Why a ‘no deal’ Brexit increases risks to the environment

Following the comprehensive rejection of the Prime Minister’s proposed Withdrawal Agreement by the UK Parliament last night, and without stronger assurances which would avoid a disorderly Brexit, the risk of leaving the European Union on 29 March without a deal remains. 

As politicians scrabble around to work out what happens next, I want to outline why the RSPB, and many other environmental NGOs, believe that ‘no deal’ would be such bad news for the nature.

Colin Wilkinson's image a cliff edge at Eastern Moors - a joint RSPB-National Trust nature reserve (rspb-images.com)

Our assessment starts with the knowledge that the existing environmental legal and governance framework, that has evolved during our membership of the European Union, has led to “a significantly improved system of protection for species and habitats”[i].  This is why we welcomed the text in the (probably) now defunct Withdrawal Agreement and Political Declaration - the so-called non-regression on environmental protection – for a reciprocal commitment by the UK and EU to maintain at least the same level of protection afforded by current environmental standards.  It also included a welcome commitment by the UK to improve its domestic implementation and enforcement of environmental standards.

With just 73 days to go until the current Brexit date it is vital that politicians acknowledge and do what they can to avoid the environmental consequences of a ‘no deal’.  

Here is our view on how ‘no deal’ would affect the natural environment, based on four key areas (future standards and legislation, enforcement mechanisms, cooperation arrangements and content of future trade arrangements) that the RSPB, and the Greener UK coalition of which we are part, have developed as a framework to assess Brexit. 

1. Standards and legislation

If we leave the EU on 29 March with ‘no deal’, future environmental standards and legislation would be at risk. 

Any agreement on the future relationship between the UK and the EU, whilst not as strong as the existing arrangements within the EU, would likely include reciprocal commitments on maintaining high environmental standards and respect for environmental principles.  In the case of ‘no-deal’, there is insufficient parliamentary time to put in place new environment laws to address this.

Nature conservation in the UK is currently underpinned by the EU’s Nature Directives and related legislation (e.g. Water Framework Directive).  They have been successful in providing protection for some of our most vulnerable habitats and species[ii], and because they have ‘bite’, the RSPB has frequently been called upon to defend them from attack.

We therefore welcomed the UK Government’s early commitment to ‘roll-over’ EU environmental law through the EU Withdrawal Bill and felt reassurance from (the then Brexit Secretary) Rt Hon David Davis MP’s statements, when introducing the Bill[iii], that “the primary aim behind the Bill is to maintain policy as it is now,” and to “ensure that, wherever possible, the same rules and laws will apply the day after exit as they did before”. 

However, I have also commented several times on this blog that the ‘copy and paste’ of EU environmental law may not be straightforward and there are risks that could leave protection for habitats and species weaker.

We also have concerns over how four important environment principles, contained in the EU’s Lisbon treaty, will (or will not) be given proper legal effect in the four countries of the UK.  They are:

• the precautionary principle;
• the principle that preventive action should be taken;
• the principle that environmental damage should as a priority be rectified at source; and
• the "polluter pays" principle.

We believe the way these environmental principles have been treated in the UK Government’s draft Westminster Environment Bill are disappointing and not equivalent to the EU’s Lisbon Treaty. 

2. Enforcement

If we leave the EU on 29 March with ‘no deal’, there would be a significant gap in the enforcement of environmental law across the UK. 

Any agreement on the future relationship between the UK and the EU, whilst not as strong as the existing arrangements within the EU, would likely include reciprocal commitments on domestic enforcement and a transitional period to provide more time to develop new arrangements for enforcement of environmental law across the four countries of the UK.    In the case of ‘no-deal’, there is insufficient parliamentary time to address this which means there would be an enforcement gap.

We know our natural environment is vulnerable to a range of pressures and threats and needs champions, including those willing to take legal action when required, to protect its interests from damaging activities.  At present, the European Commission and European Court of Justice (ECJ) have an important role in the enforcement of environmental law across the four countries of the UK.  For example, it is possible that an initial complaint of a breach of environmental law, by a member of the public or a charity like the RSPB, can progress at no cost as far as the ECJ (if it is on strong foundations). The ECJ then has the power to levy significant fines on governments and public bodies if its judgment is not complied with and until that breach is remedied.  Perhaps the most totemic example of this for RSPB was our legal challenge on Lappel Bank in the 1990s.

Since 2003, nearly half of ECJ judgements relating to the UK have concerned the environment (eg air quality, nature protection and waste water treatment), demonstrating that enforcement is an important issue and one of the most substantive risks from a ‘no deal’ Brexit.

The UK Government has made some proposals to address the governance gap in England[iv], which we believe fall short, and there are still question marks over how this will be addressed in Scotland, Wales and Northern Ireland.  However, it is certain that adequate replacements for the role of the European Commission and ECJ will not be in place in any of the four countries of the UK by the 29 March 2019; and there is a risk that, without the commitments in the Withdrawal Agreement and Political Declaration to improve enforcement, the UK Government and devolved administrations will not press on to implement these important safeguards.

3. Co-operation

If we leave the EU on 29 March with ‘no deal’, we would be without a framework for environmental co-operation with our near neighbours thereby reducing our ability to work together on transboundary environmental issues which would be particularly problematic on the island of Ireland.

The migratory nature of wildlife and transboundary dimension of environmental challenges (e.g. air quality, climate change) mean that co-operation between near neighbours is important.  For example, countries within the EU have worked together on developing the Natura 2000 network of sites to ensure more robust and ecologically coherent protection for the most valuable and threatened species and habitats across the whole of Europe’s land and seas.  This continent-wide ambition is supported by the EU’s LIFE programme which provides substantial funding for nature conservation including transboundary projects.  Nature Matters Northern Ireland has set out why the need for continued close co-operation in relation to the biogeographic island of Ireland is particularly acute[v] where there are, for example, three cross-border water catchments.

A ‘no deal’ Brexit would likely cause, at the very least, a significant disruption to co-operative activity on the environment.  For example, the UK would no longer be a member of the European Environment Agency and lose access to its data analysis, research and opportunities for knowledge sharing and collaboration across its european network of scientists and data gatherers.  The UK would also lose access to the EU’s LIFE programme and there is no certainty beyond 2020 on what funding may be available domestically for nature conservation or whether it will support transboundary collaboration.

4. Trade policy

If we leave the EU on 29 March with ‘no deal’, there would be further pressure to weaken domestic environmental standards (especially for farming and land use sectors) due to a sudden change in the UK’s trade arrangements.  This could lead to an increase in the UK’s global environmental footprint.

Farming unions across the UK have warned of the ‘catastrophic impacts’ of a ‘no deal’ Brexit, due to a combination of costly market disruption in the short-term, increased tariffs on UK agri-food exports to the EU market, and reduced tariffs on agri-food imports from non-EU countries produced to standards that are lower than those faced by UK farmers.

This could result in severe environmental risks including considerable pressure to lower domestic environmental standards as well as a potentially significant increase in the UK’s global ecological footprint (e.g. increased deforestation risk from production abroad).

For example, it is possible that the UK would import more South American beef than now, particularly if the UK unilaterally reduces import tariffs. [vi]  It has been estimated that the relative environmental cost of beef produced in Brazil are significantly higher than that produced in the UK and Ireland, in large part due to the ‘embedded’ deforestation associated with Brazilian beef production.

Pressure on government to relax domestic environmental regulations would likely grow from those farming sectors that do find themselves undercut by foreign competition in this scenario. Of course, the hidden environmental costs of many types of food production is a global challenge that needs addressing holistically, but trade policy can be a relevant factor.

Relative environmental costs of beef production (£/kg)

Source: Green Alliance[vii]

A ‘no deal’ Brexit also increases the need and urgency for the UK to seek new wide-ranging trade deals with the US and other major economies.  This poses clear environmental risks. US trade negotiators have long-standing objections to the EU’s precautionary principle.  The UK could therefore come under greater pressure to weaken the environmental principles it inherits from its EU membership.

Although the UK Government has committed to putting sustainability at the heart of its post-Brexit trade policy framework, it has yet to set out in any detail how this will be achieved and there is a concerning lack of clarity regarding the role that parliament and the devolved legislatures will play in scrutinising and ratifying future deals. The Institute for Government has described the current proposals as “extremely vague”.

It is clear that leaving the EU on 29 March with no deal would create enormous environmental uncertainty and severely compromise both the UK Government pledge to restore the environment in a generation but also to do what is right for us and for future generations.

That is why we urge politicians to work together to avert this outcome and prevent a catastrophic no deal.

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Letter to the Telegraph (31.12.18) signed by the chief executives of the RSPB, The Wildlife Trust, Woodland Trust, CPRE, Greenpeace, Friends of the Earth, Wildfowl and Wetlands Trust, Client Earth, Marine Conservation Society and ChemTrust

[i] https://ieep.eu/archive_uploads/2000/IEEP_Brexit_2016.pdf

[ii] Sanderson, F. J., Pople, R. G., Ieronymidou, C., Burfield, I. J., Gregory, R. D., Willis, S. G., Howard, C., Stephens, P. A., Beresford, A. E. and Donald, P. F. (2016), Assessing the Performance of EU Nature Legislation in Protecting Target Bird Species in an Era of Climate Change. Conservation Letters, 9: 172–180. doi: 10.1111/conl.12196  http://onlinelibrary.wiley.com/doi/10.1111/conl.12196/full

[iii] https://hansard.parliament.uk/commons/2017-09-07/debates/DA3CC146-F8AB-40FF-812B-FE2CADDEA2F4/EuropeanUnion(Withdrawal)Bill

[iv] https://www.gov.uk/government/publications/draft-environment-principles-and-governance-bill-2018

[v] https://www.nienvironmentlink.org/cmsfiles/NMNI-Brexit-Position-Statements---Cross-Border.pdf

[vi] https://ec.europa.eu/agriculture/sites/agriculture/files/market-observatory/meat/beef/doc/world-beef-weekly-prices_en.pdf

[vii] https://www.green-alliance.org.uk/resources/protecting_standards_in_UK_food_and_farming_through_Brexit.pdf