Environmental law enforcement: the role of the judiciary
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ANDERSON 1
ENVIRONMENTAL LAW ENFORCEMENT: THE ROLE OF THE
JUDICIARY
ANDERSON, WINSTON
Senior Lecturer, Faculty of Law, University of West Indies, P.O. Box 64, St. Michael,
Barbados, Tel: (246) 417-4226
SUMMARY
Under the modern scheme for environmental management, courts assume a sub-
sidiary role in enforcement to administrative agencies. But, a number of new and innova-
tive techniques are available to bolster the role of the courts in environmental protection
including tort, administrative and criminal law along with conflict of law. In addition, courts
play a role in determining the adequacy of quantification of environmental damage. The
article concludes with a discussion of empirical applications including discussion of four
cases.
1 INTRODUCTION courts vis-à-vis that of other agencies, in
ensuring environmental law enforcement
Commentary upon how judges and compliance. At first blush, this appears
view their role in deciding environmental a more fruitful approach because the legis-
cases presents acute problems for the lature is increasing allocating primary
young academic. There is the obvious cau- responsibility for environmental regulation
tion to prudence against presenting a diag- to administrative agencies. In the
nosis of the judicial mind to an audience Caribbean, for example, the modern era of
with real judges in attendance. More cru- environmental law began with the passage
cially, perhaps, there arises the need for to of the framework-type, National Conser-
clarify the sense in which such an exposi- vation and Environmental Protection Act
tion could possibly be meaningful. 1987, of St. Christopher and Nevis. This
The judiciary is, of course, the was followed in rapid succession by the
guardian of the rule of law. Courts routinely Natural Resources Conservation Act 1991
exercise their constitutional prerogative to of Jamaica, the Environmental Protection
interpret and enforce all of the laws of the Act 1992 of Belize, the Environmental
land. The role of the judiciary is to enforce Management Act 1995 of Trinidad and
the law. That is what courts do. In this Tobago, (as replaced by the Environmental
sense, therefore, there can be no special Management Act 2000 ) and the
role for the judiciary in ensuring enforce- Environmental Protection Act 1996 of
ment and compliance with the law in envi- Guyana.
ronmental cases. An essential purpose of this legis-
lation was to overcome the traditional frag-
2 COMPARISON WITH ADMINISTRATIVE mentation in environmental regulation by
BODIES institutionalizing broad-based environmen-
tal management. The basic function of the
A more teleological perspective new administrative body is, in the words of
could allow comment upon the role of the one statute, 'to take such steps as are nec-2 SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
essary for the effective management of the fer. This meant that fidelity to the internal
natural environment so as to ensure the mechanisms and forums established by the
conservation, protection, and sustainable legislature to enable the individual to assert
use of its natural resources’. Discharge of their rights. As the Court went on to say:
this obligation requires the setting of rules "It is clear from a review of the
on what can and cannot be done and the Environmental Protection Act that its pur-
establishing of a coherent system of control pose is not simply to repair damage to the
in which the regulating body sets a frame- environment resulting from human activity,
work for activities on an ongoing basis, with … but primarily to prevent contamination of
a view to conditioning and policing behavior. the … environment. Such a purpose
Typically, regulatory tools include permits, requires rapid and effective means in order
licenses, notices, and cessation orders. to ensure that any necessary action is
Under the modern scheme for taken promptly… In the case at bar, the
environmental management, then, the appellants elected to disregard not only the
courts assume a subsidiary role in enforce- order, but also the appeal mechanism, pre-
ment. Administrative bodies do still have ferring to wait until charges had been laid
recourse to use of the criminal law, but only before asserting their position. … to permit
as a last resort. The criminal law is, after the appellants to collaterally attack the
all, a prime example of remedial control, order at the stage of penal proceedings
with its emphasis on punishing the abuser would encourage conduct contrary to the
of the environment. Administrative regula- Act’s objectives and would tend to under-
tion aims to be preventive by, for example, mine its effectiveness."
stopping pollution before it occurs. The House of Lords made statements to
Individuals do still petition the courts for similar effect in R. v. Wicks in the context of
review of the action of administrative bod- dismissing a collateral challenge to a plan-
ies, but only when the advantages of the ning decision.
informality and the relative lack expense of
addressing concerns to the environmental 3 JUDICIAL PERSPECTIVE IN
tribunals do not produce minimum satisfac- ENVIRONMENTAL LAW
tion. ENFORCEMENT
The complementary role of the
courts has been recognized, perhaps wel- In the end, however, not even the
comed, by the courts themselves. In the judicial concession of exercising a sub-
Canadian case of R. v. Consolidated sidiary and complementary role to that of
Mayburn Mines Ltd. the court made clear administrative agencies resolves our initial
that like court orders, administrative orders dilemma. If the court is consigned the sta-
deserve to be respected and obeyed. It tus of the forum of last resort, its generic
made the point that administrative bodies role in, for example, the interpretation of the
regulate countless activities in society; reg- criminal law or administrative law, does not
ulation that was essential for the protection change merely because the case before it
of individuals and groups in the society and relates to the environment.
for the prevention of harm to societal inter- At the same time, it would be diffi-
ests. The orders and decisions issued by cult to argue, with a straight face, that the
administrative bodies thus form an impor- judicial process is an exercise in syllogistic
tant part of the law. Unless these orders reasoning where the clearly established
and decisions are respected the orderly statutes or precedents are applied to the
functioning of regulatory justice would suf- facts with little or no discretion on the partANDERSON 3
of judges. Even without being a fully sub- evidence of the Court’s preference for com-
scribed member of the Realism School of merce over the environment.
American Jurisprudence, it is clear that Lest any Caribbean judge in atten-
where there are numerous precedents, dance here should be tempted towards a
many conflicting with each other, there is citation for contempt, the present writer
no automatic wrong or right answer to a hastens to add that the perception of lack
legal dispute. There are simply a variety of of judicial zeal towards environmental pro-
answers from which the judge has to tection is not confined to the Caribbean
choose one. In addition to the numerous judiciary. At the international level, persist-
precedents, there are also numerous tech- ent criticism on this score led to the estab-
niques for interpreting those precedents lishment of an Environmental Chamber to
and indeed, statutory enactments. It may the International Court of Justice, staffed by
therefore be unrealistic to expect judges to judges with particular expertise or interest
be machine-like and totally neutral. The in the field. It is therefore somewhat ironic
good faith exercise of best judgment, as that the first ruling of the Chamber in the
assisted by counsel, is all that can reason- Gabcikovo-Nygamaros Project case
ably be asked or expected of the judiciary. (Slovakia and Hungary), between was
It is in this sense, then, i.e., within widely decried by the same critics as huge-
the margin of discretion that the way in ly disappointing for being anti-environment.
which judicial decision-making has been In commenting upon the role of American
exercised that environmental organizations Courts in the Search of Environmental
and environmentalists have sometimes Quality, Professor Joseph Sax of the
expressed concern with the judiciary’s role University of Michigan Law School, wrote in
in ensuring environmental enforcement 1970 that:
and compliance. A perception exists, • Anyone who enters a courtroom with a
whether real or imagined, that many of our conservation case can first expect resist-
judges place a higher value on economic ance from the court itself. The Judge’s
development than environmental protection principal thoughts are almost sure to be,
and that this influences their selection of "Why did you come to me? Why don’t
the final decision from the variety of possi- you take your troubles to the legislature?
bilities that exist. This perception has been What do I know about all this? This is
strengthened by several environmental law not a matter for judicial consideration.
decisions. The anecdotal reports of the What reasons can you possibly give for
undisguised anger of a Trinidad and suggesting that I – a judge – should sub-
Tobago Magistrate when asked to try a stitute my judgment for the expertise of
man for contravention of the Wild Birds an agency whose business it is to make
Protection Act whose only crime was, in the the kinds of decisions you are challeng-
words of the Magistrate, 'trying to feed his ing? Aren't you asking me to serve as a
family.' The fact that the first three attempts super-planning agency? And, in any
by Caribbean nationals to have the courts event, what law was broken by the
review official decisions that, allegedly, defendants?
caused unlawful harm to the environment,
• I am not here to enforce the good, the
were dismissed on the ground that the
true, and the beautiful, to be the fount of
applicants lacked standing. The fact that
ultimate wisdom and social conscience. I
the first judicial comment upon the work-
am here to enforce the law. What rule is
ings of an administrative body established
violated by this highway plan, this dam
under the modern umbrella-type legislation
project, or this proposal to spray elm
was widely cited in the Jamaican Press as
trees with DDT?4 SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
• Finally, the judge will ask, "What damage An important debate, which is
do you charge has been done to you? ongoing, concerns whether these judge-
Where is the broken arm or the broken made rules ought to be developed so that
contract? I am not a prophet who can they are directly concerned to secure envi-
speculate upon the ultimate fate of gulls ronmental protection.
and terns. I redress loss; I do not paint Many of the judges who have considered
the future rosy.' this issue have clearly been reluctant to
Much has changed in the interven- develop tort law in this way. This reluctance
ing three decades since 1970, particularly was exemplified in Boomer v. Atlantic
as we have noticed, on the legislative front, Cement Co., decided in 1970 by the Court
but the impression of a tradition of judicial of Appeals of New York. The Court
insensitivity to environmental concerns per- expressly refused to allow private litigation
sists. At the same time, there has, even in in nuisance to be used as a tool to effect
the view of the most extreme of environ- broad control of air pollution. A case in
mentalists, been a gradual movement, water pollution provided the opportunity for
even if not always in a straight line, towards the House of Lords to made similar indica-
placing greater premium upon environmen- tions. In Cambridge Water Co. Ltd., v.
tal security. Eastern Counties Leather plc the House
In looking at the changing attitude refused to reform the tort of Rylands v.
brought to the weighing process used to Fletcher into a more specific common law
make final decisions on environmental law rule about the control of hazardous sub-
enforcement, it is convenient to consider stances. Lord Goff rationalized this
the branch of law used to enforce the envi- approach on the ground that :
ronmental standards in question. Thus, the • ‘… as a general rule, it is more appropri-
environmental protection regime is ate for strict liability in respect of opera-
enforced through the law of tort, through tions of high risk to be imposed by
the operation of administrative law and Parliament, than by the courts. If such
through the criminal law. liability is imposed by statute, the rele-
vant activities can be identified, and
4 TORT LAW: FROM COMMON LAW those concerned can know where they
PRINCIPLES TO ENVIRONMENTAL stand. Furthermore, statute can where
ACTIONS appropriate lay down precise criteria
establishing the incidence and scope of
The law of tort, such as nuisance such liability. '
law and Rylands v. Fletcher, are essential-
ly aimed at protecting individual rights or 4.2 Standing To Bring Environmental
rights relating to property. The protection Suits
offered to landowners against unreason-
A similar reluctance is evident in
able injury to their land by the action of
the related question of standing to bring
another has obvious environmental impli-
common law actions to vindicate environ-
cations, but was not designed to promote
mental rights. The requirement in most
environmental preservation as we under-
common law actions, to demonstrate some
stand that notion today.
sort of proprietary interest or show special
damage, remains a judicially self-imposed
4.1 Using The Common Law As A
obstacle to environmental actions. After
Mechanism For Environmental
some indications of willingness by the
Protection
English Court of Appeal to relax theANDERSON 5
requirement, the fundamental cautiousness Alcoa Minerals of Jamaica appears to have
returned in the House of Lords decision in allowed a representative action in nuisance
Hunter v. Canary Wharf. The House in respect of polluting emissions from a
returned the law of private nuisance to its bauxite plant.
original position of protecting only property Admittedly, however, nothing in the tenure
rights holders. In the words of Lord of the judgments in Broderick supports the
Hoffman : hope that standing would have been
• "… the development of the common law allowed to individuals whose roof had not
should be rational and coherent. It been corroded by the sulphates from the
should not distort its principles and create plant but who simply wished to halt the pol-
anomalies as an expedient to fill a gap." luting emissions in order to protect the
The basic point, of course, is that atmosphere.
any loosening of the strict requirement for
standing is within the margin of judicial dis- 4.3 Conflict Between Private And
cretion. Reconfiguration of the way in which Public Law
that discretion is exercised may be prof- Another context in which the exer-
itably undertaken, for instance, in relation cise of judicial discretion has import for the
to private suits for public nuisances. The environment is in the circumstance where
well-known rule, derived from Boyce v. there is a conflict between private law and
Paddington Borough Council is that an indi- public regulation, in the sense that an activ-
vidual can only bring suit without the fiat of ity is lawful under one regime but not the
the Attorney General in two circumstances. other.
First where the interference with the public Private law rights can clash with
right is such that some private right of that many regulatory controls, as for example,
person is at the same time interfered with. in the case of the award of waste manage-
Secondly, where no private right is inter- ment licenses. Budden and Albery-Speyer
fered with, but the person, in respect of his v. BP Oil involved a claim in negligence for
pubic right, suffers special damage peculiar alleged injury to children by ingestion of
to himself from the interference with the petrol fumes. The claim was defended by
public right. the two oil companies sued on the basis
This requirement to show special that they had complied with the regulations
damage was interpreted in an interesting prescribing the lead content in petrol. This
way in Chandat v. Reynolds Guyana Mines defense was upheld since to decide for the
Ltd. where farmers claimed remedies in children would be to replace the permissi-
respect of damage to their crops caused by ble standard established by Parliament, in
polluting emissions from the defendant’s favor of a lower, judicially determined stan-
bauxite works. The court found that the pol- dard, by way of litigation under the adver-
lution constituted a public nuisance sary procedure.
because it affected a large number of per- Selection of this consideration for
sons and was widespread in its range and deciding this case on atmospheric pollution
indiscriminate in its effects. However, these may be compared with decisions on water
characteristics warranted action by the pollution. With regard to pollution of water-
community at large rather than individuals, courses, it has always been accepted that
none of whom could claim to have suffered the grant of a license to discharge polluting
any damage, loss, or inconvenience matter, in no way alters the common law
greater in quality than the others. Happily, rights of a riparian owner to sue the dis-
the more recent decision in Broderick v. charger.6 SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Similarly, the grant of planning per- consult with other authorities or the public,
mission may authorize activities that give publish documents, require the environ-
rise to claims in nuisance. In granting a mental impact assessments, are not super-
planning application it must be assumed vised by the legislature. Scrutiny of admin-
that the planning authority has balanced istrative regulation must therefore be
the impact of the development upon private undertaken by the courts, which ensure,
interests (e.g. neighbors) with any compet- through the mechanism of judicial review,
ing public interests and concluded that the that the authorities perform their duties
public interests in allowing the develop- properly.
ment to proceed should prevail. Recent developments in the law
After some hesitation, the courts support the thesis that the way in which
appear to have decided, properly, it is sub- judicial discretion is exercised to interpret
mitted, that planning approval does not legal standards is directly proportional to
foreclose upon the separate question of the the usefulness of judicial review as a mech-
right to proceed in nuisance law. The con- anism for environmental protection. A par-
troversial ruling of Buckley J. in Gillingham ticularly vexing issue concerns the judicial
Borough Council v. Medway (Chatham) interpretation of the standard applicable to
Dock Co. Ltd raised concerns that any the question of standing to seek judicial
activities engaged in under a planning per- review.
mission could not lead to liability in nui-
sance. More recent decisions, however, 5.1 The Standing Requirement
seem to have narrowed the effect of the In order to have standing to bring
judgment considerably. In Wheeler v. JJ an action for review, the applicant must
Saunders Ltd the view was taken that plan- demonstrate that he or she possesses a
ning permission does not act as a defense "sufficient interest" in the matter to which
to a claim in nuisance; rather Buckley J’s the application relates. Until recently the
decision went to the heart of the definition courts over the common law world all
of a nuisance, and the locality doctrine in adopted a restrictive interpretation to the
particular. The question was whether the standing requirement. They ruled in a num-
development pursuant to the grant of plan- ber of cases that environmental pressure
ning permission had so changed the nature groups or public-spirited individuals did not
of the area that what would have been a satisfy the Boyce v. Paddington Borough
nuisance before the development could not Council test so as to obtain review. For
be considered so now. example, in R. v. Secretary of State for the
Environment ex p. Rose Theatre Trust, an
5 ADMINISTRATIVE LAW: JUDICIAL interest group specifically formed to defend
REVIEW OF ENVIRONMENTAL the remains of an Elizabethan theatre, was
REGULATION refused standing. It was held that, as indi-
viduals, none of the group had any special
The heavy reliance placed on interest in the matter over and beyond the
'framework' legislation, fleshed out by guid- general interest of the public. The case
ance, regulations and decisions of the resulted in a great deal of criticism and was
enforcing authorities means that many of a blow to the notion of environmental litiga-
the everyday rules of environmental protec- tion in the public interest. Among other
tion are made without the scrutiny of parlia- things, Rose Theatre Trust appeared
ment. Similarly, statutory requirements, unconcerned, or at least not overwhelmed
such as that the environmental agencies by the probability that no one could sue inANDERSON 7
such a situation thereby leaving the deci- ter and that joining themselves into a com-
sion of the Government agency beyond pany created no better right than they
possibility of rebuke. enjoyed as individuals.
Finally, Spencer v. Attorney-
5.2 Caribbean Trilogy General of Antigua and Barbuda et al
A similar criticism may be leveled (Spencer No. 2), decided in April 1998,
against the first three Caribbean attempts rejected an application from Mr. Spencer
to seek judicial review of environmental for a declaration that the agreement
decision-making. The trilogy began in between the Government and a private
March 1993 with Spencer v. Canzone Del developer for a tourist development on
Mare and the Attorney General of Antigua Guiana Island was unconstitutional. One
and Barbuda (Spencer No. 1). The appli- ground advanced by applicant was that the
cant was a Member of Parliament of proposed development was harmful to the
Antigua and Barbuda and Leader of the ecology and was contrary to common law
Opposition. He alleged that the Acting principles that protect the environment. At
Chief Town Planner, acting on behalf of the first instance, Saunders, J. found that the
Land Development Control Authority, had applicant had standing but rejected his
ordered the defendants to halt all develop- arguments on the merits. This decision on
ment activities at its Coconut Hall site standing was overturned on appeal. In the
because the work there was environmen- view of the Appellate Court, the applicant
tally unfriendly and required an environ- had failed the constitutional requirement
mental impact assessment, which had not that he should have "a relevant interest" in
been done. It was further alleged that the order to be granted standing.
Prime Minister had improperly written to the Admittedly, there are important dif-
developer allowing the continuation of con- ferences between applications by genuine
struction. The application for declaratory environmental organizations or pressure
orders and an injunction was dismissed on groups to seek judicial review and applica-
the ground that the plaintiff lacked standing tions by professional politicians who may
because he had not shown ‘sufficient inter- have other axes to grind. The Court clearly
est’ in the matter to be litigated. has an interest in not becoming a forum for
In June and August 1996, the High Court of political debate, particularly in circum-
Barbados considered the standing issue in stances where the applicant has access to
Scotland District Association Inc. v. Parliament.
Attorney General et al. The applicant was a However, the broader problem
recently formed corporation whose objec- concerns interpretation of the ‘sufficient
tive was to foster and promote the preser- interest’ criterion. Parliament was not a
vation and improvement of the ecologically possible venue to the applicants in the
sensitive Scotland District. Its application Scotland District case but they were
for a declaration that the decision of gov- nonetheless deemed not to have sufficient
ernment to site a sanitary landfill for the interest. This was despite the fact that
deposit of waste materials and refuse in the Barbados has special legislation in the form
Scotland District was unlawful was reject- of the Administration of Justice Act 1980,
ed. Although there was not much discus- which specifically allows for litigation in the
sion of the locus standi point, the Court public interest. Indeed, even more recent
appears to have agreed with the defen- decisions have continued the now
dants’ argument that members of the asso- ingrained tradition of a restrictive approach
ciation had no individual interest in the mat- to standing, requiring, virtually, that the8 SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
applicants possess a property interest in It is not being contended that judi-
the subject matter of the litigation as a con- cial review will necessarily ensure sound
dition precedent for standing. On the other environmental management and conse-
hand, the Cayman Islands courts have very quent elimination of risks to environmental
recently pronounced upon the standing security. Even if the recent more liberal
requirement in the context of planning leg- approach to standing was adopted in the
islation in a way that should give hope to Caribbean, there would still remain clear
the green constituency. limitations to what judicial review could
achieve. As Thorton and Beckwith state, in
5.3 Should the Boyce Test Apply? judicial review actions, the role of the court
Whether the Boyce v. Paddington is confined to ensuring that public authori-
Borough Council test, developed in the ties perform their functions properly. The
context of a private action for public nui- court cannot substitute its own views on the
sance, is appropriate to determine standing merits of a decision for the views of a pub-
for judicial review of environmental deci- lic authority.
sion-making, seems debatable. It appears The institutional constraints on the
entirely reasonable that in nuisance, where court means that it cannot hope to have
the plaintiff is attempting to recover com- access to the same information. The impor-
pensation or to halt damage to an interest tance of the recent trend in liberalizing the
in land, that special loss should be the standing requirement is that the courts
measure of compensation and of whether themselves are enabled to perform their
an injunction is appropriate. But in situa- role of keeping administrative bodies within
tions where the applicant sues to ensure the limits of the powers assigned. Easier
sound environmental management, the access also comports with international
paramount concern is the vindication of the admonitions, found in Principle 10 of the
public interest. This is reflected in the fact 1992 Rio Declaration, that governments
that the remedy sought tends to be one of should provide ‘effective access to judicial
the prerogative remedies rather than an proceedings’ for litigation of environmental
award of damages. From this it would seem issues.
to follow that the criterion of standing based
on special loss and injury might not neces- 6 THE CRIMINAL LAW
sarily be appropriate to review actions.
The latter considerations appear to Far from being the epitome of
have led to the relaxation of the standing ‘black-letter law, the criminal law provides
requirement in some non-Caribbean juris- many opportunities for the exercise of judi-
dictions, notably, United Kingdom (R. v. cial discretion in ensuring minimum condi-
Pollution Inspectorate, ex p. Greenpeace tions of environmental integrity.
(No. 2), ; R. v. Secretary of State for
Foreign Affairs, ex p World Development 6.1 Establishing Violation
Movement. ) and the United States (Sierra For example, the exercise of dis-
Club v. Morton; United States v. Students cretionary judgment may be critical in rela-
Challenging Regulatory Agency tion to determination of violations. The
Procedures (SCRAP)). weight that a judge places on environmen-
tal protection influences that judge’s deci-
5.4 Relationship Between Judicial sion of such issues as interpretation of
Review And Environmental criminal statutes, the need to prove mens
Management rea, as was so startling demonstrated inANDERSON 9
Federal Steam Navigation Co. Ltd. v. tence is virtually unheard of. A recent
Department of Trade and Industry ('or' Magisterial decision in Barbados made
meant 'and'). headline news as the first time that anyone
Determination of whether a had been convicted for illegal dumping.
defense has been made out could also The sentence was a reprimand and dis-
involve direct judicial decision on the charge.
weight to be placed upon environmental In accordance with increasing
preservation. Under the Clean Air Act 1964 trend of placing greater judicial weight upon
of Jamaica, for example, it is a defense to environmental protection, sentencing policy
prove the use of ‘best practicable means’ to might benefit from review.
prevent emissions from industrial works.
‘Best practicable means’ is expressly 6.2.1 Fines
defined to require consideration of local Where relevant evidence is avail-
conditions and circumstances, financial able, from the administrative body or else-
implications, and the current state of tech- where, the size of the fine might be linked to
nical knowledge. The ultimate decision, the extent of environmental harm. Already,
then, will involve arbitration of the appropri- recent statutes have markedly increased
ate balance to be struck between econom- the maximum fines that may be imposed;
ic and environmental factors. The judge is under the Coastal Zone Management Act
thereby legislatively drawn into deciding 1998 of Barbados, the equivalent of
upon the economy vs. environment debate. US$200,000 might be inflicted.
6.2 Penalties 6.2.2 Imprisonment
Another obvious example of wiggle Traditionally, imprisonment was not
room for the exercise of judicial discretion imposed for environmental offences
arises in relation to the determination of because such offences were thought not to
appropriate penalties, given that there are be crimes in the strict sense of the word.
no mandatory sentences for environmental Environmental offences were considered
offences. A recurrent criticism of Caribbean morally ambiguous because the activity
environmental law has been that the penal- causing the offence was often undertaken
ties for infractions are not severe enough to pursuant to socially productive activities
serve any deterrent effect. When fines that employ persons and contributed to the
were legislated in the early environmental national economy. The social utility of the
statutes, no consideration appears to have activity made courts reluctant to impose
been given to factors such as cost recov- sentences of imprisonment.
ery, market value, or environmental rehabil- This attitude remains and imprison-
itation. Nor were mechanisms included for ment is, rightly - many commentators would
upward revision in the context of increased agree - reserved for the most egregious of
scientific appreciation of environmental environmental offences or where the
harm or (more dramatically in some coun- accused acted willfully in contempt of court.
tries) fluctuations in currency valuations. So, in The Barbuda Council v. The
These are matters that a judge can Attorney-General (Antigua & Barbuda) et
do little about. But there has been the fur- al, the court imposed a sentence of impris-
ther observation that first offences normally onment on a Minister of Government who
attract the most minimal fine possible, and had authorized mining of sand in defiance
although available under most environmen- of injunction imposed by the Court. The
tal legislation, imposition of a custodial sen- Minister escaped having to do the jail time10 SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
compliments of a pardon by the Governor on the existence of healthy mangroves, the
General at the instance of the Prime islanders take a decision to destroy them in
Minister. order to construct harbors, marinas, tourist
resorts, or even to harvest the mangrove
6.2.3 Alternative Sentences forest for fuel as has been proposed in
Increasingly, modern environmen- some countries. The consequence may well
tal legislation gives courts alternative sen- be a ruined shrimp industry."
tencing options. In addition to fines and/or In November 1989 the Caribbean
sentence of imprisonment, the court is Conservation Association organized a
expressly empowered under the Caribbean Conference on Ecology and
Environmental Protection Act 1992 of Economics in Barbados. The Conference
Belize Act, for instance: viewed the absence of environmental
ß To direct the offender to publish the facts resources from economic calculations as a
relating to the conviction. case of market failure. It endorsed the need
ß To direct the offender to perform commu- for action at the policy-making level. It was
nity service. agreed that the state should take steps to
These kinds of sentencing alterna- reflect environmental costs and benefits in its
tives have been used to good effect in other macro- and micro-economic interventions.
jurisdictions. For example, in Canada, envi-
ronmental offenders have been ordered to 7.2 Jurisprudence of Ecological
issue verbal apologies, publish newspaper Valuation
apologies, write books and dissertations 7.2.1 Criminal Sanctions
relating to their bad environmental conduct, Caribbean environmental regula-
and (most importantly for my students) fund tion relies overwhelmingly on "command
environmental scholarships. My students and control" strategies, and primarily the
have consistently argued the point that that use of criminal sanctions. Statutorily pre-
it is not apparent that these sentencing scribed deterrents are normally of a finan-
options could not be utilized even without cial nature but these financial penalties are
express statutory authorization. not generally quantified so as to reflect the
actual loss to the environment. Most
7 ADEQUACY OF QUANTIFICATION OF statutes merely stated the fines to be paid
ENVIRONMENTAL DAMAGES for offences without attempting to place a
precise value on harm inflicted on the envi-
7.1 Introduction ronment or the cost of environmental reha-
For many decades the issue of bilitation.
adequate quantification of environmental a. Levels of Fines
damages was largely ignored in Caribbean A recurrent criticism of Caribbean
jurisprudence. As late as 1983 the United environmental law has been that the levels
Nations Environment Programme (UNEP) of fines that may be imposed for environ-
Study of Caribbean environmental practices mental infractions are much too low to
noted that the interconnectivity of ecological serve any deterrent effect. When the early
assets were not always appreciated in eco- environmental statutes were drafted no
nomic calculations. UNEP gave the follow- serious consideration was given to factors
ing example of an island endowed with such as cost recovery, market value, envi-
extensive mangrove swamps and which, as ronmental rehabilitation. Nor were mecha-
a consequence has a shrimp fishery: nisms included for upward revision in the
"Unaware that the shrimp fisheries depends context of inflation, fluctuations in currencyANDERSON 11
valuations or increased scientific apprecia- ation by the Court is legislated in terms of
tion of environmental harm; circumstances the "full market value" of the environmental
that have attended Guyana, Jamaica, and damage. An alternative formulation
Trinidad and Tobago, among other jurisdic- empowers the Court to impose "additional
tions. Additionally, first offences normally fines" to reflect any monetary benefits
attract the minimum fine possible. These accruing to the offender in consequence of
deficiencies continue to afflict modern man- the commission of the offence. Such fines
agement frameworks and there continues are in addition to "the maximum amount of
to be significant differences in the quantum any fine that may otherwise be imposed".
of fines for the same environmental Yet another formula allows fine of "three
offences as among the different island times the assessed value of the damage
states. Failure to impose penalties reflec- caused."
tive of environmental damage has had neg-
ative implications for the rule of law with the 7.2.2 Civil Liability
emergence of "continuous offences" a. Common Law Actions
whereby fines imposed following success-
Nuisance is the common law tort
ful prosecutions have been paid but the
most applicable to environmental harm but
offence continues unabated. Environ-
the torts of negligence, trespass, and
mental agencies are forced to resume the
Rylands v. Fletcher may also be applicable.
lengthy, expensive, and scientifically and
Caribbean courts adhere to and faithfully
psychologically challenging process of
apply common law principles that guaran-
prosecution whilst environmental damage
tee a plaintiff "full" redress from the defen-
is prolonged in the interim, often to an
dant whose liability is established. The
irreparable degree.
compensation should be "as nearly equiva-
b. Linking Fines To Environmental lent as money can be to the plaintiff's loss.
Damage However, although stated in these wide
The most recent legislative terms, the traditional interpretation has
response to the conundrum of sanctions for restricted the categories of recoverable
environmental offences has been signifi- loss to injuries to the plaintiff's person and
cant upward revisions of the levels of fines his property, and have not included not
. Prosecutors may offer recommendations ecological harm.
with regard to appropriate financial penal- b. Statutory Cause Of Civil Action
ties and it has been canvassed that such
Civil recovery for environmental
recommendations be based upon the
damage may be grounded in statutory pro-
nature and extent of injury caused to the
visions and a statutory cause of civil action
environment. In specific instances legisla-
enjoys an important advantage over com-
tion itself has sought to link the quantum of
mon law actions. The nature and quantum
financial penalty to the magnitude of envi-
of recovery for environmental injuries are a
ronmental harm, albeit in the crudest of
function of the statutory provisions rather
terms. In order to further reduce the eco-
than interpretation of traditional common
nomic incentive of using the environment
law principles and may therefore include
as a free good criminal Courts are increas-
non-traditional valuation of harm to ecolog-
ingly empowered to hold the offender liable
ical resources.
to the Crown for the value of "property
Myriad examples of statutory caus-
removed or of damage done" to flora and
es of action in environmental litigation
fauna. This is additional to any other penal-
abound. There are provisions for civil liabil-
ty for which the offender is liable. The valu-12 SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
ity in respect of acts of pollution and abuse 7.2.3 Administrative Assessment
of natural resources in contravention of the The imposition of administrative
provisions of general environmental legis- assessment is often a preferable alterna-
lation instituting comprehensive environ- tive to both the criminal process and the
mental management regimes. Legislation imposition of administrative penalties. As
on extraction of petroleum from the conti- we have seen, environmental agencies in
nental shelf expressly provides that any many jurisdictions have used powers of
resulting pollution causing loss, damage or permitting and licensing to achieve broadly
injury gives rise to the "absolute liability" of similar objectives. Only in Trinidad and
the operator licensee or lessee. There are Tobago, however, is there express statuto-
numerous opportunities for civil action ry power to impose administrative assess-
against the state in respect of harm done to ment for conduct causing environmental
the environment within the boundaries of harm. Here administrative civil assess-
private property in consequence of state ments may be made directly by the
action, even if such action was intended to Environmental Management Authority
protect the environment. And statutory (EMA) or the Environmental Commission
incorporation of the International (EC) as part and parcel of the wider regime
Convention on Civil Liability For Oil for compliance and enforcement. The
Pollution Damage 1992 and the companion assessments follow the service of an
International Convention on the Administrative Order, which specifies the
Establishment of An International Fund For details of the environmental offence. The
Compensation for Oil Pollution Damage Order may direct remedial work, investiga-
1992 allow for recovery of "any damage" tions and monitoring work to be undertaken
suffered as a result of an oil spillage. by the person responsible for the violation.
Whether Caribbean courts will take the The assessment may take account of com-
statutory provisions at face value and pensation for costs incurred by the
import recovery for pure ecological harm is Authority to respond to environmental con-
anybody’s guess. ditions created by the violation of environ-
c. Civil Awards In Criminal Proceedings mental rules, and compensation for dam-
Before leaving the possibilities of ages to the environment associated with
civil awards, note should be taken that public lands. The assessment may also
many environmental statutes allow the judi- take account of any economic benefit or
cial award of compensatory damages in amount saved by a person through failure
criminal proceedings. Under the to comply with applicable environmental
Environmental Protection Act 1992 of requirements. In determining this benefit
Belize, where an offender has been con- account shall be taken of the nature, cir-
victed of an offence under the Act, the cumstances and gravity of the violation;
Court may, at the time of passing sentence any history of prior violations and any good
and application of the person aggrieved, faith efforts to co-operate with the Authority.
order the offender to pay compensatory
damages to that person. The amount 7.2.4 Economic Instruments
awarded is by way of satisfaction or com- Economic instruments are increas-
pensation for loss of or damage to property ingly being used to discourage bad envi-
suffered by the applicant as a result of the ronmental conduct and to reward environ-
commission of the environmental offence. mentally friendly behavior by internalizing
the environmental cost of environment-
related practices. The theory is that con-ANDERSON 13
sumer choices in the market place will then polluting discharges within or below speci-
penalize bad environmental processes and fied ranges. Environmental management
reward more cost-efficient environmental legislation frequently specifies the obliga-
processes. Although cogent criticisms have tion to develop emission standards and cri-
been made of the applicability of market teria. Standards have been established to
concepts in developing countries, deal with sewerage and trade wastes, as
Caribbean states have embraced them well as for ambient water and air pollution.
warmly. Environmental agencies have Noise emission standards are also being
been specifically obligated to make use of developed. Product charges provide an
current principles of environmental man- incentive or disincentive for a better or
agement, including the "polluter pays" prin- worse environment product and their impo-
ciple; the polluter should bear the cost of sition is mandated where the product man-
the measures to reduce pollution to ensure ufacturing process or usage is a significant
that the environment is in an acceptable source of pollution.
state . The principle also requires the pol-
luter to compensate citizens for the harm 7.2.6 User Fees
they suffer from pollution. Agencies have User fees are normally imposed to
been encouraged to seek to incorporate recover the cost of providing a service.
imposition of product charges where the Typically fees are charged for collection of
product manufacturing process or usage is garbage , visit to parks, forests, and spe-
a significant source of pollution. Also to be cially protected areas, harvesting of marine
encouraged are adjustments of direct gov- and other resources, or viewing wild ani-
ernment subsidies, or establishment of tax mals and endangered species, such as
differentiation or tax incentives, to encour- whale watching; or on cruise ship tourists.
age beneficial environmental activities or to No general attempt is made to link the use
ensure that pricing reflects environmental fee to any intrinsic value of the resource;
costs more adequately. more surprising is the failure even to
The economic instruments used in charge what the market is willing to pay.
the Caribbean contexts are many and var-
ied. They include emission/effluent/pollu- 7.2.7 Deposit Return Schemes
tion charges or taxes; user fees; product
These schemes provide, on the
charges; deposit return schemes; adminis-
purchase of a product, for a charge for the
tration charges; subsidies; tradable per-
packaging or product, which if returned,
mits.
results in the refund of the charge. The
region has a very good history of deposit
7.2.5 Emission/Effluent/Pollution
return schemes for glass beverage bottles.
Charges Or Taxes/Product Charges
Institution of legislative arrangement for the
These are essentially charges to return of plastic "PET’ have not worked as
use the environment and a direct applica- well. In some jurisdictions this measure
tion of the polluter pays principle. The was reflective of protection of local indus-
charge is proportional to the level of pollu- tries from foreign competition rather than
tion discharged that is likely to result in any desire for waste management. A con-
intolerable harm to the environment. The sequence was the lack of incentives to
development of emission standard is there- facilitate packaging and preparation of
fore fundamental to the process; the returned PET bottles for recycling. This
charge may be formulated on a sliding resulted in the bottles being disposed of by
scale to reflect an incentive to decrease retailers in landfills at a cost to society and14 SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
the environment. An important objective of mitigate the economic impact of environ-
policy-makers is to expand this incentive mental regulation. In the latter context, the
framework to achieve broader waste man- individuals, and corporations to meet com-
agement objective through recycling and pliance costs. At various times subsidies
reuse of such products as tires, plastic have been given on installation of solar
bags, batteries, and cars. heaters and gasoline. Regulators are statu-
torily urged to incorporate use of subsidies
7.2.8 Refundable Bond System to encourage beneficial environmental
This system provides for the col- activities.
lection of a financial sum as security
against activity which could cause special 7.2.11 Tradable Permits/Market Creation
environmental injury; the money being A suitable regulatory framework
refundable on proof that the activity in may cause creation of a market for owner-
question was carried out in an environmen- ship of environmental ‘rights’. Tradable pol-
tally acceptable manner. The scheme has lution permits is the classical example o
particular application to environmental con- such a market. Regulators issue certain
ditions imposed for conducting develop- number of permits which (based on agreed
mental projects where the regulators have emission standards and criteria) contain
been determining bonds based on a per- pollution within acceptable limits. Producers
centage of the capital value of the project in who keep their emission below their allotted
the absence of any method of assessing threshold may sell or lease their surplus
the value of vegetation, reefs, and other permits to other producers. This can lead to
environmental assets at risk. Bonds may the trading of these commodities on the
also be used to induce satisfactory waste stock market.
management practices. The integrity of the system is heav-
ily dependent upon calculations of the net
7.2.9 Administrative Charges emission from each permit holder, a rather
This charge, often in the form of a elaborate science and inspection and mon-
non-refundable fee, effects cost recovery in itoring. Legislative initiatives have called for
respect of expenditure associated with the establishment of the infrastructure that
management functions. Among existing would allow creation of markets in tradable
charges are those intended to pay for the permits. Requirements for development of
administration and enforcement of the per- emission standards, award of permits and
mit and licensing system. Administrative monitoring and compliance have been
charges are widely employed where costs made and comprise the basic market
are incurred in taking remedial action where requirements. As a rule these are not yet in
offender fails to act – recovery allowed often place. Further, there is no legislative treat-
as a civil debt. The notion also has applica- ment with the question whether a permit or
tion where individual benefits from environ- license is transferable. Nor is there any indi-
mental protection or improvement work and cation that the total quantities of emission
in the planning context. over a stated period of time have been esti-
mated to reflect acceptable ambient condi-
7.2.10 Subsidies tions. nor with the central question whether
the permit or license is transferable.
A subsidy may take the form of a
The principle of prescription pro-
grant, loan, or tax incentive. Essentially it is
vides a common law notion with implica-
some form of financial reward offered by
tions for market creation in tradable per-
regulators to encourage pollution control orANDERSON 15
mits. Under the common law a polluter devise techniques and methods of arriving
may, after a minimum period of prescrip- at the total use and non-use value of the
tion, provided other stringent conditions are natural ecosystem. Use values represent
satisfied, acquire a right to continue with a the value of outputs or services that the
polluting activity. This right would appear to ecosystem provides and may be direct, for
be transferable in similarity with kindred example where a coral reef directly pro-
property rights such as easements and vides for tourism, recreation, a fishing
profits. economy, tourist facilities, mariculture,
pharmaceuticals, genetic material, aquari-
8 EMPIRICAL APPLICATIONS um and curio trade. Indirect use value may
be provided as, for example, where a coral
What emerges to this point is the reef provides physical protection from
picture of a region coming to terms with the storms, acts as a store of carbon and as a
new art of integrating ecological valuation habitat for marine life. Non-use values
into its legal and regulatory systems. relate to those values not usually market as
However, theory is one thing and practice goods, such as the value placed upon an
another. Although many and varied oppor- environment free from air and noise pollu-
tunities exist to use innovative techniques tion or the ecology of a swampland. The
to compute environment al values, empiri- absence of a market in these services has
cal applications are rather disappointing. led to the development of at least three
There is still a predominance of the tradi- innovative techniques for their valuation.
tional notions of the ecosystem as public Option value is the value placed on the
goods 'at large'. Not only are such goods environment in its present state, to keep it
'free' in the economic sense that they are for use in the future. Existence or contin-
not perceived to have any market value; gency value is the value an individual
natural resources are also 'free' in the places on an environmental good to just
sense of being outside the traditional cate- know that it still exists, for example, the
gories of property rights and interests. value placed on saving endangered
There is no known case of the Crown leatherback turtles. Bequest value is the
asserting common law rights for loss to the value placed by an individual on an envi-
biosphere, as distinct from clean-up costs ronmental good for future generations.
and related expenditure. For example, the These contradictory forces in
authorities are curiously silent concerning Caribbean treatment of the valuation of
whether, in an action for public nuisance, environmental harm are evident in several
the Attorney General may recover dam- recent incidents. For present purposes
ages for environmental degradation as dis- these incidents are described under the fol-
tinct from an injunction to enforce discon- lowing titles — (a) the M/V Star II Limassol
tinuance and recovery of associated incident; (b) the Beef Island valuation; and
administrative expenses. (c) the Nariva swamp assessment; and (d)
At the same time the traditional the Broderick case.
perspective must now be juxtaposed with
modern notions concerning with the total 8.1 The M/V Star II Limassol Incident.
value of an ecosystem or environmental M/V Star II Limassol provides an
‘good’. The objective is not to place an esti- example of the disjuncture between inflic-
mate upon the intrinsic value, a rather neb- tion of environmental damage and recovery
ulous concept that some consider objec- of economic compensation. On 8th April,
tionable on philosophical grounds, but to 1998 the Star II Limassol ran aground at16 SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Holland Bay in the parish of Saint Thomas, intrusion. There were concerns that the
Jamaica. The ship owners and salvagers developmental paradigm posed significant
sought and obtained permission to drop threats to the integrity of the fragile ecology
cargo in order to raise the vessel, which of the BVI in general and Beef Island in par-
was then anchored in the waters of the ticular. An additional complication arose
Kingston Harbor. Whilst in the Harbor, large from the fact that government policies and
quantities of sugar and other noxious sub- initiatives by the European Union and the
stances containing a high concentration of Ramsar Secretariat were underway to con-
amphetamine was discharged from the sider Beef Islands wetlands for inclusion in
vessel. The pollutants caused a massive the list of "Wetlands of International signifi-
kill of aquatic animal life and a loud public cance." The OECS/NRMU, acting in con-
outcry followed. Jamaica's NRCA exer- junction with the BVI and the EU, commis-
cised its statutory power to "investigate the sioned a valuation of the total economic
effect of any activity that causes or might value of Beef Islands’ ecological services
cause pollution or that involves or might so that the economic value of environmen-
involve waste management or disposal and tal costs/benefits could be factored into the
take such action as it thinks appropriate." development equation. The study would
The investigation considered the facts of thereby foster "sustainable development".
what had occurred, the quantities and The consultant reported in April 1998 and
nature of the pollutants that had been dis- provided detailed economic ranking of a
charged, their effect upon the marine ecol- fixed set of components, functions and
ogy and the number of fishers affected. attributes of Beef Island wetlands in accor-
However, the NRCA Statement of Claim dance with guidelines in the Ramsar
merely detailed particulars of expenditure Protocols. Separate Tables ranked these
on the investigation and contained the wetland characteristics in relation to Beef
standard incantation of claim for general Island ponds, lagoons, mangroves, coral
damages, costs, and "any other relief reefs, and sea grass. The ranking ranged
deemed just by this Honorable Court." among low (L), medium (M), high (H). The
There was no attempt at valuation of eco- consultant wisely cautioned the need for
logical damage to the Saint Thomas coast- adoption of a precautionary approach to
line or in the Kingston Harbor. NRCA offi- consideration of development options since
cials were deterred by the "sheer novelty" there remained considerable ignorance of
of the notion that Government could claim the potential costs and benefits of wetland
for damage to the marine and coastal use or conversion, nor of their probabili-
ecosystem. They repeated assumed com- ties." Accordingly, adoption was urged of at
mon law notions that fish in the sea were, worst a "Safe Minimum Standard" (SMS)
res nullius until reduced into captivity by decision when considering conversion of
Government or fishers and therefore value- unique wetland resources "as long as the
less at the time of their contamination . cost of doing so is not intolerably high." On
the other hand, the lack of specificity in the
8.2 The Beef Island Valuation rankings in, for example, monetary terms,
The rapid economic growth of the and the failure to consider indigenous eco-
British Virgin Islands during the 1980s led logical characteristics other than those doc-
to concern for the islands’ environmental umented in the Ramsar Protocols were lim-
infrastructure given that proposed develop- itations to practical integration into the BVI
mental projects bore major implications for planning process.
potential terrestrial, coastal and marineYou can also read
