Criminal Law in Environmental Regulation - Assignment Example

Environmental Law Your name: Institution name: Question 1 In other words, in criminal law, liability on the part of organizations or corporate will determine the extent to which an organization or corporate as a legal individual or person can be liable for the omission and acts of the natural person it employs. It is sometimes seen as an aspect of criminal vicarious liability (Savill, 2004). Criminal laws does recognize interest that are in public domain, but for many decades difficulties will arise due to that have been committed to the environment, environment are not criminal in their nature or in the ‘true’ sense (Savill, 2004). For example, in Alphacell Ltd vs. Woodward case, the House of Lords argued.Further, those structures that form judicial system in the UK are not well suited to consider disputes that arise from environmental offences, because judicial systems have multiple causes, involve a complex interplay between private, public and criminal law; and give rise to complex scientific argument; and require the balancing of difficult policy or political questions (Dupon and Zakkour, 2003). The UK government believes that environmental regulators should have enough muscles that are proportionate and flexible and that ensure the protection of the eco-system or natural environment (Harvey, 2004). The civil proceedings have allowed environment regulators to distinguish more effectively between those who are compliance and those who disregard the environmental law (Watson, 2005). Civil proceedings have enabled environmental regulators to respond appropriately to the situation of each environmental case (Ogus and Abbot, 2002). For instance, Environment Agency is the main environmental regulatory organization in England and Wales. In 2003, the average fine that was imposed by courts was £2800. While the average Crown Court fine was £4700. Few people who committed environment crimes were sentenced to prisons (approximately 1.2% of convictions (Dupon and Zakkour, 2003). It is clear that most environmental offences- the vast majority, in fact- goes unpunished. But when these offences are prosecuted, the penalties and fines imposed to offenders are unlikely to deter repetition of the offence that has been committed (Savill, 2004). This usually bears little relation to either the profits gain that have been made by offenders who commit these offences or environmental cost that are associated with these activities (Watson, 2005). Wilson (1999) in his comparative study of environmental regulation in UK and USA stated that, “a part from the water pollution area, those looking for design or purpose in the way that laws in UK has come to use the criminal law to enforce environmental statutes may look in vain” (Ogus and Abbot, 2002). In UK, for example, criminal law has been used to punish those offenders that deliberately engage in animal trafficking and commercial fly-tipping operations. It has also been used to punish companies that have accidentally polluted watercourses or breach their license conditions (Wilson, 1999), the ‘strict regulatory or liability’. A distinction is often drawn between conduct with society chooses to prohibit (mala prohibita) and conduct which is wrong in itself (mala in se) (Cohen, 2001). According to Ogus and Abbot (2002), the use of criminal law in such situation has often been criticized. We may tend to weaken the criminal law by applying it to too many cases where people would have difficulty recognizing criminal behavior. Therefore, it is not correct that companies should be persecuted criminally because the basis of these criminal charges that have been brought against a company would never be acceptable if applied to persons committing the offence. In support of this argument, Brickey (2001) argues, “if you want to make criminal offences serious or criminality will become meaningless”. In UK, there have Many civil law and common law countries use non-criminal means to enforce environmental regulations. In the US, for instance, for example, these civil penalties against environmental offences are common than criminal penalties (Wilson, 1999). In 2000, 98% of environmental offences handled by Environmental and Natural Resources body were civil administrative ones (Watson, 2005). Only two percent were criminal ones. Authorities that are employed by the environment regulatory body devote most of their time to administrative enforcements of environmental laws (Cohen, 2001). Although that fines that are imposed to companies that break environmental laws can be small compare to the magnitude of the environmental offenses (Harvey, 2004). The revocation of a license to operate can incapacitate the organization that has broken the environmental law; this will be equivalent of a custodial sentence. In theory, civil proceedings are more effective in protecting the environment rather than to punish an offender. In reality, the sanction is a major economic deterrent than a criminal prosecution and modest fines. Birnie and Boyle (2002) have argued that civil penalties and fine companies continue to pollute the environment or non-compliance with statutory or license prohibition (Cohen, 2001). When criminal status is at issue, it is obvious the perpetrators of the environmental offence will try to avoid being found ‘guilty’ (Dupont, 2003), even when there is acknowledgement error (Birnie and Boyle, 2002). It can also be seen that perpetrator of environmental offences are less likely to risk non-compliance based on the premise that the environmental regulators are better equipped to take enforcement action without resorting to criminal proceedings (Birnie and Boyle, 2002). Licences for companies that have polluted the British’s environment are rarely revoked or suspended. The UK Environment Agency was incorporated in 1996, but by 2002 it had only revoked six waste management licences. Therefore, the use of criminal proceeding will ensure culpable offenders are prosecuted and the guilty person will receive tough sentences (Birnie and Boyle, 2002). But if oil spill is caused by Cars plc, a civil fine that is based on turnover is likely to be more appropriate than a criminal conviction and a modest fine. Such penalties are unlikely to be effective against companies that are recklessly or intentionally damage the environment for personal or financial reasons (Wilson, 1999). Therefore, the UK government should increase the use of civil proceeding because their value cannot be denied. But civil proceedings should not be allowed to obscure the criminal offences that often found behind the offences against the British’s environment. Question 3: European Union (EU) has become a major supporter of the expansion of environmental law (Lise, Sijm and Hobbs, 2010). EU has played a leadership in the adoption of the 2001 Stockholm Convention on Persistent Organic Pollutants, 1989 Basel Convention on Hazardous Waste Disposal, the 1997 Kyoto Protocol on Climate Change, the 1992 Convention on Biological Diversity and the 2000 Cartagena Protocol (Neuhoff, 2008). Other nations such as the US and China by contrast, has not ratified any of these treaties (Martin, Muûls and Wagner, 2010). European leaders were visible and active participants at the UN conference on UNCED “Earth Summit,” at both Johannesburg in 2002 and Rio de Janeiro in 1992, while China have been criticized for the new global environmental policy initiatives at an international meetings (Levy, 2005) (Ponssard and Walker, 2008). The European Union Emission Trading System (EU ETS) has remain the largest example of carbon emission trading in operation, that has encompass over 11,000 across Europe and cover approximately 40 per cent of total European Union carbon emissions (Ponssard and Walker, 2008). One of the main objectives of the EU ETS is reduce carbon emission from industrial and power sectors within member states, as reflected in its objective to reduce carbon emission in an economically and cost-effective manner. In this aim, EU ETS has been successful in the past two decades. Martin et al (2011) carried out a survey of almost 1000 companies across ten European nations, exploring the impact of the European Union Emission Trading System (EU ETS) on climate change related clean innovation and measures (Lise, Sijm and Hobbs, 2010). This study looked at both where companies product lines to lower their carbon emission and ways in which companies lower their carbon emission of current production processes (Levy, 2005). Martin et al (2011) found that large proportion of companies have implemented measures that will help in reducing carbon emissions, majority of these companies have adapted energy saving measures relating to their core or manufacturing processes (Martin, Muûls and Wagner, 2010). This has supported that there some impact from the European Union Emission Trading System (EU ETS) on innovation and investment (Ponssard and Walker, 2008). For many years there has been a wide political and scientific consensus the global temperature was on the rise (Maxwell, 2011). More recently, evidence is pointing at an even more dramatic challenge: to keep the average global temperature from rising by 1.5°C, in order to avoid major disasters on parts of the planet (NAO, 2004). While, carbon emission is growing faster in so called “emerging economies” such as Brazil, China, India, European Union (EU) has continue to have important responsibility in order to avoid disaster scenario (Neuhoff, 2008). The framework of Kyoto Protocol pledges to reduce carbon emission at a level that would reduce damage of climate system (NAO, 2004). Under Kyoto Protocol agreement, countries pledged to reduce their annual emission of greenhouse gases, as measured in six greenhouse gases, by varying amounts, averaging 5.2%, by 2012 as compared to 1990 (Maxwell, 2011).By 2011 (Ponssard and Walker, 2008), European Union (EU) has been on track to meet the Kyoto goals, but other large nations such as the United States and China were failing to meet such targets (Martin, Muûls and Wagner, 2010). For example, the two countries have produced more than enough extra carbon gas emission to erase all the reductions that have been made by other nations In 2012, the EU has gone beyond it target to cut carbon emission under the Kyoto Protocol and is no course to meet its goal for 2020. But 10 countries led by Spain and Italy have remained behind when it comes to meet their individual goals under Kyoto Protocol, this was according to European Environment Agency (EAA) report that was published ahead of United Nation climate talks. This report also indicated that carbon emission among 27 European Union economies fell 2.6% at the end of 2011 compared with a year earlier (Neuhoff, 2008). Under the 1997 Kyoto Protocol, European Union members promised as a group to reduce their carbon emission by 8% by a timeframe of 2008-2013 (Ponssard and Walker, 2008). This collective target by EU members has been parceled out into individual goals for the fifteen member countries (Levy, 2005). At the end of 2014, the collective carbon reduction was 14%. The European Union has been seen to over deliver on its Kyoto Protocol target. For example, ten of fifteen European Union member states have resorted to using Kyoto’s “flexible mechanisms,” which include purchasing carbon credit to meet their targets. Preventing climate change has been give priority by the EU. European countries have been seen to work hard to cut its carbon emission while encouraging other regions and nations to do likewise (Lise, Sijm and Hobbs, 2010). In parallel, EU has developed adaptation strategies to climate change so that to help strengthen EU’s resilience to the inevitable impacts of climate change (Maxwell, 2011). The European Union is striving to transform Europe and member states as a whole into highly energy-efficient, low carbon emission economy (NAO, 2004). Emissions and monitoring and projections has indicated that the EU-15 is well on track to meet this target of reduction of carbon emission (Martin, Muûls and Wagner, 2010). For instance, most countries that have joined the EU since 2003also have Kyoto protocol reduction targets of 7 per cent or 9 per cent (5 per cent in Croatia’s case) which has been seen to be on course to achieve its target. For 2020, the European Union has committed itself to cutting its carbon emission to 20 per cent below 1990 levels. This commitment on the part of European Union is one of the targets of the Europe 2020 growth strategy and this strategy is being implemented by European Union through a package of binding legislation (Lise, Sijm and Hobbs, 2010). In the climate and energy policy framework for 2030, the commission has proposed that the European Union should set a target of reducing its emission to 40 per cent below 1990 levels by 2030. For 2050, the European Union is working towards reducing Europe’s carbon emission by 80 to 95 per cent compared to 1990 as part of efforts by developed countries-such as Kenya, Uganda, India, China etc- as a group to reduce their carbon emission by a similar degree. Energy efficiency is an effective way of enhancing security of energy supply through reducing its demand, and to reduce carbon emission and other harmful pollutants . Despite the positive of energy efficiency, it is believed this target will not be met by EU by 2020 (Lise, Sijm and Hobbs, 2010). But in attempt to address this problem, a new framework was established: the Energy Efficiency Directive, which ensures the achievement of the European Union’s 20 per cent target (Levy, 2005). It has been stated that all the European Union member states would be required to a more efficient use of energy through all the steps of the energy chain (Martin, Muûls and Wagner, 2010). For instance, energy companies in Europe have been requested to reduce their energy sales by 1.5 per cent every year among their clients, compensated by an improvement in the technology used in the heating system, installing insulating roofs or double glass windows (Ponssard and Walker, 2008). EU member states are required to draw up their roadmap for their energy efficiency target that will make their construction industry to be more efficient by 2050 (Maxwell, 2011). On the other hand, this industry would be required to achieve energy saving during their obligation period assuring there is energy efficiency in implementation in industries, households and transport industry (NAO, 2004). For instance, public buildings were required to renovate 3 per cents in each member states to promote energy efficiency in their respective public sector (Lise, Sijm and Hobbs, 2010). In addition, EU member states were given a deadline of 30th April 2013 to present their national target, and countries such as Germany which the EU Commission found it insufficient to meet the 2020 goals was asked to redefine its roadmap target. References Barnet, J. (2004). Codifying New Urbanism: How to Reform Municipal Land Development Regulations, Chicago, IL. Birnie, F and Boyle, A. (2002). International Law and the Environment, 2nd end. Oxford: Oxford University Press. Brickey, K.F. (2001). ‘Charging Practices in Hazardous Waste Prosecutions’ Ohio State Law Journal, 62(3) : 1077–144. Cohen, M.A. (2001). ‘Criminal Law as an Instrument of Environmental Policy: Theory and Empirics’ in A Heyes (ed) The Law and Economics of the Environment 198–216 at 200. Dupont, C and Zakkour, P. (2003). ‘Trends in Environmental Sentencing in England and Wales’ Environmental Resources Management. Euractiv (2012). Parliament gives final green light to energy efficiency directive. Available at:http://www.euractiv.com/energy-efficiency/european-parliament-gives-final-news- 514732 Harvey, F (November 29, 2004). ‘Environmental Criminals Face Tougher Fines’ Financial Times. Levy, C. (2005). “Impact of emission trading on power prices: a case study from the European emission trading scheme” University Paris Dauphine and DEA d’Economie Industrielle, Paris Lise,, W., Sijm J and Hobbs B. F. (2010). “The Impact of the EU ETS on Prices, Profits and Emissions in the Power Sector: Simulation Results with the COMPETES EU20 Model”, Environmental and Resource Economics 47, 23–44. Martin, R., Muûls, M and Wagner,U. J. (2010). "Still time to reclaim the European Union Emissions Trading System for the European tax payer", Policy Brief, Centre for Economic Performance, London School of Economics. Maxwell, D. (2011). Hot Air: The carbon price floor in the UK. London: IPPR Michael, E. Porter & Claas van der Linde. (2005). Toward a New Conception of the Environment- Competitiveness Relationship, 9 J. ECON. PERSP. 97, 97–98. NAO. (2004). The UK Emissions Trading Scheme: A New Way to Combat Climate Change. London: UK National Audit Office. Neuhoff, K. (2008). “Tackling Carbon: How to Price Carbon for Climate Policy” Climate Strategies Report. Ogus, A and Abbot, C. (2002). ‘Sanctions for Pollution: Do We Have the Right Regime?’ Journal of Environmental Law, 14(3) 283–98. Ponssard, J.P and Walker, N. (2008). “EU emissions trading and the cement sector: a spatial competition analysis” Climate Policy, 8 (2008); p. 467-493. Walters, D. (2007). Designing Community, Charrettes, Master plans and Form-based Codes, Oxford, UK. Watson, M. (2005). ‘The enforcement of environmental law: civil or criminal penalties? Environmental Law and Management, 17 (1). pp. 3-6. Wilson, W. (1999). Making Environmental Laws Work: an Anglo American Comparison. Oxford: Hart Publishing Oxford. Young, A. (1993). Guidelines for Land Use Planning, Food and Agriculture Organization of the United Nations, Rome, Italy. Read More