Edited by Paul Martin and Amanda Kennedy
Chapter 5: Contamination and the polluter pays principle
Emma Lees The two contaminated land liability regimes in force in the UK embody the polluter pays principle in differing fashions. The Environmental Liability Directive (ELD) sees the polluter pays principle as an exclusionary principle of liability: the polluter should pay, and no one else. The Environmental Protection Act 1990 (EPA) interprets the polluter pays principle as just one of the possible justifications for liability to clean up land. This chapter argues that the latter interpretation is to be preferred. Not only does this better embody the justice inherent in the polluter pays principle, but it also better recognises the distinct nature of principles in law. This chapter uses these two regimes as a vehicle to explore the meaning of the polluter pays principle as a principle of liability. 1. INTRODUCTION The Environmental Liability Directive (ELD)1 is a self-proclaimed embodiment of the polluter pays principle. It punishes those who pollute and does not touch those where no causal link can be established between pollutant and activity. It also prevents pollution, and calls on the polluter to pay for such a ‘pre-emptive strike’. Its main aim is to internalise the costs of polluting. In doing so it regulates those who cause contamination of land. This directive runs alongside the Environmental Protection Act 1990, Part 2A (EPA), and the national law contaminated land provisions therein, established by the Environment Act 1995. These provisions embody a more sophisticated understanding of what it means Directive 2004/35/EC of the European Parliament and of the...
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