Making the Polluter Pay
The Environmental Liability Directive:
Letting Down the Environment?
A report by GeneWatch UK and the RSPB

Summary
This report considers the implementation of the Environmental Liability Directive
(ELD) in the UK, with a focus on England, Wales and Northern Ireland, and the important issues that are required to ensure it is an effective piece of law to meet its twin objectives of:
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implementing the ‘polluter pays’ principle preventing environmental damage

The ELD covers significant damage to water, land and certain EU protected habitats and species, which is caused by any loosely business-related activity in the case of biodiversity damage; or a range of potentially dangerous activities in the case of water, land and, biodiversity damage. These activities include for example,
Integrated Pollution Prevention and Control (IPPC) regulated businesses, the use of genetically modified organisms (GMOs), the disposal and transport of waste and other dangerous substances, the abstraction of water and the discharge of pollutants.
The Government is conducting a consultation about its proposed approach to implementing the ELD.1 In the implementation process there is scope both to improve on the ELD, or to weaken it. This is because the ELD allows countries to introduce higher levels of protection if they wish, and it contains discretionary provisions allowing Member States to improve the provisions of the Directive.
Currently, the Government is reluctant to go further than the Directive and favours a
“minimal” approach to implementation in England, Wales and Northern Ireland.

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To prioritise environmental protection, the Government should:
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Ensure that the “polluter pays principle” is properly and effectively applied
– the “polluter pays principle” is not only the guiding principle of the ELD, but also of the UK Sustainable Development Strategy “Securing the Future”. If it is to be applied effectively in relation to environmental liability, this means that discretionary and other provisions of the ELD that weaken or oppose the
“polluter pays principle” should not be transposed into UK legislation. Instead they should be replaced by provisions that strengthen this principle. This could be achieved, for example, by widening of the imposition of strict liability for biodiversity damage caused by all activities, not just those listed in Annex III of the ELD; and by a decision not to implement the “permit” and “state of the art” defences, which allow businesses to escape from the obligation of having to pay for remediation of the environmental damage they cause, even though they are legally liable for causing that damage under the Directive.

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Bring nationally protected biodiversity within the scope of environmental liability provisions – particularly Sites of Special Scientific Interest (SSSIs) and
UK Biodiversity Action Plan (UK BAP) habitats and species.
A variety of targets exist to ensure the nationally important site network is properly protected and managed2. Leaving out nationally important wildlife sites may compromise the Government’s ability to meet its own targets.
According to the Government3, three thousand three hundred SSSIs in England alone will not be captured by the laws transposing the ELD, unless the scope of the laws are widened compared to the Directive. Around two thousand four hundred of these are biological SSSIs, covering around 22% of the land area of biological SSSIs, and around 900 are geological SSSIs. The SSSI system is an important pillar of nature conservation in the UK. An estimate of the costs to
English Nature (now Natural England) of maintaining and improving SSSIs in
England in 2002/03 were around £37.1m4.
In the UK, a Biodiversity Action Plan was launched in 1994. Species and habitats of conservation concern were identified and plans established to protect and improve their status. The Government has said5 that three hundred and seventy five UK BAP species (79% of