Federal Steam Navigation Co. Ltd. v.
Department of Trade meant 'and'). Determination
and Industry ('or'
of whether a
defense has been made out could also involve direct judicial decision on the weight to be placed upon environmental preservation. Under the Clean Air Act 1964 of Jamaica, for example, it is a defense to prove the use of ‘best practicable means’ to prevent emissions from industrial works. ‘Best practicable means’ is expressly defined to require consideration of local conditions and circumstances, financial implications, and the current state of tech- nical knowledge. The ultimate decision, then, will involve arbitration of the appropri- ate balance to be struck between econom- ic and environmental factors. The judge is thereby legislatively drawn into deciding upon the economy vs. environment debate.
Penalties Another obvious example of wiggle
room for the exercise of judicial discretion arises in relation to the determination of appropriate penalties, given that there are no mandatory sentences for environmental offences. A recurrent criticism of Caribbean environmental law has been that the penal- ties for infractions are not severe enough to serve any deterrent effect. When fines were legislated in the early environmental statutes, no consideration appears to have been given to factors such as cost recov- ery, market value, or environmental rehabil- itation. Nor were mechanisms included for upward revision in the context of increased scientific appreciation of environmental harm or (more dramatically in some coun- tries) fluctuations in currency valuations.
These are matters that a judge can do little about. But there has been the fur- ther observation that first offences normally attract the most minimal fine possible, and although available under most environmen- tal legislation, imposition of a custodial sen-
tence is virtually unheard of. A recent Magisterial decision in Barbados made headline news as the first time that anyone had been convicted for illegal dumping. The sentence was a reprimand and dis- charge.
In accordance with increasing trend of placing greater judicial weight upon environmental protection, sentencing policy might benefit from review.
Where relevant evidence is avail- able, from the administrative body or else- where, the size of the fine might be linked to the extent of environmental harm. Already, recent statutes have markedly increased the maximum fines that may be imposed; under the Coastal Zone Management Act 1998 of Barbados, the equivalent of US$200,000 might be inflicted.
Imprisonment Traditionally, imprisonment was not
imposed for environmental offences because such offences were thought not to be crimes in the strict sense of the word. Environmental offences were considered morally ambiguous because the activity causing the offence was often undertaken pursuant to socially productive activities that employ persons and contributed to the national economy. The social utility of the activity made courts reluctant to impose sentences of imprisonment.
This attitude remains and imprison- ment is, rightly - many commentators would agree - reserved for the most egregious of environmental offences or where the accused acted willfully in contempt of court. So, in The Barbuda Council v. The Attorney-General (Antigua & Barbuda) et al, the court imposed a sentence of impris- onment on a Minister of Government who had authorized mining of sand in defiance of injunction imposed by the Court. The Minister escaped having to do the jail time