The EU COM Notice notes that while the ELD is based on the polluter pays principle, all four of the principles upon which EU environmental policy is based are applicable and relevant in understanding and interpreting the term environmental damage. In addition to the polluter pays principle, there are the principles that preventive action should be taken and that environmental damage should as a priority be rectified at source, the precautionary principle and the proportionality principle. These principles should be borne in mind when considering the clues and evidence of environmental damage (or imminent threat of same) and the burden of proof required to reach the thresholds for such environmental damage (and imminent threat of same).
The EU COM Notice introduces a number of new terms/phrases, or provides clarity on terms not defined in the ELD, including the following:
1. Damaging occurrences1 – occurrences that gives rise to a causal link between an occupational activity and environmental damage. This occurrence may relate to an event or emission arising during either abnormal or normal operations, or as a result of an incident or accident.
2. Damage factors2 – factors that cause adverse effects (see below for further information on adverse effects). These may be:
(i) additive, for example, the release of a toxic substance or other such contaminant to the environment, or
(ii) subtractive/extractive, such as abstraction from or damming of a river or the felling of trees, or
(iii) destructive, such as the deliberate killing of individuals of a protected species.
3. Immediate management of damage factors3 – the steps that operators are required to take where environmental damage has occurred to control, contain, remove or manage damage factors to limit or prevent further environmental damage.
4. Reference concepts4 - for all three categories of natural resource, the definition of “environmental damage” uses a reference concept to determine whether adverse effects are relevant. For protected species and natural habitats, the reference concept is the favourable conservation status of these species and habitats. For water, it is the ecological, chemical or quantitative status or the ecological potential of waters under the Water Framework Directive and the environmental status of marine waters under the Marine Strategy Framework Directive. For land, it is risks to human health. The function of these reference concepts is to provide parameters and criteria against which the relevance of adverse effects can be examined. The concepts provide elements in respect of which adverse effects are to be measured.
Damaging occurrencies and damage factors which may cause adverse effects for each type of environmental damage are included in the PRESSURE table of this Practical Guide.
Reference concepts for each type of environmental damage are included in the IMPACT and STATE tables of this Practical Guide.
2 Paragraph 18 of the EU COM Notice.
3 Paragraph 21 of the EU COM Notice.
4 Paragraph 46 of the EU COM Notice.