Page 30 - Lawtext Environmental Liabilty Journal Example

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[2008] 3 Env. Liability : Transposing the Environmental Liability Directive in Scotland : Brown 9797
participating in the survey. A number of respondents, among Conclusions
them MSPs, environmental NGOs and one business
spokesperson, admitted that they were unable to assist due As the Scottish Government awaits the responses from the
to a lack of knowledge and resources. One MSP was unable second and final consultation stage, major controversies are
to help but expressed an interest in the research findings, not expected in the run-up to the final transposition. It is
while another with an environmental background therefore possible to present some (albeit preliminary)
apologised for not taking part, as he could not offer any conclusions on the process and performance of the Scottish
informed comments. 14 transposition network.
The second consultation stage started on 16 May 2008. First, the relative lack of interest by Scottish stakeholders
Stakeholders have three months to comment on draft suggests that the ELD does not constitute a priority policy
Environmental Liability (Prevention and Remediation) area. To date, it has not attracted much attention among
(Scotland) Regulations 2008 and accompanying guidance the 427 addressees, nor has it made headline news in
documents. The final transposition of the policy is scheduled Scotland, despite the policy’s potential implications for the
for December 2008. However, considering the substantial natural environment as well as the Scottish economy.
delays of the first stage, it is likely that Scotland will not Secondly, what might not have helped during the first
see the policy transposed until early 2009. The current stage of the consultation process was a change in
proposals suggest no major changes to the overall policy government, specifically the transition from a Liberal-
stance, although Scotland has seen a change in government Labour coalition Scottish Executive to a SNP Scottish
since the consultation process began. The key features of Government. Since the Scottish elections of May 2007, the
the Scottish policy as outlined above remain intact, including Scottish political landscape has seen a number of re-
the non-enhanced ‘simplified’ approach adopted right from adjustments in terms of government relationships between
the beginning and an emphasis on cost minimisation as well the United Kingdom, Scottish and local authorities (eg
as discretionary powers for the two main competent tensions between Westminster and Holyrood; changes in
authorities, SNH and SEPA (plus Scottish ministers on local authority funding). In the past few months, the SNP
marine environment matters). The powers of the latter were government has appeared to re-evaluate and scrutinise
further strengthened in the area of third party involvement policies that had been introduced previously by its Liberal-
following a request from SEPA. Here competent authorities Labour coalition predecessor, with the effect that many
have discretionary powers over the question of whether or policies, particularly in so-called low politics areas such as
not a request for action by interested parties is ‘plausible’ the environment, have been put on hold. This explains
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and deserves to be taken further. Another interesting partly (but not entirely) the delayed and somewhat half-
addition with the second stage concerns the issue of appeals hearted processing of the ELD in Scotland. Therefore, it
and disputes: these should be settled in the courts, ie before could be argued that a circumstantial factor, ie the change
sheriffs. Stakeholders had been divided over this issue, and of government in Scotland, has influenced the transposition
it will be interesting to see what the response is to this process of the Environmental Liability Directive. And yet,
latest proposal. Finally, it is interesting to note that one having highlighted the delay in transposing the policy, the
item for discussion was resolved in favour of the latest Scottish version of the ELD is largely consistent with
environmental lobby: the matter of how to deal with GMOs. the earlier version. In other words, the change in
The Scottish Government acknowledged the validity of the government from Liberal-Labour coalition to SNP has not
GM ‘long-term impacts’ argument and adjusted the policy resulted in a change of direction towards, say, an enhanced
accordingly. This observation suggests that as long as there or greener policy.
is a strong and determined lobby, policy adjustments can Thirdly, the above findings have shown that the main
be pushed through by some stakeholders. factors shaping the transposition process so far can be found
in the Scottish transposition network itself. As with any
network, this consists of stakeholders who pursue their
interests within the constraints of their constitutional
settings and relationships with each other. The latter have
proven to be typical if not traditional: neither business nor

14 Email and hard copy questionnaires and accompanying letters
were sent to 30 relevant target individuals and organisations/
representations between September and November 2006. For 15 This observation was confirmed to the author by a Scottish
further information, please email the author. environmental consultant, November 2007.

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