Second ELD Stakeholder Conference Brussels, 11 June 2013 ELD Effectiveness Breakout Group Valerie Fogleman Barbara Goldsmith Matthias Sauer (rapporteur)
Theme B Significance thresholds for biodiversity, water and land damage – Transposition into Member State (MS) law and harmonisation with existing legislation Strict versus fault-based liability – Transposition into MS law and harmonisation with existing legislation
Significance threshold for biodiversity damage “any damage that has significant adverse effects on reaching or maintaining the favourable conservation status of …habitats or species [protected by Birds and Habitats Directives]. The significance of such effects is to be assessed with reference to the baseline condition, taking account of the criteria set out in Annex I” – Meaning of word “significant” is, thus, derived from the application of Annex I to the above definition of biodiversity damage – “Significance” threshold is not a “severity” threshold; it is much lower
Significance threshold for biodiversity damage Annex I criteria Review and analyse measurable data, including the role of the species or habitat in relation to its conservation, and its capacity to recover and propagate so as to determine whether the species or habitat has suffered damage that adversely affects its ability to reach or maintain its favourable conservation status in (1) the European territory of the MS, (2) the European territory of an individual MS, and (3) its natural range – proven effect on human health is always significant damage – negative variations on species or habitat are not significant damage
Significance threshold for biodiversity damage Existing national legislation – Mostly non-existent or weak – Legislation transposing the ELD is the only legislation imposing liability for preventing and remediating biodiversity damage in most MS – Legislation in few MS with legislation for biodiversity damage does not include complementary and compensatory remediation with exception of Germany (complementary remediation)
Significance threshold for biodiversity damage Number of biodiversity damage incidents – Denmark: none – France: none (threshold met in Coussouls de Crau incident but non- Annex III activity) – Germany: more than 20; may be many more – Hungary: one (Kolontar) – Ireland: none – Poland: many (more than water; less than land) – Spain: a small number – UK: 4 imminent threats; 2 damage to nationally protected biodiversity But many more incidents of biodiversity damage in EU
Significance threshold for water damage “any damage that significantly adversely affects the ecological, chemical and/or quantitative status and/or ecological potential, as defined in [the Water Framework Directive (2000/60/EC)], of the waters concerned” – Is the threshold: damage to (1) all “waters” under the Water Framework Directive; or (2) “water bodies”? – definition includes term “damage … of the waters concerned”, not damage to water bodies – damage must “significantly adversely affect[] the ecological, chemical and/or quantitative status and/or ecological potential … of the waters concerned”, which could limit it to water bodies
Significance threshold for water damage New definition of “water damage” when Directive on offshore oil and gas prospection, exploration and production is adopted “any damage that significantly adversely affects: (i) the ecological, chemical or quantitative status or the ecological potential, as defined in [the Water Framework Directive (2000/60/EC)], of the waters concerned … (ii) the environmental status of the marine waters concerned, as defined in [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 WFD]”
Significance threshold for water damage Existing national legislation – legislation imposing liability for preventing and remediating damage to surface, coastal, transitional and ground water exists in most MS to greater or lesser degree – usually has a lower threshold – usually has no defences or exceptions – but does not include complementary or compensatory damage
Significance threshold for water damage Number of water damage incidents under the ELD – Denmark: none – France: none – Germany: some but number not certain – Hungary: one (Kolontar) – Ireland: none – Poland: many – Spain: limited number if any – UK: one
Significance threshold for water damage But many more serious water pollution incidents in EU Eg, Belgium 4 May 2013: train carrying acrylonitrile derailed near Gent one person killed and 49 injured acrylonitrile entered river, wells and sewage systems England and Wales 2009: 483 serious water pollution incidents 2010: 408 serious water pollution incidents (UK Department for Environment, Food and Rural Affairs, Environmental Statistics – Key Facts (January 2013))
Significance threshold for land “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” – Existing national legislation – most MS have legislation imposing liability for preventing and remediating contaminated land – dedicated regimes or based on waste legislation – usually has no defences or exceptions – often targeted at contamination from historic, not future, incidents – may be more stringent than ELD (eg, The Netherlands)
Significance threshold for land Number of land damage incidents – Denmark: none – France: none – Germany: – Hungary: one (Kolontar) – Ireland: none – Poland: many (most incidents are land damage) – Spain: at least two, probably more – UK: 2 imminent threats; 10 land damage
Significance threshold for land But many incidents causing serious damage to land in EU Eg, England and Wales 2009: 206 serious incidents affecting land 2010, 168 serious incidents affecting land (UK Department for Environment, Food and Rural Affairs, Environmental Statistics – Key Facts (January 2013))
Strict versus fault-based liability Some MS transposed ELD by – extending strict liability to specified non-Annex III activities (ad hoc extension) – imposing strict liability for biodiversity damage for non- Annex III activities (blanket extension) – imposing strict liability for preventive and emergency remedial actions, but not remedial measures, for non- Annex III activities (hybrid extension)
Strict versus fault-based liability Belgium (federal) (ad hoc extension) – Strict liability for transportation of alien plant and animal species France (ad hoc extension) – Strict liability for transportation of oil in pipelines Greece, Hungary, Sweden (blanket extension; hybrid for Sweden) – Strict liability for non-Annex III activities – (Sweden: fault-based liability retained for farmers, foresters, fishermen, reindeer herders and road keepers) Spain (hybrid extension) – Strict liability for preventive measures and emergency remedial actions for non-Annex III activities (fault-based liability retained for remedial measures)
Exceptions Act of armed conflict, hostilities, civil war or insurrection Natural phenomenon of exceptional, inevitable and irresistible character Marine conventions in Annex IV Nuclear conventions in Annex V Diffuse pollution, where not possible to establish causal link between damage and activities of individual operators Activities, main purpose of which is to serve national defence or international security Activities, sole purpose of which is to protect from natural disasters – All exceptions not adopted by all MS; some exceptions changed
Theme B - leading question Do you see a need for further EU harmonisation of the significance threshold and is the scope of strict liability (Annex III activities) and fault-based liability (non- Annex III activities) and the ELD scope (as shaped by the many exceptions) about right?
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