Stakeholders in sectors including insurance and chemicals have expressed concerns over the implementation of the environmental liability directive, with only eight member states having transposed this complex piece of legislation into national law some four months after the deadline.
A meeting of the ‘Ad-hoc industry Natural Resource Damage Group’, a group of industry experts focusing on natural resource damage assessment, expressed concerns on “how the Environmental Liability Directive will be implemented in practice”. The panel, made up of representatives of UK industry, insurance and petrochemical companies, outlined a number of issues related to the application of an environmental liability regime, including:
- Legal interpretation issues arising in connection with a liability regime: definitions of “significant damage” and multi-partite cases of liability, plus situations in which companies may or may not use exclusions and defensive measures (both permits and “state of the art” ones, i.e. emissions and activities that the operator proves are not likely to cause damage at the time the emission occurred, according to the states of scientific and technical knowledge) and overlaps of the new law with existing liability regimes;
- technical issues related to the remediation of environmental damage, such as the interpretation of “baseline conditions” and choices of methodologies for recovery;
- lastly, financial security issues continue to be widely discussed. Under the directive, member states are free to make financial security compulsory but are supposed to “encourage the development of financial security instruments”.