Make the penalty fit
Paul Suff warns that unless fines for environmental offences are increased in line with the profits polluters can reap by ignoring regulations, then they will never be a deterent
The “polluter pays” principle underpins most of the regulation of pollution affecting land, water and air. It acknowledges that those responsible should pay for any damage. Too often the financial penalties levied on polluters are insufficient, however.
The Observer recently revealed that since 2005 water companies have been persistent and frequent polluters of England’s rivers and beaches, and have been punished for more than 1,000 incidents. Just one-third of the incidents led to a financial penalty – with fines totalling only £3.5 million, £10,800 on average – and the rest resulted in a caution.
At the same time, environmental regulators have urged the courts to impose tougher fines for pollution offences.
In 2009, Paul Leinster, chief executive of the Environment Agency, said: “We want to see higher fines to provide a greater deterrent. There are still an average of two serious pollution incidents a day and this is too many.”
The agency was critical of the penalty given to Thames Water that year for accidently releasing industrial chlorine into the River Wandle in London during a sewage plant cleanup operation. It claimed the £125,000 fine was “not sufficient” to alter behaviour, and criticised the guidelines that restricted Croydon crown court to levy a penalty that, at the time, was less than 0.1% of the company’s annual turnover.
The Scottish Environment Protection Agency (Sepa) has also asked for bigger penalties. In 2010, the regulator warned that its plans for “simpler, proportionate regulation” needed to be accompanied by strong measures to tackle the poorest performers.
“This includes significantly more robust penalties, including fines that better reflect the costs avoided by poor practice, that cover the cost of the environmental damage caused, and that cover the regulator’s costs in investigating the permit breach or crime,” said Sepa.
Proposed new guidelines from the Sentencing Council recommend a major increase in fines for environmental offences in England and Wales. If adopted, fines could reach £2 million for the most significant environmental offences by the biggest companies – those with a turnover of more than £25.9 million. Under the plans, penalties imposed on large firms found to have “recklessly” harmed the environment, for example, would start at £335,000.
That may be sufficient to alter behaviour and ensure the polluter really does pay, but MPs on the justice committee have criticised the proposals. They are concerned that magistrates following the guidelines will impose higher fines on companies guilty of environment offences than for breaches of health and safety legislation committed during the same incident, such as the Buncefield explosion in 2005. This could leave health and safety offences looking less serious to the public, says the committee.
This a legitimate concern. Of course, fines for breaching environmental legislation should not be higher than those imposed for health and safety offences, particularly where they involve serious injury or death, but the answer is to also raise the level of penalties imposed for activities that put workers at risk.
The MPs are also fearful that some magistrates will impose the tougher penalties on a wider range of offences than those covered by the guidelines, including health and safety offences. But if that is the outcome and it helps prevent damage to people and the environment, is that not a good thing?
Ultimately, sentencing should act as a deterrent. Let’s hope the final guidelines result in sentences that deter as much illegal activity as possible. Unless the polluter or poor employer pays substantially more than the sum he profits from his crime little will change.