU/UK relationship to be attached to the Withdrawal Agreement.
The yet-to-be-agreed ‘Protocol on Ireland/Northern Ireland’ to the draft Withdrawal Agreement – which includes Michel Barnier’s famous ‘backstop’ with a frontier in the Irish Sea and with NI being in the Customs Union – so far refers only briefly to the environment. Article 7 requires legislation on trade in certain plant and animal species to be aligned. Article 5 says that EU law shall apply to certain agricultural and fisheries products and certain sanitary and phytosanitary rules, and Article 6 covers the single electricity market. All are to be subject to the jurisdiction of the Court (CJEU) .
Effects of Brexit on the island of Ireland
NGOs on both sides of the border have reminded us that ‘the island of Ireland comprises a single bio-geographic unit, with the two countries sharing common geology, landscapes, water catchments, and flora and fauna’. These NGOs see several challenges arising from Brexit and have produced joint papers dealing with a number of topics that will need to be handled cooperatively. This will be much more difficult if legislation diverges and EU money is no longer available to support cross-border projects in the North.
– nature protection (there are designated sites that straddle the border and species – as well as habitats – that can only be coherently conserved on an island-wide basis).
– the need for controls on invasive species.
– fresh waters ( there are 3 cross border river basin districts, and also cross border flood management plans).
– inshore marine waters (some shared between NI and the Republic).
– air quality (the need for additional baseline monitoring).
– climate change (adaptation requires collaboration and NI will lose EU funding).
They also discuss agriculture, fisheries, and energy supply – all topics with major environmental implications.
Waste crime is a serious issue in both the UK and Ireland and Brexit could weaken the present cross-border collaboration that tackles it. Any divergence in regulatory standards, or landfill taxes, could encourage further illegal activity. Shipment of waste is subject to international agreements (Basel and OECD), to which the UK will continue to be bound, even if ceases to be bound by EU Regulations.
The EU ‘shipment of waste’ Regulation bans the export of waste for disposal (and mixed municipal waste for recovery) to a non-EU country unless that country is a party to the Basel Convention (which the UK is) and is also a member of EFTA (which the UK is not). So in the absence of a special agreement, the present routine cross border movements from the Republic will have to change.
The Republic has been exporting much of its hazardous waste as it does not have the necessary treatment infrastructure. Much of this has been going to mainland UK and some to Northern Ireland. The Republic will have to export it elsewhere or make a special agreement.
A briefing to its members fully discussing this subject has been prepared by the CIWM.
Chemicals can only be sold in the EU if they are registered with ECHA (the Chemicals Agency in Helsinki) and registrations can only be made by companies located in the EU. After Brexit all UK registrations become invalid, so UK companies are now arranging to have their chemicals registered by a representative in an EU country. They may not have done this in time if there is a ‘no deal’ Brexit.
The UK wishes to negotiate associate membership of ECHA to avoid having to create an expensive new UK Agency to replicate ECHA. ECHA evaluates the data submitted with registrations and has the power to ban or restrict the sale of harmful chemicals. If the UK does not replicate future EU bans and restrictions, then there is the possibility that EU banned chemicals will be dumped in the UK and could then cross the border into the Republic.
The Northern Irish NGOs have called for new governance arrangements to replace the oversight and enforcement roles currently played by the European Commission and Court. This mirrors the debate in mainland UK but with a difference. In the UK, environmental policy is largely devolved to Scotland, Wales and NI, but till now they have all been held together by overarching EU legislation. Without that frame, Scotland, Wales and NI could all go in very different directions from England. The UK Government’s recent 25 Year Plan for the environment applies mainly to England, but says that the Government ‘will continue to work with the Devolved Administrations on areas where common frameworks will need to be retained in the future’. These may be legislative or non-legislative.
So Brexit will deeply affect environmental governance in UK, but in NI there will be an extra element since many of the topics I have just mentioned will need collaboration with the Republic. North-South cooperation on the environment is heavily embedded in the existing set of frameworks provided by EU laws. How to maintain effective cooperation, frictionless trade and the alignment of the environmental standards that support them, remain one of the central challenges that the island faces. What is clear that it will require a ‘common rulebook’ for the environment that goes well beyond traded products as proposed in the Chequers White Paper.
Forty years after EU environmental policy began, one would expect it to be fairly mature. But it will not stop evolving and new topics such as the circular economy are still being developed as we are hearing today. And a linked subject needing attention is surely sustainable production and consumption.
Forty years ago we were still largely focusing on local or regional problems. To look 40 years ahead is perilous, but one thing that can be said with certainty is that environmental problems will increasingly be long range and long term.
Climate change will not go away. Demand for food, water and natural resources will increase. Reversing biodiversity loss will only get more difficult as a growing world population aspires to the standards of consumption that the middle classes in the developed world take for granted – just look at China over the last decades. Pollution of the seas will rise on the agenda. Air pollution kills millions worldwide. Environmental policy can only grow more important internationally. The UN Sustainable Development Goals underline that we are all interdependent so that sustainable development is only achievable at a global level.
Brexit will weaken the EU in its ability to act internationally. Not only is the UK one of the most populous and economically most powerful Member States – and after Germany the second largest net contributor to the EU budget – but it also has a greater global reach than any other Member State. Only France has a comparable diplomatic service. Both France and UK, acting in concert with EU officials, played a major role in getting so many countries to agree to the Paris Climate Change Agreement.
Outside the EU the UK will become a bit player on the world stage dominated by the future big players: China, India, Russia, Brazil – and the EU too. The USA, which was an environmental leader in the 1970s has now become a brake – let us hope only temporarily. Of these big players, only the EU has such an environmentally engaged public, and only the EU has an institutional culture in which environmental policy is so central. The UK’s departure can only diminish that.
The UK’s departure will also influence the EU’s internal environmental policy. The UK has often been seen by other Member States as excessively cautious to the extent of being a drag on high standards, so much so that some think the EU will be more ambitious without the UK. There may be some truth in that, but the other side of that coin is that the pragmatic British have always insisted that EU legislation should be workable. Other Member States have often shielded behind UK objections, and if future EU policy is to be well grounded, other States may have to take on the British mantle. So one possibility is a more aspirational, but less practical, EU.
Another possibility is that a post Brexit deregulatory British Government, eager to strike trade deals with third countries, will have a chilling effect on the EU which will not want to be undercut by an economically important off-shore neighbour. That pressure could lead the EU to trim back its environmental ambitions. India has already said it wants weaker standards for chemicals in any trade deal with the UK, and plenty of Brexiteers welcome the import from the USA of cheap chlorine washed chicken and hormone treated beef. So anticipate storms ahead both within the UK and in the dialogue between the EU and UK that will certainly continue. Ireland being the UK’s closest neighbour cannot avoid getting caught in the storms.