Brexit, chemicals legislation and the UK defence sector

Can peacetime environmental norms help protect civilians in conflict?

Environmental management systems are in place across the UK’s defence sector.¹ Where these systems govern the development, production and testing of weapons, they can have a direct bearing on the protection of civilians and the environment from toxic remnants of war in the conflicts where the weapons are used. We typically view the protection of civilians in conflict through the lens of international humanitarian or human rights law. But regulations that make no reference to conflicts, developed in jurisdictions far from conflict areas, can also have an impact. The European chemicals regulation, REACH, is a case in point.²

REACH regulations have been a critical tool to support effective chemical regulation and to manage risks to human health and the environment. The regulations require those who manufacture or use chemical substances to understand and manage their safety and environmental risks. This includes substances that are used in defence equipment, although defence exemptions can be granted. REACH’s focus is on consumer and worker safety, and on environmental emissions within the EU but that means that it has the ability to also influence the products that leave it – including defence products. And according to SIPRI, six European countries within REACH – France, Germany, the UK, Spain, Italy and the Netherlands – accounted for 25% of global arms exports between 2014-18.

REACH is not a perfect system and, like all efforts to regulate chemicals, it faces challenges. Not least of these is the vast number of chemicals in use and the absence of data on their risks to health and their behaviour in the environment. This problem also applies to new chemicals for military applications. Take for example the development and introduction of new, insensitive polymer bonded explosives (PBX). The combined environmental impacts from many explosive compositions and mixtures are not yet fully understood, nor are they usually captured by conventional ecotoxicology assessments. Given that the empirical data is incomplete, impact assessments for explosives on domestic firing ranges and in conflict settings have limitations, requiring ongoing research and risk management to minimise their potential environmental risks.

Chemicals legislation and environmental protection in a post-Brexit world

Like the weapons themselves, the UK’s regulatory landscape is also changing. Before the summer of 2019 when Boris Johnson became prime minister, the UK government had suggested a strong commitment to chemical regulation after Brexit but will this commitment continue under the current Withdrawal Agreement Bill, or even under a no-deal scenario? Worryingly, at the time of writing, the Johnson government’s version of the Withdrawal Agreement Bill no longer even includes the term “environment”.

Alongside Brexit, the Environment Bill published in October 2019, is intended to support the delivery of the UK government’s 25 Year Environment Plan. The bill includes plans to publish an ‘overarching Chemicals Strategy’ to set out the UK’s approach on leaving the EU. However, the bill has been criticised as toothless by opposition MPs and NGOs. For example, Greenpeace identified a loophole that could allow the government to delay meeting its targets for up to 18 years. Proposals for the UK’s new post-Brexit Office for Environmental Protection have also been criticised for it not being able to fine the government for non-compliance, unlike under current EU rules.

Schedule 20 of the bill covers amendments to the EU’s REACH regulations, and the UK’s future relationship to REACH. Observers have expressed concerns at the powers the bill will give future environment ministers to amend this relationship. Concern has also been expressed that the UK’s post-Brexit alignment with the EU’s REACH system will fall victim to the Johnson government’s campaign against what it views as “red tape”. Whatever lies ahead for the UK’s relationship with REACH, there will be implications for the MoD’s use and management of hazardous substances.

Defence exemptions from EU REACH chemicals legislation

Within the UK, the MoD has acknowledged that the EU REACH Regulations apply across the organisation and its supply chain, ‘unless there is a clear case for an exemption’. Defence exemptions for toxic chemicals are common globally, and can also be found in EU regulations on specific substances. For example, regulation 2017/852 on the use, storage and disposal of mercury wastes and new mercury products excludes munitions and equipment specifically for military use. This regulation was intended to go beyond the obligations of the 2013 Minamata Convention on Mercury, though this too contains an exemption for the use of mercury in defence equipment.

Within the EU, the UK is not at the top of the leader board but had applied for 10 defence exemptions from REACH, including for asbestos, the explosive HMX and the toxic metal hafnium. The most recent REACH Annual Report prepared by the MoD has revised this to seven active exemptions. Back in 2009 – shortly after REACH entered into force in the UK – the MoD issued 172 defence exemptions.³ Greece and Germany currently hold the most exemptions, 63 and 22 respectively. Where exemptions are granted, the UK MoD’s policy is that they require ‘…that an equivalent REACH process must be carried out, that meets the required outcome of the legislation.’ However, this process is not open to public scrutiny.

REACH defence exemptions granted (Source European Defence Agency, accessed July 2019)

Member state	Number of exemptions granted
Cyprus	1 (covering 22 substances)
Finland	4
France	3
Germany	22
Greece	63
Norway	2
Poland	21
Romania	15 (+5 rejected)
United Kingdom	104

 

The EU’s REACH system is widely viewed as the global standard and has informed the development of similar systems elsewhere. And, because of the globalised nature of supply chains, REACH has also directly influenced manufacturing decisions and the use of hazardous chemicals in products, including weaponry, that are imported from outside the EU, such as from the US. It also has the potential to influence the equipment available to US forces stationed within the EU, as well as the global availability and markets for specific military use substances that are manufactured in small volumes.

Military substances of high concern

REACH regulations primarily apply to chemical manufacture and use within the EU. However, by reducing the use of hazardous substances in military equipment and munitions made or imported into the EU, the system has the potential to reduce contamination in conflict areas where these are used or deployed. It can also reduce the risk of exposure for military personnel using or maintaining equipment.

The REACH system classifies chemicals based on the risks that they pose to human health or the environment. There are potentially hundreds of chemicals that fulfil the system’s Substance of Very High Concern (SVHC) criteria. The classification is based on particular properties, such as whether a substance is carcinogenic, mutagenic, a reproductive toxin or endocrine disruptor; whether it is considered to be persistent, bioaccumulative and toxic (PBT); or if it shows other specific evidence of being problematic for human health or the environment. Of the seven active UK defence exemptions, four are listed as SVHCs (Annex XIV of REACH) and three are listed as restricted substances and considered dangerous (Annex XVII of REACH).

A diverse range of hazardous materials used in defence applications are registered under the REACH system, which is maintained by the European Chemicals Agency (ECHA). These include phthalates like dibutyl phthalate and diisopentylphthalate, which are used as propellants; lead and lead compounds such as lead azide and lead styphnate, that are used in explosives; arsenic compounds such as diarsenic trioxide that may be added to lead ammunition; potassium chromate, which is used as an aluminium coating by the aerospace industry; and 2,4, dinitritoluene, a TNT precursor and component of some propellants. All of these materials are classed as SVHCs and either already require that EU defence manufacturers seek authorisation before use, or have restricted use under the REACH regulations.

Under REACH, authorisation for SVHCs can be granted by demonstrating that the risk from the use of the substance is properly controlled or if the ‘socio-economic advantages provide a greater benefit than the risks…for human health or the environment and that no appropriate replacement substances/technologies’ are available. This means there may be justification for not acting on potential risks to human health and the environment in specific cases, such as for their military use.

The commonly used military explosives RDX, HMX and TNT are not currently included on REACH’s candidate list for classification as SVHCs, although TNT has been regarded to have ‘properties of concern’, with the majority of data submitters agreeing that it is carcinogenic. However, both HMX and RDX are included in the Community Rolling Action Plan, meaning that an evaluation of each substance to assess potential risks to human health or the environment is planned in 2020.

Both RDX and HMX have been proposed for inclusion as suspected carcinogens and reproductive toxins, and by virtue of their wide dispersive use and emissions into the environment, and worker exposures. Given the widespread use of RDX and HMX in explosive weapons, the outcome of this process could prove significant. However, it should be noted that although residual contamination at military ranges caused by the firing, detonation and disposal of munitions containing these substances is well documented, due to obvious constraints, the environmental impact from their use in conflict zones is less well studied.

REACH beyond Brexit

At September’s meeting of the UK Chemicals Stakeholder Forum, it was revealed that the UK’s final post-Brexit chemicals strategy is not expected until 2022; inevitably it too will include future UK exemptions for substances used in defence. This would also reflect the Environment Bill, which will require that ministers make ‘…policy in due regard to the policy statement on environmental principles currently in effect’.⁴ The government’s current policy statement addresses core values such as prevention, the precautionary principle and polluter pays but the statement’s aims will not apply to policy decisions relating to the armed forces, defence or national security.

Taking evidence on the earlier draft Environment Bill and on the policy statement that would guide the government’s interpretation of it, in April 2019 parliament’s Environmental Audit Committee expressed concerns about the blanket defence exemption. The then environment minister Michael Gove sought to reassure MPs that the MoD “…would be subject to the full weight of environmental law as a landowner, but there would be certain areas of national security and defence where it would be unnecessary for the Office of Environmental Protection to have a role.” One such area exempt from scrutiny by the UK’s proposed post-Brexit environmental watchdog could be chemicals regulation within the MoD.

Greener UK, a coalition of 14 major environmental charities, maintains a risk tracker on how environmental protection may change after Brexit. Since the beginning of this year, all of its environmental topics have hit the ‘high-risk’ category. The shape of any future Brexit will be critical for future regulation but the tracker notes that:

‘A Brexit scenario involving the UK leaving REACH remains a severe risk to environmental and public health protections and is likely to worsen under pressure to negotiate a US-UK trade deal. It is difficult to imagine how the UK could deliver world-class standards on chemical regulation without remaining dynamically aligned to REACH and the EU’s chemical related laws, whatever the shape of its future relationship with the EU.’

Weaker regulation, weaker protection

Effective peacetime chemical regulations can help reduce the risk of harmful exposures for both military personnel, and for civilians in conflict. REACH has already contributed to reducing harm and has increased the scrutiny of many hazardous military substances. This is in spite of opposition within the defence industry, which has argued that the level of regulation is disproportionate for substances used in small volumes, that particular substances are critical for defence needs and that manufacturers already have high levels of worker protection in place.

In 2016, a report commissioned by the European Defence Agency on the impact of REACH on the defence sector identified the legislation’s potential to stimulate the development of alternatives to SVHCs. This process should be encouraged within the UK irrespective of what happens with Brexit. However, there is a significant risk that the UK’s departure from the EU, ECHA and REACH under a harder Brexit could weaken pressure on the defence sector to remove hazardous chemicals from its weapons and equipment.

Nevertheless, the normative function of REACH means that, even in the event of a hard Brexit, it will still influence the use of SVHCs by the UK and global defence industries. However, the likely weakness of the UK’s proposed Office of Environmental Protection may mean that oversight and scrutiny of the MoD’s use of hazardous chemicals will be even weaker than it is at present.

 

Linsey Cottrell is CEOBS’ Environmental Policy Officer, Doug Weir is its Research and Policy Director