Brexit – as currently planned – by the Brit-Govt will give it new powers to approve planning applications for onshore oil and gas exploration (aka ‘fracking’) in Scotland, it was revealed last night.
That means that these planning decisions will be made in Westminster by a Brit-Govt minister – as is already case for such applications in England.
The Brit-Govt has published the list of 111 legislative areas which are presently decided in Brussels by the EU. On Brexit, these powers would be repatriated to the Westminster parliament – even though they directly affect Scotland – instead of flowing directly from Brussels to the Scottish Parliament.
The Brexit powers list includes the following areas of express interest to law-makers and energy companies currently, or prospectively, operating in the Scottish energy sector. These are: –
- Carbon Capture & Storage
- Environmental Impact Assessment (EIA) Directive
- Environmental law concerning energy planning consents
- Environmental law concerning offshore oil & gas installations within territorial waters
- Environmental quality – Air Quality
- Environmental quality – Chemicals
- Environmental quality – Marine environment
- Environmental quality – Natural Environment and Biodiversity
- Environmental quality – Ozone depleting substances and F-gases
- Heat metering and billing information
- High Efficiency Co-generation
- Implementation of EU Emissions Trading System
- Land use
- Onshore hydrocarbons licensing
- Public sector procurement
- Rules on applicable law in civil & commercial cross border claims (ie which court has jurisdictional competence in cross-border energy supply/ contract cases after Brexit; London? Brussels? Edinburgh?)
- Strategic Environmental Assessment (SEA) Directive
Given the current – and prospective – political compositions of the Brit-Govt and Scot-Govt in the UK after Brexit – it is foreseeable that Brit-Govt may wish to make (political) decisions on all aspects of energy-related environment, land use, planning, onshore oil and gas (hydrocarbons; aka ‘fracking) carbon-capture, co-generation, and energy efficiency legislation which is at odds with that which the Scot-Govt would enact if these powers were returned from Brussels to Edinburgh. (continues below).
Alex Salmond, former First Minister of Scotland, to speak at keynote Renewables After Brexit energy conference, 1 Dec 2017: Dundee University
This event is likely to be the keynote renewable energy conference of the year.
It is being held in partnership with the Centre for Energy, Petroleum and Mineral Law & Policy at Dundee University on 1 December 2017.
The following industry experts are also due to speak: –
- John Campbell, QC (Top legal expert who advised in the Aberdeen Bay wind farm’ case)
- Dave Pearson, Director, Star Renewable Energy
- Mark Sommerfeld, Policy Analyst, (UK) Renewable Energy Association
- Graham Provest, Managing Director, Absolute Solar and Wind Energy
A few speaking slots are still available. For more details, sponsorship opportunities and conference booking details, see: www.renewablesafterbrexit.co.uk
Experts at University College London (UCL) last week claimed that the UK is now the “Saudi Arabia of wind” after a government auction of renewable-energy contracts saw the cost of offshore generation fall below that of new nuclear power and gas for the first time.
Yesterday, Scottish First Minister Nicola Sturgeon told Prime Minister May that the Brexit Bill would need to be “substantially amended” for the Scot-Govt to recommend that the Scottish parliament approves (ie gives ‘legislative consent’).
This is entirely un-charted political territory – as there is no precedent for what happens if Holyrood says ‘No’ to May’s UK Brexit Bill.
While the Brit-Govt would presumably ignore a Holyrood No-to-Brexit vote – it would create a political and constitutional crisis, possibly triggering another Independence Referendum in Scotland.
And either way, it well certainly not result in the ‘clarity and certainty’ which Scottish energy businesses (or any other sector) requires to thrive.
Mike Russell, MSP, the SNP Scot-Govt Minister for keeping Scotland in the EU, said: “The restrictions in clause 11 of the Brexit Bill apply to many areas of Scottish devolved responsibility vital to the success of our country, such as agriculture, the environment, fisheries, forestry, research, or justice co-operation.
“The restrictions have the effect that the Scottish Parliament would have no say over what is done with these important policy areas after EU withdrawal.
“The Scottish Government is clear that any policy areas within devolved competence, carried out at EU level, should return to the Scottish Parliament in the event the UK leaves the EU.
“We will, however, only be able to agree frameworks based on respect for devolution, including the existing well established arrangements for co-operation, and not on the basis of the Bill as it stands.”
Reacting to news that powers on environmental legislation, fracking licensing, fishing and farming may be transferred to the UK Government at the point of Brexit, Dr Richard Dixon, Director of Friends of the Earth Scotland, said:
“Any plan to move control of these areas to Westminster after Brexit is alarming, the whole point of devolution has been that relevant decisions would be made that suit the specific circumstances in Scotland.
“Devolution means that Scotland is already different from the rest of the UK. We have set higher standards for air quality and tougher targets for renewable energy, made different choices on dealing with waste and have a process which will hopefully lead to a ban on fracking (onshore oil and gas exploration)
“Devolution has been good for Scotland’s environment, we have higher ambition on renewable energy, on tackling climate change, on dealing with pollution in our cities and losing control in these areas would be a huge setback for efforts to meet these goals.
“The apparent move to take back powers that have only just come to Scotland on licensing onshore oil and gas exploration (‘fracking’) is disturbing, since it comes from a UK Government which is desperately enthusiastic for this technique.”
The Brit-Govt did not respond to the specific issue of being the decision-maker on onshore oil and gas exploration licences in Scotland.
But its First Secretary of State, Damian Green, said: “The lists which the UK Government shared with the Scottish and Welsh Governments several weeks ago contains 111 and 64 policy areas respectively that are currently controlled by the EU which are now coming back to the UK.
“We want to continue to work with the Scottish and Welsh Governments to make sure we are all ready to take on these new responsibilities when we leave the EU.
“The important thing now is to work our way through these lists and find the areas where we will need to maintain a common UK or GB approach, as well as those areas where it will make sense to transfer powers direct to the devolved governments. When it is better to devolve then that is what we will do, as we have done for the last 20 years.
“The Repeal Bill aims to maximise certainty for individuals and businesses as we leave the EU. The UK Government stands ready to listen to those who offer improvements to the Bill – but we will do nothing that risks undermining the benefits of the UK. Cardiff, Edinburgh and Belfast will receive more decision making powers as a result of this process.
“But the UK Government will not risk our internal UK market, or make life more difficult or more expensive for UK companies, workers or consumers. We all observe the same broad EU rules now.
“Doing things four different ways – in England, Scotland, Wales and Northern Ireland – will not be the best way if it adds costs to companies and customers across the UK.”
20 Sept 2017