Scottish power

When the Talk Environment network was established almost five years ago, the use of words such as ‘sustainability’, ‘remediation’, ‘emissions’, ‘recycling’ and ‘regeneration’ were still fairly rare. It was likely to lead the user to be classed as “one of those green bods”.

Not any longer. Two years ago, at the Defence Estates Conference in London, speaker after speaker, including Geoff Hoon, spoke about the Ministry of Defence’s (MoD) commitment to sustainability. The drive towards renewable energy is one of the important steps being taken, but is it clear what is meant by renewable energy? And why is Scotland so important in this context?

To deal first with the second point, Scotland is uniquely placed to take advantage of its natural renewable energy resources. Its uniqueness lies in its land mass and position, in terms of the power of the waves crashing in from the Atlantic and the wind gusting across Scotland. Scotland has a land mass of 31,510 square miles shared by only 5,062,011 people. It also has 9,911.3km of coastline, of which only 1.2 per cent is classified as developed. For anyone who has ever been stuck on the top of the Cairngorms, it is easy to understand the recent comment that Scotland has enough potential wind and wave energy to power the entire UK.

So, what is meant by renewables (or renewable energy)? We need to harness the power of nature to provide the energy supply of the future. This can be achieved through a number of methods, the most prominent being:

Onshore

  • Rain power – Scotland currently produces 12 per cent of its energy from hydro stations.
  • Wind power – Scotland has 25 per cent of Europe’s wind energy resource and has some of the best wind sites in Europe.
  • Sun – believe it or not, Scotland does enjoy sunshine and is suited to solar heating technology.

Offshore

  • Wave – there are enormous possibilities for tapping into the huge potential of wave power. Scotland has been calculated as having up to 10 per cent of Europe’s wave resource centred around its west coast. Scotland also has the world’s first commercial wave power station – Limpet – which provides electricity to the Isle of Islay.
  • Tidal – the Pentland Firth has been described as the Saudi Arabia of a future world tidal industry. The Scottish renewables forum indicates that the tidal resource in Scotland constitutes 25 per cent of the total tidal resource.

So where does the Scottish Parliament stand and where is the focus?
The Scottish ministers announced, in March 2003, that the parliament will:

  • Increase investment in R&D and promote (renewables) commercialisation in Scotland.
  • Support the development of wave, tidal and solar energy.
  • Press the UK Government and electricity companies to strengthen the electricity grid.
  • Encourage participation in renewable energy products.

The Government’s present thinking is that wind will provide most of the new resource in the 21st century. The Scottish Executive has set ambitious targets for the future provision of electricity from renewables, moving from 12 to 18 per cent by 2005, and rising to 40 per cent by 2020.

What are the implications?
Wind farms are controversial. I was acting for the MoD on the lease of part of RAF Machrihanish, concerning the construction of the Vestas wind turbine plant. The sheer size of the turbines cannot be underestimated. Michael McCarthy, the environment editor of The Independent, said: “Whatever the figure, one thing is not in doubt: modern wind turbines are enormous. The ones coming onstream now are typically between 300 and 400 feet tall, taller than St Paul’s Cathedral, but as they do not produce large amounts of electricity – three megawatts per turbine is high – for a wind farm to be viable it will need perhaps 20-30 turbines.”

These are understandably controversial developments and have not been well received for a multitude of reasons. In Denmark, which is the world’s undisputed leader in wind power, they are starting to see a drop in public support for onshore wind farms. “Denmark has enough onshore wind farms,” says Jan-Erik Svensson, a partner at Danish law firm Gorrissen Federspiel Kierkegaard. “They look terrible and I don’t expect to see many more being built onshore. Now they’re thinking about placing them 50km offshore, where no one can see them. That will be the future.”

Clearly, any lawyer with an involvement in this area will need to be alive to the planning and environmental issues that will feature strongly in any proposed project. The policy from the Government is becoming clearer, but what is not so clear is what its strategy is. How will it identify the locations best suited for on/offshore wind farms to protect the Scottish countryside, particularly the mountainous areas, from being devastated by large-scale industrialisation? This still needs to be a lot clearer in order to alleviate fears.

The targets for renewable energy have been clearly marked out by the Scottish Executive. Scottish ministers have provided a policy dictate, but there are concerns that the words are simply aspirational and are not supported by a real commitment throughout the chain to ensure that the opportunity is truly grasped. Most of us would endorse the fact that, ethically, we wish to protect our environment, and we like to think we do our bit, but when faced with a business decision for ourselves and our clients, it is often the bottom line that dictates the path we follow, rather than our ethical intentions.

The Scottish Executive must support its aim through tangible benefits in funding, tax credits, education and a raft of measures giving clear and practical guidance to regulatory authorities. Not only large-scale measures dealing with well-funded companies, but also smaller companies looking to develop small-scale projects which are accessible to most. There is a clear benefit for us in being able to study the positions of countries such as Denmark, and we should actively seek to do so and to learn from their experiences.

How does this impact on the legal profession?
Environmental law is no longer a luxury that only the large law firms can offer. It is no longer just a bolt-on legal service. The issues of sustainability and renewables will become much more mainstream as companies have to reconsider their business practices to take account of such issues.

In order to advise our clients, in the future we will need to understand and have a good working knowledge of these issues and be able to apply them. For example, the voluntary emissions limits that the UK was hoping industry would deliver will become mandatory through the European Community. Power companies will need advice on both this and the legal framework for the alternatives. The new technologies will require a range of legal skills: planning, environmental, corporate, contract, construction, joint ventures, property, intellectual property, employment… the list goes on.

Environmental issues have, at last, moved up the agenda. Firms that do not already have in-house expertise in this area may well need to consider bringing some in.

Nick Atkins is a commercial property partner with Morton Fraser in Edinburgh and the founder of Talk Environment