An NGO perspective on limitations of the ELD: Environmental damage - - PowerPoint PPT Presentation

An NGO perspective on limitations of the ELD: Environmental damage & access to justice

Andrew Jackson naturalenvironment@antaisce.org 26 November 2014

Point 1: “Environmental damage”

• Environmental Liability Directive (ELD): Potentially seriously weakened,

insofar as protected species and habitats are concerned, by its definition

• f environmental damage:

“any damage that has significant adverse effects on reaching or maintaining the favourable conservation status of such habitats or species.”

• What is the geographic scale? “Favourable conservation status” is a

concept which is assessed at the national level.

• If such an interpretation is accepted, the implications in terms of the

scope/effectiveness of the ELD (Art. 1: “to prevent and remedy environmental damage”; polluter pays) are clear. Purposive approach: local/site-level impacts must also be captured by the ELD.

Digger

Peat extraction in active raised bog Natura 2000 sites

Digger loads peat into spreading machine Peat is spread to dry for burning in winter

Case 1: Damage widespread at national scale

Fuel for domestic heating

This is an issue in Ireland in >20 of 53 active raised bog (priority habitat) Natura 2000 sites.

Mouds Bog SAC

• Co. Kildare

Priority habitat Natura 2000 site

“...there has been a 99% loss of the original area of actively growing raised bog in Ireland, and

• ne-third of the remaining 1% has

been lost in the last 10 years” (CBD, 2010)

Ballynafagh Bog SAC, Co. Kildare

Priority habitat Natura 2000 site

“Unless urgent steps are taken...Ireland is in danger of losing these invaluable habitats...” (NPWS, 2006)

Case 2: A single example (from earlier this year)

Priority habitat turlough SAC in Co. Galway

700+ people’s sewage piped daily into SAC

Action under ELD

• Ireland’s EPA is the competent authority for ELD purposes.
• We have not seen effective action under the ELD on either of

these issues (preventive action or remedial action), despite multiple formal requests for action under the ELD.

• Case 1 (Peat extraction within Natura 2000 sites): Realpolitik
• f ELD enforcement in politically sensitive case? The damage

doesn’t in all cases involve an “occupational activity”.

• But what about Case 2 (Sewage discharged to Natura 2000

site)? Should be captured by ELD.

• What can one do at the national level about ELD decisions

which one regards as legally flawed/ineffective? (Perhaps Member State has conservative regulator; Competent ELD authority vs. public authority cases, etc.)

Point 2: ELD does not provide for access to justice

• E.g. Response from Ireland’s EPA re sewage case
• Damage to protected species and habitats
• But cf. Annex I ELD (criteria to be taken into account in assessing damage

to protected species and habitats): “Damage with a proven effect on human health must be classified as significant damage.”

• So the damage is surely significant(?) – perceived problem must therefore

be adverse effects on favourable conservation status (question of scale)? Cannot be the correct/lawful approach – cf. purposive nature of EU law.

ELD does not provide for access to justice, cont.

• Water damage

Access to justice, cont.

• Article 9 of the Aarhus Convention requires members of the

public to have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.

• These procedures must not be “prohibitively expensive”.
• But challenging an EPA decision under the ELD could easily

bankrupt an individual or NGO in Ireland if the case is not successful (e.g. costs of >EUR 100k). Simply too risky.

• No equivalent to Article 11 of the EIA Directive in the ELD.
• We need the long-promised EU Access to Justice Directive.