What is 'environmental damage'?

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Summary: To date, very few cases have examined aspects of the Environmental Liability Directive and its domestic implementing regulations. The recent case of R (on the application of Seiont, Gwyrfai and Llyfni Anglers’ Society) v Natural Resources Wales, which considers what is encompassed within the scope of “environmental damage”,  therefore makes for interesting reading.

The ELD

The Environmental Liability Directive (“ELD”) entered into force in 2004. It was supposed to be implemented into national law by 2007, but most member states missed the deadline. It was finally implemented in England in 2009 by the Environmental Damage (Prevention and Remediation) Regulations 2009, and in Scotland and Wales by similar sets of regulations at around the same time.The effect of the ELD and the implementing regulations is to make operators liable for the prevention and remediation of “environmental damage” (eg damage to protected species, natural habitats or SSSIs, or damage that lowers the official status of surface water) caused by their activities from 2007 onwards.

Of course, environmental liability is nothing new in the UK. UK laws have required the remediation of environmental damage since well before the ELD and its implementing regulations appeared on the scene. The big question has always been to what extent the ELD and its implementing regulations have changed the status quo and added to the existing burden on polluters.

In some areas, changes are clear – for example, the requirement in certain circumstances for potentially onerous “complementary” and “compensatory” remediation to be carried out is an obvious additional burden on polluters. In other areas, however, the changes are not clear and await clarifying caselaw.

A recent case

There have not been many cases to date, but the latest one (R (on the application of Seiont, Gwyrfai and Llyfni Anglers’ Society) v Natural Resources Wales) was decided on 17 December 2015. It centred on a lake in Wales which had SSSI status due, in part, to its Atlantic Charr fish population. The population had declined dramatically over the years. The local angling club put this down, among other things, to high levels of nutrients (in particular phosphate) in the water due to sewage discharges from Dŵr Cymru Welsh Water’s nearby sewage treatment plant. It formally notified Natural Resources Wales of what it considered to be “environmental damage” and, when Natural Resources Wales’ did not act in the way the angling club hoped it would, launched judicial review proceedings.

Evidence of deterioration in the SSSI or of a lasting lowering of the status of the water body as a whole since 2007 was lacking. The central question in the proceedings therefore became whether the “environmental damage” regulated by the ELD and the implementing regulations encompassed not only instances of actual deterioration of the environmental condition of the SSSI, water, etc., but also instances where the improvement of the environmental condition had been prevented, limited, decelerated or otherwise impaired.

Had the court decided that it did include such instances, it would have meant that the impact on businesses of the ELD and the implementing regulations was very much greater than previously realised. In the event, however, the court decided that it did not, and seriously questioned whether, even if it did, there was any evidence of a deceleration in improvement since 2007.

Concluding thoughts

The court’s interpretation on this occasion was conservative. Businesses should continue to watch this space, however. The court is likely to be asked many more questions in relation to the precise application of the ELD and the implementing regulations in due course.

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