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Within the European Union, environmental regulation comprises a mixture of EU and domestic laws. The EU Environmental Liability Directive (ELD) took effect across Europe in 2009. Its purpose is to establish a framework of environmental liability based upon the ‘polluter pays’ principle. Liability under the ELD has little in common with standard civil liability rules. It does not give private parties a right to claim compensation. Instead, it puts environmental protection in the hands of competent national authorities.
There are three categories of environmental damage under the ELD:
The ELD provides for two liability regimes. Under the first, operators of activities posing a higher environmental risk may be held liable in the event of damage to protected species and natural habitats, water damage and land damage. There is no requirement of fault or negligence, and relatively few defences are available. The second regime applies to operators of other activities and imposes obligations in the event of fault or negligence.
The ELD gives power to prevent and remediate environmental damage at the operator’s cost. The remediation of water, protected species and natural habitats is achieved by physically reinstating the environment to its baseline condition. Such reinstatement may take the form of replacing damaged resources, acquiring or creating new natural components, or taking complementary measures on a different site. In order to remediate land damage, measures can be taken to ensure that the relevant contaminants are removed, controlled, contained or diminished so that the contaminated land no longer poses a significant risk to human health.
The ELD requires member states to encourage the development of financial provision, with the aim that operators should use financial products to guarantee their environmental responsibilities.
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