Triumph over offshore wind judicial review is misplaced
A week ago, the Supreme Court rejected RSPB Scotland’s application for permission to appeal the decision of the Scottish appeal court to uphold the consents awarded to offshore wind farms off Scotland’s east coast.
In this blog, Pat Hawthorn reflects on her work as a Partner at law firm Shepherd + Wedderburn during a three-year legal process. Pat is also Chairman of Scottish Renewables.
Any sense of triumph or vindication over the ruling from the Supreme Court not to allow the challenge by RSPB against the consents granted to the Firth of Forth and Tay offshore windfarm developers in 2014 is misplaced.
Here we are in November 2017, three years behind where we should be, and three years behind similar projects in UK waters.
The substance of RSPB’s legal challenge has been discussed and written about aplenty.
This was a classic case of judicial review being used in part correctly (to challenge whether due process was complied with in the original decision-making process) and in part incorrectly (to attack the merits of the decision through questioning the methodologies applied by the decision maker).
Lord Stewart in the Outer House of the Court of Session was sympathetic to stretching the scope of judicial review.
His colleagues in the Inner House – their Lordships Carloway, Brodie and Menzies – most emphatically were not.
The Inner House bench opined fully and conclusively on the issues at hand and turned down RSPB’s request for leave to appeal further.
The Supreme Court in turn refused permission to appeal on the basis that the RSPB had failed to raise an arguable point of law of general public importance requiring the Court’s attention at this time.
The outcome of the challenge is the correct one. Well, I would say that – but so would most other lawyers.
However, these projects have a long journey to delivery and, really, we commence that process in earnest starting now.
We do so with an important stakeholder feeling angry and defiant. They should not be.
There has never been any intention other than the very best towards mitigating impacts of these projects on Scotland’s natural environment, and particularly our seabird populations.
It is difficult to find compromise when only one party to a discussion is talking.
The tension created by the demand on technologies to reduce costs to be competitive in an auction for contracts for difference has rendered discussions about funding expensive research projects a thing of the past.
I would like to see the offshore wind industry move forward to a constructive but realistic dialogue with the RSPB.
One other point for the record.
The supply chain in Scotland has rallied behind these projects over the last few months. They have high expectations of contracts and jobs for Scotland.
So do I.
These supply chain companies must make themselves irresistibly competitive, more so than they have perhaps until now, but I for one will be watching in the hope (and expectation) that the economic well-being promised on the back of these massive infrastructure projects is realised to the very fullest extent possible in Scotland.
As an aside, part way through this long and frustrating legal process I became a grandmother. I look forward to one day walking Esmé and Murdo down to my favourite spot on Crail beach to show them the turbines that make up the Neart na Gaoithe Offshore Windfarm.