EU LEGISLATION AFFECTING INDUSTRIAL DEVELOPMENTS

ENVIRONMENTAL ASSESSMENT

Industrial projects, including wind farms, are subject to an Environmental Impact Assessment (E.I.A.). This requirement stems from the U.K government's implementation of the following European Union Directive:

Council Directive of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment 85/337/EEC as amended by Council Directive 97/1 I/EC of 3 March 1997.

Even before this E.I.A Directive, European legislation, through the various action programmes, stressed the need to take effects on the environment into account at the earliest possible stage in all the technical and decision-making processes. It was however realised that certain types of construction works and installations, particularly those planned in rural or natural areas, would require detailed assessment of the likely effects on the environment not only by the developers and by the authorities, but most significantly, by the people affected by the project in question. Hence the adoption of this Directive.

Wind farms are covered in Annex II under Energy Industry 3 (a) (industrial installations for the production of electricity, steam and hot water) and their proposed development is therefore subject to much or all of the detailed criteria listed in Annex III and Annex IV of the amended Directive. The main points are listed below:

ANNEX III SELECTION CRITERIA

Characteristics of projects must have regard to size, cumulation with other projects, use of natural resources, production of waste and pollution.

The location must have regard to other land uses, the relative abundance, quality and regenerative capacity of natural resources in the area and the absorption capacity of the natural environment, paying particular attention to the following areas:

(a) Wetlands;

(b) Coastal zones;

(c) Mountain and forest areas;

(d) Nature reserves and parks;

(e) Areas classified or protected under Member States' legislation; special protection areas designated by Member States under Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds and 92/43 /EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora; (f) Landscapes of historical, cultural or archaeological significance.

Potential significant effects must be considered as to the extent, trans- frontier nature, magnitude and complexity, duration, frequency and reversibility of the impact of the project.

ANNEX IV INFORMATION

The description of the project must include land-use requirements during the construction and operational phases, the main characteristics of the production processes, including the nature and quantity of materials used, an estimate of expected emissions and residues and particularly a full assessment of those aspects of the environment likely to be significantly affected by the project. Population, fauna, flora, soil, water, air, climatic factors, material assets including the architectural and archaeological heritage, landscape and the inter-relationship between the above factors are all specifically mentioned.

Furthermore the developer is required to give a description of the forecasting methods used to assess the effects on the environment, measures envisaged to prevent, reduce and where possible offset any significant adverse results and to indicate any difficulties (technical deficiencies or lack of know-how) in compiling the required information.

Finally the description should cover the direct effects and any indirect, secondary, cumulative, short, medium and long-term, permanent and temporary, positive and negative effects of the project.

BIRDS AND HABITATS DIRECTIVE

The European Union has been involved in efforts to protect the natural heritage for the past 30 years and to include nature protection in areas such as farming and industry. Apart from the E.I.A Directive mentioned above the other two Directives, which are referred to within the amending document, are important and have implications for any proposed projects in natural or wild areas which may be covered by a special designation.

The 1979 Birds Directive identified 181 endangered species and subspecies for which the Member States are required to designate Special Protection Areas (SPA's). Over 2700 have been classified by the end of 2003, covering almost 7% of EU territory. The 1992 Habitats Directive aims to protect wildlife species and their habitats. Each Member State is required to identify sites of European importance and to put in place a special management plan to protect them, combining long-term preservation with economic and social activities, as part of a sustainable development strategy. These sites, together with those of the Birds Directive, make up the Natura 2000 network, the cornerstone of EU nature protection policy.

In addition the EU and the UK Government have signed up to a number of important Conventions aimed at nature protection, including the Ramsar Convention on the Conservation of Wetlands in 1971, the Bonn Convention on Migratory Species in 1979 and the 1992 Rio Convention which established the principle of sustainable development.

All these Directives and Conventions have implications for wind farm development both onshore and offshore. Thp proposed wind farm at Gordonbush, Brora, for example will, in Landscape's opinion, breach the Birds Directive if it is approved by the Scottish Executive. Sited just on the boundary of a multi-designated, prime blanket bog this area holds important populations of protected species. Of particular importance is the Golden Plover, listed in Annex 1 of that Directive, which has suffered a serious decline in recent years due to afforestation. The Developers' own ornithologist discovered sufficiently dense populations of Golden Plovers within the site boundary itself to jusify an expansion of the S.P.A, or failing that, conservation measures under the terms of the Directive relating to important populations of scheduled species outwith designated areas

The Gordonbush wind farm proposal is not dissimilar to a case in Germany where the EU Commission is taking legal action against non compliance with the Birds Directive. This concerns a project to construct a wind farm at "Wybelsumer Polder"in Lower Saxony which has been identified as important for the conservation of birds including Avocet and Bluethroat Parts of the site have been designated as an S.P.A but the Commission is concerned that the project, one of a number of wind farms in the area, will have a negative impact on important bird habitats and that safeguards set down in the Birds and Habitats Directives have not been respected. The Gordonbush case is further strengthened by the fact that out of date information has been used in the E.I.A. Inexplicably the Developers' ornithologist ignored a study in 1996 (Whitfield, D P : 'Waders on Scottish blanket bogs: recent changes in numbers of breeding birds' in Parkyn et al (Eds) "Conserving Peatlands", Centre for Agricultural and Biosciences) which revealed a decline in Golden Plover numbers over and above those losses expected over areas of afforestation. 220 pairs had disappeared from unplanted open ground. This is of great concern as there is no apparent explanation. Both the Scottish Natural Heritage (S.N.H), Scotland's statutory body on nature conservation matters, and the R.S.P.B are holding firm on their objections to the Gordonbush project. Landscape strongly supports this position and would wish to see an in-depth, up-to-date study of Golden Plover densities, on the proposed project site, with the view to extending all the multi-designations on this prime blanket bog.

IMPLICATIONS FOR PROPOSED KILBRAUR WINDFARM

Landscape is also of the opinion that the E.I.A on the Kilbraur, Strath Brora wind farm offends the spirit, and probably the letter, of the E.I.A Directive. Comparison alone with the E.I.A document on the proposed wind farm at Cambusmore, which is thoroughly professional, shows it to be deeply flawed, inadequately researched, improperly assessed and lacking in proper consultations with local communities and specialist groups prior to planning submission. The archaeological survey, to pick just one aspect of the document, is simply incompetent with only 2 previously unrecorded historic sites being discovered. 17 were recorded by the local expert in a single afternoon. Further, the document bears an uncanny similarity to the E.I.A on the propqsed wind farm in Glenmoriston, near Fort Augustus, (same developers) using almost identical technical detail which is difficult for the non expert to challenge. Obfuscation, incorrect information ( photo montages wrongly formatted) important information not included, and insufficient consultation before the document was submitted, amount to an E.I.A that merely pays lip-service to the legal requirements. No industrial development should be agreed, in an area of such cultural and archaeological significance, on the basis of the above E.I.A for Kilbraur.

EU COMMITMENT TO ENFORCEMENT

At the end of 2002 the Environment Commissioner, Margot Wallstrom, said: " Member States have committed themselves to halting the loss of biodiversity in the EU by 2010. If this object is to be achieved, it is crucial that the European Union's most important habitats are adequately recognised and safeguarded under EU nature legislation. The Commission is determined to uphold EU laws designed to protect our environment."

Complaints to the European Commission on proposed developments that are in breach of, or likely to be in breach of the E.I.A, or the Birds or Habitats Directives, should be addressed to:

Georges Kremlis
European Commission
DG Environment (BU/9 01/185)
B1049 BRUSSEL
BELGIUM

EC RESPONSIBILITIES FOR WINDFARM-ASSOCIATED MATTERS

EIA technical aspects:

tel: 00 32 2 299.06.76

Email: david.aspinwall@cec.eu.int

tel: 00 32 2 298.30.41

Email: thisvi.ekmektzogloi@cec.eu.int

POSTSCRIPT

In a statement regarding a wind energy development on the Isle of Lewis Sandra Pointer, for the developers AMEC, said: "If we do have a significant impact on a habitat or species, European law doesn't say that you cannot develop; but you have to show that there is a socio-economic benefit and it is in the public interest to have the development in these areas. The worst-case scenario is that we do have an impact on the habitat and affect the integrity of the area, but there is a public interest and a socio-economic driver for pursuing the development."

It is true that European law does not say that you cannot develop in areas where a significant impact will be made on a habitat or species but from the EIA directive it would only be only "if there was no alternative".

This is reflected in the Highland Council Structure Plan which states that developments which would adversely affect designated sites would only be permitted "where there is no alternative solution."

This cannot be true of wind power stations which are already vastly over-subscribed to meet renewable targets at this stage. Planning should be scrupulous and those that have serious drawbacks, such as the Isle of Lewis, should not be agreed.

The socio-economic argument is also dubious. Land owners and crofters would benefit if wind power stations are sited on their land, but funds to local communities are questionable.

The high output which is needed on Lewis to make the site viable, through an inter-connector to the mainland grid, cannot be realistically maintained for a technology reliant on wind where output is intermittent.