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2. PURPOSE AND INTENDED EFFECT OF ELD
Objective of transposing ELD
The principal aim of the Directive is to establish a new kind of civil law mechanism based upon the "polluter pays" principle. Certain operators who risk significant damage to land, water or biodiversity will have a duty to avert such damage occurring or, where damage does occur, to take measures to remedy the losses to the environment. ELD requires no action until imminent threats exist or damage has occurred.
It differs from civil law remedies such as delict - the claiming of compensation from someone whose actions have done us harm - in that the harm (and redress) is to the environment, with no individual victim and no claim of personal loss. The new regime will not create more regulation. Instead, an operator will have to notify the competent authority ( CA) of the imminent risk or damage and of its plans to avert or repair the damage. Some fallback provision of offence and penalty may be needed to penalise evasion of duty to notify, avert or remediate damage, or to pay the costs of doing so.
A major role in the operation of the Directive's provisions will fall on the 'competent authority'( CA), which will be an existing public body with environmental responsibilities: SEPA, SNH or the Scottish Ministers themselves. The CA will, in consultation if necessary, direct what repair work is to be done or may arrange to undertake the work itself, recovering the cost from those responsible for the damage. The balance between repair of the environment under this Directive and repair of the environment and /or criminal prosecution under extant regimes will need to be established by the CA. Both might apply in some circumstances.
Background
Some existing environmental law already provides for operators to pay for remediating environmental damage, for example water framework legislation.
The activities to be covered by strict liability (Annex III to the Directive) include many already regulated, for example: chemicals, discharges to water, waste management and some already carry some liability for environmental damage. Liability for damage to biodiversity is largely new and will affect a wider range of operators than in Annex III. The interpretation of the key threshold - "environmental damage" - will be crucial in determining the number and type of case in which the liability under the Directive will apply. Conclusions below suggest that the number of cases attracting ELD remediation will be small but some may be quite large and costly.
Impacts
Costs and benefits result where ELD provisions are more extensive than existing ones. The main examples where this is the case are:
- There is a duty on operators to report imminent threats and damage - which is not always the case in existing law - and to take steps without delay to limit damage
- There is a duty on the public authorities to require that measures are taken in the event of damage - not always the case in existing law
- Land contamination from organisms and micro-organisms is included in the definition of land damage
- There are two new elements for biodiversity and water damage. These are complementary remediation which is additional remediation where the environment does not return to baseline and compensatory remediation which is additional remediation to compensate for the interim loss of environmental resources and services.
Table 1 overleaf outlines the main changes for the types of damage covered by the directive, highlighting (in colours/patterns as indicated) where the ELD provisions:
Rationale for government intervention
The Directive is addressed to Member States. Environment is a devolved competence, so it falls to Scottish Ministers to transpose the Directive into law in Scotland. If Scotland does not transpose the ELD adequately the Scottish Government will be in breach of its obligations under the Scotland Act 1998 not to act except in accordance with law of the European Union. It will also be in breach of the UK's requirement to transpose the Directive and would share in any infraction proceedings against UK, including any financial penalty imposed. 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.
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