The EU Environmental Liability Directive: A Commentary

Lucas Bergkamp · Barbara Goldsmith

Mar 2013 · OUP Oxford

About this ebook

Similar to the United States (US) Natural Resource Damage (NRD) program, defined under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or "Superfund") and the Oil Pollution Act (OPA), the European Union's (EU) Environmental Liability Directive (ELD)imposes liability for, and requires remediation of, significant damage to natural habitats and species protected at Community and national levels, surface and ground waters covered by the Water Framework Directive, and land.The ELD was first published in 2004 and has since been transposed into the national laws of all EU Member States. However there is little guidance available to authorities and industry in interpreting and applying the ELD and meeting its prevention and restoration objectives. This volume is the first to describe the EU's ELD and to examine the emerging issues and practices in its application. While there are differences between the US and EU regimes, some of the underlying concepts, approaches and definitions embedded in NRD are also mirrored in the text of the ELD. The book includes a comparison of similarities and differences as well as synergies in practice; hence, this book will be of interest to both US and European readers. The ELD imposes liability for significant damage to natural habitats and species protected at Community and national levels, surface and ground waters covered by the Water Framework Directive, and land. Prior to the ELD's adoption many Member States had programs in place for the restoration of soil and groundwater contamination, but none had a regime for addressing harm to unowned natural resources. This volume presents a comprehensive legal commentary on the legal issues arising under the ELD, as well as an overview of administrative, technical, and legal issues and practices in applying the ELD regimes to cases of actual or threatened environmental damage. In doing so, it discusses both substantive issues and important procedural and process-related issues. Several case studies are presented to illustrate the issues and practical solutions. In addition, emerging best practices relating to practical ELD application are identified and presented. Identifying and discussing a wide range of emerging administrative, technical, and economic practice issues arising under member state legislation transposing and implementing the ELD, this book will be a valuable resource for all those whose work is affected by the ELD.

About the author

Lucas Bergkamp is a partner in the Brussels office of the international law firm of Hunton & Williams. Bergkamp, who is both a medical doctor and a lawyer, heads Hunton & Williams' European regulatory practice. A leading European law firm in the regulatory area, Hunton & Williams' Brussels office has a strong environmental law and liability practice, including soil and groundwater contamination, water pollution, and damage to protected habitats and species caused by accidents, spills, and normal operation. Bergkamp has been involved with the EU's Environmental Liability Directive since its inception and has commented extensively on the Commission's proposals. He writes and speaks frequently about a wide range of environmental liability issues, and is the author of Liability and Environment (2001). Until 2007 he was a Professor of Environmental Liability Law at Erasmus University Rotterdam, and currently teaches in the Energy and Environmental Law program of the Catholic University of Leuven. Barbara J. Goldsmith, who holds a graduate degree from Harvard University, is a specialist with over 25 years' experience in national and international environmental policy and corporate environmental management, particularly the interface between environmental regulatory requirements and industrial planning and development, and the effects of environmental policies on industrial operations and productivity. She is a leading authority on worldwide policies and practices related to natural resource damages liability and assessment. The founder and President of Barbara J. Goldsmith & Company, an environmental management consulting practice with offices in both Washington, DC and Brussels, she established, in 1988, the Ad-Hoc Industry Natural Resource Management Group (formerly the Ad-Hoc Industry Natural Resource Damage Group). She has served as its Executive Director since inception. The program then expanded to a highly successful European counterpart focusing on the transposition and application of the EU Environmental Liability Directive in 2004 and today includes worldwide issues related to natural resource liabilities.