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The Article 50 extension: Implications for environmental governance

In the early morning hours of 11 April, the European Council and the UK government agreed to extend Article 50 until 31 October, with a progress review in mid-June. This followed an earlier extension from 29 March. In this post, I will examine the implications of this decision for UK and EU environmental policy, building on Brexit & Environment’s research and earlier discussion on similar topics by Prof Charlie Burns.

No Deal delayed

The most immediate result of the October extension is to avoid an unplanned No-Deal Brexit on 12 April. This outcome is good news for environmental policy and governance in the UK.

Brexit & Environment’s research has consistently shown that a no-deal scenario – and specifically a chaotic, unplanned no deal – carries the greatest risks across a wide range of environmental policy sectors. This is especially true for sectors such as chemicals, where policy risks rise from ‘limited’ in a Norway scenario to ‘very high’ in a Chaotic No-Deal scenario. A No-Deal Brexit would also risk immediate negative environmental impacts, such as reduced air quality near border crossings and crises in animal welfare.

However, the Article 50 extension has not eliminated the possibility of no deal, which is still the default outcome of the withdrawal process in the absence of a Withdrawal Agreement or Article 50 revocation. Future extensions, if any, will need to be approved by the EU27, meaning that it is possible the UK will approach the no-deal cliff edge once again in late October.

The impacts of any no deal are tempered, in part, by strong suggestions from the EU that even in the event of such a scenario, negotiations on future trade agreements would not begin without the Irish backstop being put in place. On the other hand, this may make starting those trade negotiations more difficult if the UK government refuses those conditions.

Extended status quo in UK environmental governance

The European Council conclusions reiterate that the UK ‘will remain a Member State until the new withdrawal date, with full rights and obligations.’ The maintenance of the status quo is significant given that UK environmental policy is highly Europeanized. EU environmental law will continue to apply, the UK will have access to resources such as the databases of the European Environment Agency and the European Chemicals Agency, and it will continue to be subject to legal enforcement by the European Commission and the Court of Justice of the European Union under the infringement procedure.

This state of affairs is similar to what was set out in the Withdrawal Agreement under the transition period to December 2020 (and extendable to December 2022). Without changes to the Withdrawal Agreement, it has been widely assumed that the Article 50 extension will eat into the transition period, meaning that if UK leaves the EU on 31 October, the (un-extended) transition period will be cut from 18 months to 12 months. This would mean less time to negotiate the future UK-EU relationship, and would increase the prospects of the backstop coming into force.

The long goodbye: The UK in EU environmental policy making

The key difference between the Article 50 extension and the transition period is that the UK will remain a full member of the EU institutions (whereas under the Withdrawal Agreement it loses all voting rights on exit day). As part of the extension, the UK has committed to holding elections to the European Parliament. And although 31 October is before the new European Commission is constituted, the UK will, formally at least, be involved in the selection of the next Commission president.

The implications of the UK remaining in the EU institutions are unclear. If the UK leaves on or before 31 October, little policy making will occur in the gap caused by the EP elections and the new Commission.

However, prospects for a deal to pass the Withdrawal Agreement by October are uncertain. Theresa May is in talks with the Labour Party to come to a cross-party compromise. At this stage, however, May does not seem inclined to change her red lines and accept the Customs Union proposal put forward by Labour. If she does accept a Customs Union, she risks a rebellion from Brexit-supporting Conservatives in the European Research Group.

Therefore, a further Article 50 extension is possible past October.  The October extension includes UK commitments ‘to act in a constructive and responsible manner throughout the extension period in accordance with the duty of sincere cooperation,’ which would make the prospect of the UK deliberately causing chaos less likely (especially as it would negatively impact its negotiating position in future trade negotiations with the EU).

However, the UK would be participating, albeit with much reduced influence, in any environmental policy making that took place. The European Parliament’s Legislative Observatory currently lists a number of legislative files being led by the EP Committee on Environment, Public Health, and Food Safety, and a major reform of the Common Agricultural Policy is ongoing. Even if the UK has little influence in negotiations due to its imminent departure, its votes in the Council and the Parliament could still be important.

Looking ahead

In the long term, the future of UK environmental governance remains highly uncertain.

Serious discussion of Article 50 revocation and a 2nd, confirmatory referendum on any Brexit deal have put the possibility of the UK eventually remaining in the EU squarely back on the table.

At the same time, the risk of no deal has not receded. And, assuming that Brexit does happen, the eventual landing place of the UK-EU future relationship – be it Norway, Customs Union, or Canada – will remain undecided for the foreseeable future.

If the past three years have taught us anything, a lot can happen in that time. However, the October extension has pushed a key decision point a little farther down the road. As a result, we will need to wait, once again, for further clarity about the future of environmental governance in Europe.

About the author

Dr Brendan Moore is a Senior Research Associate at the Tyndall Centre for Climate Change Research, University of East Anglia, and the coordinator of the Brexit & Environment network.

Photograph courtesy of Kirk Fisher.

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