Ministers are preparing to face censure over alleged breaches of European laws meant to protect whales and birds of prey and to prevent pollution, an internal report obtained by the Sunday Herald reveals.
The Scottish government is also anticipating “potential problems” with legal action from the European Commission (EC) over the controversial wind farm proposed for the Isle of Lewis, fisheries policy, environmental assessments and sewage leakages in Campbeltown.
An up-to-date database of all the active legal disputes between the Scottish government and the EC has been released under freedom of information legislation. Details of the so-called “infraction cases” were kept secret until the Scottish Information Commissioner, Kevin Dunion, ordered that to end last December.
The database discloses officials’ fears that a series of cases could end up in the European court of justice in Luxembourg, which has the power to levy multi-million pound fines on governments.
On the alleged failure to adequately monitor whales, dolphins and porpoises around the coast, the database warns “the risk is that infraction proceedings will escalate.” Efforts to expand protection areas for golden eagles, hen harriers and merlins face a “risk of escalation if progress falters,” it says.
According to the EC, Scotland has failed to declare enough “nitrate-vulnerable zones” to protect river and lochs from farm pollution. This could end up in court, the database predicts, if “negotiations break down”.
On the Lewis wind farm, government officials caution that the EC is taking “a keen interest in the handling of this application” because it threatens protected birds and habitats. Ministers have said they are “minded to refuse” the application but have still to come to a final decision.
There is also a risk that alleged breaches of the rules governing the conservation and control of declining fish stocks will be made to stick. “The commission may not accept the arguments set out in our response,” cautions the database.
The Scottish government’s resistance to an obligation to reveal the reasons for refusing an environmental impact assessment would have to end “if the European Court of Justice rules against the UK”, say officials. The sewage pollution charges levelled by Campbeltown residents, previously reported by the Sunday Herald, could succeed if the “commission does not agree with our view”, they add.
In total the new database lists 29 active cases, reduced from the 45 “ongoing” cases recorded in June 2006. Other current infractions include alleged breaches of European directives on waste oil, drinking water and the energy performance of buildings.
“While the SNP government has inherited many of these problem cases from the previous administration, it is incumbent upon it to address outstanding concerns and ensure that Scotland does not fall foul of European law,” said Dr Dan Barlow, acting director of the environmental group, WWF Scotland.
“From pollution control to habitat protection, the Scottish government needs to show how seriously they takes its responsibility to safeguard people and the environment.”
Lloyd Austin, head of conservation policy with the Royal Society for the Protection of Birds (RSPB) in Scotland, pointed out that European environmental law was vital to help the SNP deliver its aim of a greener Scotland.
“It is encouraging that the government is seeking to reduce infractions by ensuring compliance,” he said. “But this progress needs to be maintained across all areas, especially in the marine environment.”
According to Austin, the fact that ministers were “minded to refuse” the Lewis wind farm plan was in keeping with European law. “RSPB Scotland would consider any change to this approach to be irrational and unnecessary, risking further infraction proceedings.”
The Scottish government insisted that it took its obligations under European law seriously. “We are committed to progressing all outstanding infraction cases as soon as possible,” said a government spokesman. “The infraction process is often lengthy and cases can take a long time to resolve.”
Download a full copy of the internal database released by the Scottish government here (72kb Excel spreadsheet).
Read an earlier story about the database here.