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Offences against the environment: the economics of crime and punishment

Watson, Michael (2004) Offences against the environment: the economics of crime and punishment. Environmental Law and Management, 16 (4). pp. 200-204. ISSN 1067--6058

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Abstract

Fly-tipping and fly-posting were recently investigated by
a sub-committee of the House of Commons Environmental
Audit Committee.1 They share important features.
Although both occur for a variety of reasons, they are
invariably the result of conscious and deliberate acts.
Unlike, for example, unauthorized discharges of pollution
into rivers or the atmosphere, they cannot occur by
accident. Strict liability is irrelevant. The perpetrators are
usually to blame for their deeds. Perhaps more importantly,
in both cases there are often strong financial incentives
to break the law.2 They therefore provide useful case studies
on the economics of environmental crime and punishment.
An examination of these offences can give valuable insights
as to why businesses choose to operate within, or outside,
the law.

Item Type: Article
Additional Information: Reproduced by permission of Environmental Law and Management, published by Lawtext Publishing © Lawtext Publishing 2004
Uncontrolled Keywords: Offences against environment economics crime and punishment environmental law management
Subjects: G Geography. Anthropology. Recreation > GE Environmental Sciences
K Law > K Law (General)
Schools: The Business School
References:

1 House of Commons Environmental Audit Committee, Ninth Report
‘Environmental Crime: Fly-tipping, Fly-posting, Litter, Graffiti and Noise’
HC 445 (Session 2003–2004).
2 Although businesses can make substantial financial gains from ‘negative
externalities’ such as unauthorized discharges, environmental offences
are often committed for non-economic reasons. Graffiti, littering
and most crimes against animals are obvious examples.
3 The Environment Agency refers instead to the ‘illegal dumping of
waste’ (n 1) Q 64.
4 HC Environmental Audit Committee (n 1) para 4.
5 The dividing line between these enterprises is less than precise. Socalled
‘legitimate operators’ sometimes decide to behave illegally
when there are strong financial incentives.
6 Accurate statistics should soon be available. Flycapture, a fly-tipping
database, was established by the Agency on 1 April 2004. It should
provide a record of all recorded incidents. HC Environmental Audit
Committee (n 1) para 5.
7 ‘Agency inspections slide while fines remain static’ (2003) ENDS
Report 346 9–10. The figure refers to all waste offences – not just
fly-tipping.
8 HC Environmental Audit Committee (n 1) ‘Memorandum Submitted
by the Environment Agency’ Ev 18. See also Ev 84–85.
9 ibid Ev 84-85. This figure significantly exceeds the total amount of
agricultural waste produced by farmers (around 500,000 tonnes).
It includes construction and demolition waste (310,000 tonnes),
motor vehicles (118,000 tonnes), ‘green wastes’ (94,000 tonnes),
tyres (8700 tonnes), general household waste (8500 tonnes),
furniture (5600 tonnes) and household goods (2900 tonnes). HC
written answers 4 March 2003 columns 901–2W.10 HC Environmental Audit Committee (n 1) ‘Memorandum from
Environmental Campaigns Ltd’ Ev 9.
11 ibid ‘Memorandum submitted by the Environment Agency’ Ev 19.
12 ibid (n 10) Ev 11.
13 HC Environmental Audit Committee (n 1) Q 54.
14 ibid.
15 ibid para 26.
16 Department of the Environment, Transport and the Regions ‘Limiting
Landfill’ (1999).
17 It is important to distinguish between those who consciously break
the law and those who arrange to have their waste removed on a
‘no questions asked’ basis (although both may be culpable).
18 ART Emery and M Watson ‘Organizations and Economic Crime: Legal
and Economic Perspectives’ (2004) 19(6) Managerial Auditing
Journal 741-559. Firms may, of course, have more altruistic goals but
these will tend to be of secondary importance. These goals may also
contribute to profit maximization. The establishment of a ‘green’
corporate image is an obvious example. See M Watson and J MacKay
‘Auditing for the Environment’ (2003) 18(8) Managerial Auditing
Journal 625–30.
19 ‘Agency slams “meagre” fines for waste offences’ (2002) ENDS Report
334 53–4. This case is far from unique. In 1992 Alan Race was
prosecuted after failing to remove waste from an illegal landfill site in
Gorton. The waste (72,000 cubic metres) was the equivalent of
9000 skiploads. Although Mr Race had apparently charged waste
disposers £30 per skipload he was fined £20 by Manchester
magistrates. See ‘Waste cowboys prosper on the north-west frontier’
(1992) ENDS Report 215 40–1.
20 ‘An Economic Theory of the Criminal Law’ (1985) 85 Columbia Law
Review 1193–231, at 1195.21 GS Becker ‘Crime and Punishment: An Economic Approach’ (1968)
76 Journal of Political Economy 169–93. See also MA Cohen
‘Environmental Crime and Punishment: Legal/Economic Theory and
Empirical Evidence on Enforcement of Federal Environmental Statutes’
(1992) 82(4) Journal of Criminal Law and Criminology 1054–79; R
Malcolm ‘Prosecuting for environmental crime: does crime pay?’
(2002) 14(5) ELM, 289–95. There is some evidence that
environmental offenders overestimate both the probability of
conviction and the likely fines they may face. Environment Agency
staff are sometimes able to exploit this ignorance. S Fineman ‘Streetlevel
Bureaucrats and the Social Construction of Environmental
Control’ (1998) 19(6) Organization Studies 953–74; K Hawkins
Environment and Enforcement: Regulation and the Social Definition
of Pollution (Clarendon Press Oxford 1984) 150–54. Firms may
also seek to ‘err on the side of caution’ because of compliance
problems, ie the sheer complexity of environmental law: DB Spence
‘The Shadow of the Rational Polluter: Rethinking the Role of Rational
Actor Models in Environmental Law’ (2001) 89(4) California Law
Review 917–98.
22 See n 7.
23 HC Environmental Audit Committee (n 1) ‘Memorandum from the
Local Government Association’ Ev 31–32. It should be noted that
many local authorities have not attempted to put commercial flytippers
out of business. A recent survey of 73 authorities by
Environmental Services Management (ERM) revealed that only 19
had prosecuted any fly-tippers between 1999 and early 2003:
ERM Trends in Environmental Sentencing in England and Wales
(2003) 41. Available online: http://www.defra.gov.uk/environment/
justice/pdf/erm-sentencing.pdf
24 House of Commons Environmental Audit Committee, Sixth Report
‘Environmental Crime and the Courts’ HC 126 (Session 2003–04)
‘Memorandum from the Environmental Services Association’ EV 69.
25 ibid.
26 ‘Environmental regulators assaulted and threatened at home’ (2003)
ENDS Report 338 10.
27 HC Environmental Audit Committee (n 1) para 31.
28 Authorised sites exist in Manchester, Glasgow and Leeds. These are
usually managed by committees which unite fly-posters and local
authority representatives. Such sites are commonplace in much of
Europe but it is often difficult to gain planning permission in the
United Kingdom. See P Humphries ‘Taking a Pasting’ The Guardian
14 February 2001.29 HC Environmental Audit Committee (n 1) ‘Memorandum from the shelf life. Fly-posting is also used to target particular
Committee of Advertising Practice’ Ev 68.
30 HC Environmental Audit Committee (n 1) ‘Memorandum from the
Advertising Association’ Ev 62.
31 According to Alan Tallentine of the Association of Town Centre
Management: ‘We feel that those businesses that use fly-posting to
advertise are letting the community down badly … Fly-posting can
be not only unsightly, but in conjunction with high levels of litter and
street maintenance, it can be viewed by many people to indicate an
area that is not safe to be in, fuelling the fear of crime and – in
serious cases – the actuality of crime’ (n 27). See generally, M Watson
‘Graffiti: Popular Art, Anti-social Behaviour and Criminal Damage?’
(2004) 168 Justice of the Peace 668–70.
32 HC Environmental Audit Committee (n 27).
33 T Thompson ‘Judgment day for the phantom fly-posters’ The
Observer 13 June 2004.
34 HC Environmental Audit Committee (n 23) ‘Memorandum from the
City of Westminster Council’ Ev 33.
35 Thompson, n 33.
36 F Kane ‘Devilish cunning of ad man fighting a guerrilla campaign’ The
Observer 1 August 2004.
37 ibid. See also T Horrox ‘Sticking up for fly-posters’ The Guardian 5
July 2004.
38 DEFRA (2000), 4. Available online: http:/www.odpm.gov.uk/stellent/
groups/odpm_planning/documents/pdf/opdm_plan_pdf_605988
.pdf
39 HC Environmental Audit Committee (n 23) Ev 34.40 Note 38, 4.
41 R Steiner ‘Crime pays when advertising to youth’ Sunday Times 14
April 2002.
42 C Cozens ‘“Lewd” Loaded posters outrage council’ The Guardian 12
December 2002.
43 Steiner, n 41.
44HC Environmental Audit Committee (n 1) 31.
45 P De Prez ‘Beyond Judicial Sanctions: the Negative Impact of
Conviction for Environmental Offences’ (2000) 2 ELR 11–22. See
generally J Arlen ‘The Potentially Perverse Effects of Corporate Criminal
Liability’ (1994) 23 Journal of Legal Studies 833–67.
46 Another music company, BMG UK and Ireland, may save up to £5.6
million per annum. C Blackstock, ‘Fly-posting music giants face five
years jail’ The Guardian 2 June 2004.
47 S Morris ‘Sony promises to stop fly-posting after court threat’ The
Guardian 15 June 2004.

Depositing User: Sara Taylor
Date Deposited: 06 Aug 2007
Last Modified: 28 Jul 2010 18:20
URI: http://eprints.hud.ac.uk/id/eprint/338

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