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Environmental Law

This article explores the criminal prosecutions and enforcement policy related to environmental crimes, including statutory criminal liability, burden of proof, strict liability, and the role of the Environment Agency. It also examines the definition of environmental crime and the success rate of prosecutions. The article discusses the importance of a definition of environmental crime and its impact on law enforcement attitudes and sanctions.

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Environmental Law

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  1. Environmental Law Environmental Crime Prosecution and Enforcement Policy

  2. Environmental Crime • Criminal prosecutions • Statutory criminal liability • Enforcement: Environment Agency • Burden of Proof • Strict Liability • Ashcroft v Cambro Waste Products [1981] 3 All ER 699 • Definition of Environmental Crime • High rate of successful prosecutions: strict liability • Sanctions Low

  3. Enforcement • Enforcement practises of regulatory bodies • Flexible prosecution policy of Environment Agency • Low prosecution rate • Enforcement and Prosecution Policy 2010 http://www.environment-agency.gov.uk

  4. Criminal Liability: Envirtal Harm Why a definition of environmental crime matters: • Technical regulatory breach / crime v environment; • Strict liability? Justification? • Extent to which offenders viewed as being criminals; • Determines attitudes towards law enforcement; • Determines sanctions imposed for breach What is environmental crime? • Legal and Moral dimensions

  5. Defining Environmental Crime Legal Approach • Value free and objective = prohibited acts/omissions directly / indirectly damaging environment. Problems: • Boundaries ? • Uncertainties? • Jurisdictions? Geographical? • Variations

  6. Defining Environmental Crime European Union: Definition of Environmental Crime? • Case C-176/03 Commission v Council [2006] Env LR 18 [Environmental Crimes]: EU competence to require effective, proportionate and dissuasive criminal law sanctions to ensure effective protection of environment • Case C-440/05 Commission v Council [2008] Env LR 12 [Ship-Source Pollution]: Type and level of criminal = competence of MS

  7. Defining EnvironmentalCrime • Directive 2008/99 on Protection of the Environment Through Criminal Law: Requires MS to provide for criminal sanctions iro a number of defined actions committed unlawfully and intentionally or with at least serious negligence • Diverse criminal law sanctions continue in EU MSs • Article 83 TFEU Crime Legal Basis but not explicit iro Environment

  8. Defining EnvironmentalCrime • Failure to comply with remediation of contaminated land notice: EPA 1990 s78M • Environmental permitting: EP Regulations 2007 Reg 38 (Offences) and Reg 39 (Penalties)– Water Pollution and Waste Offences • Waste Offences EPA 1990 s 33(1)(a)(b)(c) and s 33(6) • Statutory nuisance abatement notice: EPA 1990 s 80(4)

  9. Defining EnvironmentalCrime Moral Dimension • ‘Activities causing harm to environment’??? • Many such activities are lawful • Criminal law for socially unacceptable behaviour • To address clearly unacceptable behaviour • To reinforce regulatory system • Nevertheless attitudes to environmental harm / crime have shifted • Distinguish routine environmental harm (civil) versus • Wilful env. crime for personal/business gain (criminal) • Rich perpetrators v poor working class

  10. Strict Liability • Liability in respect of act of omission without fault • Moral foundation of ‘real’ criminal law = requirement of mental responsibility in addition to unlawful act • Justification = Ease of prosecution; Deterrent; Polluter Pays Principle • Defences, eg: Compliance with statutory consent Acting in an emergency situation + notification + act to limit effects • Enforcement Bodies and Courts do exercise discretion. • EA = reluctant to prosecute unless moral blame ie criminal intent / negligence • Courts exercise discretion in sentencing

  11. Environment Agency Enforcement and Prosecution Policy Inspection, entry, enforcement: s 108 (4) EA1995 Enforcement and Prosecution Policy 2010 Four Principles: • Proportionality • Consistency • Transparency • Targeting enforcement action

  12. Environment Agency • Purpose of Prosecution • Public Interest Factors to Consider • Presumption of prosecution • Alternatives • Leaves considerable discretion to EA in decision to prosecute or not. • http://www.environment-agency.gov.uk

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