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Environmental Crime Legal Framework in United Kingdom

The United Kingdom’s constitution contains provisions for the protection of the environment. Field 6. covers Prevention. It reads: “reducing, collecting, managing, treating or disposing of waste. This matter does not include— a. regulation of any activity in the sea; b. regulation of the provision of postal services by a person who holds, or is required to hold, a license from the Postal Services Commission authorizing the person to convey letters from one place to another (whether or not the license relates to the services). See below for further provision about what this matter does not include.

Matter 6.2 covers Disposal of waste in the sea where the waste has been collected, managed or treated on land. This matter does not include regulation of the following activities— a. depositing any substance or object in the sea or on or under the seabed from any vehicle, vessel, aircraft, marine structure or floating container; b. depositing any explosive substance or article in the sea or on or under the seabed; c. incinerating any substance or object on any vehicle, vessel, marine structure or floating container. See below for further provision about what this matter does not include.

Matter 6.3 addresses Protecting or improving the environment in relation to pollution. This matter does not include— a. regulating the composition and content of fuel used in— i. a means of transport, ii. non-road mobile machinery, or iii. an agricultural or forestry tractor; b. obligations upon persons who supply transport fuel at or for delivery to places in the United Kingdom to produce evidence showing the supply of renewable transport fuel; c. making provision regarding the proportion of renewable energy consumed in transport, including the imposition of requirements relating to sustainability that determine whether any particular renewable energy is to be counted towards any renewable energy obligation or target; d. provision of financial support in connection with— i. the production of renewable energy for consumption in transport, or ii.the use of that energy in transport, including the imposition of requirements relating to sustainability that determine whether any particular renewable energy qualifies for financial support. e. regulation of oil and gas exploration and exploitation in those parts of the territorial sea that are not relevant territorial waters.

Featured Legislation

1981: Fisheries Act was passed. The act establishes a Sea Fish Industry Authority with the duty of promoting the efficiency of the sea fish industry in the United Kingdom; to provide financial assistance for that industry; to amend the law relating to the regulation of sea fishing; to make new provisions in relation to fish farming; to amend the enactments relating to whales and the importation of live fish; to extend sections 6 and 7 of the Freshwater and Salmon Fisheries (Scotland) Act 1976 to the part of the River Tweed outside Scotland; to repeal section 5 [3] of the Fishery Board (Scotland) Act 1882; and to enable the Department of Agriculture of Northern Ireland to incur expenditure on fishery protection in waters adjacent to Northern Ireland. The Act provides for the establishment of the Sea Fish Industry Authority. The Authority will also provide financial assistance for the promotion of that industry. The Act further amends the law relating to sea fishing, freshwater fishing, fish farming and the protection of whales.

2008: Climate Change Act was approved. This Act sets up a framework for the UK to achieve its long-term goals of reducing greenhouse gas emissions and to ensure steps are taken towards adapting to the impact of climate change. The Act, among other things, sets emissions reduction targets, provides for a system of annual reporting by the Government on the greenhouse gas emissions of the United Kingdom; and creates an advisory body called the Committee on Climate Change.

2013: The Antarctic Act was approved. This Act provides principally with respect to preparation for and response to environmental emergencies in the Antarctic, giving in part effect to the Annex VI to the Protocol on Environmental Protection to the Antarctic Treaty – Liability arising from environmental emergencies. It also amends the Antarctic Act 1994 in respect of conservation of the environment and animal and plant life. The Act among other things: requires those who organize activities carried out in Antarctica, where those activities are connected with the United Kingdom, to take reasonable, prompt and effective response action in relation to any environmental emergency arising directly or indirectly from those activities; provides that where the Crown, or a person specifically authorized by the Crown, undertakes response action after an environmental emergency arising from activities organized by a person based in the United Kingdom, or from activities connected with the United Kingdom, the Government is entitled to recover the costs of such actions; exempts the Crown and the other Parties to Annex VI from liability under this section for any failure on their part to take response action to environmental emergencies arising from their own activities; requires the organizer of activities in Antarctica, where those activities are connected to the United Kingdom, to take reasonable preventative measures designed to reduce the risk of environmental emergencies arising from those activities and their potential adverse impact and to develop a contingency plan.

2013: The Energy Act was promulgated. This Act establishes a legislative framework for “decarbonisation" of energy producing plants and delivering secure, affordable and low carbon energy. It gives the Secretary of State power to set or amend a decarbonisation target range, which is a target range for the level of carbon intensity of the electricity generation sector in the United Kingdom. The Act principally provides with respect to Electricity Market Reform to: ensure the future security of electricity supplies, drive the decarbonisation of our electricity generation, and minimize costs to the consumer. A specific contract, the contract for difference (CFD), provides developers of eligible low carbon electricity generation with a long term contract that provides for a stable revenue stream which facilitates investment in low carbon. The Act further regulates the electricity market to mitigate future risks to the security of electricity supplies and to ensure fair competition. The Act also establishes the Office for Nuclear Regulation and sets out the purposes of the Office and provides powers to the Secretary of State to make nuclear regulations so the legislative framework can allow for flexibility in the regulation of the nuclear industry and for the regime to react effectively in this evolving area.

2014: The Water Act was introduced. This Act brings about a reform of legislation concerning the water industry and management and conservation of water resources and related environmental matters in the United Kingdom. The purpose of the Act is to: reform the water industry to make it more innovative and responsive to customers and to increase the resilience of water supplies to natural hazards such as drought and floods to bring forward measures to address the availability and affordability of insurance for those households at high flood risk and ensure a smooth transition to the free market over the longer term. The Act consists of 6 Parts: Water industry (1); Water resources (2); Environmental regulation (3); Flood insurance (4); Miscellaneous (5); General and final (6). The Act makes extensive amendments to the Water Industry Act 1991 with respect to the water licensing regime and a sewerage licensing regime. It focuses mainly on retail market arrangements in the water industry across the United Kingdom.

2021: The Environment Act was brought into force. The legislation makes provision about targets, plans and policies for improving the natural environment; for statements and reports about environmental protection; for the Office for Environmental Protection; about waste and resource efficiency; about air quality; for the recall of products that fail to meet environmental standards; about water; about nature and biodiversity; for conservation covenants; about the regulation of chemicals; and for connected purposes.

Featured Case Studies: Transnational Environmental Crime, Human Security, and Biosecurity

Elliot Winter, lecturer in international law at Newcastle University in the United Kingdom, has discussed the possibility of Russia facing charges of environmental war crimes in connection with its invasion of Ukraine, asserting that there are “reasonable grounds” to believe war crimes have been committed. There is another victim of the invasion: the environment. According to The Environmental Peacebuilding Association (EnPAx), an organization that promotes the protection of the environment, various incidents of environmental destruction in Ukraine, such as that the seizure of the Chernobyl nuclear disaster site, have mobilized radioactive dust and increased detectable radiation [that] may spread radioactive material into new areas. Dr. Winter argues that attacks against cities such as Kharkiv “have caused major fires in fuel storage areas threatening serious air, ground, and water pollution. The UK is trying to invoke international criminal law to bring Russia to account. The Rome Statute of the International Criminal Court (Rome Statute) was adopted in 1998 and provides the main statement of international crimes. Neither Russia nor Ukraine are parties to the Rome Statute; however, the ICC has jurisdiction over events in Ukraine as Ukraine is the locus of the alleged crimes and because the Ukrainian government has previously issued a special declaration accepting the jurisdiction of the ICC. In the context of environmental destruction in times of war, the international law states that it is a war crime to “intentionally [launch] an attack in the knowledge that such attack will cause … widespread, long-term and severe damage to the natural environment” (the “environmental war crime”). Given the ICC’s jurisdiction over events in Ukraine and given the existence of the environmental war crime, it is certainly possible that individual Russians—up to and including Vladimir Putin—could be held personally accountable for acts of environmental destruction in Ukraine. The difficulty is that the criteria the prosecutor must satisfy to secure a conviction are exceptionally rigorous. The diffusion of radioactive material caused by the columns of Russian vehicles churning up ground around Chernobyl has garnered the attention of the international community paving the way for the prospects of successful convictions of Russia on forceful and innovative legal advocacy, sending a strong message to politicians, policy makers and military personnel around the world that environmental destruction is taken seriously.

References and Further Reading

Contacts

Secretary of State for Environment, Food and Rural Affairs And Head of UN Environmental Engagement Department for Environment, Food and Rural Affairs (DEFRA), Mr. Trevor Salmon: trevor.salmon@defra.gov.uk