Despite being part of the UK and subject to Westminster legislation, Scotland has always had a separate legal system and separate courts. Common law environmental law such as nuisance has therefore always been distinct but historically, statute based environmental law in Scotland has been similar to or the same as that in England and Wales. With the establishment of the Scottish Parliament, however, environment was designated a devolved matter. Environmental law in Scotland is slowly diverging again from England and Wales. With the current Scottish National Party Government, in at least the short term this divergence is likely to accelerate.
Areas of difference
The broad areas of environmental legislation are the same in Scotland as in England (because of the historical background and because so much of it comes from Europe). There are no equivalent areas of environmental law yet to be covered, as there are in other devolved jurisdictions. However the details and methods of implementation can be quite different.
Scotland led the way in the UK - and to a large extent Europe - in putting theWater Framework Directive into Scottish law (this is called transposition). This came inwith the Water Environment and Water Services (Scotland) Act 2003 and subordinate legislation. In waste law, Scotland has yet to follow the new environmental permitting regime recently introduced in England but has announced targets for recycling and avoiding landfillthat go beyond those required by European legislation.
Nature conservation law is different in a number of areas from that in the rest of the UK. This is a sign of the importance put by Scots on theirwildlife, habitatsand landscapes. On climate change, Scotland has also aims to outperform, consulting in 2008 on an 80% CO2 reduction target by 2050.
Non devolved areas
There will, however, always be some areas of environmental law where divergence will be restricted. Energy, for instance, is not devolved. This will continue to lead to some interesting exchanges between Westminster and Holyrood on the future of nuclear power. Tax raising powers are also reserved to Westminster, restricting opportunities for specifically Scottish environmental taxes.
The current Nationalist Government is, however, eager to debate the scope of devolved powers. It may be that the 'National Conversation' that they are seeking to stimulate will result in more powers for the Scottish Parliament and greater scope for Scots environmental law.
The main environmental regulator in Scotland is the Scottish Environment Protection Agency, a regulator independent from Government, established at the same time as the Environment Agency in 1995. SEPA's principal areas of regulation are similar to the Environment Agency's, and include pollution prevention and control (but also local air pollution control), waste management, water pollution and water resources, special sites under the contaminated land regime and radioactive substances.
Nature conservation falls under the jurisdiction of Scottish Natural Heritage, again an independent regulator.
Local authorities are principal regulators on matters of contaminated land, flood management, statutory nuisance, local air pollution monitoring and environmental health.