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

Section A: Environmental Impact Assessments (EIAs)

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

Context

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.

We sought 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.

We also sought views on whether limitations should be placed on these powers, and what those limitations should look like. A key consideration highlighted in the consultation was the ability to ensure the appropriate balance 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.

Balance of Opinion for the Scottish Government’s Rationale for seeking the enabling powers

Overall a majority (59%) of all respondents agreed with the Scottish Government’s rationale for seeking the enabling powers in closed responses to Question 1. 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%).

Some respondents who provided no answer to the closed question provided views in the open text fields. Many respondents who agreed or disagreed with the Scottish Government’s rationale also provided additional views in the open text fields.

Amongst organisational responses, a smaller majority of 53% agreed with the rationale and 10% did not. The remaining were either unsure (2%), provided other views (20%) or chose not to answer the closed question (15%) (see Table 3). There were significantly more comments provided by organisational responses.

In response to Question 2, 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%).

Open text fields for both Questions 1 and 2 provided a space for respondents to expand on their answer where they selected “Other”. Many respondents chose to provide additional views in these fields regardless of their response to the closed question.

Question 3 was an open question asking “Do you have views on how we can set the scope of/limits on these enabling powers?”

Views provided by respondents in the open text fields for Questions 1 to 3 tended to cover all three questions and so have been analysed together when identifying common themes and issues. Where comments referred to a specific question this has been reflected in the analysis.

Key Themes and Issues Raised

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 in the consultation and thought that this made it difficult to assess whether further enabling powers were necessary.

For example, one respondent highlighted that the consultation sets out that amendments can already be made in relation to the EIA regimes for specific or limited purposes, but doesn’t set out what these are.

Other respondents pointed to the existing powers flagged in the consultation document which they believe could be used to make the administrative changes described in the consultation, at least in the immediate term.

Two respondents suggested that the simplest way to achieve the changes described in the consultation would be to extend the duration of the keeping pace powers in the 2021 Continuity Act until 2031, as made possible by Section 4 of that Act.

Some respondents also thought that the examples provided in the consultation covered only relatively “small” and administrative amendments. There was concern amongst these respondents that too little detail was provided regarding how the powers may be used for any larger scale reform.

Two respondents suggested that any changes to the EIA regime legal requirements should be made via primary legislation, in order to provide clarity about the changes, the purpose of any changes and ensure appropriate levels of parliamentary scrutiny.

Public Consultation and Stakeholder Engagement

The most common concern amongst respondents regarded 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. These views were found especially amongst those who agreed with the Scottish Government rationale but included some others. They were also expressed across the variety of individuals and organisational categories.

Key comments included that:

• Amendments should only be made following a transparent and open dialogue with public and interested parties.
• Any proposed changes to any of the EIA regulations must be supported by full public consultation for all EIA regimes.
• only after proper and full consultation with those potentially impacted by projects and/or developments.
• ensure the scope retain the crucial function of publication to seek the views of interested parties and the public, specifically the local communities most directly affected.

Reasons given for this were:

• to ensure there are no unintended consequences of the changes
• to ensure stakeholders are kept aware and fully engaged with the EIA process.
• to ensure compliance with Article 8 of the Aarhus Convention, which sets out the rights of the public to participate in the preparation of executive regulations.

Respondents also suggested that part of this should include direct engagement of relevant stakeholders.

The Town and Country Planning process was highlighted by a respondent as an existing example of the type of robust public consultation process which could be adopted for future amendments related to other EIA sectors.

Environmental standards

Despite a majority of respondents agreeing with the rationale for enabling powers, there was a significant concern amongst some respondents that the environmental protections offered by the EIA regimes could be weakened by future amendments.

Some respondents suggested limiting the enabling powers in such a way that there could be no reduction in the level of environmental protection. Others further suggested that the enabling powers are used only to strengthen environmental law and its application in Scotland.

These views were shared particularly amongst Public Bodies and Environmental NGOs. Some highlighted the climate emergency and biodiversity crisis, as well as large scale developments which are being brought forward, such as offshore wind, as reasons for the necessity of this.

A few respondents specifically suggested that this limit should be achieved through inclusion of a “non-regression” clause or test.

Suggestions for conditions a “non-regression” clause or test could require to be met included:

• Scottish Ministers can make regulations under the powers if they are satisfied that:
  • the regulations do not reduce the level of environmental protection provided by the EIA Regime or the 1994 Habitats Regulations.
  • there is no reduction in opportunity for scrutiny or to challenge assessments
  • there is no loss of transparency in EIAs
• Scottish Ministers lay before Parliament and publish a statement explaining why they are satisfied that this non-regression test has been met.
• Scottish Government devises and publishes a method of evaluating a non-regression test
• EIAs fully take into account the climate impact of a plan or development including the direct, indirect, secondary, cumulative, and transboundary effects.
• Scottish Ministers seek independent expert advice that a non-regression test has been met, including from bodies such as Environmental Standards Scotland and NatureScot.

However, in line with the majority of closed responses agreeing with the rationale for Scottish Government seeking the enabling powers, there was also some recognition, including amongst some of the respondents with concerns, that flexibility and adaptability was necessary and could provide benefits to environmental standards. It was suggested that they would allow for practical improvements, an opportunity for better alignment across the regime, address the need for greater administrative flexibility and efficiency and make amendments that are appropriate to future circumstances.

One respondent also flagged specific issues or developments which could be addressed in amendments, such as erroneous omissions in legislation which are weakening environmental protections, project types included in the schedules for new technologies e.g. battery storage, solar and to reflect developments in renewables more fully.

Scottish Parliamentary Procedures

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

A few respondents proposed a requirement that any secondary legislation brought forward under the enabling powers is subject to the affirmative procedure in order to provide appropriate Parliamentary scrutiny.

Another respondent suggested that minor amendments could be made by negative procedure, whereas wider-ranging amendments should be subject to greater Parliamentary scrutiny than that offered by the negative procedure.

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.

Some respondents suggested that it might be necessary to introduce an independent review body or make use of existing independent bodies to regularly review and provide guidance in order to

In response to Question 2, one respondent commented that there should be limitations to enabling powers to recognise a separate function for periodic and independent review of EIA information requirements, particularly to adapt to changing circumstances wrought by climate change and biodiversity loss.

Other suggestions included setting “sunset clauses” on the enabling powers to ensure their relevance and effectiveness is reviewed after a predefined period of time; or the introduction of a requirement for Ministers to lay a report before Parliament every three years outlining how the powers have been used.

Consistency across legislative regimes

Some respondents were concerned that the enabling powers presented a potential 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.

Respondents suggested that the potential for divergence should be considered in Impact Assessments produced when proposals are made for use of the powers in future. Specific potential impacts highlighted included:

• Creation of obstacles to delivery of projects required for energy transition
• Additional burden in developing internal policy, governance, data management and systems etc., ultimately impacting customer bills

There was also acknowledgement amongst some respondents that the current legal framework is already fragmented and the enabling powers could provide opportunity for better streamlining and alignment.

One respondent suggested that the powers should apply to as wide a range of the regimes as lies within Scottish competence to help ensure consistency. Another respondent specifically highlighted the UK Government’s plans to replace EIAs with a system of EORs as an opportunity to align to deliver overall synergies and environmental benefit.

One respondent suggested that any process to make amendments must seek to harmonise and streamline regulations, and remove unnecessary duplication. There were also suggestions that there is a need for greater legal clarity in this space and that guidance could decrease the chances of misalignment and any consequent impact on developers.

Several respondents flagged the Electricity Works (Environmental Impact Assessment (Scotland) Regulations 2017, in particular, as an area where there would be risks of divergence with the wider EIA regimes, or indeed where there would be opportunities to standardise documentation across regimes. These respondents were dissatisfied that the Electricity Works (Environmental Impact Assessment (Scotland) Regulations 2017 were not part of this consultation.