Direct Effect of the ELD’s Effective Date; R (on the application of Seiont Gwyrfai and Llyfni Anglers Society) v Natural Resources Wales

Valerie Fogleman Consultant, Stevens & Bolton LLP Professor, Cardiff University School of Law and Politics Topics

 The ELD (Environmental Liability Directive (2004/35/CE)) and the Regulations (Environmental Damage (Prevention and Remediation) (Wales) Regulations 2009)

 The fish

 The lake

 The case

 The actual and potential implications

 Conclusions

 Caveat The ELD and the Regulations

 Key purpose of adoption of ELD – “loss of biodiversity has dramatically accelerated over the last decades. Failure to act could result in … greater loss of biodiversity in the future” (ELD recital 1) The ELD and the Regulations

 ELD and Regulations impose liability for preventing and remedying an imminent threat of, or actual, environmental damage (ELD art 3; Reg 5) – Annex III operators: strict liability – Land damage – Water damage – Protected species and natural habitats (biodiversity damage) – Non-Annex III operators: fault-based liability – Biodiversity damage

The ELD and the Regulations

 Biodiversity damage – ELD – Member States may extend liability for biodiversity damage to “habitats and species not covered by Community law, in accordance with equivalent provisions of national law on nature conservation” (ELD art 2(1)(a)) – Regulations – Extend liability to sites of special scientific interest (SSSIs) (Reg 5; sched 1, para 4(2)) The ELD and the Regulations

 Water damage – ELD: water damage is defined as – “any damage that significantly adversely affects the ecological, chemical and/or quantitative status and/or ecological potential, as defined in [Water Framework] Directive 2000/60/EC [WFD], of the waters concerned” (ELD art 2(1)(b)) – Regulations: water damage is defined to apply to – a “surface water body” as classified by the WFD; not waters (Reg 4(3))

The ELD and the Regulations

 Observations by interested parties to competent authorities on threat of, or actual, environmental damage – ELD and Regulations provide that – “persons … affected or likely to be affected by environmental damage or … having a sufficient interest in environmental decision making relating to the damage … shall be entitled to submit to the competent authority any observations relating to instances of environmental damage or an imminent threat of such damage of which they are aware and shall be entitled to request the competent authority to take action under this Directive” (ELD art 12(1), Reg 29(1)) The ELD and the Regulations

 Effective date for liability – ELD provides that – “Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 30 April 2007” (ELD art 19(1)) – ELD “shall not apply to: damage caused by an emission, event or incident that took place before the date referred to in Article 19(1), [or] damage caused by an emission, event or incident which takes place subsequent to the date referred to in Article 19(1) when it derives from a specific activity that took place and finished before the said date” (ELD art 17) The ELD and the Regulations

 Effective date for liability – Regulations shall – “come into force on 6 May 2009” (Reg 1(1)) – Exempt liability for “(a) [environmental] damage that took place before the coming into force of these Regulations; (b) damage that takes place after that date, or is threatened after that date, but is caused by an incident, event or emission that took place before that date; or (c) damage caused by an incident, event or emission that takes place after that date if it derives from an activity that took place and finished before that date” (Reg 8(1)) The fish

 Arctic charr (Salvelinus alpinus) – Member of Salmonidae family The fish The lake

 Llyn Padarn – 3.2 kilometres long glacial lake in Snowdonia, Wales, with average depth of 16 metres – Designated as surface water body under WFD – Designated as SSSI due to presence of Arctic charr and floating water plantain (Luronium natans L.), a rare plant species – Fishing rights to lake owned or leased by Seiont Gwyrfai and Llyfni Anglers’ Society (Society) The lake The lake

 About 8,000 BC: end of Ice Age isolates Arctic charr in Llyn Padarn

 1959: Gwyrfai Rural District Council begins operating sewerage system at Llanberis, town located next to Llyn Padarn

 1989 to present day: Dŵr Cymru Welsh Water (DCWW) operates Llanberis sewage treatment works and sewerage system – Annex III operator – Discharges treated and untreated sewage into Llyn Padarn

The lake

 1993: Anglers’ Conservation Association (now Fish Legal) fails in action against DCWW on discharges, but – Regulatory authority issues new consent to DCWW that reduces permitted discharges of phosphate into lake – DCWW introduces phosphate stripping at works – Sewage contains substantial quantities of phosphates / phosphorous, which cause eutrophication

 2009: predecessor of Natural Resources Wales (NRW) – Classifies waters of Llyn Padarn as “good” under WFD – Concludes that overall condition of Llyn Padarn is “unfavourable” due to eutrophication

The lake

 May 2009: high levels of toxic blue green algae (Anabaena flos-aquae) observed in Llyn Padarn

 June 2009: Gwynedd Council issues warning to public – Not to swallow water from Llyn Padarn – Not to swim in lake or eat fish caught in it – To avoid contact with algae – Not to allow pets or livestock to come into contact with lake water because algae may be fatal to animals

 Algal bloom has adverse economic effect on businesses in area surrounding Llyn Padarn The lake (algae) The lake

 Estimated number of adult Arctic charr in Llyn Padarn – 2007: 2,072 – 2008: 699 – 2009: 815 – 2010: 787 – 2011: 595 – 2012: 239 – 2014: 48 adult fish identified leaving lake to spawn

 Several thousand hatchery-reared juvenile Arctic charr have been released into Llyn Padarn since 2009

The case

 R (on the application of Seiont Gwyrfai and Llyfni Anglers Society) v Natural Resources Wales

 7 February 2012: Fish Legal notifies NRW, on behalf of Society, that it considers that DCWW has caused – Biodiversity damage to Llyn Padarn SSSI as a result of the presence of Arctic charr as a feature for its designation – Water damage to Llyn Padarn

 NRW carries out assessment of alleged environmental damage

The case

 10 July 2013: NRW serves Notice directing DCWW to submit proposals to remediate water damage

 11 July 2013: NRW issues Decision concluding that – No biodiversity damage has occurred because – Arctic charr had an unfavourable conservation status before 2009 and were in decline but insufficient information to assess whether further damage to them since May 2009 – Floating water plantain was in good conservation status in May 2009 and in 2012 when it was re-assessed – Water damage has occurred because ecological status of Llyn Padarn was good in 2009 and moderate in 2012

The case

 4 October 2013: Fish Legal files application for judicial review – Contends that NRW should have assessed whether environmental damage had occurred to SSSI and waters of Llyn Padarn from 30 April 2007, as stated in the ELD, instead of 6 May 2009, as stated in the Regulations

 February 2014: NRW and Welsh Ministers agree that temporal provisions of ELD have direct effect and that effective date for liability under ELD is 30 April 2007

 NRW agrees to re-assess whether environmental damage has occurred since 30 April 2007

The case

 6 May 2014: Cardiff Administrative Court approves consent order – Allows Fish Legal’s application for judicial review – Quashes NRW’s Decision and Notice – Directs NRW to “take into account all environmental damage arising after 30 April 2007, and not merely all that arising after 6 May 2009 … because it is accepted that Article 17 of [the ELD], which defines the temporal application of the [ELD], and the first sentence of Article 19 of the same Directive, have direct effect” The actual and potential implications

 Effective date for liability under the ELD regime in Wales is 30 April 2007

 Welsh case and decision of Welsh Ministers and NRW concerning the direct effect of the temporal provisions of the ELD are not, of course, binding in any other jurisdiction The actual and potential implications

 Legislation transposing the ELD in – Remaining jurisdictions in the UK (England, Scotland, Northern Ireland, Gibraltar) have an effective date for liability later than 30 April 2007 – A further 16 Member States (Austria, Belgium (Federal), Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Ireland, Luxembourg, Netherlands, Portugal, Slovakia, Slovenia, Sweden) also have a later effective date

Conclusions

 NRW no longer faces uncertainty whether to apply the effective date in the ELD or the effective date in the Regulations to threat of, or actual, environmental damage

 Interested parties in Wales no longer face same uncertainty concerning effective date of ELD when submitting observations about alleged environmental damage

 Uncertainty concerning effective date continues in remainder of UK and another 16 Member States with later effective date for ELD regime Caveat

 On 9 March 2010, the Court of Justice of the European Union concluded in Raffinerie Mediterranee (ERG) SpA v Ministero dello Sviluppo economico (Case No C- 378/08), that the ELD – “applies to damage caused by an emission, event or incident which took place after 30 April 2007 where such damage derives either from activities carried out after that date or activities which were carried out but had not finished before that date”