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12.4: The Limits of Environmental Laws and Regulations

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    Despite all the efforts to protect biodiversity through laws and regulations, the scale of environmental crimes continues to increase year after year. Today, the US $91–258 billion environmental crime industry is the world’s fourth largest illegal enterprise, after drug smuggling, counterfeiting, and human trafficking (Nellemann et al., 2016). Increased financial support for environmental law enforcement could certainty help: current spending to combat environmental crimes, globally estimated at US $20–30 million a year, is a mere drop in the bucket compared to the losses incurred from these same crimes, which are 10,000 times greater (Nelleman et al., 2016). There is also a need to prevent environmental crimes before they happen, given that the damages incurred cannot always be undone by punishing the offenders.

    Environmental crime is the world’s fourth largest illegal enterprise, after drug smuggling, counterfeiting, and human trafficking.

    An important step towards reducing the scale of environmental crimes is to address the ineffectiveness of environmental regulations. That includes addressing the range of tactics that criminals use to facilitate non-compliance (Chapron et al., 2017), but also ensuring there are mechanisms that remove the incentives for people to engage in environmental crimes. In the following section, we look at some of the most prominent challenges that complicate environmental law enforcement.

    Lack of capacity

    The foremost reason why environmental laws fail is that authorities often lack the capacity for effective monitoring and enforcement. Lack of capacity is a major problem in the marine fisheries industry due to the size of the oceans and the cost of patrolling them. This is particularly prominent in West Africa’s oceanic waters (Figure 12.6), which experience the world’s highest levels of illegal and unregulated fishing (Agnew et al., 2009; Gremillet et al., 2015). Apprehending the environmental criminals operating in these and other areas requires resources and manpower, both in short supply.

    Fig_12.6_kruithof-2.jpg
    Figure 12.6 Fishermen from Tanji fishing village in The Gambia fixing their nets after a day out at sea. Intensive harvesting has reached crisis level off West Africa, where a largely unregulated fisheries industry threatens not only fish populations and the people relying on fish, but also seabirds, marine turtles, whales, and dolphins. Photograph by Jan Kruithof, https://www.flickr.com/photos/jankruithof/30426220994, CC BY 2.0.

    Lack of capacity is exacerbated by law enforcement officers that turn a blind eye to actions they deem innocuous, or when prosecutors fail to indict criminals out of fear of reprisals. Regulatory controls may also no longer exist or be enforced in regions that experience substantial political instability, economic hardship, civil unrest, or war (Hanson et al., 2009; Beyers et al., 2011). But even in areas where regulatory controls exist, prosecution can be complex, and thus very hard, especially when the illegal activities cross international boundaries and different legal jurisdictions. Such a breakdown of legal mechanisms often leaves natural resources vulnerable to whoever can exploit them.

    Conflicting government priorities

    Clashing priorities between different government structures complicate the enforcement of environmental laws. We see this when agencies overseeing mining activities issue inappropriate permits because of pressure for economic development, or because of corrupt agreements between businesses and government officials (Mascia and Pailler, 2011). Another example of mixed priorities occurs when a national government gives permission to extractive companies to exploit protected areas (Section 13.7.3) or communal lands without first consulting and obtaining local input and consent. Such government-sanctioned violations are generally very difficult to prosecute and require an active and caring citizenry to take their governments to task.

    One of the most popular methods for citizens to make themselves heard is activist activities, such as public protests. Concerned individuals can also launch petitions on websites such as https://www.change.org, http://www.greenpeace.org, and https://www.avaaz.org. There is even a website for whistle-blowers (https://wildleaks.org) who want to report environmental crimes anonymously. Another positive development is the growing number of successful lawsuits that concerned citizens and environmental justice organizations have brought against their governments for environmental violations (e.g. CER, 2017; Yende, 2017). The Kenyan conservation organization Wildlife Direct has taken this a step further; they are keeping citizens informed about lawsuits involving environmental crimes through a website dedicated to tracking and reporting on such cases (https://wildlifedirect.org/legal-program-3).

    Informal economies, traditional activities, and the law

    Law enforcement can at times be counterproductive. This is true especially in areas where the separation between informal/unreported and illegal activities is blurred. For example, traditional people who graze their livestock, collect medicinal plants, or hunt and trap animals in protected areas that were established on ancestral land seldom have criminal intent. But because formal law systems seldom account for these informal activities, those people are engaging in illegal activities. Similarly, confusing terminology may also lead to unintended conflict. For example, in some parts of Cameroon, the cultural definition of a hunter describes someone who owns a gun and makes a living from hunting animals (Hofner et al., 2018). In this context, some people consider it within the law to trap animals with snares, or even to make sporadic “hunting” trips into a protected area where hunting is forbidden, given that it is not for commercial purposes.

    When dealing with vulnerable people, conservation initiatives must also consider impacts on livelihoods and the potential for sustainable utilisation

    When dealing with vulnerable peoples whose livelihoods are threatened, an approach that involves sensitivity and compassion generally offers more effective and enduring resolutions. Many conservation initiatives have not only failed but have also created long-lasting negative attitudes by preventing traditional peoples from sustaining their livelihoods. Before implementing new regulations, governments should carefully consider if they would disrupt livelihoods. If so, it might be wise to consider if some form of sustainable utilisation isn’t possible. For example, while pastoralist activities in Tanzania’s Ngorongoro Conservation Area may lead to wildlife declines (Boone et al., 2002, but see Ogutu et al., 2016), conservation authorities decided on a suitable compromise by allowing Maasai herders to graze their livestock in the area on the condition that they exit daily. (See also Section 13.5.2 for discussion on zoning.)

    When banning activities which have become unsustainable, it helps to provide start-up resources and market access to help affected people comply with new restrictions.

    Despite best intentions, sustainable utilisation is not always possible, and the actions of people engaging in environmentally detrimental activities are not compatible with conservation goals. In such cases, it is important to implement controls that enable those people to transition toward sustainable activities. Failing that, conservation activities may unintentionally force the affected people to resort to illegal activities such as poaching out of desperation to obtain food and income. When banning previously-allowed activities that have become unsustainable, it helps to provide affected people with start-up resources and market access to help them comply with new restrictions while also meeting broader societal needs. For example, to fulfil income and nutritional needs when bushmeat harvesting is banned, it might be necessary to help hunters transition to farming with animals that reproduce quickly in captivity. Raising poultry can be a good alternative to bushmeat because chickens grow quickly, provide eggs, feed on insect pests, and need little land for maintenance. Farming with locally-adapted wildlife, such as large snails (e.g. Carvalho et al., 2015) and cane rats (Thryonomys swinderianus, LC) (e.g. van Vliet et al., 2016), has also proven to be a profitable and sustainable alternative to the bushmeat trade (for a review on wildlife farming for conservation, see Tensen, 2016). Initially, many people may resist the risks involved in leaving behind familiar activities. It is, therefore, important to explain carefully the reasoning behind those changes (e.g. “bushmeat hunting drives away tourist dollars”, Rogan et al., 2017). It may also be beneficial to enable the affected individuals to travel to areas where they can see first-hand how more sustainable activities can benefit local people.

    Trade embargoes and sanctions

    The basic premise of CITES is that, so long as participating countries abide by agreed-upon regulations, trade involving species of concern will not be stopped, only monitored. However, when agreements are not met, or compliance falls short, then trade is banned in part or in whole. For example, in early 2016, following failures to comply with international trade regulations, CITES instituted blanket suspensions on trade of all CITES-regulated products against 14 African countries (CITES, 2016). Another example from 2016: after various high-profile environmental crimes that involved CITES-regulated species, the USA afforded protection to lions and elephants under their Endangered Species Act (https://www.fws.gov/endangered). Trophy hunters from the USA now face significant regulatory and logistical barriers which has all but eliminated hunting of these species for wealthy American hunters, threatening a US $500 million per year industry that supports over 53,000 jobs and protects over 1.4 million km2 of land (SCIF, 2015). In both these examples, businesses operating within the law are unfortunately also impacted.

    Many formerly destructive companies are now voluntarily pursuing opportunities to prove, through special certifications, that their products are harvested responsibly and sustainably.

    To avoid scenarios such as these, it is much more advantageous for pressure to mount from within non-complying countries and industries before outside pressure takes effect. To that end, many formerly destructive companies are now voluntarily pursuing opportunities to prove, through special certifications, that their products are harvested responsibly and sustainably. Four prominent certification agencies operating in Africa are the Forest Stewardship Council (FSC) which sets guidelines for the responsible management of forests, the Marine Stewardship Council (MSC) which sets standards for sustainable fisheries, the Roundtable on Sustainable Palm Oil (RSPO) which promotes sustainable production of palm oil, and the Rainforest Alliance which promotes sustainable agriculture (For a more complete treatment of sustainability standards, see https://www.isealalliance.org, https://www.evidensia.eco, and https://www.iisd.org/ssi). Given that most certification schemes were established relatively recently, they are not without their flaws, but collaborations with conservation biologists (e.g. Christian et al., 2013; WWF, 2013) play a major role in ensuring continued improvements.


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