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    Northern Ireland included in the draft Environment Bill – a game changer?

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    Northern Ireland and UK departments are working together on including Northern Ireland into the draft Environment Bill, which could pull the UK further into alignment with EU environmental rules.

    The draft Environment Bill was due originally to apply only to England, as environmental policy is a devolved matter in the UK. This could have led to a regulatory gap in Northern Ireland post-Brexit, as since 2017 there has been no sitting Assembly able to legislate.

    A letter from the Department of Agriculture, Environment and Rural Affairs (DEAR) of Northern Ireland confirmed that discussions are undergoing to include Northern Ireland in the draft Environment Bill. Officials from both governments are said now to be working on co-designing the application of the provisions. The focus mainly lies on extending the remit of the Office for Environmental Protection, as well as of the environmental principles.

    Northern Ireland shares with Ireland cross-border protection mechanisms and site management, which could arguably have an impact on the Bill itself. As an example the letter notes that special attention needs to be given to transboundary issues such as air and water pollution, and must therefore be solved jointly with Ireland. Moreover, Mary Creagh, Chair of the Environmental Audit Committee, considers that in the event of the backstop coming into force, the whole of the UK would have to regard regulatory alignment with the EU.

    Department of Agriculture, Environment and Rural Affairs’ letter to House of Commons
    Climate Home News article

    UK reiterates its commitment to environmental, social and employment non-regression

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    A new joint statement has been agreed between Prime Minister May and the European Commission, which supplements the Political Declaration signed in November 2018. The commitment to non-regression on environment, social and employment standards is in the same spirit with the Political Declaration’s provisions. The only difference appears to be the terminology used: “non-regression” replaces the previously used “level playing field”.

    Joint Statement supplementing the Political Declaration, 11 March 2019
    Political Declaration, 22 November 2018

    The House of Lords raises concerns over environmental protection post-Brexit

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    After holding consultations with professionals from the field on the Draft Environment Bill, the House of Lords (EU Energy and Environment Committee) sent a pressing letter to Environment Minister Gove.

    The Committee urged the government to strengthen the Bill, which they argue risks negatively impacting environmental standards post-Brexit. Among issues mentioned are again the independence of the OEP, and the exclusion of policy areas such as forestry, flooding and climate change in its remit.

    The lack of preparedness for a no-deal Brexit was also underlined. The signatories suggested that until the OEP enters into force, other bodies should receive temporary enforcement functions and be given additional resources and sufficient independence to carry the tasks. 

    The House of Lords insisted that the UK cannot afford to lose the high environmental standards created as an EU member, and stands ready to press the government to keep its word on non-regression.

    Post by Lord Robin Teverson in Green Alliance

    UK Government is in “listening mode” on the Draft Environment Bill

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    (6 March 2019) The Environment, Food and Rural Affairs Committee held last week the final hearing on the Draft Environment (Principles and Governance) Bill. Alongside a panel of expert witnesses, the Secretary of State for the Environment Michael Gove and junior Minister Thérèse Coffey were also invited for questioning.  

    At this session, experts warned the government that the Office for Environment Protection (OEP) could be in danger of duplicating the duties of other UK bodies, such as the Environment Agency. The need to introduce the “high level of environmental protection” as an overarching principle resurfaced again.

    Another point of debate was the legal nature of the decision notices that will be issued by the OEP. Experts have suggested there should be an option to render these notices as legally binding, while the UK government believes the role of the OEP should not be to overrule government’s decisions, but instead to challenge them and suggest how progress should be achieved. The independence of the OEP remains a thorny problem, as Gove was asked again to ensure that the proper functioning of the OEP will not be impacted by having its budget and nominations decided by the government. Parliamentary Under Secretary Coffey confirmed that the OEP will not be located within the offices of Defra.

    As the debate progressed, government representatives were criticized for being in “listening mode” and dodging questions.

    Environment, Food and Rural Affairs Committee’s hearing

    UK’s environmental NGOs sound alarm bells on all fronts, including climate change

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    With the publication of its latest Brexit Risk Tracker, Greener UK, a coalition of 14 environmental NGOs, identify a ‘high risk’ for all of the eight environmental areas described, including air and water protection, chemicals, agriculture, fisheries and nature protection. It is the 7th update of the risk tracker since inception following the Brexit referendum in 2016.

    The severe rating is largely due to the prospect of a no-deal scenario. Other reasons are relating to the government’s Draft Environmental Bill and statutory instruments, judged deficient by all experts involved, and the risks raised by future trading opportunities, like the US, for lowering food and health standards. On climate change, an area where the UK has previously claimed leadership, the NGOs identify serious risks, including fears of losing investments in energy infrastructure, and a consequent slowdown in efforts to decarbonise the economy.

    Greener UK’s risk tracker

    Scottish public consultation on Environment Bill

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    (16 February 2019) The Scottish government published earlier this month a consultation paper on environmental principles and governance after Brexit, echoing the draft Environment Bill issued by the Government in Westminster. The paper postulates that the high environmental standards gained during EU membership by the UK could be put at risk under future trade relationships, and therefore must be safeguarded. 

    Scottish authorities plan to focus on four key EU principles (precautionary, polluter pays, prevention and rectification) accompanied by a statement of interpretation and application, to which Ministers must pay regard to in the formation of policy. This has the potential to start discussions on the recognition of human rights related to the environment, within the process of developing a new Scottish Human Rights Framework. The governance section envisages four parts, somewhat similar to the Environment Bill provisions: monitoring, scrutiny of government’s performance, a mechanism for complaints and enforcement.

    Responses to the consultation will be received until 11 May 2019, meaning a regulatory gap will open in the case of a no-deal Brexit.

    Scottish Government’s consultation paper
    Brexit and Environment’s article on Scotland’s public consultation

    US NGOs warn about the risks of a future UK-US trade deal

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    As US authorities commence preparations for a possible future trade deal with UK, stakeholders have been invited to submit their comments. Among the 133 responses, several came from US NGOs. 

    The Sierra Club highlighted the negative impacts trade agreements have had on communities and environment, pushing for a different approach this time. Their main asks concern transparency standards for the negotiations, in requesting US authorities to make public their proposals and promote stakeholder involvement along the process. The environmental organisation also positioned itself against the investor-state dispute settlement system, said to be favourable to corporations that systematically challenge environmental and health standards in arbitral tribunals.

    Along with the Sierra Club, the International Fund for Animal Welfare (IFAW) stressed that a future trade deal must include a strong environmental section. IFAW insisted on the need of addressing marine conservation and providing mechanisms and funds for limiting wildlife trafficking. They also stated that the prospects of a deal should not seek to undermine UK standards, such as those relating to agricultural and pharmaceutical products tested on animals, which are more advanced than many US laws and regulations.

    The Sierra Club’s comments on a future US – UK trade deal
    International Fund for Animal Welfare’s (IFAW) comments on a future US – UK trade deal
    List of 133 replies to the public consultation

    House of Commons approves heavily criticised new chemical safety plans

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    (25 February 2019) A new Statutory Instrument (SI), which attempts to copy across the EU’s chemicals safety regulation REACH into domestic UK law, was approved by a narrow majority after heated debate in the House of Commons. The SI was criticised by opposition MPs for deleting crucial governance structures for independent scientific advice and stakeholder engagement, and risking duplicate animal testing.

    A Government Minister confirmed that the critical IT system may not be up and running by Brexit day and that significant costs and new staff capacities are needed to administer a distinct UK chemicals safety system, amounting to an estimated £13 million a year. As Health and Safety Executive (HSE) will take over ECHA’s role, it will have to employ at least 35 to 40 more people and will also need further financial support, as it has previously suffered funding cuts of 40%. Even with these preparations, critics still point out that HSE “lacks the capacity, the resources, the experience and expertise” to take over duties. Indeed, ECHA, the EU’s agency implementing REACH, deploys around 10 times more resources.

    The UK Government confirmed growing fears that the ECHA’s chemical safety database will most probably have to be duplicated due to property rights. Chemical companies could in theory ask for amending consortium contracts and make data available both under the EU REACH and UK systems. Nevertheless, 75% of UK companies hold their data in consortiums, to which access is restricted due to their particular configurations. According to the Shadow Environment Secretary Sue Hayman, additional tests on animals will need to be performed in order to duplicate the already existing data that is not obtainable.

    Labour politicians opposed the SI and asked the Government to take it back to the drawing board, however the SI was narrowly passed in the vote. In order to be signed into law, the instrument will now go through a vote in the House of Lords.

    Debate in the House of Commons 
    More on SI procedural activity
    CHEM Trust’s article on the debate and vote

    Regulatory chasm in case of a no-deal Brexit

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    Although the current UK Government is said to have published more Statutory Instruments than any previous government, there remains a real risk of stalls on environmental legislation and subsequently a regulatory gap after Brexit. The Guardian notes that in the best-case scenario the Environment Bill will be passed in autumn 2019. Further, the Office for Environmental Protection (OEP) will not materialise until 2021. Meanwhile, a “holding arrangement” will set out an “undefined mechanism” which will be able to receive reports of environmental lawbreaking. These are due to be investigated later by the OEP as it enters into function. With no operational body that holds equivalent powers to the European Commission and the European Court of Justice, this regulatory gap leaves big uncertainties on environmental law enforcement post-Brexit.

    The Guardian article on no-deal Brexit environmental risks

    How the government’s Environment Bill is abandoning Northern Ireland

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    Brexit raises dark environmental prospects for Northern Ireland. The Environment Bill proposed by the UK government will only cover England, as environment is a devolved matter in the UK legal system. While Scottish and Welsh governments have promised to uphold high environmental standards and also have commenced preparations, nothing has been planned in Northern Ireland (NI). Green Alliance highlighted that as NI has not had a functioning government since January 2017, there is a real risk of the environment being left behind. There is further cause for concern considering that NI is the only country in the UK without an independent protection agency and where environmental governance is allegedly already weak. Poor environmental governance will not only affect NI, but also the rest of the UK and Ireland. Moreover, the Office for Environmental Protection (OEP) as set out in the Environment Bill will not be able to replace the Commission’s role, which amongst others is to ensure that EU Member States do not harm each other.

    While NI is not able to participate in the co-designing of the UK Bill without a Minister, one solution has been to leave open the potential to extend the remit of the Bill to NI.

    Green Alliance article on Northern Ireland

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