Are you aware that if you commit an environmental crime its likely you will be strictly liable?

Remaining up to date with environmental legislation can be a very difficult task. The law can also be very unforgiving with regards pollution and often moves to prosecute in a great many cases.



Did you know that an environmental crime is defined in law as an act or omission that harms or endangers public health and safety as well as the environment? Likewise, did you know that most environmental crimes are strict liability offences? This means that there is no need to establish negligence or intent to harm for an offence to occur. As a consequence of this it is perhaps not surprising that the success rate for environmental prosecutions is unusually high (95%)! The intention is that strict liability should act as deterrent. It is also said to support the Polluter Pays Principle, which requires that regulation should be constructed in such a way that the polluter, rather than society, pays the environmental cost caused by pollution.



Strict but not absolute liability



However, there is no need to panic. There are very few environmental crimes which impose absolute liability since most offences try to balance the potential unfairness of such liability with certain statutory defences. For example, acting in accordance with the provisions of a statutory consent, authorisation or a licence is a defence that can be used. Likewise, causing minimum environmental harm in the event of an emergency provides a defence, as does damage caused by an Act of God - such as unforeseen events like floods, earthquakes or tornados.



The potential unfairness which may be caused by the application of strict liability is further mitigated through selective enforcement and lenient sanctions. Indeed, data show that fines are the most common form of sanction (68% for individuals and 80% for corporations), with only 1% of the environmental offences being punished by imprisonment. Moreover, the courts have identified certain factors which are relevant when imposing custodial sentence. These are repeated or blatant offences; offences committed in a public place; and offences committed in circumstances under which the public had been exposed to hazardous substances. The Environment Agency, in its Enforcement and Prosecution Policy, says it will consider the following main factors when deciding to prosecute:



·environmental effect of the offence;

·forseeability of the offence or the circumstances leading to it;

·intent of the offender, individually and/or corporately;

·history of offending;

·attitude of the offender;

·deterrent effect of a prosecution on the offender and others;

·personal circumstances of the offender



The Environment Agency has also adopted the policy of 'naming and shaming'. In 1999, the Environment Agency published a 'league table' of those corporate offenders who had committed environmental crimes in the previous year. A year later, the Agency published a more comprehensive report "Spotlight on Business Environmental Performance-2000", which sought to identify those who had reduced pollution alongside the 'league table'. These reports have been published on an annual basis since 2000 and have served to improve environmental compliance.



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Adekunle Osibogun - Environmental Law for Polymer Users

http://www.elpu.net