Memorandum submitted by the Department
for Environment, Food and Rural Affairs (ELD 18)
QUESTIONS RAISED
BY THE
COMMITTEE
What consultations Defra has had on the Directive
since it was adopted in 2004 and with whom, and whether Defra
has listened to consultees' views?
1. Up to the first public consultation—from
December 2006 to end February 2007—the Government consulted
extensively with members of trade and industrial associations,
non-governmental organisations, local government and others. Stakeholder
engagement in fact started in 2002, shortly after European Council
negotiations on the Directive began—workshops and focus
groups. ELD issues were also covered at various meetings not primarily
concerned with the Directive and also at conferences.
2. The Committee will find, at Appendix
I, a list of the organisations represented at meetings with Defra
and other Government Departments since mid-2004 which either focused
on ELD issues or at which the ELD was among the topics discussed.
Why Defra has taken so long to consult formally
on the ELD. Whether important questions were omitted from the
formal consultation?
3. How to deal with the interface between
the requirements of the ELD and existing domestic environmental
protection regulation has required extensive consideration. This
is because the provisions of the ELD overlap with those of existing
domestic regimes in a complex way. They are more stringent
than existing regulations in some respects but less stringent
in other respects. Most Member States are grappling with issues
of this kind; only three have fully or partly implemented the
Directive by the due date.
4. The Government does not believe that
any important questions were omitted from the formal consultation.
The purpose of the first consultation was to invite views on the
key policy choices to be made. Taking account of these views,
it is intended to hold a second consultation, on draft legislation,
which will include consideration of more detailed matters relating
to implementation.
What discretion Member States have in the implementation
of the ELD, and the reasons for Defra seeking to apply the "permit"
and "state of knowledge" defences under Article 8(4)?
5. The ELD discretions are as follows:
— Article 2.3(c)—Nationally-protected
biodiversity: may bring within the scope of the Directive any
habitat or species which are not included among those EU-protected
natural habitats and species which are covered by the Directive
but which are protected under national legislation for equivalent
purposes.
— Article 8.4—"Permit"
and "State of knowledge": may allow an operator
not to bear the costs of remedial measures taken under the Directive
where he demonstrates that he was not at fault or negligent where
the damage was caused by (a) an expressly authorised event or
emission despite complying with the permit conditions or (b) an
emission or activity which he demonstrates was not considered
likely to cause environmental damage according to the state of
scientific and technical knowledge at the time of the emission
or activity.
— Article 12.5—Requests for
action and imminent threats: may decide not to grant specified
third parties the right to request action by a competent authority
in cases of imminent threats.
— Article 16—More stringent
measures: provides that more stringent measures in relation
to prevention and remedying environmental damage may be adopted.
— Annex III, paragraph 2—Spreading
of sewage sludge, etc: may decide to exclude from those subject
to strict liability the activity of spreading appropriately-treated
sewage sludge from urban waste water treatment plants for agricultural
purposes
6. In the first consultation document, the
Government expressed a preference to apply the so-called permit
and state of knowledge defences (these expressions do not occur
in the Directive). The "permit defence" provides a measure
of certainty for businesses which is important in planning, securing
investment, and facilitating securing of financial security for
potential liabilities under the Directive. The "state of
knowledge" defence is important to facilitate research into
and development of new products and technologies, from which society
derive important economic, social, medical and other benefits.
Which other Member States will be imposing strict
liability to a wider range of activities than is Defra, and which
are applying a more sensitive test of damage?
7. The Government has limited information
on the detail of implementation intentions of other Member States.
Although Member States are required to submit their implementing
legislation for compliance scrutiny to the European Commission,
the latter is not required to publish these. Care needs to be
taken in comparing Member States' approaches because of differing
political, social, economic, administrative and legal practices
and traditions. Of the nine Member States on which the Government
has some information there is no information on extending strict
liability although informal indications are that very few (perhaps
no more than two to three) are intending to extend strict liability
to a wider range of activities than provided for in the Directive.
No information is held on the test of damage. However, four out
of the nine are not intending to extend the scope of the Directive
to nationally-protected biodiversity.
Why is the Government proposing to limit the scope
of the ELD to EU-protected biodiversity, and which SSSIs would
be affected?
8. First of all, it is important to recognise
that under the ELD, the protection afforded to EU biodiversity
is not confined to that located on protected sites: the relevant
species and habitats are protected wherever they are found.
So EU biodiversity is protected within the geographical boundaries
of SSSI and Natura 2000 sites and outside those sites. Moreover,
it is likely that any remediation undertaken as a result of the
ELD within the geographical boundary of a SSSI in order to protect
those European species and habitats will also benefit geographically
proximate nationally protected species and habitats.
9. The Government recognises that there
are arguments for introducing a common protective system under
the Directive covering both EU- and nationally-protected biodiversity
(specifically SSSIs). However, it is the Government's policy not
to go beyond the minimum requirements of a Directive unless there
are exceptional circumstances, justified by a cost benefit analysis
and following extensive stakeholder engagement. The Regulatory
Impact Assessment (in the consultation document—the ELD
RIA) estimated only small net benefits from extending the ELD
to nationally protected biodiversity within SSSIs. Even allowing
for uncertainty, it seems clear that such extension would make
only a very small contribution to the Government's policy objective
of bringing 95% of SSSIs (by area) into favourable or recovering
condition by 2010 on which we are making good progress.
10. The Government is confident of reaching
the 2010 target by continuing to work in partnership across government
and with SSSI landowning, managing or influencing bodies through
a range of regulatory and incentive mechanisms. These include
agri-environment measures such as Environmental Stewardship, backed
up where necessary by the Wildlife Enhancement Scheme, the Heather
and Grass Burning Code and Regulations, Cross-Compliance and benefits
from other land management measures such as Flood Management and
Coastal Realignment.
11. In addition to co-operative management
using financial incentives derived from EU agri- environment measures
and more specific national management mechanisms, there are strong
backstop protection measures. The prime legislation here is the
Wildlife and Countryside (WAC) Act 1981 as enhanced by the Countryside
and Rights of Way (CRoW) and the Natural Environment and Rural
Communities (NERC) Acts which protect SSSIs by setting out a range
of offences, prosecution mechanisms and fines through which the
Courts may also require appropriate remediation to be carried
out. Under this legislation, potential and actual damage is assessed
in terms of its likely impact on the nationally designated features
of the site.
What effect implementing the ELD in the manner
proposed by the Government is likely to have on its meeting the
2010 targets under the Biodiversity Action Plan and its PSA target
to bring 95% of nationally important wildlife sites into favourable
condition; and whether the ELD may take resources away from achieving
these targets?
12. Paragraph 9 above indicated that, on
the basis of the ELD RIA, extending the scope of the ELD to nationally-protected
biodiversity within SSSI would contribute only marginally to attainment
of the 95% target (the RIA suggests one percentage point). Even
allowing for a degree of uncertainty which must necessarily accompany
the assessment, the Government does not believe that its preferred
approach to implementing the ELD will materially in any way affect
the likelihood of attaining the target.
13. It is not entirely clear what is meant
by "whether the ELD may take resources away from achieving
these targets". The Government has in place a programme of
measures towards achieving the 2010 target. This is independent
of enforcement of the ELD, which to a large extent should be self-financing.
Apart from background administrative costs (competent authorities
need to gear up and maintain resources to enforce the Directive),
costs incurred by competent authorities in connection with preventing
and remedying environmental damage are recoverable from the operator
who is responsible for the threat of or actual damage.
The timescale for implementation of the Directive
14. It is expected that implementation in
England will take place in late Spring 2008, following a second
public consultation later this year on the draft implementing
regulations.
The capacity of organisations such as the Environment
Agency, Natural England and NGOs to take action under the Directive
15. The ELD requires designation of one
or more "competent authority(ies)" to enforce its provisions.
Final decisions are yet to be taken but it is almost certain that
EA and NE, and one or two other bodies, will be designated. Both
organisations have played key roles in consideration of the issues
raised by and development of policy since the negotiations on
the Directive. Both are fully aware of the requirements of competent
authorities and, subject to decisions about the scope of their
responsibilities (in particular EA) do not envisage any significant
problems in terms of capacity to discharge responsibility under
the Directive. Both have emphasised that the requirements of the
Directive represent an extension of, rather than complete departure
from, their current powers and duties.
16. The Government cannot speak authoritatively
about NGOs' capacity to take action under the Directive;
this will depend on a number of factors within their control.
NGOs and others do, however, have rights under the Directive.
They may request the competent authority to take action where
they believe environmental damage has been caused, and seek to
have the competent authority's actions or inaction judicially
reviewed.
May 2007
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