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Environmental Liability

Environmental Liability (Scotland) Regulations 2009

The Environmental Liability (Scotland) Regulations 2009 transposed the EU Environmental Liability Directive 2004/35/EC (ELD) 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.

The main aim of the Directive is to establish a new kind of civil law mechanism based upon the 'polluter pays'. Under the Regulations certain operators who cause a risk of 'significant' damage or cause 'significant' damage to land, water or biodiversity will have a duty to avert such damage occurring or, where damage does occur, a duty to reinstate the environment.

ELD is described in relation to 'significant' damage to biodiversity of European importance in terms of the Birds Directive and the Habitats Directive, to water bodies in terms of the Water Framework Directive and to land where public health is at 'significant risk of being adversely affected'. There can also be significant damage caused by an operator where there will be an overlap, e.g. damage from land to water. Coastal damage can also affect land, water and biodiversity.

The Regulations do not replace any existing laws. Therefore ordinary day-to-day activities/accidents should continue to be dealt with under existing legislation.