Protecting the environment: a consensual commitment or focus for confrontation in the UK?

Scotland Europe Initiative
Publication Date
06/12/2023
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Protecting the environment: a consensual commitment or focus for confrontation in the UK?
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December 6 2023, by Professor James Curran FRSE

The Scottish Government announced that, post-Brexit, it would maintain or exceed European standards of environmental protection and this is now confirmed in the Continuity Scotland Act 2021. No such statement has been made by the UK Government which has committed to “not only maintain but enhance environmental standards”, but with no specific reference to equivalent European progress.

Equally, the UK has left the European Environment Agency which has an influential role in collecting, analysing and reporting comparable environmental data across the continent. So, there is no longer any reliable evaluation of how Scotland, and the UK, are performing against environmental standards versus neighbouring countries.

EU environmental initiatives, many of them deriving from, and contributing to, the post-Covid European Green Deal have been numerous post-Brexit. This list may not be exhaustive:

  • 8th Environmental Action Plan (emphasising monitoring and reporting on, for example, soil quality, progress with circular economy)
  • Duty of Vigilance Directive (demanding that whole value chains respect European & international environmental standards, as well as human rights dependent on environmental conditions)
  • Green Claims Directive (establishes a common methodology for green claims on products & services)
  • Single Use Plastics Directive
  • Carbon Border Adjustment Mechanism (tariffs imposed on imports from sources that don’t have equivalent carbon-emissions trading schemes)
  • Minimum requirements on water re-use
  • Reduction of impact of plastics on the environment
  • European Trading Scheme (ETS) reform
  • ETS applied to building and road transport fuels (after 2027)
  • Effort-sharing regulation (member state targets for greenhouse gas reductions)
  • CO2 standards for cars & vans (must be zero for new registrations after 2035)
  • Renewable energy directive (mandatory 42.5% by 2030)
  • Energy efficiency directive (-11.7% by 2030)
  • Alternative fuels infrastructure regulation
  • ReFuel aviation fuel regulation (ETS imposed on non-domestic flights, further rules on fuel usage)
  • Maritime fuel regulation (carbon pricing and a carbon target)
  • Net-zero Industry Act (40% of deployment needs)
  • Methane strategy & action plan
  • Right to Repair directive

It has been claimed that the vast majority of existing UK environmental law is based on European law so there is perhaps no surprise that Europe continues to innovate rapidly and the UK and Scotland need/must/should keep pace.

Westminster, for example, has already introduced Right-to-Repair regulations and consulted on the UK’s own version of a carbon border adjustment mechanism. The UK has launched its own emissions trading scheme, but the price of carbon credits seriously diverges from the EU (e.g. in Oct 2023, the UK price was £39 per tonne, while the EU price was £70 per tonne).

Keeping up or lagging behind?

The Scottish Environment Protection Agency (SEPA) remains a member of the European Network for the Implementation and Enforcement of Environmental Law (IMPEL) and of the Network of Heads of the European Environment Protection Agencies (NEEPA) so has access to exchange of best practice, mutual audit of regulatory delivery, as well as informal input to the development of new regulatory policies and tools.

In Scotland, a new oversight body, Environmental Standards Scotland, has been created to replace the scrutiny of member states’ environmental performance provided by the European Commission. ESS reports to the Scottish parliament, audits the compliance of public bodies with environmental duties and checks that Scotland is keeping pace with European standards. Ultimately ESS can seek judicial review if it discovers failure in regulatory delivery, but it lacks the full powers of the Commission which could refer defaulters to the European Court of Justice where huge fines could be imposed on member states (e.g. Euro 0.25M per day ).

Much European legislation (viz REACH) allows for standards to be updated, often tightened, as scientific knowledge of environmental, or human health, impacts is improved. The UK no longer has any involvement with this process. Since Brexit, the EU has introduced eight chemical restrictions with another 16 in progress, while the UK has only introduced two and, meanwhile, the UK Government is set to reduce the hazard data that industry needs to supply. This regulatory approach to chemicals is crucial with rapidly changing technologies leading to environmental leakage, and pathways to humans and animals, of novel materials like antibiotics, pesticides, microplastics, rare earth metals, and nanoparticles.

The reported inadequacy of UK REACH highlights the requirement for appropriate resourcing of environmental regulation. It has been shown that the public funding of SEPA, NatureScot and the necessary provision of underpinning environmental research has declined, in real terms, by 26%, 40% and 55% respectively since 2010, while the overall Scottish Government budget has increased by 19%. It can also be estimated that Scottish Government funding of all environmental services amounts to 0.6% of GDP, whereas the average, across all Europe, is 0.8%. This underfunding presents a challenge to maintaining, let alone exceeding, European standards.

Another aspect of resourcing relates to concerns that Scotland has relied for so long on policy and law making being driven by Europe and that the necessary breadth & depth of expertise is no longer available to create effective home-grown legislation – see the Deposit Return Scheme failure and designation of Highly Protected Marine Areas.

COP28 and beyond

The EU Parliament has announced its position, in advance of COP28, that all fossil fuels should be phased out and new investment in fossil fuel extraction halted. In contrast, the UK is issuing hundreds of new oil/gas exploration licences. However, an even greater challenge might arise through the UK’s imminent ratification of the Comprehensive & Progressive Agreement for the Trans Pacific Partnership (CPTPP). This trade agreement, involving Australia, Japan, Mexico, Canada & others, is weak on environmental standards.

It states that the partners will “strive to encourage high levels of environmental protection, to continue to improve levels of environmental protection and to not derogate from their environmental laws.” A joint statement from some of the partners, including the UK, worryingly confirms that they “recognise each other’s right to establish their own levels of environmental protection.” It is hard to see how this trade deal will not run hard up against the EU’s Duty of Vigilance Directive. This could, in turn, seriously compromise the UK-EU TCA.

Finally, a major obstacle to Scotland’s aspiration to match EU environmental standards may be provided by the UK Internal Market Act 2020 which establishes the principle of non-discrimination in access and trade of goods within the UK internal market. In order to effect positive change, there will inevitably be costs imposed on businesses to meet new environmental standards. These ex-ante costs are often over-estimated but are always easier to estimate, and therefore given more prominence, than the projected downstream social and environmental benefits, or business productivity gains. There is no doubt that anticipated business costs, should Scotland wish to adopt higher environmental standards than the rest of the UK, could readily trigger the IMA and prevent or, at the very least, delay Scotland’s environmental progress. The IMA has already been used to delay, by several years, the DRS.

Conclusion

In Scotland only 20% of people believe environmental standards are improving. While new risks to the environment repeatedly emerge, there is no room for complacency. But there are three significant threats to Scotland’s ambition to maintain parity with Europe’s continuing environmental standard setting and attainment:

  • The UK Internal Market Act 2020
  • Resourcing of Scotland’s policy and legislative capacity and its environmental agencies, and adequate resourcing of UK REACH
  • Agreement by the UK to new international trade deals

Environmental protection remains a long-term, consensual commitment in Europe. Within the UK, regrettably, it could become a focus for political confrontation.

Professor James Curran, who spoke at our eighth workshop in the Scotland-Europe Initiative series, is a former chief executive of the Scottish Environment Protection Agency and served on government groups including climate change, zero waste, hydronation, green growth, biodiversity, and fracking. He was an Honorary Professor of Stirling University and Chair of the James Hutton Institute. He served on the Board of the Green Purposes Company, overseeing the environmental performance of the privatised UK Green Investment Bank, advised the Isle of Man Government on climate action, recently stepped down as chair of Climate Ready Clyde, and is currently a visiting professor at the Centre for Sustainable Development, University of Strathclyde.

The RSE’s blog series offers personal views on a variety of issues. These views are not those of the RSE and are intended to offer different perspectives on a range of current issues.

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