By Maighdlin Mcilvaney, third year LLB student on the Environmental Law and Justice module of Cardiff School of Law and Politics
The UK Government’s goal is to be the first generation to “leave our environment in a better state than we found it”. Indicating an intent to have a strong environmental policy – but does this mean that the UK wants to be the next world leader on climate change?
Leaving the EU – “a once-in-a-lifetime opportunity for this country”
On the 23rd of June 2016, the citizens of the United Kingdom voted to leave the European Union. For many, including myself, this was frightening as in a post-Brexit world, the UK is in danger of losing the fantastic environmental safeguards of the EU.
The Institute for European Environmental Policy (IEEP) reported that the EU has “developed probably the most complete and influential body of environmental law and policy in the world”. It also outlined that EU policy is “the most mature and coherent” and provides “a point of reference to third countries”.
The EU has global influence specifically over climate change issues whereby this strong harmonisation has led to a significant influence in raising environmental standards throughout Europe. Another IEEP report has revealed that dealing with a range of issues with a common approach has helped member states “achieve results they could never have achieved on their own”.
This knock-on effect to the rest of the world, particularly to countries that export to the EU, is colloquially known as “The Brussels Effect”. Legal scholar Anu Bradford wrote a paper that summarises how an “underestimated aspect of European power” is the “unilateral power to regulate global markets”. In another paper, Joanne Scott examined the global reach of EU law: the EU is a “global regulatory power” that can “influence the nature and content of third country and international law”. This phenomenon reiterates the EU’s influence over the rest of the world.
The EU is a comprehensive and ambitious body of environmental law with global reach, currently standing as the world leader in fighting climate change.
Craig Bennett, campaign director for Friends of the Earth (FoE), wrote an article for the Guardian concerning his sadness for leaving the EU. Bennett noted that “about 70% of our environmental safeguards and legislation is European legislation – and this is now at risk”. According to Bennett, leaving the EU will mean that we no longer participate within the “most complete and influential body” for environmental law – it will be extremely hard for the UK to compete against this.
For the UK to deliver a clean, green Brexit, it should continue to improve environmental standards by working to become an international leader on climate change. By working with our European and international neighbours on environmental challenges. The UK should commit to stringent laws that either reflect those from EU or, even better, exceed them.
ClientEarth recommends a hybrid approach that argues the UK should enshrine general EU environmental principles into primary legislation in the UK. This is because these principles have operated as a coherent set, driving towards the ultimate policy goal of environmental protection and sustainable development, and are often utilised in combination. Remaining aligned with EU policy will encourage focus on environmental protection and sustainable development – driving a green Brexit.
In the 2018 Environmental Bill, Michael Gove (the then DEFRA Secretary of State) maintained the claim that ‘leaving the EU is a once-in-a-lifetime opportunity for this country to help make our planet cleaner, greener, healthier and happier’. Suggesting that the EU is the one holding the UK back and Brexit is a chance for the UK to take charge as a world leader on climate change; a post-Brexit UK will see stronger developments in the UK’s environmental policy.
‘A Green Future: Our 25 Year Plan to Improve the Environment’ – “leaving our environment in a better state than we found it”
The 25-Year Environment Plan was announced in 2016, however, the country’s vote to leave the EU led to a rethink of some of the content. The plan became significant in driving the direction of the government’s environmental policy post Brexit. It attempts to be a comprehensive strategy for England’s natural environment; forming part of the UK Government’s goal to “leave our environment in a better state than we found it” and delivering a Green Brexit.
The plan states that all possible action to mitigate climate change will be taken. To summarise the targets of the plan, the actions are illustrated, at a glance, as such: cutting greenhouse gas emissions; ensuring climate change is considered in decision making; and implementing a sustainable and effective second National Adaptation programme. On the face of it, the plan looks pretty strong.
The plan, however, comes with several flaws. The government’s 25-year plan lacks substance and detail and is significantly weaker than EU laws in some areas, requiring a more consultative approach moving forward.
The Institution of Environmental Sciences (IES) made the following recommendation in relation to the plan: “For a long-term environment plan to be successful, its principles must be embedded in all areas of government policy-making and have the support of leaders across the government. Governance mechanisms and resources must now be put in place to make this vision a reality”.
The IES noted that “this vision will only become a reality if the Government is held accountable for its delivery”. So, has the government designed a body that can hold the government to account, to efficiently deliver these visions?
Environmental Bill – “Our vision: World-leading law for a greener future”
The 2020 Environment Bill puts the environment at the centre of policy making, intended to aid in delivering the government’s manifesto commitment. As according to the policy statement, the UK commits to the “most ambitious” environmental programme of any country on earth through maximizing upon the opportunities created by leaving the European Union.
The Bill announces, “a world-leading, statutory and independent environment body: The Office for Environmental Protection (OEP)”. This body is designed to scrutinise environmental policy and law, investigating complaints, and acting to ensure environmental law is appropriately implemented. In other words, it is the new European Commission (but not quite and only for England). The OEP should ensure England continues to drive forward ambitious action that tackles climate change.
The OEP, however, has strikingly weak legal enforcement powers. The Bill mentions that the OEP may take the government and public bodies to court. Courts then have the power to issue fines, should they deem it appropriate. There is no mention of the OEP having this same power.
The ecologist published an article that discussed the Environmental impact of Brexit. They spoke to Tom Fyans, Director of Campaigns and Policy at the Campaign to Protect Rural England, who spoke on the issue of the OEP. He said “we are seriously concerned that the proposed OEP will lack the true independence required to hold the government to account” noting that there are “unanswered questions” with “how it will engage with climate change – the greatest threat to the countryside.”
Jonathan Bartley, co-leader of the Green Party, also criticised the OEP in an piece published by the Independent. He argues “this government is not serious about its environmental commitments… the body that is supposed to hold the government to account won’t even have power to fine it”. In the same article, Debbie Tripley, director of environmental policy and advocacy for WWF, said: “The existing EU regulator can currently impose fines, and we need to see that same power in the UK” otherwise the government will not keep “its promise to leave our environment in a better state for future generations”.
Ostensibly, Brexit appears hopeful for the UK’s environmental policy. There is clear intention that the UK wants to maximise opportunities created by leaving the EU – underpinning the goal of a Green Brexit. Although, the risk of a no-deal Brexit could be detrimental.
Will the UK chose a Clean Brexit or Dirty Brexit? We can only hope that the UK will step up and take this once-in-a-life-time opportunity to become the next world leader on climate change.
The EU sets an international gold standard on environmental policy. The UK’s ambition is admirable, but success will be difficult to achieve. Becoming a world leader on climate change will take far more effort than simply replicating EU standards. There is a lot of room for improvement before the UK can even be considered as a strong contender.
The OEP may have a significant role in contributing to political accountability and has some effective legal powers but its enforcement capabilities are weak. This is concerning considering its key purpose is to be “world-leading”. The vision of the 25-Year Plan should not be lost and the government needs to be regulated effectively. If not, the UK will fall short of becoming the world leader on climate change and the environment will suffer.