IN THE BEGINNING…
It seems appropriate for a new column to begin at the broadest possible level. The environment has, of course, always been with us, but it was not until 1863 that an Irish scientist called John Tyndall discovered that heat radiation tended to be absorbed by atmospheric gases, and accordingly the concentration of such gases in the environment would affect our climate. More than 130 years later came the United Nations’ Framework Convention on Climate Change, the first international instrument designed to deal with the problem of climate change. This was followed in 1997 by the well-known Kyoto Protocol, setting greenhouse gas emission targets for developed countries. However, as is well known, the Kyoto Protocol has not been ratified either by the US or by Australia, and it is only intended to endure until 2012; hence the major international meeting held last December in Bali, which is intended to lead to a further protocol, extending beyond 2012, and which it is hoped will be ratified by a much wider range of countries including China and India.
It is, however, clear that the implementation of whatever targets may be agreed internationally can only be achieved at a regional or national level. Within the EU, the Kyoto Protocol has been implemented by the setting up of a system of national allocations and by the emissions trading scheme (see Directive 2003/87/EC). The Department for Environment, Food and Rural Affairs has consulted on the possible extension of the emissions trading scheme to large but non-energy intensive organisations.
Within the , we now have the draft Climate Change Bill, which includes not only provision for a new Carbon Committee to advise government on appropriate targets, but also provision for significantly extending the range of activities to which greenhouse gas allocations might be applied.
ENVIRONMENT REGULATION
In the field of environmental regulation, the European Court of Justice (ECJ) has recently handed down an important decision—known as the shipshore pollution case—concerning community competence in relation to criminal penalties (European Commission v European Council (European Parliament intervening): C-440/05 [2007] All ER (D) 338 (Oct)). In this case, the ECJ held that:
“Although it is true that as a general rule neither criminal law nor the rules of criminal procedure fall within the community’s competence…the fact remains that when the application of effective, proportionate and dissuasive criminal penalties by the competent national authorities is an essential measure for combating serious environmental offences, the community legislature may require the Member States to introduce such penalties in order to ensure that the rules which it lays down in that field are fully effective…by contrast…the determination of the type and level of the criminal penalties to be applied does not fall within the community’s sphere of competence.”
Flowing from this decision, the Council of the European Union is considering a draft Directive which would impose on member states an obligation to ensure that a range of environmental activities will constitute a criminal offence when committed intentionally or at least with serious negligence. These activities include discharges to air, soil or water which cause or are likely to cause death or serious injury or substantial damage to the quality of the air, the soil or the water or to animals or plants.
The draft Directive contains provisions which would ensure full vicarious liability on the part of corporate personalities; including liability in situations where “the lack of supervision or control” by an employee has made possible the commission of an offence for the benefit of the company.
DOMESTIC CRIMES
In the sphere of domestic environmental crime, the divisional court of the Queen’s Bench Division gave a judgment on 31 October 2007 in Neal Soil Suppliers Ltd v Environment Agency for Wales [2007] All ER (D) 472 (Oct), [2007] EWHC 2592 (Admin) which is of potential significance.
The defendant company had been convicted of an offence under s 33 of the Environmental Protection Act 1990 (EPA 1990) of depositing waste in or on land without authorisation under a waste management licence. Subsequently, the Environment Agency served a notice on the company under EPA 1990, s 59, requiring the waste to be removed from the land. The company appealed against the requirements of the notice contending that the notice should be modified to allow it to treat the waste in its existing location.
The crown court held that it had no power to make such a modification because this would amount to allowing the waste to be treated without authorisation under a waste management licence. The
Divisional Court disagreed and held that the power to modify the notice in accordance with the company’s request was one which was available to the crown court, and remitted the matter to that court for reconsideration. In giving judgment, however, Lord Justice Keene made the following important observations concerning criminal penalties:
“Indeed for my part, I would encourage Magistrates’ Courts before whom prosecutions are brought or, for that matter, Crown Courts before which any prosecution comes on indictment, to reflect in any financial penalty imposed the amount of commercial advantage which has been obtained by a person through the unlawful deposit of controlled waste.”
WELL-BEING
Like every other public institution including government, Parliament and the media, the courts are beginning to recognise the fundamental importance for our future well-being of a serious regime of environmental protection.
