Commission publishes proposal for environmental liability directive

Under the directive, operators causing damage would have to carry out, or pay for the cost of, restoration, says the Commission. The proposed directive covers activities such as releasing heavy metals into water or the air, installations producing dangerous chemicals, landfill sites and incineration plants. The proposal also aims to protect biodiversity in areas protected under European and national legislation.

“The idea that the polluter must pay is a cornerstone of the EU policy,” said Environment Commissioner Margot Wallström. “The Commission is sending a clear message: the time has come for the EU to put the polluter pays principle into practice.”

When damage occurs, member states would be required by the proposal to assess the gravity and extent of the damage, and determine the most appropriate restoration to be taken in co-operation – as far as possible – with the operators liable for the damage.

Wallström added: “We are all stakeholders when it comes to protecting the environment and preventing damage. Citizens, industry and NGOs have therefore been waiting for this important proposal for a long time, with a lot of – different – expectations. The Commission has taken the first concrete step towards establishing a comprehensive European environmental liability regime.”

However, the proposed directive has been criticised by organisations including the European Environmental Bureau (EEB) for being too weak, with no scope for protection against GMO contamination, and little protection for biodiversity. There is also concern that much of the burden of this directive lies on the shoulders of local authorities, Roberto Ferrigno of the EEB told edie. Problems associated with this include the fact that companies being prosecuted by local authorities may be using authorisations by the same authority as part of their defence.

With regard to GMOs, according to the commission, if an organic farm is polluted by GMOs, the problem is purely economic as it prevents him from selling his crop, and therefore has to be dealt with in accordance with national law. However, GMOs are covered by the proposal if they cause damage to biodiversity, water or soil.

Other exemptions include emissions that have been authorised, and activities and emissions that were believed to be safe for the environment according to the state of scientific and technical knowledge at the time that they occur.

Nuclear power and oil spills are also not covered under the proposal, both because they are already covered by several international civil liability conventions, says the Commission. Diffuse pollution is also not covered by the proposed directive. This is because, says the Commission, liability is only effective and cheap to implement when it is possible to identify clearly the polluter responsible for the damage – which is practically impossible with diffuse pollution.