The Environmental Liability Directive

marts 13, 2008 at 8:55 pm 13 kommentarer

European FlagDuring the research of my recent article on The Czech Environmental Act, I had an interview with Ondřej Vícha, who is responsible for the transposition of the Environmental Liability Directive (2004/35/EC) into the Czech legal order and drafting of the Czech environmental liability act.

He told me that it was expected to come into force next month, which was the main angle on the news story. But I thought I would expand a little bit and talk a little bit about why this act is important in relation to our environment and specifically to the protection of our waters.

What is this all about

The Environmental Liability Directive (ELD) is a very simple concept with a very complex set of rule, regulations and guideline which can be followed asstrict or lenient as each member state wants. The ELD promotes foremost the “Polluter Pays Principle (PPP)”, and it took more than 10 years to produce a working legislative text, and 20 years of debate in EU and other European countries.[1]

The PPP is the idea of making businesses which harm the environment legally and financially accountable for their damage. This is based on the assumption that potential polluters will behave more carefully.

That sounds pretty simple…

It sure does, why did it take so long to figure out then you might ask?

The directive does provide a lot of leeway for individual countries to interpret and incorporate this into their legal system in any way they want really. This has been questioned and challenged by several organisations, all slowing down the process.

EEBEnvironmental damage provisions apply to water, land or biodiversity, but the rules on when operators are liable for specific types of damage are complex.[2] The polluter can be held responsible in two distinct ways. It is either Strict
Liability or Permit and State of the art.

These are fairly complex, but simplified ‘Strict Liability’ means that the polluter is automatically responsible. Permit and State of the art let’s member states allow the operator not to bear the cost if he can prove that it was not his fault.

What this all means for the environment

Right, this all sounds good but what are the practical effects this will have?

Hungary has been the fastest and most efficient country when it comes to incorporating the ELD. In regards to water damages Hungary has also formed their own guidelines.

Damage to water is defined in all states identically or very similarly to the definition in the directive. The transposition measures use the same or similar terms. However, the Hungarian law gives more detailed guidelines, to raise a probability of significant adverse effects to water. These factors are to be considered[3]:

a) adverse changes of conditions necessary to maintenance of habitats and living organisms directly depending from the surface waters,

b) limitation or hindering normal usage of waters,

c) emergence of environmental-health risks,

d) exceeding environmental quality thresholds determined in separate laws,

e) pollution of surface waters with materials determined in Annex 1C and materials in Annex 1D, if coming from certain technologies,

f) adverse changes to a starting status established in a decision of the authority. It has been suggested by the Justice & Environment organisation that these “significant adverse effect on water”, also could be taken in to account by other member states.

What I think about all this

I think this was about time, such a simple principle should and is already in place in many countries, but to make polluters pay for their damages can only make them more aware and more careful, if the price is high enough.

My worry is that some big companies will just pay for the clean-up and still pollute. In that relation I’m a bit disappointed to find that insurance is not mandatory in the directive.

I could have wished for much clearer guidelines and more strict liability, and in general a more uniformed legislation in all the member states. The directive will provide some issues for businesses to consider, and we will hopefully be able to make the right people pay when the environment is damaged due to pollution. As when the Spanish authorities
spent €240 million on cleanup after a dam containing toxic waste from a mine burst.


[1]
Environmental Liability Directive: how well are Member States handling transposition?
[2]
Metamorphosis Newsletter No. 42, July 2006
[3]
ELD Legal Analysis
Reklamer

Entry filed under: Environment, Europe, Water. Tags: , , , , , .

Ondřej Vícha on the Czech Environmental Liability Act (ELA) The ‘MNO’ of Water Pollution

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