European Council of Civil Engineers
Position Paper

European Council of Civil Engineers Position Paper in response to the WHITE PAPER ON ENVIRONMENTAL LIABILITY.

The European Council of Civil Engineers (ECCE) welcomes the intention of the European Commission to implement core environmental principles and the initiative to propose a horizontal measure rather than a series of actions incorporated into separate environmental directives. The current position paper reflects the comments and concerns of civil engineering professionals working with the built environment.

Review of Scope and Content

The White Paper aims to establish a case for an EC regime for environmental liability and the effects such an action might have. The first paragraph of the Executive Summary to the White Paper suggests that a liability regime aims "… to improve application of the environmental principles in the EC Treaty and implementation of EC environmental law …".

The Green Paper on Remedying Environmental Damage appeared in 1993. The following year a European Parliament Resolution in April 1994 called on the Commission to submit "a proposal for a directive on civil liability in respect of (future) environmental damage".

• The current proposal recognises that not all forms of environmental damage can be remedied through liability, (Point 2.2)

• The proposed regime seeks to implement key EC environmental policies, in particular the polluter pays principle (Point 3.1)

• Effective decontamination and restoration is seen as crucial to making the polluter pays principle truly operational (Point 3.2)

• It is recognised that national laws introduced by Member States differ in scope and are occasionally inconsistent in covering environmental damage (point 3.3)

• An environmental liability regime is seen as leading to better integration of environmental considerations; there is an economic impact of the variation in Member States covering damage to bio-diversity - a regime could ensure a level playing field in the internal market (points 3.4, 3.5)
• A financial security system (e.g. insurance) is seen as vital to ensuring an effective regime which will create "incentives for more responsible behaviour by firms" (point 3.6)

General Comment

It is understood that the clear purpose of the White Paper on Environmental Liability is to underpin Environmental Directives already in place or which are about to be put in place e.g. The Water Policy Framework Directive – it should not be designed to enhance or improve those Directives.

The proposal to seek a coherent system through a horizontal approach is welcomed. The European Council of Civil Engineers is also pleased to note that the proposals set out in the White Paper exclude retroactive damage.

It appears that the Directive seeks to harmonise liability regimes and so it would appear appropriate to have uniformity in the proposed Directive in respect of definitions of legal procedures. In a trans-boundary situation there must be uniformity on various aspects between legal definitions. European lawyers appear to agree on what is meant by Strict Liability but can this be said to be true for current defences which differ? In trans-boundary situations, agreements should be binding in law to cover the needs of those countries involved and these would form the basis of any liability regime.

The work of a professional civil engineer encompasses both major projects and work at community level in regeneration projects which help people in areas of social, economic and environmental need. Construction projects do not involve a consistent and repetitive process, but a continuously changing set of circumstances.

The Planning Phase of Construction Projects

Certain legislation has already been set out to ensure minimisation of damage to the environment. A key example is that of Environmental Impact Assessment (E.I.A.). Clarification is required of the responsibility which professional engineers might be expected to bear if they have fully complied with the Environmental Impact Assessment obligations of a regulating authority. A liability may arise at a site as a result of an impact which might not have been foreseen under the Directive or even by hindsight. Clarification would be required on what is reasonable foreseeability.

Uncertainty might lead to a necessity to carry out an analysis of the seasonal events that may affect E.I.A. assessments in order to have adequate opportunity to assess full environmental impact and risk with the inevitable consequence that projects would suffer considerable delays and incur greater costs. Covering all four seasons might prove insufficient to deal with the case of a potential flooding or a drought event. In such events the required approach would be to adopt that taken in studying Climate Change i.e. to examine all known records and even examine a series of scenarios. Climate Change is likely to have its effects on many types of civil engineering projects.

If a situation arises that damage other than that foreseen occurs, who can be held liable? The Public or the Planning Committee? In suggesting that regulators may be required to share the cost of environmental damage with operators, it may be considered that existing environmental law is being overridden, an approach which would neither be welcomed by Member States nor industry.

The European Council of Civil Engineers would also welcome clarification on the effect of an environmental liability regime in conjunction with Commission proposals relating to environmental impact assessment of plans and programmes. 

The Construction Phase

It could be considered that no major construction project is without risk. It may also be considered that all major projects e.g. building of dams and reservoirs, are going to cause some damage – debate hinges on whether the ecology can recover and what the compensating environmental and amenity benefits will be. The provisions in the proposed Directive should demonstrate a full understanding of this and the requirements in existing legislation and procedures to provide sufficient control.

The White Paper deals with contaminated sites – an area of particular pertinence to professional civil engineers. There is concern amongst professional engineers that in their role as professional advisers they may become liable owing to a lack of clarity on definitions of liable parties. More complex contractual arrangements which exist such as contracting engineers undertaking ‘facilities management’ fall into a ‘grey area’ of definition. Contracting engineers are increasingly involved in ‘facilities management’ as part of an involvement in the full life cycle of a project. There is a tendency for profit margins to move from the construction phase to the facilities management phase. For the client this acts as an assurance of quality of the construction.

It is also believed that greater definition is required of ‘dangerous activities’.

A further area of concern is the rules for Non-Governmental Organisation (NGO) access to justice. How are NGOs to be defined as bona fide? It is understood that in sopme countries of Europe such as the Netherlands, registration is carried out of NGOs and confirmation given of their bona fides – will action be taken at the European level to ensure there is a ‘level playing field’ for registration of NGOs in all Member States which also takes into account the position within the accession countries. Within the construction sector, actions by NGOs to prevent and delay road construction have been a feature of the past decade. Clearly many protestors are not representative of bone fide NGOs who may offer a consultative and advisory role. The issue being raised here is that of cross-indemnification for damages. If an action is taken by an NGO and it transpires in court that there is no reason to enjoin, it is normal practice to recover damages from the plaintiff. It can not, however, easily be imagined that all NGOs are in a position to do that. Further clarification is requested of how such a procedure could be made acceptable to all concerned.

The Operational Phase

Similarities can be seen with the process of getting planning consent with Environmental Impact Assessment once a facility (be it a building, docks, harbour, airport or treatment works) commences operation. Licences that allow operation will contain various environmental conditions. The operator is clearly open to environmental liability action if he/she does not comply with the conditions. It is unclear from the White Paper what the consequences would be if the operator complies with the licence conditions and there is still environmental damage.

It is noted that contrary to prior indications, joint and several liability is no longer set out as a firm option and this development is welcomed by many members of the European Council of Civil Engineers.

Insurability

The question of insurability is of particular concern on a number of aspects and a number of members have voiced their concerns relating to the question of insurability as set out in The White Paper:

1. the insurability of a project will be a decisive element in decisions to proceed with development. If there is reluctance on the part of insurers to provide cover for clean-up and redevelopment of contaminated sites, then this may lead to a decrease in urban regeneration and greater pressure to develop "greenfield" sites. Will there be an increase in specialist insurers to handle particularly complex risk?
2. The issue of insurability is also of great relevance to small and medium enterprises (SMEs). Across Europe the construction sector consists to a level of 80% or more of small and medium enterprises. Any regime for environmental liability must take into account the business effect for small and medium-sized companies of increased insurance premium and the administrative complexities. The White paper states "As for SMEs, they often cause more environmental damage than (what) their size would predict, possibly due to a lack of resources … Undesirable side effects such as an increase in the share of damage caused by SMEs could be mitigated by more targeted use of national or EC support mechanisms aimed at facilitating adoption by SMEs of cleaner processes".. Plans at European and national level for demonstration projects to promote clean technology to small and medium enterprises must take into account the scale of such businesses throughout the construction sector and the impossibility of achieving total, or even majority, influence by the use of demonstration projects. Such projects assist the sector in moving forward by providing examples of best practice but can be no substitute for a suitable administrative solution. Here again, it must be emphasised that construction is not a ‘process industry’, but involves a continuously changing set of circumstances.
3. ‘Defences’. There is concern as to what defences will be available. The White Paper remains ambiguous on what may be allowed as defences. Legislation in the United Kingdom, for example may allow ‘state of the art’, foreseeability, due diligence or permit compliance. Such ambiguity could lead to the impossibility of obtaining adequate insurance.
4. At a seminar held in London in 1999 on "Contaminated Land: The Implementation of the Environmental Act 1990", the U.K. legislation was welcomed because a ‘lack of legislation and clear guidance has created difficulties in preparing valuations". It was also noted that a majority of firms surveyed (up to 95%) did not carry professional indemnity insurance to enable them to evaluate contaminated land. It was noted that valuers would have to pay more attention to site histories and would need to consider implications of potentially contaminative uses on adjoining land and the possibility of ground and surface water contamination. Similar information requirements would be needed for redevelopment. This becomes increasingly important if emphasis is placed on life-cycle design in sustainable construction whereby re-use and conversion would be favoured for a building over demolition and reconstruction.

Training for advising on redevelopment issues

At the seminar it was indicated that whilst there will be an increasing need for development surveyors who will be able to assess the significance of the contamination to the redevelopment project and determine whether any enforcement action is likely, there is a need for a lot more training than is currently available at universities.

Clearly the technical professions play an important role. Members of the European Council of Civil Engineers strongly emphasise the need for Environmental liability to be very clearly defined and the concept of prevention strongly stressed.

The European Council of Civil Engineers has expressed views on recent proposals for legislation in the fields of water and waste. In both areas professional civil engineers can rely on their own technical knowledge and expertise to provide impartial advice on the possible effects of legislation. The issue of environmental liability is of greater complexity as it closely involves both technical and legal professions. The issue may involve increasingly cross-sectoral work – one ECCE member has suggested that the engineering profession could involve chemical and agronomy sectors in its work. This will place a demand on the drafters of the Directive to ensure that the text is entirely clear in its meaning to both groups and not comprise words or phrases that are not understood or which can be misunderstood by either party.

It is clear that there are inherent difficulties because legislation in the Member States is at different levels. There is therefore a need for a step-by-step approach. The pursuit of sustainability requires people to surrender individual or group interests in favour of collective interests. On the larger scale this can mean that countries surrender national interests for the global good. The spirit of sacrifice required to favour future good over current benefit requires consensus between divergent groups and interests and can only achieved through a process of co-operation and consensus building.

The European Council of Civil Engineers will be pleased to further discuss any points raised in this position paper.

On behalf of the European Council of Civil Engineers

ENC: Annex 1

ANNEX 1

To:

European Council of Civil Engineers Position Paper in response to the

WHITE PAPER ON ENVIRONMENTAL LIABILITY

1. The integration in new construction design of a future demolition phase is an important element in ensuring sustainable construction. ECCE recently acted as co-sponsor of a seminar on Life-Cycle Design of Materials and Structures which was organised by ECCE member-organisation RIL (the Finnish Association for civil engineers) and the Finnish company VTT in Helsinki, Finland. The conference focused on the applications of life-cycle design (LCD) across the construction sector, thus including domestic housing, public buildings, bridges, ports and harbours, roads and railways. The hierarchy proposed was

1. alternative use of buildings

failing alternative use the following could be considered:

2. can building parts be re-used?
3. Is a separation of individual building materials possible so that they can be re-cycled

This hierarchy is however transposed when dealing with future building projects:

1. building parts should be re-usable after the original building use has been abandoned
2. preference should be given to building materials that ban be separated without problems and can be re-used as a recycled product.
3. Separation of individual building materials