RESPONSE FROM CENTRE FOR ENERGY AND ENVIRONMENTAL LAW AND

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RESPONSE FROM CENTRE FOR ENERGY AND ENVIRONMENTAL LAW AND Powered By Docstoc
					National Assembly for Wales Enterprise, Innovation and Networks Committee
and Environment Planning and Countryside Committee Consultation on EU
Green Paper: Towards a future Maritime Policy for the Union: a European
Vision for the oceans and seas



                               RESPONSE FROM
           CENTRE FOR ENERGY AND ENVIRONMENTAL LAW AND ECONOMICS,
                             SWANSEA UNIVERSITY


                                         Introduction
General Comments

Given the fact that a variety of mainly anthropogenic threats have combined to make the
maritime sector one of the most threatened aspects of the biosphere i , we should take rapid
action in this area. The very nature of the marine resource and its status as a global common
good means that action at state level alone is inadequate to address the scale of the
problems that exist, and thus broader based action by the EU is to be very much welcomed.
Action by the EU also enjoys considerable advantages over action in international law, in
particular as regards enforcement. Having said this, the real diversity that exists among the
EU’s regional seas makes the approach suggested in the Green Paper – suggesting a
Directive with broad discretion for Member States to achieve the required gaols, has a great
deal to recommend it in practical and legal terms. Wales, as a small region, potentially has a
great deal to gain from involvement with an EU based maritime policy, which will
accommodate regional distinctiveness within a more comprehensive and better resourced
maritime regime.


Specific Consultation Questions/Issues

1. The need for an EU integrated maritime policy and how this can add value to the UK wide,
Welsh Assembly Government, local and private initiatives which already exist (including the
UK Government’s proposed maritime Bill).


Strategic planning has traditionally developed along terrestrial lines (such as the Wales
Spatial Plan, supporting the creation of Local Development Frameworks). In contrast,
activities affecting the marine environment remain unregulated, save for sector-based
schemes (such as energy exploitation licensing). The Community has assumed an increased
competence in the planning field (Environmental Impact Assessment; Strategic Environmental
Assessment), and is also taking a lead in the present development of River Basin
Management Plans (under the Water Framework Directive) and of Integrated Coastal Zone
Management.

In the face of sustainability challenges, an integrated EU maritime policy could fill gaps in
current, especially nationally-based, approaches, producing appropriate policy frameworks as
a basis for future regulatory decisions. Particularly as marine impacts can be immune to
boundary limits (irrespective of such legal ‘rights’ as territorial waters and exclusive economic
zones, renewable energy zones), this could provide the following opportunities:

    harmonization across Member States: shared principles and rules in the delivery of
    defined environmental, social and economic objectives;
    co-ordination across activities: fuller integration of responses to conflicting demands,
    including greater attention to the tensions between terrestrial activities and the marine
    environment (the Community is currently active in related sectors, such as the
    management of floods and coastal erosion, integrated coastal management generally,
    and sustainable energy supply).

Need: ecological, legal, political and economic factors all indicate the wisdom and utility of an
       EU wide approach –

    The ecology of the marine environment does not sit easily with national and sub-national
    administrative boundaries – an ecosystem based approach to regulation is generally
    agreed to be most convincing ii and an EU wide general approach would provide a
    practical context upon which to build more specific regulatory controls. In addition, an
    ecosystem-orientated treatment of use of marine resources and environmental impacts,
    taking account of the need to secure the sustainability of marine ecosystem services
    fulfills international, EU and domestic legal obligations on the conservation of biodiversity.
    Legally maritime law and policy by its very nature often generates interstate interfaces
    which can benefit from the settled framework provided for such interaction by EU based
    core approaches. In addition, an EU approach could aid substantially in the adoption of a
    more coherent approach to the regulation of an area which is currently governed by
    sectoral, piecemeal provisions, riddled with gaps and inconsistencies.
    Politically, the fact the EU is setting priorities in this area should enable some narrowing
    of the inevitably broad-ranging debate as to what such a policy should encompass, thus
    enabling more timely progress on what is widely regarded as an extremely pressing
    issue. The UK and Welsh Assembly regime could benefit from the legal and scientific
    foundations iii that an EU policy would provide. In addition, for example in the case of the
    Irish Sea, not only are all of the UK administrations involved with its administration,
    Ireland too enjoys rights and responsibilities here and co-ordination between all
    concerned governmental bodies is likely to benefit from a foundational role being played
    by EU law and policy in this area as in others of common concern.
    Economically, if there is to be an EU wide policy that is to be welcomed as providing a
    level playing field for all member states and their nationals in this area. In addition, the EU
    is arguably in a better position to argue its Member States in the context of the many
    global aspects of marine law and policy.



2. What specific factors need to be taken into account when considering the impact of EU
maritime policies in Wales?


The fact that Wales has Objective 1 Status under the structural funds means that its position
is distinct from that of much of England. For this reason, in addition to the need to protect the
distinctive nature of Welsh interests in the area of marine policy vis-à-vis those of its larger
neighbours within the UK and beyond, there is a need to ensure that a distinct Welsh voice is
given full weight in this area. Further, the Welsh Assembly’s explicit statutory obligation under
s121 of the Government of Wales Act 1998 to pursue sustainable development has important
implications for the approach to be adopted to marine policy in the principality which need to
be paid particular attention iv . Finally, given that the EU is seeking to pursue change at all
levels of governance, Wales is in an excellent position to promote itself as a small nation
within Europe in this context.


3. What is the role and importance of the maritime sector in Wales and what needs to be
done to ensure that it remains competitive?


The maritime sector accounts for approximately 6% of Welsh GDP – a small but significant
percentage of the total that slightly exceeds the EU average of between 3-5% of GNP v . In
addition to the role already played by this sector, there is considerable potential, given that
Wales enjoys some 20,202 square kilometres vi of often very beautiful and ecologically
significant coastline, in addition to the waters beyond, there is considerable potential for
expansion and diversification in this area. Particular areas for development include tourism,


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blue biotechnology/bio-prospecting and the generation of renewable energy. Such economic
development, if promoted on the basis of sustainability, also has the potential to social and
environmental goods.


4. What marine research is currently carried out in Wales and what would be the role of a
European Marine Related Research Strategy?


There already exists a variety of expertise within Wales which could be meaningfully and
profitably exploited in the context of an EU Marine Policy, for example, the University of
Wales at Bangor has an established profile in seabed camera technology research and
development. The University of Swansea has considerable expertise in marine biology in
general and in particular in the area of aquaculture. Swansea University and Pembrokeshire
County Council are partners in the Energy Technium which is actively promoting research
and development in respect of clean and renewable energy. There is also potential at
Swansea for research into medicinal/pharmaceutical uses of marine resources. A European
Marine Related Research Strategy will provide a context to ensure better funded, more
coherent coupled with improved opportunities to disseminate best practice. In addition, the
work of the recently established Centre for Energy and Environmental Law and Economics
will provide research input into the marine environmental regulatory regime.


5. How can innovative offshore renewable energy technologies be promoted and
implemented in Wales? Is the Welsh Assembly Government doing enough in this area?


The Welsh Assembly’s Sustainable Development Strategy sets a policy context that is
conducive to the development of renewable energy technologies. Initiatives such as the
Pembrokeshire Technium involving partners from academia, local government and the private
sector will apply a business seeding model that has already been successfully employed in
other emerging technology areas such as IT to this sector. The Assembly can facilitate
development in this area by ensuring that its policies in this area are at the cutting edge and
by funding research and development in this area using the ‘Green Investment Funds’
model vii , for example through engagement with the opportunities provided in this area by the
EU’s 7th Framework Programme for Research.


6. How can the decline in the number of people entering certain maritime professions be
reversed and the safety and attractiveness of such jobs ensured?


The main area where the Wales can influence this factor in the maritime sector is by playing
an active role in the pan-European debate on reforming education and professional training in
this area. In addition, with the emergence and consolidation of new areas of endeavour, new
marine careers, for example in the fields of energy and blue biotechnology could be promoted
in order to attract more people into the sector.


7. How can the quality of life of the coastal regions of Wales be maintained, while continuing
to develop sustainable income and jobs?


The nature of coastal regions is changing from functional to recreational thus the promotion of
an attractive environment is desirable. There are a number of additional ways in which Wales
can pursue all three faces of sustainable development in coastal areas. Wales is in an
excellent position to pursue the Lisbon Agenda in respect of sustainable economic
development and to forge a reputation in the context of Eco-innovation. Wales is particularly
well placed to develop a range of relatively small scale but highly adaptable initiatives, located
close to shore that would be highly marketable within the EU and beyond. In the energy



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sector, for example, research and development and employment opportunities can be
pursued with respect to both renewables and cleaner technologies, notably LPG viii . In addition
to decreasing harmful emissions, with benefits to both human health and the environment,
local opposition on amenity grounds may be effectively countered by the granting of
community benefits, such as reduced price energy/ profit sharing. Wales is also well
positioned, given its location and existing marine resources, to pursue blue biotechnology –
the fact that natural fish sources have been so dangerously depleted by over-fishing means
that sustainable aquaculture for example will be an area of considerable economic growth
potential for the foreseeable future. Development in these areas would place Wales in a
strong position insofar as marketable skills and technologies are concerned.


8. What further steps should the EU take to mitigate and adapt to climate change in the
marine environment?


Notions of quality and sustainability need to be premised not only on those living today but
also future generations’ ability to access sufficient resources to meet their needs, and thus
importance of strategic approach and to biodiversity. Public acceptability, alongside education
and understanding, is crucial to securing a sustainable marine environment. Here the
Community has a considerable track record in securing enhanced community and
stakeholder engagement. This has been achieved through environmental protection
measures focused upon high levels of scientific and technical input, public information and
transparency, and participatory processes. Such approaches would be key to securing
support and engagement across affected communities.
Another area where there is already evidence of considerable change in the marine
environment courtesy of global warming is species migration so large in extent that EFRA has
referred to it as ‘regime shift’. ix While the adoption and pursuit of effective policies on climate
change will mitigate this to some degree, the extent to which this may be effective is highly
unpredictable. The EU can assist Member States in developing adaptation strategies by
ensuring that it provides for effective collection and exchange of data and best practice in this
area.


9. What must be done to reduce the vulnerability of coastal regions to risks from floods and
erosion?


The redrawing of Shoreline Management Plans, with a decreased commitment to hard
defence structures, and an increased commitment to managed realignment (and the coming
development of integrated coastal zone management) - in response in large part to impacts of
climate change - will impact most directly on coastal communities.

In recognition of the consequences of a more ecocentric approach to protecting the marine
environment, it is commendable that the Green Paper (para. 4.3) implies an awareness of the
importance of environmental and social justice, referring explicitly to the question of
redressing ‘burdens carried by coastal regions’. This needs to be taken forward alongside
developing policies.


10. How can the shores and coastal waters of Wales be better policed to prevent human
threats such as pollution by ships and criminal activities (e.g. trafficking of human beings,
smuggling, terrorism)?


We suggest that this could be achieved through real time tracking and more co-operation
throughout the EU on law enforcement.




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11. How can innovation in services and products related to coastal tourism in Wales be
effectively supported? Is the Welsh Assembly Government doing enough to support coastal
tourism?


The application of a MSP regime would undoubtedly benefit decision-making that would
promote a considered and coherent approach to decisions relating to coastal tourism. The
Welsh Assembly has recognised the importance of an MSP based approach in ‘People,
Plans, Futures: The Welsh Spatial Plan’ November 2004. This policy recognition places
Wales at the forefront of current thinking in this area – this early awareness must be followed
through in detailed policy initiatives at the first available opportunity in order to allow the full
advantages of this approach be exploited as swiftly as possible. In addition, the Assembly
could usefully provide a Wales-wide forum to disseminate best practice both within Wales and
beyond would be useful to improve Welsh practice and forge a broader reputation for Wales
in this regard.


12. What role could be played by one or more regional centres of Maritime excellence in
Wales?


Any eventual Community strategy would likely follow recent trends in European environmental
regulation, leaving operational and delivery structures in large measure to individual Member
States. ‘Centres of Maritime Excellence’ could foster innovative research, as well as providing
a key technical and related resource for decision makers, and support for essential
participatory and stakeholder engagement. Such Centres could be most effective if sited in
strategic areas serving defined regional marine ecosystems.

In particular, Regional Centres of Maritime Excellence offer opportunities to review and
publicise existing activity in this area and to expand expertise avoiding wasteful duplication of
resources. They will be in a stronger position to both bid for research funding, engage with
industry and to disseminate good practice. In order to maximise synergies with existing
provision, and to further develop expertise in this area, given the cross-cutting nature of many
of the issues involved, it is suggested that good working relationships with existing specialist
groups working in related areas, such as the Technium Network, together with links with
Universities and local government be fully exploited.


13. What are the principles and mechanisms that should underpin maritime spatial planning
systems? What is the role of the Wales Spatial Plan in this?


Considerable domestic progress has already been made during consultations concerning the
proposed Marine Bill. A Marine Spatial Planning System should have as a primary objective
the sustainability of the marine environment, including the securing of sustainable adaptation
and mitigation measures in the face of climate change (in line with the Green Paper and the
Community’s 2005 Marine Thematic Strategy). The delivery of such an approach should be
made subject to objectives to secure policy integration, in the face of the wide variety of
conflicting demands on marine resources (currently growing into new directions, as can be
seen in the accelerating growth of offshore renewable energy installations), and address
tensions that arise at coastal margins.

It is clear then that the EU and the UK government and the Welsh Assembly government
favour a MSP approach x .

•   Principles: As an ecosystem based model is deemed desirable, but our understanding of
    this aspect of the biosphere is distinctly limited at present it is suggested that the system
    of MSP be based on sound science where possible. To be effective and accessible, this
    will initially require the use of a broad range of marine surveys and consequently
    comprehensive monitoring harnessed to computer modelling and GIS type information


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    systems. The utility of this type of approach is demonstrated by the DEFRA sponsored
    JNCC Regional Seas Pilot Scheme Irish Sea Pilot xi . Where sound science is not
    available, the precautionary principle should be employed – there are few areas where
    the case for acting now, in the absence of full scientific knowledge in order to prevent
    future harm, are more compelling.

•   Mechanisms: It is suggested that the basic land-use planning model be employed in this
    regard – this offers opportunities for a proven democratic model to be employed,
    providing good opportunities for stakeholder engagement, public participation and
    sustainability appraisal. A responsible marine management organization may be
    necessary in order to secure the above - just as the Environment Agency is the lead body
    delivering River Basin Management Plans in meeting obligations under the Water
    Framework Directive. The effectiveness of any marine spatial planning agency would be
    enhanced if it were a statutory body (independent of departmental concerns) with the
    necessary powers (and appropriate duties) vested in it.

•   WSP: Insofar as the Wales Spatial Plan is concerned, coastal impacts and interface
    between land use and coastal and maritime planning need to be specifically and
    coherently considered in an integrated fashion.


14. How should maritime affairs be further integrated into other policies and programmes that
affect Wales (e.g. European Structural Funds Convergence and Competitiveness
programmes)?


It may be wise to establish an interdepartmental committee in order to ensure maximum co-
ordination on maritime matters within the Welsh Assembly in order to ensure that the maritime
implications of discrete policy initiatives are fully considered and to ensure effective
engagement across the full range of EU policies and programmes impinging upon this area.
At the very least considerations arising from agriculture, energy, industry, tourism and coastal
and regional development xii will need to be considered.



                                                                   Professor Karen Morrow
                                                                Professor Mark Stallworthy
                                                               Professor Lynn Mainwaring
                                                           School of Law, Swansea University
                                                                           13 February 2007




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i
   See, for example the UN Millennium Ecosystem Assessment report by the World Resources
Institute: ‘Ecosysyems and Human Well-Being: Wetlands and Water Synthesis’ at
http://www.maweb.org/documents/document358.aspx.pdf.
ii
    This is evidenced by the EU in its, Green Paper: Towards a future Maritime Policy for the
Union: A European vision for the oceans and seas 7.6.2006 COM (2006) 275 final at p5, the
UK government in ‘A Marine Bill: A consultation document of the Department for Environment,
Food and Rural affairs’ (2006) para 4.5, and the Welsh Assembly itself in its Marine Policy at
http://new.wales.gov.uk/tpoics/environmentcountryside/env_cons_management.All of these
documents favour the adoption of an ecosystem basis for the regulation of the marine
environment.
iii
    This has been all too apparent in the UK government’s lengthy and complex consultation on
the Maritime Bill concisely described in the House of Commons Environmental Audit
Committee ‘Proposals for a draft Maritime Bill’, Eight Report of Session 2006-06, HC1323.
iv
    This has particularly important ramifications in cross-cutting policy areas, such as the
development of renewable energy resources, as per the Welsh Assembly’s Environment
Strategy, 2006.
v
    See Commission Staff Working Document Annex to the Communication from the
Commission to the Council and the European Parliament: Thematic Strategy on the
Protection and Conservation of the Marine Environment and Proposal for a Directive of the
European Parliament and of the Council establishing a Framework for Community Action in
the field of Marine Environmental Policy (Marine Strategy Directive) Impact Assessment
24.10.2005 COM(2005)504 final 24.10.2005 COM(2005)505final at p17.
vi
    National Assembly for Wales: ‘A Statistical Focus on Rural Wales’ 2002.
vii
     Green Paper: Towards a future Maritime Policy for the Union: A European vision for the
oceans and seas 7.6.2006 COM (2006) 275 final at p17.
viii
     THE EU’s continued commitment to LPG and the desirability in terms of energy security of
its use together with improved generation of renewables has been reaffirmed in the context of
both the Green Paper ‘A European Strategy for Sustainable, Competitive and Secure Energy’
COM(2006) and the Final Report of the Energy Sector Competition Inquiry, at
http://ec.europa.eu/competition/antitrust/others/sector_inquiries/energy/.
ix
    DEFRA: ‘Charting Progress, an integrated assessment of the state of UK seas’, March
2005, p23.
x
    See Commission Staff Working Document Annex to the Communication from the
Commission to the Council and the European Parliament: Thematic Strategy on the
Protection and Conservation of the Marine Environment and Proposal for a Directive of the
European Parliament and of the Council establishing a Framework for Community Action in
the field of Marine Environmental Policy (Marine Strategy Directive) Impact Assessment
24.10.2005 COM(2005)504 final 24.10.2005 COM(2005)505final at p50, ‘A Marine Bill: A
consultation document of the Department for Environment, Food and Rural Affairs’, 2006, and
the Welsh Assembly’s ‘Environment Strategy for Wales’ 2006..
xi
    See the report: Marine Nature Conservation and Sustainable Development - The Irish Sea
Pilot at www.jncc.gov.uk.
xii
     THE EU suggests these in its Communication From the Commission to the Council and the
European Parliament on the Thematic Strategy on the Protection and Conservation of the
Marine Environment, 24.10.2005 COM(2005)504 final, para 6.2.2.




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