Keeping it clean

There’s a new environmental regulator in town following the UK’s departure from the EU – and we’re keen to promote understanding of our role, how concerns can be brought to our attention and how we plan to work with others to address shortcomings.

Environmental Standards Scotland (ESS) formally took up the powers granted to it through the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 (“the Continuity Act”) on 1 October 2021.

The new body is charged with scrutinising both compliance with, and the effectiveness of, environmental law in Scotland, now that the EU and the European Environment Agency are no longer monitoring standards and the application of the law in the UK.

ESS has been established as a non-ministerial office – independent of the Scottish Government and ministers and accountable to the Scottish Parliament. Our role encompasses any legislative provision concerned with environmental protection, and the bodies under our scrutiny include all public authorities responsible for implementing those laws in Scotland – including bodies exercising public functions on behalf of a public authority. The Scottish Government, regulators such as SEPA and Nature Scot, local authorities and health boards, and the likes of Scottish Water all therefore come under our jurisdiction.

The work of our organisation will be directed by a board, chaired by Jim Martin – no stranger to oversight roles following earlier stints as Scottish Police Complaints Commissioner and Scottish Public Service Ombudsman, and currently chair of the Scottish Legal Complaints Commission.

Getting into shape

While our new body is now officially up and running, and can begin to consider and investigate issues brought to our attention, there is still some work to do to finalise our ways of working and to identify the areas of law we will be focusing on. There is therefore an opportunity for readers of this Journal to help inform the organisation’s approach and its early priorities.

We have published an Interim Strategic Plan, setting out how ESS intends to carry out its role while a final plan is prepared for submission to the Scottish Parliament for approval in 2022. We will consult formally on a proposed Strategic Plan next spring but, in the meantime, we are keen to hear from those at the sharp end of the implementation of environmental law – what works, what doesn’t and how could things be improved?

As our vision, published earlier this year, makes clear, our focus is very much on working with all stakeholders to improve environmental outcomes for Scotland’s communities and wildlife. We are therefore keen to hear from those involved in interpreting and implementing environmental law and standards in Scotland to shape our future work programme.

As well as our vision, we have set out a number of principles that will underpin our work and guide our approach:

• We will target our efforts and resources where we can add most value – focusing where our contribution is needed most or will make most difference.
• We will seek to resolve issues through agreement wherever possible – having recourse to our formal powers where we judge it is necessary to deliver the outcome expected.
• We will be evidence driven – seeking a wide range of inputs and expertise to inform our work and to support our decisions and advice.
• We will be open and transparent – keeping people informed about the progress of our work and providing opportunities to input to and influence it.
• We will seek opportunities to work in partnership with others – working closely with all relevant stakeholders to ensure that our collective efforts deliver benefits for environmental protection and enhancement.

Engagement plans

Over the new few months, we will be attempting to put these principles into practice as we begin to engage with a wide cross-section of public authorities, NGOs, communities and businesses about the challenges they face and observe in implementing environmental law in Scotland.

We are keen to hear from anyone with concerns about compliance or effectiveness – and a simple “representation” form can be downloaded from our website to detail your concerns. These will be considered alongside evidence and data from a wide range of sources to prioritise and target our investigations and our approaches to the authorities concerned to seek improvements.

We don’t yet have a shortlist of priority issues – we want that to be informed by the evidence and by feedback from our stakeholders. We can guess what some of the issues might be – and are beginning to see representations brought to us – but we want to take our time before prioritising our early analysis and investigative work. Having said that, we have already identified one issue that we intend to investigate.

Early priority

In March 2021 the European Court of Justice issued a judgment confirming that the UK (including parts of Scotland) had “systematically and persistently” failed to meet statutory limits for nitrogen dioxide for at least seven years, between 2010 and 2017. Given the significant health impacts of air pollution and the contribution it makes to premature deaths, the ESS board determined early on that this was something they were concerned about.

While efforts to improve air quality in Scotland continue – including the recent publication of Cleaner Air for Scotland 2 by the Scottish Government – significant questions remain as to whether air quality limit levels will be met going forward. In view of this, and taking into account the serious, longstanding and intractable nature of the failure to meet limit levels, the ESS board has taken the decision to launch an investigation into the arrangements put in place by the Government to execute compliance with statutory air quality limit levels in respect of nitrogen dioxide.

Compliance steps

Depending on what we find, and how our investigation proceeds, ESS has a range of statutory powers to help secure compliance by authorities, or to improve the effectiveness of the application of the law. These include powers to require information from public authorities (information notices), to require authorities to take steps to address failures (compliance notices), or recommending that the Scottish Government takes action to address systemic failures (improvement reports). In addition, and only where we consider that a failure or the impact of a failure is, or is likely to be, serious, we can apply for a judicial review.

However, despite granting us these formal powers the Continuity Act also makes clear that we are expected to work with authorities to try to resolve issues informally wherever possible – given that securing agreement about the improvements that should be made is likely to be more effective, efficient and timely.

This has informed the drafting of one of our principles (see above), and is written through our investigation and enforcement procedures. From the stage we first identify a potential shortcoming, through prioritisation and investigation, up to the point that we finalise our conclusions and recommendations, we will seek informal resolution with the public authority or authorities concerned. Only where we consider that this is not possible will we resort to formal enforcement action.

We’re clear that there are important challenges that must be addressed if Scotland is to achieve the environmental standards and goals it has set. We are looking forward to playing our role in securing improvements to both compliance and effectiveness, and intend to work collaboratively with all those concerned about the application of environmental law in Scotland.

So if you have experiences that you would like to share – good, bad or otherwise – please do get in touch with us through the Environmental Standards Scotland website. We’d be delighted to hear from you.