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Parliament body seeks clarity on post-Brexit F-Gas commitments

Experts tell environment committee that Montreal Protocol obligations should not to be affected by Brexit, yet UK must decide if and how it intends to maintain alignment with EU F-Gas laws

Parliament’s Environmental Audit Committee has highlighted concerns about a “lack of consensus” over the impact Brexit may have on existing European and global commitments to curb F-Gas emissions in the UK.

Committee chair MP Mary Creagh said that expert feedback had differed on the future for such commitments “when, or if” Brexit goes ahead, during an inquiry on progress to cut down F-Gas emissions for functions such as cooling.

She said this lack of consensus included concerns about obligations for meeting international agreements on reducing greenhouse gas emissions such as the Montreal Protocol. Several legal experts speaking before the committee this week noted that the commitments were signed into UK law meaning there would be little cause for change.

Dr Annalisa Savaresi, a lecturer on environmental law from Stirling University praised the work of stakeholders in the UK on producing reports on Brexit and how it would impact the country’s commitments to international environment agreements.

Ms Savaresi added that it was now important to be clear where regulatory uncertainty may lie, if at all.

She said, “As a matter of international law, the issues are quite clear, the UK will remain a party to whatever international agreements it has ratified, whether the EU is a party to those treaties or not.”

Ms Savaresi added, “There are however considerable uncertainties, as a matter of domestic law, on the implementation of international obligations. Typically, the way EU law works is this it does implement international obligations into EU law. Therefore, with Brexit there will be a question of how EU goes on about implementing its international obligations after Brexit.”

“Unchartered territory”

Ms Savaresi argued that Brexit was a step into “unchartered territory” with regards to defining the legal obligations of the UK on agreements such as the F-Gas phasedown when it is no longer a member state.

She said that UK may therefore have to make a concerted choice about whether to align itself with EU law, or follow global commitments represented by the Montreal Protocol and the Kigali Amendment.

She added, “I would argue EU law goes further than Kigali because the EU decided on its own merit to move ahead of international obligations on the phasing down of HFCs. This means that the EU will, if everything goes to plan, achieve its obligations under the Montreal Protocol ahead of the rest of the world. So would Kigali does is to bring the rest of the world on the same page.”

Ms Savaresi said that success in meeting the F-Gas targets would allow the EU to be a frontrunner and take the leads of efforts to reduce HFC emissions.

“This is one of those areas where we have EU regulations that are more ambitious than those under international law. This is why leaving the EU will require the UK to think carefully where it wants to be vis-à-vis this specific issue.”

“Do they want to align themselves with the EU or do they want to align just to the general level of obligation under international treaties?”

Ms Savaresi said that F-Gas regulations were a set of commitments that defined centrally the quota member states needed to cut down their use of HFCs by. The UK will now have to decide how to do this as an individual nation.

She added that the phasedown was built on an instrument of EU law that was not implemented into UK law, and was directly managed centrally in Brussels.

“Clearly the UK will not be able to use the HFC registry that handles the reporting and enforcement functions, so the issue will be what will the UK do instead of the registry? It could establish its own registry or could so something completely different. Just something needs to be done in order to comply with international obligations on the Montreal protocol.”

It is understood that discussions have already been held over possible options for splitting the EU quota and continuing to share with the UK beyond Brexit, potentially based on factors such as GDP.

Montreal Protcol

Professor Panos Koutrakos, a professor of EU law at City University of London, said that the question around potential changes to UK environmental commitments such as F-Gas had to be considered on an individual basis.

He said, “When we talk about the environment, we are talking about an area where, even as a party to the EU, we have more scope to do things and assume heavier obligations.”

Professor Koutrakos said that with the example of the Montreal Protocol, there was a set of “horizontal obligations” with the aim of meeting a common objective – in this case to reduce emissions of ozone depleting substances such as chlorofluorocarbons (CFCs).

The recently ratified Kigali amendment extends this commitment to HFCs from 2019.

Professor Koutrakos added, “I cannot see why this kind of obligation would not apply to the UK post-Brexit. We do not have some kind of package deal which was reached on the one hand between the UK and EU and on the other hand with the other parties [to the agreement] such as is the case of deals with the WTO for instance.”

These WTO arrangements required agreements with the EU to disaggregate tariff rate quotas that are shared with the bloc’s 27-member states. Professor Koutrakos added, “Here a degree of negotiation is necessary.”

However, he argued this would not be the case with the Montreal agreement.

“I don’t see why Montreal would not be binding with the UK after Brexit. Now that in my view would not apply to all multilateral environmental agreements.”

Professor Koutrakos welcomed the possibility of a common approach to negotiations to provide more certainty on future environmental obligations.

While potentially complicated, he said a similar approach had been attempted this year when the EU and UK attempted in September to take a common approach to discussions with the WTO on tariff rate quotas. The professor accepted that this had not been welcomed by fellow WTO members such as the US at the time.

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