June 2004
EU Environmental Liability Directive - Are You Ready?
After 15 years of negotiations, the first European Directive specifically based on the 'polluter pays' principle has been agreed between the European Parliament and the European Council.
The Environmental Liability Directive aims to form the basis of a European-wide consistent and systematic approach to the legislative development of liability for environmental damage, with the intention of preventing and remedying future environmental damage and holding those who cause it responsible.
The agreement will be formally adopted in the near future. Following this, member states will then have three years to implement the directive.
Within the Directive, environmental damage includes damage to animals, plants, natural habitats, water resources and land contamination which causes significant harm to human health. Operators of risky, or potentially risky activities (including releasing heavy metals into water or air, producing dangerous chemicals, landfill sites and incineration plants) will be considered potentially liable parties.
The key points of the Directive include:
- Public interest groups, such as non-governmental organisations, will be allowed to require public authorities to act if this is necessary.
- Member States are required to encourage development and use of security instruments such as environmental liability insurance (the use of this is currently voluntary under the Directive, but will be reviewed 6 years after the Directive is adopted).
- If the Competent Authority (such as local government or the Environment Agency) has to act in place of an operator to prevent or remediate environmental damage, the authority should recoup the costs incurred from the operator within a reasonable time frame.
- Operators should ultimately bear the cost of assessing environmental damage and assessment of an imminent threat of such damage occurring.
- The use of Permit Defence by operators (the defence that activities were compliant with the terms of the appropriate permit) is voluntary and shall be decided upon by member states. This means that if an operator has been found to have caused environmental damage whilst operating within the requirements of the relevant permit the operator could still be liable for a proportion of the clean-up costs.
In practice this Directive should level the playing field for companies within Europe with regards to emphasis on environmental protection and liability. The Directive places greater financial responsibility at the door of operators of potentially polluting activities.
Do you know if your organisation complies with applicable legislation? It is worth reviewing your organisations’ current compliance situation and current liability. A compliance review from Pro Enviro will highlight areas of non-compliance and form a base upon which changes can be made. Pro Enviro can help you plan your strategy and provide realistic advice to minimise your liabilities. Please contact us if you would like further information.
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