5. ENVIRONMENTAL LAW AND THE COMMUNITY ORGANISATION
5.4. ENFORCEMENT AND CRIMINAL SANCTION
that ascribe greater value to natural resources and carbon sinks. In other words, developing countries may receive payment or credit for not destroying their resources.
spiralling out of control with the frequency between incidents increasing and very little evidence of regulatory intervention. Authority and industry dealings regarding these incidents are kept secret with no visible evidence of sanction being applied. This led SDCEA to lodge a query directly with the Minister (DEAT) on the lack of response.
Highlighted in this complaint was the Minister's previous assurance of a 'rapid reaction environmental enforcement unit' and 'stem action.' 278 This complaint was handed to EPSU who responded on the Minister's behalf. EPSU stated that they were not a rapid reaction unit nor were they ever likely to act as one. This was the responsibility of the local authority.279 EPSU would only act where the relevant local or provincial authority failed to take action and as far as they were concerned the provincial authorities had addressed many of the incidents to which SDCEA referred.
EPSU cited the issuance of S28 NEMA directive to Sapref as one such instance of 'action'280
Within SDCEA structures there are concerns that the S28 directives will amount to little more than a slap on the wrist. There are also concerns that the required 'rapid reaction' will not be forthcoming particularly if left to the local authorities. This meansitis business as usual for both regulator and industry. So once again the official
277Peter Lukey ESPU - document entitled 'Briefing in response to questions raised with the Minister by SDCEA, 11/12/01 '
278See Minister Moosa's promise of strong action against polluters which action is still eagerly awaited by communities in South Durban - see speech at http://www.environment.gov.za/speeches/2000/30may2000htm.
279EPSU is correct in this approach for S30(2)(b) states that the Director General (DEAT) will only be required to take action where no steps are taken by neither municipal nor provincial authorities.
280The S28(4) directive was issued as a result ofa series ofincidents including pipeline and other failures. The government's demands apparently include a comprehensive integrity survey of the refinery and its network of pipelines, a full ecological impact assessment and a programme for the reduction of noxious gases. The Mercury Business Report 3 October 2001.
reluctance to proceed with enforcement of environmental law means that the responsibility now falls squarely back upon community and NGO groups who, for the many reasons identified earlier, are constrained in what they can reasonably achieve.
In much the same vain, and for similar reasons, the potential for private prosecution under NEMA (S33) is unlikely to generate much community interest. Non statutory approaches such as those contained in the common law are a possibility. For example compensation for damage may be claimed in terms of delict but proving patrimonial interest in the environment and causation will usually undermine the case's prospects.
The recent US experience in this regard is enlightening and could, were it to be adopted locally, go a long way to resolving the underlying weaknesses in proving environmental cases.
The US approach under the public welfare doctrine is to apply strict criminal liability for certain types of environmental offence. In terms of the public-welfare doctrine ifan offence involves the violation of a statute designed to protect public health or safety, the mens rea requirement will only apply to the defendant's knowledge that the act was committed and not that the act itself was illegal. Several cases have since affirmed this approach leading to imprisonment and fmes for polluting company employees and owners. They have also ruled on the question of what ismeant by a 'knowing violation' of the statute and whether the negligence standard required for a criminal conviction in an environmental case is 'ordinary' or 'gross'.281
281 The majority of US circuit courts hold that the mens rea requirement applies only to the defendant's awareness of performing an act and not to each and every element of the alleged crime. See United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1993) and United States v. Hopkins, 53 F.3d 533 (2nd Cir. 1995) Both these cases were affirmed in the more recent in United States v. Hanousek, 176 F.3d 1116 (9th Cir. 1999), Hanousek interpreting 'negligently violate' as meaning ordinary negligence not gross. (transcript downloadable from
www.usdoj.gov/osg/briefs/1999/0responses/99-0323 .resp.html).
It has also been suggested in debates around the EMCA process and by some local academics that criminal sanction is not an effective mechanism for gaining compliance.282 The US experience is opposite with criminal convictions for violations of federal environmental statutes increasing dramatically in the past decade although the current presidency appears set on reversing this trend. It is on record that 'during fiscal years 1997 and 1998, the United States Environmental Protection Agency (EPA) levied
$169.3 million and $92.8 million, respectively, in criminal fines. These figures marked the highest and second-highest annual totals of criminal fines in EPA history. Essentially, this trend is positive and promotes the aggressive criminal enforcement agenda Congress intended under the federal environmental statutes'.283
For the South Durban Community, interest in these statistics is two-fold. Firstly it supports SDCEA's contention that sanction in the form of fines and penalties shouldbe applied to environmental transgressions. Secondly, environmental groups in the US often receive, albeit indirectly, a component of the penalty imposed. These awards assist in sustaining the CBO and NGO's activities - in other words the watchdog is rewarded for his vigilance.
A number of important observations were made during the 4th International Conference on Environmental Enforcement which are relevant to this discussion and are persuasive of the necessity to not lose sight of this aspect of environmental law. A general finding
282See for exampleJMilton 'Sharpening the dog's teeth: of NEMA and criminal proceedings' (1999) 6 SAJELP 55.
283Research paper found at http://www.nyu.edulpagesleIj/issueArchive/voI9/2/v9n2a2.pdf
of the conference was that penalties in environmental crimes were typically higher than administrative penahies and may be assessed on the past profits of the polluting corporation. Environmental crimes could alsobeprosecuted under other charges such as fraud, racketeering, or lYing. In some countries criminal sanctions would be imposed on the corporation whereas in other countries the individual within the corporation could be held liable. The US trend to impose both penahies and jail terms on high-level corporate officers for 'knowing violations' was highlighted. Of interest to South African legal fraternity was the intention of one country to introduce legislation making the attorneys who incorporated the organization personally responsible! With respect to the fines imposed it was found that the publicity surrounding high penahies and stiff jail terms seemed to provide an effective deterrent against environmental crimes but that problems occurred where the sentence was not stiff enough. To this end it was suggested that sentencing guidelines ought to be developed for judicial officers.284
In sum then, the prospects for a stand alone (US EPA styled) enforcement structure are slim. It will remain incumbent upon the CBO and NGO sector to ensure that decision-makers remain accountable and that the regulators regulate in a manner that is environmentally just. Consequently it is submitted that most community-based actions likely to brought in terms ofNEMA will rely heavily upon procedural or administrative grounds