Business warning over environment law

New environmental regulations brought into force in March will create extra burdens for business, Andrew Oliver, a partner with law firm Andrew Jackson has warned.

The UK has only recently implemented the Environmental Liability Directive 2004 by introducing the Environmental Damage (Prevention and Remediation) Regulations 2009.

Writing in the firm’s Oceans of Knowledge legal update, partner Andrew Oliver said that the directive was one of the most significant and controversial pieces of European Union environmental legislation to date and was aimed at the “prevention and remediation of environmental damage based on the polluter pays principle”.

Mr Oliver said activities that can trigger the regulation include any allowed under an environmental permitting scheme, like waste management activities, the management of mining waste, discharges to water and ground water, water abstraction and the use of pesticides.

The regulations also apply to the transport of dangerous goods and the transport and release of genetically modified organisms, the law firm explained.
Other activities caught by the rules include those that cause environmental damage to protected species, natural habitats and sites of special scientific interest.

Mr Oliver said that the directive did not impose criminal liability but required those who cause pollution to take immediate preventative action, report the damage promptly to regulators and carry out remedial measures.

Regulators can also take the necessary measures themselves and recover costs from the polluter.

The regulations apply to damage:

• to water anywhere in England up to one mile offshore;
• within a site of special scientific interest;
• to any protected species or natural habitats in England and in English waters up to the continental shelf.

The regulations define environmental damage as damage to protected species or habitats as identified in the Birds Directive or the Habitats Directive including damage which “significantly affects the attainment or maintenance of favourable conservation status”.

Mr Oliver said that there were certain exemptions to the regulations including damage caused before March 1, 2009, caused by natural disasters or exceptional natural phenomena and damage arising from lawful commercial sea fishing. Under the rules, the Environment Agency was responsible for enforcement.

As far as criminal liability was concerned, Mr Oliver said that while it was not an offence under the regulations to cause damage in the first place, as that was usually an offence under other existing legislation, it was an offence for a operator to:

• fail to comply with a notice to take
  measures to prevent imminent environmental damage, served under regulation 13(2);
• fail to comply with a notice to take measures to prevent further environmental damage, served under regulation 14(2);
• fail to comply with a remediation notice, served under regulation 20(2).

Offences are punishable in the magistrates court with a fine not exceeding the maximum of £5,000 ($7,437) on conviction on indictment in the Crown Court, with an unlimited fine and/or a term of imprisonment not exceeding two years.

Lloyd's List [2009-05-06]