Page 25 - Lawtext Environmental Liabilty Journal Example

92 Transposing the Environmental Liability Directive in Scotland : Brown [2008] 3 Env. Liability
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Taking the horse to water but will it drink?
Transposing the Environmental
Liability Directive in Scotland

Antje Brown *
Department of Politics, University of Stirling

Introduction These variations are not surprising considering that the
text of the ELD is a blend of old regulatory and new flexible
The EU Directive on Environmental Liability with Regard mechanisms. On the one hand, it sets old-fashioned
to the Prevention and Remedying of Environmental regulatory parameters for ‘competent authorities’. Its
Damage (2004/35/EC) has many interesting features. It appendices elaborate in detail on definitions, criteria, and
is, first of all, a carefully worded document built on EU measures, and Member States are ‘required’ to implement
treaties and existing legislation and reflects a long history certain measures such as actively encouraging businesses
of policy tool adjustments. The ELD is based on an elaborate to bring insurances into the environmental damage
consultation process, involving stakeholders (through the equation. On the other hand, the ELD also utilises new
white paper of February 2000 and working paper of July flexible mechanisms in areas such as:
2001) and EU institutions such as the Committee of the
Regions and the Economic and Social Committee. It was • the choice of competent authority
adopted under the co-decision procedure between the • rates of costs borne by operators
European Parliament and the Council of Ministers (it took • apportionment of costs shared by several operators
three readings and a conciliation process between the • cooperation between Member States
European Parliament and Council of Ministers during which • extension to other domestic (and more stringent)
four amendments were debated) and underwent standards.
proportionality and subsidiarity checks by the European
Commission. Its transposition deadline was 30 April 2007 Similarly, the ELD contains both realistic and ambitious
and Member States as well as the European Commission goals. It takes a pragmatic position in so far as:
have to report back by specified deadlines on the policy’s
progress and effectiveness. To date only Italy, Latvia and • it can only be applied to incidents that have occurred
Lithuania have transposed the directive, which compelled after it has come into force
Environment Commissioner Stavros Dimas to threaten legal • it includes a five-year deadline for each liability case
action if the other Member States did not follow soon. 1 • it includes a list of exceptions such as security-related
Already there appear to be dramatic variations between or nuclear activities where liability cannot be applied.
Member States in terms of policy, interpretation, and
transposition. Some Member States (eg Spain) have taken At the same time, it is both ambitious and far-reaching when
the opportunity to ‘enhance’ the ELD by exceeding its it comes to the inclusion of ‘imminent threat of damage’ as
requirements in parts, while others (eg France) have well as the inclusion of interest groups as affected parties.
struggled with it, applied only a minimum of requirements, In short, EU legislators have presented implementers
and have even ‘strayed from’ some of the original policy with a policy that requires a lot of thought and an elaborate
aims. 2
consultation process before it can be transposed into the
relevant legal contexts. Scottish implementers are currently
busy consulting stakeholders about the details of the policy;
* Email ackb1@stir.ac.uk. Scotland has recently completed the first stage of the
1 EU Commission Press Release ref IP/07/581 (27 April 2007). consultation process and is now conducting the second stage
2 For a preliminary comparative assessment of the ELD, see F
Coroner ‘Environmental Liability Directive: How Well Are before adopting a final decision in the form of the
Member States Handling Transposition?’ [2006] 6 Env. Liability. Environmental Liability (Prevention and Remediation)

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