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Key concerns of respondents
11. Environmental liability will complement many existing regimes and most respondents requested that careful consideration be given when transposing the ELD to allow it to work effectively with existing legislation. The ELD itself envisaged the adoption of definitions and criteria common to related Community law. The Scottish Government has followed that approach in the Regulations. The Technical Guidance gives details of how those common terms and criteria can be used.
12. The first consultation highlighted particular concerns on extending the scope of biodiversity and GMOs. On scope of biodiversity, around 70% of the responses supported the proposal not to go beyond the basic requirements of the ELD and include nationally protected habitats and species. In response to those who had concerns about this the Scottish Government believes that: -
- criteria based on Favourable Conservation Status ( FCS) at EU, national and local level is the key requirement of the ELD;
- the addition of site-based criteria, including nationally protected SSSIs, may provide more detail in some cases but does not meet the essential requirement of the ELD to protect species and habitats wherever they may be;
- FCS based criteria use established methodologies from the Birds and Habitats Directives, avoiding respondents' fear of duplication;
- where the Regulations do apply, they will contribute to halting future biodiversity loss from environmental damage. However, they are not a tool to be relied upon directly to deal with biodiversity loss and;
- rather than undermining the Nature Conservation (Scotland) Act 2004 as suggested by some respondents, the ELD will work alongside the powerful criminal sanctions available under the Act.
Another issue was the question of how the ELD should be applied in relation to the release of GMOs. Concerns included the potential existence of the longer-term damage which may occur, which would not show up in the shorter term and there was demand not to allow a permit or arguments about the state of the art to allow operators to be excused from paying costs arising in the case of GMOs.
13. The Scottish Government accepts the validity of these concerns and proposes not to allow those two defences in relation to damage to GMOs.
14. The Scottish Ministers have decided to accept further suggestions including extending the threshold for past damaging events from 30 years to 75 years in respect of GMOs.
15. Most respondents agreed with the proposal to designate SEPA and SNH as the main competent authorities to supervise the regime. This would simplify procedures and avoid confusion for an operator needing to contact a competent authority in the case of significant damage or a threat of significant damage to the environment. This would not restrict SEPA or SNH from calling upon the expertise of another body or organisation which may have the specialism in the type of damage caused by an operator. In instances where there is significant damage or a threat of significant damage to the marine environment it is consider that Scottish Ministers would be, for the present at least, the most appropriate competent authority.
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