Damage remediation within annex II of the ELD

Transcription

1 Damage remediation within annex II of the ELD Pierre Deusy-Fournier Sustainable Development and Economic Analysis 1

2 Background The Commission published in 1993 a Green Paper on environmental liability, which led to the publication of a White Paper in 2000 and the adoption of a legislative proposal in January The Directive, N 2004/35/EC, was finally adopted on 21 April 2004 and entered into force on 30 April It addresses environmental liability both with regard to prevention and remediation It will become of application on 30 April

3 Main features of the ELD (1) A Community-wide framework, respecting subsidiarity : Commission to ensure a minimum harmonisation of essential rules for identifying and assessing actions for remedying env. damage MS to ensure that operators undertake / finance preventive & remedial measures; Interest groups, incl. NGOs, to follow & event. challenge this action (all natural and legal persons affected by env. damage / with sufficient interest / alleging the impairment of a right are entitled to submit observations to the competent authorities and request its action). 3

4 Main features of the ELD (2) Polluter pays principle: those who cause or threaten to cause damage to the environment are held financially liable. Remediation a priori in kind. coverage by appropriate financial security products (e.g. insurance) is not compulsory, but encouraged. 4

5 Scope of ELD: Environmental damage: damage to biodiversity (i.e. to species and natural habitats, as protected under the EU 1992 Habitats and 1979 Birds Directives, or determined by MS for equivalent purposes), to water and to land (if risks harming human health). Two distinct liability regimes: For professional activities listed in Annex III, liability is strict. For the other activities, liability only if 1) fault or negligence and 2) damage to protected species and natural habitats. Only applies to damage caused after 30 April 2007 (no retrospective effect). 5

6 Exemptions: Damages already covered by international instruments listed in Annex IV (i.e. including marine pollution / oil spills) previously identified adverse effects which results from an act expressly authorised by the relevant authorities in accordance with the Wild Birds Directive (79/409/EEC) or the Habitat Directive (92/43/EEC) or equivalent provisions of national law force majeure, nuclear damage, Activities serving national defence or security, pollution from diffuse sources. NB: An operator is of course not required to bear the cost of preventive or remedial actions, when he can prove that the environmental damage or imminent threat of such damage was caused by a third party and appropriate safety measures were in place. 6

7 Exemptions (facultative): The Member States may allow the operator not to bear the cost of remedial actions where he demonstrates, that he was not at fault or negligent and in case of Fully-fledged Permit Defence [ ] an emission or event expressly authorised by, and fully in accordance with the conditions of, an authorisation conferred by or given under applicable national laws and regulations which implement those legislative measures adopted by the Community specified in Annex III [ ] (Art. 8 (4) (a) of Directive 2004/35/EC) State of the Art Defence [ ] an emission or activity or any manner of using a product in the course of an activity which the operator demonstrates was not considered likely to cause environmental damage according to the state of scientific and technical knowledge [ ] (Art. 8 (4) (b) of Directive 2004/35/EC) 7

8 General modalities of remediation Whatever the liability regimes, preventive or remedial measures are to be taken, respectively, in the event of an imminent threat of damage or when damage occurs. Damaged or destroyed elements of the environment are to be restored or replaced by identical, equivalent or similar natural assets, as the case may be, either on the site of the incident or, if need be, on an alternative site, in order to reinstate the environment to its condition prior to the occurrence of damage. National authorities room of manoeuvre on remediation depends on the type of damage. decontamination of soil, i.e. land, is foreseen until it no longer poses any significant risk of adversely affecting human health. ELD less precise for damage to protected species and natural habitats, and water. 8

9 Rules set out in Annex II of the ELD. For damages on biodiversity and water: To restore, as far as possible, the damaged environment to its baseline (primary remedial actions). Can consist of active actions or of natural recovery. If restoration is not full, complementary remediation will be undertaken to compensate for the shortfall. Can be taken on site or off site (preferably adjacent site). Interim damages (prevailing during the remediation process) will be compensated for. Idem + Does not imply financial compensation to members of the public. [In addition, any significant risk of human health will be removed.] For damages on land: To remove any significant risk of adversely affecting human health, taking account of the land s current or future use. 9

10 Compensating for interim losses: Baseline Services/Year + Active primary remediation A Compensation for interim losses Natural recovery A + B Compensation for interim losses 0 _ A Interim losses B Damage 10

11 Choice of remedial options (1) Criteria when actions can only provide other environmental resources / services than those initially damaged? Step 1: Choose, whenever possible, to provide natural resources/services of the same type and quality Step 2: Choose, whenever possible, to provide natural resources/services of similar type or quality Step 3: Use other techniques, such as, monetary valuation, to determine type and scale of remedial actions Step 4: If monetary valuation of alternative remedial actions is not practicable, choose remedial actions whose cost is equivalent to the estimated monetary value of the damage 11

12 Choice of remedial options (2) Criteria to choose among options that all satisfy the aim of remediation: Effects on public health and safety Cost of the option Likelihood of success Extent of preventive effect; of avoidance of collateral damage from implementation; of benefits to each component of the natural resource and/or service; of account taken of relevant social, economic and cultural concerns. 12

13 Common sense principles One guiding principle for policy decision: proportionality: cost of remedial measures and environmental benefits (NB: in some circumstances, responsibility can be caped of annex II). Among options to deliver the same level of remediation, the least costly one shall be selected. Options that do not fully restore the environment to baseline or restore it more slowly than other options, are eligible, provided that the shortfall is compensated for. Member States bear the costs where the operator cannot be identified (Article 8-2). 13

14 The Commission s role Coordination with MS and stakeholders Research project within the EU 6th Framework Research Programme on methods for assessing the scope and scale of remediation actions (contribution-in-kind approach). Situation w/r to ELD implementation and actual coverage (e.g. de facto & de jure availability of financial security products ) to be reviewed in If not satisfactory, the EC may submit proposals for a harmonised compulsory guarantee. 14