Originally published in BLG's Environment and Health & Safety Digest, Autumn 2007

The 30 April 2007 deadline for the transposition of the ELD has long since passed and no implementing regulations are in place.  What is happening?

The ELD was adopted in April 2004 having started life back in 1993 with the production by the European Commission of a Green Paper on Remedying Environmental Damage.

The ELD seeks to harmonise environmental liability law across the EU.  In short:

  • It aims to establish a framework for the prevention and remediation of damage to protected species and natural habitats, water and land. 

  • It applies to the operators of "occupational activities", which is defined very widely.  For some operators, liability is strict.  For others, it is fault based.

  • Where land has been damaged, it must be remediated so as to remove the risk of human health being adversely affected. 

  • Where protected species, natural habitats or water have been damaged, they must be returned to their baseline condition.  The operator is required to undertake additional "complementary" remediation where they cannot be fully returned to their baseline condition and/or "compensatory" remediation in the period during which recovery is taking place. 

The first of the Department for Environment, Food and Rural Affairs' ("Defra") two scheduled public consultations on transposition closed over six months ago. 

The first consultation set out a series of implementation options together with some firm implementation proposals for comment.   It appeared from the consultation text that where existing domestic law is stricter than the ELD, Defra is proposing to maintain the existing law.  Where it is less strict, Defra is proposing to tighten it up but only to the extent necessary to achieve minimum compliance with the ELD (unless there are exceptional reasons for tightening it further). 

For example, the ELD allows any Member State that so wishes to introduce defences to liability where an operator can demonstrate that it was not negligent and the damage was caused by an emission either that was expressly authorised by a permit or that the prevailing state of knowledge did not think likely to cause a problem.  Not introducing these defences would tighten the liability regime considerably.  However, Defra is proposing to introduce both defences in respect of those elements of the ELD's requirements that are additional to those addressed by existing environmental legislation.

It has been known for some time that implementation of the ELD would not be a straightforward matter.  Defra has been presented with a difficult job, having to weave the ELD's requirements into the existing complex network of law relating to environmental liability in a way that is acceptable to environmental groups, business, private individuals and regulators like the Environment Agency. 

The second consultation is scheduled for Autumn 2007.  It will focus on the proposed legislative provisions.  It is likely to provoke significant debate.

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