Environmental Offences Due to Pollution - Essay Example

? Environmental Offences due to Pollution What is Pollution? The phrase “pollution “can be defined as something that is spoiled, unclean, or contaminated, or permanently damaged. If your health is affected due to emissions from nearby factory or if seashore is spoiled due to oil spill, then it can be termed as pollution. Thus, the implied in the phrase “pollution” is the prevalence of some degree of threat, risk, hazard, danger either to human beings or to animals or birds or atmosphere. There exists no unique, single acknowledged or accepted definition of pollution under the UK environmental law1. As per RCEP ( Royal Commission on Environmental Pollution) , pollution is one, which has been introduced by human being into the environment of energy or substances, which is responsible to create an injury to health of human beings , hazards to ecological systems and living resources , harm to amenity , structure or interference with the lawful uses of the atmosphere2. Pollution is related with harms to health of humans, plants, property, habitats, animals and ecological structure. Pollution is not limited to the effect of chemical materials either on the environment or on human beings3. If chemical energy or substances are released into environment unauthorisedly, it would be tantamount to pollution under the environmental law. Thus, pollution can happen in the following ways. If a person or a legal person (company) releases energy or chemicals into the atmosphere in violation of its licence stipulations; If a person or a legal person (company) releases energy or chemicals into the atmosphere without obtaining any valid licence4. As per Keith Hawkins, pollution is a conception by the administration, and the regulator manages the issue of licenses, and it is having authority to decide, which discharge tantamount to pollution and if the discharge surpasses the licence conditions, then, that will be regarded as unlawful5. Offences under UK environmental laws fall under strict liability offences, and thus it minimises the onus on the prosecutor, and the defendant has to prove that there has been no infringement from his side to escape from the offence. In the early nineteenth century, when it was found that enforcement officials were lacking capability to assess the internal intricacies of business operations, the strict liability is introduced for environmental offences6. In UK, the environmental offences will fall under the category of strict liability offence. One of the salient features of strict liability offence is that it facilitates the prosecutor to punish a company for any environmental offences where the infringement was due to inaction or action of its employees, or due to failures of mechanical systems or other equipments7. In UK, there are about twenty-five environmental statutes specifically provide for initiating action against officers with regard to about 175 separate punishable offences under UK’s environmental law ,which may be perpetrated by the companies. For instance, the National Rivers Authority can recoup reasonable costs of mitigating or remedying pollution in groundwater or surface from the persons who have knowingly permitted or caused the threatened pollution or the pollution. The Environment Act 1995 authorises the costs to be recouped from the “appropriate persons” who have permitted or caused such pollution. Thus, the term “persons” include of course both the officers and the directors of the company8. Oil and Gas production and exploration is to adhere to its own environmental regulations. Environmental safeguard provisions are introduced in the exploration and development licences itself under s.4 of the Act9. Oil pollutions offences like releasing of oil mixture or oil into territorial waters of UK is a punishable crime under the above Act10. For instance, the US Environmental Protection Agency levies administrative penalties whereas the Department of Justice award criminal punishments for the most serious infringement. Likewise, under German laws, administrative penalties were levied against environmental regulatory offences11. A research study on penalties for environmental offences has revealed that in European Union, the fines for environmental offences are generally low except the Netherlands. This is due to low public and judicial awareness on the destructive outcomes of pollutions and due to the lack of awareness with environmental law on the part of judiciary12. As per the 2004 findings of the “ House of Commons Environmental Audit Committee “ that the sentences awarded for environmental offence is not so harsh and also advocated the implementation of optional sentencing authorities’ like environmental service orders and adverse publicity orders13. On the initiatives of UK government, Professor Malcolm Grant made a major study on introduction of Environmental Courts in UK in 2000, and it recognised six different models, ranging from establishing an environmental court as a new branch of the UK High Court and facilitating appeals to a tribunal. 14 In EU, about 200 pieces of legislation have been passed, which are relating to environmental control. Since, UK is the member of the EU, the EU environment policy will have a direct impact on UK environment laws. Polluters Must Pay The polluter must pay view is enshrined in the “EU Directive on Environmental Liability (2004/35/EC)”. The said directive obliges accountability on polluter of sites and actions for harm or threat of harm to protected genus, sites of unique scientific interest, natural habitats, and land and water resources. The Directive obliges polluter to stop, disseminate and rectify any such damages caused to environment. The UK’s “the Environmental Damage (Prevention and Remediation) Regulations 2009 “has borrowed the above EU directive and inflict two types of liability regime for damages to environment. The first type imposes strict liability on the waste- management operators for releasing into water and those who handle dangerous substances, especially to prevent any injury or harm to natural habitats, genus, ground and surface water land. The second type regime inflicts fault-oriented accountability on those polluters who are figured out in Schedule 2 for any harm to safeguarded species and natural sites or habitats. In 2010, there was an amendment in the above UK’s regulation to include offences for discharge of pollutants in sea and to cause harm to marine habitats15. Air Pollution Air pollution is caused due to polluting activity, which would have a damaging impact on the health of animals, people and vegetation. The Environment Act 1995 demands all local governments in the UK to assess and check the quality of air in their surroundings. If any norms are being surpassed or if norms are not likely to be adhered by the stipulated date, then such area should be announced as an “Air Quality Management Area (AQMA). It is the duty of the local authorities to initiate necessary steps to introduce an action plan at minimising levels of pollutant in their surroundings. For polluting vehicles, a fixed penalty can be levied up to ?60. In UK, the Clean Air Act 1993 authorises the local authority to name a particular district to be a Smoke Control Zone. In UK, under the above act, it is a punishable offence to distribute unlawful fuel to a building by any person or company, to cause smoke from a chimney, unless there is a specific exemption. In UK ,it is a statutory nuisance for release of any effluvia or dust from any business or trade premises or fumes, smoke or gases released from buildings, which is deemed to be either nuisance or prejudicial to health under the Environmental Protection Act 1990. Unpleasant odours, smoke from bonfires, dust or grit will be considered as nuisance under the above act. Under the “Integrated Pollution Prevention and Control (IPPC)”, air pollution from industries is now regulated. Under the” Clean Air Act 1993”, it is an crime for the trade premises or factories to release murky smoke from their chimneys. The Clean Air Act 1993 also controls the quantum of dust, and grit released from the chimney of furnaces and non-domestic boilers. An environment impact assessment (EIA) should be carried over for any new installation. The use of Best Available Techniques (BAT) will be employed for issue of any new permits, which minimises the cost to the operators against offering of more benefits to the atmosphere. If any specific industrial sector or installation infringes the legal requirements of EU air quality norms, then harsher permit norms will than BAT can be prescribed. The “Integrated Pollution Prevention and Control (IPPC)” covers a variety of industries, which include power generation, mineral industries, metal manufacturing and processing, waste recycling, and disposal, chemical industries, exhaustive live stock set-ups, and drink and food processing. Those industries which fall under IPPC provision should obtain approval to function from the relevant regulator and IPPC regulation covers all facets of installation functions like heat, noise and vibration, accident prevention strategy and energy efficiency . 16 Water Pollution In UK, the” Water Industry Act 1991”, the “Water Resources Act 1991” as bespoked by the “Environment Act1995 “, and “water industry Act 1999 “ offer the chief regulatory control structure for the control and the prevention of water pollution. Further, the Environment Agency is made accountable for managing the pollution of “controlled waters “and for accomplishing the upgrading the quality water which is essential to cope with water quality initiatives. Authorised discharge consents (licences) will be issued by the Environmental Agency, mainly to control water pollution in UK. If an operator wants to discharge any polluting material into controlled water, he should have been permitted by”the Environment Agency.” The scheme of discharge consents facilitates the Environment Agency to manage, control, especially through stipulations, the volume and the nature of contaminants released into groundwater and surface so as to preserve the water quality or to accomplish enhancements in water quality. If any pollutant discharge is made without any approval, which may be noxious, poisonous or polluting or in violation of the stipulations contained in the discharge consent will be construed as criminal offences. If any pollutant is discharged into controlled waters without the consent order, the Environment Agency is toothed with the authority to prosecute. However, a pollutant can defend his position through various available statutory defences. If water pollution is dealt by the Crown Court, then fines for such offences may be unlimited and in some cases, the fines are exorbitant. Under s 161 WRA 1991, a preventive authority is vested with the Environment Agency to stop the pollution of controlled water and also is having remedial authority to engage in cleaning activity after an incident. The EA is empowered to recoup such clean up expenses from the polluter17. The UKs Oil Pollution Act 1971 stipulates imprisonment or severe fines for the master or owner of a British flag ship for releasing oil outside UK territorial waters in infringement of the said regulations. Sec. 10(2) of the UK Merchant Shipping (Oil Pollution) Act 1971 stipulates criminal penalties for not covering with adequate insurance cover to cover the ship owner’s accountability for the damage caused due to oil pollution, especially under the 1969 “Brussels Convention on Civil Liability for Oil Pollution Damage”18. Case Laws on Environmental Offences In Ballard v Tomlinson19 , as early in 1885 that if an individual through his action whether with intentional or by unintentional , was responsible for polluting the ground water supplies where another landowner was having every right to use the water in an uncontaminated manner , was held to be strictly liable under the tort of nuisance20. Environment offences can be punishable where the instant reason for the infringement was the event due to by an unforeseen accident or due to an action by a trespasser as it was held in the 1998 verdict of the Empress Cars by House of Lords21. The rule laid down in Ryland v Fletcher is a rule of strict liability, and it does not need either lack of care of any evidence of negligence or wrongful intention, especially from the side of the defendant. However, the actual damage suffered must be substantiated. It is not a tort which is actionable per se22. In UK V European Commission23, the commission’s finding to inflict a ban on export of beef from UK so to minimise the peril of transmitting BSE disease to other Member Nations, was upheld by the ECJ (European Court of Justice).In ‘”R v Secretary of State for Trade and Industry ex p Duddridge and Others”24, it was held that mere chance of occurrence of grave injury is not enough to warrant the government to initiate precautionary action25. In a recent case, the Environmental Agency in UK levied a total fine of ?315,000 for running a scrap metal yard illegally. It was found by EA that there was no sealed drainage system was found in the yard for the hazardous waste. EA found the business, its director and an officer was accountable for the infringement of environmental norms, and the court issued a confiscation order for ?275,000 on the footing that the defendants had destabilised the genuine businesses26. Environmental offences & Criminal Prosecution One of the unique characteristics of UK environmental law, which is in existence over the past one century, has been the predominance of the criminal law as the principal official legal sanction against environmental offences. Infringement of an environmental regulation is regarded as a criminal offence in nearly every and all area of environmental regulations. Under UK environment legislations, environmental regulators are toothed with authority to issue a formal enforcement order or notice demanding compliance within a stipulated time. It is to be noted that infringement of enforcement notice is also regarded as a criminal offence27. Under main-stream criminal law, for a punishable criminal offence, there should be adequate evidence of recklessness or intention (mens rea) should be there before an offence is committed. However, under environmental legislation, mere act of the infringement is enough to secure a punishment28. Penalties for environmental offences in UK Fines- Environmental offences in UK are not only subject to fines but also subject to custodial sentence. Fine up to ? 50,000 is levied for certain summary waste offences. In Crown Court, unlimited fines can be levied for such offences. Custody - For grave and serious environmental offences, the court can order imprisonment of offenders. Enforcement by Regulatory officials- Enforcement Authority (EA) and other environmental administer is empowered to inflict civil penalties on businesses as an alternate for prosecution. Other Orders- A competent court can make related orders as follows; Disqualification order for Directors of the Company- An accused can be banned from functioning as a company director and any infringement of a director’s qualification order is regarded as a criminal offence. Assets Recovery – Serious cases can be referred to the Serious Organised Crime Agency (SOCA) by a prosecutor, and orders can be made for confiscation of assets, which is analogous to the fiscal benefits derived from the illegal polluting activity. Order for” Anti-social behaviour- ASBO (Anti-social behaviour order)” forbids an individual from functioning in an anti-social style that causes distress or harm to other members of public. Serious crime deterrence order- for harmful or unauthorised deposit, disposal or treatment of waste will be regarded as serious offence and an SCPO order can be issued for such an offence, and it may long last for up to five years. Negative Publicity- EA regularly publicises various environmental prosecutions under the heading of “name and shame” policy on its website. News on environmental convictions is also regularly made in both in national and local publicity29. Conclusion In UK, there are about twenty-five environmental statutes specifically provide for initiating action against officers with regard to about 175 separate punishable offences under UK’s environmental law ,which may be perpetrated by the companies. In UK, the environmental offences will fall under the category of strict liability offence. In EU, about 200 pieces of legislation have been passed, which are relating to environmental control. Since, UK is the member of the EU, the EU environment policy will have a direct impact on UK environment laws. “ Polluters must pay “ principle is followed in UK and hence , the polluters cannot escape from their liability if they cause substantial damage to the environment through pollution. Infringement of an environmental regulation is regarded as a criminal offence in nearly every and all area of environmental regulations in UK. Companies , its directors and its officers are accountable for any environmental pollution, and they are subject to heavy fines and even imprisonment in some cases. Hence ,it is essential for the business and companies operating in UK to know about the consequences of pollution and its impact on environment and should implement all measures to have a clean environment else they may meet severe fines and imprisonment under UK environment legislations. Bibliography Bassiouni C, International Criminal Law: Sources, Subjects and Contents (Brill 2008) Elworthy S& Holder J, Environmental Protection: Text and Materials. (Cambridge University Press 1998) Environmental Protection UK, Air Pollution Laws http://www.environmental-protection.org.uk/air-quality-and-climate/air-quality/laws/ accessed 14 December 2011 Ian, Breaching Environmental Regulations (Law Forum 10 August 2010) < http://www.thelawforum.co.uk/breaching-environmental-regulations> accessed 14 December 2011 Macrory R, Regulation, Enforcement and Governance in Environmental Law (Cameron May 2008) Richard Owen, Essential Tort Law. (Routledge 2001) Wolf S & Stanley N, Wolf and Stanley on Environmental Law (Taylor & Francis 2010) Youngman I, Director’s and Officers’ Liability Insurance: a Guide to International Practice (Woodhead Publishing 1999) Read More