As policy makers grapple with the thorny questions of customs and trade policy relating to Brexit, insufficient public attention has been paid to the very significant changes to environmental policy on the island which will result from the departure of Northern Ireland from the institutions governing EU Environmental law. We explore what this might mean for continued cooperation between both jurisdictions on environmental policy matters, and look at some of the proposed new mechanisms which will govern environmental law in Northern Ireland post-Brexit.
The onset of the Coronavirus in the early part of 2020 to a considerable degree diverted public attention, at least in part, which might otherwise have been focussed on the ongoing Brexit situation. However, lately the issue has come back into the spotlight again, as negotiations on a potential free trade agreement appear to be in serious difficulty with the prospect of the UK exiting the transition period on WTO terms, and with all that this might entail, looking increasingly possible at the time of writing. Were it not for the pandemic, the implications of such a disorderly exit would surely be foremost in the public and media consciousness.
However, one issue which has not received much by way of public attention in the Brexit debate has been the implications of Brexit for environmental governance in Northern Ireland, and how this might interact with cooperation on environmental issues and concerns across the island. As is often said, the environment does not recognise any borders, and this is particularly true for the single biogeographic unit of the island of Ireland, and it is in that context that the implications of Brexit for environmental policy on the island must be considered.
Pre-Brexit environmental vulnerabilities in Northern Ireland
Environmental policy on the island of Ireland has been profoundly influenced by the admission of both jurisdictions on the island to the European Economic Community in the early 1970’s. Both jurisdictions therefore benefited from the progressive development and consolidation of modern environmental policy at European level from the mid-1970s onwards, resulting in a significant acquis communautaire of environmental law governing everything from chemicals regulation, air pollution control, freshwater and marine waterbody standards, microplastics to agricultural nutrients. Furthermore, EU environmental policy has significantly amended and influenced the system of land use spatial planning in both jurisdictions on the island through EU legal instruments such as the EIA, SEA and Habitats Directives. The result has been a significant degree of complementary policy development across both jurisdictions, and increased harmonisation of their respective legal and policy regimes.
The advent of the peace process and the restoration of devolved government in Belfast following the Good Friday Agreement resulted in a much needed process of environmental policy modernisation and institutional capacity building, as the society emerged from decades of conflict with significant environmental problems including water pollution and illegal waste and with a history of neglect of environmental issues at societal and political level as other social problems took priority.
While significant progress has been made in institutional capacity building in recent years, some anomalies persist not least the fact that Northern Ireland remains the only jurisdiction on these islands without an independent environmental protection agency or any climate action legislation. Environmental issues have often been contentious within the devolved Executive and Assembly, with some commentators stating that the consociational model of governance mandated by the Good Friday Agreement militating against cross-community action or pressure on environmental policy.
During the long hiatus in government following the collapse of the Executive there was an increasing focus on the fact that Northern Ireland was failing to deliver its potential in terms of the development of bespoke environmental policy similar to the other devolved regions in Scotland and Wales, and particularly in relation to the success of Scotland in developing a very significant climate action policy and offshore RE industry.
This focus was given political recognition in the New Decade, New Approach deal to restore the Northern Ireland Executive reached between the political parties and governments in January 2020, with a commitment to end the outlier nature of environmental governance in Northern Ireland by establishing an independent Environmental Protection Agency, and to introduce a Climate Change Act with an aim of achieving a zero carbon society.
Under the Good Friday Agreement, the vast majority of environmental policy applicable to Northern Ireland was devolved from Westminster to Stormont. The implications of having to adapt and implement complex EU environmental and energy legal instruments into domestic Northern Ireland law came to public attention as a result of the crisis created by the dysfunctional implementation of the Renewable Heat Incentive (RHI) scheme introduced to give effect to the EU Renewable Energy Directive.
While the reformed Executive seeks to deal with the multiple environment and energy challenges which face it as a result of these historical factors, the withdrawal of the UK from the European Union and with it the withdrawal of Northern Ireland from the existing acquis communitaire of environmental law and related governance structures built up over the past number of decades, is certain to accentuate these challenges. The fact that Northern Ireland is the only part of the UK sharing a biogeographic unit with the EU adds to the scale of those challenges.
With the ongoing pandemic reducing the ‘bandwidth’ available to policy makers on both sides of the border, naturally efforts and attention has been focussed on the complex issues of avoiding a hard border in relation to trade and customs policy, where negative impacts of Brexit would have immediate impacts on economic stability and employment. However, Brexit threatens to significantly disrupt environmental governance in Northern Ireland, and this is something which warrants further attention and discussion, not least for its potential to have impacts south of the border.
Brexit and UK Environmental Law provisions
Under the EU Withdrawal Act 2018, the UK parliament provided that after exiting the European Union that all existing EU environmental legislation would continue to apply in the UK, save for certain EU legislative instruments which were thought to be incompatible with UK law.
The Act further provided that within six months of its enactment the Secretary of State for the Environment had to publish draft legislation setting out a list of environmental principles and for a policy statement in relation to the application and interpretation of the principles, to which ‘when circumstances apply, (to be set out under legislation) Ministers of the Crown are to have regard in making and developing policy’.
Furthermore the Act provided that such legislation had to make provision for the establishment of a public authority for taking proportionate enforcement action where the authority considers a Minister is not in compliance with environmental law, and must define the content of such ‘environmental law’.
The withdrawal of the UK from the EU was fiercely opposed by environmental campaign groups in the UK, who considered that the loss of oversight from a vigilant EU Commission and the Court of Justice of the EU (CJEU) would result in a lack of constraints on executive power and consequently a rolling-back on the existing level of legal protections for the environment.
In order to assuage concerns that the UK’s withdrawal from the EU would occasion ‘a race to the bottom’ in environmental standards, the UK government agreed to what they it termed a ‘Green Brexit’ and introduced an Environment Bill to provide the following features:
The establishment of the Office for Environmental Protection (OEP to replace the watchdog and enforcement role of the EU Commission
A Policy Statement on Environment Principles, which is to guide all government action across the UK regions and to which all new environment related legislation is to have regard to. This will include a non-regression provision in such legislation, requiring Ministers to state that such new legislation will not reduce the levels of environmental protection of existing environmental law
Environmental Improvement Plans (EIPs) which are to provide a structured approach for government to ensure the continuous improvement of environmental conditions
The first iteration of the Bill fell with the calling of an election in December 2019, with a further Bill introduced into the current Parliament. That Bill is currently being considered at Committee Stage in the House of Commons.
The Bill when enacted will be applicable to Northern Ireland, with many of its provisions becoming commenced upon request from the Assembly, reflecting the devolved nature of environmental policy.
The most significant development will be that the OEP will have a role in oversight and supervision of environmental policy in Northern Ireland. The establishment of the OEP will represent the most significant innovation in UK environmental policy in decades. How it will interact with the environment related provisions of the Good Friday Agreement and the Ireland/Northern Ireland Protocol will be one of the key questions for Northern Ireland’s environmental policy in the coming years.
The Office of Environmental Protection
The Bill will establish the OEP as a Non-Departmental Public Body with independence from government, except in relation to the appointment of members of the OEP and budgetary matters. Non-executive members of the OEP must be appointed from a variety of multi-disciplinary backgrounds including International law relating to natural environment, environmental science, policy and enforcement.
The OEP’s functions as set out in the draft legislation are to contribute to (a) the protection of the natural environment and (b) the improvement of the natural environment.
The OEP will have the statutory power to take legal proceedings against public authorities for failure to comply with environmental law. It is bound to use these powers as a matter of last resort, but may take emergency injunctive proceedings where there is an imminent threat to the environment. There are different views as to whether the OEP will be sufficiently independent of government to perform an effective watchdog role, while others have questioned whether its sole legal tool of judicial review without the potential to impose fines will be sufficient as a substitute for the legal powers available to the Commission and the CJEU.
The Bill also imposes a statutory obligation on the Northern Ireland The Department of Agriculture, Environment and Rural Affairs (DAERA) to publish an Environmental Improvement Plan (EIP) to be laid before the Assembly every five years. Each EIP will have the aim of ‘significantly improving the natural environment’, and in that regard must set out the policy actions which the Department and any other Northern Ireland Department intend to take during the relevant period, to improve the natural environment and to improve people’s enjoyment of the natural environment. DAERA will be required to report annually to the Assembly on the EIP and the steps which have been taken to implement it, backed up by appropriate monitoring data. The OEP will have a role in reviewing the compliance of DAERA with the EIP.
The Protocol on Ireland/Northern Ireland
It is worth recalling that the Good Friday Agreement specified that the Environment comprising the following policy areas ‘environmental protection, pollution, water quality, and waste management.’ were to be areas for consideration of ‘North-South co-operation and implementation’. It was assumed at the time that the continued membership of both jurisdictions would facilitate such mutually beneficial cooperation. While it is arguable whether the full promise of the Good Friday Agreement has been realised in relation to potential areas of cooperation on environmental issues, considerable progress has been made in relation to certain issues such as river basin management under the EU Water Framework Directive and implementation of EU funded cross-border environmental programmes.
The protection of the Good Friday Agreement in reaching an agreement for future cooperation between the UK and the EU has been a central focus of negotiations. The Ireland/Northern Ireland Protocol (“the Protocol”) published on 17 October 2019 is a key element of the Withdrawal Agreement agreed between the UK and EU in October 2019 and passed by the UK parliament. The Protocol comes into force after the transition period.
Article 11 of the Protocol, ‘Other areas of North-South cooperation’ provides as follows:
‘Consistent with the arrangements set out in Articles 5 to 10, and in full respect of Union law, this Protocol shall be implemented and applied so as to maintain the necessary conditions for continued North-South cooperation, including in the areas of environment, health, agriculture, transport, education and tourism, as well as in the areas of energy, telecommunications, broadcasting, inland fisheries, justice and security, higher education and sport.’
The Protocol provides for the ‘Joint Committee’ established to oversee the implementation and application of the Protocol and Withdrawal Agreement, to keep under constant review the extent to which the implementation and application of the Protocol maintains the necessary conditions for North-South cooperation.
The Protocol does allow for unilateral safeguard measurers to be taken by either the UK or the EU where the implementation of the Protocol is inter alia leading to “serious…environmental difficulties that are liable to persist”. However, other than this provision, the Protocol contains no express specific provision relating to North-South cooperation or consultation on environmental governance or environmental protection on the Island of Ireland.
Therefore, as the precise implications of the Protocol for matters of trade and customs are increasingly being contested in advance of the end of the transition period, one can readily appreciate the potential for disagreements to arise over the extent to which Northern Ireland remains in regulatory alignment with EU environmental policy, particularly if the rest of the UK starts to significantly diverge.
As with the discussions on trade and customs, the issue of regulatory divergence is central to a consideration of the potential implications of Brexit on environmental governance in Northern Ireland and on environmental cooperation between both jurisdictions on the island. With the trajectory of the current British government being towards increased regulatory divergence, this will surely be reflected in environmental policy also as the UK seeks to differentiate its environmental requirements from those of the EU, potentially with a view towards making its economy more attractive to inward investment by reducing the financial costs of compliance.
The extent therefore to which environmental policy in Northern Ireland under the remit of the devolved institutions in Stormont follows such a differentiated UK environmental policy or which seeks, as much as possible, to maintain alignment with the environmental acquis of the EU will be sure to be a fraught question in the time ahead. It will bring into question the precise meaning of Article 11 of the Protocol as interpreted by the Joint Committee, as well as the objectives of the different political parties in that regard. Indeed it is entirely possible that this question becomes one of political division either between the EU and the UK, or within Northern Ireland itself resulting in a paralysis in environmental policy development, which would not benefit either the environment or society in Northern Ireland.
If it occurs, regulatory divergence on environmental policy will have significant implications south of the border. Differentiated carbon and environmental taxes could lead to significant trade distortion across the border, including the potential for smuggling of goods and products subject to lower environmental taxes, or indeed where particular goods have been withdrawn from one market due to their environmental impact, but not from the other. Differentiated waste legislation, for example, would surely incentivise cross-border waste crime. And differentiated nature protection laws in both jurisdictions will be likely to impose greater costs and administrative burdens on the island’s renewable energy industry which increasingly operates on a cross-border basis mirroring the ISEM single electricity market on the island.
As the nature of the Brexit negotiations between the UK and the EU becomes increasingly shriller, it is clear that we are entering a more turbulent time in relation to environmental cooperation on the island of Ireland occasioned by the rupture to the common environmental policy framework caused by the UK’s departure from the EU. It is to be hoped that more focus is placed on this issue, in order that the progress of recent decades in environmental policy cooperation is not undone.