Last edited 18 Nov 2016

Environmental liability directive

The Environmental Liability Directive is intended to protect the environment (water, land and nature) by holding those that cause damage to the environment liable both legally and financially. The Directive came into force in April 2004 but only concerns damage that occurred after the deadline for Member States to transpose the Directive in April 2007.

The Directive covers damage to:

  • Species and natural habitats that are protected by the 1992 Habitats Directive and the 1979 Birds Directive.
  • Waters that are included in the 2000 Water Framework Directive.
  • Contamination of land that could result in a significant risk of damage to human health.

Annex III of the Directive lists certain high-risk activities to which strict liability applies. This means that operators will be held liable for damage, even if they are not at fault, although this strict liability is subject to the ‘mitigating considerations’ in Article 8(4).

For activities not listed in Annex III, operators can also be held liable for damage to protected species and natural habitats (but not land and water), if they are found to be at fault or have been negligent. Therefore, if an operator damages biodiversity through undertaking an un-listed activity, but is not at fault or the damage is to soil or water, the operator will not be liable under the Directive.

An operator is considered to be any person who operates or controls an operational activity.

The Directive is implemented in the UK through the following legislation:

  • England: Environmental Damage (Prevention and Remediation) Regulations 2009.
  • Wales: Environmental Damage (Prevention and Remediation) (Wales) Regulations 2009.
  • Scotland: Environmental Liability (Scotland) Regulations 2009.
  • Northern Ireland: Environmental Liability (Prevention and Remediation) Regulations (Northern Ireland) 2009.

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