2.5 The Habitats and Birds Directive

2.5.1                                       Council Directive (92/43/EEC) (the Habitats Directive) and  European Directive (2009/147/EC) on the conservation of wild bird (The Birds Directive) were transposed into UK law (as relevant to Scottish waters) by the Conservation (Natural Habitats, &c.) Regulations 1994 (as amended), the Conservation of Habitats and Species Regulations 2017 (as amended) (as they apply to section 36 consent applications) and the Conservation of Offshore Marine Habitats and Species Regulations 2017 (as amended). Together these are referred to as the Habitat Regulations.

2.5.2                                       The Habitats Regulations require a Habitats Regulations Appraisal (HRA) to be conducted by the competent authority before a plan or project that is likely to have a significant effect on a European site or a European offshore marine site (as defined in the Habitats Regulations) can be given consent.

2.5.3                                       Despite the UK no longer being an EU State Member the Habitats Regulations continue to provide a legislative backdrop for HRA in the UK, and the UK is currently bound by HRA judgements handed down by the Court of Justice of the European Union (CJEU) prior to 31st December 2020.

2.5.4                                       In accordance with the Habitat’s Regulations, where HRA screening has identified a likely significant effect (LSE) on a European site or a European offshore marine site, further information is required to enable the competent authority (in this case Scottish Ministers) to carry out an appropriate assessment to determine whether there is potential for the Project to have an adverse effect on the integrity (AEOI) of a European site.  Where the appropriate assessment concludes that there is a risk of AEOI on a European site, further steps are undertaken as part of the HRA process including assessment of alternatives, examination of imperative reasons of overriding public interest (IROPI) for the plan to proceed, and consideration of necessary compensatory measures.  These steps are referred to as the derogation process. 

2.5.5                                       The Applicant has prepared a Report to Inform Appropriate Assessment (RIAA) for submission as part of the consent application.  The RIAA presents information on the assessment of the effects of the Proposed Development on a number of European sites.   This assessment concludes that, under the Scoping Approach (paragraph 1.1.27) there is a risk that the Proposed Development will have an AEOI on eight SPAs (The Forth Islands SPA, Fowlsheugh SPA, St Abb’s Head to Fast Castle SPA, Buchan Ness to Collieston Coast SPA, East Caithness Cliffs SPA, Troup, Pennan & Lions Head SPA, Flamborough and Filey Coast SPA and Farne Islands SPA).  

2.5.6                                       The key species effects across these sites include kittiwake (collision risk impacts), guillemot, razorbill and puffin (due to displacement impacts from the presence of the wind farm).   Of the eight affected sites, three are predicted to be adversely affected by the Project alone, with kittiwake and guillemot the only species that are predicted to be affected at these sites.  Adverse effects on the remaining five sites are predicted as a result of in-combination effects with other North Sea offshore wind farm. 

2.5.7                                       When applying the Developer approach (paragraph 1.1.28) the number of SPAs where it is concluded that there is a risk of AEOI reduces to five, with adverse effects only identified for kittiwake.  Of these five sites, conclusions of AEOI for four of the sites are as a result of in-combination effects.  The only SPA to be adversely affected by the Project alone is St Abb’s Head to Fast Castle SPA.     

2.5.8                                       A derogation case has been provided with the submission due to the identified risk of AEOI on sites and species.  As part of the Derogation Case, the Applicant has demonstrated that there are no alternative solutions to Berwick Bank, and there are imperative reasons of overriding public interest (IROPI) for the project to proceed, and that necessary compensatory measures can be secured.

2.5.9                                       The Derogation Case documents also demonstrate that the necessary compensation measures would more than adequately compensate for the predicted levels of impact identified for the eight sites and four species where AEOI has been concluded under the Scoping Approach.  This will ensure that the overall coherence of the national site network is protected.

2.6 European Protected Species Licence

2.6.1                                       European Protected Species (EPS) are animals and plants (listed in the Habitats Directive and referred to in the Habitats Regulations) that are afforded protected under the Habitats Regulations.  All cetacean species (whales, dolphins and porpoise) are EPSs.   A licence is required for any activity that is likely to cause disturbance or injury to an EPS.  EPS licences are obtained from NatureScot or the Scottish Ministers depending on the reason for the licence application.  The grant of these licences is separate to the main Section 36 and Marine Licence Application process.  Activities which can be licenced under EPS licences includes those such as subsea noise disturbance due to piling construction activities.

2.6.2                                       EPS licences will be sought in due course, post-consent, if required.

2.7 Marine Strategy Framework Directive

2.7.1                                       The Marine Strategy Framework Directive (MSFD) came into force on 15th July 2008 and was transposed into UK law by the Marine Strategy Regulations in 2010.    The MFSD requires Members States to prepare national strategies to manage their seas to achieve Good Environmental Status (GES) by 2020.  

2.8 Water Framework Directive Regulations

2.8.1                                       The EC Water Framework Directive (WFD) became law in Scotland as the Water Environment and Water Services (Scotland) Act 2003.  The legislation covers certain activities in coastal waters (3 nm from the limit of the highest tide) (SEPA, 2021).  In the UK, coastal waters are protected under the WFD which requires “the project or activities does not cause or contribute to deterioration in water body status or jeopardise the water body achieving good status” (UK Government, 2014).

2.8.2                                       The Proposed Development is not considered to give rise to activities in the relevant coastal water areas which will contribute to deterioration in water body status in this regard (See WFD Assessment, Volume 3, Appendix 19).

2.9 Marine Protected Area Regulations

2.9.1                                       The MSA and the MCAA introduced provisions for the identification, designation and management of Nature Conservation Marine Protected Areas (ncMPAs).  Under section 126 of the MCAA and section 83 of the Marine (Scotland) Act 2010, Marine Scotland, as the public authority, is required to consider whether an activity is capable of affecting (other than insignificantly) a protected feature or features in a ncMPA or any ecological of geomorphological process on which the conservation of any protected features in an ncMPA is dependent.  In such circumstances authorisations must not be granted unless the person applying for the authorisation can satisfy the authority that:

>        There is no significant risk of the activity hindering the achievement of the conservation objectives for the ncMPA; or,

>        There is no other means of proceeding with the activity which would create a substantially lower risk of hindering the achievement of those objectives, that the benefit to the public of proceeding with the act clearly outweighs the risk of damage to the environment that will be created by proceeding with it, and that the person will undertake measures of equivalent environmental benefit to the damage which the act will, or is likely to have on the ncMPA concerned.

2.9.2                                       If the authority considers that there is, or may be, a significant risk, then they must notify the appropriate statutory conservation bodies of that fact (e.g. NatureScot (for ncMPAs within 12 nm), or the Joint Nature Conservation Committee (JNCC) (for ncMPAs out with 12 nm).

2.9.3                                       Relevant information and assessment in this regard is contained within the EIA Report.  A MPA Stage One Assessment has been completed and concludes that there is no significant risk of the Proposed Development hindering the achievement of the conservation objectives for the Firth of Forth Banks Complex ncMPA as set out in section 1.7.1 and 1.7.2 (in accordance with section 83 of the Marine (Scotland) Act 2010 and section 126 of the Marine and Coastal Access Act 2009.

3. The Climate Change & Renewable Energy Policy Framework

3.1 Introduction

3.1.1                                       This Chapter sets out the climate change and renewable energy policy framework.  Reference is made to International, UK Government, and Scottish Government climate change and renewable energy policies and targets.  The Chapter also clearly sets out the relevant requirements of UK and Scottish Marine Policy as it is relevant to marine renewables, and how this is related to the wider renewable energy policy framework.  This Chapters draws upon the Berwick Bank Wind Farm ‘Statement of Need’ and also Volume 1, Chapter 2 (Policy and Legislation) of the EIA Report.

3.1.2                                       Notwithstanding the importance of the international policy framework for renewables and green energy, it is the Scottish climate change, renewables and marine policies that are considered to be the most relevant elements of the overall framework under which to assess and determine the Proposed Development. 

3.1.3                                       The framework discussed below is a very relevant material consideration to be afforded substantial weight in the determination of the Section 36 application and the associated Marine Licences.

3.2 Climate Change & Renewable Energy Policy: International Commitments

The Paris Agreement (2016)

3.2.1                                       In December 2015, 195 countries adopted the first ever universal, legally binding global climate deal at the Paris Climate Conference (COP21). The Paris Agreement within the United Nations Framework Convention on Climate Change sets out a global action plan towards climate neutrality with the aims of stopping the increase in global average temperature to well below 20C above pre-industrial levels, and to pursue efforts to limit global warming to 1.50C.

3.2.2                                       It is clear that moving to a low carbon economy is a globally shared goal and will require absolute emission reduction targets. The UK Government’s commitment under the Paris Agreement links through to the Committee on Climate Changes’ (CCC) advice to both the UK and Scottish Governments on ‘net zero’ targets which have now, at both the UK and Scottish levels, been translated into new legislative provisions and targets for both 2045 (Scotland) and 2050 (UK).  This is referred to below.

3.2.3                                       The Paris Agreement does not itself represent Government policy in the UK or Scotland.  However, the purpose of domestic and renewable energy and GHG reduction targets is to meet the UK’s commitment in the Paris Agreement.

The Intergovernmental Panel on Climate Change (IPCC) Sixth Assessment Report (2021 & 2022), related Press Release and Statements

3.2.4                                       The first part of the Inter-Governmental Panel on Climate Change (IPCC) 6th Assessment Report (2021) was published on 9th August 2021 (the AR6 Report).  The AR6 Report is the first major review of the science of climate change since 2013.  The first part of the AR6 Report, in short, provides new estimates of the chances of crossing the global warming level at 1.50C in the next decade and reaches the sobering conclusion that, without immediate, rapid and large-scale reductions in GHG, limiting warming close to 1.50C or even 20C will be beyond reach.  For this and many other reasons the UN Secretary General described the AR6 Report as a “Code Red for humanity”.

3.2.5                                       The second part of the AR6 report was published on 28th February 2022. It is, as described in the press release accompanying the second part of the AR6 report a “dire warning about the consequences of inaction”.  The press release refers to a narrowing window for action and states (emphasis added):

“The scientific evidence is unequivocal: climate change is a threat to human wellbeing and the health of the planet.  Any further delay in concerted global action will miss a brief and rapidly closing window to secure a liveable future.”

3.2.6                                       The third part of the IPCC’s AR6 Report ‘Mitigation of Climate Change’ was published on 04 April 2022.  In summary, the urgent message from this latest report is that it confirms the harmful and permanent consequences of the failure to limit the rise of global temperatures and that reducing emissions is a crucial near-term necessity.  The report underlines the need to radically and rapidly scale up global climate action to reduce GHG emissions. 

3.2.7                                       The Press Release for the third report summarises a number of the key points from the publication including:

>        “limiting global warming will require major transitions in the energy sector.  This will involve a substantial reduction in fossil fuel use, widespread electrification, improved energy efficiency and use of alternative fuels.”  The report sets out that the “next two years are critical”. (page 1)

>        In the scenarios assessed, limiting warming to around 1.5°C “requires global greenhouse gas emissions to peak before 2025 at the latest, and be reduced by 43% by 2030…. even if we do this, it is almost inevitable that we will temporarily exceed this temperature threshold but could return to below it by the end of the century”. (page 2)

3.2.8                                       The Report makes it clear that immediate short-term acceleration of low carbon energy is needed if limiting warming below danger levels is to stay feasible.  The Report emphasises the particular cost reductions that have affected wind and solar development and that these technologies will play a key role in the energy transition.

3.2.9                                       This third report from the IPCC has focused on how human actions can mitigate climate change.  In short, the principal message is that humanity is currently not on track to limit warming, but that it is still possible to make the progress necessary by 2030 by using existing technologies for example, by moving rapidly to non-fossil fuel sources of energy. 

3.2.10                                   The timescale imperative set out in the IPCC report matches that of the Scottish Government - both are essentially saying through their policy documents that it is clear that the next decade can and must be transformative.

The United Nations Emissions Gap Report (2022)

3.2.11                                   On 27 October 2022 the UN published its annual ‘Emissions Gap Report’ ‘The closing window – climate crisis calls for rapid transformation of societies’.  In short it takes stock of where global greenhouse gas emissions are headed and where they need to be if we are to avoid the worst climate impacts.

3.2.12                                   The related ‘Key Messages’ paper published with the Report states that “the world is still falling short of the Paris climate goals, with no credible pathway to 1.5°C in place.  Only an urgent system-wide transformation can avoid an accelerating climate disaster.” 

3.2.13                                   The report looks at how to deliver this transformation, through action in the electricity supply, industry, transport and building sectors and the food and financial systems.  The stated key messages include:

>        “Despite a call for a strengthened Nationally Determined Contributions (NDCs) for 2030, progress since COP 26 in Glasgow has been woefully inadequate.

>        This lack of progress leaves the world on a path towards a temperature rise far above the Paris agreed goal of well below 2°C, preferably 1.5°C.

>        To get on track to meet the Paris Agreement goal, the world needs to reduce greenhouse gases by unprecedented levels over the next eight years.

>        Such massive cuts require a large scale rapid and systemic transformation across the globe.

>        The transformation towards zero greenhouse gas emissions and electricity supply, industry, transportation and buildings is underway but needs to move much faster”.

3.3 Climate Change & Renewable Energy Policy: Scotland

The Climate Emergency

3.3.1                                       Scottish First Minister Nicola Sturgeon declared a "Climate Emergency" in her speech to the SNP Conference in April 2019.  Furthermore, Climate Change Secretary Roseanna Cunningham made a statement on 14 May to the Scottish Parliament on the 'Global Climate Emergency' and stated:

"There is a global climate emergency. The evidence is irrefutable. The science is clear, and people have been clear: they expect action.  The Intergovernmental Panel on Climate Change issued a stark warning last year - the world must act now by 2030 it will be too late to limit warming to 1.5 degrees.

We acted immediately with amendments to our Climate Change Bill to set a 2045 target for net zero emissions - as we said we'd do.  If agreed by Parliament, these will be the most stringent legislative targets anywhere in the world and Scotland's contribution to climate change will end, definitively, within a generation.  The CCC was clear that this will be enormously challenging...." 

3.3.2                                       The Minister also highlighted the important role of the planning system stating:

"And subject to the passage of the Planning Bill at Stage 3, the next National Planning Framework and review of Scottish Planning Policy will include considerable focus on how the planning system can support our climate change goals.

The Scottish Government has therefore begun to act on the stark warnings issued by the IPCC who have stated that by 2030 it would be too late to limit global heating to 1.5 degrees – but there is much more to be done”. 

3.3.3                                       The key issue in relation to these statements is that they acknowledge the very pressing need to achieve radical change and that by 2030 it will be too late to limit warming to 1.5 degrees.  The Scottish Government therefore acted on the Climate Emergency in 2019 by bringing in legislation.

3.3.4                                       Furthermore, the declaration of the emergency is not simply a political declaration, it is now the key priority of Government at all levels. Indeed, defining the issue as an emergency is a reflection of both the seriousness of climate change, its potential effects and the need for urgent action to cut carbon dioxide and other GHG emissions. 

3.3.5                                       The scale of the challenge presented by the new targets for net zero within the timescale adopted by the Scottish Government on the advice of the CCC is considerable, especially given the requirements for decarbonisation of heat and transport – this will require very substantial increases in renewable electricity generation by 2030. 

The Climate Change (Emissions Reduction Targets) (Scotland) Act 2019

3.3.6                                       The Climate Change (Emissions Reduction Targets) (Scotland) Act 2019 amends the Climate Change (Scotland) Act 2009 and sets even more ambitious targets – which reflect the recommendations of the Climate Change Committee (CCC) for a net zero greenhouse gas emissions target by 2045 at the latest, with challenging interim stages – a 75% reduction target by 2030 and 90% by 2040.

3.3.7                                       The 75% target which requires to be met by 2030 is especially challenging.  Indeed, when the matter was proceeding through Parliament, it was the Scottish Parliament that increased the requirement from a 70 to 75% reduction by 2030.  This acts upon the declarations of the climate change emergency and recognises the urgent response that is required. 

3.3.8                                       The Scottish Government publishes an annual report that sets out whether each annual emissions reduction target has been met.  Table 3.2 below sets out the annual targets for every year to net-zero. The report for the 2019 target year was published in June 2021. The Report states that the Greenhouse Gas Account reduced by only 51.5% between the baseline period and 2019.  As noted, the 2019 Act specifies a 55% reduction over the same period – therefore the targets for 2018 and 2019 were not met. 

3.3.9                                       The Scottish Greenhouse Gas Statistics for 2020 were released in June 2022.  These show that the GHG account reduced by some 58.7% between the baseline period and 2020. However according to the report, the drop in emissions between 2019 and 2020 was mainly down to lower emissions from domestic transport, international flights and shipping and energy supply. All other sectors demonstrated modest reductions over this period, except the housing sector.

3.3.10                                   Coronavirus restrictions were responsible for the large drop in emissions from transport, while residential emissions increased by 0.1 MtCO2e as more people worked from home during the pandemic.  The Scottish Net Zero Secretary Michael Mathewson stated in June 2022 on the release of the latest statistics:

“Nonetheless, the most significant changes are in the transport sector and are associated with the temporary measures taken in response to the Covid-19 pandemic. We must be prepared for these figures to substantially rebound in 2021. There can be no satisfaction taken in emissions reductions resulting from the health, economic and social harms of the pandemic.” (emphasis added)

3.3.11                                   This demonstrates the scale of change required over the next decade to achieve the 2030 target.  Delivering the necessary transmission infrastructure in Scotland will be critical to enabling the necessary increases in renewable capacity to drive the considerable increase in renewable electricity use which is forecast.

Table 3.1: Scotland’s Annual Emission Reduction Targets to Net Zero

3.3.12                                   The targets set out in Table 3.1 clearly illustrate the speed and scale of change that is required, essentially prior to 2030.  This also demonstrates that up to 2020 the annual percentage reduction that was required was 1% but this then increases each year from 2020 to 2030.  It increases to 1.9% for each year between 2020 and 2030.  This is the level of change that is required to achieve the 2030 target and represents a near doubling of the response. 

3.3.13                                   This means the trajectory, in terms of the scale and pace of action to reduce carbon dioxide emissions, is steeper than before. The 2020s is a critical decade.

3.3.14                                   It is no exaggeration to say that there is a ‘mountain to climb’ to meet Scotland’s 75% target for 2030. The CCC modelled five scenarios in CB6 and in none – even its most optimistic – is Scotland close to achieving a 75% emissions reduction by 2030:

“Scotland’s 75% target for 2030 will be extremely challenging to meet, even if Scotland gets on track for net zero by 2045. Our balance net zero pathway for the UK would not meet Scotland’s 2030 target – reaching a 64% reduction by 2030 – while our most stretching tail winds scenario reaches a 69% reduction”.

The Scottish Energy Strategy (2017)

3.3.15                                   The Scottish Energy Strategy (SES) was published in December 2017.  The SES preceded the important events and publications referred to above but references the 50% energy from renewable sources target to be attained by 2030. The SES did not and could not take account of what may be required in terms of additional renewable generation capacity to attain the new legally binding ‘net zero’ targets so it is out of date in that respect.

3.3.16                                   The SES refers to “Renewable and Low Carbon Solutions” as a strategic priority (page 41) and states: “we will continue to champion and explore the potential of Scotland’s huge renewable energy resource, its ability to meet our local and national heat, transport and electricity needs – helping to achieve our ambitious emissions reduction targets”.

3.3.17                                   The SES specifically refers to offshore wind (pages 44/45) and states that “our deeper waters in particular offer tremendous potential for future development.”

3.3.18                                   Reference is made to Scotland’s first National Marine Plan (2015) which it states sets the overall framework for the management of Scotland’s seas, including energy installations.  Reference is also made to Marine Scotland’s role in producing Sectoral Marine Plans to support the development of offshore renewable energy.  It adds:

“There is huge industrial and economic potential attached to offshore wind development.  Our offshore wind supply chain is strengthening and expanding – building on Scotland’s established oil and gas expertise and experience.  Scotland has the necessary competitive advantage and the building blocks – a skilled, committed workforce, excellent port infrastructure and a strong innovation hub.”

3.3.19                                   The SES adds: “We are determined to continue supporting and growing the sector in Scotland – creating more opportunities for Scottish manufacturers and our supply chain from the developments taking place in our waters and beyond.”