Environmental law enforcement: the role of the judiciary

 
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 part
ANDERSON       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 the
ANDERSON      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 in
ANDERSON      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 the
8                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 in
ANDERSON      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 time
10               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 currency
ANDERSON      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 and
14                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 or
ANDERSON      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 at
16               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 marine
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