Non-regression clauses: sufficient to maintain the UK-EU future relationship on environmental standards and regulation?

Lydgate, Emily (2018) Non-regression clauses: sufficient to maintain the UK-EU future relationship on environmental standards and regulation? Working Paper. European Policy Centre, Brussels. (Accepted)

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Both the UK and the EU have called for non-regression of environmental standards and regulation in their future relationship. As environmental regulation imposes costs, there is an incentive for governments to give their industries a competitive advantage through deregulation. The EU has tried to prevent this problem in existing trade agreements by including a requirement for non-regression of environmental standards. The draft Withdrawal Agreement of November 2018 also includes requirements for non-regression of environmental standards that would apply, as part of the so-called backstop, if a future relationship agreement were not concluded by the end of the transition period. Even if (and when) the backstop is superseded by the future relationship, the UK and the EU have indicated that this relationship will build on these commitments.

In this note I first describe why this ‘environmental backstop’ is an innovative hybrid between the full alignment with environmental legislation required in EU Association Agreements and the EEA Agreement, and the arm’s length non-regression requirements that the EU has negotiated in its trade agreements with countries such as Canada and Korea. It also has some unique features. Notably, successful implementation would require substantial reform in UK environmental monitoring and enforcement. I thus examine how it might function in practice, focusing in particular on challenges with enforcement. Finally, I analyse its applicability to different models for the future relationship. The Withdrawal Agreement links environmental non-regression to a specific UK-EU customs union. However, if the UK and EU go beyond this, pursuing deep regulatory alignment, it will also prove a source of fundamental disagreement. The UK’s current position is to push for non-regression to stand in for regulatory alignment, whilst the EU will likely reject such an approach.

Item Type: Reports and working papers (Working Paper)
Schools and Departments: School of Law, Politics and Sociology > Law
Research Centres and Groups: UK Trade Policy Observatory
Subjects: K Law
K Law > KJ Europe
Depositing User: Emily Lydgate
Date Deposited: 05 Feb 2019 12:10
Last Modified: 05 Feb 2019 13:40

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Project NameSussex Project NumberFunderFunder Ref
Sustainable Trade post-BrexitUnsetSSRPUnset