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96 Transposing the Environmental Liability Directive in Scotland : Brown [2008] 3 Env. Liability
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Two councils also pointed out that the permit and state-of- Environmental LINK, which represents a number of large
the-art defences could be used as loopholes and that it was NGOs in Scotland, complained that the minimalist
the responsibility of the operator, not the permit-issuing approach towards the ELD could have a negative knock-on
authority, to ensure that activities cause minimal effect on other environmental policies. Several NGOs
environmental damage. highlighted the issue of GMOs and their potential
On the business representation side, responses were as environmental impacts, which was not covered adequately
expected. All agreed on the Scottish Executive’s minimalist, by the then Scottish Executive. The Scottish Government
pragmatist approach not to ‘enhance’ the ELD by extending has since given way to some of the GMO lobby pressures
the policy to other areas of Scottish law. Business and has made some minor adjustments, for example
representatives also wished to maintain the permit and extending the threshold within which past damaging GM
state-of-the-art defences and emphasised that costs should events can be considered under the ELD from 30 to 75
be reasonable and proportionate. The Association of Insurers years, to allow for long-term impacts.
stood out by presenting its assessment of the ELD’s potential Interestingly, two of the NGO responses to the first
impact on insurance products. It pointed out that the ELD consultation stage were written by the same author. Indeed,
could cause ‘risk pricing’, which in turn could make certain many of the NGOs’ responses and press releases on the
activities too expensive for operators. Consequently, it issue were coordinated, and in some cases evidently copied
could create ‘unacceptable’ knock-on costs in economic and from each other. One environmental NGO activist admitted
social terms. Other associations such as the National to the author of this article that NGOs in Scotland had
Farmers’ Union Scotland and the Clyde Fishermen’s pooled their resources on the ELD. He explained that
Association were somewhat ‘surprised’ by the specific NGOs were generally very ‘cautious’ towards consultation
mention of their sectors in relation to the ELD. They already procedures because these procedures provided only limited
felt that they had to deal with a ‘vast amount of EU scope for (proactive) influence on decision-making and yet
regulation’ and were reluctant to accept any more burdens involved high levels of financial and staff resources. These
in the form of the ELD. Overall, businesses representatives resources, already limited and under strain, would be better
appealed to the Scottish Executive not to move beyond the utilised in other priority and campaign areas. Obviously,
requirements as outlined in the text of the ELD and Scottish the ELD did not constitute such a priority area.
Executive documents, a response that is hardly surprising. Finally, Scottish think tanks contributed towards the
In principle, it would have been possible for business ELD consultation process. The Institute of Biology and the
representatives to adopt an ‘enhanced’ approach and Institute of Ecology and Environmental Management are
embrace a policy of ecological modernisation; this option, worthy of note; both sided with the environmental NGOs
however, was nowhere evident in the business and highlighted gaps and weaknesses in the Scottish
representatives’ responses. Executive’s proposals. The institutes pointed out that the
Similarly unsurprising were the responses from Scottish Executive failed to embrace the ‘enhanced’ option
environmental representatives; these contrasted quite and suggested that the ELD should be extended to cover
clearly with those from the business community. NGOs all species and habitat categories. This would avoid confusion
were in general agreement that the pragmatic approach of over two different systems and achieve the desired outcome
the Scottish Executive failed to apply the core of the EU policy. Both think tanks also expressed their views
environmental aim of the ELD. A bone of contention regarding the loopholes implied in the permit and state-
constituted the issue of defences, which were likely to of-the-art defences, and appealed to the Scottish Executive
provide ample loopholes for polluting operators. Another to take the opportunity given by the ELD and send a strong
major point of criticism concerned the Scottish Executive’s environmental message to polluters.
refusal to ‘enhance’ the ELD by extending it to other In summary, many but – notably – not all stakeholders
environmental policy areas, a matter that the subsequent of the Scottish transposition network participated in the
Scottish Government would not budge on with the second first stage of the ELD consultation process. Considering
consultation document. NGOs predict that this refusal will the importance and potential impacts of the policy, the
lead to a two-class liability system and consequently create network’s overall response was somewhat lukewarm, if not
confusion. Reflecting the general mood of environmental as ‘minimalist’ as the Scottish Executive’s proposals
NGOs, Friends of the Earth Scotland complained that the themselves. In addition to the disappointingly small number
ELD explicitly offered the opportunity to introduce a tough of responses sent to the Scottish Executive, the author’s
environmental liability policy, an offer that is not being taken own research questionnaire generated rather disappointing
up by the Scottish Government. Elsewhere, Scottish results, with several apologies from stakeholders for not

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