What could Brexit mean for the next 40 years of EU environmental policy?

IEEP Honorary Fellow, Nigel Haigh, delivers a speech on Brexit and environment the Environment Ireland Conference - Dublin 4 October 2018

This is the sole work of the author and does not necessarily represent the ideas of IEEP. 

  1. Brexit possibilities

I want to start with a confession.  I voted 'remain' and remain a remainer, and I am increasingly encouraged that opinion in Britain is turning against Brexit.  As this will become obvious as I speak, I thought you should know in advance so that any DUP supporters here had better just close their ears.  

I am asked to talk about the long term, and as  the UK has been an influential EU player in the past, the future could well depend on what kind of  Brexit  might yet happen.   

Even at this confused late stage there are a number of possibilities:  

  • Norway style Brexit called  'BRINO' by Brexiteers ( Brexit in name only)
  • 'No deal'  Brexit which is clearly a disaster for everyone
  • Negotiated Brexit evolving out of the Chequers White Paper, with future EU/UK relations spelled out in detail,  and
  • 'Blind' Brexit negotiated as above, but with future relations fudged.

The Irish border question continues as the rock on which Brexit may yet  founder.  If there is no agreed  way to  keep it  open,  then the choice is between  a 'no deal'  and no Brexit.

And let us be absolutely clear:   'no deal' means a hard border - and no transition period.

The Chequers White Paper has been shaped   to try to keep the border open.   But even its  'common rule book' for products crossing the border is too much for the hard  Brexiteers,   who say they  will vote against it but have no workable  alternative. They resort  to saying  that the Irish border does not  matter all that much.

Many of us in the UK are  immensely heartened by the principled stand that the Irish Government is taking in defence of  the Good Friday  Agreement, which  of course  presupposed that  the Republic and  the UK were both  in  the EU  - with  an open border between them.

  1. Breaking up is hard to do

Before talking about the environment, I want to draw your attention to  that  astonishing  insight  of one of  the founding fathers of the EU.   

Jean Monnet helped shape the 1950 Schumann Plan that led to the European Coal and Steel Community in 1953, that in turn led to the Common Market (EEC) in 1959, and eventually to the EU.  As well as being a visionary, he was  the first President of what evolved into the European Commission[1].

Monnet predicted that the Coal and Steel Community would so entwine the  industries in Germany and France  that they would find it impossible to go to war ever  again , even if either  wanted to. Remember that France had been invaded three times in the previous 80 years.  

 The Common Market, or Single Market as we now call it,  was  always  more than an economic project.  You here in Ireland know all about conflicted borders.

Monnet lived long enough to see Ireland, the UK and Denmark join the EEC in 1973, but he had died  before the Single European Act of 1987  consolidated the Single Market  into what we have  today .   

Components of motor cars now crisscross national  borders  just in time for the next  production step.  And here in Ireland, waste operators  take  waste for treatment or recycling   across the border every day.  

What would Monnet have said about the Single Market?  Could he conceivably   have said that it would  so entwine the economies of the Member States that it would be impossible for anyone  to leave it?  

That would be  going  too far:  any manmade institution must  be capable of being unmade.   But the two years since the referendum have taught us that Brexit is not the walk in the park that some Brexiteers  promised.  It is proving extraordinarily difficult.

 Could Monnet instead have said  something along the lines of  that pop  song  that   burst onto the   world  just before he died?  I guess that many of you once sang  Neil Sedaka's  Breaking up is hard to do. 

Certainly Brexit will cause pain,  and Ireland is the Member State that stands to suffer most  economically -  apart from the UK.  Environmental management in Ireland will also  suffer more than elsewhere since  the North/South cooperation that has taken place under the frameworks created by  the Good Friday Agreement has long been underpinned by  EU rules and by EU money.

  1. Achievements of EU environmental policy

Before I look forward, let me take stock of what the EU has achieved in the 40 years of  its environmental policy[2].

We all know that the EU has brought the weaker Member States closer to the standards of the stronger.  But there is much more to it than that.  Let me highlight other achievements.

The EU has:

- 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 .

  1. 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 some months ago  (I was invited to speak here today because of it,  so do read it if you want to know more) [3].   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:

  1. 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)
  2. Operational standards   (emissions from industries, management of waste sites)
  3. Procedural standards   (assessment of development projects, access to environmental information)
  4. Quality standards    (water and air quality)
  5. 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 agreement  so as to be part of the Single Market.   Departing from EU environmental legislation can distort  competition, though  obviously  some items  have more effects than others[4].  The  Chequers White Paper  concedes that that  some food and  product standards must remain aligned ( without saying which)  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) .

  1. 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'. [5]

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.

They include :

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. 

These topics may not be exhaustive but I will only add only  two  dealing with 'goods' that cross frontiers.  I will also comment on governance.

5.1 Waste

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 which its CEO allowed me to see before publication[6].  I commend it to all here interested in waste.

 

5.2 Chemicals

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.

5.3 Governance

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.

  1. The future

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  focussing  on  local or regional problems. To look 40 years ahead - as the conference organisers have asked me to - 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.

 

[1]  It was called the High Authority of the European  Coal and Steel  Community (ECSC) and  was later merged into the Commission of the EEC. The ECSC ceased to exist in 2002.

[2] For more detail  see my book EU Environmental Policy - its journey to centre stage (Routledge 2016)   

[3] https://ieep.eu/news/brexit-single-market-customs-union-and-the-environment

[4]  Norway insisted it did not want to be bound by EU nature legislation even though it too contributes to the Single Market. The 2016 EU 'fitness check' of nature legislation concluded that one of the key ways that it 'adds EU value' is by providing an EU wide level playing field even if that was not the initial motivation for it.

[5] NI Environmental Link,  Environmental Pillar.  See Brexit  position statements on their websites.

[6] Briefing: Brexit, Waste and the island of Ireland  CIWM (Chartered Institute of Wastes Management- the professional body for the resources and waste management sector in both the UK and Ireland)   https://www.ciwm.co.uk/ciwm/news-and-insight/reports-and-research