Publication - Consultation paper

Guiding principles on the environment: draft statutory guidance

Draft statutory guidance on the guiding principles on the environment and the duties set out in Part 2 of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021.

Guiding principles on the environment: draft statutory guidance
5. Interpretation and application of the principles

5. Interpretation and application of the principles

5.1 Duty holders should ensure that they have had due regard to the guiding principles in individual decision-making processes and, in so doing, have had regard to this guidance.

5.2 As noted in section 2 of this guidance, a duty to have "due regard" to the guiding principles means that the duty holder is required to give the regard to those guiding principles that is appropriate in all the circumstances. The duty must be performed with a substantial, rigorous and open-minded approach. The duty must be given appropriate weight while taking into account other considerations, such as other duties in legislation or other policies.

5.3 The interpretation and application of the guiding principles must be balanced and proportionate, and weighed against other statutory obligations and relevant considerations. Each individual situation will be different, and so will require a careful interpretation and application of the principles, when developing and delivering policy commitments. As the duties to have due regard to the guiding principles have to be weighed against other statutory obligations and relevant considerations, the application of these duties will not prevent environmental damage from occurring altogether. Different levels of damage may be acceptable, according to the circumstances of each individual policy decision. For example, the creation of key infrastructure inevitably causes some damage to the environment. Having due regard to the guiding principles will ensure that this damage is further considered, and avoided or mitigated where possible, as the principles are weighed against the other factors in the decision-making process.

5.4 As required by section 16 of the Continuity Act, the duties to have due regard to the guiding principles in sections 14 and 15 of that Act are to be complied with by Ministers and responsible authorities with a view to protecting and improving the environment and contributing to sustainable development. This will promote better decision-making, connecting the individual decision with the environment that ultimately underpins our health, our society and our economy; and will help to deliver policies that enhance our natural assets and produce better outcomes for our environment and people.

5.5 The case studies below provide an illustration of how the principles could be applied in practice and, in some cases, how interaction between the principles could be considered and applied.

The principle that protecting the environment should be integrated into the making of policies

5.6 This principle, usually referred to as the integration principle, involves the consideration of environmental protection across policy making. Principle 4 of the 1992 United Nations Conference on Environment and Development in Rio de Janeiro states: "In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it".[14]

5.7 In EU law, Article 11 of the TFEU requires that environmental protection requirements are integrated into the definition and implementation of all the EU's policies and activities, with a view to promoting sustainable development. In recent years, environmental policy integration has made significant progress, including in relation to energy policy, the shift towards a low carbon economy and efforts to combat climate change.[15]

5.8 The integration principle in the Continuity Act is the principle that protecting the environment should be integrated into the making of policies. This means duty holders will need to consider any potential environmental impact in the development of policies across all sectors of government and the wider public sector. This principle, which reflects a commitment to sustainable development, has an important role to play in creating a more joined-up approach to protecting the environment across policy areas.

Figure 4 Examples of policy decisions where the principle of integration might be significant

Examples of policy decisions where the principle of integration might be significant.

  • Local development plans and local spatial strategies – good practice will reflect environmental considerations in all elements of strategies and plans.
  • National policy strategies – it is important that environmental considerations are integrated into the design of national policy strategies, including those that do not have a primary focus on environmental policy.
  • New regulatory regimes – the impact of changing the regulation of an activity or sector should consider the full range of environmental, sustainability and climate impacts of the proposed change beyond the particular activity.
  • Marine planning – the marine planning regime is a good example of the integration of environmental and sustainability considerations across a whole policy.

The precautionary principle as it relates to the environment

5.9 The precautionary principle, as it relates to the environment, is defined in the UN Rio Declaration on Environment and Development 1992[16] as, "where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation". This intention was reflected in the EU precautionary principle, and developed through Commission publications[17] and case law.

5.10 The precautionary principle enables protective measures to be taken without having to wait until the harm materialises and is considered a useful tool in approaching risk management. This approach can aid duty holders when weighing up risks, where there is a level of uncertainty about environmental impacts, or where scientific information is lacking about a specific issue. Where there is uncertainty as to the extent of potential environmental damage, but there is evidence of high risks of harm, measures can be put in place to prevent the risk of harm through regulation of activities or products, further research or public information. Duty holders should consider the likelihood of damage as well as the potential severity and wider impacts that may be caused.

5.11 Consideration of the precautionary principle should be informed by –

  • a robust evaluation of the available evidence and the degree of scientific uncertainty;
  • a risk evaluation and an assessment of the potential consequences of inaction; and
  • the participation of all interested parties in the study of precautionary measures, once the results of the scientific evaluation and/or the risk evaluation are available.

Figure 5 Examples of policy decisions where the precautionary principle might be significant

Examples of policy decisions where the precautionary principle might be significant.

  • Water recycling – there are many uncertainties and risks to consider in the regulation of sewage discharge, specifically lowering effluent discharge but also reducing overall water flow and consequences of using recycled water of varying quality. Using the precautionary principle can be used to develop best practice.
  • Chemicals regulation – a precautionary approach can be taken to new substances, or to substances where a new concern is identified, pending further investigation of their safety.
  • Non-native species – there can be a presumption against release of any new non-native species, as it is difficult to know with certainty which species will cause significant environmental and economic damage.

Figure 6 An example of the consideration of the prevention, rectification at source, polluter pays and precautionary principles in decision-making

An example of how the prevention, rectification at source, polluter pays and precautionary principles can be considered in decision-making processes:

Stornoway Deep Water Port – Environmental Impact Assessment

This report was produced in December 2020 (before the coming into force of the duties in the Continuity Act) to support construction and dredging Marine Licence applications and a Harbour Revision Order for the Stornoway Port Authority's Deep Water Port. This project aims to facilitate sustainable economic growth in the Outer Hebrides through increasing the ports capabilities and services that it can accommodate.

The project comprised of a range of components with likely significant environmental impacts including; development of the main quay; heavy load area; access road; drainage works; dredging activities; and building works. The report describes the possible environmental impacts and likely significant effects that may arise, alongside design improvements and mitigating measures.

This environmental impact assessment was conducted before the entry into force of the duties in the Continuity Act. However, we can consider how the issues discussed in the environmental impact assessment illustrate the potential consideration of the guiding principles in future assessments:

  • The principle of prevention would be relevant to many aspects of this decision, including proposals for dredging.

"A slope between the dredged area and remaining habitat will also ensure that the remaining habitat is not undermined".

  • Rectification at source and polluter pays principles would be relevant to waste water management of the site.

"The DWP drainage system has been designed to include oil interceptors with isolation valves, to contain pollutants in the event of an incident during the operational phase".

  • Precautionary principle would be relevant to consideration of non-native species.

"The potential to introduce non-native marine species during construction and operations was identified …. and equipment will be delivered clean to site minimising the risk".

The principle that preventative action should be taken to avert environmental damage

5.12 This principle, commonly known as the prevention principle, states that preventative action should be taken to avert environmental damage. This is intended to prevent environmental damage, rather than react to such damage after it has occurred. Duty holders should, when considering this principle, seek to fully understand the potential impacts of the activity that is the subject of a decision or policy development on the environment. Prevention can be linked to both pollution sources and points of impact. Where a policy may cause environmental harm, risks should be clearly defined, in order for preventative measures to be anticipated and implemented (as appropriate). It can therefore be seen as complementary to the precautionary principle, which operates where information is less certain. When considering the prevention principle, duty holders should weigh up the severity and likelihood of any impact as well as potential for negative longer-term effects. Mitigating options to prevent serious environmental harm should be weighed and evaluated as policy is developed.

Figure 7 Examples of policy decisions where the preventative principle might be significant

Examples of policy decisions where the preventative principle might be significant.

  • Water quality promotion through Nitrate Sensitive Zones and riparian boundaries – river water quality can be secured through preventative measures, ensuring that an excessive load of nutrients or harmful substances never reaches the watercourse.
  • Prevention of health impacts from radioactive substances – the behaviour of people living around nuclear sites is surveyed, to ensure that there is no potentially harmful radioactive dose to the most exposed members of the community.
  • Control on the sale of single use plastic products – banning the sale of single use items, such as earbuds, prevents them from becoming harmful litter.
  • Development of community biosecurity action plans – preventing the introduction or spread of invasive non-native species, such as carpet sea squirt, in the marine environment.

The principle that environmental damage should as a priority be rectified at source

5.13 Article 191(2) of the TFEU states that the principles on which Union policy on the Environment shall be based include the principle that "environmental damage should as a priority be rectified at source", and this language is reflected in the statement of the guiding principles in section 13(1) of the Continuity Act.

5.14 This principle, commonly referred to as the rectification at source principle, prioritises how environmental damage or harm should be addressed at its source, rather than in the wider environment, and by the polluter, rather than wider society. It operates in conjunction with the polluter pays and prevention principles and is a valuable mechanism where prevention of environmental harm cannot be wholly mitigated.

5.15 Working together these principles can provide structure to help guide policy decisions, enabling policy makers to prioritise the manner in which environmental harm is dealt with. Duty holders should seek to understand the potential damage and the impacts the activity could have on the environment. Understanding where the damage originates from and the likelihood of any far reaching impacts, including transboundary effects, will also be important when applying this principle.

Figure 8 Examples of policy decisions where the rectification at source principle might be significant

Examples of policy decisions where the rectification at source principle might be significant.

  • Emissions control from industrial sites – controls on emissions from industrial sites, such as sulphur capture, can ensure that there harm to the environment does not occur.
  • Sustainable Urban Drainage Schemes – these schemes can manage the surface water runoff of new developments in a way that does not put pressure on the environment or existing infrastructure.
  • Spreading of slurry on agriculture land – good practice in slurry spreading can prevent the risk of runoff that can harm water quality in streams and rivers.
  • Preventing plastic pellet loss – the second largest form of micro plastic pollution – with the development of good practice for any business handling or managing this material, as defined in the British Standards Institution Publicly Available Specification.

The principle that the polluter should pay

5.16 This principle, commonly known as the polluter pays principle, was initially recognised at international level by the Organisation for Economic Co-operation and Development in 1972. The polluter pays principle reflects that those who cause pollution should bear the financial responsibility for any damage or remedial action required. Prior to this, disproportionate costs of pollution were being externalised from the polluter to wider society.

5.17 Reflecting Article 191(2) of the TFEU, section 13(1) of the Continuity Act includes the principle that the polluter should pay for environmental damage. This principle aims to ensure that polluters are responsible for their actions and build in/are held accountable for any remediation required. It is important to consider each individual situation on its own merits when taking this principle into account and duty holders will need to ensure a balanced approach is taken e.g. there may be certain instances where a polluter should not pay or cannot pay, or indeed should not pay the full cost. There may also be instances where it is not possible to identify the original polluter.

5.18 There are also complex cases where the potential costs of pollution may occur over many years, or may occur for many years into the future. In such cases it will be necessary to consider whether appropriate financial provision should be made while the economic activity is still taking place, such as through an operator bond or collective sectoral structure. Duty holders should therefore reflect on aspects such as the type of polluter (individual or sector) and their intentions (deliberate action or unintended consequences).

Figure 9 Examples of policy decisions where the polluter pays principle might be significant

Examples of policy decisions where the polluter pays principle might be significant.

  • Providing for decommissioning liability – the future costs of decommissioning a site can be provided for through a bond or fund, ensuring that the costs are paid for from the money raised by the activity itself and not by future public funds, for example the Nuclear Liabilities Fund.
  • Charges and duties – charges and duties, such as the plastic bag charge, air passenger duty and the landfill tax, ensure that the individual consumer faces the cost of their activity on the environment.
  • Compensatory actions through planning system – planning permission is sometimes granted with conditions for compensatory actions, such as the creation of a new area of habitat to replace one lost through the development.

Figure 10 An example of where multiple environmental principles have been taken into consideration when undertaking an SEA

An example of how multiple environmental principles can be taken into consideration when undertaking an SEA:

SEA of Sectoral Marine Plan for Offshore Wind Energy

The Sectoral Marine Plan for Offshore Wind Energy ("the SMP") (published in October 2020, before the coming into force of the duties in the Continuity Act) identified sustainable plan options for the future development of commercial-scale offshore wind energy in Scottish waters. The SMP took a balanced approach to the identification of options, seeking to minimise potential adverse effects on other marine users, economic sectors and the environment, whilst maximising opportunities for economic development, investment and employment in Scotland. The sectoral marine planning process and the SEA process followed an iterative approach, informed via stakeholder engagement and evidence from the related economic, social and environmental assessments, to support the identification of the Plan Options. For example, updated foraging ranges for key seabird species, published once the draft SEA had been completed, were used to inform the conclusions of the Appropriate Assessment and the final SMP.

The plan was developed before the Continuity Act introduced the guiding principles on the environment, however we can consider how the issues discussed in the environmental impact assessment illustrate the potential consideration of the guiding principles in future assessments.

The assessment and consultation process identified potential gaps in knowledge and data which will need to be addressed at future plan and project levels. The SMP identified, for example, that additional data is required in relation to marine mammal and abundance and distribution in order to inform future planning and assessment effort.

Plan-level mitigation measures have been implemented, which can be considered in the context of the precautionary and preventative principles.

For example, the SMP is subject to iterative plan review and management, to ensure that the SMP and underpinning assessments are informed by the best available and most up-to-date scientific research and understanding, including the outputs of project-level assessment and monitoring (required by consent and licence conditions) and that the SMP accurately reflects the emerging spatial and regional context (i.e. level of activity in the region). Furthermore, project-level assessment is required before development can commence – which will be informed by further detail regarding the exact scale, nature and location of proposed development and the receiving environment and further spatial planning is required within each plan option, in order to reduce, as far as reasonably practicable, effects on environmental receptors. This could include, for example, avoiding key benthic habitats or avoiding undertaking construction works during certain periods of the year.

Two ornithology-specific plan-level mitigation measures have been applied which demonstrate the application of the precautionary principle, reflecting the current level of uncertainty regarding the potential impacts of offshore wind development on key seabird species. The SEA and Habitats Regulations Appraisal were informed by the current modelled levels of negative cumulative impact on key seabird species and the assessments recognise the level of uncertainty inherent in the assessment resulting from collision, displacement and barrier effects and a lack of information regarding seabird densities and behaviours in the offshore region during the non-breeding season. The HRA report concluded that development should not proceed within certain plan options, until such time that enough evidence on the environmental carrying capacity for seabirds exists to reduce the risk to an acceptable level.

The SEA also identifies mitigation measures which may be required at a project level, which demonstrate the potential application of the rectification at source and polluter pays principles through the SEA process. For example, the requirement to prepare a decommissioning plan (which must be prepared and approved prior to the commencement of works); Offshore renewable energy installations will need to be decommissioned at the end of their operational life. Scottish Ministers have powers under the Energy Act 2004, to require developers of offshore renewable energy projects in Scottish Waters and the Scottish part of a Renewable Energy Zone, to prepare a decommissioning programme, detailing how they intend to remove the installation when it comes to the end of its useful life and how the costs of doing so will be funded".

The SEA identifies that pollution management plans may mitigate the potential effects of marine pollution releases. Marine licences contain examples of conditions which demonstrate the application of principles of rectification at source and polluter pays principles. For example, licensees must ensure that suitable bunding and storage facilities are employed, in order to prevent the release of fuel oils and lubricants into the marine environment. Licensees are required to take all measures which are technically and economically feasible to minimise the leakage of fluorinated greenhouse gases from any equipment used, and repair leaking equipment without undue delay. Furthermore, licensees are required to ensure that any debris or waste arising from the works are removed and disposed of at a location approved by SEPA (or another relevant authority).