Why it is important to amend the information base of our ELD systems?
A lack of relevant data and incomplete information about the ELD cases certainly one of the obstacles to achieving the effective implementation of the ELD. The systemic compilation and availability of such information/data could lead to an improvement in awareness and understanding about ELD requirements. This is needed not only for the purpose of informing the society, but even more for different competent authorities involved in the implementation of the ELD at national, regional, and local level (Mikosa). Naturally, a register of the environmental liability cases, as an official tool for the collection of data on ELD cases, should be publicly available in the widest possible circles. When saying ‘availability,’ we also mean substantial access to the content for all stakeholders, which requirement can be fulfilled by a clear and user-friendly structure, as well as through the distribution of the meta-data on the ELD register, calling attention to its existence, content, and use (Kallia).
The difficulty in obtaining a more adequate picture of the number of ELD cases and lack of transparency means that the Commission has no clear view either of how the Directive is being applied in Member States. NGOs and the public have no easily accessible information about what is going on and thus may be excluded from exercising the right to protect their interests. Obviously, there are cases that are not registered, as they are handled under some alternative environmental data systems, not in the national ELD regime. Some ELD-related issues are handled voluntarily by the polluter, and may then fly under the radar, even when a supervisory authority is involved.
Furthermore, some contamination events are handled solely as civil disputes – i.e. the concerned communities or municipalities require action and economic compensation for the areas thus polluted, and these cases will not be shown in national statistics (Bengtsson).
27 Our Czech colleague expressed his view that access to general ELD data and analyses is also important in order to raise the awareness of the media and the public, and encouraging them to get acquainted with the system of environmental liability, and the social, economic and environmental problems behind the data, and, as follows, to activate the members and organisations of the public.
He concluded from the Summary that the basis of the difficulties with implementing the ELD are a lack of experience with this system, the absence of tradition, and a lack of understanding or appreciation of it. Therefore, it is necessary to actively promote the legislation and bring it to the public's attention (Cerny). Similarly to this conclusion, other researchers expressed similar views that the wide availability of ELD data might help to increase public awareness and participation, since publicly available information at the moment is often scattered and incomplete (Verheyen).
Harness alternative information sources
In the field of ELD-related laws, there is a need for oversight, complaint handling and control that may be exercised by independent ombudspersons, as is the case in some Member States. Such ombudspersons can play an important role as they are able to identify recurring problems in the implementation of the ELD and inconsistencies in the handling of ELD cases by different authorities.
An ombudsperson should be afforded adequate competence and a commensurate budget to deepen understanding of cases in forensic and legal terms (Verheyen). The Portuguese expert expands on the same idea when suggesting a more comprehensive ELD information system, which ideally should comprise inter-institutional information from both, the relevant administrative authorities (i.e. not only the competent authority, and not even only from the environmental authorities) and the environmental cabinet of the public prosecutor integrated into the justice system, and also from complaints to the ombudsperson (Amador).
A further important source of information for initiating ELD procedures are proceedings that have led to criminal or administrative sanctions. Environmental crimes and administrative offences often cause environmental damage. However, sanctions relating to environmental crimes or offences are much more frequent than ELD procedures, suggesting an insufficient exchange of information.
Therefore, collaboration between ELD and other authorities as well as prosecutor’s offices is desirable (Verheyen). However, in the case of an environmental crime, where environmental liability concerns might be raised, there might exist another opportunity that can be taken advantage of in parallel with the information chain with the prosecutors. Most cases of more serious environmental damage are dealt with by the police. As early as when a criminal complaint is filed with the police regarding a crime entailing environmental damage, the competent authority should obtain information immediately from the police, while at the end of the investigation, the file should be sent to the competent authority, too. Content-wise, we suggest that the police be obliged to provide basic information about cases determined by the law, so that the competent authority can start to carry out its own investigation in due time, and act in the field of prevention and remediation of environmental damage under the ELD laws in the most effective way (Wilfing).
Further legal and practical changes necessary for more effective environmental liability information systems
In order to feed the ELD databases, there should be explicit and legal enshrinement of the obligation of the operators to provide the exactly specified documentation to the competent officials responsible for handling the publicly accessible ELD registers at the competent authorities (Kiss). The omission of the ELD itself concerning the provision of certain information to be provided to the
28 public should not be merely accepted without further thought. As outlined above, the EU acquis provides clear legal grounds for the development of such a register, and the situation in the majority of the Member States with respect of the implementation of the ELD, in particular, has proven that there is a real need for further data, even before one can consider the best legislative changes needed on the ground in a country (Schmidhuber).
It is not enough, however, to collect and process information on already polluted sites, but the relevant actors (authorities with competence, concerned communities, operators and NGOs) need broad and sufficiently detailed data to establish the baseline condition of the affected environment, thus having a stronger position in the event ofcases when environmental pollution occurs (Kiss, Cerny, Verheyen). At first glance, the second part of this suggestion seems to be unrealistic, because it would require finding the proper sources, and putting different information systems on the same platform. However, considering the wide range of available sources of ELD relevant information surveyed in our Summary and Chapter I, above, and the existing IT technology, it is just a matter of legal obligation – all the information exists, and the technology to put the necessary information together on the same platform. Once we have a permeable, interchangeable network of the relevant information systems, we will have the possibility to establish the original conditions of the polluted lands and other natural resources. This way, information technology would represent a major contribution to the effectiveness of environmental liability laws.
A broader basis of ELD-relevant information could be formulated, if the governments merged the information obtained by the administrative state bodies with the several kinds of information related to the regulatory environmental competences regarding the potential environmental liability of industrial operators, legal and natural persons who are under the obligation to submit, on an annual basis, depending on their activity or on the use of natural resources they carry out. Such set of data could include, for example, the monitoring of pollutants, waste produced, use of water, and environmental reports. Besides, there are plenty of additional relevant data in the mandatory administrative set of proceedings, in which the operators participate, in order to obtain the required licenses and authorizations for their respective activities.
The information. Information on ELD cases included in the reports that are available on the homepage of the environmental competent authorities should be complemented by a database on the treatment ofin which data is treated in a statistical and searchable manner in order to allow a clear view and longitudinal analysis of all the ELD cases registered over the years. More detailed information could be created through effective inter-institutional cooperation. The ELD statistics regarding complaints or cases that were registered by the stakeholders on the electronic platform of environmental incidents should be integrated into a database interlinked with the justice statistics database, and with environmental statistics from public bodies responsible for official national statistics (Amador).
Mandatory ELD registers, information content of the homepages of the relevant environmental authorities
Authors support the most obvious solution – which has been on the desk of the decision-makers for a long time: that it should be made obligatory to generate data on the Directive’s implementation, both at the national as at the EU level. The implementing regulation should encompass the methods of data gathering, covering the maximum number of potential information sources (Kiss, Verheyen).
29 According to Annex VI of the ELD, mandatory information on environmental damage cases represents only a fraction of the information that would be worth compiling (Mikosa).4 Our authors consider the examples of websites on ELD operated by the competent national authorities to be a particularly important elements of the mandatory ELD information systems. The Czech researcher points out that the public websites containing publicly accessible register should contain, inter alia:
the operators undertaking activities according to ELD, Annex No. III, and the operations they are engaged in, including their basic characteristics and documentation;
information about cases of environmental damage, ongoing proceedings, imposed preventive and remedial measures, information about follow up activities and results achieved by the remediation measures, etc.;
in addition to content of an informative nature enabling public scrutiny, the website should also contain educational materials, including basic information on legislation, possibilities for involvement, etc.;
publishing examples of good practice could be also helpful (Cerny);
databases on incidents should include environmental damage cases dealt with under old sectoral law, since the link to ELD cases is often blurry (Verheyen);
lessons learned from already settled cases, if compiled systematically in a database and communicated widely, are likely to facilitate and encourage the application of ELD requirements. Information in such a database must be systematically updated and be subject to annual quality checks, which is often not the case at the moment (Mikosa).
It seems also important to pay attention to the technical side and functionality of the website such as user friendliness, including an easily searchable database (Cerny). In 2019, ISPRA (the national environmental agency of Italy) created an environmental damage report, which the European Environmental Agency acknowledged as best practice in that field. The report underlines the importance of addressing the problem of lack of a widespread knowledge of the topic of Environmental Damage, which is an obstacle to the fulfilment of the goals of a thorough environmental liability system. A report on state actions for environmental damage prevention and remediation, based on a review of the assessed cases of damage in the years 2017 and 2018, represents a useful tool for understanding this complex topic, its issues and perspectives. The report focuses on quantifying and repairing damage, managing damage reports, and challenging environmental crimes. The aim is that the responsible department of ISPRA specialised in environmental liability matters will issue the report in every two years (Delsignore).
As concerns the necessary legislative techniques, a duty to set up ELD databases could be created by either amending ELD or Art. 7 (2) of the Directive 2003/4/EC on public access to environmental information, which already prescribes the active dissemination of certain information, which is a similar, but more general concept compared to the requirement of ELD registers (Verheyen). It may also be prudent to implement a two-tier approach whereby the information that shall be public according to the Directive 2003/4/EC would be made freely available to general public, while access to the rest of the database would only be provided for competent authorities and other pre-defined groups of users, if appropriate (Mikosa).
4 Annex VI contains indications onabout the information referred to in Article 18(1) that shall cover cases of environmental damage under this Directive and reflect on: a factfacts about an incident, type of incident, and an activity from which a damage occurred to any of ELD resources.
30 The Austrian researchers in our project go a step further than the above-described ELD centred information system, and suggest the creation of a centralized register covering ELD and related sectors. According to their proposal, on a national level a central, overall national register should be created in which information concerning active and past environmental damage cases are published that fall both under the ELD and applicable sectoral legislation (in particular, cases concerning environmental damage that are normally treated under water or nature protection laws). Such a portal should be hosted on the website of the chief environmental agency. This agency usually hosts and maintains many other environmental databases in the country (Schmidhuber).
The information from this database should be both easily available and navigable. It should be clearly linked with information concerning how to file an environmental complaint under the ELD regime, too. Links should be provided not only to the Environmental Ministry itself, but also ideally to each of the competent ELD authorities, as well as to other relevant environmental and other administrative bodies. This would be consistent with Article 5(1)(a) of the Aarhus Convention, which mandates its Parties that its “public authorities possess and update environmental information which is relevant to their functions.” Similarly, Article 5(1)(b) of the Aarhus Convention stipulates that Parties shall establish mandatory systems so that there is an adequate flow of information to public authorities about proposed and existing activities which may significantly affect the environment. Article 5(1)(c) of the Aarhus Convention, furthermore, requires that information be provided to the public in the case of imminent threats to human health or environment so as measures may be taken to prevent or mitigate such harm. This is different from the other forms of active information servicing, because the relevant authorities are not only required to approach the public actively (without being requested to do so), but also to ensure that the targeted communities and people have received the information in due time, understood that, and act accordingly. This ‘super-active’ form of information distribution is highly relevant for the ELD cases, too. Finally, Article 4 of the Kyiv Protocol on Pollutant and Release Transfer Registers (PRTR) requires that countries create a publicly accessible national pollutant release and transfer register. The latter instrument has been implemented by the EU as well, and thus also applies to Member States not only as a matter of international law, but also EU law. This feature, raised by the Austrian researchers, highlights a really sensitive side of environmental information systems generally: there are plenty of overlaps, which result in an enormous waste of resources both on the side of the operators obliged to report the same or very similar set of environmental data multiple times, and on the side of the authorities, who have to process a much larger amount of information than is necessary (Schmidhuber).
Paradoxically, a more streamlined environmental liability reporting obligation could enable the authorities to provide stakeholders with more elaborate information to the stakeholders (Kallia).
However, it must be noted that even if rationalised, there still would remain several databases on which information on the environment in a country is published and the status of environmental media is monitored for several, but interconnected reasons. In this regard, these databases may provide invaluable information in relation to each other and for designing and initiating potential ELD cases. However, as valuable as these resources are in terms of information concerning the state of or possible deterioration of specific environmental media (water, nature/biodiversity/soil), they still fail to sufficiently ensure that all environmental problems are properly prioritized and effectively handled. This is where a comprehensive and central database should come into play, in particular as regards the identification of concrete polluting activities and establishing or identifying those actors which need to be held accountable under the polluter pays principle, so as to properly support the implementation of the ELD in the Member States (Schmidhuber).
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