Memorandum submitted by the City of London
Law Society (ELD 05)
The City of London Law Society (CLLS) represents
approximately 12,000 City solicitors, through individual and corporate
membership including some of the largest international law firms
in the world. These law firms advise a variety of clients from
multinational companies and financial institutions to Government
departments, often in relation to complex, multi-jurisdictional
legal issues.
The CLLS responds to Government inquiries and
consultations on issues of importance to its members through its
17 specialist committees. These comments have been prepared by
the CLLS Planning and Environmental Law Committee, which is made
up of solicitors who are experts in their field. The comments
respond to the invitation by the House of Commons Environment,
Food and Rural Affairs Committee (Committee) inquiry into the
formal consultation by the Department for Environment, Food and
Rural Affairs (Defra) on the implementation of the Environmental
Liability Directive (ELD).
The CLLS comments on only two questions raised
by the Committee as indicated below.
1. EXECUTIVE
SUMMARY
1.1 The CLLS considers that Defra's formal
consultation on the ELD is fatally flawed due to its omission
of many key issues.
1.2 The CLLS further considers that the
ELD applies to environmental damage which is caused after 30 April
2007 and, therefore, Defra's failure to propose legislation to
transpose the ELD by that date will prejudice operators.
2. IMPORTANT
QUESTIONS WHICH
WERE OMITTED
FROM THE
FORMAL CONSULTATION
2.1 The CLLS considers that the formal consultation
by Defra on implementation of the ELD is fatally flawed due to
its omission of many key questions.
2.2 The CLLS bases its conclusion, in part,
on R (on the application of Greenpeace) v Secretary of State
for Trade and Industry (Times Law Reports, 16 February 2007),
in which the Administrative Court concluded that a consultation
process which fails to provide sufficient information to enable
consultees to make an intelligent response is manifestly inadequate
and fatally flawed.
2.3 In particular, the CLLS considers that
Defra has failed to provide any information on the Government's
proposed mechanism for ensuring access to a court or tribunal
in order to seek review of the procedural or substantive legality
of a competent authority's decisions, acts or failure to act,
as directed by articles 12 and 13 of the ELD.
2.4 Further, the CLLS considers that Defra
has failed to consult on how operators will comply with:
(a) their duty under article 6(1)(a) of the
ELD to take "all practicable steps to immediately
control, contain, remove or otherwise manage the relevant contaminants
and/or any other damage factors in order to limit or to prevent
further environmental damage and adverse effects on human health
or further impairment of services" (emphasis added); and
(b) their duty under article 5(1) to take,
"without delay", the necessary preventive measures
when there is an imminent danger of environmental damage.
2.5 Instead of seeking comments on how operators
will comply with these self-executing duties which arise simultaneously
with their occupational activities having caused actual, or an
imminent threat of, environmental damage, respectively, Defra
has proposed thresholds for damage which will necessarily result
in operators failing to comply with the ELD.
(a) Defra has proposed that environmental
damage to protected species and natural habitats will not occur
unless the damage has a significant adverse effect on the "conservation
status of the habitat or species over its natural range"
(Consultation, paragraph 3.5). Such a threshold necessarily requires
a lengthy and detailed scientific study, thus precluding operators
from complying with their self-executing duties under the ELD.
(b) Defra's proposed threshold for water
would also require a lengthy and detailed scientific study. In
this respect, Defra has proposed issuing guidance which will include
criteria such as whether "effects are reversible, the length
of time the water will be affected, the size of the affected area
of water, the loss of amenity, impact on groundwater or surface
water resources and impact on aquatic ecosystems" (Consultation,
paragraph 3.10). Again, such a threshold would preclude operators
from complying with their self-executing duties under the ELD.
3. THE TIMESCALE
FOR IMPLEMENTATION
OF THE
ELD
3.1 Article 17 of the ELD provides that
the ELD does not apply to:
"damage caused by an emission, event or
incident that took place before [30 April 2007]" and/or
"damage caused by an emission, event or
incident which takes place subsequent to [30 April 2007] when
it derives from a specific activity that took place and finished
before [30 April 2007]".
3.2 Article 20 provides that the ELD entered
into force on 30 April 2004.
3.3 The CLLS considers that article 17 strongly
implies that the ELD applies to any damage caused by an emission,
event or incident that takes place after 30 April 2007 even in
the absence of domestic legislation transposing it.
3.4 The CLLS bases this conclusion, in part,
on the ELD not containing any provision which would allow a Member
State to apply the ELD to emissions, events or incidents at any
date after 30 April 2007.
3.5 The CLLS, therefore, considers that
Defra's failure to lay regulations to transpose the ELD before
Parliament so that Parliament may bring the ELD into force by
30 April 2007 will prejudice operators. If, for example, an operator
causes environmental damage subject to the ELD after 30 April
2007 but before domestic law on the ELD has entered into force,
the operator will have no guidance on its duty to remediate the
damage or otherwise comply with the ELD. In particular, operators
will be liable for interim losses from the date that their activity
caused environmental damage (Annex II, paragraph 1(d)).
April 2007
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