Associate Feature: Ensuring Scotland’s people and nature benefit from a high-quality environment

Fourteen months after the UK left the European Union in January 2020, the Scottish Parliament passed the Withdrawal from the European Union (Continuity) (Scotland) Act 2021. Nine months after that, and operating under the constraints of the pandemic, Environmental Standards Scotland (ESS) formally came into being and began work with a team of ten people.

ESS is a direct product of the UK’s exit from the European Union. It replaces, at a Scottish scale, some of the governance functions which were previously performed by the European Commission in overseeing the implementation of environmental law. 

The 2021 Act gives ESS two jobs. First, we assess public bodies’ compliance with environmental law and secondly, we scrutinise the effectiveness of environmental law and how it is implemented and applied. The definition of environmental law is very broad. It ranges from climate change to contaminated land and from recycling to air quality. The definition of public bodies spans the Scottish Government, its agencies and arms-length bodies and local authorities. In addition, we have a responsibility to monitor developments in international and European Union environmental policy and law. 

Perhaps the most important aspect of how ESS is established is its independence. ESS is accountable to the Scottish Parliament and is wholly independent of Scottish Ministers in how it operates and in the findings and judgements it makes. Its work is overseen by a non-executive Board of seven members, whose appointment is subject to parliamentary approval. Its strategic plans require parliamentary approval and we provide six-monthly updates on our work to the Scottish Parliament’s Net Zero, Energy and Transport Committee.

There are two ways in which we can fulfil our role. We can receive representations from individuals, communities and organisations about environmental concerns. If these representations meet our criteria, we will investigate further. Alternatively, we can decide to examine particular aspects of environmental law based on our own analysis and monitoring work.

The 2021 Act commits ESS to strive to resolve issues informally with public bodies in the first instance. To date, ESS has secured informal resolution in a number of cases including SEPA’s public registers and NatureScot’s implementation of Habitats Regulations Assessments. If informal resolution is not possible, then ESS has a range of formal powers. One of these powers is to issue an improvement report to the Scottish Government. The Scottish Government has to respond to that report in the form of an improvement plan. These improvement plans are then subject to parliamentary scrutiny. To date, ESS has issued two improvement reports: one on improving air quality management and one on local authorities’ climate change duties. 

ESS also has the power to issue a compliance notice requiring a public body to take action. This could happen if ESS considers that there has been a failure by a public body to comply with environmental law when exercising its regulatory functions and if that failure is causing, or may cause environmental harm. In extreme situations where a public body’s failure to comply with environmental law is serious and there is a risk of serious environmental harm, ESS can make an application to the courts for judicial review. 

Over the past two and a half years, we have grown to be a team of 24, with a base at Haymarket in Edinburgh. We have received representations from individuals, communities and organisations, covering a diverse range of aspects of environmental law. We are also monitoring new legislative developments and analysing the wealth of data that exists on Scotland’s environment. Today, our work is examining differing aspects of biodiversity, water quality, the marine environment, waste management, and fisheries management.

ESS is a young organisation but one which is determined to play its role in making sure that Scotland’s environment is protected and enhanced.

To contact us, email: enquiries@environmentalstandards.scot

This article is sponsored by Environmental Standards Scotland

www.environmentalstandards.scot