The Cabinet Secretary for Climate Change, Environment and Land Reform Roseanna Cunningham has said that Scotland will continue to play its full part in contributing to EU-wide environmental policies. Protection of species/ sites, and environmental impact assessment therefore seem likely to continue, and rightly so.
The influence of these legal protections can be seen in recent Court of Session decisions on wind energy projects.
The RSPB were successful in their judicial review of consents for 4 offshore wind farms (Inch Cape, Seagreen Alpha and Bravo, and Neart na Gaoithe).
The issue is the assessment of the impact of the projects on the Forth Islands and Fowlsheugh Special Protection Areas, Atlantic puffin, northern gannet and black-legged kittiwake.
The projects triggered Appropriate Assessment of the effects of the projects on the sites’ conservation objectives; and environmental impact assessment.
The judge held that the information which supported the conclusions in the Appropriate Assessment, which included methodologies for assessing risks, should have been shared, by publication, notification and consultation, because the Scottish Ministers had considered the Appropriate Assessment as part of the environmental information for the purposes of the EIA decision.
There were also flaws in the Appropriate Assessment, which did not allow for the exclusion of, or exclude, adverse in-combination effects on site integrity to the requisite degree of certainty in respect of all qualifying interests of each Special Protection Area; and the development authorisations purported to be certain about the absence of adverse effects without addressing all effects which have to be considered.
Lastly, the Ministers had failed to give consideration to protection of conservation interests in the Forth and Tay marine draft Special Protection Area.
The other decision is about the Stronelairg (on shore) wind farm. The Inner House of the Court of Session reversed the Lord Ordinary’s decision to quash the consent.
A key issue was whether the report by Highland Council should have been advertised as “additional information” under the EIA Regulations. On appeal, new information was produced which showed that Regulation 14A notices had been published, so it was no longer relevant whether the report was “additional information”. However, as the locations and heights of the turbines were known, the Court said that creating images from different angles on the surrounding landscape does not provide the public with any information not already readily known and understood.
It is clear from these cases that there must be scope for simplification of the law post Brexit.