Lack of ELD cases sees France seek alternative redress system

The preliminary findings of an EC-commissioned study on the effectiveness of the ELD reported in January that no cases of environmental damage, or the imminent threat of, have been treated under the ELD regime to date in France. Whilst two ecological disasters were considered as ELD cases they were finally treated under pre-existing national legislation because the authorities felt unable to proceed under the terms of the Directive. The study concluded that there remain just a ‘few cases’ in which environmental damage has been compensated under the regime across Europe and that it is failing to uphold its polluter pays principle.hideIt seems therefore that changes are needed to bolster the ELD with several options open to the EC. These include lowering the regime’s damage severity threshold, introducing mandatory financial security provisions across all EU member states and dropping several of the operator defences. In short, it needs to ensure that regulators have the confidence and desire to use the Directive and thus operators take out financial security cover. ACE’s Ms Prunier believes the European body must make changes to the ELD for it to succeed. “If they don’t do anything nothing will happen. It is either time to decide this implementation has just been a disaster and doesn’t work and let’s look at something else, or, if they want to make the ELD work, they have to change it,” she told Commercial Risk Europe during the AMRAE Rencontres. If the EC does not get to grips with environmental protection centrally under the ELD then individual nations could take it upon themselves to reach other solutions, she said. France, it seems, is pressing ahead with plans of its own. Its powers that be are in high-level discussions over the inclusion of the natural environment in the country’s civil, or private, law. “They want to integrate within our civil code the notion of ecology, which has previously been excluded. Historically the civil code has just dealt with issues between two human parties and for the first time they want to introduce protection of species into the fold. Under this system associations or interested parties could bring a claim against a company if it has damaged the environment,” said Ms Prunier. “France is trying to fill the gap of the ELD. They (its government) want to bypass the Directive and create a new way to prosecute environmental damage. This is just France, but it could happen elsewhere,” she added. According to the study on the effectiveness of the ELD carried out by BIO Intelligence Service in collaboration with environmental legal expert Valerie Fogleman from Stevens & Bolton LLP, the examples of the two French environmental damage cases that were unable to treat under the ELD highlight the limitations of the Directive. In one case, in which discharged soda was pumped into the Vienne River in 2011, its damage severity threshold was not met. In the second instance, transportation of oil by pipeline—which ruptured and caused damage to the Coussouls de Crau nature reserve in 2009—was not an activity listed in Annex III of the Directive. Therefore the operator could not be held under strict, or non-fault-based, liability and the competent authority had to establish fault of negligence in order to apply the ELD regime. Due to doubts as to whether they could prove this, and in order to avoid the administrative order being challenged before the administrative court, they decided to apply French national rules instead. The pre-existing national water protection regime legislation that was applied to the Coussouls de Crau oil spill does not mandate compensatory remediation measures by the operator, as opposed to the ELD. However, in this case, the operator agreed to carry out compensatory remediation measures as well as primary remediation. Following the spill, the French government adopted decree no 2012-615 on 2 May, 2012 in order to apply strict liability to the transport of oil by pipeline. But, although the decree applies to the ELD regime in France, it was not adopted as part of the ELD transposing legislation. “So that was an example in France of something that should have been ELD but wasn't treated as such because they didn't want to go down the route of showing negligence or trying to show negligence,” Ms Fogleman told CRE. “And if you look at the fact that there are not any ELD cases in some member states, such as France, where is the incentive for operators to take out insurance for ELD liabilities?” she asked. Ms Prunier agrees with many of the conclusions drawn in the EC-commissioned report as to why the ELD is not bringing polluters to task. She believes the main reasons are a lack of clarity over the damage severity threshold and a preference for competent authorities to use older environmental regimes. “Regulators don't seem to know how to use it,” she said. “Are authorities going to use something new when they have mechanisms they already use and with which they know how to handle environmental problems? If you take France, and other countries like the UK, they had existing legislations that, even though they may not have been sufficient, were partially covering the environment,” she added. She pointed out that one country in which the ELD has been a success is Poland. This is most likely because it did not have environmental legislation that pre dated the Directive and so the authorities have felt more inclined to get to grips with the regime, she said.

Lack of ELD cases sees France seek alternative redress system

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