REGULATING ENVIRONMENTAL CRIME

A study on greatest threat to our future

Written By:
Harjeev Kaur
Student, B.A.LL.B (Hons.), 10th Semester
Rayat College of Law, Rupnagar
E-mail: [email protected]
Address: #84, Model Town, Kurali, Distt: SAS Nagar, Punjab.
Contact Number: 9041393526
 Abstract

Environmental crimes can be broadly defined as illegal acts that directly harm the environment. Often
perceived as victimless and incidental crimes, environmental crimes frequently rank low on the law
enforcement priority list, and are commonly punished with administrative sanctions which are
themselves often unclear and minor. This research paper revolves around the central idea of achieving
the environmental justice by discussing the various provisions for regulating environmental crimes.
The author has attempted to research the role of national and international units of government in
managing the environmental crimes and issues therein. The study also outlines the various
constitutional provisions, statutory provisions and policies which have been adopted to imbibe the idea
of green crimes in India. The research also tends to understand the concept as it is viewed in different
developed countries like Australia, UK and USA etc. The researcher’s work on environmental crimes
has observed that while crime is a dynamic concept and so is the changing environment, so coherent
efforts are needed to be taken so that environmental offenders don’t go unpunished.

Keywords: Green Crimes, environmental crimes, constitutional provisions.

 I. INTRODUCTION

The paper is focused on the phenomena of rising number of environmental offences and at their
effects, which are increasingly extending beyond the borders of the States in which the offences are
committed. Such offences pose a threat to the environment and therefore call for an appropriate
response. Generally environmental crimes involve wildlife crime such as illegal exploitation of the
world’s wild flora and fauna, while pollution crime is the trade and disposal of waste and hazardous
substances in contravention of national and international laws. Moreover, in addition to those, new
types of environmental crime are emerging, such as carbon trade and water management crime.
Practice has shown that the existing systems of penalties have not been sufficient to achieve complete
compliance with the laws for the protection of the environment. Such compliance can and should be
strengthened by the availability of criminal penalties, which demonstrate a social disapproval of a
qualitatively different nature compared to administrative penalties or a compensation mechanism
under civil law. Perceived as ‘victimless’ and low on the priority list, such crimes often fail to prompt
the required response from governments and the enforcement community.1

Environmental crimes by their very nature are trans-boundary and involve cross-border criminal
syndicates. A tiger skin or an ivory tusk passes through many hands from the poaching site to the final
buyer. A tree felled illegally can travel around the world from the forest via the factory to be sold on
the market as a finished wood product. In the era of global free trade, the ease of communication and
movement of goods and money facilitate the operations of groups involved in environmental crime.

The development of statutory enforcement agencies has struggled to keep pace with such change, and
issues such as jurisdiction restrict efforts to foster better cross-border cooperation against crimes like
illegal logging. These factors lead to a situation where environmental crimes offer high profits and
minimal risk. It is time for the international community to wake-up to the menace of environmental
crime and show the necessary political will to tackle the criminal gangs plundering our planet for a
quick profit.

Environmental crime is at least as serious as any other crime affecting society today. In contravention
of numerous international treaties, the principal motive for environmental crime is, with rare
exception, financial gain and its characteristics are all too familiar: organised networks, porous
1
Challenges in regulating environmental crimes, available at: https://bib.irb.hr/datoteka/871672 .IMSC2017_Luttenberger
_and_ Runko _Luttenberger.pdf (last visited on March 5, 2019).
 borders, irregular migration, money laundering, corruption and the exploitation of disadvantaged
communities.2

To this effect, the present work intends to look forward into the aspects of environmental crimes as it
viewed in India by studying the various policies, provisions both constitutional and statutory adopted
by India.

II. BASIC CONCEPTS

 Crime

A precise definition of ‘Crime’ is by no means an easy task. Generally speaking, almost all societies
have certain norms, customs and traditions which are implicitly accepted by its members as conducive
to their well being and healthy development. Infringement of these cherished norms and customs is
condemned as anti-social behaviour. Thus, many writers have defined ‘crime’ as an anti-social,
immoral or sinful behaviour. However, according to the legal definition, ‘crime’ is any form of
conduct which is declared to be socially harmful in a State and as such forbidden by law under pain of
some punishment. 3

 Criminology

The term ‘criminology’ is derived from the combination of two Latin words crimen and Greek word
logia. Etymologically, it stands for ‘scientific study of the nature, extent, causes and control of
criminal behaviour.’4

 Environmental Crime

An environmental crime is a violation of environmental laws that are put into place to protect the
environment. When broadly defined, the crime includes all illegal acts that directly cause environmental
harm. Such crimes are also referred to as ‘crime against the environment.’ Although all illegal acts in

2
Environmental Crime, available at: https://www.unodc.org/documents/NGO/EIA _Ecocrime _report_ 0908 _final _draft_
low.pdf (last visited on March 5, 2019).
3
Dr. N.V. Paranjape, Criminology, Penology, Victimology 8, (Central Law Publication, Allahabad, 17th edn., 2017).
4
Dr. N.V. Paranjape, Criminology, Penology, Victimology 21, (Central Law Publication, Allahabad, 17th edn., 2017).
violation of environmental legislations are environmental crimes, international bodies such as the UN
Interregional Crime and Justice Research Institute, G8, Interpol, EU, and UN Environment Programme
have identified some specific crimes that come under the environmental crimes category. These include:

Dumping industrial wastes into water bodies, and illicit trade in hazardous waste in contravention of the
1989 Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and Other
Wastes and their Disposal; Unreported, unregulated, and illegal fishing in contravention to controls
imposed by various regional fisheries management organizations; Buying and selling endangered
species in contravention to the Convention on International Trade in Endangered Species of Fauna and
Flora (CITES); Smuggling of Ozone depleting substances (ODS) in contravention to the 1987 Montreal
Protocol on Substances that Deplete the Ozone Layer; Illegal logging and trade in stolen timber in
violation of the wildlife laws.5

 Green Criminology

Green criminology is a branch of criminology that involves the study of harms and crimes against the
environment broadly conceived, including the study of environmental law and policy, the study
of corporate crimes against the environment, and environmental justice from a criminological
perspective.6

III. PROVISIONS REGARDING ENVIROMENTAL CRIMES IN INDIA

1. Constitutional Provisions:
The basic legal and institutional framework of governance and public policy in India is provided in the
Constitution of India. This comprehensive “supreme law of India”, as it was originally adopted,
nowhere uses the term “environment” nor does it provide any direction or guidance to the State, its
institutions, or citizens for dealing with matters related to the environment, forests, wildlife, or
management of natural resources. Even Part-IV of the Constitution which enumerates the Directive
Principles of State Policy refrains from laying down any general or specific principles or directives on
any matter related to the environment.

5
Environmental Crime Law and Legal Definition, available at: https://definitions.uslegal.com/e/environmental-crime/ ( last
visited on March 5, 2019).
6
Green Criminology, available at: https://en.wikipedia.org/wiki/Green_criminology (last visited on March 5, 2018).
This scheme of Constitutional arrangement, as originally provided, has undergone a complete paradigm
shift since the mid-1970s. The Constitutional Amendments were made by which significant changes
were brought about not only to incorporate the issues related to “environment” in the Constitution, but
also to redefine the powers and responsibilities of the Union and State governments on environmental
matters. The most important was the Constitution (Forty Second Amendment) Act 1976. This
amendment inter alia introduced the following three changes in the Constitutional arrangements:

i. “Forests” and “protection of wild animals and birds” were deleted from the State List and
included in the Concurrent List,7 which implied that both the Union and the State governments could
enact laws on the subject. In case of a conflict between the State laws and the Central laws, the later will
prevail.8

ii. Article 48A was inserted in Part IV of the Constitution on Directive Principles of State
Policy, which reads as: Protection and improvement of environment and safeguarding of forests and
wild life — The State shall endeavour to protect and improve the environment and to safeguard the
forests and wildlife of the country.

iii. Article 51A on Fundamental Duties was inserted in Part IVA of the Constitution. Article
51A (f) states that it shall be the duty of every citizen of India to protect and improve the natural
environment including forests, lakes, rivers, and wildlife, and to have compassion for living creatures.

These amendments are significant, as for the first time ever, “environment” received
constitutional recognition. The express provisions in the Constitution enjoined both the State and the
citizens to protect and improve the environment. The Union government was authorized to legislate on
forests and wildlife. This opened a flood gate of legislations on the environment, mostly on the initiative
of the Union government.

2. International Treaties
The other way by which environmental legislations came to occupy the statute book was through the
international treaties, conventions, and protocols which India signed and ratified over the years. These

7
Entry 17A and 17B of the Concurrent List.

8
Article 241 of Constitution of India.
created obligations for developing appropriate domestic, legal, and institutional framework for
implementing these treaties and conventions. For example, the Stockholm Declaration on Development
on Human Environment 1972 was categorical in saying, “Local and National governments will bear the
greatest burden for large-scale environmental policy and action within their jurisdictions”. 9 The Rio
Declaration on Environment and Development 1992 enjoined the states to “enact effective
environmental legislation, environmental standards, and management” 10 and “develop [a] national law
regarding liability and compensation for the victims of pollution and other environmental damage”.11
Almost every other international convention, treaty, or protocol that India signed and ratified created
binding obligations on its part to implement them by way of enacting laws, developing plans and
programmes, allocating resources, monitoring implementation, and submitting its progress report to the
world bodies. Article 253 of the Constitution of India was the enabling provision that empowered the
Union government “to make any law for the whole or any part of the country, to implement any treaty
agreement or convention with any other country or countries or any decision made of any international
conference”, irrespective of the entries in the Seventh Schedule of the Constitution. A number of
environmental legislations in India, such as the Environment Protection Act 1986, were enacted through
this route.

3. Judicial Pronouncements:
The third process by which the environment became a part of the Indian legal system was through
environmental jurisprudence by which the Supreme Court of India and many State High Courts liberally
interpreted the Fundamental Rights of citizens to include the right to live in decent environment. In R L
& E Kendra v. State of UP12 the Supreme Court held: Slow poisoning by the polluted atmosphere caused
by the environmental pollution and spoliation should also be regarded as amounting to violation of Right
to Life under Article 21 of the Constitution. In the Dehradun Quarrying case 13, it “constructed” the right
to wholesome environment to nullify government sanction for mining “arbitrarily” without adequate
consideration of environmental impacts. The Supreme Court and the High Courts also accepted various

9
Para 7 of the Declaration of the United Nations Conference on the Human Environment (1972).

10
Principle 11 of the Rio Declaration (1992).

11
Principle 13 of the Rio Declaration (1992).

12
AIR (1985), SC 652

13
M C Mehta v. Kamal Nath, (1996) 1 SCC 38.
Public Interest Litigations (PILs) on environment and laid down a number of doctrines based on the
declaration of the international conventions and policy statements of the governments in different
forums and on the newly inserted Article 48A in the Directive Principle of State Policy

4. Legislations:
The final process of the changes in the legal system was done by the law-making body, the Parliament of
India, which enacted as many as 13 major legislations on environment since the 1970s. Before the
1970s, India had only two major laws on environment — The Forest Act, 1927, which was passed to
serve the British colonial interests, and the Factories Act 1948, which was passed by the British
Parliament to safeguard the health of the labourers. Post 1970s laws include the Water (Prevention and
Control of Pollution) Act 1974, Water (Prevention and Control of Pollution) Cess Act 1977, Air
(Prevention and Control of Pollution) Act 1981 and its Amendment in 1987, Atomic Energy Act 1982,
Environment Protection Act 1986, Motor Vehicles Act 1988, Wildlife (Protection) Act 1972 and its
Amendment 1991, Forest (Conservation) Act 1980, Environment (Protection) Act 1986, National
Environment Appellate Authority Act 1997, Coal Mines (Conservation and Development) Act 1974,
Public Liability Insurance Act 1991, National Environment Tribunal Act 1995, etc. These are all Central
laws enacted by the Union government which extends to the whole of the country. The implementation
of these Acts is the responsibility of the states as well as to the Union and other stakeholders, as
specifically provided in the Acts. These Acts have created uniform legal and institutional framework
throughout the country for the conservation of natural resources and protection of environment and is
accepted by the State governments without any reservation.

5. National Policies, Plans, and Programmes14

India formulated its first National Forest Policy in 1952, which was subsequently revised in 1988. But,
India did not have a national environment policy until 1992. A statement on environment and
development was issued in 1992 and a National Policy on Environment was finally released in 2006.
None of these policies significantly raised the issue of the role of the State vis-à-vis the Union
government in the implementation of the policies. The National Environment Policy 2006 skirted the
issue by making the following generic statement which places the states almost in the same footings as
the Local authorities. The policy however made significant statements on some of the core issues of

14
PG Dhar Chkrabarti, “Federalism and environment policy in India”, PG Dhar Chakrabarti And Nidhi Srivastava et.al.
(eds.) , Green Federalism Experiences and Practices 67(2015)
decentralization. The environmental issues were explicitly recognized for the first time in 4th Five-Year
Plan (1968–73) which mentioned the “interdependence of living things and their relationship with land,
air, and water” and the need for harmonious development. The 6th Plan (1980–85) for the first time
devoted a full chapter on environment and recognized the “imperative need to carefully husband our
renewable resources of soil, water, plant, and animal life to sustain our economic development”. It
expressed concern over depletion of natural resources and the deterioration it has caused in the quality of
life of the people and called for a “bold new approach to development”. The successive Five-Year Plans
repeated the same concern and funded a number of central and centrally sponsored schemes to support
the States in the implementation of various policies on the environment. However, considering the wide
range of responsibilities that were reposed on the States by Central laws and international agreements on
different aspects of management of environment, such support was considered far too inadequate.

IV. GREEN CRIMES vis-à-vis OTHER COUNTRIES

 USA

Environmental crimes typically involve the unauthorized disposal of hazardous material or discharge
of pollutants into the air, water, or ground. In order for such activity to be deemed criminal, the
government must usually be able to show that the discharge was not accidental. Most criminal laws
require that a prosecutor demonstrate the defendant was aware of the activity for which the charge was
filed. Because this requirement is not clearly specified in many environmental statutes, the government
has had some difficulty successfully prosecuting environmental crimes. The more extreme the violation,
however, the easier it becomes to prove in a court of law that the action should be considered criminal.
Several environmental statutes have established a special category of criminal liability in which the
"knowing endangerment" of people or the environment has occurred.

The Environmental Protection Agency (EPA) is responsible for coordinating all environmental
protection actions at all levels in the United States. Although the EPA is the federal agency that most
frequently investigates environmental crimes, Congress has not granted it the power to prosecute
environmental crimes. Instead, after an agency official has determined that the violation of an
environmental regulation is potentially criminal in nature, EPA issues a recommendation to the U.S.
Department of Justice (DOJ) that charges should be filed against the violator. After investigating the
case further, a U.S. attorney uses prosecutorial discretion in deciding whether or not to proceed with a
criminal case. Several factors are important to the prosecutor in deciding whether the behavior should be
considered criminal, including the severity of the actual or potential damages, whether intent has been
shown, whether the violator was cooperative, and whether there is a history of similar violations. If the
prosecutor decides to file charges, the defendant has the same constitutional rights and protections that
are provided in any criminal case.15

 Australia

National controls against environmental crime reflect international expectations and sovereign interests
and standards. At present in Australia, there are in excess of 150 statutes and associated regulations
pertaining to environmental conservation, management and protection, divided between the
Commonwealth and the states and territories.

Determining which model of regulatory practice is the best fit for preventing and deterring
environmental offences has dominated the discourse on environmental crime. Two models of regulation
are Scholz’s (1984a, 1984b) tit-for-tat enforcement strategy (TFT) and Braithwaite’s enforcement
pyramid (Ayres & Braithwaite 1992; Braithwaite 1989; 1985). These were first developed for regulation
of businesses but adopted and shaped by environment protection agencies. The TFT and the enforcement
pyramid are both based on the premise that best-practice regulation must incorporate a mix of
punishment and persuasion but they differ on how intricate or complex that mix needs to be. 16

 The UK

In the UK there are two different legal systems: England and Wales and Scotland. The legislation in the
field of environmental criminal law is highly fragmented in many statutes and regulations, mainly due to
the considerable amount of reforms carried out in the last twenty years. The most relevant one is the
Environmental Protection Act, which embodies a whole range of criminal sanctions enforced by the
appropriate Authority. A certain level of standardization reached is a result of the transposition of EU
law, particularly, the Environmental Crime Directive. It appears that in UK environmental crimes are not

15
Environmental Crime, available at: http://www.pollutionissues.com/Ec-Fi/Environmental-Crime.html (last visited on
March 5, 2019)
16
Controls against environmental crimes, available at: https://aic.gov.au/publications/rpp/rpp109/controls-against-
environ mental -crimes (last visited on March 5, 2019).
a priority for the Government or for the national and local policing. The rules of general criminal
procedure apply to environmental crimes, although there are some rules, which are specific to
environmental crimes. Most environmental crimes impose strict liability (i.e. no need to prove fault),
which not only makes easier for regulators to enforce and prosecute environmental offences, but also
constitutes a strong incentive for operators to take all possible risk-minimizing measures. The UK legal
system provides neither a specialized legislation concerning the environmental organized crime nor,
more generally, legislation dedicated to the organized crime. Due to the transposition of the European
legislation in to the UK legal system, the enforcing officers, such as the police, can decide whether it is
more appropriate to prosecute the crime under the domestic legislation or under the EU legislation or
under both.17

IV. PUNISHMENT FOR ENVIRONMENTAL CRIMES

Sanctions imposed when laws are broken are a crucial element of deterrence. The most common
sanctioning instruments are monetary fines and prison sentences. In environmental law, criminal
sanctions (such as prison sentences) have traditionally been unusual, but are gradually becoming more
common. The EU has reinforced criminal enforcement by introducing the Directive on the Protection of
the Environment through Criminal Law. Yet currently, less than 2.5% of environmental-crime court
cases in the EU result in prison. Prison sentences have advantages over financial sanctions, especially in
cases where the offender has limited wealth, or where there is the possibility for fines to be passed on to
customers or shareholders. Prison sentences also carry additional, social weight due to loss of status and
stigma. However, it is unclear how prison sentences for environmental crime are used and whether they
imply a real threat to violators. This study explored this question using evidence from a number of
countries.

In the EU, fines are generally more popular than prison sentences. In the UK for example, the vast
majority of environmental offenses (84%) receive a fine, and less than 1% receive a prison sentence
(2002 data). The researchers say this is likely because most prosecuted cases are minor or involve first-
time offenders. It may also be because environmental criminal prosecution is relatively new in Europe,
and therefore precedent to guide legal decisions is lacking.

17
Fighting Environmental Crime in the UK: A Country Report, available at: https://efface.eu / sites/ default /files / EFFACE
_ Fighting%20Environmental%20Crime% 20in%20the%20UK.pdf (last visited on March 5, 2019)
The researchers also looked at evidence from the US. Overall, they found that imprisonment is more
popular in criminal cases in the US than Europe — over 30% of criminal sentences include a prison
sentence, compared to just 0.5–2.5% in the EU. The authors suggest this may be because administrative
and civil judicial actions are generally used for environmental offences in the US, and criminal
prosecution is only used in serious cases — such as persistent offenders or violations that have caused
considerable damage to the environment. This means that only serious environmental crimes make it to
the criminal courts. This focus of US criminal prosecutions on more serious crimes naturally leads to
more frequent use of prison sentences in criminal cases. In Europe however, the evidence shows that
environmental offenders are generally fined rather than imprisoned. Overall, the results show that prison
sentences are used by courts as part of a set of sanctions for environmental crime, including other
penalties such as fines or community service. However, fines are still far more frequently imposed. Of
the evidence assessed in the study, over 90% of sentenced offenders paid a fine. Prison sentences are
also rarely imposed alone, and are often used as a suspended or probationary sanction — which means
the offender does not have to serve the sentence if they meet certain conditions or refrain from certain
activities.18

V. CONCLUSION AND SUGGESTIONS

Improved enforcement co-operation and political will is required to curb the growing threats posed by
environmental crime. Parties, relevant government ministries, specialist organisations and enforcement
agencies have a key role to play in addressing environmental crime across its range and should
implement the following as a matter of urgency:

 Recognise that, unlike some other forms of crime, Environmental Crime is a time
critical issue that urgently requires a substantial, committed and sustained global response.

 Acknowledge that environmental crime is a haven for corruption at all levels and
that unless corrupt officials are tackled, efforts to combat environmental crime will be impeded.
This fact should be acknowledged within cross-cutting resolutions on environmental crime and
within the Convention against Corruption.

18
Science for Environmental Policy, available at: http://ec.europa.eu/ environment/integration/research /newsalert /pdf /is
_prison_a_real_threat_for_environmental_offenders_56si10_en.pdf (last visited on: March 5, 2019).
 Develop administrative reform to combat corruption, particularly through the
introduction of technology to remove direct human contact involved in areas such as trade in
natural resources.

 A clear definition of environmental crimes.

 Setting up eco-crime courts at the International, National and regional level for
the delivery of speedy justice.

 Strengthening institutions for the enforcement of environmental law and policy.

 Setting up an Eco-Crime Police at the international and national levels.

 Spreading awareness and information, as well as sharing experiences and

learning.

 Sensitisation of judges, lawyers, NGOs, pollution control authorities, senior

officials, and legislators on emerging threat of national and international environmental crime,
and solutions thereto.

 Providing legal aid to the victims of environmental crime and eco-restoration at

the cost of polluters at the international as well as national level.