Biodiversity Beyond National Jurisdiction (BBNJ) agreement - implementing Part IV: consultation analysis - summary report

3. Responses

3.1 Overview of responses and respondent profiles

3.1.1 There was a total of 22 responses submitted to the consultation, seven of which were classed as Scottish-relevant (as outlined in 2.6.1). Of these, six were submitted on behalf of organisations representing various industries and one from an individual.

3.1.2 NatureScot, Scottish Environment Protection Agency (SEPA) and Historic Environment Scotland (HES) are ‘consultation bodies’ under The Marine Works (Environmental Impact Assessment) (Scotland) Regulations 2017. None provided a formal response. SEPA advised by email, prior to the consultation, that the proposal lay outwith its jurisdiction and declined the opportunity for comment. NatureScot similarly indicated during a drop‑in session that the proposal was outside its remit.

3.2 Overarching themes

3.2.1 EIA Screening Approach

The majority of respondents generally agreed with the approach set out in Option one which would extend the list of licensable marine activities in ABNJ in MCAA and MSA to include all those categories which are currently licensable only in UK waters, and exempt new activities whose impact would not meet the EIA Threshold, or which are not within UK control or jurisdiction. Most respondents viewed this as the most proportionate and comprehensive approach, which balanced regulatory obligations and practicality. Some however, highlighted some conditions they saw necessary in safeguarding this approach, such as ensuring there was a clear self-determination process (although this was only proposed for activities regulated by the MMO). Options two, three and four were seen as less proportionate, with risk of capturing low-impact activities which were likely to be screened out, posing regulatory burden concerns by increasing licensing and administrative requirements. Some respondents raised issues around the adaptability to future technologies, and how new and emerging technologies would be captured under the proposed categories. Respondents also recommended considering cumulative impacts of multiple small-scale projects that individually fall below thresholds.

3.2.2 Implementation of approach in relation to Scottish marine licensing and division of responsibilities for licensing marine activities

The majority of respondents agreed with maintaining the existing scope of exemptions until such time as further guidance is provided by the Conference of Parties or when more evidence on the impacts is available. The majority of respondents also supported the implementation of approaches to be consistent between the UK and Scottish marine licensing regimes. Some respondents were concerned about duplication and divergent approaches between UK and Scottish marine licensing regimes, and recommended that implementation under the MSA must mirror the MCAA, including exemptions, self-determination screening and treatment of subsea cable activities, with respondents suggesting this would ensure regulatory certainty and avoid market distortion.

One respondent strongly opposed the ‘qualifying connection’ to Scotland which relies on Scottish residency or establishment of individuals/entities, or the use of a ‘Scottish vessel’ or ‘Scottish marine structure’. Questions were raised around the legal clarity and appropriateness of these criteria, and the conflict with International Maritime Law. They strongly opposed the use of Scottish vessels or marine structures as these concepts do not exist in law and would potentially conflict with the UK Ship Registry and Marine and Coastguard Agency (MCA) jurisdiction, which could create significant legal and operational uncertainty for the shipping industry. It was suggested that keeping all vessels classed as only British vessels or British marine structures would be most acceptable.

3.2.3 Exemptions

Respondents generally agreed with maintaining the existing scope of exemptions, with reasons citing the retention for low-risk activities. However, some respondents disagreed and suggested modifications be made to include other activities. One respondent suggested some activities to be automatically included in the list of licensable activities in ABNJ, as they do not believe that a lack of evidence at this time grounds its exemption. These included activities such as deposits during aggregate or mineral dredging, oil and gas, carbon capture storage, equipment to control oil and pollution, and marine chemical and oil treatment substances. Respondents also noted that generating evidence in the deep sea can take decades, which can be constrained by high costs, limited funding and technological challenges. They also highlighted the lack of clarity around the regulation of oil and gas exploration and extraction and carbon capture and storage. One respondent also suggested that exemptions should not apply to activities regulated by Regional Fisheries Management Organisations (RFMOs), as they do not apply environment impact assessments processes comparable to those required under Part IV of the BBNJ Agreement. One respondent also suggested to exclude aquaculture activities in ABNJ from exemptions, as they noted that these practices are associated with various environmental impacts.

3.2.4 Potential activities occurring in ABNJ and their impacts

Respondents suggested some potential activities that occur or could potentially occur in ABNJ which are not provided in the current list of licensable activities, included mass harvesting of Marine Genetic Resources (MGR), bioprospecting for genetic material, subsea cooling stations for data centres and deep-sea mining activities. A respondent raised concern on certain fishing practices which occur in ABNJ, including supertrawlers, which can cause significant environmental damage. Other activities suggested by respondents, included shipping-related impacts, such as ocean liners anchoring offshore causing seabed scarring and habitat destruction, and underwater noise pollution. As mentioned in 3.2.3, one respondent raised concerns on open-ocean aquaculture potentially occurring in ABNJ, which could have environmental impacts. Some respondents raised uncertainty around emerging technologies, such as Marine Carbon Dioxide Removal (mCDR) and other geoengineering techniques, which have unknown or poorly understood environmental impacts. Respondents noted that limited evidence is available overall for activities occurring in high seas and most responses indicated no direct evidence on likelihood of activities occurring in ABNJ, which highlighted a general lack of comprehensive data on ABNJ activities to date.

3.2.5 Companies, institutions or persons carrying out activities in ABNJ

Limited evidence was shared by respondents on the types of companies, institutions or persons like to be carrying out activities in ABNJ, or where they were likely to be registered or based. A few respondents suggested that activities in ABNJ are likely to be undertaken by large multi-national companies, consortia and flag-state vessels, reinforcing the need for robust and transparent regulatory oversight. One respondent raised concerns on whether ‘residing’ in the UK (or Scotland) for the purposes of ‘controlling’ the activity is an appropriate factor to place responsibility.

3.2.6 Cable laying and removal

The majority of responses agreed with the proposed approach to keep cable laying and maintenance exempt in ABNJ, with respondents providing evidence from the UN Environment Programme World Conservation Monitoring Centre (UNEP-WCMC) and the International Cable Protection Committee (ICPC), which outlined that any environmental impacts were generally minimal, localised or short-term, and highest during cable laying. Another respondent also highlighted the exemption was ‘essential’ and consistent with UNCLOS obligations under both the MCAA and MSA.

The majority of responses supported the proposed approach to implement an exemption for cable removals in ABNJ, stating that removals are generally low impact. Respondents commented that an exemption would also reduce administrative burden for routine removal activities. However, one nature conservation stakeholder opposed automatic exemption of cable removal, citing the seabed disturbance from this was similar to the environmental impacts of installation, which can be significant, and stated that leaving out-of-service cables in situ was currently the preferred approach taken by cable operators in shallow waters. They therefore suggested that a case-by-case assessment could be used to weigh environmental risks and benefits, and highlighted the importance of evaluating trade-offs between laying cables in situ versus removal based on the site-specific factors. They also suggested such assessments include a cost-benefit analysis, considering factors such as recycling and reintroduction of materials into the global supply chain. There was concern raised that specific exemptions for cable removals in ABNJ risks making removal the default option, despite what evidence may present on the environmental impacts.

3.2.7 Marine Scientific Research

The majority of those who responded to this question agreed with the proposed approach to exempt Marine Scientific Research (MSR) activities, recognising that it would avoid duplication and maintain existing environmental standards. However, some responses sought clarification on the wording and scope of MSR, such as the entities responsible for carrying out activities (i.e. ship ‘owners’) instead of persons who operated and controlled the activities. There were also suggestions for exemptions to cover all research methods and equipment in ABNJ (i.e. autonomous vehicles), and research carried out on behalf of private companies.

3.2.8 Rocket launch deposits

All respondents to the relevant question agreed with the proposed approach to regulate rocket launch deposits under existing frameworks, whereby the Space Industry Act 2018 (SIA) and Outer Space Act 1986 (OSA) already have requirements that exceed BBNJ EIA obligations. A respondent also noted that marine and transboundary assessments undertaken to date within the UK space industry have shown no significant impact from returning space components in UK or international waters, and should therefore remain exempt from BBNJ EIA process.

3.2.9 Fees

All responses on fees were related to the MMO fees approach, and there were no comments relevant to the Scottish approach.

3.2.10 Application process and the De Minimis Threshold

Respondents suggested various types of information and criteria that should be considered when deciding whether an activity meets the De Minimis Threshold, including spatial footprint, duration of activity, reversibility, intensity of seabed disturbance, level of pollutant released, and a measurement of the impact levels known. It was also suggested that any changes to physical and chemical properties of the seawater should also be considered together, which can impact the seas’ associated communities. There were concerns raised on the use of the self-determination tool, and whether this process could be taken advantage of to place the activity under the De Minimis Threshold on purpose to avoid administrative work and fees. One respondent suggested the consideration of cumulative impacts should be included in decisions on whether an activity meets the De Minimis Threshold, and how activities’ impacts interact with each other. A key stakeholder from the shipping industry also highlighted that it was important to align any criteria and applicant guidance with standards, regulations and frameworks and guidance set by the IMO, as they were the appropriate and specialist body regulating environmental standards of the shipping industry. They raised the importance of communication with industry outwith the UK was vital for ensuring international companies/businesses were aware of any new regimes, particularly if the company were not UK-based but carrying out activities from a UK-flagged vessel in ABNJ. Majority of respondents indicated a need for support and further guidance for applicants on the overall application process and clarity on the criteria for meeting the De Minimis Threshold.

3.3 Summary

Respondents broadly supported Option 1 as the most proportionate and workable approach for regulating activities in ABNJ. Respondents stressed the need for safeguards, particularly a clear and robust self-determination screening process, and mechanisms to account for cumulative impacts. There was a strong preference for a single UK-wide BBNJ EIA regime, with concerns raised that multiple regimes could create legal uncertainty and duplication. Respondents recommended consistency between the MCAA and MSA, particularly regarding exemptions and screening approaches. Objections were raised to Scotland-specific qualifying connections (e.g. ‘Scottish vessels’), citing legal ambiguity and potential conflicts with international maritime law. Most respondents supported retaining existing exemptions, particularly for low-impact activities, though some argued exemptions are premature due to limited evidence of their impacts in ABNJ. Exemptions for cable laying and maintenance were widely supported, however exemption for cable removal was more contested, with environmental stakeholders favouring a case-by-case assessment. Marine Scientific Research exemptions were generally supported, subject to clearer definitions. Existing frameworks for rocket launch deposits were unanimously considered sufficient. Views on fees were mixed, with calls for more proportionate structure and clearer guidance. Respondents emphasised the need for transparent processes, alignment with internationally recognised standards, and improved applicant guidance, particularly regarding the De Minimis Threshold.