| According to the European Commission, there are some 300,000 sites across Europe where the soil or water is polluted: each of these sites is one too many. Animal and plant species are threatened with extinction: every species under threat is one too many. Europe's legislators have therefore decided to call time on polluters, who will now be made to pay for the damage they do. This means the damage can be repaired and potential polluters will be given pause for thought.
The EU is hoping that the new law will persuade operators of, say, chemical works or landfill sites to ensure that their installations are safe from the outset so as to prevent any damage and avoid incurring any costs. After all, the European Environment Agency estimated in 2000 that the cost of cleaning up only part of the water or soil pollution in Europe would be up to EUR 106 billion, albeit over a number of years. The rehabilitation of 100,000 hectares of contaminated land in the UK alone has been put at nearly EUR 39 billion. Until now there was no EU-wide legislation on environmental liability and as a result polluters could easily duck their responsibilities. Standard EU legislation was therefore urgently needed. However, some parts of the new directive gave rise to heated debate and the whole procedure was watched with a critical eye by industry on the one hand and environmentalists on the other.
The Directive covers two different areas, where liability is defined with differing degrees of strictness. Firstly, there are certain high-risk activities, for instance the operation of a chemical works or the production and handling of certain pesticides, where the operator is generally liable for all environmental damage. Secondly, there is damage caused through other less risky activities which nevertheless threaten animal and plant species, where the operator is also liable but only if he is at fault or negligent.
Deterring polluters
Should an operator stubbornly refuse to make his plant safe or repair any damage it has caused, the Directive allows national authorities to take action. They can either tell the operator what steps he must take or they can intervene themselves and the operator must then foot the bill. Should the operator not be able to cover the cost of repairing the damage or should it prove impossible to identify the polluter, the Member States will by obliged to repair the damage themselves. How the Member States cover the cost of doing so is up to them. One suggestion is to set up special funds for this purpose.
Large sections of the draft legislation proved controversial, so a conciliation procedure was needed between Parliament and the Council. In the end, agreement was reached on matters including the question of how to provide financial cover for environmental damage. The Directive says that, six years after it enters into force, the Commission must examine whether there are adequate options on offer in the Member States to finance ways of repairing the damage at a fair cost, for instance through insurance schemes. If not, the Commission must draft legislation to bring in compulsory financial guarantees against environmental damage. This was a point Parliament had insisted on.
The Council would have preferred a less far-reaching directive. For example, it would have merely encouraged financial guarantees rather than making them compulsory. The Council also rejected Parliament's demand to extend the concept of environmental liability to all activities a few years after the directive enters into force and thus not limit it to those activities listed in the directive as being high-risk.
However, the protection of habitats and biodiversity throughout Europe and the world requires more than just deterrent measures. For this reason MEPs tabled a resolution on sustainable development in the run-up to the 2002 Earth Summit in Johannesburg in which they noted that the international environmental protection objectives set at the Rio summit had not been met. They called for all agreements on environmental protection to be finally implemented, for sustainable development and environmental protection to be included in international trade negotiations and for the precautionary principle to be incorporated in all world-wide conventions.
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