ENVIRONMENT, CLIMATE CHANGE AND LAND …

1 ECCLR/S5/18/3/A environment , CLIMATE CHANGE AND land reform COMMITTEE agenda 3rd meeting , 2018 (Session 5) Tuesday 23 January 2018 The Committee will meet at am in the Robert Burns Room (CR1). 1. Decision on taking business in private: The Committee will decide whether to take items 4 and 5 in private. 2. Environmental implications for Scotland of the UK leaving the EU: The Committee will take evidence from Professor Colin Reid, Professor of Environmental Law, University of Dundee; Professor Gavin Little, Professor of Environmental and Public Law, and Dr Annalisa Savaresi, Lecturer in Environmental Law, University of Stirling; and then from Jonathan Hall, Director of Policy & Member Services, National Farmers Union Scotland; Isobel Mercer, Policy Officer, Planning and Development, Royal Society for the Protection of Birds; Andrew Midgley, Projects and Research Manager, Scottish land Robin Parker, Public Affairs Manager, WWF Scotland; Daphne Vlastari, Advocacy Manager, Scottish environment LINK.

2 3. Subordinate legislation: The Committee will consider the following negative instrument Electricity Works (Environmental Impact Assessment) (Scotland) Amendment Regulations 2017 (SSI 2017/451). ECCLR/S5/18/3/A 4. Environmental implications for Scotland of the UK leaving the EU: The Committee will consider evidence heard earlier in the meeting . 5. Inquiry into the environmental impacts of salmon farming: The Committee will consider its approach to the inquiry. Lynn Tullis Clerk to the environment , CLIMATE CHANGE and land reform Committee Room The Scottish Parliament Edinburgh Tel: 0131 348 5240 Email: ECCLR/S5/18/3/A The papers for this meeting are as follows agenda Item 2 Environmental implications for Scotland of the UK leaving the EU ECCLR/S5/18/3/1 PRIVATE PAPER ECCLR/S5/18/3/2 (P) agenda item 3 Subordinate legislation cover note ECCLR/S5/18/3/3 agenda Item 5 PRIVATE PAPER ECCLR/S5/18/3/4 (P) ECCLR/S5/18/3/1 1 environment , CLIMATE CHANGE and land reform Committee 3rd meeting , 2018 (Session 5) Tuesday 23 January 2018 Environmental implications for Scotland of the UK leaving the EU Background At its meeting on 14 March 2017 the Committee heard from a panel of environmental experts on the UK decision to leave the EU and its possible impact on Scotland.

3 The Committee subsequently met with officials from the European Commission, third country representatives in Brussels and with committees in the Welsh Assembly, House of Commons and House of Lords. Purpose of Session The Committee agreed that it would like to hear from environmental lawyers/experts on the UK decision to leave the EU and the development and implementation of common/shared frameworks associated with Brexit. The session will explore: The nature, scale and number of potential shared frameworks that may relate to work within the remit of the ECCLR Committee and likely issues that these could cover; the principles that should be used to guide the development of such frameworks; the form could such frameworks take; and potential shared governance arrangements for such frameworks. The panel invited to give evidence to the Committee is: Professor Gavin Little, Professor in Environmental and Public Law, University of Stirling Professor Colin Reid, Professor of Environmental Law, University of Dundee Dr Annalisa Savaresi, Lecturer in Environmental Law, University of Stirling Jonathan Hall, Director of Policy and Member Services, National Farmers Union Scotland Isobel Mercer, Policy Officer, Planning and Development, Royal Society for the Protection of Birds Andrew Midgely, Projects and Research Manager, Scottish land and Estates Robin Parker, Public Affairs Manager, WWF Scotland Daphne Vlastari, Advocacy Manager, Scottish environment LINK Submissions received by the contributors are included in the links below.

4 Professor Gavin Little Professor Colin Reid Dr Annalisa Savaresi National Farmers Union Scotland ECCLR/S5/18/3/1 2 Royal Society for the Protection of Birds Scottish environment LINK Background Briefing To inform the Parliament, the Scottish Parliament Information Centre (SPICe) has prepared briefings on the implications of leaving the EU for: environment CLIMATE CHANGE While not under the remit of the ECCLR Committee, SPICe has also prepared a number of other briefings in relation to leaving the EU for: Agriculture Forestry Energy policy SPICe also produce a weekly update on the UK's exit from the EU SPICe has produced a useful timeline of the UK's withdrawal from the European Union Finally, SPICe has created an information hub which provides external materials covering the UK s decision to leave the European Union Clerks environment , CLIMATE CHANGE and land reform Committee ECCLR/S5/18/3/3 1 environment , CLIMATE CHANGE and land reform Committee 3rd meeting , 2018 (Session 5) Tuesday 23 January 2018 SSI cover note for: Electricity Works (Environmental Impact Assessment) (Scotland) Amendment Regulations 2017 (SSI 2017/451) SSI 2017/451 Type of Instrument: Negative Laid Date: 15 December 2017 Circulated to Members: 21 December 2017 meeting Date: 23 January 2018 Minister to attend meeting : No Motion for annulment lodged.

5 No Drawn to the Parliament s attention by the Delegated Powers and Law reform Committee? Yes Reporting deadline: 5 February 2018 Recommendation 1. The Committee is invited to consider any issues which it wishes to raise on these this instrument. Procedure for Negative Instruments 2. Negative instruments are instruments that are subject to annulment by resolution of the Parliament for a period of 40 days after they are laid. All negative instruments are considered by the Delegated Powers and Law reform Committee (on various technical grounds) and by the relevant lead committee (on policy grounds). Under Rule , any member (whether or not a member of the lead committee) may, within the 40-day period, lodge a motion for consideration by the lead committee recommending annulment of the instrument. If the motion is agreed to, the Parliamentary Bureau must then lodge a motion to annul the instrument for consideration by the Parliament.

6 3. If that is also agreed to, Scottish Ministers must revoke the instrument. Each negative instrument appears on a committee agenda at the first opportunity after the Delegated Powers and Law reform Committee has reported on it. This means that, if questions are asked or concerns raised, consideration of the instrument can usually be continued to a later meeting to allow correspondence to be entered into or ECCLR/S5/18/3/3 2 a Minister or officials invited to give evidence. In other cases, the Committee may be content simply to note the instrument and agree to make no recommendation on it. Background and purpose 4. European Union directives are binding on Members States as to the result to be achieved, but leave them to decide on the method of achieving that result. Directives are transposed into domestic law. Further details on the EU Legislative Process can be found in the Scottish Parliament Information Centre Briefing of May 2016.

7 5. In May 2017, the Committee considered the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017 (SSI 2017/101). 6. It was part of a suite of instruments to implement the European Directive 2014/52/EU ( the 2014 Directive ) which amends Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment (also known as the Environmental Impact Assessment or EIA Directive). 7. In broad terms, the 2014 Directive requires an assessment of the environmental effects of any project which is likely to have significant effects on the environment . Any such project cannot go ahead without the consent of a competent authority, and the authority must take the assessment into account before deciding whether to give such consent. 8. The original regulations require that an environmental impact assessment is carried out in respect to any variation to consent required under s36 of the Electricity Act 1989.

8 This is beyond the scope of what is required under Directive 2011/92/EU. The purpose of these amending regulations is to alter the requirement for impact assessments to applications where the changes proposed by the variation may cause significant adverse environmental effects and to align the requirements with those in the Directives. 9. A copy of the Scottish Government s Explanatory and Policy Notes are included in Annexe A. 10. An extract from the report of the Delegated Powers and Law reform Committee is included at Annexe B. 11. Paul Wheelhouse, Minister for Business, Innovation and Energy, wrote to the Committee on the instrument and this is provided at Annexe C. 12. The Scottish Government wrote to the Presiding Officer to explain the breach of the 28 day rule. This is included at Annexe D. Delegated Powers and Law reform Committee 13.

9 At its meeting on 16 January 2018, the Committee agreed to draw the attention of Parliament to the instrument and to report that it found the breach of s28(2) of the Interpretation and Legislative reform (Scotland) Act 2010 acceptable with regard to the instrument. The extract from the report can be found in Annexe B. ECCLR/S5/18/3/3 3 Clerks environment , CLIMATE CHANGE and land reform Committee Annexe A Scottish Government Explanatory Note These Regulations amend the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017 ( the 2017 Regulations ) in respect of the application of the 2017 Regulations to an application under section 36C of the Electricity Act 1989 (a variation application ). The 2017 Regulations implement Directive 2011/92/EU of the European Parliament and of the Council on the assessment of the effects of certain public and private projects on the environment (OJ L 26, , ) as amended by Council Directive 2014/52/EU (OJ L 124, , ) in relation to consents required under sections 36 and 37 of the Electricity Act 1989.

10 A variation application is an application to vary an existing consent granted under section 36 of the Electricity Act 1989 to construct and operate a generating station. Regulation 28 of the 2017 Regulations applies the 2017 Regulations to variation applications as the 2017 Regulations apply to section 36 consents, subject to certain modifications. The 2017 Regulations require an environmental impact assessment to be carried out for applications for EIA development. The changes made by regulation 2(2) to regulation 2(1) of the 2017 Regulations make it clear that a variation application relates to EIA development if the proposed variation is likely to have significant effects on the environment . A definition of proposed variation is included. Regulation 2(3) amends regulation 28 of the 2017 Regulations. New paragraph (1) makes it clear that, as for other EIA applications, Ministers may not grant a variation application (or make a related direction under section 57 of the Town and Country Planning (Scotland) Act 1997 unless an environmental impact assessment has been carried out.)