Environmental Liability - Directive 2004/35/EC
The Directive is likely to be transposed by December 2008 and seeks to achieve the prevention and remedying of environmental damage - specifically, damage to habitats and species protected by EC law, and to species or habitat on a site of special scientific interest for which the site has been notified, damage to water resources, and land contamination which presents a threat to human health. It reinforces the “polluter pays” principle - making operators financially liable for threats of or actual damage.
Consultation on draft regulations and guidance
A first public consultation was undertaken on the options for implementing the directive in England, Wales and Northern Ireland. A second public consultation was then undertaken on draft regulations for England and separate draft regulations for Wales, and guidance, closing on 27 May 2008 . There were 67 responses focusing on the detail of the regulations and the government is considering them carefully with a view to making regulations by the end of the year. A summary of the responses is below. The regulations impose obligations on operators of activities which cause or threaten to cause environmental damage. Environmental damage is defined in the Regulations, and generally includes only the more serious damage to certain species and habitats, water and land.
Environmental protection is a devolved competence. Separate regulations will be made by England, Wales, Scotland and Northern Ireland. Scotland and Northern Ireland are consulting separately on their draft regulations.
Key features
Scope - the Directive does not cover all types of damage to the environment. It only covers ‘environmental damage’ which is one or more of: ‘damage to protected species and natural habitats or in a site of special scientific interest’, ‘damage to water’ and ‘land damage’
Introduces two types of liability: fault-based liability in respect of environmental damage to protected species and natural habitats from all other occupational activities and strict liability in respect of environmental damage, caused by a specified range of 'occupational activities' (described in Annex III of the ELD)
Reporting environmental damage - operators are required to take immediate steps to prevent damage or further damage and to notify the enforcing authority.
Role of enforcing authority - the authority must establish if it is ‘environmental damage’ and identify a responsible operator
Existing liability regimes in the UK
A number of legal systems already exist in the United Kingdom which provide for the remediation of environmental damage. Under these regimes, action is taken in the public interest by public authorities such as local authorities or the Environment Agency. They can require damage to be put right by those responsible for it, or put the damage right themselves and then recover the costs afterwards from those responsible.
The Regulations will supplement existing environmental protection legislation such as the Environmental Protection Act 1990, the Water Resources Act 1991 or the Wildlife and Countryside Act 1981 and the Control of Major Accident Hazards Regulations 1999. Those pieces of legislation will still apply, and to the extent that they impose additional obligations to those in these Regulations, will still need to be complied with.
Contacts
Environmental Liability Branch
Department of Environment, Food and Rural Affairs
Area 5B, Ergon House
Horseferry Road
London, SW1P 2AL
Email: ELD@defra.gsi.gov.uk
See also
Page last modified: 14 August 2008