Following public lobbying by the Scottish Government, Westminster made the announcement on 27 November 2008 that powers for planning and nature conservation in the marine area out to the 200 nautical mile territorial limit are to be executively devolved. The transfer of power has been warmly welcomed by the Scottish Government, and will be of particular importance to renewable energy developers including those involved in offshore wind and wave power.
To date, whilst the Scottish Government could deal with planning and environmental issues out to the 12 nautical mile limit, and fisheries control to the full 200 nautical mile limit, the patchwork of authorities and regulations was thought to be hindering effective management, development and conservation of the marine area.
Few individuals would dispute that a simpler, more streamlined and effective marine control system is required. As the number and type of marine users increases, users with markedly different interests are competing for resources. Recreational users and the fishing industry require clean, unspoiled waters, whilst those laying cables and pipelines need assurances that their investment will not be damaged by trawlers and dredgers. Against this backdrop of increasing human demand, there is a desire to safeguard important environmental areas. It had been argued that only by consolidating powers in one body could it be ensured that the interests of all parties are satisfied.
In a statement issued through the Scottish Government website, Cabinet Secretary for the Environment, Richard Lochhead, described the move as a "sensible approach" that will see the Scottish and UK administrations working together to deliver marine management. The transfer of power is not immediate, but will be set out in the Scottish Marine Bill, expected in March 2009, with corresponding provisions in the next draft of Westminster's Marine Bill.
Less Muddy Waters?
Whilst the changes have been warmly welcomed by the Scottish Government and the Scottish press, an assessment will be required as to how these changes will impact on parties involved in the marine environment. The extent to which the patchwork of authorities and legislation can be simplified will not be evident for some time, and at present no mention is made of oil and gas consents. Given the size of the oil and gas sector in Scotland, and the impact this can have on related areas, this represents a significant degree of power still held by the UK bodies.
If, as expected, licensing powers in relation to oil and gas installations are retained by DBERR, a number of developments will continue to require approval from a combination of Scottish and UK bodies. Whilst the Scottish Government could grant planning consent for developments, a licence for pipelines would continue to be issued by DBERR. This will have implications beyond the oil and gas sector. One emerging technology with the potential to allow for cleaner energy generation is carbon capture and storage, whereby carbon dioxide emissions from coal and gas burning power stations are captured and injected into offshore locations, perhaps using existing gas pipelines. Given the link between this process and existing oil and gas pipelines, carbon capture projects will still require consent from both North and South of the border.
The Crown Estate too will retain an interest in offshore developments. As the owner of the seabed out to the 12 nautical mile mark, and the body empowered to grant licences under the Energy Act 2008 in the Renewable Energy Zone (i.e. from 12 to 200 nautical miles out), the Crown Estate will still be required to grant leases or licences for the vast number of developments which require access over this area, whether that be for pipelines, cables, or near shore developments.
Following calls from a number of parties, it is widely expected that Scotland will create a Scottish MMO – an equivalent to the Marine Management Organisation to be created in England under the Marine Bill. It is hoped that by creating this overarching body to oversee all sea interests, the onerous patchwork of consent and regulation can be improved.
Whilst the UK Marine Bill has had an unusually long gestation period (it is over seven years since it was first announced that the Government would look at improving marine conservation), progress is being made. The UK Marine Bill is expected to be redrafted in 2009, with the Scottish Marine Bill emerging around the same time. Contemporaneously to these developments, the EU has adopted its own Marine Strategy Framework Directive, seeking to protect the marine environment. The terms of the Directive will no doubt be taken into account in the final Marine Acts, as the Directive requires to be transposed into UK law by July 2010.
There will be continued dialogue on marine management for some time. Any party involved in the marine area should be aware of the opportunities and be prepared to have their voice heard in what is a unique opportunity to improve the efficiency of the development and protection of our seas.