Legislation Update

by Kevin Considine, Environmental Policy Advisor, EEF

> find out more about Kevin Considine

The Environmental Liability Directive (ELD) is aimed at preventing significant environmental damage by forcing industrial polluters (“operators”) to pay prevention and remediation costs.

The Directive is described as one of the most controversial, and potentially far-reaching, pieces of environmental legislation negotiated by the EU to date. It came into force in April 2004 and should have been transposed and implemented into national law by May 2007. However delays in transposition mean that a later implementation date is necessary for the UK.

DEFRA published the first of two proposed public ELD consultations - 'Consultation on options for implementing the Environmental Liability Directive' back in November 2006. In it, the government adhered to concerns over 'gold-plating' and decided, for the options with potentially the largest impact, not to go beyond the minimum transposition requirements of the Directive.

There were those that argued that the ELD was an example where government should go beyond minimum requirements in the interests of better coherence with existing domestic environmental protection legislation. Under pressure from Non-Governmental Organisations (NGOs) and the House of Commons’ Environmental Food & Rural Affairs (EFRA) committee, government set about revaluating whether to go beyond the minimum requirements of the directive.

Thankfully, after a year of uncertainty on how the Environmental Liability Directive would be implemented in England and Wales, government published draft regulations and guidance (Feb 2008).

The Government has decided to stay close to its original position and not go beyond the minimum requirements of the Directive.  The only significant change away from this intention is the decision to extend the scope of the species and habitats protected under the Regulations to include all national Sites of Special Scientific Interest (SSSIs).

The Government also decided that there are no exceptional circumstances which justify an extension of strict liability to damage caused by non-annex III activities.  These activities will be subject to fault based liability. The Government has also decided to implement all the defences in article 8 of the directive (i.e. damage was caused by a third party and occurred despite the fact that appropriate safety measures were in place; and where the operator was complying with an instruction from a public authority), including the discretionary ‘permit’ and ‘state of the art’ defences in full. 

Following the second consultation there will be a period to analyse responses. The government hopes to make the final regulations in about December 2008.