Category Archives: Environmental Law

Liability under the Environmental Liability Directive

The case of Seiont, Gwyrfai And Llyfni Anglers’ Society v Natural Resources Wales [2016] required the Court of Appeal to consider the meaning of the concepts of “damage” and “environmental damage” in Directive 2004/35/EC on environmental liability as it applies to the prevention and remedying of environmental damage (“the Environmental Liability Directive”).

The anglers said the Environmental Liability Directive imposed liability “not only for pollution that makes the existing environmental situation worse, but also for pollution, such as continuing emissions [whose effect] is to retard or prevent the natural recovery of the environment from damage previously inflicted upon it.”

The court said this was impossible to reconcile with the unmistakeable purpose of the Environmental Liability Directive, which embodied the “polluter pays” principle.

“…the obvious intent and effect of those provisions is to require an operator not to cause the condition of the environment to fall below the condition it would have been in at the time of, and but for, his action or failure to act – its “baseline condition”. They do not require the operator to go further, by taking steps to remedy pre-existent damage to the environment – whether damage to natural resources or damage to natural resource services – or by ensuring or securing the improvement of such natural resources or natural resource services from their “baseline condition”. They do not bite upon the acts or omissions of an operator the effect of which is merely to cause the environment not to improve or improve as fast as it otherwise would, or – as [the anglers’ barrister] said in argument – to slow its “potential” improvement.”

“…. the concept of “damage” in article 2(2) of the Environmental Liability Directive, … means a measurable deterioration in the existing state of the “natural resource” or the “natural resource service” in question. Both a measurable “adverse change” in a “natural resource” and a measurable “impairment” of a “natural resource service” involve a measurable deterioration to that “natural resource” or “natural resource service”, as the case may be, from its “baseline condition”, as defined in article 2(14). Where the “impairment of a natural resource service” is concerned, this concept of “damage” applies, through the definition of “natural resource services” in article 2(13), to any “impairment” to “the functions performed by a natural resource for the benefit of another natural resource or the public”. The concept of “environmental damage” in article 2(1), where it concerns “(a) damage to protected species and natural habitats …” and “(b) ‘water damage'”, imports and depends upon that concept of “damage”. This, I believe, is the only interpretation of the concepts of “damage” and “environmental damage” compatible with the other relevant provisions of the Environmental Liability Directive.”

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.