Environmental Impact Assessment regime and Habitats Regulations - enabling powers: consultation

Part 1 - Enabling Power Requirement

Our EIA regimes and the Conservation (Natural Habitats, &c.) Regulations 1994 ("the 1994 Habitats Regulations") are key legal frameworks underpinning environmental protection and assessment processes in Scotland, on land and at sea (out to 12 nautical miles (nm)).

The European Communities Act 1972 ("the 1972 Act") provided enabling powers for Scottish Ministers to make and amend legislation for the purpose of implementing EU obligations. The 1994 Habitat Regulations and the EIA regimes were originally made and then subsequently amended using the powers in the 1972 Act. However, following the UK's withdrawal from the EU, the 1972 Act was repealed and these powers have been lost.

There are some existing powers available to Scottish Ministers to amend relevant legislation. These powers can only be exercised for specific, or limited purposes and do not provide the flexibility that may be required in future to ensure the legislation remains fit for purpose. Additionally, some of these available powers are expected to 'sunset' at a given date, meaning they will only be available for a limited time.

We consider it vital that we have the ability to ensure that 1994 Habitats Regulations and the EIA regimes remain fit for purpose over time. The purpose of enabling powers would therefore be to allow for future amendments to the relevant legislation in light of evolving circumstances, or to address existing issues or inefficiencies. This would provide the flexibility to adapt to future requirements, while ensuring these legislative frameworks continue to effectively underpin environmental protection and assessment processes in Scotland.

An additional factor is that the relevant legislation comprises "assimilated law" which is the new name for the law that was retained from the period of the UK's membership of the EU. On 8 February 2024 the Scottish Government sent the first in a bi-annual series of updates on the Retained EU Law (Revocation and Reform) Act 2023. This sets out that whilst Scottish Ministers do not share UK Ministers' deregulatory and divergent agenda for the future treatment of assimilated law, the Scottish Government recognises that there may be particular cases for reforming particular assimilated law. The Scottish Government considers that Scotland's EIA regimes and the 1994 Habitats Regulations are cases where legislative reform may be appropriate in future, and invites views accordingly.

The specifics of any secondary legislation proposed using the powers would also need to be fully assessed against the Scottish Government's EU alignment policy to maintain and advance the high standards we share with the EU.

Part 2 of this consultation sets out information and questions relating to the EIA regimes. Part 3 sets out information and questions relating to the 1994 Habitats Regulations. Part 4 sets out information and questions relating to our approach to impact assessments for these proposals.