Fighting for Scotland’s Nature after Brexit

*Rare dune habitat at Coul Links. Planning cases like this are informed by EU laws which are at risk as we leave the EU. © Scott Leatham*

In 2013, the Scottish Coal Company ltd., a subsidiary of Miller Mining, went into liquidation, leaving the question of who would take responsibility for the damaging opencast mines it had operated. A first court decision found that the company could simply ‘disown’ the contaminated land it had polluted during its operation, and whose maintenance was a continual draw on resources. To reverse the damage caused by the private company, the taxpayer would have to pay.

However, following the ‘polluter pays’ principle, a later court ruling found that a company entering liquidation could not simply abandon the land it had contaminated, and that the cost to restore the areas impacted should fall to those who contaminated it. In short, the coal company should include these costs in its liquidation. The principle that whoever caused the pollution should pay for its reversal was instrumental in holding the mining company to account for the damage it had caused.

That principle is one of four that forms the basis of EU Member States’ environmental policy. The Scottish Wildlife Trust, together with dozens of partners in Scottish Environment LINK, are calling on the government to ensure that at least these standards are maintained after the UK leaves the EU.

Quick explainer: What are the EU environmental principles?

The four main EU environmental pricniples are:The precautionary principle:Where there is uncertainty about the risk of environmental harm, the precautionary principle allows protective measures to be taken without having to wait until the harm materialises. This principle is valuable in managing risk where there is uncertainty about the environmental impact of an issue. It’s often at the heart of planning decisions, with significant case history to back this up – where a development proposal cannot be sure about environmental risk, the precautionary principle insists these are rejected.The prevention principle:This principle requires preventive measures be taken to anticipate and avoid environmental damage before it happens. It is central to the UK’s planning policy and underlies lots of environmental legislation.Environmental damage should be rectified at source:

Working alongside the prevention principle, this ensures damage or pollution is dealt with where it occurs. It operates in many areas of UK environmental policy to prioritise the way environmental damage is addressed.

The polluter pays principle

This principle holds that the person who causes pollution should bear the costs of the damage caused and any remedy required. It plays a significant role in environmental management, acting as a deterrent and directing accountability for harm.

The ‘integration principle’ is often mentioned alongside these. It isn’t an express principle in the same way, but exists in other treaties, like the Treaty of Amsterdam, to ensure that these principles are integrated across all EU functions.

Why is it so importnat now?

The Scottish Government has recently declared a climate emergency. The First Minister has indicated strong support for meeting the conclusions of the Committee on Climate Change report – for Scotland to have net-zero emissions by 2045. That means drastically cutting greenhouse gas emissions and using natural and technical solutions to absorb what little emissions remain. These are welcome interventions in the discussion.

At the same time, studies from around the world, from WWF’s Living Planet 2018 report to the just-released findings of the UN IPBES Global Assessment, detail a world in flux as ecosystems collapse. As the IPBES Chair says,

The health of ecosystems on which we and all other species depend is deteriorating more rapidly than ever. We are eroding the very foundations of our economies, livelihoods, food security, health and quality of life worldwide.

The report says that ‘transformative change’ is essential, and that action is necessary now, from the very local to the global. Scotland can and must do more than discuss this – we need an Environment Act that reproduces our protections in the EU and matches our ambition. Over 22,000 people have already called for this.

At present, as a member of the EU, Scotland is part of the largest body of environmental laws and regulations in the world. This has proved reactive to many emerging issues, like neonicotinoids and bee decline, often taking the global lead. Whilst imperfect, this network of norms, principles, laws, and governance mechanisms, in short the EU institutions, must at least be fully replicated in Scotland.

But, as Scotland takes the lead in declaring a climate emergency, in promising net-zero emissions by 2045 at the latest, there is room and need to go further. The First Minister has claimed Scotland is already a world-leader, but this promise must be matched by actions and legislation to underpin it. These ambitions need to be enshrined in law, with independent means of accountability, including access to environmental justice.

What are we doing about it?

Th Scottish Government has recently consulted on how existing ‘principles and governance’, that Scotland enjoys as part of the EU, can be replicated in Scots law and through establishing new mechanisms. At the moment, the EU oversees how Member States comply with environmental protections and provides a complaint mechanism that allows citizens to challenge state’s actions or inaction. It also proves a framework of principles that lay out how the EU and all its functions should act in relation to the environment.

To achieve at least the same level of protection, we need to replace EU oversight and complaints mechanisms with Scottish ones: establishing a properly-resourced, fully independent watchdog for the environment, and an Environmental Court based on the Aarhus Convention for ‘Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters’.

Quick explainer: What is the Aarhus Convention?

The Aarhus Convention is, to give it its full title, the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters. It’s an international treaty coordinated through the United Nations in 1998 in Aarhus, Denmark, to which the UK is signatory. The Convention, as the name suggests, is based on three principles: access to information, public participation in decision-making, and access to justice in environmental matters. It forms a set of basic rules to promote the involvement of citizens in environmental issues, as well improving accountability and enforcement of law.

In the most recent review, concluding March 2019, the UK was found to be failing significantly to uphold the principles of the Convention.

If Scotland’s commitments are to go further, it stands to reason that guiding principles should go further to enable this. To do so, the rights of future generations should be included as an environmental principle. As a concept, the Welsh Assembly committed this to law in the Well-being of Future Generations Act. The United Nations said, at the time, “what Wales is doing today, the world will do tomorrow”.

So, in addition to replicating the four main EU environmental principles as the basis of government policy, we need to ensure these are integrated across government and public bodies (as is currently the case), and that they reflect the needs of future generations. To those ends, the Trust believes a new duty should include two further principles: the integration principle, and the ‘future generations’ principle.

We’re therefore calling for six principles:

The precautionary principle
The prevention principle
The principle that environmental damage be rectified at source
The polluter pays principle
The integration principle
The future generations principle – achieving prosperity today must not prevent future generations achieving prosperity.

Replicating the mechanisms for complaints and oversight, and enshrining the governance principles in a new duty, are essential acts. But they are not, by themselves, sufficient. Compliance with EU standards across the Member States is not only a function of hard legal powers, but also soft powers of norms, influence, and cooperation. That is, we don’t simply comply with the law because of the legal ramifications, but because we have commonly held ideas about how we ought to behave. These will be far harder to replicate outside of the community in which they emerge.

To be at the cutting edge of environmental protection, we need the government to ensure that communities of knowledge and practice continue post-Brexit, from joint research projects to cooperation and the sharing of knowledge. This would be helped by some form of affiliation with the EEA, whether as sub-national entity, or as the UK, which Scotland should continue pressing for.

Quick explainer: What we’ve asked the Scottish Government for

- Following the damming UN report into UK’s compliance with the Aarhus Convention, and loss of EU complaint mechanisms, Scotland should establish a new Environmental Court according to the principles of the Aarhus Convention.
- Scotland should establish a fully autonomous environmental watchdog to oversee government and public authority activity, answerable to the Scottish Parliament.
- The principles should be the basis of policy, rather than just being guidance for policy to ‘have regard to’, as the consultation document currently suggests.
- The environment is fundamental to economic and social activity – to a greater or lesser extent, all policymaking has the potential to impact on the environment. The government should not solely adjudicate on which areas of policy are deemed to have environmental significance, and thus all areas of policymaking should be subject to oversight.
- This level of integration across policy areas is not new: as signatory to the UN Sustainable Development Goals, all areas of government activity are supposed to be informed by consideration of the Goals.
- At present, the Treaty of Amsterdam requires that the environmental principles be integrated across all EU activity. Scotland should replicate this level of integration to ensure environmental policies are not developed in silos, nor policies developed without being informed by environmental principles.
- Sustainability and environmental impact are responsibilities of all areas of government and local authority policy.
- The Trust believes a new duty should adopt all four of the EU’s principles, with the addition of the integration principle (already part of EU law by the Treaty of Amsterdam), and a new ‘future generations’ principle to ensure the needs of future generations are not hampered by actions now. This would create a world-leading set of principles on which policy should be based, ensuring Scotland has an environmental legislative framework fit for its commitments.

This is realistic. And we believe these changes are the necessary foundation for addressing the scale of the crises we face. More than necessary, they are desirable and earned. Much of what we’re calling for, together with our partners across Scottish Environment LINK and beyond, is already policy at the European level – around 80% of environmental law comes from the EU. The remainder is Scotland’s ambition.

You can read our full submission here, and Scottish Environment LINK’s more detailed submission here, to which the Trust contributed and supports.

Scott Leatham, Policy Specialist

@scott_leatham