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4. OPTIONS
13. (1) The 'do nothing' approach
If Scotland does not transpose the ELD adequately the Scottish Executive will be in breach of the Scotland Act 1998 and share in any infraction proceedings against UK. It may also suffer reputational damage. There are provisions in existing legislation requiring remediation of damage to the environment but they do not always match the requirements of the ELD.
14. (2) The transposition approach
The Directive is addressed to Member States and they are required to transpose it into national law by 30 th April 2007. There are provisions in existing legislation requiring remediation of damage to the environment but they do not always match the requirements of the ELD. Accordingly, some action is needed to transpose the Directive. The consultation document at paragraph 35 proposes that where significant damage comes within the scope of ELD, the relationship between the operators, CAs and third parties will be set by ELD transposition. Where damage falls outwith the scope of ELD, existing arrangements will continue to operate. We wish to implement in a way which makes overall liability arrangements as clear as possible so that it is clear to operators for what they may be liable and what may be the consequences of causing significant environmental damage.
15. The Directive provides for a number of exceptions from its requirements and there are some optional provisions.
Exceptions are provided for damage covered by other measures
- International conventions in Annex IV of the directive
- Limit of operator's liability under LLMC (Maritime)
- Euratom.
Also excepted is significant damage caused through
- Armed conflict, hostilities, civil war or insurrection
- Exceptional natural phenomena
- Diffuse pollution - unless a causal link is established
- National defence, international security.
The Executive proposes to allow those exceptions. In the circumstances of any case, of course, it may be necessary to identify that the pre-existing subject-specific regime or circumstances do indeed apply.
16. Options for Member States are
- To extend the scope of 'protected species and natural habitats' to include any that are protected by national law
- In relation to remediation of damage, to allow an operator to claim a defence that the damage was caused by an emission or event expressly authorised and fully in accordance with the conditions of a permit or licence granted under one of the regimes listed in Annex III of ELD and / or that he operated in accordance with the state of scientific knowledge -'state of the art'
- In the case of an imminent threat of significant damage, a Member State may decide not to respond to a request for action.
The Scottish Executive believes that it is justifiable to allow 'permit' and 'state of the art' defences - discussed further in Section 6 'Assessment of consultation issues'.
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