The United Kingdom’s initial environmental laws began in the time of the Industrial Revolution where environmental protection was in response to public health concerns such as typhoid and cholera. The primary laws dealt with issues such as housing, town planning and sewage and the control of atmospheric emissions, regulated by the Alkali Act 1863. Environmental law is a technically sophisticated system of regulations established to ensure that the ecosystem and economy are both equally safeguarded. The current environmental regulators of Scotland are the Scottish Environmental Protection Agency (SEPA) whose main objective is to provide an efficient and unified environmental protection system that will improve the environment, and assist in the distribution of the Scottish Government’s persistence to ensure perpetual sustainable economic growth.
Environmental crime is the breach of environmental law by persons or organisations who perform activities which could pose a threat to the environment. Environmental crimes entail unlicensed waste operations including the transport, treatment, storage, or disposals of illegal discharges to the water ecosystem, or illegal abstractions and illicit emissions to the atmosphere (Simpson, 2014) although prosecution is the most obvious sanction Criminal law should be earmarked as a legislative technique used only for severe wrongful or detrimental conduct.
Injury to individuals may be an uninsurable risk Statutory liability – most insurers now exclude statutory liability from its covers. (UL, 2018)
Remediation is an act required to ensure that land contamination is no longer a risk to human health or the environment. A practical example of a clean – up would be fly tipping, or the illegal disposal of waste, which costs the Scottish local authorities more than £2.
5 million annually. (NetRegs, 2018)
Criminal charges can be in the form of fines or imprisonment for responsible persons and/or organisation which can be brought forward by Sepa as a policing body and will ultimately be decided by the courts. Fees can be substantial but not recoverable in criminal cases (SEPA, 2018) Substantive areas of environmental law The main subject areas where breach of Environmental Regulations result in potential prosecution are:
It is a criminal offence for a person to carry out certain actions in relation to waste disposal without or in breach of a licence. The current sentence is 5 years imprisonment if not properly disposed of. A prime example of this breach would be someone who runs an organisation that disposes of waste unlawfully (without a licence i.e. Fly Tipping, illegal landfilling) (SEPA, 2018) In Scotland waste with hazardous properties which is considered harmful to human health or the ecosystem is known as special waste, and regulated the special Waste (Scotland) Regulations 1996. (SEPA, 2018) The obligation to register as a transporter or broker of controlled waste is contained within the Control of Pollution (Amendment) Act 1989 and the Controlled Waste (Registration of Carriers and Seizure of Vehicles) Regulations 1991. (SEPA, 2018) Waste with hazardous properties which is considered harmful to human health or the ecosystem is known as special waste, and regulated the special Waste (Scotland) Regulations 1996. (SEPA, 2018) (SEPA) and the (HSE) are the two main competent authorities tasked with overseeing and imposing the Control of Major Accident Hazards Regulations Figure 1 the Waste Hierarchy The Rationale • Current European Action Programme specifically homes in on industry as the main focus for control.
Someone who produces, transports, stores, handles or disposes of waste has a responsibility to ensure that waste is controlled appropriately by following the waste hierarchy , failure to do so will result in criminal prosecution . (SEPA, 2018)
Cradle to the grave Waste producers must ensure that all appropriate environmental licences are held by the treatment plant to which the waste is to be transported. Failure to provide such licences will result in both the waste producer and the treatment plant manager facing criminal actions. (Butti, 2013) Transcripts must be completed for every load of waste transferred from one location to another. Providing specific details of the carriers and site operators who handle the waste, this ensures safe and legal management and a clear audit trail from when the waste is produced until it is disposed of. Failure to produce a paper trail is a criminal offence (LU, 2018)
Environmental law concerns the rule of polluting emissions discharged into the three environmental media (air, water and land.) There are also three main categories associated with environmental legal liability. Which are civil, criminal, and clean – up. (Britannica, 2018) Figure 2 Image provides evidence of the relation between nutrient sources, streams and surface water. (Nitrogen transfers through stream to soil water and ground water) Inter – relation
Hydrocarbons are a class of compounds primarily comprised of carbon and hydrogen. As main components of oil, pesticides, and natural gas contribute to the greenhouse effect and effects of climate change, drain the ozone, and increase cancer and respiratory disorders in humans . (Schab, 2018) Unlawful release of carbon dioxide could result in court action. Direct discharge, water use and leachates A waste management licence or Pollution Prevention Control (PPC) permit will contain conditions to provide assurance that the landfill operation does not cause harm to human health or the environment . (Leachates can harm the riverine environment which pollutes the marine ecosystem) . (SEPA, 2018)
• EC law is imperative to the development of UK environmental legislation. Since linking with the European Community in 1972, (EU, 2018)
International Environmental Law – Fundamental International Conventions comprise of the Aarhus Convention, and the Kyoto Protocol . (EL, 2018)
Domestic law – The current nature of environmental law today has led to a wealth of imperative domestic legislation, added detailed secondary legislation and policy and guidance. (UN, 2018)
The precautionary principle:
Operators of affected industrial processes should follow the Guidelines from the enforcing authorities on specific activities. The controls under Regulation 17 of the of the Waste Management Licensing (Scotland) Regulations 2011 relate to not endangering human health or harm to the environment. It is a criminal offence to carry out an exempt activity unregistered or to perform an activity in breach of registration obligations. (SEPA, 2018)
Release of air pollutants to the atmosphere Under the Pollution Prevention and Control (Scotland) Regulations 2012 SEPA control and monitor specific industrial activities within Scotland that have the potential to engender airborne pollution. (SEPA, 2018) Figure 3 “If harmful substances such as asbestos are illegally deposited into the earth’s atmosphere the punishment should be “ (Swarb, 2015)
(SEPA) is the main sole regulator of all PPC processes. (SEPA, 2018)
Passenger vehicles are one of the main pollution contributors, creating significant amounts of nitrogen oxides, carbon monoxide, and other pollution . (Netregs, 2018) Figure 4, evidence of car pollution (Air quality UK, 2018) Industrial These developments in relation to technology and legislation will continue to reduce emissions:
The clean Air Act 1956 was an act made by London parliament after the London Smog 1952 (Air Quality, 2018) Figure 5 This graph provides evidence of the recordings of smoke and sulphur dioxide levels during the smog period in December 1952 (Air Quality, 2018)
Transboundary air pollution is generated in one country but impacts others, and is a major contributor to acidification and summer smog. The main sources are emissions from transport. (Carbon monoxide and methane.) (UN, 2003) Figure 6 evidence of the new rules imposed by EU for stricter limits on the five main pollutants (EU, 2016)
Private Law Statutory Nuisance Initially established to protect public health and is enforced by Local authorities to act in response to a complaint ex, smell from waste, smoke, dust, fumes. Failure to comply (£20,000), without reasonable excuse, is a criminal offence. (Scot.gov, 2018)
Any discharge into a waterway must be in accordance with a Discharge Consent and must comply with European Water Quality Standards (SEPA, 2018)
This is a specialist law which can be highly profitable. Liability for land contamination is on the principle of polluter pays However; voluntary remediation is frequently sought under planning conditions to evade expensive legal actions. (SEPA, 2018)
Site investigation process • Walkover • Desk study • Site investigation Figure 8 evidence of what happens when you drill beneath the earth’s water table
Fracking is the procedure of drilling down into the earth’s water table before a high-pressure water mixture is directed towards the rock to release the gas inside . (Wired, 2018)
Urban Drainage Systems (SUDS) Just recently the Government decided to introduce SuDS as its “critical infrastructure” for its brownfield developments . (Forster, 2018) Figure 9 evidence of Suds drainage design (BGS, 2018)
Waste Framework Directive (The polluter pays) Directive 2008/98/EC on waste (Waste Framework Directive) sets out the basic concepts related to waste management, such as definitions of waste, recycling, and retrieval. The main purpose of the Directive is to create a novel kind of civil law system based upon the principle that the ‘polluter pays’. For example, a plant that generates a potentially hazardous substance as a by-product of its activities is held accountable for its safe disposal. (EUD, 2018) SEPA enforcement measures Fixed
Financial Penalties – there are a number of specific areas where penalties are being considered for the prosecution : (SEPA, 2018
IPPC: Integrated Pollution, Prevention & Control Certain industrial measures acknowledged as “prescribed processes’ involve the individual participating in the process to acquire an appropriate licence before carrying out the process. This method requires a permit to be acquired for emissions to air, water and land instigated by the operation of the prescribed process. The law in this area is enforced either by the Environment Agency or the local authority depending on the process operated. (Scot.gov, 2018)
Sets out to determine what environmental risks occur and then determine the best options to manage those risk in a way best suited to protect human health and the environment. (EPA, 2018)
The prospect of the UK leaving the EU raises concerns regarding the future of UK environmental regulation. If Westminster does eventually take full control from the EU in setting environmental policies then unfortunately Scotland may no longer have the authority to lead the way in Sustainable Development from the rest of the UK. The UK Government views economic recovery as the solution with environmental controls being weakened and encouraging entrepreneurial movement. The UN Intergovernal Panel recently conducted a report on Climate Change highlighting the concerns regarding climate change. The transition of Brexit has come at a time of great uncertainty. It is imperative that we reach the target of the Paris agreements pledge to ensure that temperatures are maintained between 1.5 and 2C. We currently have around 12 years to do so before the damage sustained becomes comprehensively irreversible. Recommendation The United Kingdom should orchestrate an agreement which enables them to remain within the European Economic Area, and keep things the way in which they are currently. And continue to keep trading within the EU emissions trading scheme and persevere to meet its greenhouse gas emissions aims under international treaties and agreements. Brexit cannot be used as an opportunity to weaken environmental laws and regulations especially during a time of environmental concern. (RCP, 2017)
A standard form contract is a contract between two parties, where the terms and conditions of the contract are set by one of the parties, and the other party has little or no ability to negotiate more favorable terms and is thus placed in a ‘take it or leave it’ position.