Guest blog post by Birgit Schmidhuber, Environmental Lawyer and Board Member of J&E
The Environmental Liability Directive, adopted in 2004 holds a huge potential for preventing and remedying damage to European environment. Unfortunately it is currently seriously underperforming. Decisive action must be taken by the European Commission to change this, J&E, an environmental law NGO network finds.
The Environmental Liability Directive (ELD) requires operators who cause environmental damage (or imminent threat of it), to prevent or remediate the damage. The Directive was adopted to prevent the accelerated site contamination and loss of biodiversity in EU which has continued in the last decades. Its rules are based on the polluter pays principle: the polluter and not the taxpayers must take the actions needed to restore the environment and bear its costs.
The Commission’s recent REFIT evaluation of the Environmental Liability Directive shows that despite all the good intentions behind the EU law, Member States have failed in creating a level playing field when it comes to the prevention and remediation of environmental damage. Some Member States do not apply the Directive at all whereas in other Member States the Directive is applied vividly. As a result the level of environmental protection may differ from Member State to Member State. Furthermore operators have to comply with stricter or lower requirements depending on the liability regime applied in a country.
Justice & Environment has followed the ELD laws and practices in EU Member States over the last years. We see that the problem not only lies with the uneven interpretation of damage concepts and the lack of knowledge about the ELD as found by the European Commission in its REFIT report.
Above all the ELD needs to be enforced on the ground. If national authorities continue to avoid handling incidents with significant adverse effects on waters, land and biodiversity under ELD legislation, they undermine the usefulness of the Directive. Despite this, in certain Member States authorities seem reluctant to apply the ELD, due to parallel national rules in sectorial legislations mainly on soil and water.
Since these national rules are in many cases less strict than requirements of the ELD, the European Commission needs to add real compliance enforcement efforts to its action plan for the ELD which will be discussed at a stakeholder conference today, 24th May, in Brussels. In addition to providing trainings and guidance, it should include starting strategic infringements against strong headed Member States. There is indeed evidence on obvious malpractices in Member States in the application of the Directive. For example, the ChemiePack accident in Moerdijk (Netherlands) in 2011 which was clearly an ELD case, but handled under national rules. As a result the baseline remediation and the public participation requirements of the ELD where not applied.
As a major shortcoming, national clean-up or remediation rules often do not require preventive action to be taken. They oblige the authority – in some cases the polluter – to take action only if the damage has already been done. Contrary to national laws where mainly public authorities are required to start proceedings and take action, the ELD expressively shifts responsibility of taking action against damage or threat thereof to the polluter.
In addition to better enforcement of existing rules, the European Commission should also seriously consider strengthening the Directives provisions themselves. As the REFIT evaluation itself admits, the “framework” character of the Directive with its many derogation options and sometimes vague formulations is an obstacle in itself.
Better enforcement of the EU-wide liability rules as well as strengthening its text in the future would not only be the right thing to do to support the polluter pays principle. It will have real benefits on our daily lives and environment, increasing the level of care taken to prevent damages. Potential polluters must know that they will be held unconditionally and fully liable for the damage they cause. Only this will force them to be really careful.