Brussels, 24/01/2002 (Agence Europe) - The idea that the polluter must pay is a cornerstone of the European Commission's policy. The proposal for a Directive was adopted by the college of Commissioners (see EUROPE 23 January page 9) on Wednesday and aims to set up some minimum rules for dealing with environmental damage and in cases where it cannot be avoided, make those responsible for the damage, liable.
Environmental damage includes water pollution, regulated by the Water Framework Directive (2000/60/EC), damage to the bio-diversity of flora and fauna on protected sites at both a Community and national level (Habitats Directive), as well as land contamination, which poses a serious risk to human health. Legally authorised pollution emissions, as well as emissions considered as non-dangerous to the environment according to the state of scientific and technical knowledge available at the time of the incidents will not be covered by the directive and those responsible for them will not be prosecuted. The liability system proposed by the Commission will not be retroactive (unlike the system in the USA) and will therefore only apply to damage occurring at the time of the directive's entry into force. The main rules in the Union are:
Prevention - Operators who have caused a situation that could lead to environmental damage will be obliged to take preventive measures to avoid any damage occurring (for example measures to control the pressure in pipes, to avoid the chances of an explosion occurring).
Scope - Operators active in risky or potentially risky activities listed in Annex 1. Activities that release heavy metals into the water or air, installations producing dangerous chemicals, landfill sites and incineration plants, wilful release of GMS into the environment etc. These operators would all be liable for the environmental damage that they cause and liable for costs for repairing the polluted sites.
The public authorities will be responsible for assessing the seriousness of the damage and determining whether restoration costs from the liable operators are required. The authorities could compel operators to restore the polluted sites themselves or finance restoration measures. Public interest groups, NGOs or parties that have suffered damage would be authorised to request that the public authorities take suitable action and where necessary, take the case in question to court.
All operators involved in dangerous activities or not, that cause environmental damage by error or by negligence will be liable for prevention or reparation costs.
Commenting on the proposal for a Directive, Margot Wallström, Commissioner for the Environment, declared that, "The time has come for the EU to put the polluter pays principle into practice. Member States need to be able to tackle environmental damage and play by common rules on who is responsible, which damage is covered, and who should bear the cost. The rules proposed by the Commission today will be a strong incentive to prevent such damage happening at all…Today, the Commission has taken the first concrete step towards establishing a comprehensive European environmental liability scheme".
In cases of there being a number of different operators responsible for pollution damage or where it is difficult to identify those responsible, the public authorities will be responsible for ensuring restoration measures and recovering financial damages from guilty parties when they have been identified.
In cases where the insolvency of operators hinders the recovery of costs, Member States will be free to implement adequate financial security arrangements.
This Parliament and Council proposal for a Directive will be submitted to the Environment Council on 4 March.
NGOs and industry unhappy
Long-awaited by environmental defence NGOs, this proposal does not seem to come up to their expectations. The European Environment Bureau, network that brings together some 150 NGOs, the WWF (World Wide Fund for Nature) and Greenpeace denounce the weaknesses in the text which, as it stands allows for ways out. These NGOs in particular deplore the all too many possibilities of appeals offered to operators, especially that of evading any liability if they can prove that they acted in compliance with an operating permit issued to them under Community environmental legislation. They also regret that the responsibility for harming fauna and flora should be limited solely to protected sites and that NGOs cannot lodge an appeal against the operators themselves. The spokesperson for Greenpeace, specialist in GMO issues, considers for her part, that the Commission's proposal offers no protection against the risk of "contamination" of conventional plants by GMOs, in the sense that the liability of a farmer or an industrialist will not be taken into account if the source of the contamination is a GMO legally authorised in the Union.
Nor is European industry satisfied either. In a press release, UNICE says it is "deeply concerned about the proposal which would expose companies to unlimited liability claims for damage to biodiversity which is difficult to define and which is not quantifiable". The European employers consider that such a system of liability would be "extremely damaging to companies and European competitiveness", with the risk of jeopardising the Lisbon objective.