A small, perhaps inevitably rural, Scottish Community Council – here in Argyll – has landed a significant strike against the Scottish UK and EU governments under the Aarhus Convention.
Loch Avich and Kilchrenan Community Council, a member of Communities Against Turbines [CATS], has had a complaint accepted as valid for consideration by the Aarhus Compliance team of the United Nations Economic Council for Europe [UNECE].
The Aarhus Convention
The Aarhus Convention is more properly the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters – but, like the famous Maastricht Treaty, it is better know by the its name of place of origin.
However, if you look at the issues with which the Aarhus Convention is concerned, they set the nature of the complaint now to be heard:
- access to information;
- public participation on decision making;
- access to justice in environmental matters.
The Aarhus Convention came into force at the end of October 2001. By 2009 it had been signed by 40 countries mainly in Europea and Central Asia and by the EU and ratified by 41 coun tries and by the EC. THe Ec has since been applying its principles in its legislation.
Kofi Annan, UN General Secretary from 1996-2006 has described the Aarhus Convention as ‘the most ambitious venture in the area of environmental democracy so far undertaken under the auspices of the United Nations’.
A strength of this convention is its unique mechanism for monitoring compliance by those who are parties to it. A review of compliance can be instigated in one of four ways:
- a party to the convention makes a submission concerning its own compliance;
- a party to the convention makes a submission concerning another party’s compliance;
- the Convention Secretariat refers a party to the Committee;
- a member of the public makes a communication concerning the compliance of a party.
The Loch Avich and Kilchrenan communication
It is, of course, this last mechanism that has been used by Loch Avich and Kilchrenan Community Council kin this matter.
Broadly speaking, the Aarhus Convention requires governments to make available the scientific justifications for programmes which are said to affect the environment in which we all live. Again broadly, the Scottish and UK Governments have not done this.
The position put forward on behalf of the Loch Aweside community council, now accepted for consideration and ruling (Ref ACCC/C/2012/68) is focused on a flawed consultation process at the heart of the Scottish Government’s renewables programme.
The purpose of the position put to UNECE is to demonstrate that the justification for the Scottish Government’s renewables programme – namely the emissions savings attributed to wind energy – are false in that both the EU and the UK have systematically made claims which are neither transparent nor valid.
The consequence of this has been that planning approvals and consents under the Electricity Act have been fatally undermined, since they have proceeded on an entirely false prospectus supporting wind farm development across the UK and the European Union.
The communication lodged and now accepted seeks to demonstrate and prove that the CO2 and harmful pollution savings figures used to justify the whole programme are false; and that the manner in which the EU is bringing through its Directives (for example by country-by-country Renewable Energy Strategies), is unlawful.
Secondly, it seeks to show that proper compliance with planning procedures at the local level is being by-passed as these projects are being taken through the consenting system.
Matters of serious concern are:
A key change of policy at Forestry Commission Scotland
Following recent policy changes at Forestry Commission Scotland, developers now have exclusive investigative rights of search for the entire FCS estates.
This has exposed the actual level of developer and FCS intentions for hosting renewable energy projects.
Here is a public authority, with vast tracts of land held in National trust, engaged in multiple developments of a commercial nature in the field of energy – all of which as individual projects fall under Annex II of the Environmental Impact Assessment Directive, for which this same public authority is the competent authority for purpose of development consent.
There may well be legal grounds for considering this as a plan or programme, for which the Strategic Environmental Assessment Directive should apply.
In addition, before consents are given to individual projects, the whole plan / programme of development of the FCS estate in this new area should have been subject to a Strategic Environmental Assessment.
This is particularly the case as it is obvious that this plan / programme for development of the forestry estates is associated with significant environmental effects.
The gagging of Scottish Natural Heritage
Scottish Natural Heritage can no longer object to proposals unless they impact upon areas of National Interest.
This is another retrograde step. It cannot fail to impede the ability of SNH to carry out its remit to the same extent as previously witnessed.
Particularly within this new FCS area of activity, the removal of SNH’s ability to object could be of major public concern.
The related and successful Irish communication to UNECE
An earlier and associated communication lodged from Ireland in 2010 to the UNECE Compliance team has already [Ref ACCC/C/2010/54] seen it find public participation arrangements related to the Nation Renewable Energy Action Plan [NREAP] to be deficient.
The UNECE’s Compliance team’s draft findings on the participation arrangements related to the Nation Renewable Energy Action Plan are here: C-54_EU_Draft_Findings29Apr12.
The consequence is that the EU will have to go back and bring in the rquired measures, so that the public is provided with the necessary information and the opportunity to participate in decision-making when all options are open and effective public participation can take place.
This is a very different scenario to the familiar one where this happens, to a degree, after programmes and targets are presented in a final form to the public.
Further issues of particular importance for Scotland relate to the current public interest in subsidy payments and to what environmental damage is actually funded by such subsidies.
The UNECE Final Ruling on this Irish communication is now public
In respect of Ref. ACCC/C/2010/54, which demonstrated how the National Renewable Energy Action Plan programme by-passed proper assessment and democratic accountability, the UNECE ruling is now finalised.
It finds the EU in breach of the Convention.
Furthermore,in the 27 EU Member States the renewable programme must now undergo proper assessment to provide the necessary information to the public
This then must be followed by proper public participation, in which the public’s input has to be taken account in the finalised decision.
At the European Parliament, a question relating to this was put down by Roger Helmer (EFD) for a written anser by the Commission:
‘Subject: Aarhus Convention
’1. Is the Commission aware of the recent draft findings of the United Nations Economic Commission for Europe (UNECE) concerning violations of the Aarhus Convention with regard to the determination of EU renewable energy policies?
’2. Since the Aarhus Convention has been incorporated into EC law, does the Commission agree that EC law is now being breached?
’3. Will the Commission now call on the Member States to suspend their renewable energy programmes until the situation is rectified?’
The answer from the Commission was:
‘Answer given by M. Potočnik on behalf of the Commission`;
‘The Commission is aware of the draft findings of the Aarhus Convention Compliance Committee (ACCC) concerning compliance by the European Union with provisions of the Convention in connection with the renewable energy programme in Ireland (Ref. ACCC/C/2010/54)
‘These findings are still provisional; they do not constitute the final findings of the ACCC, let alone have the Parties to the Aarhus Convention endorsed them. The Commission has provided the ACCC with comments and further information which might lead the ACCC to reassess the case(1). It is therefore premature to indicate any consequences of the draft findings.’
On the latest communication accepted by UNECE’s Aarhus Convention Compliance Committee, we understand that this is likely to make serious progress.
The lesson here is the one Goliath learned to his cost – the stopping power of the well aimed sling from the little man.
This has already been demonstrated in Argyll by the Kintyre Offshore Wind Action Group, KOWAG.
Their expertise, research and determined opposition succeeded in seeing off the government’s and developer’s attempt to muscle through a proposal for an ‘offshore’ wind farm that began just off a Kintyre beach and was bang in the middle of a major shipping and leisure sailing route.
Here is a little Loch Aweside community council refusing to be rolled over and successfully invoking the authority of an international Convention which governs the nature and provision of public access to information, participation in decision taking and access to justice in environmental matters.
An indication of UNECE’s direction of travel can be seen in the fact that it has posted this on its website – a republication of a Scotman article on the impact of the successful Irish communication to its Compliance team, reported above.