The world has become increasingly concerned about the environment and society’s impact on it in recent years, and as a result, regulation has become enormously complex. It can be extensively tricky for companies to navigate these regulations, and litigation in this matter is not uncommon.
Here to discuss the latest updates on environmental law in Scotland and the UK, and providing Lawyer Monthly with an expert outlook on the challenges and potential solutions ahead, is John McGovern, Partner at MacRoberts LLP, a Scottish sector based law firm.
In the past decade, what would you say have been the biggest changes in Scottish and UK environmental law? How have these impacted your work in this field?
There have been many significant changes, not least what seems like constant additions to environmental law affecting contaminated land and to producers’ responsibility e.g. packaging and batteries, and the regulation of waste management/ storage. It can all be very confusing for SMEs to follow and keep up to date with, no matter how well motivated.
In my view, in both the UK and Scotland the biggest change in environmental law which will impact on civic society and the business community is climate change legislation - The Climate Change (Scotland) Act 2009 and The Climate Change Act 2008 (UK). These Acts set ambitious targets for the reduction of greenhouse gas emissions by 2050, and by 2020 on an interim basis; and allow the government to effectively regulate and monitor those targets, through public authorities and bodies.
More practically, as a solicitor, the biggest changes are probably the most recent – the introduction of the new regulatory regime in Scotland which allows the Scottish Environmental Protection Agency to accept an offer of an enforcement undertaking, as an alternative to a criminal prosecution, where there is a reasonable suspicion that an offence has been committed. These changes also allow SEPA to charge the “relevant person” for its cost in monitoring and investigating the viability of any offer made. These changes are consistent with the enforcement undertaking regime that already exists in the rest of the UK. Understanding how this new regime is going to work, and what SEPA’s attitude towards it might be, is a big challenge at the moment.
What are the biggest challenges that lie ahead pertaining to environment law in Scotland?
Generally, I think there is a challenge for SEPA to make the rules more accessible and simpler with clearer standards. The question “do I need a licence for that?” often does not have an obvious or simple answer. While SEPA has improved its website, there is often little clarity on the thresholds for regulation or the standards which need to be met.
As a practising regulatory solicitor, I think that some of the pre devolution environmental legislation may eventually be challenged under ECHR.
As a thought leader, what solutions do you envision and how complex is the logistical achievement of these?
Scotland is a small jurisdiction, and the challenge for the legislators is to engage with all of those operating in the environmental law area. As a lawyer, I want to be able to advise my client on legislative change with some confidence. Sometimes that can be difficult if the legislation passed is designed with a specific purpose, such as to assist the regulator, and to ensure that financial burden is passed to the business being investigated.
You defend clients in investigations involving the Scottish Environmental Protection Agency and the Forestry Commission; what particular challenges do these cases present?
I would like regulators to be more relaxed when conducting these investigations, and be more open with those being investigated. I often struggle to understand some of the thought processes that the regulators follow when conducting their investigations: I think at times that there is a passing nod to the fact that they are often conducting major white collar criminal investigations which could end businesses, and put their owners behind bars, yet they can be very closed with their information. In my experience, most businesses under investigation have a desire to remedy the issue which has prompted the investigation as soon as they can.
As a thought leader, how are you currently working to develop or implement new legislation or strategies in this field?
I think that Brexit has almost led to a moratorium on new legislative initiatives. From speaking to clients overseas, there is hesitancy not just about Brexit, but also about the consequences the vote will have for Scotland. Whether you are in favour or against a second referendum, I don’t think anyone will argue that the uncertainty is producing strategies and legislation for the long term.
