ScotGov accused of acting unlawfully over Scots environment protection

The main way to challenge decisions, developments or policies which may breach environmental laws is by raising judicial review proceedings in the Court of Session.

But presently it still incurs a huge financial risk which conservation charities have to think and long and hard over as environment cases generally do not qualify for legal aid.

READ MORE: Scotland misses 11 targets on preventing species extinction by 2020 despite ministers' 'on track' claim

Scotland has since 2011, been found to be non-compliant with Article 9 of the Aarhus Convention, which is a binding piece of international law that guarantees the right to a healthy environment. In particular, Scotland and the UK which adopted the convention in 1998 is still failing to meet its legal responsibility which requires it “to remove or reduce financial barriers to access to justice”.

Groups including the ERCS also say the general public should also have the same rights of appeal as those who are applying for planning permission, usually developers.

The ERCS which has raised concerns about the Scottish Government remaining in breach of its statutory duties despite a review into its effectiveness of environmental governance, says it is precisely those "prohibitive" court costs that is preventing them from seeking a judicial review through the courts over its failure.

ERCS chief officer Dr Shivali Fifield has told ministers there are grounds for judicial review over what she described as the "deep concerns" over the quality and content of the review.

The ERCS say that there should be a dedicated environmental court which would increase access to justice, address the "current fragmentation in routes to remedy and develop judicial expertise to improve effectiveness and efficiency".

But they have told ministers they have failed in its legal duty to properly consider its possible establishment.

The Scottish Government review was published in relation to its legal duty in Section 41 of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021’ to consult on whether the law on access to justice on environmental matters is effective and sufficient, and whether a specialist court would enhance that.

The ERCS sought the opinion of senior counsel over the ministers' review response and John Campbell KC responded saying it was "not an adequate nor a sufficient response" saying that it does not answer the question of whether a special court would enhance governance.

It comes as an analysis backed  by Scotland's  nature agency found wildlife is "in crisis" with one in nine animals and plants being at risk of becoming extinct north of the border.

A State of Nature Scotland analysis, backed by the Scottish Government agency NatureScot and published by a partnership of over 50 nature and conservation organisations warned the risk of extinction among some groups, such as vertebrates, is much higher at more than a third (36.5%).

The most notable declines were with familiar birds such as swifts, curlews and lapwings which have declined by more than 60%. Kestrels have declined by more than 70%.

Between 1986 and 2019, the abundance of 11 annually monitored Scottish breeding seabird species fell by 49%.

Dr Fifield has said the Scottish Government review contained "no analysis of the various entrenched problems of environmental governance which exist in Scotland".

She said those problems include the "lack of enforcement of environmental laws, the lack of access to justice in environmental matters and the lack of scrutiny of the implementation of environmental laws".

She said it assumed that the establishment of the Scottish Government watchdog Environmental Standards Scotland fulfiled the ‘environmental governance gap’ which was left post-Brexit, but failed to analyse its work in detail.

Mr Campbell says its existence, coupled with a belief that court action is something nobody should have to pursue, does not ensure compliance with the Aarhus Convention in guaranteeing access to justice.

And ERCS says that the review fails to provide proposals to remedy the continuing breach of Aarhus.

The convention which came into force in 2001 and was ratified in the UK four years later is the world’s most far-reaching treaty on environmental rights.

It seeks to promote greater transparency and accountability among government bodies by guaranteeing public rights of access to environmental information, providing for public involvement in environmental decision-making and requiring the establishment of procedures enabling the public to challenge environmental decisions.

ERCS says that the Scottish Government should now establish a special committee or working group to properly consider whether the establishment of an environmental court.

A spokesman said: "The [review] contains no analysis of the various entrenched problems of environmental governance which exist in Scotland, for instance, the lack of enforcement of environmental laws, the lack of access to justice in environmental matters and the limited scrutiny of the implementation of environmental laws.

"It contains no assessment of the environmental problems facing Scotland, such as the pollution of water and air and the biodiversity and climate crises."

And the charity says it fails to identify the "clear causal connections between the problems of environmental governance and environmental degradation".

Last month, the Scottish Government admitted “falling short” of its own climate change laws by failing to set out how its ambitious emissions cutting targets are compatible with massive infrastructure investment.

Ministers were threatened with legal action by the ERCS and Good Law Project, over a potential breach of the Climate Change (Scotland) Act 2009.

The legislation states that when announcing major infrastructure investments, ministers must publish an assessment showing how they will impact targets to cut greenhouse gas emissions.

However, lawyers for the two groups pointed out that no such assessment was released over the Scottish Government’s Infrastructure Investment Plan, more than two years after it was published in February 2021.

In a written response, lawyers for the Scottish Government said ministers “now accept that the documentation published to date falls short of the requirements” in the Climate Change Act.

The letter added: “Urgent work is under way on a remedy to ensure that the duty is discharged in full and as soon as possible.”

It also urged the groups to hold back on lodging a judicial review, arguing that this would be “premature” while the situation is being resolved.

Ministers were asked for further details by October 12, making clear both what it intends to publish and when it will be published. It is not yet clear whether there was any compliance.

A survey by Planning Democracy last year of 228 people including 175 community councillors across Scotland found that people feel they have very little influence over planning decisions.

Some 65% said there were a lack of opportunities to participate in planning decisions.

Over half (56% )felt generally negative about their ability to influence decisions. A third reported feeling they had absolutely no influence over them.

Some 79% said that being heard or listened to by planners – those who make vital decisions over neighbourhood developments – was a significant or very significant challenge.

A Scottish Government spokesman said: “The Scottish Government is determined to protect and enhance our environment and to uphold and improve environmental standards. We recognise that there are a range of ways in which that can be achieved, and recently held a consultation on these matters, which closed on October 13. We will publish a response once we have taken the time to consider the views raised through the consultation.

“The Scottish Government has fully met the requirements of the Continuity Act.”

It comes as an official analysis from  Scotland's nature agency found that progress in creating better conditions for plants and animals in nature-protected Scottish areas has slipped into reverse.

NatureScot found climate change, alien species and overgrazing are hampering efforts to restore nature at protected sites.

The summer study warned there has been a “slow decline” since 2016 in the number of environmental features either in or recovering towards a “favourable condition”.

These include habitats and animal and plant species as well as geological features like fossil beds and caves.

More than three quarters (76.4 per cent) of Scotland's natural features at protected sites are either recovering or in a favourable state as of March 31 this year.

That's down from 77.9% in 2022 - and has decreased by four percentage points since 2016 when it peaked at 80.4%.

Two of the largest causes of unfavourable conditions are overgrazing - particularly by wild deer - and invasive, non-native species such as forest-killing rhododendron.