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The history of crime and punishment reveals how the definitions,
purposes and applications of the law change over time. What is defined
as 'a criminal act', and how the 'criminal' is socially and legally portrayed
shifts according to particular socio-economic circumstances (White and
Perrone, 2010). What is deemed to be a serious social problem, and who
is deemed to be the proper target for state intervention, is contingent
upon the material conditions that shape the formation of identifiable
groups (for example, corporations, environmental activists), and the
resources available to particular groups. 'Crime' is thus a construct of
society - at the level of definition, causal factors, types of offences, and
state intervention. To fully appreciate and understand the nature of
crime and criminal law requires examination of the wider society. The
degree to which environmental crime is considered harmful has a major
bearing on how and why perpetrators do what they do, and on how
criminal justice institutions respond to such harms (see White, 2011).
The concept of environmental harm is built into various statutes and
guidelines pertaining to environmental crime and justice. In general,
distinctions are made on the basis of seriousness, material environmental
harm and level of nuisance. In commenting on Australian environmental
laws, Bricknell (2010: 13) observes:
There is some variation in how harm is defined but 'serious'
and 'material' environmental harms are basically distinguished
by the intensity and extent of the environmental impact and
the actual or potential loss of (or damage to) property. The
harm incurred is referenced to a predetermined monetary
threshold and further differentiated as to the willfulness or
intentional nature of the act.
Research into US legal systems has demonstrated that environmental
criminal statutes and environmental sentencing guidelines represent two
very different ways of defining and assessing the social harm addressed
by environmental crimes (Mandiberg, 2009). Federal environmental
crimes contained in legislation such as the Clean Water Act, Clean
Air Act and Resource Conservation and Recovery Act tend to utilise
criminal provisions mainly to punish failure to abide by these regulatory
systems. The point of each regulatory system is to manage contact
between a pollutant and the air, water or soil, not to prevent it. The net
result is that the focus is not on environmental harm as such, but rather
on unacceptable (or significant) environmental harm - as measured by
predetermined technical and administrative thresholds.
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