The purpose of the article is to show that the liability system established by Part 2A of the Environmental Protection Act 1990 is unfit for purpose because its mixture of joint…
Abstract
Purpose
The purpose of the article is to show that the liability system established by Part 2A of the Environmental Protection Act 1990 is unfit for purpose because its mixture of joint and several liability and proportionate liability makes it impossible to implement and enforce effectively or efficiently as well as making it expensive to administer. The article aims to analyse the liability system and its effect on the implementation and enforcement of Part 2A.
Design/methodology/approach
A research approach was taken to examine and analyse Part 2A and the accompanying statutory guidance, and its implementation and enforcement. This approach included researching the liability system of Part 2A in depth, liability systems in other jurisdictions to compare and contrast with the liability system in Part 2A, publications by the UK Government on the progress of Part 2A, and commentaries on Part 2A and its progress.
Findings
The paper found that the liability system introduced by Part 2A is too complex to enforce effectively or efficiently. The article concludes that the result is a contaminated land regime that has failed to achieve its purpose in identifying land that poses a risk to human health and the environment and in remediating it.
Originality/value
The paper is the first paper to examine and critique the liability system in Part 2A and its implementation in depth and to suggest issues to consider in its revision so as to replace the regime with a regime that is fit for purpose.
Details
Keywords
The purpose of this article is to examine the regime to remediate contaminated land in the UK set out in Part 2A of the Environmental Protection Act 1990 and to analyse the UK…
Abstract
Purpose
The purpose of this article is to examine the regime to remediate contaminated land in the UK set out in Part 2A of the Environmental Protection Act 1990 and to analyse the UK Government's intent and objectives in introducing the regime. The legislative provisions and the statutory guidance that accompanies that legislation are then analysed to determine whether those objectives could have been met.
Design/methodology/approach
A research approach was taken to trace the legislative history of Part 2A and to analyse the statutory provisions and the statutory guidance. The approach included researching Parliamentary debates on the statute, consultations on the statutory guidance, other information published by the UK Government, commentaries on the regime, and contaminated land regimes in other jurisdictions.
Findings
The paper found that the introduction of a contaminated land regime that delegates primary implementation and enforcement authority to local authorities, and that severely limits their discretion in doing so, has resulted in a regime that has proven to be unworkable in practice and that has failed to meet its objectives.
Originality/value
The article is the first paper to examine the legislative intent and objectives behind Part 2A and to analyse their effect on the provisions in the statute and the statutory guidance and their implementation and enforcement.
Details
Keywords
The paper aims to examine the question whether legislative reform is the silver bullet for the problems generated by the failure of a company which is exposed to claims arising…
Abstract
Purpose
The paper aims to examine the question whether legislative reform is the silver bullet for the problems generated by the failure of a company which is exposed to claims arising from the non-fulfilment of its environmental obligations. The limited capacity of the UK insolvency regime to facilitate the fulfilment of a debtor company’s environmental obligations is often illustrated with reference to some significant judicial decisions. However, no real picture has emerged of the frequency with which these issues arise, based on which firm proposals for reform could be advanced. This paper argues that greater regard should be paid to existing mechanisms which provide a means of enabling insolvency risks to be managed or minimised because these point towards the scope for these issues to be resolved through the environmental protection framework rather than through reliance on company and/or insolvency law.
Design/methodology/approach
Research was conducted into the statutory and non-statutory regulations (such as statutory guidance) and case law principles, which underpin the treatment of the claims against an insolvent (or potentially insolvent) company resulting from its environmental activities. This included research into policies which have a bearing on this area, developed through governmental and civic consultations and studies.
Findings
The paper concludes that the likelihood of a case for legislative reform being made out is weak, and the focus should accordingly shift to strengthening the effectiveness of existing law, policy and practice.
Originality/value
This paper is the first (in the UK context) to challenge the perceived need for reform in this area, engaging with recent examples of such corporate failures and the impact of recent legislative and policy developments.