Publication - Impact assessment

Environmental governance in Scotland after Brexit: report

A study on the possible issues relating to future environmental governance in Scotland on the UK's withdrawal from the EU.

48 page PDF

656.3 kB

48 page PDF

656.3 kB

Contents
Environmental governance in Scotland after Brexit: report
3 Summary of Main Points (by Sector)

48 page PDF

656.3 kB

3 Summary of Main Points (by Sector)

3.1 Nature Conservation and Biodiversity

3.1.1 The most important EU legislative provisions for nature are the Birds and Habitats Directives, and the Natura 2000 network of protected areas they create. These sit at the heart of the EU's approach to tackling biodiversity loss and have created a uniform and fairly prescriptive common framework for nature conservation across the EU Member States. The Natura 2000 sites are, however, the contribution of the EU and its member states to the Emerald network [7] of protected areas under the Bern Convention.

3.1.2 A raft of other EU Directives, regulations and institutions are also operational in this area; including MSFD (see marine section below), the EIA Directive (see below) and the Regulation on Invasive Non-Native Species ( INNS). The EU's approach to biodiversity conservation was founded on the principles of a common and coordinated approach to transboundary issues and to protect shared natural heritage, for instance migratory species and habitat conservation across biogeographical regions.

3.1.3 On this basis, it is possible that – in relation to the making of future laws in the UK - the EU will demand that the UK retains regulatory alignment in some areas relevant to biodiversity conservation, in order to prevent a "race to the bottom" on environmental standards. These could include regulations on Invasive Non-Native Species and protection of migratory species among others. Future developments to EU laws in this area, such as updates to Schedules relating to protected species and habitats, will not be automatically reflected within domestic law, and a mechanism will be needed to review such changes and implement them where appropriate.

3.1.4 The loss of EU institutions will create, or widen, a number of governance gaps relating to biodiversity conservation.

3.1.5 The European Commission plays a key role in monitoring and reporting requirements for biodiversity and the Natura Network. Most of these functions are likely to fall to existing or new bodies within the UK, unless data are reported to an institution entirely independent of governments, resulting in a significant weakening of external scrutiny and accountability. A poor separation of powers in this area could affect, for instance, projects being consented within designated sites, the weight given to declining trends in biodiversity and scrutiny of derogations to the legislation on activities relating to protected species.

3.1.6 The governance gaps for biodiversity conservation will be most prominent in relation to enforcement and compliance. The complaints mechanism provided by the European Commission has been heavily utilised by individuals and civil society organisations in the nature sector and the oversight of the Court of Justice of the EU ( CJEU) has strongly incentivised compliance. The Directorate General for the Environment ( DG ENV) reported an average (mean) of 79 infringements per annum in the nature sector between 2007 and 2016. [8] The JNCC recorded 114 cases relating to the implementation of the Nature Directives in the UK, 18 of which were in Scotland. [9] These figures give an indication of the level of oversight that EU institutions have played in checking compliance with environment laws relating to biodiversity and the types of compliance issues that could go unchecked in the absence of such oversight.

3.1.7 Specialist EU bodies, agencies and working groups have played a strong role in supporting action in this area, particularly through biodiversity data collation which has allowed a comparison of biodiversity trends across the different Member States. This suggests that there may be capacity issues moving forward and that there is a need for continued collaboration between the Scotland/ UK and some of these institutions. The most prominent EU body regarding this issue is the European Environment Agency ( EEA) – some form of working arrangements with the EEA and the rest of the EU will be necessary to compare biodiversity data between the UK and other MS, especially on migratory species and Invasive Non-Native Species ( INNS); tackle pressures on biodiversity across shared biogeographic regions; and maintain up-to-date lists for protected species and habitats.

3.1.8 The EU Commission's role in agreeing the adequacy and distribution of SACs, based on biogeographic/ecological factors (especially from a continent wide perspective), could be replaced by scientific expertise in a domestic scrutiny body – this would provide validation for Government decisions as well as demonstrate our (former) Natura network was an appropriate contribution to the Emerald network. However, the system can operate without replacing the EU Commission's role in approving the justification where a project affecting a priority site falls outwith the narrow range of ordinarily approved overriding purposes; this would, though, mean that there will be no external scrutiny of government decisions.

3.2 Atmosphere (Air Pollution and Climate Change, excluding Energy)

3.2.1 In this area, the more obvious benefits of EU membership are that the UK has been able to rely on the EU's law-making, governance arrangements, cooperation and support mechanisms (including the EU Emission Trading Scheme, ETS, and the Fluorinated Gases, F-gases, Registry), both to devise measures to reduce emissions and to scrutinise the implementation of these measures.

3.2.2 As far as the making of law is concerned, after Brexit, formally the UK will no longer be required to align with EU law on air pollution and climate change. Nevertheless, EU law presently is the conduit through which the UK implements many of its international obligations in these subject areas, including under the 1992 United Nations Framework Convention on Climate Change and the 2015 Paris Agreement. The UK will therefore need to look carefully at how international obligations under air pollution and climate change treaties are implemented after Brexit [10] . The numerous instruments on Ozone Depleting Substances are a specific cause of concern and need to be looked at in greater detail to better understand the implications of Brexit in this complex and composite area.

3.2.3 Though much will depend on ongoing negotiations between the EU and the UK, current EU governance arrangements in this subject area (including for example the EU ETS and the F-gases Registry) are unlikely to service the UK after Brexit. These arrangements therefore have to be replaced urgently to avoid a cliff edge. [11] Both on ETS and F-gases, the adoption of a UK-wide approach, within devolved responsibilities would be desirable, both for efficiency – given that all administrations will have to make up for the shortcomings associated with the demise of the EU ETS and F-gases Registry – as well as expediency considerations – given that Scotland is only responsible for a fairly small part of the UK's emissions covered by the EU ETS and F-gases Registry.

3.2.4 After Brexit, some continued collaboration with EU cooperation institutions, such as the EEA, in order to enable benchmarking, peer-review and peer-pressure in relation to emissions quantification and reduction measures, would be desirable, though not indispensable.

3.2.5 As far as the enforcement of law is concerned, general considerations raised in other subject areas apply here too. In addition, the implementation of air pollution standards both in Scotland and in the UK is an area where significant shortcomings already exist. This is therefore an area that needs to be carefully monitored and where specific remedies may be needed.

3.2.6 Finally, even after Brexit, UK business exporting to the EU will be under pressure to continue aligning with EU standards concerning products, for example on emissions from vehicles.

3.3 Environmental Impact, Access to Environmental Information and Environmental Justice

Environmental assessment

3.3.1 Environmental assessment ( EA) is the collective name for various statutory processes that inform decision makers about the likely significant environmental impact of a proposed decision, plan or strategy. In itself, EA does not determine the decision. Rather, a range of statutory procedures are in place which require decision-makers to remain informed of, and take into account, the results of EA before a decision is made or a plan or strategy adopted.

3.3.2 Where this is not already the case, most EU-derived EA legislation will, in the first instance, be converted into domestic law by the proposed European Union (Withdrawal) or Scottish Continuity Acts.

3.3.3 In relation to SEA (the assessment of plans, policies and proposals), Scotland has deliberately and purposely legislated beyond the requirements of the relevant EU Directive. This leadership on SEA could be curbed if any newly developed common framework constrains any of the UK nations from going above and beyond requirements.

3.3.4 A major loss of European Commission functions would, as with many areas, mainly relate to monitoring and reporting – both on standards but also co-ordinating cross-border issues.

3.3.5 However, the most significant loss will be enforcement and upholding compliance. The loss of access to the European Commission complaints mechanism will substantially reduce the ability of individuals and civil society organisations to request action where they believe EA has not been properly carried out. Furthermore the loss of CJEU oversight – representing a threat of enforcement and possible financial penalties – is likely to weaken the incentives across the UK for ensuring that EA laws are complied with.

3.3.6 As with many other areas explored in this report, some form of continued cooperation or working arrangement with EU institutions, agencies and working groups – most notably the EEA – is desirable in order to ensure continued best-practice sharing and comparison of data on transboundary projects. However participation in these groups is not a fundamental requirement to ensuring functionality in this area.

Environmental justice (including Access to environmental information, Public-participation in decision-making, Access to justice in environmental matters)

3.3.7 While many aspects of this issue are non-legislative, especially the public participation process, the Aarhus Convention is the overarching international treaty that addresses these matters.

3.3.8 Some of the requirements of the Convention are transposed into EU Directives and regulations. The European Union (Withdrawal) Act or the Scottish Continuity Bill will convert all existing EU legislation in this area into domestic law, but questions remain about how this legislation will be safeguarded from inadequately scrutinised amendments in the future and whether a provision will be implemented to remain in step with EU law in this area. For instance, the Commission does not currently monitor compliance with Pillar 3 (Access to Justice) of the Aarhus Convention, but this may change if the recent Commission Notice on Access to Justice in Environmental Matters is accorded weight. If these issues are not addressed then the UK could be more out of step with the EU in regards to its Aarhus compliance, which as discussed below is already criticised by eNGOs.

3.3.9 The UK and EU report separately to UNECE on the implementation of Aarhus requirements, so no monitoring and reporting gap will arise here. However, in the view of some stakeholders, Defra-led reports on behalf of the whole UK tend to be sparse in regard to devolved administrations' implementation.

3.3.10 The view of the UK and Scottish Governments is that all jurisdictions in the UK are "in compliance" but the eNGOs believe that there is already a gap in the implementation of the requirements of the Aarhus Convention, both in the UK and in Scotland, particularly regarding Pillar III - Access to Justice. A recent ruling of the ACCC [12] (Aarhus Convention's Compliance Committee) on prohibitive expense supports the eNGOs' perspective, while a communication [13] that will lead to a ruling on substantive legality has been accepted [14] .

3.3.11 Access to justice in environmental matters is seen by environmental interests as an 'at risk' area within this topic. While the UK will remain signatory to the Aarhus Convention and existing EU legislation in this area will be carried forward, the loss of the European Commission and European Parliament functions discussed above, as well as access to the CJEU represent a potentially significant narrowing of the scope to challenge Government on these issues over the longer term. Unless some of these functions are replicated in a domestic context then the ability of individuals and civil society organisations to make their voices heard on environmental matters will be substantially reduced. This could be addressed through amending the procedures of existing institutions or pursuing a number of new institutions

3.4 Marine Environment

3.4.1 We have not at this stage been able to carry out an extensive analysis of marine environment issues. The situation is more complicated because of the executive nature of the devolution of powers beyond 12 nautical miles.

3.4.2 In many policy areas, the same considerations apply to the marine environment as to other environments, for example in relation to the provisions of the EU Nature Directives and international conventions such as the Bonn Convention on the Conservation of Migratory Species of Wild Animals and the Ramsar Convention on Wetlands of International Importance. Therefore, for protected areas there may well be the same issues as those mentioned in relation to terrestrial and freshwater environments. There are however additional, specific aspects that will need to be considered to be addressed, such as future policy on implementation of the measures in the Marine Strategy Framework Directive, as well as how marine and freshwater/terrestrial processes interact ( e.g. Water Framework Directive coastal waters). These are not considered in detail here. Nor have we attempted to consider the many complex issues that will arise from EU withdrawal in relation to marine fisheries, which are subject to consideration by others including the marine and seafood stakeholders group.

3.4.3 There are specific transboundary considerations to be taken into account for marine protected areas, which are the result of both EU and international law obligations. Specific legal instruments and agreements would come within the scope of any consideration of devolved administrations' 'environmental duties' and where any new arrangements to allow scrutiny or challenge would apply. International obligations are particularly significant here, including the UN Convention on the Law of the Sea ( UNCLOS) and the Convention for the Protection of the Marine Environment of the North-East Atlantic (the ' OSPAR Convention'). The latter contains provisions to protect the marine environment and there is a regional agreement on the protection of small cetaceans concluded as the "Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas" under the auspices of the UNEP Convention on Migratory Species.

3.4.4 Scotland has been at the forefront of the development of marine spatial planning and, at a UK level, the UK Marine Policy Statement under the Marine and Coastal Access Act 2009 sets out an agreed framework for preparing Marine Plans and taking decisions affecting the marine environment. Continued implementation of the UK Marine Policy Statement will be fundamental to achieving and maintaining Good Environmental Status. It is therefore key to successful transition from EU level arrangements, as defined in the Marine Strategy Framework Directive, to an increased significance of international law arrangements such as the OSPAR Convention.

3.4.5 Because of their significance, international agreements and obligations in marine governance arrangements are likely to highlight any constitutional disagreement over responsibility for international matters. As in other areas, to the extent that reliance comes to be placed on international rather than EU obligations, the international ones tend to be less precise and to have weaker monitoring and enforcement mechanisms than those laid out by EU law, but this gap could be addressed or reduced, for example by appropriate transposition of international obligations into national legislation.

3.5 Nuclear and radioactivity issues

3.5.1 In 1956, under the UN treaty, a Statute was established creating the International Atomic Energy Agency. It came into force in July 1957. The UK was one of 56 founding signatory nations. Based in Vienna the IAEA provides a range of services and has in essence membership/signatory requirements on the issues relating to safe non-military use of nuclear technology and related aspects of health, safety, security and environment as well as on safeguards and verification.

3.5.2 Since 1957 the EURATOM Treaty has also provided a strongly connected framework for consideration of radioactivity and nuclear issues within the member states ( MS) which are the same states over time as the EC/ EU ones. A range of Directives has been developed giving legal force and policy shape to operational requirements for safe use of radioactivity and handling of materials, and for the long term management of spent fuel and radioactive waste. The operational aspects of the Treaty are delivered by DG Energy of the European Commission working directly and in partnership with staff in EU Member States to provide advice, assessment and oversight, including inspections, which, together, connect to enforcement mechanisms under the ECJ.

3.5.3 Many of the high hazard areas of potential environmental impact relating to radioactivity in Scotland are not under devolved control in important areas. The two generating nuclear energy stations are part of EDF Energy. The three civil Decommissioning Sites are under the control of the GB Nuclear Decommissioning Authority, that reports primarily to UK Ministers, with parallel responsibility to Scottish Ministers for aspects of their functions in Scotland. The safety regulation of nuclear installations is reserved to the UK Authorities, and is carried out by the Office for Nuclear Regulation ( ONR), a UK Government body. SEPA regulates radioactive wastes from nuclear installations, including in liquid and gaseous forms. Ministry of Defence sites are exempt from both statutory safety and environmental controls. Safety regulation is carried out by the Defence Nuclear Safety Regulator, which is answerable to the Secretary of State for Defence. A parallel non-statutory system of environmental regulation is carried out under an agreement between the MoD and SEPA. The Scottish Government has a stated policy intention to bring MoD sites into the framework of statutory environmental regulation arrangements. Other radioactivity issues concern principally the medical, food, geophysical and oil and gas sectors and the use and/or collection of particular radioactive sources and materials under controlled conditions. These have all been considered preliminarily.

3.5.4 Currently, operational control is overseen for nuclear power plants and hospitals, waste facilities and other users identified, using existing licensing arrangements by the UK Office for Nuclear Regulation, by local government and health bodies, by SEPA and by BEIS Offshore for the various sectors. Relevant aspects concerning worker safety also connect to ONR and at the most general level to the HSE. The key EU directives as established in UK and Scots law currently governing basic safety standards and irradiation, use and keeping of radioactive materials as well as the storage of wastes are generally highly effectively governed within the UK and Scotland.

3.5.5 In addition, independent/oversight inspections of and advice on facilities in Scotland are undertaken under the provisions of both IAEA and EURATOM, with the latter more frequent and visible.

3.5.6 Whilst we understand that it is the UK government's intention to remain a compliant IAEA member, the main issues arising under Brexit scenarios relate to the extent to which the UK, and therefore, Scotland remains adherent to the IAEA conventions, processes and requirements, and also whether this is a suitable and sufficient oversight and advisory mechanism for what is lost through leaving EURATOM.

3.5.7 In particular and additionally, it appears that access to and networking with relevant international expertise, as well as the ability to attract and retain staffing in key roles and support services in specialist areas could be restricted, thus potentially compounding the already limited and increasingly stretched resources left to attend to monitoring, expert independent scrutiny and oversight and, ultimately, enforcement. This could affect both our ability to identify failures and to ensure the adequate management and mitigation of hazards and provide sufficient public reassurance.

3.5.8 Some kind of Associate EURATOM membership and access to services were this possible might have compensating advantages. But the question remains as to what powers and efficacy of enforcement would exist if the UK chose to see this as optional.

3.5.9 In relation to Naturally Occurring Radioactive Material ( NORM) [15] and sources in oil and gas in particular, there are several issues around coastal, national and international waters and how the various components of current law would evolve and fit. This requires clarification.

3.5.10 In almost all facets of the radioactivity space, strengthening of existing ( UK and Scottish) regulators and/or establishment of dedicated UK and especially Scottish oversight entities may need to be considered.

3.6 Waste and Circular Economy

3.6.1 Our initial analysis highlights that the common issues identified across all topics in relation to reporting and oversight functions of the Commission and ECJ are also of concern in waste management.

3.6.2 Further detailed analysis is required on at least the following areas: definitions (including the definition of waste and the classification of hazardous waste), technical standards, producer responsibility, product standards and labelling and transfrontier shipment of waste.

3.6.3 There is a large amount of European legislation relating to different aspects of waste management and a level of complexity in the existing domestic legislation will remain (and increase) when the legislation is rolled over under EU Exit legislation. It has been the ambition of UK and Scottish policy over many years that much of the legislative complexity associated with technical treatment standards (landfill, batteries, Waste Electrical and Electronic Equipment, End of Life Vehicles etc.) will be removed at the domestic level once waste is incorporated into the integrated regulatory framework under the Regulatory Reform (Scotland) Act 2014.

3.6.4 Some areas related to waste management regulation are reserved such as the product and labelling requirements of the WEEE, Batteries and ELV Directives and the Transfrontier Shipment of waste.

3.6.5 In terms of the circular economy Scotland has a particularly ambitious policy agenda and has historically been ahead of other member states and the EU in terms of thinking around the circular economy. The new legislative measures in the EU Circular Economy Package sets new stretching targets and ambitions for waste and resource management to 2030.

3.6.6 There may be benefit in or need for considering some issues around the wider UK context and the issues of standards and trade. Adapting to new global trade arrangements for access to markets and receipt of goods will likely need a revised understanding of product standards classification and accreditation schemes, etc.

3.7 Water Environment and Flood Risk Management

3.7.1 The implementation of the Water Framework Directive and associated EU legislation for water governance follows a de-centralised and regionalised approach. Compared to other devolved administrations, Scotland has opted for a highly ambitious implementation of EU commitments under the WEWS.

3.7.2 This said, many technical specifications for the implementation of the Water Framework Directive throughout the EU are cooperatively developed through the informal, expert and stakeholder driven Common Implementation Strategy ( CIS). In this context, the European Commission plays a significant role in the so-called intercalibration process, through which regional and local interpretations and contextualisation of environmental standards are harmonised. The Commission facilitates this process through exchange of information between Member States. This institutional and regulatory link with the EU process will be lost after the UK's withdrawal. However, the importance of the CIS, to which SEPA has been a leading contributor, has diminished over time and is not critical for the implementation of the Water Framework Directive in Scotland. Given the extent of devolved powers in this matter, nothing should prevent Scotland from maintaining full regulatory alignment in the future if this objective was sought.

3.7.3 Within the UK, the implications of Brexit for the future of inter-agency coordination and advisory groups relevant to the implementation of the Water Framework Directive, such as UKTAG and JAGDAG, remain unclear. Yet, as an entirely devolved matter, Scotland will maintain fullest legislative and executive powers in order to pursue a largely autonomous water policy.

3.7.4 Equally, the Floods Directive is now fully embedded in domestic legislation and will be delivered through a suite of strategic flood risk management cycles. The UK's exit from the EU will mean that Scotland is unable to help shape future changes made to the reporting requirements. However, there are no significant gaps envisaged resulting from the UK's withdrawal.

3.7.5 The points made above highlight the valuable role of knowledge exchange. Given the stance adopted on water issues in Scotland thus far and the Cabinet Secretary's commitment to maintain standards, Scotland's longer term commitment to, and performance in, protecting the water environment and contributing to global policy and implementation, suggest a strong position. There may also be opportunities to develop policy which is better suited to the specific Scottish water environment.

3.8 Chemicals, biocides and pesticides

3.8.1 The European Chemicals Agency ( ECHA) manages the technical, scientific and administrative aspects of the implementation of EU chemicals regulations which are presently implemented directly in the UK and have wider connection to other EU regulations enforcement achieved at national level. Whilst still unclear, the UK's exit from the EU may mean that the UK will no longer be serviced by the European Chemicals Agency and the related EU law framework ( REACH). This is therefore an area where present governance arrangements would not function. Retaining membership of ECHA, as was suggested by the UK Prime Minister, would be the easiest short term solution. This is also an area where UK businesses will need to continue to apply EU rules in order to sell their products in the EU marketplace.

3.8.2 In addition to the general concerns identified in this report around reporting and oversight functions fulfilled by the EU Commission and the CJEU, there are additional issues which are particularly concerning within chemicals, notably a loss of influence in a commercially important global sector where significant companies operate in Scotland currently, capacity at Scotland and UK levels and the benefits of a UK framework.

3.8.3 REACH applies to all EEA Member States. The ECHA has "cooperation agreements" with regulatory agencies in Australia, Canada, Japan and the USA, which focus on exchanging information and knowledge regarding the management of chemicals. In addition, Switzerland and Turkey have enacted legislation that mirrors REACH, but is developed and implemented in an autonomous manner. Companies in non- EEA member states that wish to trade chemicals with the EU have the option to nominate an 'only representative' agent registered in an EU member state to take over the responsibility of complying with REACH. Alternatively, the obligation for compliance will fall to the importer. In none of these arrangements would the UK have much influence. It remains to be seen whether the UK can negotiate an exit deal that allows it to retain any influence.

3.8.4 The loss of influence at the EU and international level is particularly concerning in this area. 13% of the unique companies who registered chemicals under REACH in 2017 were based in the UK. The UK has been a significant actor in terms of registering and evaluation of substances. The ECHA has also highlighted the role that the UK has traditionally played by using its influence to support proportionality. The UK has been important in arguing that decisions should reflect a proportionate (balanced) approach to risk rather than adopting a very precautionary and risk-averse attitude. Scotland, nonetheless does not necessarily align with Westminster's approach to risk when it is in its remit to do so.

3.8.5 In the UK, the Chemicals Regulation Division ( CRD), part of the Health and Safety Executive ( HSE), is responsible for the much of the regulations on chemicals and for the Competent Authority functions within EU legislation regulating industrial chemicals where HSE is the appointed authority for the UK. CRD employs around 250 scientific, policy and support staff. It is possible that for a new or existing authority to undertake the same workload with no access to the existing EU networks and system would require a substantially larger workforce, as well as significant start-up/extension costs in the short term. Depending on the outcome of the ongoing discussions on internal allocation of EU powers, lack of capacity could be an issue for devolved administrations, as further discussed in section 4.5 below. The increase of staff in some Departments of the UK Government to deal with Brexit demands may well need to be replicated in Scotland.

3.8.6 Within the UK, regulation of chemicals is an area where the adoption of a UK-wide approach, within devolved responsibilities would be desirable, as all industry across the UK will need to continue to comply with EU rules in order to sell their products on the EU marketplace. Scotland has always relied on UK wide expertise in the area of chemicals management.

3.9 Industrial Pollution Control

3.9.1 In our consideration of environmental media we addressed air, water and waste, above. Soils and a range of other issues also interconnect with these media. It is also relevant to consider integrated, cross-cutting and general industrial pollution issues. These issues are largely addressed by the Industrial Emissions Directive ( IED, 2010/75) and the precursor IPPC (Integrated Pollution Prevention and Control) Directives.

3.9.2 The framework for integrated pollution prevention and control was set out in the IPPC Directive in 1996, 96/61. The IPPC Directive, " PPC" in shorthand, has been amended and extended, focussing on wastes as well as processes, to become the practical centre-piece of industrial emissions control and materials management. The understanding of the value of integration was based both on notions of administrative coherence and simplicity and therefore tractability for enterprise management but crucially on the learning that different approaches to controlling emissions or releases to air, water and land separately resulted in the shifting of polluting materials and their impacts (often "wastes") between the environmental media rather than protecting the environment overall.

3.9.3 PPC consolidated and incorporated a number of previous directives, including those relating to waste management, including the Landfill Directive, driving closure or retrofit of those facilities without gas and leachate collection, as well as air pollution and industrial process management. PPC has now in turn been recast, alongside 7 other directives (on titanium oxides and their management and surveillance, on reducing VOCs, on waste incineration, IPPC 2008/1, and relating to large combustion plant) into IED.

3.9.4 IED seeks to coordinate the authorisation and management of environmental permits ensuring integrated measures for air, water and land have been put in place. It, like PPC, is rooted firmly in the notion of Best Available Techniques ( BAT) and the reference documents ( BATRefs or BREFS [16] ) for a wide range of industrial processes whereby specialists have brought together expert views of appropriate abatement, process control and operational equipment, standards, procedures and practices that will achieve appropriate control, energy efficient performance and management information for effective materials management, pollution performance monitoring and environment and health protection, including that of workers. Geographical conditions, other local loadings and the characteristics of the facility are also taken into account to achieve a transparent permit system. Emission Limit Values are also a part of this model and it is now possible to have a single licence that brings all the key aspects of operation and the releases permitted, in one document, which can then be assessed against actual performance on a regular basis.

3.9.5 PPC and IED also now require elements of public consultation, via cross-compliance with the PPD (Public Participation Directive, 2003/35), ensuring greater transparency on permit conditions and performance.

3.9.6 Collaboration on pollution prevention and control policy, practice and information sharing as well as legal pursuit around environmental crime across Europe has been another area of increased co-operation in recent years, between regulators and police forces as well as borders and customs agencies. This has helped to address pollution risks, unfair competition, criminal activity generally around illegal trade and dangerous goods and has enhanced best practice learning between jurisdictions.

3.9.7 The same loss of influence, networking access, data sharing and lack of capacity issues appear to apply in this area. Access to BREF/ BAT knowledge and participation in the BREF centre processes has given Scotland and the UK opportunities to shape and to benefit from early, authoritative and ongoing standards, best practice, market, technology, process and legislative information, insights and positions. Loss of access has the potential to weaken industrial and economic development strategy, impact on competitiveness and trade arrangements as well as lead to a lessening of alignment, exchange and cooperation between regulators and policy makers.

3.10 Control of Major Accident Hazards

3.10.1 A further area which we have not covered in detail is major accident hazards under Directive 2012/18/ EU (Seveso). This Directive was left to the national authorities to implement within the EU skeleton, but there is an obligation on the Commission to report on the implementation and functioning of the scheme every four years and more significantly provision on information sharing between Member States and Commission (art 21). Presumably on Brexit the UK will no longer be included in this system, removing the need to provide information but cutting us off from what is being gathered across the EU on this topic, including the database of major accidents which is used to spread information and lessons between authorities in the EU (although parts of this are public). Again, there is nothing here fundamentally different in structure from what occurs in other areas, but it provides another example of a useful function organised through EU structures.

3.11 Noise

3.11.1 We have also briefly considered the EU measures on environmental noise. These measures were incorporated by Scottish regulations and represent an area where subsidiarity has been given considerable weight. The mapping, assessment and action plans, however, are still subject to reporting to the European Environment Agency. Directive 2002/49/ EC involves some reporting directly to the Commission: therefore, infraction proceedings may be initiated, if inadequate measures are being taken.

3.11.2 On specific sources of noise, there are EU standards for maximum noise levels and testing and approval. These are classic single market issues which would seem to call for a unified approach within the UK. For trade reasons close alignment with the EU would seem preferable to developing individual standards. Much EU law in this subject area has been transposed already into domestic law. In common with many other areas, the significance of the EU environmental law is that the government is required to act on certain issues, has to report what it is doing and can be called to account if it falls short.


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