Scottish strategic assessment Bill takes shape

Plans for the UK's first primary legislation on strategic environmental assessment (SEA) took firmer shape in February when the Scottish Executive set out its conclusions on last autumn's public consultation on an SEA Bill.

In common with the rest of the UK, regulations were introduced in Scotland last summer to transpose the 2001 EU Directive on environmental assessment of plans and programmes (ENDS Report 349, pp 49-50 ).

Scotland will, however, go further than the rest of the UK because of a post-election agreement between Labour and the Liberal Democrats in 2003 to extend environmental assessment requirements to strategies, plans and programmes which are not covered by the EU Directive. Up to 200 types of these are produced in the country, according to a recent official stocktaking.

An SEA Bill is due to be introduced during the 2004/05 session. It will revoke last summer's regulations, replacing them with broadly harmonised procedures for plans and programmes covered by both the EU regime and the broader Scottish rules.

In February, the Executive firmed up its plans for the Bill in a paper setting out its response to a consultation last autumn.1 Issues settled during the consultation include:

  • Qualifying plans and programmes: These fall into two categories: those subject to the EU Directive, which mostly covers plans and programmes that create a "framework for future development consent" of major projects, and others prepared by public authorities unless expressly exempted.

    The only exemptions proposed so far are for plans and programmes for individual schools, and - borrowed from the EU Directive - financial and budget plans. In addition, privatised utilities - which may sometimes find their plans subject to the SEA Directive - appear to be excluded from the purely national regime.

  • Pre-screening: The scope of the national regime is potentially very broad. However, the Executive intends to narrow it down by introducing a "pre-screening" stage for plans and programmes other than those subject to the Directive. This will allow the originating "responsible authorities" to determine that their plan or programme is either of "no" or "minimal" environmental significance and hence need not be subject to SEA.

    Pre-screening differs from the screening procedure already in place in allowing authorities to determine of their own volition whether a plan or programme may qualify for SEA. In the screening procedure, in contrast, the statutory "consultation authorities" - Ministers, the Scottish Environment Protection Agency and Scottish Natural Heritage - must be consulted over such decisions.

    Some respondents to the consultation felt that allowing authorities to decide for themselves whether SEA requirements should apply amounted to a potentially serious loophole. The Executive has responded by promising guidance on pre-screening; it will also "consider administrative procedures for the recording of pre-screened cases."

    A further complication has been added, however. This will arise where an authority decides that a plan or programme other than one covered by the Directive is of greater than "minimal significance". Yet it will not automatically follow that the plan or programme must be subject to SEA, because the Executive intends to borrow a clause from the Directive which, in certain limited cases, confines SEA requirements to circumstances where "significant environmental effects" are likely, and apply it across the national regime.

    Some may feel that this scheme suffers from contorted logic. In any event, it seems likely to provide authorities with plenty of scope for hair splitting in efforts to evade SEA.

  • Ministerial directions: In addition to their existing powers to direct authorities to carry out SEA in particular cases or to determine whether SEA is required, Ministers will be able to order an authority to determine whether a plan or programme outside the scope of the Directive is likely to have "significant" environmental effects, and hence requires SEA.

  • Screening: The screening process will follow the current procedures, with consultation authorities being consulted over whether SEA is required, and conflicts between them and the originating authority being resolved by Ministers.

    The Executive has decided to stick with its original proposal that consultation authorities must take their decisions within 28 days, despite pleas by those authorities for provision to extend the timescale to cater for peaks of activity or difficult cases.

    It has also rejected the idea of a statutory list of plans and programmes requiring formal screening. Instead, an indicative list will be developed in the light of experience.

  • Gateway: Five options were proposed by the Executive for administration of the screening and scoping procedures and performing other advisory and data management functions. It has decided to persist with the mechanism set up last year - a "gateway" within the Executive itself through which screening and scoping documents pass.

    Other decisions taken by the Executive were not to proceed with the idea of a core set of environmental indicators in authorities' environmental reports, nor to require reports to cover social and economic impacts for fear of "obscuring the environmental considerations that we are setting out to identify" - another direct conflict with the UK Government's preference to consider all three dimensions together.

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