The Environment Bill is leaving Northern Ireland behind

belfast smallThis post is by Emily Hunter, Nature and Environment Protection Officer at RSPB NI.

With Brexit day fast approaching, the UK government is pushing ahead with a new Environment Bill.  However, the environment is a devolved matter and Northern Ireland is still without a government, so there is a very real risk that it will end up being left behind.Environmental NGOs have been clear on the risks to the environment from Brexit.  Most of our environmental protections currently come from EU law and the European Commission and European Court of Justice play a central role in ensuring that they are properly implemented and enforced.  EU Treaties also contain environmental principles, such as the precautionary principle and the principle that the polluter should pay.  These underpin EU law and once they cease to apply in the UK our environmental legislation will be weakened.

The UK government hopes to address some of these issues in the Environment Bill by setting up a new environmental watchdog, the Office for Environmental Protection (OEP), and by putting the environmental principles into UK law.  However, the OEP and principles will mostly only apply to England.  Whereas both the Scottish and Welsh governments are expected to launch their own consultations on environmental governance in the coming weeks, nothing has been proposed for Northern Ireland.

Northern Ireland faces unique challenges
Northern Ireland faces its own unique challenges to environmental protection as a result of Brexit.  For a start, it is the only UK country to share a land border with an EU country.  Northern Ireland and the Republic of Ireland share several cross border protected sites, three international river basin districts and the management of Carlingford Lough and Lough Foyle.  Environmental problems don’t stop at borders and the environment is one of the areas of co-operation under the Good Friday Agreement.  Whether there’s a hard or soft border, co-operation will still be needed on shared environmental issues, from biodiversity loss to air pollution and the illegal dumping of waste.

It is also the only country in the UK that does not have an independent environmental protection agency and environmental governance is already weak here. In the absence of effective domestic governance, the role of the EU institutions has been particularly important in making sure that environmental legislation is enforced.  For example, it was only the threat of fines from Europe that forced the Northern Ireland government to take action to protect unique and threatened horse mussel beds in Strangford Lough.

However, by far the biggest challenge for Northern Ireland when it comes to protecting the environment post-Brexit is the fact that there has not been a functioning Executive since January 2017.  We can already see examples of it slipping behind the rest of the UK, for example the Committee on Climate Change has noted that it has no waste or resource efficiency targets beyond 2020 and the Northern Ireland Strategic Energy Framework expires in 2020 as well.

The governments in Westminster, Scotland and Wales have all made promises about protecting the environment, but no such assurances have been given in Northern Ireland. And, while the UK government is working to ensure the OEP is in place as soon as possible in a no deal scenario, Northern Ireland will not be in a position to follow suit, leaving the Northern Irish environment particularly vulnerable in the event of no deal.

UK proposals don’t apply to Northern Ireland
After Brexit, there will be no duty to apply environmental principles in Northern Ireland.  These principles have been important in the past, for example, the precautionary principle was cited in the case of unregulated sand dredging in Lough Neagh, the UK’s largest freshwater lake.

It is encouraging that the UK government says it is open to exploring possibilities around co-designing the new watchdog. But, without a minister, Northern Ireland is not in a place to participate and, as the UK pushes ahead, the window of opportunity to do this is in any case rapidly closing.  One option could be to allow the option to include Northern Ireland in the bill, if future ministers in Northern Ireland wish to take this approach. Similar provisions have already been included in the Agriculture and Fisheries Bills.

It won’t just be Northern Ireland’s problem
Lack of environmental governance in Northern Ireland could also have impacts throughout the rest of the UK. The draft Withdrawal Agreement commits to implementing effective environmental enforcement by “an independent body or bodies”.  Similarly, it argues that an independent statutory body will help to demonstrate that the UK is meeting commitments made in trade and other international agreements.  But these commitments cannot be met if the OEP only has jurisdiction over England and there is no way to enforce environmental legislation in the other countries of the UK.

Part of the enforcement role of the European Commission and European Court of Justice is to ensure that the environment of one country is not harmed due to another country’s failure to properly implement environmental legislation.  As proposed, the OEP does not yet provide the mechanism to replicate this role.

The UK government has made welcome promises on a Green Brexit and becoming a world leader on environmental protection.  But, without a functioning Executive in Northern Ireland, this will not be possible.   In the absence of a government, we urgently need Northern Ireland’s civil servants to work with the UK government to ensure that, at the very least, interim environmental governance measures are in place for Northern Ireland after Brexit and that protection for Northern Ireland’s environment is maintained.

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