Wolf et al. describes pollution as a function of individual risk perception and values therefore could be described as a relative term. What is perceived as pollution by one person may not be perceived as pollution by another. These are relative to human health, property, plants, animals, and the natural habitats. The RCEP define pollution as “the introduction by man into the environment of substances or energy liable to cause hazards to human health, harm to living resources and ecological systems, damage to structure or amenity or interference with the legitimate uses of the environment”. Collaborating this, the Environmental Protection Act, (1990) contains the following as constituting environmental damages: disruptions in normal activity affecting directly or indirectly any of the following media: (1) the air within buildings and other natural or man-made structures above or below ground, (2) controlled sea water, river and streams, (3) and land in any form for development. Having said this, stewardship is required of companies that harm the world or its people as a result of its activities, whether intentionally or otherwise irrespective of any legal regimes been considered.
Environmental damage and pollution are activities and operation that tends to demean a normal comfortable living environment, these activities are not merely the common known water pollution, and destruction of forests, but includes soaring use of fossil fuels and ozone depleting chemicals being used in industries. Therefore, the importance of environmental regulation and legislation for the effective prevention and remediation for environmental damage and pollution can not be over emphasised. However, the key issue is that a lawful mechanism for the prevention and remediation of environmental damage and pollution must be enforced whether by civil or command legislations.
There are various legislations in the United Kingdom which addresses appropriate issue of environmental damages and pollution; most of which demonstrate and identify basic legal issues of command and control regimes underpinned by criminal liability. In England and Wales for example, the Water Resources Act of 1991 addresses all water related pollution, from point source pollution to water quality standard, from water protection zones to regulations for storage of potential damaging substances. The Maritime and Coastguard Agency (MCA) is the authority regulating pollution from shipping and offshore installations and implements command and control procedures. Merchant Shipping Act (1995) is responsible for offshore installations to avoid pollution by implementing necessary command and control. Apart from these UK’s edicts, the following strictly international environmental conventions and protocols and several others in recent years for global issues came into force over the past few years:
- Montreal Protocol on substances that Deplete the Ozone Layer 1987
- The Basal Convention on the Control of Trans-boundary Movement of Hazardous Waste and new disposal 1989.
- The framework convention on Climate Change, 1992.
- The Convention on Biological Diversity, 1992.
- The Convention on control of Desertification, 1994
These conventions for guidelines become necessary considering the increase in rate of environmental damages and pollution despite the advent of technological improvements. A typical example is Nigeria, one of the largest producers of oil in the world, with over 100 million barrels per day of extractable reserves. Environmental damages and pollution are daily occurrence which has continually put the general environment, ecosystem, and public health in great danger. Hence, due to poor history of civil liability and the ever-growing awareness and concerns for greater spread of environmental protection, Nigeria has evolved a national policy on the environment and has since established the now defunct Federal Environmental Protection Agency (FEPA) as the last ‘command’.
Civil liability regime: Interpretative Methods and Critique
Civil liability is a fundamental right of a person to sue, seek redress or obtain injunction from another person as a result of damages to property, financial loss or personal injury, and claiming reasonable compensation that the law recognise. Civil liability determinations are only initiated by the person that has been injured. Internationally, the civil liability regimes have been tried and found inadequate in application, it’s been claimed that most environmental damages and pollution are national problem, rebellious of non-regulatory proposal. This discredits are evident, for example in the Impress case, the Price case and the council case where determinations are questionable considering how best ‘causing’ was explicated. Yandle further argues that after all, most pollution is primarily local in both origin and impact, and can be traced to identifiable sources, and common law rules remain flexible to reflect local preferences and the unique facts of each given case recognise.
Civil liability could be strict despite the cost risk and anyone can bring prosecution. As obtainable in the criminal liability for protecting controlled waters from pollution as seen the in Alphacell which is a simple striking example. However, it is a contradictory case which did apply strict liability, but only to justify and sympathise the interest of the relevant legislation. Accused of causing pollution to a river by the use of leaves clogged equipment that ought to have prevented matter entrance to the river, their conviction was upheld because no evidence of negligence, or the knowledge that the pollution was leaking to the river, hence it was a case of an unavoidable obstruction. Yandle argues that common law is an upgraded institutional approach that accomplishes most of the same goals of command-and-control regulation at much lower cost. Liability for negligence dispute arguments in favour of strict liability as Roscoe (1999) puts it:
“The good sense of the courts has introduced a doctrine of acting at one’s peril with respect to statutory crimes which expresses the needs of society. Such statutes are not meant to punish the vicious will but to put pressure upon the thoughtless and inefficient to do their whole duty in the interest of public health or safety or morals.”
Roscoe further argues that under the common law, the initial allocation of property rights can vary from state to state or region to region, depending on local customs and necessity. Moreover, most common law rules are default rules subject to reordering by private contract. This supports a major often sighted disadvantage of civil liability that it cannot meet up with market forces to provide a relatively effective means for regulating environmental damages and pollution. Another typical case study is the nuisance legal process between Cambridge Water Co v Eastern Counties Leather plc where damages were demanded. Cambridge Water Co claimed tanning machinery had permitted ‘perchloroethane to percolate’ into the deep-soil, preventing healthy public use of drinkable water. Drawing powers from the common law (law of torts) Cambridge Water Co was disallowed the claims for nuisance and negligence because Eastern Counties Leather plc did not have the pre-knowledge of this type of damage. However, the judgement created widespread industry attention to the increased risk of civil liability for damage based on subsequent appeals and counter appeals. In contrast to command and control regulatory regimes, such action as initiated will have been well regulated to forestall any form of environmental damages and pollution. However, however adequate it will be, it will always be questioned.
Statutory command-and-control regime: Interpretation
A number of guidelines and regulations on managing the environment and preventing pollution have been stipulated by various organisations, departments, ministries and international organisations such as World Bank. The numerous legislations form the framework on which planning decisions are made. Statutory “command and control” regimes in form of national policies on safety and environmental protection require companies to conduct their business in a socially responsible and ethical manner, in order to protect and ensure the safety and good health of the environment. Hutter’s judgment is a strong argument, he notes that command and control regulatory regimes are legislation framework released and managed by the government as regulations binding on all concerned. Simply put, it involves the authority of the law and represents the final legal authority of the government.
Meiners et al. and Zywicki put forward many arguments challenging the current regulatory command-and-control statutory regimes as against the civil liability that the advancement in law as reflected by growing economics was the cause of relegating the common law claiming that, choices in regulation affecting environmental damages and pollution reflects political influence. In contrast however, such regulations have actually resulted in a cleaner environment, achieved by high social, economic and political cost.
Examining the above, comparative advantage of the civil liability law over command-and-control statutory regime is not only the political influence but also includes problems with the enforcement policies. Surprisingly, any aggrieved person can file a complaint, whether evidence of environmental damages or pollution can be shown or not. On the contrary, aggrieved person can only file an action only by showing scientific evidence of concrete or potential harm in the common law. Command-and-control statutory regime tries to make obvious that rules have been violated without scientific proof and evidence. This is what is minimally acceptable for prosecution. In the affirmative, Meiners et al. thus concludes:
“We are left with one principal explanation for command-and-control: the special interest theory of government. This does not say that the public interest is not served. It simply says that in attempting to serve the public interest, special interest forces hold sway, sometimes to the point that the overall costs of the episode can swamp the value of the delivered benefits. Unfortunately, the command-and-control approach attracts attention to inputs, not outcomes. Incentives to monitor environmental quality are weak at best”
It was on the above leverage that Yandle and Meiners et al. observes that the current pattern of environmental regulation reflects the workings of interest-group politics. To the extent that such regulations have actually resulted in a cleaner environment, this result has been achieved only at high social cost and extreme distortion of economic efficiency. In the last three decades of the 20th century, the global awareness and recognition of pollution problems from Nigeria to Niger, United States to United Kingdom, from individual to corporate bodies, has simply change environmental legal issues in this regard. Recent developments in international environmental law coupled with membership of the European Union (EU) have all helped to influence pollution policy and the development of new controls. This is one of the superior arguments being put forward by the Pro-statutory command and control regime.
One advantage of command and control regime is that regulatory agencies are empowered and enabled to carry out their functions unhindered and as deem necessary using the authority bestowed on them. These powers are detailed in the relevant command and control framework or other legislation as applied to relevant industries. Their powers are not limited to investigatory powers, but they can gain entry onto premises, and inspect facilities, test equipments, and photograph details needed for investigation. It might even be dramatic by the removal of items for sampling. Contrarily, it has been observed that regulating the environmental damages and pollution through command-and-control statutory regime is designed to favour political interest on industries that ought to have been regulated, thereby reducing output and raising prices for anticipated benefits. This is one disadvantage of the command and control regime as applied to environmental damages and pollution.
CONCLUSION
All sectors of the global society now acknowledge the centrality of the environment to human existence. The promotion of human dignity is linked to the right to a healthy environment; this right highlights the dynamics of relationship between the individual and society. It was this disposition that Wolf also expresses concern that the law is in urgent need of amendment in order to establish a border line between an intentional pollution and an unavoidable pollution from, for example, salvage mission to save live or marine habitat. A typical case study is the Empress case. The Constitution should be interpreted in this modern age to both protect individual rights but also to allow the national wellbeing to run efficiently and to create a cleaner environment. Therefore, to conclude, the statutory “command and control” regime is well-intentioned but incomplete, and the civil liability regimes could be said to be insufficient and problematic in full practical application.
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References
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Cambridge Water Co v Eastern Counties Leather plc ((1994) 2 AC 264, 306) [1994] 2 WLR53,http://www.safetyphoto.co.uk/subsite/case%20abcd/cambridge_water_co_v_eastern_.htm (last accessed: 11th November, 2007)
Hutter, B, A Reader in Environmental Law, 1999, Oxford: OUP
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