TAILORING ENFORCEMENT MECHANISMS

Aims of Enforcement Regimes Response mechanisms seek to achieve one or more of the following: Return violators to compliance Deter other violations and other potential violators Remove the economic benefit of non-compliance Mitigate and remediate environmental damage Rectify internal management problems that may have contributed to the violation Require actions that prevent and mitigate future violations 2

Response Mechanisms As noted in Unit 10: Can be either formal (e.g. civil, criminal, or administrative enforcement) or informal (e.g. telephone calls, inspection, warning letters, or notices of violation). The type of “authority” determines the “response” that the enforcement agency applies to elicit compliance with the law 3

Enforcement Pyramid Civil penalties (fines and injunctive orders short of suspension) Criminal penalties License suspension License revocation and other bans Notices and warning letters (perhaps with administrative fines) Advice, persuasion, education, and compliance assistance Negotiation and settlement Inspections and examinations Enforcement Pyramid, adapted from I. Ayres & J. Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (Oxford University Press 1992). A State can utilize the enforcement pyramid to tailor enforcement responses to the severity of the offense 4

Enforcement Pyramid 5

National Policies Overarching principle of sovereignty Each State is free to design the implementation and enforcement measures that are most appropriate to their own legal system and related social, cultural, and economic circumstances How might an MEA require certain measures? To what extent might sovereignty be limited? Existing national enforcement measures can create challenges to effectively enforce MEA requirements 6

Designing a Better Enforcement System (1) Start by analyzing: Basic requirements of an MEA including both the “hard” and “soft” requirements The regulated community’s capacity to comply Economic (cost) and technological factors determine how great a burden the new requirements will impose on the regulated community Cultural and social factors that could influence compliance and enforcement 7

Designing a Better Enforcement System (2) Analyzing the regulated community Identify who is subject to the requirements The larger the regulated community, the greater the effort generally required for successful enforcement Awareness-raising of new regulations Capacity building of regulated community? Permitting, monitoring, inspection, enforcement, etc. more spread out 8

Designing a Better Enforcement System (2) Analyzing economic considerations Which types of facilities are regulated? What equipment will be required to comply, and how much will it cost to obtain, operate, and maintain? What changes in work practices will be necessary for compliance? How much will these changes cost? If the regulated community must monitor its compliance, how much will this monitoring cost? What are the short- or long-term economic benefits to the regulated community from compliance? Is the regulatory scheme cost-effective compared to other approaches? 9

Designing a Better Enforcement System (3) Analyzing technological considerations What technologies might be necessary to comply? How reliable are these technologies? How available are these technologies? How easy is it to accurately operate these technologies? How much do these technologies cost? Are there any impediments (e.g. cultural) to deploying these technologies? 10

Structuring Sanctions Sanctions regimes should: Be comprehensive, so all potential activities and entities to be regulated are covered in sufficient detail and clarity; Encourage compliance by raising the cost of non-compliance above that of compliance; and Set forth appropriate and proportionate penalties designed to deter, punish, and remedy violations. 11

Penalties Administrative penalties, including fines, stop-work orders, closures, license revocations, and denial of funding Civil penalties, including fines (typically larger than allowed through administrative penalties), injunctive relief (such as closures and requirements to install or upgrade pollution-control technology), publication of public apologies and other negative publicity, remedial costs, restitution, and environmental and economic damages Criminal penalties, including fines and imprisonment, but also (in the case of institutional violators) closure and similar measures 12

Monetary Fines Fines may be administrative, civil, or criminal The legal framework for fines should consider a number of factors: establishing the amount including the unit of the fine, the range, criteria for determining the amount in a particular context, and structuring the fine allocating liability among defendants payment (to an Environment Fund, national Treasury, specific projects, etc.) the relationship between the fine and other penalties 13

Official Admonitions Issued by agencies or courts May be used in lieu of more serious penalties, particularly for first-time violations that do not cause any harm They may be issued as stand-alone sanctions, or they may be combined with injunctions or other sanctions May be verbal or written Rarely used for repeat violations, which usually merit more severe penalties 14

Publicity Research indicates that potential loss of prestige can be a powerful deterrent Approaches that rely on the power of publicity and reputation include: Requiring violators, as part of a settlement or conviction, to publicize information about the violation. For example, a company may be required to pay for a full-page advertisement in local or national newspapers acknowledging their responsibility. Government agencies can publish written and/or electronic lists of those institutions and individuals who have violated environmental laws. 15

Education Agencies and courts may be given the power to order violators to attend courses on environmental management Authorities might also require a violator to conduct environmental courses for their employees or third parties 16

Suspension and Cancellation of a Permit Most States authorize administrative agencies and courts to suspend or cancel licenses, permits, concessions, or other official authorizations to conduct business Suspension or cancellation may be temporary or permanent Suspension or cancellation may be based on (1) a violation of environmental laws or regulations; (2) a violation of the terms and conditions of the authorization; or (3) both of these Revocation or cancellation may be particularly appropriate in the case of repeated violations 17

Closing a Facility and Suspending Activities For particularly serious environmental violations Closure may be temporary or permanent, affecting all or part of a facility Alternatively, an agency or court might order a violator to immediately cease the harmful activities, which could have the same effect as suspending activities or closing a facility 18

Denial of Government Funding Deny access to government contracts, procurement, and other sources of funding Violators are placed on a list of firms from which government agencies cannot purchase goods and services, or provide loans, guarantees, grants, or other funding The lists are circulated among government agencies to ensure broad adherence The name is removed once the firm returns to compliance, or after a specified period In the United States, this sanction has been effective in several difficult compliance cases The World Bank has also used this approach 19

Retention An administrative sanction Prohibiting – at least temporarily – the transfer, use, and consumption of goods of a questionable nature or in dubious condition Particularly used if the goods may be harmful or hazardous to the environment or human health May be removed if tests indicate that the goods are not harmful or hazardous 20

Seizure Seizure is a more severe sanction than Retention Entails forfeiture or loss of property (real or personal) to the government Usually it is forfeiture of property that has been instrumental in causing environmental violations, or is the product of such violations If the seized property is hazardous, the property may be destroyed Otherwise, the Government often sells or otherwise disposes of the seized goods 21

Corrective and Other Injunctive Measures Violators may be required to develop and implement a compliance plan This plan may address preventive, precautionary, mitigation, and remedial measures As part of a compliance plan, violators may be required to hire a person to act as a full-time on-site environmental monitor The compliance plan may be time-bound. A court may require the violator to purchase a comparable replacement or to pay other monetary indemnification or damages. Violators may also be required to install certain control technologies, adopt certain procedures, or refrain from specified practices 22

Individual Criminal Liability Imprisonment and fines Can also include: community service, probation, house arrest, and a bar on work in the offender’s previous professional field (either permanent or temporary) injunctions, publicity, suspension or cancellation of authorizations, and a prohibition on contracting with the government Can apply to: managers and/or employees those were involved in and knew of violations Generally reserved for intentional or knowing violations Can be an extremely effective deterrent Why? 23

National Enforcement Tools Does your country promote and use a set of incentives – including civil liability mechanisms – to encourage compliance with environmental law? 24

Selecting Sanctions In deciding how to proceed in a particular case (using administrative, civil, or criminal avenues), enforcers should consider the appropriateness of a range of legal authorities Why might one approach be more appropriate than another in a particular instance? 25

Effective Enforcement Powers Effective enforcement powers exist where there is both capacity and ability Clear mandate for enforcement bodies Establishment of policies and procedures that allow enforcement to be carried out in a fair and consistent manner Also … staff, technology, funding, skill, political will 26

Balance of Capacities for Enforcement Under national law, what role do citizens have in environmental enforcement? How does citizen enforcement relate to official, governmental enforcement? What is different? What is the same? Are there specific mechanisms for coordination? 27

Exercise 1 Identify 2 MEAs and their most important provisions regarding enforcement Discuss how your national laws and institutions (including administrative, civil, and penal) govern enforcement Are these approaches effective? What should be changed? Why? How? 28

Exercise 2 Analyze a case of real or potential transboundary pollution (e.g. pollution of a river or import of hazardous substances) What are the national enforcement capacities? Do the relevant laws apply extraterritorially to transboundary pollution? Which law do you apply? How to you enforce? In which country? Who enforces? What are the opportunities and constraints posed by different national institutions? How should/could/do these institutions coordinate? 29