Dr. Jonathan Derham Office of Climate, Licensing and Resource Use

Transcription

1 Remediation of Environmental Damage under the Environmental Liability Directive / Regulations: context, and a strategy for how such remediation may be legally and technically achieved Dr. Jonathan Derham Office of Climate, Licensing and Resource Use

2 Outline Brief introduction to Environmental Liability legislation Scope Other legislative synergies etc, The regulators imperative The legal obligations The methods A logical procedure (for damage management) Wrap

3 Environmental Liability Directive (ELD) ( CE) DIRECTIVE 2004/35/CE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (OJ L 143, , p. 56) Article 1: The purpose of this Directive is to establish a framework of environmental liability based on the polluterpays principle, to prevent and remedy environmental damage. Effective date 1 st April 2009 & statute of limitations 30 yrs. Hugely significant piece of legislation

4 Scheduled Activities under the Environmental Liability Directive / National Regulations The legislation applies to environmental damage caused by any of the following occupational activities (Schedule 3 of Regulations): All waste activities Waste TFS All IPPC activities All UWWD licensed facilities All licensed surface water discharges (WPA) All authorised groundwater discharges All APA authorised facilities Road, rail and vessel transport of dangerous goods Management of extractive waste (mines & quarries) GMO contained use & deliberate release Classification, packaging, labelling of dangerous substances & preparations Authorising & placing on the market of biocidal products

5 Activities covered by Environmental Liability Directive / National Regulations Legislation also covers damage to protected species and natural habitats from any occupational activity where an operator acts or fails to act and he or she knows or ought to have known that his or her act or failure to act causes or would cause such damage or imminent threat of damage.

6 Environmental Liability Directive (ELD) ( CE) The fundamental aim of this Directive is to hold operators (public & private) whose operations have caused environmental damage financially, liable for remedying that damage. The ELD also has elements dealing with preventative actions in the event of an imminent threat of environmental damage. Environmental Damage Damage to protected species and habitats Water Damage (scheduled activities only) Land Damage (in so far as risk to human health) (scheduled activities only) Damage Measurable adverse change in natural resource or impairment of natural resource service

7 Scope of Environmental Liability Directive / National Regulations Seeks to protect public goods only how to put an economic or liability value on these? Private Goods Standard legal remedies via nuisance, private civil action, etc., Potential / actual damages relatively easy to calculate (loss of earnings, impact on health, loss of rights/ability to use,..) Public Goods Air, groundwater (??), soil (??), surface water (??), habitats, ecosystems, nature reserves, biodiversity Pure public goods non rival non exclusive

8 Designated Areas The three main types of designation are; Special Area of Conservation (SAC) Habitats Directive Special Protected Area (SPA) Birds Directive Natural Heritage Area (NHA) Wildlife Act,

9 Other Designations Nature Reserve National Parks Refuge for Fauna or Flora Wildfowl Sanctuaries Management Agreements

10 Designated Sites in Ireland in 1970

11 Designated Sites in Ireland 2007

12 Environmental Damage Principal Regulatory/Legal Provisions IPPC & Waste Licensing (Directives & EPA Acts & Waste Mgt. Acts) Prevent, Limit & Remedy consequences of accidents SEVESO Directive & national Regulations Limit Consequences & alleviate the medium and long-term effects of any accident Habitats Directive, Regulations & International Convention on Biodiversity protect & restore damage to habitats/biodiversity Environmental Liability Directive & national Regulations Prevent damage & remedy damage National Major Emergency Management protocol see

13 The (horizontal) ELD is the common thread.. that binds various regulatory authorities into a shared purpose, with the consequent need to articulate collective understandings of the statutory & regulatory obligations, processes and expectations arising from environmental risks, and following environmental damage events.

14 Pollution incident imperatives under the ELD These accident related environmental damage imperatives can be articulated thus: To devise a common understanding of the scope and meaning of; environmental damage risk assessment, environmental damage prevention / management / mitigation, damage consequence assessment, and damage recovery management. The Remedying Restore

15 The Legal Obligations

16 If damage has occurred. The language of the Remedying Remediation Restoration imperatives Pollution incident imperatives under the ELD These accident related environmental damage imperatives can be articulated thus: To devise a common understanding of the scope and meaning of; environmental damage risk assessment, environmental damage prevention / management / mitigation, damage consequence assessment, and damage recovery management. The Remedying Restore IELA Dublin

17 Restoration Options under ELD (Annex II) Primary Restoration/Remediation Restoration to baseline conditions / favourable conservation status Degree of intervention to be selected (full, limited, none) Complementary Restoration Return to baseline not possible Upgrade or improve other sites or develop new Compensatory Restoration interim losses

18 Relationship between Primary, Complementary & Compensatory Remediation Resource Baseline Value Compensatory Remediation Value Interim Losses Complementary Remediation Primary Remediation Time Pollution Incident

19 Restorative Options under ELD (Annex II) Emphasis in the ELD is on the Primary Restorative option The choice as to which option has to be made by the competent authority(ies) Competent Authority is the EPA. However, other State bodies such as the OPW, the Heritage Service (Duchas), Fisheries, Teagasc, Local Authorities, the HSA, etc., will all have a role in advising and informing the competent authority in relation to selection of the optimum solution.

20 The Methods

21 Restoration to Baseline, & Equivalency Remedying of environmental damage, in relation to water or protected species or natural habitats is achieved through restoration of the environment to baseline conditions (Primary Remediation) Where this is not possible Then in determining the scale of Complementary and Compensatory remedial measures, the use of Resource and Service Equivalence approaches shall be considered first. Where these equivalency approaches are not possible then value equivalency should be used

22 For Interim losses or when Primary Remediation is not possible Habitat Equivalency Analysis Resource Equivalency Analysis Resource to Resource Service to Service Value to Value Selection of an appropriate surrogate or Metric is crucial Value Equivalency Analysis

23 Resource/Habitat Equivalency Analysis Methods Methods used to determine the type and amount of remediation needed to make the public whole for past, current, and anticipated future losses related to an incident. Equivalency analyses take into account the chemical, physical, biological and, sometimes, social and economic, nature of an environmental impact and remediation options. The three main approaches to equivalence are commonly applied thus: service to service (mainly habitat equivalency analysis), resource to resource (mainly resource equivalency analysis), and value to value (mainly value equivalency analysis) approaches. The objective of each of these methods is to determine the appropriate amount of complementary and/or compensatory remediation necessary to fully compensate the public for an environmental damage.

24 Equivalency There are four main measures for environmental ecosystems/resources: Type Quality Quantity Value Assuming that the default position for environmental trustees is that the ultimate goal is to generate a remedial strategy that delivers a solution which is of equivalent Value, then the defining factors for differentiating between Primary and Complementary remediation can be thought of as Type, Quality and Quantity.

25 Equivalency Basics Quality Type Quantity Value Objective is Replacement in kind i.e. of a type and/ or quality, and in the quantity, that was lost. TYPE (of remediated ecosystem/resource) Same Different QUALITY (of remediated ecosystem/ resource) Same Differe nt Primary Remediation (same Quantity) Complementar y Remediation * * Assumes Quantity matched to value of loss Complementar y Remediation * Complementar y Remediation * [Same approach for Compensatory Remediation]

26 Determination of Value of a Habitat, Species or Public Resource Ecological value (Intrinsic value) Human service value (recreation, bequest, future potential, ) Economic Value strongly linked to People s Preferences Use Values Direct Indirect Option Non Use Values Altruistic Bequest Existence (Revealed or Stated) Total Economic Value = Use Values + Non use Values

27 Choosing the Remedial Options The reasonable remedial option should be evaluated, using best available technologies, based on the following criteria: The effect of each option on public H & S The cost of implementing the option The likelihood of success of each option Negative impacts potential of option Degree of benefit of options to elements of resource or service Social, economic and cultural concerns and other local concerns Length of time for remedial solution to be achieved The extent to which each option achieves the restoration of the damaged site The geographical linkage of the damaged site

28 Economic Evaluation Central to the decision as to which or whether, Primary, Complimentary or Compensatory remedial measures should be adopted are the economic principles of Cost Benefit Analysis and Cost Effectiveness Analysis The ELD specifically identifies the role of economic valuation techniques in informing decision making. For example the ELD states that the competent authority is entitled to decide that no further remedial measures should be taken if the cost of the remedial measures that should be taken to reach baseline or similar level would be disproportionate to the environmental benefits obtained. Cost Effectiveness Analysis (i.e. what is the most cost efficient way of achieving the objective?) Cost Benefit Analysis (i.e. is a given objective worth achieving?)

29 Economic Valuation Techniques for Environmental Damage to Public Goods The Directive does not specify any particular technique for economic valuation of damage to habitats, species or resources Irish Legal & Technical professionals and Regulators need to develop technical capacity to put a value on public environmental goods/resources, and to apply CBA / CEA principles to decision making on restoration choices There is a need to avoid spending money on restoration that is disproportionate to the value of damage

30 A Logical Procedure for post Damage Management

31 Phased Approach to Incident Remediation Planning (1) PHASES Phase I Damage Assessment Initiation Phase IIA Damage Assessment Phase IIB Damage Reporting ACTIVITIES -Quantification of needs / scoping Team establishment Legal requirements Scheduling -Deployment of Technical Experts -Consultation with relevant competent agencies (standards, designations, etc) -Data collection -Gather data on expectations of environmental trustees, as well as those of public and political representatives Assess injury/damage -Report findings -Assess damage -Select metric -Scale damage -Assess/scale against baseline

32 Phased Approach to Incident Remediation Planning (2) Phase III Remediation Planning Define remediation objectives / requirements / Expectations Develop remediation alternatives Undertake HEA / REA on alternatives Apply CBA / CEA / VEA on alternatives as appropriate Select preferred remediation solution Select compensatory solution (for interim losses) Ensure acceptance by environmental trustees & interested parties Phase IV Remediation Implementation Assign resources Scheduling Implement agreed remediation plan Contracting & supervision Finance Phase V Remediation Monitoring & Validation Establish monitoring and reporting programme for remediation plan Report to technical expert steering group (incl. competent authority) Re evaluate remediation objectives and refine remediation plan as necessary

33 Pollution Incident PHASE I PHASE II PHASE III activities Remediation Planning Primary Remediation Compensatory Remediation Technically Possible Not Technically Possible HEA/REA STEP Using scaling of service / resource losses (PHASE II), define the service / resource gains required CBA STEP Not Cost Excessive HEA / REA STEP Cost Excessive Complementary Remediation CBA STEP Not Technically Possible Cost Excessive Cost Not Excessive CBA STEP Not Cost Excessive Cost Excessive VEA STEP Estimate value of damage CEA STEP CEA STEP Define Remediation Plan PHASE IV activities PHASE V activities

34 Concluding Comments Ex Ante assessment for Env. Risk Assessment (indemnity) Use worst case predictions, i.e.tev of a protected habitat/ species is the primary restorative cost (because of standing regulatory obligations) Necessary for high risk operations that may impact on a protected habitat, species or on a public resource We looked at the relationship between REA/HEA CBA/CEA Phased Damage Assessment processes Complex task: Skills required legal, technical & economic & socio political Knowledge of conservation status (baseline) of all protected resources, sites or species would help, but not essential Close cooperation between regulatory authorities essential Clear resolution pathway for operators & stakeholders necessary HEA/REA, choice of metric and valuation essential for cost recovery actions Processes employed under the ELD are equally applicable to the quantification of private damages / costs

35 Thank You!

36 Selected References 1/3 EU Commission (2001). Study on the Valuation and Restoration of Damage to Natural Resources for the Purpose of Environmental Liability. Report prepared for EU Commission by MacAlister Elliot & Partners and EFTEC, reference B4-3040/2000/265781/MAR/B3. Brussels. Refer also web site at /environment/liability/index.htm EU Commission (2005). Guidance on the preparation of a safety report to meet the requirements of Directive 96/82/EC as amended by Directive 2003/105/EC (SEVESO II). EU Commission, Brussels. EPA (2006). Guidance on Environmental Liability Risk Assessment, Residuals Management Plans and Financial Provision. Irish Environmental Protection Agency. EU REMEDE (2007a). Deliverable #6A: Review Report on Resource Equivalence Methods and Applications. Report prepared under the EU Commission 6 th Framework Programme by Status Consulting Inc., in support of the implementation of the EU Environmental Liability Directive. Published on the EU funded website EU REMEDE (2007b). Deliverable #8: Draft Toolkit Document (outline). Document prepared under the EU Commission 6 th Framework Programme by consultants Eftec in support of the implementation of the EU Environmental Liability Directive. Published on the EU funded website EU REMEDE (2007c). Deliverable #6B: Use of Natural Resource Equivalency Methods in Environmental Damage Assessment in the EU with respect to the Habitats, Wild Birds and EIA Directives. Report prepared under the EU Commission 6 th Framework Programme by consultants Eftec in support of the implementation of the EU Environmental Liability Directive. Published on the EU funded website Hampton, S. & Zafonte, M. (2002). Calculating Compensatory Restoration in Natural Resource Damage Assessments: Recent Experiences in California. Proc World Oceans Conference, California, USA. Hanley, N. (2002). The Economic Value of Environmental Damage. In, Environmental Damage in International and Comparative Law, Eds., M Bowman & A. Doyle. Oxford University Press.

37 Selected References 2/3 Irish Government (1984). Framework for Co-ordinated Response to Major Emergency. Interdepartmental Committee led by the Dept. of Environment. Irish Government, National Biodiversity Plan. Department of Arts, Heritage, Gaeltacht and the Islands, Dublin. [Heritage subsequently moved to the Department of the Environment, see ] Irish Health & Safety Authority (2006). Guidance Document: Safety Report Assessment. Dublin. Also Arrow, K., Solow, R., Portney, P., Leamer, E., Radner, R., and Schumann, H. (1993). Report of the NOAA panel on contingent valuation. Federal Register 58: , January 15 th [the Blue Ribband Panel] Carson, R., Mitchell, R., Hanemann, W.M., Kopp, R., Presser, S., and Ruud, P. (1992). A Contingent Valuation Study of Lost Passive Use Values Resulting from the Exxon Valdez Oil Spill. Report to the Attorney General of the State of Alaska. Carson, R.T., Wright, J.L., Csrson, N.J., Alberini, A., and Flores, N.E. (1995). A Bibliography of Contingent Valuation Studies and Papers. La Jolla, California: Natural Resource Damage Assessment Inc. Carson, R.T. and Flores, N.E. (1996). Another look at does Contingent Valuation Measure preferences? - Experimental Evidence. How Compelling is the Evidence? Discussion Paper 96-31, Department of Economics, University of California, San Diego. Carson, R.T., Flores, N.E. and Meade, N.F. (2001). Contingent Valuation: Controversies and Evidence. Environmental Resource Economics, 19(2), pp Haab, T.C. and McConnell, K.E. (2002). Valuing Environmental and Natural Resources the economics of nonmarket valuation. UK: Edward Elgar Publishing Ltd. Bockstael, N.E. and McConnell, K.E. (2007). Environmental and Resource Valuation with Revealed Preferences A theoretical guide to empirical models. The Netherlands: Springer press.

38 Selected References 3/3 Habitat Equivalency Analysis: Clinch, J.P. and Convery, F.J. (1999). Evaluation and the Environment, in Economic and Financial Evaluation. M Mulreaney (ed). Dublin: Institute of Public Administration Publishers. Environment Canada (1999). Environmental valuation Reverence Inventory. Published on the web at pdf