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Who Will Pay To Clean Up Britain's Past? review of Britain's policies regarding contaminated land, launched by the government last year, has failed to close an embarrassing gap in the nation's environmental policy framework. The policy review followed a decision last year to shelve a program to identify Britain's estimated 100,000 contaminated sites. But the review findings, published in a new consultation paper called "Paying for Our Past," raise more questions than they answer. The paper was published just a few months after a long-awaited judicial ruling in the so-called Cambridge Water case. The House of Lords (the highest English court of appeal) found that, under English common law, polluters were not liable for environmental damage unless the pollution was "foreseeable." The Lords ruled that common law was not a suitable instrument for imposing strict liability, and that it was for Parliament, rather than the courts, to decide where strict liability should apply. Thus, the courts placed the matter of environmental liabilities firmly on the government's doorstep. Back in 1990, it appeared that the government was at last facing up to the legacy of land pollution left behind by two centuries of industrialization. A wide-ranging Environmental Protection Act was passed that year, and the National Rivers Authority (NRA), a tough new environment agency, had been set up the year before. Together, these developments promised a comprehensive regulatory structure for controlling industrial pollution and a powerful arsenal to allow regulators to identify and tackle polluted land. Old waste sites, where uncontrolled gas emissions and groundwater pollution are the major worries, were to be one of the principal targets under the new contaminated-land policy. Local authority officers would locate the sites, investigate them, and if necessary invest in remedial action, the costs of
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which were to be recovered from the site owners. The new NRA was also armed with powers to tackle any contaminated site (with the exception of abandoned mines) that threatens rivers or groundwater. The NRA can investigate and remediate such sites and charge the costs to the responsible parties. Finally, under the 1990 Act, local authorities were to be required to compile registers of "land that has been subject to contaminative uses" ranging from chemicals manufacture to tanning. All this legislation was drawn up at the height of the economic boom in the late 1980s, when, for the first time in Britain, there was an intense political interest in environmental issues. The laws remain on the statute book, but little has been implemented. Ministers have chosen not to prepare the detailed regulations that would be required. Instead, the onset of the recession, and a waning interest in environmental policy, persuaded the government to adopt a wait-and-see approach. Lobbying by the real estate industry led last year to the government's most humiliating backdown. Ministers were persuaded that registers of contaminated land would lead to property blight in industrial regions, and they withdrew the proposal indefinitely. Environmental groups, such as Friends of the Earth (FoE), condemned the withdrawal of the registers, and the decision was described in a recent report by a Parliamentary committee as "ostrich-like." But perhaps of greater significance is the government's silence over whether or not the legislation on investigating and tackling old waste sites will also be abandoned. "A register of potentially contaminated land and a prioritized testing and remediation program must be introduced without further delay," FoE campaigner Benedict Southworth says.
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Even the NRA's powers to investigate and clean up polluted sites have been used only rarely. Here the difficulty is a lack of funds. The authority lacks the resources to investigate contaminated sites, let alone embark on capital-intensive projects or pursue the liable parties in the courts. Although the legislation allows the NRA to obtain funds from liable parties after the remediation is completed, this is a risky business: it's for the courts to decide who should pay. In response to the recent policy review paper, the United Kingdom Environmental Law Association argued that regulatory authorities should be able to obtain cleanup funds from liable parties before investing in remedial work. Not surprisingly, the government's policy review paper reveals little enthusiasm for spending public money on site cleanups. It argues that regulatory authorities should pursue the site operators, landowners, or lenders—through what amounts to a hierarchy of liability—rather than fund the remedial work from the public purse. But the paper says that business should not be expected to clean up all historical p o l l u t i o n either: many sites can safely be left untackled for years to come. Above all, and in sharp contrast with a new policy position from the Opposition Labor Party, the paper avoids any mention of a British Superfund. Labor is proposing a system of charges on polluting industries to create a cleanup fund to pay for remedial work where a responsible party cannot be identified. The paper also avoids any discussion of the environmental liability debate in the European Union (EU). However, the EU may yet agree to a tough environmental liability regime, which, with a majority vote of member states, could be imposed against Britain's will. Julian Rose is an environmental and technology writer based in London.
Environ. Sci. Technol., Vol. 28, No. 8, 1994
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