Brexit and the environment

A recent report commissioned by the Environmental Pillar and Northern Ireland Environment Link has relayed concerns that Brexit and any change to the Good Friday Agreement could cause “innumerable problems” for cross-border co-operation on the environment.

“It is likely that Brexit (in any form) will interfere with Good Friday/Belfast Agreement cross-border co-operation and place obstacles in its way in general, but in particular in the area of environmental co-operation”, the report’s author states.

Setting the context for concerns around the future of cross-border co-operation, the report points to the importance of maintaining the six implementation bodies and Good Friday Agreement institutions in an all-island dialogue, momentum for co-operation and common standards in the absence of common EU membership.

Recognising that failure to fully implement the provisions of the Agreement means that the full potential of cross-border co-operation has not yet been realised, the authors state that the Agreement not only supports and provides impetus for cross-border co-operation around the environment but that the EU regulatory framework provides the context to allow it to happen.

The Agreement nominated 12 areas for cross-border co-operation, some such as the North-South Ministerial Council and the British-Irish Council, with an explicit environmental remit, and most with environmental aspects.

The backdrop to the need for environmental collaboration in 1998, when the Agreement was signed, was a legacy of failure to meet basic standards of environmental protection in Northern Ireland. Its status as a post-conflict society, successive executive formation failures and the absence of an independent environmental regulator have all been highlighted as factors influencing Northern Ireland’s environmental performance.

The report states that: “The poor track record for environmental governance in Northern Ireland, and failure to implement existing regulatory measures, gives rise to a concern that if Brexit should lead to regulatory divergence downward then the actual gap in environmental protection will be much greater on the ground than the gap on paper.”

It’s estimated that some 30 of the 150 areas of co-operation listed by the Department for Exiting the EU in a recent mapping exercise fall under the environmental heading ranging from river basin management through to environmental funding and radiation management. Other areas such as public transport and agriculture have environmental implications.

The existing cross-border co-operation has been driven by funding programmes of the EU such as PEACE, LIFE and Interreg and Brexit threatens these streams.

Other issues that threaten to “undermine the environmental integrity of the island of Ireland” include the potential for regulatory divergence. In losing the shared context of EU membership, Brexit creates the potential for less coherent environmental governance/regulation across the island as a whole. The report highlights the potential divergence from EU standards by Westminster, further complicated by differences of responsibility in the devolved regions, as potentially leading to de-regulatory pressure through market competition. Removing a shared regulatory and legal context in Ireland “may result in practical and administrative barriers to cross-border co-operation”.

As well as potentially moving away from the regulatory, monitoring and enforcement function of the EU Commission, Brexit could also see Northern Ireland move away from the supra-national jurisdiction of the Court of Justice of the European Union (CJEU), which adjudicates on breaches of European Environmental Law.

Finally, the report highlights that a hard border or customs border would represent a “potential physical obstacle” to cross-border environmental projects, potentially causing “innumerable problems” from movement of staff on projects and goods necessary for the carrying out of projects, to the “more abstract problems caused by regulatory divergence and governance changes as a result of Brexit”. This includes a potential reduction in the ability to take joint action on prosecution of environmental crime.

“Overall, this means that Brexit presents a challenge for instituting and maintaining cross-border cooperation. It shifts considerably the context within which the Agreement operates, simultaneously making it more important and potentially less stable than before,” the report states.

Outlined by the authors is the potential for the Agreement’s bodies to act as a vehicle to maintain policy and regulatory alignment, although legal challenges arise in Ireland aligning with a non-EU member. While it is possible that the UK could match developments in Ireland (which will follow EU standards as a minimum), the report that such an approach may be “problematic in practice” given the background to Brexit and the “narrative of ‘taking back control’”.

A deal creating a close regulatory alignment between the UK and the EU could enable the Good Friday Agreement bodies to be used to maintain alignment in the implementation of common standards and such a deal would allow for enhanced levels of cross border co-operation on the environment, and tackling problems co-operatively.

It’s also noted that the Agreement’s guarantee of common human rights standards could be used for enforcement of some of the current environmental standards, including where they impact on an individual’s right to a clean and healthy environment. However, it is noted that maintaining regulatory alignment in some aspects is not equivalent to environmental co-operation and is instead a “precondition for it”.