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ACCA's response to this document, issued by the European Commission, Directorate General for the Environment, is set out below.

The white paper is available on the European Commission's web site: http://europa.eu.int/comm/environment/liability/index.htm

The Association of Chartered Certified Accountants (ACCA) is pleased to have this opportunity to respond to the Commission's White Paper on Environmental Liability (COM (2000) 66 Final). ACCA has been actively involved in issues related to business and the environment for over a decade and is pleased that the issue of environmental liability is now being dealt with at the European level.

In principle, ACCA welcomes this White Paper and the attempts of the European Commission to apply the polluter pays principle throughout the EU. We have a number of detailed comments on the current draft which are set out below.

It would be helpful for the EC to state their plans for this White Paper, perhaps by providing a detailed timetable explaining the steps that need to be taken to move from the current stage of consultation, to the long-term goal of implementation throughout Member States.

We also hope that DGXI will consider this area as one of the key themes of the Sixth Action Programme.

Although we agree with much of this White Paper, in places it remains somewhat underdeveloped and some further explanations are required. ACCA believes the points highlighted below require further work and/or clarification.

We agree that the regime should only work prospectively. However, the migratory nature of pollution gives rise to complex timing issues which may not allow it to be easily categorised as 'past pollution'. ACCA agrees that further thought needs to be given to the problem of what exactly is 'past pollution' (as recommended in the White Paper).

ACCA believes that further clarification is also necessary to establish who would be responsible for clean-up costs of any damage classified as 'past pollution'. This is to prevent any scope for the implementation of different enforcement measures between Member States which may lead to anti-competitive behaviour.

• The term 'dangerous activity' (4.2.2)
  In order to provide certainty for all interested parties, a more explicit and detailed definition is required to clarify exactly what constitutes an activity that is considered 'dangerous'. While ACCA appreciates that this will be a difficult task, we advise the EC to consider the definitions used in Part IIA of the UK Environmental Protection Act 1990. From the current draft of the Commission's White paper it is unclear if non-permit activities are currently categorised as 'dangerous activities'.
  
  
• Defences (4.3)
  Currently the White Paper notes the possibility but does not accept an 'activity being in accord with a permit' as a defence against the polluter yet regulators may be partly liable if the damage was 'exclusively caused' by an emission in compliance with permits from the permit-providers. This possible contradiction must be resolved.
  
  Also, a possible loophole remains open whereby the pollution permit-issuing body could include a 'denial of responsibility' clause in the permit it issues. Effectively this would enable the body to shed or evade any responsibility for the pollution its own permit caused to occur. Thus, even if the permit-issuer is wholly to blame for the pollution (presumably through negligence of some sort), they could not be held responsible.
  
  ACCA recommends that the Commission should review how permit-issuing bodies award their permits. Those authorised to give permits for others to pollute must not be able to include conditions which negate their responsibility. We recognise a move in this direction would place significantly more responsibility onto the provider of permits, which would then (we anticipate) be compelled to issue stricter pollution consents in the first instance: hence the need for the review. An external audit of the effectiveness of the consent issuing process (similar to a post project audit) would also be necessary.
  
  
• The term 'significant damage' (4.5.1 & 4.5.2)
  The White Paper states that in the cases of biodiversity and contaminated land, the damage caused must be significant in order to utilise the environmental liability regime (i.e. make the polluter pay). It has not yet been made clear exactly when damage caused should become categorised as significant. ACCA proposes that the definition of 'significant' used in Part IIA should be re-considered, particularly as it addresses only damage to contaminated land (and not detrimental effects on bio-diversity).
  
  As an addendum to the section on "significant damage", we note that the paper states that liability is only enforced if damage caused to a Natura 2000 site is significant. Given that these sites are defined as protecting fragile and rare ecosystems, ACCA argues that any damage to a Natura 2000 site should be considered significant.
  
  
• Economic loss (4.5.3)
  The definition of traditional damage is currently very loose and implies that it is the responsibility of the Member State to include or omit 'economic loss' within the definition. Leaving the definition up to each Member State would defeat the unifying objective of this regime resulting in different Members formulating their own definitions and thus consistency and harmonisation across borders is not achieved. It is vital, therefore, that the regime takes a position on this issue.
  
  (Note: The Commission may recommend each Member State to apply their current legal principles on this issue to determine the inclusion/exclusion of economic principles, but it should be pointed out that these principles are inconsistent between countries.)
  
  

Other issues in the White Paper that we feel merit reconsideration are:

• Access to Justice (4.7.2): The word 'urgent' should be defined and examples of 'urgent cases' should be included to prevent the potential outbreak of unwarranted and unnecessary litigation cases asked for by single issue pressure groups or others.
  
  
• Directive (5.4): ACCA supports the objectives of this paper, and believes adopting it as a Community directive would be the best policy option to achieve the Commission's goals. However, the directive must be properly and uniformly enforced and therefore further research must be undertaken to establish how this could be achieved.
  
  
• Implementation: ACCA believes that supporting guidelines to accompany the new directive must be provided with the aim to assist all Member States implement the regime consistently across borders.
  
  
• Timescale for clear-up: The inclusion of a scientifically determined or influenced suggested timescale for remedying damage should be included, particularly in the case of biodiversity damage where timing is critical for the successful restoration of ecosystems.
  
  
• Non-significant activities: While ACCA acknowledge that this White Paper focuses deliberately on so-called "significant issues", we believe that an additional regime is also necessary to determine who would be responsible for remedying damage (traditional and contaminated land) caused by non-significant activities, and how this should be done.
  
  
• Professional liability: It should be made clear that any external professionals working for an organisation, for example accountants in an advisory or consultancy role, are exempt from liability. Please note that Part IIA (of the UK Environment Act 1990) offers a model for the protection of insolvency practitioners which could well by followed by the environmental liability regime.

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