The Environment

The myth

The development of the Single Market has done more harm than good to the natural world and the EU’s environmental achievements are overstated. The UK can be more successful in protecting the environment and promoting sustainable development if we leave the Single Market and have the freedom to develop our own policies.

“Often well-intentioned environmental policies are outweighed at every turn by the more fundamental drivers of its bid to turn the whole of Europe into a paradise for (environmentally damaging) agribusiness and industry.” Jenny Jones, former Chair of the Green party, June 2016

“Once out of the Common Fisheries Policy the UK will be able to manage fish stocks and the ocean environment better.” Labour Leave, Leave Means Leave and Economists for Free Trade, September 2017

“We stand for a positive vision of a future Europe based on democracy, social justice and ecological sustainability, not the profit-making interests of a tiny elite. For these reasons we are committed to pressing for a vote to leave the EU.” Letter coordinated by Labour Leave, 17 February 2016

The reality

The EU has been an overwhelmingly positive force for the environment – strengthening legislation, preventing a race to the bottom and driving forward collective action on climate change. The framework of rules and regulations underpinning the Single Market is not, as some on the left have argued, a threat to the environment, but rather our best means of protecting it. Compounding the result of the referendum by choosing to leave the Single Market would be a mistake with terrible consequences for our ability to preserve the natural world.

It is this government, not the EU, that is a threat to the environment Few things are as incomprehensible as the resolute determination of climate deniers. No matter how often they are publicly caught cherry picking the evidence or distorting the truth their belief is unshakable. The rest of us are victims of a mass delusion at best or are left-wing conspirators at worst.

It is this last accusation that gives their game away. Climate denial is almost exclusively found on the political right. It is not hard to see why. If your core political project is smaller government, lower taxes, less regulation and markets ever freer from the bondage of government, you cannot have a problem with the climate. There is no more compelling reason for activist government than the urgency of stopping climate change destroying prosperity and security for everyone.

Those same political impulses drive Brexiteers: a Britain free from the bonds of EU legislation, able to do what it likes to drive taxes and regulations down and out from under the jurisdiction of a court that can make it obey the law is the goal. It is not a coincidence that Brexiteers and climate deniers fight together and use the same weapons. Illusions are not, however, a right-wing prerogative. There are those on the left in British politics who see the EU as a neo-liberal protector of corporate interests, always willing to put profits above people and the environment.

Brussels bureaucrats are too friendly to business. Our own Parliament can do a better job of protecting Britain’s environment. If you believe the last sentence you haven’t been paying attention to the sustained, if stealthy, Government attack on Britain’s environment. Starting with the abolition of the Royal Commission on Environmental Pollution when it came into office in 2010, Conservative-led Governments have consistently weakened the machinery protecting our environment.

Since then the independence of our environmental watchdogs, the Environment Agency and Natural England, has been seriously compromised. Access to the courts for judicial review has been restricted and made prohibitively expensive. The right of environmental bodies to lobby has been constrained and the rights of ordinary citizens under the planning system have been gutted.

Fortunately, Britain has many champions of the environment, from Buglife to the National Trust. Their combined membership is several times that of all the political parties in Britain combined. They probably know rather more about the will of the people than our political party leaders. They trust Brussels more than they do Whitehall and Westminster. They do so with good reason.

The Single Market encourages responsible environmental behaviour by business Air pollution kills some 40,000 people each year in Britain and costs the NHS as much as £15 billion a year.

Our air has exceeded legal limits since 2010. Environmental law firm Client Earth has successfully sued the Government twice. Each time the courts have required the Government to make our air legal. Each time the Government has evaded the courts’ requirements to act. Client Earth has now gone back to the courts for a third time to force the Government to obey the law.

Each time the Government has bowed to corporate pressure from the motor industry. Escaping from the European Court of Justice has been a crucial red line for the Brexiteers. This is because it has acted as a powerful force for ensuring that the UK Government complies with environmental laws. This is because the ECJ has, as a last resort, the power to impose sanctions for non-compliance. This can be very expensive, as the UK found out to its cost when a failure to implement the Nitrates Directive properly led to a crash spending programme in Northern Ireland of some £240 million.

This was to avoid the possible imposition of daily fines for noncompliance that could have cost even more. The UK Courts have no such ability to fine the British Government. Nor is there any likelihood that a future Government would be willing to allow them to impose fines or other sanctions.

The reality is that British membership of the EU has considerably strengthened our ability to insist on responsible environmental behaviour by businesses. Nowhere is this more clear than in 27 checking the activities of developers. As the effectiveness of our own planning laws has been systematically undermined by successive governments, the EU Habitats Directive and the Birds Directive have been strong constraints against rampant development on sensitive sites for nature.

The European Commission publishes a series of multi-annual environmental action programmes setting out its legislative agenda well in advance. It is certainly heavily lobbied on this agenda by corporations, but it is also lobbied by environmental and community organisations in a manner far more transparent than in Britain. The last time a British Government published a comprehensive environmental policy was in 1990.

A hard Brexit will pave the way for an assault on the environment We are now on a steepening slope towards a crash exit from the EU.

This will be a catastrophe for the British environment. If this happens it will leave Britain exposed to an economic hurricane. This will wash away all the warm words about the environment we have heard recently from Michael Gove.

As the need to fulfil the false promises he, and the other Leavers, made in the referendum grows the political imperative, over-riding everything else, will be expanding the economy. There will be a tsunami of deregulation. Everything corporate leaders ask for they will get.

Then there will be the much-vaunted free trade agreements. Without the bargaining power of the other 27 economies, Britain will be a deal taker not a deal maker. These days the so-called non-tariff barriers to trade are far more important than tariffs.

Another word for non-tariff trade barriers is environmental regulations. As we negotiate free trade agreements from a much weaker position it will be open season on our environment as foreign companies seek to compete in our markets by washing away environment, consumer and employment protections.

No-one could argue that the EU is a model of green perfection. It has not always succeeded in turning its high environmental ambition into the right outcomes. But it has provided a stable framework within which to make consistent progress towards a better environment. As Britain encounters the harsh economic winds of a post-Brexit world I fear we will often have occasion to recall the words of Joni Mitchell’s early eco-song Yellow Taxi, ‘You don’t know what you’ve got ‘til its gone.’

Tom Burke

This piece was first published by Open Britain the full publication ‘Busting the Lexit Myths’ can be found here https://d3n8a8pro7vhmx.cloudfront.net/in/pages/14074/attachments/original/1517301904/lexit_paper_finalPRINT_noembargo.pdf?1517301904

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Could we be about to see a wave of public money for new nuclear?

I am quoted in this piece by Greenpeace “Unearthed” about the public financing of new nuclear. Originally published here https://unearthed.greenpeace.org/2018/01/22/wylfa-nuclear-power-japan-uk/

By Joe Sandler Clarke

A reported public financing deal between the UK and Japanese governments for a new nuclear plant in Anglesey, Wales, could set the UK government up to provide state-support for a raft of nuclear projects hit by financial difficulties.

The FT reported on Tuesday that letters had been exchanged between Tokyo and London expressing support for the Wylfa project – which will be built by the Hitachi-owned consortium Horizon.

The FT story followed up a series of reports in Japan suggesting that the Japanese and UK government’s had agreed $20bn in loans to acquire a stake in Horizon with the help of financial institutions – including an equity stake for the UK government.

Any move to put public money into new nuclear would represent a significant policy shift from the Conservative government; exposing taxpayers to significant risk while potentially lowering the cost of building a new power station.

The news comes as the UK government faces accusations of refusing to intervene over the collapse of Carillion and the East Coast Franchise.

Both the Japanese government and the Treasury refused to confirm or deny speculation when approached by Unearthed.

A spokesperson for the Japanese government told us: “We are aware that this has been reported, but our understanding is that at present there has been no specific decision made.”

When asked about the numerous media reports on public financing a Treasury spokesperson said: “the government is engaged in constructive discussions with a number of new nuclear developers. These discussions are commercially sensitive and it would be inappropriate to share at this time.”

Horizon is amongst the closest of the UK’s much-delayed nuclear programme to an investment decision – but there is also speculation around other projects hit by financial difficulties.

There are also reports in Korean media that the Treasury is involved in project finance for the troubled Moorside nuclear plant – including another possible equity stake.

Troubled projects

It was announced in December that state-owned South Korean firm Kepco is to take over construction of the power station in Cumbria.

Kepco was named as the preferred bidder for the NuGeneration consortium running the project, after its owner Toshiba was forced to sell due to financial problems, including the bankruptcy of its US nuclear subsidiary.

According to an article published in Korea last year, the UK Infrastructure and Project Authority, a branch of the Treasury, worked on a financing structure with the Korean government, with Kepco at its centre.

The website Business Korea stated in October that the Korean government was working with the Infrastructure and Project Authority on a financing plan alongside US and Japanese institutions to enable the company to buy a stake in Moorside.

Before Christmas, the FT reported that the head of Horizon, the Hitachi-owned consortium which hopes to build the plant at Wylfa, Duncan Hawthorne, felt the project needed government backing to get off the ground.

Hawthorne added that Treasury officials were “fully engaged” with Horizon and committed to ensuring that the power station was built at a lower cost than Hinkley Point C.

Antony Froggatt, a senior research fellow in energy at Chatham House, told Unearthed that the Conservatives were shifting their policy because new nuclear plants are unlikely to come online without significant state backing.

“What we’re seeing, and this has been the case for the last 5-10 years, is that the Conservatives have gradually been salami slicing away at their pledge to allow the construction of new nuclear, provided that they ‘receive no public subsidy’,” he said.

“There’s been a shift on this because nuclear can’t happen without significant government financial support.”

Peter McIntosh, acting national officer for energy at the Unite union, which has long pushed for public investment in new nuclear, told Unearthed that the reports of the Wylfa deal were welcome, but urged the state to go further. “Privatisation of the energy sector has failed and we would call upon the government to bring the sector back into public ownership,” he said.

Public money

The government has reaffirmed its commitment to building a fleet of new nuclear power stations in recent months, despite concerns over the cost and delivery.

But if it decides to back a nuclear project it may prove difficult for ministers to avoid offering the same public support to other similar schemes.

Alex Mosson, construction and engineering law specialist at Keystone Law, said it was unlikely that the government would be in legal trouble if it chose to invest in Wylfa and ignored other projects, but he said it could face political difficulties.

“In terms of the legality, the government more or less has free reign to do what it wants within the parameters of its investment requirements. But in terms of politics, it becomes very different, because these deals can be used as leverage. Legally, I couldn’t give a definitive answer, as I don’t know what the scheme is. But commenting on the industry itself, there will always be a circumstance where one party will try to use another party’s leverage to their benefit,” he said.

Ultimately, however, nuclear projects will depend on agreements to buy the power they produce – with new subsidies ruled out until 2025 in the Autumn budget.

“The only short-term option the government would have for giving public money to new nuclear would be to take an equity stake,” says Froggatt.

Doing so may still not be sufficient to make the projects happen, however.

Tom Burke, chairman and founding director of the environmental group E3G, suggested that there might be something else at play.

“The struggling nuclear industries of Japan, France and Korea are all looking to the UK to rescue them,” he argued.

“What they are getting from the government is warm words and long promises. The truth is that there is no room for additional nuclear in Britain’s rapidly modernising electricity supply system. Without power purchase agreements paid for by consumers none of these projects will go ahead however much they reduce their capital cost.”

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Tom Burke – E3G – One Planet Summit – Channel 4 News – 12 Dec 17

 

 

What’s going to make the difference in people’s lives, is what happens in the real economy. What we’ve seen is the financial community getting into this game because they have understood the level of risk if we don’t deal with climate change, and they are beginning to see massive opportunities if we actually get on with the job of dealing with it.

 

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SMALL BITE NO.3

 

 

 

 

 

 

 

 

 

On November 23rd, Financial Times Energy Editor, Andrew Ward, wrote, ‘energy consumers face paying £30bn above market prices for electricity for Hinkley over the 35-year life of the contract’. He was in error. The actual additional cost to consumers is £59bn.

In his defence, Mr Ward can fairly claim that he has accurately reported the figure given in the Public Accounts Committee’s devastating report on the Hinkley deal. The Committee wrote: ‘the Department estimates that top-up payments will cost consumers around £30 billion over the 35-year contract.’

Unfortunately, the Department’s estimate is also wrong.

The arithmetic is straightforward. The current wholesale cost of electricity is £42/MWh. EDF is guaranteed £109/MWh for Hinkley’s electricity. Consumers will pay the difference between the wholesale cost and the guarantee. That is £67.

Hinkley’s capacity is 3,200MW. No power station operates 100% of the time. Hinkley is expected to operate 90%. Consumers will therefore have to pay £67 x 3,200MW x 0.9 x 24hrs x 365days x 35yrs.

This comes to £59.2bn which is the additional amount that will actually be added to consumers’ bills.

Is this simply a basic error in simple maths by the Department? I suspect not. The £30bn amount is not what consumers will pay, it is the present value of what consumers will pay.

That is, it is the amount consumers will pay discounted back to today. However, the guarantee to EDF is index-linked. This means the cost to consumers goes up with inflation.

In other words, the number you discounted to get the £30bn figure will be inflated by the same amount. This gets you back to the actual £59bn. There is no reason in economic theory why you should discount an index-linked amount back to its present value. There is however a very clear political reason for replacing a £59bn bill to consumers with £30bn bill.

 

Tom Burke

November 23rd 2017

 

 

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China’s increased emissions – BBC World News Business Report – 15 Nov 17

 

 

I think what matters about the suggested increase in emissions this year, is whether it is a blip, or whether it is an actual change in the trajectory. The trajectory has been ahead of what is needed to get us on to the right path, to stay below 2 degrees. Because it is peaking now, rather than in 2020 when it needs to peak. So we will see whether it is a blip or not.

I think that what we saw when Trump pulled out of the climate agreement, the very same day, we saw Blackrock and State Street publicly vote against Exxon’s board, for not having done enough to assess climate risk. So I think on one side, the investment community is really beginning to get a sense of the risks, of the kinds of events that we have seen all through this year, and what they will do for business, and on the other side, we are seeing a massive increase in investment in renewables by opportunity seekers, people simply seeing that the world has made its mind up, and it is on its way to a low carbon economy, and they want a piece of the action.

What we have seen, very interestingly, in China, is that it has started to cut back on coal, it had massive plans for building coal fired power stations, it is cutting those back, it’s cutting its emissions. There was a drought this year, which is why I think that there is a bit of an increase, because they lost hydro power. But much more importantly it is, by far, the country that is investing the most in renewables, and looking to see that as a massive opportunity for exports going forward. What you are seeing in India, again a similar thing, you are seeing growth in coal use in India actually slow down quite a lot more than was expected, and again a big investment in renewables as they see that as the fastest way to get electricity to India’s poor.

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SMALL BITE NO.2

 

 

 

 

 

 

 

 

 

Matt Ridley is almost always wrong about the environment. His regular column in the Times is a mishmash of misinformation and malice. He dislikes environmentalists and hates their influence on public policy.

His criticism, in yesterday’s column, of Michael Gove’s proposed new ‘independent’ body to ensure a post-Brexit Government obeys its own laws is, however, partly right. As he says, such bodies already exist: Natural England; the Environment Agency and the Forestry Commission.

He is wrong to say they are up to the job. Their independence is a distant memory. Access to the courts for judicial review has been restricted. The right of environmental bodies to lobby has been constrained. The rights of ordinary citizens under the planning system gutted.

He then reprises his animus against ‘unelected’ environmentalists. This is particularly rich coming from an hereditary peer. Matt Ridley is, to give him his proper title, the 5th Viscount Ridley and an unelected member of the House of Lords.

Tom Burke

November 13th 2017

 

 

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SMALL BITE NO.1

 

 

 

 

 

 

 

 

 

In a speech in London, American Commerce Secretary, Wilbur Ross, last night accused the EU of limiting the ‘role of science in assessing risk’ in trade policy. He was warning the UK not to be like the EU when seeking to negotiate a post-Brexit trade agreement with the US.

Say ‘hello’ to chlorinated chicken. Whatever Liam Fox says now, the reality is that any post-Brexit trade deal with the US will put Britain’s environmental regulations and standards in danger.

There can be few more risible sights than an official from the Trump administration claiming to base current US policy on science. Make no mistake, some politicians and newspapers in Britain have already been infected by the same structural hypocrisy.

If Brexit does go ahead, there will be a domestic battle royal over a trade deal with the US that will be about a lot more than the technicalities of ‘sanitary and phytosanitary’ rules.

Tom Burke

November 6th 2017.

 

 

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There is a catastrophic gap between promises to cut carbon emissions and the action need to deliver those cuts – BBC World Service

 

 

There is a catastrophic gap between promises to cut carbon emissions and the actions need to deliver those cuts. That is the verdict today from the United Nations, a new UN Report says amounts pledged in the Paris Agreement amount to just a third of what is needed to avoid the worst impacts of climate change. It is calling on both governments and the private sector to do more to breech the gap.

“Catastrophic is the right word, if we don’t close that gap then it will be a catastrophe. It will be a catastrophe for everyone on the planet, and it will make it impossible for businesses of all kind to attract investors, or to find markets.”

“The problem is climate change, there isn’t anything going on that we didn’t anticipate. When Paris came out, it was well understood, that although it put us on the right road, it wasn’t going to take us far enough down the road and it wasn’t going to do it fast enough, and this report has confirmed that judgement. We’ve seen some of those flashing red lights coming up in other areas recently, we have seen it with extreme weather events, we have see it with the report that came out in the last few days about the impacts on health. We are starting to see that the climate is changing faster and more dramatically than we anticipated.”

“I think we have got to move out of coal extremely fast, and by and large the OECD countries are already doing that, China’s starting to do that, but there are quite a lot more proposals to build coal fried power stations in developing countries. Now actually that is probably not going to be the best ways economically to solve the problem you have in a lot of developing countries, which is large populations without access to electricity. What has now become clear, because the cost of renewables have gone down so fast, is that it is probably much better to invest in deploying renewables to get electricity particularly to rural populations. We have seen India shift it’s emphasis from talking about coal to talking about renewables. I think that needs to become more widely accepted around developing countries.”

“What we are seeing already is that renewables, basically solar and wind, are now beginning to compete even with gas, without subsidy, because the cost are coming down in many parts of the world really fast. I think that we are going to see is the same thing happening with vehicles because battery cost are coming down. Where I think we really have got to make much more progress is with buildings, and I think that the report is absolutely right to say that there an enormous amount of cost effective things that we can do to reduce the emissions from buildings. But the bit that people haven’t begun to focus on anything like enough, are the emissions from agriculture. We really need to do a lot more.”

“90 percent of businesses on the stock market don’t emit much, of any kind of emissions. Their emissions are not the problem. The emissions that are the problem are those that come from the fossil fuel industries, and their primary customers, the power industry, the motor industry. In effect, what is happening to the bulk of businesses, if we don’t deal with this, is that the fossil fuel industries are eating their lunch. Because the non-fossil fuel industries, the bulk of the stock exchange, don’t suffer from a successful climate policy. Where as if you constrain the use of carbon and therefore solve the climate problem, you do hit the oil and gas industries, you hit the motor industry, and you hit the very energy intensive industries. But that is a very small part of the stock exchange. Most businesses have a lots to gain from successful policy that closes that gap, and much to lose if we don’t close it.”

“Fossil fuel businesses need to get out of fossil fuels fast, what companies like the Shell’s the Exxon’s the BP’s need to do is to join in the energy transition a lot more aggressively than they are doing. The non-fossil fuel businesses, need to get government to act much more quickly. Because if they don’t get government to act much more quickly, because if they don’t put pressure on government, they will find that the gap goes on, we get catastrophic climate change, and their business gets hurt.”

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ON THE BREAKING OF ENVIRONMENTAL PROMISES

 

 

There are a great many champions of the environment in Britain. Between them, our environmental bodies have several times the membership of all the political parties in Britain combined. They probably know rather more about the will of the people than the political leaders who somehow managed not to mention the environment at all in making their case, either way, on Brexit.

Brexit will have more immediate impact on our ability to manage the growing stresses on the environment than any other single political development of the past 50 years. Environmental problems pose particular challenges for policy makers. Many of the most serious problems are geographically blind. They pay no attention to political borders or legal jurisdictions.

Consider the poor air quality in London, which is undoubtedly a product of the failure of our own government to enforce the law here. But there are days when, even if the law were fully enforced, pollution blown across the Channel from France, Holland and Belgium damages the health of Londoners.

We may well regain control of our traditional fisheries as we leave the EU. We will not however, be able to prevent climate change, as it warms our waters, from driving those fish back out of our control.

Britain’s membership of the European Union has been an immense benefit to the health of the British public and to its environment. This is so, not the least, because it has created a whole new route by which the will of the British people on the environment could find effective expression.

This Government has made, and repeated, a clear promise to be the first ever to leave a better environment to its successors than it inherited. This is a big promise. There can be no doubting its environmental ambition.

Whether it can meet its ambition and fulfil this promise will largely be determined by how well it manages the environmental aspects of Brexit. This means getting the Withdrawal Bill right. The transposition of current EU law into domestic UK law must not leave the regulatory and institutional frameworks for protecting Britain’s environment weaker than they are today.

In the longer term, whatever future arrangements with the EU and other trading partners are finally agreed must offer not just a better level of environmental protection they must also offer similar levels of regulatory stability and cost. Otherwise the promise will be broken.

With this is mind, it is worth looking at some of the ways in which our membership of the EU currently supports the Government’s environmental ambition. It offers a set of clear principles for the development and interpretation of environmental law. It offers regular environmental action programmes that set a forward-looking agenda for the development of policy. This makes it possible for businesses and civil society organisations to plan strategically for their participation in policy development.

It offers a mechanism for the enforcement of EU legislation, and therefore the achievement of its environmental goals. It is a mechanism that backs the power of persuasion with the prospect of sanctions.

It offers stronger influence on the development of global regimes to manage the environment than would be available to any one of the 28 present members acting on their own. The size of the EU market is such, and the rewards of access to it so large, that its environmental legislation on matters such as chemicals, shapes the development of policy in other parts of the world.

What will be different after we leave? There is no place in British policy practise for the writing into legislation of principles such as the ‘polluter pays’ principle or the precautionary principle. This weakens the strategic guidance to policy makers and judges as to the tests that should be applied in policy formation or implementation.

There is no equivalent in British environmental policy making of the series of environmental action programmes produced by the Commission over the past four decades. The publication of ‘Our Common Inheritance in 1990’ was Britain’s first comprehensive statement of policy on the environment to offer guidance to business and civil society over the longer-term development of environmental policy. In the 27 years since then there has been no further publication of a framework for the future development on environmental policy in the UK.

What we have seen instead is a succession of Governments whose attention to environmental policy has been intermittent. On occasion, there have been outbursts of arbitrary and rapid policy change destructive of both business and civil society confidence. This loss of regulatory stability will be accompanied by an increase in the cost of regulation as the UK mirrors domestically the work of European agencies whose costs are currently shared by 27 other countries.

The European Court of Justice, has acted as a powerful incentive on member states to comply with the requirements of European environmental law. This has largely worked, flexibly and efficiently, by encouraging negotiated settlements of disputes. An approach to compliance that we in the UK have long favoured.

However, the ability of the Court, as a last resort, to impose sanctions has been a powerful incentive to settle. The UK found this out to its cost when a failure to implement the Nitrates Directive properly led to a crash spending programme in Northern Ireland of some £240 million to avoid the possible imposition of fines that could have cost even more. The UK Courts have no such ability to fine the British Government.

These changes set a clear bar for the Government’s long delayed 25 Year Environment Plan to clear if Brexit is not to lead to the Government breaking its environmental promise. The plan will first have to appear. It will then need to show how the Government will transpose not only the text of European legislation, but also its functionality. Without the functionality the text can make little difference to outcomes. It is environmental outcomes that matter to the people of Britain, not environmental words, no matter how warm.

Tom Burke
London
October 16th 2017

 

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The Environmental politics of Brexit – Speech at UK Environmental Law Association Conference

 

 

 

 

 

 

 

The Environmental politics of Brexit – Speech by Tom Burke

UK Environmental Law Association Conference
October 13th, 2017
39 Essex Chambers, London

Let me begin by thanking you for inviting me to speak today. This conference connects two issues that, more than most, will shape the lives of everyone in Britain this century, especially if they are under forty: Brexit and the Environment.

And, it connects them in a particularly important way, through an examination of both the role of, and the rule of, law.

In this context I would like to recognise the importance of the distinctive contribution that UKELA is making to informing the public conversation on what Brexit means for the environment.

We live in a time of declining public confidence in institutions, falling financial and analytic capacity in government departments and a continuing coarsening of public discourse. We have a Secretary of State for the Environment who believes we have ‘had enough of experts.’

In such times the value of dispassionate, disinterested and informed voices grows markedly. I applaud UKELA’s initiative in adding such a voice to the debate on the implications of Brexit for the environment. It will mean that whatever the outcome of the torturous politics of Brexit the environment will better protected than it would otherwise have been.

There are a great many champions of the environment in Britain. Our environmental bodies have, between them, several times the membership of all the political parties in Britain combined.

I think it is possible that they know rather more about the will of the people than the political leaders who somehow managed not to mention the environment at all in making their case, either way, in the debate on Brexit.

Those organisations are gearing up to make sure that as the Withdrawal Bill makes its way through Parliament that omission is corrected. UKELA’s initiative provides authoritative advice to all the various parties, including the government, with a stake in this debate.

It does not need to, and nor should it, campaign itself. But all of those who are campaigning, from whatever position, will do so more effectively with the help of the series of reports that UKELA is issuing.

I must admit to having been a bit disconcerted when Richard Macrory, who invited me to speak, added that what he wanted me to do is to talk about the politics of Brexit, the environment and the law.

As I was searching for some inspiration about how to tackle such a challenging task the old, and probably apocryphal, tale of the Irishman asked for directions by some tourists came to mind, ‘Ah, says himself, if I wanted to go there, sure I wouldn’t start from here.’

I suppose, in the context of Brexit, this advice would be recast as: ‘If I wanted to go anywhere I wouldn’t start from here.’ If I wanted to improve the environment I certainly wouldn’t start from here.

It would not be an exaggeration to say that Brexit will have more immediate impact on our ability to manage the growing stresses on the environment than any other single political development in the past 50 years.

I say this because the nature of environmental problems poses a particular challenge for policy and law. Many of the most serious problems are geographically blind. They pay no attention to political borders or legal jurisdictions.

The poor air quality in London is undoubtedly a product of the failure of our own government to enforce the law here. But there are days when even if the law were fully enforced pollution blown across the Channel from France, Holland and Belgium would damage the health of Londoners.

We may well regain control of our geographically defined fisheries as we leave the EU. We will not however, be able to prevent climate change, as it warms our waters, from driving those fish back out of our control. This will raise some fascinating and complex jurisdictional issues about the beneficial ownership of particular populations of wild fauna but would probably not help fishermen much.

Seeking, either to ameliorate environmental damage, or to obtain redress for it, across political boundaries is both difficult and expensive. This is so for nations and, even more so, for communities or individuals.

It is simply an inescapable feature of the world we live in today that successfully, and affordably, tackling environmental problems, in common with other contemporary scourges such as the trafficking of drugs and people, mass migration, organised crime or the spread of pathogens, requires a pooling of sovereignty.

The European Union is the world largest and most successful experiment in pooling sovereignty. Britain’s membership of the Union has been an immense benefit to the health of the British public and to its environment.

This is so not the least because it has created a whole new route by which the will of the British people on the environment could find effective expression.

As a bird watcher, I for one, will regret the loss of my government’s ability to continue protecting Britain’s migratory species from the depredations of Southern European hunters.

The environment has become so pervasive an issue in public and political discourse these days that it is easy to forget how recently this happened.

When I joined a local Friends of the Earth group in 1970 there was no Department of the Environment. There was virtually no domestic environmental legislation and even less international legislation. Such institutions as we had to protect the environment were fragmentary and weak.

One way of characterising what has happened over the last forty odd years is as a sustained endeavour, in which I have been a keen participant, to extend the rule of law over the previously uncolonised frontier of the environment.

It has had its successes. There are now some thirty major British statutes governing our environment.

We are party to a similar number of major international treaties on environmental matters and, of course, subject to a large body of European environmental legislation which Britain has played a significant, if not widely recognised, role in shaping.

There is now a government department with a clear mandate to protect the environment. We have two strong agencies in the Environment Agency and Natural England, which have the powers, if not always the resources and independence, to be effective guardians of the environment.

We have a Government that has made, and repeated, a clear promise to be the first to leave a better environment to its successors than it inherited. This is a big promise. There can be no doubting the Government’s environmental ambition.

Whether it can meet its ambition and fulfil this promise will largely be determined by how well it manages the environmental aspects of Brexit.

Immediately, this means getting the Withdrawal Bill right. So, the transposition of current EU law into domestic UK law must not leave the regulatory and institutional frameworks for protecting Britain’s environment weaker than they are today.

In the longer term, whatever future arrangements with the EU and other trading partners are finally agreed must offer not just a better level of environmental protection – if the promise it to be kept – they must also offer similar levels of regulatory stability and cost.

With this is mind, it is worth looking at some of the ways in which our membership of the EU currently supports the Government’s environmental ambition.

It offers a set of clear principles for the development and interpretation of environmental law. These can be, and are, tested judicially. This helps to build consistency across the different fields of environmental policy and law.

It offers regular environmental action programmes that set a forward-looking agenda for the development of policy. This makes it possible for businesses and civil society organisations to plan strategically for their participation in policy development.

This also offers a clear sense of the direction of travel for policy development which allows potentially affected parties the time and confidence to invest in innovative approaches to environmental solutions.

It offers a testable mechanism for the enforcement of EU legislation, and therefore the achievement of its environmental goals. It is a mechanism that backs the power of persuasion with the prospect of sanctions.

It offers stronger influence on the development of global regimes to manage the environment than would be available to any one of the 28 present members acting on their own.

The size of the EU market is such, and the rewards of access to it so large, that its environmental legislation on matters such as chemicals, for example, shapes the development of policy in other parts of the world.

This not only brings considerable benefits to the environment it also reduces the costs of compliance to business by reducing the costs of complying in different policy regimes.

It is not, of course, a regime without its problems. There are certainly things that could be better. Legislation takes a long time, sometimes too long, to develop. It can be inflexible in the face of changes in knowledge or technology.

Let’s assume, however that the Withdrawal Bill succeeds in its goal of transposing the text of the seventy percent or so of EU environmental law directly into UK successfully. Let’s also assume that it can fill the gaps for the other thirty percent. As we have heard, this may not be as straightforward as originally imagined but let’s start with the best possible case.

Even so, there will be some important changes which could make it more difficult for the Government to deliver on its better environment promise.

There is no formal place in British policy practise for the writing into legislation of principles such as the polluter pays principle or the precautionary principle. This weakens the strategic guidance to policy makers and judges as to the tests that should be applied in policy formation or implementation.

There is no equivalent in British environmental policy making practise of the series of environmental action programmes produced by the Commission over the past four decades.

The publication of ‘Our Common Inheritance in 1990 was the Britain’s first comprehensive statement of policy on the environment to offer guidance to business and civil society by a forward look at the longer-term development of environmental law.

In the 27 years since then there has been no further publication of a framework for the future development on environmental policy and law in the UK.

What we have seen instead is a succession of Government’s whose attention to environmental policy has been intermittent. On occasion, there have been outbursts of arbitrary and rapid policy change destructive of both business and civil society confidence.

The loss of regulatory stability will be accompanied by an increase in the cost of regulation. The UK will have to mirror a number of European agencies whose costs are currently shared by 27 other countries.

For example, membership of Euratom meant that it handled the nuclear safety and safeguards regime under which Britain’s nuclear facilities are operated. The Office of Nuclear Regulation will now have to take on the additional staff and equipment to discharge the functions currently carried out by Euratom.

Both the Environment Agency and Natural England will have to take on additional regulatory burdens without any guarantee that they will be absolved from the current and future rounds of spending cuts.

As we have seen, the European Court of Justice, has acted as a powerful incentive on member states to comply with the requirements of European environmental law.

This has largely worked, flexibly and efficiently, by encouraging negotiated settlements of disputes. An approach to compliance that we in the UK have long favoured.

However, the ability of the Court, as a last resort, to impose sanctions has been a powerful incentive to settle. The UK found this out to its cost when a failure to properly transpose the Water Frameworks Directive properly led to the imposition of fines costing hundreds of millions of pounds.

The UK Courts have no such ability. And, as we have seen in the recent cases on air quality, have considerable difficulty getting the UK Government to comply with the law, even while the prospect of an eventual sanction by the ECJ remains.

These changes set a clear bar for the Government’s forthcoming 25 Year Environment Plan to clear if Brexit is not to lead a decline, let alone, an improvement in Britain’s environment.

It will need to show how the Government will transpose not only the text of European legislation, but also its functionality. Without the functionality the text can make little difference to outcomes. It is environmental outcomes that matter to the people of Britain, not environmental words, not matter how warm.

There is, of course, a wider political context into which these environmental challenges must fit. I am finding it as difficult as I suspect most people, including the Cabinet, are to see through the fog of possibilities for the end state of Brexit.

Making the best sense I can of the Prime Minister’s Florence speech and subsequent statements, there are three broad possible outcomes from this process. We crash out into a so-called ‘hard’ Brexit. We could, possibly, change our mind and decide to stay. Or, we could find whatever, other than the Atlantic Ocean, lies between Canada and Norway.

Of the three options, I am in no doubt which one would be best for the environment: changing our mind. It is also the one that is least likely for the moment.

I am also in no doubt which would be worst. A ‘hard’ Brexit would leave Britain exposed to an economic hurricane. The pressure to grow the economy at any cost would wash away all the warm words and environmental ambition we have been promised in tsunami of deregulation.

That leaves us with the option of the creativity to which the Prime Minister has referred on several occasions. But since, like everyone else, I have no idea what might lie between Canada and Norway I am hard put to say anything about what this option means for the environment – other than it would be better than a hard Brexit, especially if there is a transition period in which the current EU legislation and other instruments would remain in place.

So, which will we choose? Immediately after the election, Michael Heseltine was asked by a BBC interviewer how long he thought the Prime Minister would last. In his magisterial way, he looked over at her and said, ‘You’re asking the wrong question. What you must understand is that events are in charge now, not people.’

I think the same is absolutely true about the wider politics of Brexit. We seem to be slipping inexorably down an ever-steeper slope towards a hard Brexit that no-one but a tiny number of highly motivated obsessives wants and which will be very bad for our ability to protect the environment.

What this suggest to me is that it will not be enough for those of us in the environmental community to focus effort on our particular policy priorities in the Bill. We will also have to think how we can best intervene in the wider politics of Brexit. Can we play a part in breaking and, if possible, reversing, the headlong slide to an outcome that will not only defeat the Government’s environmental ambition but also our own best efforts to leave our children a better environment than we inherited.

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