Is it time for specialist environmental courts?
Effective environmental governance appears to be a slippery ideal at times: high on promise and low on delivery. In the context of the courtroom it can be a classic Theory vs Practice case all of its own.
As a society we have been conditioned to think that there is a legal solution to everything, from faulty toasters to toppling dictatorships. In the case of protection of the environment, the legal regime is relatively new, and its impact has not yet crystallised to meet our expectations. Indeed, only now are many countries belatedly evolving laws addressed to environmental damage caused by human activity; only a few have relatively mature systems, and still fewer are identified as paragons of good practice. The key though to securing any legal regime’s effectiveness is not its maturity, but its enforceability.
Simply, breach of obligation should be followed by appropriate, proportionate and effective sanction. If that relates to the environment, then preventing and deterring damaging behaviour should drive that sanction. An additional consideration should be that environmental damage should be remediated so far as possible. Two key stages enable these objectives to be met: actual enforcement, and then effective sanctioning upon proof of wrongdoing. Specialists are deployed at both points: from the environment agencies, Nature conservancy bodies and police at the investigative ‘sharp end’, through to the courts, with a judiciary deployed to pass sentences that should reflect seriousness and concern. Herein lies a nuance, however.
If we take just the UK as an example, we can identify a series of regulators for which environmental protection is the sole or a significant part of their remit, but there is nothing comparable within the judiciary. Magistrates and judges in the lower ‘sentencing’ courts are legal generalists, and each case they hear often bears no comparison to the one before. Studies have shown that while there is undoubtedly a greater awareness of the seriousness of environmental damage in society, this attitude shift is not obvious in environmental sentencing. Consequently, public perception can be that environmental penalties are insignificant, and that offenders are not treated with a sense of gravity proportionate to the offence.
Statistics are not always a reliable indicator of ‘justice’, but they can be illustrative. Over the last decade, some 800 prosecutions per year have been undertaken by the Environment Agency. The majority of cases are for water offences, and in these cases the average fine has been around £7,000. Waste offences, the second biggest proportion of offences, had a lesser average fine of around £4,000. It is rare for a person to be imprisoned for an environmental offence, and even where the provision exists, it is rarer still for anything approaching the higher end of the tariff to be met, although of course it does occasionally happen as the exception that proves the rule.
Why, then, do we have this apparent disconnect between society’s perception of the significance of environmental protection, the existence of a growing body of law to regulate it, and the real sanctions that are imposed on those that breach the law?
The majority of offenders are processed through the magistrates’ courts, which rely on a lay judiciary. The relative frequency with which these volunteer arbiters come face to face with an environmentally focused case is very low; research undertaken by the Magistrates’ Association discovered that a case with a broadly environmental content is heard on average once every three years.
This suggests that there will be a lack of familiarity with the issues and/or consequences, which is far less likely to be the case, perhaps depressingly, for car theft or assault. Additionally, much environmental law is relatively technical and administrative in nature, and breaches of it often result in harm that is difficult to quantify. As a result there have been periodic suggestions that it is now time for specialist environmental courts.
Two jurisdictions with established, well-functioning environmental courts are Australia and New Zealand. In Australia, The Land and Environment Court of New South Wales has been in operation since 1979, and is empowered in relation to a wide range of environmental and planning legislation. It has jurisdiction over criminal prosecutions and civil enforcement matters. There is a similarly functioning body in South Australia, established in the mid-1990s.
New Zealand has adopted a similar approach to environmental dispute resolution, and its very forward-thinking Resource Management Act resulted in the creation of an Environment Court, which has been in operation now for some 15 years. The court has greater public accessibility than the traditional court system and it permits consideration of environmental law questions by specialist judges backed by Environmental Commissioners able to draw upon experience in key areas of environmental management.
Periodic attempts to develop a similar forum in the UK have been proposed. To date, all have failed, with the most recent comprehensive proposal vetoed by the House of Lords in 2000. In each suggested model, questions of jurisdiction as well as the means by which access to environmental justice could best be facilitated have all featured at one time or another. The proposals also considered supplementing the current adversarial justice system with something more akin to an inquiry-based approach, which would be better able to consider impacts and could possibly be understood as a better means of achieving environmental justice.
However, these underpinning ideals now exist only as resonating arguments for change. And if the situation is challenging at a national level, what hope is there internationally?
We are acutely aware that environmental problems are trans-boundary – pollution simply does not respect jurisdiction. Climate Change and the New World Order, an event held in London in November 2008, revisited calls for an international court for the environment. Very basically, the argument runs that with increasingly sophisticated international laws protecting the environment, there should be a specialist forum to adjudicate on a range of resource and pollution issues, including water, carbon emissions and mineral rights.
At first sight it is compelling, but the realpolitik of international law means it is not likely to happen any time soon. A barrier lies in the quirk of international law that requires states, as sovereign bodies, to agree to the jurisdiction of an arbitral body – witness, for example, the queue of nations unwilling to recognise the International Criminal Court, where, instead of tricky issues of resource allocation or nebulous concepts like sustainability, something more basic like crimes against humanity is prosecuted. While some readers will possibly wish to conflate genocide and ecocide, the international community is a long way behind that thinking.
In the meantime, however, perhaps the real focus should remain on pursuing and identifying those who flout environmental laws, because if an offender is not caught, where and how they might be tried becomes an irrelevance.
Jason Lowther is an Associate Professor in Law at the University of Plymouth, specialising in environmental law.