Environmental crimes legislation in Taiwan is outdated, but members of the preparatory committee for the National Congress on Judicial Reform have called for the regulations to remain unchanged, so the situation will continue. Worst of all, the Water Pollution Control Act (水污染防治法) only punishes intentional offenses, but ignores offenses that are the result of negligence. This means that as long as a company says it did not intentionally release wastewater, it would only receive a fine.
On Wednesday last week, a chemical plant in Kaohsiung released 5 tonnes of kerosene into the Houjin River (後勁溪), but it is of course not being held criminally responsible because the company said the incident was the result of neglect rather than intent.
Media outlets reported that the Kaohsiung Environmental Protection Bureau fined the company NT$6 million (US$199,402), the maximum.
That is not even enough to cover the cost of the cleanup, which will be shouldered by taxpayers. Do the public and legislators not feel ashamed that the law is so indulgent toward environmental destruction?
Every time there is an environmental incident, the company involved will of course deny that it was intentional and claim neglect and carelessness.
“Neglect” in the Criminal Code means “carelessness.”
In criminal policy, harm to legal interests accompanies broader controls, while punishment for neglect is to demand that perpetrators raise their awareness and avoid carelessness.
Our survival depends on the environment and businesses must pay attention to their responsibilities while they make money. They must not be able to evade responsibility by claiming “carelessness.”
Developed countries place a great deal of importance on their environmental legislation and they normally treat negligence strictly.
Germany’s criminal code stipulates that anyone who arbitrarily pollutes a body of water or causes water quality to deteriorate should be fined or imprisoned for up to five years, and that a fine should be issued for attempted offenses that have been foiled, while offenses caused by negligence should be punished by a prison sentence of up to three years or a fine.
Japan also punishes negligence, while in the US, there are even strict liability regulations — under which there is no requirement to prove fault, negligence or intent — in connection to criminal environmental pollution.
However, in Taiwan the Water Pollution Control Act, the Air Pollution Control Act (空氣污染防制法) and the Waste Disposal Act (廢棄物清理法) do not punish negligence, which is absurd.
The fact that negligent and careless pollution entails no criminal responsibility, but only draws an administrative fine encourages businesses to ignore self-discipline, because there is an upper limit to fines; NT$6 million is a drop in the bucket for large companies.
Even if the law was amended and the limit raised, that would be of no use, as the company could just divest itself of its assets or dissolve itself and so, in practice, no fine could be issued.
Other ways to avoid punishment are to ask an elected representative to lobby the environmental agency, file a lawsuit to delay payment, or simply refuse to pay.
Even if collection was enforced, the company would simply pay up, transferring the fine to shareholders. What is there to fear for owners and managers? They do not have to take any supervisory responsibility at all.
If regulations to punish negligence could be added, the responsibility of managers would increase and they would pay more attention to supervision. In practice, all piping in a plant is installed by the owner, and the owner should be the one who best knows the strength of the pipes and their replacement periods.
Carelessness and not paying attention to duties is unconscionable behavior aimed at saving money. Why should the law encourage immoral behavior and let taxpayers foot the bill?
Furthermore, if negligent water pollution was criminalized, only then would it be possible to confiscate assets based on the Criminal Code to immediately and effectively obtain the funds required to clean up the pollution.
It is absurd that Taiwan does not punish negligence, but as if that was not enough, punishing intentional offenders also entails overcoming many legal restrictions, such as requiring that the offense endangered the public or caused harm to physical health that might lead to disease. This is a matter of pretending to protect human rights, while in effect protecting businesses that pollute the environment and harm public health.
If you drink a glass of kerosene-tainted water from the Houjin River, how could you prove that you got sick because of that glass of water?
If that cannot be proved, no one is guilty of the pollution and we can add yet another specimen to the ranks of dinosaur judges.
This is just like the food safety legislation that says it was not possible to prove that refined waste cooking oil was harmful to people’s health.
That such outdated legislation still exists is a small wonder. It must not be forgotten that Advanced Semiconductor Engineering Inc (ASE) was found not guilty of polluting the Houjin River in 2013 — a verdict that upset the nation — which made it clear that environmental legislation in Taiwan is in a state of chaos.
Still the legislature does nothing.
The third sub-group of the preparatory office for the National Congress on Judicial Reform has decided that environmental legislation should be amended, but this is something that has to be implemented by the legislature.
All we can do is to plead with legislators that they get their act together and quickly amend environmental legislation by including regulations about strict liability and punishment of pollution caused by negligence, amend the rules about burden of proof and add whistle-blower clauses.
We must no longer allow companies to pollute our rivers.
Lin Ta is a prosecutor at the Taipei District Prosecutors’ Office.
Translated by Perry Svensson
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