Between the Limits of Environmental Damage - comparative analysis on national damage definitons and severity thresholds

Transcription

1 Between the Limits of Environmental Damage - comparative analysis on national damage definitons and severity thresholds ELD Government Experts Meeting Brussels, 3rd February 2014 Birgit Schmidhuber

2 Scope of the Analysis Geographical coverage: Austria, Croatia, Estonia, Germany, Hungary, Romania, Spain Assess differences in the notion of damage in a cross-country approach Assess the notions of damage under ELD and existing national regimes Identify weaknesses/uncertainties in ELD damage definitions

3 Biodiversity Damages Transposed into national legislation without mentionable adaption of damage definitions and severity thresholds Broad notion and unclear concepts complicate interpretation and practical application No clear notion of which national liability regimes (if existent) are in competition or to be complementarily applied when it comes to biodiversity damages Interpretation and consequently application seems to be easier in countries where the ELD was transposed by amending the pre-existing national systems (e.g. Hungary)

4 Biodiversity Damages Legal experts state that in order to be effective the ELD system shall not derogate other liability provisions (cp. German subsidiarity clause) Inclusion of national biodiversity damages broadly applied (except most parts of Austria and Germany) National liability systems embedded in national nature protection regime: Depart from broader notion but indeed a rather different understanding of biodiversity damage than ELD does; Lack valuable components provided for by the ELD: e.g. no accidents covered, no concept of complementary and compensatory remediation, no PP and A2J

5 Water Damages Definition of waters in transposing legislation is quite uniform ELD transposing legislation and national liability regimes for water damages emanate from the same concept of waters WFD and Water Acts Due to lack of adequate case law and respective case databases the significance threshold for water damages and its application seems very unclear No harmonized approach how to interpret the significance thresholds for water damages across the EU: Estonia would say only a change in the classification of waters fulfils the significance threshold, in Austria the threshold would be interpreted to be lower

6 Water Damages Not justifiable that slow and gradual deteriorations do not fulfil criteria for environmental damage would not be in conformity with the ELD if at some point the threshold is reached or even exceeded Hungary: criteria for the evaluation of a significant adverse effect on surface waters and separately for groundwater Advisable to have a set of clear criteria for the assessment of the significance of water damages on EU level embedded in the ELD National liability regimes provide for no or very low thresholds integration of systems and low threshold criteria Protection of all waters or only water bodies

7 Land Damages ELD significance threshold for land damages mostly undercut by transposing legislation (Germany, Hungary, Croatia, AUT Carinthia) or by some national liability provisions on soil damages (Austria, Estonia, Spain) National systems not very elaborated missing EU legal framework on soil protection does not improve this situation Concept of land and soil is confusing, clear regulation on protection of soil missing Concept of environmental media itself (land/soil) is to be adapted and clarified

8 Land Damages ELD: central element is health risk and not deterioration of a natural resource Criterion does not comply with the environmental damage concept Integrated approach for land damages either on EU level or deduce from national liability regimes on soil damages and their practice to be integrated into the ELD regime could lead to high protection standards and unified perception of land damages all over the EU Clear criteria or limit values Polish model

9 Interaction of Liability Systems Could be a major reason for good/bad functioning of ELD system in the respective states Germany subsidiarity clause Estonia ELA = lex specialis Austria further obligations remain unaffected?! shall not derogate further liability provisions; PM: complementary and strengthening element, shall not be applied in an isolated way; Hungary integration of the ELD led to a clear legal framework; higher thresholds Art 16 ELD: does not clearly regulate interaction of regimes preferably this could be clarified to have legal certainty and respective guidelines not only for the application but also the transposition of the ELD for the MS

10 Sources of Information Justice & Environment, Between the Limits of Environmental Damage. Brno 2013: /ELD%20study%20on%20damage% pdf BIOIS ELD Implementation Studies 2013:

11 Thank you for your attention! Birgit Schmidhuber ÖKOBÜRO/Justice & Environment Neustiftgasse 36/3a A Vienna Tel.: +43-1/ birgit.schmidhuber@oekobuero.at