This new Directive is progressing through the Commission and European Parliament and has been reviewed by the Parliamentary Legal Affairs and Monetary and Insurance Committees, although not yet by the Environment Committee. In the UK , theEA and DEFRA have commented on the draft published earlier in the year.
The draft referrs to three types of damage: biodiversity, water and soil. The first two refer to other Directives; soil damage refers only to harm to human health and the risk of serious adverse effect. Two types of responsibility are covered: Strict liability according to other Directives (eg IPPC, Waste, Water Framework, Air Pollution, etc.); and fault based for other occupational activities, but only relating to biodiversity.
Exemptions and exclusions include operations in accordance with permits issued under one of the Directives; a state of knowledge exclusion; defence/military; and activities covered by other conventions (eg transport of oil by sea).
Standards of restoration for biodiversity and water are back to baseline; but for soil to the point where it doesn’t represent significant harm. It introduces the idea of interim losses and compensatory actions (eg to provide alternative resources or compensation for the loss of amenity for the same length of time that the amenity is unavailable). There are ongoing discussions about insurance issues.
It will not be retrospective and is not expected to be introduced before 2005.
A DEFRA extended regulatory impact assessment can be found on the DEFRA website.