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3. CONSULTATION
Within Government
In preparing to transpose the Directive the Scottish Government has consulted Defra, BERR, Cabinet Office, HM Treasury, SEPA, SNH, COSLA, teams of the Scottish Government responsible for the policies affected (Environment, Justice, etc).
Public consultation
The first consultation set out the implementation options, including the preference for 'minimum transition'. The Directive provides for a number of exceptions from its requirements and there are some optional provisions.
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.
Following the first consultation and after further consideration, The Scottish Government believes that it is justifiable to allow 'permit' and 'state of the art' defences, except under the case of genetically modified organisms ( GMO) permits. The Scottish Government does not consider it necessary to extend the liability to include species and habitats protected by national law, such as sites of specific scientific interest ( SSSI).
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 Scottish Government 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.
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