Environmental Liability

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On 16th may 2008 the Scottish Executive lanuched thier second consultation.....more


The Environmental Liability Directive (ELD) came into force in April 2004 and EU member state governments had until April 2007 to implement it into national law. However, the latest expected date for implementation into UK law is currently December 2008.

The Directive is an important piece of environmental law intended to:

  • implement the 'polluter pays' principle and remedy environmental damage by making businesses legally and financially responsible for environmental damage that they cause; and  

  • prevent environmental damage by requiring businesses to take preventive measures where there is a threat of imminent environmental damage, and by providing strong incentives to prevent damage because of the potential costs involved. 

It covers significant damage to water, land and certain EU protected habitats and species caused by:

  • any loosely business-related activity in the case of biodiversity damage; or 

  • a range of potentially dangerous activities in the case of water, land and, slightly confusingly, also biodiversity damage (explained below). These activities include for example, IPPC regulated businesses, the use of genetically modified organisms (GMOs), the disposal and transport of waste and other dangerous substances, the abstraction of water and the discharge of pollutants.

In relation to GMOs the ELD provides the liability regime that was promised during the negotiation of the EU Deliberate Release Directive (2001/18 - Recital 16),  If environmental damage takes place as a result of using a GM organism, the company or person responsible should have to pay the costs of remediation (putting things right).

The Consultation Process:

Following a first consultation from December 2006 - February 2007, the House of Commons Select Committee - The Environment Food and Rural Affairs Committee undertook an inquiry into the governments approach to the ELD their report was published on 12th July.

On 29th February 2008, DEFRA launched a second consultation on the draft Regulations for England and for Wales. Full details can be found on the DEFRA website .

See also GeneWatch press release.

Key factors in the 2nd consultation are;

  • The Welsh Assembly Government are proposing that there will be strict liability on GMOs by not allowing the use of the 'permit' and 'state of the art defenses'.  The proposed Welsh legislation also contains a provision to make the permit holder (e.g. the company that developed and owns the GMO) liable for any damage by making them a "responsible operator".

  • In England, if GMOs cause environmental damage it will be necessary to identify that a farmer or biotechnology company were at fault before they are liable for any clean up or remediation costs.

  • In both England and Wales, the environmental liability regulations will include nationally protected sites (SSSIs) as well as those covered by European legislation. However, many threatened species covered by the UK's Biodiversity Action Plans will not be included.

This consultation is now closed. GeneWatch worked with other organisations to produce a comprehensive joint response and also submitted our own response specifically on issues related to GMOs.

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