The UK government’s decision to press ahead with new nuclear power stations in England highlights one of the areas where significant policy differences exist between the UK and the Scottish authorities. The latter has set itself against the development of any new nuclear capacity, but trying to work out how far that will dictate the future of electricity generation draws us into a complex area of the current devolution settlement. The law creates a ferociously complicated patchwork of legal responsibilities for environmental and energy matters, so if the result of next year’s referendum is ‘Yes’, the position will at least become simpler. Yet working out the implications of such a change is not easy.
The authorities in Scotland are already responsible for many environmental issues, so that constitutional change may seem to make little difference. Also, much environmental law comes from the European Union; even with independence, the scope for individualism will be significantly constrained. Yet the granting of more powers would produce a profound change in the range of mechanisms available to address environmental issues; the country’s authorities could then take an integrated approach to governmental and legislative powers.
And there would be no further need to worry about gaps created by the division between Edinburgh and London. At present, the Scottish government cannot introduce a new system of carbon taxes, and doesn’t have the capacity to impose environmental reporting or disclosure requirements on companies, since these fall within the scope of regulating financial markets and company law, matters reserved for Westminster.
Energy, transport and marine matters are split between devolved affairs (controlled in Edinburgh), reserved affairs (controlled in London) and those formally in UK hands but delegated partly to Scottish ministers through “executive devolution”. Independence would allow all areas to be looked at together, subject to any constraints existing under EU law.
Independence would bring about clear changes from a technical and legal perspective, but whether or not there would be much change in substance is harder to predict. Some people see independence as the catalyst for creating a new vision for Scotland. Others, however, believe the powers already in Scottish hands are more than sufficient to implement such a vision, if it was what the nation desired. From that perspective, “business as usual” is the more likely outcome, regardless of Independence.
As noted, the field of energy presents more obvious policy differences. Apart from the nuclear issue, the exploitation of Scotland’s fossil-fuel resources is a major industrial activity, and even more a source of tax revenue, while there is outstanding potential for renewable energy generation, especially wind, wave and tidal. Scotland sees itself as a leader in renewable energy, and has set itself demanding targets for 2020 in relation to reducing greenhouse gas emissions. Some of the tools to achieve this are in Scottish hands, including control over aspects of the financial regime for renewable generation, but other matters remain under London’s control, not least energy taxes and market regulation, the National Grid and engagement with any EU and international initiatives.
An independent Scotland would undoubtedly continue its drive to promote the use of renewables and to nurture the industry that supports this. Again, though, as the Grangemouth saga has shown, Scotland cannot live in global isolation. The ability to meet policy goals will be affected by the commercial pressures created by developments elsewhere, the comparatively unambitious nature of the EU Emissions Trading Scheme that will continue to control the largest greenhouse gas emitters and the need to connect the areas where renewable energy can be generated with those where it is needed.
Scotland’s environmental and energy riches are considered among its greatest assets, in both social and economic terms. Independence would free policy and law from the restrictions created by the London–Edinburgh division of responsibilities, but both EU requirements and the demands of the wider commercial world would continue to constrain how these assets can be conserved and developed. These issues will figure prominently in the independence debates, but the focus is likely to be on the economics of oil and gas taxation and energy supply, rather than the protection of landscapes and wildlife. Megawatts, not mountain hares.
Colin Reid is professor of environmental law at Dundee University
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