Viviane Gravey (Queen’s University Belfast)
Brexit watchers received an early Christmas present when UK and EU negotiators finally reached an agreement on 24 December 2020. 1246 pages to set a framework for future UK and EU trade and wider cooperation. In some areas, work is still very much in progress – for example both Fisheries and Energy provisions will only last for a few years (until June 2026) before they need to be renegotiated. In other areas, the negotiators decided not to pursue cooperation, irrespective of what the Political Declaration said: there is thus very little on foreign policy and defence in the agreement. Finally, in other areas, such as environment and social protection and the overall level playing field commitments, the agreement has received some rather mixed reviews. This post reviews what the UK-EU Trade and Cooperation Agreement (TCA) has to say about the environment. It argues that, in comparison with previous EU Trade Agreements it marks a clear improvement, but that the environment elements of the TCA are nevertheless unlikely to have a major impact on UK-EU environmental relations in the near future.
Whether the agreement is ambitious or not is first and foremost dependent on what we compare it to. The TCA is of course much less ambitious than EU membership was – both in terms of common rules, constraints on deregulation and governance mechanisms to keep every partner in line. But this was always going to be the case for any relationship outside of membership, even more so for a relationship driven on the UK side by a will to ‘take back control’, exercise regulatory autonomy and be out of the jurisdiction of common institutions. The TCA is of course not ambitious enough when we consider the ongoing climate and biodiversity emergencies. It sees (welcome) mentions of both parties’ commitments to carbon neutrality by 2050, shared environmental principles (environment policy integration, preventative action, precautionary principle, rectification of damage at the source, polluter pays principle), and an acknowledgment of cross-border impact (‘the Union and the United Kingdom share a common biosphere in respect of cross-border pollution’). Yet the agreement is principally about reiterating pre-existing commitments (which, on both sides, fall below of what is needed to actually tackle the twin environmental emergencies), not making new ones. Indeed, ‘taking back control’ is likely to make it more difficult for the UK to deliver on its climate objectives: carbon trading on the new small UK-only Emission Trading System risks being less efficient, and focus on avoiding Court of Justice oversight makes joining the UK ETS with the EU ETS unlikely.
However, it does mark a step change in EU trade policy. The TCA is much more ambitious on environmental matters than recent agreements such as CETA (Comprehensive Economic and Trade Agreement, between the EU and Canada). It is more ambitious when it comes to managing the risks of environmental policy divergence, due to the proximity of the UK and EU markets (and thus risks of environmental dumping). It includes a mechanism to ensure non-regression in environmental areas (not simply, as in CETA, a recognition that ‘it is inappropriate to encourage trade or investment by weakening or reducing the levels of protection afforded in their environmental law’). In case of disputes on non-regression, a weak governance mechanism (involving a panel of expert, and a long process) is available, and if one party does not conform to the panel of experts report, temporary remedies can be adopted. Non-regression is about current standards – in an area such as the environment where much more action is urgently needed, it is important to consider also new policy development. This is where the TCA is most innovative, with the addition of a ‘rebalancing mechanism’ which the UK Trade Policy Observatory calls ‘dynamic alignment in disguise’. This gives options for a party adopting new more ambitious environmental rules, and that is as a consequence experimenting ‘material impacts on trade or investment between the parties’ to adopt temporary measures to remedy the situation. While these two mechanisms go far beyond what is included in other EU trade agreements, green groups have repeatedly pointed out that the caveats in both mechanisms (impact on trade and investments, which are hard to prove; significant policy divergence which is a matter for interpretation) will make it difficult to use them in practice.
One area that has not received as much attention is the TCA ambition concerning fostering continued cooperation, building on deep pre-existing cooperation on environmental matters between the EU and the UK. As mentioned above, the TCA mentions the possibility to coordinate Emission Trading Systems and joint objectives on reaching carbon neutrality by 2050. More broadly, it discusses regulatory cooperation in depth, and notably the possibility to coordinate ‘in international fora’, pledging to ‘regularly and as appropriate exchange information’ on both implementation of existing Multilateral Environmental Agreements and ‘on-going negotiations’. The next Conference of Parties to the UN Climate Change Convention is to be held in Glasgow in November – it will offer a key test for these pledges to cooperate and coordinate after Brexit. The regulatory cooperation elements are welcome, used wisely they could be used by the UK side to provide another forum to be kept abreast of EU policy development and influence it. There will definitely be appetite for such cooperation in Scotland (which has pledged to keep pace with the EU) but whether there will be similar appetite in London remains to be seen.
To summarise, the TCA is more ambitious on the environment than previous trade agreements, but the usefulness in practice of both its non-regression and cooperation sections is very uncertain. Arguably, it will take months, if not years, for the impact of the TCA’s specific provisions to be felt on UK-EU environmental relation. For tests on what this future relation will look in practice, we should instead look to Belfast, Edinburgh and Glasgow. Belfast, where the Northern Ireland Executive and Assembly will have to keep pace with EU developments in areas covered by the protocol. We already have an example of such a text: the new regulation banning lead shot in wetlands, agreed under the EU’s chemical regime REACH. We can expect a number of additional rules to follow as the European Commission launches its ‘fit for 55’ review of the EU acquis to make it coherent with reducing greenhouse gases emissions by 55% by 2030. Edinburgh will matter too, since while Stormont has to keep pace with some EU rules, Holyrood wants a new process of voluntary alignment with EU rules. Finally, COP26, the next meeting of the parties of the UN Framework Convention on Climate Change will take place in Glasgow in November, presided over by the UK. Europe united led the High Ambition coalition in Paris in 2015 – can it do so again, EU and UK working together despite Brexit?
Viviane Gravey is Lecturer in Politics and International Relations, School of History, Anthropology, Philosophy and Politics, Queen’s University Belfast.