There has been little mention of the environment in the government’s Brexit priorities so far, so it may come as a surprise to hear that an estimated four fifths of all our environmental protections are covered by EU law. As the Westminster government heads towards triggering Article 50 this week, to be closely followed by the repeal bill which will transpose EU law into domestic law, what are the risks to our environmental protections?
Although some laws will be relatively easy to transfer across, a significant proportion will not, as the Defra Secretary of State Andrea Leadsom has indicated. The complexity of the transfer creates risks that, if not addressed, could be a serious cause for concern. Here are the important ones to watch, and what the government should be doing to avoid them:
- Guiding principles
EU environmental laws and policies are guided by overarching principles, such as ‘polluter pays’ and the ‘precautionary principle.’ Often overlooked, they have nonetheless, been critical to protecting our health and our environment.
We have learnt the lessons of not applying the precautionary principle, which says that if there is a suspected risk of harm to the public or the environment from a policy, in the absence of definitive scientific consensus, it should be avoided. Such as in the case of lead used in petrol in the 20th century to solve engine knocking. Despite early evidence that it could harm human health, it was still widely used for over 50 years. By the 1970s it was causing serious, irreversible health impacts, particularly in children, such as diminished cognition, disruptive behaviour, dyslexia and toxicity to the reproductive organs. If the precautionary principle had been applied, it is highly unlikely leaded petrol would have been approved and the terrible harm it caused would have been avoided.
Critics may say these principles stifle innovation, and are applied too often, but a review of the precautionary principle showed that, in 88 cases examined, it had been applied appropriately in all but four cases.
To avoid unnecessary risks in future, the government must embed these important principles in domestic law via the repeal bill.
- Effective implementation
For the past 40 years the European Commission and the European Court of Justice have held the UK government to account on many of its environmental commitments. Through the threat of fines and legal proceedings, they have ensured that the UK has kept to the laws and targets signed up to as part of its membership of the EU.
Laws like the Bathing Water Directive: we now have 632 clean bathing waters around the UK, so it’s hard to imagine a time when this wasn’t the case. But, there was a time when only 27 beaches were designated as bathing waters. It was only after the European Commission brought formal proceedings against the UK in the late 80s, that we started to clean up our act, investing nearly £3 billion to improve sewage outlets and designating iconic seaside resorts, like Skegness, Blackpool and Brighton, as bathing waters so they could be assessed.
Theresa May has said the UK will no longer be under the jurisdiction of the European Court of Justice, and it’s unclear if we’d be subject to any European Commission oversight in future. So who will play this role in post-Brexit Britain?
As the Bathing Water Directive example shows, without an independent body to hold government to account, there is a real risk that our environmental laws and protections will simply not be upheld. As we transpose European laws across into domestic law in the repeal bill, the government will need to empower current, or create new, institutions to play this role.
- Cross border issues
Most environmental challenges can’t be confined within national borders. Birds and fish migrate, air borne pollution travels across countries and even our energy supplies travel under the sea.
When the UK leaves the EU, we could go it alone and forgo the co-operation with our European neighbours which has, until now, facilitated joint efforts to tackle cross-border environmental issues. But that is unlikely to be in our best interest.
Air quality is a case in point. We have focused on reducing toxic air in our cities caused by vehicles and other local sources. But that’s only part of the picture. It is estimated that up to 50 per cent of particulate matter pollution in the UK, thought to contribute to nearly 30,000 premature deaths every year, is blown over from the continent. So, if we really want to clean up the air in our cities, we should co-operate on solutions with our EU neighbours.
The prime minister has said that the UK may seek participation in specific European ‘programmes’. For the health of the UK’s environment and population, cross border environmental challenges must be prominent on that list.
- Diverging standards
The government has made much of its intention to provide regulatory continuity for businesses as it transfers laws through the repeal bill. But what will it do about the dynamic process by which standards are gradually improved over the long term?
For example, EU regulations set minimum standards for the average CO2 emissions of new cars sold across the EU. It has been steadily raising the bar, making our cars lower carbon, cleaner and more efficient over time. If the UK fails to keep up with changing EU standards, manufacturers may market and sell fewer new low emission vehicles in the UK, especially if these do not count towards their EU average and they have to complete with less efficient cars imported from outside of Europe.
To avoid this, the government must clearly indicate where equivalence with European standards will be needed. The repeal bill will be the government’s first opportunity to outline this.
- Lost opportunities
The recent State of Nature report once again reported a worrying picture. It found that just over half of UK native species are in decline, and 15 per cent face extinction. Regardless of the UK’s withdrawal from the EU, we need to do more to reverse this trend.
The government’s much anticipated 25 year environment plan, alongside its emissions reduction plan, are important opportunities to do this and to meet the UK’s commitments under the Climate Change Act. But, with delays to the publication of these plans, and parliamentary and civil service time dominated by Brexit-related legislation, there is a real risk that the opportunity to introduce meaningful legislation and policies will be lost.
The government should commit to a new Environment Act to fill the gaps left by Brexit and to put us on a clear course to restoring nature and cutting pollution in the UK.
