Guiding principles on the environment: draft statutory guidance

Annex B – Background on Principles

Article 191(2) of the Treaty on the Functioning of the European Union ("TFEU") enshrines four principles into the development of EU environmental policy and legislation. It provides –

"Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay."

Article 11 of the TFEU contains the integration requirement. It provides:

"Environmental protection requirements must be integrated into the definition and implementation of the Union's policies and activities, in particular with a view to promoting sustainable development."

The precautionary principle as it relates to the Environment

The precautionary principle was defined in the UN Rio Declaration on Environment and Development 1992 as "where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation". Therefore, where there is uncertainty as to the level of risk of environmental harm attached to a proposed action, this principle enables preventative or restrictive measures to be taken without having to wait until the harm materialises. Any restrictive or preventative approach taken must be objective and non-discriminatory, and in the EU context the principle of proportionality operates alongside all of the environmental principles; including the precautionary principle.

In EU law, the precautionary principle is often considered alongside the requirement to take account the factors set out in Article 191(3) TFEU (which include scientific and technical data; environmental conditions in the area; benefits and costs; and the economic and social development of the Union as a whole and the balanced development of its regions). Whilst the Continuity Act does not reflect a similar requirement to take such factors into account, the precautionary principle is linked to situations where there is insufficiency, inconclusiveness or imprecision resulting from available information.

The precautionary principle is therefore particularly useful in managing risk in situations where there is a lack of full scientific certainty about a specific issue. At the EU level, this principle has been applied to the following:

• The Habitats Directive^[21] (92/43/EEC), Article 6(3) which requires impact assessments to be carried out where a project is likely to have a significant effect on the integrity of a designated habitat site.
• The Deliberate Release of Genetically Modified Organisms Directive (2001/18/EC)^[22] specifically in relation to environmental risk assessments and requirements for field testing in the research and development stage assessing how the use of GMOs might affect ecosystems.
• The Waste Framework Directive (2008/98/EC)^[23] which provides that in order to implement the precautionary principle and the principle of preventive action it is necessary to set general environmental objectives for the management of waste within the Community.
• The 2002 case of Pfizer Animal Health SA v Council of the European Union (Case T-13/99) in which the European Court of Justice stated that protective measures invoking the precautionary principle may be taken "without having to wait until the reality and seriousness of those risks become fully apparent".^[24]

The European Commission has produced guidance on the precautionary principle.^[25]

The principle that the polluter should pay

Initially recognised at international level by the Organisation for Economic Co-operation and Development in 1972, this principle requires those who cause pollution to bear the financial responsibility of any damage or remedial action required. Prior to this, disproportionate costs of pollution were being externalised from the polluter to wider society. Thus, this principle aims to act as a deterrent; ensuring polluters are responsible for their actions and build in/are held accountable for any remediation required.

In the EU context, the principle was expanded in 1975 in a European Council Recommendation^[26] and it has recurred in all subsequent Environmental Action Plans^[27]. Following this, it is worth noting that the Environmental Liability Directive (2004/35/EC)^[28] is based directly on the polluter pays principle as a way to prevent and remedy environmental damage. Other EU directives – such as the Waste Framework Directive (2008/98/EC) – also apply the polluter pays principle.

When examining the EU's polluter pays principle the CJEU has determined that in cases where a competent authority acts in the place of an operator to rectify damage caused by a polluter (itself or through a third party), that authority should ensure that the cost incurred by it is recovered from the operator^[29]. It is also appropriate that the operators should ultimately bear the cost of assessing environmental damage and, as the case may be, assessing an imminent threat of such damage occurring. Ensuring the operator bears responsibility for all charges is consistent with the aim of encouraging the prevention or reduction of waste production.^[30]

The Inner House of the Court of Session, in the case of Scottish Environment Protection Agency v Joint Liquidators of the Scottish Coal Co Ltd^[31] considered whether the polluter pays principle justified the interpretation of water environment legislation so as to disallow a liquidator disclaiming a statutory licence (which would have had the effect of the costs of environmental remediation becoming a public liability). The court observed that "there are persuasive factors in favour of giving pre-eminence to the policy of maximising environmental protection over the policy of the expeditious and equal distribution of available assets among the unsecured creditors of an insolvent company." However, the courts ultimately decided the case on legislative competence grounds, so their consideration of principle was not part of the decision.

The principle that preventative action should be taken to avert environmental damage

The prevention principle is intended to prevent, rather than react to, environmental damage from unregulated activities. Therefore, it requires a risk to be clearly defined, in order for preventative measures to be anticipated and implemented. The prevention principle was one of 11 objectives and principles listed in the first EU Environmental Action Programme (EAP) in 1973. It forms the basic rationale for many environmental protection laws at the international, EU and national levels and is a central part of EU waste policy. In 1983, in the European Commission's Third Environmental Action Plan it was applied to waste policy e.g. landfill and wastewater. The CJEU has considered that an owner of land who did not carry out polluting activity, but instead failed to monitor the conduct of those using their property and report such users in the event of environmental damage (or threat thereof), could be held liable for the costs of pollution. The CJEU was satisfied that a national law which allowed for the owner to be held liable was consistent with the aim of preventing a lack of care and attention on the part of the owner which could result in environmentally damaging activity.^[32]

The principle that environmental damage should as a priority be rectified at source

The rectification at source principle prioritises how environmental damage or harm should be addressed at its source, rather than in the wider environment, and by the polluter, rather than wider society. It is important to note that this principle is important when considering control of transboundary movements of waste intended for disposal. It works alongside the polluter pays and prevention principles to address activities which may harm the environment and prioritise any action taken.

Integration requirement

This requirement was adopted by the United Nations Conference on Environment and Development in Rio de Janeiro in 1992 and expresses that 'In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it'. That is to say, all policy makers working across government, have responsibilities to protect our environment. In EU law, environmental protection requirements are integrated into the definition and implementation of all the EU's policies and activities, with a view to promoting sustainable development, through this principle.^[33] Nonetheless the integration requirement in EU law does not go so far as to have the effect of bringing any and all policies and actions of the EU within the ambit of environmental policy.^[34]

International context: Environmental Principles

The following key international conventions and declarations have established principles that influence environmental policy at EU, UK and Scottish level and include:

• The Stockholm Declaration (1972)^[35] aimed to improve the environment by encouraging governments to adhere to the 26 principles set out.
• The 1992 Rio Declaration on Environment and Development.^[36] This set out 27 principles of sustainable development, including the integration principle, precautionary principle and polluter pays principle. The declaration also promoted public participation in decision-making and the promotion of sustainable use of resources and the promotion of resilient ecosystems. These principles paved the way for UN organisations to incorporate these principles in the decision-making process, which has in turn seen these principles being introduced in environmental treaties and thus become part of international law. These include the UN Convention on Biological Diversity and he UN Climate Change Convention, both 1992.
• The UN Convention on Biological Diversity 1992:^[37] enshrined the principle of sustainable use and the ecosystem approach, as well as the principle that environmental management should be undertaken at an appropriate spatial and temporal scale.