We asked Environmental Standards Scotland (ESS) to tell us a bit about what they do and how their work can support campaigners working to protect Scotland’s countryside, biodiversity and landscapes. ESS were established post-Brexit to ensure environmental law in Scotland is effective and is being complied with by public bodies.
Introduction
Environmental Standards Scotland (ESS) was established as part of the legislation around the withdrawl from the European Union. It is the watchdog for Scotland’s environmental laws now we are not under the oversight of the EU Commission.
However the remit of (ESS) does not map entirely onto the pre-Brexit situation. The legislation prevents the watchdog from taking any enforcement action on individual complaints of environmental damage or breaches of environmental law. This limits the cases that APRS supporters and campaigners are likely to be involved in, as they can only take enforcement action when a public body fails to comply with environmental law in cases of systemic issues rather than individual breaches. For example, ESS cannot look into decision making in an individual planning case which would have a detrimental impact on the environment.
Environmental Rights Centre for Scotland is the organisation which has referred the most cases to ESS and they have written a report from the first 11 cases that they brought. It is worth reading this blog alongside the report as they have some key observations on the effectiveness of the watchdog and suggestions for improvement of the system.
Questions for Environmental Standards Scotland
What is the role of ESS?
“Our job at ESS is to monitor and investigate public bodies’ compliance with environmental law, the effectiveness of the law and how it is implemented and applied in Scotland. Our remit covers all Scottish public authorities which is described as a person or institution carrying out any function of a public nature – this is including but not limited to:
- regulatory and statutory bodies
- the Scottish Government
- government agencies
- local authorities
- health and transport authorities
“Our recent work includes exploring issues such as air quality, soil degradation, and the composition and distribution of marine litter in Scotland. We have also analysed the systems in place to manage storm overflows and we currently have live investigations into the protected habitats for endangered birds and the sustainability of bycatch fishing in West of Scotland waters.
“We can also examine environmental concerns through the information we receive directly from individuals, communities and organisations. These submissions – known as representations – are a vital part of how we address the environmental challenges facing Scotland today.
“At Environmental Standards Scotland (ESS), we are committed to supporting that mission by ensuring the compliance with, and the effectiveness of, environmental law in Scotland. By doing so, we hope to ensure that Scotland’s people and nature can benefit from a high quality environment.”
When can the public contact you?
“We at ESS are keen to hear from members of the public so we can understand the issues that are important to them and their local environment. Moreover, what at first may seem like an isolated environmental issue to one community can turn out to be part of a wider systemic policy failure or problems with the environmental law itself.
“For example, ESS received concerns that the Rural Payment and Inspections Division (RPID) of the Scottish Government was not meeting its obligation to make Environmental Impact Assessment (EIA) documents for agricultural projects available for inspection. These agricultural projects – which can include irrigation, drainage, grassland cultivation, or soil restructuring – can pose risks to ecosystems, landscapes, and habitats. It is therefore important that the public can inspect and scrutinise the EIA documents and become involved in the EIA process.
“We found that RPID was not compliant with the statutory duty and required them to take corrective action. In response, RPID took steps to ensure compliance and allow agricultural EIA documents to be inspected allowing the public to inform important decision-making and empowering them to participate in matters which could affect them.
“Other issues brought to our attention in the past include tree felling guidelines, sewage discharge, impact of a beaver reintroduction on protected species, and the efforts taken to improve water and air quality. You can read more about our casework on the investigations page of our website.”
Note
There is more information about this case, which was brought by ERCS here.
Have you had any queries or cases regarding planning law – particularly NPF4?
“Whether we would be able to look into a particular part of planning law comes down to whether the particular provision is mainly concerned with environmental protection, plus the other usual remit tests. However one that springs to mind is a current case on waste incineration, where the activity is partly controlled through planning law and the policy intent of NPF4.”
An Additional example from ERCS
An example from the Environmental Rights Centre for Scotland (ERCS) report adds a useful example where “ESS “intervened in a dispute over a car parking development carried out by the Highland Council at Glenmore Forest. The Highland Council did not obtain planning permission prior to starting work on the parking development. ESS’s intervention resulted in a positive policy change which may prevent a similar problem arising in the future.
“The case is a bit of an outlier, but was rationalised by ESS as such: ‘Whilst ESS acknowledged that the representation related to an individual case (which ESS is unable to overturn) the representation in our view raised broader concerns regarding the local authority’s guidance, policies, and procedures in this regard.’”
Can ESS help with a particular planning case where the law has not been followed?
“No. ESS are not an appeals body and we are therefore unable to look into (or overturn) individual decisions or actions taken by a public body, nor can we seek individual redress for injustice or hardship caused as a result of those decisions.
However, it can be the case that individual actions or decisions are demonstrative of a broader systemic failing. For example, the failure to correctly license one site is not a systemic failing, however if the overarching policies or procedures governing this process were weak, and driving repeated failures, ESS could intervene and take actions to ensure that the policies or procedures are strengthened to prevent failures recurring.
In considering any representation we receive, our investigations officers will review all information provided to ascertain if there is any indication of a broader / systemic failing and we also may make enquiries of the public authorities concerned to establish this.
As an organisation, we are eager to help members of the public and are willing to discuss any concerns they may have. Lastly, we record all representations and enquiries submitted to ESS and are able to identify patterns / trends within these. In turn, this can also be used to help identify potential systemic failings.
To get in touch with Environmental Standards Scotland
If you would like to share an environmental concern with ESS or have any questions about the process, please contact our Investigations, Standards and Compliance team by emailing representations@environmentalstandards.scot.
ERCS would welcome anyone thinking of making a representation to ESS to contact their Advice Service.
Environmental Standards Scotland have a new Strategy which is currently out for consultation and we would encourage any members of the public who have an interest in their work to share their feedback on it. The consultation is open until 29 August 2025.