The UK government has been criticised for not having a plan to manage how leaving the European Union will affect Britain’s environmental laws and its reputation as a world-leading country on climate change.

Lord Boswell of Aynho, chair of the European Union Committee of the House of Lords

The criticisms come in a report by the British Parliament’s European Union Committee of the House of Lords, published on Tuesday. This concludes, having taken evidence from a wide range of people and organisations, that the complexity and extent of EU environmental law, as transposed into domestic legislation, is sufficient to provoke widespread concern that environmental protections and ambitions “will be diminished”.

This criticism comes at the same time as the government is under fire for failing to protect its people and the environment from pollution even while in the European Union.

Post-Brexit enforcement

The Lords have called upon the government to make sure environmental protections will not be diminished as a result of Brexit, and to make clear who would enforce the legislation when it is no longer enforced by Brussels.

They point out that because the environment does not respect borders and because the UK and Europe will continue to trade, they will continue to need to cooperate in order to protect their shared environment.

The UK will also still need to comply with or adopt measures equivalent to EU environment standards in order to continue to trade freely with the EU.

One key area in which this is self-evident is chemicals, which are controlled and regulated by the REACH legislation.

Whereas at the moment Britain has a chance to influence the formation of legislation, once it leaves the EU, it will lose that privilege. The Lords therefore suggest that the government should seek to maximise ways in which the UK can informally influence policy and legislation.

The Lords furthermore urge the government to strike alternative alliances with other countries or groups of countries to help it further its environmental aims and to take an ambitious domestic approach to combating climate change in order to have credibility in its negotiating position.

The problem of Defra

In the British government, responsibility for the environment is split between different departments.

While the Department for Environment, Food and Rural Affairs (Defra) is responsible for areas like agriculture, waste and pollution, the Department for Business Energy and Industrial Strategy (BEIS) is responsible for the energy-related aspects of climate change and the ways in which the economy shifts to a low carbon circular economy. The Department of Transport and Local Government, which involves planning, also plays a big part.

Of all these departments it is Defra whose future looks most problematic as it has the headache of figuring out what to replace the Common Agricultural Policy and the Common Fisheries Policy with.

“We are not confident that Defra has a delivery plan” for Brexit, the Lords say in their report.

Defra will need to design regulatory structures that will ensure that environmental protections are enforced as effectively after Brexit as before, but the Lords say the government’s assurances that future governments will regulate themselves instead of relying on the EU to do so are “worryingly complacent”.

Confidence in Defra is not running high. In no fewer than three cases in the last two weeks it has been widely criticised for its meagre attempts to protect the environment.

1. Failure to tackle hazardous waste

In case number one Defra’s last ruling on pollution control and hazardous waste was recently condemned by the Environmental Services Association (ESA). This was Defra ministers’ decision to continue to let air pollution control residues from smokestacks and incinerators that do not meet waste acceptance criteria go to hazardous waste landfill.

The UK’s resource and waste management industry members have worked with officials to design a smooth transition to new techniques for the recovery of air pollution control residues (APCR) into useful products since as long ago as the 2010 Hazardous Waste Strategy, when the idea of phasing it out was first floated. They describe it as “disappointing” that ministers have decided not to phase it out after all.

“This decision won’t help investment in alternative treatment technologies for APCR, which would deal with the waste further up the waste hierarchy, and potentially brings into question the government’s commitment to the waste hierarchy more generally,” they said in a statement.

2. Failure to tackle air pollution

In case number two the government has been widely slammed for its consistent failure to tackle the air pollution crisis. The EU is escalating legal action against the UK for breaching air quality laws.

The EU has pointed out multiple failings by the UK government in applying environmental law, with it being in breach of vital EU nitrogen dioxide (NO2) limits since 2010 and London overshooting its whole 2017 limit on the gas (which is emitted by vehicle exhausts) in the first five days of the year.

The results of the review should be sent to the UK government this Wednesday. It will be taken to the European Court of Justice if it fails to send a satisfactory response.

Keith Taylor, a vocal air quality campaigner, has accused the government of “failing in its duty to take even the most basic action to combat an air pollution crisis”, which it is said claims the lives of more than 40,000 people in Britain every year and costs the British public more than £20 billion (AU$32.7b).

“Where embraced and enforced, EU air pollution limits are helping to prevent thousands of deaths every year,” he said

3. Failure to tackle microbeads

And in case number three Defra has been criticised this week for its policy on dealing with microbeads or nanoparticles of plastic that enter the environment in numerous ways and end up in rivers and seas causing untold harm.

In a joint statement, the Environmental Investigation Agency, Fauna & Flora International, Greenpeace UK and the Marine Conservation Society condemned Defra for leaving out many sources of these substances.

The statement calls upon Defra to include in the ban all solid plastic ingredients smaller than five millimetres used for any purpose, all products that are washed down the drain or are directly discharged into waterways or the marine environment, to have no lower size limit in the definition, not to allow so-called “biodegradable” plastics to be used instead as they do not degrade in the ocean, and to have a clear and prompt timeline for phasing out these ingredients. All of these recommendations have been made by the government’s own Environmental Audit Committee.

32 recommendations

The UK deserves an effective and independent domestic enforcement mechanism to replace the EU, underpinned by a effective judicial oversight. This costs money and it is not clear that this will be available.

There will also be effects on the EU from the UK’s withdrawal because the UK’s achievements on climate change compensate for the underachievement of other member states. What will replace the EU Emissions Trading Scheme, for example?

It is also uncertain whether the UK will be able to participate in research projects and information networks co-ordinated by the EU. Not being able to do so could severely hamper its environmental and climate change research efforts.

The Lords make a total of 32 recommendations, pointing out that continuity of legislation and enforcement is needed to preserve investor confidence, funding and research & development as well as environmental protection.

David Thorpe is the author of a number of books on energy and sustainability. See his website here.

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