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EU COURT NEONICOTINOID INSECTICIDE JUDGMENTS: SIGNIFICANCE FOR UK AGRICULTURE, CHEMICALS AND ENVIRONMENTAL POLICY, PART III

In the first article of this series we reported  on the three joined neonicotinoid pesticide judgements issued by the EU General Court on 17 May 2018 (First Article)

In the second article we considered in more detail why these judgements come at a particularly significant point for agriculture in the UK and EU, the immediate implications for Brexit, how they represent a divergence between the UK government and some farming organisations, and why that matters for the current consultations on an Environmental Principles and Governance Bill.  We will consider environmental principles and governance further in future articles.

In the third and final article in this series we will consider some of the impacts of farm chemicals on farmland birds and on water and question the implications of the judgements and current policies and practices for human health.

Impacts of Farm Chemicals on Birds and Water

The Royal Society for the Protection of Birds ‘RSPB’ reports that increased use of farm chemicals – fertilisers and pesticides – is one factor, amongst several others, in the decrease in bird populations in the British countryside, stating that the following list shows percentage declines of some bird species recorded in the Common Bird Census between 1970 and 1999:

Tree sparrow  – 95%
Corn bunting  – 88%
Willow tit  – 78%
Spotted flycatcher – 77%
Woodcock  – 74%
Starling  – 71%
Turtle dove  – 71%
Song thrush  – 56%
Bullfinch  – 53%
Skylark  – 52%
Cuckoo  – 33%

Meanwhile the EU Drinking Water Directive 98/83/EC, and the newly adopted proposal for its replacement, set very low levels, of 0.1 microgrammes per litre, as allowable levels for most individual pesticides, 0.030 microgrammes per litre for aldrin, dieldrin and heptachlor epoxide, and 0.5 microgrammes per litre for ‘total pesticides’.

However, there are some signs that water companies, and their customers, face enormous costs in meeting these very strict requirements. For example, Anglian Water has estimated that it could cost an initial £600 million, with a further £17 million per year, to set up and run treatment simply to deal with metaldehyde from slug pellets, and that this could imply a 21% increase in the cost of water bills to its customers.

Impacts on Human Health

Michael Deland, who was Chair of the U.S. Council on Environmental Quality from 1989 to 1993, has stated:

“We are now confronting, because of our industrialised society, an entirely different variety and much more insidious and complex form of pollution, namely toxics. We measure pollutants now, not in tons, but in parts per million, trillion or quadrillion. The challenge that we’ve not yet been able to meet adequately is the causal relationship between a part per million, trillion or quadrillion, of a given pollutant, and its effect on our health and that of our kids. That is where a good deal of our research needs to be.”

Regulation has nevertheless tended to rely upon ‘tolerances’ or ‘safe’ levels, as reflected in the EU Drinking Water Directive example given above. However, as Rachel Carson noted in Silent Spring, back in 1963, in effect all that establishing tolerances is doing is authorising contamination of public food supplies with poisonous chemicals so that farmers and processors can enjoy the benefits of cheaper production – then penalising the consumer by raising taxes to maintain a policing agency to make sure that he does not receive a lethal dose. However, as she added drily, doing the policing job properly would require unsustainable levels of taxes, given the present volume and toxicity of agricultural chemicals, so “in the end the luckless consumer pays his taxes but gets his poisons regardless.”

The benchmark for assessing what is safe

Human health, and the effects of farm chemicals upon it, should be the standard ultimately relied on. However, we do not seem to be much further forward in determining quite what level of organophosphates, glyphosate, synthetic pyrethroids, nitrates, total pesticides or other farm chemicals it is acceptable to spray on fields, use as treatment on seeds, use at sea on caged fish, find in our rivers, find in our bloodstreams, or pass on to our children.

Those who participated in the negotiations that led to the current EU REACH chemicals Regulation of 2006 may remember that one of the simplest and most effective interventions in those negotiations, in 2003, was when the World Wildlife Fund offered 40 Members of the European Parliament, and some key European Commission officials, including the then Environment Commissioner Margot Wallstrom, blood tests with chemical analysis. It turned out that her blood showed evidence of 28 chemicals, including Poly Brominated Diphenyl Ethers, PBDE flame retardants, Poly Chlorinated Biphenyls, PCBs, and Organochlorine Pesticides, in particular DDT, which was what Rachel Carson was writing about in the 1960s, and which was banned for most agricultural purposes in 1978, and subject of a total ban on uses in agriculture in 1983. Margot Wallstrom was also a parent, and some reports at the time suggested that breast feeding for six months could give an infant 17% of its lifetime dose of some persistent chemicals.

We are supposed to be guided by the best science in these matters – that is the commitment often given by government. It therefore seems to be relevant and significant that Defra’s own Chief Scientist Ian Boyd stated in 2017 that the assumption by regulators around the world that it is safe to use pesticides at industrial scale across landscapes is false; that the lack of any limit on the total amount of pesticides used and the virtual absence of monitoring of their effects on the environment means it can take years for the impacts to become apparent.

The EU Court’s neonicotinoid judgements are a significant contribution to the law, and to the debates that ought to be taking place on the wider questions of the use of pesticides and farm chemicals, delivered at a critical time for UK agriculture.

About the Author:

William Wilson is a specialist environmental, regulatory and nuclear lawyer with over 25 years experience in government, private practice and consultancy. He worked as a senior lawyer at the UK Department of the Environment/DETR/Defra, and helped to build up the environmental and nuclear practices at another major law firm, as well as running his own environmental policy consultancies. William has experience of all aspects of environmental law, including water, waste, air quality and industrial emissions, REACH and chemicals regulation, environmental protection, environmental permitting, litigation, legislative drafting, managing primary legislation, negotiating EU Directives and drafting secondary legislation.

Prospect Law is a multi-disciplinary practice with specialist expertise in the energy and environmental sectors with particular experience in the low carbon energy sector. The firm is made up of lawyers, engineers, surveyors and finance experts.

This article remains the copyright property of Prospect Law Ltd and Prospect Advisory Ltd and neither the article nor any part of it may be published or copied without the prior written permission of the directors of Prospect Law and Prospect Advisory.

This article is not intended to constitute legal or other professional advice and it should not be relied on in any way.

For more information or assistance with a particular query please in the first instance contact Adam Mikula on 020 7947 5354 or by email on adm@prospectlaw.co.uk.

For a PDF of this blog click here

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EU COURT NEONICOTINOID INSECTICIDE JUDGMENTS: SIGNIFICANCE FOR UK AGRICULTURE, CHEMICALS AND ENVIRONMENTAL POLICY, PART II

In the first article of this series we reported on the three joined neonicotinoid pesticide judgements issued by the EU General Court on 17 May 2018. In this article we consider in more detail why these judgements come at a particularly significant point for agriculture in the UK and EU, the immediate implications for Brexit, how they represent a divergence between the UK government and some farming organisations, and why that matters for the current consultations on an Environmental Principles and Governance Bill.

The final article in this series will consider some of the impacts of farm chemicals on birds, water and human health, and how these judgements may be important for a wider re-appraisal of pesticide use in the UK.

Agriculture at the crossroads

Agriculture is at a critical point, both at EU and UK levels. On 2 May 2018 the European Commission embarked on two years of what will be difficult negotiations of a new Multiannual Financial Framework, or budget, for the EU, which will need to take account of the withdrawal of the UK’s net contribution and pressures for increased spending on other issues such as border management, migration, asylum and security. Some commentators expect the long term decline of spending on the Common Agricultural Policy as a proportion of the EU budget to continue, and it seems equally likely that where support is given to agriculture, conditions attaching a requirement for the protection of the environment will be strengthened.

At UK level, the government has promised to maintain agricultural subsidies for the next few years as the UK leaves the EU, but there are no promises to do so over the long term, and again it seems likely that environmental protection requirements as part of the ‘conditionality’ for farm subsidies will only increase.

Farmers are awaiting publication of a promised UK Agriculture Bill as part of the legislation required to deliver Brexit. Agriculture is also a devolved matter, and further legislation is likely in the short term. For example, the Climate Change, Environment and Rural Affairs Committee of the National Assembly for Wales has been carrying out its own inquiry into agriculture and the environment, and the ‘common frameworks’ needed to ensure some form of coordination between UK and devolved agricultural policy.

Immediate significance of the judgments with Brexit

The immediate significance of the Court’s neonicotinoid judgements is that they become part of the acquis communautaire, or body of EU law. They are now part of EU law, they apply to the UK as it is currently a member of the EU, and the UK government has undertaken to ensure the conversion of the whole acquis communautaire into UK law by means of the European Union (Withdrawal) Bill.

Again, where agriculture is a devolved matter, for example in Wales and Scotland, the Parliaments of Wales and Scotland can be expected to deliver legislation with similar effects: in the case of Scotland, it may require the Supreme Court to rule on whether this should be done by means of the European Union (Withdrawal) Bill or its own ‘continuity’ legislation (see our earlier briefing on Wales, Devolution, Brexit and the Environment).

Divergence between UK government and farmers’ organisations

In November 2017, Michael Gove, UK Secretary of State for the Environment, Food and Rural Affairs, announced the reversal of the UK government’s policy on neonicotinoids, and its support for the EU’s total ban on outside uses, writing that –

“The weight of evidence now shows the risks that neonicotinoids pose to our environment, particularly to the bees and other pollinators which play such a key part in our £100bn food industry, is greater than previously understood.”

However, as noted, the UK’s National Farmers Union was in court supporting the manufacturers’ legal challenge to the EU ban.

This is not an isolated example of a significant divergence between the UK government and the NFU in their approach to farm chemicals, which can also be noted in their respective statements on organophosphates in sheep dip, glyphosate, and the use of chemicals on the ‘landscape scale’ (see the third article in this series on the views of Defra’s Chief Scientist). At a time when public and political opinion really matters, this sort of divergence is potentially very significant.

Environmental Principles and Governance

The Court’s neonicotinoids judgements also come at a time when both the UK government, and those of each of the home nations, are examining very fundamental questions about the environmental governance that should apply after Brexit, how to replace the enforcement of environmental laws when the European Commission and the Court of Justice of the European Union are no longer enforcing EU law in the UK, and which environmental principles should inform UK laws and in what way. House of Lords amendments to the European Union (Withdrawal) Bill will ensure that this is further debated in the UK Parliament before that Bill can be enacted.

The UK government and Defra issued a consultation on a proposed Environmental Principles and Governance Bill on 10 May 2018, and Parliaments in Wales and Scotland will also be considering these issues. The Court’s strong re-statement of the precautionary principle is therefore timely and significant.

This is one of the core environmental principles of EU environmental law. How it fares after Brexit, and how it comes to be reflected in UK law and the law of the devolved Parliaments will be closely watched.

About the Author:

William Wilson is a specialist environmental, regulatory and nuclear lawyer with over 25 years experience in government, private practice and consultancy. He worked as a senior lawyer at the UK Department of the Environment/DETR/Defra, and helped to build up the environmental and nuclear practices at another major law firm, as well as running his own environmental policy consultancies. William has experience of all aspects of environmental law, including water, waste, air quality and industrial emissions, REACH and chemicals regulation, environmental protection, environmental permitting, litigation, legislative drafting, managing primary legislation, negotiating EU Directives and drafting secondary legislation.

Prospect Law is a multi-disciplinary practice with specialist expertise in the energy and environmental sectors with particular experience in the low carbon energy sector. The firm is made up of lawyers, engineers, surveyors and finance experts.

This article remains the copyright property of Prospect Law Ltd and Prospect Advisory Ltd and neither the article nor any part of it may be published or copied without the prior written permission of the directors of Prospect Law and Prospect Advisory.

This article is not intended to constitute legal or other professional advice and it should not be relied on in any way.

For more information or assistance with a particular query please in the first instance contact Adam Mikula on 020 7947 5354 or by email on adm@prospectlaw.co.uk.

For a PDF of this blog click here

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EU COURT NEONICOTINOID INSECTICIDE JUDGMENTS: SIGNIFICANCE FOR UK AGRICULTURE, CHEMICALS AND ENVIRONMENTAL POLICY, PART I

In the first of this series of articles, we consider three important linked judgements about neonicotinoid pesticides, which damage bees, from the EU General Court, issued on 17 May 2018, which have widespread implications for agriculture, chemicals and environmental policy, especially for the UK, for example in the way the judgement endorses the precautionary principle.

In the next article we will consider in more detail why these judgements come at a particularly significant point for agriculture in the UK and EU, the immediate implications for Brexit, how they represent a divergence between the UK government and some farming organisations, and why that matters for the current consultations on an Environmental Principles and Governance Bill. We will be considering the consultations on environmental principles and governance further in future articles.

In the third article we will consider some of the impacts of farm chemicals on farmland birds and on water, and question the implications of the judgements and current policies and practices for human health.

In judgements on three joined cases [T-429-13, T-451-13, T-584-13] issued on 17 May 2018, the General Court of the European Union confirmed the validity of restrictions introduced at EU level in 2013 against three neonicotinoid insecticides, because of the risks those substances pose to bees.

The active ingredients restricted were clothianidin, produced by Takeda Chemical Industries and Bayer Crop Science, thiamethoxam, made by Syngenta, and imidacloprid, made by Bayer Crop Science.

The Court dismissed the challenges brought to the EU legislative restrictions by Bayer Crop Science AG and Others, and Syngenta Crop Protection AG and Others, the “Others” in both cases including the UK National Farmers Union ‘NFU’.

However, in the third case the Court largely upheld the action brought by BASF, and annulled the restrictions on the use of the pesticide fipronil, since they were imposed without a prior impact assessment by the European Food Safety Authority ‘EFSA’.

In all three cases, the Court made a strong and clear re-statement of the importance of the ‘precautionary principle’.

As the Court’s Press Release on the judgements explained –

As regards the uses restricted and prohibited in 2013, the Court rules that the Commission has succeeded in demonstrating that, in view of the considerable strengthening of the requirements that there should be no unacceptable effects of the active substances on bees, the risk identified by EFSA warranted the conclusion that the three substances in question no longer satisfied the approval criteria….

…Consideration of the arguments put forward by Bayer and Syngenta in that respect did not reveal any errors (such as manifest errors of assessment) or any misapplication of the precautionary principle or the principle of proportionality. So far as the precautionary principle is concerned, the Court recalls that, where there is scientific uncertainty as to the existence or extent of risks to human health or to the environment, this principle allows the institutions to take protective measures without having to wait until the reality and seriousness of those risks becomes fully apparent or until adverse health effects materialise. The precautionary principle, moreover, gives precedence to the requirement relating to the protection of public health, safety and the environment over economic interests.”

In the third BASF case, the Court made it clear that the reason for allowing the challenge by BASF to the restrictions on fipronil was the failure by the Commission to secure an adequate prior impact assessment by EFSA, which itself constituted a failure to apply the precautionary principle correctly.

In sum, therefore, the manufacturers of these pesticides and their supporters have won themselves one of the strongest endorsements to date of the precautionary principle.  It remains to be seen whether they will seek to appeal against the judgement to the next level within the Court of Justice of the European Union. The next article in this series will consider some of the reasons why the judgements have particular significance to agricultural, chemicals and environmental policy at this point.

About the Author:

William Wilson is a specialist environmental, regulatory and nuclear lawyer with over 25 years experience in government, private practice and consultancy. He worked as a senior lawyer at the UK Department of the Environment/DETR/Defra, and helped to build up the environmental and nuclear practices at another major law firm, as well as running his own environmental policy consultancies. William has experience of all aspects of environmental law, including water, waste, air quality and industrial emissions, REACH and chemicals regulation, environmental protection, environmental permitting, litigation, legislative drafting, managing primary legislation, negotiating EU Directives and drafting secondary legislation.

Prospect Law is a multi-disciplinary practice with specialist expertise in the energy and environmental sectors with particular experience in the low carbon energy sector. The firm is made up of lawyers, engineers, surveyors and finance experts.

This article remains the copyright property of Prospect Law Ltd and Prospect Advisory Ltd and neither the article nor any part of it may be published or copied without the prior written permission of the directors of Prospect Law and Prospect Advisory.

This article is not intended to constitute legal or other professional advice and it should not be relied on in any way.

For more information or assistance with a particular query please in the first instance contact Adam Mikula on 020 7947 5354 or by email on adm@prospectlaw.co.uk.

For a PDF of this blog click here