Llinos Price calls for robust environmental governance arrangements when the UK leaves the EU
Michael Gove has promised to deliver a ‘Green Brexit’, but how likely is this to be achieved?
In August 2017, Welsh and Scottish Environment Cabinet Secretaries Lesley Griffiths and Roseanna Cunningham, issued a joint statement outlining concerns regarding any weakening of environmental protections as a result of Brexit. The devolved administrations have made clear statements about retaining and enhancing environmental standards, and committed to addressing the governance gap that will be created by Brexit– thus ensuring that these high standards will be enforceable. Wales Environment Link welcomes this, and will continue to support Welsh Government to do all that is necessary to fully deliver on this ambition.
The environment is a devolved matter in Wales, with a few exceptions including nuclear, oil, gas and coal, but the majority of environmental law and policy in the UK derives from the EU. European law and policy have a central role in regulating and managing both the marine and terrestrial environment, including the regulation of chemicals, pesticides, air and water quality, the protection of our natural environment and environmental impact assessments. The overall aim of European environmental policy is to achieve a ‘high level of environmental protection’, and EU law ensures these environmental requirements are embedded in primary legislation.
Specialist environmental agencies such as the European Chemicals Agency and the European Environment Agency (EEA)provide many functions such as providing independent environmental data, monitoring and evaluation, interpretation of law and guidance on implementation. As a member of the EU, the UK has access to the European Court of Justice (CJEU), which interprets law, enforces law through infringement proceedings and settles legal disputes between national governments and EU institutions.
Crucially, the architecture of European environmental governance allows for citizens, companies or organisations to take legal action against an EU institution on legal breaches. In its analysis the Institute for Government found that environmental cases are the most likely to see the UK end up at the European Court. The UK has repeatedly been taken to court for failing to implement environmental directives. The EU has also indicated that high standards and robust accountability will be an important consideration in determining the future relationship. So, if we want to still to be able to work with our European neighbours, we must continue our high standards.
The UK Government recently consulted on its proposals for environmental governance post Brexit. Their stated aim is to strengthen and not simply maintain environmental protection measures when we leave the EU. It has committed to legal continuity and promised to carry over the full EU environmental acquis on exit day, as well a pledge to uphold all of its obligations under international environmental treaties. The EU Withdrawal Act 2018 includes provisions for a bill on environmental governance, to be introduced within six months, including the establishment of an independent oversight body – The Environmental Enforcement and Audit Office (EEAO) – and statutory environmental principles.
Environmental principles are the foundation for preventing irreversible damage to our ecosystems. They are set out in international instruments and treaties which underpin environmental regulation and policy making. The principles are used as interpretative aids for legislation and policy in the EU and UK courts and have provided the basis for scrutiny and legal challenge. The principles are an integral part of the EU environmental law.
The UK Government’s proposals represent a minimalist approach to governance. These proposals have been widely criticized for lacking the legal teeth to hold the Government and public authorities to account.
The Joint Ministerial Communique agreed in October 2017 includes a framework for the UK Government and the devolved administrations to work together to establish common approaches in areas that are currently governed by EU law. The Communique is focused on trade concerns and maintaining compliance with obligations under international agreements, but mentions the management of ‘common resources’, a reference to cross-border concerns around air and water.
The Communique makes it clear that the need to maintain the current competence of devolved institutions is crucial, and specifically states that the aim will be to significantly increase their decision-making powers. The Intergovernmental Agreement on the European Union (Withdrawal) Bill and the Establishment of Common Frameworks forms the basis of an agreed approach between the governments. Despite this, it remains unclear the extent to which there has been intergovernmental collaboration on these matters due to a lack of transparency in the process and the expressions of disappointment from the Welsh and Scottish Governments about not being fully engaged in the development of the UK Government’s proposals.
The UK Government’s consultation stated that the starting point was that the statutory statement of environmental principles and the environment body should cover England and non-devolved environmental matters, but that they could apply more widely across the UK subject to the ongoing framework discussions with the devolved administrations. The formal responses of the Welsh Government to the Assembly’s Climate Change, Environment & Rural Affairs Committee’s reports on environmental governance and common frameworks are yet to be published. But in evidence to the Environmental Audit Committee’s inquiry into environmental governance, papers submitted by the devolved governments indicate that Scotland and Wales will be considering their own arrangements for environmental governance and principles, with consultations to be published in the autumn.
Reports on the state of our environment in Wales and the UK demonstrate that we cannot afford to get this wrong. Natural Resources Wales’ State of Natural Resources Report (2016) raises the alarming facts that there are between 40,000 and 50,000 early deaths in the UK every year due to air pollution. Many of our plants and wildlife are in decline. None of our ecosystems have all the necessary attributes of resilience.
Wales – along with the rest of the UK and other countries – failed to meet its national and international biodiversity targets in 2010. There is a real imperative to establish robust governance arrangements, to provide our own environmental standards and policies and to replace the extensive governance and legal framework that ensures accountability and access to justice.
With our environment desperately needing to recover, we cannot afford for this to slip by the wayside and for the damage to become irreversible. The four nations of the UK need to work together in a coordinated approach to ensure a baseline of environmental protection and prevent a ‘race to the bottom’ of deregulation. Water, air and wildlife does not respect country boundaries; Wales can lead the way with a high standard – based on our recent environmental and sustainability legislation – but it can’t do it alone.
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A green Brexit? More likely a grey Brexit.
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