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    NGOs analyse the EU-UK trade battle field

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    Environmental law group Client Earth has set out its demands for an overhaul of the UK International State Dispute Settlement (ISDS) mechanism for a future EU-UK trade deal. The current mechanism applied (in all EU trade agreements concluded post-2000) is described as the “most illegitimate dispute settlement mechanism in international law” (Professor Alessandra Arcuri), and is often used as a threat against regulation. Professor Arcuri and Friends of the Earth campaigner, Lora Verheecke, suggested that any form of EU-UK ISDS should take into account the need to provide better guarantees to communities’ rights, as well as a series of obligations and legal responsibilities for investors.

    Recording of “Brexit and the environment: What’s next” event
    Client Earth report on ISDS

    9 out of 40 trade continuity agreements signed by the UK

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    The UK signed a series of trade continuity agreements to ensure minimum trade disruption after Brexit day. However, it has only secured nine out of 40 trade agreements that the EU has with more than 70 countries and thus will obviously not be able to transfer all the trade deals in time. Covered by these agreements are countries including Switzerland, Norway, Israel, Chile and others. These agreements mostly follow the EU model, even though some might include modifications. The UK’s trade department has allegedly faced difficulties in replicate the EU’s treaty with Japan, as Tokyo is pushing for a better deal. 

    UK Trade department guidance
    BBC article
    Financial Times article

    Dynamic alignment – no silver bullet for a level playing field

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    Dynamic alignment is the term used to describe a process by which the UK would continue to follow the EU’s standards after exit, in order to avoid reductions of environmental, labour or other standards. It is important to maintain a level playing field in policy areas that progress regularly, such as chemicals, but it can prove to be difficult in practice.

    Professor Charlotte Burns suggested that the UK should take over a comprehensive set of environmental standards (if possible, the whole environmental acquis), including some form of future alignment. According to MEP Sirta Pietikäinen, this would raise the issue of enforcement which should be a pre-requisite in negotiations. Another difficulty discussed with dynamic alignment was the question of a democratic deficit. One way of avoiding this could be May’s proposal to allow UK Parliament a vote on any new developments in EU law, though is not at all clear how this could work in practical terms. The IEEP’s senior fellow David Baldock suggested that in any scenario, the level of alignment will have to be proportional to the future type of relationship: bilateral trade agreement, customs union or single market.

    Recording of “Brexit and the environment: What’s next” event

    Brexit delay: extra time to work out future relation but uncertainty will hit businesses

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    (9 and 11 April 2019) UK NGO CEO Craig Bennett, from Friends of the Earth, said he is “delighted that Brexit has not yet happened and that at the very least we will take longer to work out the future relationship”.

    He highlighted that decades of EU membership have led to high UK environmental standards. Their introduction was easier as a 28 Member State block, and it will be difficult for UK to match this progress on its own. He also pointed out the deficiencies in the method of copying across EU laws: that several elements are lost during the process, such as the schedules of the Habitat Directive. Further, the precautionary principle still does not feature in the UK’s post-Brexit legislation. He added that the UK’s Government promise of a “Green Brexit” would be broken if UK leaves the EU in the near future, as UK authorities do not have the measures in place to maintain, let alone to enhance environmental regulations and standards.

    In contrast, Chairman of the UK Federation of Small Businesses, Mike Cherry, pointed out that the level of political uncertainty is detrimental to small business, which will have to bear high costs. UK companies are stockpiling and postponing investments, in view of preparing for a no-deal Brexit.

    “Brexit and the environment: What’s next” event on 9 April 2019 organized by Friends of the Earth
    Mike Cherry on BBC world newsday 11 April 2019

    Are French customs prepared for Brexit?

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    The French Customs Union have been protesting since March at the Eurostar Paris Nord terminal and in other places in the country. They want to alert the Government to the lack of resources in carrying out current customs checks, let alone the additional ones that will be required once the UK becomes a third country post-Brexit.

    European Commissioner for Customs, Pierre Moscovici, insists on ensuring full application of EU rules after Brexit in order to protect EU consumers and the integrity of the internal market.

    Communication, Syndicat national des agents des douanes (SNAD)
    Press statement, European Commissioner for Economic and Financial Affairs, Taxation and Customs, Pierre Moscovici

    Wales starts consultation on post-Brexit Environment Bill

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    The Welsh government initiated a public consultation on the Environmental Bill due to fill the gaps of environmental principles and governance post-Brexit. This piece of legislation comes as part of a series of environmental legislation of this kind that must be adopted in the UK as a result of Brexit. Westminster has already conducted pre-legislative scrutiny, Scotland is currently holding a public consultation and Northern Ireland will be included in England’s draft Bill.

    The Welsh document put out to public consultation highlights that Wales is in a different starting position compared to the rest of the UK, in that it has already built a legislative framework based on environmental principles and bodies. The Well-being of Future Generations (Wales) Act ensures that a set of environmental principles guide the development and implementation of policies. Bodies responsible for supporting the delivery of environmental legislation have also been reformed.  

    Consultation documents
    BBC article

    Is the chemical market prepared for Brexit?

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    According to the European Chemicals Agency (ECHA), over 4,800 of an estimated total of 12,000 UK registrations have been transferred to the EU27 or are in the process of being transferred. The transfers have been accelerating rapidly with last week seeing a record of 1,800 transfers.

    Nevertheless, out of the 1,181 substances that hold a registration only in the UK, only 197 have so far been transferred to the EU27.If not transferred in time, i.e. before Brexit day, these substances are at risk of losing access to the internal market and to cause major supply chain disruptions
    ECHA advises companies to proceed to the transfer through the IT tool before Brexit takes effect (currently 13 April 2019, 00:00).

    ECHA’s communication

    Provisional plans are put in place for environmental protection post-Brexit

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    An interim secretariat has been established by the UK Government which will record breaches of environmental law until the Office for Environmental Protection (OEP) is ready. The OEP will not be functionable in time for Brexit. The interim secretariat is expected to comprise 16 servants and will allegedly function separately from DEFRA. Richard Macrory, lawyer and professor of environmental law, as well as president of UK Environmental Law Association, was appointed to lead the interim watchdog according to a UK media report.

    After Brexit the UK will itself hold responsibility for enforcing environmental legislation, which in the EU is one of the core mandates of the European Commission.

    ENDS Report article

    Significant number of chemicals’ registrations moving to the EU

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    The European Chemicals Agency (ECHA) reported this week that they are working on transferring 3,000 REACH registrations to the EU27. These transfers are a necessary step for UK companies to maintain access to the EU’s internal market. According to UK’s Chemical Industries Association, transfers will still continue, as the number of substances registered by UK companies is higher than originally assessed.

    ECHA announced that the transfer window will now stay open after 30 March, and will be “subject to further developments”. ECHA’s advice to chemical companies remains the same and will be adapted accordingly in the event of new developments.

    ECHA’s communication
    ECHA’s instructions for companies
    Chemical Watch article

    UK petrochemical firm INEOS requested exemptions from EU environmental standards

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    INEOS’ Director Tom Crotty wrote in October last year to the Secretary of State for Business, Energy and Industrial Strategy, threatening to shut down the petrochemical plant Seal Sands close to Middleborough, unless his company was awarded exemptions from the EU’s waste incineration and waste water emission standards.

    INEOS is the largest privately-owned company in the UK and also the largest petrochemical firm in the EU. A report by the UK Environment Agency showed the company accumulated 176 permit violations between 2014 and 2017; among them, 90 were related to water and air pollution and said to be “well over legal limits”.

    INEOS’ Director Crotty argued that the abovementioned pieces of EU legislation would require additional costs for technical adaptation of over €100m, that would not be economically viable as the manufacturing plant in Middlesbrough is not profitable. He therefore claimed the plant is doomed to close down, leaving around 2,350 people unemployed. In this context, he asked for the UK Government’s support to “defer compliance with EU’s regulations”.

    Labour MP, Mary Creagh, described the situation as regrettable, given that INEOS registered a profit of £2bn pounds last year. She also added “this could explain why INEOS chief, Sir Jim Ratcliffe, supports Brexit”.

    Unearthed, a Greenpeace UK journalism project, published the INEOS’ Director letter

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