tag:theconversation.com,2011:/us/topics/environmental-crime-31548/articlesenvironmental crime – The Conversation2023-02-07T06:14:55Ztag:theconversation.com,2011:article/1989142023-02-07T06:14:55Z2023-02-07T06:14:55ZWaste crime: how online advertising platforms are facilitating illegal dumping<figure><img src="https://images.theconversation.com/files/507922/original/file-20230202-5680-n9aks9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/garbage-truck-unloads-rubbish-landfill-waste-2077376896">Maksim Safaniuk</a></span></figcaption></figure><p>The new BBC podcast, <a href="https://www.bbc.co.uk/programmes/m001hf1w">Buried</a>, by investigative journalists Dan Ashby and Lucy Taylor, is a compelling look at how criminals are infiltrating the UK waste disposal system. It opens with a tape recording by a trucker, on his deathbed. He tells the story of one of the worst environmental crimes in UK history – the illegal dumping of a million tonnes of waste near Derry in Northern Ireland.</p>
<p>While the extent of the offences on the Mobuoy Road site were discovered in 2012, bringing those responsible to justice has taken over a decade. Two people were finally <a href="https://www.belfasttelegraph.co.uk/news/courts/the-missed-opportunities-to-uncover-northern-irelands-largest-ever-illegal-dump/42158762.html">sentenced</a> at Laganside Court in Belfast in November 2022. </p>
<p>James Bevan, the head of the UK government’s Environment Agency (EA), <a href="https://www.theguardian.com/environment/2016/sep/22/ea-chief-waste-is-the-new-narcotics">has labelled</a> illegal waste dumping the “new narcotics”. In England, about three <a href="https://theconversation.com/the-eye-in-the-sky-that-can-spot-illegal-rubbish-dumps-from-space-98395">unlicenced waste sites</a> are detected every day by the EA. Local authorities deal with over one million fly-tipping incidents every year. The Buried podcast asks why so much of our waste is being disposed of in illegal ways and who exactly is responsible. </p>
<p>Cheap and easy waste disposal is <a href="https://theconversation.com/waste-crime-the-multi-million-pound-swindle-33622">big business</a>. <a href="https://www.materialfocus.org.uk/report-and-research/an-independent-study-fly-tipping-unregistered-waste-carriers-england/">Research</a> that I have led highlights the central role played by online platforms, which allow unregistered companies to advertise their waste disposal services, without scrutiny. </p>
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<img alt="A private rubbish truck on the street, viewed from the back." src="https://images.theconversation.com/files/507927/original/file-20230202-7395-v8th9u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/507927/original/file-20230202-7395-v8th9u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/507927/original/file-20230202-7395-v8th9u.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/507927/original/file-20230202-7395-v8th9u.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/507927/original/file-20230202-7395-v8th9u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/507927/original/file-20230202-7395-v8th9u.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/507927/original/file-20230202-7395-v8th9u.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Private waste handlers have to be registered with the government.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/04112021-portsmouth-hampshire-uk-rubbish-collection-1954213537">Gary L Hider</a></span>
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<h2>Unregistered waste handlers</h2>
<p>In 2022, a <a href="https://sciencesearch.defra.gov.uk/ProjectDetails?ProjectID=20941&FromSearch=Y&Publisher=1&SearchText=ev04101&SortString=ProjectCode&SortOrder=Asc&Paging=10">study</a> I worked on for the Department for Environment, Food and Rural Affairs (Defra) examined how the general public and businesses dispose of unwanted waste in England. Several methods were identified. These included giving waste to scrap metal merchants (17% public / 21% business), hiring a skip (13% public / 20% business), and paying for a man-and-van company (9% public / 16% business). </p>
<p>On the face of it, these methods don’t seem unusual or problematic. Most people using these services were confident that their items had been disposed of correctly. However, many people had paid in cash and didn’t receive a receipt. Many were unaware that anyone who transports waste in the course of their business has to be registered with the government (43%). They also didn’t know that if you use these services, you are legally supposed to check whether the company is registered or not. </p>
<p>In 2021, my colleagues and I conducted <a href="https://www.materialfocus.org.uk/report-and-research/an-independent-study-fly-tipping-unregistered-waste-carriers-england/">a study</a> for the UK-based independent non-profit organisation, Material Focus, which found that nearly two-thirds (63%) of businesses offering to handle waste in England appeared to be unregistered. Evasion rates for comparative sectors, including <a href="https://commonslibrary.parliament.uk/research-briefings/cbp-8101/">television licences</a>, <a href="https://www.gov.uk/government/statistics/vehicle-excise-duty-evasion-statistics-2021">car tax</a>, <a href="https://questions-statements.parliament.uk/written-questions/detail/2020-08-28/82609">fishing rod licences</a> or <a href="https://www.gov.uk/government/statistics/fraud-and-error-in-the-benefit-system-financial-year-2021-to-2022-estimates">benefit applications</a>, usually fall between 1% and 8%. This makes the waste sector the biggest culprit, by far, of evasion and market failure in the UK.</p>
<p>Being unregistered means companies will probably obtain an unfair benefit over those in the registered sector because they are not paying disposal taxes. And since they are not allowed to use licensed disposal sites, they are also more likely to dispose of waste illegally. </p>
<p>In England, 86% of the man-and-van sector appears to be operating without registration, followed by skip companies (68%) and scrap metal merchants (61%). In total, our study estimated that over 238,000 businesses could be operating in the waste transportation sector without registration in England, with over 284,000 in the UK at large. </p>
<p>We also found strong evidence of connected organised networks involving such small operators. On one advertising platform alone, approximately 40% of over 10,000 national adverts for waste removal were probably placed by a handful of individuals or organisations. </p>
<p>In addition, we found a disconnect in waste crime investigations. While local authorities were focused on small fly-tipping incidents in their own areas, the Environment Agency was focused on very serious waste crime incidents. No one anticipated organised man-and-van networks advertising locally, but operating nationally. In other words, this suggests lots of small problems, that, if not dealt with, could lead to much more serious problems.</p>
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<img alt="Household refuse in a pile on a country lane." src="https://images.theconversation.com/files/507926/original/file-20230202-12364-nvsd79.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/507926/original/file-20230202-12364-nvsd79.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=900&fit=crop&dpr=1 600w, https://images.theconversation.com/files/507926/original/file-20230202-12364-nvsd79.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=900&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/507926/original/file-20230202-12364-nvsd79.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=900&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/507926/original/file-20230202-12364-nvsd79.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1131&fit=crop&dpr=1 754w, https://images.theconversation.com/files/507926/original/file-20230202-12364-nvsd79.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1131&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/507926/original/file-20230202-12364-nvsd79.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1131&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Flytipping is symptomatic of a much bigger problem.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/much-hadham-hertfordshire-uk-june-28th-1765777316">David Calvert</a></span>
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<h2>Insufficient measures</h2>
<p>A 2023 Defra <a href="https://randd.defra.gov.uk/ProjectDetails?ProjectId=21149">study</a> that my colleagues and I did found that in areas where flytipping had increased, local authorities believed that the biggest influencing factor was unregistered carriers. The government is now considering <a href="https://www.gov.uk/government/publications/digital-waste-tracking-service">electronically tracking waste</a> and <a href="https://consult.defra.gov.uk/eq-resources-and-waste/consultation-on-cbd-reform/">tighter regulation of carriers</a>. Doubts remain, though, as to whether these measures will have much impact on those that aren’t registered. Moreover, they do not address the role online advertising platforms play in connecting people wanting rid of unwanted items to cheap and dodgy waste collectors. </p>
<p>The <a href="https://theconversation.com/its-time-for-a-new-way-to-regulate-social-media-platforms-109413">lack of regulation</a> of social media and advertising platforms more broadly is a big concern. Research shows how these are being used by criminals for <a href="https://carijournals.org/journals/index.php/JIRP/article/view/1106">illegal activities globally</a>, with governments across the world struggling to find solutions. In the UK, online advertising is not currently subject to the same level of regulation as other media, which the <a href="https://www.gov.uk/government/consultations/online-advertising-programme-consultation/online-advertising-programme-consultation">Online Safety Bill</a> aims to improve. But this will have little impact on online advertising forums for things like waste removal. </p>
<p>Responsible platforms, which ensure rigorous background checks, only accounted for about 1% of all waste collection adverts. Instead, apparently unregistered waste operators seem to be basing their marketing strategies on platforms that do not conduct background or registration checks. </p>
<p>On Gumtree, 74% of waste collection adverts appeared to be from unregistered waste companies. At 64% and 60% respectively, Yell and Facebook weren’t far behind. Some of these platforms are generating significant sums of money from waste collectors. We found that an average spend per man-and-van on adverts on one platform appeared to be over £11,000 a year.</p>
<p>Under current UK legislation, people have to be caught in the act of dumping or transporting waste in order to be prosecuted – advertising while unregistered is insufficient, as evidence, to secure a conviction. So stricter legislation would help. But expecting the government to regularly monitor tens of thousands of adverts is probably wishful thinking. Instead, the online platforms should be held accountable too. They should implement better tools to prevent dodgy advertising. </p>
<p>Waste crime is so profitable that targeting unregistered operators will not reduce the problem of waste dumping and flytipping completely. We need to ensure that unregistered operators cannot access our waste in the first place. If we don’t, we run the risk of even greater environmental catastrophes than the Derry dump.</p><img src="https://counter.theconversation.com/content/198914/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ray Purdy is a founding Director of Air & Space Evidence (and has shares in this company). Air & Space Evidence have received direct funding from Material Focus (2021) and the UK Government / Defra (2021 and 2022) in connection with the research that is discussed in this article. </span></em></p>Cheap and easy waste disposal is a highly lucrative business. The lack of regulation in how companies advertise is driving up illegal dumping.Ray Purdy, Adjunct Senior Research Fellow in Environmental Law, University College DublinLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1157112019-06-05T04:14:15Z2019-06-05T04:14:15ZAustralia should give victims a voice in tackling environmental crimes<p>Contrary to popular belief, crimes against the environment are not “<a href="https://www.unodc.org/documents/NGO/EIA_Ecocrime_report_0908_final_draft_low.pdf">victimless</a>”. They affect many people, animals, plants and landscapes. Crimes against the environment should not be taken lightly. </p>
<p>Broadly defined, environmental crimes are those that harm the environment. This <a href="https://aic.gov.au/publications/rpp/rpp109?fbclid=IwAR1WqiIBS09fDlyFazBncppU6zQlaDucmXLtWAGGZavyLdyS2RBIAIO_apI">includes</a> acts such as polluting water or air, illegal fishing or trade in wildlife, and water theft. The international Environmental Investigation Agency <a href="https://www.unodc.org/documents/NGO/EIA_Ecocrime_report_0908_final_draft_low.pdf">reports</a> environmental offending is “one of the most profitable forms of criminal activity”.</p>
<p>Australia is currently missing out on a hugely useful tool in the fight against environmental crime: restorative justice. This approach, which has been used successfully in New Zealand, deserves a nationwide commitment. </p>
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<a href="https://theconversation.com/why-a-narrow-view-of-restorative-justice-blunts-its-impact-67258">Why a narrow view of restorative justice blunts its impact</a>
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<h2>Restorative justice conferencing</h2>
<p>Australia is a <a href="https://aic.gov.au/publications/tandi/tandi186">world leader</a> in using restorative justice to deal with both <a href="https://aic.gov.au/publications/rpp/rpp127/restorative-justice-australia">adult and young offenders</a>.</p>
<p>Simply defined, restorative justice is a process in which the victim, offender, and other parties affected by a crime come together to discuss the aftermath of the offence and its impact. Each party plays a role in resolving the dispute with the help of an impartial facilitator. </p>
<p>Restorative justice is all about restoring harm, preventing the crime from reoccurring, and fixing (or building) relationships. </p>
<p><a href="https://aic.gov.au/publications/rpp/rpp127/impact-restorative-justice">Research has found</a> that, compared with the traditional criminal court process, restorative justice can reduce the chances of <a href="http://www.iirp.edu/pdf/RJ_full_report.pdf">reoffending</a>, increase <a href="https://www.bocsar.nsw.gov.au/Documents/CJB/cjb170.pdf">victim satisfaction</a>, and prompt <a href="https://www.judcom.nsw.gov.au/wp-content/uploads/2016/07/research-monograph-22.pdf">offenders to feel more responsibility</a> for their actions. </p>
<p>During a conference, victims can explain the effect a crime had on them, and ask questions – giving them a <a href="https://academic.oup.com/bjc/article-abstract/17/1/1/411623?redirectedFrom=fulltext">voice</a> in traditional proceedings. Offenders can give reasons why the crime happened, and apologise. A range of other outcomes may be agreed to in a conference, including <a href="https://www.cla.asn.au/News/victims-meet-perpetrators/">compensation and community work</a>.</p>
<p>However, our research reveals that conferencing is underused when it comes to environmental crimes in Australia. </p>
<h2>New Zealand leads the way</h2>
<p>New Zealand is leading the world in using restorative justice to deal with environmental crimes. This is largely a result of two pieces of legislation passed in 2002. First, the <a href="http://www.nzlii.org/nz/legis/consol_act/vra2002184/">Victims’ Rights Act 2002</a> says that, if possible, the court (or other representative) must arrange a restorative justice conference at a victim’s request. Second, the <a href="http://www.nzlii.org/nz/legis/consol_act/sa2002121/">Sentencing Act 2002</a> makes it mandatory for a judge to take into account any outcomes reached in a conference. </p>
<p>While more research focusing on the precise benefits is needed, anecdotal evidence from shows New Zealand’s approach is effective. Several <a href="http://www.rmla.org.nz/wp-content/uploads/2016/07/rmla_nov04_journal.pdf">judges</a>, <a href="https://www.ecan.govt.nz/get-involved/news-and-events/zone-news/banks-peninsula/what-happens-when-values-are-put-to-work/">prosecutors</a> and <a href="http://202.89.49.21/%7Edebclaps/wp-content/uploads/2018/09/Restorative-justice-finalarticle.pdf">facilitators</a> have praised environmental justice in addressing environmental crime. </p>
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Read more:
<a href="https://theconversation.com/three-rivers-are-now-legally-people-but-thats-just-the-start-of-looking-after-them-74983">Three rivers are now legally people – but that's just the start of looking after them</a>
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<h2>Australia is failing to reap the benefits</h2>
<p>Unlike New Zealand, Australian courts have not embraced restorative justice for environmental offending. In fact, Australia has only used restorative justice conferencing in two cases of environmental crime: <em><a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWLEC/2007/96.html?context=0;query=Garrett%20v%20Williams;mask_path=">Williams</a></em> (2007) and <em><a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWLEC/2018/205.html">Clarence Valley Council</a></em> (2018).</p>
<p>Both <em>Williams</em> and <em>Clarence Valley Council</em> involved offending against Aboriginal cultural heritage, in breach of New South Wales’s <a href="https://www.legislation.nsw.gov.au/#/view/act/1974/80/part6/div1/sec86">National Parks and Wildlife Act</a>. The outcomes reached in the conferences went well beyond what a court could have imposed on the offenders. </p>
<p>For example, in <em>Williams</em>, where a mining company built exploratory pits and a private railway siding across areas of Indigenous significance, the maximum penalty at the time was a fine of A$5,500 and 6 months’ imprisonment. The judge suggested the parties engage in a restorative justice conference, during which Craig Williams donated A$32,200 worth of items to the local Aboriginal people.</p>
<p>In <em>Clarence Valley Council</em>, which concerned the council cutting down a protected tree, the council agreed in the conference to donate A$300,000 to the local Aboriginal community to fund research into cultural heritage. The council also agreed to create employment opportunities and youth initiatives for Aboriginal people. </p>
<p>These outcomes are far better in repairing the damage done than a mere fine or prison term. </p>
<h2>Complementary to traditional prosecution</h2>
<p>Despite these significant benefits, restorative justice conferencing is not a replacement for prosecution. It should be used only after the offender has been assessed as suitable, as in the cases of <em>Williams</em> and <em>Clarence Valley Council</em>.</p>
<p>Restorative justice conferencing can be suitable for all sorts of environmental crime, from water pollution to breaches of planning laws. In the case of offending against Aboriginal cultural heritage, conferencing may be appropriate given its ability to give a voice to members of the Aboriginal community who would otherwise be unable to participate in the formal court process. </p>
<p>The ideal time to integrate conferencing is after conviction but before sentencing, which we refer to as a “back-end model” of conferencing (the method most commonly used in New Zealand). </p>
<p>Typically, a back-end model involves the prosecution bringing charges before the court. The court then considers holding a restorative justice conference and, if appropriate, the proceedings are postponed to allow the conference to occur. The matter is later referred back to the court for sentencing. </p>
<p>This creates an opportunity for the sentencing judge to consider any results from the conference, but maintains a court’s essential oversight role by ensuring the outcomes reached are adequate, achievable and legally binding.</p>
<h2>A more environmentally friendly response</h2>
<p>Restorative justice conferencing can provide a more effective way of dealing with environmental harms because, <a href="https://www.cbc.ca/news/canada/british-columbia/climate-talks-pollution-restorative-justice-1.3473076">according to Trevor Chandler</a>, a facilitator in Canada, “punishment makes people bitter, whereas restorative solutions make people better”. </p>
<p>Of course, conferencing is not without <a href="http://www.antoniocasella.eu/restorative/Daly_2005.pdf">limits</a>. Just as restorative justice may not work for <a href="https://theconversation.com/restorative-justice-may-not-work-for-all-young-offenders-4116">all young people</a>, it may not work for all environmental offenders. Conferencing can require more time, money and energy than traditional court processes. However, this may be an investment well worth making for the environment.</p>
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Read more:
<a href="https://theconversation.com/restorative-justice-may-not-work-for-all-young-offenders-4116">Restorative justice may not work for all young offenders</a>
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<p>It is time for Australia to follow New Zealand’s example by embracing a back-end model of restorative justice. </p>
<p>This would give victims a much-needed voice in the process, and create a better chance to heal ruptured relationships and restore the harm done to the environment as far as possible.</p><img src="https://counter.theconversation.com/content/115711/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Evidence shows restorative justice can help fix environmental crime – so why isn’t Australia using it more?Dr Al-Alosi, Lecturer, School of Law, Western Sydney UniversityMark Hamilton, PhD Candiate (Law); Sessional tutor in criminology (School of Social Sciences), UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/860892017-10-24T14:24:37Z2017-10-24T14:24:37ZJust like England and Wales, Scotland needs an environmental court<figure><img src="https://images.theconversation.com/files/191616/original/file-20171024-30587-1hut3vl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption"></span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/download/confirm/298570853?size=huge_jpg&src=lb-59856941&sort=newestFirst&offset=2">Shutterstock</a></span></figcaption></figure><p>Should Scotland have a specialist court to preside over environmental disputes and crimes? After giving this question about as much consideration as the 17-year-old Jeremy Corbyn gave to a career in investment banking, the <a href="http://www.heraldscotland.com/news/homenews/15567668.Special_courts_to_put_Scotland_s_biggest_polluters_on_trial_are_shelved/">Scottish government said no</a>.</p>
<p>This is an old debate in Scotland, with calls for such a court since the early 1990s. At the end of September the government published its <a href="http://www.gov.scot/Publications/2017/09/9368">response</a> to a 2016 consultation on <a href="http://www.gov.scot/Publications/2016/03/6111">Developments in Environmental Justice in Scotland</a>. This followed the SNP’s <a href="http://votesnp.com/campaigns/SNP_Manifesto_2011_lowRes.pdf">2011 manifesto</a> commitment to “publish an options paper” on environmental courts.</p>
<p>Options papers usually include options, yet there were none. Instead, the 2016 consultation involved the Scottish government praising its reforms to the justice system, and then more or less asking: <a href="https://consult.scotland.gov.uk/courts-judicial-appointments-policy-unit/environmental-justice/consultation/view_respondent?uuId=138634173">Does Scotland really need an environmental court?</a></p>
<h2>Why the need for an environmental court?</h2>
<p>Scotland – a country in which 45 sea lochs were reported this year as being “<a href="http://www.heraldscotland.com/news/15118242.Revealed__Scandal_of_45_Scottish_lochs_trashed_by_pollution/">toxic timebombs</a>” due to pesticide contamination from fish farms – is behind the times. In Australia, the <a href="http://www.lec.justice.nsw.gov.au/Pages/about/history.aspx">Land and Environment Court of New South Wales</a> opened in 1980 as a “one-stop shop” for environmental, planning and land disputes. It was one of the first of its kind around the world.</p>
<p><a href="http://www.law.du.edu/ect-study">Two studies</a> by environmental justice academics George and Catherine Pring found there has been a global “<a href="http://wedocs.unep.org/bitstream/handle/20.500.11822/10001/environmental-courts-tribunals.pdf?sequence=1&isAllowed=y">explosion</a>” of environmental courts and tribunals since then. By 2009, there were over 350 in 41 different countries. By 2016, there were more than 1,200 in 44 countries. There are 28 environmental courts and tribunals in nine <a href="http://wedocs.unep.org/bitstream/handle/20.500.11822/10001/environmental-courts-tribunals.pdf?sequence=1&isAllowed=y">EU member states</a>, with another 20 countries discussing or planning their own environmental courts or tribunals. </p>
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<img alt="" src="https://images.theconversation.com/files/191617/original/file-20171024-30556-1qmh1p4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/191617/original/file-20171024-30556-1qmh1p4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/191617/original/file-20171024-30556-1qmh1p4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/191617/original/file-20171024-30556-1qmh1p4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/191617/original/file-20171024-30556-1qmh1p4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/191617/original/file-20171024-30556-1qmh1p4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/191617/original/file-20171024-30556-1qmh1p4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Scotland has a range of environmental issues for concern, from air quality to sea pollution and landfill.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/friendsoftheearthscotland/20685480579">Maverick Photo Agency/Flickr</a></span>
</figcaption>
</figure>
<p>In England and Wales, an <a href="https://www.gov.uk/guidance/environmental-fines-or-notices-appeal-against-a-regulator">environmental tribunal</a> was created in 2010. Initially set up with a limited remit to hear appeals against sanctions and fines from environmental regulators, its jurisdiction has <a href="http://blogs.ucl.ac.uk/law-environment/2013/02/11/environment-tribunal-in-england-and-wales-gaining-new-powers/">expanded</a> to cover other kinds of appeals, such as decisions relating to marine licensing and plastic bag charges.</p>
<p>Environmental laws can combine international, European and domestic obligations – and they are often scientific in nature. There are concerns that judges lack the <a href="https://scottishwildlifetrust.org.uk/2016/03/50-for-the-future-a-scottish-environmental-court/">technical and scientific expertise</a> to handle these cases effectively.</p>
<p>Most Scottish environmental cases use the judicial review process, which is very pricey. Earlier this year, The <a href="https://www.johnmuirtrust.org/about">John Muir Trust</a> had to shell out <a href="http://www.thirdsector.co.uk/scottish-conservation-charity-pays-125k-settle-wind-farm-case/governance/article/1433534">£125,000</a> to the Scottish government and energy company <a href="http://sse.com/aboutus/">SSE</a> after its unsuccessful challenge to the <a href="http://sse.com/whatwedo/ourprojectsandassets/renewables/Stronelairg/">Stronelairg Windfarm</a>. This was negotiated down from an initial £539,000 and did not include the trust’s own legal fees.</p>
<p>The enforcement of <a href="http://www.gov.scot/Resource/0049/00497228.pdf">planning</a> and <a href="http://www.scotlink.org/public-documents/governance-matters-the-environment-and-governance-in-scotland/">environmental laws</a> is questionable. As <a href="https://www.clientearth.org/what-we-do/%22%22">ClientEarth</a> CEO and lawyer James Thornton <a href="https://www.documents.clientearth.org/library/download-info/james-thorntons-garner-lecture-speech-can-we-catch-up-how-the-uk-is-falling-behind-on-environmental-law/">pointed out</a>: </p>
<blockquote>
<p>When you pass an environmental law … and you do not enforce it, you in effect authorise the conduct you sought to prohibit.</p>
</blockquote>
<p>Environmental courts can address these problems. Providing specialist judges and accessible procedures can help citizens to ensure that key laws protecting the environment are upheld. Scotland already has specialist courts and tribunals covering all sorts of topics, such as employment, mental health and immigration matters.</p>
<p>It’s not entirely clear why the Scottish government decided against an environmental court, but three reasons emerge from the 2017 consultation analysis and response: a) everything’s fine; b) there won’t be enough cases; c) Brexit uncertainty. These claims do not stand up to scrutiny.</p>
<h2>Everything’s fine</h2>
<p>Rights without any means of enforcement are truly useless. As part of the UK, Scotland is bound by the UN’s <a href="http://ec.europa.eu/environment/aarhus/">Aarhus Convention</a> which requires that people must be able to challenge situations where their environmental rights are denied or environmental laws are broken. Article 9(4) says that these challenges must be “not prohibitively expensive”.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/191619/original/file-20171024-30561-q5etir.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/191619/original/file-20171024-30561-q5etir.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/191619/original/file-20171024-30561-q5etir.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/191619/original/file-20171024-30561-q5etir.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/191619/original/file-20171024-30561-q5etir.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/191619/original/file-20171024-30561-q5etir.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/191619/original/file-20171024-30561-q5etir.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The Sound of Raasay, Skye, was one of a long list of sea lochs and channels that were described as toxic timebombs earlier this year due to contamination from fish-farm pesticides.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/salmon-fish-farm-pools-see-lochs-702827662">Shutterstock</a></span>
</figcaption>
</figure>
<p>But access to environmental justice is prohibitively expensive in Scotland. This was the conclusion of the convention’s 2014 Meeting of the Parties. The <a href="http://www.unece.org/fileadmin/DAM/env/pp/compliance/CC_Guidance/Guide_to_the_ACCC_for_CC56_clean.pdf">Compliance Committee</a> carried out progress reviews in 2015 and early 2017, and thought the same. The 2017 Meeting of the Parties repeated its 2014 conclusion, <a href="https://www.unece.org/fileadmin/DAM/env/pp/mop6/Documents_aec/ECE.MP.PP.2017.30_aec.pdf">criticising Scotland</a> for not yet fulfilling its commitments on environmental justice.</p>
<p>Confusingly, the 2016 consultation told of Scotland’s “ongoing compliance” with the convention. The Scottish government’s 2017 decision tells of measures taken “to ensure Scotland is fully compliant with all aspects of the Aarhus Convention”.</p>
<h2>Not enough cases</h2>
<p>During the consultation, <a href="https://ww2.rspb.org.uk/about-the-rspb/">RSPB Scotland</a> requested information about the number of environmental cases lodged annually, but the Scottish government said it didn’t hold this information. If it doesn’t keep figures, how can it claim with any confidence that there won’t be enough cases?</p>
<p>The caseload depends on several factors. A lack of access to justice will keep it artificially low. It’s difficult to estimate the workload of the court if we don’t know what it will do (linked back to the lack of options in the 2016 consultation paper). Some of those consulted suggested extending the <a href="http://www.scottish-land-court.org.uk/about/overview">Scottish Land Court</a>, an existing court which already has a sufficient caseload to justify its existence.</p>
<h2>Brexit uncertainty</h2>
<p>The Scottish government rightly pointed out that Brexit will bring uncertainty for environmental governance. We’re told that this is a reason against an environmental court, but not why.</p>
<p>One area of agreement on Brexit is that the warning lights are flashing red for the environment. EU membership brings a sophisticated framework of <a href="https://ieep.eu/work-areas/environmental-governance">environmental governance</a>. The European Commission currently polices key environmental laws, but Brexit will likely terminate its guardianship – and there is no obvious replacement. To fill the gap, the ability of NGOs and the public to enforce environmental laws could be increased. An environmental court could aid this kind of citizen enforcement.</p>
<p>The decision against an environmental court relies on shaky reasoning. The Scottish minister for community safety and legal affairs, <a href="http://www.parliament.scot/msps/currentmsps/annabelle-ewing-msp.aspx">Annabelle Ewing</a>, is not Hermione Granger; words cannot magic Scotland out of its non-compliance with the Aarhus Convention.</p>
<p>Claiming that there won’t be enough cases is a bit like saying that there will be a shortage of cleaning robots by the year 2452 – we have no idea, and it depends on several factors. The uncertainty surrounding Brexit intensifies the need for change, not inaction.</p>
<p>This was a disappointing consultation. The SNP’s manifesto promise to publish an “options paper” remains unfulfilled – and there is little evidence to support the Scottish government’s claim to be committed to environmental justice.</p><img src="https://counter.theconversation.com/content/86089/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ben Christman is a member of the UK Environmental Law Association and the Scottish Green Party. He is currently working on a research project for the Scottish Environment LINK.</span></em></p>Specialist courts and judges could ensure that key laws protecting the environment are upheld. But the Scottish government has rejected the ideaBen Christman, Tutor in Public and EU Law, School of Law, The University of EdinburghLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/659202016-09-23T15:30:24Z2016-09-23T15:30:24ZWhy the International Criminal Court is right to focus on the environment<figure><img src="https://images.theconversation.com/files/138992/original/image-20160923-29897-15585bj.jpg?ixlib=rb-1.1.0&rect=750%2C467%2C2137%2C1248&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Kuwait, 1991. If Saddam Hussein did this today the ICC may consider him an environmental criminal.</span> <span class="attribution"><span class="source">Everett Historical / shutterstock</span></span></figcaption></figure><p>The International Criminal Court is not known for prosecuting people responsible for huge oil slicks, chopping down protected rainforests or contaminating pristine land. But these people may now one day find themselves on trial in The Hague.</p>
<p>The move was announced by chief prosecutor <a href="https://www.icc-cpi.int/about/otp/who-s-who/Pages/Fatou-Bensouda.aspx">Fatou Bensouda</a> in a recent <a href="https://www.icc-cpi.int/Pages/item.aspx?name=policy-paper-on-case-selection-and-prioritisation">policy document</a> that contains a new and welcome focus on the <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1957644">prosecution</a> of individuals for human atrocities that are committed by destroying the environment in which we live and on which we depend. </p>
<p>The document doesn’t change the law applied by the court. There is no new crime of <a href="http://heinonline.org/HOL/Page?handle=hein.journals/calwi26&div=13&g_sent=1&collection=journals">ecocide</a> for instance. Instead, it sets out the types of cases that the court will now select and prioritise for prosecution. These will include the illegal exploitation of natural resources, cases of environmental destruction, and “<a href="http://www.bbc.co.uk/news/world-africa-17099348">land grabbing</a>”, where investors buy up vast areas of poor countries.</p>
<p>The International Criminal Court, or ICC, has already shown a willingness to apply its laws to situations involving environmental destruction. Between 2009 and 2010, then-prosecutor Luis Moreno Ocampo successfully obtained <a href="https://www.icc-cpi.int/darfur/albashir/Documents/AlBashirEng.pdf">arrest warrants</a> from the court against the president of Sudan, Omar Al-Bashir, for acts of genocide, war crimes and crimes against humanity. Among other acts, these alleged crimes involved the contamination of wells and water pumps in Darfur to target and destroy certain groups of people. Al-Bashir’s trial has not yet commenced as he continues to <a href="http://www.nytimes.com/2015/06/16/world/africa/sudan-bashir-international-criminal-court.html?_r=0">evade arrest</a>.</p>
<p>But this is not the first time the world has witnessed genocide through environmental means. In the early 1990s, for example, Saddam Hussein diverted the giant Tigris and Euphrates rivers in order to drain the Mesopotamian marshes in southern Iraq, a place widely regarded as the location of the Garden of Eden. Hussein wanted to <a href="http://www.independent.co.uk/news/world/saddam-drains-the-life-of-the-marsh-arabs-the-arabs-of-southern-iraq-cannot-endure-their-villages-1463823.html">destroy the community of Marsh Arabs that lived there</a>, in reprisal for attempting an uprising against him. While the ICC cannot prosecute cases that took place before it was established in 2002, this type of <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=442541">environment-based genocide</a> may well be the focus of future prosecutions.</p>
<p>There is nothing to stop the court from holding individuals such as CEOs responsible for international crimes. Making entire corporations criminally accountable is a more <a href="https://ilg2.org/2014/05/19/corporate-criminal-responsibility-at-the-special-tribunal-for-lebanon/">controversial prospect</a>, however, and would represent a paradigm shift in international law. </p>
<p>But the new emphasis on environment-based crimes needs such a shift. Imagine: the ICC investigating corporate officers and corrupt state officials who might conspire to kill or evict groups of indigenous people from their native land in order to exploit natural resources such as oil, timber and minerals. We could indeed see businessmen or politicians joining the warlords in the dock.</p>
<p>A focus on these issues at the highest levels of international justice would make it clear that nobody can hide behind the corporate veil, operate with impunity in the fog of war or commit gross human rights abuses in the name of “development” and progress. The <a href="http://theconversation.com/sustainable-palm-oil-must-consider-people-too-20443">growth of crops for palm oil</a>, for example, is frequently linked to gross and systematic human rights abuses that could breach international criminal law. Making someone criminally responsible under international law for these acts could act as a catalyst for the entire industry to clean up its act.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/139026/original/image-20160923-29886-j7imr2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/139026/original/image-20160923-29886-j7imr2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/139026/original/image-20160923-29886-j7imr2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/139026/original/image-20160923-29886-j7imr2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/139026/original/image-20160923-29886-j7imr2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/139026/original/image-20160923-29886-j7imr2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/139026/original/image-20160923-29886-j7imr2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/139026/original/image-20160923-29886-j7imr2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Rainforest in Borneo is chopped down to make way for an oil palm plantation.</span>
<span class="attribution"><span class="source">Rich Carey / Shutterstock</span></span>
</figcaption>
</figure>
<p>We may nonetheless have to temper our expectations. It’s easy enough to think of previous conflicts that have resulted in serious environmental damage: the use of Agent Orange, along with cloud seeding to cause heavy rain to “<a href="https://en.wikipedia.org/wiki/Operation_Popeye#cite_note-7">make mud, not war</a>”, during the conflict in Vietnam in the early 1970s; the 800 oil-rig fires set by Iraq in the Persian Gulf during the 1991 Gulf War; the <a href="http://postconflict.unep.ch/publications/finalreport.pdf">pollution of the Danube</a> as a result of damage to oil refineries and chemical plants in Kosovo during the 1999 NATO air strikes. But all these took place before the court was established in 2002 and thus are beyond its remit. </p>
<p>But what of those conflicts that have taken place since the ICC was set up in 2002? In <a href="http://postconflict.unep.ch/publications/UNEP_Lebanon.pdf%22%22">Lebanon</a> the 2006 bombing of the Jiyeh Power Station resulted in one of the largest ever oil spills in the Mediterranean Sea. In the 2008-2009 conflict in the <a href="http://postconflict.unep.ch/publications/UNEP_Gaza_EA.pdf">Gaza Strip in Palestine</a> toxic materials seriously contaminated the soil and water supplies. Both conflicts resulted in damage that may indeed breach the ICC’s definition of an environmental war crime. However, such situations remain outside the court’s jurisdiction as relevant states had not ratified the ICC’s statute at the time.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/139024/original/image-20160923-29889-9yl23q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/139024/original/image-20160923-29889-9yl23q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/139024/original/image-20160923-29889-9yl23q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/139024/original/image-20160923-29889-9yl23q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/139024/original/image-20160923-29889-9yl23q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/139024/original/image-20160923-29889-9yl23q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/139024/original/image-20160923-29889-9yl23q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/139024/original/image-20160923-29889-9yl23q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Oil from the bombed power plant in Jiyeh, Lebanon, washes up in Beirut, 30km away.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Lebanon_oil_beach.jpg">ZeNahla</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<p>While the court’s new policy is welcome, it is not a silver bullet. People convicted may be responsible for causing harm to thousands of victims and irreparable environmental damage. Putting someone in jail won’t “unharm” their victims, regrow the forest or clean up the oil slick. </p>
<p>This is why we should look at compensation as well as punishment. <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1957639">Compensation-based models of liability</a> may be more help for both human victims and the environment – and more of a deterrent to potential perpetrators. One example of this in practice comes from Iraq where, following the oil fires during the 1991 Gulf War, the UN Security Council established a <a href="http://www.uncc.ch/">Compensation Commission</a>. The commission was funded by the sale of Iraqi oil and gave money to victims of the attacks and financed environmental reparations.</p>
<p>It’s great that environmental crimes are now being considered at the highest level of global justice. But the ICC alone isn’t enough. A thorough approach also requires individuals and corporate bodies to become financially liable for the consequences of environment-based atrocities.</p><img src="https://counter.theconversation.com/content/65920/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Tara Smith does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>But criminal sanctions alone aren’t enough. We also have to make individuals and firms financially liable for their actions.Tara Smith, Lecturer in Law, Bangor UniversityLicensed as Creative Commons – attribution, no derivatives.