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The Information Gap and the Environmental Liability Directive
Dear Colleagues,
This fall, the European Commission will start to develop a multiannual rolling work programme on the Environmental Liability Directive (ELD) for 2016-2020, involving all the stakeholder groups. The ELD was being prepared for more than 12 years before it entered into force in 2007 and its implementation is painfully slow even now, almost after a decade. The stakes are high: prevention and quick remediation of environmental disasters concerning nature, waters and land, and the application of the polluter pays principle. It is high time to change the old practice that investments with dangerous activities harvest the profit for long, but escape immediately when things turn bad, leaving the costs of clean-up to the rest of the society.

Imperfect evaluation of ELD implementation in Member States

Earlier this year, a report from the Commission on the evaluation of the implementation and effects of the ELD came out together with a so-called REFIT evaluation. The results of these examinations were discussed at a stakeholder meeting among almost 100 experts from the administrative, business and NGO sectors and a detailed report on the event was issued in June. 
A central element of these documents and discussions was the lack of data and information on the practical implementation of ELD. Justice & Environment, a European Network of Environmental Law Organizations put together an 8-country network (Austria, Croatia, Czech Republic, Estonia, Hungary, Romania, Slovakia and Spain) that would make efforts to eliminate these blank spots in the knowledge about ELD results and problems. We think that the present situation when a couple of countries report unrealistic numbers (Hungary 563 cases, Poland 506 serious incidents for 7 years), while 11 countries report no ELD cases at all, undermines the successful implementation of ELD and counteract the will of the European legislators.
The most important fields where lack of information concerning ELD implementation is typical:
-    use of optional defences (permit or state-of-the-art defences mostly)
-    interpretation of the key definitions of the ELD
-    (uneven) level of application
-    gaps in financial capacity of the operators
-    right of NGOs and third parties to notify environmental damage instances
-    use of older national liability schemes instead of ELD
Solutions might include:
-    developing an ELD indicator system in order to enable evidence based environmental liability programs;
-    developing an ELD clearinghouse in order to exchange the most important data about environmental liability, make available best practices for the authorities and other concerned parties and provide information for the insurance sector for better design of their products in this field;
-    introducing publicly available ELD registries in all the Member States in order to ensure transparency and better quality in reporting to the Commission and to the general public
We should add that without concerted Europe-wide NGO efforts, similar to what J&E has started this year there is no hope to gain a coherent picture on the level of implementation of ELD by the Member States. A more detailed report on the issue can be found on the homepage of J&E. 

Justice and Environment (J&E) is a Network of European Environmental Law Organisations from 12 different countries aiming at a better legislation and implementation of environmental law on the national and EU level to protect the environment, people and nature.
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