Environmental Law News Update

February 25, 2020

In this latest Environmental Law News Update, William Upton QC, Christopher Badger and Natasha Hausdorff consider the publication of the EU’s mandate for UK trade deal negotiations, difficult choices ahead for flood planning and new UK and international environment appointments.

EU publishes its mandate for negotiation with the UK on trade

The EU today published its mandate for the negotiation of a new partnership with the UK and Northern Ireland.

Under the heading ‘Level Playing Field and Sustainability’ the EU want robust commitments to ensure a level playing field. The envisaged agreement should “uphold common high standards and corresponding high standards over time with Union standards as a reference point” in areas including environmental standards and climate change. A governing body is to be empowered to modify the level playing field commitments in order to include additional areas or to lay down higher standards over time.

Corresponding high standards implies regulatory equivalence, if not regulatory alignment. The phrase “over time” is undefined. However, by insisting on using Union standards as a reference point, this gives force to the argument that the EU are to insist on dynamic alignment after the end of the transition period in areas such as environmental protection. Union standards are inevitably interpreted by the European Court of Justice. The implication is that the EU will seek to tie the UK to its own environmental standards and laws.

Frustratingly, this proposal is not detailed further in the mandate. Under the sub-heading ‘Environment and health, the document records:

The envisaged partnership should ensure that the common level of environmental protection provided by laws, regulations and practices is not reduced below the level provided by the common standards applicable within the Union and the United Kingdom at the end of the transition period…

This amounts to a non-regression clause but doesn’t reference dynamic alignment.

The document then goes on to list a large number of environmental areas such as public participation and access to justice in environmental matters, nature and biodiversity management and waste management. It goes on to state:

The envisaged partnership should lay down minimum commitments reflecting standards, including targets, in place at the end of the transition period in those areas, where relevant.

The Government is likely to argue that it has already factored these in to the current Environment Bill.

According to the mandate, the Parties should consider linking greenhouse gas emissions trading systems and that, at least, the UK should ensure that it has a system of carbon pricing of the same effectiveness and scope as provided by common standards, including targets, agreed within the Union before the end of the transition period.

The document goes on to state that where the Parties increase their level of environmental, social and labour and climate protection beyond the commitments in the mandate, the envisaged partnership should prevent them from lowering these additional levels in order to encourage trade and investment. This thereby prevents the UK from reducing improved standards in the future in an effort to reach a separate trade deal, even where those higher standards have been set by either the governing body (using Union standards as a reference point) or, in the case of a dispute, by a binding independent arbitration tribunal. As attractive as it may be to promote high environmental standards, this is unlikely to sit well with the UK Government.

The issue may lie with “using EU standards as a reference point”. If a common goal is to seek to improve environmental standards, is it necessary to insist that the EU provide the benchmark? Given the cross-border nature of environmental issues, is this the time to establish a pan-European environmental body or an international environmental court, with the UK adopting a leading role? Alternatively, the UK is likely to argue that, if a commitment is given on non-regression from the standards in force at the end of the transition period, why should there be any obligation for the UK to continue to refer to EU standards and laws? However, it appears that the EU doesn’t necessarily trust the UK not to sacrifice environmental standards in the pursuit of potential trade deals.

It is of note that the EU mandate goes further than the Political Declaration of 19 October 2019, which referred to “appropriate and relevant Union and international standards” and “relevant internationally agreed principles and rules … including the Paris Agreement” without providing for any priority in their application or relevance.

The mandate can be found in full here

Flood Resilience or Flood Protection – the choices ahead

This has been a difficult time for those dealing with the bad floods that have been caused by Storms Ciara and Dennis. There has been a record number of flood warnings and alerts in England this week. One way forward may be provided by the manifesto commitment to invest £4 billion in flood and coastal defences, over the next five years. The Budget is due in March and is likely to include considerable investment commitments to new infrastructure. Indeed, a National Infrastructure Strategy is also expected.

It is into this difficult situation that a recent joint letter to the Secretary of State for Environment, Food and Rural Affairs has come. You don’t often see a joint letter written by the leadership of the National Infrastructure Commission, the Committee on Climate Change and Flood Re (the insurance body), and their message is an important one.

The problem the UK faces is that “we cannot afford to continue to build our way out of future climate risks in many places”. This applies to all climate futures, including a net zero world. Their letter promotes the use of national standards for flood resilience as the way forward. Using national standards will be more equitable, support adaptation to climate change and should ensure that society as a whole is better off, with the benefits exceeding costs.

Most people would probably think that “resilience” sounds like a Good Idea. The Environment Agency’s draft National Flood & Coastal Erosion Risk Management (FCERM) Strategy certainly does and uses the word “resilience” or “resilient” 210 times in its 64 pages. But it is not a simple policy to adopt. The hard questions remain about who bears the individual costs on the ground. Looking at the recent headlines, the popular desire still seems to be to spend the money to increase protection, and to try to eliminate all flooding. More resilience is not the idea that comes to mind when you see people sweeping out their flooded shops and houses yet again. In addition to the Budget, we need to keep an eye on the FCERM, which still needs Ministerial approval before it can be laid before Parliament.

On a final note, it is being reported that Sir James Bevan, head of the Environment Agency, is to give a speech warning against the building of new homes on flood plains. He will also raise the prospect that some communities would be better off moving out of harm’s way, as some places will simply prove too hard to protect.

The new environment team: Environment Secretary George Eustice and COP26 President Alok Sharma

As part of Prime Minister Boris Johnson’s February 2020 cabinet reshuffle, George Eustice has succeeded Theresa Villiers as Environment Secretary and Alok Sharma has been appointed COP26 President, alongside his new position as Secretary of State for Business, Energy and Industrial Strategy.

Eustice’s experience in Environmental matters spans the last decade. He served as a Member of the Environment, Food and Rural Affairs Select Committee between 2010 and 2013, before being appointed to advise David Cameron on Energy and Environment issues. In 2013 he appointed Parliamentary Under-Secretary of State for Agriculture, Fisheries and Food. He was thereafter, in 2015, promoted to Minister of State within the same department, in which capacity he served until 2019. Eustice has called his new appointment to Secretary of State for Environment, Food and Rural Affairs his “dream job”. Over the weekend George Eustice was tasked with defending the government on flood defences, disputing in an interview on Sky News that property prices inform the flood defence spending formula and that urban zones were disproportionally financed in comparison with rural areas.

Sharma’s experience in international diplomacy as the former Secretary of State at the Department for International Development, is said to be a significant advantage in driving ambitious climate action from countries attending the COP26 conference in Glasgow this November. His appointment came despite Michael Gove and Zac Goldsmith being heavily linked with the position. Sharma was part of the UK delegation that attended the UN Climate Summit last year, where he spoke to the General Assembly. His stated intention is that the November conference will speed up the global journey to net zero carbon, by building on efforts to urge all countries to bring forward ambitious plans to curb their emissions ahead of the event itself. Last week Sharma hosted a high-profile meeting with UN Deputy Secretary General Amina Mohammed, where they committed to working closely together towards a successful, globally ambitious summit. COP26 will be the largest summit the UK has ever hosted, with over 30,000 delegates, including world leaders, experts, campaigners and government officials.

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