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This research paper considers issues of environmental regulation and law enforcement, particularly in relation to violations of civil and criminal laws that are designed to prevent harm from occurring. The paper is concerned with describing official and unofficial responses to instances of environmental degradation. Therefore, the focus is on how to deal with offenders and offenses once specific harms or patterns of harm have been identified by the state and by non-state actors such as nongovernment organizations (NGOs). In essence, the concern is with what is to be done about environmental crime.
Global governance occurs within a complex legislative environment that incorporates many different laws, regulations, conventions, and guidelines that relate to local, national, regional, and international jurisdictions. Many different issues and trends are covered, relating to air, land, and water use; biodiversity; the transport and use of hazardous waste; and carbon emissions. Much of the formal state intervention involves regulatory engagement rather than criminal justice proceedings. Moreover, not all harms are criminalized or subject to state prohibition, leaving a space for non-state actors to partake in activities that challenge the lack of state intervention in protecting certain environments (e.g., campaigns against deforestation) or species (e.g., antiwhaling campaigns).
This research paper discusses the limits and opportunities for enhanced environmental regulation and law enforcement in a period witnessing the continued and growing destruction of environmental wellbeing on a global scale. For this enhancement to occur, there is a need for political will in favor of environmental protection and ecological justice, the fostering of stronger enforcement capabilities, close collaboration across agencies and state/ non-state sectors, and establishment of robust networks of environmental law enforcement officers and regulators. The central theme of the paper is the necessity for government and nongovernment agencies and actors to work together in a wide range of ways and contexts for the sake of better environmental governance generally.
It is rare that the state uses coercion solely or even as the key lever of compliance in relation to environmental laws. Rather, many different measures are used, frequently in conjunction with each other, as a means to deal with environmental harm. Likewise, there is a range of agencies that are assigned the task of ensuring compliance and enforcing the law vis-a` -vis environmental protection.
There are three broad approaches to matters pertaining to environmental criminalization and regulation (see White 2008). Each approach will be discussed separately below, although each is also intertwined with the other in varying ways and to different degrees. The first approach places the emphasis on social regulation, using many different means, as the key mechanism to prevent and curtail environmental harm. Attempts are made to reform existing systems of production and consumption through adoption of a constellation of measures, including enforced self-regulation and bringing nongovernment groups directly into the regulatory process. In the second approach the emphasis is on the use of criminal law as presently constituted. The focus here is on attempts to improve the quality of investigation, law enforcement, prosecution, and conviction of illegal environmentally related activity. The third approach is based upon social action and involves attempts to engage in social transformation through an emphasis on deliberative democracy and citizen participation, and support for radical social and economic change.
The environmental regulation approach emphasizes regulatory strategies that might be utilized to improve environmental performance, including “responsive regulation” (Ayres and Braithwaite 1992) and “smart regulation” (Gunningham and Grabosky 1998). These approaches attempt to recast the state’s role by using nongovernment, and especially private sector, participation and resources in fostering regulatory compliance in relation to the goal of “sustainable development.” Of great importance to these discussions is the perceived and potential role of third-party interests, in particular nongovernment environmental organizations, in influencing policy and practice (Braithwaite and Drahos 2000; Gunningham and Grabosky 1998).
The main concern of this kind of approach is with reform of existing methods of environmental protection. The regulatory field is made up of many different stakeholders and participants. These include, for example, businesses, employees, government agencies, communities, shareholders, environmentalists, regulators, the media, trade customers, financial institutions, consumers, and other relevant parties. The role and influence of various people and agencies is shaped by factors such as resources, training, information, skills, expertise, and legislation. These are also affected by the type of regulation that is the predominant model at any point in time.
It has been observed, for example, that the broad tendency under neoliberalism has been toward deregulation (or, as a variation of this, “self-regulation”) when it comes to corporate harm and wrongdoing (Snider 2000). In the specific area of environmental regulation, the general trend has been away from direct governmental regulation and toward “softer” regulatory approaches. This places most of the regulation obligation and responsibility into the hands of the non-state sector.
The continuum of regulation ranges from strict regulation through to no regulation (see White 2008). Measures include environmental impact assessments (EIAs), which generally relate to project development and planning issues, and environmental management systems (EMSs), which relate to business practices and internal use of resources, through to voluntary adoption of good environmental practices. The continuum reflects varying degrees of government intervention and oversight, ranging from high levels of command and control through to scarcely any state involvement whatsoever (the “voluntary” end of the regulatory continuum). In practice, most systems of regulation involve a suite of measures across this continuum.
Two general models stand out when it comes to regulation in general and environmental regulation in particular. The first is Ayres and Braithwaite’s notion of “enforced self-regulation” (1992). This is based upon a regulatory pyramid. The usual pyramid of sanctions has an extensive base with the emphasis on persuasion that rises to a small peak of harsh punishment. In the case of business transgressions, to take an example, the progression up the pyramid might include persuasion, a warning letter, a civil penalty, a criminal penalty, license suspension, and license revocation. By combining different forms of regulation, Ayres and Braithwaite (1992) reconstitute the usual regulatory pyramid such that the bottom layer consists of self-regulation, the next layer enforced self-regulation (via government legislation), the next layer command regulation with discretionary punishment, and, at the top, command regulation with nondiscretionary punishment.
Building upon the insights of these and other writers, Gunningham and Grabosky (1998) argue that what is needed is “smart regulation.” This basically refers to the design of regulation that still involves government intervention but selectively and in combination with a range of market and nonmarket solutions and of public and private orderings. The central thesis of “smart regulation” is that recruiting a range of regulatory actors to implement complementary combinations of policy instruments, tailored to specific environmental goals and circumstances, will produce more effective and efficient policy outcomes. Essentially this means incorporating into the regulatory field the full schedule of regulatory options, from direct regulation associated with command and control approaches through to voluntary schemes and economic incentive approaches (see Gunningham et al. 1998).
A number of issues arise in relation to how measures linked to the enforced self-regulation pyramid and smart regulation are utilized in practice. Questions can be asked regarding the following: the standards of what is deemed to be acceptable, the flexibility required in devising appropriate safeguards and strategies at local or site level, how to enact total management planning, what constitutes adequate monitoring, who is to do enforcement and compliance, what penalties and consequences are to consist of, how a plurality of instruments rather than a single approach is to be coordinated, how to deal with a culture of reluctance to use punitive measures against corporate misconduct, the general corporate immunity from prosecution and penalty, and why and how the extent of regulation varies according to size of firm.
What detailed examination of particular forms of regulation show, and what explorations of different approaches to environmental regulation acknowledge, is that how regulation is carried out in practice, and whose interests are reflected in specific regulatory regimes is basically an empirical question (see Stretesky 2006). That is, regulatory performance cannot be read off from an abstract understanding of regulation theory as such. Nevertheless, environmental regulation models directly influence the scope and possibilities of environmental regulation as it gets translated into practical measures at the ground level. The adoption of particular environmental regulation models thus helps to shape the methods and behavior of regulators. In ideal terms, the two key models of regulation discussed here would incorporate a range of actors and measures in order to “keep things honest,” presumably in ways that would be to the advantage of all stakeholders.
However, the continuing degradation of the environment today is linked to the dominant regulation and enforcement framework that puts the stress on self-regulation and deregulation. This is reflected in state policies and practices. For instance, very often the preference on the part of state authorities is for education, promotion, and self-regulation rather than imposition of directive legislation and active enforcement and prosecution (White 2008; South 2011). Yet, to be effective, those in charge of regulation and enforcement must be willing to utilize the “big stick” and to monitor compliance systematically and diligently. For example, persistent and continuous inspections, accompanied by substantive operational powers (including use of criminal sanctions), can in fact lead to rapid positive changes in the prevention of polluting practices (see Commission for Environmental Cooperation 2001; White 2011).
Snider (2000) describes how in Canada, despite policy directives specifying “strict compliance,” a permissive philosophy of “compliance promotion” has reigned. Given the tone of mainstream regulation literature (which offers a theoretical justification for enlisting private interests through incentives and inducements), it is hardly surprising that persuasion is favored at the practical level. Close examination of self-regulation models, however, finds evidence of regulatory failures, and this, in turn, indicates that governments cannot totally abdicate responsibility when a regulatory problem requires a state response (see Priest 1997–1998). Certain conditions are necessary if self-regulation, as such, is going to offer an effective form of regulation. The tendency, however, is for governments to shed regulatory functions and responsibilities and to rely upon the rhetoric and savings afforded by self-regulation (including at the international level, as illustrated by the powerful role of the private body, the International Standards Organization, in heavily influencing government policy responses to environmental regulation).
When considering environmental regulation, it is essential to consider the financial and political environment within which regulators are forced to work. For example, while never before in history have there been so many laws pertaining to the environment, it is rare indeed to find extensive government money, resources, and personnel being put into enforcement and compliance activities. Rather, these are usually provided in the service of large corporations, as a form of state welfare designed to facilitate and enhance the business climate and specific corporate interests. The fiscal crisis of the state, as manifest in massive budget cuts in Greece, Italy, Spain, Portugal, Ireland, Britain, and the United States, also bears with it a crisis in the regulatory field. Environmental protection agencies struggle with inadequate monies and demoralized officers as departmental belts are tightened and state priorities are placed elsewhere.
On top of all these difficulties, there are also special challenges for agency responses to transnational environmental harms in that many different jurisdictions have to be mobilized simultaneously around the same aims and objectives. Enforcement practices in these circumstances must be inclusive and comprehensive. This is achievable if there is enough consensus and political support among partner nation-states. Some of the issues that influence the manner and dynamics of global governance include the scale at which regulation and enforcement takes place (e.g., local council of a town or city, the nationstate, a regional grouping such as the European Union, or in the international sphere, Interpol); the type of collaboration, networks, and partnerships established in a particular area; the extent of harmonization of laws, enforcement practices, and communication strategies; and the sort of nongovernment organization involvement allowed, encouraged, and resisted in particular jurisdictional contexts.
Many contemporary regulatory approaches attempt to recast the state’s role by using nongovernment, and especially private sector, participation and resources in fostering regulatory compliance around the goal of “sustainable development.” Analyses of these new regulatory regimes, however, offer equivocal results in terms of effectiveness. For example, analysis of Canadian environmental law and policies reveals a patchwork of legislative and regulatory measures that fundamentally fail to protect the environment (Boyd 2003). At its broadest level, the ways in which regulation works or does not work are fundamentally shaped by systemic imperatives and philosophical vision. For instance, Boyd (2003) contrasts a model of regulation based upon an effort to mitigate the environmental impacts of an energyand resource-intensive industrial economy, with that based upon ecological principles that are oriented to decreasing the consumption of energy and natural resources. However complex the laws and regulations in the first scenario, they cannot succeed in achieving sustainability because the system as a whole is inherently geared to growth in energy and resource consumption. In the latter case, the emphasis is on restructuring the economy to incorporate ecological limits and thus to reduce environmental harm over time.
Environmental Law And Criminality
The multiple demands placed upon specific environmental protection agencies by different sections of government, business, and community, and the varied tasks they are required to juggle (e.g., compliance, education, enforcement) may lead to a dilution of their enforcement capacities and activities in both the national sphere and the international arena. However, this by no means derogates the importance of a “bottom line” when it comes to compliance with environmental laws and rules. Environmental regulation ultimately rests upon the grounded activities of environmental enforcement officers and courtroom practices that add punch to regulatory compliance. A range of penalty types, approaches, and mechanisms can be identified in regard to environmental sanctions. These fall into the broad categories of civil, administrative, and criminal justice responses. Recent developments in this area include the following types of sanctions (White 2010):
- Prosecution as a central tool in enforcement and compliance activities, which means using the full application of criminal laws and criminal sanctions strategically and in proportion to the nature of the offense, including the use of imprisonment
- Alternative sentencing mechanisms which involve the compulsory contribution of offenders to an environmental project that requires restoration or enhancement of the environment
- Civil penalties for less serious breaches of environmental law, which ensure timely and efficient application of sanctions appropriate to the nature of the offense
- Imposition of stricter liability regimes (and use of nominated accountability) given the technical and resource difficulties in prosecuting large companies, which criminalizes actions in ways that allow courts to sidestep some issues of mens rea in cases of corporate crime
- Tailored enforcement approaches that take into account organization type, which means that sanctions such as fines are suited to the firm type rather than the offense committed
- Restorative justice and enforceable undertaking approaches that can involve the offender, victim, and community mutually discussing the nature of the offense and suitable remedies, as a prosecution alternative, which are aimed at repairing the harm at a substantive level
The sanctioning process for environmental offenses presently covers a broad range of strategies, with new possibilities on the horizon. Bell and McGillivray (2008), for instance, mention the use of cumulative penalties, as in the case of point systems in motoring offenses, so that a penalty infringement notice (PIN) does not become “routine” or permit wealthy operators the “right” to pollute. The more often you cause harm, the greater the penalty each time.
The recent trend in countries like Australia toward alternative sentencing options reflects both the difficulties of prosecution, especially in relation to corporations, and a shift in thinking away from the offender toward addressing the nature of the offense. For instance, the range of sentencing options around Australia, while they vary from jurisdiction to jurisdiction, includes an increasing number and type of orders (Preston 2007):
- Orders for restoration and prevention
- Orders for payment of costs, expenses, and compensation
- Orders to pay investigation costs
- Monetary benefits penalty orders
- Publication orders
- Environmental service orders
- Environmental audit orders
- Payment into environmental trust or for other purposes
- Order to attend training
- Order to establish training course
- Order to provide financial assurance
How this burgeoning range of sentencing options translates into particular sentencing outcomes warrants ongoing and close scrutiny. This is not only a matter of how the tension between compliance and facilitation is reconciled within specific institutional settings (such as an Environmental Protection Agency). It also goes to the heart of the processes of prosecutorial and judicial intervention on issues pertaining to environmental harm and the valuing of environmental harm in and by the criminal justice system (White 2011).
Research is necessary, for example, to investigate how “value” is perceived by magistrates and judges in relation to particular environmental offenses, as reflected objectively in sentencing outcomes (i.e., sentencing patterns over time in relation to various environmental offenses). What is the (ecological and economic) cost, for example, of illegal land clearance, and how do we ascertain a suitable penalty for the harm caused by this activity? Similar questions can be asked in regard to illegal fishing, illegal logging, and so on. These kinds of issues are being addressed in various ways. For example, Interpol provides information to support the work of prosecutors of environmental crimes, while in England a substantial tool kit has been prepared to guide magistrates in assessing the seriousness of environmental offenses, determining sentencing criteria for environmental offenses, and working through specific types of cases (Interpol Pollution Crime Working Group 2007; Magistrates Association 2009). These documents are underpinned by the idea that we need to take environmental crime seriously, and to do so, we need sanctions that reflect the seriousness of the crime.
Environmental Law Enforcement
Similar types of training packages are also starting to be produced in the specific area of environmental law enforcement. For example, in South Africa a recent training manual for law enforcement agencies provides an outline of the key legal principles of environmental law; the types of environmental crime, issues relating to criminal prosecution (including consideration of strict liability and vicarious liability), environmental inspection, and investigation; the gathering of evidence (including different types of evidence), factors relevant to prosecution; and the nature of the trial process (Akech and Mwebaza 2010). There are many different challenges for environmental law enforcement, not the least of which is the need to collaborate and network with state and NGO agencies across many different jurisdictions. Getting offenders into court in the first place is the role of environmental law enforcement officials.
Environmental harm, as construed by law enforcement agencies, is basically about the violation of national and international laws put in place to protect the environment. What is legally deemed to be “bad” or criminal, therefore, is the main point of attention, whether this is illegal trade in wildlife and plants, or pollution of the air, water, and land.
Many jurisdictions have specialist agencies to tackle particular sorts of crime. An Environmental Protection Agency (EPA), for example, may be given the mandate to investigate and prosecute environmental crimes. The police may play only an auxiliary role in relation to the work of these agencies. In other circumstances and for other purposes, members of the police service may be especially trained as law enforcement officers in defined areas of work.
Many different agencies, at many different levels, deal with environmental crimes. For some, the central mandate of the agency is driven by the specific type of crime. For example, environmental protection agencies (or their equivalent) often focus on “brown” issues pertaining to pollution and waste. Forestry commissions or national park authorities (or equivalents) tend to concentrate on “green” issues and so deal with matters of conservation, animal welfare, and land use. Bodies such as the Royal Society for the Prevention of Cruelty to Animals (or equivalent) are charged with the responsibility to intervene in cases of harsh treatment of, particularly, domesticated animals (such as companion animals or those destined to be food). Customs services typically are on the lookout for trade in illegal fauna and flora, as well as the international shipment of toxic wastes and banned substances. Police services may have a general duty to protect animals and monitor the environment, while in some cases being vested with the lead role in wildlife offenses. The regulation and policing of fisheries may involve specific fishery management authorities and specially trained fishery officers. Health departments may be the key authorities when it comes to disposal of radioactive and clinical waste. Park rangers could be tasked with the job of preventing the poaching of animals from national parks and private reserves. The list of agencies that have some role in environmental law enforcement is extensive and probably expanding.
Who is doing what at the domestic level is further complicated by the geographical proximity of countries, as in the case in Europe, which facilitates the transference and extension of crime problems across national borders. This can be compounded by political arrangements, such as a common European passport and currency that makes it easier to move within the boundaries of the EU as a whole. From a domestic policing perspective, this means that there is a need for both vertical connections within any particular national context (around particular crime issues that involve local, regional, and national interests) and horizontal connections with relevant agencies outside of that specific country (given the relative ease of crossover into other jurisdictions).
Environmental policing thus is carried out in the light of both considerable variations in policing functions and agencies and in relation to different levels of government. To put it differently, those who do “policing” work may not be the police, and the police are not necessarily involved directly in all types of environmental law enforcement work. Environmental law enforcement includes officials working for local municipal councils (and rural shire councils) through to those working on behalf of Interpol in Thailand. It also includes a wide range of NGOs that operate in various official and unofficial capacities. For instance, animal welfare may be deemed to be the official responsibility of organizations such as the Royal Society for the Prevention of Cruelty to Animals (RSPCA) who then investigate and prosecute cases of animal abuse. Other NGOs, such as Greenpeace, Amazon, may not have an “official” role per se, but nonetheless gather evidence of things such as illegal logging which can then be passed on to relevant police and judicial authorities. Who precisely is going to deal with which type of crime is partly a function of the alleged offense, since this will often dictate the agency deemed to be responsible for a particular area – whether this is disposal of hazardous waste, trade in endangered species, illegal fishing, or money laundering associated with trafficking of illegal forest products.
The composition of domestic police and the orientation of policing may differ from country to country. In some countries, local specialists or specially trained police can also wear more than one hat. For example, in the United States “conservation police” (a term that broadly refers to fish and wildlife officers, wildlife management officers, game wardens, park rangers, and natural resources police) have authority to deal with both conventional crime and environmental crime (Shelley and Crow 2009). This means that in addition to investigation and enforcement of laws relating specifically to fish and wildlife issues, their activities can incorporate more generalist policing concerns, including those involving things such as drug law enforcement and human trafficking. Environmental crime of course includes transnational crimes such as the illegal transborder movement of wildlife species.
The plethora of players and laws demand an approach to law enforcement and compliance that necessarily must be collaborative in nature and that acknowledges that the skill set of domestic police is expanding. Dealing with transnational environmental crime will demand extraordinary efforts to relate to each other across distance, language, and cultural borders; to understand specific issues; to coordinate actions; to enforce national and international laws and conventions; and to gather and share information and intelligence. This occurs within a domestic context as well as internationally. Knowing who to talk with, under which circumstances, requires sophisticated understanding of the mission and capacities of multiple allied law enforcement agencies. It also demands close attention to interagency protocols, such as those relating to the sharing of information and intelligence.
Police cooperation across national and international borders is increasingly important given the greater interaction between national police services in the course of dealing with transnational environmental crime. The local, regional, and global dimensions of transnational crime pose a number of challenges for effective policing. Such crimes may be difficult to detect (as in the case of some forms of toxic pollution that are not detectable to human senses, or radioactive emissions from nuclear plants after disasters). They may demand intensive cross-jurisdictional negotiation and intervention, and even disagreement between nation-states, in regard to specific events or crime patterns. Some crimes may be highly organized and involve criminal syndicates, similar to illegal drug trading or the illegal arms trade. Others may include a wide range of criminal actors, ranging from the individual collector of endangered species to the systematic disposal of toxic waste via third parties. These various dimensions of criminality and harm pose particular challenges for law enforcement, especially from the point of view of police interagency collaboration, the nature of investigative techniques and approaches, and the different types of knowledge required for dealing with specific kinds of crime. Moreover, many of the operational matters pertaining to transnational crime are inherently international in scope and substance.
From the point of view of international law enforcement, agencies such as Interpol provide an organizational platform to address major crimes such as terrorism; illegal trade in arms, drugs, and wildlife; and human trafficking. The role of personnel working within and in collaboration with Interpol tends to be advisory rather than substantive. That is, Interpol acts as a conduit for the exchange of information, training, intelligence, and operational knowledge, but does not necessarily carry out direct investigations per se. It provides an active forum in which criminal investigators from around the globe meet to discuss issues such as determining the role of organized crime in specific types of criminal enterprises (e.g., people smuggling) and developing training and enforcement actions to combat particular sorts of criminal activity (e.g., illegal oil pollution into oceans, seas, and inland waterways).
The trans-border nature of illegal criminal operations – across state as well as international boundaries – means that often a local (such as Toronto Metropolitan Police) or state/provincial police service (such as Ontario Provincial Police) will necessarily have to work collaboratively with national agencies (such as the Royal Canadian Mounted Police), that, in turn, will have relationships with regional partner organizations (such as Interpol). In some instances, as with the Task Force on Organised Crime in the Baltic Sea Region (which includes representatives from Denmark, Estonia, the European Commission, Finland, Germany, Latvia, Lithuania, Poland, Russia, and Sweden), specific organizational structures are set up in order to share intelligence, in this instance, on environmental crime, and to develop cooperative enforcement structures to deal with offenders.
Dealing with transnational environmental crime demands new ways of thinking about the world, the development of a global perspective and analysis of issues and trends, the formation of formal and informal networks, and a commitment to particular crimes (e.g., toxic and e-waste) or thematic areas (e.g., illegal trade in endangered species) as a priority area for concerted police intervention. The challenges faced by police in affluent countries of the West will be different to their counterparts in third world countries, in countries undergoing rapid social and economic changes, and in countries where coercion and corruption are generally unfettered by stable institutional controls. Law enforcement practices and institutions in countries such as Brazil, Mexico, Indonesia, and the Philippines, for example, are beset by problems such as poor interagency cooperation; inadequate budgetary resources; and technical deficiencies in laws, agency policies, and procedures (Akella and Cannon 2004). These challenges are not unique to these countries: more investment in enforcement policy, enforcement capacity, and performance management is essential regardless of jurisdiction.
Specific forms of criminal law enforcement will require collaboration between different nation-states and different environmental law enforcement services. The development of capabilities in the specific area of transnational law enforcement is necessary and is inevitable given world trends. This includes the “soft skills” of interpersonal communication that enhance cooperation between groups. An important part of this process is the development of a shared consciousness of issues and a sense of what represents justice among enforcement personnel. Understanding the complexities of global issues is an important step in forging a transnational value system protective of collective social interests, ecological well-being, and human rights.
Fighting transnational crime will frequently demand a worldwide response. The role and capacity of domestic law enforcement agencies is an essential component in how responses to harms of a global nature will be framed and implemented. Most intervention occurs locally, even where national and international law enforcement agencies are called in and directly involved. In the end, to be effective, agencies need to be able to harness the cooperation and expertise of many different contributors and to liaise with relevant partners at the local through to the international levels. A “joined-up” approach also means that links can be made between different forms of crime as well as between different agencies and different parts of the world. For instance, illegal fishing (an important environmental crime) has been tied to trafficking of persons, smuggling of migrants, and the illicit traffic in drugs. This is due to the influence of transnational organized crime in the fishing industry worldwide (UNODC 2011).
Yet separate jurisdictions frequently have different laws, policies, and law enforcement practices. The notion of “harmonization” refers to attempts to provide uniformity across diverse jurisdictions. Attempts to harmonize laws, regulations, and practices are increasingly evident in countries with federal systems of governance (e.g., standardization of laws, policies, and practices across the states and territories of Australia), in regions striving for improved forms of integration (e.g., across the member countries of the European Union), and in relation to attempts to create global consensus around issues such as international terrorism, the illicit drug trade, and, for present purposes, environmental crime (e.g., adoption of common definitions and protocols within the context of United Nations’ agencies).
The impetus toward harmonization generally stems from a concern that there is often significant variation in cross-jurisdictional roles, strategies, and practices in relation to specific types of crimes. For transnational crimes such as trafficking in endangered species, harmonization aims to improve capacity and to ensure that police and other law enforcement officials are responding in similar fashion across the globe. In a nutshell, harmonization, at the global level, is informed by the observation that criminal networks operate with little concern for boundaries and borders, form relationships necessary to carry out crimes, and have the ability to act fluidly and adapt to external influences including enforcement activity. By contrast, law enforcement agencies generally operate strictly within regional or national boundaries, do not communicate effectively with one another, and take years to adapt to developing crime trends both tactically and legislatively.
Harmonization of legislation is viewed as a way of overcoming these types of enforcement limitations (Broodman 1991; House of Representatives 2006). It is also perceived as central to a consistent conceptualization of transnational environmental crime, to fostering more effective levels of cooperation among participating states, and contributing to a uniform legal framework. Perceived advantages include reducing complexity and increasing efficiency, and ensuring a consistent approach to particular criminal activities across jurisdictions.
Establishment of uniform laws is only one approach to harmonization endeavors. Such a legal approach may be accompanied by disputes over the content of substantive legislation and by difficulties in the administration and complexity of delivery based upon the legislation. Accordingly, at a practical level, a more productive strategy for harmonization is to focus on consistency in delivering regulatory and enforcement tasks, rather than focusing on uniform legislation as such. For instance, international networks of law enforcement officers (e.g., Interpol or organizations such as the International Network of Environmental Enforcement and Compliance) provide invaluable forums for the exchange of information and knowledge transfer about “best practice” and “what works” in which situations. Participation in common training programs and attendance at conferences and workshops provide opportunities to enhance overall law enforcement capabilities as well as contribute to shared understandings and values in regard to specific types of criminal activity. Importantly, the use of regional case studies and reference to local experiences both reaffirms the importance of acknowledging specific jurisdictional differences and creates opportunities for the adoption of a more balanced view of what constitutes the most productive law enforcement approaches and strategies.
Social Action And NGO Engagement
The main emphasis in regulation and criminal justice approaches is how to best utilize existing legal and enforcement mechanisms to protect environments and creatures within specific environments (e.g., illegal fishing). One can chart existing environmental legislation and provide a sustained socio-legal analysis of specific breaches of law, the role of law enforcement agencies, and the difficulties and opportunities of using criminal law against environmental offenders (Situ and Emmons 2000). This is the key focus of those with a particular interest in the role of the police and other official agencies in environmental law enforcement. For those who view environmental harm in a wider lens than provided by criminal law, this approach has clear limitations (White 2011). In particular, the focus on criminal law, regardless of whether or not the analyst is critical or confirming, offers a rather narrow view of “harm” that can obscure the ways in which the state facilitates destructive environmental practices and environmental victimization. In other words, a strictly legal definition of harm belies the enormous harms that are legal and “legitimate” but that nevertheless negatively impact on people, environments, and animals.
The dearth of adequate controls and regulatory actions within official criminal justice and state offices on matters pertaining to environmental harm is a problem of considerable proportions.
To put it simply, not enough is being done to prevent, prosecute, and respond to environmental crime (see White 2010, 2011). Accordingly, it is very often transnational environmental activists who have stepped into the breach, exposing instances of ecological and species harm, providing details of poor regulation and enforcement practices, and contributing both formally and informally to crime reduction and prosecution processes. As increasingly important players in the world of environmental protection, conservation, and management, environmental activists frequently have to both confront powerful social, economic, and political interests and work with and alongside powerful groups, organizations, and state apparatus.
Environmental activism involves many different individuals, groups, and organizations, with diverse aims and missions, employing a wide variety of tactics and strategies. Key international nongovernment organizations (NGOs) include, for example:
- Friends of the Earth
- World Wide Fund for Nature
- Sea Shepherd
- Bird Life International
- Climate Action Network
- Biodiversity Action Network
- Humane Society International
- Sierra Club
- Environmental Investigations Agency
- Basel Action Network
- Environmental Justice Foundation
This list of named organizations extends into the hundreds (and indeed, the thousands) and includes local neighborhood action groups through to transnational or global NGOs.
The focus of activists varies greatly (White 2008). “Brown” issues tend to be defined in terms of urban life and pollution (e.g., air quality), “green” issues mainly relate to wilderness areas and conservation matters (e.g., logging practices), and “white” issues refer to science laboratories and the impact of new technologies (e.g., genetically modified organisms). There is generally a link between environmental action (usually involving distinct types of community and environmental groups) and particular sites (such as urban centers, wilderness areas, or seacoast regions). Groups are also demarcated by particular notions of justice, including those relating to environmental justice (e.g., specific human communities), ecological justice (e.g., protection and conservation of particular ecosystems), and species justice (e.g., animal rights and welfare).
Environmental activism deals with acts and omissions that are already criminalized and prohibited, such as illegal fishing or illegal dumping of toxic waste. But it also come to grips with events that have yet to be designated officially as “harmful” but that show evidence of exhibiting potentially negative consequences. It thus deals with different kinds of harms and risks, as these affect humans, local and global environments, and nonhuman animals. Not surprisingly, very often the target for action, and the object of change, is the state. In part this is because much environmental destruction globally is supported by particular nation-states in collusion with powerful corporations. This can take the form of acts of commission or of omission (see Kauzlarich et al. 2003). For example, some acts of harm are perfectly allowable and receive the approval of state authorities (e.g., clearfell logging). Other acts are illegal, but, without adequate state resources, are in effect allowed to occur as a matter of course (e.g., disposal of hazardous waste). Specific types of transnational environmental crime are basically linked in some way to the nature and extent of state intervention (or nonintervention), which in turn depends on the geographic location and political-economic importance of the specific activities in question.
The justification for legal and illegal actions around environmental and animal issues relates to perceptions that many presently legal activities in fact constitute a crime against nature (whether this be a forest or in relation to animals). Conversely, some of the types of actions taken to protest against these alleged crimes are themselves subject to considerable criticism on the basis of their present illegality (and, indeed, the harm they bring to others). Indeed, the use of both confrontational and conciliatory tactics is more than apparent when considering the actions of activists, states, and corporations (see White 2012). The point is that there are complex relations between activists, states, and corporations, relations that shift and change as individuals, groups, and agendas are transformed over time. This extends to issues of environmental governance and law enforcement as well.
At the level of practical interventions, activists engage in varying types of activity. Some organizations engage in militant and spectacular actions (e.g., Greenpeace and Sea Shepherd anti-whaling campaigns). Others focus on specific issues and work closely with governments and international regulatory bodies to enact change. For example, the Antarctic and South Ocean Coalition (ASOC) is an NGO established in 1976 to coordinate the activities of over 250 conservation groups on matters such as Patagonian tooth fish management. In so doing, it works closely with governments in confronting issues associated with illegal, unreported, and unregulated fishing. So too do groups such as the Environmental Investigations Agency and the Freeland Foundation for Human Rights and Wildlife, which engage in independent investigations of illegal environmental activities, gathering evidence that is eventually handed over to local police authorities and which is suitable for prosecutions in relevant jurisdictions and courts.
Other groups, such as the Animal Liberation Front (ALF), use a variety of tactics that raise awareness about systematic animal cruelty. Breaking the law (such as illegal entry into animal laboratories or battery hen farms) is considered legitimate if it means that public consciousness is heightened and immediate harms to animals diminished through such actions. Some groups resort to tactics that have been described as ecoterrorism. Earth First!, for instance, has advocated a form of “strategic ecotage,” that is, environmentally related sabotage, that has involved sabotaging the machines that destroy forests (e.g., monkey wrenching). Direct action by environmental activist groups has included blockades of logging roads, tree sit-ins, demonstrations, protests, and destruction of machinery including through tree spiking.
As indicated earlier, NGOs can have both formal and informal roles in environmental regulation and law enforcement. So-called “wildlife” NGOs such as the RSPCA may be granted official status and legal rights in regard to investigation and prosecution of animal abuse. Local environmental groups may be given a supplementary regulatory role, officially supported and partially funded by the state, to do such things as monitoring water quality at the regional or municipal level. For those agencies and groups contracted to do this kind of work issues of resources, specialist equipment and staff/volunteer training are important, as are questions concerning the effectiveness of NGO participation in securing good regulatory outcomes.
The role of nongovernment organizations in dealing cooperatively with police and other law enforcement officials to bring criminals to justice should not be underestimated. For example, convictions for illegal logging and for illegal trade in wildlife in places such as Brazil or Russia have been produced through the direct engagement of formal police services with NGO environmental activist organizations. This has involved collection of information and intelligence by NGO personnel that has then been forwarded to relevant authorities in the respective jurisdictions. While the NGOs may at one level be transnational organizations (e.g., Greenpeace), it is relationships forged with domestic police that make the difference when it comes to prosecution and sentencing.
Emerging issues in regard to the specifically regulatory or enforcement role of NGOs include matters such as:
- The nature of expertise (e.g., environmental forensic training, identification skills vis-a`-vis endangered species)
- Investigatory skills (i.e., the lack of specialized training in detection, investigation, evidence collection, and case preparation)
- Displacement of formal authority role (e.g., where NGOs end up doing what should be done by formal state agencies)
- Cost-saving measures rather than intrinsic value adding to environmental law enforcement (e.g., EPA reliance upon volunteer groups to collect data, over which the volunteers have no control)
- “Western” agenda setting (e.g., protection of conservation reserves to the detriment of traditional users and owners of the land)
There are many ways in which transnational environmental activist groups can work with official agencies and personnel to achieve similar goals, including sharing of intelligence and joint efforts to gather evidence against wrongdoers. On the other hand, in countries and regions where legal and illegal logging is built into the fabric of state-corporate collusion, it may well be the policing of anti-logging activists that predominates. The specific status and role of NGOs will thus vary depending upon immediate social and political circumstances.
This research paper has provided a brief outline of environmental regulation and law enforcement. Contemporary regulation theory stresses the importance of “third parties” as part of the regulatory process. As this research paper has demonstrated, such considerations are vital when it comes to environmental crime. This is because of the plethora of “official” state agencies involved in many different types of environmental crime, and the active role of NGOs in likewise investigating and contributing to exposure of environmental harm and offender wrongdoing.
There are thus many different stakeholders engaged in environmental regulation and law enforcement. This makes issues of collaboration, coordination, and harmonization especially important. A common feature of much work in this area, however, is the lack of political will and financial resources in regard to environmental protection. Thus, while EPAs and the like struggle along with meager budgets and low staff numbers, and NGOs do what they can to highlight environmental degradation and species harm, there is still much that needs to be done. For this to occur, the “environment” must come to the fore as an issue of considerable public interest and public standing. It is the politics of the environment that ultimately determines the extent and effectiveness of environmental regulation and law enforcement.
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