Oil Leak 56 The Scottish Government Position Statement

24th January 2017
 |  6 Comments

Before we get down to tonight oil leak, some clarity amidst recent news. Yes, the Port are being made to submit a new application but, unbelievably, they have no intention of letting this go and will be submitting a new application sometime between now and mid-February. There will be a new consultation – all previous comments are null and void. The consultation period will last for 42days. Last time around there were 340 representations – we were not prepared – this time we’d like 3,400. We are near speechless at the arrogance of these people – it is extremely disappointing to say the least that an organisation that look after a national asset on our behalf choose to ignore 25 community councils and 20,000 individuals.  Consequently, we have called for the resignation of the chief executive and chairman who are ruthlessly pursuing their own agenda while ignoring the concerns of stakeholders.

Now down to business……In response to incessant badgering by constituents (well done everyone!), the Scottish Government has now set out a one page position statement. We’ve copied it below in red – read to the bottom and we’ll carry on below………

Legal position:

  • Applications for ship to ship oil transfer licences are a reserved matter, and are the responsibility of the Secretary of State for Transport.
  • The Conservation (Natural Habitats, &c.) Regulations 1994 (as amended) do not apply to reserved matters.
  • The Merchant Shipping (Ship-to-Ship Transfers) Regulations 2010 set out the process for consideration of applications, including compliance with Article 6 of the Habitats Directive.
  • The Secretary of State for transport is the Competent Authority who must ensure compliance.

 

Scottish Government policy position:

  • As stated in Parliament by the First Minister on the 12th January 2017, on the basis of the current information, the Scottish Government is unconvinced that ship-to-ship oil transfers can, or should, take place at anchor in the Cromarty Firth without unacceptable risk to the marine environment.
  • The Cromarty Firth Port Authority must address the important concerns and gaps in information raised by Scottish Natural Heritage and the Scottish Environment Protection Agency before submitting a revised application.
  • We expect to be invited by the UK Government to respond on a revised application, and our response to the UK Government will reflect the strong views expressed by local communities.
  • The Secretary of State for Transport must also take account of all representations made by public bodies and the general public before making a final decision on the revised application.
  • The Scottish Government will continue to seek devolution of this important function, so that decisions are made by Scottish Ministers who have responsibility to protect the environment.
  • We will also continue to support the Cromarty Firth Port Authority, which is a vital and valued part of the economy of the north of Scotland.

 

Relationship to the National Marine Plan:

  • The Scottish National Marine Plan provides the strategic approach to how our seas are managed and sets out environmental assessment requirements.   The policies of the National Marine Plan are binding on all decision making authorities, and it is their responsibility to demonstrate compliance. 
  • If the Merchant Shipping (Ship-to-Ship Transfers) Regulations 2010 are properly applied by the Secretary of State for Transport, then the decision will be compliant with paragraphs 4.41 – 4.47 of the National Marine Plan. 

 

Latest communications from Port of Cromarty Firth:

Nothing really new there or particularly radical however it does offer  reassurance that the Scottish Government don’t think STS in the Moray Firth is a good idea and will indeed say so in any further consultation (we assume thats what “our response to the UK Government will reflect the strong views expressed by local communities” means). This is great, its good to have support which is growing amongst our politicians, however, on first reading, we do have to take issue with some of it.

The legal position section states: “The Conservation (Natural Habitats, &c.) Regulations 1994 (as amended) do not apply to reserved matters.” That probably doesn’t mean much to most of you. The regulations are commonly referred to as the “Habitats Regulations” and they are indeed specific to Scotland (the rest of the UK have their own version of the Habitats Regulations). What the they do is transpose the requirements of the EU Habitats Directive into Scottish Law – they apply on land up to the 12 nautical mile limit. The regs set up the framework for designating areas Special Areas of Conservation (SAC’s) – as indeed the Moray Firth is for bottlenose dolphins & sub-tidal sandbanks.

Now the Scottish Government is indeed correct in saying the impact of a STS project on the integrity of the Moray Firth SAC does not fall under these regs (the so called Appropriate Assessment) – this has been incorporated into the enabling legislation for STS – The Merchant Shipping Regs 2010 (as amended) – this is commonplace. However, the one very important thing that Scottish Government has conveniently forgotten is that the Habitats Regs afford protection to certain species identified in the Habitats Directive, including those requiring strict protection  – so called European protected species. Bottlenose dolphin are a European Protected Species.

There are a whole range of offences within the Habitats Regs that prevent them being disturbed, killed, injured etc (you can read more about those exact offences here: http://www.snh.gov.uk/protecting-scotlands-nature/protected-species/legal-framework/habitats-directive/euro/). The important thing is that if you are going to undertake an activity which could otherwise be deemed an offence, there is provision for you to do so in the Habitats Regs, provided some very strict criteria are met which allows SNH to issue a licence for activities on land or Marine Scotland to issue a licence for activities in the sea. NOWHERE does it say in the legislation “unless the activity being undertaken is a reserved matter”, as intimated in the Scottish Government position statement.

If you are going to undertake an activity that will disturb a European Protected Species such as, oh I don’t know, maybe transferring a few million tonnes of oil on top of bottlenose dolphin feeding and breeding areas, you need a licence, end of story, otherwise you are committing an offence. If the Habitats Regs didn’t apply to reserved matters then the logic of that says you couldn’t legally be issued with a licence as that element is also enshrined in the Habitat Regs. While we’d be absolutely delighted if that was the case, the statement is plain ridiculous – unless the Scottish Government want to show us otherwise? We will have a closer look at the rest of the statement in light of this and see what else may be wrong.

If you have not done so already sign the Scottish Parliament petition (get your family, friends and colleagues to do so too – it’s only open for a limited period) – it will provide parliament with a chance to scrutinise issues like this as well as all the others!!!!

http://www.parliament.scot/GettingInvolved/Petitions/shiptoshiptransfers

 

News