`New` Environmental Liabilities: The Purpose and Scope of the Contaminated Land Regime and the Environmental Liability Directive


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Keywords: Environental liability, administrative law, contaminated land, Environmental Protection Act 1990, Environmental Liability Directive

Abstract: Environmental liability as a part of administrative law is increasingly significant and controversial, and the proliferation of schemes creates difficult legal problems. This article examines in some detail the provisions of two of the most significant liability regimes, relating to contaminated land under the Environmental Protection Act 1990 and to environmental damage under the Environmental Liability Directive. It concentrates on the different rationales of the two schemes, using those different rationales to examine the differences between the schemes. The most dramatic differences in purpose are the historic versus contemporary origin of the harm addressed, and this explains some of the most dramatic differences in approach. But the two schemes do not have entirely separate paths, and their purposes are neither self-contained nor exclusive.


The liabilities established in property and tort law were an early legal response to increasing environmental harms and their impact on public health from the beginnings of the English industrial revolution. Private law, however, proved itself dramatically inadequate to the task of mitigating the most harmful impacts of increasing industry and development. During the 19th century, the foundations were laid for our current system of preventive public law regulation of the environment and public health, which came to be preferred to reliance on the common law.1 Whilst private law remains peripheral in most environmental contexts, 'new' forms of administrative or public law environmental liability proliferate, sidestepping the connection with property and individual rights that burdens efforts to use private law in the public interest. I will examine two regimes here: perhaps the most extensive, the contaminated land system contained in the Environmental Protection Act  1990,2 and the system contained in the EUs Environmental Liability Directive,3 implemented in England by the Environmental Damage (Prevention and Remediation) Regulations 2009 ('the Regulations').

The main purpose of this article is to examine the objectives of the two different schemes, and how these might influence and be influenced by their different approaches. Whilst they share explicit objectives of avoiding unacceptable risks to human health and the environment, the most striking difference between the two pieces of legislation is temporal. Contaminated land is presented as predominantly a problem of historic pollution, described by government as 'an archetypal example of our failure in the past to move towards sustainability'.5 Current regulation is supposed to prevent similar problems in the future, and contaminated land is distinguished from problems that can be dealt with under other regulation;6 in a sense then, contaminated land sweeps up harm unaddressed by other regulation. By contrast, the environmental liability scheme is most concerned with ongoing pollution, and so is tightly tied to the standards set by modern environmental regulation. But, of course, this is not an easy distinction to maintain, and contaminated land will capture some 'fresh' contamination, just as environmental liability will look backwards to a certain degree. The two regimes cut across each other, with their subtly different purposes and objectives reflected in subtly different requirements and obligations. Neither is simply stricter than the other; each is broader than the other in some respects, narrower in others. But the different concerns do lead to different patterns of liability. The Directive looks for swift remediation of emerging harm, and is able to couple liability to ongoing regulation of environmental standards, a constraint not appropriate to the historic focus of the Environmental Protection Act.

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