Environmental impact assessment regimes and habitats regulations: consultation analysis

Executive Summary

Introduction

This report provides an analysis of responses to the Scottish Government consultation on “Enabling powers for Scotland's Environmental Impact Assessment regimes & Habitats Regulations”. This public consultation ran from 18 March 2024 to 13 May 2024.

We sought views on proposed enabling powers that would better allow for future amendments to Scotland’s Environmental Impact Assessment (“EIA”) regimes and the Conservation (Natural Habitats, &c.) Regulations 1994 (“the 1994 Habitats Regulations”). These are key legislative frameworks which underpin environmental protection and assessment processes. The proposed enabling powers would help replace powers lost as a result of the UK’s exit from the European Union (“EU”), and would help ensure the relevant legislation can remain fit for purpose in future in order to support delivery of our net zero and biodiversity goals.

The consultation featured thirteen questions covering:

• Support for the Scottish Government’s rationale for seeking enabling powers which would better allow future amendments in relation to the EIA regimes (Q1-3)
• Support for the Scottish Government’s rationale for seeking enabling powers which would better allow future amendments to the 1994 Habitats Regulations (Q4-6)
• Impacts on the costs and burdens placed on businesses, the public sector and voluntary sector (Q7-8)
• Effect on Island Communities (Q9-10)
• Impacts on People with Protected Characteristics (Q11-12)
• Any further comments (Q13)

About the respondents and responses

The consultation received a total of 41 submissions, comprising of 30 responses to the consultation via Citizen Space and 11 received via email.

Of the 41 responses that were received to the consultation, a significant majority were submitted by respondents representing organisations (73%), with the remaining 26% identifying as individuals

Of the responses where the respondent identified as responding on behalf of an organisation (30), there were three environmental NGOs (Non-Governmental Organisations), eight consultancy and professional representative bodies, two from marine food production, one from terrestrial food production, four from local authorities, five from public bodies and seven from the renewable energy sector.^[1]

Support for the Scottish Government’s rationale for seeking enabling powers which would better allow future amendments in relation to the EIA regimes (Q1-3)

Overall a majority (59%) of all respondents agreed with the Scottish Government’s rationale for seeking the enabling powers. Only 7% of all respondents did not agree with the rationale, however a significant number were either unsure (2%), provided other views (17%) or did not answer the closed question (15%).

A majority of 56% of all respondents agreed that there should be limitations on how Scottish Ministers can use the enabling powers being sought to better allow amendments to the EIA regimes. 17% disagreed that there should be limitations whilst, again, a significant number were unsure (10%), provided other views (5%) or did not answer the closed question (12%).

Key themes and issues raised by respondents included:

Rationale for the enabling powers

• Many comments focused on the Scottish Government’s rationale for the enabling powers.
• Some respondents provided further detail outlining their support for the proposed enabling powers, suggesting it is essential that the Scottish Government has the necessary powers to ensure that legislation remains fit for purpose.
• Some respondents who did not agree with the Scottish Government rationale raised issues with the level of detail and clarity provided in the consultation. Some suggested there was a lack of exploration of the use of existing powers.

Public Consultation and Stakeholder Engagement

• The most common concern amongst respondents related to the levels of scrutiny which would be afforded to future amendments in relation to the EIA regimes. Many of the respondents expressed that there should be public consultation on any future amendments.

Environmental Standards

• There was concern amongst some respondents that the environmental protections offered by the EIA regimes could be weakened by future amendments. Some suggested limiting the enabling powers in such a way that there could be no reduction in the level of environmental protection or that they could be used only to strengthen environmental law and its application in Scotland.
• A few respondents specifically suggested that limitations should be achieved through inclusion of a “non-regression” clause or test.
• However, there was also some recognition that flexibility and adaptability was necessary and could provide benefits to environmental standards.

Scottish Parliamentary Procedures

• Respondents provided some differing views regarding the legislative procedures necessary for appropriate Scottish Parliamentary scrutiny of any amendments made using the proposed enabling powers in future.

Periodic review of the enabling powers

• Some respondents suggested that it would be necessary to conduct a periodic review of the powers in order to ensure they remain fit for purpose in continually evolving circumstances.

Consistency across legislative regimes

• Some respondents were concerned that the enabling powers could lead to divergence between inshore and offshore and with wider UK and/or EU regimes. Some of these respondents views on this applied to the EIA regimes and the 1994 Habitats Regulations.

Support for the Scottish Government’s rationale for seeking enabling powers which would better allow future amendments to the 1994 Habitats Regulations (Q4-6)

An overall majority of 63% of all respondents agreed with the Scottish Government’s rationale. Again, only 7% of all respondents did not agree the with rationale and a significant number were either unsure (5%), provided other views (12%) or did not answer the closed question (12%).

A smaller overall majority of 51% agreed that there should be limitations on how Scottish Ministers can use the enabling powers being sought to better allow future amendments to the 1994 Habitats Regulations. 17% disagreed that there should be limitations whilst, again, a significant number were unsure (10%), provided other views (7%) or did not answer the closed question (15%).

Key themes and issues raised by respondents included:

Rationale for the enabling powers

• Again, many comments focused on the Scottish Government’s rationale for the enabling powers.
• Some respondents provided further detail outlining their support for the proposed enabling powers. This included the suggestion that being able to amend the regulations will help address the nature and climate crises by making the legislation fit for purpose in the 21^st century.
• Some respondents who did not agree with the Scottish Government rationale raised issues with the level of detail and clarity provided in the consultation. It was suggested that the consultation offered insufficient specific detail on the nature or necessity of reforms or on how the enabling powers may be used. It was suggested that existing powers should be sufficient.

Public Consultation and Stakeholder Engagement

• The most common concern, expressed firmly by many respondents, was that there should be a robust public consultation on any future amendments to the 1994 Habitats Regulations. It was also highlighted again that this process should also be subject to appropriate impact assessments.

Environmental Standards

• Despite a majority of respondents agreeing with the rationale for enabling powers, there was, again, significant concern amongst some respondents that the environmental protections offered by the 1994 Habitats Regulations could be weakened by future amendments.
• This included suggestions that limits should be in place so that enabling powers are used by Ministers to maintain and strengthen, but not weaken, the 1994 Habitats Regulations. Again, a few respondents specifically suggested that limitations should be achieved through inclusion of a “non-regression” clause or test.
• However, there was also significant recognition that flexibility and adaptability was necessary and could provide benefits to environmental standards. It was suggested that they could be used to deliver improved environmental outcomes and help ensure Scotland keeps pace with wider developments in environmental law and standards.

Scottish Parliamentary Procedures

• Respondents tended to repeat their views here regarding the legislative procedures necessary for appropriate Scottish Parliamentary scrutiny of any amendments.

Consistency across legislative regimes

• Some respondents again expressed concern that the enabling powers could lead to divergence between inshore and offshore and with wider UK approaches to the 1994 Habitats Regulations.
• Some respondents had stated that their responses in relation to the EIA regimes also applied to the 1994 Habitats Regulations.
• Respondents again suggested that the potential for divergence should be considered in Impact Assessments produced as part of an amendments process.

Impacts on the costs and burdens placed on businesses, the public sector and voluntary sector (Q7-8)

Opinions regarding the impacts of both the proposed enabling powers in relation to Scotland’s EIA regimes and the 1994 Habitats Regulations on businesses, the public sector and voluntary sector were more mixed but fell broadly in line across the closed questions related to each.

More respondents agreed (39% for EIA regimes, 34% for the 1994 Habitats Regulations) that the proposed enabling powers in relation to Scotland’s EIA regimes and the 1994 Habitats Regulations will not impact directly or indirectly on the costs and burdens placed on businesses, the public sector, voluntary and community organisations, than did not (17% for both).

Across both questions, many respondents responded that they were unsure, had other views or did not answer the closed question.

Key themes and issues raised by respondents included:

Potential impacts directly or indirectly on the costs and burdens placed on businesses, the public sector, voluntary and community organisations

• For both the EIA regimes and the 1994 Habitats Regulations, more respondents agreed that the enabling powers themselves were not likely to result in any immediate impact directly or indirectly on the costs and burdens placed on businesses, the public sector, voluntary and community organisations. However, some respondents did highlight potential impacts as a result of future use of the powers.
• Some respondents therefore suggested that in advance of any future change or amendment, a Business Regulations Impact Assessment (“BRIA”) and other relevant impact assessments should be undertaken to consider any potential consequences. Respondents were also careful to note that this should be subject to consultation and engagement with relevant stakeholders.
• Some respondents also thought that the enabling powers could allow for legislative changes to be implemented that could have a beneficial impact on businesses.

Lack of detail

• A few respondents felt there was not enough detail provided at this stage to assess whether or how the enabling powers could have impacts on businesses, the public sector, voluntary and community organisations.

Effect on Island Communities (Q9-10)

More respondents agreed (34% for EIA regimes, 32% for the 1994 Habitats Regulations) that the proposed enabling powers would not have any effect on an island community that is different from the effect on other communities, than did not (7% for EIA regimes, 5% for the 1994 Habitats Regulations).

More respondents chose to provide no answer to these closed questions than any other in the consultation (24%) and those respondents did not provide further comments in the free text fields.

Key themes and issues raised by respondents included:

Potential Effects on Island Communities

• A few respondents suggested that, although the proposed enabling powers themselves will not likely have any effect on an island community that is different from the effect on other communities, there may be effects to consider when the powers are used. They suggested that this was another important reason for full consultation in advance of the powers being used and that this should include appropriate assessments.

Lack of detail

• A few respondents raised that they felt there was not enough detail provided at this stage to assess whether or how the enabling powers could have any effect on an island community that is different from the effect on other communities.

Impacts on People with Protected Characteristics (Q11-12)

Many more respondents agreed (49% for EIA regimes, 40% for the 1994 Habitats Regulations) that the proposed enabling powers in relation to the EIA regimes will not have any impact on people with protected characteristics, than did not (2% for EIA regimes, 3% for the 1994 Habitats Regulations).

Across both questions many respondents responded that they were unsure, had other views or did not answer the closed question. All respondents who chose not to answer these closed questions also provided no written comments in the free text boxes.

Key themes and issues raised by respondents included:

Potential Impacts on People with Protected Characteristics

• Respondents provided fewer comments to these questions than any others in the consultation. A few respondents suggested that, although the proposed enabling powers themselves will not likely have any impact on people with protected characteristics, there may be impacts to consider when the powers are used.
• They suggested that this was another important reason for full consultation in advance of the powers being used and that this should include appropriate equality impact assessments, including engagement with relevant representative organisations, to ensure changes to the rules take account of the needs of various groups within society.

Lack of detail

• A few respondents again raised that they felt there was not enough detail provided at this stage to assess whether or how the proposed enabling powers in relation to the EIA regimes and the 1994 Habitats Regulations will not have any impact on people with protected characteristics.