Designing an Effective System of Environmental Laws: a Few Basic Considerations

IFSR Newsletter 1993 Vol. 12 No. 1 June
Prof. Dr. Herbert Wegscheider, lnstitute of Criminal Law, University of Linz, and Dr. Stephen Sokoloff
Nowadays we are becoming increasingly aware of the threat of environmental disaster and many authorities concede that it will be necessary for us to move rapidly in the direction of sustainable economic and social development (“qualitative instead of quantitative growth”), as delined by the Brundtland-Fleport. Certainly, however, this kind of reorientation cannot be achieved solely through appeals to reason or morals; a system of effective legal constraints will have to be imposed.
What sort of concrete measures might this entail? Unfortunately, environmental laws generally do not fulfill their intended functions. By determining the reasons for past failures we might, however, be able to avoid repeating them. Besides, in recent decades a few models have emerged that are workable and worthy of imitation.
Priority for Economic Regulation
We can be certain that environmental destruction will continue as long as some people profit from it. Appropriate taxes and fees (e.9. on fossil fuels) would discourage both pollution and the excessive utilization of non-renewable natural resources. The funds they generated could be used to promote the development of solar and other environmentally compatible technologies.
One promising system of economic control which is obtaining increasing popularity in the United States involves emissions credits. For a certain fee the state grants industries pollution rights. These are issued until a predetermined limit is attained. They can be resold; only supply
and demand dictate their price. This approach is not applicable to all situations, however. It works best for the regulation of a small number of large polluters emitting toxins into a single local medium such as a lake or the air around an industrial center.
Legal Measures
Of course, economic controls can never completely replace classical laws; after all, new plants have to be approved, poisonous products must be banned and it is necessary to punish violations. One common complaint is that environmental regulations are often hard to find. Frequently they consist of clauses and paragraphs inserted into laws whose content is primarily non-environmental. A demand has arisen for their codification, and Switzerland has already taken some steps in this direction.
As far as the environment is concerned, administrative law is by far the most important legal field. It includes, for example, the innumerable and often confusing norms for routine plant operations and approval procedures. Environmentalists have good reasons to complain that many of these regulations exist only on paper. Violations are rampant, since surveillance is generally inadequate. Separate, well-equipped and adequately-staffed controlling authorities, preferably ones independant of the regulative bureaucracies, could remedy this situation. They should be authorized to measure industrial emissions at the source (e.9. the factory smokestack). It would be better to prohibit all large-scale emissions and issue only individual exceptions. Unfortunately, governments usually resort to the reverse procedure; they allow all pollution that is not explicitly proscribed. Flexible emissions limits is another demand; these should be reduced whenever new, more efficient anti-pollution technology becomes available. And finally, conservation groups and other concerned parties must have the right to participate in environmental administrative procedures.
Criminal law has been designed to punish the most serious offenders, but in environmental cases the “big fish” usually go free. One reason is the priority given to administrative regulations. Irregardless of the damage resulting from his plant operations, a factory owner, for example, is in most cases acquitted of criminal charges. Only when approved procedures such as emissions limits have been violated can he be convicted. We must remember that usually-safe norms may in exceptional situations (such as inversions of atmospheric layers) prove hazardous. Therefore plant owners should, when necessary, be required to take precautionary measures such as reducing emissions – just as automobile drivers have to watch out for pedestrians, even for those crossing the street on “red”. The current practice amounts to a favoring of profit interests over environmental protection and public safety.
Environmental cases often present great difficulties for judges and prosecuting attornys. These officials are neither engineers nor chemists and yet they may have to decide under which conditions a certain technical procedure is safe or what concentrations of various organic compounds are tolerable in drinking water. Of course they can rely upon expert opinions, but these are often confusing and contradictory. They should be given better training in legally relevant aspects of the natural sciences.
With the current constraints which are placed on it, environmental civil law is merely useful for the protection of property rights. It could however, be converted into a more incisive antipollution instrument. One of its alluring features is the use it makes of “controllers” who are not paid officials but citizens acting without remuneration, guarding personal interests. They are, however, currently in a poor position to sue for emissions reductions – and not just compensation for damages. When the accusation is plausible, we feel that it is justifiable to compel the enterprise, in accordance with current Japanese practice, to assume the burden of proving its innocence. After all, every factory keeps a record of its operations, but plant outsiders are often hard pressed to demonstrate the origin of a toxin; compounds don’t have any labels on them. Finally, the law should permit environmental organizations and similar groups – and not just property owners with damage claims – to sue polluters in civil courts.
We have attempted to describe some of the imposing array of legal and economic instruments which environmentalists now have at their disposal. Of course these methods have to be improved upon and more effectively employed. Ultimately it will be necessary to determine by trial and error what kind of a comprehensive multidimensional approach is best suited for bringing environmental pollution under control.
Prof. Wegscheider is a specialist on environmental criminal law. Together with Dr. Sokoloff he has written a popular book on Austrian environmental problems and the laws designed to ameliorate them: Recht auf Umwelt, Orac Verlag 1991 , Vienna,AS 198,-.

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