Does the polluter/despoiler ever pay? Have a look at Partnership for Action Against Wildlife Crime - PAW
In April 2007 the Environmental Liability Directive (ELD) will be transposed into English Law.
The text of the ELD
Defra's view pre-consultation
Defra main page
Protected species - birds under the Birds Directive, animals and plants under the Habitats Directive
Protected habitats and also
Views of the RSPB
Click here for a PowerPoint presentation from Valerie Fogelman.
Email sent to the RSPB 1/3/07
Read your very helpful article on the ELD, 29/11/05
Note that on page 2 you say that there is no cap on liabililty. This is incorrect insofar as the provisions of the Limitation of Liability for Marine Claims Convention apply, see Art 4.3.
Best Regards
Rory MacPhee LlB
Falmouth Marine School
SSSI's and Prosecution
What happens if you despoil an area that is designated as ans SSSI?
Under the Wildlife and Countryside Act 1981, as amended by teh Countryside Rights of Way Act 2000 the Magistrates Court has power both to fine and issue a Restoration Order if an SSSI is damaged. The Prosecuting authority is Natural England.
Section 28P(6) provides that it is an offence for " a person who without reasonable excuse intentionally or recklessly destroys or damages any of the flora, fauna or geological or physiographical features by reason of which land is of special interest, or intentionally or recklessly disturbs any of those fauna and knew that what he destroyed, damaged or disturbed was within a Site of Special Scientific..."
Section 31 of the Wildlife and Countryside Act 1981 as substituted by Schedule 9 to the Countryside and Rights of Way Act 2000 provide that where a person is convicted of an offence under section 28P of that Act, the Court where he is convicted, in addition to dealing with the offender in any other way, may make a Restoration Order specifying operations for the purpose of restoring the SSSI to its former condition prior to the damage occurring. If the terms of the Restoration Order are not complied with, English Nature may enter the land and carry out those operations recovering from the person against whom the Restoration Order was made, any expenses reasonably incurred by English Nature in doing so. It also an offence, without reasonable excuse, not comply with the terms of the Restoration Order.
Note that the provisions only relate to SSSI designated areas. It is expected that the transposition of the Environmental Liability Directive in 4/07 and, possilby, the proposed Marine Act (2008?) will advance the position somewhat.
Information by Genewatch on GMO liability can be found here
Contacts
Environmental Law Foundation - http://www.elflaw.org/
Exhastive Web links http://www.euwfd.com/FWR-WFD13-3.pdf
Exhastive Web links http://www.euwfd.com/FWR-WFD13-3.pdf
Wild Law
Cormac Cullinan is a lawyer and writer, based in South Africa. He has published a book called "Wild Law", which will be reviewed here in due course. In the book he proposes a system of Earth Jurisprudence. He is also involved in Enact International His views were summarised in an article he wrote for the magazine "Resurgance".
Precautionary Principle
The Precautionary Principle drives much of our thinking on environmental issues. Better safe than sorry, they say. Like, er, no legal bar to dredging scallops mostly anywhere. Or raising GM crops. Is the PP an effective driver for the planning process? Is the PP an excuse for timidity and inertia? Indeed, has the PP been intoruduced into English Law?
The point to grasp is that the PP is not a general principle of law, but a principle of policy which informs environmental law.
And the definiton of the PP? Probably the Rio Declaration 1992 Principle 15 gives the most universal definition:
In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation
By contrast, the Treaty on European Union stes in Article 174: Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the community. It shall be based on the precautionary principle. This article binds the European Commission in terms of their law-making.
Unfortunately for the eco-earrior, Article 174 does not have direct effect on member states. The UK has stated in a White Paper (The Common Inheritance 1990) that: precautionary action must be based on objective assessments of the costs and benefits of action. The principle does not mean that we only permit activites if we are sure that serious harm will not arise, or there is proof that the benefits outweigh all possible risks.
The net result is that a planning decision based on the PP (ie refusing permission) would be open to legal challenge. An objective analysis involving costs and benefits is the proper route for planners.
The point to grasp is that the PP is not a general principle of law, but a principle of policy which informs environmental law.
And the definiton of the PP? Probably the Rio Declaration 1992 Principle 15 gives the most universal definition:
In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation
By contrast, the Treaty on European Union stes in Article 174: Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the community. It shall be based on the precautionary principle. This article binds the European Commission in terms of their law-making.
Unfortunately for the eco-earrior, Article 174 does not have direct effect on member states. The UK has stated in a White Paper (The Common Inheritance 1990) that: precautionary action must be based on objective assessments of the costs and benefits of action. The principle does not mean that we only permit activites if we are sure that serious harm will not arise, or there is proof that the benefits outweigh all possible risks.
The net result is that a planning decision based on the PP (ie refusing permission) would be open to legal challenge. An objective analysis involving costs and benefits is the proper route for planners.
Toxic Torts - the Probo Koala
In 2006 the Panamanian flagged, Greek managed, dutch chartered tank ship called in at Amsterdam with...full story at Wiki and Der Spiegal
As a result of what appears to be a significant environmental disaster, London solicitors Leigh Day have instituted a class action on behalf of 5000 Ivory Coast citizens claiming £100m damages, the claim based on negligence and nuisance. The English coursts have prima facie jurisdiction becasue the Dutch charterers have an office in London.
The Defendants have commenced proceedings against Martyn Day, the solicitor involved, for libel.
Greenpeace have a news item...
The Charterers position...
Leigh Day's position...
Note that the Charterers strenuously refute liability, and that two of their executives are being held, and allegedly mistreated, in an Ivorian jail. Their case is that the slops were legally disposed of, and what happened subsequently is not their responsibility. Note that under the Environmental Protection Act of 1990 their is a duty of care in waste management to ensure legal disposal of waste. Whilst the Act does not appy in Abidjan, it does set persuasively legal standards of care.
This case, and others, have been characterised as "toxic imperialism". In legal terms, the Basel Convention is supposed to control the issues. The UK has ratified the Convention - the US has not. Why does that not surprise anyone.
But what can the Convention actually achieve? This document shows what the Secretariat to the Convention is doing. Emergency assistance of about USD11million has been given.
Greenpeace has written an interesting article which summarises the legal position.
An organisation called Earth economics, based in Seattle, has started the Basel Action Network. This is an informative resource.
The problem with the regulations is, as ever, enforcement. Much of shipping is containerised, and the only practical method of checking is documentary. So if I wanted to scam it, I could set up an electronic waste company, get paid to recycle/reuse waste from companies - but simply send all the broken items by container to Port Appapa in Nigeria - with 10% "working" computers - and describe the consignment as second hand computers for re-sale. See a BBC news item...
Note that the Basel convention does not cover radio-active wastes. such waste is covered by the Convnetion on Nuclear Safety and several EU Directives.
Cafe Scientifique Talk
I will be giving a talk titled "Environmental Justice - How can we use the law to achieve change?" at Cafe Scientifique, Falmouth Arts Centre 21 December 2006.
Materials to support the talk will be hosted at this site.
Further information from:
Clare Hearn 01326 310977 clare@falmoutharts.org and www.cafescientifique.org
Materials to support the talk will be hosted at this site.
Further information from:
Clare Hearn 01326 310977 clare@falmoutharts.org and www.cafescientifique.org
Isn't the law wonderful, in its purity and clarity of expression?
Here we have Principle 1 from the Rio Declaration 1992 (not actually law):
Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.
And from the United Nations Framework Convention on Climate Change - Article 3:
The parties should protect the climate system for the benefit of present and future generations of mankind.
What we don't relaise is the horse trading that lies behind the development of international law. Phillippe Sands QC has written persuasively about the manipulations that lay behind the Earth Summit, with the United States bringing a team of over 100 lawyers, whilst the Pacific States had a team in single digits.
More prosaically, the Environment Protection Act of 1990, section 33:
A person shall not deposit controlled waste
Unfortunately there are significant questions over how we a s a nation deliver environmental justice. According to the Environment Agency, there is a clear correlation between low environmental quality and social deprivation.
A recently completed report (Environmental Justice Project http://www.wwf.org.uk/news/n_0000001166.asp) has suggested that, as a result of a survey, 95% of lawyers and NGO's do not think that the current system provides for environmental justice.
The two significant reasons are costs and judicial ignorance. There is also the limited nature of remedy. Where the criminal law is activated by virtue of a prosecution, a fine and/or imprisonment is the consequence of conviction. In certain circumstances a restoration order might also be made. There are other punishment options - perhaps disqualification from directorship, publicity, ASBOs...
Many lawyers feel that to combat judicial ignorance, there should be a specialist environmental court.
It hterefore seems that delivery and procedure are the stumbling blocks to environmentla justice. Substantive law is, in many respects, uncompromising.
There is a concept know as "strict liability", whereby for some crimes there is no need to prove intnet. Thus, Section 85 of the Water Resources Act states that a crime is committed if the defendant causes or knowingly permits pollution of controlled waters. There is no requirement to prove intention. It was under this provision that the Milford Haven Port Authority was prosecuted subsequent to the SEA EMPRESS hitting Wales.
Nor is there a lack of prospective prosecutors - Natural England, Environment Agency, Drinking Water Inspectorate, Health and Safety Commission, Local Authority, Port Health Authority and Private Prosecutions.
There are three main categories of legal action:
- Prosecution
- Civil Action
- Judicial Review
Judicail Review is an interesting concept. It allows a group or individual to review an offical action or inaction for lack of constitutionality. However, with environmental claims it can be difficult of prove "standing". Environmental Judicial Reviews run at about 25 to 30 a year.
Day to day environmental issues are encompassed by part III of the Environmental Protection Act http://www.opsi.gov.uk/acts/acts1990/Ukpga_19900043_en_4.htm#mdiv79. This covers noise, smoke, fumes, gas, dust, steam, insects and artificial lighting.
The Local Authority instigate the prosecution, having had an assessment of the nuisance by the Environmental Health Officer.
Wild Law
An extreme analysis of environmental justice is provided by Cormac Cullinan. Writing recently in Resurgance, he concluded:
It is time to face the fact that we are not going to stop destroying the planet with better technologies, better management techniques or more international treaties. The hard truth is that we need to embark on a radical re-evaluation of our governance structures. This will require us to set aside many of our cultural preconceptions and to develop ways of consulting with, and respecting, other members of the Earth community. It will require us to reinvent rituals that connect humans with the Earth and to develop successors to the shamans and wise elders who articulated the laws and mediated human relations with the rest fo the Earth community.
Dilemmas
A current dilemma facing marine spatial planning is scallop dredging. According to the Marine Conservation Society (2006)
MCS is hugely disappointed at the lack of concrete measures being proposed today by Defra to protect the biodiversity-rich reefs of Lyme Bay. A considerable effort has been made by English Nature and Devon Wildlife Trusts to demonstrate the damage being done to one of the UK?s only soft corals, the pink sea fan, yet the government has ignored their advice to close off just 10.3% of the bay to stop destructive fisheries, and has instead called for even smaller voluntary closures to restrict scallop dredge boats. Despite having the same legally protected status as the golden eagle, marine life such as the pink sea fan is only afforded paper protection and voluntary compromises, because the public cannot see the damage that is being done.
Last night at the Falmouth SAC Advisory Group meeting we discussed the scallop dredging within the SAC. At time of writing our deliberations and conclusions remain confidential. The legal position is that DEFRA issue licences, and are the relevant authority to take action. In terms of the Precautionary Principle (Rio Declaration Principle 15 states
In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. )
Does the precuationary principle apply to scallop dredging?
In terms of bio-diversity, scallop dredging destroys all sedentary sea life. The scallops regenerate, but nothing else does. There is also significant by-catch on virgin seabed, of up to 10%. Given that the scallop is traditionally a symbol of fertility, there is some irony.
On the other hand, scalloping is an important earner for inshore fishermen - it is suggested (http://www.guardian.co.uk/fish/story/0,,1789620,00.html) that 25% of Brixham's landed income derives from the scallop. This income sustains a thriving community.
There may be a facility under existing legislation to challege scallop dredging within SAC waters, which I am working on at the moment. Local Sea Fish Committees have the ability to ban dredging out to 3 NM. As these Committes are a function of Local Government, there are obvious issues of local politics. Scallop dredging has been banned within the Estuary - see http://www.defra.gov.uk/corporate/regulat/ria/2004/scallopdredging.pdf
And we mustn't forget the provisions of the Natural Environment and Natural Communities Act 2006 section 40:
40
Duty to conserve biodiversity
(1) Every public authority must, in exercising its functions, have regard, so far as is consistent with the proper exercise of those functions, to the purpose of conserving biodiversity.
The administrative situation is that DEFRA issue licneces for scallop dredging, which imposes an obligation on fishermen to submit to DEFRA monthly landing statistics. These licences cannot be unreasonably refused. The Sea Fisheries Committee suggest that as DEFRA is the relevant statutory authority, it is they who should take action. Notice the conflcit with the paragraph above.
My suggestion is that every effort be made to involve the fishing community in the bio-diversity debate, and seek to encourage an appreciation of truly sustainable fishery practices. So far as scallops are concerned, this means hand-picking by underwater divers.
Mind you, the market is surely wide open to develop an ROV type device that harvests scallops.
Yum!
A current dilemma facing marine spatial planning is scallop dredging. According to the Marine Conservation Society (2006)
MCS is hugely disappointed at the lack of concrete measures being proposed today by Defra to protect the biodiversity-rich reefs of Lyme Bay. A considerable effort has been made by English Nature and Devon Wildlife Trusts to demonstrate the damage being done to one of the UK?s only soft corals, the pink sea fan, yet the government has ignored their advice to close off just 10.3% of the bay to stop destructive fisheries, and has instead called for even smaller voluntary closures to restrict scallop dredge boats. Despite having the same legally protected status as the golden eagle, marine life such as the pink sea fan is only afforded paper protection and voluntary compromises, because the public cannot see the damage that is being done.
Last night at the Falmouth SAC Advisory Group meeting we discussed the scallop dredging within the SAC. At time of writing our deliberations and conclusions remain confidential. The legal position is that DEFRA issue licences, and are the relevant authority to take action. In terms of the Precautionary Principle (Rio Declaration Principle 15 states
In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. )
Does the precuationary principle apply to scallop dredging?
In terms of bio-diversity, scallop dredging destroys all sedentary sea life. The scallops regenerate, but nothing else does. There is also significant by-catch on virgin seabed, of up to 10%. Given that the scallop is traditionally a symbol of fertility, there is some irony.
On the other hand, scalloping is an important earner for inshore fishermen - it is suggested (http://www.guardian.co.uk/fish/story/0,,1789620,00.html) that 25% of Brixham's landed income derives from the scallop. This income sustains a thriving community.
There may be a facility under existing legislation to challege scallop dredging within SAC waters, which I am working on at the moment. Local Sea Fish Committees have the ability to ban dredging out to 3 NM. As these Committes are a function of Local Government, there are obvious issues of local politics. Scallop dredging has been banned within the Estuary - see http://www.defra.gov.uk/corporate/regulat/ria/2004/scallopdredging.pdf
And we mustn't forget the provisions of the Natural Environment and Natural Communities Act 2006 section 40:
40
Duty to conserve biodiversity
(1) Every public authority must, in exercising its functions, have regard, so far as is consistent with the proper exercise of those functions, to the purpose of conserving biodiversity.
The administrative situation is that DEFRA issue licneces for scallop dredging, which imposes an obligation on fishermen to submit to DEFRA monthly landing statistics. These licences cannot be unreasonably refused. The Sea Fisheries Committee suggest that as DEFRA is the relevant statutory authority, it is they who should take action. Notice the conflcit with the paragraph above.
My suggestion is that every effort be made to involve the fishing community in the bio-diversity debate, and seek to encourage an appreciation of truly sustainable fishery practices. So far as scallops are concerned, this means hand-picking by underwater divers.
Mind you, the market is surely wide open to develop an ROV type device that harvests scallops.
Yum!
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