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Directive 2004/35/EC, OJ L 143/56, 21 April 2004. Member States have until the end of April 2007 to transpose this Directive into domestic law.
Resp. Directive 79/409/EEG, OJ L 103/1, 1979 and Directive 92/43/EEG, OJ L 206/7, 1992.
For a more detailed overview the reader is referred to FOGLEMAN, V., The Environmental Liability Directive, Env. Liability, 101–115 (2004) and KRÄMER, L., Directive 2004/35/CE on Environmental Liability, in: BETLEM, G. & BRANS, E.H.P. (ed.), Environmental Liability in the EU, London (forthcoming).
Directive 2000/60/EC establishing a framework for Community action in the field of water policy, OJ L327/1, 2000.
See Article 4(2–4) and Annex IV of the Directive.
See Article 17 of the Directive.
See Article 4(1) of the Directive.
See Article 8(3) of the Directive.
See Article 8(4)(a) of the Directive.
See Article 8(4)(b) of the Directive.
See para. 1.3.1 of Annex II.
See in this respect the 2000 White Paper on Environmental Liability (COM(2000) 66 final) and the EC’s 2001 Working Paper on Prevention and Restoration of Significant Environmental Damage, both available at http://www.europe.eu.int/comm./environment/liability.
(1992) 31 ILM 818.
HARPER, J.L. & HAWKSWORTH, D.L., Preface in: HAWKSWORTH, D.L. (ed.)(1996), Biodiversity. Measurement and Estimation, London, 7–10.
HARPER, J.L. & HAWKSWORTH, D.L., ib., 6; UNEP (1995), Global Biodiversity Assessment, Cambridge, 27 et seq; THORNE-MILLER, B. (1999), The Living Ocean. Understanding and Protecting Biodiversity, Washington D.C., 6–7; NUNES, P.A.L.D., VAN DEN BERGH, J.C.J.M. and NIJKAMP, P. (2000), Ecological-Economic Analysis and Valuation of Biodiversity, Amsterdam/Rotterdam, 3–5.
COM(2002) 17 final.
For further details on the designation process, the consequences of the delay in designating sites, relevant case law, etc., see: SCOTT, J. (1998), EC Environmental Law, Harlow, 111 et seq.; BACKES, Ch., Nature Conservation, YEEL, 331–338 (2001); BETLEM, G. & BRANS, E.H.P., The Future Role of Civil Liability for Environmental Damage in the EU, YEEL, 194–195 (2002); BRANS, E.H.P. (2001), Liability for Damage to Public Natural Resources. Standing and Damage Assessment, The Hague/london/New York, 195–199. See also the documents available at http://www.europe.eu.int/comm/environment/nature/home.htm.
The term is used in the preamble of the Directive, not in the Directive itself.
See Article 2(3) of the Directive.
See further on the designation process, http://www.europa.eu.int/comm/environment/nature.
See further BETLEM, G. & BRANS, E.H.P., o.c., 192–193.
BRANS, E.H.P., o.c., 192–193 Ib.
See Article 2(1)(a), (13) and (14) of the Directive.
An interesting case in this respect is the ECJ Case C-127/02 and especially the conclusion of the Advocate General J. KOKOTT.
Directive 2000/60/EC establishing a framework for Community action in the field of water policy, OJ L327/1, 2000.
Cf. COM(2000) 66 final, p. 12; CARETTE, A. (1997), Herstel van en vergoeding voor aantasting aan niet-toegeëigende milieubestanddelen, Antwerpen; LARSSON, M.-L. (1999), The Law of Environmental Damage, London; BRANS, E.H.P. (2001), o.c., 241 et seq.
BRANS, E.H.P. (2001), o.c., 28 et seq.
See Article 6(2)(c) of the Directive.
See Article 6(3) and Article 8 of the Directive. The competent authority is not under a duty to take restoration measures if the operator refuses to take the measures. Initially it was proposed to impose such a duty on the Member States, but this proved not to be acceptable to the Member States.
Earlier versions of the Directive included a proposal to impose liability for these types of harm. See for instance the White Paper on Environmental Liability, COM(2000) 66 final.
The decision not to distinguish between owned and unowned natural resources is a logical decision as such a distinction would make the regime highly impractical. It should, however, be recognized that structuring a regime as is being done might have legal and economic consequences for landowners. See further BRANS, E.H.P. (2001), o.c., 26–28.
42 U. S.C. §§ 9601 et seq.
33 U. S.C. §§ 2701 et seq.
OPA 33 U.S.C. §§ 2701(20); 2702(b), 2706(a); CERCLA 42 U.S.C. §§ 9601(16), 9607(a)(4). For further details, see BRANS, E.H.P. (2001), o.c., 65 et seq.
See Article 6(3) jo Article 8 of the Directive.
See Article 6 (3) of the Directive.
Minutes of the 2439th Council Meeting, Environmental, Luxemburg, 25 June 2002, 10013/02 (Press 180).
In the US too the public is given the opportunity to comment on a proposed restoration plan. However, the public has also the option under certain conditions to comment on a settlement agreement before it is approved in court. 61 Fed. Reg. 441, 442 (1996). See further BRANS, E.H.P. (2001), o.c., 91–92 & 233–234.
The text of the convention is avalable at http://unece.org/env/pp. For an overview of EC activities taking place to allow ratification of the convention by the EC, see: http://www.europa.eu.int/comm/environment/aarhus/index.htm.
See http://unece.org/env/pp/ctreaty.htm.
ECE (2000), The Aarhus Convention. An Implementation Guide, New York/Geneva, 130.
See Article 16 of the Directive.
The US natural resource damage assessment regulations do provide some guidance on how to distinguish private from public losses. See 61 Fed. Reg. 445, 459, 484–85 (1996) and BRANS, E.H.P. (2001), o.c., 87–90.
See further BRANS, E.H.P. (2001), o.c., 87–88 (with references).
See Article 7(1) and Annex II of COM(2002) 17.
See Article 2(11),(13) and Annex II, para. 1(c) and (d).
See Article 8(2) jo 2(16) of the Directive.
These NRDA rules are published in 61 Fed.Reg. 1996, p. 440 et seq. See also the guidance documents that further explain these NRDA rules. Available at http://www.darp.noaa.gov.
33 U.S.C.A § 2702(b)(2)(A). See also 61 Fed.Reg. 1996, p. 441 et seq.
See also BURLINGTON, L., Valuing Natural Resource Damages: A Translantic Lesson, in: BETLEM, G. & BRANS, E.H.P., o.c.
An example of such a claim is the claim for loss of profits or loss of earning capacity due to the injury of natural resources. See 33 U.S.C.A § 2702(b)(2)(E).
See Article 2(13) of the Directive and para. 1(c) and d) of Annex II.
See Article 2(11), (13) of the Directive and para. 1(c) and d) of Annex II.
It is beyond the scope of this contribution, but given para. 1.2.3 of Annex II the loss of human uses during the period of recovery may play a role when determining the scale of the restoration measures to compensate for the interim loss of natural resources and services. As will be shown, the Directive uses the term ‘compensatory restoration’ measures for this type of measures. See para. 1(c) of Annex II.
For an overview of services provided by natural resources, see DE GROOT, R.S. (1992), Functions of Nature, Amsterdam, 15 et seq.
See Annex II, para. 1(a).
Cf. Annex II, para. 3.1.1.
See Annex II, para. 1.1.2. The purpose of the so-called ‘complementary restoration’ measures is to provide a similar level of natural resources/and or services as would have been provided if the damaged site had been returned to baseline condition. It is noted in Annex II, para. 1.1.2, that where possible the alternative site should be linked to the damaged site.
According to para. 1.1.3 of Annex II, compensatory measures consists of additional improvements to protected natural habitats and species or waters at either the damaged site or at an alternative site.
JONES, C.A. & PEASE, K.A., Restoration-Based Compensation Measures in Natural Resource Liability Statutes, 15 Cont. Econ. Pol. 112 (1997); MAZZOTTA, M.J., OPALUCH, J.J. and GRIGALUNAS, T.A., Natural Resource Damage Assessments: The Role of Resource Restoration, 34 Nat. Res. J., 170–173. (1994); JULIUS, B.E. & OSBORN, T. (1992), Wetland Compensation Analysis. Greenhill Oil Spill, NOAA, Silver Spring MD, 2.
For a more detailed discussion there is referred to the NRDA-rules (61 Fed. Reg. 440), the documents available at http://www.darp.noaa.gov and BRANS, E.H.P. (2001), o.c., 131–154.
See para. 3.1.3–3.1.8 of Annex II.
An illustrative figure is included in JONES, C.A. & PEASE, K.A., l.c., 114 and BRANS, E.H.P. (2001), o.c., p. 132.
The OPA NRDA rule indicates that scaling also applies to primary restoration actions that involve replacement and acquisition of equivalent resources. 15 CFR 990.53(d); 61 Fed. Reg. 452–453 (1996). It is unclear whether the Commission considers this necessary.
Because the duration of the injury differs from the lifespan of the replacement action, equivalency is calculated in terms of the present discounted value of service flows lost due to resource injuries and service gains from the compensatory restoration action. CHAPMAN, D. et al. (1998), Calculating Resource Compensation: An Application of the Service-to-Service Approach to the Blackbird Mine Hazardous Waste Site, Techn. Paper No. 97-1, Silver Spring MD, 2. For more details, see: NOAA (1999), Discounting and the Treatment of Uncertainty in Natural Resource Damage Assessments, Tech. Paper No. 99-1, Silver Spring MD (http://www.darp.noaa.gov, 10 August 2004).
15 CFR § 990.53(d)(2).
NOAA (1995 rev. 1999), Habitat Equivalency Analysis: An Overview, Silver Spring MD, 1 (http://www.darp.noaa.gov, 13 October 2004).
JULIUS, B.E. (1997), US v. Melvin A Fisher, NOAA, Silver Spring MD, 2–3 (damage assessment report/testimony). Because the losses and gains are occurring at different times, a discount rate is applied to translate all of the terms to what they are worth at the present year. Discounting is a crucial component of HEA and can be compared with the notion of interest. See for further details: NOAA (1999), Discounting and the Treatment of Uncertainty in Natural Resource Damage Assessments, Tech. Paper No. 99-1, Silver Spring MD (http://www.darp.noaa.gov, 10 August 2004).
See TOMASI, T., KEALY, M.J. & ROCKEL, M., Scaling Compensatory Restoration under the 1990 Oil Pollution Ac’ in Proc. IOSC, 247 (1999)(CD Rom).
61 Fed. Reg. 442, 452–453 (1996).
Ib., 453.
Ib., 442.
For further information on these methods and the conditions under which these can be used (including the controversial Contingent Valuation Method), see: KOLSTAD, C.D. (2000), Environmental Economics, Oxford; PERMAN, R. et al. (1999), Natural Resource & Environmental Economics, Essex; 58 Fed. Reg. 4601 (1993); BRANS, E.H.P. (2001), o.c., 103–108, 154–162. See also infra in this book PROOT, L. & BOCKEN, H., Environmental damge and Belgian law (Part I — Chapter 2 — 2.3.2.) and NUNES, P.A.L.D. & DE BLAEIJ, A.T., Economic assessment of marine quality benefits: applying the use of non-market valuation methods (Part III-Chapter 7) and VAN BIERVLIET, K., LE ROY D. & NUNES, P.A.L.D., A contingent valuation study of an accidental oil spill along the Belgian coast (Part III — Chapter 8).
Ib., 453.
61 Fed. Reg. 442 (1996).
Cf. General Electric Co. v. NOAA, 128 F.3d 767 (D.C. Cir. 1997).
Annex II, para. 3.2.1.
Ib.
Annex II, para. 3.2.2.
See para 1.3.1 of Annex II.
61 Fed. Reg. 490 (1996).
61 Fed.Reg. 454, 490 (1996).
BRIGHTON, W.D. & ASKMAN, D.F., The Role of Government Trustees in Recovering Compensation for Injury to Natural Resources in WETTERSTEIN, P. (ed.)(1997), Harm to the Environment, Oxford, 182.
For further information, see: http://www.darp.noaa.gov/.
61 Fed. Reg. (1996) 443.
Ib. See also 15 CFR § 990.14(c).
61 Fed. Reg. (1996) at 443-4.
For further details, see: HELTON, D. (2000), The Benefits of Cooperative Natural Resource Damage Assessments, Silver Spring, http://www.darp.noaa.gov and BRANS, E.H.P. (2001), o.c., 145–147. See further http://www.darp.noaa.gov for documents regarding cooperative assessments.
HELTON, D. (2000), Ib.
BRANS, E.H.P. (2001), o.c., 232–234.
See COM(2002) 17, p. 3 and Annex II, para. 3.2.4.
Examples of conventions which are listed but have not entered into force are the 2001 Bunker Fuel Oil Pollution Damage Convention and the 1989 Convention on on Civil Liability for Damage Caused durring Carriage of Dangerous Goods by Road, Rail and Inland Navigation Vessels. See further on the relationship of the Directive with International conventions: FAURE, F. & WANG, H., Liability for oil pollution — the EU approach, Env. Liability, 64–66 (2004).
For an overview of international civil liability conventions and their damage definitions, see e.g. DE LA FAYETTE, L., The Concept of Environmental Damage in International Liability Regimes, in BOWMAN, M., & BOYLE, A. (2002), Environmental Damage in International and Comparative Law, Oxford, 181 et seq. and BRANS, E.H.P. (2001), o.c., 311 et seq. See also infra in this book NICHOLS, J., Scope of compensation for environmental damage under the 1992 Civil Liability Convention and the 1992 Fund Convention (Part II — Chapter 4) and GONSAELES, G., The impact of EC decision-making on the international regime for oil pollution damage (Part II — Chapter 6).
Resp. 9 ILM 45 (1970) and 11 ILM 284 (1972).
International Transport Treaties, Suppl. 17, I-459/476 (Sept. 1993). See further on the oil pollution conventions, OOSTERVEEN, W., Liability for damage resulting from oil pollution. From the perspective of an EU member state, in BETLEM, G. & BRANS, E.H.P. (ed.), o.c
For further details, see: DE LA FAYETTE, L., o.c., 181 et seq. and BRANS, E.H.P. (2001), o.c., 366 et seq.
For a more detailed analysis of shortcomings of these international conventions (and their damage definition), see: BRANS, E.H.P. (2001), o.c., 318–404 and DE LA FAYETTE, L., o.c., 181 et seq.
See the 1997 Protocol to the Vienna Convention on Nuclear Damage and the 2003 Protocol to the UN/ECE Convention on the Transboundary Effects of Industrial Accidents. See also the 1993 Lugano Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment.
See Claims Manual of the International Oil Pollution Compensation Fund, November 2002, 29. See also infra in this book NICHOLS, J., Scope of compensation for environmental damage under the 1992 Civil Liability Convention and the 1992 Fund Convention (Part II — Chapter 4).
An exception is the international oil pollution conventions. In the 1992 Fund’s Claims Manual criteria are listed to determine the reasonableness of restoration measures (see also the Annex to 92FUND/A.7/4, 15 June 2002). Some guidance is also included in the 1997 Protocol to the Vienna Convention on Nuclear Damage (Article 2(4)). See further BRANS, E.H.P. (2001), o.c., 351 et seq.
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Brans, E.H.P. (2005). Estimating Damages Under the 2004 EC Directive on Environmental Liability. In: Maes, F. (eds) Marine Resource Damage Assessment. Springer, Dordrecht. https://doi.org/10.1007/1-4020-3368-0_1
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