Abstract
The hazards of the legal system may appear to leave the control of pollution subject to chance, whether that chance is the presence of a private litigator seeking a remedy for damage to his property or person, or an enforcement agency sufficiently motivated and resourced to handle the prospect of criminal litigation. But what is the alternative? It is a generally accepted principle that the polluter should pay, but that is only one side of the coin. In imposing liability on the polluter the result should be the remediation of the harm done to the environment or the prevention of any recurrence of the harm. Punishment may be an appropriate route for a society concerned with protection of the environment, but retribution needs to be matched with the practical reality of a protected environment. In that sense, as has been argued, the threat of civil litigation or criminal prosecution may be sufficient to achieve the desired aim. However, these approaches may be set alongside an arsenal of weapons above and beyond the legal system. Economic initiatives such as taxation have begun to be explored. Taxation on leaded petrol and on waste destined for landfill has had an effect in changing practices. The results need to be explored in more detail. For instance, the use of cars in the United Kingdom has not declined as a result of the imposition of increased taxation on petrol, and the imposition of landfill tax, while diverting waste to other disposal methods, may similarly have failed to halt the overall production of waste. Emissions trading schemes are another route to controlling levels of pollution. While these mechanisms are to be applauded to the extent that they are successful in preventing pollution, they should be seen as adjuncts, not alternatives, to a criminal enforcement system. While the process of the criminal enforcement of regulation may carry its own hazards, nevertheless it must remain at the heart of a system for environmental protection. Taxation and other economic controls may play a part, but the decriminalisation of environmental damage would convey the wrong message to society in general.