The Commission's Working Paper on environmental liability and the forthcoming proposal for a directive. The proposed strict liability regime. Scope - prospective rather than historic damage; dangerous activities regulated by EC law; natural resources protected by EC law. Liable persons, liability being channelled to the operator; position of banks and other lenders; "mitigated joint and several liability" where there are multiple liable parties. Defences: force majeure, act of God; contributory negligence; third party intervention; but not state of the art and regulatory compliance. The damage in respect of which liability would arise: environmental damage, and also personal injury, property damage and loss of profits if caused by regulated dangerous activities; focus on the type of damage rather than the activity. Future contaminated sites: cleanup trigger levels and cleanup objectives. Causation: a presumption rebuttable by a prevailing probability. Standing to sue: a two tier approach. Conclusion that the Working Paper sets out some useful ideas but omits important concepts and does not provide much detail.
European Energy and Environmental Law Review