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Environmental offences: the reality of environmental crime

Watson, Michael (2005) Environmental offences: the reality of environmental crime. Environmental law review, 7 (3). pp. 190-200. ISSN 1740-5564

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    Abstract

    Economic instruments, informational devices, voluntary agreements and command
    and control regulation are just some of the techniques modern states use to protect the
    environment. The last of these — command and control — is sometimes dismissed as an
    increasingly obsolete strategy. It is often alleged that environmental offences are not ‘real’
    crimes. They are merely ‘quasi-criminal’ regulatory offences. This article rejects this view. It
    argues that environmental crime is a serious and growing problem. It examines fly-tipping in
    the United Kingdom and claims that environmental offenders often have very strong financial
    incentives to break the law. It claims that fines are currently too low and that serious
    consideration should be given to the increased use of civil and administrative penalties.

    Item Type: Article
    Additional Information: Reproduced by permission of Environmental Law Review, published by Vathek Publishing Ltd. © Vathek Publishing Ltd
    Uncontrolled Keywords: environmental offences crime protection
    Subjects: H Social Sciences > H Social Sciences (General)
    G Geography. Anthropology. Recreation > GE Environmental Sciences
    K Law > K Law (General)
    Schools: The Business School
    References:

    1 For useful discussions see J. Harman, ‘Environmental Regulation in the 21st Century’ (2004), 6(3),
    Environmental Law Review, 141–160; A. Jordan, R.K.W. Wurzel, and A.R. Zito, ‘New Instruments of Environmental
    Governance: Patterns and Pathways of Change’ (2003), 3(1), Environmental Politics, 3–24.
    2 It must, of course, be acknowledged that serious ‘new’ environmental hazards such as global warming
    have been recognised.
    3 ‘A New Generation of Environmental Regulation?’ (2001), 29, Capital University Law Review, 21–182,
    at 21. See also E.W.Orts, ‘Reflexive Environmental Law’ (1995), 89(4), Northwestern Law Review,
    1227–1340.
    4 Stewart, ibid., 28–29.
    5 Stewart, ibid., 30–31. For a different approach see P. de Prez, ‘Beyond Judicial Sanctions: the
    Negative Impact of Conviction for Environmental Offences’ (2000), 2(1), Environmental Law Review,
    11–22.
    6 It is easier to apply the command and control approach to some environmental offences than others.
    Command and control is no more relevant to the work of ‘graffiti artists’ than it is to the activities of
    burglars. For the main features of the command and control approach to environmental regulation
    see S. Wolf and N. Stanley, Wolf and Stanley on Environmental Law 4th edition (Cavendish: London,
    2003), 5–11.
    7 K.F.Brickey, ‘Environmental Crime at the Crossroads: the Intersection of Environmental and Criminal
    Law Theory’ (1996), 71, Tulane Law Review, 487–528.
    8 For an ambitious attempt to develop such a theory see M. Gottfredson and T. Hirschi, A General
    Theory of Crime (Stanford University Press: California, 1990). For an interesting integrated theory of
    crime (and one that has significant implications for ‘white collar’ environmental offences) see J.
    Braithwaite, Crime, Shame and Reintegration (Cambridge University Press: Cambridge, 1989).
    9 The idea that the entrepreneur ‘intends only his own gain’ is as old as the science of economics: see
    A. Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (Clarendon Press: Oxford,
    1976), 456 (first published 1776). Although firms have a range of objectives, profit maximisation
    appears to be the primary goal of small businesses. See P.L.Williams, The Emergence of the Theory of
    the Firm from Adam Smith to Alfred Marshall (Macmillan: 1978); M.Ricketts, The Economics of the
    Business Enterprise: An Introduction to Economic Organization and the Theory of the Firm (Edward
    Elgar: Cheltenham, 2002).
    10 G.S.Becker, ‘Crime and Punishment: An Economic Approach’ (1968), 76, Journal of Political Economy,
    169–193; M.A.Cohen, ‘Environmental Crime and Punishment: Legal/Economic Theory and Empirical
    Evidence on Enforcement of Federal Statutes’ (1992), 82(4), The Journal of Criminal Law and
    Criminology, 1054–1081; D.B.Spence, ‘The Shadow of the Rational Polluter: Rethinking the Role of
    Rational Actor Models in Environmental Law’ (2001), 89(4), California Law Review, 917–998; A.R.T.Emery
    and M. Watson, ‘Organizations and Environmental Crime: Legal and Economic Perspectives’ (2004),
    19(6), Managerial Auditing Journal, 741–759. For a classic account of how it can be economically
    rational for individuals to destroy the environment on which they depend see G.Hardin, ‘The Tragedy
    of the Commons’ (1968), 162, Science, 1243–1248.
    11 ‘Prosecuting for Environmental Crime: Does Crime Pay?’ (2002), 14(5), Environmental Law and
    Management, 289–295, at 289. See also A. Mehta, ‘IPC Penalties and Deterrents: the View from
    Industry’ (1997), 9(6), Environmental Law and Management, 274–279.
    12 A. Ogus and C. Abbott, ‘Sanctions for Pollution: Do we have the Right Regime?’ (2002), 14(3), Journal
    of Environmental Law, 283–298, at 294. This presupposes that most businesses wish to operate within
    the law. Criminal gangs are unlikely to attach much importance to licences.
    13 Ibid., at 288.
    14 Ibid., at 296. See also House of Commons Environmental Audit Committee, Corporate Environmental
    Crime (Stationery Office: London, 2005), HC 136, para. 50.
    15 Ogus and Abbot, note 12 above, argue (persuasively) that existing administrative penalties are
    currently an inadequate deterrent in the United Kingdom. They do not claim that fines for criminal
    offences should be higher.
    16 There are proposals to give the Environment Agency the power to apply civil penalties for routine
    environmental offences. Elliot Morley, the Minister for the Environment, recently stated at a DEFRA
    conference: ‘The [civil penalties] approach is more flexible and designed to fit the penalty more to
    the crime. It frees resources for criminal prosecutions while removing the burden from respectable
    companies that make a low level breach of regulations and raises the penalties for people who carry
    out deliberate environmental crimes’; C. Clover, ‘Pledge to Decriminalise Environmental Offences’
    Daily Telegraph, 29 November 2004. See also ‘Post-election Agenda on Environmental Justice Takes
    Shape’ (2004), ENDS Report 359, 27–31.
    17 Environmental Resources Management, Trends in Environmental Sentencing in England and Wales
    (Department for Environment, Food and Rural Affairs: London, 2003) 4–5, 13. For an interesting
    discussion see N. Parpworth, ‘Trends in Environmental Sentencing in England and Wales’ (2004),
    168, Justice of the Peace, 448–451.
    18 Trends in Environmental Sentencing, ibid., 12,17,19.
    19 Ibid. III.
    20 S. Fineman, ‘Enforcing the Environment: Regulatory Realities’ (2000), 9, Business Strategy and the
    Environment, 62–72.
    21 Environmental Crime and the Courts (Stationery Office: London, 2004), HC 126, paras. 15, 18 and 19. The
    Environ-mental Justice Project has reached similar conclusions; see C. Hatton, P. Castle and M.Day,
    ‘The Environment and the Law – Does our Legal System Deliver Access to Justice? A Review’ (2004),
    6(4), Environmental Law Review, 240–265, at 257–261.
    22 Although the term ‘fly-tipping’ is widely used, the Environment Agency believes that it trivialises the
    problem. The Agency prefers the ‘illegal dumping of waste’; Environmental Crime: Fly-tipping, Flyposting,
    Litter, Graffiti and Noise (Stationery Office: London, 2004), HC 445, para. 4; Q. 64.
    23 Ibid., ‘Memorandum Submitted by the Environment Agency’, Ev. 18.
    24 Ibid., ‘Memorandum from Environmental Campaigns Ltd’, Ev 9.
    25 Ibid., para. 6.
    26 Landfill taxes were introduced in 1996. The tax on active waste (the main category) was raised to £15
    per tonne in April 2004 and is expected to be around £35 per tonne by 2010.
    27 UK Environmental Accounts; http://www.statistics.gov.uk/pdfdir/envirbrief1003.pdf. Although the
    total revenue raised by landfill taxation significantly exceeds the cost of clearing unwanted waste
    from public and private land, this is not the case in all regions. In the London area, for example, the
    cost of removing illegally dumped construction waste appears to be far in excess of the landfill duties
    that might otherwise have been incurred.
    28 Trends in Environmental Sentencing, note 17 above, 41.
    29 Environmental Crime and the Courts, note 21 above, ‘Memorandum from the Local Government
    Association’, Ev. 31-32. See also ‘A problem-oriented approach to fly-tipping’ (2004), Jill Dando Institute
    of Crime Science, University College London, para. 32. Available online: http://www.jdi.ucl.ac.uk/
    publications/adhoc_publications/fly-tipping_report.php
    30 Environmental Crime and the Courts, note 21 above, ‘Memorandum from the Environmental Services
    Association’, Ev 69.
    31 http://www.environment-agency.gov.uk/news/; R. Clark, ‘Rubbish policies’ The Spectator, 23 October
    2004.
    32 ‘Agency slams “meagre” fines for waste offences’ (2002), ENDS Report 334, 53–54.
    33 Note 29 above, para. 77.
    34 Note 29 above, para. 79.
    35 Note 29 above, para. 100; ‘Environmental Regulators Assaulted and Threatened at Home’ (2003),
    ENDS Report 338, 10. See generally J. Vidal, ‘Crime Gangs Fuel Explosion in Fly-tipping’ Guardian, 22
    September 2004. A similar situation exists in the US. Criminal gangs seem to control much of the
    American waste disposal industry: T.S.Carter, ‘Ascent of the Corporate Model in Environmental
    Organized Crime (1999), 31, Crime, Law and Social Change, 1–30; A.A.Block, ‘Environmental Crime
    and Pollution: Wasteful Reflections’ (2002), 29(1), Social Justice, 61–81.
    36 For a discussion of the (highly lucrative) fly-posting industry see M.Watson, ‘Offences Against the
    Environment: The Economics of Crime and Punishment’ (2004), 6(4), Environmental Law and
    Management, 200–204.
    37 Environmental Crime and the Courts, note 21 above, ‘Memorandum from the Bat Conservation Trust/
    RSPB’, Ev 60.
    38 Ibid., Ev 5, Q 5.
    39 Trends in Environmental Sentencing, note 17 above, 29–30.
    40 ‘It is clear that many determined and persistent offenders do not respond to fines. As such, the
    criminal system risks failing to meet the basic requirements of the Åarhus Convention, in that the
    penalties imposed are neither “adequate” nor “effective” to address environmental and wildlife
    crime’; Hutton, Castle and Day, note 21 above, 264. See also Castle, Day, Hutton and Stookes, A Report
    by the Environmental Justice Project (2004), 3.5.1. Available online: http://www.wwf.org.uk/filelibrary/
    pdf/envirojustice.pdf.
    41 Note 36 above.
    42 Offenders use various strategies to mitigate the seriousness of their crimes: P. de Prez, ‘Excuses,
    Excuses: the Ritual Trivialisation of Environmental Prosecutions’ (2000), 12(1), Journal of Environmental
    Law, 65–77.
    38 Ibid., Ev 5, Q 5.
    39 Trends in Environmental Sentencing, note 17 above, 29–30.
    40 ‘It is clear that many determined and persistent offenders do not respond to fines. As such, the
    criminal system risks failing to meet the basic requirements of the Åarhus Convention, in that the
    penalties imposed are neither “adequate” nor “effective” to address environmental and wildlife
    crime’; Hutton, Castle and Day, note 21 above, 264. See also Castle, Day, Hutton and Stookes, A Report
    by the Environmental Justice Project (2004), 3.5.1. Available online: http://www.wwf.org.uk/filelibrary/
    pdf/envirojustice.pdf.
    41 Note 36 above.
    42 Offenders use various strategies to mitigate the seriousness of their crimes: P. de Prez, ‘Excuses,
    Excuses: the Ritual Trivialisation of Environmental Prosecutions’ (2000), 12(1), Journal of Environmental
    Law, 65–77.
    43 This approach is widely adopted in the U.S.; K.F. Brickey, ‘Charging Practices in Hazardous Waste
    Prosecutions’ (2001), 62(3), Ohio State Law Journal, 1077–1144.
    44 Note 21 above, para. 33.
    45 Note 21 above, para. 24. The Government’s initial reaction to the Environmental Audit Committee’s
    proposals was cautious: Government Responses to the Committee’s Sixth Report, Session 2003–04, on
    Environmental Crime and the Courts, and to the Ninth Report, Session 2003–04, on Fly-tipping, Flyposting,
    Litter, Graffiti and Noise (Stationery Office: London, 2004), HC 1232. For a useful summery
    see ‘Government Inches Ahead on Environmental Crime’ (2004), ENDS Report 358, 46. It seems that
    the need for a more radical approach has since been accepted; see ‘Post-election Agenda on Environmental
    Justice Takes Shape’, note 16 above.

    Depositing User: Sara Taylor
    Date Deposited: 08 Mar 2007
    Last Modified: 12 Jan 2011 11:19
    URI: http://eprints.hud.ac.uk/id/eprint/159

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