Europe Sets the Standard for GM Liability Law

Attorney General Margaret Wilson is expected to respond today to requests for releaseof the Law Commission report on GM liability.

The Law Commission report was delivered to Margaret Wilson on May 17 and her office originally planned to release it in mid June.

“One of the important observations the report is bound to contain is that Europe is providing strong leadership on environmental liability law” said Simon Terry, Executive Director of the Sustainability Council of New Zealand.

“The European Commission recently set policy that will result in GM developers bearing the full costs of any environmental damage resulting from the release of GMOs.”

“‘Polluter pays’ is the founding principle of this proposed European law” he said. “At a time of heightened interest in GM issues, the debate would benefit from release of the Law Commission’s analysis of this important precedent and what would be required to adopt it in New Zealand”

The European Commission’s position is very similar to that set out in a report by Simon Terry Associates and Chen Palmer & Partners entitled Who Bears the Risk?

Genetic Modification and Liability.”Both recommend strict liability. Both also recommend that the exposure to damages is not capped so that operators have every incentive to prevent damage in the first place he said.”

Who Bears the Risk was written as a response to the report of the Royal Commission on Genetic Modification.

“The Royal Commission did not provide analysis to back up its opinion that existingliability law should remain unchanged” he said.

“The Commission recognised that, under existing law, some of the most serious biotechnology risks would end up being carried by innocent third party citizens, farmers and businesses” he said. “That is wholly unacceptable.”

“Now that the EC has confirmed the ‘polluter pays’ princple, the Royal Commission’s recommendation to allow laws to stand that would have the ‘polluted pay’ is out of step” he said.

“New Zealand GM liability law is quite inadequate in comparison to the standards set by the European Commission.”

At the time Who Bears the Risk was released, the Life Sciences Network said that the effect of its proposals on GM research would be to “punitively disincentivise it out of existence” and send the research offshore.

“Clearly Europe is not going to subsidise GMO release by exempting opertaors from strict liability.”

“Equally, those planning to release GMOs in New Zealand should not expect to be subsidised by anyone, let alone innocent third parties who suffer damages.” “Putting the financial risks with the developer⁄operator is a very important commercial discipline.”

“One of the reasons the Sustainability Council has called for an extension of the current moratorium on GMO release is to allow for liability law reform to be completed. Release of the Law Commission report is the first step in that process.” he said.

Reference:

European Commission, Proposal for a Directive of the European Parliament and the Council on Environmental Liability, January 2002. The Commission notes that: “This proposal will be presented to the Environment Council at its meeting on 4th March 2002. This will start the legislative procedure at the end of which the European Parliament and the Council of Ministers will jointly adopt the new Directive.”