2006: Environmental Liability Directive.

The ELD introduces a common framework for the assessment of damage, standards and financing of remediation. Many of the provisions already operate in England, Wales and NI. New defences are proposed but, in our view, would have limited scope if the directive is transposed as described in this consultation.

New liabilities for remediation following release of micro and macro organisms are identified.

New options of complementary and compensatory remediation are likely to be introduced.

The Government proposes to resist the use of a “permit” and “development risk” defences. The ELD creates the possibility of using these defences but each jurisdiction can define the scope that applies. The choice of scope could be challenged.

In our view, insurance against the costs of remediation would not experience a step change as a result of this directive and the way the UK government intends to transpose it. Liabilities to third parties would probably be unaffected though there may be more scope for courts to explore complementary and non pecuniary compensation measures.

Evidence from:

DEFRA PB12342 November 2006
“Consultation on options for implementing the Environmental Liability Directive (ELD)”

There was no mention of nanotechnology. Current UK regimes also make no specific accommodation for such materials. Under a strict liability regime such provisions may, in any case, be redundant.

Further detail:

6#9-10 6