Memorandum submitted by the Institute
of Ecology and Environmental Management (ELD 13)
The Institute of Ecology and Environmental Management
(IEEM) welcomes the opportunity to comment on the implementation
of the Environmental Liability Directive.
IEEM WELCOMES FOUR
KEY PRINCIPLES
OF THE
DIRECTIVE:
— That operators who cause environmental
damage (to biodiversity, to water and waterways and to land through
contamination that is hazardous to health) should be held financially
liable—the "polluter pays principle".
— That operators of specified activities
(largely those already subject to environmental permitting and
regulation) have strict liability for remediation regardless of
fault or negligence.
— That prevention is better than cure
and competent authorities will have power to intervene and require
remedial action by an operator when there is risk of damage.
— That time is often material to successful
remediation and that the most successful outcomes will result
from close and co-operative relationships between operators and
competent agencies (eg regulators) (while not precluding enforcement
through courts).
With reference to the specific points of interest
to the Committee, the IEEM comments are as follows:
1. CONSULTATIONS
1.1 IEEM was pleased to have been involved
with some of the earlier discussions with officials of Defra.
From the outset the view of IEEM was that the SSSI's should be
included as this was seen as a very useful contributory factor
in achieving the 2010 targets. IEEM considers that it did have
a chance to make its views felt. In respect of the inclusion of
the SSSI's not subject to EU protection, while Defra officials
may have listened, this viewpoint did not prevail as was made
clear in the declared government's preference. It is assumed that
this relates to the concept of not "Gold Plating" the
transposition of EU directives into UK Law.
1.2 The timescale is somewhat curious and
there was a long period between preliminary consultations and
the publication of the final consultation document. The reasons
for this were not evident to IEEM. The timing of the consultation
was then unnecessarily rushed although the deadline was slightly
extended. The timing over the Christmas period made it more difficult
than it otherwise need have been, especially for smaller NGO's
to make a response.
1.3 IEEM is not aware of any important questions
being omitted.
2. MEMBER STATE
DISCRETION
2.1 IEEM is aware of the variation in the
application of strict liability across Member EU States and is
disappointed in the proposed adoption in England and Wales of
the permit and state of knowledge defences. It takes the view
that strict liability should apply in all situations of biodiversity
damage regardless of the class of activity which causes it.
3. EU PROTECTED
BIODIVERSITY AND
SSSI'S
3.1 The Government's viewpoint that that
the ELD should be limited to EU protected biodiversity has never
been supported by IEEM. This is on the grounds that a significant
proportion of sites (SSSIs) in England and Wales are not included
in EU protected biodiversity. The achievement of Favourable Conservation
Status in these areas is an essential part of meeting the 2010
targets and not to include them discards a potentially very useful
tool.
The UK approach historically has been to create
a rather large number of protected sites which are small in area
but nonetheless significant for Biodiversity.
Certain European countries have very large areas
of SPA/SAC designated land—eg Slovakia (c30% of territory)
and Spain (c25%). Only about 6% of England (10.3% of UK) has SAC
designation. At the very least this means extending the scope
of the transposition legislation to include all SSSIs and Ramsar
sites.
From the practical viewpoint it is possible
to envisage damage to closely adjacent sites being treated differently
depending on whether one or the other was subject to EU protected
biodiversity. This would be an administrative nightmare and no
help at all to those implementing the legislation or having caused
the damage.
3.2 IEEM however takes the view that the
protection of EU Biodiversity and SSSI's though essential, will
alone not be sufficient to meet the long term goals of biodiversity
conservation, especially in the context of climate change and
the need for species to migrate due to changing climatic conditions.
In particular, ecological connectivity is recognised as essential
in this process but Britain has so far failed to provide any effective
response to this Article 10 of the Habitats Directive.
4. TIMESCALE
4.1 The timescale for the implementation
of the Directive of 30 April 2007 will clearly not be met. This
is assumed to be due to the delay in publishing the consultation
document in 2006.
5. CAPACITY
5.1 IEEM concurs with the view that there
may not be sufficient capacity within the organisations concerned
to take action under the Directive. IEEM in a wider context is
concerned that there appears to be an overall skills gap in carrying
out much ecological work which has become more apparent in recent
years. The Institute is instigating a major project to assess
the scale of the problem and how it might be addressed.
IEEM
IEEM was established in 1991 and currently has
around 3,000 members drawn from local authorities, government
agencies, industry, environmental consultancy, teaching/research,
and voluntary environmental organisations.
The objectives of the Institute are:
— To advance the science, practice
and understanding of ecology and environmental management for
the public benefit in the United Kingdom and internationally;
— To further the conservation and enhancement
of biodiversity and maintenance of ecological processes and life
support systems essential to a fully functional biosphere;
— To further environmentally sustainable
management and development;
— To promote and encourage education,
training, study and research in the science and practice of ecology,
environmental management and sustainable development; and
— To establish, uphold and advance
the standards of education, qualification, competence and conduct
of those who practise ecology and environmental management as
a profession and for the benefit of the public.
IEEM is a member of SocEnv (The Society for
the Environment), EFAEP (The European Federation of Associations
of Environmental Professionals) and IUCN (The World Conservation
Union). IEEM has also signed up to the Countdown 2010 agreement
to halt the loss of biodiversity.
April 2007
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