The Environmental Enforcement Deficit
Image by Michael Elliot
On 14 May 2020, after over 900 local complaints about illegal natural gas flaring at ExxonMobil’s Mossmorran Natural Gas Liquids Plant in Fife, the Scottish Environment Protection Agency (SEPA) decided to seek prosecution for the continued “preventable and unnecessary” breaches of Scottish environmental protection laws. SEPA’s CEO stated that “compliance with Scotland’s environmental laws is simply non-negotiable”. This prosecution has now been dropped in favour of promises for future compliance. While the law is non-negotiable, it is clear that simply ignoring it is a viable option.
Climate change is, as stated by United Nations Secretary-General António Guterres, “the most systematic threat [facing] humankind”. The future of life on Earth as we know it hangs in a precarious balance which leans more towards disaster with each passing year. Changes to damaging practices, such as flaring or illegal deforestation, must be made, and this is where the role of law in the protection of the environment becomes essential. But law remains fantasy without reciprocal enforcement.
In the last 40 years, an explosion of laws intended to protect the environment, such as the 1990 Environmental Protection Act and the proposed 2019-21 Environment Bill, have been passed to regulate how we interact with our natural surroundings. However, these laws are frequently left toothless by a lack of enforcement which leaves compliance a mere moral choice. This is the so-called environmental enforcement deficit. Operating such a system of altruistic self-enforcement undermines environmental protection laws and is not only environmentally ruinous but also economically unsustainable.
“If you were a company and knew that to reduce pollution cost money, and money is your only grammar, would you be tempted to pollute?”
James Thornton, Founder and CEO of Client Earth - a global Public Interest Environmental Law Organisation – in his book of the same name.
The belief that all corporations and global monopolists do not care for the environment is, for the most part, untrue. What is true is that dedicating time and resources to operating in an environmentally friendly way can put businesses at a competitive disadvantage. With the UN Environmental Program and International Criminal Police Organisation (INTERPOL) estimating that savings from illegal corporate logging alone ran to as high as US$152 Billion (£117 Billion) in 2014, it is not difficult to see why environmental crime often does pay.
“Nice guys come last” in hyper-competitive free markets, and when environmental legislation remains effectively optional, means that holding the moral high ground may not pay the bills. ExxonMobil in Mossmorran, instead of illegally flaring gas, could have taken any number of strategies to deal with the excess natural gas, like converting it into “liquified natural gas” – or LNG – which can then be used as fuel for heavy plant machinery. But this is expensive. In order to ensure compliance, enforcement of laws must catch up to the laws themselves to make non-compliance not only wrong but economically unsustainable as well.
So, what enforcement measures currently exist? And why do they still produce an environmental enforcement deficit?
Centralised government enforcement of environmental laws in the UK is, for the most part, left to non-departmental public bodies like the UK Environment Agency (UKEA) and the Scottish Environmental Protection Agency (SEPA). These organisations are tasked with monitoring environmental compliance and sanctioning those who are in breach.
However, understaffing and a critical lack of resources means that these organisations are completely unable to enforce the vast majority of the law. In a recent freedom of information request submitted by the Liberal Democrats, only 3.6 percent of complaints received by the UKEA were sanctioned – and only one of the 76,727 complaints resulted in a financial penalty (about 0.000013 percent).
This leaves the physical enforcement of most laws mostly down to charities and individual groups. Organisations like Friends of the Earth and ClientEarth use their legal expertise to try and tackle the environmental enforcement deficit throughout Europe and the UK – and do a brilliant job with their limited resources. Yet there still remains a massive gap between the laws passed and those enforced, which undermines the environmental goals of the original legislation.
“It takes twenty years to build a reputation and five minutes to ruin it”.
As a result, the most vital form of corporate environmental enforcement remains public opinion. An environmentally-conscious consumer will avoid companies – such as Nestlé or PepsiCo – who have poor records of sustainable business practices. This has been proven to kickstart changes in corporate behaviour.
But it is difficult to comfort oneself that the invisible hand of the free market will regulate our environment, as the same force is responsible for much of its destruction. Corporate shame may work for consumer-facing companies like Nestlé, but it cannot be relied upon to enforce the often more complex and hidden crimes of those groups not in the public eye.
What must therefore be done if we wish to erode the environmental enforcement deficit which undermines the legal effort to battle climate change? One obvious solution is simply to implement wide-reaching, centralised, and consistent enforcement mechanisms. If steep fines or sanctions routinely and consistently follow environmental crimes – as prison sentences follow offences like murder – then criminological conditioning methods could be used to instill a Pavlovian response of environmental compliance within organisations that fear significant economic sanction.
Yet this is currently little more than a fantasy. “Populist” politics and more visible issues like Brexit have diverted public attention and money away from the climate emergency to such a dangerous extent that we risk ignoring it completely.
Public collective enforceable interest could be the solution. If anyone could reasonably and easily take offenders to court and enforce laws which currently exist, then more groups like Friends of the Earth or Client Earth could step up to the challenge of implementing the law where the State will not.
However, a major issue exists whereby courts and legislators can deny individuals interest – that is the ability to bring a lawsuit – on the grounds that the specific environmental issue at hand does not directly affect them. For instance, an environmentally conscious litigation team in Glasgow or London could not bring a lawsuit against ExxonMobil for the flaring in Mossmorran as they are outside of the perceived sphere of environmental impact.
Simple acknowledgement of the vested interest which everyone on Earth has in limiting climate destruction would allow more public interest lawsuits to curb corporate malpractice. Opening the courts to the people, as detailed in this report, and allowing financial threats to be brought against those who put profits over sustainability, could rapidly narrow the current environmental enforcement deficit. This would enforce compliance with the well-intentioned environmental protection laws which already exist by utilising the most universal language on the planet: money.