Justice and Environment Justice and Environment Between the Limits of Environmental Damage - comparative analysis on national damage definitons and severity thresholds ELD Government Experts Meeting Brussels, 3 rd February 2014 Birgit Schmidhuber
Justice and Environment Justice and Environment Scope of the Analysis • Geographical coverage: Austria, Croatia, Estonia, Germany, Hungary, Romania, Spain • Assess differences in the notion of damage in a cross-country approach • Assess the notions of damage under ELD and existing national regimes • Identify weaknesses/uncertainties in ELD damage definitions
Justice and Environment Justice and Environment Biodiversity Damages • Transposed into national legislation without mentionable adaption of damage definitions and severity thresholds • Broad notion and unclear concepts complicate interpretation and practical application • No clear notion of which national liability regimes (if existent) are in competition or to be complementarily applied when it comes to biodiversity damages • Interpretation and consequently application seems to be easier in countries where the ELD was transposed by amending the pre-existing national systems (e.g. Hungary)
Justice and Environment Justice and Environment Biodiversity Damages • Legal experts state that in order to be effective the ELD system shall not derogate other liability provisions (cp. German subsidiarity clause) • Inclusion of national biodiversity damages broadly applied (except most parts of Austria and Germany) • National liability systems embedded in national nature protection regime: Depart from broader notion but indeed a rather different understanding of biodiversity damage than ELD does; Lack valuable components provided for by the ELD: e.g. no accidents covered, no concept of complementary and compensatory remediation, no PP and A2J
Justice and Environment Justice and Environment Water Damages • Definition of “waters” in transposing legislation is quite uniform • ELD transposing legislation and national liability regimes for water damages emanate from the same concept of “waters” – WFD and Water Acts • Due to lack of adequate case law and respective case databases the significance threshold for water damages and its application seems very unclear • No harmonized approach how to interpret the significance thresholds for water damages across the EU: Estonia would say only a change in the classification of waters fulfils the significance threshold, in Austria the threshold would be interpreted to be lower
Justice and Environment Justice and Environment Water Damages • Not justifiable that slow and gradual deteriorations do not fulfil criteria for environmental damage – would not be in conformity with the ELD if at some point the threshold is reached or even exceeded • Hungary: criteria for the evaluation of a “significant adverse effect” on surface waters and separately for groundwater • Advisable to have a set of clear criteria for the assessment of the significance of water damages on EU level embedded in the ELD • National liability regimes provide for no or very low thresholds – integration of systems and low threshold criteria • Protection of “all waters” or only “water bodies”
Justice and Environment Justice and Environment Land Damages • ELD significance threshold for land damages mostly undercut by transposing legislation (Germany, Hungary, Croatia, AUT – Carinthia) or by some national liability provisions on soil damages (Austria, Estonia, Spain) • National systems not very elaborated – missing EU legal framework on soil protection does not improve this situation • Concept of “land” and “soil” is confusing, clear regulation on protection of soil missing • Concept of environmental media itself (land/soil) is to be adapted and clarified
Justice and Environment Justice and Environment Land Damages • ELD: central element is health risk and not deterioration of a natural resource • Criterion does not comply with the environmental damage concept • Integrated approach for land damages – either on EU level or deduce from national liability regimes on soil damages and their practice to be integrated into the ELD regime – could lead to high protection standards and unified perception of land damages all over the EU • Clear criteria or limit values • Polish model
Justice and Environment Justice and Environment Interaction of Liability Systems • Could be a major reason for good/bad functioning of ELD system in the respective states – Germany – subsidiarity clause – Estonia – ELA = lex specialis – Austria – further obligations remain unaffected?! – shall not derogate further liability provisions; PM: complementary and strengthening element, shall not be applied in an isolated way; – Hungary – integration of the ELD led to a clear legal framework; higher thresholds • Art 16 ELD: does not clearly regulate interaction of regimes – preferably this could be clarified to have legal certainty and respective guidelines not only for the application but also the transposition of the ELD for the MS
Justice and Environment Justice and Environment Sources of Information • Justice & Environment, Between the Limits of Environmental Damage. Brno 2013: http://www.justiceandenvironment.org/_files/file/ 2013/ELD%20study%20on%20damage%202013. pdf • BIOIS ELD Implementation Studies 2013: http://eldimplement.biois.com/home
Justice and Environment Justice and Environment Thank you for your attention! Birgit Schmidhuber ÖKOBÜRO/Justice & Environment Neustiftgasse 36/3a A -1070 Vienna Tel.: +43-1/524 93 77-14 birgit.schmidhuber@oekobuero.at www.justiceandenvironment.org
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