Lords inquiry into EC proposals on environmental liability

An inquiry into the European Commission's Green Paper on remedies for environmental damage is to be held this autumn by the House of Lords Select Committee on the European Communities.

Issued in March, the Green Paper was the Commission's first formal step towards introducing a statutory environmental liability regime. Its tentative conclusion was that the way forward for the Community might be a system of strict liability coupled with a joint compensation fund or funds to guarantee the availability of compensation where a polluter could not be found or could not pay (ENDS Report 218, p 38 ).

The Lords Committee has already had one bite at the issue two years ago and ended up giving strong backing to the idea of a strict liability regime at EC level. Its report recommended that it should be possible to make civil liability claims for damage to the "unowned" environment as well as to persons or property, while urging safeguards for business such as the availability of a state-of-the-art defence in liability proceedings, a financial ceiling on compensation payments, and restrictions on the retrospective application of liability claims (ENDS Report 190, pp 27-29).

The Committee may not come to the same conclusions this time because its membership has changed and it has a new Chairman, Lord Lewis. The Chairman in 1991 was Lord Nathan, a lawyer who has long been an advocate of the extension of civil liability to damage to the "unowned" environment. The Committee's expert adviser, as in 1991, is Stephen Tromans, a leading environmental lawyer with the law firm Simmons & Simmons.

The new Lords inquiry will run in parallel with consultation exercises organised by the Commission, which has promised public hearings into the Green Paper in association with the European Parliament, and is sponsoring three liability seminars in London, Paris and Frankfurt towards the end of the year.

Among the issues on which the Committee is keen to hear evidence are:

  • Should there be a strict liability regime for environmental damage when the general trend in UK law has been towards a fault-based system?

  • Should the scope of a strict liability system be defined in terms of specified activities or substances, and if so by what criteria should these be defined?

  • What defences, if any, should be available in a strict liability system?

  • What defences or exceptions should be available in the case of damage caused by historic activities, either by a defendant or other persons?

  • How should "damage", particularly to the "unowned" environment, be defined?

  • How should compensation costs be calculated and allocated where damage cannot be quantified in cash terms?

  • What should be the role of insurance in ensuring the availability of compensation?

    The inquiry may provide the Government with an opportunity to spell out its position on environmental liability more coherently than it has to date. In particular, it may flush out the reasons why it has declined to sign the new Council of Europe Convention on civil liability for environmental damage caused by dangerous activities (ENDS Report 209, pp 33-35 ).

    The Government may also have got far enough with the inter-departmental inquiry launched in March after it decided not to proceed with the introduction of contaminated land registers (ENDS Report 218, pp 25-27 ) to give an initial view on where it intends to take its contaminated land policy.

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