1,246 pages and a date to remember: 24 December. No, not Christmas eve. It was the day the EU and the UK finally decided to stick to a Trade and Cooperation Agreement (TAC).
The least we could say is that we've come a long way!
For four and a half years, BirdLife has been working its way through the intricate and complex world of EU-UK trade negotiations alongside our UK partner, the RSPB – the Royal Society for the Protection of Birds, to try to limit the environmental damage that would happen as a result of Brexit. Now that the transition period is behind us, we can begin to assess this event’s implications for nature.
The struggle to preserve environmental laws in the context of the Brexit deal has been long, and not without pitfalls, in a context where environmental issues were long considered marginal details of trade agreements.
And yet, these negotiations seem to have significantly contributed to a shift in the way the EU approaches trade negotiations: there’s now a much bigger focus on the role of environmental standards and the need for a level-playing field.
Overall, we can take satisfaction from the fact that in the end, environmental standards were central in the negotiations, which were of crucial importance for the environment; as the EU and the UK have shared the same environmental legislations for more than 40 years and will continue to share the same ecosystems.
Throughout the process, we fought for several things. Firstly, to ensure that the level of environmental protection did not regress; secondly, to make sure it was in line with existing European standards; and thirdly, to make sure that it can evolve as environmental challenges and protection requirements increase on both sides. In other words, our priority has been to avoid a situation in which the UK would engage in environmental deregulation while enjoying EU market access, thus undermining environmental protection both at home and across the continent.
Where are we in practice?
It is difficult to give a definite answer to this question, as the agreement is very much subject to interpretation. One thing is for certain, however: the damage has been limited.
We started in an extremely difficult situation in which the United Kingdom did not want to consider any form of alignment with European environmental standards, and argued in favour of a "classic" trade agreement without any real cooperation on these issues.
As it stands, although the agreement is not a partnership agreement as originally desired on the the EU’s side; some provisions offer a certain degree of protection to environmental standards in place, as well as a basis that we can work with on both sides of the Channel.
1. A principle of non-regression
What does it mean?
The two parties managed to agree not to "weaken or reduce, in a manner affecting trade or investment between the Parties, its environmental levels of protection or its climate level of protection". This applies to environmental standards in place at the end of the transition period in the European Union (31 December 2020), and also covers already existing future targets, such as the 2030 waste targets.
The inclusion of this principle is a victory in itself. However, its implementation very much depends on interpretation, and certain elements of the agreement are already raising doubts on its effectiveness in preventing environmental deregulation on the British side:
- The regression principle as it is written refers only to levels of protection and not to legislations, unlike the Northern Ireland Protocol. Therefore, don't expect a British copy & paste of European environmental law. Different mechanisms can be used to meet these levels of protection. For example, the UK can choose its own emission trading scheme, as long as it allows it to meet the same ambition.
- On the other hand, we are satisfied to see that inaction, such as failure to simply enforce environmental legislation, may fall under the principle of non-regression if trade or investment are impacted.
- A big weakness is that this principle applies only in the case of an impact on trade or investment, a notion that can be in the eye of the beholder. It is not clear at this stage how this will be interpreted - it is unclear how much biodiversity protection would be able to fit in. This condition for the implementation of the non-regression principle raises serious questions as to what impacts would be considered serious enough to justify, for example, the reintroduction of tariffs; and whether the European Union will be able to monitor, within an appropriate timeframe, each move made by the UK, assess its impact and take appropriate action.
- As a consolation prize, it is worth noting that compared to other classic Free Trade Agreements (FTAs), regression can be imputed to a party even if the party had no intention to lower the level of protection for a trade or investment benefit. The mere fact of weakening the level of environmental protection, even unintentionally, may be the subject of a complaint by the other party.
- Unsurprisingly, environmental protection was still relegated to the second position in the agreement since the application of non-regression does not even fall under the dispute settlement mechanisms set up in the agreement. Instead, we regret that the system is much less robust as the parties will only go through a consultation process and then bring a complaint to a panel of experts.
- The good news? The panel's conclusions will be politically binding.
2. Rebalancing mechanism
BirdLife also fought for the EU and the UK to commit to aligning their environmental standards as they evolve in the future. We have made this one of our priorities in recognition of the fact that the EU is on track to make significant changes to its environmental protection policies, if the Green Deal objectives are anything to go by. Too great a divergence with the UK on this front would hinder or even alter the effectiveness of the attempt to better protect the ecosystems that the EU and the UK share.
We regret that such a dynamic form of alignment has not been retained in this agreement.
In the absence of provisions for dynamic alignment on future standards, the support for greater future ambition in environment and climate policies will depend on the use of the rebalancing measures.
This is not quite as ambitious as we would have liked, as the scope of this mechanism is even more restrictive than non-regression: parties can only use it in the event of 'significant' divergences which 'materially affect' trade and investment.
Even if it is true that the parties have agreed to "continue to strive to increase their respective environmental levels of protection", this 'rebalancing mechanism' acts more as an incentive than an actual deterrent to diverge in the future. A real worry is that vested interests opposed to new environmental legislation in the EU will argue that tightening up rules would harm the EU economy as the UK will not follow in tandem and will thus get a competitive advantage. This line of argument will need addressing from the start.
In terms of implementation, the rules different than what's proposed with the principle of non-regression.
Here, if in several years' time the level of environmental protection in the EU is much higher than in the UK; the EU will be able to take rebalancing measures, probably with a sector-by-sector approach, and the UK will only then be able to complain to a panel of experts if they find this measure unjustified.
This mechanism still lacks clarity as to the conditions that would motivate such measures. We have concerns regarding the burden of proof that would be required for this rebalancing to actually take place and respond to the urgent need to reverse environmental impacts arising from weaker regulations.
3. Environmental principles
The Paris Agreement has been recognised as an essential element of the agreement. This is a first in the context of an FTA. We welcome this major step forward, although we regret that the fight against biodiversity loss was not included as an essential element of the cooperation of both parties. Once again, we regret the lack of coherence in jointly addressing these two interconnected environmental crises.
Nevertheless, after never-ending debates on the inclusion of the "precautionary principle" considered too European-flavoured on the other side of the Channel, we have managed to see the emergence of a reference to a precautionary “approach". What are the implications of this compromise in language? The EU assures that this terminology will in no way affect the application of the principle as such, which does not stem from European law but from the Rio Summit in 1992.
Good to also highlight that the UK has insisted on including the principle of preventive action, which is also a first in the history of trade agreements.
Now, it remains to be seen, of course, whether these principles will actually be respected in the implementation of the TCA...
4. Fisheries agreement
Negotiations on access for European fishing vessels to UK waters have taken a totemic turn in EU-UK discussions, and have focused mainly on the economic dimension, failing to take into account the catastrophic state of marine ecosystems and the need for the UK and the EU to cooperate on their protection in the future. It was extremely difficult to include basic principles in the agreement, at the heart of the Common European Fisheries Policy, such as the commitment for the UK to continue to refer to the Maximum Sustainable Yield and the precautionary principles. In the end, we are reassured to see that these principles have been retained, and that both parties have committed themselves, albeit symbolically, to "minimise harmful fisheries impacts, including wider marine ecosystem impacts and a requirement to take due account of the need to preserve marine biological diversity".
For the rest, the fisheries agreement remains a complex beast that will require further analysis, and certainly rigorous monitoring to ensure that the environment is not a victim of complex diplomatic and economic stakes.
Whether in the case of the principle of non-regression or the rebalancing mechanism, it will be possible for the UK to diverge from European environmental standards at the end of the transition period, and in the future. We hope the UK's willingness to maintain unity between the devolved nations, and Scotland's commitment to follow European legislation, will be a further incentive to maintain a level of consistency across the channel.
In the meantime, it is important to note that there is no obligation for the UK to ensure the independence of its enforcement bodies (e.g. for now the Office for Environmental Protection (OEP) in England and Environmental Standards Scotland in Scotland). This could hinder the ability of the dialogue, planned under the agreement between these enforcement bodies and the European Commission, to find solutions to environmental issues and deregulatory tendencies in this area. On the other hand, we consider it crucial that this mechanism for dialogue be made mandatory, regular, and that its content be public so as to allow other stakeholders to contribute to the debate.
Similarly, there is still a clear lack of a concrete proposal within the framework of the agreement to set up a ‘Civil Society Forum’. Civil society has an enormous role to play in monitoring the implementation of the agreement. Its watchdog role needs to be supported by sufficient funding for this purpose, just as the European
Commission’s DG Environment needs to be armed with the necessary capacity to prevent environmental deregulation that could affect the European acquis and set dangerous precedents.
Although the principles of the Aarhus Convention are positively mentioned, citizens must be able to complain directly in case of regression of environmental standards. At present, the agreement does not propose a clear process to enable this citizen’s duty to be exercised as soon as the agreement is ratified.
The truth of Brexit is such that we all need to prepare ourselves for impacts in a number of sectors, starting with the environment.
The UK has not asked to remain a member of the European Chemicals Agency or the European Environmental Agency. This decision is likely to have dire consequences, as a huge amount of data will not be harmonised anymore.
Moreover, it is most certainly going to take a while for the UK to set up its own equivalent of the EU’s REACH regulation (Registration, Evaluation, Authorisation and Restriction of Chemicals) and the Commission is ready to accept this delay.
Many commentators describe the agreement as historically ambitious in environmental terms. Admittedly, the result is inevitably more satisfactory than the classic trade agreements normally concluded between the EU and the rest of the world. On the other hand, the EU has no such close trading and physical proximity to any other player and this is the first agreement regulating divergence rather than convergence. The UK's past links with the EU and its geographic proximity make it a natural ally of the EU in protecting the environment, and the environmental crisis is growing by the day. And yet, the TAC could have gone much further in terms of environmental safeguards.
This is why trade agreements must go beyond the proposed ambition in this agreement, in order to meet the EU's plans to reform its trade policy in line with the Green Deal.
In the meantime, much work is required on both sides of the Channel to interpret this agreement correctly to ensure that a legal, financial and political framework is in place to address the environmental crisis.
Brexit will unavoidably have detrimental consequences for Europe and the environment, and it is utterly important to maintain coherence and ambition on environmental protection and continued cooperation and improvement on preserving our shared ecosystems in the future.
This starts by empowering the European Parliament in effectively and regularly scrutinising the implementation of the agreement, while making sure this is aligned with the EU Green Deal. We will be watching too!