Brexit, Environmental law, Publications

The Environmental Case for Brexit: A conversation with Professor Ben Pontin on his new book

Ben signing a copy of his book for EJRU member and
Ben signing a copy of his book for EJRU member and "strong remainer" Valerie Fogelman.

In April, Ben’s book-length contribution to the environment and Brexit debate was published with Hart Publishing, “The Environmental Case for Brexit: A Socio-Legal Perspective.” Many academics who work in environmental law and politics are deeply concerned by the consequences that Brexit may have on environmental standards in the UK, including many EJRU members. I therefore wanted to have a chat with Ben about what inspired him to write his book and to provide a positive perspective on the UK’s exit from the EU.

Hannah: Can you tell us about yourself and your core interests in environmental law?

Ben: I have a long standing interest in the environment! From the earliest age, me and my sister grew up by a stream in the Chew Valley, and I was engrossed by the local wildlife – birds, insects and, most of all, fish.

Like many children of the 1960s, so much of my daily activity was about making things out of discarded materials. Improvised objects constructed from egg cartons and toilet rolls etc, dens made of cardboard boxes and, best of all, go-karts built from planks of wood and dumped old prams.

Politics relating to the environment were a big part of this upbringing. My parents’ were ‘Radical Environmentalists’. They started an ‘Urban Free School’ on a disused site in Durdham Park, central Bristol. It was a city farm allied to an academic curriculum.

I did not get into the legal side of environmental conservation until reading for an LLM at UCL. That was in 1991. We studied the Environmental Protection Act 1990 and the Wildlife and Countryside Act 1981, together with significant international developments (notably the Convention on Trade in Endangered Species). We studied comparative environmental law, focusing mainly on UK and US comparison, and I took a module on EC Environmental Law. This was when the Community’s objectives remained that of continuous expansion economically, under the Treaty of Rome.

Hannah: Did this education shape your view of the European Union in relation to the environment?

Ben: I think the core message of this education was that the EC/EU was a relatively new actor on a global environmental stage, alongside more established leading national actors, and international ones.  But whilst this seemed a very exciting time for the EC/EU, with Carlo Ripa di Meana using his role as head of the Environment Directorate of the Commission to push for law reform on an international as well as Community level, this appeared perhaps to coincide with, rather than lead, a period of renewed national and international vigour. For example, Britain had just published its first nationwide environmental policy since the early 1970s, called This Common Inheritance (the Environment White Paper of 1990). The policy began with a quote from John Stuart Mill about the first duty of any government being to protect the environment, thus setting out a vision for national governmental and inter-governmental policy and law in which the EC did not necessarily have that clear a role. For example, was the EC a ‘government’ or trade bloc? Of course, this had a different answer depending on who you asked, but for the purposes of the Environment White Paper, I did not see it as providing a clear policy basis for Community competence.

Hannah: Why did you decide to write a book on Brexit and the Environment?

Ben: I wanted to try to come to terms with the 2016 Referendum result, which surprised me. I voted Remain in the 2016 Referendum, but more out of a wariness of radical change than a sense of deep satisfaction with the status quo. What would a positive case for leaving the EU look like? The book is an attempt at answering that.

Hannah: Many academics are quite strongly against Brexit, and particularly environmental lawyers, why do you think that there is an environmental case for Brexit?

Ben: I agree with everyone that leaving the EU represents an enormous change, and that there are risks. I see considerable opportunities and am optimistic. One of the main sources of optimism comes from devolution, involving not only Wales, Scotland and Northern Ireland but England and English regions. Devolution is, as I see it, inspired by a form of nationalism. Also, the significant extent to which the environment has been part of devolved competences is telling of the potential for a mutually reinforcing connection between nationhood, neighbourhood and environmental protection.   

Hannah: What did you hope to bring to the debate on Brexit and the environment? Do you think that you have achieved this through your book?

I hoped to re-introduce the idea of a ‘British way of environmental protection’, which I argue in the book first came to prominence in the post-war era leading up to membership of the EEC. The ‘British way’ is common law in both a narrow and a more general sense. It is narrowly common law in the sense of reliance on case law. It is common law in a more general or loose sense in that it represents a bottom up, experiential development of policy and law, incrementally, where principles have a role, but not quite in the same dispositive way or style as some jurisdictions elsewhere. Common law here can also connect with a wider international common (customary) law.  

Hannah: Were you worried about how your book would be received by colleagues and other academics?

Ben: Very worried.

Hannah: Have you received any negative comments or attention on your book?

Ben: Yes. The best assessed essay for Environmental Law and Justice this year was a blistering and eloquent critique of proofs of the book. The students were asked: Is Brexit a Net Risk for the Environment? Most considered it was, and the student whose argument was most persuasive focused on weaknesses in the ‘British way’ argument. The crux of the critique was that it was excessively romantic.

Hannah: Despite the criticism you’ve received, are you happy with the final book or is there more to be said?

Ben: I am happy with the book. Although it took less than a year to write, it changed greatly, undergoing two major revisions. I think it changed for the better, and I think I have taken on board the comments of scholars who would describe themselves as strongly on the remain side of the debate. Val Fogleman is one of them, whilst I am also indebted to Nigel Haigh.

Hannah: And in terms of Brexit, what do you think would be the best outcome for the environment?

I am confident that the UK courts will make good use of the space opened up by leaving the EU jurisdiction, and also confident that the public will place pressure on governments to be as green as practicable. The uncertainties are mainly international, including the uncertain role that the United Kingdom can play alongside China, India, the US and Arab nations in particular. Will it have clout? I hope so, but am unsure. I am a little worried by attempts to replicate EU governance structures, which currently find expression above all in the Office of Environmental Protection. I am doubtful that the money is well spent on new jobs in new institutions, rather than giving adequate resources to over-stretched existing ones, whose roots lie in the period before EU membership.

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