As with many households across the globe – regardless of the age (or existence!) of children – my children became obsessed by the “Pokémon-Go” euphoria that captured mobile apps and social media in July and August this year. To be truthful, I didn’t want to show my naivety as to what I plainly did not understand so I played along as my children ran around searching for these curious-looking Pokémons (or is it Pokémoni?). It was a frenetic period that I did not quite grasp and decided that it was a fad that would soon die down and fade away. On reflection, I was perhaps too traditional in my view that a game so premised upon such an ephemeral proposition would not last. Despite cerebrally knowing what technology could now do, I was perhaps loathed to accept what is simply a further step in how the virtual and my physical existence now interact.
At the same time, many of us were coming to terms with the EU referendum result, seeking to compute the enormity of what had happened on the 23 June, and to reconcile ourselves to the consequences. For many, membership of the EU is as instinctive and fundamental to the UK’s global identity as its membership of NATO, or of the UN. So, just as my head and heart were in tension in understanding Pokémon-Go, I now wonder whether the same was true as regards the European referendum? My head knew that the referendum would be tight, that the campaign had been badly fought and that many in the UK still saw the EU as the institutional zenith of the “other” telling us what to do. “Take back control” was a myth but it was also a very powerful – a very emotive – catchphrase, which (whether we like it or not) resonated with a sizeable proportion of the electorate. Notwithstanding this, my heart hoped for the best… we surely wouldn’t throw it all away? Surely not.
And this tension between head and heart seems to have also clouded how many of us, as environmental lawyers, have prioritised the environment in discussions on Brexit. To do so ignores, however, an invariable fact; namely that the environment has barely mattered. Or, more accurately, that for most who voted Leave (and indeed for many who voted Remain) the environment is a long way down the Brexit agenda. It had scant impact on the campaign, and its relevance in the aftermath remains equally unclear. For sure, some tried to raise the issue of what the EU had done for the environment, but there was an almost inverse relationship between the sincerity and earnestness of the arguments presented, and the likely effect this had on the wider population. There was also the prospective debate as to whether the EU would be able to continue to play a leading role in such critical matters as climate change – and to meet its commitments – without the continuing membership of the UK. Again, valid questions but hardly persuasive in the popular consciousness.
So, just as my head and heart were in tension in understanding Pokémon-Go, I now wonder whether the same was true as regards the European referendum?
Within any discourse on Brexit, there is, of course, a particular paradox; the ecological and economic interdependence facing any State, be it part of a regional grouping or otherwise. Indeed, since the referendum result, the first official steps towards recognising the Anthropocene as the next geological epoch have been taken. And within the UK, the nature and extent of such global interdependence has also become apparent, perhaps most acutely in terms of the UK’s future energy policy. The decision in September to continue with the Hinkley Point C nuclear reactor in conjunction with EDF, a French contractor, and the Chinese government reflects not only the inability of most States to fund themselves such huge energy projects, but also that such endeavours now reflect a synergy – however much in tension – between disparate priorities of energy security, domestic supply, the provision of sustainable energy, and other commercial realities, both for the consumer and the investor. And while the ongoing case brought by Austria and others before the CJEU against the UK for unlawful state aid is very much predicated on EU law, one should not ignore the parallel intergovernmental discussions before the Implementation Committee of the Espoo Convention on Environmental Impact Assessment in a Transboundary Context on the inadequacy of British consultation over environmental concerns. As a convention under the auspices of the UN Economic Commission for Europe, membership will persist post-Brexit, as will many other international treaties. The UK has yet to ratify the Paris Agreement on Climate Change, and has regrettably not been in the vanguard of early ratifications. Nevertheless, there is every expectation that the UK will ratify by the end of this calendar year. As a matter of international law, the UK remains within a network of legal rules and processes – in the environmental field as in many others – that reveals the false premise in any absolutism in “tak[ing] back control”.
So as the UK moves towards trying to discern which model of Brexit is to be preferred, I would argue against fatalism; that as academics and as participants in the political process, we do not simply hark back to what is going to recede gradually from us, namely our membership of the EU and our contribution to EU environmental policy. But that we re-engage (perhaps for the first time) with other regional and international processes and institutions that reflect such ecological interdependence. I may not have understood the allure of capturing Pokémon – I now think the singular is also the plural – but I hope I am not so trenchant as to run around in the hope of spotting something even rarer; UK membership of the EU as it existed prior to 23 June 2016. That truly is becoming an alternate reality.
By Professor Duncan French, Head of Lincoln Law School, Professor of International Law and Co-Director of the Lincoln Centre for Environmental Law and Justice.
Featured image credit: Pokémon planet. CC0 Public Domain via Pixabay.
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