A small victory for transparency: the establishment of an agricultural EIA register
By Dr Ben Christman, ERCS Legal Director
In this long read, our Legal Director Dr Ben Christman reflects on why it took over seven years for a public body to comply with legal transparency duties, and what this tells us about the flaws in Scotland’s environmental governance regime.
The UK Supreme Court Justice Lord Leggett explained in the 2024 Finch decision that, “You can only care about what you know about”. That captures the importance of transparency in environmental decision-making. Without transparency, the public are left in the dark when important decisions are made that affect the environment.
Bringing decision-making into the light is vital for democracy. Making decisions publicly exposes them to scrutiny, which is a strong incentive for ensuring decisions are made lawfully. Or in the words of Louis Brandeis (a former Supreme Court Justice from across the Atlantic), “sunlight is said to be the best of disinfectants”.
Environmental impact assessments (EIAs) should be carried out in a transparent manner with the involvement of members of the public. Broadly, EIA is a process which requires that large developments which may have significant effects on the environment must have their environmental impacts fully assessed before they can go ahead (ERCS has a free guide to EIAs).
Transparency requirements in the Agricultural EIA Regulations
Large agricultural projects in Scotland – such as those involving irrigation, field restructuring and using previously uncultivated land – are subject to EIA rules set out in The Agriculture, Land Drainage and Irrigation Projects (Environmental Impact Assessment) (Scotland) Regulations 2017 (the 2017 Regulations). The public body responsible for applying the 2017 Regulations is the Scottish Government’s Rural Payments and Inspections Division (RPID).
In early 2024, we were contacted by a member of the public who was concerned that RPID was not properly considering whether agricultural projects should be subject to EIAs.
One of their concerns was about the EIA public register. The 2017 Regulations require RPID to publish various EIA documents online such as EIA reports, screening opinions and scoping opinions.
RPID created a ‘public register’ to fulfil its legal duty to publish those documents. However, RPID’s public register had one slight flaw – it contained no documents whatsoever. A public register without any documents is about as useful as a tractor without wheels.
We found out that an agreement had been made in early 2024 between environmental law watchdog Environmental Standards Scotland (ESS) and RPID, which required RPID to set up a public register where its EIA documents would be published. That agreement had been made following an investigation by ESS regarding concerns that RPID was not correctly implementing the 2017 Regulations.
We naively thought that if we informed ESS that the public register they had agreed with RPID was defective, ESS would then intervene.
Our representation to ESS
On 29 April 2024, we asked ESS if they were aware that RPID’s public register contained no documents. They were not.
ESS told us that compliance with the part of the 2017 regulations which required RPID to publish documents was not within the scope of their previous investigation. ESS said it was open to us to make a complaint to RPID on this matter, and told us that “it is ESS’ strategy to ensure that a public body has had the opportunity to address a complaint before it is raised with us”.
In other words, ESS told us that they were not going to investigate the defective public register until we had first raised it directly with RPID. Keep in mind here that ESS and RPID had explicitly agreed that RPID would establish a public register.
We explained to ESS that having to make a complaint to RPID was unnecessary and that the issue we were raising with ESS was within the scope of their previous investigation. We asked them to reconsider. This was unsuccessful.
To avoid further delay, we sent a complaint to RPID. We gave RPID more than two weeks to respond. They did not respond.
On 3 June 2024 we then sent a ‘representation’ to ESS, formally asking them to intervene.
In ESS’s response, they told us that:
Following an initial assessment of the information provided it is apparent that the Rural Payments and Inspections Division of the Scottish Government (RPID) has yet to provide a response to your complaint to them, therefore ESS is unable to investigate your representation at this time on the grounds of prematurity.
We went back to RPID regarding their failure to respond to our complaint and received an explanation from them that their EIA register was “work in progress”. They did not give us a date by which the register would be fully functional.
Having received that response it was back to ESS – they finally agreed on 20 June 2024 (at the third attempt) to investigate.
RPID told ESS that the public register would be fully functional by 15 November 2024. It appears that RPID kept to that deadline and the register can now be viewed here.
Reflections on the route to establishing a functional EIA register
While it is positive that there is now a functioning agricultural EIA register which members of the public can access, this case shows several of the weaknesses of Scotland’s poor system of environmental governance.
The 2017 regulations came into force in May 2017. It took RPID 7.5 years to meet basic legal transparency requirements.
RPID is not unique in its casual approach to transparency and legality. Scottish Forestry have a similar legal duty to publish various forestry-related EIA documents, but fail to do so (ERCS submitted a representation to ESS on this in February 2024 which is still under investigation). SEPA have failed to maintain a lawful public register since suffering a cyber-attack in 2020.
Turning to ESS, while we are grateful for their eventual intervention, they did not cover themselves in glory.
Questions must be asked about the diligence of a watchdog which told a public body to set up a public register, yet failed to notice that the register which had been established was so defective as to be meaningless.
Mistakes happen and no organisation is perfect. What is done once an oversight has been identified is often more important than whether one arises in the first place. This is where ESS were particularly poor.
On being informed that the register was defective, ESS could have intervened. Instead, they chose to be obstructive. They made us jump through hoops before they agreed to investigate. There was no good reason for this. ESS’s governing legislation gives it the power to investigate matters on its own initiative. ESS’s internal policies make clear that its staff can waive a general requirement that those making representations to ESS must first contact the public body involved before going to ESS (see ‘prematurity’ discussed at pages 33-34 of this ESS document).
For ERCS, dealing with obstructive public bodies can be frustrating and a waste of our limited resources, but we are a professional organisation which can deal with it. Individual members of the public with limited time and energy may well give up on pursuing important issues like this when faced with this type of discouraging behaviour.
If ESS wants to become a trusted, accessible organisation they will need to reconsider their approach to handling representations. Our 2024 report on making representations to ESS set out some recommendations which might improve ESS’s practices (unfortunately most of these were dismissed by ESS).
More broadly, this case is a reminder of the detrimental effects of the barriers to going to court and the importance of continuing our efforts to improve access to justice.
If going to court was affordable, ERCS would have done so here, and there would have been no need for us to contact ESS. It seems likely that going to court would have led to a much swifter resolution than using ESS. Additionally, if our justice system was accessible, RPID may well have taken a much more careful approach to implementing the 2017 Regulations (in the knowledge that they risked being sued) and this problem may never have arisen in the first place.
