On 23rd June 2016 UK citizens will vote to decide whether the UK stays within the European Union (EU). It seems timely to look at just what impact exiting the EU may have on nature in the UK. This isn’t intended to be a position statement, more a review of past, current, and potential future positions on nature protection and environmental law, some of the potential indirect effects of a Brexit on wildlife (including changes to farming), and ultimately the possibly impacts of the various possibilities confronting us.

The UK has long held a substandard reputation for wildlife conservation. In the 1970s and 80s, the country was known as ‘the Dirty Man of Europe’ for its poor record of environmental regulation, particularly relating to high levels of air pollution and polluted seas which were effectively open sewers, as a consequence of the ‘dilute and disperse’ waste policy. Things changed with the UKs membership of the EU, which saw the introduction of increased environmental regulation and wildlife protection, in fact the majority of the UK’s current environmental laws and policies derive from Europe. The forthcoming referendum could see this membership revoked and a large-scale change in our environmental protection and law.

The UK has tidied up its reputation as a polluting nation since joining the EU

The UK has tidied up its reputation as a polluting nation since joining the EU

So what did joining the EU do for us?

Prior to joining the EU the UKs approach to an increasingly polluted countryside was reactionary and policy driven, resulting in low environmental targets. The tide turned with EU membership, and those more progressive member states helped forge a new, brighter future for the environment by introducing European-wide laws enforcing species and habitat protection, and also prompting the creation of the regulatory agencies which would oversee and implement the newly created legislation. Change was swift and positive, resulting in considerably cleaner air and coastal waters, and the introduction of Natura 2000 sites in conjunction with the Habitats and Birds Directives which provide safeguards for species and habitats.

Whilst much of the EU environmental law derives from the directives(eg Birds and Habitats Directives), some does not automatically apply to member states, and in these instances EU law is implemented through national legislation. This is the case within the UK where our constituent parts have transposed the EU directives relating to nature and the environment into domestic law. It should be noted that in some cases the domestic law went beyond what was required by EU directives.

Key legislative policies and directives introduced by Europe include (information per: Brexit: Implications of the UK leaving the European Union – Nature Conservation):

  • Birds Directive transposed by means of the Habitats Regulations and Part I Wildlife Countryside Act 1981 as amended, the Nature Conservation (Scotland) Act 2004 and the Wildlife (Northern Ireland) Order 1985 as amended
  • Habitats Directive transposed by means of Habitats Regulations.
  • Environmental Impact Directive
  • Strategic Environmental Directive
  • Environmental Information Directive which are transposed into national legislation by means of Regulations

Overlapping complementary directives include:

  • Water Framework Directive
  • Marine Strategy Framework Directive
  • Environmental Liability Directive

Our domestic legislation adopts conservation designations applied by the EU including Special Areas of Conservation (SAC) and Special Protection Areas (SPA). Together these form a network of European protected areas known as Natura 2000 sites. In general, UK legislation does go beyond the minimum requirements set out in EU directives, and this in itself may suggest that an exit from the EU is unlikely to reduce the levels of protection afforded to wildlife.

We also need to bear in mind that some species are migratory and in order to suitably address their conservation status we need to ensure their protection across their entire migratory routes, not just within the confines of our own political borders, prime examples would include migratory birds (species such as Turtle Dove and Roseate Tern), migratory fish and marine mammals.

Changes in law may result is species such a migratory fish being at risk

Changes in law may result in species such a migratory fish being at risk

In, out, or a bit of both?

Leaving the EU completely is not the only option, there is a middle ground, and one which must be debated should the situation arise. If we leave the EU then we are open to join the European Economic Area (EEA) alongside countries such as Iceland and Norway. Within the EEA the UK would be bound by certain environmental regulations. There are, however, a number of policy areas to which the UK would not be bound. These specific directives include:

  • Birds,
  • Habitats,
  • Shellfish waters,
  • Fresh waters needing protections or improvement in order to support fish life

As most EU environmental law still applies to EEA states we would still be bound by the EIA Directive and the EU environmental regulatory regimes relating to air, chemicals and control of major accident hazards, waste, noise and water.

Both the birds and habitats directives have been exceptionally important in securing ecological protection and one can only wonder what the implications of joining the EEA would be on nature conservation in the UK given their exclusion. If we neglect these areas will we revert to our past state of pollution with suffering habitats and species? Will we develop our own directives? Could we see a shift in conservation thinking with positive outcomes? We should not ignore the fact that since joining the EU the UK had contributed greatly towards many initiatives and policies, not least with regard to climate change.

At the risk of over-complicating the situation, further options are available to us should we exit the EU, these include the Swiss model, which is based on bilateral treaties, a Customs Union based on the current Turkish model, and a further option would be to negotiate a Free Trade Agreement with the EU and trade with them on terms governed by the World Trade Organisation (WTO).

If the UK went down the WTO route, the UK would no longer be directly bound by any EU rules on environmental regulation. It would have to comply with international conventions such as RAMSAR (conservation of wetlands), the Aarhus Convention (on access to information, public participation and access to justice in environmental matters) and the Kyoto Protocol (on reduction of greenhouse gas emissions).

Should the UK decide to leave the EU entirely then, unfortunately, current evidence suggests that the environment will suffer. Despite our contributions to climate change science and policy, we are lagging behind with our renewable targets, are threatening to block an EU pesticides ban that would protect bees, and we have tried to weaken the EU energy efficiency directive. Whilst it would be nice to have faith in our government, their recent record of environmental neglect in favour of industry and business development seems likely to prevail, and no doubt at the expense of our ever diminishing countryside and its ecology.

With 421 million fewer birds in Europe now than there were 30 years ago, things clearly aren’t as good as they could be on a continental scale. But, would they have been better or worse without the formation of the EU, and how will things fare in the future if the UK were to leave the EU altogether?

What about our European protected sites, species, and other protected areas?

Sites of Special Scientific Interest (SSSIs) would be afforded a level of protection but it is unlikely to be as stringent as that afforded by the Habitats Directive. Terminology would also likely change from ‘European’ to ‘International’. This in turn would also lead to renegotiation between statutory nature conservation organisations and landowners in order to maintain these sites. European marine sites (SPAs and SACs) could be reclassified, hopefully with little impact on existing areas falling under the Marine and Coastal Access Act 2009.

Luckily, European protected species are listed within the Schedules to the Regulations and also within the relevant Schedules of the Wildlife and Countryside Act 1981 as amended (in Northern Ireland and Scotland they are only listed in the Regulations and this anomaly would need amending). Protection of these species should remain constant, however it could be weakened if there is the loss of the tests on no alternative and action not detrimental to the maintenance of the population(s) of species at favourable conservation status.

Would the conservation of species such as Dormouse suffer with an exit from the EY?

Would the conservation of species such as Dormouse suffer with an exit from the EU?

It’s not just about species and numbers, but environmental impact

The good news is that the EU’s Environmental Impact Assessment (EIA) Directive which sets out the requirements for carrying out EIAs for development projects has been transposed into domestic law. These regulations are largely free-standing, and would not necessarily be subject to extensive change in the event of a Brexit.

Currently we are looking at transposing the new amended EIA Directive into domestic law via domestic legislation. This has just come into force. The UK has until 16 May 2017 to bring in any necessary changes to its national EIA rules to comply with the new Directive. In order to leave the EU, the UK will have to give two years’ notice and it is likely that numerous interim transitional measures would have to be put in place during this time. Given that the new EIA Directive implementation date falls prior to June 2018, it might be that the UK would still be required to implement the new Directive into domestic law and if it did not, it may be possible for individuals to enforce the new Directive through the courts. It would be for the UKs constituent parts to decide whether they wish to amend domestic EIA legislation further in the event of a Brexit.

And what about the indirect impacts through changes in farming and fisheries?

Farming and environment organisations frequently clash over policies and law. British farmers currently receive on average a whopping 60% of their income from EU and environmental subsidies. The vast majority of this could be gone in the blink of an eye unless the British government guarantees to continue to support famers; an agreement that has, as of yet, not been forthcoming.

The majority of the subsidies come from the EU’s Common Agricultural Policy (CAP); its primary aim is to increase food production, frequently at the expense of environmental protection. It is even known to promote the destruction of valuable habitats to create worthless farmland, but conversely it can also pay farmers to protect such land. It seems possible that no UK government would be able to subsidise farming industries to the extent that the EU has under CAP. However, in a recent report the government recognised that “agriculture is strategic, even iconic, and that society has a special duty of care to farmers”. We would argue that it has more of a duty of care to the environment…

EU payments also promote intensive farming supporting upto 60% of UK farms

EU payments also promote intensive farming supporting up to 60% of UK farms

Farmers and fishermen certainly feel they should continue to receive similar fiscal assistance. In 2014 £12.3bn was paid into the EU budget and with CAP payments due to average £2.88bn a year between 2014-2020 there should, in theory, be plenty in the coffers. Back in 2013 subsidies were worth about €200 per hectare (£58 per acre) and this made up between 35-50% of the total gross income of farmers. Unbelievably, it is now thought that only the top 10% of farms could survive without subsidies! The reliance on EU farm payments is not evenly spread, with farms in Scotland and Wales three-times more reliant than those in England, in fact, just 12% of land in England qualifies for the EU’s Less Favoured Area subsidies in comparison to 78% in Wales and 84% in Scotland.

Trying to forecast the impacts of a Brexit are multi-dimensional. The European Commission estimates that land prices would fall 30% across the EU if CAP subsidies were abolished. This is likely to result in the closure of many farm businesses. Yet on the flip side, our exit from the EU is likely to cause the UK to go into recession. The weakening of the pound sees a more favourable export value of farm products which in turn leads to better business. The government may well cut green subsidies to the more affluent lowland farms in favour of supporting farming practices in upland Wales and Scotland. If this failed then many small-and medium-scale farms would likely decline, instead being taken over by large units, further industrialising the industry. It is, however, possible that we may adopt an increased rural subsidies system, similar to that operating in Norway and Switzerland. This could mean moving away from production payments to a more integrated system that combines farming with tourism, conservation and maintaining rural and village lifestyles; a more costly alternative, but one that could see significant benefits all round.

EU subsidies can support environmental enhancement in some agricultural areas

EU subsidies can support environmental enhancement in some agricultural areas

Interestingly the National Farmers Union (NFU) are yet to take sides on the Brexit debate on the basis that until the Prime Minister reveals his EU negotiation demands and clarifies what future policy will be, it is impossible, in their eyes, to make a useful judgment.

In a similar vein to farming, the fisheries industry will be exposed to comparable issues. The Common Fisheries Policy (CFP) has long been plagued by criticism relating to by-catch and quotas. Whether an exit from the EU would lead to a policy that regulated fishing activities and quotas any better through the British government is yet to be seen.

Conclusions

“ it is likely that a potential UK departure from the EU would leave the British environment in a more vulnerable and uncertain position than if it were to remain as a member of the EU.”

Never has the need for environmental protection been so great. With increasing demand from an ever consuming and expanding population for more resources, which continually pressurises species’, habitats and ecosystems, our attention must be focused on preserving what we have, reducing our impacts, and working with other nations to secure a sound environmental future. Nature does not fall within discrete political boundaries, and as we see on an increasingly regular basis we are confronted with ecological issues on a continental scale such as migratory bird flyways, over-fishing, and marine mammal conservation.

All the above outlined changes by either leaving the EU, or leaving the EU but remaining as part of the EEA, are likely to place a considerable financial and administrative burden on our government and its agencies, and will have practical implications as to the management and protection of natural habitats, fauna and flora. Would political uncertainty and large-scale change cause the environment to drop further down the agenda? Almost certainly, so even with the best intentions it is likely that an exit from the EU will herald tough times for nature conservation in the UK.

Furthermore, would the departure of the UK cause an already weakened EU to fully break-up, and if so what would the implications be for nature conservation on a continental scale? Would our exit actually further environmental protection within the EU? If so, is it worth sacrificing UK nature? Given the boundary-less state that many species operate in, some would almost certainly suffer as a result. Another potential chain reaction could be kick-started; if we opt out of the EU then it is possible that Scotland may call for another referendum. It is highly feasible that if this were the case that a ‘Yes’ vote would occur and Scotland would leave the UK. Scotland would most likely seek to enter the EU as rapidly as possible, therefore nature conservation in Scotland may well remain unaffected and possibly even enhanced in the event of a Brexit.

It seems inevitable that the departure of the UK from the EU would be a cause for concern when it comes to nature conservation, a position that our already fragile environment can ill-afford.

If you wish to read further on the subject then The Institute for European Environmental Policy, has produced a comprehensive document that outlines the potential costs and benefits to the environment of Brexit. You can read it here. It concludes:

In conclusion, it is likely that a potential UK departure from the EU would leave the British environment in a more vulnerable and uncertain position than if it were to remain as a member of the EU.”