The main bodies for enforcing environmental law are Local Authorities and the Environment Agency. Since the aim of environmental enforcement is to prevent harm to the environment and human health it focuses on both punishments for breaching environmental laws and prevention so that breaches are prevented from occurring in the first place. These two elements of enforcement give rise to a range of sanctioning tools and cooperative strategies. The sanctioning approach involves punitive measures such as suspension, variation or revocation of license or authorisation; or criminal prosecution in a court of law. The cooperative approach covers other formal or informal mechanisms like persuasions by the regulators, monitoring or inspection, issuance of verbal or written notices.
The cooperative approach has the potential advantage of achieving environmental compliance without the hassle and cost arising from court prosecution. However, it is also generally acknowledged that cooperation has to be supported and backed-up by more formal legal mechanisms. For example, in the Environment Agency versus Stanford [1999] case, the scrap metal dealer (Mr Stanford) notified the Environment Agency that his activities were exempt from a waste management license. An officer of the Agency then visited the site and informed Mr Stanford that the activities were in fact unlawful. Rather than prosecuting Mr Stanford the officer advised on the various steps that were required to qualify for exemption. On subsequent site visits, the officers of the Agency gave the impression that no prosecution would be commenced if the works were carried out within a specific period of time. When these works were not carried out the Agency initiated a prosecution. Given this context, it was argued that the prosecution was an abuse of process because of the promises of non-prosecution made by various officers of the Agency. This argument was dismissed by the court on the grounds that there was nothing to support the finding that the defendant was led to believe that he would not be prosecuted for past offences if he completed the necessary works by the stipulated date. Although it was arguably true that the Agency had not made it clear that it was considering prosecution, it was under no obligation to do so. Even if it could be argued that the Agency had imposed a condition that the defendant would not be prosecuted if he completed the work by the stipulated date, the condition had not been met.
This case shows that the enforcement agencies are not prohibited from taking formal enforcement actions even when they permit offenders some time to bring their actions into compliance and such acts of the enforcement agencies cannot be used as a defence against prosecution.
Empirical studies of the activities of enforcement bodies in England indicate that a hierarchy of enforcement mechanisms are utilized. The first stage involves advice and education about the environmental problem that constituted the breach of law. Where this mechanism fails in enforcement of particular regulation, warnings are issued and the option of prosecution is exercised only where the offence is either serious or intentional. Given the specific nature of environmental regulations, the work of enforcement agencies is technically and scientifically based and the agencies provide technical guidance and help to the industry for effective compliance. Therefore, education and advice are regarded more important than sanctions and other formal enforcement mechanisms. The emphasis is upon continuing relationship between the regulator and operators in order to prevent harm to the environment and its effective protection. This object can best be achieved through effective cooperation with the industry rather than confrontation which may result from imposition of sanctions. But it is worth remembering that when this fails the regulator can always revert to a more formal sanctioning approach!
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Zubair Abbasi - Environmental Law for Polymer Users
http://www.elpu.net
