Two documents, central to Brexit and its aftermath, have been endorsed by the UK government and the European Council (for the EU27). In principle, one of these, the Agreement, will enter into force at the time of the UK’s departure from the EU. Taken together, they have potentially significant implications for the environment and environmental policy.

The extensive and detailed draft Withdrawal Agreement, dealing with the terms of the UK’s exit from the EU, was published on November 14th. It is in the form of a Treaty that would be legally binding. Linked to this, a draft Political Declaration emerged on November 22nd, briefly outlining the broad principles and starting points on which negotiations about the future relationship between the UK and the EU would be based. It is not legally binding.

How the environment fits into the framework proposed

The Withdrawal Agreement is a lengthy document. It sets up a transition period, running to 31 December 2020 (Article 126), during which EU law is applicable in the UK (Article 127). Article 128 sets out the institutional arrangements for the transition period.

The ‘Protocol on Ireland / Northern Ireland’ (beginning on page 302) sets out the so-called ‘backstop’. This will apply at the end of the transition period if no further agreement has been reached on the future relationship. It is designed to avoid a ‘hard’ border between Ireland and Northern Ireland, partly by creating a ‘single customs territory’ with rules intended to create a level playing field between the UK and the EU. While it is relatively robust as a backstop, the UK could conceivably find a way to escape the Protocol. For example, Article 18 allows for derogations if the case of ‘serious economic, societal or environmental difficulties’.

The environmental provisions summarised below arise from this aspect of the Agreement and would apply to the whole of the UK, which would be within the envisaged ‘single customs territory’ for a temporary period. For Northern Ireland only there would be closer alignment with a range of EU regulations during the backstop period.

However, the significance of the UK wide provisions affecting the environment extends well beyond the backstop itself. This is because the Political Agreement endorsed by EU leaders in late November makes it clear (in para 79) that any future agreement between the EU27 and the UK will contain provisions to cover the ‘level playing field,’ specifically including environmental standards. These provisions would build on the arrangements provided for in the Withdrawal Agreement, which is effectively a starting point for the future relationship in this respect. Consequently, we can expect there to be an environmental component of the UK/EU relationship beyond 2020, or whenever the Transition period ends. It will take the form of either the backstop or a new binding agreement, covering trade and other matters.

How does the backstop look in environmental terms? 

The environmental dimension set out in Annex 4 of the Protocol, (Articles 2 and 3), is based on the principles of ‘non-regression’ and effective enforcement. The UK and the EU both commit not to lower the level of environmental protection provided by ‘law, regulation and practices’ ie both legislation and its implementation in practice, taking as a baseline those ‘common standards’ on the environment that are in place at the end of the Transition period.

Standards are not to be lowered in nearly all areas of environmental policy, which are set out in a list that is intended to be exhaustive. It includes air emissions, nature and biodiversity, the protection and preservation of the marine environment and climate change. A few areas of environmental law seem to have been omitted, probably because they are not seen as relevant to the level playing field, noise being one example. However, the great bulk of environmental law is included.

Within this frame, there could be considerable variations between environmental law in the EU and the UK in the future. The non-regression obligation does not mean that UK law needs to remain harmonised with EU legislation, as much of it is now.[1] Nor does UK law have to be exactly the same as it is at the end of 2020. It could be amended considerably, providing that common standards are maintained or improved. Both sides can adopt higher standards if they wish. Nothing is said about future standards beyond the baseline or future arrangements to secure co-operation or alignment beyond the Transition period. However, in principle non-regression establishes a floor beneath which standards must not fall and provides some counterweight to the UK signing trade agreements in future that result in a reduction in these standards.

Furthermore, there could also be divergence within the UK, as the four countries follow their own paths while complying with the principle of non-regression. The four UK nations are also bound to ‘respect’ four environmental principles in their environmental legislation, all taken from the Treaty. They include the Precautionary Principle and the Polluter Pays Principle. This suggests that such principles will need to be embedded in the forthcoming Environment Bill in England and its equivalents in other parts of the UK.

For one small but significant set of environmental laws, non-regression will apply more strictly. For emissions of certain atmospheric pollutants, understood to be those covered by the National Emissions Ceilings directive, the sulphur content of marine fuels and those covered by the ‘best available techniques’ approach in the industrial emissions directive, there will be a special joint negotiation process to set standards. This process will be overseen by the Joint Committee that would be set up to implement the Agreement as a whole.

Additionally, the UK has to have in place a carbon pricing system of at least the same effectiveness and scope as the EU emissions trading system (ETS). In the Political Declaration, there is one paragraph, 72, dedicated to carbon pricing and this states that both parties will ‘ consider’ co-operation in this sphere by linking a UK national ETS with the EU system. This signals the sensitivity of the issue but certainly does not determine what happens next.

Compliance and the independent watchdog(s)

Broad obligations like non-regression can be difficult to monitor and control and it is unlikely that either side would be keen to devote time and political capital to challenging issues of relatively detailed compliance; conceivably these could be quite numerous. On the EU side the European Commission and the CJEU provide an established and rather robust system of oversight and create considerable pressure on the Member States to comply with EU environmental legislation but there is no equivalent within the UK. Furthermore, following Brexit, citizens and NGOs will lose the right to pursue complaints against the UK governments for failures of compliance without incurring any costs. At present they can approach the European Commission directly. This gives particular importance to the enforcement provisions and dispute procedure, which are also set out in the Withdrawal Agreement in Article 3 in the relevant part of the Annex.

Article 3 obliges the UK to ensure effective enforcement of Article 2 and of ‘its laws, regulations and practices reflecting those common standards’. Certain mechanisms for achieving this are specified, including the availability of ‘administrative and judicial proceedings’ that permit action by the general public, provide for ‘effective remedies’ and ensure that any sanctions are ‘effective, proportionate and dissuasive and have a real and deterrent effect’. This would underpin some key rights for citizens but does not address issues of cost or ready accessibility, nor does it guarantee that these mechanisms would be as stringent as required.

More specifically, the UK must ‘implement a transparent system for the effective domestic monitoring, reporting, oversight and enforcement of its obligations’ under Articles 2 and 3, ‘by an independent and adequately resourced body or bodies ‘. In effect this requires the UK to set up one or more bodies of the kind currently being referred to in the policy debate as the ‘watchdog’, covering all four countries of the UK. The bodies have to be ‘independent’ but no further detail is prescribed; this could be an area of contention since the views of governments and civil society on what constitutes independence could diverge considerably.

The bodies must have powers to initiate inquiries about alleged breaches of compliance with all the common environmental standards covered by the Protocol. These must include ‘powers to receive complaints.’ By contrast with the proposals set out in the DEFRA summer consultation paper on environmental principles and governance, climate change is included in these provisions. The watchdog(s) shall be concerned with ‘alleged breaches’ by all ‘public bodies and authorities’, rather than just Ministers of the Crown, as in the DEFRA consultation. The bodies would also have the right to bring a legal action ‘ before a competent court or tribunal in the United Kingdom in an appropriate judicial procedure, with a view to seeking an adequate remedy’. Whilst this is subject to some degree of interpretation it appears to rule out bodies with no teeth and raises serious questions about the acceptability of some of the weaker formulations of the new watchdogs that have been discussed in the UK.

EU environmental agencies

There is no mention of the UK joining the European Environment Agency in either text and no decision seems to have been made on the UK side as to whether to apply. The European Chemicals Agency is mentioned in the Political Agreement as one of the EU agencies with which the possibility of UK co-operation will be explored and the UK will also consider aligning with EU rules in relevant areas. This is warmer language than previously used on the UK side but still non-commital.

More broadly

Future co-operation on global environmental issues, especially climate change, is signalled clearly in the Political Agreement. The economic partnership will recognise that ‘sustainable development is an overarching objective of the Parties’, as it is in the EU. However, means of more concrete co-operation or machinery for keeping environmental legislation in step after the end of the Transition are not mentioned. Fisheries provisions leave all the major issues to be discussed after the UK has left the EU.

If the UK crashes out of the EU

All the provisions set out above apply only if a deal is arrived at and is based on the documents reviewed here. Other options are possible.

David Baldock[2]

04.12.2018

[1] Except in certain areas, or for Northern Ireland only.

[2] With thanks to Maria Lee and Tom West for comments on a draft