Amendments to protect EU environmental principles and address governance gaps post-Brexit are expected to be passed today with cross-party support by the Scottish Parliament. Environmental organisations have called on Westminster to follow Scotland’s lead.
Amendment 39 by Claudia Beamish MSP, supported by Colin Smyth MSP and amendment 56 by Mark Ruskell MSP are expected to be passed by the Scottish Parliament when the vote on the Scottish Continuity Bill takes place later today, on the afternoon of 21 March .
Environmental organisations, members of Scottish Environment LINK , had raised concerns that in bringing across EU legislation into domestic law, the Continuity Bill had failed to preserve the vital environmental principles, part of EU treaties, that underpinned legislation and policy making . The amendments ensure that these vital environmental principles not only maintain their current status, but become the basis of all environmental law-making in Scotland. The amendments also commit the Scottish Government to consulting on new measures to ensure that environmental laws continue to be enforced effectively. Scottish Environment LINK members are calling for the creation of new watchdog functions and environmental courts to uphold environmental laws.
Speaking on behalf of the 18 organisations that have welcomed the vote in Scotland, Charles Dundas, Chair of Scottish Environment LINK and Public Affairs Manager at the Woodland Trust Scotland said:
“With today’s vote, the Scottish Parliament has made it clear that it will not accept any loss of environmental standards in Scotland as a result of the UK’s decision to leave the EU. Important environmental principles, like the ‘precautionary principle’ or ‘polluter pays’, have for years underpinned EU environmental policy and legislation, helping to protect Scotland’s environment. This vote means that this will continue to be the case, whatever Scotland’s future relationship with its European neighbours is.
“Earlier in the process, Green, Labour and Liberal Democrat politicians all brought forward amendments that highlighted the opportunity for the Scottish Continuity Bill to avoid the gap in the UK Government’s Withdrawal Bill. All those in Scotland that care about the protection of our natural environment will be grateful that the Scottish Government listened and acted on those concerns. This was our political representatives at their best, working together to restore Scotland’s environment to good health.”
The coalition of environmental charities have also welcomed new commitments from the Scottish Government to examine solutions to a ‘governance gap’ created by the loss of functions currently performed by EU institutions like the European Commission and European Court of Justice.
Lloyd Austin, convenor of LINK’s Governance Group and RSPB Scotland’s Head of Conservation Policy said,
“European institutions have performed a valuable role in holding Scottish and UK Governments to account for their environmental commitments. Leaving the European Union must not mean the loss of these checks and balances or the rights of citizens to ensure our environmental laws are enforced. We were very pleased to hear the Scottish Government’s commitment to closing this gap. Particular credit is also due to Mark Ruskell MSP who has regularly raised this issue in sessions of the Parliament’s Environment Committee.”
Commenting on the Scottish Continuity Bill, Greener UK’s Chair Shaun Spiers  said:
“It’s heartening to see the Scottish Parliament voting to protect the environmental principles that have underpinned the EU’s law and policy making. We’ve been working with politicians at Westminster from across the political spectrum to raise the same concerns about the UK Government’s Withdrawal Bill. The Scottish Parliament’s vote shows that there are no practical barriers to doing this. There’s still time to make changes to the UK Withdrawal Bill, and it’s now time for Westminster to act on our concerns.”
For more information please contact:
Daphne Vlastari, LINK Advocacy Manager
firstname.lastname@example.org | 0131 225 4345
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Notes to editors:
 The amendments are available online here. The amendments will begin being debated on and voted on at 2.20pm on 21 March in the Scottish Parliament as part of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill Stage 3.
 The environmental organisations, members of Scottish Environment LINK, who have supported this call are:
Butterfly Conservation Scotland, Cairngorms Campaign, Froglife Scotland, Hebridean Whale and Dolphin Trust, Marine Conservation Society, North East Mountain Trust, Nourish Scotland, Ramblers Scotland, RSPB Scotland, Scottish Badgers, Scottish Countryside Rangers Association, Scottish Wild Land Group, Scottish Wildlife Trust, Soil Association Scotland, Trees for Life, Whale and Dolphin Conservation, Woodland Trust Scotland and WWF Scotland.
 The environmental principles are defined by Article 191(2) of the Treaty on the Functioning of the EU as:
– the precautionary principle;
– the principles that preventive action should be taken;
– the principle that environmental damage should as a priority be rectified at source and;
– the principle that the polluter should pay.
LINK’s briefing on the Continuity Bill and importance of EU environmental and animal sentience principles as well as governance gap can be found here.
 Greener UK is a group of 13 major environmental organisations, with a combined public membership of 7.9 million, united in the belief that leaving the EU is a pivotal moment to restore and enhance the UK’s environment (http://greeneruk.org/).
 Examples illustrating the importance of EU environment and animal sentience principles:
• Application of polluter pays principle in Court of Session 2013 open cast coal ruling: In a landmark ruling for environmental protection in December 2013, the Inner House of the Court of Session ruled that liquidators of Scottish Coal could not ‘disclaim’ i.e. unilaterally abandon environmental licences, specifically CAR licences issued by SEPA under The Water Environment (Controlled Activities) Regulations 2005 and 2011.
– This forced liquidators to continue to maintain the sites, preventing further environmental damage and preventing further costs from falling to Local Authorities or Scottish Government. A key part of the reasoning behind this decision lay in looking to the underlying purposes of the CAR regime, stated as being “to secure environmental advantages for society through the achievement of EU environmental objectives”.
– The court ruled that the “polluter pays” principle as set out in the Treaty on the functioning of the EU (“TFEU”), provided a sound reason for prohibiting unilateral termination, because “the principle required that the costs of pollution should be internalised, through pricing mechanisms, so that they became costs of any operations causing environmental degradation.”
– This case illustrates how the Scottish court was able to refer directly to the “polluter pays principle” as it exists in the TFEU – without the principle existing in a specific piece of EU or EU-derived legislation.
• Scottish Government GM crops decision utilising the precautionary principle: Scotland opted out of the use of genetically modified (GM) crops in 2015 on the basis of the precautionary principle. The Scottish Government stated that it was concerned that there was insufficient evidence that GM crops would not damage Scotland’s food and drink sector.
– Cabinet Secretary Richard Lochhead stated: “I strongly support the continued application of the precautionary principle in relation to GM crops and intend to take full advantage of the flexibility allowed under these new EU rules to ban GM crops from being grown in Scotland”.
• Preventive action and the regulation of non-native species in Scotland: The principle of “preventive action” is the basis of invasive non-native species (INNS) legislation (Wildlife and Countryside Act as amended by the Wildlife and Natural Environment (Scotland) Act). This principle supports that “prevention is better than cure” and so effort should be put into biosecurity etc to prevent INNS arriving as this is less costly, in long run, than the elimination of INNS after they have arrived/ are established. This approach is reflected in the Scottish Government Code of Practice on Non-Native Species.
 Further background on process:
• Upon being introduced, the Bill retained one of the most important EU environmental principles, the precautionary principle, as a principle of general EU law.
• Following intense cross-party discussions between the Scottish Government and Scottish Labour, Scottish Greens and Scottish Liberal Democrats, the Bill that the Scottish Parliament has now voted for provides further assurances that our environmental will not suffer as a result of the UK’s decision to leave the EU. It also provides a clear path forward that commits the Scottish Government to ensuring that future Scottish policy works towards sustainable development, in line with commitments previously made by Cabinet Secretary for the Environment, Climate Change and Land Reform Roseanna Cunningham.
• The amendments preserve EU environmental principles and require Scottish Ministers to consider them in terms of Sections 11, 12 and 13 of the Bill. Most critically, this means that Scottish Ministers will not be able to use delegated powers conferred on them to address deficiencies of EU law following the UK’s exit from the EU to water down environmental standards.
• The amendments also bind the Scottish Government to consulting and bringing forward proposals on the role and function of EU environmental principles in Scottish law as well as the need to address the environmental governance gap emerging from the loss of functions currently performed by EU bodies and agencies. Ministers have committed to consult and consider proposals to address the full range of functions that Scotland will need to address as a result of the UK’s exit from EU, including those performed by the European Commission and European Court of Justice.
• A key gap in the UK Government’s Withdrawal Bill has been its failure to preserve the EU’s environmental principles and provide legislative commitments to address the EU governance gap.