ELD Effectiveness: Scope and Exceptions (BIO Intelligence Service (2014)) Valerie Fogleman Consultant, Stevens & Bolton LLP Professor, Cardiff University School of Law
Issues Scope of strict liability Scope of environmental damage Appropriateness of the “severity / significance thresholds” for land and water damage Application of the permit and state-of-the-art defences Application of the marine and nuclear international Conventions specified in Annexes IV and V of the ELD Possible eligibility and/or need to incorporate other international instruments into Annexes IV and V
Scope of strict liability Options analysed – Unlimited strict liability for all professional activities – Extending the list of activities in Annex III to include, eg, pipeline transport of dangerous substances, mining activities, shale gas exploration and exploitation, and invasive alien species – Leaving the list in Annex III unchanged – Reducing the list in Annex III by indicating which activities should be removed
Scope of strict liability Some MS have extended strict liability to non-Annex III incidents by – Additional activities in Annex III (France – transport of substances by pipeline; Belgium (Federal and Brussels- Capital Region) – transport and other activities involving invasive alien species) – Strict liability for biodiversity damage from non-Annex III activities (Greece) – Strict liability for environmental damage from non-Annex III activities (Hungary, Lithuania, Sweden (with exceptions))
Scope of strict liability The Commission may wish to consider as a priority in a possible future revision of the ELD extending strict liability to non-Annex III activities for biodiversity damage – To assist in halting the loss of biodiversity in the EU due to damage to biodiversity from agriculture, forestry, fisheries, and other non-Annex III activities – To fill a gap in the legislation of most MS because – Few MS impose liability for restoring biodiversity damage – MS that impose liability, limit restoration requirements to an unlawful act and/or following a conviction
Scope of strict liability The Commission may wish to consider as a priority in a possible future revision of the ELD, extending strict liability for non-Annex III activities for all environmental damage – Extension to land and water damage would – Promote the polluter pays principle and internalise the costs of preventing and remediating environmental damage – Simplify and streamline the ELD by, among other things, removing the need for operators (and competent authorities) to determine whether new versions of legislation in Annex III exist and whether an activity is covered by the detailed legislation in Annex III
Scope of strict liability Alternatively, the Commission may wish to consider as a priority in a possible future revision of the ELD, extending the list of Annex III activities to include pipeline transport of dangerous substances, invasive alien species and, perhaps mining activities – Serious environmental damage has been caused by a ruptured pipeline and mining activities since adoption of the ELD – Invasive alien species harm human health, property and biodiversity The study examined shale gas operations but does not make a recommendation because the Commission has already taken action concerning them
Scope of strict liability We do not recommend that the Commission considers in a possible future revision of the ELD, leaving the list in Annex III unchanged or reducing the list because doing so would not further the polluter pays principle, internalise the costs of preventive and remedial actions, or streamline and simplify the ELD
Scope of environmental damage Options analysed – All-inclusive broad scope (general reference to environment, landscape, human health, etc) – Defining environmental sectors/categories of environmental damage which currently fall outside the scope of environmental damage
Scope of environmental damage All-inclusive broad scope (general reference to environment, landscape, human health, etc) – The ELD divides environmental damage into three categories: land, water, and biodiversity damage – Most MS impose liability for the prevention and remediation of the risk of, or actual, damage/harm to human health and the environment (including air) – Most MS (including Austria, Belgium (Regions), Cyprus, Denmark, Estonia, Finland, France, Netherlands, Slovakia, Sweden, UK) impose liability for remediating contaminated land
Scope of environmental damage All-inclusive broad scope (continued) – Some MS (including Hungary, Latvia, Lithuania, Poland, Romania, Slovenia) impose liability for remediating environmental damage in general, which includes land, water, and flora and fauna – Some MS (Ireland, Latvia, Poland, UK) impose liability for restoring flora and fauna dependent on an aquatic environment
Scope of environmental damage All-inclusive broad scope (continued) – Some MS impose liability for restoring protected species and natural habitats damaged by an unlawful act or following a conviction – Only Germany includes liability for complementary remediation, and only for biodiversity damage, not water damage
Scope of environmental damage The Commission may wish to consider as a priority in a possible future revision of the ELD, revising the categorisation of environmental damage in the ELD – Doing so would simplify and streamline the ELD because the categorisation has led to problems in some instances in determining the applicable category of environmental damage – Some Article 18(1) reports include incidents under more than one category – Environmental damage that may fall under more than one category includes damage to wetlands and, perhaps, sediment
Scope of environmental damage The Commission may wish to consider as a priority in a possible future revision of the ELD, including air damage – Although air cannot be remediated in the same way as land and water, measures to prevent pollutants entering the air (such as fire-fighting measures) would prevent harm to human health and may also prevent other environmental damage
Scope of environmental damage We do not recommend that the Commission consider as a priority in a future possible revision of the ELD including flora and fauna that is not protected by nature conservation legislation – Although their inclusion would fill a gap in MS legislation, it would, among other things, be difficult to establish significance thresholds
Scope of environmental damage We do not recommend that the Commission consider as a priority in a possible future revision of the ELD including landscapes, seascapes, cultural buildings or ancient monuments – It would, among other things, be difficult to establish significance thresholds, and no MS has included them in its transposing legislation
Appropriateness of the “severity / significance thresholds” for land and water damage Options analysed – Broadening land damage to cover risks to the environment as well as the “risk of human health being adversely affected” – Setting up criteria or thresholds (limit values) for land damage – Bringing the remediation standard for land damage to a comparable level for biodiversity and water damage – Determining the significance threshold for water damage by setting criteria (similar to criteria in Annex I for biodiversity damage) and/or thresholds (limit values)
Appropriateness of the “severity / significance thresholds” for land and water damage “Land damage” – “any land contamination that creates a significant risk of human health being adversely affected as a result of the direct or indirect introduction, in, on or under land, of substances, preparations, organisms or micro- organisms”
Appropriateness of the “severity / significance thresholds” for land and water damage “Water damage” – “the ecological, chemical or quantitative status or the ecological potential, as defined in [the Water Framework Directive (2000/60/EC)], or the waters concerned …, or – the environmental status of the marine waters concerned, as defined in the [Marine Strategy Framework Directive (2008/56/EC)], in so far as particular aspects of the environmental status of the marine environment are not already addressed through [the Water Framework Directive]”
Appropriateness of the “severity / significance thresholds” for land and water damage The ELD must contain “significance thresholds” for land, water and biodiversity damage because it imposes liability to carry out remedial measures if, and only if, the threshold is exceeded Often lengthy assessments are generally needed to establish whether thresholds for an imminent threat of, and actual, environmental damage have been exceeded, particularly for water and biodiversity damage The ELD defines an “imminent threat” narrowly (“a sufficient likelihood that environmental damage will occur in the near future”) The potential thus arises that operators are not notifying competent authorities of an imminent threat of, or actual, environmental damage, because it is impossible to know whether the damage is subject to the ELD
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