Environmental liability plans remain minimalist

The Environment Department (DEFRA) is consulting on draft regulations that would transpose the EU environmental liability Directive into English and Welsh law. It has retained the bare-bones approach that angered environmentalists during the last round of consultation.

The government has resisted calls for "gold-plating" in its transposition of the EU environmental liability Directive. The draft regulations transposing the Directive, released for consultation at the end of February, only make one concession to environmentalists and MPs who called on the government to go further.

The 2004 Directive applies the ‘polluter pays principle’ to land, water and biodiversity and was meant to be transposed by April 2007, but the Environment Department (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 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.

There are more than 30,000 cases of environmental damage in England and Wales each year. The regulations are expected to cover less than 1% of these at an annual cost of around £17 million. The most heavily affected sector will be agriculture, followed by waste, water and manufacturing. The annual environmental benefits of the new regime are expected to be around £21 million.

An initial consultation at the end of 2006 was broadly welcomed by industry but attracted criticisms from environmental groups and the House of Commons Environment Committee for its minimalist approach (ENDS Report 383, pp 41-42 ). They accused the government of pandering to industry groups 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".

The one concession is on the list of conservation areas where the regulations apply. This has been extended since the last consultation to include UK-specific Sites of Special Scientific Interest, as well as the existing EU-level Natura 2000 sites.

But the latest consultation leaves in place two contentious defences that 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. DEFRA says these are justified because permits are usually granted after "careful consideration of environmental conditions". It points out that they do not apply in emergencies, but says to remove them entirely would increase uncertainty for businesses and have a detrimental effect on insurance provision.

The only exception is for genetically modified organisms released in Wales where these defences will not apply. 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 to stick with the Directive’s weaker "fault-based liability" for some activities rather than imposing "strict liability". This is justified as existing legislation will continue to apply strict liability for many activities, it says.

The regulation will be enforced by several different authorities: the Environment Agency, the Countryside Council for Wales, Natural England, local authorities and, for damage at sea, English and Welsh ministers.

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

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