Britain, without air and water laws, races to make them

Source: By Jean Chemnick, E&E News reporter • Posted: Monday, April 1, 2019

The second in a short series. Read the first story here.

The future of Britain’s environmental policies teeters uncertainly as the nation grapples with a messy exit from the European Union.

Businesses and environmental groups say Prime Minister Theresa May’s government has failed to fill the void of missing regulations and enforcement programs that would occur when E.U. bureaucracies no longer oversee chemicals, air pollution and water pollution in the United Kingdom. That’s especially true if Britain leaves the union without a deal to cushion the impacts of Brexit.

“The majority of our environmental governance comes from the E.U., because most environmental governance has been created since the 1970s and we’ve been a member of the E.U. since then,” said Shane Tomlinson, deputy CEO of the U.K.-based think tank E3G.

Test votes this week in Parliament showed little appetite for an exit with no deal. They also illustrated how far the U.K. government is from reaching consensus on the terms of its departure — or even whether it should happen at all. And while elected officials showed some interest in a new customs union with the European Union and for a second referendum that could reverse the 2016 mandate to Brexit, neither of those options would occur before the April 12 deadline given to the United Kingdom by Brussels.

“None of this is dealing with the problem that right now we are set to lose access to the E.U. systems for environmental law relatively soon, and the process is just getting longer and longer and disagreement in the Parliament is getting more and more intense,” said Kierra Box, who is taking the lead on Brexit issues for Friends of the Earth’s England, Wales and Northern Ireland chapter.

Manufacturers could see more red tape while British authorities build the regulatory and licensing capacities that have been overseen by E.U. agencies for decades. And a no-deal Brexit could mean new hurdles for trade.

Greens fear that proposed environmental laws by U.K. officials would offer less protection and be less insulated from politics than the E.U. statutes they’re intended to replace. They also fear that they won’t be in place in time.

Britain is poised to heavily borrow from European law as it cobbles together its own set of environmental statutes post-Brexit. But its choice to depart the compact means it stands to lose the expertise and regulatory muscle of 33,000 civil servants in the European Union. Brexit campaigners have spent the last three years deriding them.

Under its withdrawal agreement, Britain would keep the European Environment Agency, European Chemicals Agency and other European Commission agencies through the end of 2020.

But if it crashes out of the European Union two weeks from today with no deal, those authorities disappear overnight and U.K. regulators inherit duties that observers worry they’re not equipped for.

The practical implications could be substantial.

Chemicals

Take chemicals. The European Chemicals Agency, based in Helsinki with a staff of 600, has for more than a decade maintained a comprehensive database of all the chemicals approved for use in the 28 member states of the European Union. It has mandated testing and handled registration for chemicals manufactured or imported to the union under a program called “one substance, one registration” — which seeks to reduce duplication and animal testing.

The process allows companies to rely on the database for information related to chemicals they submit for review — without having to reproduce them every time. That saved work while the United Kingdom was in the union, but a no-deal Brexit means that the United Kingdom’s regulator, the Health and Safety Executive, will no longer have information about chemicals when firms apply for licensing in the United Kingdom. So the government has given its regulator a shoestring budget of £13 million ($17 million) to re-create the E.U. database from scratch — with companies’ mandated help.

“So although the technical law is cut and pasted into U.K. law, it’s meaningless because our membership is a process,” said Mary Creagh, a Labour member of Parliament and chairwoman of the House of Commons’ Environmental Audit Committee. “Membership in an agency, being involved in review processes, best available techniques for handling chemicals and using them — all of that stuff is lost. And it puts a huge regulatory burden on the U.K.’s chemicals companies.”

It also threatens to create barriers for U.K. chemical exports to the European Union. if Britain leaves with no deal. Its exports could suddenly face the same customs checks as foreign trading partners like the United States or Brazil.

British exporters of animal products, food and chemicals could face the worst impacts under any scenario where U.K. standards aren’t judged to meet E.U. requirements.

The trade group Chemical Business Association told the Environmental Audit Committee in written testimony in January 2018 that Brexit had already prompted some of its members to consider opening headquarters elsewhere in the union.

“Regulatory compliance is the key to market access,” Peter Newport, the group’s CEO, explained. “Authorities in target markets determine the nature and extent of the compliance required. Compliance is nonnegotiable. Failure to comply is a barrier to market access. Without market access there is no trade.”

In addition to meeting standards for human health, chemicals companies will need to meet E.U. environmental standards — as will British producers in sectors like steel, food and animal products.

“Businesses operating in those sectors are going to face potentially a big barrier to trading with the E.U., because they will need to prove in a way that they haven’t had to while we’re inside, that they meet quality standards in those particular areas, but also that they meet environmental standards,” said Tim Durrant, a senior researcher for the Institute for Government.

Air and water

Brexit could also have serious repercussions for air and water quality, protection of sensitive areas, and other public goods that greens say the European Union has been instrumental in protecting.

That’s because the United Kingdom currently lacks an environmental enforcement agency, and its constitution doesn’t provide for citizens to petition, submit complaints or sue a government agency that has failed to comply with or enforce laws.

Until now, that role has been filled by the European Court of Justice, and according to an Institute for Government-maintained database, the court system has heard cases against U.K. agencies more than 2,000 times since 2002 on environmental and other matters.

The court system acts as an independent check on member country governments when all other domestic and diplomatic avenues are exhausted, compelling them to change policies or even levying fines.

If May secures parliamentary approval for her Brexit deal, the European courts and bureaucrats would continue to cover the United Kingdom until the end of the transition period in December 2020. If she doesn’t — which looks very likely — Britain is left with no viable means of environmental enforcement.

“There are legal environmental requirements and regulations in the U.K., but if you take away the European courts of justice, that falls down at the moment,” said Tomlinson of E3G.

The Department of Environment, Food and Rural Affairs, headed by Secretary Michael Gove, who backed Brexit and is now mentioned as a possible successor to May, put out a legislative blueprint in December that is meant to fix that.

Still in draft form, it proposes the creation of an Office for Environmental Protection to handle environmental enforcement.

Time will be a challenge. Creagh said she expected the bill wouldn’t come before Parliament for a vote until late this year, leaving only a year for the United Kingdom to stand up the new environment agency before the transition period ends in December 2020.

If Britain leaves without a deal, there will be a gap in environmental enforcement.

Gove, who testified on the government’s environment proposal before Creagh’s committee last week, acknowledged that his department’s plans for a no-deal Brexit were “suboptimal.”

It would have 16 full-time employees.

“If we were to leave without a deal tomorrow, there would be nothing,” said Box of Friends of the Earth. “The government could completely ignore every single law passed to protect our environment in the past, and we would lose that kind of last-ditch line of defense.”

The Department of Environment, Food and Rural Affairs says its bill re-creates that line of defense in a post-Brexit Britain. But environmentalists and Labour MPs dispute that.

Creagh noted that the new agency would report to government ministers and not Parliament, which she said would make it less independent.

“He who pays the piper calls the tune,” she said.