Memorandum submitted by the National Farmers'
Union (ELD 16)
1. The National Farmers' Union (NFU) welcomes
the opportunity to submit written evidence to the Environment,
Food and Rural Affairs Committee inquiry on Implementation of
the Environmental Liability Directive. The NFU represents some
55,000 agricultural and horticultural businesses across England
and Wales, all of which will be affected by the Directive implementation
to some extent.
2. Set in the context of the implications
for agricultural businesses, our written submission covers the
following points within the terms of reference of the Committee's
inquiry:
— Application of the "permit"
and "state of knowledge" defences;
— Limiting the scope of Directive to
EU-protected biodiversity; and
— The capacity of organisations to
take action under the Directive.
SUMMARY
3. Even limiting the scope of implementation
strictly to the Directive requirements, the Government estimates
that up to 42 significant environmental damage incidents are expected
to occur per year and that 40% of the anticipatory and remediation
costs could fall to agriculture.
4. Agricultural businesses are potentially
more greatly affected by the Directive implementation than other
businesses in that they are often operating in very close proximity
of (or within) EU protected habitats, close to watercourses, and
perhaps uniquely undertaking a range of activities where liability
for any significant environmental damage under the Directive will
be strictly applied.
5. Agriculture has made a number of significant
improvements in its environmental performance recently[9],
but given the potential impact of the Directive on our sector;
we very much welcome and support the Government in its preferences
to:
— adopt the permit defence in respect
to those elements of the Directive's requirements;
— limit the scope of the Directive
to EU-protected biodiversity; and
— limit the application of strict liability
in line with the provisions of the Directive.
AGRICULTURAL CONTEXT
6. Agriculture has made significant improvements
in its environmental performance recently and recognises its responsibilities
in continuing to demonstrate change. Evidence from the joint Environment
Agency and NFU publication "Good Farming, Better Environment"
indicates that the pressures from farming practices are reducing:
— The number of pollution incidents
from agriculture has fallen;
— Ammonia emissions have fallen;
— The efficiency of nitrogen use is
increasing;
— Numbers of farmers participating
in agri-environment schemes is increasing; and
— Farmland bird numbers have stabilised.
7. Even where the scope of implementation
is limited strictly to the Directive requirements, Government
estimates that up to 42 significant environmental damage incidents
(to land, water or biodiversity) are expected to occur per year.
8. The potential costs to the agriculture
sector are expected to be high and in comparison to other business
sectors will face the highest proportion of costs. Government
estimates that 40% of the anticipatory and remediation costs to
businesses could fall to agriculture.
9. Agricultural businesses are potentially
more greatly affected by the Directive than other businesses as
they are often operating in very close proximity of (or within)
EU protected habitats, close to watercourses and undertaking a
range of activities, many of which may fall within the Directive
Annex III where liability for any significant environmental damage
is strictly applied.
10. Extension of the scope of the Directive
provisions would only add very significant additional burdens
to agricultural businesses.
11. In addition, given that agriculture
has a number of critical roles to play in the future in terms
of food production and food security, in helping mitigate the
effects of climate change through renewable fuel production and
in maintaining a central and defining role in our rural communities,
placing too many high level risks onto our land managers will
be detrimental to the extent to which these important roles can
be fulfilled.
APPLICATION OF
THE PERMIT
AND STATE
OF KNOWLEDGE
DEFENCES
12. Although Member States do have the discretion
whether to apply the permit and state of knowledge defences, our
view is that their application is justifiable.
13. To disapply the permit defence would
undermine the confidence in the permit authorisation system and
approvals process and introduce a great deal of uncertainty for
operators and competent authorities.
14. In addition, we believe that the state
of knowledge defence is critical for those activities covered
in Annex III, but not covered by the permit defence (those not
expressly authorised by permit, licence or are approved) but are
undertaken in good faith and according to good practice and the
technical and scientific knowledge at the time.
15. Given the range of activities covered
under Annex III, there will have to be a discussion as to the
possible interpretation of "product" in this defence.
Farmers and growers use a number of "products" such
as pesticides, which have guidelines (based on good practice and
the scientific and technical knowledge at the time). But they
also use materials such as composts but spread in according to
good practice and the latest scientific and technical knowledge.
We believe that activities such as the spreading of composts according
to the latest guidelines should be just as defensible as the use
of products.
LIMITING THE
SCOPE OF
DIRECTIVE TO
EU-PROTECTED BIODIVERSITY
16. In discussions with Government and in
our formal response to the recent Government consultation we have
favoured implementation:
— of the strict/fault-based distinction
in the ELD (rather than one based on strict liability no matter
which activity caused the damage); and
— to include only EC protected species
and habitats (rather than including habitats and species designated
under national legislation).
17. These are our preferred options as these
most closely follow the intention of the Directive and provide
greatest certainty for farmers and growers.
THE CAPACITY
OF ORGANISATIONS
TO TAKE
ACTION UNDER
THE DIRECTIVE
18. Our biggest concern about the capacity
of organisations such as the Environment Agency and Natural England
to take action under the Directive relates to any application
of paragraphs 1 and 4 of Article 12 to cases of imminent threat
of damage.
19. Questions arise as to how the competent
authorities can make an assessment of an "imminent threat",
but also whether they have the capacity to respond to requests
for action made by third parties, particularly if repeated requests
are made by those with a grievance against a business, company
or individual.
April 2007
9 State of Farmed Environment "Good Farming,
Better Environment"-Environment Agency and NFU joint publication
http://publications.environment-agency.gov.uk/pdf/GEHO0406BKEP-e-e.pdf Back
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