The Environmental Damage Regulations
The Environmental Damage (Prevention and Remediation) Regulations 2009 – as amended by the Environmental Damage (Prevention and Remediation) (England) Regulations 2015 (the regulations) – implement the provisions of the Environmental Liability Directive.
The aim of the regulations is to prevent and remedy damage to land, water and biodiversity in England and Wales. They reinforce the ‘polluter pays’ principle by making businesses financially liable for threats of damage or actual damage caused.
The term environmental damage is defined by the regulations as damage to:
- protected species or natural habitats or a site of special scientific interest (SSSI);
- surface water or ground water;
- land, which results in a significant risk of adverse effects on human health.
To what areas do the regulations apply to?
The regulations apply to land in England and Wales, to the seabed around the UK up to the limits set out by the Continental Shelf Act 1964, and to waters in the Renewable Energy Zone which extends approximately 200 miles out to sea.
Who is liable under the regulations?
The regulations generally only apply to damage caused by ‘operators of economic activities’. There is liability without the need to show fault for activities in Schedule 2 of the regulations. These include activities requiring:
- Environmental Permits (EP);
- discharges to water;
- groundwater discharges;
- water abstraction or impoundment; the use of pesticides, biocides or dangerous substances;
- the use and release of genetically modified organisms;
- the transportation of dangerous goods.
Any business or individual can be liable for damage caused by the regulations if their actions significantly adversely affect a protected species or a SSSI and they either meant to cause the damage or were deemed to be ‘negligent’.
The polluter pays principle
The regulations are based on the ‘polluter pays principle’ so those who are responsible for an environmental damage are required to prevent and if needs be remedy damage.
The regulations have therefore removed the cost of preventing and remedying the damage from the UK government environmental agencies and thus the taxpayer.
Obligations are placed on operators to put in place precautionary measures to avoid environmental damage and to take remedial action if it occurs.
The aim of the regulations is to create an incentive to operators of activities that are likely to cause environmental damage to take steps to avoid this environmental damage and to possess adequate funds in the form of insurance to pay for the clean-up of any environmental damage caused.
Complying with the regulations
To comply with the regulations, if your activities threaten to cause, or have caused, environmental damage you must:
- take steps to prevent the damage (or further damage) occurring;
- inform the Environment Agency or other authorities (eg, Natural England, for damage to SSSIs or protected species and the Marine Management Organisation for inshore sea pollution) who will provide information on what must be done to prevent the damage and or remedy the damage.
What happens if enforcement authority has to remedy the damage itself?
If the Environment Agency or another enforcement agency has to remedy the damage itself, the body which has caused the damage will be liable to pay the enforcement agency’s costs.
Who enforces the Environmental Damage Regulations?
In England and Wales the Environmental Damage Regulations are enforced by the Environment Agency, Natural England, the Marine Management Organisation, local councils and the Secretary of State. Which body administers and enforces the regulations depends on the scale of the damage involved.