Environmental Standards Scotland (ESS): how will it affect public authorities?

We have blogged previously about the impact of Brexit on environmental law in Scotland and the UK, and the steps the Scottish Government proposed to ensure Scots law continues to align with EU law. As part of those proposals a new independent Scottish environmental body called Environmental Standards Scotland (ESS), was created. On 1 October 2021 ESS was launched. In this post we look at ESS's powers and functions, and what those may mean for public authorities in Scotland.

What is ESS?

ESS is an independent public body created by the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 ('the Continuity Act'). While ESS is publicly funded, the Continuity Act specifically provides that it is not subject to the direction or control of any member of the Scottish Government. ESS is set up as a non-ministerial office, accountable to the Scottish Parliament.

Why has ESS been created?

ESS states its vision is that, 'Scotland's communities benefit from a high quality environment, and are protected from harm through the consistent application of effective environmental laws, which are recognised internationally as setting high standards.

What is the role of ESS?

ESS has a dual function. Firstly, to monitor and enforce the compliance of public authorities (including the Scottish Government and its agencies) with environmental law. We explain in more detail below the scope of that function.

Secondly, ESS has a more general function to monitor the effectiveness of environmental law in Scotland and how it is implemented or applied. In exercising this function, ESS may carry out, commission or support any research or make recommendations. Importantly, ESS is also to have regard to developments in international environmental law.

Whilst separate, these functions are not mutually exclusive. The information that ESS gathers, for example, in connection with developments in international environmental law will likely shape the approach it takes to enforcement action against public authorities.

What are ESS's powers?

ESS has a wide range of powers to monitor and enforce compliance by public authorities with environmental law. We have outlined some of the powers available to ESS below.

What does this mean for public authorities?

ESS's powers are intentionally broad both in respect of their nature and scope. For the purposes of ESS's powers a public authority means any person exercising a public function (section 42 of the Continuity Act). ESS will be able to exercise its powers in relation to how a public authority takes into account environmental law when exercising its functions. However, environmental law includes any legislative provision mainly concerned with environmental protection.

It appears from the indications so far that ESS intends to take a proactive approach towards identifying where environmental law is not being compiled with. Public authorities will therefore need to carefully consider how they are complying with environmental legislation in the exercise of their functions. Failure to do so no longer only risks legal action by those affected by a public authority's decision. The conduct of public authorities will now also be subject to the scrutiny of ESS.

ESS also provides an alternative to litigation where a person considers a public authority has failed to comply with environmental law. Such complaints are now being received by ESS online and by email.

If you have any queries related to the above, or any other related matter, please get in touch with Niall McLean or Finlay Mackenzie.