EXTRACTS: It will only be necessary for businesses to argue that harm was not predicted, and that they have not been at fault or negligent, to avoid any economic liability.
The Welsh assembly, for GMOs only, has considered the effect of the permit defence and proposes not to allow it. The Welsh have understood that knowledge and experience of GMOs is limited, organisms are living and any adverse environmental impacts may be serious.
...the government, led by the [Department of Trade and Industry], is letting an important environmental principle drop by the wayside despite the polluter pays being one of the 10 guiding principles in its 2002 sustainable development strategy. Instead of fisheries, biotechnology, waste and chemical industries taking responsibility for their environmental impact, every opportunity is being taken to let them off the hook.
While the public is being told that assessments into GM crops, pesticides and waste disposal are so thorough that their use poses no risk to the environment, this confidence evaporates when it brings tangible corporate financial accountability in terms of environmental liability.
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Off the hook
New environmental laws bring in the notion that the polluter should pay, so why is the UK choosing the weakest option?
Sue Mayer
The Guardian, January 10 2007
http://society.guardian.co.uk/societyguardian/story/0,,1986173,00.html
Nature conservation in Britain has long been based on the protection of key sites and species - sites of special scientific interest (SSSIs), for example, are identified for their biological or geological importance. Castleton in Derbyshire's Peak District, Wychwood Forest in Oxfordshire and Hampstead Heath Woods in north London are just some of the 4,000 designated areas. But while they are considered to be of great importance - covering almost 7% of Britain - around 40% are by the government's own estimation in a lamentable condition.
The UK also boasts a biodiversity action plan created specifically to protect and improve the status of species and habitats of conservation concern. But for the 391 species for which action plans have been developed, the costs are estimated at £21.8m a year - and there is little money.<P>Now, the environmental liability directive has given the UK a further opportunity to greatly enhance conservation.But rather than seizing the chance to improve environmental protection, the UK is choosing to take the weakest option.
This piece of legislation, which was hard fought for in Europe, is due to enter British law this year and is revolutionary in that it introduces the "polluter pays" principle. The thinking behind it is that by making businesses accountable for any environmental damage they cause, they will be more cautious about what they do. In theory, it will prevent environmental harm and remove from society the burden of costs of putting things right.
The European directive was always seen as a base, not a ceiling, for countries' legislation and governments can choose what teeth they give to the legislation they must introduce. But consultation documents put out by the government reveal that its policy is "not to go beyond the minimum requirements unless there are exceptional circumstances justified by a cost benefit analysis and following extensive stakeholder engagement".
The RSPB, one of the only groups campaigning on the issue, has pointed out that the government's own analysis shows the economic benefits to the Treasury of strengthening the directive.
The potential legislation is wide-ranging, but the government is choosing at every point to do as little as possible. The directive provides for "strict" liability for certain potentially hazardous activities. This includes the use of genetically modified organisms (GMOs); waste management; discharge of pollutants into the air or water; and the production and use of dangerous chemicals such as pesticides. Strict liability means that the business undertaking the activity should not have to be shown to be at fault or negligent. Having gained in terms of profits, it should contribute to remediation of any damage that may arise.
The government, however, proposes allowing a "permit" defence to be used to avoid costs. This means that if an activity was given an official licence, payment for damage would not be required.
State of the art
Another defence the government proposes allowing is "state of the art": if the activity was not considered harmful according to the scientific and technical knowledge available at the time it took place, costs should not be payable. This is dangerous because it could encourage a situation where it is better not to know and so restrict scientific research into environmental effect.
Together, the state of the art and permit defences effectively make the liability regime fault based. It will only be necessary for businesses to argue that harm was not predicted, and that they have not been at fault or negligent, to avoid any economic liability.
The Welsh assembly, for GMOs only, has considered the effect of the permit defence and proposes not to allow it. The Welsh have understood that knowledge and experience of GMOs is limited, organisms are living and any adverse environmental impacts may be serious. Because the public there remains sceptical about the benefits of GMOs, they are unlikely to feel it is fair that the taxpayer pays to put any problems right.
Another cause for concern is that under the government's proposals, the directive will include only a limited amount of the environment. All biodiversity with European protection under the habitats and birds directives must be included in the liability directive and it states that countries can go further - but Britain does not intend to do this. This means that a quarter, in terms of land area, of SSSIs will be excluded. The water vole, red squirrel, brown hare and tree sparrow are among the 70% of our biodiversity action plan species that will also be excluded.
Nor is the government choosing to make the directive improve the ecological quality of all our rivers and lakes. Liability rules are to be restricted to larger lakes and rivers: streams and ponds are to be excluded. Land damage is also part of the environmental liability directive, but only if any harm that arises poses a risk to human health. The government does not want to extend this to environmental risks.
The real driving force behind the government's approach became clear last year when the Department for Environment, Food and Rural Affairs (Defra), considered strengthening the directive. In particular, it wanted strict liability to apply. The directive provides for fault-based liability for any activity (such as fisheries) that might harm biodiversity, not just those activities listed as potentially dangerous. Defra wanted to upgrade this so that strict liability would apply to all activities. Even this small step caused such outrage at the Department of Trade and Industry (DTI) that a wholesale reassessment was undertaken in the interests of business and the implementation process delayed by more than nine months.
So the government, led by the DTI, is letting an important environmental principle drop by the wayside despite the polluter pays being one of the 10 guiding principles in its 2002 sustainable development strategy. Instead of fisheries, biotechnology, waste and chemical industries taking responsibility for their environmental impact, every opportunity is being taken to let them off the hook. While the public is being told that assessments into GM crops, pesticides and waste disposal are so thorough that their use poses no risk to the environment, this confidence evaporates when it brings tangible corporate financial accountability in terms of environmental liability.
It seems polluters don't have to worry about damaging our most precious wildlife species and sites, and the supposed polluter pays principle is being made so conditional as to be meaningless.
Sue Mayer is director of GeneWatch UK
Read the consultation at http://www.defra.gov.uk/corporate/consult/env%2Dliability
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