Stanley Johnson: Next year’s climate change conference should take its lead on carbon pricing from this Agreement

Stanley Johnson is an environmentalist, author, former Conservative MEP and parliamentary candidate.  His new novel, The Warming, will be published next year.

With fellow environmentalists Bill Oddie, Baroness Young and Laura Sandys, I was a founder-member of a campaigning group called Environmentalists for Europe. In February 2016, the Times published the following letter which we co-signed.

“Sir, Britain’s membership of the EU brings benefits to the environment that would be lost if we were to walk away from Europe. By being “in” we have improved our beaches, cleaned up the air we breathe, helped to preserve our nature and wildlife and set standards for animal welfare. That is why today we are launching Environmentalists for Europe. We know the EU isn’t perfect, but we do know that our country’s greatest resource — its environment — is better protected and better preserved for future generations when we remain an active, full partner within Europe.”

Well, as we all know, the Remainers lost. I, for one, totally accepted the verdict of the June 2016 Referendum, confirmed in later elections.

That said, I couldn’t help wondering, as I down with my laptop on Boxing Day to study the text of the EU-UK Trade and Cooperation Agreement, how the environment – nature, wildlife, forests, marine pollution, climate change and so on: issues still very close to my heart – had fared during the course of the intense and protracted negotiations.

Chapter Seven deals with Climate and the Environment and Chapter Eight with ‘other instruments for trade and sustainable development’. Under other circumstances, these two Chapters, and their associated legally-binding Articles, are important and substantial enough to have formed a stand-alone EU-UK Environment, Trade and Sustainable Development Treaty.

Take the issue of carbon taxes, for example, where some path-breaking language was agreed.

Article 7.3 on “Carbon pricing” provides that –

“1. Each Party shall have in place an effective system of carbon pricing as of 1 January 2021.

2. Each system shall cover greenhouse gas emissions from electricity generation, heat generation, industry and aviation.

3. The effectiveness of the Parties’ respective carbon pricing systems shall uphold the level of protection provided for by Article 7.2 [Non-regression from levels of protection]

4. By way of derogation from paragraph 2, aviation shall be included within two years at the latest, if not included already. The scope of the Union system of carbon pricing shall cover departing flights from the European Economic Area to the United Kingdom.

5. Each Party shall maintain their system of carbon pricing insofar as it is an effective tool for each Party in the fight against climate change and shall in any event uphold the level of protection provided for by Article 7.2 [Non-regression from levels of protection].”

The Agreement recognition – as a matter of international law – of the part to be played by carbon pricing or carbon taxes in the battle against climate change is, in my view, a tremendously important move forward in the current debate.

I would like to see the Conference of the Parties to the UN Climate Change Convention (COP 26) to be held in Glasgow in November 2021 with the UK in the Chair, adopt a conference resolution on carbon pricing or carbon taxes, based on the language of the Agreement, as cited above.

COP 26 might even go one step further than the Agreement does, and make it clear that carbon pricing or carbon taxes (and national carbon budgets) should take imported carbon into account, as Professor Dieter Helm has so convincingly argued.

Chapter Seven also recognises the vital principal of ‘non-regression.  Article 7.2.2, for example, states:

“A Party shall not weaken or reduce, in a manner affecting trade or investment between the Parties, its environmental levels of protection or its climate level of protection below the levels that are in place at the end of the transition period, including by failing to effectively enforce its environmental law or climate level of protection.”

The key issue here, of course, is enforcement. Article 7.5 says:

1. For the purposes of enforcement as referred to in Article 7.2 [Non-regression from levels of protection], each Party shall, in accordance with its law, ensure that:

(a) domestic authorities competent to enforce the relevant law with regard to environment and climate give due consideration to alleged violations of such law that come to their attention; those authorities shall have adequate and effective remedies available to them, including injunctive relief as well as proportionate and dissuasive sanctions, if appropriate; and

(b) national administrative or judicial proceedings are available to natural and legal persons with a sufficient interest to bring actions against violations of such law and to seek effective remedies, including injunctive relief, and that the proceedings are not prohibitively costly and are conducted in a fair, equitable and transparent way.

In the run-up to the 2016 Referendum, Remain supporters frequently stressed the unique role, as they saw it, of the European Commission and the European Court of Justice in enforcing legislation, including EU environmental directives.

With the Agreement in force, the EC and the ECJ will of course play no further part in the enforcement of EU environmental directives and regulations.

The Government, in publishing the text of the Agreement, comments firmly that –

“The domestic supervisory bodies of the UK and EU will cooperate to ensure effective enforcement of their respective environmental and climate laws. ..This chapter is not subject to the Agreement’s main dispute resolution mechanism but will instead be governed by a bespoke Panel of Experts procedure.”

The Government is now in the process of establishing an Office of Environmental Protection (OEP). It remains to be seen whether, in addition to the cooperation over enforcement between EU and the UK, mentioned above, the OEP will be strong and pro-active enough to fill, or at least help fill, the gaps left by the departure from the scene of the European Commission and the European Court of Justice.