The French parliament recently adopted Law No 2008-757 on environmental liability with a view to implementing the EU environmental liability directive (directive 2004/35/EC). The move follows receipt of a formal notice and reasoned opinion from the Commission. It is envisaged that, as France is the current President of the European Council, the implementing decrees are likely to be adopted before the end of the year.
The law establishes a new liability regime, distinct from the integrated environmental permit regime (installations classées pour la protection de l’environnement or ICPE), that includes the concept of ‘pure environmental damage’ caused to nature. The provisions of the regime are only triggered when serious and measurable deterioration occurs directly or indirectly to the environment. In common with the directive, damage must be one of four kinds, namely land contamination, damage to water, biodiversity damage (defined as damage that has significant adverse effects on maintaining or recovering the favourable conservation status of species and natural habitats protected under the EU Birds Directive, and the EU Habitats Directive) and impairment of ecological services (ie functions performed by a natural resource for the benefit of another natural resource or the public).
Strict liability for environmental damage is imposed where damage is caused by certain high-risk professional activities listed in a decree. In contrast, operators of other occupational activities may only be liable for biodiversity damage, and only then if they are at fault or have been negligent. Where the regime is triggered, operators are required to take preventative action to avoid environmental damage continuing and, when there is an imminent threat of environmental damage, they must take necessary preventative measures. In situations where environmental damage has occurred, the law enables public authorities to compel the operator to provide all useful information, to take all practicable reasonable steps to prevent further damage and to take necessary remedial measures.
The French law implements the ‘state of the art’ defence available in the directive, but does not provide for a permit defence (new Article L. 162-23 of the Environmental Code). Thus, operators may avoid remediation costs where an emission or activity was not considered likely to cause environmental damage given the state of scientific and technical knowledge at the time that the damage occurred.
The new law also creates criminal offences and sanctions for preventing or obstructing officers of the competent authority from carrying out their tasks and in relation to an operator’s failure to comply with a notice served by a competent authority to take preventative or remedial measures.