Open Mike: Read all about it

You probably missed the first anniversary of Directive 2004/35/CE on environmental liability with regard to the prevention and remedying of environmental damage, which environment commissioner Margot Wallström enacted on 30 April 2004. You might never celebrate it.

Valerie Fogleman, an authority on environmental law and insurance, marked the occasion with her magnum opus. At the offices of Barlow Lyde & Gilbert, where Valerie was head of the environmental group, and to an awesome audience of insurers and lawyers, her publisher Witherbys launched Environmental Liabilities and Insurance in England and the United States.

This is the definitive account of how far environmental liability has developed in Europe and the US. It cautions that failure to consider such liabilities is to risk substantial costs, loss of reputation, and, in some cases, criminal sanctions.

ISBN 1 85609 303 4 comes in two A5 volumes the thickness of bricks, totalling more than 2000 pages. It is written for a new generation of eco-officials to throw at developers, consultants and contractors. It will hurt. The price is £295, but that is nothing when saving the planet.

Subsequent editions will follow the efforts of the unelected legal elite innovating eco-law. This is led by 100 of the greenest of the world’s most senior judges who attended the Global Judges Symposium at the World Summit on Sustainable Development in Johannesburg in 2002. They pledged “… to spare no effort to free all of humanity, and above all our children and grandchildren, from the threat of living on a planet irredeemably spoilt by human activities, and whose resources would no longer be sufficient for their needs.”

Who died and left them in charge? It is the abdication of responsibility by elected politicians for social policy on matters environmental that has left the space for eco-lawyers. The law should not deal with messy political problems, like deciding whether climate change is unacceptable to society. Courts need objective standards of guilt and innocence, which climatologists and oceanographers can’t provide.

Most people think that it is better politicians are not involved. But that abandons democracy and gives power to places like the European Union Forum of Judges for the Environment, created in Luxembourg in 2004. They will decide what the first EU law based on the “polluter pays principle” really means.

It aims to force those held legally responsible for environmental harm to control, contain, remove or otherwise manage the damage, and undertake remedial measures. Significantly, preventive measures must be carried out without delay when there is an imminent threat of environmental damage. This is easy to say, and lawyers will see no problem that the necessarily elastic meanings of “imminent” and “environmental threat” will be painfully thrashed out in court.

Most people already think that abrupt climate change is an “imminent threat”. Wild belief in an “imminent threat” can persist without evidence, as the British government understood when it insisted that Iraqis had weapons of mass destruction.

It is the abdication of responsibility by elected politicians on matters environmental that has left the space for eco-lawyers. The law should not deal with messy political problems

Many in construction probably think they are already guilty, posing an “imminent threat” to nature. Some cases will be brought, but all in construction will make extreme efforts to avoid being charged with unsustainable development.

Defence lawyers will be trading eco-risk assessors, who will suggest a precautionary approach to any development. Insurers and their re-insurers will offer project on-costs as a hedge against uncertainty, including audits by quality assured sustainability specialists. All will have a dead-hand in the design without any responsibility, and professional indemnity insurers will be in flap.

Environmentalists and their attack-lawyers will be in the business of threatening and bringing actions, particularly over the best-laid plans.

Non-governmental organisations are specifically given rights to enforce the liability regime.

It is also too late for government to try to define sustainability. Even assuming some prescription or proscription can be reached, design codes will be challenged as new “imminent threats” are posited by handfuls of imaginative activists living off their campaign subscribers, who expect novel eco-panics.

Buy a copy of Valerie’s book and read it properly. Then put it down the back of your trousers for your punishment under the environmental liability directive. It may jolt you into reviewing your sustainability policy before Directive 2004/35/CE is transposed into English law by its third anniversary in 2007. And keep reviewing ad nauseam.

Ian Abley is a practising architect, runs www.audacity.org, and is the author of Why is construction so backward?, published Wiley 2004