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RESEARCH ARTICLE: Recent Developments in European Policy Regarding Brownfield Remediation

Published online by Cambridge University Press:  16 December 2009

Bernard Vanheusden
Bernard Vanheusden*
Affiliation:
Faculty of Law, University of Hasselt, Diepenbeek; and University of Brussels, Brussels, Belgium
*
Address correspondence to: Dr. Bernard Vanheusden, Faculty of Law, University of Hasselt, Agoralaan–Building D, 3590 Diepenbeek, Belgium; (phone) +32 11 268765; (fax) +32 11 268779; (email) [email protected]
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Abstract

The presence of brownfields has become a major soil-related problem the world over. Brownfields are found not only in the United States but in every industrialized country and region. In the European Union (EU), a consensus is growing that the redevelopment of former industrial sites can play an important role in the revitalization of certain neighborhoods and areas and in the creation of new industrial sites. This article offers a survey of the recent developments in the European policy regarding brownfield remediation. The best-known attempt for an overall framework law for soil is the Proposal for a Soil Framework Directive. Unexpectedly, this proposal was blocked in 2007 by several countries and seems to be now at a dead end. However, the absence of a community legislation focused specifically on soil protection does not mean that there are no other relevant legal documents regarding the remediation of brownfields. On the contrary, for example, the Environmental Liability Directive is of prime importance for brownfield remediation throughout Europe. Other relevant and interesting legal documents are the Environmental Crime Directive, the European Community guidelines on state aid for environmental protection, and the new Waste Framework Directive. This legal framework is constantly evolving. Therefore, it is important to follow up this development. Brownfield redevelopment in the EU will be a major challenge for policy makers in the near future.

Environmental Practice 11:256–262 (2009)

Type
FEATURES
Information
Environmental Practice , Volume 11 , Issue 4 , December 2009 , pp. 256 - 262
Copyright
Copyright © National Association of Environmental Professionals 2009

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References

Notes

1 The European Commission is the European institution that drafts proposals for European laws. It is independent of national governments. The Commission presents the proposals to the European Parliament and the Council of the European Union, which share the responsibility for passing laws and making policy decisions. The European Commission also manages the day-to-day business of implementing EU policies and spending EU funds. The Commission keeps an eye out to see that everyone in Europe abides by the European treaties and laws. It can act against rule breakers, taking them to the Court of Justice, if necessary. For more information, see http://ec.europa.eu/index_en.htm (accessed April 23, 2009).

2 A directive is a binding European law. Similar to a regulation, which is another kind of European law, it is binding for all Member States. Contrary to a regulation, a directive must be transposed/implemented in each of the Member States in national (or state) legislation. A directive leaves some room to the Member States to take into account the specificities of their country.

3 Proposal of September 22, 2006, for a directive of the European Parliament and the Council establishing a framework for the protection of soil and amending Directive 2004/35/EC [COM (2006) 232 final, 30 pp.].

4 Directive 2004/35/CE of the European Parliament and the Council, April 21, 2004, on environmental liability with regard to the prevention and remedying of environmental damage [Official Journal L, no. 143 (April 30, 2004)].

5 Directive 2008/99/EC of the European Parliament and the Council, November 19, 2008, on the protection of the environment through criminal law [Official Journal L, no. 328 (December 6, 2008)].

6 Proposal of December 21, 2007, for a directive of the European Parliament and of the Council on industrial emissions (integrated pollution prevention and control) (Recast) [COM (2007) 844 final, 247 pp.].

7 This title includes limited research from B. Vanheusden, “Brownfield Redevelopment in the European Union,” Boston College Environmental Affairs Law Review 34, no. 3 (2007):559–575.

8 European Commission, Commission Staff Working Document. Accompanying document to the Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions: Thematic Strategy for Soil Protection. Summary of the Impact Assessment, SEC (2006) 1165, p. 3, available at http://ec.europa.eu/environment/soil/pdf/sec_2006_1165_en.pdf (accessed May 28, 2009). Figures on contaminated sites vary sometimes because of the lack of a common definition of contaminated sites. As long as the Member States each have a different understanding of what “contaminated site” means and as long as the method and speed of building up inventories throughout the Member States differ greatly, an EU-wide inventory of contaminated sites has little relevance [L. Van-Camp, B. Bujarrabal, A.R. Gentile, R.J.A. Jones, L. Montanarella, C. Olazabal, and S.-K. Selvaradjou, eds. (2004) Reports of the Technical Working Groups Established under the Thematic Strategy for Soil Protection, EUR 21319 EN/4, 872 pp. (Office for Official Publications of the European Communities, Luxembourg, 2004), esp. 635, available at http://ec.europa.eu/environment/soil/pdf/vol4.pdf (accessed May 29, 2009)].

9 R. Seerden and M. van Rossum, “Legal Aspects of Soil Pollution and Decontamination in the Netherlands,” in Legal Aspects of Soil Pollution and Decontamination in the EU Member States and the United States, ed. R. Seerden and K. Deketelaere (Intersentia, Antwerp, 2000), 289–340, esp. 289.

10 Experiences in the US with the Resource Conservation and Recovery Act (RCRA) and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) strongly influenced European legislation.

11 For the sustainability of brownfield redevelopment, see, for example, J.B. Eisen, “Brownfields Policies for Sustainable Cities,” Duke Environmental Law & Policy Forum 9 (1999):187–229; and G. Thornton, B. Vanheusden, and P. Nathanail, “Are Incentives for Brownfield Regeneration Sustainable? A Comparative Survey,” Journal for European Environmental & Planning Law 2, no. 5 (2005):350–374.

12 This might be less a problem in the US but is clearly one in the densely populated EU.

13 European Commission, Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions: Thematic Strategy for Soil Protection, COM (2006) 231 final, 12 pp. (hereafter cited as Thematic Strategy for Soil Protection), available at http://ec.europa.eu/environment/soil/pdf/com_2006_0231_en.pdf (accessed May 18, 2009). For a discussion of the strategy, see G. Van Calster, “Will the EC get a finger in each pie? EC law and policy developments in soil protection and brownfields redevelopment,” Journal of Environmental Law 16, no. 1 (2004):3–17.

14 Decision no. 1600/2002/EC of the European Parliament and the Council, July 22, 2002, establishing the Sixth Community Environment Action Programme [Official Journal L, no. 242 (September 10, 2002)].

15 If, for example, the Member States use different pollution standards, which may influence companies in deciding where they will start their activities.

16 Thematic Strategy for Soil Protection, 5–6.

17 Ibid., 6.

18 Proposal of September 22, 2006, for a directive of the European Parliament and the Council establishing a framework for the protection of soil and amending Directive 2004/35/EC [COM (2006) 232 final, 30 pp.].

19 Thematic Strategy for Soil Protection, 5–6.

20 COM (2006) 232 final, 12.

21 Ibid., 20.

22 The principle of subsidiarity, is in Article 5, paragraph 2, of the treaty establishing the European Community (EC Treaty), states, “In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.”

23 M. Petersen, “European Soil Protection Law after the Setback of December 2007: Existing Law and Outlook,” European Energy and Environmental Law Review 17, no. 3 (2008):146–155, esp. 147.

24 For an extensive overview, see I.L. Heuser, Europäisches Bodenschutzrecht: Entwicklungslinien und Maßstäbe der Gestaltung, 664 pp. (Erich Schmidt Verlag, Berlin, 2005); and I.L. Heuser, “Milestones of Soil Protection in EU Environmental Law,” Journal for European Environmental & Planning Law 3, no. 3 (2006):190–203.

25 Directive 2004/35/CE of the European Parliament and the Council, April 21, 2004, on environmental liability with regard to the prevention and remedying of environmental damage [Official Journal L, no. 143 (April 30, 2004)].

26 Art. 2(1)(c), Environmental Liability Directive.

27 Art. 8(1), Environmental Liability Directive.

28 See Environmental Liability, http://ec.europa.eu/environment/legal/liability/index.htm (accessed May 15, 2009).

29 Directive 2008/99/EC of the European Parliament and of the Council, November 19, 2008, on the protection of the environment through criminal law [Official Journal L, no. 328 (December 6, 2008)].

30 Art. 3(a), Environmental Crime Directive.

31 Art. 4, Environmental Crime Directive.

32 Art. 5, Environmental Crime Directive.

33 Art. 6, Environmental Crime Directive.

34 Art. 88, par. 3, EC Treaty.

35 See D. Geradin, “EC Competition Law and Environmental Protection: Conflict or Compatibility?” in Yearbook of European Environmental Law, ed. H. Somsen (Oxford University Press, Oxford, 2002), 2:117, 121–123, 153–154.

36 Official Journal C, no. 82 (April 1, 2008).

37 Remediation work carried out by public authorities on their own land is not, as such, subject to Article 87 of the EC Treaty. Problems of state aid may, however, arise if the land is sold at a price below its market value after remediation. In this respect, the Commission Communication on State aid elements in sales of land and buildings by public authorities [Official Journal C, no. 209 (July 10, 1997):3] is still applicable.

38 Directive 2006/12/EC of the European Parliament and the Council, April 5, 2006, on waste [Official Journal L, no. 114 (April 27, 2006)].

39 European Court of Justice, Case C-1/03, September 7, 2004, available at http://curia.europa.eu/en/content/juris/index.htm (accessed May 17, 2009).

40 Environmental Data Services (ENDS), “First Autoclave Project for Municipal Waste,” ENDS Report 356 (September 2004):44.

41 For example, see L. Bergkamp, “A New Court-Made Environmental Liability Regime for Europe,” Environmental Liability 12, no. 4 (2004):171–177; L. Bergkamp, “The European Court of Justice's Texaco Ruling and the Environmental Liability Directive,” Tijdschrift voor Milieuaansprakelijkheid/Environmental Liability Law Review, 19, no. 4 (2005):150–155; C. Bickel, “Die schädliche Bodenveränderung als Abfall,” Die Öffentliche Verwaltung 23 (2005):994–996; P. Billet, “Le déchet, qualification incertaine des sols pollués,” Revue juridique de l'environnement, no. 3 (2005):309–327 (for the review, see http://www-sfde.u-strasbg.fr/rubriques_sfde.cfm?id_rub=4); N. De Sadeleer, “Case C-1/03, Paul Van de Walle,” Common Market Law Review 43, no. 1 (2006):207–223; M.-C. Desjardins, “La notion de déchet: Une voie de solution adéquate pour combler les lacunes du droit européen en matière de sols pollués?” Revue européenne de droit de l'environnement, no. 2 (2006):145–152; Y. Jégouzo, F.-G. Trébulle, and L. Fonbaustier, “Le sol pollué, même accidentellement, peut être qualifié de déchet,” Revue de droit immobilier 31 (2005):31–36; L. Krämer, “Decontamination of Soil and EU Waste Legislation,” Environmental Liability 12, no. 6 (2004):263–270; O. McIntyre, “The All-Consuming Definition of ‘Waste’ and the End of the ‘Contaminated Land’ Debate?” Journal of Environmental Law 17, no. 1 (2005):109–127; A. Oexle, “Kontaminiertes Erdreich als Abfall,” Europäische Zeitschrift für Wirtschaftsrecht 15, no. 20 (2004):625–629; J. Sambon, “Les terres contaminées sont des déchets au sens de la Directive 75/442/CEE,” Aménagement-Environnement 53, no. 1 (2005):53–57; and S. Wrede, “Kontaminierter Boden als Abfall,” Natur und Recht 27, no. 1 (2005):28–31.

42 B. Vanheusden, “Brownfield Redevelopment in the European Union,” Boston College Environmental Affairs Law Review 34, no. 3 (2007):559–575, esp. 566.

43 Directive 2008/98/EC of the European Parliament and the Council, November 19, 2008, on waste and repealing certain directives [Official Journal L, no. 312 (November 22, 2008)].

44 Art. 2(1)(b), New Waste Framework Directive.