Environmental Liability - Directive 2004/35/EC

Environmental Liability - Directive 2004/35/EC

The Environmental Liability Directive (Environmental Liability Directive 2004/35/ EC) (ELD) is a piece of European legislation that will bring the principle of ’the polluter pays‘ into legal force.

It will force polluters to prevent and repair environmental damage caused by their activities.

If you or your business carry out any activity that causes damage to land, water or biodiversity, you will have to remedy the damage. You will no longer have to be prosecuted first. If there is a risk of damage from your business activities, you must prevent such damage occurring.

To give effect to the Directive, the governments in England and Wales, Northern Ireland and Scotland will have to bring into force their own regulations. These regulations will not apply to damage that has occurred before they come into force.

Who will the proposals affect?
• private businesses
• public sector enterprises - schools, hospitals and government departments or agencies
• voluntary or privately organised activities.

Why are the proposals needed?
Prosecutions against polluters can take a long time to conclude. During this time, it can become more difficult and costly to repair the damage the pollution causes. The Directive and the regulations that are needed to implement it will make it quicker and less expensive to prevent or repair environmental damage.

The regulations will supplement existing legislation on remedying damage to water, biodiversity and land and protecting the environment.

When will the regulation come into force?

England
The government in England intends to make final regulations, called the Environmental Damage (Prevention and Remediation) Regulations 2008, in early 2009. They are expected to come into force in the spring.

Wales
The Welsh Assembly Government will be making broadly similar regulations for Wales, expected to come into force a month or two after the regulations in England.

Northern Ireland
The regulations will be called the Environmental Liability (Prevention and Remediation) (Northern Ireland) Regulations 2009, and are expected to come into operation in summer/autumn 2009. Note: These new regulations will also bring land contamination law into force for the first time in Northern Ireland.

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'

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. In England and Wales, the ELD competent authority will be the Environment Agency. In Scotland, the main ELD competent authorities will be Scottish Natural Heritage (SNH) for protected species or natural habitats other than in the marine environment and SEPA for water (up to three nautical miles offshore) and land within permitted sites; Scottish Ministers for protected species or natural habitats in the marine environment.


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.

Other information

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 .

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.


http://www.defra.gov.uk/environment/liability/index.htm

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