February 2009
Polluter Pays More
The Environmental Damage Regulations ("EDR") came into force on 1st March 2009 and transpose the requirements of The Environmental Liability Directive (2004/35/CE) ("ELD") into national law in England. Separate regulations will be made by each of the devolved governments in Scotland, Wales and Northern Ireland.
Businesses and industry will have to take note of these new regulations as the EDR introduce a new, proactive requirement to (i) prevent and, where that fails, remedy environmental damage and (ii) notify the regulator of both imminent and actual environmental damage. This is different to the existing system for environmental protection and is an extension of the "polluter pays" principle.
Environmental Damage
Environmental damage is defined in the EDR as (i) an adverse effect on the integrity of a Site of Special Scientific Interest (SSSI) or damage to EU protected species or habitats which has a significant adverse effect on reaching or maintaining the favourable conservation status of the protected species/habitat, (ii) damage to surface water or groundwater such that its status is lowered in accordance with the provisions of the Water Framework Directive and (iii) land contamination that results in a significant risk of adverse effects on human health.
Generally, the regime applies to the operators of regulated activities to prevent or remedy environmental damage. Such activities include the operation of facilities permitted under the Environmental Permitting regime in England and Wales (e.g. most facilities operating within the energy, metals and chemicals industry), waste licensed operations, facilities making controlled discharges to the water environment and the transportation of dangerous goods. Operators of such regulated activities will be liable for any environmental damage caused as a result of their activities whether or not they intended to cause such damage or were negligent (i.e. strict liability).
The regime will also apply to operators of all – even non-regulated - activities (although not purely domestic or recreational activities) if, as a result of intention or negligence, their activities cause damage to SSSIs or EU protected species or habitats.
Prevention, Notification and Remedy
One of the main aims of the ELD (and thus the EDR) is proactive prevention of environmental damage. Under the EDR, operators must take immediate steps to prevent environmental damage where an activity poses an imminent threat and they must also notify the regulator (the Environment Agency) if environmental damage is imminent. Furthermore, where environmental damage has already taken place, operators must notify the regulator and take action to prevent further damage so as to limit the effects of the damage. If environmental damage has already occurred, the enforcing authority will assess that damage and require operators to submit a remediation strategy, after which remediation will then require to be carried out.
In general, the current system of environmental regulation is about prohibition and punishment for contravention. In contrast, the EDR will require operators to prevent environmental damage but, failing that, to clean up environmental damage and pay for such clean up (with the offences coming in if operators then fail to take any of the required steps). The "polluter pays" concept has been extended so that those responsible for causing the specified types of damage, or even creating the imminent threat of such damage must be proactive to prevent or remedy such damage and carry the cost of doing so.
Third Party Complainers
Another new concept introduced by the EDR is that any person affected or likely to be affected by environmental damage or any person who otherwise has a "sufficient interest" now has the right to request that action be taken by notifying the regulator (the Environment Agency) of any environmental damage which has occurred or of which there is an imminent threat. This amounts to a right for a neighbour or an employee, indeed any person with a sufficient interest in the damage in question (which has been confirmed to include charities whose objects include the conservation of the environment), to blow the whistle on the activities of an operator which have caused or threaten environmental damage. This is not something which has been seen in previous environmental regulation regimes and will be important to bear in mind for the future.
Conclusion
The new regime is far more onerous than previous regimes in that it imposes duties on operators to prevent and remedy environmental damage and to notify the Environment Agency of its existence or imminent existence, and allows third parties a specific right to trigger enforcement action. Businesses and industry, particularly those undertaking already regulated activities, need to be aware of these greater responsibilities.