*Will the Marine Scotland Bill fast-track offshore renewables in Scotland or prove a burden on development? By Craig Connal.*

The seas off Scotland are said to hold one-quarter of Europe's total tidal and offshore wind resource and 10 per cent of its potential in wave power, as well as huge potential natural gas and carbon dioxide storage. The significance for the renewables drive in the UK is obvious. The passing of the Marine Scotland Bill has been generally welcomed, however the regulatory structures it puts in place bring their own challenges.

On one view, without very careful handling, the Bill's provisions could become a further drag on the pace of development and add significantly to the level of investment required simply to get development consent.

The Bill creates a substantial body of new regulation where such regulation did not previously exist. Its main provisions, relevant to the utility sector, are set out in the box.

A new structure of this kind risks being all things to all men. It is true that much of the initial response has been enthusiastic, particularly from environmental organisations and the green lobby. Green forum Environment Link "particularly welcomed" the duty to protect and enhance the seas, a marine planning system with environmental targets and the potential for marine protected areas. Scottish Natural Heritage and the RSPB also made enthusiastic comments.

*Marine environment protection*

The official release from the Scottish Government said the Bill would "play a key role in developing Scotland's booming renewables industry". Yet this was followed immediately with a sentence that has received less coverage. Environment secretary Richard Lochhead was quoted as saying: "Let me be very clear - delivering faster economic growth will not come at a cost to our stunning marine environment." There accordingly remains a question mark over whether the new structures will support environmental constraint, as opposed to assisting faster and more positive approaches to offshore consents.

The renewables industry boasts a proud record of attention to environmental matters, and climate change has been enshrined as a relevant factor in land use planning policy documents for some time. It may be instructive in considering how the Marine Bill will operate to examine the record of the land use planning system in providing swift and positive consent processes for renewable developments such as onshore windfarms.

*Applications hijacked*

Many say the record is lamentable - far too slow and far too expensive. In addition, the industry has experience of applications being hijacked by environmental objections or single interest environmental groups, again causing delay and incurring cost. One particularly cynical commentator was even moved to suggest that we would soon be looking for the equivalent of the suddenly materialising rare orchid or natterjack toad in any area proposed for offshore development, perhaps a rare dolphin or unusual seaweed. Although such speculations may be overstated, the point is nevertheless clear.

In a sense, this reflects a recent discussion on the possibilities for large-scale hydro power in Scotland. Potentially the most sustainable of all renewables, long term, stable and, once in place, having few environmental impacts, the view expressed was that there was scope for a large increase in installed capacity - but that would be impossible if nature conservation objectives were not set aside in favour of climate change targets.

*Assessment costs and difficulties*

The whole question of assessment will also rear its head. Environmental assessment of land-based projects can lead to large costs, frequently to little end. Investigations into a wide variety of possible impacts turn out to be of no significance. Transplant that exercise to the much more hostile and complex environment offshore. Compare the difficulty of assessing a development on a hillside with a development anchored several hundred feet under water. There is potential for large costs, and if there is uncertainty, will the "precautionary principle" have to rear its head?

One other consideration is that the Scottish Government will want to avoid additional policy or regulatory burdens which may not arise in other jurisdictions. There is already a clear divergence between UK energy policy (which says nuclear energy must be part of the mix) and Scottish Government policy (firmly committed to preventing nuclear development in Scotland). There is clearly no such divergence of view over climate change generally, but there can be little doubt that the risk of over-regulation or divergent decision-making is real.

*Think positive*

Perhaps ultimately the real challenge may be to achieve a positive attitude. It was not long ago that the land-based planning system in Scotland was under scrutiny because of what was alleged to be its unfortunate tendency to say no before one asked the question. In wielding new powers, if Scotland is to become the agent for delivery of a major boost to renewables and tackling climate change, all traces of negativity will have to be removed and all suggestions that the Marine Scotland Bill is a boon to environmental objectors laid to rest.

Craig Connal is partner in the litigation and dispute resolution team at McGrigors.