Brexit – Page 2 – Cabot Institute for the Environment blog

In the lead up to the Brexit vote, we are posting some blogs from our Cabot Institute members outlining their thoughts on Brexit and potential implications for environmental research, environmental law and the environment.
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With barely a week to go to the Referendum, the Environment has singularly failed to make itself an issue in the BREXIT debate. Yet it is impossible to explore any aspect of environmental law in the UK without encountering European Law. It is therefore no surprise that environmental lawyers and environmental groups have been queuing up to express concerns about the implications of BREXIT – Margherita Piericcini’s Cabot Institute blog on the impact on wildlife and habitats is an example.

So why has the environment not become a key issue? I attended the All-Party Parliamentary Climate Change Group’s event ‘A Climactic Decision: Brexit’s impact on the UK’s climate and environment’ at the Houses of Parliament earlier this month in the hope of finding out why.

Chaired by Mark Mardell, Mary Creagh MP Chair of the Environmental Audit Committee and Professor Michael Grubb (UCL) spoke for remaining. Roger Helmer MEP UKIP European Parliament Industry, Research and Energy Committee and Lee Upcroft spoke for exit on the topic of Staying in the EU is the best way to protect the UK’s climate and environment.

The first problem that was manifest is that those strongly engaged in climate change and the environment more generally, are convinced of the role of the EU: in the opening vote at the debate all but one person in the audience were voting remain. Equally for those voting leave, climate change may not be a concern to them: Professor Michael Grubb speaking in the debate referred to the ‘twin horns’ of climate change and EU membership to argue that remaining in the EU and climate change action have much in common. Both require an acceptance of expert evidence, acceptance of uncertainty and a willingness to work collaboratively across cultures, surrendering some individual independence in the wider good.

The environment is the one place where BREXIT campaigners do not argue that most things from Brussels are awful. Put simply the environmental case for remaining is that just about all of the environmental law that benefits the UK stems from the EU. Few countries or regional groupings in the world have the sort of comprehensive environmental laws the EU has, or has had them so long.

The BREXIT speakers in the debate sought to argue that the sorts of environmental action that the EU has adopted were ‘in the air globally’ and the UK would probably have done it anyway. If that is so, the remain speakers countered, why has the UK ended up in the European Courts so often for not implementing EU environmental law ? All too often when the EU has agreed new laws to protect the environment the UK has had to be taken to the European Court of Justice to secure compliance – for example when the Bathing Waters Directive was adopted, the UK Initially registered fewer bathing beaches than Luxembourg (don’t dive for a map it is landlocked, but it registered each cove round its lakes). It took the European Court of Justice to sort that one, and bring the UK into compliance. The same with urban waste water (sewage) where it took the European Court to force the UK to stop discharging untreated sewage into the sea. And the list goes on. So this does not look as if the UK ‘would have introduced all these environmental laws anyway’.

The second BREXIT argument was that as the UK leads the EU on climate change, it does not need the EU. Climate change and pollution do not respect EU borders, so we need global action not regional action, Remain speakers countered by arguing that it is easier to convince 27 other states of our concerns, and then take joint action. Once the EU takes action it has a strong voice on the global stage. Outside the EU the UK would be but one voice in nearly 200 states, a much harder task to convince 200 than just 27. Michael Grubb put it bluntly – the UK has more influence to achieve action on climate change in than out.

A third argument was about free trade. Here the BREXIT speakers argued that the UK would be free to create whatever environmental rules it wanted on its own or in multilateral partnerships of its choice and to scrap those (unspecified) that count as unacceptable burdens. But as an expert from the floor who had been involved in UK / USA trade negotiations explained, in his experience the UK alone makes little progress in getting decent terms from the USA, until the EU as a whole throws its weight behind the negotiations. When asked about the impact of World Trade Organisation obligations on this argument, BREXIT speakers claimed nobody had raised this with them before. Put simply, the nostalgic world of a UK free to create whatever rules it wants does not exist, in or out of the EU. The WTO Treaty obligations mean states cannot unilaterally impose what can be seen as trade barriers by setting national rules, without ending up in the WTO courts. Only regional treaty commitments protect environmental rules in restraint of free trade from the WTO court. The EU is the strongest example of that sort of trade treaty.

When it came to energy, the BREXIT argument was that EU membership had kept energy prices high, particularly through VAT and the Combustion Plant Directive closing our coal fired power stations. Yet energy prices across the rest of the EU are 40% below the UK, because of their longstanding commitment to renewables, and Germany in particular continues to use coal by investing in compliant technology. UK government decisions were identified as the problem. The harmonisation of the energy market will produce £500m a year energy cost savings to the UK by 2020 – quite apart from energy security and the capacity for us to export surplus energy. The EU’s global muscle has led to reductions in the cost of renewables technical – solar power costs have fallen by 30% as a result for example.

So, after two hours of debate, the remain speakers felt the gains from the EU should be retained, the BREXIT debaters felt that all the good things that have come from the EU would have come anyway, and that there is a world outside of the EU in which the UK will be free to have whatever environmental protections it wants, in a nostalgic world of free nation states. The WTO will have something to say about that – or perhaps the UK will simply scrap so much of its environmental protections in pursuit of deregulation and free trade that we will not trouble the WTO.

You can download a summary of this discussion on the APPCCG website.

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This blog is written by Cabot Institute member Chris Willmore, Senior Academic Fellow in Environmental Law at the University of Bristol. Chris is also the University lead academic for Technology Enhanced Learning and currently leads the University Green Academy team which is developing education for sustainable development across the University curriculum.

Read other blogs in the Brexit series:

– Brexit, trust and the future of global environmental governance

– The EU, Brexit and nature conservation law

– Brexit: A climactic decision?

– Why is populism popular? A psychologist explains

– Sharing routine statistics must continue post-Brexit when tackling health and climate change

In the lead up to the sold out Brexit debate at the University of Bristol on Friday 29 April 2016, we are posting some blogs from our Cabot Institute members outlining their thoughts on Brexit and potential implications for environmental research, environmental law and the environment.

The EU plays a fundamental role in shaping the environmental law regimes of its Member States and that of the UK is no exception. A significant proportion of current domestic environmental law derives from EU Regulations (that automatically become part of English law) and EU Directives (that are implemented through national legislation).

Nature conservation law, i.e. the legal regime used to protect environmentally significant habitats and species, is a case in point and the focus of this blog. Conserving nature is key not only from a purely biodiversity standpoint but also from an ‘ecosystem services’ perspective. Ecosystem services are the benefits nature brings to the environment and to people, including supporting services (e.g. nutrient cycling), provisioning services (e.g. food), regulating services (e.g. carbon capture) and cultural services (e.g. recreation).

Site designation and management is a favoured technique of nature conservation law. The well-known Natura 2000 network, would not be there if it were not for EU Directives, namely the Habitats (92/43/EEC) and Wild Birds Directives (2009/147/EC), implemented in the UK by the Conservation of Habitats and Species Regulations 2010. Under Article 3 of the Habitats Directive, Member States are indeed required to set up the Natura network composed of Special Areas of Conservation (sites hosting the natural habitat types listed in Annex I and habitats of the species listed in Annex II of the Habitats Directive) and Special Protection Areas (sites for the protection of rare and vulnerable birds as listed in Annex I of the Wild Birds Directive and for regularly occurring migratory species).

Greenfinch by Mschulenburg – Own work, CC BY-SA 4.0

In the UK, there are a substantial number of European protected sites: 652 Special Areas of Conservation (including candidate Special Areas of Conservation[1] and Sites of Community Importance[2]) and 270 Special Protection Areas, covering a total of 8,013,467 ha (JNCC statistics as of 28 January 2016).

Has the establishment of Natura 2000 made a difference to biodiversity protection?

As part of its Smart Regulation Policy, the Commission has initiated a fitness check of the Habitats and Wild Birds Directives to evaluate their effectiveness, efficiency, coherence, relevance and added value. Though the final Commission report on the results of the fitness check will be available only later this year, the draft emerging findings prepared by a consortium of experts do suggest that the Habitats and Wild Birds Directives have substantially contributed to the conservation of nature and to meeting the EU’s biodiversity target.

It is fair to note that, prior to the EU Directives on nature conservation, the UK did have its own system for habitat protection, most notably based on the designation of Sites of Special Scientific Interest (SSSIs). Introduced in the post-war period by the National Parks and Access to the Countryside Act 1949, the law governing SSSIs has been strengthened over the decades by the Wildlife and Countryside Act 1981, amended by Schedule 9 of the Countryside and Rights of Way Act 2000. However, the management measures in place for SSSIs are not as stringent as those for the protection of Special Areas of Conservation and Special Protection Areas.

Sites of Special Scientific Interest (SSSI) were introduced in the post-war period in the UK to help manage habitat protection.

It is also fair to note that in the marine environment, the UK has taken important steps domestically: the passing of the Marine and Coastal Access Act 2009 in England and Wales (and similar Acts in the devolved administrations) has brought in new domestic marine conservation zones that contribute to the establishment of an ecologically coherent network in UK waters. But the building of such a network is not so disentangled from EU law, considering Art 13(4) of the EU Marine Strategic Framework Directive (2008/56/EC) requires the formation of marine protected areas’ networks in the marine environments of Member States.

Clearly therefore, EU law has contributed much to the development of nature conservation in the UK. Moreover, being part of the EU means that the Commission can exercise its power to bring infringement proceedings against Member States for incomplete or ineffective implementation of EU law, thereby exercising an external check on implementation (for nature conservation, see Commission v UK, Case C-06/04 [2005] ECR I-9017).

What would Brexit mean for the future of nature conservation law?

What is unknown however is what would Brexit mean for the future of nature conservation law in the UK because much depends on the type of post-Brexit EU-UK relationship and the agreement that will be negotiated. However, it could be argued that compared to other environmental sectors (such as waste and water) nature conservation may be more at risk.

Indeed, even in the not-too-radical scenario in which the UK chooses to stay within the EEA, the future of nature conservation law will depend on whether there is political willingness to continue to abide by existing commitments, rather than legal obligations stemming from the EEA agreement. This is because, though the EEA agreement does contain many environmental provisions, nature conservation is excluded (Annex XX of the EEA agreement excludes the Habitats and Wild Birds Directive). Consequently, the future of nature conservation law is very uncertain in a post-Brexit world, even in the event of EEA membership.

[1] Candidate Special Areas of Conservation are sites that have been submitted to the European Commission, but not yet formally adopted.

[2] Sites of Community Importance are sites that have been adopted by the European Commission but not yet formally designated by the government of each country.

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This blog has been written by Cabot Institute member Dr Margherita Pieraccini, a Lecturer in Law at the University of Bristol.