Page 27 - Lawtext Environmental Liabilty Journal Example

94 Transposing the Environmental Liability Directive in Scotland : Brown [2008] 3 Env. Liability
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As far as existing environmental protection regimes are • notify competent authority if measures fail/if damage
concerned, the ELD was judged far-reaching in some areas occurs
(eg remediation in water and biodiversity cases) while being • take immediate action to contain damage
not as broad or stringent as Scottish regulation in other • remedy damage.
areas (eg strict liability across the board, not just as
mentioned in Annex III of the ELD). No direct immediate costs would occur during policy
Wary of potential competency overlaps and conflicts, implementation but potential costs would arise in future,
the Scottish Executive was also determined to make the with an estimate of £0.7m in anticipatory measures. The
policy framework as clear as possible for operators. It Scottish Executive also pointed out that in order to
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identified SEPA and SNH as the lead authorities, and familiarise themselves with legislation, operators may have
argued that the fewer competent authorities there were, to invest in £0.3m in total.
the easier it would be to achieve consistency and policy Competent authorities were expected to take on the
effectiveness. This has now been extended to Scottish following responsibilities:
ministers in cases concerning the marine environment.
Similarly, the Scottish Executive sought to keep the • require information from operators
application of the ELD ‘simple’ by limiting the scope to • require action from operators
what is specifically listed in the directive (eg Birds and • take steps to tackle environmental damage if necessary
Habitats Directives), thereby deciding not to opt for an • decide on necessary steps
‘enhanced’ approach that would extent to other • recover costs.
environmental legislation under Scottish law. However, it
is debatable whether the Scottish Executive/ government The latter is intended to shift the costs away from society
achieved the intended clarity and consistency or not. While and place them firmly with the polluter. The second
applying the ELD to relevant EU legislation, ie the bare consultation documents have since included flowcharts (or
minimum as required by the directive, it did not extend ‘decision trees’) on how operators and competent
the policy to other species and areas of special interest authorities should proceed with potential cases and have
already covered by Scottish law. This could, in effect, lead provided some guidance on determining procedural steps
to confusion and a two-tier system whereby the ELD is and costs. However, it remains to be seen how competent
applied to some environmental cases but not others. authorities are going to recover the costs in practice.
Another concern was the burden of administration and The Scottish Executive also looked into the distinction
proof. According to the ELD, operators would have to notify between strict and fault-based liability: in contrast to fault-
authorities of an imminent risk of damage and would be based liability, strict liability applies to cases where a causal
required to avert or revert the damage. It would then be link is sufficient for action without necessarily deliberating
up to the competent authorities to ensure that the policy is on fault or negligence. Again, the Scottish Executive
applied across the board. In other words, competent commented on the threshold for significant damage, which
authorities together with local authorities would have to was set at a high level. This would identify only a small
develop a regulatory framework on liability and ensure that number of serious cases. On the other hand, the Scottish
the system worked properly. This would include measures Executive felt that occupational activity was defined ‘quite
for recovering costs incurred and providing access to widely’ by the ELD, extending to any activity carried out
information to interested third parties. The Scottish in the course of economic activity, business or undertaking,
Executive pointed out that ‘some fallback provision of irrespective of its private or public, profit or non-profit
offence and penalty may be needed to penalise’ offenders, character. This broad interpretation would be confirmed
suggesting that more back-up for the policy is required. with the second consultation documents.
The Scottish Executive summed up operators’ Finally, the Scottish Executive looked into exceptions
responsibilities as follows: and defences. Following the ELD text, Scottish Executive
exceptions included cases covered by the Euratom Treaty
• consider potential liability responsibility or matters of national defence and security. On the matter
• take action to prevent damage of defence, the Scottish Executive exploited the ELD’s
provision for discretion/ flexibility by including as defence
cases operations where permits had been given previously
and activities based on scientific and technological
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responsible for water and land matters. knowledge at the time of operation. The first category refers

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