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Informed law or ill-formed clause?

Soham Pathak

Smuggling often conjures up images of rough individuals, bulkily transporting goods wrapped in nondescript brown tape, or travellers caught at airport security with suspiciously powdery substances. Or perhaps you envision a barrel, poorly hidden beneath hay in an ox cart, if your tastes run to the historical. But what, exactly, can one smuggle? Cigarettes, jewellery, narcotics?

What about greenhouse gases?

A 2021 investigation by the Environmental Investigation Agency (EIA) revealed that illegal hydrofluorocarbons (HFCs) smuggled into Europe might represent 20-30% of legal trade volumes. HFCs, used predominantly in everyday cooling appliances like refrigerators and air conditioners, are ironically up to 10,000 times more potent than CO2 as greenhouse gases. This smuggling trend is largely fueled by lax enforcement of the EU's F-gas Regulation.

In 2006, the EU enacted regulations to curb emissions from fluorinated gases, known for their high Global Warming Potential (GWP). The revised regulations aimed to slash HFC usage by 79% by 2030 via production cuts and fixed quotas. Despite these efforts, increased air conditioner use, spurred by rising temperatures since the 1980s, has kept HFC demand robust, leading to supply shortages and staggering price spikes. For instance, in 2018, the cost of HFC-404A skyrocketed to 1190% of its 2014 price. The quota system, favouring larger corporations, exacerbated this, breeding a thriving black market, particularly for HFCs from China, thanks to feeble customs enforcement at EU borders.

The tale of a well-meaning law failing spectacularly is hardly unique. Take, for example, Australia's own Environment Protection and Biodiversity Conservation Act of 1999, crafted to protect Australia’s flora, fauna, habitats, and significant places. On paper, it was a promising step forward.

Yet, the EPBC Act has fallen significantly short of its protective aims. Since its inception, over 7.7 million hectares of habitat for threatened species have been destroyed. The act has shown itself particularly ineffective in preventing the clearance of lands home to endangered species like the koala and the greater bilby, highlighting systemic failures in stopping environmentally detrimental activities.

Furthermore, the Act has been criticised for its inadequate response to the broader challenges of climate change, exacerbating the impacts on biodiversity and ecosystems. The legislation often succumbs to industrial pressures, permitting extensive ecological damage from logging and mining activities. Critical ecosystems such as the Great Barrier Reef and the Murray-Darling Basin have suffered under its watch. 

A comprehensive review by Professor Graeme Samuel AC of Monash University has pointed out the desperate need for rigorous enforcement and clear, measurable standards for environmental protection. Without significant reforms, Australia's biodiversity continues to decline, adding to its distressing tally of one of the highest rates of mammal extinctions globally.

These cases exemplify the broader reluctance of nations to fully commit to environmental, social, and governance (ESG) principles. Other notable mentions include South Africa’s still-pending draft Climate Change Bill (2018) and controversial land reclamation projects in the Maldives, where even the government seems to contradict its own laws. Such examples might lead one to ponder the effectiveness of ESG initiatives—a topic we’ve explored before

In the end, laws are only as potent as their enforcers, and these enforcers are only as driven as their motivations. And when it comes to flouting the rules, motivation seems to be in abundant supply.

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