DEFRA consults on environmental liability

The Environment Department (DEFRA) is consulting on draft regulations that will transpose the EU environmental liability Directive into English and Welsh law

The 2004 Directive applies the ‘polluter pays principle’ to land, water and biodiversity and was meant to be transposed by April 2007, but DEFRA has had trouble integrating it with existing laws. It now expects the final regulations to be ready by the end of the year.

The intention is to prevent and remediate environmental damage by making organisations threatening to cause environmental harm, or actually doing so, responsible for notifying the regulatory authorities and financially liable for any emergency or remediation work. Existing UK pollution regimes such as the Environmental Protection Act 1990 and Water Resources Act 1991 already provide mechanisms for extracting remediation costs following environmental harm, but apply different thresholds.

An initial consultation at the end of 2006 attracted criticisms from environmental groups and the House of Commons Environment Committee for its minimal approach (ENDS Report 383, pp 41-42). They accused the government of pandering to industrial groups that were accusing it of “gold-plating” EU Directives (ENDS Report 390, p 51).

The new consultation acknowledges these concerns but says the government will stick to its bare-bones approach with anything that goes beyond the “minimum requirements of the Directive” considered only in “exceptional circumstances”.

This leaves in place two contentious defences which exempt operators from remediation costs if they were operating within the terms of a permit or if the environmental harm could not have been foreseen by the scientific understanding of the time. The only exception is for genetically-modified organisms released in Wales.<\p>

The Welsh Assembly Government is also considering extending responsibility for GMOs to the firms that developed them. Anti-GM campaigners would like England to take the same approach.

DEFRA has also decided all environmental liability should expire after 30 years and that it will stick with the Directive’s weaker “fault-based liability” for most activities, rather than imposing “strict liability”.

It has, however, made one significant concession. The list of conservation areas to which the regulations apply has been extended since the last consultation to include Sites of Special Scientific Interest, as well as the existing EU-level Natura 2000 sites.

The consultation ends on 27 May and includes a guidance document that will accompany the regulations.

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