CONSULTATION Response Document

Transcription

1 CONSULTATION Response Document Institute of Ecology and Environmental Management 45 Southgate Street Winchester SO23 9EH Tel: Fax: CONSULTATION ON OPTIONS FOR TRANSPOSING THE ENVIRONMENTAL LIABILITY DIRECTIVE Company Limited by Guarantee, No Established 1991

2 Introduction The Institute of Ecology and Environmental Management (IEEM) welcomes the opportunity to comment on the CONSULTATION ON OPTIONS FOR TRANSPOSING THE ENVIRONMENTAL LIABILITY DIRECTIVE. IEEM is the professional Institute supporting professionals in the fields of ecology and environmental management. The Institute was established in 1991 and currently has around 3,000 members drawn from local authorities, government agencies, industry, environmental consultancy, teaching/research, and voluntary environmental organisations. The objectives of the Institute are: To advance the science, practice and understanding of ecology and environmental management for the public benefit in the United Kingdom and internationally; To further the conservation and enhancement of biodiversity and maintenance of ecological processes and life support systems essential to a fully functional biosphere; To further environmentally sustainable management and development; To promote and encourage education, training, study and research in the science and practice of ecology, environmental management and sustainable development; To establish, uphold and advance the standards of education, qualification, competence and conduct of those who practise ecology and environmental management as a profession and for the benefit of the public. IEEM is a member of SocEnv (The Society for the Environment), EFAEP (The European Federation of Associations of Environmental Professionals) and IUCN (The World Conservation Union). IEEM has also signed up to the Countdown 2010 agreement to halt the loss of biodiversity. 2

3 COMMENTS BY IEEM ON CONSULTATION ON OPTIONS FOR TRANSPOSING THE ENVIRONMENTAL LIABILITY DIRECTIVE. IEEM Response to proposals for transposing the Environmental Liability Directive into law in Scotland. Scope of the Directive - it is important when reading this response to understand that the Directive is aimed at preventing or remediating substantial incidents of damage and that its biodiversity objectives are limited to biodiversity that has EU protection i.e. the habitats and species listed in The Conservation of Wild Birds Directive (79/409/EEC) and the Habitats and Species Directive (92/43/EEC) and their annexes and largely given physical reality through the SPA and SAC sites system and protected species legislation. One of the key questions for the consultation is the extent to which this limitation should influence transposition into UK laws. IEEM welcomes four key principles of the Directive: 1. That operators who cause environmental damage (to biodiversity, to water and waterways and to land through contamination that is hazardous to health) should be held financially liable the polluter pays principle. 2. That operators of specified activities (largely those already subject to environmental permitting and regulation) have strict liability for remediation regardless of fault or negligence, 3. That prevention is better than cure and competent authorities will have power to intervene and require remedial action by an operator when there is risk of damage. 4. That time is often material to successful remediation and that the most successful outcomes will result from close and co-operative relationships between operators and competent agencies (e.g. regulators)(while not precluding enforcement through courts). IEEM is concerned that some provisions of the Directive are weaker than they need to be in order to achieve the EU s mandate in the UK, let alone broader national objectives for biodiversity conservation. We urge most strongly that these areas are strengthened in the process of transposition into UK legislation. 1. There is a serious weakness in the ecological assumptions on which the biodiversity objectives of the Directive are built. In particular there is an implicit assumption that the suite of SAC and SPA designated sites is adequate to achieve and maintain favourable conservation status of EU-protected habitats and the species specified as features of these sites, collectively. There are at least two reasons why this assumption is untenable: a. the suite of SAC and SPA sites (at least in UK) was not constructed to enable adequate movement of organisms between sites in ways that are essential to maintaining favourable conservation status across those sites collectively for the long term even in a climatically stable world; b. climate change is demonstrably changing the natural range and distribution of species and composition of biological communities, so that individual sites are bound to lose species as the local climate becomes unsuitable for them, 3

4 but only the most mobile species can disperse across farmed and developed land to find suitable habitat as new areas become climatically favourable; 2. The EU protected sites policies are not responsive to these processes either by predicting and designating new areas for protection or by adapting the definition of favourable conservation status to take account of the inevitable changes to populations and communities. The SAC and SPA suite in UK is therefore simply not adequate to maintain favourable conservation status of EU-protected habitats for the long term in the face of normal ecological processes and this inadequacy is accentuated by climate change. 3. The Directive only requires action against an operator if they cause damage which is so severe that it compromises the conservation status of a habitat or species nationally (or even internationally). It may be appropriate to make a national assessment before taking action in countries with very large areas of SPA/SAC designated land e.g. Slovakia (c30% of territory) and Spain (c25%) although the resource implications are daunting. Only 10.3% of UK has SAC designation and the only sensible approach is to assume that damage to any site is likely to compromise the conservation status of the designated habitats and species of that site nationally. This approach has the merit of being very much easier, quicker and cheaper to implement than any approach based on national assessment of conservation status, but this is a secondary benefit, not the primary reason for recommending the sitebased approach. For these reasons IEEM believes that minimal transposition into Scottish law will not achieve the desired outcomes of the Directive and that certain additions to the Directive are essential to achieve adequate protection of EU-protected biodiversity in the UK. At the very least this means extending the scope of the transposition legislation to include all SSSIs and Ramsar sites. It is highly desirable to use the transposition legislation to strengthen ecological processes that are vital to maintaining favourable conservation status for EU protected biodiversity in the long term. In particular the ecological connectivity recognised as essential, but delegated to Member States to implement, under Article 10 of the Habitats Directive. Britain has so far failed to provide any effective response to this Article. It is vital that the transposition legislation is consistent with existing legislation and policies including planning policies in NPPG 14. Inconsistent legislation and policy will lead to confusion, time wasting and inevitable cost increases for all competent agencies and operators. IEEM has some concerns about the approach of requiring operators to report to competent authorities about damage that they have caused to the environment. We are unsure that this is likely to happen. In addition, it could put consultants and advisors working on behalf of operators in a difficult position. If they are aware of damage having taken place, professionally they should draw this to the attention of the operator. Are they also professionally-bound to report it to a competent authority? IEEM would be happy to discuss this issue further with the Scottish Executive. Responses to specific questions (following the order and numbering of the list at Section 4 of the Consultation Document) 4

5 1. Question 1: Do you agree with the Executive s approach [not to apply the option of extending the ELD to nationally-designated sites at this time]? IEEM Response: We started this response with a critique of the ELD and the reasons why it is inadequate for the purpose of maintaining favourable conservation status of habitats and species that are listed in the Birds Directive and the Habitats and Species Directive, at least in the UK context of highly fragmented habitat patches and protected sites. Inclusion of all SSSIs and Ramsar sites would begin to address these shortcomings, but is not sufficient without additional measures to address Article 10 of the Habitats Directive Question 2: Do you agree with the Executive s approach [to use a threshold approach for triggering action in the case of damage to water interests]? IEEM Response: Any incident that is likely to cause a reduction in ecological status should trigger potential liability. Otherwise, there is a risk of widespread damage to small water bodies, which will not trigger liability, but cumulatively is likely to lead directly or indirectly to damage to larger water bodies. 3. Question 4: Do you support or not application of the option to give a permit defence, i.e. that an operator might claim in mitigation in response to an allegation of liability? IEEM Response: No. Operators and their advisors have primary responsibility for ensuring that environmental assessments made in support of a permit application are accurate. The permit defence turns this on its head and implies that the permitting authority has this primary responsibility. This is a bad principle and its implementation would create a precedent that could compromise other legislation. Many permits have extremely long time periods, e.g. water abstraction licences, and some are effectively unlimited, e.g. Interim Development Orders. The ELD should apply to the operators of such permits. The main reason for giving this response is that our understanding of environmental issues changes continually and operators must be made to ensure that their operations meet current standards and not those that applied when a permit was granted. 4. Question 5: Do you support a case-by-case basis, i.e. a distinction between permits and their conditions, based upon the degree of reliance that might be placed upon the permit to safeguard the environment? 1 EU Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora - Article 10: Member States shall endeavour, where they consider it necessary, in their land-use planning and development policies and, in particular, with a view to improving the ecological coherence af the Natura 2000 network, to encourage the management of features of the landscape which are of major importance for wild fauna and flora. Such features are those which, by virtue of their linear and continuous structure (such as rivers with their banks or the traditional systems for marking field boundaries) or their function as stepping stones (such as ponds or small woods), are essential for the migration, dispersal and genetic exchange of wild species. 5

6 IEEM Response: As stated above, we are against using the option to give a permit defence. However, if this were implemented, then we would support the application of a case-by-case approach. 5. Question 6: Are there any criteria which might be used to judge the mitigation in individual cases? IEEM Response: One of the key criteria that should be used is the extent to which there was or is an alternative way of achieving the desired outcome overall, but which would lead to less or no environmental damage. If there is such an option, then mitigation should be such that the environment is restored to the state it would have been in had the lower-impact option been implemented in the first place. 6. Question 7: Do you agree or not that the defence should be adopted, allowing an operator a claim in mitigation of liability of working to the known state of scientific and technical knowledge? IEEM Response: We are concerned that this could represent a loophole for operators which allows them to operate without taking into account the full range of information and guidance available, and then in the case of damage claim that they were operating within the (or rather their) state of existing knowledge. In effect, they could turn a blind eye to information that is available if they look for it. With respect to the concern about stifling entrepreneurship, avoiding this should not be a reason for taking risks of causing significant environmental damage. Rather, those developing new products and technologies should include in their product development process adequate assessment of the potential impacts on the environment before the product is commercially marketed, rather than waiting to find out about the impacts once it is in widespread use. 7. Question 14: Do you think that the request for action provision of Article 12 should be reduced for cases of imminent threat, and why? IEEM Response: No. We feel that optimum protection of the environment is essential. Our view is that, at least in the early period of implementing the Directive, all observations and requests for action should be investigated by the appropriate competent authority. This arrangement (of investigating complaints) already exists and competent authorities should now be able to judge the level of resources to deploy in the investigation of different types of observations and requests for action. 6