A further policy tool to reduce pollution (or mitigate its impacts) is to impose a legal liability on companies to undertake remedial action if their activities cause pollution which results in environmental damage. This concept forms the basis for the Directive on environmental liability 2004/35/EC (see section 11.13). In proposing the Directive, the Commission argued that the introduction of an EU wide liability regime would help to underpin the Treaty principles (Article 174(2)) of prevention and that, where environmental damage occurs, ‘the polluter should pay’.

This approach involves taking a particular substance and considering how it may affect vulnerable targets or receptors by any environmental pathway and setting controls in these pathways as appropriate. An attempt by the Community to follow this approach is contained in the ‘Cadmium Action Programme’ (OJ C30 4.2.88).

This approach involves taking a particular source which may be a specific industry or industrial sector and considering all the pollutants it emits and setting appropriate controls over these. The approach can be applied to individual plants. The first action programme proposed that individual Directives should apply to particular industrial sectors (the ‘sectoral approach’) but rather few Directives have followed the approach, an exception being the titanium dioxide industry (see Section 4.9). The IPPC Directive establishes a requirement to set emission limits for a wide range of industrial processes. A regulator might set industry wide emission limits (eg if there was little likelihood of variations in local conditions) or establish these on a case by case basis in individual permit determinations (see Section 6.18).

This approach is based on the recognition that pollutants can move between different environmental media, and also that stringent controls over discharges to one medium can result in increased discharges to another medium. It is discussed more fully below.