Criminal Law And The Environment: What Are The Difficulties?
by Olivia Draycott
How is Environmental Protection defined in English Criminal Law? Why does this differ from the usual definitions of criminal responsibility?
Within the ordinary scope of English Criminal Law, there are two primary forms of criminal responsibility: the physical act of committing the harm [actus reus] , and omission [where you fail to do something or fail to act when necessary] . However, when looking at Environmental Protection and the perpetrators of the harm, the categorisations of those criminally liable aren’t as straightforward. Many environmental offences are categorised as strict liability offences, crimes which require no proof of intention in relation to the action/result that has occurred. As such, strict liability offences are primarily regulatory offences aimed at businesses concerning health and safety . This development in the categorisation of Environmental Protections was created by the 2008 Environmental Crime Directive . Due to the Directive, there is no need to demonstrate the defendants’ intention, negligence or fault concerning the harm caused, suggesting (at least theoretically) that the litigation process is more effective and efficient.
Despite many environmental offences being categorised as strict liability offences, there are several issues regarding the practical enforcement of criminal law and the environment. The application of the Environmental Crime Directive could potentially be unfair as liability is balanced through statutory defences. As a result, when liability is weighted on the ability of each party to present a sufficient defence, problems arise as whoever presents a weaker defence will be unduly punished as a consequence. Such can be seen with the statutory defence of selective enforcement of offences (the power to choose whether or how to punish a person who has violated the law) . In addition to this strict liability, offences are further undermined by how often those who breach environmental regulations receive nominal fines (determined in relation to the offenders’ profits) instead of having to compensate the victims of harm . Despite strict liability encouraging accountability, it lacks an identifiable individual defendant and often focuses on companies or corporations instead.
Additionally, there are difficulties when identifying the victims of environmental harm. Environmental harm is thus regarded as ‘Victimless’, resulting in a convoluted process as to who will complain to initiate an investigation into the harm done . Therefore, victimisation, or how to define environmental victims, is a complex affair. Academics such as Williams have emphasised that “environmental victims are often, in effect, sacrificed for the benefit of a more powerful entity”, such as those in commercial positioning in manufacturing companies . Additionally, environmental victims will predominantly be viewed through an inherently anthropocentric  lens due to how the analysis of victimology itself is fundamentally anthropocentric. Victimisation, however, is not weighted equally. Instead, it is often disproportionate relative to the location and personal factors of the victims themselves. Identifying victims of environmental harm who meet the legal requirements for standing in court is very difficult, thus further demonstrating why accountability is difficult to enforce .
What are the challenges when determining which environmental harms are deemed unlawful?
As stated, there are many issues regarding Criminal Law and Environmental Protection. Problems go beyond how the harm is viewed as ‘victimless’, and perpetrators are often undeterred by nominal fines as legal punishment. Academics, such as Nurse, further explore the problematic nature of environmental legal protection concerning which environmentally devastating acts should be criminalised . Within her work, she emphasises the lack of clarity within the law. For example, within the strict interpretation of English law, “corporate environmental crimes are strictly speaking not a crime but instead fall within a broader conception of corporate wrongdoing and non-compliant behaviour” . Consequently, it is difficult to publicly depict the forms of environmental harm that need to be singled out as worthy of criminal condemnation and punishment.
Moreover, issues with distinguishing punishable environmental actions arise within England and Wales as environmental laws mirror the regulatory behaviour of Public Law, as suggested by Stallworthy . The fundamental Environmental guidelines domestically follow the approach of criminalisation of the consequences, which, in reality, are more so permits for the continued exploitation and abuse of natural resources, with added administrative and regulatory controls . This is shown especially within the regulations surrounding pollution levels and sewerage disposal of raw materials, not just within the UK but globally . The non-hazardous and inert waste: appropriate measures for permitted facilities July 2020 consultation draft shows this alarming occurrence . The ‘appropriate measures’ repeatedly referred to in s8 of the draft are actually minimum standards that operators must meet to comply with their environmental permit requirements, as opposed to preventions of ecological harm . This is further aggravated by inadequate crime data collection methods and the insufficient analysis of findings. Additionally, whilst environmental harms take priority in some nations, in others, they do not. Subsequently, this disjointed approach causes uncertainty in data findings and comparable data sets due to dysfunctional collection methods , resulting in an inappropriate governmental response to the harm resulting from incomplete data sets.
Ultimately, as discussed above, there are many problems associated with the Law and Environmental Protection, and ones that cannot be solved through simple legislative means. The issues facing environmental law are far more complex than statutory wording alone. It is a combination of identifying perpetrators, victims and the harms themselves. To ensure sufficient protection is secured, environmental legislation must become more efficient and surpass its current state as a measure of regulatory control for permitted amounts of harm.
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