Memorandum submitted by the Wildlife and
Countryside Link (ELD 11)
1. INTRODUCTION
1.1 Wildlife and Countryside Link (Link)
brings together 37 voluntary organisations concerned with the
conservation and protection of wildlife and the countryside. Our
members practise and advocate environmentally sensitive land management
and food production and encourage respect for and enjoyment of
natural landscapes and features, the historic environment and
biodiversity. Taken together, our members have the support of
over eight million people in the UK.
1.2 Link believes that the "minimum
implementation" approach to the transposition of the Environmental
Liability Directive (ELD) has been applied too narrowly and we
greatly welcome the opportunity to submit written evidence of
our concerns to this inquiry. This document is supported by the
following organisations:
— Buglife—The Invertebrate Conservation
Trust
— Marine Conservation Society
— Pond Conservation—The Water
Habitats Trust
— Royal Society for the Protection
of Birds (RSPB)
— Whale and Dolphin Conservation Society
(WDCS)
2. SUMMARY
2.1 Link is concerned that the Government's
preferred options, as expressed in Defra's consultation on the
implementation of the ELD, will fail wildlife and the "polluter
pays principle", under-implement or breach the ELD and other
EU Directives, over-restrict the interpretation of particular
ELD articles, and weaken or conflict with existing UK laws. This
is despite the Partial Regulatory Impact Assessment (RIA) showing
the discussed variations as having strong overall benefits.
2.2 Link is also concerned that rules on
better regulation have not been applied correctly either because
an error has occurred in both the interpretation of the ELD and
of the relevant figures, resulting in policy costs accidentally
being double-counted, or because a qualitative judgement has been
made to avoid increased costs to business even where such costs
achieve net benefits to society and the environment.
2.3 Link believes that the "minimum
implementation" approach has been applied too narrowly and
hopes that this inquiry will seek answers to questions regarding;
— important issues omitted in Defra's
consultation, eg the possible inclusion of Biodiversity Action
Plan (BAP) habitats and species;
— the way Member State discretions
are exercised against the stronger environmental options;
— the extension of strict liability;
— the application of thresholds at
too high a level in relation to the definitions of water and biodiversity
damage; and
— the focus on Natura 2000 sites in
relation to the definition of biodiversity.
2.4 Link urges the Government to consider
options which are shown (in the RIA) to have a net benefit. These
include the extension of strict liability, the inclusion of SSSIs,
and the omission of the "permit" and "state of
knowledge" defences.
3. STAKEHOLDER
CONSULTATIONS AND
CONSIDERATION OF
STAKEHOLDER VIEWS
3.1 Link attended Defra stakeholder meetings
on numerous occasions after 30 April 2004, two of which were joint
NGO/industry workshops. Although these were found to be informative,
it is our opinion that it has not been possible for the Government
to give due weight to the views of environmental NGOs because
of its narrow interpretation of the "minimum" implementation
approach.
4. IMPORTANT
QUESTIONS OMITTED
FROM THE
FORMAL CONSULTATION
4.1 We believe that a number of important
areas were omitted from the formal consultation and include:
— the possible inclusion of UK BAP
habitats and species;
— any discussion of financial security
instruments, markets and mechanisms;
— sufficient detail of the enforcement
regime for the Directive; and
— the application and effectiveness
of the transposing legislation to:
(a) damage caused by genetically modified
organisms (GMOs); and
(b) to the marine environment.
5. THE "PERMIT"
AND "STATE
OF KNOWLEDGE"
DEFENCES
5.1 Link strongly disagrees with the introduction
of the "permit" and "state of knowledge" defences
as they would undermine the "polluter pays principle"
and the principle of "strict liability". The RIA states
that omitting these defences would be a net benefit to society.
Furthermore, "inadvertent" state liability would be
less likely if the defences are not introduced[8].
6. SSSIS, BAP
HABITATS AND
SPECIES, AND
GOVERNMENT WILDLIFE
TARGETS
6.1 Link strongly recommends the inclusion
of SSSIs and Ramsar sites in the implementing legislation. We
would also like to see BAP habitats and species included within
the next five years. We believe the omission of nationally protected
wildlife would result in a complex, confusing, economically inefficient
and unfair system.
6.2 This will make it difficult for Government
to meet its own wildlife-related targets, as damage would either
fail to be restored or would only be restored at the cost of the
state. More importantly, if the ELD were appropriately transposed,
damage could be avoided or prevented from occurring, thus protecting
existing efforts to meet the Government's targets.
6.3 We believe that implementing the ELD
should not have negative effects on monies available for meeting
wildlife targets. The burden for paying for prevention and restoration
of the relevant damage would lie with "polluters"—not
the state—and would be in addition to monies already committed.
It is also noted that introducing the "permit" and "state
of knowledge" defences would shift some of the financial
burden back on the state and ultimately back on the taxpayer.
7. THE TIMESCALE
FOR IMPLEMENTATION
7.1 Link would prefer a slightly delayed
timescale for implementation if this would allow all underlying
environmental issues to be given full and fair consideration.
However, Link understands that this will mean that the UK, like
most other EU states, will be in breach of EU legislation.
8. THE CAPACITY
OF COMPETENT
AUTHORITIES AND
NGOS TO
TAKE ACTION
UNDER THE
DIRECTIVE
8.1 The capacity of competent authorities,
such as Natural England and the Environment Agency, to take action
under the Directive will be strongly impacted if there is no effective
enforcement regime of the ELD, or if no provision is made for
the restoration of damage in relation to which no polluter can
be found, or if the polluter does not have to pay, eg should the
"permit" defence apply.
8.2 Furthermore, Link is concerned that
the rights of NGOs to take action under the Directive are affected
by the Government's decision to remove the right to request the
competent authority to take action in cases of imminent threat
of damage. This would amount to removing the essential role (and
right) of NGOs in respect to protecting the environment under
the ELD.
April 2007
8 For further details on the issue of "defences",
please see the Joint Link's response to the formal consultation
at www.wcl.org.uk/downloads/2007/Joint_link_response_ELD_19Feb07.pdf Back
| 
