A new report published by the Environmental Rights Centre for Scotland (ERCS) has identified a series of failures at Environmental Standards Scotland (ESS), an environmental watchdog established post-Brexit to scrutinise and enforce environmental law.
The report summarises ERCS’s experience of raising eleven cases of environmental governance failures with ESS and outlines how:
- ESS has refused to investigate a significant proportion of ERCS’s representations (formal complaints)
- There have been significant and unreasonable delays in ESS’s handling of representations made by ERCS
- ESS has not used its statutory powers to enforce environmental laws in any of the eleven cases discussed
- ERCS considers that ESS’s decision-making is often poor and ESS often fails to engage with the legal issues that lie at the heart of several representations.
ERCS has published the report in the hope of furthering transparency and accountability, improving regulatory performance, and informing the development of ESS’s future strategy.
The report comes at a moment of uncertainty for environmental law in Scotland. It follows the Scottish Government abandoning its interim climate targets and excluding the Human Rights Bill (which was due to incorporate a legal right to a healthy environment) from its Programme for Government 2024-2025. The Scottish Government is also set to miss the 1 October deadline for compliance with access to justice requirements of the Aarhus Convention, a UN treaty which enshrines procedural environmental rights.
Ben Christman, ERCS Legal Director said:
‘ESS is a watchdog that whimpers when it should bark – and refuses to bite. It needs veterinary attention. We are concerned that ESS is not effective at enforcing environmental laws. Public bodies in Scotland are not being properly held to account for breaking environmental laws as a result.
‘Our report made ten recommendations to ESS to improve their practices. Whilst we hope our report will encourage reflection and improvements within ESS, we are concerned that ESS has refused to accept any of the main problems identified in our report.‘
Shivali Fifield, ERCS Chief Officer, said:
‘ESS should use its statutory powers to enforce environmental law and uphold the highest standards of environmental quality. Yet despite our repeated attempts to sound the alarm on environmental concerns ranging from sewage to carbon emissions, ESS has, disappointingly, failed to live up to expectations. If action has been taken at all, it has often been too little, too late.
‘Our representations have come from concerned citizens across the country. If we are to turn the tide on the climate and nature emergencies, we need an enforceable right to a healthy environment to oblige duty bearers to comply with the law and to provide effective remedies when they do not.
‘Our report comes in the wake of the Scottish Government redirecting spending on climate & nature restoration and abandoning their commitment to incorporate the legal right to a healthy environment.
‘Now more than ever we need proper scrutiny of Government, and effective mechanisms to hold public bodies and polluters to account.’
ENDS
For more information contact
Benji Brown, Policy & Advocacy Officer
Environmental Rights Centre for Scotland
bbrown@ercs.scot, 07856 407479
NOTES TO EDITORS
[1] The Environmental Rights Centre for Scotland (ERCS) assist the public and civil society to understand and exercise their rights in environmental law and to protect the environment. We carry out advocacy in policy and law reform to improve environmental rights, and full compliance with the Aarhus Convention on access to information, public participation in decision-making, and access to justice on environmental matters. https://www.ercs.scot
[2] Environmental Standards Scotland (ESS) is Scotland’s environmental law watchdog. It has a remit 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.’
[3] ERCS’s report on its first 11 representations to ESS is available at: https://www.ercs.scot/wp/wp-content/uploads/2024/09/ESS_representations_report_Sept24v2-1.pdf. Its publication was accompanied by a summary blog authored by ERCS Legal Director Ben Christman.
[4] ERCS sent ESS a draft version of our report and met with them to discuss it prior to publication. ESS responded in writing to our report. ERCS made some minor changes to the report following ESS’s comments (and also responded separately to ESS’s feedback).
