Berwick Bank delay blows up a Scottish political storm

Breaking news: the sclerotic Scottish consenting process now keeps offshore wind farms waiting longer than Scottish first ministers last in office. Planning delays are getting longer, and first ministers are burning out more quickly. This is not merely coincidence – the former is a factor driving the latter.

SSE Renewables submitted a Section 36 development consent order for its 4.1 GW Berwick Bank offshore wind project in December 2022. Fast forward to May 2024, and the application is still pending a determination by Scottish ministers.

During that time, Humza Yousaf has come and (almost) gone as first minister. His dramatic resignation speech on April 29 marked the demise of a tumultuous 13-month tenure at the head of the Scottish government.

Yousaf will remain in office until the Scottish National Party (SNP) picks a successor. The process typically takes up to 28 days. SSE Renewables will almost certainly still be waiting long than that.

As of May 2, it seems likely that John Swinney will take the top spot, after Kate Forbes announced she would not be in the running. The SNP remains short of a majority in Parliament, though, posing challenges for their legislative aims.

Mind the thorns

In practical terms, there is zero chance of Scottish Ministers issuing a decision on Berwick Bank until the new first minister has settled in. Among the many complications facing the new FM’s ability govern in Holyrood is the thorny issue of energy and climate policy.

The Scottish Government decided on April 19 to abandon its 2030 target for a 75% reduction in emissions. This was an aggravating factor in the rapid deterioration in relations between the SNP and the Scottish Green Party, its junior partner in coalition.

Yousaf’s shock decision on April 25 to tear up the Bute House power sharing agreement between the two parties triggered calls from the Greens for his resignation. After failing to secure sufficient cross-party support to survive a vote of no confidence, Yousaf quit.

Shared ambition in shreds

Among other things, the Bute House agreement set out the two parties’ joint ambition to install “up to 11 GW of offshore wind” by 2030. Their shared policy programme pledged to achieve this by delivering “changes in the planning system needed to permit the growth of this essential, zero-carbon sector”.

This has palpably not happened, and the travails of Berwick Bank demonstrate why the current system is failing to deliver timely decisions.

The sheer scale of the Berwick Bank development makes the consenting process an extraordinarily complex undertaking. The project consists of up to 307 turbines with either suction caisson or piled jacket foundations, rotor tip heights of 355 metres, blade diameters of 310 metres and a maximum hub height of 200 metres.

Offshore challenge

This is the largest offshore wind development ever contemplated in Scottish waters. The project footprint will span 1,010 square km in the outer Firth of Forth. It requires up to 1,225 km of inter-array cabling and two independent grid connections – one in East Lothian and another in the Blyth area of Northumberland.

The (relatively straightforward) onshore works are partially consented. The offshore works are much more taxing. SSE Renewables is seeking offshore consents under Section 36 of the Electricity Act 1989, and marine licences under section 20 of the Marine (Scotland) Act 2010 and Section 65 of the Marine and Coastal Access Act 2009.

Scottish ministers had been expected to deliver a determination by the end of 2023. This would have allowed Berwick Bank to participate in the UK government’s sixth allocation round (AR6) for contracts for difference (CfD). But the AR6 deadline came and went at the end of April without a peep from ministers. As a result, Berwick must wait until AR7 opens in 2025. SSE’s ability to deliver the project this side of 2030 is now in doubt.

Chorus of disapproval

Examining the myriad responses to the Section 36 consultation, it is plain to see why the decision is taking so long. Berwick Bank attracted objections from more than 10 stakeholders. Many of these are statutory consultees, with the government required to adequately addressed their views. If not, the government risks legal redress.

Objections covered the full gamut of concerns often raised in relation to offshore wind farms. These include interference with military radar systems, constraints on ship navigation and commercial fisheries, visual and ecological impacts. There were even worries about potential impacts on the development prospects of nearby ScotWind projects.

But by far the largest impediment to the issuance of Section 36 consent is the question of how to mitigate ornithological impacts to the satisfaction of the Royal Society for the Protection of Birds (RSPB) and other conservation organisations.

Berwick Bank overlaps a Special Protected Area (SPA) that is “one of the most diverse marine bird concentrations in Scotland”. The RSPB says it provides feeding grounds for more than 100,000 seabirds. The Habitats Regulations oblige authorities to avoid disturbance and deterioration of SPAs.

There is no practical way of green-lighting the installation of 307 giant wind turbines over a swathe of ecologically-significant seabed the size of Greater Manchester without breaching this legal protection. While SSE has gone to some lengths to mitigate the impacts, there is no way to avoid increased bird deaths from blade strikes and habitat loss. So, the developer is making the case for a derogation from the Habitats Regulations.

‘No alternative’: SSE seeks legal carve-out

The developer argues that the need to deliver against 2030 targets and accelerate climate action are overriding imperatives of public interest. It also says there are no alternative sites that can deliver at the same scale and pace.

SSE said it had identified Berwick Bank via a decade-long site selection process following “detailed analysis of environmental constraints and technical feasibility”. The project has a grid connection agreement for 2029, meaning it could deliver more than a third of the government’s 11 GW by 2030 target.

The Scottish government is demurring. This is untested legal territory. To date, Scottish ministers have not relied upon a Habitats Regulations derogation case to approve an offshore wind farm in Scottish waters. Although, five UK wind farms have received consent pursuant to a derogation.

To justify a derogation, the authorities can offset impacts by compensating for lost habitat in some other way. In January 2024, the Scottish government set out its case for banning the fishing of sandeel – small fish that play a vital role in supporting vulnerable bird species and marine ecosystems. Welcoming the ban, the Scottish wind industry suggested it could count as a “compensatory measure” in future habitats derogations to enable development of projects such as Berwick Bank.

In its impact assessment, the Scottish government confirmed it is yet to decide how to proceed. Ministers “will assess the suitability and potential benefits of the closure of fishing for sandeel as a compensatory measure if, and when, it may be required in support of a case for derogating from the Habitats Regulations to facilitate the consenting and deployment of offshore wind projects.”

Piling on the political pressure

Evidently the Scottish government is unsure whether to carve out an exemption for Berwick Bank. The legality of permitting a huge offshore wind scheme at the expense of protected habitats requires careful consideration. But while lawyers pore over the intricacies, the Scottish government has come under mounting political pressure for failure to deliver on its climate promises that ultimately plunged the coalition beyond breaking point.

In the days leading up to the First Minister’s resignation, UK junior energy minister Andrew Bowie blasted Holyrood’s heel-dragging.

“It’s quite astonishing that in the same week as the Scottish government has had to embarrassingly dump its decarbonisation target, they are also causing havoc with the UK’s overall climate goals by dragging their feet over the Berwick Bank offshore wind farm,” Bowie was quoted as saying.

Scottish Labour leader Anas Sarwar MSP piled in. He demanded ministers “come to Parliament and explain how their startling incompetence let this project, and the jobs it could have brought to the Scottish economy, slip away”.

GMB Scotland secretary Louise Gilmour echoed those concerns. She said the Berwick consent delay would leave people “dismayed, frustrated and angry but not surprised”.

Green policies in flux

Berwick Bank was by no means the main or only factor in the demise of the SNP-Green coalition. Yousaf inherited an unenviable smorgasbord of internal party-political divisions, and the SNP was already stuttering in the polls after 17 years in power.

By his own admission, the outgoing first minister’s unilateral decision to tear up the coalition pact was a grievous miscalculation.

Yet the mega-project’s sclerotic journey through the planning system highlights the hard trade-offs that ministers face in delivering big, impactful offshore renewables projects that can move the needle on politically sensitive climate targets. Moreover, the Berwick project will be sitting in the in-tray of the next first minister, who will be leading an SNP minority government that must seek cross-party support to pass legislation.

There is concern among climate and environmental advocacy groups that the SNP will water down green commitments to win the backing of opposition MSPs. It remains to be seen whether Berwick Bank will eventually secure consent, or become a pawn in the game of Scottish politics. But it is hard to image that energy and climate policies in the round will avoid a period of intense scrutiny and flux as the political landscape shifts in Scotland.

Updated at 8:23 pm with speculation that John Swinney would be likely to take over the position of first minister.