By Hannah Choong, Louise Formisano, Timothy Gong, Haylea Marriott and Marina Soares Ingles
This blog post is written by a group of undergraduate Law students currently studying Environmental Law & Justice, an optional module on Cardiff’s LLB degree programme.
Introduction: pesticides and political controversy
Environment Secretary, Michael Gove MP, recently announced that the UK will support tougher restrictions on the use of neonicotinoid pesticides (‘neonics’) following concerns about the harmful effects on bees. Neonics have long been used to protect crops from pests, weeds and disease. However, evidence suggests that environmental exposure to certain neonics could be linked to declining bee health or bee numbers. Michael Gove explained that the evidence of risks is now ‘greater than previously understood’.
The timing of Michael Gove’s announcement is interesting. When the European Commission previously proposed a restriction on neonics in 2013, the UK was highly critical of the EU’s precautionary approach. Neonics have remained controversial though, with a YouGov survey (commissioned by Friends of the Earth) finding that the British public overwhelmingly supported an EU ban on neonics that have been found to pose a threat to bees. The UK’s position has now changed. Given the political turmoil over the UK’s withdrawal from the EU and diminishing confidence in the UK’s post-Brexit environmental strategy, has Michael Gove managed to secure a quick and easy win for the Government? Or is the Government simply acting on new evidence, regardless of Brexit controversies? As this blog post shows, there are positives and negatives to the UK’s new policy.
Different views on pesticides regulation
Evidence and opinions on the safety of neonics varies from country to country, partly because of cultural, agricultural and environmental differences between them. Countries with a strong agricultural sector that depend heavily on neonics may, understandably, be less in favour of a market ban or restriction. Countries less reliant on neonics are likely to have fewer objections to tighter regulation.
‘Neonics’ is an umbrella term for a number of substances used as insecticides. In 2013, the EU temporarily banned the use of three types of neonic (clothianidin, imidacloprid and thiamethoxam) because of concerns about their effects in some situations. Until then, the EU picture was a complicated one. Different Member States had different regulatory arrangements. For example, France suspended, then banned, the use of one neonic as a seed treatment for maize. Germany initially suspended the use of a different neonic treatment on maize but later allowed its use under the exceptional authorisation procedure. Lots of research has been done on the differences between different Member States, even between Member States that share a border.
The differences in regulatory approach reflects the fact that different Member States have different cultural, environmental and legal traditions. Different Member States also have different views on what is at stake by allowing or preventing neonics use. In the UK, the area of land treated with neonics is said to have more than doubled between 2003 and 2013. One argument against a ban on neonics is that it would affect the viability of the UK’s seed potato crop and vegetable production, and would lead to an increase in the use of other types of pesticide.
The UK Government’s position until recently
Neonics have been a controversial topic in environmental law. The EU restricted the use of three neonics on flowering crops attractive to bees, whilst further evidence could be collected on their safety and agricultural impacts. It is well known that the underlying evidence is in some respects incomplete, contested and sometimes contradictory – as is often the case with issues of environmental protection. Yet the European Commission felt that the potential risks of harm were serious enough to justify a precautionary suspension of neonics use.
The UK Government did not initially support the EU’s restriction on neonics because it thought that the supporting evidence was weak. During the EU’s restriction, the UK even granted an emergency authorisation allowing the National Farmers’ Union to use a restricted type of neonics. This was allowed in law but gave the impression that the UK was not in favour of the EU’s overly cautious approach. The practice of granting emergency authorisation can be seen in other Member States too, so much so that it has perhaps become more routine than exceptional. The UK Government came under attack from Greenpeace for ‘being in the pocket of big chemical companies and the industrial farming lobby’. Now, following advice from the UK’s advisory body on pesticides, the Government has changed its view and concluded that ‘the weight of evidence now shows the risks neonicotinoids pose to our environment’. What does this U-turn tell us about environmental law and the nature of environmental problems?
What this tells us about the complex nature of environmental problems
Environmental problems raise difficult questions, to which there are rarely easy solutions. The neonics example shows the challenges involved in dealing with incomplete and contested information. First, the scientific studies do not, on their own, answer the question ‘should neonics be banned?’ That is a political question. Secondly, different scientists and stakeholders gather different data or interpret the same data differently (for detail, see the House of Commons Library analysis). The Centre for Ecology and Hydrology has found that neonics will affect some bee populations in the long run. By contrast, the Crop Protection Association has argued that there is no evidence to show that restricting neonics actually prevents harm to bee populations. Manufacturers of neonics have tended to argue against a ban, but environmental groups have favoured stronger protective measures. Determining what the scientific evidence says is difficult because the evidence does is not always definitive, and leaves room for interpretation. This makes law- and policy-making challenging.
The neonics example also highlights some of the fundamental differences between the EU and UK approaches to environmental protection. The UK’s approach is said to be evidence-based, whereas the EU’s approach is described as more precautionary. The precautionary principle essentially means that protective measures may be taken where there are reasonable grounds for concern that a substance or activity could cause environmental harm, but where there is uncertainty about the size or likelihood of the risk. It means that it is ‘better to be safe than sorry’. The EU’s early restriction of neonics can be understood as a precautionary measure, introduced despite the absence of concrete evidence on the probability of the risk or the degree of harm.
By taking a precautionary approach, the EU was trying to protect the environment from potential risks before any substantial harm was done. However, a precautionary approach can also be costly. For instance, a report commissioned by two large manufacturers of neonics and published by the Humboldt Forum for Food and Agriculture found that the EU ban has cost the European oilseed rape farming industry €900 million a year. Such costs could potentially be avoided through the use of alternatives to neonics, such as biological pest control or an integrated pest management strategy (as used in Italian maize production and Canadian forestry). But this goes to show the complexity of environmental decision-making – benefits to the environment can be accompanied by financial costs to the Government, industry or consumers. This is why the precautionary principle is sometimes criticised.
Ultimately, the restrictive regulation of neonics has both pros and cons. Decision-making on environmental issues is difficult, with decision-makers having to take into account a range of environmental, social/cultural, scientific and economic perspectives. Politics also have an important role to play. Would the UK have supported the more restrictive regulation of neonics, if Brexit were not also on the table? We will never know for sure, but it must be remembered that the political background of environmental decisions is crucial. Decisions are not taken in isolation of politics.
Studying Environmental Law & Justice at Cardiff
As students of Environmental Law & Justice at Cardiff Law School, we are learning that environmental decision-making is complex and influenced by a range of social, political and economic factors. There is always a tension between individual and collective interests, which makes it difficult to reach decisions that will be supported by everyone involved or affected. Environmental law and policy involve having to make tough decisions on the basis of often conflicting evidence, different types of information, and constantly changing conditions.
One of the most challenging aspects of studying environmental law is that it requires us to have an understanding of subjects beyond law such as ethics, science and technology, and politics. It can be overwhelming to think about how to achieve changes not just to the law but also to cultural attitudes. We are also learning to appreciate that every environmental decision has consequences, sometimes consequences beyond those anticipated at the time. The many layers of environmental law – international, EU, UK and devolved – make it complex, daunting and interesting, especially when the UK is working out its future position in Europe and the rest of the world. Despite it being a challenging subject, Environmental Law & Justice is showing us the importance of studying law in context, not just law in textbooks.