This post is by Andy Jordan, Charlie Burns and Viviane Gravey, co-chairs of the ESRC funded Brexit & Environment network.
Brexit negotiations are not just about the UK deciding what it wants. The further negotiations advance into the second phase, the clearer it becomes that the EU will also have a very big say. It has firm negotiating lines of its own. Crucially, some of these will be green, not red.
None of this will surprise those who have been paying attention to the evolution in the EU’s thinking. In his very first public statement, the Commission’s chief negotiator, Michel Barnier, said that everyone in the EU “will be wary that… regulatory divergence does not turn into regulatory dumping”.
A month later – on 29 April 2017 – the heads of state issued their formal negotiating guidelines. Paragraph 20 noted that a “level playing field must be secured” and “encompass safeguards against unfair competitive advantages, through inter alia…. environmental… measures and practices”. Shortly after, the European Parliament, which will be able to veto the final deal, sang from the same hymn sheet.
Thus on green matters – as on so many others – the EU has spoken loudly, clearly and with one voice.
The EU’s green lines
So what are the EU’s green lines and how could they be operationalised?
Last month, the Commission published a set of slides explaining why the environment will be a part of the final deal. The first reason is economic: after Brexit, the UK will be a large trading partner sitting on the EU’s doorstep. Second, the slides point to a potential €4.7 billion annual gain for UK industry if current protections are reduced, resulting in “increasing pollution” for EU citizens. The slides do not use the term ‘Dirty Man of Europe’ but that image must have been in the back of the Commission’s mind.
How might the EU enforce its green lines? It could insert a non-regression clause into the text of the final trade agreement, a device used in the EU’s agreement with Japan. A new set of governance structures could also be created to oversee the management of the agreement, resolve disputes and provide a means to enforce joint solutions (including sanctions).
None of this will surprise those who have followed the discussion about future trade models, but it may make others realise that the UK will not entirely take back control of its environmental governance after exit day, if it wants an agreement with the EU.
No need for conflict
There are many things that could disrupt the talks between now and March 2019, but there is no reason why the EU’s green lines should be amongst them. The EU’s desire for non-regression matches almost perfectly the government’s pledge – repeated by the prime minister when she launched the 25 year plan for the environment – to ensure that environmental standards are maintained after exit day.
There are some things the UK could do to minimise conflict with the EU in a way that ensures it still benefits. For example, the slides refer to the importance of “systematic dialogues on sensitive issues” and shared “transparency and monitoring based on EU and international standards”. If the UK is intent on influencing EU rules from outside the EU, it will also benefit from continued dialogue and monitoring. One obvious way to put the Commission’s mind at rest is to commit to remaining a member of the EU’s data gathering body, the European Environment Agency. It could also respond positively to the Commission’s new proposal on standardised reporting, as well as ensure that all the reporting requirements in existing laws are fully retained after 2019.
Risk of weakened standards
The slides also explicitly refer to the risk that standards might be selectively weakened after Brexit day. Defra has announced that standards will not be weakened by the Withdrawal Act. But it could provide even greater detail on how EU laws will not simply be retained, but will be regularly updated after Brexit day to prevent zombification.
One way the government could meet the Commission’s third concern – weak enforcement – is to ensure that the new ‘Commission-like’ body that Defra is about to consult on really is commission-like, in other words, that it is independent, well resourced and has robust prosecutorial powers. It could also establish suitable procedures to give private actors access to justice to challenge any failures by central and devolved departments.
Finally, one senses in the slides an unstated suspicion that the UK may be having second thoughts about its commitment to aim for a high level of environmental protection. The UK can clarify its intentions by adopting an unambiguous statement on environmental policy principles. If it were underpinned by primary legislation it would have the same status as the EU’s treaty-based commitment.
The lines need resolving, and soon
Environmental protection is hardwired into the EU. And if the EU learnt anything from the painful TTIP and CETA sagas, it was that when green lines are left unresolved, they all too easily disrupt the adoption of new trade agreements.
The EU’s suspicions are likely only to intensify as Brexit day edges closer, so the sensible time to act fully on this is during the next 12 months. The good news is that Defra has already committed to take many of the steps outlined. Nevertheless, the fine detail still has to be discussed and implemented, and there is still no sign of an environmental protection bill, beyond a nod to it by Michael Gove in the House of Commons. Of course, the more discussions gravitate towards the Canada-plus trade model, the more influential the green lines will become (in a Norway-style model, they will be embodied in the existing framework of EU environmental rules).
UK could set net environmental gain as a line
The problem with non-regression is that it is a relatively static concept. In recent months, both Theresa May and Michael Gove have endeavoured to present Brexit as an opportunity not only to stand still, but to champion strong environmental protections at a global level.
The government has the opportunity to do just that in phase 2 of the talks by laying down some green lines of its own. For example, it could commit to matching new ambitious EU rules in the future (making regulatory convergence dynamic, not static) and call on the EU to reciprocate. Or it could, if it wanted to be really bold, replace references to non-regression in the future relations agreement with a commitment to achieve ‘net environmental gain’. But this concept, put forward in the recent 25 year environment plan, would need to be carefully defined to avoid simply offsetting the loss of irreplaceable habitats.
That would make it abundantly clear that the UK intends to create an environmental race to the top (promised by David Davis earlier this week), not to the bottom.