Notes from Underground: Fraxit

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NfUBrexitThere was big news from Great Britain last month, and it wasn’t all about leaving the European Union: on June 1, Scotland voted to permanently ban fracking within its borders, reaffirming an earlier moratorium.

Not long before, a council vote in North Yorkshire, England, allowed for renewed shale oil exploration and fracking for the first time in Great Britain since 2011.

With fracking, as with its relationship with the Continent, the “United” Kingdom is anything but.

The Brexit vote late in June highlighted the split between England and its northern neighbor, with Scotland voting overwhelmingly to remain in the EU. But Scotland is still subject to the overall vote to leave as a part of the United Kingdom. A Scottish referendum to leave the UK failed in 2014. But given the divisions now apparent via the Brexit and fracking votes, it is no wonder that a new referendum on Scottish independence is likely on the horizon, and that many anticipate a different result than last time.

New UK Prime Minister Theresa May opposed the Brexit, although far less vocally than her predecessor, David Cameron. She has said she will honor the result and move the UK towards “independence,” naming David Davis to her cabinet as “Secretary of State” – a new position intended primarily to manage the UK’s EU exit.

Prime Minister May is not a climate change denier, though she was absent for or voted against most measures to combat climate change during her time in Parliament. But her elimination of the Department for Energy and Climate Change – moving its responsibilities to a new “Department of Business, Energy and Industrial Strategy” – bodes very badly for the UK’s environmental policy. Her frack-friendly record is thus even more troubling.

While England may drift toward dubious environmental policies, things are looking up on the continent: France, BeNeLux, and other European constituents have banned fracking; Germany recently voted to postpone any action allowing fracking for five years while the practice is better understood. Although these policies have no direct impact on other countries – within the EU or otherwise – it may suggest that Scotland would be more comfortable associating with countries that are moving forward, versus those that may backslide.

How might the UK’s departure from the EU impact environmental policy?
The history of environmental policy within the EU is one of parallel influences: national policies influence the overall policies of the EU; EU policies in turn often influence national policies. In a British Parliamentary Report from April this year, “[t]he overwhelming view … was that EU membership has been positive for the UK environment.”

A Huffington Post story from before the Brexit vote considered the environmental impacts of the UK’s departure from the EU, but did not delve into the conundrum within the UK.

As its fracking ban demonstrates, Scotland is an environmental stronghold. In a report issued prior to the 2014 referendum to leave the UK, the Scottish Government described the benefits of a possible membership in the EU as an independent nation. Among other things, the report described Scotland’s potential to influence and benefit from EU environmental policy.

In 2014 the path was clear: if Scotland voted to leave the UK, it could become an EU member directly, as it was already a part of the EU within the UK.  With the UK now leaving the EU, an independent Scotland would have to apply for membership.

The easiest way for a US reader to understand the relationships between Scotland, the UK, and the EU is as types of federalism: while Scotland has had increasingly significant autonomy within the UK and the UK has autonomy within the EU, both are subject to certain base levels set by the quasi-federal authorities above them. While it remains a member, the UK must meet certain requirements of the EU, but has flexibility in how it does so. Scotland must abide by certain decisions made in London, but has the right, for example, to ban fracking within its borders.

Scotland is, of course, also bound to EU rules as a part of the UK, until such time as the UK completes its Brexit. For independent-minded and environmentally-conscious Scots who nonetheless wish to receive the benefits of being part of a larger union, a choice between being part of the UK and part of the EU would be simple: the EU would offer greater autonomy, greater economic possibilities, and an overall environmental ideology closer to Edinburgh’s than London’s.

But the long history between England and Scotland – not to mention the two countries’ unavoidable proximity – creates complications. As an article from before the 2014 referendum explains, there are pros and cons to Scottish independence – including the fate of gas and oil fields in Britain and the North Sea.

Because of its status as a signatory to the United Nations Convention on Climate Change (UNFCCC) and last year’s Paris Agreement, the UK has obligations to attempt to meet internationally-devised climate goals – but may do so as it sees fit. The EU’s status as signatory clearly defines that goals are to be met through the actions of its member states; the UK’s departure means that the UK must meet its own goals, but would no longer have any future obligations in fulfilling regional goals set by the EU.

Scotland’s obligations under international treaties would be redefined in the event of its departure from the UK; Scotland would likely become an independent signatory to the environmental treaties to which it is currently a signatory as a part of the UK and the EU. As an independent member of the EU, Scotland would then become a part of the EU’s overall obligations.

In other words, there will be a lot of paperwork to determine Scotland’s international environmental policy moving forward.

Fracking: a bridge between local and global environmental problems
Fracking is not prohibited under any current global climate agreement, and using hydraulic fracturing to maximize natural gas production is still regarded by some as a reasonable method for reducing carbon dioxide emissions. These advocates fail to acknowledge that the methane that escapes into the atmosphere during the production and transportation of fracked natural gas is a far more potent GHG (greenhouse gas) than CO2 (though it does stay in the atmosphere for a shorter time than does CO2).

Scotland may eliminate fracking from within its borders, but Northern England can still frack its heart out. If fracking returns to the rest of the UK, Scotland could be affected by increased seismic activity or groundwater pollution. If earthquakes or tainted water resulting from fracking in England begins to affect Scotland, Scotland’s recourse may be found within UK law as long as Scotland remains within the UK, or through a cross-border dispute just like an old-time industrial pollution case. As for the fracking-related methane emissions that exacerbate the problem of global climate change, Scotland can hope for and work toward effective global treaties along with other countries, but will not have any specific influence over fracking in Yorkshire.

“The environment” is no longer merely a local concern, but neither is it “only” a global issue. The three-way split between Scotland, the UK, and the EU illustrates the levels on which environmental law works, and why getting it to work properly is like doing a jigsaw puzzle without knowing how many pieces there are, with only a vague idea of what the picture should look like, and with the fossil fuel industry insisting the puzzle is already finished.

The attitude in the EU is clearly trending away from fracking. With concerns about changing policies and the increasing price of extraction, fossil fuel companies have begun to take their business elsewhere (the interactions between international corporations and international environmental policy will be discussed in a forthcoming post).

The move away from hydraulic fracturing in Scotland and on the European Continent could have signified an important step away from fossil fuel dependence. Instead, by endorsing weaker environmental policy, England and the new British Prime Minister are showing that there is still much work to be done.

Without a blanket ban on fracking, Scotland’s internal ban cannot prevent all associated environmental harm. A ban throughout the UK does not appear imminent. Whether or not Scotland remains in the UK, or separates and joins the EU, there will still be significant limitations on the effectiveness of its strong environmental policies.

The possibilities facing the UK’s constituents and their relationship to the EU are numerous and largely unpredictable, as nothing quite like the departure of one of Europe’s biggest economies has ever faced the European Union. While Scotland’s future may be with the EU, it will not be able to escape London’s influence.

 

Environmental Counsel Adam Arnold worked with GAP’s clinical program while earning his J.D. from the University of the District of Columbia’s David A. Clarke School of Law, is a member of the Maryland Bar, and has an LL.M. in International Environmental Law and International Organizations from American University’s Washington College of Law.

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