Strict Liability and Civil Remedies in Environmental Law Enforcement, Study notes of Environmental Law

Download Strict Liability and Civil Remedies in Environmental Law Enforcement and more Study notes Environmental Law in PDF only on Docsity! Environmental law Enforcement through civil proceedings by Richard Burnett-Hall 24 Environmental legislation in the UK consists largely of prohibitions, which may be disapplied by a licensing regime. Non-compliance is almost invariably a criminal offence of strict liability, requiring no mens rea. This approach can be traced back to cases such as R v Stephens [1866] LR 1 QB 702 which were based in public nuisance, where likewise mens rea is not relevant. Justification was given by Lord Salmon in Alphacell v Woodward [1972] AC 824 where he said: 'The offences created by the [Rivers (Prevention of Pollution) Act 1951] seem to me to be prototypes of offences which 'are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty' ... If this appeal succeeded and it were held to be the law that no conviction could be obtained under the Act of 1951 unless the prosecution could discharge the often impossible onus of proving that the pollution was caused intentionally or negligently, a great deal of pollution would go unpunished and undeterred to the relief oj many riparian factory owners. As a result, many rivers which are now filthy would become filthier still and many rivers which are now clean would lose their cleanliness. The legislator no doubt recognised that as a matter of public policy this would be most unfortunate. Hence s. 2(I)(a) which encourages riparian factories not only to take reasonable steps to prevent pollution but to do everything possible to ensure that they do not cause it. '(my emphasis). Strict liability is also a necessary element of the polluter pays principle. If an economic activity causes social costs, this principle requires the operator to bear those costs in full at least in the absence of consent by the victims, or where, in the wider public interest, this is deemed to be made on their behalf and there is a licensing regime in operation. Considerations of intent, negligence, or ' o o ' any other blameworthiness have no place. The European Commission in its green paper Remedying Environmental Damage specifically stated: 'strict liability appears to be particularly suited to the specific features of repairing environmental damage' and this view was supported by the report on this green paper by the House of Lords Select Committee on the European Communities. CRIMINAL CONTEXT Strict liability is therefore appropriate to environmental enforcement. Nevertheless, it sits most uneasily in the context of the criminal law, not only as a matter of principle but also on purely practical grounds. It is clearly wrong in principle that a person can be convicted of a criminal offence in circumstances where he may never have intended the consequences of his act or omission, was not negligent, and indeed' o o ' may have done his level best to avoid the consequences that precipitated the prosecution and conviction. To brand such a person a criminal is bound to be seen by most lay people at least as wholly unreasonable and is liable to bring the law and those who enforce it into disrepute. If the fines were comparable to those for parking offences (as they used to be, and occasionally still are) this consideration would carry less weight; but with the magistrates now able to impose fines of up to £20,000 and, in many cases, unlimited fines and prison sentences available on convictions on indictment, the anomalous nature of strict liabilitv for such criminal offences cannot be lightly disregarded. There are also cogent practical grounds for this concern. To avoid o convicting a defendant on a criminal charge unfairly, he is, quite rightly, afforded a whole range of evidential and other procedural safeguards, notably the appreciably heavier criminal burden of proof. This protection inevitably means either that there are more acquittals than would otherwise be the case or no doubt much more often that proceedings are never brought in the first place. The adverse consequences for society at large if actions that damage the environment are not seen to be condemned, and recurrences effectively discouraged are, however, ignored. While the reluctance of the regulators in Britain to bring prosecutions is in part attributable to a culture that avoids confrontation to a degree that some might regard as excessive, it is o o ' understandable that they should regard proceedings that fail as counter­ productive. STRICT LIABILITY It is clearly wrong in principle that a person can be convicted of a criminal offence in circumstances where he may never have intended the consequences of his act or omission, was not negligent, and indeed may have done his level best to avoid the consequences that precipitated the prosecution. WHO IS RESPONSIBLE? The problem is perhaps most acute in circumstances where the separate actions of two or more people have together resulted in a pollution offence, o r 7 and yet it is just such situations that increasingly arise. Constructive o J collaboration between two or more parties is frequently called for, e.g. in the duty of care in dealing with waste, the discharge of trade effluent to a sewage treatment works, or the use of sub­ contractors to do work that calls for an appreciation of all the surrounding potential environmental hazards. In such cases who, if anyone, may be found guilty of an offence may well bear little or no relation to who was in practice at fault, and who should, in an effective system, be held at least partly accountable. The criminal process is not suited to allocating degrees of responsibility. Thus Global Environmental, a waste management company, in responding to a charge brought under the Environmental Protection Act 1990, s. 33(l)(c), made much of the fact that an appreciably more serious incident had occurred shortly after the one the subject of the charge, McTay Construction Limited (unreported, 14 April 1986), one of McTay's sub­ contractors had polluted a local watercourse. The parallel proceedings against McTay, as the main contractor, were rejected by the court, very largely it seems on the ground that if the main contractor was liable, then the principal, the Greater Manchester Council, should have been too. The logic was sound. It is the assumption that the Council could not be regarded as responsible that is questionable, even though it had a major hand in determining what was done on the site. and yet no proceedings were taken in that second case. The West Yorkshire Waste Regulation Authority, then the responsible regulator, did not bring a prosecution because of the difficulty of apportioning responsibility between Global and the producer of the waste that Global was treating. Each blamed the other, and the Authority considered there was a severe risk that both parties might have made a sufficient case that the other was principally responsible, and that both would have been acquitted. The reluctance of the courts to convict one of multiple parties was exemplified also in National Rivers Authority v Welsh Development Agency [1993] Env LR 407 where the defendant landlord was acquitted (in the writer's view wrongly), with harsh words from the judge for the prosecuting authority for bringing the case against the Agency, rather than the polluting tenant. Similarly, in North West Water Authority v PENALTIES The inappropriateness of the criminal law for normal environmental regulation appears also from the sanctions imposed on a convicted defendant. The fine or other penalty is, quite properly in the criminal context, related in large part to the culpability of the defendant. However, this bears no necessary relation whatever to the environmental consequences of the incident, and may throw the burden of these on to the public and fail to give effect to the polluter pays principle. Even to the extent that a fine to some degree reflects the severity of an incident, as a matter of public policy, the defendant cannot seek reimbursement from third parties whose own behaviour may have contributed to it. CIVIL REMEDY Continental European jurisdictions, with their separate regimes and courts for applying administrative law, have not been faced with this problem. However other common law jurisdictions, notably Australia, especially New South Wales, and the US, have shown how administrative actions can be given effect through proceedings in the civil courts. A development along comparable lines in this country would be highly desirable. What is required, in essence, is a system of administrative sanctions that, as a minimum, would deprive those who fail to comply with environmental obligations of all profit from their default, coupled with an ability to require the polluter both to remedy whatever environmental harm may have been caused, and also to take appropriate steps to minimise the chance of a recurrence. Until very recently, the regulators have merely had a right to do necessary works, and to recover their costs from the relevant person. This has been of limited value, given the regulators' limited resources to fund such works, and particularly so where there is a substantial likelihood that they may fail to obtain reimbursement. Enforcement notices under the Integrated Polluted o Control (IPC) regime allow the regulator to require work to be done without putting public funds at risk, but the power only applies to those operating processes subject to IPC. Works notices may now be served under the Water Resources Act 1990, as amended by the Environment Act 1995 and remediation notices, introduced by Part II of the Environment Act 1995 into the Environmental Protection Act 1990 will, eventually, likewise be available to deal with significantly contaminated land. Nevertheless these provisions operate independently of court proceedings, and most can be activated only if the relevant regulator chooses to do so. While this should undoubtedly be the norm, it is anomalous that any person may, in England and Wales, institute prosecutions for environmental offences but yet have no direct influence over whether and how administrative proceedings are pursued. PRIVATE ACTIONS 'Citizen suits' have been pioneered in the US, being first introduced in 1972 in amendments to the Clean Air Act 1993. With minor variations, they are now provided for in virtually all US 25