The Withdrawal Agreement aims to establish the terms of the UK’s withdrawal from the EU, including its extensive corpus of environmental laws and policies. The draft published on 14 November is divided into a number of parts, none of which deals exclusively with the environment.
References are instead sprinkled finely throughout the entirety of the 585 pages.
Released at the same time as the Agreement was another document – an ‘Outline of the Political Declaration’ governing the future relationship between the UK and the EU.
Far shorter than the Agreement (it only runs to eight pages), it has attracted much less comment. It only refers to the environment with respect to the economic goal of maintaining a level regulatory playing field.
On the face of it, there doesn’t appear to be much in either to gladden the hearts of environmentalists. But read them more closely and in amongst the dense legalese are some subtle but important clues as to the greenness, or otherwise, of the final Brexit outcome.
And they are subtle because the more environmentally relevant parts of the Agreement are those that will only apply if the Northern Ireland backstop is invoked. That, remember, has been one of the main sticking points in the entire Brexit negotiation.
The backstop will only kick in if the UK and the EU are unable to strike a new trade deal before the end of the transition period on 31 December 2020.
The clues tell us about what kind of environmental relationship the EU would like to forge with the UK after 2020 – and hence what is likely to bedevil those attempting to complete the Political Declaration.
By contrast (and assuming the Agreement is eventually adopted), the transition offers a period of relative certainty: from 29 March 2019 to 31 December 2020, EU environmental policy will operate more or less as it does today.
The UK environmental groups – now firmly united under the banner of Greener UK – will be assessing both documents against their four Green Benchmarks for Brexit.
Their first benchmark is that the UK should achieve higher environmental standards outside the EU, with no backsliding or regulatory ‘races to the bottom’.
If the backstop is invoked, the Agreement will impose a non-regression clause on the UK requiring it to maintain the current level of environmental protection as it stands ‘at the end of the transition period’.
Crucially, this clause embraces politically sensitive topics such as land use planning and nature protection that Brexiteers have often targeted for deregulation.
The second benchmark is that the UK should maintain effective systems of policy enforcement. Fears have been expressed that a green ‘governance gap’ will open up when the UK exits the EU.
If the backstop is triggered, the draft Agreement requires the UK to ‘implement a transparent system for the effective domestic monitoring, reporting, oversight and enforcement of its obligations’ by ‘an independent and adequately resourced body or bodies’.
After intensive lobbying by environmental groups, the UK government has now consulted on the design of such a body, but for England only. However, the Agreement goes considerably further, committing the UK government to ensuring that these functions are coordinated across the four nations of the UK.
At present, there is still a very long way to go to achieve this. The text also appears to require the new body to have the power to take all public bodies to court, rather than just ministers.
The third benchmark aims to ensure that there are effective mechanisms of cooperation after Brexit, both within the UK and between the UK and the EU.
Here, the draft envisages new forms of cooperation in relation to a number of ‘behind the border’ policy areas including air quality and industrial emissions ‘as from the end of the transition period’.
A 25 person Joint Committee established by the Agreement will set ‘minimum commitments’ in these areas which appear to be rather open ended.
It is not clear how they will be enforced or how they will be updated if EU standards tighten (‘dynamic alignment’). Nevertheless, the EU’s determination not to be undercut is abundantly clear.
The fourth and final benchmark is that future trade policy should promote rather than undermine higher environmental standards. The Political Declaration is too short to pass this test, but the matter will be on the minds of negotiators as they re-negotiate it.
Almost everything about Brexit is uncertain. The Withdrawal Agreement may not even survive the parliamentary ratification process in the UK. But if Brexit is to endure, some kind of withdrawal treaty will eventually be needed even in a ‘no deal’ scenario.
The draft published yesterday is useful in at least two important respects. First of all, it reminds us that EU negotiators are really worried that their environmental standards may be undercut after Brexit.
Normally, free trade negotiators insert non-regression clauses into their agreements to mitigate this risk. By contrast, the EU seems determined to go much further and delve into the structure and functioning of the UK’s systems of governance.
Second, the two drafts are not and could never be sufficient to pass all the Green Brexit tests. But things could have been a lot worse. The environment was barely mentioned during the referendum which left the environmental groups on the losing side.
In Michael Gove, Greener UK has found an unlikely but energetic ally. But not for the first time have environmentalists now discovered that they have powerful allies in Brussels too. That matters when Brexit negotiations are a complex, two-level game.