Read ERCS’s report on our first 11 representations to Environmental Standards Scotland, and our Legal Director Ben Christman’s summary.
Introduction
One of the risks posed by Brexit was environmental deterioration across the UK. Brexit meant that the enforcement of environmental laws in the UK was no longer watched over by the ‘guardian of the treaties’, the EU Commission.
Several national environmental law watchdogs have since been established to fill that gap. England and Northern Ireland have the Office for Environmental Protection. Wales has the catchily-named Interim Environmental Protection Assessor for Wales. Scotland’s environmental law watchdog is Environmental Standards Scotland (ESS).
ESS’s remit is to ensure that public authorities comply with environmental law and that environmental law is effective. Its mission statement explains that:
We will ensure that Scotland’s environmental laws and standards are complied with, and their effectiveness improved to achieve Scotland’s ambitious targets for the environment, nature and climate change.
When ESS was established in 2021, we had high hopes that it would develop into a rigorous enforcement body capable of dealing with the many public authorities in Scotland which neglect environmental laws.
Report on ERCS’s first 11 representations to ESS
ERCS has made 16 ‘representations’ to ESS. A representation is a formal request that ESS takes some action over unlawful activity or an environmental law which is not effective.
Our experience of dealing with ESS has been disappointing. Their handling of our first eleven representations has fallen far short of their mission statement and we have seen few improvements in compliance with environmental laws as a result of our representations.
Our new ‘Report on ERCS’s first 11 representations to ESS’ details the problems which we have experienced in dealing with ESS.
We have noticed four concerning trends:
- ESS refused to investigate a significant proportion of our representations. Only six of the eleven representations discussed in our report were subject to any significant intervention by ESS. ESS refused to investigate five representations, meaning that the unlawful activity and ineffective laws in those representations remain unaddressed.
- There have been significant and unreasonable delays by ESS. There are often significant delays between ESS receiving a representation and deciding whether to investigate it, and between ESS deciding to investigate a representation and taking action on it. In our representation regarding SEPA’s breach of duty to enforce water licences following repeated sewage spills in the River Almond, ESS took more than six months from the date of receipt of our representation (22 December 2022) to decide to progress the representation to ‘pre-investigation’ (5 July 2023).
- ESS has not used its statutory enforcement powers in relation to our representations. ESS has relied exclusively on the use of ‘informal resolution’ with public bodies (essentially negotiation). Informal resolution has achieved few positive changes relevant to our representations.
- ESS’s decision-making has been poor and has often failed to engage with the legal issues raised in our representations. In response to our representation over SEPA’s failure to maintain a public register of information about the most polluting industrial sites in Scotland (SEPA has a legal duty to maintain this register), ESS agreed a plan with SEPA towards publication of the register. However the plan they agreed is vague. Key terms are left undefined in the plan, as are dates for SEPA to complete certain tasks. It is difficult to establish what has been agreed in this plan, and will be difficult for ESS to hold SEPA to account if there are any slippages.
Our report made ten recommendations to ESS to improve their practices. They include increasing transparency around the criteria used when deciding whether to investigate representations, publishing statements of reasons for any decisions not to investigate representations, adopting a more robust approach to enforcement, ensuring that any agreements made with public authorities are clear, specific, time-bound and made public – and that ESS adopts a stakeholder forum to help it better understand the needs and concerns of those involved in its work.
ESS’s response to our report
We sent ESS a draft version of our report and met with them to discuss it. ESS responded in writing to our report. Our report includes some small changes following ESS’s comments (we also wrote to ESS following their response).
We are encouraged that some of our recommendations were accepted or met with a positive response (such as a commitment to publishing their operational guidance and to consider publishing decision letters for all representations).
We are concerned that ESS’s response fails to accept any of the main problems we identified with their handling of representations.
It describes the high-level statements from our report as ones which, “do not accurately or fairly reflect ESS’ approach”. It states that the claim that ESS have fallen short of their mission statement is a “very partial perspective on ESS’ work” because that conclusion was drawn after a relatively short period of time and without taking into account the full breadth of their work.
The claims made in our report rely upon our experience of dealing with ESS and are evidenced. A period of almost three years is a reasonable timeframe to assess the performance of an organisation – ESS should welcome scrutiny of their work.
Our report acknowledges that it draws on our eleven representations only and is not a full assessment of all of ESS’s work. However, the trends identified in our report have been reflected in the interactions we have had with other civil society organisations and individuals who have also made representations to ESS with similarly disappointing results.
At present, our environmental watchdog whimpers when it should bark – and refuses to bite. It needs veterinary attention.
ESS has the resources and legal powers to do much better work in ensuring effective environmental governance in Scotland. We hope this report will encourage reflection and change within ESS, that it will inform scrutiny of ESS and that we will see some further positive changes made when ESS reviews its strategy in 2025.
Ben Christman
ERCS Legal Director
