Page 31 - Lawtext Environmental Liabilty Journal Example

98 Transposing the Environmental Liability Directive in Scotland : Brown [2008] 3 Env. Liability
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environmental representative groups stepped out of line, local communities. The policy also arguably has the potential
nor did the ‘policy broker’ Scottish Executive/government to be used as a stepping-stone towards more stringent
adopt a stance that diverted from previous policies. Indeed, ‘polluter pays’ measures, a consideration that adds to the
it is not surprising that the Scottish Executive/government importance of the current directive. In the light of the
has maintained a minimalist approach towards the ELD, as transposition variations already displayed by EU Member
this approach reflects a traditional pragmatism vis-à-vis States, it is clear that Scotland belongs to the ‘minimalist’
administrative and financial costs associated with end of the environmental liability policy spectrum. This
environmental regulation. Yes, the Scottish Executive position is unlikely to change in the next few months.
conducted an elaborate consultation process contacting Over the years, the EU has had to deal with several
hundreds of stakeholders and giving them an opportunity balancing acts. First of all, it has had to strike a balance
to express their views and ultimately shape the Scottish between flexibility and discretion on the one hand and a
version of an EU environmental policy. However, from the level-playing field and policy effectiveness/efficiency on
beginning this opportunity was flavoured with some the other. Secondly, it has had to strike a balance between
reluctance on the part of the Scottish Executive. economic and environmental interests. These balancing acts
Furthermore, it did not receive much attention from are evident in the ELD document. The Scottish case study
Scottish stakeholders. In a nutshell, the Scottish Executive/ has shown that the overall balance can tip towards discretion
government has conducted an elaborate consultation (rather than uniformity) as well as a minimum
process, which has, however, fallen short of filling the ELD’s environmental policy. This begs the question as to whether
discretionary gaps in a creative or ‘enhanced’ way. The ELD the ELD, although well-intentioned and carefully worded
did offer the opportunity to go beyond the basic provisions at the outset, will bring about the intended environmental
of the legislation. It could be argued that, in order for the policy changes that are necessary in order to make operators
ELD to be truly effective, it would have been necessary to pay for environmental damage and, in the long run,
go further. However, the Scottish Government has not internalise environmental costs. Although one would
grasped this opportunity to date and, interpreting the assume that the young and ‘inclusive’ consultation process
outcome of the first consultation stage, is highly unlikely of the Scottish transposition network facilitates (and
to do so in the near future. contributes towards) environmentally friendly decisions,
Finally, it is interesting to compare the original this case study has shown that this green assumption may
intentions and high expectations of the ELD with the not necessarily be the case. Other factors such as policy
somewhat half-hearted way in which the policy has been distractions in the form of government change and
processed in Scotland so far. This relative lack of alertness economic/financial concerns appear to put a spanner in
and interest in the policy is evident on all sides of Scottish the works of environmental policy implementation and
society. This is astonishing, considering that the policy ultimately the output of an environmental policy. To
occupied political minds at the EU level for several decades. conclude (and put it bluntly), with the ELD EU legislators
It is also astonishing as, once it has been fully transposed, might have taken the Scottish transposition horse to water,
the policy will have major implications for economies and but this does not necessarily mean that it is going to drink.

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