Environmental Liability

• EC Directive 2004/35 on Environmental Liability with Regard to the Prevention and Remedying of Environmental Damage

The Environmental Liability Directive enforces strict liability for prevention and remediation of environmental damage to ‘biodiversity’, water and land from specified activities and remediation of environmental damage for all other activities through fault or negligence. 

• Environmental Damage (Prevention and Remediation) Regulations 2009
• The Environmental Damage (Prevention and Remediation) (Amendment) Regulations 2009
• The Environmental Damage (Prevention and Remediation) (Amendment) Regulations 2010
• The Environmental Damage (Prevention and Remediation) (Wales) Regulations 2009
• The Environmental Liability (Scotland) Regulations 2009

These Regulations implement the EC Environmental Liability Directive in England and Wales. Where there is existing legislation with provisions for environmental liability, these remain in place.

The 2009 Amendment Regulations correct correct a defect in the application provisions of the Regulations so that they properly extend to the seabed out to the limits of the continental shelf and anywhere other than the seabed out to the limits of the renewable energy zone around England.

The 2010 Regulations make amendments to the 2009 Regulations pursuant to provide for the devolution to the Scottish Ministers of certain of the Secretary of State’s functions with respect of preventing and remedying damage to marine nature conservation in the Scottish offshore region. They provide that in this area the Scottish Ministers are the enforcing authority except where otherwise specified. In particular the Secretary of State will continue to be the enforcing authority with respect to preventing and remedying damage caused by oil, gas and carbon dioxide storage activities, and with respect to the prevention of damage from marine transport activities.

Also see Oil Spill Contingency and Chemical Spills for aspects of environmental liability due to oil and chemical spills.

• The Marine Strategy Regulations 2010

These regulations transpose the requirements of the Marine Strategy Framework Directive 2008/56/EC1 into UK law. It establishes a high-level framework which requires Member States to put in place measures to achieve or maintain good environmental status in their marine waters by 2020 (see Pending Legislation).

A number of legal systems already exist in the United Kingdom which provide for the remediation of environmental damage. Under these regimes, action is taken in the public interest by public authorities such as local authorities or the Environment Agency. They can require damage to be put right by those responsible for it, or put the damage right themselves and then recover the costs afterwards from those responsible.

The Regulations will supplement existing environmental protection legislation such as the Environmental Protection Act 1990, the Water Resources Act 1991 or the Wildlife and Countryside Act 1981, the Offshore Installations (Emergency Pollution Control) Regulations 2002, and the Control of Major Accident Hazards Regulations 1999. Those pieces of legislation will still apply, and to the extent that they impose additional obligations to those in these Regulations, will still need to be complied with.

• The Environmental Damage (Prevention and Remediation) Regulations 2009 - Guidance Notes for England and Wales
• Quick Guide to the Environmental Liability Regulations

The Regulations do not cover all types of damage to the environment. Environmental damage only refers to:

• Adverse effects on the integrity of a Site of Special Scientific Interest (SSSI) or on the conservation status of species and habitats protected by EU legislation outside SSSIs;
• Adverse effects on surface water or groundwater consistent with a deterioration in the water's status (Water Framework Directive); and
• Contamination of land that results in a significant risk of adverse effects on human health.

The Regulations introduce two types of liability: fault-based liability in respect of environmental damage to protected species and natural habitats from all other occupational activities and strict liability in respect of environmental damage, caused by a specified range of 'occupational activities'.

There is strict liability without the need to show fault for activities listed in Schedule 2 of the Regulations, these include:

• Activities requiring Environmental Permits;
• Discharges to water;
• Groundwater discharges;
• Water abstraction or impoundment;
• Use of pesticides, biocides or dangerous substances;
• Use and release of Genetically Modified Organisms; and
• Transporting dangerous goods.

There is also liability where an operator has intended to cause damage or has been negligent but only for damage to SSSIs or EU species or habitats.

There are certain exemptions such as damage caused by acts of terrorism or natural disasters or damage falling within certain international conventions (e.g. oil pollution).

Third parties may report potential damage to the competent authorities, who are then required to investigate.

• Take steps to prevent damage or further damage and notify the authority in the event of any damage covered by the Regulations;
• Provide information and undertake preventive and remedial measures as required by the authority;
• Submit proposal for remediation as required; and
• Pay costs claimed by the authority in relation to "environmental damage".

None, although there may be requirements for monitoring post environmental damage remediation

Operators are required to take immediate steps to prevent damage or further damage and to notify the enforcing authority.

Environment Agency for

• Damage caused by operations regulated by the Environmental Agency under the Environmental Permitting Regulations;
• Damage to EU species and habitats in the sea caused by operations regulated by the Environment Agency;
• Damage to water caused by activities regulated by Local Authorities under the Environmental Permitting Regulations; and
• Damage caused by other operations to water and species and habitats present in water but not the sea.

Marine and Fisheries Agency for

• Damage to EU species and habitats in the sea other than where the operation is regulated by the Environment Agency.

Countryside Council for Wales and Natural England for

• Damage to EU species and habitats on land or to an SSSI, except where an operation is regulated under Environmental Permitting Regulations;
• Damage to EU species and habitats on land or to a SSSI caused by operations regulated by Local Authorities under the Environmental Permitting Regulations.

Local Authorities for

• Damage caused by operations regulated by Local Authorities under the Environmental Permitting Regulations;
• Damage to land caused by operations regulated by Local Authorities under the Environmental Permitting Regulations; and
• Damage to land other than SSSIs for activities other than those regulated under the Environmental Permitting Regulations.

As soon as damage is known

The relevant competent authority (see Reporting) must establish whether damage is environmental damage as defined under the Regulations and identify a responsible operator. In the event of damage under the Regulations, the competent authority will then serve a remediation notice taking account of any remediation measures proposed by the authority.

The competent authority may also if required:

• Take steps to prevent or remedy damage;
• Require information or action from operators.

For damage to SSSIs or EU species and habitats and damage to water, the approach is more comprehensive than in existing legislation. It consists of:

• Primary remediation - measures to restore the damage itself;
• Complementary remediation - measures, including at alternative sites, to compensate for where primary remediation does not fully restore the damage;
• Compensatory remediation - measures to compensate for the losses of natural resources while the damage is being restored.
• Land remediation - removal or control of contaminants so that the land no longer poses any significant risk of adversely affecting human health.

Where the authority determines that there is environmental damage and notifies the operator, the operator may appeal within 28 days. Grounds for appeal include:

• The activity did not cause the damage;
• The authority has unreasonably decided that the damage is environmental damage;
• The damage was the result of an act of a third party;
• The operator was not at fault or negligent and the emission or event was: authorised and in accordance with a permit, or in accordance with the state of scientific knowledge (except with respect to GMOs in Wales).

Operators may also appeal against a remediation notice on the grounds that the contents of the remediation notice are unreasonable.