Does “environmental damage” include the prevention or deceleration of recovery from an existing, already-damaged environmental state? The EWH Court answered in the negative.

Seiont, Gwyrfai and Llyfni Anglers’ Society, R (on the application of) v Natural Resources Wales & Ors [2015] EWHC 3578 (Admin) (17 December 2015)

This case raises the important issue of whether, for the purposes of Article 2(2) of the Environmental Liability Directive (EU Directive 2004/35/EC), “damage” includes the prevention or deceleration of recovery from an existing, already-damaged environmental state; or whether it is restricted to a deterioration from an existing state. The claimant sought to challenge the decision of Natural Resources Wales (“NRW”) on its notification to it that environmental damage had been caused by discharges into the lake Llyn Padarn.

The contention was that NRW had made that determination on the basis of an incorrect interpretation of “environmental damage”; and, if the correct legal approach had been adopted, NRW’s conclusions as to damage would, or may, have been different. After making a careful analysis the court concluded that “damage” as defined in the EL Directive is restricted to a deterioration in the environmental situation, and does not in addition include the prevention of an existing, already-damaged environmental state from achieving a level which is acceptable in environmental terms – or a deceleration in such achievement. It is common ground that “environmental damage” is a subset of “damage”; and so “environmental damage” necessarily has that same restriction.

The full text is available on EuroCases

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