"Running head: ENVIRONMENTAL LIABILITY DIRECTIVEEnvironmental Liability Directive ENVIRONMENTAL LIABILITY DIRECTIVE 1 Table of ContentsIntroduction ..................................................................................................................................... 2Scope ............................................................................................................................................... 3Effectiveness/Efficacy .................................................................................................................... 4Mutuality ......................................................................................................................................... 6Environmental Impact ..................................................................................................................... 7Failures of the EU Directive: ........................................................................................................ 11Conclusion: ................................................................................................................................... 13References ..................................................................................................................................... 14 ENVIRONMENTAL LIABILITY DIRECTIVE 2IntroductionThe Environmental Liability Directive 2004/35/EC refer to the EU law directive whichcame into enforcement to improve the environment that we live in. The directive was ratifiedacross Europe in 2009 and was passed as law in March 2009 in the UK. This directive convertedpollution prevention guidelines into requirements, where compliance failure resulted in fines.More significant reformation and reinstatement costs were levied which amounted to millions ofPounds. These directives applied to small and businesses alike, directors of business are notgoing to be able to come up with any excuse to forgo these and if they do so, they will be jailed. The most important considerations within the directive are to contain oil spills andfirewater. Basically this directive is enforced upon those operators whose companies act as anactive threat to the environment. The directive adopts a strict two fold system where operators are have punishmentsenforcedupon them so that they are prevented from causing damaging effects on land, waterand species of animals and plants. Fault based liability is imposed on non-dangerous activitieswhile dangerous activities are provided with strict liabilities. ENVIRONMENTAL LIABILITY DIRECTIVE 3ScopeThe Environmental Liability Directive divides environmental damage into three broadcategories thatis land, water and biodiversity (Levidowet al., 2012).The administrativelegislation for environmental damage in most member states however does not differentiatebetween damage to land, water, flora and fauna. Instead it is only able to provide impositions toprevent and remediate the risk of threat. It is very worrying to see that the provisions onenvironmental damage within the Environmental Liability Directive differ to that set by the EUlegislation. The provisions within the EU legislation account for general harm to human healthand the environment which leads to a rift between the contents of the Environmental LiabilityDirective and other environmental legislation. If there is a situation where two such legislations,not only does referring to each become cumbersome, but the existence of a legislation which isnot as comprehensive as other laws becomes unnecessary (Hillocks, 2012). Most member states of the EU have imposed the liability for remediating contaminatedland as well as contamination of water; some follow the directives for flora, fauna, and water andground contamination. A limited number of states are able to put effect the restoration of floraand fauna. Such differences mean that the legislation which ruled for the Environmental LiabilityDirective to be adopted as national law in the member states was only successful in creating adivide with the existing national legislation for conservation and remediation.Environmental damage as categorised by the Environmental Liability Directive meantthat the liability system that was created was a very complex one, with lack of clarity and visionaffecting any kind of good that it intends to do, posited by Orlando (2014). The commission which heads the initiative is also considering revising its futurepriorities, including the clauses that were added for air damage. This is because the additions forair were unable to consider that remediating for air in the same way as land was not possible. Financial Security The directive is unable to provide any financial security or insurance when the damagehas already been done. Certain parties had suggested the same, when the directive was makingthe rounds in the EU legislative process but this was not included. Under this directive, memberstates are only required to encourage the development of such fiscal instruments. The directive ENVIRONMENTAL LIABILITY DIRECTIVE 4claims that the aim of these should be to enable operators to use any kind of financial guaranteeto actually be able to cover their responsibilities. Effectiveness/EfficacyThe Environmental Liability Directive is not able to account enough liability for theprevention of harm to human health as stated by Winter et al (2013). Harm to human health is anintegral part of the remedial measures that have been set up by the committee. Human health isalso specifically mentioned in relation to land damage. The reference to human health is notsomething that is out of the ordinary. But there are already laws imposed by most EU membersand non-members who impose laws which also tend to protect the environment but most of theselaws are unable to account for flora and fauna which affect human interests as well. Thus, this isan area which the Environmental Liability Directive is able to properly account for. It must alsobe said that despite there being a division in the classification of environmental damage causedto land, water and biodiversity, the directive has been able to increase legal securities andprovide a more defined understanding of environmental damage. Unfortunately the liabilitysystem itself has become very complex and to understand its full implications and meaningsbecomes tough as stated by Glaesneret al. (2014). Land damage according to this policy is punished with strict liabilities if the damagescaused are by the activities of repeat offenders. A measure to remediate land damage differs fromthose adopted during water and biodiversity damage. Water damage has different scopes andrepeat offenders are not punished if they harm to any either water or biodiversity. Sadeleer (2014) says that the general effectiveness of the Environmental LiabilityDirective is also affected as it does not give the individuals or environmental groups the right tosue polluters publically. They are only allowed the right to request a response on behalf of thepolluters as stated by Owen (2014). As an encompassing law, though this directive is able to account for a certain degree ofdiscretion when they are applied to member states, the same kind of law is not applicable fornon-governmental organisations that must prove that they are deemed.ENVIRONMENTAL LIABILITY DIRECTIVE 5As a law itself this directive is self-sufficient, rather it is more useful in adding value tolaws that already exist in different member states. The stringency of the punishments seems todiffer from country to country and member states themselves can implement their own degree ofpunishments upon repeat offenders. There are even suggestions within the law that the rules ofthe directive extend unto a wider range of activities so that responsible parties can be effectivelyidentified.In addition to this, there are also prolonged and belligerent debates that are stillproceeding after the adoption of the law (Gorsevskiet al., 2012). There are many gaps andambiguous sections within the body of the text and some areas are just left upon the discretion ofthe Member states. Significant differences also exist in the way that they are implemented andadopted by the member states. The basic rules of the directive may be the same, yet there existsflexible scope for defence and liability. ImplementationMember states were given a very long time to be able to transpose these directives intotheir national law but most still were not able to keep within the deadlines, some by a severalyears. Owen (2014) states that because of this the last transposition measure was not evenmeasured by the body, while the regime was not able to produce any reports on the transpositionor the implementation will 2010. Owen continues that the missing out on this deadline mean thattwo issues were not efficiently addressed, especially how well the directive was working andhow remedies could be made to keep a check on environmental damage. Because the regime wassuch a new one much of the information that was contained within the directive was much moretheoretical than practical. The practical implementation of these directives would definitelysuffer because of this (Orlandoet al, 2014)The number of cases that were actually brought before the committee was actually verylow as stated by Apitzet al. (2014). The steps that were then taken to rectify this weremisconstrued as Member states were not provided with the proper technical guidance and thestakeholders themselves were not made aware of the wide ranging implications that this directivehad upon the areas that it wanted to oversee. ENVIRONMENTAL LIABILITY DIRECTIVE 6MutualityThe directive must be able to work better with partners across all boards as found by astudy conducted by Deloitte in 2014 (Jordan, 2012). Effective partnerships will be able to helpthe directive move further with a lot of the implementation plans that it hopes to adopt. Memberstates, under growing pressure have been made to realise that various gaps exist within the text.Member states have also stated that across the table partnerships that the directive had statedwere not there, which then led to lesser remedying actions. By spring 2013, there were fiveprojects in the works including a broad study on the details of the implementation of the directiveby member states. This meant that for nine years, there was not enough research done or actiontaken which would lead to a more remedial for of implementation to be brought into the tenets ofthe Environmental Liability Directive. Another four page sheet of a twenty four page brochurewas found which discovered that the package and training of materials was not done in acompetent way, which then led to day on day and eventually week on week delays in supportreaching individual stakeholders. Nillssonet al. (2012) state that separate initiatives were onlystarted after the Deep water Horizon oil spill, which meant that the directive was not effectivelyworking until 2010, which need the directive to widen its geographical scope to cover all thedifferent kinds of offshore zones over which the member states extended their jurisdictionalrights. The directive laws still need to impose stricter financial capacities and securityrequirements as part of their licensing and processing for any offshore operators. The difficulty isthat it is unclear how this principle might be applied in a liability context.While it is clear thatMember States may extend the regime to additional activities and responsible parties, it is notclear whether a national regime would be permitted to deny responsible operators some of thedefences, exemptions or grounds for mitigation set out under the Directive. Despite the relative clarity of and extensive guidance provided in the new Directive, anumber of significant uncertainties persist.For example, little guidance is provided in relation tothe concept of „causing? though this concept is central to the identification of liable operators. Itis also behove the EU parliament to actually intercept in certain matter of the EnvironmentalLiability Directives as it is essential for the law and by laws to have official and governmentalbacking, not only when it is drafted but also when it is implemented at a national or transnationallevel. The use of a narrow concept of causing would often serve to absolve the site owner oroccupier from potential liability which would be likely to lead to substantial orphaned liabilities, ENVIRONMENTAL LIABILITY DIRECTIVE 7particularly in light of the removal of the duty, which had appeared in earlier drafts, on thecompetent authorities to act where there is no responsible operator. One solution would havebeen to impose secondary, residual liability upon innocent landowners for the time-beingwhileanother would have been to create liability for a broader class of causative acts and omissionssuch as that of „causing and knowingly permitting?.Recommendations There is a lot that must be done so that the Environmental Liability Directive is able toremove the exclusions of any conventions that were extended up to the liabilities andcompensations that clarified the intent. In particular, experts and stakeholders werestrongly infavour of more empirical reviews that would show a strong need for ramifications andstrengthening of by laws which would punish repeat offenders even more strictly (Born et al.,2014). The commission itself concluded that they were able to provide important benefits; bothin uniform and straightforward terms which let them remain a necessary and effective agency.The directive should be giving individuals and environmental groups more rights to suedissidents and polluters as this will be able to bring about far reaching changes for environmentalprotection and national law also. Environmental ImpactAccording to Peers, (2016) the European Parliament and the Council of the EUst successfully adopted the Environment Liability Directive on the 21 of April. 2004. Thedirective aimed at establishing a European structure of environment liability regarding thedamages done to the land, air, water, natural resource and protected species of the region.Despite of the implementation of the sui generis, the directive has faced problems and challengesregarding technical deficiencies and legal discrepancies. The environmental liability directiveworks for the prevention of any imminent threat to the environment. The operator shall informthe authority to facilitate the application of control measures to remove, contain or manage therelevant contaminations or similar damage factors to restrict and limit further damage to theenvironment. The Environment Liability Directive (ELD) aims to ensure that the environmentstays physically reinstated. Replacing the damaged natural resources with the help of identical, "