Oil Leak 19 – Where are the Scottish Government?

We were going to continue with a rebuttal of Port CEO Bob Buskie’s “big interview”, but in researching that we came across a transcript of questions that were asked in the Scottish Parliament regarding Forth Ports failed attempt to conduct a similar exercise in the Firth of Forth. We’ve been so staggered by what we’ve read, we feel we must share. You can read the full transcript HERE but in the meantime we want to highlight some important points.

If you don’t want to read it we’ll give you some quotes:

Richard Lochhead MSP: “It is fitting that my first statement is on the complex and important issue of ship-to-ship oil transfers in the Forth, which demonstrates the very high priority that the Government attaches to our environment and to this issue in particular.”

Hmmmm…..so the Scottish Government gave the issue of STS on the Forth a very high priority – what about your poor relations in the Highlands? We have exactly the same issue in a more environmentally sensitive area. Or have the lobbyists that prowl the corridors of Holyrood got to you? Answer please.

He continues: “……..Members of all parties have expressed grave concerns about some aspects of the proposal.

When such concerns exist, it is vital that there is a robust and accountable process to ensure that the range of views can be expressed and the proper analysis undertaken. That is what the people of Scotland look to the Parliament to provide.”

Yes, that is exactly what the people of Scotland look to the Parliament to provide. Why not for the Cromarty Firth?

Over to Mr Lochhead: “As a starting point, it would appear to me that there is a strong case for ruling out new ship-to-ship oil transfers in areas that are in close proximity to areas that have been designated as environmentally sensitive, such as the Firth of Forth. Moreover, there is certainly a strong case for ensuring that decisions on whether a proposal would damage environmentally sensitive areas are taken by an organisation that is democratically accountable for those decisions and which is subject to independent and impartial scrutiny.”

A strong case for ruling out new ship-to-ship transfers in areas that are in close proximity to areas that have been designated as environmentally sensitive – well, we’ll excuse the grammar but does that include STS transfer that are actually fully within designated environmentally sensitive areas such as the the Inner Firth Firth? Make no mistake this a new STS transfer – otherwise the MCA would not have demanded a licence. We’ll go into that a bit more in the next oil leak.

Mr Lochhead – “Today I announce our firm intention to ensure, through legislation, that Scottish ministers will have the opportunity to consider the merits of proposals such as the one that we are discussing and to ensure that any proposal is compliant with the relevant environmental legislation.”

Back in 2007 there was no STS legislation in the UK. There were rightly a lot of concern about dodgy practise. The last labour government had agreed to ban the practise outright. The we move forward to the UK coalition government. MP’s from the South East managed to get a reversal of that policy and hence the 2010 STS regulations were born. They are UK regulations, overseen by the MCA. It was not a devolved matter back in 2007, the new Scottish Government committed to legislation – so where is it? How did they drop the ball on that one. Answer please.

“At present, the decision-making process is a complex mix of devolved and reserved responsibilities, with some steps having already been completed. For instance, the Maritime and Coastguard Agency has already endorsed the Forth Ports oil spill contingency plan. However, as a paramount consideration, any decision-making process needs to address the concerns that are expressed by affected communities.

Communities want to know whether it is possible for the proposal to be safe, reliable and secure and to offer economic benefits while safeguarding our precious environment or whether it carries unacceptable environmental risks. Many members of the public and members across the Parliament consider that even a scintilla of environmental risk is unacceptable.”

Yes, you’re right – the decision making process does need to address the concerns that are expressed by affected communities. Many member of the public do consider that a scintilla of environmental risk is unacceptable. There is much more of a scintilla of risk in the CFPA’s application. What is different now, really? Answer please?

Mr Lochhead “Our cause for concern stems from the fact that, in the case of ship-to-ship oil transfers—particularly in environmentally sensitive areas—the controls that would normally lie with the Scottish ministers under part IV of the Conservation (Natural Habitats, &c) Regulations 1994 are not available, as such transfers are not one of the purposes listed.”

…and they are still not. Why? Granted that the Firth of Forth proposal was scarier, whereby the competent authority for making that assessment of impact on the designated areas was the scheme proposer – Forth Ports. It is now the MCA, however, we argue that given how closely the MCA appear to work with the CFPA and Intertek, and given their forceful attitude with regard to “1 tonne” being the maximum spill as demonstrated in the Orkney application, that they are not sufficiently removed from the applicant to make an impartial and unbiased decision. Indeed, they do not have the technical competence to make an assessment of the impact of a European designated site. That’s not to say they not competent in other ways but they are not ecologists, they don’t have the in-depth knowledge required to make that assessment. We would argue that this assessment should be made by Scottish Natural Heritage.

Mr Lochhead – “We believe that ministers must be satisfied that the current proposal presents no danger to Scotland’s environment.”

Does this apply to the Cromarty Firth also? There is clearly a danger to Scotland’s environment and our only resident pod of bottlenose dolphins. Answer please?

Mr Lochhead “We will give consideration to amending regulation 6 of the habitats regulations, which defines who is to be regarded as a competent authority for the purposes of compliance with the directive. We will also consider possible amendment of part IV of the regulations. As I mentioned, it sets out rules about appropriate assessment of plans and projects but only in relation to a specific list of purposes, which do not include ship-to-ship oil transfer. We will also consider extending ministers’ powers in relation to the overriding public interest test. Finally, we will consider nature conservation order powers as well. At present, they apply only to land and not to parts of the sea or internal waters. We will review those powers to determine whether they should be widened.”

What happened then? Answer please.

Mr Lochhead “I believe that the Parliament—and, indeed, Scotland—desires to be able to prevent ship-to-ship oil transfers and proposals that could pose a threat to our precious marine and coastal environments in the Firth of Forth or elsewhere. That is what I intend to achieve.”

What went wrong then? Answer please.

Fast Forward to 2016 – John Finnie asked the following question of the First Minister 2 days ago:

On Sunday, more than 500 people took to the beach at Nairn to complain about the transfer of oil between ships on the open seas of the Moray Firth. The plan will create no jobs, but will put at risk the marine environment, coastal communities and the Highlands and Islands tourism industry, which is the region’s most important industry. In 2007, the Scottish Government vigorously opposed such a plan for the Firth of Forth. Will the First Minister personally review the Scottish Government’s position on the matter and join the growing opposition to that significant potential threat?

The First Minister – Nicola Sturgeon:

I absolutely understand the concerns that people are expressing but, as John Finnie will be aware, the matter is reserved to the United Kingdom Government. The Scottish Government has repeatedly requested devolution of that function since 2014, but we currently have no formal role in the process, despite our having devolved responsibility to protect the environment.

The Secretary of State for Transport in the UK Government must take account of the advice that was previously given by Scottish Natural Heritage and the Scottish Environment Protection Agency.

I understand the concerns, and we will continue to make those views known to the UK Government. I am sure that the Cabinet Secretary for Environment, Climate Change and Land Reform would be happy to meet John Finnie to discuss the matter further.

Copout Nicola – fine words back in 2007, now in 2016……????. This is not the response we expect from our First Minister with regard to a proposal that presents such a significant threat to the Scottish Envrionment. The UK Government must take account of the advice of SNH and SEPA but can choose to completely ignore it.

Now for my favourite:

Dave Thompson

1. To ask the Scottish Government what its position is on the potential environmental impact if the Cromarty Firth port authority’s application for shiptoship oil transfer in the Cromarty Firth is granted. (S4O-05554)

Richard Lochhead 

As the member will be aware, many concerns have been expressed about the potential impact on our marine environment of the current application. He may also be aware that, a few years ago, when a similar application was made elsewhere in Scottish waters, the then Minister for Environment and Climate Change, Paul Wheelhouse, wrote to the Secretary of State for Transport in the United Kingdom Government to seek greater powers for the Scottish Government in this reserved matter. Unfortunately, that request was declined. However, I have written again this week to make the same request. I have also made it clear to the secretary of state that the Scottish Government expects to be fully consulted prior to a final decision being taken on the application.

Dave Thompson

I am pleased to hear that the cabinet secretary has written again and that he has asked that the Scottish Government be fully consulted before a decision is taken. There is huge concern about the issue in my constituency and in neighbouring constituencies to the north of the firth, such as that of Rob Gibson, including a worry that the Maritime and Coastguard Agency will just follow a process and automatically grant a licence if the main conditions are agreed to. Will the cabinet secretary elaborate a wee bit more on what pressure he is prepared to put on the UK Government to devolve the power to us to deal with the matter?

Richard Lochhead 

I can assure Dave Thompson and other members that I will continue to apply that pressure. At the very least, the Scottish Government should be involved in the decision-making process. Our adviser, Scottish Natural Heritage, has submitted to the consultation as a statutory consultee. I have a copy of its submission, which indicates that it disagrees with the conclusion of the environmental statement about the residual likely significant impact on European designated sites. SNH advises the Maritime and Coastguard Agency, as a competent authority in the matter, to carry out an appropriate assessment. It believes that mitigation can reduce but not eliminate the risks to the integrity of several designated interests and says that it is not possible to conclude that there will be no adverse effect on the site integrity in relation tothe Moray Firth special area of conservation, which is for bottlenose dolphins.

John Finnie 

The cabinet secretary is aware that the consultation has been going on for months. There is great concern, as has been highlighted by my colleague Dave Thompson, yet there has been utter silence from the cabinet secretary. Will he reflect on whether he was wise to wait until after the consultation before expressing a view?

Richard Lochhead 

It is only right that the Cromarty Firth port authority should carry out a consultation on extending an existing activity. What I have said publicly in the past few weeks is that we would await the advice of our own advisers, who in turn are statutory consultees for the application that went through the consultation. However, the consultation has closed. Now that I am aware of the views of Scottish Natural Heritage and other advisers, as members can imagine I am very concerned about what I am learning and am taking a close interest in what now happens in response to the consultation.

This is a reserved matter. Unlike the situation with Forth Ports a few years ago, when a different type of oil was being proposed and different circumstances applied, there are still very real concerns about the Cromarty Firth application and the potential impact on the marine environment. That is why we will take a close interest in the issue and make our views known, to both the Cromarty Firth port authority and the UK Government.

Given Mr Lochhead’s strong stance on this back in 2007, what is different? To state “This is a reserved matter” is not acceptable – in 2007 he was going to change the legislation that he could change. If the Scottish Government want to act on this they could.

“A different type of oil was proposed and different circumstances” – Sorry? It’s all crude oil – it could come from anywhere in the world, it is being proposed in a more environmentally sensitive area than the Firth of Forth. Are you sure about that?

The thing that really puzzles us is that Mr Lochhead is MSP for Moray – the people of Moray are not happy about this. This is on his own doorstep – what will Mr Lochhead do about this? If you live in that constituency – write to him, ask him.

What are our other MSP’s going to do about this? It is not acceptable to tell us that  “this is not a devolved issue” – we want to see the Scottish Parliament earning their pay on this. As far as I recall the MCA weren’t on the ballot paper at the last election. This issue transcends party politics – the people expect to be represented. If they are not, we will find someone who is willing to represent us.