Lees, Emma --- "Contamination and the polluter pays principle" [2015] ELECD 981; in Martin, Paul; Kennedy, Amanda (eds), "Implementing Environmental Law" (Edward Elgar Publishing, 2015)

Book Title: Implementing Environmental Law

Editor(s): Martin, Paul; Kennedy, Amanda

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781783479290

Section: Chapter 5

Section Title: Contamination and the polluter pays principle

Author(s): Lees, Emma

Number of pages: 16

Extract:

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 exclu-
sionary 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 ...