The White Paper on Environmental Liability - A study of its effects on Swedish legislation and environmental protection

Abstract: In February 2000 the Commission of the European Community presented the long awaited White Paper on Environmental Liability. The White Paper outlines the key elements for a future directive on environmental liability, covering contaminated soil and subsoil, water pollution and damage to biodiversity. The directive will be a framework regime containing essential minimum requirements to be completed over time by using a step-by-step approach. The proposal for a directive covers professional and commercial activities that cause Significant Environmental Damage. Strict liability will apply to activities dangerous or potentially dangerous to the environment, as defined in an annex by reference to EC environmental legislation. For other activities the directive will probably introduce a fault-based liability that only will be applied to damage to biodiversity. The main purpose of my thesis is to examine the effects that the proposed regime on environmental liability will have on current Swedish environmental liability legislation. In conclusion, the directive will be based on Article 175 of the Treaty and can therefore be made subject to more stringent protective measures in national legislation. When Swedish legislation prescribes more stringent regulation this will continue to apply. However, it seems likely that changes will have to be made in Swedish law in areas where there is weaker regulation or no regulation at all, compared to the proposal. Such areas are primarily pollution to water areas, the right of access to justice for public interest groups and liability for damage to biodiversity. In the future it also seems that the introduction of environmental quality standards in the area of water and later on possibly also in the area of soil through the Commission's soil strategy, will increase. This is a fairly new concept in Swedish environmental legislation and in the course of such standards being elaborated on an EC level, these will have to be implemented in Swedish legislation as well. I have also examined the proposal's anticipated effects on environmental protection to see if the proposal promotes environmental efficiency. I have reached the conclusion that, even if the proposal can be criticised in some aspects, a directive setting minimum standards for restoration of environmental damage for all Member States is a suitable instrument to achieve environmental efficiency.