Enabling powers for Scotland's Environmental Impact Assessment Regimes & Habitats Regulations: Analysis of Consultation Responses

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.

Policy Context

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”).

Our EIA regimes and the Conservation (Natural Habitats, &c.) Regulations 1994^[2] ("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^[3] ("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 The 1994 Habitat Regulations and the EIA regimes were originally made and then subsequently amended using the powers in the 1972 Act. However, following the UK's withdrawal from the EU, the 1972 Act was repealed and these powers have been lost.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.

The consultation

The consultation set out information and questions relating to the EIA regimes, the 1994 Habitats Regulations and the Scottish Government approach to impact assessments for these proposals.

The consultation contained thirteen questions – three open and ten closed, each with an open “other” field to provide further comments. The questions covered:

• 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)

Appendix 1 contains a complete list of the consultation questions.

Aim of this report

This report presents a robust and systematic analysis of the material submitted in response to the consultation.

Approach to the analysis

The analysis seeks to identify the most common themes and issues. It does not report on every single point raised in the consultation responses. All responses, where the respondent has given permission for their comments to be published will be made available on the Citizen Space website.

Equal weighting has been given to all responses. This includes the spectrum of views, from large organisations with an international, national or UK remit or membership, to individuals’ viewpoints.

Tables demonstrating a breakdown of the number of responses to each question are included at the beginning of each section. This analysis report quotes and paraphrases some of the comments received. However, this does not indicate that these comments will be acted upon or given greater credence than others.

In line with qualitative reporting practices, phrases such as ‘many’, ‘several’ or ‘some’ have been used to indicate the volume of responses in relation to the particular points or themes discussed. Here, ‘most’ can be understood as the majority of respondents, ‘many, ‘several’ or ‘some’ as a smaller subset of respondents, and ‘a few’ as a minority of respondents. Phrases like ‘one respondent’ or ‘one participant’ are used where a respondent raised pertinent points that summarised, or contrasted, the views of others.

Key themes in each section have been organised based on their frequency raised over all consultation responses.

Comment on the transferability of the consultation findings

As with all consultations, the views submitted in this consultation are not necessarily representative of the views of the wider public. Anyone can submit their views to a consultation, and individuals (and organisations) who have a keen interest in a topic – and the capacity to respond – are more likely to participate in a consultation than those who do not. This self-selection means that the views of consultation participants cannot be generalised to the wider population. For this reason, the main focus in analysing consultation responses is not to identify how many people held particular views, but rather to understand the range of views expressed and the reasons for these views.

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. There were no blank or duplicate responses so all 41 responses were deemed valid and included in the analysis.

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 (see Table 1 below).

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 (see Table 2).^[4]