Environmental Liability

Introduction

This site provides information about developments towards a Directive on Environmental Liability, and a brief outline of existing UK liability regimes. It covers:

• The latest position

• Background on the developments towards a Directive

• The Council Negotiations - main issues

• Consideration by the European Parliament

• The UK's response at the various stages, and

• Résumé of the existing UK liability regimes

Links to other websites with related material are provided where necessary.

Latest Position

1. The Council of the European Union, following 18 months of negotiations, reached framework political agreement on a proposal for a Directive on preventing and remedying environmental damage at its meeting on 13 June 2003.

2. Following resolution of outstanding technical issues that had been referred back to Coreper, a common position was reached in September 2003. The common position is currently subject to European Parliament's 2nd reading expected to be completed in December 2003. Following this and any agreement between the Council and the Parliament on the details, the Directive could be adopted by April 2004. Member States would then have until 2007 to implement.

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Background

3. The European Commission adopted a proposal for a Directive in January 2002. The text of the draft Directive can be found at the EC website (see link at end of this section).

4. 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.

5. 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.

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The Council Negotiations

6. The negotiations in the Council of Ministers (1st reading) which led to framework political agreement in June 2003, took place under three Presidencies: the Spanish Presidency in the first half of 2002, the Danish Presidency in the second half of 2002, and the Greek Presidency in the first half of 2003.

7. The main issues which emerged in the course of the negotiations were:

• Financial security - whether or not this should be compulsory, and what form it should take

• Permit defence/exception - whether or not environmental damage which arises from activities operating within the terms of authorisations or permits should fall outside the scope of the Directive. To a lesser extent, whether damage arising from activities whose emissions where not considered harmful according to the best scientific and technical knowledge at the time they took place should similarly fall outside the scope

• Subsidiary responsibility - whether or not the state should automatically be responsible for remediating environmental damage where the operator could not be identified, was insolvent or not liable

• Nuclear and shipping - whether or not environmental damage falling within the scope of the international conventions covering nuclear and shipping activities should be covered by the Directive

8. The common position adopted by the European Council provided:

• Financial security - Member State discretion

• Permit exception - Member State discretion

• Subsidiary responsibility - Member State discretion

• Nuclear and shipping damage - exclusion from scope of Directive

The public register of Council documents contains the common position text.

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The European Parliament

9. This proposed Directive is subject to the co-decision procedure. The European Parliament therefore has a key role. In the Parliament, the dossier was subject to an unusual procedure known as the "Enhanced Hughes" procedure whereby two Committees shared the major interest. The Committee on Legal Affairs and the Internal Market was the lead committee but the Committee on the Environment, Public Health and Consumer Policy was entitled to consider the dossier and submit its opinion which the lead committee needed to take account of. Two other committees - the Economic and Monetary Affairs Committee, and the Industry Committee - also offered opinions. Details of the various committees can be found at the links given below. The Parliament first reading was held in May 2003. Following the adoption of a common position in September 2003 by the Council of Ministers, the Parliament is expected to undertake its second reading in December.

• http://www.europarl.eu.int/home/default_en.htm

• http://www.europarl.eu.int/committees/juri_home.htm

• http://www.europarl.eu.int/committees/envi_home.htm

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The UK's response to the White Paper, Working Paper and Proposed Directive

10. The Commission issued its White Paper (see link at end of paragraph 5, above) on the scope of a Directive in February 2000. The Government undertook a public consultation to inform its response to the White Paper. That consultation, together with a summary of the responses to it, and the Government's formal response in September 2000 to the Commission can be found through the link given at the end of this section. The Government's response was essentially cautious, drawing attention to potential pitfalls and difficulties. The European Commission's Environment Directorate-General subsequently issued a Working Paper on 25 July 2001 on the approach they were proposing to take in the Directive. This can be found at the link given at the end of paragraph 5. The UK's response, which broadly welcomed the approach (different from that suggested by the White Paper), can be found through the link given below.

11. The European Commission adopted a draft Directive on in January 2002. The Department (Defra) undertook a public consultation between 12 April and 24 May. A Regulatory Impact Assessment formed part of the consultation. The consultation package, including the Regulatory Impact Assessment, and the summary of the responses is available through the link given at the end of this section.

12. The Department also prepared an Explanatory Memorandum for the purposes of Parliamentary Scrutiny of the Government's policy on the proposed Directive. Reports published by the European Scrutiny Committee of the House of Commons, and the House of Lords European Union Select Committee following their consideration of the Directive can be found through the link given below.

Links

• UK Government consultation on the White Paper and summary of responses received. UK Government formal response to the White Paper in September 2000.

• UK Government response to Working Paper

• Defra public consultation on European Commission draft Directive and overview of responses

• Initial partial Regulatory Impact Assessment

• Extended partial Regulatory Impact Assessment

• UK Parliamentary Committees

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Existing liability regimes in the UK

13. A number of legal systems already exist in the United Kingdom which provide for environmental liability and the remediation of environmental damage. An overview of these is available via the link below. 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.

For further information on existing UK regimes, please refer to the Environmental Protection Index of the Defra website.

Links

• Overview of existing UK liability regimes (20 KB)

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Further Advice and Information

14. For further advice and information on environmental liability, please contact:

Environmental Liability Branch
Europe Environment Division
5/E3 Ashdown House
123 Victoria Street
London
SW1E 6DE
Tel: 020 7082 8550
Fax: 020 7082 8567
Email: landquality.enquiries@defra.gsi.gov.uk

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