Environmental Liability, whos liable for our libel?

The "Polluter Pays" is an underlying Principle of macro-environmental management. Fine words and coarse application? Does mature reflection suggest that the Principle is mere posturing? Or should we be re-assured that the Principle has a secure legislative voice?
Rory Macphee 07

The Environmental Liability Directive
The European Commission adopted a proposal for a Directive in January 2002.

1.The proposed Directive is aimed at the prevention and remedying of environmental damage - specifically, damage to habitats and species protected by EC law, damage to water resources, and land contamination which presents a threat to human health. It would apply only to damage from incidents occurring after it comes into force. The proposal, which does not cover "traditional damage" (that is, economic loss, personal injury and property damage), has the following characteristics:

• It is based on the polluter pays principle, i.e. polluters should bear the cost of remediating the damage they cause to the environment, or of measures to prevent imminent threat of damage.
• Polluters would meet their liability by remediating the damaged environment directly, or by taking measures to prevent imminent damage, or by reimbursing competent authorities who, in default, remediate the damage or take action to prevent damage.
• Competent authorities would be responsible for enforcing the regime in the public interest, including determining remediation standards, or taking action to remediate or prevent damage and recover the costs from the operator.
• Strict liability would apply in respect of damage to land, water and biodiversity from activities regulated by specified EU legislation; fault-based liability would apply in respect of biodiversity damage from any other activity.
• defences would exist for damage caused by an act of armed conflict, natural phenomenon, or from compliance with a permit, and emissions which at the time they were authorised were not considered to be harmful according to the best available scientific and technical knowledge.
• Where an operator is not liable, the Member State would have subsidiary responsibility for remediating that damage.
• Individuals and others who may be directly affected by actual or possible damage, and qualified entities (non-Governmental Organisations) may request action by a competent authority, and seek judicial review of the authority's action or inaction.

The proposed Directive was preceded by two consultation documents. The first was a White Paper, issued in February 2000, by the European Commission - see the Commission website for details. The second was a Working Paper, issued in July 2001, by the Commission's Environment Directorate General - see the DG Environment website for details.

Exerpt taken from DEFRA:http://www.defra.gov.uk/environment/liability/index.htm

As with all things we should go to the source, which is the Directive itself. See http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:143:0056:0075:EN:PDF

1. Environmental damage :What is environmental damage?

‘damage' means a measurable adverse change in a natural
resource or measurable impairment of a natural resource
service which may occur directly or indirectly.

2. protected species

‘ protected species and natural habitats' means:

(a) the species mentioned in Article 4(2) of Directive
79/409/EEC or listed in Annex I thereto or listed in
Annexes II and IV to Directive 92/43/EEC;

(b) the habitats of species mentioned in Article 4(2) of
Directive 79/409/EEC or listed in Annex I thereto or
listed in Annex II to Directive 92/43/EEC, and the
natural habitats listed in Annex I to Directive
92/43/EEC and the breeding sites or resting places of
the species listed in Annex IV to Directive 92/43/EEC;
and

(c) where a Member State so determines, any habitat or
species, not listed in those Annexes which the Member
State designates for equivalent purposes as those laid
down in these two Directives.

3. Conservation status

in respect of a natural habitat, the sum of the
influences acting on a natural habitat and its typical
species that may affect its long-term natural
distribution, structure and functions as well as the
long-term survival of its typical species within, as the
case may be, the European territory of the Member
States to which the Treaty applies or the territory of a
Member State or the natural range of that habitat.

4. Waters

‘waters' mean all waters covered by Directive 2000/60/EC

5. preventive measures

‘preventive measures' means any measures taken in
response to an event, act or omission that has created an
imminent threat of environmental damage, with a view to
preventing or minimising that damage.

6. remedial measures

‘remedial measures' means any action, or combination of
actions, including mitigating or interim measures to
restore, rehabilitate or replace damaged natural resources
and/or impaired services, or to provide an equivalent
alternative to those resources or services as foreseen in
Annex II of the Environmental Liability Directive.

7. baseline condition

‘baseline condition' means the condition at the time of the
damage of the natural resources and services that would
have existed had the environmental damage not occurred,
estimated on the basis of the best information available.