Environmental Crimes

Introduction

Environment, the complex of physical, chemical, and biotic factors that act upon an organism or an ecological community and ultimately determine its form and survival.[1] The major components of the physical environment are discussed in the articles atmosphere, climate, continental landform, hydrosphere, and ocean. The relationship between the principal systems and components of the environment, and the major ecosystems of the Earth are treated in the article biosphere.[2] The environment is also defined in the simple terms, as ‘the natural world in which people, animals and plants live’.[3]

And the word crime means, the intentional commission of an act usually deemed socially harmful or dangerous and specifically defined, prohibited, and punishable under criminal law.[4] Therefore the environmental crime is those crimes which danger or harms the natural world in which people, animals and plants live.

The concept ‘Environmental Crime’ has been defined variously from different perspectives. The term has been used almost indiscriminately and without any universally accepted definition.[5]It has been classified as a sub-set of white-collar Crime.[6] Mary Clifford and Terry D. Edwards[7] offer a few definitions of environmental crime from different perspectives. One definition includes the functions of the environmental law enforcement agencies as well as the statutory provisions pertaining to its area of operation.

International environmental law and standards have been transcribed into national law in order to ensure compliance with State obligations. Environmental crime was not codified or integrated into a single Statute, but instead integrated into a variety of separate pieces of legislation.

International Environmental Crime

The Environmental Investigation Agency, London, for the purpose of its report[8] defines International Environmental across five broad areas of offences, which have been recognized by bodies such as the G8, Interpol, EU, UN Environment programmed and the UN Interregional Crime and Justice Research Institute. These are[9]:

  1. Illegal trade in wildlife in contravention to the 1973 Washington Convention on International Trade in Endangered Species of fauna and Flora (CITES);
  2. Illegal trade in ozone-depleting substances (ODS) in contravention to the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer;
  3. Dumping and illegal transport of various kinds of hazardous waste in contravention of the 1989 Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and Other Wastes and their Disposal;
  4. Illegal, unregulated and unreported (IUU) fishing in contravention to controls imposed by various regional fisheries management organizations (RMFOs);
  5. Illegal logging and trade in timber when timber is harvested, transported, bought or sold in violation of national laws (There are currently no binding international controls on the international timber trade with the exception of an endangered species, which is covered by CITES).

Other environmental offences having similar features of the above category include:[10]

  1. Bio-piracy and transport of controlled biological or genetically modified material (a possible offence under the 2000 Cartagena Protocol on Biosafety to the Biodiversity Convention);
  2. Illegal dumping of oil and other wastes in oceans [i.e. offences under the 1973 International Convention on the Prevention of Pollution from Ships (MARPOL) and the 1972 London Convention on Dumping];
  3. Violations of potential trade restrictions under the 1998 Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade;
  4. Trade-in chemicals in contravention to the 2001 Stockholm Convention on Persistent Organic Pollutants.
  5. Fuel smuggling to avoid taxes or future controls on carbon emissions.

Amount of Environmental Crimes

The main motive for environmental crime is financial gain. The United Nations Convention on Corruption seeks to identify the links between corruption, organized crime, money laundering and economic crime.[11] Their characteristics are: structured networks, mass immigration, illegal immigration, money laundering, corruption and vulnerable group abuse. Wildlife crimes are just as vicious as every other, with both the tools of their trade being intimidation, infringement of civil rights, bribery, murder and aggressive behavior. In many areas of the international development programmes, the measures of environmental crime are clear. Significant global warnings, such as obstacles presented through the MDGs, are connected to and agitated by serious environmental crimes, cohesion, security and human rights. Increasingly, illegal logging and wildlife-trafficking are driven by organized groups who exploit natural resources and destroy habitats: robbing communities of their livelihoods, compromising the wider economy and further endangering threatened species and ecosystems.[12]

Types of socially destructive criminalization

Environmental criminal law is not embedded in criminal codes of other judicial systems, as the main part of environmental criminal law primarily comprises of clauses incorporated in environmental statutes of an administrative nature (for e.g., a Clean Water Act) and have as their main function the enforcement of compliance with administrative obligations[13] Nevertheless, we find the interweaving of administrative and criminal environmental law in many countries in the administrative control of pollution. Environmental laws function to help ensure that control. However, this model punishes only administrative disobedience while other types of pollution may go unpunished, thus limiting the ability of the criminal law to protect ecological values.[14] As a matter of fact, actual harm to the environment and the threat of such harm is more serious than mere administrative disobedience.[15] While focusing on the act element of a crime, Faure proposes the following four models of criminalization of environmental harm on the basis of which a graduated punishment approach (depending upon the degree of seriousness of the crime) is advocated:

Abstract Endangerment: A model that criminalizes disobedience to administrative rules and requirements per se. Crimes under this model may be classified into three categories:

  • operating without a required license or permit;
  • violating paperwork, monitoring, or inspection requirements;
  • Other regulatory violations that do not involve harm or threat of harm to the environment.

Most western countries have ample examples of crimes that fit this model. For example, in the United States, storing hazardous waste without a permit is an environmental crime that fits the Abstract Endangerment Model.[16]

Concrete Endangerment Crimes with Administrative Predicates (“Concrete Endangerment”): Concrete Endangerment crimes involve behavior that both violates regulatory law and poses a threat of harm to the environment; thus, on the surface, these crimes target two social harms. This model differs from the first model in that the crimes also either presume or require proof that the unlawful activity involved a threat of harm to the environment.[17] The model assumes two variations:

  • presumed endangerment, where statutes criminalize per se the unlawful contact of some quantity of pollutant with the environment on the assumption that such contact necessarily causes at least some threat of harm;
  • Demonstrated endangerment, where these require affirmative proof of a threat to the environment beyond the mere fact of an unlawful emission or release. Presumed endangerment crimes are easiest to prove and thus allow earlier and more frequent governmental intervention.

Further, ‘presumed endangerment ‘statutes provide the greatest protection for ecological values because the government can obtain a conviction with the least amount of proof.[18] In contrast, demonstrated endangerment statutes require affirmative proof of a threat to the environment beyond the mere fact of an unlawful emission or release.[19]

Concrete Harm Crimes with Administrative Predicates: the third model is similar to the second one in that the crimes in both require proof of violation of administrative rules. But these crimes go beyond threats and require proof of actual environmental harm. Hence it requires a definition of the concept of environmental harm, which is a tricky issue.[20] Secondly, the issue causation, which requires proof of actual harm, is another problem commonly faced by the prosecution.

Serious Environmental Pollution: Eliminating the Administrative Link:

This model punishes very serious environmental harm regardless of whether there is any underlying regulatory violation, that is, even if the activity at issue was not otherwise unlawful; these appear to be aimed at preventing or punishing only harm to the environment itself. It involves environmental crimes of magnitude beyond that contemplated by the administrative rules with which the entity complied.[21] This model is different from the third as it distinguishes the relation between criminal law and current administrative decisions: offenses that match this model are separate in the sense that criminal law will interfere independently of administrative law.

Environmental Crime is an excess of Criminalization?

Over-criminalization generally presents the following characteristics:[22]

  1. Enacting criminal statutes lacking meaningful mens rea requirements;
  2. Imposing vicarious liability with insufficient evidence of personal awareness or neglect;
  3. Expanding criminal law into economic activity and regulatory and civil enforcement areas;
  4. Creating mandatory minimum sentences un-related to the wrongfulness or harm of the underlying crime;
  5. Federalizing crimes traditionally reserved for state jurisdiction; and
  6. Adopting duplicative and overlapping statutes.

The criminalization of environmental violations poses at least two theoretical problems: one, the moral content of the proscribed conduct is not as well established as it is for common law crime, which has prompted concerns about over criminalization; two, the complexity of environmental law raises issues about whether it can be integrated effectively with traditional approaches to criminal liability.[23]

As regards the first issue, it has been argued that criminalization of environmental violation presents the danger of over criminalization or over- deterrence;[24] Criminal law could have dragged on outside its proper role. However, given the severity of the harm affected by natural offenders and where environmental protection has become a pressing domestic and international consideration, the issue of the over-criminalization in violation of the environment should not be addressed. India is one country that takes environmental offences seriously by departing from the strict liability model to develop the absolute liability model that suits its context.[25]

Environmental Crimes and the Major Indian Codes

The Indian Penal Code (IPC) provides for rules concerning public disturbance. In addition to the IPC provisions, infringement of the provisions of specific environmental laws tends to attract criminal liability. In India civil liability is based on common law. The Code of Civil Procedure, 1908[26] governs the classical suit for damages in tort. The Specific Relief Act, 1963 provides for claims for injunction.

Public Nuisance Under the common law, the law of public nuisance was invoked for penalizing the environment offender and protecting the environment. In the U. S., public nuisance actions played an important role in the development of environmental law.[27]

The law regarding public nuisance can be appreciated with the help of two maxims:[28]

1. Sic tari tuo alienum non lectus: enjoy your own property in such a manner as not to injure the right of another; and

2. Sic utari tuo ut rem publican non laedas: enjoy your property in such a manner as not to injure the right of the public.

Under the common law, nuisances are of two types:

  1. Public nuisance and
  2. Private nuisance.

Private nuisance is a civil wrong while a public nuisance is generally considered a crime. This position is different in Japanese law where environmental pollution is considered a public nuisance no matter if it is caused by a private enterprise.[29] Most instances of environmental harms fall within the purview of public nuisance, and it appears that it is inadequate.[30]

Public Nuisance under the Indian Penal Code, 1860

Public nuisance law forms the doctrinal foundation for environmental offenses regarded by the Indian Penal Code. The Code includes detailed rules identifying and punishing public nuisance activity. Chapter XIV (sections 268 – 294A) of the Code deals with public health, safety, convenience, decency and morals offenses. Section 268 defines public nuisance, Whereas Section 290 provides for punishment of public nuisance in cases not covered by the Code. However, the correct implementation of these penal provisions is unlikely in even egregious cases of air and water pollution, since the technical details of Indian criminal law require full gratification of the ingredients of the offense as provided for in the penal provision.[31]

In either case, this specific condition is relaxed in India’s groundbreaking Public Interest Litigation (PIL) for the benefit of the disadvantaged and vulnerable segments of society. In a nuisance case, Bibhuti Bhusan Biswas v. Bhuban Ram[32], three proprietors and the manager of a mill were convicted by District trial Magistrate under Section 290 of the Indian Penal Code. The proprietors did not live in the premises. The Sessions Judge was of the opinion that the conviction of the proprietors was ‘bad in law‘, and he recommended that their conviction should be set aside. However, he held that there was nothing wrong in the conviction of the manager. The Calcutta High Court, while upholding the conviction of the manager, set aside the conviction of the proprietors as they were not living on the premises and held that the general rule is that a principal is not criminally answerable for the acts of his agent.

Broadly speaking, the person is liable, where the user of the premises causes a nuisance, is for the time being the occupier whoever he may be. In the present case the occupier is the proprietor’s servant. Public Nuisance in the Criminal Procedure Code (1973) Chapter X of the Criminal Procedure Code (1973) provides elaborate provisions for maintaining public order and tranquility. Part B (sections 133 – 143) of the chapter deals specifically with the provisions concerning the elimination of public nuisance. Section 133[33] is the most pertinent section regarding the removal of environmentally harmful public nuisance. It enables the District Magistrate to pass conditional injunctions to remove nuisance.[34]

Conclusion

The environment is the foundation of environmental sustainability, our health, food security and our economies. Ecosystems provide fresh water, breathable air, clean food and, ultimately, physical and mental well-being. Environmental crime is broadening enormously and massively endangering not only natural habitats but whole ecosystems, sustainable livelihoods and government sources of revenue. By making legislation and policy, environmental crime is controlled and maintained so that it cannot disturb the channel of the environment and sustainable development can prevail.


[1] https://www.britannica.com/science/environment

[2] https://www.britannica.com/topic/National-Environmental-Policy-Act.

[3] https://www.oxfordlearnersdictionaries.com/definition/english/environment.

[4] https://www.britannica.com/topic/crime-law.

[5] M. Clifford and Terry D. Edwards, ―Defining Environmental Crime, in Mary Clifford (ed.), Environmental Crime: Enforcement, Policy and Social Responsibility 6 (Aspen Publishers Inc., Gaithersburg, 1998).

[6] Id. at 12.

[7] Id. at 27.

[8] Debbie Banks, Charlotte Davies, Mary Rice, et.al, ―Environmental Crime: A Threat to our Future 1 (Environmental Investigation Agency, London, 2008).

[9] Ibid.

[10] Gavin Hayman and Duncan Brack, ―International Environmental Crime: The Nature and Control of Environmental Black Markets (Royal Institute of International Affairs, 10 St James Square, London, 2002)

[11] For instance, Article 14 of the United Nations Convention against Corruption, available at treaties.un.org/doc/source/RecentTexts/Corruption_E.doc (Visited on March 12, 2012).

[12] Supra note at 9.

[13] Michael Faure, “Environmental crimes, in Nuno Garoupa (ed.) Criminal Law and Economics 320 (Edward Elgar Pub., Cheltenham, 2009) available at: http://ssrn.com/abstract=1498471

[14] Susan F. Mandiberg and Michael G. Faure, ―A Graduated Punishment Approach to Environmental Crimes: Beyond Vindication of Administrative Authority in the United States and Europe 34:2 CJEL 448 (2009).

[15] Id. at 450.

[16] Id. at 457.

[17] Id. at 460.

[18] Id. at 461.

[19] Id. at 465.

[20] Id. at 470.

[21] Id. at 480.

[22] ELR 10025 (2011); see also Michael Faure, “Environmental crimes, in Nuno Garoupa (ed.) Criminal Law and Economics 324 (Edward Elgar Pub., Cheltenham, 2009); also available at: http://ssrn.com/abstract=1498471. Over criminalization, available at: http://www.nacdl.org/overcrim/

[23] David M. Uhlmann, ―Environmental Crime Comes of Age: The Evolution of Criminal Enforcement in the Environmental Regulatory scheme, at 1228.

[24] Mark A. Cohen, ―Environmental Crime and Punishment: Legal/Economic Theory and Empirical, at 1103.

[25] The Indian Supreme Court departed from the strict liability doctrine in Rylands v. Fletcher and applied the new doctrine of absolute liability developed in M.C. Mehta v. Union of India, AIR 1987 SC 965.

[26] Richard J. Lazarus, ―Assimilating Environmental Protection into Legal Rules and the Problem with Environmental Crime 27 Loy. L.A. L. Rev. 867 (1994), at 873.

[27] Section 91of the Code reads: 91. Public nuisances and other wrongful acts affecting the public.

[28] K.D. Gaur, The Indian Penal Code 344 (Universal Law Publishing Co. Ltd., New Delhi.

[29] C.M. Abraham, Environmental Jurisprudence in India 40 (Kluwer Law International, London, 1999).

[30] Id. at 38.

[31] Section 277 and section 278 of The Indian penal code, 1860; have direct relevance to protection of the environment as these sections deal with water pollution and air pollution respectively.

[32] (1919) ILR 46 Cal 515.

[33] The Indian penal code, 1860.

[34] Ratanlal & Dhirajlal, The Code of Criminal Procedure 190 (Wadhwa & Company, Nagpur, 17th edn., 2005).

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