Page 28 - Lawtext Environmental Liabilty Journal Example

95
95
95
[2008] 3 Env. Liability : Transposing the Environmental Liability Directive in Scotland : Brown 9595
to ‘permit defence’ while the second category refers to Insurers); special interest groups (eg National Farmers’
‘state-of-the-art’ defence. Union Scotland); and large companies (eg Shell UK). The
Scottish Executive summed up the responses as largely in
support of the Scottish Executive proposals. However, the
Responses from Scottish stakeholders
Scottish Executive summary of responses failed to provide
Considering that the ELD introduces a new civil law a coherent and, more importantly, balanced overview of
approach to environmental regulation in Scotland in that it all the key issues raised by the respondents, and so it is
makes operators liable to pay for any ‘significant’ damage, necessary to look at the individual responses.
it appears that MSPs have shown little interest in the policy In the course of the consultation process, SEPA and SNH
and its potential costs and benefits. This relative lack of were identified by the Scottish Executive as potentially the
interest contrasts with the current interest of the Scottish leading ‘competent authorities’, a suggestion that was
Parliament in transposing EU directives in general. The widely accepted by the respondents and has since been
European and External Relations Committee is conducting confirmed by the Scottish Government with the addition
an inquiry into how to improve the effectiveness and of Scottish ministers in marine environment cases. In their
transparency of the transposition process and how to make responses, both SEPA and SNH supported the Scottish
12
EU directives more ‘tailor-made’ for Scotland. Yet, despite Executive’s interpretations of the ELD and both contributed
this interest in transposing EU directives, the Environment towards the Scottish Executive documents. SEPA, however,
and Rural Development Committee has addressed only one wished to see more clarification on issues such as application
very specific question regarding the ELD: it asked for timescales, responsibilities and criteria, as well as the
further clarification on the matter of possible cross- introduction of a relevant system that tackles cost recovery,
contamination and liability costs arising from close all of which have to a certain extent been addressed by the
proximity between genetically modified (GM) and organic Scottish Government. Furthermore, SEPA stressed that
crops. The then Scottish Executive replied that the ELD ‘competent authorities’ should have discretionary powers
covered the contained use and deliberate release of when approached by third parties over whether or not a
genetically modified organisms (GMOs) sufficiently, and case should be investigated. This discretion was duly adopted
felt that it was unnecessary to close any interpretive gaps by the Scottish Government and now forms an important
on the GM issue. The Scottish Executive did not expect part of the latest proposal. SNH highlighted the need to
any cases to arise as the ELD applied only to ‘significant coordinate and exchange information across the United
damage’, which was unlikely, given that GMOs require an Kingdom, which suggests that SNH is not only aware of
13
environmental risk assessment prior to authorisation. This possible cross-boundary issues but is also concerned about
answer leaves GM critics with the question: what happens potential problems that may arise with a new ‘un-tested’
if damage occurs anyway, including ‘significant’ damage? policy. SNH agreed with SEPA over discretionary powers
Moving on to the actual consultation procedure, it is to avoid ‘unnecessary’ liability proceedings and pointed out
first of all worth noting that only 54 of the 427 addressees that the costs as estimated by the Scottish Executive may
responded. Another 194 responses from individuals can be be higher once the ELD has been implemented.
added to the overall picture; views were expressed on the Considering that local authorities are likely to be
already-mentioned GMOs. Out of the two key ‘competent affected by the ELD, it is surprising that only five councils
authorities’ SEPA and SNH; local authorities (although their responded to the Scottish Executive proposals.
number was surprisingly low with only five councils Furthermore, the author is not aware of an official response
participating); green NGOs (eg RSPB Scotland which from CoSLA, an umbrella organisation which represents
responded with an 84-page document); think tanks (eg Scottish local authorities to the Scottish Government. This
Institute of Biology); trade associations (eg Scottish inactivity suggests either a general consensus between
Environmental Services Association, Association of British CoSLA and the Scottish Government or a lack of interest
in the policy. The local authorities that did respond, however,
considered the ELD carefully and contributed their views
on the practicalities of the policy. Particular attention was
12 The inquiry also looked into the question of differential paid towards the definition of ‘significant’, which required
implementation between the United Kingdom and Scotland. If such
differential exists, the inquiry addresses the question of whether it more clarification. Overall approaches and attitudes
has positive or negative implications for Scotland. See towards the policy varied, however, from supporting the
www.scottish.parliament.uk/s3/committees/europe/inquiries/
euDirectives/eu-call-evidence.htm. Scottish Executive’s minimalist pragmatism to reminding
13 Scottish Executive Briefing Paper ER/S2/06/35/3b. it of the original environmental objective of the EU policy.

ENVIRONMENTAL LIABILITY PUBLISHED BY LAWTEXT PUBLISHING LIMITED
www.lawtext.com