Implementing Environmental Law
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Implementing Environmental Law

Edited by Paul Martin and Amanda Kennedy

At the Rio +20 conference attention was focused upon the variable effectiveness of a large range of international instruments. The IUCN too has recently began to focus upon the effectiveness of legal arrangements for environmental governance. Both of these developments are representative of an increasing awareness that legal environmental governance arrangements frequently fail to achieve the desired outcomes, or give rise to perverse and unexpected effects. The reasons why this may be so include issues such as the limited commitment of the responsible government or its agents, issues of corruption or incapacity, problems arising from the choice of the governance instrument, or the design of the law. This book tackles the challenges of implementation of environmental law, drawing upon the expertise of an international cast of contributors and investigations across a range of jurisdictions.
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Chapter 5: Contamination and the polluter pays principle

Emma Lees


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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