Guest blog – In favour of the EU by Richard Wilson

Richard Wilson is an independent professional ecologist with more than 15 years experience. When in the field, he specialises in avian and invertebrate ecology, with a smattering of botanical surveying thrown in for good measure. His background as a consultant has led to a keen interest in EU and UK law in the context of nature conservation. He is a full member of the Chartered Institute of Ecology and Environmental Management and a Chartered Environmentalist through the Society for the Environment. He can be followed on Twitter (@ecology_digest) or via his blog.

 

I am writing this on a sunny spring day in mid-March. The first daffodils are out here in Leeds; dunnocks are singing in the garden; collared doves are building their flimsy nests. The ecology in my rather urban back garden is heralding a change. A change which is repeated every year. This year will also herald a change that is repeated every five years as a result of the Fixed Term Parliament Act 2011. But it will also mark a watershed moment; potentially a significant change, which if it came about, may not be repeated ever; almost certainly not for a very long time. It is a potential change that has been written about by Richard Wayre on his guest blog.

I should state from the outset that I am pro-Europe and for membership of the EU. However, I recognise that the EU needs reform; and it needs to listen to the electorate. This I agree with Richard Wayre. But I disagree that leaving the EU would be benign or beneficial to the UK on many levels. I want to rebut Richard Wayre’s assertions that the UK’s environmental legislation and policy would remain neutral should we leave the EU. In my view, it would be far from certain that this would be the case. I set out my arguments below.

The EU as a Political Institution
In Richard Wayre’s fourth paragraph (“First, and this is largely a matter…”), he states that “Economic prosperity will be the primary driver of decision-making…”. This is not so. The two principal treaties of the EU (Treaty on European Union (TEU) & Treaty on the Functioning of the European Union (TFEU)), which have been most recently amended by the Lisbon Treaty (in force from 2009) requires Member States take the Environment seriously. For example, Article 11 of the TFEU states:

Environmental protection requirements must be integrated into the definition and implementation of the Union’s policies and activities, in particular with a view to promoting sustainable development.

…and Article 191 states:

1. Union policy on the environment shall contribute to pursuit of the following objectives:
• preserving, protecting and improving the quality of the environment;
• protecting human health;
• prudent and rational utilisation of natural resources;
• promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change.
2. Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.
3. In preparing its policy on the environment, the Union shall take account of:
• available scientific and technical data;
• environmental conditions in the various regions of the Union;
• the potential benefits and costs of action or lack of action;
• the economic and social development of the Union as a whole and the balanced development of its regions.

So these two Articles, in my view, rebut claims that economic prosperity will be the primary driver. The TFEU and TEU (which in layman’s terms can be viewed as the EU’s constitution) would seem to prevent this from happening. Furthermore, as the Institute for European Environmental Policy (IEEP) has stated:

…sustainable development is now recognised as a specific policy goal of the EU, not only internally but also in its relations with third countries.

More information on the EU’s environmental integration policy can be read on IEEP’s website; e.g. here and Farmer (2012). Suffice as to say in this response, various legal mechanisms mandate the integration of EU environmental policy in to other areas, including fiscal policy.

EU Presidency
Richard Wayre makes mention of the environmental credentials of the new EU President of the European Commission, Jean-Claude Juncker (the Juncker Commission). Note there are actually two additional Presidential positions within the EU: European Council (Donald Tusk) and European Parliament (Martin Schulz). Whilst Juncker’s priorities may not be environmentally-leaning, as with all democratic institutions, there are checks and balances. As an example of this, see this item where Martin Schulz conveyed concerns to the Juncker Commission. Of course, any decisions or considerations have to work within the framework of the EU treaties (see above). Presidents come and go and the priorities (political and personal) follow them. Making a decision to leave the EU on the basis of the current administrations’ environmental credentials would seem to be a disproportionate reaction.

EU Environmental Legislation
This, and the following paragraphs, form the meat of my rebuttal. There is a lot of EU legislation relating to the environment that includes air quality, water quality (e.g. drinking & bathing), biodiversity, waste, noise, chemicals, pollution and resources. This legislation, which includes Regulations, Directives and Decisions require Member States to abide by them in one form or the other. According to this website, there are over 500. In Farmer (2012), I have readily found mention of 200; and according to Figure 1 in the Manual of European Environmental Policy (Farmer, 2012), just short of 120 items of legislation were adopted in 2001 alone; and in the last year with information available (2010); the number was 60. Whatever the number and whilst biodiversity will be one component, environmental legislation is clearly a significant body of work able to influence Member States’ attitudes to the environment.

Whilst Richard Wayre is correct in stating that different Member States can adopt different solutions, this is only true for Directives; and in this regard, the individual solution must reach the same result. In other words, the UK can choose to reach a destination (e.g. Favourable Conservation Status (FCS)) using different methods and techniques, but would have to demonstrate FCS has been achieved based on sound scientific evidence. A Regulation is a more precise instrument and requires Member States to follow it; i.e. there is no or little scope for interpretation. An example of environmental regulation in this instance is the EU Timber Regulations 2010 (EU Regulation 995/ 2010) which puts obligations on businesses who trade in timber and timber related products to avoid illegally felled wood. A more widely publicised Regulation is the Flight Delay Compensation Regulations 2004 (EU Regulation 261/ 2004).

Notwithstanding the above, as I understand EU law, the European Court of Justice (ECJ) is moving towards the doctrine of ‘direct effect’ in the context of implementing Directives. In other words, where a Member State has not fully, or accurately (sufficiently), transposed in to domestic law the requirements of the Directive (i.e. the ‘journey has stopped short’), those provisions not transposed will be deemed to have been. The implications on the UK’s, or devolved administrations’ natural heritage should we leave the EU can be seen in the context of ‘stopping short’; i.e. the protection currently in place through the ‘direct effect’ doctrine or EU Regulations (not to be confused with the UK’s statutory instrument (SI) Regulations) would not apply. So if domestic legislation is substandard to EU Directives, whilst we are in, the environment is protected (in theory!); if out, no such luck.

On the ground, whether or not obligations on business who trade in timber to avoid purchasing illegally felled material from rainforests would remain in place would be dependent on the domestic Government of the day. This is because this specific EU Regulation (like others and Directives) is enforced in the UK via the Timber and Timber Products (Placing on the Market) Regulations 2013 (SI 2013/ 2033); which is enforced under Section 2(2) of the European Communities Act 1972. This 1972 Act would be repealed if we left the EU (I assume) and all the SIs that come under it; including for example, the Conservation of Habitats and Species Regulations 2010 (see further commentary below) which protect bats, dormouse and ultimately places like Fineshade Wood.

This brings me to the argument that we would be OK if we left the EU because we have our own legislation, e.g. Wildlife and Countryside Act 1981. Firstly, it is not directly equivalent in legal terms with the Conservation of Habitats and Species Regulations 2010. Let me explain using two species; one only protected by the 1981 Act (water vole) and the second by the 2010 Regulations (dormouse).

Since 2008, the water vole has received full protection under Section 9 of the Wildlife and Countryside Act, 1981.

This legal protection makes it an offence to:
• intentionally kill, injure or take (capture) a water vole;
• possess or control a live or dead water vole, or any part of a water vole;
• intentionally or recklessly damage, destroy or obstruct access to any structure or place which water voles use for shelter or protection or disturb water voles while they are using such a place;
• sell, offer for sale or advertise for live or dead water voles.

Any activity for the purpose of development, maintenance or land management (e.g. housing estate, clearing ditches, dredging rivers) which would otherwise be an offence would require a derogation licence. However, you cannot get a derogation licence for water vole for these activities. Instead, the developer or land manager can rely on the defence of incidental result of a lawful operation and could not reasonably be avoided. So in other words, if a developer obtains planning permission and there are water voles on site, and can demonstrate through survey effort and a method statement that they have reasonably avoided water voles, then in the incidental event that water voles are killed or injured; or their burrows are destroyed or obstructed; then it is likely that they will not have committed an offence. There would be no legal requirement to maintain FCS or mitigation to enable this to happen.

Compare the above same scenario but for dormice.

Dormice are protected under Regulation 41 of the Conservation of Habitats and Species Regulations 2010; the essential elements make it an offence to:

• deliberately captures, injures or kills any wild animal of a European protected species;
• deliberately disturbs wild animals of any such species;
• deliberately takes or destroys the eggs of such an animal; or
• damages or destroys a breeding site or resting place of such an animal.

For the purposes of ‘disturb’, disturbance of animals includes in particular any disturbance which is likely to:
• impair their ability:
   o to survive, to breed or reproduce, or to rear or nurture their young, or
   o in the case of animals of a hibernating or migratory species, to hibernate or migrate; or
• to affect significantly the local distribution or abundance of the species to which they belong.

There is no defence of incidental result of a lawful operation; i.e. the offence is absolute for EPS. You can therefore get a derogation licence under the 2010 Regulations; but only if you can meet the ‘three tests’ set out in Regulation 53. You can see the arguments and reference to the the three tests in relation to dormouse in a real example from Mark Avery’s blog on Fineshade Wood, or in a subsequent paragraph of this Blog.

The message here is that dormice and other European Protected Species (EPS) receive a far greater protection under EU law (Habitats Directive in this case) than they would under the domestic ‘equivalent’ that Richard Wayre suggests is the case. In summary, there is a requirement for decision makers, such as local authority planning committees to ensure that EPS populations within their jurisdiction are maintained at healthy levels (or FCS in technical parlance). So where Richard Wayre states “It is often contended that the Wildlife and Countryside Act 1981…impose far greater protection than the EU Directives ultimately require; ‘gold-plating’ for want of a familiar expression…”, is, I am afraid, patently incorrect. Were we to leave the EU; unless the UK Government implemented its own version of the Conservation of Habitats and Species Regulations 2010, which mirrored the existing ones; species (and habitat) protection in the UK would be considerably weakened. The same can be said for site protection too; which I will address in response to the Lydd Airport example Richard Wayre presents in his blog.

There are other protections, more to do with process, that being within the EU affords nature conservation in the UK. In order, two examples are:

• R v Cornwall County Council ex parte Hardy & Gwennap Parish Council CO/4784/99 (the Cornwall Case).

The Cornwall Case involved a planning application to extend a large landfill site. Large developments such as this which can also include wind farms, housing developments, business parks etc, require what is known as an Environmental Impact Assessment (EIA). The outcome of the EIA is reported in an often large and bulky document the Environmental Statement (ES), which covers various subject areas (e.g. noise, visual impact (‘landscape’) and for our purposes, nature conservation). It is transposed in to domestic legislation by the Town and Country Planning (Environmental Impact Assessment) Regulations 2011.

The Cornwall Case came about because in granting permission, Cornwall County Council conditioned that bats (an EPS) could be surveyed after permission was granted. This was challenged and the Court quashed the permission. The reason given was that the Council could not possibly understand fully the implications on the bats nature conservation status in making their decision without recourse to survey data.

The Cornwall Case therefore set a precedent that before a planning application is granted which involved EPS and/ or requires an EIA, all relevant data is required. This has been extended to all levels of survey as a matter of standard practice.

If we left the EU, there is no domestic equivalent of EIA so the effects of development on protected sites (i.e. Sites of Special Scientific Interest) or protected species would be exposed to a great deal of uncertainty.

• R (on the application of Simon Woolley) v Cheshire East Borough Council CO/2820/2008 (the Woolley Case)

This case addressed how local planning authorities discharge their duty as set out in the 2010 Habitat and Species Regulations mentioned previously. Where a EPS is concerned, the decision maker needs to consider the three tests before granting permission (if it is a planning application).
Any plan or project that would likely have a significant effect on the FCS of an EPS is required to pass the ‘three tests’ set out in Article 6(4) of the Habitats Directive. The three tests are sequential and all three have to be met. The first two have to be met, before you consider the third.

They are:
• there must be no feasible alternative solutions to the plan or project;
• there must be imperative reasons of overriding public interest for the plan or project to proceed;
• Favourable conservation status is maintained.

Again, if we left the EU, there would be no mechanism in domestic law to ensure that protected species such as bats, dormice, great crested newts or water vole are protected in the same way as they are now.

I therefore finally, turn to an example cited by Richard Wayre – Lydd Airport. For those unfamiliar with Lydd Airport, it is a small airfield on the edge of Dungeness RSPB Reserve in Kent. The site is protected as a Special Area of Conservation under the EU’s Habitats Directive and a Special Protection Area under the EU’s Birds Directive. There are other designations too and there are protected species, including EPS. After an extensive planning process, the Secretary of State granted permission (see the BBC News article here) for the Airport to extend its runway to take larger aircraft.

In my view, I think there is scope for legal challenge to the ECJ, following the Sweetman Case. I wrote about this Case-law in July 2013 so I was somewhat surprised (in some senses) that permission was granted as the Sweetman case preceded the Lydd Airport decision. However, appealing to the ECJ is expensive and time consuming; and unless the ECJ issued a ‘stop order’ on the UK Government (as it can and has done), it may be that the Airport will proceed. However, note the third test in the bullet points above. In order to proceed, the Airport Authority will be required to undertake stringent practices to ensure the habitats and species FCS are maintained. If we were not part of the EU, or we left the EU, then these requirement would be significantly weakened or non-existent. The outcome may not have been what nature conservation organisations or individuals wanted; but at least being within the EU maximises the protection available through the process; and it still gives us the recourse to appeal to a higher Court than the UK.

Summary
This has been a long guest blog. I started it in sunshine; I am finishing it in torrential rain. Such is an English spring! However, I hope that I have convinced readers that remaining in the EU is a much better option than sitting outside of it.

For a broader overview covering more topics than just nature conservation, I would recommend reading this article, written by Dr Charlotte Burns.

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