How should environmental protection law be enforced?

The European Commission's draft directive last week proposing to criminalise breaches of environmental protection law has been received with scepticism by environmental lawyers.

'Criminal law is already widely used as a tool to enforce environmental obligations in the UK,' said Simon Payne, head of Plymouth Law School and an environmental law specialist, 'but the penalty levels are predicated around concepts of intent and serious negligence, whereas most environmental law crime in the UK is based on strict liability, with sentencing merely reflecting the underlying state of mind.'

Payne suggested that criminal sanctions should be combined with the approach advocated by Professor Richard Macrory in his November 2006 report, 'Regulatory Justice: Making Sanctions Effective', where administrative penalties would be applied to less serious offences, and criminal sanctions reserved for more serious matters.

Michael Woods, head of the environment group at Stephenson Harwood, also endorsed a 'pyramid of enforcement', as suggested in the Macrory report, ranging from informal warnings to prosecution. 'Civil penalties can be more effective: you can force the closure of a plant with an enforcement notice. With criminal penalties, even assuming the prosecution is successful, the fines are paltry.'

A compelling reason supporting civil penalties, according to Woods, is that they are geared towards remedying the damage caused. 'If an oil spill damages the habitat of protected turtles, the company responsible can be ordered to find alternative sites, which is what effective environmental regulation is about.'