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Environmental liability

Directive 2004/35/EC (The Environmental Liability Directive) seeks to achieve the prevention and remedying of environmental damage - specifically, damage to habitats and species protected by EC law, damage to species or habitats 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.

Latest News

September 2010 – The incident returns 2009 summary for England and Wales can now be found below (Reviewing the regulations).

November 2009 – The Guidance to the Regulations has been updated, and the incident data return which enforcing authorities should use to report on incidents can now be found below (Reviewing the regulations).

Resources

The Environmental Damage Regulations, which transpose the requirements of the Environmental Liability Directive into national law in England, and came into force on 1 March 2009.  The Regulations, along with the Guidance Document, a Short Guide, the Impact Assessment, a note on Transposition and a FAQ can be found by clicking on the links below:

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 considered them carefully when finalising the regulations. 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 have been made by England, Wales, Scotland and Northern Ireland. Scotland and Northern Ireland consulted separately on their 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 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 still apply, and to the extent that they impose additional obligations to those in these Regulations, still need to be complied with.

Reviewing the Regulations

The Environmental Liability Directive requires member states to report to the European Commission on the experience gained in the application of the Directive by 30th April 2013. The Government has proposed to use this opportunity to review the application of the regulations to establish whether they are working effectively and to see whether any amendments are appropriate. Authorities therefore need to report details of all qualifying incidents to the Government using the incident data return below. Instructions are on the first worksheet.

Contacts

Environmental Liability Branch
Department of Environment, Food and Rural Affairs
Area 5A, Ergon House
Horseferry Road
London, SW1P 2AL

Email: ELD@defra.gsi.gov.uk

See also

Page last modified: 22 September 2010