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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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