The Royal Society of Edinburgh (RSE) is pleased to respond to the Scottish Executive Environment Group consultation on the proposal for a Directive on Environmental Liability with Regard to the Prevention and remedying of Environmental Damage. The RSE is Scotland’s premier Learned Society, comprising Fellows elected on the basis of their distinction, from the full range of academic disciplines, and from industry, commerce and the professions. This response has been compiled by the General Secretary with the assistance of a number of Fellows with extensive experience of environmental issues.

The RSE welcomes this Directive, which takes a balanced and reasonable position and as a framework that gives sufficient flexibility of interpretation to member states. In some cases, however, there will be difficulty in defining the cause of environmental damage. Long term monitoring of major industrial locations along the Scottish coasts have shown that natural fluctuations in habitat conditions, populations and biodiversity are orders of magnitude greater than the discernible effects of industrial discharges or operators. Therefore, if damages are claimed to have occurred in a year when bad weather, or exceptional predation, or higher ambient sea water temperatures produced a natural reduction in a target species, the additional effect of the industrial discharge (for example) will be difficult to quantify. Long-term trend data will consequentially be essential in order to provide the statistical confidence levels to set the limits for assessing negative changes.

The specific issues identified in the consultation paper are addressed below:

Introduction and overview

The Commission's proposal would establish an European Community wide regime aimed at securing the prevention and remedying of damage to water, land and biodiversity, through establishing a system of liability based on the polluter pays principle. Do you support this broad principle?
The Royal Society of Edinburgh supports the proposal of establishing a system of liability based on the polluter pays principle.

Do you think that the Commission's proposal will achieve its environmental aims? If not, why not?
The proposals should go a long way towards achieving the environmental aims of this Directive. Care will need to be taken, however, over the legal wording of the Document to avoid any confusion or ambiguity in its scope and coverage.

Does the proposal strikes a fair balance between the burden placed on operators and the burden placed on public authorities (and, therefore, the taxpayer)? If not, how might a more equitable balance be achieved?
In general, the RSE believes that there is a fair balance in the Directive. However, an important aspect of this will be the ability and willingness of the insurance industry to underwrite the normal activities of operators.

Scope

The Commission's proposal would establish strict liability for damage to land, water and biodiversity from specified activities and fault-based liability for damage to biodiversity from other occupational activities. Do you consider the scope of the Directive to be wide enough?
The scope of the Directive is wide enough. Airborne damage is more diffuse, can spread variable distances and directions and is often an indirect rather than a direct causal factor. The inclusion of biodiversity is also an important step forward and in line with the Convention on Biological Diversity.

Do you agree with the approach of strict liability for specific activities and fault-based liability for biodiversity damage caused by other activities?
The RSE believes that this would be a sensible way forward.

Do you agree that nationally designated sites should be included in the definition of "biodiversity", in addition to the habitats and species covered by European legislation?
Nationally designated sites, such as Sites of Special Scientific Interest (SSSIs) and the Local Nature Reserves (LNRs), should be included in the definition of biodiversity.

Do you agree that activities covered by international conventions, such as those for marine polluters or nuclear installations, should be excluded from the Directive? If you do agree, are there any other international conventions which should be included? If you do not agree, how would you deal with the potential conflict from dual coverage of the same damage?

The long-term aim for this Directive should be that there should be no exclusions. Therefore, the list of exclusions should be as short as possible, and perhaps be time limited. In this way, when International Conventions are re-negotiated, they would take account of this European Directive, and we could see a coming together of the principals of both this Directive and of the International Conventions.

Prevention and Restoration

Is the Directive’s approach to remedying reasonable?
The RSE supports the Directive’s approach to remedying environmental damage.

Is it practicable to require compensatory restoration to be carried out away from the damaged site, biodiversity or water? If not, what other arrangement is appropriate?
It is often not practicable to require compensatory restoration to be carried out away from a damaged site as there maybe no alternative site. For example, it may not be possible to create a wetland on arable land in lieu of a wetland that has been damaged or destroyed. Therefore, the priority should be given to restoration on the site that has been damaged. If this is impossible, and a suitable site elsewhere is not available, then payment should be made into a national fund to enable work on national Biodiversity Action Plans and the local Biodiversity Action Plans to be carried out for the good of the nation as a whole, which are currently under funded.

Additional Information
In responding to this consultation the Society would like to like to draw attention to the following Royal Society of Edinburgh responses which are of relevance to this subject: The Basis for Environmental Standards (January 1996); People and Nature: A new Approach to SSSI Designations in Scotland (November 1998); EU policy on Biodiversity (May 1999); Study of Environmental Planning (October 1999); National Parks (Scotland) Bill (March 2000); Royal Commission Study of Environmental Planning (July 2000); Long-Term Effects of Chemicals in the Environment (January 2001) and European Commission's Chemicals White Paper (April 2001); The Nature of Scotland: A Policy Statement (May 2001); The Sixth Environmental Action Programme (May 2001); Natural Heritage Zones Programme (July 2001) and The Long-Term Effects of Chemicals in the Environment (February 2002). 

September 2002

Further information is available from the Research Officer, Dr Marc Rands