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

Part 2 - Environmental Impact Assessments (EIAs)

What is EIA?

Environmental Impact Assessment (EIA) is a systematic means of assessing the significant effects of a proposed project or development on the environment, seeking mitigation where possible to avoid, reduce or offset adverse effects and ensure that decision makers are aware of these effects before consent can be given.

EIA encompasses a number of stages:

1. Screening – to decide if an EIA is required for certain developments

2. Scoping – to agree what needs to be included in the assessment and outlined in the relevant EIA report

3. Preparing the EIA report – setting out the likely significant environmental effects of the development and any mitigation

4. Submitting an application and holding a consultation – the EIA report and development application must be publicised and interested parties and the public given an opportunity to give their views on it

5. Decision-making – the EIA report and any comments on it must be taken into account by the competent authority before they decide whether to give consent, and a decision notice must be published

6. Post-decision – the developer starts any monitoring required by the competent authority.

Scotland's EIA regimes

In Scotland, the EU EIA Directive was implemented by multiple pieces of legislation covering a range of sectors or licensable purposes. There are also UK EIA regulations that apply in Scotland in some cases, for example in relation to matters which are reserved to the UK Government (such as oil and gas). The powers we are proposing here only relate to the EIA legislation for which the Scottish Parliament has legislative competence (meaning matters which the Scottish Parliament can make laws about).

Scotland's EIA regimes include:

• Agriculture (including land drainage and irrigation projects)
• Forestry
• Marine licensing
• Planning
• Ports and harbours
• Transports and works projects
• Trunk roads
• Flood management
• Electricity works (however these regulations are not in the scope of the current consultation)

In the majority of cases, Scottish Ministers are the competent authority for EIA decisions, meaning it is their role to determine whether a proposal can proceed. Local authorities are the competent authority in relation to flood management, and for town and country planning matters the competent authority is either the relevant planning authority or the Scottish Ministers as the case may be.

As explained in Part 1, the relevant legislation comprises assimilated law and the Scottish Government considers that this is an area where legislative reform may be appropriate in future.

What are we proposing?

The Scottish Government is seeking views on whether Scottish Ministers should have enabling powers which would better allow future amendments to EIA regimes for which the Scottish Parliament has legislative competence. This would provide the ability to ensure that the regimes remain fit for purpose in future and do not effectively become frozen in time.

A further consideration is that the UK Government has recently introduced new powers, through the Levelling-up and Regeneration Act 2023, which allow for replacement of existing EIA processes with a new system of Environmental Outcome Reports (EOR). The enabling power we are proposing here would provide a mechanism for potential improvements to the existing EIA regimes in Scotland, rather than replacing them with an EOR system.

We are also seeking views on what limitations should be placed on these powers, whilst recognising we cannot fully predict every potential future scenario where such powers could be used. We want to ensure the appropriate balance is achieved between providing flexibility to amend the EIA regimes to make important improvements and/or adapt to future circumstances, whilst ensuring they continue to effectively underpin environmental protection and assessment processes in Scotland.

It is not possible to predict every circumstance under which the need for an enabling power may arise in future, although some potential scenarios have been identified. Any future use of the powers would be subject to public consultation and the appropriate impact assessments.

Below are some examples of how enabling powers could be used in future.

Scenario A

At the moment some of the EIA regimes state that applicants must send in paper copies of EIA reports. They do not allow them to send the reports by electronic means such as email, meaning hard copies of very large volumes of information have to be produced by applicants and handled by regulators.

An enabling power would allow the Scottish Ministers to update the regulations to allow applicants to send in reports by other means, for example by email or through an online portal.

The reason for using a power in this way would be to enable greater flexibility for applicants and reduce the costs associated with printing and delivering documents. It would also make handling applications less onerous in terms of processing and storing applications.

This is currently provided for by some EIA regimes (e.g. in relation to planning) but not others, for example the Marine Works EIA regime.

Scenario B

At the moment, the Forestry EIA regime allows for enforcement notices to be served on a person carrying out work in connection to a forestry project, where it appears that EIA consent was required, or where the work is carried out in a way that breaches conditions set out when EIA consent was granted.

An enabling power would allow Scottish Ministers to update the regulations to allow for enforcement notices to also be served on landowners/controllers. This would bring forestry EIA enforcement more in line with the Forestry and Land Management (Scotland) Act 2018, where responsibilities lie with the owner of the land as well as the person carrying out work.

The reason for using a power in this way would be to ensure EIA regulations can be effectively enforced if breaches are discovered. In this case, this would be particularly where work has been carried out on land but the persons carrying out the work are no longer present, cannot be identified, or do not have authority to carry out work on the land. Providing the ability to serve an enforcement notice on the landowner would ensure any work required to rectify a breach of conditions would be carried out, regardless of who carried out the initial works.

The following set of questions relate to the EIA regimes, please use the information provided to assist you.

Question 1

Do you agree with the Scottish Government's rationale for seeking enabling powers which would better allow future amendments in relation to the EIA regimes set out in this consultation?

Legislation that would be covered by the enabling powers

The enabling powers would apply to the following legislation, in relation to EIA only:

i. Marine Works (EIA) (Scotland) Regulations 2017

ii. Town and Country Planning (EIA) (Scotland) Regulations 2017

iii. Agriculture, Land Drainage and Irrigation Projects (EIA) (Scotland) Regulations 2017

iv. Forestry (EIA) (Scotland) Regulations 2017

v. Flood Risk Management (Flood Protection Schemes, Potentially Vulnerable Areas and Local Plan Districts) (Scotland) Regulations 2010

vi. Transport and Works (Scotland) Act 2007 (in relation to EIA only)

vii. Transport and Works (Scotland) Act 2007 (Applications and Objections Procedure) Rules 2007 (in relation to EIA only)

viii. Roads (Scotland) Act 1984 (in relation to EIA only)

ix. Schedule 3 of the Harbours Act 1964 (in relation to EIA only)

Note: The proposed enabling powers would not cover the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017. Given that electricity generation is a reserved matter, an enabling power for these regulations needs to be transferred separately by the UK Government, which was done previously prior to EU Exit. The UK Government made a commitment to delivering this via a Scotland Act Order before the end of the current UK Parliament during the passage of the Levelling-up and Regeneration Act 2023.

Yes

No

Unsure

Other – Please explain

If you selected 'Other' then please use this space to expand on your answer.

Question 2

Do you agree there should be limitations on how Scottish Ministers can use the enabling powers being sought to better allow amendments to the EIA regimes?

Yes

No

Unsure

Other – Please explain

If you selected 'Other' then please use this space to expand on your answer.

Question 3

Do you have views on how we can set the scope of/limits on these enabling powers?

Please provide examples and any information which you think would be useful to support your views.