Photographer: Christopher Furlong/Getty Images

`Brexit' May Allow EU to Tighten Pollution Rules -- Even in U.K.

  • Britain would be bound to Air Quality rules from within EEA
  • Fully independent U.K. would find it easier to extend Heathrow

Britain’s departure from the European Union may free up officials in Brussels to tighten air-pollution regulations everywhere in the region -- including in the U.K. because of a twist in the free-trade laws likely to remain in force.

The U.K. has worked to limit EU curbs on vehicle exhaust fumes in the form of nitrogen dioxide, saying it’s unable to meet 2010 rules until at least 2030. If British voters opt to quit the union in a referendum on June 23, one of the primary opponents to those restrictions would lose its seat in the debate where the rules are made.

Even outside the union, the U.K. would remain beholden to a number of environmental laws including the Air Quality Directive if it opted to remain in the European Economic Area free-trade zone, according to ClientEarth, a group of lawyers that successfully sued the government over its failure to cut pollution. The comments undercut the idea that Britain would escape red-tape made in Brussels if it departed the EU.

For the U.K., it would be “the worst of all worlds,” said James Thornton, chief executive of ClientEarth. “It would mean having to comply with air-quality laws which we then can’t influence. With a seat at the table on all EU laws, the U.K. has the power, hard and soft, to influence the direction of EU policy and find practical responses to the environmental problems we face.”

The dots represent air quality compared with EU targets at roadside monitoring stations.
The dots represent air quality compared with EU targets at roadside monitoring stations.
Source: European Environment Agency

EU water-quality laws would also apply to an independent U.K., though the nation would escape the Habitats and Birds Directives as well as the Common Fisheries Policy, according to the group. Any legislation to be proposed by the European Commission would require qualified-majority backing from member states and support from the European Parliament to enter into force.

With the referendum almost four months away and the result uncertain, there’s little discussion about how Britain would manage an exit from the union. Also unknown is whether the U.K. would want to -- or be able to -- remain in the EEA. That may take years of negotiation to clear up in the event of “Brexit.”

Countries such as Iceland, Norway and Lichtenstein that are outside the EU and inside the EEA must enforce the pollution rules even though they have little voice in shaping them in Brussels. Switzerland isn’t bound by the directive because its outside the EEA, despite having its own free trade deal.

Norway’s Deal

The European Commission offers EEA countries like Norway some “decision shaping” in the early stages of drafting a policy, said David Buchan, senior research fellow at the Oxford Institute for Energy Studies. This influence has diminished over time as more EU agencies were set up to advise on regulations, he said.

“If the U.K. joined the EEA, these directives would apply to the U.K. under the same conditions as Norway, which is perhaps a little bit of influence at the early stages but no final say in the decision making,” Buchan said.

‘Lost Opportunity’

It would be “a major lost opportunity” for the U.K. to lose its influence over EU environment laws, says Justine Thornton QC, a barrister specialized in environmental law. 

“The U.K. has traditionally played a central role in developing environmental standards at EU level,” Thornton said. “Whether we’ve been for what the European institutions want or against, we’ve been very centrally involved, and to lose that I think is of concern.”

Pollution is a growing concern in the U.K. after London breached EU limits for the whole of 2016 within the first three weeks of the year. Judges in the U.K.’s Supreme Court last year ordered ministers to reduce emissions as soon as possible, prompting the U.K. to draw up a plan for clean-air zones in five major cities.

“They are completely failing to satisfy the EU Directive at the moment, so the pressure is already on them,” Angus Walker, partner at law firm Bircham Dyson Bell, said in an interview.

Escaping Controls

The U.K. has adopted the EU Air Quality Directive into national law, which it could theoretically unpick if it left the bloc. It would require departing the EEA for ministers to have a fully free hand, Walker said.

“The government would no longer be bound to keep the standards up, and I can see them inevitably watering them down to compete with other countries economically,” said Walker.

Lifting the pollution limits would make it easier to promote dirty infrastructure projects, such as a new runway at London’s Heathrow Airport, which will exacerbate London’s air quality problem. Walker said the EU directive has the potential to halt Heathrow’s expansion. The issue already has energized anti-runway activists including London Mayor Boris Johnson, who is also a leading Brexit proponent.

A spokesman for the Department of Environment Food and Rural Affairs didn’t want to comment because the government supports the U.K. remaining in the EU and is reluctant to speculate on what would happen if it left.

“If we’re outside the European Union then yes we can determine our own policy priorities and emissions wouldn’t be an absolute requirement as it is now under the EU laws,” said Munir Hassan, partner at law firm CMS Cameron McKenna LLP in London. “It would be one among a number of competing priorities we’d look at when deciding what to do.”

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