Making the polluter pay – EC adopts Liability scheme

MAKING THE POLLUTER PAY – EC ADOPTS LIABILITY SCHEME





The European Commission has adopted a proposal for a Directive on environmental liability which aims both to prevent and restore environmental damage. The pollution of water, damage to biodiversity and land contamination which causes serious harm to human health would all be covered by this Directive.





Operators of certain risky or potentially risky activities who cause environmental damage would be held responsible for restoring the damage caused, or made to pay for the restoration. All operators causing damage to biodiversity, by fault or negligence, would equally have an obligation to restore the damage.





Environment Commissioner Margot Wallström said: “The idea that the polluter must pay is a cornerstone of EU policy. With today’s proposal, the Commission is sending a clear message: the time has come for the EU to put the polluter pays principle into practice. “Member States need to be able to tackle environmental damage and play by common rules on who is responsible, which damage is covered, and who should bear the cost”.





Background





The proposal establishes a framework based on environmental liability to ensure that future environmental damage is restored or prevented. The proposal has no retrospective effect.





Public authorities will play an important role in the proposed liability scheme. It will be their role to ensure that responsible operators undertake themselves or finance the necessary restorative measures in case of environmental damage. Public interest groups, such as non-governmental organizations, will be allowed, under the system, to require public authorities to act, when need be, and challenge their decisions before the courts, when those decisions are illegal.





Scope of the directive





The operators potentially liable under the directive for the costs of preventing or restoring the environmental damage are the operators of the risky or potentially risky activities listed in Annex I. These include activities releasing heavy metals into water or into the air, installations producing dangerous chemicals, landfill sites and incineration plants. Operators of activities outside Annex I may also be liable, under the directive, for the costs of preventing or restoring bio-diversity damage, but only in case they are found to be negligent. This extended protection is due to the fact that bio-diversity damage as such is hardly covered by national laws, or when it is covered, there is no guarantee that the damaged bio-diversity will actually be restored.





Finally, the proposal includes provisions concerning transboundary damage, financial security, its relationship with national laws, and a provision for reviewing the regime