After much deliberation, the European Union enacted a directive on Environmental Liability, 2004/35/EC. The April 30, 2007 date for national transposition and the effectiveness of the law has passed. Its requirements are now in force, but how effective will they be? One key element of the Directive is the requirment that operators notify authorities when their actions cause (Article 6) or threaten (Article 5) environmental damage. Another is the ability of the government to recover costs when it has to respond.
The difficulty lies in that the ELD uses the ultimate legal standard for the scope of remedy (“envrionmental damage”) as a consistent reference point for all operative parts of the Directive. This may seem, at first blush, to be logical, but it actually renders much of the Directive’s provisions highly problematic.
The obligation for early actions by the “operators” covered by the Directive are all keyed back to the “environmental damage” definition. That definition supposes a full factual inquiry has been done to ascertain if the habitat or water classification has been impaired or if there is a significant risk to human health. No such documentation will exist at the early stage of a potential covered incident or situation. The preventive action obligation as well as the obligation to notify authorities are both linked to the ultimate factual test for the remediation. The scope of the Directive and all of these operative provisions use a very narrow set of definitions of “environmental damage” which cannot be readily ascertained at the early stage of a site response.
Enforcing penalties for an operator’s failure to act, given that the government must prove that he reasonably knew that “environmental damage” had occurred or was threatened, will be exceedingly difficult. Absent effective and enforceable notification requirements, much of the effectiveness of the Directive will be diluted. The problem persists in cost recovery actions as well, where the same ambiguous definitions and subjective language is used.