9TH International Conference On Environmental Compliance and Enforcement Conference Proceedings

9TH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT CONFERENCE PROCEEDINGS 20-24 June 2011 Whistler, British Columbia,
Canada
Editors: Mr. Jo Gerardu, INECE Secretariat Ms. Danielle Grabiel, INECE Secretariat Ms. Meredith R. Koparova, Earthpace LLC Mr. Kenneth Markowitz, Earthpace LLC Mr. Durwood Zaelke, INECE Secretariat INECE Executive Planning Committee: Justice Antonio Benjamin (Co-chair), High Court of Brazil Catherine McCabe (Co-chair), United States Environmental Protection Agency Gerard Wolters (Co-chair), Ministry of Infrastructure and the Environment, the Netherlands Sheila Abed, IUCN Commission on Environmental Law Nawzat Ali, Ministry of Environment, Jordan Jonathan Allotey, Ghana Angela Bularga, Organisation for Economic Co-operation and Development Chris Dijkens, Ministry of Infrastructure and the Environment, the Netherlands Charles DiLeva, World Bank Mihail Dimovski, the Regional Environmental Center Prof. Dr. Michael Faure, Flemish High Council of Environmental Enforcement Brendan Gillespie, Organisation for Economic Co-operation and Development Markku Hietamki, Ministry of the Environment, Finland Donald Kaniaru, Kenya Bakary Kante, United Nations Environment Program Benjamin Langwen, National Environment Management Authority, Kenya John Merritt, Environmental Protection Agency Victoria, Australia Ladislav Miko, European Commission Ed Mitchell, the Environment Agency of England and Wales Antonio Oposa, Jr., the Philippines Gord Owen, Environment Canada Romina Picolotti, former Secretary of Environment & Sustainable Development of Argentina Terence Shears, the Environment Agency of England and Wales Deputy Chief Justice Adel Sherif, Supreme Constitutional Court of Egypt Dr. Kunihiko Shimada, Ministry of Environment, Japan Tian Weiyong, Ministry of Environmental Protection, China Durwood Zaelke, INECE Secretariat Brahim Zyani, Director Secretariat charg de lEau et de lEnvironnement, Morocco
Copyright INECE Secretariat Published 2011 by INECE 2300 Wisconsin Avenue NW, Suite 300B Washington, DC 20007 Website: www.inece.org These proceedings include papers prepared by speakers, topic experts, conference participants,and other interested parties for the Ninth International Conference on Environmental Compliance and Enforcement, held 20-24 June 2011, in Whistler, British Columbia, Canada. Use of these materials is strongly encouraged for training and further dissemination. Reproduction of this document in whole or in part and in any form for educational or non-profit purposes may be made without special permission from the INECE Secretariat, provided acknowledgement of the source is included. The INECE Secretariat would appreciate receiving copies of any materials that use this publication as a source. Opinions expressed are those of the authors and do not represent the views of their governments or organizations or the INECE Secretariat. ISBN 978-0-9842076-5-7 Design and layout by Criteria International (www.criteriainternational.com)
Conference Sponsors: United States Environmental Protection Agency Environment Canada Environment Canada Enforcement Branch Flemish High Council of Environmental Enforcement Environment Agency for England and Wales Commission for Environmental Cooperation of North America Netherlands Ministry of Infrastructure and the Environment
Prefaceiii
PREFACE
These Proceedings document the calls to action, recommendations, and outcomes that emerged during INECEs 9th International Conference on Environmental Compliance and Enforcement held in Whistler, British Columbia, Canada, on 20-24 June 2011. The theme of the Conference was Enforcement Cooperation: Strengthening Environmental Governance. Keynote speakers and panelists discussed the value of enforcement cooperation in achieving compliance with national environmental law and in meeting international commitments. Workshops and capacity building sessions provided new tools for strengthening institutions to more effectively and efficiently assure compliance. A special Summit of Regional Network Leadership identified good practices for ensuring the sustainability of regional and topical enforcement networks. This volume contains the Conference Statement, the main speeches and reports from the panels and workshops and Buffet of Ideas, key papers submitted, and a summary of the participant evaluations of the conference. As the international community prepares to meet next year in Rio de Janeiro, Brazil, for the United Nations Earth Summit, the need for assuring compliance with national laws and policies is increasingly recognized as central to meeting our international environmental commitments, responding to climate change, strengthening environmental governance, and improving global competitiveness. These Proceedings will inform national dialogues on non-traditional strategies for compliance and enforcement; on assuring compliance with national laws to honor international commitments; on promoting compliance with existing laws and policies that deliver climate change benefits; and on the importance of global, regional, and intra-national cooperation. At the international level, these Proceedings will advance the message that robust national environmental compliance and enforcement systems for environmental and energy laws are critical parts of an effective overall governance strategy to meet green economy, poverty eradication, and sustainable development objectives. On behalf of the Executive Planning Committee and the Secretariat sta, we look forward to your continued and productive use of INECEs conference materials. For additional information about the conference, including digital versions of the background papers, please visit the conference home page at http://www.inece.org/ conference/9/. Comments and suggestions may be sent to the INECE Secretariat by email at inece@ inece.org, by fax at 1-202-338-1810, or by mail to 2300 Wisconsin Avenue N.W., Suite 300B, Washington, D.C., 20007. The Editors
Table of Contentsv
TABLE OF CONTENTS
PREFACE 1 REPORTS FROM THE CONFERENCE iii 1 3 3 9
CONFERENCE OUTCOMES Whistler Statement on Enforcement Cooperation for Strengthening Environmental Governance Summary of the Summit of Regional Network Leadership: Creating and Sustaining Regional Environmental Compliance and Enforcement Networks SPEECHES AND REMARKS The Honorable Lisa P. Jackson, Administrator, United States Environmental Protection Agency: Call to Action on International Enforcement Cooperation Achim Steiner, Executive Director, United Nations Environment Programme: The Role of Strong National Environmental Institutions for Good Governance and the Green Economy John Scanlon, Secretary General, Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) Secretariat: The Role of Strong National Environmental Institutions for Good Governance and the Green Economy SUMMARY OF PANELS Panel 1: The Value of Enforcement Cooperation Panel 2: Compliance with National Laws to Honor International Commitments Panel 3: Compliance with Existing Laws and Policies that Deliver Climate Change Benefits Panel 4: Non-Traditional Approaches to Assure Compliance
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viNinth International Conference on Environmental Compliance and Enforcement 2011
SUMMARY OF WORKSHOPS Track A: Enforcement Challenges Across Borders Track B: Promoting Compliance with Climate-Related Requirements Track C: Proven Compliance and Enforcement Strategies Track D: Improving Implementation of Environmental Legislation Track E: Non-traditional Approaches to Compliance Track F: Strengthening Environmental Compliance Institutions Track G: Developing Effective Enforcement Networks SUMMARY OF THE BUFFET OF IDEAS SUMMARY OF THE FIELD VISITS CONFERENCE EVALUATIONS 2 PAPERS SUBMITTED FOR CONFERENCE PROCEEDINGS
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Track A: Enforcement Challenges Across Borders Baert, Robert and Blondeel, Martine, Co-operation Between Enforcers Across The Border (Belgium) Benthem, Van, Mark H.A. and Tiemensma, Henk, A Database For Sustainably Produced Timber; Assisting the Implementation of Timber Procurement Policy Heiss, Robert G., Illegal Exports of Hazardous Waste and Used Electronic Products: Enhancing Collaborative Enforcement with Customs Heiss, Robert, Ruessink, Dr. Henk, Isarin, Nancy, Koparova, Meredith, Grabiel, Danielle, International Hazardous Waste Inspection Project at Seaports: Results and Recommendations Kaaria, Dr. Bernard Irigia and Muchiri, Mr. Ndica Lawrence, Enforcement Challenges Across Borders: Detecting and Prosecuting Illegal Wildlife Trafficking Klingenberg, Albert, Joas, Anke, Huijbregts, Carl, and Loonstra, Anno, Dutch and European Enforcement of the Waste Shipment Regulation
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Voinov Kohler, Juliette, Compliance With and Enforcement of the Basel Convention: Latest Developments and Things to Come During the Tenth Meeting of the Conference of the Parties Kopsick, Deborah A., Requirements for Effective Environmental Security: Collective Action at the Ports Seaport
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Ruessink, Henk and Wolters, Gerhard Jr., Combating Illegal Waste Shipments Through International Seaports - A Call for Concerted Public and Private Approaches Spapens, Toine, Cross-Border Police Cooperation in Tackling Environmental Crime Wendell, Katelyn J., Enforcement Across Borders in Multilateral Agreements: Comparing the Enforcement Mechanisms of Trade, Weapons, and Environmental Multilateral Agreements Track B: Promoting Compliance with Climate-Related Requirements Carter, Ross and Baker, Chris, Australias National Greenhouse and Energy Report Act 2007 Jayanti, Suriya Evans-Pritchard, Failure to Launch: Insights from the Issuance and Non-Enforcement of the Securities and Exchange Commissions Commission Guidance Regarding Disclosure Relating to Climate Change Macken, Ken, Strengthening credibility in the EU ETS Following Security and Fraud Related Incidents Muli, Dorothy, What Lessons Can Be Taken for the Future Implementation of Climate Agreements? Track C: Proven Compliance and Enforcement Strategies Baert, Robert, Delvaux, Inge, Biesemans, Wilfriend, Control of Major Accident Hazards: The Joint Enforcement System in the Flemish Region (Belgium) Bartel, Robyn and Stone, Christopher, Lessons for Environmental Harmonization: A Rising Tide That Lifts All Boats? Brosnan, Meaghan H. M., The Use of Communities of Practice to Support Intelligence-Led Enforcement
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de Haas, Han (J.M.G.), Meerman, Paul (P.), and Bree de, Martin (M.A), Compliance Management and System-based Supervision de Rijck, Rob, A Flaw in the Criminal Approach of International Waste Transport in Europe Dijkens, Chris, The Role of Compliance Monitoring in Industrial Accidents Faure LL.M, Prof. Dr. Michael G., The Implementation of the Environmental Crime Directives in Europe Filipova, Tsvetelina Borrisova and Mesquita, Bruno, Implementation of Key Multilateral Environmental Agreements in South Eastern Europe Lehane, James, Integrating Strategic Intelligence with Organisational Risk Management Ostrovskaya, Elena and Leentvaar, Jan, Enhancing Compliance with Environmental Laws in Developing Countries: Can Better Enforcement Strategies Help? Weekers, Damian P., A Framework for Intelligence-Led Enforcement in Environmental Compliance Practice Track D: Improving Implementation of Environmental Legislation Aldana, Martha Ines, Enforcement of Environmental Impact Assessment in the Natural Gas Sector in Peru: A Practical Approach Andrade, Danielle E., Excell, Carole and Gonzalez, Candy, Citizen Enforcement of Procedural Rights in the Environmental Impact Assessment Process in Belize and Jamaica Connor, Garth N., Stormwater: An Environmental Problem That is Often Neglected Emory, Jr., Richard W., Bridging the Customs and Environmental Gap: Achieving Inter-Ministerial Cooperation for Effective Control of Trade Regulated for Environmental Threats Fulton, Scott and Benjamin, Justice Antonio Herman, Foundations of Sustainability
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Kolhoff, Arend and Ruessink, Henk, Environmental Impact Assessment and Environmental Compliance and Enforcement: An Agenda for a Common Approach Mazur, Eugene, Bularga, Angela, and Tapis, Valentina, Risk-based Environmental Inspection in the Republic of Moldova: Developing Planning Tools and Defining the Resource Gap Teekens, Jan and Van Zanten, Pieter-Jan, Towards More Effective and Efficient Environmental Supervision Trends and Developments in the EU and the Netherlands Wang, Jin and Yan, Houfu, Barriers and Solutions to Better Environmental Enforcement in China Wasserman, Cheryl, Enforcement Assessment Requirements of Environmental Impact
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Track E: Non-traditional Approaches to Compliance Allotey, Jonathan, Sekyi, Ransford, Faabeluon, Lambert, ErquayeTetteh, Esi Nana, Affull, Haron Harrison, Sarfo-Afriyie, Yaw, Forocco, Saeed, and Afsah, Shakeb, Integration of Environmental Disclosure into Regulatory Management: The Case of the Akoben Environmental Rating Programme Benebo JP, Dr. Ngeri, Using Enforcement Cooperation to Promote Environmental Governance: The Case of the National Environmental Standards and Regulations Enforcement Agency of Nigeria Booth, Chris and White, Mark R., Developments in Environmental Regulation: Maximizing Outcomes in the Current Political and Economic Climate - A Review of Recent Experience of Non-Traditional Approaches in the United Kingdom, with Insights from Europe and Canada de Smedt, Peter, Legal Tools to Encourage Citizen Participation in Environmental Enforcement in the Flemish Region (Belgium) Ononino, Alain Bernard, Establishing Regional Wildlife Law Enforcement: Lessons from an Unusual NGOs Government Partnership in the Central African Subregion Paddock, Leroy C., Beyond Deterrence: Compliance and Enforcement in the Context of Sustainable Development
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Raedschelders, Sigrid, Interrelations Between Administrative and Criminal Sanctions in Environmental Law: New Legislation And Actual Practice in Flanders Wendell, Katelyn J., Improving Enforcement of Hazardous Waste Laws: A Regional Look at E-waste Shipment Control in Asia Track F: Strengthening Environmental Compliance Institutions Bakshi, Pradeep and Yadav, Madhur, New Judicial Roles and Green Courts in India Di Paola, M.E., Vinocur, G. , Needle, C., Using Strategic Litigation to Implement Environmental Legislation: The Salas Case for Native Forests in Argentina Gray, Wayne B. and Shimshack, Jay P., Environmental Monitoring and Enforcement in the United States: Empirical Evidence from the Economics Literature Jardine, Mark, Collaborating with Tertiary Education Institutions to Provide Basic Training to Environmental Management Inspectors Lynott, Dara and OLeary, Gerard, A Strategic Approach to Managing Risk and Delivering Outcomes Through Environmental Enforcement Marshall, Dr. Matthew and Pink, Grant, Internal Communication Strategies for Building Capacity Among Non- Inspectors Mazur, Eugene, Outcome Indicators of Environmental Compliance Assurance in OECD Countries: Challenges and Avenues for Further Development Tonge, Michael, A Framework for Risk Managing the Appointment of Officers Authorized to Exercise Coercive Powers: One Federal Departments Approach Track G: Developing Effective Enforcement Networks Bromm, Susan E., North Americas Commission for Environmental Cooperation: One Example of a Successful Regional Network Derder, Mohamed Rida and Zyani, Brahim, The Network for Environmental Compliance and Enforcement in Morocco (NECEMAR): An INECE Initiative Supported By a Strong Moroccan Political Will
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OLeary, Gerard and Lynott, Dara J., The Effective Use of an Environmental Enforcement Network in Ireland Lehane, James and Pink, Grant, Evolution of a Regional Environmental Enforcement Network: The Australasian Environmental Law Enforcement and Regulators Network (AELERT) Nicholson, Michael, Networking in Europe: How Networking and Cooperation have Helped Respond to Environmental Compliance and Enforcement Challenges in Impel Member Countries Opondo, Gerphas Kayah, Creating and Sustaining Regional Environmental Compliance and Enforcement Networks: Lessons from the East African Network for Environmental Compliance & Enforcement Pink, Grant, Assessing the Utility of Environmental Enforcement Networks: Maximizing Benefits to Members Pink, Grant and Lehane, James, Environmental Enforcement Networks: Development of a Network Evaluation Matrix Stas, An, The Flemish High Council of Environmental Enforcement A Coordinated Environmental Enforcement Policy 3 APPENDIX
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LIST OF PARTICIPANTS CLOSING MATERIALS Acknowledgements Project Management and Conference Support
1 REPORTS FROM THE CONFERENCE
Whistler Statement3
CONFERENCE OUTCOMES
WHISTLER STATEMENT Executive Planning Committee Co-Chairs Final Conference Statement 9th INECE International Conference on Environmental Compliance and Enforcement Whistler, British Columbia, Canada 24 June 2011 INTRODUCTION 1 The 9th International Conference of the International Network for Environmental Compliance and Enforcement (INECE) convened more than 170 participants from governments, international organizations, and non-governmental organizations from more than 65 countries and institutions in Whistler, British Columbia, Canada, to share their expertise in environmental enforcement and to build and strengthen partnerships for effective enforcement actions. The Conference demonstrated the critical importance of compliance and enforcement to protecting public health and the environment and to advancing sustainable development and a green economy. Participants highlighted results that INECE has delivered throughout the world to improve implementation and compliance with national and international policies and regulations that respond to our most pressing human health and environmental challenges and that create opportunities for economic and social growth and technological innovation. 2 The 9th International Conference involved a week of interactive workshops, high-level keynote addresses, plenary discussions, field visits, brainstorming, and networking that were structured around seven themes: a. b. c. d. e. f. g. enforcement challenges across borders; promoting compliance with climate-related requirements; sharing proven compliance and enforcement strategies; improving implementation of environmental legislation; promoting non-traditional approaches to obtain compliance; strengthening environmental compliance institutions; developing effective enforcement networks.
3 The success of the 9th International Conference is reflected in the announcement of the launch of new environmental compliance and enforcement networks,
4Ninth International Conference on Environmental Compliance and Enforcement 2011
with complimentary commitments to strengthening existing ones, and in the call to communicate the value of environmental compliance and enforcement in meeting environmental governance and green economy objectives. 4 INECE is the only global network that develops, promotes, and implements practical and innovative activities to strengthen environmental compliance and enforcement at all levels of governance local, national, regional, and international. INECE and its regional and topical networks strengthen practitioners environmental compliance and enforcement efforts by sharing information and experience on effective enforcement and compliance practices, assisting each other in training to build enforcement capacity, raising awareness of the importance of enforcement and compliance for effective environmental protection, and facilitating enforcement cooperation among countries. THE VALUE OF ENFORCEMENT COOPERATION 5 Cooperation among government officials can help create a level playing field for regulated industries domestically and internationally, resolve and prevent transboundary environmental problems, create efficiencies in the development of tools and programs, and foster the political will needed to strengthen implementation of environmental standards. Operating as transgovernmental networks focused on environmental compliance and enforcement, INECE and its regional and topical networks provide the forums and mechanisms that enable direct interaction among and between domestic officials, international institutions, and private actors. INECE plays an instrumental role in the compliance and enforcement community by communicating and advancing best practices, fostering mutual learning both vertically and horizontally across organizations responsible for enforcement and compliance, and facilitating information exchange. THE CHALLENGE OF GOOD GOVERNANCE 6 Sustainable development depends upon good governance, good governance depends upon the rule of law, and the rule of law depends upon compliance, which in turn depends upon effective enforcement. None alone is sufficient, but together they form the building blocks essential for sustainable development. The role of compliance is often insufficiently appreciated, and must be strengthened if the rule of law and good governance are to become more effective in meeting the challenges of sustainable development and in protecting human health and the environment for present and future generations. This is the challenge for the INECE community. 7 For environmental protection to be effective, the compliance and enforcement community must have adequate access to resources and information. Environmental inspectors and police must have the knowledge and tools to detect infractions and to collect evidence of non-compliance with law. Prosecutors
Whistler Statement5
must have an understanding of environmental laws and regulations, forensic evidence, and sentencing guidelines for environmental criminals. The judiciary must have the capacity to ensure that environmental laws are interpreted and applied fairly by issuing meaningful punitive judgments and appropriate remedies. Members of each of these groups need opportunities to collaborate informally with peers in other countries to exchange experience and good practice, to identify creative approaches to common challenges, and to jointly achieve professional improvement. 8 Compliance with and enforcement of environmental law are critical components of an overall strategy for sustaining economic growth. A modern, innovative approach to compliance and enforcement advances green economy objectives and creates value by improving the health and safety of the workforce and communities, conserving natural resources and ecosystem services, promoting sustainability in the business community, developing new markets for environmental goods and services, creating sustainable jobs, driving technology innovation, and leveling the playing field for investment. 9 The global community faces unprecedented threats to public health, food security, water availability, waste and natural resource management, and biodiversity. This includes pollution of our land, air, and water at local, national, regional, and global levels. It also includes global threats to the climate system and the oceans from the effects of human activities, increasing globalization, and continuing population growth. Climate change impacts are occurring today, and many scientists predict that we will face serious and potentially irreversible abrupt and catastrophic consequences if current trends continue unaltered. 10 Effective efforts to decelerate climate impacts require stronger implementation, enforcement, and compliance with national environmental laws, including national air pollution laws. These efforts can result in significant near-term climate mitigation benefits while supporting green economic development. This is particularly true for laws that reduce non-carbon dioxideclimate pollutants (e.g., black carbon soot, ground level ozone, methane, and fluorinated gases) and for laws that protect natural carbon reservoirs (e.g., forests, wetlands, and other ecosystems rich in biomass). 11 Strict compliance and enforcement of the Montreal Protocol on Substances that Deplete the Stratospheric Ozone Layer has been critical in protecting the ozone, while also solving a piece of the climate problem that otherwise would have contributed as much to global warming as carbon dioxide. The Montreal Protocol phase-outs of damaging substances promoted technological innovation to create substitutes that were less damaging to the ozone layer and to the climate system, while also achieving additional improvements in energy efficiency. This illustrates the contribution compliance with environmental law can make to promoting a greener economy.
COMMITMENTS TO STRENGTHEN COMPLIANCE AND ENFORCEMENT COOPERATION 12 During the 9th International Conference, the INECE community committed to further strengthen environmental compliance and enforcement cooperation by: Establishing the West African Enforcement Network with an initial focus on illegal movements and disposal of electronic waste in the region. Agreeing to establish a South American Enforcement Network with an initial focus on harmonizing investigation and prosecution procedures and increasing understanding of comparative environmental legal systems. Launching a Global Environmental Prosecutors Network to build capacity for environmental prosecution by hosting training events and developing a forum for exchanging information and good practices, in partnership with regional prosecutor networks. Committing to promote the critical value of environmental compliance and enforcement as a core component of good governance and the green economy in the lead up to and during the 2012 United Nations Conference on Sustainable Development (Rio+20). Continuing work on the Seaport Environmental Security Network, the Carbon Market Compliance Network, and the International Network for Environmental Compliance Training Professionals. 13 The Co-chairs, Executive Planning Committee, the INECE Secretariat, and Conference participants committed to developing strategic plans and securing the necessary resources to ensure the successful implementation of the abovereferenced initiatives. A CALL TO ACTION 14 As a result of the panels and workshops of the 9th International Conference, the following actions were identified as priorities for future activities to be reflected in INECEs next strategic implementation plan and fundraising strategy. As the Co-Chairs of the Executive Planning Committee, we call on the INECE community inspectors, prosecutors, regulators, parliamentarians, the judiciary, academics, representatives from international organizations, and representatives from nongovernmental organizations and the private sector to partner with the INECE Secretariat to fulfill the above commitments announced during the Conference and to undertake the following activities: To bring together relevant information to support and improve the management of international inspection projects. To facilitate the exchange of experiences and best practices with emphasis on illegal aspects of timber and wildlife trade, electronic waste, hazardous waste, and marine issues. To develop wide-scale consensus on core competencies for compliance inspectors and to share training tools to develop core competencies. To communicate that implementation of multilateral environmental
Whistler Statement7
agreements at the national level is critical to achieving international environmental objectives and that national environmental regulations should be specific, attainable, relevant, and measureable. To identify and communicate innovative strategies for increasing the efficiency and effectiveness of compliance assurance programs. To establish an advisory committee to better integrate and expand the role of academia into the work of INECE and to expand collaboration between INECE and the IUCN Academy of Environmental Law. To document the guiding principles and good practices for establishing and sustaining successful regional environmental enforcement networks and to encourage self-assessments and peer reviews of the networks. To collaborate with the judiciary, including through the promotion of the importance of green courts in enforcing the environmental law. To jointly develop smart, viable, and sustainable methods to stimulate effective cross-border information sharing to detect and deter illegal operations. To develop and promote tools and techniques for enhancing the enforcement of environmental impact assessment requirements, in partnership with the International Association of Impact Assessment and other stakeholders. To identify strategies for strengthening compliance with existing national and sub-national laws that reduce emissions of climate pollutants, especially of non-carbon dioxide pollutants, and that protect forests and other natural carbon reservoirs. Existing laws relevant to adaptation to climate impacts should be included. To share information on strengthening monitoring, reporting, and verification of market-based trading programs, particularly around issues including data quality assurance, sector-based monitoring standards and protocol, auditing standards, and data confidentiality. To identify strategies for strengthening compliance to ensure financial and environmental integrity of nationally appropriate mitigation actions (NAMAs) and bilateral climate change agreements. To share information on new techniques for the effective and strategic use of intelligence, including from satellite technology and remote sensing, to detect and deter environmental non-compliance. To identify opportunities for communities and industry to partner with governmental institutions to promote compliance with environmental law.
15 The Co-chairs, Executive Planning Committee, INECE participants, and the INECE Secretariat will work together to secure the necessary resources and develop work programs to implement these actions. ACKNOWLEDGEMENTS 16 As the Co-chairs of INECEs Executive Planning Committee, we offer our most sincere appreciation to our host governments of Canada and of British Columbia. We also extend our deepest thanks to Chief Gibby Jacob, KKeltn Siym, the Hereditary Chief and Councilor of the Squamish Nation; to Mayor Greg Gardner of the District of Squamish; and to Mayor Ken Melamed of
Whistler and thank them for their generous hospitality and their inspiration. We were honored to meet in the traditional home of the Squamish Nation and affirm our commitment and solidarity with indigenous peoples and local communities around the world. 17 We gratefully acknowledge and express appreciation for the messages of inspiration provided by Hon. Lisa Jackson, Administrator of the U.S. Environmental Protection Agency; Hon. Izabella Teixeira, Minister of Environment of Brazil; Ms. Ignacia Moreno, Assistant Attorney General for Environment at the United States Department of Justice; Mr. Scott Fulton, General Counsel of the U.S. Environmental Protection Agency; Mr. Achim Steiner, Executive Director of the United Nations Environment Programme; Ms. Katharina Kummer Peiry, Executive Secretary of the Secretariat of the Basel Convention on the Control of Transboundary Movements of Hazardous Waste and their Disposal; and Mr. John Scanlon, Secretary General of the CITES Secretariat.
Summary of the Summit of Regional Network Leadership9
SUMMARY REPORT Summit of Regional Network Leadership: Creating and Sustaining Regional Environmental Compliance and Enforcement Networks The International Network for Environmental Compliance and Enforcement (INECE) hosted a day-long Summit for chairs, secretariat officers, and other high-level participants involved in the development of regional environmental compliance and enforcement networks, immediately prior to its 9th International Conference on Environmental Compliance and Enforcement in Whistler, British Columbia, Canada, in June 2011. INECE, which is often referred to as a network of networks, convened the Summit to provide a forum for sharing good practices and experiences on creating and sustaining regional and topical environmental compliance and enforcement networks and for developing recommendations for products and services that could support the missions of the regional networks. 31 practitioners from 10 networks participated in the Summit, including representatives from the recently launched East African Network for Environmental Compliance and Enforcement and representatives interested in launching an environmental compliance and enforcement network in West Africa. The Summit program was organized along the following discussion areas: setting the stage; communications, funding, and capacity building; tools for network assessment; and collaborating to support a message on environmental compliance and enforcement in international processes. The Summit concluded with a call to action to facilitate continued collaboration among the regional environmental compliance and enforcement networks. The Summit, which was the first forum dedicated to collaboration among the regional environmental compliance and enforcement networks, resulted in: The exchange of experiences from diverse and knowledgeable stakeholders on establishing and maintaining regional and topic specific compliance and enforcement networks, as well as the commitment to continue to share experiences and collaborate when feasible. The identification of best practices for regional network governance, capacity building, project implementation, and enforcement cooperation projects. The identification of new synergies for the delivery of capacity building programs, including partnership with the INECE Trainers Network. The creation of new relationships to strengthen global environmental governance. A detailed report on the Summit is available on the 9th Conference web page, http://www. inece.org/conference/9/.
Hon. Lisa P. Jackson11
SPEECHES AND REMARKS

CALL TO ACTION ON INTERNATIONAL ENFORCEMENT COOPERATION THE HONORABLE LISA P. JACKSON Administrator, U.S. Environmental Protection Agency Hello, Im Lisa P. Jackson, Administrator of the U.S. Environmental Protection Agency. Im sorry I cant be with you in person today, but Im glad to have this chance to welcome all of you to this years International Conference on Environmental Compliance and Enforcement. Despite the many and varied institutions and organizations that make up INECE, our goals can be summed up relatively simply: to protect peoples health and safeguard the environment that sustains us. The work we do helps to ensure that our food is safe to eat, that our water is safe to drink, and that our air is safe to breathe. It prevents thousands of illnesses from asthma, cancer and other diseases each year. And it saves lives. In the United States, compliance with the Clean Air Act is estimated to have saved 160,000 lives and prevented more than 100,000 hospital visits in 2010 alone. We deliver those results, in no small part, because of our vigorous compliance and enforcement programs. Through innovative compliance techniques and civil or criminal enforcement actions, EPA, like your organizations, is working every day to level the playing field for those who play by the rules. We all know that environmental challenges dont stop at our borders and for that reason, neither can our efforts to ensure environmental and health safeguards. The EPAs collaborations with organizations across the globe are instrumental in strengthening our individual enforcement and compliance efforts and expanding effective environmental governance around the world. Since this administration began, I have traveled to Indonesia to discuss efforts to address climate changespoken with East African leaders about strengthening environmental governanceand done our part to strengthen the EPAs thirty year environmental relationship with China, a critical partner in our planets environmental future.
I have traveled to Brazil with President Obama and worked with leadership there to focus on urban sustainability a vital issue and an important learning opportunity for all nations, as Brazil invests and builds in preparation for the World Cup in 2014 and the Olympics in 2016. In these ongoing efforts, the International Network for Environmental Compliance and Enforcement plays a central role. This conference is a great example of international collaboration we need and an important opportunity to help all of us do our jobs even better. That opportunity must not be missed. Though INECE is two decades old, our work together is still relatively new. The leaders gathered here today are among the first generations to confront the truly global environmental and health challenges we face today everything from climate change, to mercury in our oceans, to protecting and preserving irreplaceable habitats. Our actions and our capacity to work together on these and other issues will shape the world we leave for our children and the generations that follow them. That is why we must strive to make the most out of these rare opportunities to sit across the table from one another. In the coming days, I challenge every one of you to find opportunities for improving our work together and strengthening the necessary efforts on issues that we face not as individual nations, but as one planet. Thank you very much.
Achim Steiner13
THE ROLE OF STRONG NATIONAL ENVIRONMENTAL INSTITUTIONS FOR GOOD GOVERNANCE AND THE GREEN ECONOMY MR. ACHIM STEINER Executive Director, United Nations Environment Programme [excerpted] I think we have over the years and here in Nairobi also often discussed this issue of how the international community is increasingly coming to grips withthe challenge of environmental crime... I always hesitate a little bit with the word but in some respects it is probably the most appropriate word to use today because anything that steps outside the law, and is therefore deemed to be illegal and particularly when it comes to some of the environmental issues we are dealing with, is really a crime. I regularly receive a monthly update in terms of a global environmental crime report and I think what you know, much better than I do, is that both the scale and the complexity and the challenge of dealing with these issues is continuing to grow. We often have abstract discussions in the international realism with governance but I think one of the great assets of INECE and the work that you have been doing is that it becomes very specific, it becomes concrete. We are really talking on three dimensions where I think we and UNEP are particularly concerned that we need to become both more systematic, but I think also more focused, on building the capacity to deal with what will continue to be a growing problem. One dimension is obviously the natural resource dimension. It is perhaps the crudest form of depriving a nation and community, individuals, landowners in terms of simply having natural resources stolen, be they flora or fauna and the obvious ones from ivory to rhino horn, but also many other species that for instance in the Appendix 1 of CITES fall within that domain. The second major area that is the whole issue of toxic waste. We are living in a world where waste has become an exponentially growing problem. We have with a number of the conventions in the chemicals and waste domain trying to bring an international framework to bear upon the global economy in dealing with those issues, but I think both at national level in many countries but also globally, toxic waste and the dumping of waste in an illegal manner is becoming a problem that we are confronted with in so many respects and that extends you further to the dimension of modern technology. E-waste, again a mountain literally of or an avalanche of waste that is hitting many parts of the world, unprepared, under false pretences and therefore also a problem that directly links back to vulnerable communities who cannot protect themselves in terms of public health.
But there are other forms also of environmental crime and ones that perhaps lets say more industrialized countries, more urbanized economies, have gotten used to is the forms of land grabs, illegal development, which can affect the entire natural systems that are part of our environmental heritage or environmental assets that are simply being destroyed through illegal construction, extraction, and so on. I think the general directions that we have today in terms of both enforcement and also compliance have clearly established a great deal of jurisprudence and I think we do not have to start asking ourselves where are we going to move in terms of addressing this crime. The much bigger question is how are we going to cope witha quantitatively escalating problem that is driven on the one hand by a local economy that will increasingly confront scarcity. Scarcity drives up prices, higher prices make organized crime more feasible and I think we are seeing this across a whole range of products, both flora and fauna, that are currently in a sense being illegally either extracted or sold on the global market place. I think the pressure and also the scope for organized crime to take over from what very often is still a more informal sector is going to be a problem and we know this in a number of domains. I think in some respects we also have to confront a difficult dilemma, there is also what I would refer to as the prohibition syndrome. Creating a legislative framework around the use of resources and banning the use of some resources does give rise also to the black market, the illegal markets, and I think we have to ask ourselves is a legislative prohibition, whether in terms of a moratorium, a ban of use, or a ban of trade always the ideal form for actually achieving what is ultimately not an objective of enforcement but rather of a sustainable management of resources? And I think we are still learning lessons in many of our societies of how we can best address that and therefore I would argue this increasing legislative body or jurisprudence and also limiting use creates obviously a parallel black-market in which many people are beginning to thrive and there are lessons I think we have to ask ourselves and how are we learning them and how do we translate them. Clearly the global marketplace is a further driver that is bringing environmental crime into a whole new dimensions, organized crime just being one phenomenon of that but I think the sheer quantity, the sheer if you want hover-effect of a global economy that can concentrate itself on a resource is something we have to be very wary of. If you take the fate of the bluefin tuna, I often use it as an example for those who argue let the market place and the law of economic demand and supply ensure sustainable management, well we have the phenomenon of the global commons? And as we know, a bluefin tuna selling at a hundred-fifty, two-hundred thousand dollars is actually not going to stop people from trying to fish illegally. Its actually going to encourage people, its going to enable people to go further, farther, to find that last blue-fin tuna. So that global market place has an immense power also to encourage environmental crime.
Achim Steiner15
Another driver, and one that sadly is not becoming less important, is conflict and it links also into societies that are de-stabilized where the legal and legislative and governance vacuums create also scope for people to exploit that. I think we have seen a number of countries that are ridden by conflict, whether it is conflict diamonds or whether it is wildlife or whether it is illegal logging. This is an issue that we do need to look at because one thing is to talk about enforcement and compliance, but we do have places where there simply arent the conditions for that. So do we focus on the country of origin or do we focus more on the destination, the consumer end of it? Its a debate, as you know, that is as alive in the international drug discussions, as it is perhaps relevant for our work. Finally, I think the complexity is also one that is increasingly preoccupying us because we are today talking about environmental crimes that sometimes involve very complex chemical substances and this is for me also the bridge then into how do we begin to address the ability to strengthen compliance and enforcement from the point of view that in many countries we may first of all lack a trained judiciary in terms of the latest scientific evidence that is there. Lets assume from that we may even bring legislation into national jurisdictions, but the capacity [may be weak] both in the jurisprudence community, but also right down to the scientific institutions We have the Probo Koala incident in Cte dIvoire. It was impossible for the Cte dIvoirian authorities to assess what exactly were in fact the substances that had been dumped through the Probo Koala incident. It took international laboratories, international teams to determine that. How many countries truly have a team of experts that work with law enforcement, with the judiciary, with prosecutors, with judges, to create, if you want, that capacity from the point of where a crime is detected, it is investigated, it is brought to court? And that chain of assessment and judgment really has to function if we are going to have enforcement and compliance. So I raise these issues because they are important not only in their own right of trying to limit what is essentially the theft of the wealth of nations, and the theft of the wealth of communities and individuals. It also speaks to what is now with the Rio+20 summit next year a center of focus, transition towards a green economy. The transition towards a green economy depends on the one hand on scientific and technical frontiers and new markets, new legislations and policies that enable us to have more energy efficient, cleaner products, etc, but it will also depend on having a governance framework, a regulatory framework that can be both complied with, enforced. And I go back to my original point, perhaps not always is enforcement the most direct route towards achieving the outcome we intend but certainly constructing the framework within which businesses, consumers, producers, are able to move towards a green economy will depend on compliance and enforcement in the broader sense because the free-rider syndrome in a global economy is the greatest threat to actually having a global response to these issues.
Let me perhaps end here because I know we are meant to engage also in some questions, answers, comments and I obviously would very much appreciate listening also to you as those who are on the frontier of this discussion because for us in UNEP, and my two colleagues who are with you also there this is an issue that is not at all peripheral it goes to the heart of good international environmental governance, it goes to the heart of good national governance issues and UNEP clearly is a key interested party in trying to help actors across the spectrum, local to global, to take this further. Thank you, thank you very much.
John Scanlon17
THE ROLE OF STRONG NATIONAL ENVIRONMENTAL INSTITUTIONS FOR GOOD GOVERNANCE AND THE GREEN ECONOMY MR. JOHN SCANLON Secretary General, Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) Secretariat Can I say how delighted I am with the topic that has been chosen, which is to look at the need for strong national institutions if we are going to achieve our national commitments. This is a critical topic in the lead up to the United Nations Conference on Sustainable Development, sometimes-called Rio + 20, or if you are from Scandinavia, known as Stockholm Plus Forty. And as you know there are several topics that will be addressed at this Rio-conference next year and I am sure that Achim Steiner, who spoke earlier this morning, would have addressed them. [These] are the green economy in the context of sustainable development and poverty eradication and the institutional framework for sustainable development. But it doesnt matter at the end of the day what we do at the global level if we are not able to create and maintain strong national institutions because at the end of the day, whether something happens or not, is going to be determined by the strength of national institutions and their capacity to implement domestic commitments but also commitments that are associated with international commitments. And I think sometimes we are at risk of overestimating what we can achieve through global initiatives or through work that is undertaken by the international community. We always need to remind ourselves that we have to focus on the national level. And when we are talking about global environmental governance, or what some call international environmental governance, we have to look at how that regime can better support national efforts. If its not connected to national efforts, if it is not supported to what is happening at the national level, then you have to start to wonder what its for. So I tell you there are some areas that we really need to start honing our attention on, we need to look at how these international commitments can be translated into national laws and be implemented by national institutions and obviously the Multilateral Environmental Agreement I want to focus on today is CITES. As is known, CITES deals with international trade in wildlife. Illegal trade is a big issue and it is illegal trade whether it be [in relation to a species listed in] appendix 1 or appendix 2 [of CITES]. A lot of the research thats being done in this area suggest that we have illegal trade that is valued in multiple billions of dollars. The Secretariat doesnt buy in to any particular number with respect to illegal trade but we know that the extent of illegal trade is significant and is a multibillion-dollar industry and involves organized crime.
Now moving from the architecture of this convention to what happens at a domestic level. If you are a party to this Convention, it imposes three particular and quite onerous obligations on you. First, you are obliged to establish a management authority which is our entry point into the country and it is the authority responsible for certifying that the take from the wild is legal and sustainable and for tracing that trade. Second, you have to establish a scientific authority and that authority is responsible for making determinations known as non-detriment findings, namely taking that species and that quantity from the wild is not going to have a detrimental impact on its ability to survive in the wild. And thirdly, you are obliged to put in place enforcement measures. This includes penalties and taking action to enforce the Convention. You are obliged to deal with confiscation of live animals that have been traded illegally, you are obliged to monitor trade, and you are obliged to report on trade including all of the measures that you have taken to implement the Convention. So what happens at the international level and the domestic level? At an international level the obligations are quite minimal in the context of this Convention. The Parties decide what species go on the appendices, the Parties decide how to interpret the Convention, the Parties decide where they are going to put their global effort and their global dollars and the Parties also monitor compliance. But its at the national level that this Convention stands or falls. Its the strength of the management authorities, the science authorities, the enforcement authorities, the strength of national laws, the ability of police and other officers to enforce these laws, that in fact determines whether or not this Convention succeeds or whether it fails and this is where the majority of our effort goes and the majority of the effort of our Parties goes. In terms of a Secretariat, we look at the Convention and we read compliance and enforcement in a particular way. We look at compliance in the context of compliance with the obligations imposed on you as a member state under the Convention. Have you put in place the authorities you are obliged to put in place? Do you have the enforcement measures? Are you taking measures to ensure that trade is sustainable? When we talk about enforcement we are talking very much about what is happening at a domestic level, at a national level. Its about assisting member states or parties to this Convention to actually enforce it accordance with national laws. But a failure to do that does link back into the compliance issue because a failure to do that in fact becomes an issue of compliance with the obligations under the Convention. What are we doing at a national level then? What are we doing to actually strengthen institutions to enable them to actually meet their international commitments? We really look at it in a number of clusters. We look at what we do in science, in law, and enforcement, and I could add trade to that, but I wont do with that today. With science, how do you actually assist a scientific authority make a non-detriment finding? How do you determine what is a sustainable yield of a particular species
John Scanlon19
from the wild? This is quite a complicated process even if you have a sophisticated regime of science authorities in your country, but if you dont yet have them, its a very difficult process to undertake to make this non-detriment finding. We put a lot of effort in at the domestic level to achieve this and increasingly we are looking at other efforts to build the science capacity. You can build capacity to do good science while you build capacity to implement a convention. Looking at the issue of law, having national legislation in place that is compliant with the expectations of this Convention. Again this is a difficult issue to build the necessary laws and the supporting institutions that need to implement those laws. Our Parties, in fact, put in place a national legislation project where the Secretariat was given the responsibility to review all parties legislation and decide where they fitted into one, two, or three categories, either met the objectives of the convention, partly met, or it didnt meet so that we could work with parties to assist them meet their domestic legislative regime. And thirdly the issue of enforcement, as I said under the Convention, you are obliged to put in place measures to enforce this convention and to put in place penalties for those who contravene domestic laws with respects to CITES. How do we do that? You are the practitioners here. You know what is involved in this. Actually enforcing wildlife laws involves the judiciary, it involves prosecutors, it involves the police, it can involve other people with authorities such as rangers, it involves a whole chain, from bottom to top, in order to make an enforcement action work. How do we assist countries, in particular developing countries, to put in place the measures that they need to enforce this convention? Well one thing we have done, and we did it last November 2010, is to launch what is called the International Consult Team to Combat Wildlife Crime. This is a consult team comprised of five agencies and its been signed off by the head of agency in all instances. It is a collaborative effort by the World Bank, INTERPOL, World Customs Organization, UN Office of Drugs and Crime, and CITES. And this is about bringing together the collective effort of the international community to support national efforts to enforce CITES and to deal with breaches of domestic law or national law that gives effect to international obligations. Why do we put this consult team together? Because you cant do with enforcement of wildlife crime unless you involve the police, unless you involve customs, unless you involve the judiciary and the justice system, unless you are able to track the money, to look at how money is being laundered, and unless you have regulatory instrument like CITES, so we have joined forces. So CITES provides the international framework, it poses obligations about what you must do at national level, but basically this convention stands or falls based upon the capacity of our national institutions, the strength of the law, the ability to enforce those laws at a national level. That is where our effort is going and thats where wed encourage all of you, over the next, next few days, to see in how you could support us in that endeavor.
Three things to wrap up by a way of summary. Firstly, there is a global debate going on about governance, sustainable development governance in that context, international environmental governance. We have to make sure that that debate is not divorced from national realities and is linked to how international environmental governance can be aligned to support national implementation of commitments. Secondly, we dont want to overestimate what could be achieved at an international level. We definitely need international agreements, and an international legal framework to address a large number of issues but if we overstretch our issues we spread ourselves too thin. There is a core of twelvecore multilateral environmental agreements that we must take further measures to effectively implement. The silver bullet is in fact effectively implementing what you have agreed to, doing it day in day out, and ensuring you have the national institutions that have the capacity to do it. That is our focus of this Convention Secretariat and thats something as we agreed that INECE has a strong focus on. And finally in relation to accountability, we do have an accountability mechanism. Im sure it would be of interest to you as to how that works. But we also need to have, in addition to an accountability mechanism, a mechanism that allows us to impose trade suspensions. We really need to find some way of complementing that with some form of financial incentive to bring Parties on board that are falling out of compliance that want to bring themselves into compliance. We should be revisiting financial mechanisms such as the Global Environmental Facility to see how we can use them perhaps more effectively and more broadly to enable implementation at a national level of international commitments. I am looking forward to hearing from all of you and John [Sellar] in particular about how we have found ways of enhancing our collaboration and the implementation of CITES and the implementation of other multilateral environmental agreements.
Panel 1: The Value of Enforcement Cooperation21
SUMMARY OF PANELS
PANEL I: THE VALUE OF ENFORCEMENT COOPERATION Moderator: Panelists: Gerard Wolters, Inspector-General for Enforcement Cooperation, Ministry of Infrastructure and the Environment, The Netherlands Catherine McCabe, Principal Deputy Assistant Administrator, Office of Enforcement and Compliance Assurance, United States Environmental Protection Agency Dinah Brandful, Assistant Commissioner, Excise and Preventive Service, Ghana Customs Professor Dr. Michael Faure, Flemish Environmental Enforcement, Belgium Rapporteurs: Danielle Grabiel, INECE Secretariat Robert Heiss, Director, International Compliance Assurance Division, Office of Federal Activities, Office of Enforcement and Compliance Assurance, United States Environmental Protection Agency Summary Report Panelists discussed the importance of enforcement cooperation to ensure a level playing field, fair economic competition, sharing of good practice, mutual learning, and the efficient use of resources. The moderator, Mr. Gerard Wolters, highlighted the prevalence in environmental enforcement of super-national issues and of intertwined disciplines and expertise. He noted that it is imperative for competent authorities to cooperate internationally as well as nationally. Mr. Wolters identified as benefits of compliance and enforcement cooperation: a level playing field and fair competition; the concentration of resources to detect, investigate, and prosecute violations; the development of harmonious standards and codes; and the opportunity to share expertise and increased efficiency. He pointed to the recent austerity due to economic conditions as an additional incentive for cooperation. High Council of
Ms. Catherine McCabe outlined four reasons why international and regional enforcement cooperation is valuable. First, cooperation makes enforcers smarter and more effective from sharing lessons learned, strategies, and tools, as well as recognition of what did not work. In May 2011, the United States Environmental Protection Agency and Interpol co-hosted the Pollution Crime Forensics Conference, which brought together experts from seventeen countries and five continents to discuss innovations in criminal data analysis and related technologies. The conference is a positive example of cooperation to share cutting-edge approaches to enforcement. This type of cooperation will be particularly important in combating climate change, which will require new and innovative approaches. Second, cooperation builds worldwide compliance. Partnerships between developed and developing countries help create a level playing field for world economic growth and provide more equal protection for people and natural resources. Third, cooperation builds communication networks that enable countries to proactively address transboundary problems, such as hazardous waste, quickly and effectively. She offered as examples: the messaging which occurred between the United States and Nigeria, with INECE assistance, to intercept an illegal shipment; the development of electronic transmission of hazardous waste notices; the pilot of radio frequency identification (RFID) technology to monitor whether shipments crossing borders arrive at the intended destination; the cooperative interdiction of noncompliant small engine imports by the countries in the North America Commission for Environmental Cooperation; enforcement against trafficking in illegal ozone depleting chemicals; and the sharing of information about illegal pesticide sales through the internet. Ms. McCabe concluded by emphasizing that cooperation is important because it inspires enforcers to go home and do their jobs better, renewed in their determination. Enforcement can be a lonely job and it is important for enforcement officers to have a community of colleagues on whom they can rely. Ms. Dinah Brandful explained that collaboration is essential, especially in parts of the world where resources, both human and material, are lacking. Ms. Brandful described several examples of cooperation at the national level. To improve response to hazardous waste shipments, Ghana formed a Committee on Waste Shipment Prevention, which is a technical group composed of officials from the port, the Environmental Protection Agency, and police, as well as the private sector and nongovernmental organizations. Another example is the National Nuclear Committee, an interagency task force with a memorandum of understanding to cooperate on issues of disaster management, security, and combating the illegal traffic in nuclear materials. One example of the success of the National Nuclear Committee was the detection of radioactive materials that were imported into Ghana and set to be reexported out to Nigeria. At the international level, Ghana cooperates bilaterally with The Netherlands pursuant to an April 2009 agreement. This partnership includes inspector exchange
Panel 1: The Value of Enforcement Cooperation23
programs, training, the exchange of information and intelligence, and joint operations. Ghana is also actively involved in the INECE Seaport Environmental Security Network, where it works together with other government officials to develop capacity to detect and deter illegal hazardous waste shipments through seaports. Prof. Michael Faure offered four points about important aspects of enforcement collaboration from his experience as a prosecutor in Belgium. First, transboundary environmental crime is Belgiums main area of cross-border cooperation. Drawing on his own experience with illegal waste shipments between The Netherlands and Belgium, he recognized early on the value of cooperation. A basic requirement was the need to know whom to contact in each country. Because of the complexity of the issue and the shrewdness of criminals, it was necessary to agree on how cases would be handled domestically, and which agencies would undertake enforcement actions. Belgian prosecutors also found it useful to develop similar agreements with agents and prosecutors in The Netherlands so that the two countries could agree on which parts of the criminal chain would be prosecuted in each country. Second, scientific evidence is essential to collaborative law enforcement initiatives. Information that is useful in this context includes inventories of licensed facilities, frequency of inspections, number of violations, and the prosecutorial response (e.g., warning, fine, other punishment, or dismissal) and the reason for this action. In many jurisdictions, this information is simply not known, not available, or not comparable between the different countries. This makes it difficult to gauge whether enforcement translates to deterrence. The lesson is that data collection is important. Third, Prof. Faure emphasized the importance of exchanging information for mutual learning in the domestic enforcement chain both horizontally (e.g., among agencies) and vertically (e.g., from the police to the prosecutor to the judge). Feedback is necessary to know what next step should be taken, the motivation to pursue the case, and the availability of options like an administrative fine. Finally, collaboration on a global level, between the developed and developing world, is important because the whole world is endangered when enforcement is lacking. In this regard, Prof. Faure noted that it is fortunate that INECE is acting as a forum for international collaboration. During the discussion following this panel, panelists and conference participants posed questions about how to harmonize cumulative impacts. In response, panelists emphasized the importance of the public comment process in identifying appropriate laws and standards. Collaboration between public and private stakeholders and regulated entities is critical to gaining a full picture of the types and scope of impacts in a given region. Regarding collaboration in data sharing, participants suggested that developing a uniform system of enforcement data collection might be a useful task for INECE or the European Union. They also agreed that data are not only useful in supporting
enforcement collaboration, but also in garnering resources, because they help to measure and quantify success and the value of collaboration. On the subject of reporting enforcement results and activities, the panelists suggested that outcome measures such as pounds of pollution reduced, or the ultimate measure of avoidance of illness, are useful in communicating the effectiveness of enforcement programs. It is important that high-level officials and the public understand the value of enforcement. Outcome-oriented measures help illustrate this value. On the other hand, the pitfall of reporting only finished cases is that it can produce a distorted picture. There was recognition that the use of a suite of performance measures, rather just one type, is preferable. The panelists also recognized that effective enforcement requires better cooperation among prosecutors. Training for prosecutors and the provision of data to them is critical. It is also helpful for prosecutors and other enforcement officials to have a mutual understanding of how cases will be executed, including how evidence should be collected, types of sanctions, etc. Finally, participants discussed the importance of the regional and topical INECE networks in achieving effective collaboration. Two networks were formally launched during the 9th International Conference: a network among West African countries and a Global Prosecutors Network. Both of these initiatives will be important in fostering and facilitating enforcement cooperation.
Panel 2: Compliance with National Laws to Honor International Commitments25
PANEL 2: COMPLIANCE WITH NATIONAL LAWS TO HONOR INTERNATIONAL COMMITMENTS Moderator: Panelists: Stacey Mitchell, Chief, Environmental Crimes Section, United States Department of Justice
Benjamin Langwen, Director, Compliance and Enforcement, National Environment Management Authority, Kenya Romina Picolotti, Former Secretary of Environment and Sustainable Development, Argentina John Sellar, Chief of Enforcement, Secretariat of the Convention on International Trade in Endangered Species of Wild Fauna and Flora Amy Fraenkel, Director, United Nations Environment Programme Regional Office for North America Rapporteur: Danielle Grabiel, INECE Secretariat
Summary Report During this Panel, participants examined the role of domestic compliance in achieving compliance with multilateral environmental agreements (MEAs). Ms. Stacey Mitchell, as the moderator, introduced the Panel by highlighting the importance of strong national institutions with resources and capacity to implement national laws. She also underlined the value of thinking outside of the environmental law box when looking for ways to enforce international commitments at the domestic level. In the United States, prosecutors have been successful using criminal, rather than environmental, statutes when bringing actions against violators. She provided the example of using the False Statement Law to bring criminal charges for marine pollution violations under the MARPOL convention. Mr. Benjamin Langwen discussed the legal framework in Kenya which recognizes a clean and healthy environment as a Constitutional right. Under Kenyan law, international commitments immediately and automatically become national law, though there are also national laws to implement these commitments through licensing, permitting, and monitoring. The Montreal Protocol on Substances that Deplete the Ozone Layer has been implemented successfully in the country in this manner. Ozone depleting chemicals are regulated in terms of production, transport, transit, and disposal and the legal expectations are very clear.
In 2007, Kenya promulgated the Controlled Substance and Ozone Depleting Substance Regulation which makes clear which substances are permitted to enter the country and which ones are banned. Recently, a Kenya customs office investigation identified 250 cartons of banned chlorofluorocarbons or CFCs (an ozone depleting chemical) during a verification of a shipment from China. The customs officers notified the environmental officers and made an order for the CFCs to be shipped back and for the importers permit to be cancelled. Inter-agency collaboration has been a key to the success of Montreal Protocol implementation in Kenya. Agencies share information and network without undermining the individual mandates of each agency. Mr. Langwen explained how Kenya manages methyl bromide, an ozone layer destroying pesticide, by taking an inter-agency approach to licensing. Anyone who wants to import methyl bromide must complete a common licensing form for pest control. This form is turned into the Pest Control Board and then to the National Environmental Management Agency which provides approval for the license and subsequent import. Ms. Romina Picolotti shared two examples of how Argentina has successfully implemented its international commitments at the national level. For the Montreal Protocol, Argentina fulfilled its commitments ahead of schedule. This success was due to adequate financial and technical assistance and to the high level of commitment of Argentine officials. In her second example, Ms. Picolotti described how Argentina successfully used economic incentives to implement the Convention on International Trade in Endangered Species of Wild Fauna and Flora. In the northern zone of Argentina, the government worked with non-governmental organizations to train the local people to sustainably harvest parrots for sale on the global market. The result was the successful management of animal and forest resources with reduced deforestation and illegal wildlife trade and increased income for the local people. Ms. Picolotti explained that, from her perspective, the most important components of successful national level implementation are political will, capacity, and equity. Mr. John Sellar emphasized the importance of supporting the law enforcement community and recognizing their priorities and interests. Most of the law enforcement community is less concerned about particular species or international programs and agreements and more concerned with getting the bad guy. However, law enforcement officers are critical allies at the national level. Mr. Sellar noted that much can be done by a few people without a lot of money. For example, New Zealand has created its Wildlife Enforcement Group using seconded wildlife law enforcement officers from three relevant government agencies and a very small budget for program implementation. This is a good example of a small initiative to improve domestic law enforcement. Training is also important, such as a recent conference on wildlife trafficking for enforcers and prosecutors that was held in Johannesburg, South Africa.
Panel 2: Compliance with National Laws to Honor International Commitments27
Finally, Mr. Sellar emphasized the importance of support for frontline enforcement officials. In the Congo region, more than 100 rangers have been killed while on duty working to protect wildlife, but there has been no international outcry. Law enforcement officers do great work and they face real dangers and must be adequately recognized and supported. Ms. Amy Fraenkel discussed pragmatic areas where countries can improve their work at the national level to increase compliance with international agreements and emphasized the importance of political will in tackling new and existing global environmental issues. She suggested that INECE has an important role to play in highlighting the need for capacity building and the value of networks and she urged conference participants to stay involved and contribute to the Rio +20 preparations. Ms. Fraenkel also offered suggestions for how INECE and its members can raise awareness of the role of multilateral environmental agreements (MEAs) and build political will. First, she underlined the value in educating national government decision makers about the importance of compliance and enforcement in order to gain more political support. This is crucial because more global environmental issues are emerging, but MEAs are tending to be weaker in terms of the commitments generated. Second, she pointed to the value of scientific information and effective communications to support compliance efforts at the ground level. For example, there was a global effort to examine the effects of mercury which convinced decision makers of the need for action. Another example is plastics in the oceans. New information has shown that as plastic degrades it will make its way into the food chain and affect humans. This evidence is now influencing the politicians. Thus, investing in basic science is crucial to improving political will. Ms. Fraenkel stressed the importance of access to information and effective communications and urged the use of new technologies, such as Google Earth and mobile phones to raise awareness. Finally, Ms. Fraenkel urged participants to include economic considerations in environmental analyses and to take into account the effects of environmental issues on the economy as a way to build support at the political level. In the discussions that followed, participants and panelists discussed the relative success of the various MEAs and how to give officers a larger voice at treaty negotiations. They also discussed the benefits of MEA synergies. There was general agreement that some of the reasons why the Montreal Protocol has been so successful are: (1) scientific information about the ozone hole highlighted the need to act urgently; (2) the private sector was actively engaged from the outset; (3) there was strong political will to respond to the problem and an understanding that the agreement would not be perfect at the outset; (4) financial resources were made available to developing countries; (5) an independent technical
and economic assessment panel supported countries; (6) alternatives were readily available and feasible from an economic standpoint; and (7) countries implemented a straightforward licensing and permitting system. Participants also agreed on the importance of engaging frontline officers to provide input as to whether what is being adopted at the international level is practical and can be put in place on the ground. Finally, it was agreed that increasing synergies between MEAs is important and that efforts to formalize these synergies should continue. Recently, the secretariats of the Montreal Protocol, the Rotterdam Convention, and the Basel Convention were merged. The merge has also translated into collaboration in training, regional workshops, and operational-level exercises and initiatives. The biodiversity treaties are now being examined to determine to what extent synergies can be formalized. There is also discussion about amending the Montreal Protocol to include certain greenhouse gases currently under the remit of the Kyoto Protocol. The challenge is that each of these treaties is its own legal entity and not all countries have become members to all of the treaties. Additionally, the regulated community and other target audiences can vary significantly from treaty to treaty. Therefore, it will continue to be important to have tailored strategies to target specific problems.
Panel 3: Compliance with Existing Laws and Policies that Deliver Climate Change Benefits29
PANEL 3: COMPLIANCE WITH EXISTING LAWS AND POLICIES THAT DELIVER CLIMATE CHANGE BENEFITS Moderator: Panelists: Ken Markowitz, Managing Director, INECE Secretariat Dr. Mas Santosa, Founder, Indonesian Center for Environmental Law Dr. Ezra Clark, Green Customs Coordinator, Ozon Action Branch, Division of Technology, Industry and Economics, United Nations Environment Programme, France Dr. Stephen O. Andersen, Institute for Governance & Sustainable Development, United States Dr. Kunihiko Shimada, Special Advisor to the Minister, Ministry of the Environment, Japan Rapporteur: Danielle Grabiel, INECE Secretariat
Summary Report Panelists examined how assuring compliance with and enforcement of existing environmental laws can be leveraged to achieve both reductions in greenhouse gas emissions and protection of carbon sinks. Mr. Ken Markowitz introduced the panelists and explained that there is tremendous opportunity to use laws already on the books, such as laws to protect forests, phase out ozone depleting chemicals, and reduce soot and other air pollutants, to protect the global climate system. Dr. Mas Santosa explained Indonesias efforts to mitigate climate change. Although Indonesia has no specific climate change law, the issue is addressed in the countrys general environmental law, as well as in various sectoral and regional/local laws. The Indonesia Environmental Protection Act of 2009 acknowledges that climate change is occurring and establishes criteria for environmental damage caused by climate change. Forest sector laws provide a framework for protecting forests, which are an important carbon sink and include criminal sanctions for illegal forest activities. With 130 million hectares of forestland, reducing emissions from deforestation and forest degradation (REDD+) is very relevant for Indonesia. REDD+ is an effort to create a financial value for the carbon stored in forests, offering incentives for developing countries to reduce emissions from forested lands and invest in lowcarbon paths to sustainable development. The + in REDD+ indicates going
beyond deforestation and forest degradation to include the role of conservation, sustainable management of forests, and enhancement of forest carbon stocks. It is tool that has the potential to both protect forests and elevate the welfare of forest communities. To implement REDD+, Indonesia is developing a high-level agency that will be directly accountable to the President. The country is also: (1) preparing a system to issue licenses for primary forests and peatlands, (2) harmonizing legislation; (3) performing provincial assessments; (4) working to address issues related to corruption in the forest sector; and (5) promoting transparency, access to information, and public participation. The significant challenge in Indonesia is corruption, especially in the forest sector. For REDD+ to succeed, corruption in the forestry sector must be eradicated. Thus, transparency, access to information, genuine participation, and strong enforcement mechanisms will be essential elements in Indonesias REDD+ implementation. Dr. Ezra Clark presented information about the climate change benefits that have been achieved through enforcement of the ozone layer treaty, the Montreal Protocol. Because many ozone depleting chemicals and their replacements are also powerful global warming agents, the phase-out of these substances under the Montreal Protocol has delivered tremendous climate benefits, as much as 5 to 6 times that of the Kyoto Protocol. In 2007, the Parties to the Montreal Protocol decided to accelerate the phase-out of HCFCs (early alternatives to ozone depleting chemicals) and to actively promote climate-safe alternatives. Phase-down of HFCs (second-generation replacements for ozone depleting chemicals) is currently under discussion. Acceleration of the phase-out of these chemicals will deliver significant climate benefits. Dr. Stephen O. Andersen also used the Montreal Protocol as an example of where existing law has been used to respond to climate change and he highlighted lessons learned from implementation of this treaty. The first lesson is start and strengthen. The Protocol started with modest goals and after countries joined and gained confidence in the technical solutions, more chemicals were added and higher standards were set. Another lesson is to learn through the process. Building confidence in a technological capacity is key, as is building partnerships with industry. The Montreal Protocol has been successful because of the strong political will to address the problem and the willingness of countries to dedicate staff to compliance and enforcement. Dr. Andersen highlighted two important new policy initiatives, one in the European Union and one in the United States, to replace ozone-depleting chemicals and other chemicals with high global warming potentialwith climate-friendly alternatives.The European F-Gas Regulation is being revised in 2011 to include additional high global warming potential use bans in numeroussectors (the MAC Directive already bans the use of high- global warming potential HFCs in automobile airconditioning beginning in 2013). Similar revisions are being proposed in the United States which would affect the United States Environmental
Panel 3: Compliance with Existing Laws and Policies that Deliver Climate Change Benefits31
Protection Agencys Significant New Alternatives Policy (SNAP) to ban the use of high- global warming potential HFCs in automobile air conditioning. Together with the MAC Directive, these policy changes have the potential to affect two-thirds of the global auto market. However, Dr. Andersen cautioned that compliance and enforcement will be key to realizing the full benefits of the policy changes. Dr. Kunihiko Shimada reminded conference participants that climate change is a pervasive and cross-cutting issue and suggested that all participants are already working on the issue either directly or indirectly. He recommended that participants examine their existing laws keeping in mind where climate benefits can be created. Dr. Shimada also discussed the important role of compliance and enforcement in international climate regulation. He explained that, with the first commitment period under the Kyoto Protocol, each country was required to create annual greenhouse gas inventories and put together national committees to report activities and emissions. These requirements are currently being evaluated and carefully considered as countries consider potential post-Kyoto Protocol agreements. An important discussion in the post-Kyoto Protocol negotiations will be monitoring, reporting and verification of emissions and emission reductions. It will be important to strike the right balance between flexibility and accountability. Compliance and enforcement officers in developing countries will need to be trained to implement the new requirements. Dr. Shimada also explained that incentives will play an important role in any future climate regime. Incentives will be needed for companies and people to change their modes of thinking. In Japan, for example, there was a successful campaign for reusable bags that featured popular models and actresses. Dr. Shimada closed by posing questions to the audience and panelists, including asking them how compliance can be encouraged without being overly punitive? What kind of motivation do citizens need? How can paradigms and lifestyles change? How can compliance and enforcement become something that is close to the heart of citizens? Finally, he asked if it would be useful to inventory MEA laws and policies to identify overlaps and conflicts and if this same exercise would also be useful at the national level. Perhaps this way, he noted, more benefits can be created. Subsequent to the presentations, conference participants asked questions and engaged in discussion about how existing laws can be used to combat climate change. Participants acknowledged that taking action on non-carbon dioxide gases is an important way to buy time on climate change, but that international cooperation is essential in the long term. INECE is uniquely placed in this regard. Credibility will be important in combating skepticism, thus monitoring, reporting and verification will play an important role.
The panelists suggested that taking a sector-by-sector approach to climate change may be the most sensible way forward combined with a well-resourced team of people working on implementation at the domestic level. The Montreal Protocol takes a compliance assistance and problem solving approach, but is also backed by the threat of trade sanctions. They noted that Japan proposed a sectoral approach for climate and that this may still be a good idea because it encourages the development of communities of experts and keeps competitiveness issues under control. Panelists also noted that there are important enforcement lessons to be learned from the Montreal Protocol. The Protocol was drafted with different phase-out commitments for developed versus developing countries and the unexpected result was illegal trade. Over time the international community learned how to address the problem of illegal trade and is now armed with tools and experience to address it. Participants suggested that one of the most important contributions they could make to combating climate change is to make it part of the job description of compliance and enforcement staff. Participants noted that many young professionals are drawn to environmental work, climate-related work specifically, because they wish to make a positive impact. Clearly defining the relationship between environmental compliance and enforcement and improvements in environmental quality (and particularly to reductions in GHG emissions) can attract young staff to the field of environmental compliance and enforcement and can motivate staff members. The discussion concluded with agreement on the importance of sharing experience in assuring compliance with and enforcement of existing environmental laws to reduce greenhouse gas emissions and develop carbon sinks. To this end, it was agreed that INECE should consider compiling good practices from around the world in assuring compliance with existing laws to respond to climate change. A task force could be created to lead this effort. On the specific topic of REDD+, it was suggested that INECE could facilitate the exchange of good practice and information among lawyers and other practitioners from developing countries, specifically on aspects related to transparency, access to information, and strong enforcement mechanisms.
Panel 4: Non-Traditional Approaches to Assure Compliance33
PANEL 4: NON-TRADITIONAL APPROACHES TO ASSURE COMPLIANCE Moderator: Dr. Paul Leinster, Chief Executive, Environment Agency of England and Wales
Panelists: John Merritt, Chief Executive Officer, EPA Victoria, Australia Dr. Katharina Kummer Peiry, Executive Secretary, Secretariat of the Basel Convention Marc Stuart, Founding Managing Director, Allotrope Partners, United States Antonio Oposa, President, Law of Nature Foundation, Philippines Rapporteur: Danielle Grabiel, INECE Secretariat Summary Report This panel examined the benefits of non-traditional approaches to environmental enforcement as agencies confront the formidable challenge of assuring compliance in a resource-restricted setting. Dr. Paul Leinster shared the experience of the Environment Agency of England and Wales in implementing non-traditional approaches in their enforcement programs. Dr. Leinster acknowledged the importance of a wide variety of approaches, while highlighting the continued importance of traditional regulation. Regulatory intervention is always needed as a backstop to voluntary approaches which can only be effective when supported by a credible threat of sanctions. Mr. John Merritt described Australias experience using non-traditional enforcement approaches, including an Australian law that allows any community member to report littering from a vehicle. An automatic fine is generated using license plate numbers. Through this program, the government has created a list of names of thousands of citizen enforcers who they now hope to use in a major campaign against illegal dumping. A second successful strategy Australia has used is to require chief executive officers to personally sign their companys environmental statement certifying that they are complying with the law. A third successful initiative is using money collected from fines to provide seed funding for waste management technologies. Mr. Merritt closed by cautioning that innovative strategies can sometimes lead to misperceptions about the role of the environmental protection agency, even within the agency itself. When traditional approaches are left behind, staff can become confused about their role as enforcers. For example, recently the Victoria
Environmental Protection Agency approved a landfill without the proper environmental safeguards. Residents sued the landfill and the agency. After a $10 million settlement, loss of community confidence, and damaged reputation, a painful lesson was learned. Australia is now moving back-to-basics, only using nontraditional approaches when appropriate and will continue to rely on and promote traditional approaches. Dr. Katharina Kummer Peiry presented three alternatives to traditional enforcement approaches that are currently being considered by the Parties to the Basel Convention for dealing with the global problem of illegal hazardous and electronic waste trafficking. The first proposal is a certification program for recycling facilities that follow a set of good practices for environmentally-sound recycling of electronic waste. The Basel Convention would provide the certification. The second proposal is also a for a certification program, using either an award system or grading system rather than food practices. The third proposal targets the informal sector, the group of people who scavenge at dumps looking for waste to incinerate to release precious metals and other valuable materials. The incineration process creates serious human health and environmental hazards. Under this proposal, waste scavengers would be paid by recycling facilities to collect waste. The waste would then be recycled by modern facilities where resource recovery rates are much higher and health and environmental safeguards are in place. This is a benefit for local communities who can earn the same pay without risks to health or the environment. Close to 100 percent of the valuable resources in electronic waste can be recovered at a state-ofthe-art facility, whereas processes used by the informal sector usually only capture 40 percent. Mr. Marc Stuart provided perspectives on how markets drive environmental innovation, reminding participants that markets are performance mechanisms, not enforcement mechanisms. He acknowledged that with markets come issues involving environmental justice, fairness, and compliance, but he suggested that there are instances where markets are the most effective solution. For example, when the cost of reducing pollution varies among polluters, the market can function to reduce pollution overall. Mr. Stuart reminded the audience that regulators create value in the market. When the rules change unexpectedly or arbitrarily, market value is impacted. In order to assure confidence in markets, investors need to be engaged from the outset. The Clean Development Mechanism, for example, has faced significant problems because the rules were changed after companies had begun to implement the program. Mr. Antonio Oposa discussed the importance of engaging citizens to improve enforcement and the power of publicity as an alternative to traditional regulation. He offered as an example of an innovative approach in the Philippines, the School
Panel 4: Non-Traditional Approaches to Assure Compliance35
of the Sea. The School of the Sea is a training center that focuses on education to advance the protection of the sensitive marine environment of the Visayan Sea. Meaningful experiential education on the importance of the ecosystem can help inspire conservation efforts and help deter future illegal activity. Mr. Oposa also described innovative ways the Philippines has worked with offenders, for example, by employing persons apprehended in selling illegally caught fish as marine wardens. Mr. Oposa concluded by reminding participants that law is a marketing exercise that sells a mode of conduct. Enforcement must be swift, painful, and public to be effective. After the presentation, participants and panelists discussed aspects of nontraditional approaches in more detail. They agreed that involving citizens and the regulated community is essential to an effective enforcement program. Audience members reiterated the importance of restoring justice in traditional communities and avoiding jail sentences and criminal records where possible. They agreed that there are important lessons learned from the Philippines, such as hiring fishermen to conduct patrols, which could be applied at a larger scale. Participants also noted the role of branding in enforcement and the importance of establishing a reputation for tough enforcement. They agreed on the importance of traditional regulation as a backstop and that a patchwork of enforcement approaches that leverages programmatic strengths is the best way forward.
Track A: Enforcement Challenges Across Borders37
SUMMARY OF WORKSHOPS
TRACK A: ENFORCEMENT CHALLENGES ACROSS BORDERS WORKSHOP A1: INTERNATIONAL INSPECTION EXERCISES AND LESSONS LEARNED Facilitators: Henk Ruessink, The Netherlands Ministry of Infrastructure and the Environment
Dinah Brandful, Ghana Customs, Excise & Preventive Service Nancy Isarin, Ambiendura, Portugal Nicole Maric, United Nations Office on Drugs and Crime Rapporteur: 1 Danielle Grabiel, INECE Secretariat
BACKGROUND
Cooperative inspection projects involving enforcement officials across borders, such as the INECE Seaport Environmental Security Networks International Inspection Project (INECE Seaport Project), can play an important role in improving capacity for detecting illegal transboundary shipments of environmentally sensitive goods. This workshop explored the organizational aspects of such exercises from planning and preparation to implementation by sharing experiences from several recent initiatives. The objectives of the workshop were: (1) to identify best practices and improvements for conducting future multi-country inspection efforts by INECE and other networks and (2) to identify potential additional future INECE inspection projects. 2 DISCUSSION
Ms. Dinah Brandful provided an overview of the INECE SESN Inspection Project, including preparations, lessons learned, and challenges. Lessons learned from INECE SESN project include: The intelligence-led inspection method was most effective in terms of identifying illegal shipments. Profiling during inspection activities is imperative. Personal contacts and familiarity among participants facilitated cooperation.
The challenges varied by country and included: lack of formal participation by agency authorities, lack of time for preparations, lack of intelligence, lack of clear legislative framework, and lack of clarity for how to deal with materials. Ms. Nancy Isarin gave a short presentation on the European Union Network for Implementation and Enforcement of Environmental Law Transfrontier Shipments projects. The presentation focused on EU regulations implementing the Basel Convention, which include enforcement, prosecution, and sanctions implemented at the national level. In 2003, Transfrontier Shipments Project started with European Union-wide enforcement actions, first focused just on seaports. In the latest action, 27 member states were involved. Throughout the years, thousands of shipments have been inspected through this project and many illegal cases detected. Illegal exports have also been detected between the European Union and non-OECD countries. In addition to the inspection projects, the project also facilitates inspector exchange programs, makes training DVDs, and creates inspection and other manuals. Ms. Nicole Maric provided an overview of the United Nations Office on Drug (UNODC) Container Control Program. The Container Control Program is a joint UNODCWorld Customs Organization (WCO) initiative, which was launched in 2003 with four pilot countries (Ghana, Pakistan, Ecuador, and Senegal). This program was developed on a national basis, but is taking an increasingly regional approach. The program focuses on any illegal item that can be trafficked in containers. Interagency Joint Port Control Units are established in participating countries which enable representatives from all agencies to be physically sitting together and working together in one office to inspect containers. The members of the Joint Port Control Units are trained on risk management and profiling of containers and receive hands-on training with manifests, risk profiling, and detection equipment. Profiling and risk management have emerged as most important in terms of tools and capacity. The agreement of participating governments and agencies, as well as their willingness to participate, are keys to the success of the program. The participants recognized the value of exercises such as the INECE Seaport Project, IMPELs projects, WCOs Operation Demeter, and UNODCs Container Control Program. The following key points emerged from the discussion. First, advance preparation at the domestic and inter-agency level is critical to success. Second, personal contacts are very important when working on cross-border issues. Sometimes just knowing who to call and having met a person before makes all the difference. Third, there remains a lot of confusion with respect to what to do with waste that is found to be illegal and how to return it to the country of origin. Fourth, other common challenges include lack of national implementing legislation for multilateral environmental agreements such as the Basel Convention, language barriers, cultural differences, turnover in staff, corruption, and sensitivity with regard to exchanging trade or enforcement data across borders. Participants discussed ways of dealing with these challenges including learning by doing, awareness raising activities, inspector
exchange programs, joint operations, and formalizing inter-agency cooperation through a task forces or memoranda of understanding. 3 OUTCOMES
National legislation needs to be put in place where it does not yet exist, and it should be given priority attention by countries with transboundary trade in hazardous waste and other environmentally sensitive materials. Domestic, inter-agency cooperation is vital, particularly between customs and environmental ministries, whether this is done formally through a memorandum of understanding or less formally through a working group or any other method. INECE could play a role in gathering sample of these Memoranda from around the world for countries to use as a model or starting point for their own agreements. Some sample Memoranda are already available through the INECE website. INECE should act as a repository to provide access (for authorized personnel) to the documents and other useful resources that have already been created by the various organizations involved in conducting inspection projects. These include inspection manuals, reporting forms, guidance for risk profiling and identifying waste, and other valuable tools. A paper on good practice for organizing inspection projects would be helpful for other countries or organizations who are interested in operational-level projects. Including a section that discusses the essential building blocks for effective national participation and deals with issues like the protection of sensitive information would be very useful. The document also should include tips for success. INECE, along with other expert organizations, should develop simple guidance for waste take-back. Regional training programs and materials should be developed that include the contact information for officials in the regional agencies and target the particular challenges and issues in the region. Specifically, training materials should be developed that include a list of suspicious key words (residue, compost, scrap) that inspectors can refer to when they review paperwork. The inspection project should be publicized in general terms beforehand and the results afterwards should be reported to attract media coverage, in order to realize deterrent effect from the exercise in the regulated community. WORKSHOP A2: CONTROLLING TRANSBOUNDARY MOVEMENTS OF HAZARDOUS WASTE Facilitators: Susan Bromm, United States Environmental Protection Agency Emmanuel Mendoza, Environment Canada
Nicole Maric, United Nations Office on Drugs and Crime OluronkeSoyombo, Nigeria Environmental Standards and Regulations Enforcement Agency Rapporteur: 1 Danielle Grabiel, INECE Secretariat
BACKGROUND
This workshop provided an overview of effective tools and strategies to combat illegal transboundary movements of environmentally-sensitive goods, including hazardous waste, electronic waste, and ozone depleting substances. Participants gained information about new inspection approaches and had the opportunity to learn about several current international and regional enforcement initiatives. Case stories from different parts of the world were used to exemplify the value of crossborder and inter-agency collaboration. The objectives of the workshop were to: Exchange tools, strategies, and good practices that are effective in international inspection initiatives. Familiarize participants with results achieved through effective collaboration. Identify best practices, lessons, and results in detecting and combating illegal transboundary movement of environmentally-sensitive goods. Identify components of an inspection manual or other guidance document. 2 DISCUSSION
The panel experts briefly shared their experience in combating illegal transboundary movements of environmentally-sensitive goods. Their presentations focused on effective tools and inspection and enforcement techniques and challenges. Ms. Nicole Maric shared information on the activities of United Nations Office on Drugs and Crime (UNODC) Container Control Programme. In particular, the Joint Port Control Units, which are inter-agency task forces trained to work together to target high risk containers, use several different types of computer-based tools to share and analyze information. One such tool is the ContainerComm program that is used to exchange information on illegal trade across borders on a secure basis. A targeting tool called SeaHawk is also used, which was developed by a private Canadian company. SeaHawk utilizes information acquired from law enforcement agencies to assist in identifying illegal shipments. Another tool is called Hazmat ID, which is a detection tool for chemicals. These tools play an important role in facilitating cooperation across national borders. In Nigeria, the development of institutional and legal frameworks to combat the illegal trade in hazardous wastes is driven by a serious problem with dumping. A famous incident involving waste generated in Italy kicked off efforts in the country
to tackle the problem. Porous borders and a lack of international cooperation at the outset was a major challenge. Nigeria used international media to call attention to this issue and is now enjoying more international collaboration, particularly in the form of support from developed countries for training and capacity building. Regional and sub-regional collaboration have been particularly useful in combating the illegal trade in hazardous waste, particularly in cases where offenders move around a region to avoid enforcement. For example, Nigeria and Ghana work closely together within the West Africa region. Strong regional networks are essential to dealing with this very real problem. More collaboration in terms of exchange programs and training is still needed. Train-the-trainers programs for inspection training are particularly valuable when employee turnover presents a challenge. Environment Canada has found inter-agency collaboration in conducting intelligence-led inspections and enforcement to be extremely effective. The Vancouver regional office recently undertook a short-term project, together with Canada Border Services Agency, to jointly administer hazardous waste laws under a Memorandum of Understanding. The agreement specifies which agency and officers are responsible for the various activities associated with inspections and enforcement and includes agreements on intelligence and information sharing. The project targeted spent lead acid batteries and electronic waste. It included a 100 container inspection in the Port of Vancouver. Targeting was based on intelligence and risk factors with criteria developed jointly by Environment Canada and Customs using keywords. The inspections revealed that about 50% of the containers inspected were noncompliant, sometimes to a large degree. The shipments came from across Canada, including Halifax and Montreal. Publicizing the results of inspections proved valuable for deterrence. There are challenges associated with detaining suspicious shipments and it is essential to have the ability to communicate quickly across borders so that shipments are not detained for too long. In most cases, the authorities were able to successfully interdict and intercept the shipments before they left their port of origin. They also worked with Transport Canada, and thus took a tri-agency approach to examining each shipment. The three agencies issued a joint press release to publicize the activities, which seemed to produce significant deterrent value. When the INECE SESN project came about, Environment Canada participated and found that shipments are now shifting away from Vancouver to other ports in Canada, probably because of the deterrent created by the first project. The regulated community seems to know that Port of Vancouver is being watched. Mr. Mendoza noted that Environment Canada enforcement officers are required to go through their international office to make contact with competent authorities in other countries and that this can present a challenge when quick turnaround is necessary and shipments are being detained. Workshop participants identified additional challenges associated with detecting, deterring, and enforcing transboundary shipments of environmentally sensitive goods, including: (1) the need to track shipments back to their origin instead of
focusing exclusively on ports; (2) jurisdictional issues in some countries associated with federal authority over international shipments versus state or regional authority over domestic transport; (3) difficulty in identifying and regulating waste collectors and brokers; (4) importers who refuse to claim goods that are undergoing investigation; and (5) difficulty in collecting information in order to conduct intelligence-led inspections. Some tools and approaches for addressing these and other challenges are: (1) directories of reliable contact points in each country who are involved in regulating hazardous waste trade; (2) bond, licensure, insurance, financial deposits or other requirements to deal with the cost of detaining or returning shipments; (3) new forensic tools and technologies; (4) GPS tracking; (5) documentation and secure sharing of modus operandi; and (6) increased cooperation with industry, including shippers, collectors, and brokers. 3 OUTCOMES
The discussions concluded with several recommendations for INECE to consider in its efforts to build capacity for detecting and deterring illegal transboundary movement of environmentally sensitive goods. First, participants suggested that INECE consider acting as a repository (with secure access as necessary) for information and tools to assist countries in detecting, inspecting, and deterring illegal shipments of environmentally-sensitive goods. This repository could include: (1) contact lists for enforcement officials in customs, ports, and environment agencies; (2) new technologies and tools in forensics, communications, risk-profiling, etc; (3) the INECE SESN Inspection Project Manual and manuals from other operational projects, such as IMPEL; (4) training materials; (5) sample MOUs and other cooperation agreements or strategies; (6) modus operandi; and (7) other training resources. Participants also agreed on the importance of working with freight forwarders, shippers, and other industry actors who are a good source of information. There is scope for much more cooperation with industry. INECE should pursue opportunities for collaboration with industry. Finally, participants recommended that the INECE SESN should continue to evolve and share (in a secure manner) its INECE SESN International Hazardous Waste Inspection Project at Seaports Guidance Document. WORKSHOP A3: DETECTING AND PROSECUTING ILLEGAL WILDLIFE TRAFFICKING: A DEMAND SIDE APPROACH Facilitator: John Sellar, Chief, Enforcement Assistance, Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) Susan Bromm, Director, Office of Federal Activities, United States Environmental Protection Agency
Rapporteur:
BACKGROUND
The purpose of this workshop was to share experiences regarding techniques useful for targeting, investigation, and detection of illegal wildlife trade and to identify what INECE can do to assist in combating illegal wildlife trafficking, especially focusing on the supply side. 2 DISCUSSION
During the workshop the facilitator, John Sellar, guided the participants through a discussion of various aspects of this topic including an analysis of the issues surrounding the detection of wildlife crime and an overview of the role of the Internet in illegal trade. The discussion concluded with an exploration of strategies for INECE to support officers and prosecutors in this area. On the issue of detecting illegal wildlife trade, participants shared effective strategies from their regions. Looking at where the markets are, for example, can help detect crimes and help identify targets for investigation. In another example, India has focused detection efforts at airports, ensuring that trained inspectors are on-site to detect contraband being carried in luggage as part of routine baggage screening. India also has found that small mail parcels can contain shells, bird beaks, and other small animal products. However, one kilogram of kingfisher beaks means that 150 birds have been killed, so even small packages can be significant. Railroads are also used to transport illegal wildlife shipments and consigners may use fake identities. Unfortunately, detection of wildlife trafficking often gets a lower priority compared to other crimes. Participants noted that it is useful to look at the demand side to aid in detection. For example, officers can track illegal trade by finding restaurants that have protected species on their menus (e.g., sea cucumbers). The demand side approach means trying to get rid of the market for the product. If there is a demand for an illegal product, organized crime will supply it. Participants discussed what INECE can do to affect demand and suggested that INECE could educate consumers on the impacts of using some of products such as bear gall bladders and sturgeon eggs. Environment Canada has developed brochures to inform the public. Mexico did a major advertising campaign to dispel the idea that sea turtle parts enhance virility. Asia has used high profile actors and sports figures in advertising campaigns. However, these campaigns can create an oversimplified message. For example, not all sturgeon eggs are contraband. Some are legal and other sources are illegal. Another challenge is that some of the cultural uses of these products have been ongoing for hundreds of years and thus can be very difficult to change. Mr. Sellar emphasized that the Internet is now a major source of marketing and sale of restricted products (for example, eBay). The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) will be publishing a manual on searching the Internet for these goods. One step is to ask the site to remove the product but many countries do not have the legislative authority to go
after the seller/poster of the advertisement. Enforcement agencies do not have the resources to routinely patrol the Internet. Since advertising is not in and of itself illegal, there must be a sale/transaction in order to pursue, which usually requires a covert operation. Legislation is needed to make advertising these goods illegal. Time is of the essence in pursing Internet sales. Sales happen quickly, putting more pressure on limited enforcement resources. Frequently, items are advertised in a way that it appears that they are illegal but they are in fact fakes. For example, items advertised as ivory or coral may in fact be plastic. CITES has manuals and tools for assisting in identification of real versus fake products (such as how to distinguish real fur from fake fur). Some of these resources are enforcement confidential so they could not be posted directly on the INECE website but their availability could be identified with information on how to access them from CITES. British Columbia has new legislation requiring individuals keeping certain species (e.g., large snakes and large cats) to have permits. If a person did not obtain a permit, they were required to turn over the animal to a zoo or similar institution. The date for complying has passed. Non-compliant owners have now gone underground and are finding illegal ways like the Internet to sell these animals. It is possible to profile likely owners of illegal live animals. Some detection comes as a result of other law enforcement activities. For example, a drug raid may reveal the presence of an illegally held species. When that occurs, the involved law enforcement will call in wildlife officers. Mr. Henk Ruessink provided an overview of what INECE can and has done in terms of supporting enforcement cooperation projects. He also indicated that, while INECE has done much work on training and capacity building, these efforts have not been focused on wildlife issues. 3 OUTCOMES
Participants suggested that countries that have developed manuals to aid in detection or prosecution of wildlife crime to post them (or link them) to the INECE website. CITES has published a manual on conducting internet searches, and a reference to that manual could be shared through the website. It would be useful if INECE could help identify both exports (i.e., each country could identify their top ten illegal wildlife exports) and markets (i.e., where illegal products are being imported and sold). This would help establish trade patterns. It would also be helpful for countries to post post-prosecution information on wildlife trafficking crimes on the INECE website. This information would be helpful not only to investigators but would also help prosecutors prosecuting related crimes. The area of illegal wildlife trade also may be a strong opportunity for INECE and Interpol to collaborate.
WORKSHOP A4: DETECTING AND DETERRING ILLEGAL LOGGING: SOURCE, SUPPLY AND DEMAND Facilitators: Elaine Wright, Environmental Consultant; Lecturer, University of Pennsylvania, United States Mihail Dimovksi, Senior Expert, Topic Area Leader for Law Enforcement and Compliance, Regional Environmental Center for Central and Eastern Europe, Hungary Rapporteur: Aniko Nemeth, Expert, Topic Area for Law Enforcement and Compliance, Regional Environmental Center for Central and Eastern Europe, Hungary
BACKGROUND
The purpose of this workshop was to raise awareness of the global problem of illegal logging and its impacts; to illustrate forest law enforcement practices; to examine both the current cooperation platforms and supply-side initiatives in Europe and other parts of the world (e.g. licensing, Voluntary Partnership Agreements); and to share experiences on appropriate forest governance and efforts to fight illegal logging and associated trade. This workshop was organized by the Regional Environmental Center for Central and Eastern Europe within the framework of the Environment and Security Initiative and with support of the Finnish Government. 2 DISCUSSION
The workshop focused on the problem and drivers of illegal logging and its consequences, as well as supply-side initiatives in Europe and other parts of the world as well as demand-side approaches, including new legislative initiatives in the United States and Europe, which ban the sale of illegal timber. This covered instruments offered under the regional forestry initiatives (World Banks regional Forest Law Enforcement and Governance (FLEG) initiatives and the EU Forest Law Enforcement, Governance and Trade (FLEGT) Action Plan as well as on voluntary schemes related to licensing, importing and procurement (e.g. Voluntary Partnership Agreements) and the THEMIS network for South East Europe. Information was provided by Mr. Ken Taekema on the Canadian wood production and trade figures and patterns (exporting country), as well as on the tracing procedure (sampling, export fee based on the grade of the timber). As for the sources, 60 percent of British Columbias 95 million hectares is forest land, which includes maritime forest to interior dry belt forests in the Coastal, Northern Interior, and Southern Interior regions. Forest species include fir, cedar, pine, spruce, hemlock, and alder. Permitted forest land for harvesting is 22 million hectares. 78 percent of land base is managed by Crown; the remainder is parks, reserves, and private land.
On the trade side, 95.4 percent of all Canada log exports originated from British Columbia in first quarter of 2011. During the workshop, information was provided on the quality assurance system and traceability and convictions, which were explained as positive examples. The issues related to illegal logging are: the loss of forestry jobs in smaller communities dependent on forestry may force some workers to resort to illegal logging to provide for family; outstanding stumpage accounts may force unscrupulous operators to resort to illegal activity, for example, fraud, mismarking, misrepresenting grades or restricted timber being exported; targeted criminal element-organized crime, money laundering and reduced inspections of forest lands by government; also more focus on broader resource management versus individual resource industries. The specific illegal activities include the failure to weigh, record, and ultimately pay required royalties to the Crown; theft from Crown land and protected areas by individuals (including logs, Cedar shake, firewood); theft of non-forest products (cedar, pine and fir boughs) for the Christmas market, which impact regenerating sites on the Coast; exporting grades and species of timber in log form that are not allowed to be exported; and the link to the forest industry by organized crime (money laundering, lack of taxes paid, proceeds of crime, finances other crimes). Present detecting methods include inspections under provincial legislation, audits (provincial and federal), reporting requirements, and the export application process (federal and provincial). High resolution satellite imagery such as Ikonos, Quickbird and Geoeye are used for high priority and/or remote site monitoring. The government also uses quality assurance processes and checks in log supply chain and conducts data mining to detect anomalies between data sets along the log supply chain. Mr. David L. Ferrell shared the United States experiences. He discussed including the United States Task Force against timber theft, the United States remedy system, cooperation with the Justice Department, and the Lacey Act. The Lacey Act is a wildlife protection mechanism on trafficking that enables the United States to prosecute regardless of the country of harvest. The Lacey Act implementation requires thorough investigation and international cooperation. Participants discussed issues related to illegal trade including a lack of an international agreement on logging, challenges in identifying the source, traceability, lost revenue, lack of awareness at a law enforcement level, determining which imports are legal and which are illegal, and lack of prosecution resources. Reasons to control illegal logging that were discussed include environmental protection, including protection of forests as carbon sinks and as habitat; fairness for legitimate actors; financial benefit to local communities from sustainable harvest; and promotion of the rule of law and broad deterrence.
Recommendations for improving detection of illegal logging include capacity building and training for border patrol, tagging/bar coding legally logged wood, using local law enforcement and traffic police to gather intelligence and identify leads, risk profiles of bad actors, digital remote sensing, auditing function on logging from stump to sale, and information sharing. The participants also discussed ideas and recommendations for improving control of illegal logging more generally. Important actions include raising awareness on the problems, raising illegal logging as an issue on investigators agenda, using the CITES framework more effectively and enlarging the scope of CITES, promoting sustainable consumption and production, providing alternatives for firewood and incomes, agreeing on legal instruments at the international level, educating customs and other relevant border agencies, increasing penalties and sanctions, developing guidance to support consistent international policies, and adopting lessons from the United States Lacey Act and other related legislation. 3 OUTCOMES
Illegal logging is an important issue due to its implications for climate change, nature degradation, and loss of habitats, as well as its negative economic impacts. It appeared from the workshop that the main problems regarding illegal logging and related trade is the lack of global legal platform, lack of awareness at the law enforcement level, and traceability. It appeared from the discussions that the possible approaches to respond to the issue on the enforcement level include providing capacity building and training for border patrol and law enforcement officers as well as for policymakers. Additionally, identifying mechanisms for the identification of harvested timber and tagging/bar coding legally logged wood are important strategies. INECE may serve as an information hub when building a global network of mutually interested parties; assist in sharing best practices on controlling illegal logging; provide a clearinghouse for information on compliance with and enforcement of laws and policies on illegal logging; and work to improve enforcement cooperation and partnerships by bringing together regional and international initiatives (e.g. THEMIS network, World Banks FLEG Initiative). The next steps identified during the workshop are focusing on raising awareness in the general public and the law enforcement authorities, elaborating a globally recognized legal basis and definitions in addressing forestry crimes, developing a consistent sanction system, as well as elaborating strategies for controlling demand of timber. The implementation of these strategies can help move communities toward sustainable production and consumption, alternatives for energy sources, new sources of incomes in certain groups of the society.
WORKSHOP A5: INFORMATION COOPERATION PROJECTS Facilitators:
SHARING
IN
ENFORCEMENT
Chris Dijkens, Ministry of Infrastructure and the Environment, The Netherlands Robert Heiss, Director, International Compliance Assurance Division Office of Federal Activities Office of Enforcement and Compliance Assurance, United States Environmental Protection Agency Andrew Lauterback, Senior Criminal Enforcement Counsel, United States Environmental Protection Agency Jan Teekens, Inspectorate of Housing, Spatial Planning and the Environment, Ministry of Infrastructure and the Environment, The Netherlands
Rapporteur:
BACKGROUND
The purpose of this workshop was to learn about how organizations deal with sharing sensitive data, to discuss concerns that in some countries sharing sensitive enforcement information may lead to confidentiality issues and outline a protocol to address this issue in future INECE projects. The facilitators proposed three objectives for the workshop: To discuss how information is exchanged among the various parties (international organizations, national enforcement agencies, and third parties) involved in operational-level enforcement or inspection projects, including the type of information exchanged and the purpose of the projects. To identify key concerns and questions about how and under what conditions information may be exchanged. To identify what INECE can contribute in this field, in particular, in terms of providing guidance to support efficient and secure information exchange. 2 DISCUSSION
Mr. Chris Dijkens facilitated the session, and briefly introduced the topic by pointing out that information is exchanged on different levels, for example between authorities within a country, between authorities in different countries, and between authorities and international organizations and networks like Interpol, INECE, and IMPEL. The type of information exchanged ranges from general information already available in the public domain to highly sensitive criminal intelligence information. These different types of information are exchanged for different purposes. Mr. Dijkens invited participants to present their experiences and raise questions they have concerning information exchange.
Mr. Robert Heiss discussed information exchange issues related to the INECESeaport Environmental Security Network (SESN) International Hazardous Waste Inspection Project at Seaports, which took place in June and July 2010. A second project is being planned for fall/winter 2011. The primary purpose of the first project was to identify strengths and weaknesses in inspection and enforcement capacity of participating countries by taking a learning-by-doing approach where countries performed inspections and reported their results to INECE. As part of this reporting, countries were asked to provide operational information on movements of waste, which raised potential confidentiality concerns. Going forward, INECE must carefully consider whether the collection of sensitive trade-related information is necessary to achieve the goals of the project. INECE is conscious of the fact that the information collected during operational level projects needs to be properly protected. Mr. Andy Lauterback explained that Interpol is the only international body which has the mandate and infrastructure to securely manage the exchange of criminal intelligence information between countries. He suggested that authorities should be careful not to provide third parties with sensitive information which may become unintentionally accessible to others, In the discussion that followed, workshop participants agreed that, in planning operational-level projects, all parties should have an understanding upfront of: (1) the purpose of the project; (2) what type of information is essential to its success; (3) whether the information to be exchanged is sensitive for investigative or business confidentiality reasons; (4) whether the organizations involved in the project are capable of handling any sensitive information on a secure basis; (5) whether the involved organizations have the authority to handle the type of information that will be exchanged; and (6) how the information will be used. Authorities will only exchange intelligence and other sensitive information under very specific conditions, which they have to define and agree upon upfront. International enforcement cooperation projects carried out by networks such as INECE and IMPEL do require certain information from participating countries to be successful. There are some good practices from the IMPEL network in setting up rules of engagement related to this kind of information exchange. 3 OUTCOMES
It was agreed that INECE should produce a guidance document or protocol to address how it will handle sensitive information collected or exchanged during its operational-level projects. The guidance will consider good practices from IMPEL and other relevant organizations.
Track B: Promoting Compliance with Climate-Related Requirements51
TRACK B: PROMOTING COMPLIANCE WITH CLIMATE-RELATED REQUIREMENTS WORKSHOP B1: TOOLS FOR FIGHTING NON-COMPLIANCE IN MARKET-BASED TRADING SCHEMES Facilitator: Rapporteur: Matthias Wolf, German Emission Trading Authority, Federal Environment Agency, Germany Stephen Bygrave, Assistant Secretary, Regulatory Implementation Branch, Department of Climate Change and Energy Efficiency, Australia
BACKGROUND
The purpose of this workshop was to identify drivers of non-compliance in marketbased programs through case examples and to provide a platform for participants to share examples of enforcement responses to such instances of non-compliance, as well as learn about the role and limits of administrative controls in market-based instruments. The workshop opened with Mr. Matthias Wolf proposing that the discussion focus on three topics: how to advance compliance, including through more specified guidance for verifiers; how to share strategies and develop capacities for enforcement; and whether there was value in establishing a web-based exchange for further development of compliance approaches. Additional questions considered during the workshop included: identifying how deeply facilities emissions reports should be checked by the authorities; evaluating which tools and strategies should be used to ensure that operators are compliant; and exploring what sanctioning systems should be applied in cases of accidental and deliberate misreporting. 2 DISCUSSION
Mr. Ken Macken presented a paper on Irelands approach to compliance under the European Union Emissions Trading Scheme. He noted that there had not been any compliance issues that had been identified to date. He observed that legislating the 100 Euro fine into Irish law had been an important contributing factor. Mr. Macken noted that an important incentive for compliance is the carbon tax that is applied to entities that do not participate in the European Union Emissions Trading Scheme, and that companies opted for the Emissions Trading Scheme because they viewed it as less onerous over time. Mr. Macken also commented on the high level of engagement by the government with liable entities under the scheme, as well as with verifiers that were responsible for checking accuracy of data submitted under the scheme.
Mr. Macken indicated that it was difficult to know whether all liable entities had been captured under the scheme, but noted that most liable entities were already covered by other forms of regulation and were therefore visible to the regulator. Workshop participants noted that publication of information relating to the scheme enhanced levels of compliance, particularly as this enabled competitor companies to observe whether other companies should be complying. Mr. Ed Mitchell noted that the availability of free allocations in the early phases of the scheme was an additional incentive to participate, as these allocations would not be available to companies coming in later in the scheme. Mr. Macken noted that checking the monitoring plans was an important first stage as part of the compliance process, with an assessment of verifiers a crucial second stage, given the importance of ensuring a high standard of verifiers. He noted that there was regular communication with verifiers, with workshops in February of each year, as well as meetings every two years to set clear expectations and share experiences. He felt that the upfront costs of this focused effort saved later costs of following up with compliance actions. Every report is screened to ensure compliance. Sometimes there are small discrepancies, often due to different interpretations of guidelines by verifiers and companies. Verifiers are accredited by an external accreditation body. The accreditation body would be advised if there was poor performance by a particular verifier, and could potentially take action to exclude that verifier from the industry over time. Ms. Allyn Stern discussed the United States greenhouse gas monitoring program that began in 2010. Ms. Stern noted that the scheme included a 25 kiloton threshold with 85 90 percent emissions coverage in 41-45 sectors, and that continuous emissions measurement was to be phased in. She advised that the first reports were due this September 2011, and that the EPA was expecting 10,000 facilities to submit, with an additional 3,000 facilities next year. Monitoring plans have already been developed, and while facilities do not have to submit the plans, the plans must be available for inspection upon request. Given the experience with other environmental reporting programs such as the hazardous waste reporting scheme, the Environmental Protection Agency was not expecting full compliance with greenhouse gas reporting. However, under the Clean Air Act there is a spectrum of compliance tools available, including traditional enforcement such as issuing notices, criminal sanctions, and not being allowed any further business with federal government. All reporting under the United States system will be conducted electronically, which will ensure completeness. The reporting will be backed up by some desktop data verification and possible inspections of facilities. Enforcement approaches are flexible but in the past targeted specified sectors for compliance. Ms. Stern noted that outreach was a critical task for compliance especially in the early stages. Ms. Stern indicated that statistical analysis of the data would raise any flags around non-compliance and assist in determining which facilities could be targeted for inspections. Other approaches could be determined by looking at the largest sectors
or where there were the most discrepancies in data. There is a need to build capacity in the audit and assurance sectors, particularly given the need to verify data at the facility level. Mr. Ross Carter gave a presentation on Australias National Greenhouse and Energy Report Act of 2007, and what compliance tools were available in the legislation that enabled the scheme. He noted that the Australian Government was in the process of designing a carbon price scheme that would be further considered by Parliament in the coming months. The initial design considerations focus on a cap-and-trade scheme with a fixed price phase for three to five years, after which a trading phase would be considered. The greenhouse emissions data collected under the existing reporting framework would be used to inform the cap-and-trade scheme. Mr. Carter described the compliance and enforcement approach to implementing the law, including escalation of response and a risk-based framework. Mr. Carter noted that Australias national greenhouse and energy reporting program was into its third year, and that the emphasis so far had been on encouraging or promoting compliance. Compliance is being monitored through an audit program, with a pilot audit underway at the current time. There is a range of compliance tools available under the scheme, including infringement notices, enforceable undertakings, power to request information and undertake inspections, civil sanctions including penalty provisions for ongoing non-compliance, criminal sanctions, and Chief Executive Officer liability in certain circumstances. There was a high level of agreement at the workshop that there was wider scope for cooperation across other participating countries, particularly around ensuring similar levels of scrutiny. There was also agreement that there was potential for cooperation, particularly around ensuring a consistent level of scrutiny and publication of data being applied in different countries, and to utilize assurance and audit capacity that had been built in various countries. 3 OUTCOMES
The workshop concluded that there was a range of approaches to compliance that could be applied, but there was generally a phased approach that commenced with outreach and education, then moved to sanctions for non-compliance over time. The workshop also noted that the public publication of data provided a valuable level of scrutiny for ensuring high levels of compliance by allowing the public and competitor companies to play a role in external assurance. There was general recognition that the capacity of verifiers, assurers, and auditors can be challenging and that this has an impact on the quality of data and levels of compliance in market-based programs. The workshop recommended that countries engage further to share experiences on approaches to compliance in these programs, particularly around how the level of scrutiny and publication of data are being applied, the level of assurance around data quality, and how to build capacity for assurance and audit.
WORKSHOP REPORTING
B2:
GREENHOUSE
GAS
MONITORING
AND
Facilitators: Ross Carter, First Assistant Secretary Regulatory Division, Department of Climate Change and Energy Efficiency, Australia Stephen Bygrave, Assistant Secretary, Regulatory Implementation Branch, Department of Climate Change and Energy Efficiency, Australia Matthias Wolf, German Emission Trading Authority, Federal Environment Agency Rapporteur: 1 Ken Macken, Program Manager, Climate Change, Environmental Protection Agency, Ireland
BACKGROUND
The purpose of this workshop was to discuss experiences with greenhouse gas emission reporting regimes with a focus on compliance, audit, and quality assurance processes and to enable participants to exchange experience and views on the technology currently underpinning reporting regimes as well as new developments and approaches coming through. To frame the discussions, the facilitators presented the following questions: 2 What are the best tools to use for ensuring data quality? What is the role for audit and verification? What is the role of risk profiling? Do information technology systems have a role to play? DISCUSSION
Ross Carter and Stephen Bygrave described the essentials of Australias National Greenhouse and Energy Report Act of 2007 in regard to ensuring data quality, including the implications for data quality of the potential future transition to a full cap-and-trade system. While there are different approaches to third party verification with some elements mandatory, some companies are already asking for guidance on the level of detail required. It was noted that, in British Columbia, third party verification is regarded as essential for assuring a market-based system. A number of attendees raised questions around the blend of skills required in a verifier, particularly the mix of technical and financial capabilities. It was agreed that there could be a shortage of qualified people especially at the beginning of any new scheme. Mr. Jack MacDonald pointed out that, soon after the clean development mechanism was launched, a shortage of approved verifiers resulted in costly delays and created a preponderance of cheap and easy projects going forward for approval.
Mr. Jan van den Heuvel used the example of the Rotterdam Climate Initiative to exemplify the need to be able to formulate these issues in a way that allows politicians to understand the uncertainties involved in reporting emissions. Mr. Matthias Wolf emphasized the importance of accuracy in reporting emissions under the European Union Emissions Trading System and for answering the question under which condition different systems could be linked. Mr. LeRoy Paddock raised the concept of deviating from a one-for-one basis, e.g., by only being granted a one ton credit but requiring reductions greater than this. Mr. Carter indicated that Australia was developing a system for credits for farming reductions. A number of attendees raised questions around monitoring, reporting, and verification for carbon capture and sequestration projects, including liability in the event of leakage. The role that more sophisticated information technology systems might play was raised by Mr. Carter, who pointed out that the current system in use in Australia was relatively old. Ms. Allyn Stern indicated that, in the United States, several different database systems have been used in the past but efforts to link these together have only had limited success. However, while the new Greenhouse Gas tool will utilize electronic reporting from the outset, such information systems are very expensive to develop. Ms. Christine Woodhouse, informed the workshop that in British Columbia, they have an agreement with Environment Canada that their new trading system will utilize single point data entry. However, the usability of the system should not be overlooked. In regard to designing automatic data checking routines, Mr. Wolf agreed that this could be very expensive. In the new German system such checks are only the first steps in a risk-based assessment. Human input and oversight are always needed to analyze and understand the reasons for anomalies. 3 OUTCOMES
The workshop participants recommended that the INECE community undertake the following activities to support the development of greenhouse gas monitoring and reporting systems: 1. Share experiences with monitoring, reporting, and verification among countries. 2. Develop a compendium of case studies on monitoring, reporting, and verification. 3. Develop a list of regulatory tools for monitoring, reporting, and verification of greenhouse gases. 4. Compile and make available through INECE a contact list for practitioners. WORKSHOP B3: NON-CARBON DIOXIDE CLIMATE COMPLIANCE STRATEGIES Facilitator: Rapporteur: Durwood Zaelke, Director, INECE Secretariat Nathan Borgford-Parnell, INECE Secretariat
BACKGROUND
Significant near-term climate mitigation can be gained by ensuring full compliance with existing national laws to control non-carbon dioxide greenhouse gases such as black carbon (soot), methane, tropospheric ozone, and other short-lived climate forcers. The workshop explored strategies for identifying major sources of these gases and for identifying existing laws that address emissions. Participants discussed potential compliance strategies that target key sources, ranging from compliance assistance to enforcement actions against significant or persistent non-compliers. 2 DISCUSSION
Mr. Durwood Zaelke opened the discussion by noting that climate change is much worse and is happening much faster than we thought even four years ago. There is mounting evidence that the climate system is reaching tipping points that will trigger run-away feedbacks, such as uncontrolled melting of the Greenland Ice sheet and major loss of forest biome in the Amazon. While cuts to carbon dioxide emissions are necessary to manage long-term warming, its atmospheric lifetime of millennia means that cutting carbon dioxide emissions will have little cooling effect in the short-term. Cutting short-lived climate forcers, such as black carbon, tropospheric ozone, and methane, can produce much faster cooling due to their shorter atmospheric lifetime (hours to a few decades). Short-lived climate forcers can be cut using existing technologies and in many cases existing laws and regulations The workshop participants discussed a range of national laws and regulations and acknowledged that domestic clean air laws have the highest direct potential for short-lived climate forcer mitigation. However, if governments look at their full range of government policies, they could find thousands of available laws and regulations in energy, transportation, safety, and urban planning, to name a few. One participant pointed out that existing legal remedies, such as nuisance laws, can also be mobilized to reduce emissions from short-lived climate forcers. An example was given of an Irish community, which used its nuisance laws to force a local landfill to capture the methane it was emitting. Due to the suit, the landfill began capturing and utilizing the methane for energy production and it served as a catalyst for the rollout of the technology across Ireland. The participants discussed a number of concrete barriers to the enforcement of existing laws to address short-lived climate forcers. One salient point brought forward by a number of participants was that enforcement resources are limited. Enforcement officers and authorities must choose carefully how they use their time and money. This is why finding overlaps and synergies that can produce efficiency in enforcement while also addressing short-lived climate forcers with existing requirements is critically important. Another participant pointed out that, if one were to look at the range of laws and regulations in each country, they would be surprised at the number of improper signals that are being created that prevent efficient use of enforcement resources.
All participants agreed that it is important to find opportunities for efficiencies and synergies between existing laws and short-lived climate forcer mitigation actions. For organizations such as INECE to be able to tell enforcement officers and agencies that this is something that they are already doing or can do without extra resources is also important. Where cost savings or efficiencies can be found, it will be much easier for enforcers to go to their partners (e.g., government, military, municipalities) and ask for support. One participant noted that, it is about being smart in your targeting. A number of participants pointed out that the motivations for addressing shortlived climate forcers and climate change in general differs between the developed and developing world. They argued that, in developing countries, it is important to justify actions in ways other than simply combating climate change, e.g., regional impacts, development, efficient use of resources, child health, womens health, poverty alleviation, and food security. 3 OUTCOMES
The participants agreed that the next step for country delegates and INECE is to begin developing inventories of existing national laws and regulations that can support mitigation of short-lived climate forcers. The inventorying should be followed by a deeper analysis of the available tools, looking for areas where greater efficiencies or synergies can be made, as well as possible instruction to practitioners and enforcement officers on best practices. WORHSOP B4: COMPLIANCE WITH NATIONALLY APPROPRIATE MITIGATION ACTIONS Facilitators: Rapporteur: 1 Ken Markowitz, INECE Secretariat Kunihiko Shimada, Ministry of Environment, Japan Nathan Borgford-Parnell, INECE Secretariat
BACKGROUND
Nationally Appropriate Mitigation Actions promise to serve as a bridge between developed and developing country parties. Following the principle of common but differentiated responsibilities, the 2011 Cancun meeting of the United Nations Framework Convention on Climate Change laid out the foundation for building appropriate frameworks for financing, measurement, reporting, and verification of Nationally Appropriate Mitigation Actions. However, much work is still left to be done to ensure the transparent and effective implementation of measurement, reporting, and verification requirements. During this workshop, participants discussed and analyzed best practices for environmental and financial integrity of similar systems and developed recommendations and a preliminary work plan for INECE to support measurement, reporting, and verification in the implementation of Nationally Appropriate Mitigation Actions.
DISCUSSION
The workshop began with a presentation on the current status of Nationally Appropriate Mitigation Actions in general, followed by a specific case study of China. Generally, the Nationally Appropriate Mitigation Actions already presented to the Secretariat of the United Nations Framework Convention on Climate Change fall into three different categories: 1. Actions that cover economy-wide reduction targets. These vary greatly by their goals and the metrics used, whether reductions off of a business as usual scenario or energy/carbon intensity reductions. 2. Actions that focus on sectoral reductions. 3. Actions that are pledges, primarily from least-developed countries, pledging to reach the necessary conditions to make comprehensive emission inventories and take mitigating action. The China case study explored the countrys efforts since 2001 to improve energy efficiency and its 2009 pledge to reduce carbon intensity by 40% between 2005 and 2020. China is on track to meet its goals but it was pointed out that even if China is successful its emissions will increase by 75% over current emissions. The workshop discussion then turned to the specifics of measurement, reporting, and verification requirements for the Nationally Appropriate Mitigation Actions system. The participants agreed that success of this system will depend upon confidence in the system, which in turn will depend on transparency. It was pointed out that transparency will be particularly challenging for unilateral Nationally Appropriate Mitigation Actions, which are not subject to international oversight. However, it was pointed out that they are subject to domestic measurement, reporting, and verification requirements and to some extent domestic measurement, reporting, and verification is monitored internationally. There are a number of international and country-level barriers that will need to be overcome as the measurement, reporting, and verification systems for Nationally Appropriate Mitigation Actions are rolled out. Currently, there will be biannual reporting in addition to the existing four year communication under the United Nations Framework Convention on Climate Change. Ramping up to increased reporting and verification requirements will be difficult for many countries to implement. At a country-level, capacity and coordination is a significant issue. Both vertical and horizontal communications are difficult in developing and developed countries. As an example, the transportation sector is a significant source for emissions but transportation ministries do not often communicate well with energy ministries or other agencies tasked with the responsibility of monitoring emissions. In addition, in many countries measurement, reporting, and verification at an individual emitter level is very difficult to introduce and enforce on companies that are not used to complying with new and complex regulations. Many places have never had any requirements and new regulations will likely be ignored instead of followed.
To overcome these country-level barriers, the participants agreed that flexibility in the system is important. Participants suggested that reporting requirements could be differentiated by the capacity of each country instead of creating a single universally applicable system. One participant suggested setting a single reporting requirement but with three special groups with lesser requirements Africa, Asian island states, and least developed countries. It is also important to consider the capacity of inspectors to handle any new stringent measurement, reporting, and verification requirements. It was pointed out that there are currently not enough international inspectors to conduct a formal review of every developing country. To require them to do so would cripple the system. Resources outside the United Nations system may be able to provide support for measurement, reporting, and verification of Nationally Appropriate Mitigation Actions, particularly the non-governmental community. Non-governmental organizations can act as a fire alarm for measurement, reporting, and verification, thereby relieving some of the pressure and administrative requirements of formal United Nation monitors. One participant pointed out that measurement, reporting, and verification will become easier as implementation commences and agencies develop institutional memory. In most countries the offices tasked with protecting the ozone layer are quite capable and technically savvy due to the experienced gained from implementing the Montreal Protocol, but this is not universally true for climate offices. Institutional memory is slow to develop and for these reasons it is important that the Nationally Appropriate Mitigation Actions measurement, reporting, and verification system is designed for ease of implementation and flexibility. It is also important to keep expectations reasonable, especially because significant failures could undermine confidence in the entire system. Another suggestion was to focus on sustaining bilateral measurement, reporting, and verification requirements for supported the Actions instead of relying on an international system. It was suggested that bilateral agreements are stronger and easier to manage than international systems. The Clean Development Mechanism is an important example, as its results have been mixed and it has not yet succeeded in developing a strong market. Many participants agreed that bilateral measurement, reporting, and verification is a strong model, but there are a number of detractors that make bilateral measurement, reporting, and verification an unappealing model for the Nationally Appropriate Mitigation Actions system. For instance, when Japan provides development aid, the grantee is required to utilize Japanese technology. If this requirement was expanded to all other bilateral agreements within the system, it would be unreasonably burdensome. Additionally, the United Nations Framework Convention on Climate Change and its associated protocol and agreements are international commitments so there would still need to be an overarching international system if monitoring, reporting, and verification were managed on a bilateral basis. This would require an additional level of bureaucracy and potentially lead to problems with convertibility
between different measurement systems, e.g. intensity reductions as opposed to absolute tons. 3 OUTCOMES
The workshop participants recommended a number of areas where INECE could provide value in the continuing conversation about compliance and enforcement aspects of measurement, reporting, and verification in Nationally Appropriate Mitigation Actions: (1) INECE could review existing measurement, reporting, and verification systems in different fields and suggest effective governance structures. (2) INECE could suggest effective governance structures or process designs. (3) INECE could hold an international workshop or series of workshops for creating a new system for measurement, reporting, and verification. WORKSHOP B5: REDUCING EMISSIONS FROM DEFORESTATION AND FOREST DEGRADATION AND ENFORCEMENT Facilitator: Dr. Rosalind Reeve, Associate Fellow, Energy, Environment and Development Programme, Chatham House, United Kingdom
Rapporteur: Stephanie Hanford-Hass, Consultant, Institute for Governance & Sustainable Development, United States 1 BACKGROUND
The purpose of this workshop was to facilitate an exchange among experts and participants on the effectiveness of forest law enforcement, including the use of innovative tools for enforcement and compliance promotion. The workshop evaluated the extent to which agencies are prepared for preventing, detecting, and prosecuting crimes in relation to reducing emissions from deforestation and forest degradation plus conservation, sustainable management and enhancement of forest carbon stocks (REDD+). The workshop also assessed capacity building needs to ensure that law enforcement agencies with jurisdiction over forest resources are ready for REDD+. The discussion during this workshop was organized around three key questions: How can REDD+ be effective in the absence of adequate political will to enforce national law? How can we focus increased attention on drivers of success for REDD+, and particularly on enforcement? How to bridge the disconnect between the REDD+ discussion and the climate and biodiversity discussions?
DISCUSSION
Dr. Reeve established that governance is the central issue that needs to be tackled in order for REDD+ to be effective. If there is little political will or ability to comply with and enforce national laws, REDD+ cannot be effective. The governance issues are challenging; be it because of lack of transparency, poor record keeping, inappropriate validation, misleading data, falsified documents, illegal trade, etc. More information and training are needed to curb corruption before it begins. Environmental and social safeguards are receiving more attention than governance, which needs to change. Enforcement has received almost no attention to date. It is worthwhile acknowledging that many people attending the workshop had very little experience with REDD+ and were present because they wanted to learn more. This is indicative of the state of the discussions; enforcement and compliance experts have been minimally engaged to date. Enforcement officials need to be brought into the discussions now. Workshop participants recognized that, frequently, national laws for ecosystem protection are in place, but they are not respected and prosecutors do not know how to go about creating that cultural change necessary to demand compliance. Participants considered whether REDD+ could be used to help reward or incentivize those that obeyed the laws. It was also noted that there is a need to compile best practice information around implementation policies that have been established. Of course, every region will have different challenges and drivers, but knowledge can be shared. Partnership with non-governmental organizations was noted as a successful collaboration at times. It was also recognized that improved data from satellites was helping to pinpoint problem areas. It was further noted that different types of issues need to be addressed such as the awareness of social risks, fear of land grabbing, and community conflicts. The point was made that enforcement officers have not yet been included in these discussions and they should be because the implementation of REDD+ can be very complicated. An attempt should be made at this stage to bring enforcement officers into the discussions to begin to develop practical and implementable tools. Dr. Kunihiko Shimada discussed the fact that REDD+ discussions cannot take place without linking in the climate negotiations as well as the biodiversity discussions. The subject of bridging the disconnect between the REDD+ discussions and the climate discussions as well as the biodiversity discussions was also raised. To date, establishing this linkage has proven difficult. Everyone in the climate agenda understands that REDD+ is important but they dont know how to link it in and vice versa. An effort must be made to align or unify these concepts. There also is a need to better coordinate inter-agency communication, including engaging groups such as the United Nations Office of Drugs and Crime and making these groups a part of the United Nations Collaborative initiative on Reducing Emissions from Deforestation and forest Degradation in developing countries. This
program brings together technical teams from around the world to help develop analyses and guidelines on issues such as measurement, reporting and verification of carbon emissions and flows, ensuring that forests continue to provide multiple benefits for livelihoods and the environment, and supporting the engagement of indigenous peoples at all stages of the design and implementation of REDD+ strategies. A call was made for the greater dissemination of lessons learned and best practice in existing REDD+ pilot projects. Coupled with that idea was a request for the greater sharing of information around how countries/sectors have best managed conflict resolution. The idea being that anticipating conflicts and the many different ways that criminals can cheat the system, would enable enforcement officers around the world to better fight corruption. Despite these and many other challenges, REDD+ is generating political good will. It has created numerous multi-stakeholder discussions and indigenous groups have gained recognition. The question now is how can this good will be harnessed and progress be made on the national level? Dr. Reeve asked the participants to consider how to develop a multi-stakeholder approach to enforcement in the context of REDD+, for example, a communityoriented approach involving cooperation between communities and enforcement officers. How can cooperative law enforcement be built at all levels, from local to international? There is a need to empower the communities that are most dependent on the forests. Engaging indigenous and forest dependent communities is crucial to the success of REDD+ projects, and INECE could promote innovative strategies for leveraging local knowledge to improve compliance monitoring initiatives, mechanisms for establishing citizen enforcement programs, and other roles for civil society in the enforcement process. Another tool that could be used in this context are class action lawsuits on the part of forest dependent communities, since it is important to establish indigenous rights at the outset of a program. Establishing community rights in a court of law at an early stage could have huge impacts on the unfolding of REDD+. The political will is here now so action must be taken quickly to make progress where possible. Awareness of enforcement needs to be built in the REDD+ community and recognition that enforcement should be addressed earlier rather than later in the process, while enhancing awareness of REDD+ in the enforcement community. 3 OUTCOMES
Participants identified two important sets of activities as opportunities for the INECE community.
INECE could develop an analytical and practical report to raise awareness of enforcement needs in the REDD+ community and promote a greater recognition that enforcement should be addressed earlier rather than later in the process. INECE could compile and communicate information including (1) enforcement tools and innovative strategies to support REDD+; (2) good practices for disclosure of conflict of interests to help others fight corruption in REDD+; (3) best practice information around implementation policies that have been established; (4) good practices for enforcement and implementation policies from national programs that have already been established.
Track C: Proven Compliance and Enforcement Strategies65
TRACK C: PROVEN COMPLIANCE AND ENFORCEMENT STRATEGIES WORKSHOP C1: INTELLIGENCE-LED ENFORCEMENT Facilitators: James Lehane, Executive Office, Australasian Environmental Law Enforcement and Regulators neTwork (AELERT), Australia David Higgins, Program Manager, Environmental Crime Program, Interpol Roel (R.M.) Willekens, Chief Superintendent, National Program for Environmental Crime, Netherlands Police Andy Lauterback, Senior Criminal Enforcement Counsel, U.S. Environmental Protection Agency Rapporteur: Professor Duncan French, Professor of International Law, University of Sheffield, United Kingdom 1 BACKGROUND
The purpose of this workshop was for participants to explore common challenges in relation to intelligence-led wildlife and pollution enforcement, discuss novel solutions to overcoming common challenges, and scope potential activities to adapt identified solutions to similar contexts. Facilitators reviewed the definition of intelligence-led enforcement, its applications, and its limitations. The workshop discussions focused on a number of key themes: (i) the importance of collaboration within and between State agencies and across State boundaries; (ii) the importance of sharing data (though recognizing the legal, cultural, and institutional difficulties in this regard) and, (iii) the importance of proactive use of intelligence, in administrative, regulatory, and criminal enforcement activities. 2 DISCUSSION
The facilitators established that intelligence-led enforcement is not a term of art but represents a variety of issues, including classic law enforcement approaches (for example, acquiring data in response of, and to, combat, specific threats and violations) as well as an approach to broader or macro-level issues (for example, regulatory policy-setting, prioritizing issues, risk assessment, and resource allocation). The facilitators emphasized the complexity of intelligence-led enforcement, including aspects related to the capture, storage, and use of data and other intelligence. The data aspects, combined with lack of appointed intelligence
analysts, lack of resources and time to undertake detail analysis of intelligence are major obstacle to effective action. The facilitators also described how intelligence is resource-intensive and is not a quick win it must be part of a dedicated strategy, often moving from an exclusively reactive response to environmental violations (both criminal and administrative) towards an approach more proactive focused. Importantly, the facilitators noted that the gathering and sharing of intelligence must be legislatively mandated other than at the most informal level. Although there are obvious benefits of informal gathering and sharing of intelligence, this will raise issues both of legal and judicial acceptance and potentially could undermine claims of professionalism within the environmental regulatory community. They noted that current regulatory and investigatory activity, even when it is intelligence-led, often suffers from too much soft intelligence and insufficient hard intelligence. The facilitators shared lessons learned with applying intelligence-led enforcement. They stressed that intelligence-led enforcement is not just about enforcement per se but includes the whole regulatory chain: adoption of law and measures, licensing, inspections, and enforcement and compliance. Similarly, intelligence-led enforcement allows regulators and law enforcers to track a much broader chain of those involved in unlawful behavior, as well as identifying patterns of such behavior. There are a range of tools that can be used to support intelligence-led enforcement, including the use of appropriate software, covert operators, informers, and what was referred to as a risk inventory. In a risk inventory, all involved players (regulators, criminals, victims, and other stakeholders) are asked what they consider to be the key issues. This type of analysis will generate a much more comprehensive picture than simply relying on regulatory assumptions. Information sharing and data mining (accumulating data from various databases) can be essential but equally can be limited by data protection requirements and the lack of memoranda of understanding or bilateral mutual legal assistance treaties. In the context of transboundary environmental crimes (for example, hazardous waste, e-waste), intelligence-led enforcement is fundamental as it allows the identification of all actors, many of whom are anonymous, are not involved directly in the physical movement of the materials, and often diversely spread. Moreover, in putting the puzzle together, intelligence-led enforcement means that border checks are an important, but never sufficient, element. Intelligence-led enforcement is only useful at above a certain level of significance of criminal behavior; low level or isolated activities will rarely benefit from such intelligence. The level of coordination between regulatory and law enforcement agencies, within and between states, is pivotal. Interpol liaises with police, not environmental
regulators, and thus domestic coordination between regulators and police is not only significant domestically but is important in improving international intelligenceled enforcement. Case examples on the use of intelligence-led enforcement discussed by facilitators and participants included some of the following areas: In India, poaching and wildlife crime has been reduced through intelligence-led analysis of patterns of crime, which allowed identification of the complete chain of criminal behavior, thus being able to identify a much broader range of culpable actors than simply those caught at a particular moment of immediate arrest. The United States Coast Guard uses go to spreadsheets to help it identify key regulatory contacts in other parts of government. Ghana has excellent links between customs and environmental regulators, thus permitting much better joined-up environmental enforcement and use of intelligence-led data. Dutch-West Africa initiatives on electronic waste have not only been a success internationally through the sharing of data, but have allowed Dutch authorities to improve domestic intelligence on key causal factors of the creation of e-waste within its own territory. 3 OUTCOMES
The participants agreed that intelligence-led enforcement can improve measurable outcomes, can be cost-effective over the long term, and can support improvements in the integration of different regulatory and law enforcement agencies. Involvement of stakeholders and communities in intelligence-led enforcement can be a win-win, on the basis of improved information and improved trust. Analysis of data requires time, resources, and specially trained personnel. It also requires a clear strategy detailing ways that the data will be used. There needs to be some idea as to what scope of data to obtain and analyze (both in terms of what duration over which to measure patterns and what variables to include within the assessment). To prevent tunnel vision within domestic regulators and other agencies, there should be linkages including MOUs, regular contact, spreadsheets of contact points, and clear understanding of information sharing objectives (for example, between environmental regulators, customs, police, and coast guard). Interpol and INECE can support such national environmental enforcement summits of such agencies. Regional networks can play a fundamental role, but work best when supplemented well-integrated domestic networks. Networks on intelligenceled enforcement can be at various levels of formality (and though it may be best to begin with informal trust building, to ensure effective sharing of information, these channels must also be formalized at some point).
Intelligence-led enforcement need not always be based on criminal-specific information but should also include as context what all stakeholders consider to be their principal environmental problems. WORKSHOP C2: SYNERGIES FOR THE EFFICIENT IMPLEMENTATION OF MULTILATERAL ENVIRONMENTAL AGREEMENTS AND EUROPEAN UNION ENVIRONMENTAL LEGISLATION RELEVANT TO THE MINING SECTOR IN EUROPE Facilitators: Elaine Wright, Environmental Consultant; Lecturer, University of Pennsylvania Tsvetelina Filipova, Senior Project Manager/Lawyer, Regional Environmental Center for Central and Eastern Europe Mihail Dimovski, Senior Expert, Topic Area Leader for Law Enforcement and Compliance, Regional Environmental Center for Central and Eastern Europe Rapporteur: Aniko Nemeth, Expert, Topic Area for Law Enforcement and Compliance, Regional Environmental Center for Central and Eastern Europe
BACKGROUND
Globally, mining has often been a key factor in triggering environmental problems. Nevertheless, the mining sector is an important contributor to local and national economies in many countries. In South Eastern Europe, the mining industry is often characterized by inappropriate planning and operational and post-operational practices taking place within inadequate regulatory frameworks. In South Eastern Europe, this has resulted in and continues to cause, significant adverse environmental and health and safety impacts and related liabilities. The overall purpose of this workshop was to contribute to the prevention and mitigation of transboundary environmental risks arising from hazardous pollution hotspots in particular from mines and tailing dams. This workshop was organized by the Regional Environmental Center for Central and Eastern Europe within the framework of the Environment and Security Initiative and with the support of the Finnish Government. 2 DISCUSSION
The workshop provided an overview of the current status of the implementation of multilateral environmental agreements (MEAs) relevant to mining in selected South Eastern European countries and identified synergies with relevant European Union legislation. The main challenges discussed included the environment being a low priority, complicated institutional set-up, unreliable data, and insufficient
bilateral cooperation. The workshop also explored the response to these challenges, including European Union legislation, joint international actions and voluntary governance principles in the field of corporate responsibility. The participants discussed opportunities and lessons learned for the implementation of preventive and mitigating actions promoting sustainable joint management of shared water bodies. The discussions focused on the difficulties of implementing multilateral environmental agreements and the importance of political commitment. In case of the industrial accidents, the responsibility issues were discussed with the help of practical cases (e.g. the accident in Baia Mare, Romania) and its implications. The concept and hierarchy of European Union legislation was briefly explained as regards the national legal requirements for implementing the provisions. Additionally, special focus was placed on transboundary industrial accidents (mining) deriving from hazardous activities with impact on international watercourses and the international response to such accidents with relevance to the multilateral environmental agreements within the scope of the workshop. A number of mining accident cases were illustrated as forms of industrial accidents, including the Baia Mare accident. In 2000, a gold mining company in Baia Mare, Romania, spilled cyanide into the Some River as the result of a dam failure. The Some had cyanide concentrations of over 700 times the permitted levels following the incident. The polluted water contaminated drinking water for an estimated 2.5 million people in Hungary and the cyanide is linked to killing large numbers of fish in Hungary and Serbia. Good cooperation practices were presented and discussed including the Sava River initiative, the Timok River cooperation effort (water expert group in countries with water banks), and peer reviews as a possible tool for crossborder joint management of transboundary rivers. Peer reviews are instruments to examine the participant countries policy, legal, and institutional frameworks by exchanging information and sharing knowledge and best practices, allowing for very clear practical recommendations for the countries. The concept of peer reviews was explained in detail as it is a very useful tool for providing a screening of the system in place. The peer reviews are organized with the participation of the representatives of two countries, who review the situation and the system in place for a certain issue in the other country. At the end, the experts exchange views, enabling each country to benefit from the experience and technical knowledge of the other. The main benefit to peer reviews is the practical approach. 3 OUTCOMES The overview of current status of the implementation of multilateral environmental agreements relevant to mining sector in selected countries was presented. Up-todate information was provided to the participants of the workshop on the status of implementation of relevant agreements in the South East Europe region.
The workshop resulted in the opportunity for participants to exchange good practices and lessons learned with other regions on joint management of transboundary waterbodies affected or potentially affected by mining activities. Peer review concepts were promoted as an applicable tool for improved cross border management of shared resources around the world. The workshop also resulted in improved knowledge of the opportunities and benefits of efficient implementation of European Union legislation and multilateral environmental agreements relevant to mining (synergies). WORKSHOP C3: CRIMINAL ENFORCEMENT: ORGANIZED CRIME AND MONEY LAUNDERING FIGHTING
Facilitators: Duncan French, Professor of International Law, University of Sheffield, United Kingdom Toine Spapens, Professor, Police Academy, The Netherlands Rapporteur: Davis Jones, Associate Director, International Compliance Assurance Division, United States Environmental Protection Agency 1 BACKGROUND
The purpose of this workshop was to examine how police and environmental enforcement officials could better detect and deter environmental crimes committed by organized criminal groups. The facilitators of the workshop on criminal enforcement: fighting organized crime and money laundering framed the workshop with two questions: How do we increase international cooperation to confront organized crime? What synergies and connections exist between environmental crimes and other types of crimes? 2 DISCUSSION During this workshop, the facilitators established that organized crime does exist in the environmental arena. The pursuit of these cases requires a different skill set, and investigators may need to pull in experts in organized crime that may not have environmental enforcement experience. There are conventions that can assist with cooperation, but trust must be established to enable the sharing of information required for joint investigations. The facilitators explored the definitions of organized crime, noting that this type of criminal activity involves groupings of highly centralized enterprises run by criminals for the purpose of engaging in illegal activity. The fluidity of organized crime networks makes identifying the responsible individual difficult and the
transboundary nature of the crime complicates prosecution due to differences in legal frameworks between jurisdictions. The facilitators also explored the definition of money laundering, noting that traditional organized criminals are conducting environmental crime and using existing expertise and methods to launder money. Mr. Luciano Loubet emphasized that corruption is another form of organized crime. There are many cases with false licenses, false certification of timber, changing borders of protected areas, and similar illegal activity. These activities are clearly organized, since it takes many people to accomplish. Ms. Tsvetelina Filipova noted that environmental crime may be linked to the countrys level of development. In some border areas, there is no other work except for illegal logging or smuggling, so crime rates increase. Mr. Andrew Lauterback noted the importance of having criminal laws for the environment to establish that crime has occurred and to be able to prosecute the crime with an appropriate sanction. Mr. Mihail Dimovksi concurred, noting that the Balkans do not have a unified definition of environmental crimes, so these crimes are often treated as financial crime with relatively low penalties. There is a need to define environmental crime and to elevate the penalties to be more effective. Participants explored examples of good definitions of environmental crime. In the United States, for example, the environmental statues have criminal provisions that define crimes and that define when an action is a criminal violation as opposed to a civil violation. Belgium has good system with variety of legislation and authorities. The Flemish system has combined all environmental crimes and sanctions into one law rather than spreading them out into different laws. This effort has clarified crimes and sanctions and has resulted in raised awareness. Discussions centered on how to improve coordination between investigators in different organizations and different countries. National laws and enforcement authorities must make environmental crime less profitable through high penalties and innovative use of seizures and forfeitures by not just confiscating illegal gains such as the illegal timber, but also the truck and tools used to harvest and transport the timber. Participants shared examples of regulatory responses to organized crime in their countries and regions. In France, for example, there is a formal system of international law, but very dynamic system of international crime. In Australia, there is a new organized crime framework, with an operational plan requiring agencies to work together to fight organized crime. The report goes through many major commodity areas, and for first time, has a chapter on environmental crimes covering biodiversity, logging, hazardous waste, and fishing. In Indonesia, organized environmental crime is new area, but illegal logging and illegal fishing are raising problems. Indonesia does have strong money laundering act, but lacks protection for whistleblowers and needs to ensure that environmental crime is
specifically recognized in the law. In Scotland, to effectively fight organized crime, experienced investigators were brought in who understand how to investigate criminal cases and apply that expertise to environmental crimes. Brazil is undergoing an assessment of how to raise the penalties for environmental crime to ensure there is a deterrent effect. In Canada, environmental officers have full police powers, but there are no dedicated prosecutors. Canadas environmental crimes statue greatly increased sanctions, both financial penalties and time in jail and also created an administrative penalty system for non-criminal offenses. Participants recognized the importance of getting environmental crime on the national agenda so other agencies understand the impacts, severity, and cross linkages. Mr. David Higgins emphasized the issue that managers and politicians are not convinced that organized crime exists in the environmental arena. Without the support of politicians, resources are not available to conduct the required investigations. However, since environmental crime impacts national security and costs countries money (e.g., illegal logging denies a country taxes from legitimate sales and logging concessions), there is a clear and strong message that can be communicated to politicians on the importance of dedicating resources to combating environmental crime. Criminal investigators need to focus on getting perpetrators but need to understand what the damage is and the economic effects of the crime. Enforcement officials should emphasis how crimes distort the level playing field to show how it is undermining national economies. When criminals are organized, law enforcement needs to organize, too. There is a need to pull in expert investigators, and prosecutors can request that police work together to utilize tools (e.g., phone taps) that environmental investigators do not have or cannot use. In Canada, the prosecutors bring together police and environmental Investigators once a year so they get to know each other and can better communicate. Participants discussed key activities that could be done to improve coordination both nationally and internationally. It was noted that networks are already there, but there is a need to learn to use them more intelligently. It was also noted that, in many countries, there is some level of distrust or rivalry between police and environmental enforcement officials. Efforts should be made to develop trust and cooperation among agencies. However, this type of cooperation can be very vulnerable and dependent on personal relationships. It also may not be clear what information can be shared, so people tend to over-protect information. There is a need for national training on information sharing protocols, limits, roles and responsibilities. Environment Canada has been successful in rotating staff between law enforcement and environmental enforcement to build understanding and relationships. It also was noted that successful prosecutions can be very rewarding to staff. Additionally, performance measurement indicators can be valuable in communicating results within the agencies and to the broader public. The facilitators also noted the distinction between operational cooperation and nonoperational cooperation. Operational cooperation occurs during actual criminal investigations, whereas non-operational cooperation involves joint training, logistics,
and communication. Cooperation, particularly at the international level, usually begins with non-operational cooperation, e.g. network building, communication and structural cooperation. The next stage is still non-operational, but involves more intensive activities such as joint training. Semi-operational cooperation includes case-specific support, such as sharing data. Finally, operational cooperation occurs during joint investigations and case development and requires the highest level of trust that can be developed through non-operational cooperation. At the international level, organizations supporting networking and capacity building on environmental crime include Interpol and the United Nations Office of Drugs and Crime (UNODC). Interpol is a hub for environmental criminal information, while UNODC supports capacity building in the legislative and operational areas, focusing on building an institutional framework and on training law enforcement officials to detect environmental crime. Other networks, such as INECE and Themis (the network for South Eastern European countries and the Ukraine) can help support informal enforcement collaboration among responsible authorities and help build capacity for responding to environmental criminal activities. 3 OUTCOMES
The workshop facilitators and participants presented the following recommendations: Recognizing the need to develop teams for transboundary enforcement cases, INECE could pull together good practices for developing teams and task forces. INECE and Interpol can help ensure better exchange of information between countries and increased publicity for successful investigations. Interpol and INECE, as well as all environmental enforcement officials, should seek ways to increase awareness among politicians and decision makers on the importance of combating environmental crime. WORKSHOP C4: DEVELOPMENTS IN MONITORING TECHNOLOGY, INCLUDING SATELLITE REMOTE SENSING Facilitators: Ken Garing, Senior Investigator, National Enforcement Investigations Center, U.S. Environmental Protection Agency Rapporteur: Raymond Purdy, Professor, Centre for Law and the Environment, Faculty of Laws, University College London, England Luciano Furtado Loubet, Specialist, Prosecutors Office, Brazil Robert Baert, Vice-chair, Flemish High Council for the Enforcement of Environmental Law, Belgium Gene Lubieniecki, INECE Secretariat
BACKGROUND
The purpose of this workshop was to look at present and potential future applications in the fields of prevention, detection, and deterrence of illegal activities. The workshop focused on developments in monitoring technology, including satellite remote sensing. The facilitators structured the workshop around the following areas: (1) introduce and discuss recent changes in satellite imagery availability and new remote sensing techniques and applications; (2) explore whether satellite imagery can have a deterrent effect; (3) analyze strengths and weaknesses of satellite data for enforcement; and (4) discuss how INECE can help facilitate the use of advance technology among enforcement authorities. 2 DISCUSSION
The facilitators opened the workshop by highlighting improvements to the availability and accessibility of satellite data. Satellite monitoring has undergone many recent changes, including (1) the addition of more satellites for better coverage; (2) more custom applications; (3) better access to archived data; (4) reductions in cost of data; (5) better proof that initial applications are valid; (6) better acceptance of technology by regulated communities (many people prefer to be regulated via satellite imagery); and (7) improved resolution of imagery. This type of monitoring is usually used for large area investigations. Examples include forestry, water, vegetation clearing, oil spills, boundary disputes, and illegal immigration tracking. Satellite imagery is very powerful to target areas for later on-site investigations. Several strengths of this technology include that one can review very large geographic areas efficiently, effectively, and at lower costs and that remote monitoring can gather information not otherwise available with other technologies. Satellite imagery evidence has been challenged in court as an illegal procedure, but laws have also been changed to better allow such evidence. Best practice standards of digital data have been developed to help standardize the processes. Satellite monitoring appears to provide a deterrent to non-compliance. A survey conducted by Ray Purdy through the University College London indicated that farmers in the United Kingdom thought that they were being monitored more than they actually were. The farmers responses indicated that monitoring provided deterrent effect. Australian farmers also agreed that satellites had deterrent effect. According to the survey responses, both United Kingdom and Australian farmers preferred remote monitoring, particularly on the basis of wanting a level playing field. Regulated communities, according to the survey, seem to prefer the use of satellitebased monitoring to on-site visits. Farmers had some concerns such as invasion of privacy, big brother, and lack of trust in government to securely manage data. There is emerging technology for sensing gaseous compounds. These technologies are currently used primarily as screening tools to follow-up on enforcement, not
as primary tools for collecting evidence. Ken Garing showed various examples where technology is used to find invisible hydrocarbons. These technologies are somewhat new to enforcement and the United States is in the process of developing strategies to use these in enforcement and compliance. He noted that many of the chemicals monitored by these technologies are greenhouse gases that are controlled in the United States by various regulatory requirements. The major weakness with the use of these tools for enforcement is that the results cannot always be used for primary evidence in an enforcement case. Onsite investigation and collection of evidence using more traditional methods is necessary. Additionally, while the cost of some remote monitoring technologies is coming down, many of these technologies are very expensive. Finally, some jurisdictions many be hesitant to accept remote monitoring evidence. 3 OUTCOMES
The facilitators concluded that remote monitoring is a valuable tool for both enforcement and compliance. It can provide valuable information not otherwise available and cover large geographic areas efficiently and effectively. While data from remote monitoring technologies will often be admissible in court, there could sometimes be certain arguments raised by the defense which might affect the weight that a court might attach to the technological data as evidence. This is often the way with any new technology until confidence is built up showing its reliability and accuracy. Therefore, remote monitoring technology will most likely not be used by regulatory bodies in isolation; it should be used in conjunction with a combination of regulatory strategies and its main value will probably be targeting for on-site inspections. Some of this technology is very expensive but prices are coming down. The workshop facilitators and participants identified a number of recommendations for INECE. INECE could: Establish and/or promote an area on the INECE website where information on remote monitoring technology for compliance monitoring and enforcement and uses can be posted and/or discussed. Develop contacts and networking opportunities with satellite operators and data providers to better understand capabilities. Provide points of contact within the INECE community for further discussion and liaising for remote sensing applications. Develop, compile, and make available through INECE good practices for collecting and managing digital and remote monitoring data. Coordinate the lawyers needs with the scientists so as to make sure the data collected meets legal requirements. WORKSHOP C5: COMPLIANCE MANAGEMENT SYSTEMS Facilitators: Han de Haas, Spatial Development Management and Enforcement, Province of Noord-Brabant, The Netherlands
Rapporteur: 1
Martin de Bree, Erasmus University Rotterdam/Next Step Management, The Netherlands Chris Booth, Consultant, Environment Regulation, United Kingdom
BACKGROUND
The purpose of this workshop was to explore and evaluate compliance assurance through company compliance management systems. The experiences of the Province of Noord-Brabant, The Netherlands, regarding a new form of supervision, referred to as system based supervision, was presented and a discussion took place to allow participants to make arguments in favor or against the new form of supervision. 2 DISCUSSION
Mr. Han de Haas introduced the experience using system-based supervision in the Province of Noord-Brabant in the Netherlands. Management systems used by private companies focus on optimizing operational aspects of business like quality, health, safety and the environment. Companies with management systems have the potential to ensure compliance with legal requirements in their own organization (so-called compliance management). This potential is seldom or not at all used by law enforcers because the existing standards for management systems are not specifically aimed at securing compliance with legal requirements but rather at reaching better quality or environmental goals. The aim of systembased supervision is to analyze the management systems at large-scale industrial companies with high risk processes for the purpose of customizing supervision and improving compliance. System-based supervision recognizes the fact that regulators have never been able to check everything at a site. It further recognizes the growing need to reduce burdens on business while maintaining or improving compliance. Mr. de Haas discussed the importance of taking a holistic view, which includes five elements which all interact: (1) commitment from companies and from government side (at all levels in both); (2) confidence and trust; (3) competencies; (4) vision; and (5) methodology. The Province established a four level scale of compliance competence and sought to move companies up to level four. Companies were typically around level two when the province started using system-based supervision, but many had improved to level four after using system-based supervision. The discussion covered questions and aspects of system-based supervision, including public perception, benefits and risks to system-based supervision, and international applications. Mr. Ross Carter asked about the public perception of working very closely with industry. Mr. Martin de Bree replied that the Province uses a checklist to measure the compliance competence of a company. Through the results of the checklist
and the daily performance (reality checks), the public can be assured that there is smart trust (judgment) between business and government. The level of trust in the company increases if there is an effective content management system, which can be verified in practice. Participants considered risks of using system-based supervision, noting in particular that auditing systems may simply confirm that the facility is meeting the requirements of the paperwork, rather than actually improving environmental performance. An extra element is needed to include requirements regarding emissions and environmental impacts. Participants also noted that management systems have been under discussions for at least twenty years, and that the benefits have not been realized. Participants also noted that there may be no real efficiency benefits to the regulator. It was also noted that the system may blur the distinction between the regulator and the regulatee. Citing specific research, Mr. Markku Hietamaki commented that Finland had studied companies with environmental management systems to see if they comply better than those without such a system. In the sectors with permits, no difference was observed. But in companies with no permits, those with an environmental management system had better performance. Another concern that participants discussed was the issue of companies that are recalcitrant to comply. For those companies, this approach may not be appropriate and more aggressive regulation may be required. However, the benefits of system-based supervision were also explored. Mr. Jamie Lira noted that many companies want to communicate their improvements to regulators and the public and that this system could facilitate that process. Additionally, the system builds trust between the inspector and the inspectee, as they communicate about relevant issues regarding risk management and compliance. Mr. Carter noted that, in situations where there are specific limits on inspection, measurement, and/ or enforcement, this system can help improve performance. There was some discussion about the potential for system-based supervision for less developed countries. In several less developed countries, multinational companies build industrial plants governed by their management systems. Mr. de Bree proposed that, in those countries, the companies might be stimulated to act in a safe and environmentally responsible manner by applying system-based supervision to them. A challenge there is that the local authorities will need to have or hire competencies for assessing such systems. International cooperation between developed and less developed countries may solve this point. 3 OUTCOMES
At the conclusion of the workshop, participants concluded that companies using management systems can still optimize compliance management. The step-bystep approach of system-based supervision makes it possible to improve in stages,
giving companies a high degree of control and resulting in better environmental performance. The participants agreed to provide feedback on the workshop background paper, Compliance Management and System-based Supervision, to the authors by email.
Track D: Improving Implementation of Environmental Legislation79
TRACK D: IMPROVING IMPLEMENTATION OF ENVIRONMENTAL LEGISLATION WORKSHOP D1: INECE INPUT TO RIO + 20 Facilitator: Rapporteur: 1 Amy Fraenkel, Regional Director and Representative, United Nations Environmental Programme Steven Wolfson, Attorney Adviser, Office of the General Counsel, United States Environmental Protection Agency
BACKGROUND
The purpose of this workshop was to have participants develop specific recommendations to promote compliance with and enforcement of laws and regulations as part of an overall strategy for achieving green economy objectives, and for strengthening environmental governance. The facilitator framed the workshop around two questions: (1) what should the world do to advance the green economy and (2) what can INECE do to further these elements for the 2012 United Nations Conference on Sustainable Development (Rio+20) and beyond? 2 DISCUSSION
The discussion highlighted the need to focus on implementation, noting that the rule of law is no rule at all if not implemented. Participants noted the marked mismatch between capacity and needs, with the example given of Ho Chi Minh City (Vietnam) having 40,000 sources to regulate but only 100 people in environment department. Capacity building is not only about training - some countries have very elementary environmental legislation or legislative gaps, and would benefit from help from the international community in developing legislation. The example of multilateral environmental agreements was raised and the need for greater attention to the process of domesticating or transferring them into national law, to enable implementation and enforcement. The need to be able to demonstrate the benefits of environmental law was also stressed. In terms of the green economy, the discussion was framed by a basic distinction between the traditional lens of environmental enforcement, which focused on environmental clean-up, and the need for a new lens. There is a need for visionary architects to develop new structures for a green economy. Legislation in Paraguay on payment for ecological services, with mandatory reserves and marketable credits, and backed up by criminal sanctions, was discussed as one example of new rules that require true costs be reflected, making for a more apples to apples comparison.
Clarifying the meaning of the term green economy could help address discomfort in countries that feel unclear on its meaning. The necessity of the rule of law for the transition to green economy was discussed. Another aspect of moving toward the green economy is addressing the role consumer demand plays in environmental problems in developing countries such as China. Some multinational brands (perhaps recognizing vulnerability to reputational risk) are trying to address environmental performance in their supply chain. One example mentioned involves a partnership of Walmart, their suppliers, Natural Resources Defense Council, and others to spread use of best practices in textile industry to reduce water pollution and reduce energy use. Can this kind of effort be scaled up and replicated in other sectors, countries, and media? Can the idea of supply chain responsibility be spread more broadly, and supported by propagation of tools to help companies affect environmental practices up their supply chain? It is also important to ensure that greenness is real, i.e. backed by data and that incentives are provided. 3 OUTCOMES
Participants recognized the importantance of having a positive statement on the role of enforcement and compliance in the outcomes of the Rio+20 Conference. As part of the development of the statement, participants recommended the development of a paper on the importance of compliance and enforcement for green economy with concrete data demonstrating benefits. The World Congress on Law, Justice, and Sustainable Development provides an opportunity to advance these issues. A side event during the Rio+20 Conference could focus on sharing best practices on law for a green economy. Participants also suggested creating a new platform for enhanced international collaboration on building national environmental governance capacity, including development and implementation of laws as well as compliance and enforcement; developing an initiative on the role of corporate responsibility to promote a level playing field; and developing common metrics to enable full cost accounting reflecting environmental impacts; and promoting new collaborations among practitioners. WORKSHOP D2: IMPROVING THE EFFECTIVENESS OF MEAS THROUGH ENFORCEMENT OF NATIONAL LEGISLATION Facilitators: Donald Kaniaru, Environmental Lawyer, Kaniaru and Kaniaru Advocates, Kenya Arnold Kreilhuber, Legal Officer, Division of Environmental Law and Conventions, United Nations Environment Programme (UNEP)
Rapporteur: Davis Jones, Associate Director, International Compliance Assurance Division, United States Environmental Protection Agency 1 BACKGROUND
Implementation of multilateral environmental agreements (MEAs) at the national level is critical. Without implementation on the ground, these agreements are only soft law without any meaningful outcomes. National laws are required to implement multilateral environmental agreements by creating the hard law that puts the objectives of the agreement into practice. Different countries have different implementation mechanisms ranging from constitutional provisions, which allow for automatic implementation of treaties upon ratification, to systems that require implementing legislation be enacted before the treaty can come into force. It is important to understand how to put in place the conditions of the agreement in order to make provisions enforceable. The purpose of this workshop was to explore domestic strategies for assuring the full implementation of international commitments. The facilitators outlined three objectives for the workshop: discuss gaps in national implementation of multilateral environmental agreements; (2) identify causes of those gaps; and (3) examine priorities for increasing national implementation. 2 DISCUSSION
Mr. Arnold Kreilhuber opened the workshop with a general overview of the background of multilateral environmental agreements and their national implementation. These agreements were meant to halt or slow environmental degradation, but if they are not effectively implemented, they cannot achieve the goals of the agreement; that is where compliance and enforcement of legal instruments comes into play. In some respects, multilateral environmental agreements are similar to a constitution. Some are aspirational and lay down a framework for implementation through other mechanisms, while others are much more specifically designed to address problems at the national level. Despite spending lots of time developing capacity and political buy-in, if the conditions of the agreements are not successfully enforced, implementation will be weak. Environmentalists have not always been able to convince society of the benefits of multilateral environmental agreements and other environmental laws. Many benefits exist, and the results can potentially play a huge role in greening the economy. But adequate implementation means effective legislation and national implementation. Mr. Donald Kaniaru discussed Kenyas tools for implementing these agreements. Under the new Kenyan constitution (August 27, 2010), international law is accepted as national law; if a treaty has been ratified, the constitution makes it an integral part of the national legal system. Because of this condition, the national courts can be
used as another non-legislative instrument. Courts can be forced to decide whether the agreement has legal bearing in the country and, in some cases, court decisions mandate that the government should implement agreements that the country has ratified despite the lack of implementing legislation. Dr. Professor Michael Faure asked whether we should only examine the ineffectiveness of a treaty due to lack of implementation at the national level, or extend the discussion to limitations of the implementation of the treaty due to the lack of compliance with national laws that may be in place, but are not enforced. Mr. Tseming Yang added that many nations that sign into treaties may enact national implementing legislation, but they lack the underlying institutional capacity to monitor and enforce those laws. Determinations of compliance with multilateral environmental agreements usually only examine whether countries have enacted legislation, not whether there is compliance with that legislation at the national level. Once a country has ratified and created domestic legislation, only part of the hurdle passed. To fully implement the agreement, the country must utilize all enforcement and compliance mechanisms, which may take a while. In the meantime, compliance may be low. Capacity building should not be left to the end of the process, but must be integrated before ratification through to implementation in an ongoing way. Mr. Arend Kolhoff cited the need to better define effectiveness. Data are required to determine where gaps exist, where countries are short of national implementation, and where there are problems with the multilateral environmental agreement. Targets and benchmarks should be developed for nations to evaluate their own implementation. At the same time, developing targets and benchmarks at the regional level can be more effective than either the national or global level, as countries are more likely to respond to pressures from their immediate neighbors and see that pressure as more relevant when it originates closer to home. Signing onto conventions brings with it a certain obligation, and it does require some commitment to implement the terms of the agreement. Often implementers of the agreements are at a different level or organization than the negotiators, and they cannot do it alone. They often dont have the skill level internally, and lack the organizational ties to other institutions that could assist. Capacity building must be institutionalized and brought into the basic agency curriculum, not added in later. Implementers dont need to know the intricacies of the agreement, but do need to know what they need to do to ensure compliance and where to go to get further advice. The successful implementation of the Montreal Protocol was a result of establishing and using the multilateral fund. This provided a funding mechanism for many countries to make progress. Otherwise, many countries may sign into an agreement with no mechanisms to implement. Funding must be made available to effectively implement agreements where there are weak institutions. Countries and decision makers need to understand the benefit of the international agreement before and after signing into the treaty. Otherwise, people see the multiple
agreements as an effort of the international community to push themselves into national governance. Again, an advantage of the Montreal Protocol was that there was clear, understandable scientific evidence of the problem and a straightforward solution that could convince people of the benefits and utility of the treaty. Audits have shown that how well multilateral environmental agreements are implemented, and whether the implementation was effective at reaching the objectives usually depend on political and societal will.1 One can always complain that the wording is not clear or there is not enough data, but where there is strong political will, the terms of the agreement can be met. There are always examples of success to counterbalance the problems, but they are not always well publicized. New institutions to implement multilateral environmental agreements are not always the solution; existing mechanisms and expertise should be utilized rather than create new structures. However, sometimes new areas of concern may require the development of new expertise and institutions to implement solutions, but that is best done within existing frameworks. In addition to traditional inspection/enforcement schemes, implementers should consider the social aspects of national enforcement, e.g. naming and shaming, or black listing violators in additional to traditional sanctions. Transparency and public participation is also important, but there is often no good mechanism to get objective information out to public. 3 OUTCOMES
Workshop participants agreed that international agreements are only effective when implemented through legal mechanisms at the national level, and that those national legal mechanisms are enforced to ensure compliance with domestic law that ensures the outcomes of the treaty. Particularly in the run-up to the 2012 Rio + 20 conference, participants called on INECE and the enforcement community to emphasize that without effective compliance assurance at the national level, the effectiveness of multilateral environmental agreements would be severely limited and they would not reach the expected environmental objectives. WORKSHOP D3: DEVELOPING ENFORCEABLE REQUIREMENTS Facilitators: Tseming Yang, Deputy General Counsel, Office of the General Counsel, United States Environmental Protection Agency Do Hoang Oanh, Deputy Head, Planning Division, Department of Natural Resources and Environment, Vietnam
See INTOSAI, Coordinated International Audit on Climate Change; INTOSAI, Auditing the Government Response to Climate Change; and INTOSAI, Auditing the Implementation of Multilateral Environmental Agreements (MEAs): A Primer for Auditors.
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Rapporteur: Anna Louise Wolgast, Judge, Environmental Appeals Board, United States Environmental Protection Agency 1 BACKGROUND
The purpose of this workshop was to provide for an interactive discussion of core elements of sustainable development law and environmental governance institutions. 2 DISCUSSION Mr. Tseming Yang opened the workshop by discussing the need for clarity of laws and regulations that are practical and implementable. He noted that the question authorities must carefully evaluate is how to translate broad norms and aspirations into rules that regulated industries can follow, citizens can understand, and inspectors can implement. He stressed that clarity of the language of the requirements is key, but also that capacity issues also can impede enforcement. Ms. Do Hoang Oanh noted that the government partnering with regulated industries reduced cost of compliance and increased the compliance rate. Ms. Ronke Soyombo offered that less industrialized countries must capture the small and medium size entities since they have significant environmental cumulative impact. Mr. Jonathan Allotey agreed and added that, where there are limited resources to go into the field to inspect emission sources, the authorities must rate facilities by their degree of compliance. These ratings can then be published in the newspaper and on the web identifying those who are good corporate entities. Ms. Martha Aldana gave examples of how clarity of regulatory language is key. She described a mining regulation that required that companies have systems for dust suppression, with no language about implementation. This contrasted with another requirement that the conveyance belts transporting mined rock must be covered to reduce dust, which was enforceable. Mr. Randall Lewis spoke to the necessity for due diligence by First Nations authorities of any company that wants to do business within the Indian lands in terms of exactly what the business activity will be and what impact it will have on tribal lands and its people. He noted that the First Nation also works with the federal government, and may sue the federal government if violations are not being enforced. Ms. Oanh added that, in Vietnam, the Department of Natural Resources replaced monitoring and reporting requirements to a form that focused on the most polluting industries and reduced the parameters reported. This was accomplished by working with Australian experts to draft a form and then bring in business entities as well as persons from the ministry to determine if the important information from the most polluting entities was being captured and also, from the business entities perspective, if the form was clear and could easily be completed. The form
reduced the costs of compliance of the regulated businesses. Also, the form reduced corruption because the form went directly to the Department of Natural Resources and did not pass through middle-tier compliance officials. The workshop participants discussed the need for clarity in regulatory requirements, as well as the need to have requirements that in fact can be complied with. The permitting system of the United States Clean Water Act provides an example of shifting the compliance burden back to the company in the form of self reporting. The group also discussed using international scientific studies as a basis for regulation citing the example of lead. Ms. Maureen Mitchell discussed the need to involve stakeholders in regulatory development and the need of regulators to make sure regulations are SMART -- specific, attainable, relevant and trackable. Alternative methods should also be considered, and the context of the resources of the country has to be taken in to account, since sometimes incentives can achieve positive results. WORKSHOP D4: ENFORCEMENT OF ENVIRONMENTAL IMPACT ASSESSMENT REQUIREMENTS Facilitators: Susan Bromm, Director, Office of Federal Activities, United States Environmental Protection Agency Arend Kolhoff, Development Co-Op, Netherlands Commission for Environmental Assessment Rapporteur: 1 Robyn Bartel, Professor, Geography & Planning, University of New England, Australia
BACKGROUND
Environmental impact assessment (EIA) forms a critical substantive and procedural step within the planning and development decision-making control systems of many nations. The major issue for environmental compliance and enforcement of EIA is that conditions placed on consent are infrequently followed-up. Compliance and enforcement is hampered by lack of follow-up monitoring, as well as by the lack of resources undermining the EIA process itself. The purpose of this workshop was to provide an opportunity for participants to explore common enforcement challenges to EIA development and follow-up and to build consensus on key principles for improving compliance in the EIA process. Workshop participants were asked to exchange experiences and identify lessons learned and best practices for enforcing EIAs. 2 DISCUSSION
The discussion focused on national examples and case studies and identified four major issues for environmental impact assessment (EIA) and environmental
compliance and enforcement and the achievement of the goals of environmental quality and sustainability. The four interrelated issues were: (1) lack of monitoring and enforcement; (2) lack of staffing and lack of experience; (3) quality of environmental impact statements; and (4) particular EIA issues. In terms of the lack of monitoring and enforcement, participants noted that there is a much greater focus required on development rather than on monitoring and follow-up. All discussants had examples from their regions and nations to illustrate the paucity of enforcement. In a study of 16 Asian nations, EIA was demonstrated to be deficient in at least one aspect. The report demonstrated that it was critical for developments to be followedup to ensure that mitigation measures were in fact implemented and that these had the intended impact in terms of reducing deleterious environmental consequences.2 In Kenya, similarly there is no follow-up of the conditions once a license has been issued. In Ghana there are requirements that if a developer is not compliant then they must undergo an audit. However, in reality, this never occurs. There are also requirements for regular reporting, but these are also not enforced. In the United States, mitigation measures identified in an EIA are not directly enforceable. They can only be enforced when they are incorporated in a permit or other legally binding document, which may not always happen. In Canada, the Auditor-General is due to deliver a report identifying compliance and enforcement as a major weakness. In Peru, if it becomes apparent that there is large variance between the forecasted impacts and the actual consequences, there is the power to either stop the project or request an updated EIA. In practice, however, this power is never exercised. To identify the appropriate solutions for deficiencies, it was noted that it is first necessary to identify why follow-up is lacking. Monitoring in particular was nominated as a key area requiring attention. A number of innovative approaches were proposed including a polluter pays approach to monitoring. As on-ground inspections are required, perhaps the emphasis should be placed on the developer to record conditions and to nominate how developers are going to meet and discharge requirements for environmental sustainability. Conditions should compel developers to provide information and a failure to do so would constitute a breach (leading to the requirement for effective enforcement to ensure compliance with such requirements). It was also noted that, to ensure environmental sustainability, there was a need to collect baseline data pre-development. All of the impacts of a development need to be monitored, not just those apparent from the EIA and the actual impacts need to be documented as well as ones overlooked or not anticipated by the EIA. To allow for EIA to address the difference between prediction and actuality, there could be scope
See ADB and AECEN, 2010. Regional Workshop on Environmental Impact Assessment in Asia: Good Practices and Capacity Needs, ADB Headquarters, Manila 9-10 June 2010.
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to give provisional permission and then operational permission later, reviewable at intervals, instead of sticking with the original pre-development stage assessment. For larger projects, operational performance monitoring also could be required. Ghanas response to the issue of lack of monitoring has been to introduce an environmental performance rating system, which assesses the full life cycle of development and, which requires this to be disclosed. This can provide incentives for good behavior and also promotes data collection and transparency. Discussants also underlined the need for current powers to be implemented and enforced. For example in Peru five year updates should be produced as required and current powers utilized for major projects. Discussants also called for third-party input, including citizen monitoring and the private sector. For example, the role of multilateral banks was discussed. In Laos, for example, multilateral banks were insistent in applying EIA and serious monitoring during construction of the Nam Theun II hydro-power dam project. There was a downside however, since repeated monitoring reviews demanded by the World Bank and the Asian Development Bank were costly exercises, which had counterproductive input. The Laotian government considered the intense monitoring as too costly and overdone and as a consequence monitoring was decreased. In terms of lack of capacity, participants noted that even if all the necessary processes and requirements were in place, effective enforcement would be a challenge for many nations. Capacity was identified as a major issue with regards to all stages of EIA including production, assessment, approvals/conditions, followup monitoring, and enforcement. Capacity was identified as lacking in terms of sheer human resources as well as the requisite skills and knowledge by the EIA administration as well as the low quality of EIA consultants and a weak civil society in many countries. To target limited resources it was agreed that thresholds were important to maximize outcomes. Larger projects should be the focus, although the cumulative effects of smaller projects are also important and the complexity of large projects may be a challenge for effective EIA. Strategic targeting however, if successful, can form the basis for a justification for extended resourcing. It was identified that there is a need to be innovative at every step of the process, as compliance and enforcement always needs to be a step ahead. In order to do this proactively rather than reactively, it was identified that there may be many opportunities for capacity building and sharing between INECE and International Association for Impact Assessment (IAIA) and the regional networks of INECE and IAIA. Related to lack of capacity was the quality of environmental impact statements. A study of 16 Asian nations identified problems with the quality of assessments, including a failure to consider alternatives. Participants noted that the quality of
environmental impact statements is affected by the lack of experienced consultants and, in some cases, the deliberate selection of less objective or competent consultants. Corruption and bias were identified as considerable issues, with favorable environmental impact statements, and approvals in some cases able to be bought. Solutions to improve the quality of environmental impact statements included a registration system for EIA consultants, as well as an EIA checklist, and sectorbased guidelines. Also integration of agency responsibilities, between approval and enforcement, could help improve environmental impact statements. In terms of particular EIA issues, the workshop discussants identified that there may be a pro-development culture of EIA, where it is viewed as a procedural necessity with little substantive impact since consent is viewed as the desirable norm. Where and when this culture predominates, EIA may be disregarded and forgotten once consent is obtained. The EIA process, although complained about by developers for the time and delay it causes, may also be routinely factored in as a cost of doing business rather than as an opportunity to consider alternatives. Achievement of environmental sustainability may be hampered where EIA is defective, while at the same time it is being generally perceived as having guaranteed that environmental impacts have been considered and allowed for. For example in Kenya, local banks will not loan money for a project unless an EIA has been conducted. 3 OUTCOMES
There were three major recommendations from this workshop: 1) Focus environmental compliance and enforcement on projects that are subject to EIA. All participants emphasized the importance of improving environmental compliance and enforcement for projects that have been subject to EIA. In countries where inspection and enforcement is weak, it may be effective to focus on those projects that have been subject to EIA. Harnessing of civil society forces may also be facilitated. 2) Use regional networks of INECE to improve EIA in collaboration with the International Association for Impact Assessment (IAIA). There would be great benefit in INECE, particularly on a regional basis and drawing on the Asian network experience, working with IAIA. For example, IAIA has developed a scorecard to use to assess the efficacy of EIA, which could be employed to identify deficiencies in future EIAs. Regions could report back at the next INECE conference on what progress has been made once this approach has been adopted. 3) Use banks and multilateral development banks to assist: There are further opportunities to access funding from the Asian Development Bank for the development of a compendium of EIA procedures in the region and a clearinghouse
of best practice and to implement twinning arrangements to improve capacity. AECEN will host a regional workshop on mainstreaming adaptation in EIA (e.g., climate change) in October 2011. Results from such initiatives could also be reported at the next INECE conference.
Track E: Non-traditional Approaches to Compliance91
TRACK E: NON-TRADITIONAL APPROACHES TO COMPLIANCE WORKSHOP E1: COMMUNICATION STRATEGIES AND BEHAVIORAL CHANGE AS TOOLS TO PROMOTE COMPLIANCE Facilitators: Dr. Paul Leinster, Chief Executive, Environment Agency for England and Wales Paul Bledsoe, Senior Advisor, Bipartisan Policy Center, United States Liam Cashman, Deputy Head of Unit, Compliance Promotion, Governance and Legal Issues, European Commission, Belgium Eugene Mazur, Project Manager, Environment Directorate, Organization for Economic Co-operation and Development (OECD), France John Merritt, Chief Executive, Victoria State Environmental Protection Agency, Australia Rapporteur: 1 Mr. Rob Morris, Better Regulation Manager, Scottish Environment Protection Agency
BACKGROUND
Promoting compliance offers significant benefits to environmental enforcement organizations as they confront the formidable challenge of assuring compliance in a resource restricted environment. This challenge is best addressed through a mix of voluntary and compulsory approaches with communication strategies playing a vital part in both. In this workshop, participants explored the advantages and disadvantages of different approaches and exchanged examples of good practice. The goals of the workshop were to: (1) identify what good practice looks like and to establish key principles for communication strategies; (2) discuss lessons learned and list criteria and mechanisms leading to success; and (3) share and report experience and explore possible outcomes. 2 DISCUSSION
A number of key principles and success criteria for communication strategies to be effective were identified as organizations focus on achieving positive behavior change and compliance promotion. Several organizations said that different approaches had to be adopted with those who wanted to comply and needed assistance and those where a harsher message was needed to address illegal activity. Using surrogates to deliver the message, particularly to skeptical and/or
inaccessible individuals or groups was flagged during the discussion. In addition, being prepared to exploit the self interest of businesses to drive a sector-wide improvement in compliance was viewed as being an effective option in certain situations. Other common factors emerged from the group discussion, including: the importance of identifying and understanding the target audience; keeping the message simple; being prepared to repeat the message over and over; being open to the route of communicating to the intended recipients. Mr. Paul Bledsoe stressed the importance of building communication into compliance and enforcement programs and that one of the key audiences was the policymaker. Demonstrating that environmental regulators are working in costeffective and efficient ways is essential and communication strategies can help show this. Publicizing the fact that treaties, policies, and legislative requirements are being complied with, or not, is a big part of this as policymakers could be a skeptical audience. It was stressed that communicating with the business community, who might otherwise think that other businesses were not receiving adequate regulatory attention, was also important. Mr. Liam Cashman provided the context for, and the role of, the European Commission in communicating with 27 member states with 500 million citizens and a mature body of 50-60 key environmental texts. Many different communication techniques were required to achieve results and he cited the European Commission Annual Bathing Water Report as a good example of where monitoring data and compliance information was communicated publicly. This report attracts a lot of media interest each year and acts as a driver for compliance. Alongside this form of reporting on Directive requirements, the Blue Flag Award Scheme acted as a voluntary, and complementary, approach to promoting beach use. Dr. Paul Leinster responded by saying that the Bathing Water Report was indeed influential in member states. Similarly, reporting on compliance with European Union Noise and Air Directives provided opportunities to communicate using mapping techniques to engage the public. There were challenges in ensuring confidence in the monitoring data and reporting more speedily and, ultimately, trying to do so in real time. Making such information accessible and understandable to people was a key challenge, as was being more proactive with dissemination. Importantly, evidence-based approaches were critical to compliance and enforcement. The Commission has used techniques that ensure transparency and an evenhanded approach to reporting how member states are doing in implementing legal requirements. Scoreboards were a simple way to show how each country is performing in completing key tasks. Three icons an egg, a fledgling and a mature bird are being used to show progress and have introduced an element of competition. The use of press releases relating to infringements is part of a systematic approach to attracting press interest.
Mr. Eugene Mazur referred to the Organization for Economic Co-operation and Development compliance assurance publication in which an inventory of tools for promoting compliance was set out, including effective communication strategies. There are many different ways to organize and target specific groups, directly or indirectly, by the regulator or via a third party route. In the United States and United Kingdom, much information is provided by government agencies via the web and an example of this is the NetRegs site in the United Kingdom. Other means of compliance promotion included being exempted from inspection, for example, if a business had an Environmental Management System or was certified to conduct environmental management and assessment. Benchmarking of environmental performance and considering economic incentives were other approaches. It was stressed that small and medium sized enterprises are a particular challenge in terms of designing regulatory interventions but also for communication strategies. The Organization for Economic Co-operation and Development is studying this topic area and is working with the Scottish and Irish Environmental Protection Agencies and the Environment Agency for England and Wales. When deciding on how to target regulation, compliance monitoring and compliance promotion is required alongside deciding on success measures. Some of these would include how efficiencies might be generated for regulated operators and the regulators themselves. Green growth and the greening of the economy were viewed as opportunities for communicating good practice. Mr. John Merritt has a background in occupational health and safety and provided the example of Work Safe British Colombia, which provided a very clear brand and message that others have followed (e.g., Work Safe Victoria). Branding is critical for environmental regulators because results are only achieved by effective leverage. There are major challenges in getting communications right because when something bad happens there is equal attention given to the role that the regulator plays as is given to the polluter. As such, environmental agencies need to invest in their brand and how they are seen so that the work they do is clear, visible, and understood. There are opportunities to market the fact that environmental agencies are taking responsibility for making things better. Communications has a major role in terms of energizing and engaging environmental agency staff, many of whom are very enthusiastic about what they do. Maintaining this can be difficult as people want to make a difference and have found it difficult to do so in situations where the public has lost trust in its regulator. Being proactive about community engagement and inviting communities to come and talk to the Environmental Protection Agency had worked very well in Victoria. Communities taking one step towards the agency means that they understand what is being done and get an impression of the work the agency does on their behalf. The public want environmental agencies to do a good job and this has a powerful
effect on the confidence of staff. Mr. Merritt stressed that good businesses also want good regulators and that they welcome regulation that was proportionately and effectively applied. Being honest and open and reasserting the fact that agencies care for the environment is central to making communication strategies effective. After this discussion, Dr. Leinster, identified some key questions for the group: Do we as compliance and enforcement agencies invest enough in communicating a brand? Are the communications we undertake understandable to the target audience? Do we use the data that we hold as compelling evidence in such a way as to maximize the impact of our communications? What about nudge and social marketing? Can that help? Should we do more to use social networks to allow for quicker routes to and from citizens? If we use third party inspectors how can we convince people they can be trusted? Finally, we shouldnt waste a good crisis and how can we ensure that we are ready to increase the impact of our communications at such times? Mr. Bledsoe emphasized that keeping messages clear, simple, and consistent is a major part of effective communications. Staying on message and repeating these time and again is vital. Lessons learned from recent environmental disasters had clearly indicated that agencies should not communicate until the facts are known and have been verified. Ignoring this key step early on in a crisis can have significant impacts on the reputation and public credibility of government and its agencies. Mr. Durwood Zaelke asked for experiences in using others to carry the message and Mr. Bledsoe stressed that it was very important to have advocates to speak on your behalf. Finding surrogates who share a lot of the basic values with you can be a good way of communicating to the more skeptical audience. Mr. Brahim Zyani commented on how compliance could be promoted via educational institutions who could clarify the role and limits of environmental law. This was supported by a colleague from the Asian network as compliance promotion fills an important gap, particularly if you do not know how many sites or businesses needed to be regulated. Compliance Assistance Centers in Asia, for example in Laguna Lake, had helped to improve compliance where operators had sites below the legal threshold for control. Programs and initiatives had been implemented including rewards and rating and data collected on outcomes. Choosing the right tools for the sector concerned (e.g., compliance assistance for some and inspection and enforcement for others) was an important lesson. Mr. Shakeb Afsah outlined experience in Indonesia where a company rating scheme had been used. The standards expected are outlined to companies but with limited scope for inspections. This meant that communication strategies had been designed to work on the basis of honor and shame in order to have the desired effect on behavior. Public awareness, although raised, seemed passive and did not lead to actions whereas the media stories prompted managers to respond.
Internal disclosure within companies was another technique used in Ghana with early stage discussions aimed at breaking the ice. Mr. Jonathan Allotey indicated that this had helped to clarify roles in companies and influence processes to improve compliance in the mining industry. The notion of the market rewarding the progress was a powerful and on-going influence. Mr. Robert Robichaud mentioned that compliance promotion is done by one set of people in New Brunswick and inspection by another group. The principal incentive to companies is to continue to trade and inspectors were there to verify that the law was being complied with. Recognition schemes could underpin this approach. Mr. Patrick Igbo said that dealing with the fast and expanding nature of telecommunications complaints from local residents in Nigeria was a challenge. The option of a certificate of compliance or non-compliance had been considered but operators had protested at sharing costs. The group suggested holding a strong enforcement position on this to get cooperation. Mr. Mazur said that investing in compliance promotion can be a resource saver. Checking compliance needs to be accompanied by compliance assistance and vice versa. If agencies only do compliance monitoring, they will not influence the behavior of operators who do not know how to comply. Ms. Catherine McCabe mentioned the Performance Track scheme in the United States and how company executives who got such awards were very enthusiastic about receiving them. Non-governmental organizations had, however, been critical of the scheme for being self-selecting on the high performers and an anti-awards movement had emerged. Dr. Ray Purdy referred to a study of the use of new technologies and compliance behavior. Farmers were asked of their view of the use of satellite imagery and what the perceived level of surveillance was. This study had highlighted the reality versus the perceptions with some quite marked differences. The main principles that emerged from the discussion in terms of effective communication strategies were summarized by Dr. Leinster as being to: a. Identify the target audience and the type of messaging required. b. Identify the best carriers of the message to the target audience. c. Keep the message simple, straightforward and consistent. d. Repeat the message again and again. e. Be open to and select from a wide range of communication tools. f. Innovate in how to convey the message. g. Seek feedback from both the target group and key parts of the communication chain and use this to build more effective forms of communication. h. Use timely and easy to understand scientific and enforcement data (compelling evidence) to add force to the message. i. Communicate what is done and is of value to society. j. Ensure openness but avoid communicating facts before they have been verified. k. Use the power of self-interest to influence the behaviors of regulated business.
OUTCOMES
The workshop generated a list of principles and key issues, below, to be considered as part of communications strategies as tools to promote compliance: a) Embed communications experts into compliance and enforcement programs. b) Provide sufficient investment in communications to ensure the agencys brand is understood and valued by stakeholders. c) Consider both compliance and non-compliance verification as opportunities to communicate delivery (or non-delivery) of environmental policy goals. d) Be imaginative about how the message is conveyed and consider using surrogate spokespeople as advocates to reach particular audiences (especially skeptical ones). e) Explore the use of published ratings for regulated businesses as these can really focus attention on performance and actively engage managers in progressing compliance. f) Work with communities and be open with them about problems and explain what environmental compliance and enforcement work is being carried out for them, with whom and on what fronts. g) Get the regulated site to talk directly to the community (i.e. do not be seen as the apologist or advocate of the site). h) Focus efforts on the worst in class in order to drive an improvement in a sector as a whole. i) Collect the right data and ensure it is robust and verified before using it as part of planned communications. j) Make sure that voluntary public disclosure has clearly defined principles and incentives that encourage participation. k) Link compliance and enforcement messages to a market or competitive advantage. An example of this would be food labeling and environmental stewardship where customers are choosing to support particular growers. l) Learn from other regulators and build capacity. This includes the development of and testing of novel toolkits. m) Be prepared to take the credit for environmental improvements or where progress has been made in protecting the environment and/or human health even if this may not entirely be down to your agencys efforts. n) Commission studies to identify best practice and look more closely at how to influence and change behavior in favor of compliance. o) Be ready to promote messages when external circumstances provide the right communications climate. p) Publicly available performance information and benchmarking data can deliver improved performance. WORKSHOP E2: E-WASTE MANAGEMENT Facilitators: Paul Hagen, Principal, Beveridge and Diamond, P.C., United States Robert Heiss, Director, International Compliance Assurance Division Office of Federal Activities Office of Enforcement and
Compliance Assurance, United States Environmental Protection Agency Jeannine Evelina Pensaert, Coordinator, Directorate-general Environment- Inspection, Federal Public Service Health, Food Chain Safety and Environment, Belgium Nancy Isarin, Environmental Consultant, Ambiendura, Portugal Lawrence Anukam, Director, Planning and Policy Analysis, National Environmental Standards and Regulations Enforcement Agency (NESREA), Nigeria Rapporteur: Chris Booth, Consultant, Environment Regulation, United Kingdom 1 BACKGROUND
The purpose of this workshop was to explore compliance models for electronic waste management, focusing on takeback programs, and looking specifically at managing the waste chain after collection, including through corporate stewardship, voluntary certification programs, and other mechanisms. The facilitators framed the workshop around two discussion areas: (1) to share experience in electronic waste management, and (2) to identify and explore opportunities for regional cooperation on responding to electronic waste issues and possible contributions of INECE. 2 DISCUSSION
The facilitators introduced the session by referring to a world map indicating where legislation was in place or proposed specifically addressing electronic waste (e-waste). Paul Hagen noted that legislation promoting extended producer responsibility for electrical and electronic products started in Europe and now many countries have national or sub-national laws in place. Other countries are in the process of implementing legislation. Nancy Isarin discussed the European Union Directive on Waste Electrical and Electronic Equipment (WEEE). This Directive promotes the collection and recycling of e-waste and requires extended producers responsibility. The legislation includes take back schemes as a key part of the arrangements to deal with e-waste. However, studies indicated that only about 35 percent was actually collected and brought into the schemes, so the Waste Electrical and Electronic Equipment Directive is being revised to address this problem. The other 65 percent is either being collected by charities, being recycled unofficially, or entering illegal channels. A study in the Netherlands showed that 60 percent of retailers sold collected discarded equipment to illegal brokers who did not have authorization. Most of the waste is exported for re-use, repair, or metal recovery, but in practice the equipment is not tested
for functionality before being exported. It is clear from the studies that practical implementation needs improvement. There are three issues: unclear legislation, lack of awareness, and lack of compliance monitoring. Jeannine Pensaert said that Belgium is a transit country for exports. In Belgiums seaports, the stream of e-waste is so big that they have to use every tool and power to stop illegal shipments. Of all containers of waste passing through Antwerp harbor, half of all waste is e-waste. Belgian authorities try to send improper or illegal exports of e-waste back to the country of origin, but that requires co-operation. Belgium sometimes recycles on the spot if the waste is too dangerous to return. Another problem is that the definition of what is used product and what is properly classified as e-waste is challenging. Some European Union guidance is available, but it is not legally binding. Pending amendments to the Waste Electrical and Electronic Equipment Directive are expected to provide needed legal authority. Robert Heiss made the following five points and posed a challenge to workshop participants. In the United States, President Obama has chartered an inter-agency task force to respond to e-waste issues and tit will announce proposals in the summer of 2011.3 The international office of the United States Environmental Protection Agency has funded a $2.5 million dollar grant to United Nations University for a project to look at e-waste flows, including those out of United States. Also the Environmental Protection Agencys international office has assisted African countries with capacity building on e-waste. At the federal level, regulation is limited to controlling exports of cathode ray tubes. Finally, the Environmental Protection Agency has promoted a life-cycle approach, such as design changes, using recycled material in products, considering recycling responsibilities after use, and other tools. It has encouraged the use of recycling standards such as the Responsible Recycling standard and the Basel Action Networks E stewards programme, which has more stringent requirements. Mr. Heiss concluded with his challenge by noting that innovation in the development of electronic products is continuing to happen at a revolutionary pace, not an evolutionary one. Consumers are demanding upgraded products every few years, which means that waste is arising incredibly quickly and becoming obsolete only by virtue of consumer expectations. Reuse by secondary consumers in the country of original consumption could lengthen useful life and beneficially delay the conversion of products into e-waste. Lawrence Anukam said that there is a big demand for electronic equipment in Nigeria. The level of importation of near end of life equipment was getting higher and higher. But it turns out that most of what arrives in Nigeria is junk end of
The report, National Strategy for Electronics Stewardship, was released in July 2011 and is available at http://www.epa.gov/epawaste/conserve/materials/ecycling/taskforce/docs/strategy.pdf.
3
life. Several years ago, Greenpeace put a tracer in an old TV set and it was traced to Lagos, Nigeria, where there is a big market called computer village. This report raised the level of awareness of the issue. There is now an Abuja platform on e-waste. This is a communiqu on how to tackle the problem with things like buyback, pre-informed consent, and roles of government. However, there is still an incentive to export e-waste to developing countries because secondhand products have value. In Nigeria, the government has developed a guideline for businesses that are importing used electronics. A registration system is used to educate the business community to bring in only what is of use and not junk. Information exchange on things like waste shipments has resulted in identifying and returning five ships. When a ship arrives, it is checked and there are legal powers now for ships to be forfeited to the government. Participants noted that there is a financial incentive to evade the legal requirements due to the value of metals in e-waste and also because people will pay for e-waste to be removed. The legitimate route is expensive and cost avoidance creates an incentive to dispose of the waste illegitimately. Consequently, there are many informal markets which have sprung up. There are several legal developments in Canada. Several provinces have enacted e-waste legislation. Since these have been put in place, Canada has noticed a downward trend in exports of e-waste out of the port of Vancouver (where most of illegal e-waste was being exported previously). However, further investigations are being carried out to see if this is a result of the new facilities for e-waste or whether the illegal trade has been diverted to other routes such as via the United States to Mexico. In England and Wales, the Environment Agency is coming to the conclusion that you cannot enforce by inspection. Even if you find a container, it will be dressed with the first meter or so of good quality electronics for re-sale, behind which is the junk. So the Environment Agency is using intelligence-led enforcement, which has resulted in a high success rate for inspections. The Japanese government has similar initiatives to those adopted in North America and Europe because some Japanese waste is ending up being exported to the Philippines, for example. Participants also discussed broader issues of e-waste such as health, child labor, and opportunities for identity theft from information on computers hard drives. 3 OUTCOMES Participants agreed that producers of electronics and electrical equipment should be accountable when their products become waste. However, it was noted that there are intervening actors, especially retailers, the informal sector, and recyclers who wish to take ownership of end-of-life products in an effort to capture their residual value. It was suggested that the use of third party accreditation schemes
to recommend certain facilities and then allow a green passport to them may be a useful strategy. Participants agreed that it would be useful to have an overview of all the e-wasterelated projects and initiatives, including on capacity building and awareness raising, and suggested that the INECE Secretariat send out a questionnaire asking for information on domestic and local programs. Participants also suggested that sharing non-confidential information collected during inspections may help increase the capacity of regulators responsible for e-waste management. For example, information about companies that acted illegally in one country would be of use to other countries. There is a role for Interpol, INECE, and the regional networks to support information exchange. INECE might seek to be recognized as a key partner in enforcement capacity building in the forthcoming Basel COP decisions on e-waste to be taken at the 10th Conference of the Parties in Cartegena, Columbia, in October 2011. WORKSHOP E3: ALTERNATIVES TO CRIMINAL PROSECUTIONS TO PROMOTE COMPLIANCE Facilitator: Rapporteur: 1 Paul Leinster, Chief Executive, the Environment Agency of England and Wales Michael Nicholson, Secretary, IMPEL
BACKGROUND
The purpose of this workshop was to provide an overview of alternatives to criminal enforcement, such as administrative approaches, education programs for the public and the regulated community and compliance incentive programs. The facilitator framed the workshop around three key questions: 1. Do judgments at administrative courts provide precedence? 2. Are people engaging with the new forms of social media/technology to improve communications between the regulator and citizen? 3. How do you value the environment and is the link made for citizens between damages and remediation? 2 DISCUSSION
Three brief introductions providing different perspectives and experiences on alternatives to criminal prosecutions were provided by Ed Mitchell, Sigrid Raedschelders, and Jaime Lira. The three presenters summarized their new administrative sanctions regime established in the last few years.
Ed Mitchell told the workshop participants about recent developments involving the introduction of civil sanctions at the Environment Agency (England and Wales). A brief explanation of the relationship between the Environment Agency and the Ministry (Department for Environment, Food and Rural Affairs) and background on how the Environment Agency have relied on criminal sanctions to enforce the law was also given. The Environment Agency has, in the past, been able to give verbal warnings but often then relied on using criminal prosecutions as a deterrent. There has not been much in terms of tools to change compliance behavior in between these two acts therefore the Environment Agency has sought to introduce civil sanctions. Mr. Mitchell said that compliance and enforcement was about changing behavior because one of the companies in England and Wales had been prosecuted with criminal sanctions 66 times in the last six years and therefore alternatives needed to be found. Mr. Mitchell explained the form of the new civil sanctions in England and Wales: a fixed penalty notice; compliance and restoration notices (amount capped at 250,000/approximately US$400,000); stop notices; Enforcement Undertaking, whereby an installation admits to an offence and offers to pay money to restore the environment these actions are published and give the offender the opportunity to change its behavior. Mr. Lira gave a brief overview of his organization, the Chilean Enforcement Agency, noting that the sanctions are not a goal in themselves but a means to compliance. There are three main forms of civil sanctions: self-denunciation, a compliance program (no fine is applied if the operator complies with their compliance program), and a restoration plan (actions taken by operator to remediate damage). Mr. Lira commented on the Chilean Enforcement Agencys use of technology (e.g.,web, email, smart phones, cameras) and the public to help detect and report instances of environmental crime, as well as encouraging citizens to take a more active part in helping to protect the environment. Ms. Raedschelders said that many criminal cases have stalled because of a lack of resources. Two years ago, the Flemish Environmental Enforcement Act was passed enabling administrative fines for all environmental laws. She said that there were two main distinctions in the law: those for environmental infringements where administrative penalties are applied and there is no possibility for criminal prosecution; and those for environmental offences, where an inspector prepares and sends the case to the prosecutor who then decides whether or not to go to court or send it back to the Agency concerned for administrative action. Ms. Raedschelders said that this change had brought increased efficiencies. An administrative court had been set up to handle complaints or challenges to decisions made by the inspectorate. Judge Wright gave some background information on the Vermont Environment Court in the United States that was established 21 years ago. This court can impose remediation orders or penalties to its decisions. She said that often offenders admitted and agreed on the offence, but often disagreed with the level of the fine.
Judge Wright said that judgments made did not provide precedence for future cases though they are all published for the public to see. John Merritt said that in Australia they can apply a commercial benefits penalty whereby a 5 times the amount multiplier benefit is applied. Dr. Leinster asked whether the money from this fine is used to benefit the environment and whether a link is made for communities between the fines imposed and the damage caused, in other words, how do you value the environment? Mr. Merrit said that judges in Australia do not like to be told what to think when it comes to how to value the environment though engagement with them should continue. He added that Australia does not get the high volumes of cases to sufficiently educate and familiarize judges with environmental crime and the damage it causes. As a result they appeal all decisions that they do not feel correctly values the volume of the fine. Inge Delvaux stressed the need to correct and amend behavior of operators as well using sanctions to ensure compliance and enforcement. Mr. Lira agreed and said that the environmental outcome was very important. He said that companies sometimes do not know what they have to comply with and so there is a need to help educate operators too. On the level of fines, Dr. Leinster said that judges sometimes determine the level of fine based in part on the operators efforts at restoration. He added that the Environment Agency will seek to go beyond just restoration and to require environmental benefit. Mr. Merrit said that Victoria States new policy on classification of fines was published on 21 June 2011, which gives an indication of the level of seriousness of the sanctions. Judge Wright said that the Vermont statute has eight factors that determine the level of the fine and that this is separate to remedial actions. She said that often by bringing several similar cases together, even if they are of singularly low importance in themselves, can often show the judge and the public that it is important and that it is a widespread problem that needs tackling public awareness is important. Dr. Leinster asked the workshop group whether technology is being used sufficiently and whether or not the public was engaged with it. For example, from the Environment Agency, Dr. Leinster said that they have worked with others to develop an iPhone application that allows citizens to report incidents, e.g., by taking photos of beaches and bathing waters. Mr. Lira said that it is early days in Chile with regard to citizens participation in reporting on environmental incidents using alternative forms of technology (Twitter, Facebook, etc), despite the fact that they receive phone calls on a regular basis. He said that it is important to give the feeling and impression that the Agency is there to respond to incidents if they come up and that complaints/reports of incidents are published on the website after they have been investigated and verified by the inspector. Marty Roberts asked whether the evidence sent via new technology sources such as Twitter and Facebook can be relied upon. Troy Collings said that agencies should try
to become more familiar and comfortable with new technologies such as these because they are here to stay and that social media is now often used instead of conventional media. Kerri Skall said that it is important to respond to citizens complaints and not allow it to fall on deaf ears in case it risks alienating people and turning away potential sources of information. This has of course the inevitable resource issue challenge in that it often requires more staff to sift through the complaints and ensure they are being dealt with. Mr. Merrit said that media campaigns to inform certain industry sectors on changes to rules can be effective as can using sites such as LinkedIn which targets a specific type of audience such as business executives (in contrast to Facebook which perhaps targets a younger demographic). Jonathan Allotey explained the Ghanaian system of color coding to rate companies compliance. This information is shared with companies. Mr. Mitchell asked whether directors of companies or the boards of companies were approached by inspectorates, for example, a recent case in one area at the Environment Agency highlighted that one third of a particular type of violation were linked to one parent company. Dr. Leinster said that often it can be useful for the Chair/CEO of the regulator to meet with the Chair/CEO of the company to resolve a serious issue of non-compliance. Perhaps even the threat of going up the chain of command can have the desired effect because a mid-level manager does not wish for the high level manager to be aware of their failures. Dr. Leinster asked how we share intelligence on multi-national companies too because often parent companies reside outside your jurisdiction. Ms. Delvaux said that Flanders have held joint meetings with representatives of other inspectorates in other countries to tackle non-compliance of foreign companies. Mr. Roberts asked who was responsible if activities are subcontracted because often responsibility is shifted or avoided. Dr. Leinster said that, on occasion, with joint action/prosecutions, for example with the United Kingdoms occupational safety and health regulator, the Environment Agency can achieve more and get larger fines. Combined with media campaigns, the message can be important to large companies who wish to preserve their image and avoid negative media attention. Mr. Roberts agreed and said that the withholding of certain standards can also help in this case such as ISO 14001 and ISO 9001. Dr. Leinster said that a program of remediation at a company level can also save a lot of time, effort, and resources if that company has a large number of installations in your jurisdiction. Mr. Merrit said that in Australia, there is a bonding system which is a form of guarantee in case a company goes bankrupt and cannot pay for remediation. WORKSHOP E4: COOPERATION WITH THE PRIVATE SECTOR: ASSURING COMPLIANCE WITH CORPORATE ENVIRONMENTAL COMMITMENTS Facilitators: Ed Mitchell, Director of Environment and Business, the Environment Agency for England and Wales Han de Haas, Policymaker, Spatial Planning and Enforcement, Province of Noord-Brabant, The Netherlands
Rapporteur: 1
John Merritt, Chief Executive Officer, EPA Victoria, Australia Chris Booth, Consultant, Environment Regulation, United Kingdom Chris Booth, Consultant, Environment Regulation, United Kingdom
BACKGROUND
The purpose of this workshop was to identify and discuss methods of assuring compliance through cooperation with the private sector, including co-regulation and earned autonomy approaches. The facilitators shared their experiences in employing a variety of alternative compliance approaches and discussed the application and effectiveness of these tools in promoting compliance in a variety of sectors. Workshop participants discussed experiences in their home countries and explored the circumstances in which particular approaches are most likely to be successful. 2 DISCUSSION
Ed Mitchell introduced the session by proposing to explore how we assure compliance with self-autonomy approaches; including how do we decide when these approaches are appropriate and how do we demonstrate to the public that we are protecting their interests and the environment. Han de Haas summarized the European Union Network for the Implementation and Enforcement of Environmental Law (IMPEL) project on compliance management systems. Industrial companies generally are inspected by traditional inspections. The project on company compliance management systems explores how these systems can be used by regulators to assure compliance. IMPEL is looking at companies that have sites in several European countries and have looked at differences in these sites in terms of the use of management systems. The analysis found that the use varies between countries. John Merritt said that the issue of cooperation with private sector has caused Victorias Environmental Protection Agency to encounter some challenges. Earlier initiatives were interpreted by some to mean that the Agency had stopped regulating. Some companies took advantage of this and caused environmental harm. The Victoria Agency is now looking at how to decide where they can take an arms length approach with some companies and where they cannot. The authorities at Victorias Environmental Protection Agency found that 5 percent of companies are recalcitrant, 20 percent of companies will do the right thing, and 75 percent of companies will comply if you tackle the recalcitrant 5 percent aggressively. The Agency has started to require chief executives to sign a statement annually, which says they have complied. After the first year, 90 percent of chief executives signed a statement and auditing results indicate that these facilities are in compliance.
Chris Booth discussed an IMPEL project on complementary approaches to inspections. IMPEL recently completed a survey to identify where non-traditional approaches have been used and whether evaluations had been done to establish their effectiveness. The survey provided numerous examples of complementary approaches but found a wide variation in the willingness to try different approaches. Some countries have only used two or three approaches where as other countries are routinely using a number of different approaches. The circumstances in which specific approaches work and why is not entirely clear from the responses received thus far. Very few of the complementary approaches have been evaluated, although the Environment Agency for England and Wales has recently evaluated a few approaches. Academics confirm that evaluation of individual tools and interventions is very difficult, perhaps liable to bias, and one even says it is meaningless to evaluate individual approaches because there is hardly ever a single driver for compliance. The project is ongoing and a report is due to be published at the end of 2011. Terry Shears said that in England and Wales, the Environment Agency and the National Farmers Union had developed the pig and poultry farm assurance scheme, which applied to farms covered by the European Integrated Pollution Prevention and Control (IPPC) Directive. Farms in the scheme use a certification body to inspect. Supermarkets want assurance that their farm suppliers have good environmental performance, so they want to know the results of the inspections. The Environment Agency inspects in the first year and thereafter the Environment Agency gets its information from the certification body. It saves each farmer 880 if they are in the scheme (through reduction in inspection charges), but they can only be in the scheme if they have good compliance. The National Farmers Union is very supportive of this approach. Mr. Mitchell noted that, in addition to the farm assurance scheme, the Environment Agency had also started to use certification of compliance statements in a few cases. He said that the issues to consider with these types of approaches are: the underlying level of audits that are performed, how to evaluate if there are any better approaches, and the level of public confidence. Maureen Mitchell said that in regulating oil or gas facilities, Canadas National Energy Board relies on the private sector. They condition them to do everything they said they were going to do to get their permits. There are thousands of conditions within all the permits so it is impossible to inspect them all. They get the senior officers of the permit holders to report back that they are in compliance. This has proven very powerful because if they inspect and find non-compliance, then they have a specific person that is accountable. Lee Paddock said that the Clean Air Act in the United States has an executive certification process that a senior executive has to sign. If they falsely declare, then the Environmental Protection Agency can use fraud legislation. Mr. Paddock also explained that the United States Performance Track system required companies
to have an environmental management system, set goals, and report on progress towards goals. Awards were given to top performers. However, this program has been discontinued due to perceptions that it was ineffective. Michael Wall said he is skeptical because such schemes have not been seen to be successful. However, he gave two examples of ones that were successful in the United States. Under the Clean Water Act, there is a very good system of self monitoring. Criminal cases under the statue are usually about falsification of records, which can result in a significant penalty that has a deterrent effect. Also in the United States, the organic food compliance system is done by third party monitors. He is not aware of any cases of United States where food producers are in contravention. This is because there is a big incentive to comply as it provides a price premium to the products. However, on the other hand, Energy Star product labeling has no back up penalties, which has led to some Energy Star products carrying unsubstantiated claims. Rob Morris said that success of such schemes comes down to trust. In Scotland, the Environmental Protection Agency tries to build trust with the regulated community, while at the same time, monitoring for untrue claims. For example, the Agency found that some companies that claim to be green or have environmental management systems have turned out to be non-compliant. Scotland has found success in using other bodies to inspect in agriculture where they integrated their environmental controls with cross compliance inspections, (which gives compliant farmers a big subsidy). However, with pig and poultry farms, they inspected all sites about to come under control under the IPPC Directive. The inspections revealed incidents of pollution, even though the farms had been inspected and certified by insurers to have no negative environmental effects. Mr. Paddock said that regulators need to consider two things: where do you place scarce resources that you do have and where do you have leverage outside the straightforward regulatory system? Mr. Merritt said that if a regulator is going to take accountability for environmental performance into consideration, then the regulator has to give more input into the small and medium enterprises that are not subject to structured oversight regimes. In Victoria, the Agency found that emissions from the bigger companies were overall less than from the smaller companies. The large companies do not have a good record of engagement with the local residents; they didnt publicize a toll free number and system. Now they are asking that of companies and asking they keep a record of the complaints and the responses to these complaints. The Victoria Environmental Protection Agency now publishes the top ten companies who get the most complaints. This incentivizes the companies to improve and it also incentivizes them to set up their own complaint system so the Agency gets less complaints. They are now going back to complainants in order to tell them what has been done to address the various issues. At the Environment Agency, they have a target to reduce the number of sites that get repeat complaints. Ms. Mitchell says
that Canada also spends a lot of time dealing with complaints and they are now encouraging people to go directly to companies. Mr. Booth said that risk ranking schemes are widely recognized as a good way to determine resources but that a different assessment of a companys circumstances and their motivations to comply is necessary to determine how regulators could apply different approaches or let go or allow joint inspection by other regulators. Regulators are less mature in this area, and perhaps that is the next stage in sophistication that regulators needed to work on. Mr. Mitchell talked about the United Kingdom waste industry that had been consolidated. When Environment Agency engaged with senior management of the waste companies, the managers were unaware of the poorly performing sites. This direct engagement resulted in a positive response from the management and was more effective than traditional site based regulation because local managers were not informing their superiors if they had compliance problems. In Victoria they have insisted that when a notice has been served, it has to be given to senior management. This has caused much concern among lower level managers for the same reasons that Mr. Mitchell mentioned above. Mr. Morris indicated that, in Scotland, it was not habitual to look at complaints or to go back to complainants. Now they are taking the problem solving approach, looking at the data to see what the nature of the problem is located. This strategy can help create a clearer and more factual understanding of situations and is enabling the regulators to have more constructive conversations with business. Goal based regulation also was discussed. For example, Ms. Mitchell indicated that, in Canada, there was a big push towards goal-based regulation. This type of regulation has worked in some areas because a lot of their expertise was in industry. Mr. Paddock said that the United States sulfur dioxide cap and trade system was goal-based and successful. In water pollution control, goal-based regulation has been unsuccessful because the best available technology requirements were out of date. Mr. Mitchell provided an example of goal-based regulation. The Environment Agency has given a water company freedom to achieve catchment requirements without necessarily meeting all specific license conditions. This has been applied so far to one company in one catchment. If successful they will expand the program. Scotlands Environmental Protection Agency is undertaking a similar initiative. 3 OUTCOMES
The facilitators concluded by noting that the workshop reviewed tools and good practice for assuring compliance with corporate environmental commitments. Participants agreed that some form of an earned autonomy regime should be part
of environmental regulators toolkit, but that these strategies must be applied cautiously and appropriately. Keys to effectiveness include identifying which businesses have earned trust and ensuring that retain public confidence. Good communications from regulators when they are making these potentially unpopular decisions is vital. Goal-based regulation will be a necessity because regulators cannot keep up with the details needed to successfully manage compliance with numerous detailed standards. INECE should accumulate information on best practices on goal-based regulation. Regulators need to find ways to assess what is motivating business and what drivers are already in place to promote compliance and use this information to identify novel approaches and to get poorer performing companies to become more motivated. INECE could promote further research in this area. WORKSHOP E5: COOPERATION STRENGTHEN ENFORCEMENT Facilitator: Rapporteur: 1 WITH CIVIL SOCIETY TO
Michael Wall, Senior Attorney and Director, Western Litigation Program, Natural Resources Defense Council, United States LeRoy Paddock, Associate Dean, Environmental Law, George Washington University Law School, United States
BACKGROUND
The purpose of this workshop was to explore the compliance and enforcement benefits of cooperating with civil society through the examination of case studies and the identification of good practice. 2 DISCUSSION
Michael Wall, opened the workshop by discussing the prerequisites to citizen participation -- access to information, a legal regime that allows participation, and an avenue to challenge government action or the private sector. He described Principle 10 of the Rio Declaration on Environment and Development, which states that environmental issues are best handled with participation of all concerned citizens, and indicated that from his perspective we have yet to achieve this objective. He asked the participants to consider what can be achieved through civil society and whether engaging civil society can help make the governments work more resilient and more legitimate. Mr. Wall noted that the Natural Resources Defense Councils work in China has helped the Chinese government recognize that organized civil society involvement is a safety value that allows complaints to be raised.
Ms. Mitra observed that citizens can fill a lot of gaps in the context of wildlife enforcement, starting with providing important information that allows the government to do its job. She noted that non-governmental organizations (NGOs) are an important part of the enforcement process but that it is important for NGOs maintain a separate existence from agenciesafter charges have been laid then the enforcement agencies need to take the lead. Once an NGO comes with information, then it is the job of the enforcement agency and the prosecutors to respond to the case. Mr. Allotey observed that western NGOs frequently want to litigate cases but that African culture often favors a dispute resolution process. Mr. Wall noted that, in the United States, there is strong support for citizen enforcement. A recent California study indicates that citizen suits have been helpful in improving environmental quality. Safeguards that prevent abuse of the process in the United States, include standing criteria, the 60 day notice requirement that allows government to preclude litigation, and the opportunity to negotiation settlements. While citizens can obtain an injunction through a citizens suit and the court may impose penalties, the penalties must go to the government. In addition, often in court cases, judges order mediation. However, in the absence of the threat of a lawsuit, there often is not enough leverage for a good settlement. Judge Wright observed that mediation can often address issues that are beyond the scope of the lawsuit which can make mediation a powerful tool for settlement. Mr. Opondo noted that civil society has played a critical role in raising environmental awareness. He pointed out that NGOs can help with capacity building for judges, prosecutors, and lawyers since they often have access to financial resources that the government cannot obtain from foundations. He noted that the Greenbelt Movement has been successful in Kenya. However, Mr. Opondo said that there has not been a good relationship between some NGOs and the government because the NGOs have charged the government with corruption. In Scotland, community engagement has been very helpful. Limited resources to take enforcement actions can result in a lot of complaints unless citizens are involved in the process. For example, in the open pit mining context, regulators largely dealt with these issues. Recently, they have tried to bring all relevant agencies together with community representatives. This has really helped in dealing with questions about this complex mining issue. This consultative process is chaired by an independent third party. Helping citizens understand environmental information is another major effort that can be aided by an easily accessible website. Citizens can be important eyes and ears for government agencies. However, engaging citizens can place more demands on limited resources and there are also some continuous complainers. The enforcement authorities in Melbourne had a bad experience with public engagement because they have handled public involvement badly to the point where it was near hand to hand combat. This experience pointed out the importance of taking public engagement into account early and deciding how to best work
with citizens before major problems arise. In Melbourne, authorities decided that the public interactions were based on three presumptionsactivists were mad, their appetite was insatiable, and the representatives dont really represent the community but are self-aggrandizing. They are now reversing these presumptions, recognizing that the community may have useful knowledge. Mr. Terry Shears pointed out that unless you engage early enough positions become hardened. His agency now engages citizens much earlier when they are developing flood control projects, which makes it easier to implement projects. Ms. Kerri Skelley noted that the Ministry of Environment in British Columbia now requires some companies to fund citizen oversight for some large projects. Mr. Wall noted that one theme is when and how to engage civil society early in the process. Another is how to establish trust between NGOs and government through providing information or technical assistance. Mr. Wall asked also discussed information disclosure. He noted that publicizing information about discharges and about penalties helps public understand that government and the courts are serious which creates a shared value supporting environmental protection. People become quite cynical unless they see actual change. 3 OUTCOMES
Authorities needs to pay attention to strategies for giving citizens better access to what enforcers do, (which requires self-confidence on the part of enforcers). There is a lot of criticism of monopoly regulators (regulators who do not share information or responsibility). There is no easy way to deal with this criticism other than to exercise leadership. INECE could provide some of this leadership by developing good practices for enforcement transparency, citizen engagement with enforcement agencies, and helping enforcement agencies understand how to stay in touch with citizen concerns. This good practice guidance may also include methods for training staff to better work with the public. Finally, INECE may be able to assist enforcement officials in understand good practices in trying to achieve enforcement equity.
Track F: Strengthening Environmental Compliance Institutions111
TRACK F: STRENGTHENING ENVIRONMENTAL COMPLIANCE INSTITUTIONS WORKSHOP F1: ADMINISTRATIVE AND JUDICIAL ENFORCEMENT AND THE ROLE OF GREEN COURTS Facilitators: Donald Kaniaru, Environmental Lawyer, Kaniaru and Kaniaru Advocates, Kenya Anna Wolgast, Judge, Environmental Appeals Environmental Protection Agency, United States Board,
Justice Winai Ruangsri, Senior Research Justice, Environmental Division, Supreme Court, Thailand Merideth Wright, Environmental Judge, Vermont Environmental Court, United States Rapporteur: An Stas, Permanent Secretary, Flemish High Council of Environmental Enforcement, Belgium 1 BACKGROUND
The purpose of this workshop was to provide an overview of countries experience on balancing administrative and judicial enforcement so that response to noncompliance is more proportionate and timely. Approaches that could be used to address the congestion of environmental cases within the court system, particularly by establishing green courts, were explored. 2 DISCUSSION
During this workshop, the facilitators and the experts gave an extensive overview of the way that green courts and judicial enforcement are integrated in their respective legal systems. Mr. Donald Kaniaru gave a comprehensive presentation on how the environment court in Kenya was established and how the court is structured. Justice Winai Ruangsri gave an overview of the activities of the supreme court of Thailand and the way environmental law is taken into account in the Thai Supreme Court as well as the jurisdiction and processes of the green bench. Justice Ruangsri discussed a twinning partnership between the Courts of Justice and Supreme Court of Thailand and the Land and Environment Court of New South Wales (Australia) to help develop new policies and procedures to support
green benches, Over the last two years, the courts engaged in a series of technical exchanges and court visits to support the formulation of new court policies and practices for the environment in Thailand. Thailand has established a new Green Bench at the trial court level, under the Civil Court in Bangkok Metropolitan. Judge Merideth Wright and Ms. Anna Wolgast both gave a presentation on how their judicial systems are structured and how environmental law is integrated. During their presentation, they both posed some questions and proposed key points and issues, including on the pros and cons of a federal and regional system, the level of interest of the judges, training of the judges, capacity building, changing the incentives to follow the environmental law (such as profit and economic benefit), the idea of transparency to create public environmental awareness, the possibility of a geographical restriction of the authority of the green courts, and regional information sharing. Participants asked questions concerning the way judges are appointed in these systems; the experience with the difference in necessary expertise, training and power between tribunals and judges that apply civil sanctions/criminal sanctions and the tribunals that apply administrative sanctions; the enlisting of scientific expertise in green courts; and the difficulty of appointing judges who want to specialize in environmental law. Participants also discussed how to inspire judges to have more understanding of environmental problems and a creative view of how the law can deal with them. Participants also discussed what types of capacity building for judges are most effective. Justice Ruangsri shared Thailands experiences, including its intensive training programs on environmental law and adjudication and including study visits on environmental adjudication to other countries. Mr. Donald Kaniaru, Justice Ruangsri, and Justice Vijender Jain also discussed the important role of green courts and green judges to enforce the environmental law and exchanged experiences and case studies. WORKSHOP F2: DEFINING RESOURCE NEEDS AND SECURING FUNDS FOR COMPLIANCE ASSURANCE Facilitators: Dr. Peter King, Team Leader, Environmental Governance, EcoAsia, Thailand Eugene Mazur, Project Coordinator, Environment Directorate, Organisation for Economic Co-operation and Development, France Shakeb Afsah, Performeks LLC, United STates
Rapporteur: Gerphas Opondo, Coordinator, East African Network for Environmental Compliance and Enforcement, Kenya
BACKGROUND
The workshop focused on the following key issues as framed by the facilitators: How can environmental regulatory agencies justify the costs of compliance assurance programs in order to influence increased resource allocation? How can existing resources be utilized efficiently? What are other potential sources of funding and how can the agencies track and secure these resources? 2 DISCUSSION
The facilitators opened the discussion by acknowledging that funding for compliance assurance programs has always been a challenge. In many instances, compliance may be seen as choking economic growth. For developing countries, the challenge of resources for compliance assurance programs revolves around allocation of the available resources within the regulatory agencies, as well as inadequacy of funding from the central government. It is therefore important that more innovative ways of securing resources be developed and that the limited existing resources are used efficiently in order for the compliance assurance programs to have greater impact. In order to justify the need for sufficient resource allocation from the central and regional governments for compliance and enforcement programs, environmental agencies need to communicate to the wider public the importance of their work, ways in which they are utilizing available resources, the constraints under which they work, and the need for additional resources to achieve environmental protection. It is necessary for agencies to tell compelling stories to the public and to the politicians in order to influence resource allocation. In justifying the need for more resources, the important questions to consider are what is needed and how much is available. Participants discussed strategies for securing more money to finance compliance and enforcement programs. Participants were of the view that if the agency can clearly demonstrate and justify to the budget office how much money is required get the job fully done, then the budget office may consider giving additional funds. Acknowledging that resources are always limited, the workshop participants suggested that the environmental agencies need to use a risk-based approach for resource planning. Resources should be allocated based on potential risk to the environment and human health. It is important to link risk-based planning to the resources of the environment agency. Once facilities are categorized based on risk, available resources should be allocated appropriately. The Organisation for Economic Co-operation and Development (OECD) developed a methodology for assessing resource needs of an environmental inspectorate in a recent project in Moldova. However, its implementation has not yet been evaluated.
Self-monitoring by the regulated community is another important strategy that environmental agencies can employ in maximizing limited resources. However, quality assurance mechanisms must be considered and put in place to ensure the system is not abused. Environmental agencies can also increase the efficiency of inspection staff by implementing a quality management system in order to free some valuable time and resources spent on inspections. Participants were of the view that if elements of quality assurance are built in to inspection programs, then there will be efficiency in terms of time and other resources dedicated to the program. On the legislative front, participants proposed the decriminalization of environmental violations. This is because criminal judicial actions are resourceintensive and consume a significant percentage of an agencys resources. Other means of dealing with violations such as stringent administrative actions should be considered instead. Participants pointed out that there is the need to strike a balance between compliance assistance and enforcement when allocating available resources. A perfect balance would ensure efficient use of the limited resources available. On the topic of other potential sources of funding for compliance assurance, the workshop participants proposed that the environmental agencies could consider cost recovery for their work. For example, the agency could charge a basic fee per visit for inspections payable by the facility to cover the cost of inspection. Another source that could be explored for resources for compliance assurance programs is development support. However, noting that donor funding is often temporary, the participants suggested that the same should be leveraged with local resources in order to ensure sustainability of donor funded programs. The participants were also given a strategy that is being employed in Asia whereby the Asian Environmental Compliance and Enforcement Network (AECEN) conducts surveys of member priorities regularly. AECEN surveys member needs/ priorities and uses this information to lobby the governments to finance the identified priorities. This strategy, however, has not been very successful as a tool for resource mobilization. Another fundraising strategy being explored by AECEN is a joint approach to development partners and donors. In this approach, the participating agencies pool their priorities together and jointly approach potential donors for support. 3 OUTCOMES
The workshop facilitators and participants identified the following recommendations for INECE. INECE could:
Develop tools to help regulatory agencies, especially in developing countries, balance their limited resources in order to maximize the impact of compliance and enforcement programs. Develop tools on innovative ways of mobilizing and raising funds and other resources for compliance assurance programs. Use its existing global networks and forums to communicate with governments on the importance of compliance assurance; the resource constraints faced by the environmental regulatory agencies; and the need for continually improving resource allocation. WORKSHOP F3: OVERSIGHT AND INTERAGENCY COOPERATION MECHANISMS TO ENSURE CONSISTENT ENFORCEMENT IN DECENTRALIZED GOVERNANCE SYSTEMS Facilitator: Eugene Mazur, Project Manager, Environment Directorate, Organization for Economic Co-operation and Development (OECD), France Steve Wolfson, Attorney Adviser, Office of the General Counsel, United States Environmental Protection Agency
Rapporteur: 1
BACKGROUND
Public administrations worldwide have trended towards decentralization over the last two decades. Decentralization of environmental compliance assurance allows for tailored and flexible responses based on local environmental priorities, but also bears a risk of distortion of an economic level playing field by the desire to protect local economic interests. This workshop focused on effective tools of vertical (between administrative levels) and horizontal (cross-jurisdictional) cooperation to facilitate nationwide consistency of implementation of environmental law. The workshop highlighted practice-specific mechanisms that support compliance assurance in decentralized systems. 2 DISCUSSION
The workshop began with Mr. Eugene Mazur noting that most countries have decentralized systems, and that a trade-off exists between having decisions made closer to the problem, as opposed to interference of local economic interests. The facilitator posed questions to the participants -- what degree of discretion is necessary; how to ensure consistency; what coordination and oversight mechanisms are needed; how to ensure adequate capacity? Mr. Mazur noted that a variety of mechanisms exist to ensure consistency: some are vertical (interaction between authorities at different administrative levels) and some are horizontal (ensure coherence between entities at the same level but with different jurisdictions).
One example discussed was the United States Environmental Protection Agency State Review Framework, which uses twelve measures to review state enforcement programs. Examples of the metrics include inspections (Are they timely? Are they looking at the right things? Are they documenting them properly?) and penalty policy implementation (are enforcers retrieving economic benefit + gravity component? Are they documenting how they calculate penalty?). National government response when states do not perform well is an escalation approach, starting with communication, proceeding to increased oversight, increased federal intervention (enforcement), withholding of grant funds (though grants amount to a small proportion of total program costs), and ultimately the threat of withdrawal of authorization to operate the state program. The United States Environmental Protection Agency has mechanisms for reviewing program implementation as well, including review of State Implementation Plans for achieving national ambient air quality goals, backed by the ability to impose sanctions. The review of individual permits can be very important in making sure that an upstream state is considering impacts in a downstream state when deciding on allowable discharge levels. In Europe, the European Commission can take legal action in court seeking fines from Member States that fail to implement the Commissions requirements. One example was an action against France for not having adequate treatment system in Seine River Basin. There is both top down and bottom up pressure. In China, the environmental protection system is supervised by the central government and administrated by local governments with individual units bearing responsibility for meeting national targets. Six regional environmental supervision centers were established to strengthen the link between the center and the provinces. The importance of indicators to evaluate effectiveness of enforcement efforts was emphasized. 3 OUTCOMES
The workshop resulted in the identification of three needs: There needs to be an improved understanding of the different methods for ensuring consistency and evaluating performance of enforcement and compliance programs. There needs to be an improved understanding of the different methods for national oversight of sub-national enforcement and compliance programs. There needs to be a clear foundation for further research and for sharing of best practices.
WORKSHOP F4: ENFORCEMENT PROGRAM MANAGEMENT: STRATEGIC PLANNING AND PERFORMANCE INDICATORS Facilitators: Greg Sullivan, Chair, Australasian Environmental Law Enforcement and Regulators Network, Australia Michael Stahl, Unites States Environmental Protection Agency Eugene Mazur, Project Manager, Environment Directorate, Organisation for Economic Co-operation and Development, France Dr. Paul Leinster, Chief Executive, Environment Agency for England and Wales Jan Teekens, Inspectorate of Housing, Spatial Planning and the Environment, Ministry of Infrastructure and the Environment, Netherlands Rapporteur: Inge Delvaux, Head of Service, Environment, Nature & Energy Department, Flemish Environmental Inspectorate Division, Supervision of Major Hazard Companies Service, Belgium
BACKGROUND
Performance measurement indicators are an essential element of program management an iterative cycle of activity and budget planning, implementation, and evaluation and a key means of internal and external accountability of environmental enforcement authorities. The purpose of this workshop was to provide an opportunity to discuss ways to measure the effectiveness of compliance assurance activities through a combination of input, output, and outcome performance indicators. 2 DISCUSSION
Greg Sullivan introduced the goals of the workshop. He noted that indicators promote efficient use of resources, prompt greater examination and scrutiny and enhance transparency and accountability. Since one comprehensive indicator does not exist, a basket of input, output, intermediate, and outcome indicators needs to be used. Although indicators are useful, their flaws should not be ignored. The use of poor indicators can result in perverse outcomes that deviate from the objectives. Additionally, indicators need a long time scale in order for trends to be discovered and developing and using indicators is resource intensive. Strategic planning is about setting priorities and about getting the right mix of interventions to reach objectives. Michael Stahl, via video conference, discussed the methodology for developing indicators, the benefits, and the lessons learned from indicators. He noted that
INECE developed a guidance book4 promoting a three stage model that helps environmental compliance and enforcement practitioners to develop their own indicators. Stage 1 identifies the potential indicators and encompasses the establishment of criteria for selection, the consultation of the stakeholders, a wide search of possible indicators and the selection of an appropriate combination of indicators. Stage 2 includes the development of the actual indicators and the start of the implementation process. The guidance document encourages pilot projects and development in phases. Stage 3 is about using the indicators as a management tool. The guidance document offers some codes of good practice that will help lead to the optimal use of indicators. The use of intermediate outcome indicators can improve the control of program operations; improve setting goals (in terms of environmental outcome) and adjusting strategy; lead to better decisions about dedicating resources; help to identify and ameliorate enforcement programs; enhance motivation of personnel since the indicators visualize their achievements; and lead to better communication with the public by moving from outputs to outcomes. Evaluation of the use of indicators resulted in high performing enforcement programs because the indicators helped to address significant problems; led to a better allocation of resources; enhanced the choice of adequate instruments; allowed for the assessment of the effectiveness of the programs; and allowed for effective and compelling communication with the public. However, experience has shown that the development of final outcome indicators is the most difficult task. It is hard to prove that a specific outcome is exclusively the result of an enforcement program. Eugene Mazur discussed the options and constraints to using outcome indicators of compliance assurance. The Organization for Economic Co-operation and Development (OECD) in 2009-2010 performed a study on outcome indicators involving ten OECD countries.5 The focus of the study was on pollution prevention and control regulation and on intermediate and final outcome indicators. The need for budget justification likely accounts for the current demand for outcome indicators. The study inventoried and classified existing outcome indicators. It identified the following categories of intermediate outcome indicators: compliance rates, measures of recidivism and duration of non-compliance, pollution release indicators, indicators of improved environmental management practices and reduced risk and measures of effectiveness of compliance assistance. Environmental quality indicators can be used as final outcome indicators, if environmental quality improvements can be linked to the activities of enforcers.
INECE, Performance Measurement Guidance for Environmental Compliance and Enforcement Practitioners, online at http://www.inece.org/indicators/guidance.pdf. 5 See Mazur, Eugene, Outcome Performance Measures of Environmental Compliance Assurance: Current Practices, Constraints and Ways Forward, http://www.oecd-ilibrary.org/content/ workingpaper/5kmd9j75cf44-en
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The indicators were assessed against three OECD criteria (measurability, analytical soundness and policy relevance). None of the indicators identified scored high on all three criteria. The conclusion is that it was impossible to identify a flawless indicator and the recommendation is to build a limited set of indicators and to use each category the best it can be used. It can be wise to focus on indicators of release of specific pollutants reflecting the enforcement agencys priorities, although when these indicators are used (international) comparability decreases. Dr. Paul Leinster discussed the use of a scorecard system for applying indicators in a corporate strategy. The Environment Agency of England and Wales developed a scorecard containing 34 measures, indicating both intermediate and final outcomes. The Environment Agencys corporate strategy being translated into corporate plans gives rise to the scorecard, (which can be understood as a contract between the Environment Agency and the board). The scorecard links money, people and outcomes thus leading to transparency. The Environment Agency recognizes that they are not the sole players in achieving the outcome but is convinced that the organization should take credit for the actions and results. The number of measures decreased from the previous version of the scorecard to the current version because confidence has grown. The 34 measures contain underlying indicators and the agreement is to report whenever one of the underlying measures goes red. The statuses of 5 priority measures are reported regularly, the statuses of all 34 measures are reported every 6 months. The 19 areas that use the scorecard benchmark their activities and share good practices. The scorecard drives the activities of the Environment Agency. Examples of targets include: To reduce the number of establishments with a D or E- score for management performance by 10% per year. To reduce the number of illegal dumping sites with 10%. More than 50% of the sites concerned should be high risk sites. To get the number of pollution incidents down with 5% per year. To increase the beneficial use of waste. To reduce administrative burden over the next 4 years. Jan Teekens discussed moving towards more effective environmental supervision in the European Union. Within the European Unions context, performance indicators play a limited role. It is the desire of the European Union member states that indicators be embedded in a wider approach.6 The European Union Network for the Implementation and Enforcement of Environmental Law (IMPEL) network strives to professionalize inspections and issued minimum criteria for environmental inspections. In 2005, these criteria were assimilated in the European Union Recommendation providing for minimum criteria for environmental inspections in the Member
See Teekens Jan and Van Zanten, Pieter-Jan, Towards More Effective and Efficient Environmental Supervision Trends and Developments in the EU and The Netherlands.
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States. Since then, there was a stand still on the legislative side. Within IMPEL, however, work did not stop. Through different projects IMPEL, in collaboration with the European Commission, tried to improve the European Union Recommendation to measure the performance of authorities across the European Union, to introduce European Union oversight, and to develop a European Union vision on environmental supervision. From 2006 onward, IMPEL engaged in the project Doing the right things.7 The project resulted in a practical guide on organizing and planning compliance assurance activities (supervision) to help authorities to comply with the European Union Recommendation and beyond. The following trends can be distinguished in European Union environmental supervision: applying risk based methods (for setting priorities and choosing interventions); using mission/problem oriented approaches; communicating about achieved results;making use of intervention toolkits to assure compliance (compliance promotion, compliance checking and enforcement); customer oriented; and reducing supervision burdens for industry. During the workshop discussion, Mr. Mazur reviewed recommendations for indicators from the OECD study referenced above. In particular, he noted that authorities should only use environmental quality indicators (or final outcome indicators) that correspond to targeted, problem-oriented efforts of an enforcement agency. He noted that additional work is needed to improve the analytical soundness of indicators. Dr. Leinster highlighted the need for further work in the field of final outcome indicators, which will be needed for discussions with politicians. If, for instance, a number of deaths can be linked to air pollution, a clear message can be given. Mr. Stahl agreed that proof of a positive influence on public health by an enforcement action has great influence on government and members of parliament. In response to a question regarding how indicators can contribute to the influence of compliance and enforcement on the transition to a greener economy, Dr. Leinster emphasized the need for balance between regulation and development, for example in the case of a hydropower plant that delivers green energy, but has a negative impact on the local ecosystem. Part of the green economy is creating a level playing field, and Mr. Mazur noted that indicators are needed to establish a baseline. To be able to account for the hidden costs of non-compliance, non-compliance has to be measured. Mr. Stahl noted his conviction that any action of an environmental compliance and enforcement practitioner constitutes promotion of a greener economy. 3 OUTCOMES
Since performance indicators as well as risk-based and outcome-oriented approaches are new to developing countries that still are in the phase of input and output indicators, more training is needed. It is the recommendation of the workshop to INECE to provide and enhance such training.
7
See http://impel.eu/key-projects/key_1/doing-the-right-things.
The workshop suggests INECE to develop some case studies with performance indicators on different levels: beginner, advanced and expert. The training could be tailored on the same basis. The workshop also advises INECE to develop guidance on the link between strategic planning and the use of indicators and to work out a means of sharing good practices on strategic planning. WORKSHOP F5: DEVELOPMENT OF CORE COMPETENCY FOR ENVIRONMENTAL COMPLIANCE PROFESSIONALS Facilitators: Davis Jones, Associate Director, International Compliance Assurance Division, United States Environmental Protection Agency Mark Jardine, Compliance and Enforcement Department of Environmental Affairs, South Africa Support Law
Grant Pink, Secretary, Australasian Environmental Enforcement and Regulators neTwork (AELERT), Australia
Eugene Mazur, Project Manager, Environment Directorate, Organization for Economic Co-operation and Development (OECD), France Rapporteur: Meredith R. Koparova, INECE Secretariat
1 BACKGROUND Competent environmental inspectors and other compliance and enforcement personnel are essential for the success of compliance assurance programs: a lack of professionalism can erode the credibility of environmental inspectorates with the regulated community and the general public, and lead to financial losses for the regulating entity and ultimately, to environmental damage. This workshop explored what competencies are critical for compliance assurance and how could they be developed. 2 DISCUSSION
Mr. Davis Jones introduced the workshop by introducing the other facilitators and outlining the expectations for the workshop: (1) introduce examples of lists of core competencies and training requirements for inspectors to meet those competencies, (2) determine what common elements apply across different countries, and (3) determine if INECE could develop a globally acceptable list of core competencies for inspectors that could help guide national, regional, and global training efforts.
Mr. Jones continued by introducing the United States Environmental Protection Agencys Executive Order 3500.1 Training and Development for Individuals Who Lead Compliance Inspections/Field Investigations which summarizes the training requirements EPA believes are necessary to be a fully successful inspector. These requirements not only put the responsibility on the inspector, but also on their managers to ensure that adequate training is provided to their staff. Mr. Eugene Mazur outlined the Organisation for Economic Co-operation and Developments experiences in working with environmental inspectorates in a number of countries of the former Soviet Union in developing core competencies. This work has resulted in the development of the Guidance on Individual Competence Development within Environmental Inspectorates of Eastern Europe, Caucasus, and Central Asia.8 Mr. Grant Pink explained that, based on a decade of experience with issues relating to the professional development of environmental compliance and enforcement staff, it is important from the outset to determine how the core competencies will ultimately improve an environmental inspector to be more competent. He outlined what he considered to be some basic questions that people developing core competencies need to ask themselves: Are the core competencies to be linked to formal staff training? If so, is the training initial (mandatory), ongoing (refresher), or new (up skilling)? Can the core competencies be broadened within themes (for example, administrative, scientific, legal, and operational)? Should core competencies have generic and/or specific components? The rationale being that environmental agencies, customs/port authorities, and police (and others involved in environmental enforcement) have different operating environments and therefore varying opportunities to demonstrate the required competencies. Mr. Pink concluded by reminding participants that the issue of developing core competencies for non-investigative or non-inspectorate staff (i.e. non-core enforcement staff) should not be overlooked. He explained that the roles performed by non-core enforcement staff were critical to the success of compliance assurance programs and enforcement actions. In his experience, it was often the administrative, scientific, and more routine activities that these staff performed were extremely important and critically assessed when enforcement action was being considered, undertaken and litigated. Mr. Mark Jardine spoke of his experiences and the experiences of his agency in terms of delivering core competencies. He explained that, in South Africa, core competencies had been delivered through various methods including in-house,
The Guidance on Individual Competence Development within Environmental Inspectorates of Eastern Europe, Caucasus, and Central Asia is available online at http://inece.org/conference/9/papers/2011_Guidelines%20 individual%20competence%20inspectorates_Final%20OPS%20ENG.pdf. A related OECD resource on training on environmental compliance assurance is available at http://inece.org/oecdtmp/cd/.
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outsourced, and through a hybrid arrangement. The latter model involved the formation of partnerships with various universities. Mr. Jardine outlined some of the challenges in working with universities in terms of aligning the level of qualification, the time to achieve the qualification, and whether or not this model was the most effective way to deliver core competencies when environmental enforcement really required practical application as opposed to an overemphasis on some of the academic aspects associated with tertiary qualifications. Mrs. Anita Patekar discussed personal motivations of inspectors. She also explained that the European Union Recommended Minimum Criteria for Environmental Inspections was a valuable resource that should be considered as part of developing core competencies and one that environmental agencies should be audited against. Mr. Mazur noted the role of conducting individual performance assessments and the importance of having a good system of indicators to evaluate capacity and effectiveness. Mr. Liam Cashman agreed and noted that capacity development should be viewed from a vertical perspective -- building competencies up the chain of command -- as well as from a horizontal perspective. Ms. Angela Bularga added that it is good to explain the benefit of training in terms of how much a lack of training would cost. She noted that there are questions in the OECDs Guidance noted above to help assess those costs. Ms. Bularga added that, discussing competencies is equally important from the national and international perspectives, given the large number of multilateral environmental agreements. Participants discussed looking broadly at developing core competencies. For example, Mr. Pink explained that, in Australia, Quality Assurance Reviews are conducted by the Federal Police, particularly in terms of evidence. The Police review team look at issues such as how was the allegation received, how was it filed, how did the investigation unfold, how was evidence handled and stored, and the overall preparation and standard of documents (such as witness statements, suspect interviews and the brief of evidence) for enforcement action. One of the most important factors of the review related to the training in formal qualifications of the lead investigator and their managers/supervisors. Several participants mentioned that providing workshops for cross-pollination between the courts and environmental law specialists was a successful strategy. In Malaysia, inspectors need to know legal requirements when they do inspections, as well as skills for sampling, and individual inspectors must deal with numerous environmental issues. It was agreed that it is important to develop broad competency. Mr. Manny Mendoza explained that Environment Canada undertook a rigorous review of the skills necessary for its inspectorate staff. These staff are now defined as enforcement officers, and these staff are inspectors and investigators. They have the technical knowledge to see how a process works. As part of recruitment process, Canada includes psychological testing, such as is this person the right fit, will this person have a problem confronting a volatile situation, can they carry a firearm. There are also levels of enforcement officers. Additionally, there is professional development/apprenticeship program to move through the levels. There is continual
evaluation, on a monthly basis. Evaluation is challenging, however. There is a mentoring/coaching role in the job description of the Senior Inspectors. Participants discussed the importance of building competency for basic metaskills beyond media-specific skills (e.g., communications, writing). In Nigeria, for example, one of the areas of training for new staff persons is to help develop their writing skills. In Peru, some inspectors have limited skills for writing reports. While it is important for the reports to cover the technical aspects of an inspection, it is also important to have a legal perspective in the analysis. In Ghana, training is done on confidence building and on report writing. Weaker writers are teamed with stronger writers to encourage peer learning and mentoring. Also in Ghana, customs officers are part of the team of inspectors. Through the customs academy, experts from the environment agency lead courses for some of the customs staff. This has added value in that it facilitates the establishment of relationships between the environment agency and the customs authorities. Ms. Bularga added that, in some countries, training is provided on how to recognize situations that may affect inspectors integrity. Participants discussed training inspectors for collecting evidence to support court cases and for testifying as a witness. Some training courses and workshops, for example conducted by AELERT member agencies, take staff through these areas, including giving evidence, cross examination, re-examination. It was noted, and universally accepted, that one problem facing environmental agencies fis that their staff are not attending court frequently, so inspectors are losing this skill. Participants discussed strategies for assuring accuracy in collecting evidence and reporting. Mr. Cashman discussed the idea of doing a post-mortem. If something has not gone right, the person can be assisted to find out what did not go right and capture lessons learned. Ms. Maureen Mitchell discussed Canadas quality assurance procedure for inspection reports. Included in that is a yearly review of the inspection reports, where minimum criteria must be met. Ms. Mitchell noted that, when the review was done the first time, many of the reports did not meet the criteria. In the Canadian program, making in-house training mandatory has been very valuable, particularly the Enforcement Order Writing workshops. Canada also implemented a plain writing workshop to ensure effective report writing. 3 OUTCOMES
The participants emphasized how critically important it was that core competencies for environmental compliance professionals were developed, used, and reviewed. Accordingly they recommended that INECE continue to expand the activities of its International Network for Environmental Compliance Training Professionals. Additionally, participants recognized the value of INECEs resource library on environmental compliance training. Facilitators invited participants to share references to training materials from sources worldwide to streamline the development and delivery of training needed to develop competency.
Track G: Developing Effective Enforcement Networks125
TRACK G: DEVELOPING EFFECTIVE ENFORCEMENT NETWORKS WORKSHOP G1: THE VALUE OF ENFORCEMENT COOPERATION IN THE CONTEXT OF FOREST LAW ENFORCEMENT, GOVERNANCE AND TRADE Facilitators: Aniko Nemeth, Expert, Topic Area for Law Enforcement and Compliance, Regional Environmental Center for Central and Eastern Europe, hungary Elaine Wright, Environmental Consultant; Lecturer, University of Pennsylvania, United States Mihail Dimovski, Senior Expert, Topic Area for Law Enforcement and Compliance, Regional Environmental Center for Central and Eastern Europe, Hungary Rapporteur: Tsvetelina Filipova, Senior Project Manager/Lawyer, Topic Area for Law Enforcement and Compliance, Regional Environmental Center for Central and Eastern Europe, Hungary
BACKGROUND
The workshop explored three aspects of the value of enforcement cooperation in the context of forest law enforcement, governance, and trade: (1) tools and instruments to respond to illegal logging; (2) informal cooperation mechanisms to fight illegal logging; and (3) causes of illegal logging. This workshop was organized by the Regional Environmental Center for Central and Eastern Europe within the framework of the Environment and Security Initiative and with the kind support of the Finnish Government. 2 DISCUSSION
The workshop examined the value of enforcement cooperation in the context of forest law enforcement and trade with a view to developing effective enforcement networks. Workshop participants discussed the benefits of the cooperation mechanisms to respond to illegal logging and identified opportunities and tools to enhance joint efforts to combat illegal logging. Among the opportunities, raising awareness to the issue in national and international forums was mentioned, together with harmonized procedures and clear division of competences in the relevant national authorities. Examples and typical cases of illegal logging and their causes as well as their consequences were presented. Additionally, discussions covered country practices on how to address crossborder forest crimes, in particular illegal logging and associated organized crimes. From the discussions, it appeared that it is necessary to strengthen cooperation among the various authorities involved in cross-border forest crimes and to set up a clear and adequate legal remedy system.
Participating countries discussed the key challenges that they are facing on controlling illegal logging. In Croatia, illegal logging is recognized as one of the biggest environmental problems. It leads to loss of the value of natural heritage, especially important for a country orientated towards tourism. However, there is not enough will of the government to deal with the problem although it is visible and the perpetrators are known. In Montenegro, 55 percent of the country is covered with forests, while only 7 percent is state owned. Management of forests is weak and forests are easy to be abused, thus they are vulnerable and exposed to criminal actions. Most of the forests are in the border regions with neighboring countries. There is an issue of illegal export at non-controlled border crossing points to undefined locations in neighboring states. In Macedonia, 70 percent of the wood harvested is used for heating homes there is no gasification and electricity is expensive for heating. These create incentives for criminal groups to illegally log wood and sell it to the internal markets. In Serbia, illegal logging is a social issue since the unemployment rate reaches more than 20 percent. Thus the main drive to illegally cut trees is to ensure basic income for the family and the logging is considered a subsistence felling. In Australia, the increasing of farm land often leads to decrease of forests. There are enormous farms, and when these farm lands are clearcut, there is great impact on the environment. In the Netherlands, illegally harvested wood import and export is the major issue since Netherlands is a distribution point. The Netherlands is one of the major hubs; there are issues with tracking and tracing. Determining the origin of wood is problematic as well. However, there is a database system in place to prevent the use of illegal wood.9 In the Philippines, corruption and money-making relevant to illegal logging lead to loss of habitats. There are problems in detecting the violations and too few forest police. The following conclusions and recommendations emerged from the discussions: Improved cooperation is needed between responsible bodies, including police, border police, judges, prosecutors, and environmental officials. There is a need to establish a communication mechanism between existing initiatives and a common approach to find joint solutions. The REC is willing to take the initiative on this in the framework of the THEMIS network, with the help of the contact points in each beneficiary country.
See p 166, Benthem, Van, Mark H.A. and Henk Tiemensma, A Database for Sustainably Produced Timber: Assisting the Implementation of Timber Procurement Policy.
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Illegal logging should no longer be considered as a misdemeanor it should be a criminal violation with 10 years in prison. Relevant stakeholders, including non-governmental organizations, judges, prosecutors, and informal network participants, should be trained to deal with illegal logging and relevant organized crime. Countries should make more use of available mechanisms, e.g. CITES, and there should be an international legal basis to deal with international trade of wood. The good practice examples, like the Moratorium Policy in Indonesia, should be explored and implemented as a possible option forward in addressing illegal logging. Last but not least, there should be a political will to cope with the problem. 3 OUTCOMES
Participants suggested that, within INECE, initiatives should be taken to combat illegal logging in the world, as well as illegal trade. INECE-facilitated networking with other relevant stakeholders could enhance the importance of this matter. INECE should cooperate with other existing networks such as Themis dealing with this issue. Participants recognized a potential role for the Asian Environmental Compliance and Enforcement Network (AECEN) in facilitating the exchange of experience and in promoting the importance of the integration of the legal approach to address illegal logging. WORKSHOP G2: PROSECUTORS Facilitators: NETWORKING AMONG ENVIRONMENTAL
Sheila Abed, Chair, IUCN Commission on Environmental Law; Founder and Director, Environmental Law and Economics Institute (IDEA), Paraguay Stacey Mitchell, Chief, Environmental Crimes Section, Department of Justice, United States Luciano Loubet, Specialist, Prosecutors Office, Brazil
Sara Boogers, Public Prosecutor, Belgian Public Prosecutors Office; Member, Flemish High Council of Environmental Enforcement, Belgium Sara Boogers, Public Prosecutor, Belgian Public Prosecutors Office; Member, Flemish High Council of Environmental Enforcement, Belgium
Rapporteur :
BACKGROUND
The purpose of this workshop was to provide an opportunity to design a global network of prosecutors, focusing on biodiversity issues. The workshop evaluated
the need for and characteristics of an international network for environmental prosecutors. The goals of the workshop were to (1) evaluate the need for a global network of environmental prosecutors; (2) define the goals and objectives of such a network; and (3) identify strategies for creating and establishing the network. 2 DISCUSSION
Following the presentation of the goals of the workshop, experts from two regional networks of environmental prosecutors shared their experience. Mr. Luciano Loubet described the goals and organization of the Latin America Environmental Prosecutors Network, which facilitates information exchange and capacity building among 250 prosecutors from 18 different countries. Ms. Sara Boogers described the emerging European Forum of Environmental Prosecutors. After the brief introduction, the discussion was opened for the workshops participants. The first issue to discuss was whether there is a need for a global network of environmental prosecutors. The participants agreed that such a global network would be a welcome and useful instrument and outlined a number of reasons for supporting the network. The participants expressed that there is a great need for exchange of information and sharing of best (and worst) practices. In each country, only a few prosecutors are specialized in environmental enforcement, and therefore these environmental prosecutors sometimes feel like they are working on an island and that it is very difficult to obtain accurate information or practical examples on how to deal with some cases. As in all forms of crime, environmental crime consists of more or less the same concrete facts in all countries, although the specific technical rules in the legislation may differ. If a prosecutor seeks information about a topic, for example the illegal shipment of hazardous waste, he or she can benefit from experiences on that matter in countries in other parts of the world. Moreover often environmental crimes are a violation of international rules (for example the Convention on International Trade in Endangered Species of Wild Fauna and Flora), which increases the need for international exchange of experiences and information. Serious types of environmental crime often are organized internationally. Violators do not respect borders in their efforts to obtain the maximum possible profit. Therefore, prosecutors must be able to work together in an international context. Types of collaboration could include setting up integrated actions to fight the serious types of organized environmental crime, as well as to search for and confiscate the illegal benefits gained by it, regardless of which country these benefits may be found. Internationally organized crime requires internationally organized prosecution and global networking can be very helpful in this context. Of course, official rules of procedure specific for each country or region will always have to be followed in this kind of cooperation. However, there is significant benefit to being able to collaborate informally with peer-level prosecutors in another country.
The workshop also pointed out that only a few countries have officially recognized the need to have specialized environmental prosecutors. All participants shared the opinion that such an official specialization is necessary in order to successfully combat this very specific form of crime, particularly since the legislation in this matter is very specific and often complicated. During the conference, contacts with other players in the field of enforcement (inspectorates, specialized police investigators) also confirmed that they experience the benefits of working together with specialized prosecutors in an environmental crime investigation. The workshops participants believed that the creation of a global network of environmental prosecutors could be an incentive for governments to officially acknowledge the need for a specialization in environmental crime within their prosecutorial organizations. Finally, a global network can enhance the specialization within the different countries by giving support and ideas on capacity building for prosecutors. Training sessions can be organized, information about ongoing training sessions can be spread easily, and documents obtained from training sessions can be shared on the networks website. The workshop participants concluded that the creation of a global prosecutors network was necessary and discussed the goals and objectives of such a network. The most important goal is to connect environmental prosecutors worldwide. The network must develop and publish (on a website) a list of all environmental prosecutors in all countries. This list can be more specified by sorting out the specialization of the individual prosecutors (for example, wildlife, illegal logging, e-waste). The connection must also be enhanced by linking the existing regional networks of environmental prosecutors. It is preferable that each country indicates a contact person among their environmental prosecutors (for general contact or general information). The second important goal is the sharing of information. Information about creative sentencing might be very useful, such as the kinds of sentences or court-ordered measures that exist and their effectiveness. Additionally, a list of international experts on very specific environmental subjects could be shared through the network because sometimes it is hard to find an expert in your own country or region. Information on relevant legislation and jurisprudence (e.g., cases with an international background) can be shared or published. The networks website must also contain a list of addresses and contacts of international organizations working in environmental enforcement, with a short description of their goals and competences. It also would be useful to share some more general information about national prosecutorial systems and rules (e.g., the difference between administrative and criminal prosecution). The network must enhance capacity building for environmental prosecutors globally. Recognizing that only a few countries have specialized environmental prosecutors, it is necessary to share best practices for training and to organize
or facilitate training sessions about environmental enforcement for prosecutors. Training sessions can be organized during a conference, but virtual education opportunities could be provided through a website, which could also be used for exchanging information and documents that members obtained from trainings they attended. Finally, the network can be a useful instrument for facilitating transnational prosecutorial initiatives in transnational cases. When prosecutors know each other through the network, it is much easier to set up integrated actions in different countries when needed. At the end of the discussion, the participants shared some thoughts about how such a network should be organized and implemented. Everyone agreed that the network must be a non-governmental and non-official organization of prosecutors. This enables flexibility and avoids difficult diplomatic and official decision-making procedures. The network must also have a closed nature. Only people that are invited can get in. This is necessary to avoid abuse of the information spread by the network. While the network must try to reach all concerned prosecutors (in a non-official way), participants agreed that it would also be good to have official representatives of the national public prosecutors offices appointed in the network to be able to facilitate cooperation on a higher level. 3 OUTCOMES
The participants agreed to launch the Global Network of Environmental Prosecutors. A first small working group of environmental prosecutors was nominated in order to take the first steps, in close cooperation with the INECE Secretariat. The INECE Secretariat agreed to provide its full support to the creation of the network. WORKSHOP G3: THE ROLE OF ACADEMICS IN ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT NETWORKS Facilitators: Robyn Bartel, Professor, Geography & Planning, University of New England, Australia LeRoy Paddock, Associate Dean, Environmental Law, George Washington University Law School, United States Rapporteur: 1 Robert Percival, Director, Environmental Law Program, University of Maryland School of Law, United States
BACKGROUND
Engagement with academia has the potential to significantly contribute to the success of environmental compliance and enforcement networks. The purpose
of this workshop was to have participants review approaches currently used to promote such engagement and discuss means of improving engagement so that mutually beneficial academic and practitioner focused outcomes can be achieved. The workshop looked at questions including: (1) what can the academic community contribute to enforcement and (2) how can academic work be made accessible to have more impact. 2 DISCUSSION
Mr. LeRoy Paddock opened the workshop by noting that environmental enforcement issues can be so complex that academic help may be particularly useful. Dr. Robyn Bartel noted that equity, efficiency and efficacy can be assessed by academics. In situations where evidence-based policies are important or where government agencies have limited funds for research, collaboration with academics can be valuable. Academics can assist in communicating with the larger community particularly since they are not associated directly with regulatory agencies. Academics can do research that government cannot do because it is too politically sensitive (e.g., what farmers think about environmental law and how likely they are to comply). Improving communication between practitioners, academics, and government officials can help improve trust and improve the relevance of research. In terms of the feasibility of linking academia and compliance and enforcement agencies, a number of recommendations emerged. It was noted as important to approach government with research ideas for the endorsement of grants. It was also noted that academics should talk to inspectors to understand how they do their jobs and also to businesses to see what motivates them. Mr. Gerry Opondo noted that, in Kenya, the government has documented environmental research conducted since 1963 and identified key areas where government should promote research, which will be used to set research funding priorities. Participants discussed the role of academia in developing reliable data to support enforcement programs. Mr. Greg Sullivan recommended that agencies use academics earlier in the process of policy development, not just post-hoc assessments of policies. Mr. Ken Markowitz agreed and noted that this is applicable at each stage of the policy process how can we work better to understand what is and is not working. Participants discussed the role of graduate students in supporting research. Graduate students in the areas of law, economics, statistics, and related fields can help process empirical data and to assess the effectiveness of various environmental policy instruments. They also can help to assess how to optimize targeting of environmental inspections to maximize compliance. However, a participant cautioned that graduate researchers can bury an enforcement organization in so much data that makes it impossible to analyze. Mr. Robert Percival suggested increasing interaction between experienced enforcement officials and law school environmental law clinics to help clinics improve the impact of their work. Additionally, having student environmental law
societies issue an annual report giving annual grades to environmental enforcement programs in different states could be effective. For example, the Natural Resource Defense Council (NRDC) supports a project, which rates cities in China on how well their governments are implementing the new Open Information Law. The project seems to be having a big impact as officials approach NRDC asking how to improve their ratings each year. Participants pointed out that, on one hand, academics do not market themselves well, so governments often do not know who to turn to. On the other hand, governments frequently have large amounts of public data that can be distributed to researchers, but the researchers may not be aware that the data exists or may not be able to access it. Mr. Gerard O Leary noted recent successes in Ireland where academic research on pharmaceutical pollution reductions was able to show that enforcement had reduced pollution by a much larger amount than previously thought. In another case, an expensive advertising campaign on waste was showed by research to not be very successful. Participants discussed the role of academic in capacity building in developing countries. Mr. Markowitz noted that capacity building can be very powerful, particularly if the exercises are more interactive and build upon each other with increasingly sophisticated trainings tapping into the academic communitys case studies. Ms. Milag Ballesteros agreed and added that needs assessments should be done to discover what agency trainers require, and the development of capacity building materials should include facilitators manuals so that the trainees can become the trainers. Ms. Meghan Bronson noted that the United States Coast Guard has funding to send officers to graduate school, which helps them understand how to communicate with academics. For those who do not have the ability to go to graduate school, a staff guidance document could help explain appropriate types of interaction with academics. Participants agreed that academics can serve as translators of data for policymakers. Mr. Lawrence Anukam noted that Nigerian enforcement has benefited greatly from academic work. National Environmental Standards and Regulations Enforcement Agency has a pool of information about professors and their past work and they bring them on board to assist with policy development and advancing enforcement programs, e.g., by analyzing hazardous content of waste shipments. 3 OUTCOMES
Participants agreed that there was value to collaboration between academics and regional enforcement networks, particularly in making the enforcement community aware of the value of academics, facilitating collaboration to identify pertinent issues for research, building trust between enforcers and academics, and other benefits.
Participants agreed that academics can be extremely valuable in educating the enforcement community on emerging research. Participants endorsed the utility of INECE providing an electronic library or wiki that summarizes and annotates academic compliance literature for enforcement practitioners. Participants suggested that graduate students from several universities could help abstract enforcement literature and could help translate the abstracts into a form practitioners could easily access. Suggestions for focus areas for this wiki or online resource included: (1) what interventions work best in which circumstances; (2) what new interventions have been developed and what has been written about them, (3) data availability and accessibility -- what is out there and what data is most useful; and (4) best practices in data collection. It was further suggested that, as part of this project, students could identify 10 or 15 terrific articles, interview the authors, and make video clips available on INECE website. It was further recommended that INECE establish an academic advisory working group or subcommittee. Participants also expressed support for greater collaboration between INECE and International Union for Conservation of Nature (IUCN) Academy of Environmental Law, for example through an academic advisory committee of people involved in both groups, through a Memorandum of Understanding, and/ or through a joint Colloquium in 2014. WORKSHOP G4: REGIONAL ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT NETWORKS Facilitators: Grant Pink, Secretary, Australasian Environmental Enforcement and Regulators neTwork (AELERT), Australia Law
Gerry Opondo, Regional Coordinator, East African Network for Environmental Compliance and Enforcement, Kenya Rapporteur: 1 James Lehane, Executive Officer, Australasian Environmental Law Enforcement and Regulators neTwork (AELERT), Australia
BACKGROUND
The purpose of this workshop was to exchange experiences in creating and sustaining regional environmental compliance and enforcement networks. Specifically, the facilitators framed the workshop around two topics: (1) documenting good practices for the establishment and maintenance of successful enforcement networks and (2) refining the Network Evaluation Matrix to ensure applicability across all levels of networks to assist assessment and to aid network maturity.
DISCUSSION
Representatives of the regional environmental compliance and enforcement networks shared background information on their networks and observations of good practices. Michael Nicholson discussed how the European Union Network for the Implementation and Enforcement of Environmental Law (IMPEL), was originally launched in 1992 as an information network as part of the European Commission. Since its modest beginnings, IMPEL has become a formal association under Belgian law in 2008 with 27 member countries. The current structure includes a General Assembly for high level issues, such as determination of budgets and priorities, while the day-to-day business is conducted by the Secretariat and overseen by the Board. Numerous funding sources are utilized for specific components of IMPEL operations, with membership fees set out under statute, but not being a barrier to entry. IMPELs work program is organized around three clusters through project working groups. Assistance to members is made through open access library on the website, with translation tools utilized for documentation, and a Basecamp tool assisting projects as part of information sharing, live document editing, and calendar appointments. Challenges include minimal Secretariat resources resulting in difficulties engaging with all members all of the time, as well as the ongoing challenge to secure funding for aspects of the network. Milag Ballesteros from the Secretariat of the Asian Environmental Compliance and Enforcement Network (AECEN) discussed how AECEN was started before 2005 with USAID Project to fill gaps for environmental compliance and enforcement agencies focusing on brown crime areas. The Network is comprised of 16 member agencies across Asia, with official working language of English and seven other regional languages used. Current funding comes from USAID and Asian Development Bank. AECEN as a network is informal and not incorporated. AECENs programming starts with an assessment of members capacities. Current key projects include Twinning Partnerships, which use a South-to-South engagement model with resource agencies as the sources of information and leadership. Recently, AECEN has moved towards engagement with resource agencies outside the region, such as the environment agencies of Australia and the United States. Another current project is the expansion of the Asian Judges Forum on Environment. AECEN is also working on building capacity for environmental impact assessment due to identified needs, with investment and commitment by members. Challenges confronting AECEN include: (1) member responsiveness; (2) the operational priorities of member agencies; (3) that the Secretariat is taking on more of a strategic role for the network; and (4) the emergence of a new phase in the network development with the move towards a more permanent Secretariat in the future.
Gerard OLeary discussed Irelands Environmental Enforcement Network, which was established in 2004. The Network now has 1,000 members and covers 34 local authorities with the national agency. (An open invite exists for Northern Ireland agencies). The Network has seen a significant increase in the frequency of agencies working together in a consistent manner. The Networks work program focuses on (1) capability for Inspectors and (2) dealing with illegal waste. Challenges include diffuse pollution sources and external communications. He noted that a lot of energy is required for hosting meetings and events. Mr. OLeary discussed successes including significant work to improve communications, including the development of a National Report on Enforcement. The Network is also considering the use of social media/social networking to help promote an interactive system. He also noted that, in terms of funding, central funds that align to priority funding streams are received from the government. Organic growth of the network has seen inclusion of policy people into a Steering Group together with enforcement personnel. Mr. Andrew Lauterback discussed Interpols Environmental Crimes Committee. He asserted that the main reason for networks is to learn from colleagues on how to do jobs better and/or differently. The challenges that are faced are similar; therefore, working on solutions together is beneficial. On the whole, networks tend to have more in common with one another than not. He reported that the Environmental Crimes Committee is highly selective when determining which projects to take on - projects must be practical, feasible, marketable and significant. The range of projects being undertaken across the Committee is constantly evolving but come about due to the sharing of information. Mr. James Lehan introduced a general discussion on the importance of project management within networks, especially tracking projects to ensure they are delivered. Adding that, the Australasian Environmental Law Enforcement and Regulators neTwork (AELERT) introduced a Project Management Framework in 2011 which combined the key elements andl project criteria of both the INECE and Interpol Environmental Crimes Committee. Mr. Roel Willekens noted a Police network he chairs that could improve on the proactive sharing of information, including the sharing of better practices and procedures. Ms. An Stas discussed the Flemish High Councils vertical and horizontal integration methods as a new formal network, with many different enforcement actors having vastly different experiences and attitudes towards collaborating. Mr. Liam Cashman noted that the European Commission has a key role as a facilitator of networks. He noted that the Commission should consider the scope of using networks as sources of information and experience for other networks.
Mr. Grant Pink discussed the Network Evaluation Matrix for workshop participants. As a preliminary assessment tool, the Network Evaluation Matrix can be utilized by networks to consider their state of evolution and any future additional measures that may be taken if the network chooses to progress in a certain direction. The next phase for consideration includes Self-Assessment and Peer-Assessment processes. These will be developed over the coming months with feedback to be sought from partner network secretariats. Mr. Dara Lynott recommended adding the concept of olidarity into the Network Evaluation Matrix, using a range of examples such as staged seating and social components of networks to confirm the united aspects of networking. He added, that using the top down approach gains buy-in from Chief Executives, but getting frontline staff to engage required a range of different strategies to facilitate and maximize attendance. Mr. Pink then discussed what was referred to as the Pink Principles of Networks during the Summit of Regional Networks event several days earlier. In essence they provide a range of recommendations based around the core principles of Involvement, Value, Effectiveness and Support for networks. Mr. Gerry Opondo then assessed the experiences and observations of the East Africa Network for Environmental Compliance and Enforcement (EANECE) against the four core principles (Involvement, Value, Effectiveness, and Support) outlined in the Pink Principles. In terms of involvement, Mr. Opondo noted the success achieved by each country nominating a senior official as its National Focal Point, as well as the effective appointment of the directors of environmental compliance and enforcement at each national agency to the Executive Planning Committee. In terms of value, alignment between the national agencies core functions and those of the network are maximized where possible. Additionally, agency staff involved in the network add value by sharing knowledge learned broadly within their agencies. In terms of effectiveness, reporting arrangements and communication strategies are in place to ensure all agency staff have access to information relating to the network. Additionally, EANECE plans to develop a website and quarterly newsletters to promote the activities of the network. In terms of support, network roles and responsibilities integrated into the core duties of key agency staff enhance the support of the agency to the network. Participants agreed that all networks face similar challenges, including: Engagement of members being a two way process, requiring contributions and effort. Value propositions members engage when they see a positive value proposition being available. Networks need to remain relevant and appropriate for members. Funding all sources of funding available to networks should be considered as it is available. Short term funding may assist specific projects, however this will not go towards maintaining and sustaining the network in the longer term. Communication networks should utilize communication tools and processes appropriate to the needs, requirements and capacities of their members. Introduction of new social media should be considered where relevant, appropriate and of potential benefit for members. Other tools such as face-to-
face forums, conferences and workshops improve relationships and a generally beneficial to networks. 3 OUTCOMES
Participants requested that INECE, in partnership with regional networks, document some guiding principles and good practices for establishing and sustaining successful environmental enforcement networks based on the Network Evaluation Matrix presented by AELERT. They also asked that the results of the AECEN Regional Networks Survey be circulated, and considered that this would also be a continuously improved guiding document. Participants also recommended the refinement of the Network Evaluation Matrix to ensure applicability across all levels of networks to assist assessment and to aid network maturity, with a view towards ensuring the Matrix can be used by regional networks to undertake a self-assessment. Participants requested that the INECE Secretariat document what projects regional networks are undertaking and where they are located, making this information available publicly and linking the regional network websites (where established). Participants also requested that INECE establish and maintain a regional Environmental Enforcement Networks resource area through the INECE website. WORKSHOP G5: THE ROLE OF CITIES AND MUNICIPALITIES IN ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT Facilitators: Jan van den Heuvel, DCMR Environmental Protection Agency, The Netherlands Rapporteur: 1 Greg Sullivan, Chair, Australasian Environmental Law Enforcement and Regulators Network (AELERT) Giuseppe Rotondaro, Coordinatore Staff Direzione Generale, Environmental Protection Agency of Lombardia, Italy Ed Kowalski, Director, Office of Compliance and Enforcement, U.S. Environmental Protection Agency
BACKGROUND
The purpose of this workshop was to explore the role of cities and municipalities in environmental compliance and enforcement. The facilitators presented two issues to frame the discussion: (1) how do local authorities respond to global challenges, such as climate change and (2) what are good practices that can be shared among authorities responsible for cities and municipalities on compliance and enforcement.
DISCUSSION
The facilitators discussed their experiences managing environmental concerns in cities and municipalities. Mr. Giuseppe Rotondaro talked about environmental challenges in the region of Lombary, Italy, and specifically Milans significant air quality issues. Particulate matter pollution consists of very small liquid and solid particles floating in the air. Of greatest concern to public health are the particles small enough to be inhaled into the lungs, which are less than 10 microns in diameter and are known as PM10. These particulates generally originate from motor vehicles, construction sites, and industrial sources. The first problem faced is how to get municipalities to respond to the air pollution problem and the regional government is developing broad policies that the municipalities can use. The different municipalities want to set different emission limits, and face different concerns. Laws and regulations must account for each regions uniqueness. Mr. Greg Sullivan talked about his experiences in Brisbane, Australia, and specifically Brisbanes experience in tackling climate change. He noted that there is one local government for the entire local area which applies both state environmental regulations on behalf of the state, as well as its own local regulations. Because the local department is closer to the people, it is in the best position to influence and assist the community. It also has a larger regulatory staff available to work on environmental issues than the state governments environmental regulator. For example, in the area of waste management, because waste collection is handled by local governments, they are in the best position to educate and organize the public in implementing recycling and landfill management. Mr. Sullivan gave numerous examples of how the Brisbane community used its local authorities and environmental interests to make environmental progress in ways that, when totaled, made significant progress in addressing climate change. These included: management of waste collection and disposal activities: encouraging recycling, properly managing landfills and greenhouse gases; urban planning to reduce auto emissions and encouraging green building requirements; managing traffic and parking to reduce auto emissions; education on energy efficiency techniques; encouraging public transportation and energy-efficient buses; green procurement by governmental bodies. The discussion focused on how local governments or municipalities could contribute to addressing larger environmental issues like climate change. It also raised some of the problems faced in getting local governmental bodies to address environmental issues.
One problem identified was that local governments are not always consulted when environmental laws or regulations are created at the state, regional or national level. The laws therefore often dont take local issues or considerations into account, leaving the regulator to deal with issues caused by the fact that the regulation doesnt necessarily fit every communitys situation. Another area of discussion was that local communities and citizens view environmental issues from a very localized, personal perspective, and not necessarily from a broader international, or even national, perspective. In The Philippines, they have created a League of Cities to enhance collaboration, which allows the local government to perform better both as regulator and regulated entities. The League of Cities also helps the local authorities speak with one voice to legislature when it is creating laws. There was also discussion of the differences experienced in many developing countries where the vast majority of the population is located in a small number of large cities, thus making addressing this issue all the more important, but because these countries also experience political systems that do not encourage addressing environmental issues, as well as populations who are more concerned with the basic necessities of survival than addressing environmental issues. In these situations, getting local compliance with environmental regulations is even more difficult. In South Africa, the amount of environmental initiative depends on whether there is monetary benefit to the cities in implementing environmental regulation. Two municipalities have established fee-based air pollution permit systems, which provide a monetary benefit to the municipality. Three potential solutions were offered for this situation: creating financial incentives for municipalities to address environmental issues, as in the example of South Africa; changing government structure to move the population out of large cities and into more manageable communities, as in the example of Kenya; and provide assistance to help small municipalities organize together to collaborate in addressing these issues. 3 OUTCOMES
A suggested solution or outcome to address the issue of local governments not being consulted when environmental laws or regulations are developed at the national level was to create a mechanism for cities to collaborate to be better positioned to input or influence the lawmaking process. More specifically, a suggestion was made to create an INECE-like network for municipalities or adopt a UNEP-like system for collaboration.
Summary of the Buffet of Ideas141
SUMMARY OF THE BUFFET OF IDEAS

1 Introduction
The Buffet of Ideas concept was launched at the 8th INECE Conference and was, due to its successful results, also featured at the 9th Conference, offering delegates the opportunity to propose their own ideas for informal workshops to the plenary and invite other interested delegates to join them to meet in a small group setting over lunch to engage in discussion and propose next steps for INECE. Environmental compliance and enforcement experts participating in the Conference led informal discussions in the following eleven self-identified topic sessions: 2 Multidisciplinary Enforcement Approaches to Environmental Compliance and
Global environmental issues require cross-cutting solutions and expert guidance drawing on a wide variety of disciplines, including the physical and biological sciences, law, economics, policy, management and business. It has become increasingly apparent that INECE and other actors engaged in environmental compliance and enforcement problem-solving at the international level will benefit from adopting a more multidisciplinary approach to compliance enforcement and environmental problem-solving. Delegates recommended that INECE develop a concept paper that discusses the advantages and disadvantages of multidisciplinary approaches to international environmental compliance and enforcement. 3 Multilateral Environmental Agreement Synergies
There are lessons to be learned from recent institutional linkages and cooperation agreements among and between secretariats of the large multilateral environmental agreements in terms of sharing treaty implementation responsibilities and leveraging resources for shared training, awareness raising and capacity building activities. For example, the secretariats of the Basel, Rotterdam and Stockholm conventions recently merged. Experience gained from initiatives such as Green Customs which provides joint enforcement training on several of the large trade-related MEAs, may be valuable to all enforcement practitioners, especially those working with subregional MEAs. Participants in this discussion suggested that INECE examine existing MEA synergy initiatives to draw lessons learned that can be applied at the subregional level to create synergies and more effectively leverage scarce resources. 4 Private Environmental Enforcement
Private enforcement of environmental law refers to legal actions brought by individuals or groups of individuals, often as the result of injury or property
damage, to force compliance with environmental law. Opportunities for bringing private enforcement actions vary by country depending on the legal system in place and practitioners would benefit from sharing their experiences in private enforcement. This working group recommended that INECE create an inventory of private enforcement programs and work toward developing a set of good practice. The group agreed to form a small study group, led by Professor Lee Paddock, to begin working on the inventory and good practice and recommended a workshop on this topic for the next INECE conference. 5 Marketing and Branding of INECE
With environmental ministry budgets becoming tighter each year, it is becoming increasingly important for INECE to identify ways build the INECE and create more interest in, and support for, compliance and enforcement and improve INECE ability to become more self-funding. Delegates in the Marketing and Branding group recommended that INECE develop a strategic plan, including a business plan and marketing strategy, for the next five years. To inform the plan, INECE should distribute a survey to its members and conference delegates to learn what topics, tools and resources INECE provides that are most valuable. INECE should also contemplate its governance structure and consider what structure would be most ideal for leading the organization during the next five years. Finally, the delegates suggested that regional representation is key to the continued success of the organization and forward planning. 6 Energy and Mines Enforcement Issues
The environmental and human health impacts of extractive industries, such as oil and gas extraction and mining, are often severe and large in scale. Effective compliance and enforcement systems are essential to protecting local communities and the global environment from these impacts. Many of the countries that INECE works with, face significant challenges associated with enforcing laws governing extractive industries. The group suggested that INECE consider the specific issue of compliance and enforcement in the energy and mine sectors by offering a workshop on this topic at the next conference. 7 Take-back Procedures for Illegal Shipments
Intercepting illegal shipments of environmentally sensitive goods is often only half of the enforcement battle, especially when dealing with large containers of hazardous waste. Determining how to send back the container can be challenging, particularly when documentation is unclear and there is no obvious point of contact in the country of origin. In the hazardous waste context, the Secretariat of the Basel Convention has issued detailed guidance on take-back procedures of illegal shipments of waste. However, the group noted that it would be useful to have additional guidance that is much simpler and accessible to frontline enforcement officers. They recommended that INECE and IMPEL work together to draft such a
Summary of the Buffet of Ideas143
document and consider supplementing it with a very practical and updated contact list for officers in the field, including customs, seaport police and environmental agents. 8 Cooperation Between Environmental Enforcement Organizations
Cooperation between authorities at the domestic level, such as customs, environmental authorities and port police, is essential to an effective enforcement program, particularly when addressing the transboundary movement of environmentally sensitive goods. Using USEPA training materials, the INECE Seaport project, has delivered training for negotiating interministerial environmental enforcement cooperation agreements, including developing a small library of sample MOUs in use in various parts of the world. The group recommended that INECE, World Customs Organization, the Secretariat of the Basel Convention and other relevant organizations consider the possibility of pursuing a joint statement recommending the adoption of interministerial cooperation agreements at the domestic level. The group agreed to draft the statement for the EPC to review. The groups also recommended that INECE and USEPA continue to work together to develop and enhance the MOU negotiation training materials. 9 Global Environmental Prosecutors Network
A group of delegates representing the newly launched INECE environmental prosecutors network met during the Buffet of Ideas and discussed their Terms of Reference and other next steps. An executive committee was formed and a time and date for their first conference call was agreed. The group recommended that INECE provide support by: assisting with development of a network website to facilitate information sharing, provide information about potential members, financial support to enable participation in regional training and other capacity building opportunities, and facilitating calls of the executive committee. 10 Enforcement of Environmental Impact Assessment In many countries, environmental impact assessment laws are the only or the most effective laws available for protecting the environment. Therefore, it is essential that INECE make environmental impact assessment a strong focus going forward. The group recommended that INECE partner with IAIA. 11 Establishment of West Africa Network A group of delegates representing the newly launched West Africa Environmental Compliance and Enforcement Network met to discuss next steps for the network, which consists of fifteen West African countries with leadership by Nigeria and Ghana. The group determined that its first meeting will be 1 November 2011 in Nigeria.
12 Latin and Central America Network A group of delegates representing the newly launched Latin America Environmental Compliance and Enforcement Network met to discuss next steps for the network. The group determined that its first step will be to convene a conference call involving leaders from at least five countries in the region.
Summary of the Field Visits145
SUMMARY OF FIELD VISITS

1 Port Metro Vancouver
Positioned on the southwest coast of British Columbia in Canada, Port Metro Vancouver jurisdiction covers nearly 600 kilometers of shoreline extending north from Point Roberts at the Canada/U.S. border. Port Metro Vancouver is a dynamic gateway for domestic and international trade and tourism, and a major economic force that strengthens the Canadian economy. As the fourth largest tonnage port in North America, they offer 28 major marine cargo terminals and three Class 1 railroads. During the site visit, port officials discussed a variety of compliance and enforcement issues faced by Canadas largest and busiest port. 2 Pacific Wildlife Research Centre - Riefel Bird Sanctuary & Alaksen Area This protected wildlife habitat is composed of a designated National Wildlife Area (NWA) overlapping a Migratory Bird Sanctuary. Canadian Wildlife Services administers these lands, with the Sanctuary managed by the British Columbia Waterfowl Society under a long-term lease. Located next to the Delta Port, the NWA provides some of the best wildlife habitat and most productive agricultural land in the lower Fraser Valley. At this site, officials discussed the dynamic land use management issues stemming from their proximity to the Delta Port and key conservation issues in North West Canada. 3 Pacific Environmental Science Centre
Located on Burrard Inlet in North Vancouver, PESC is a centre for the study of marine, estuarine, and freshwater toxicology and chemistry, with specialization in bacterial source tracking, marine water quality monitoring, and salmonid toxicogenomics. The Centre works in partnership with B.C. Environment, Health Canada, Transport Canada, Fisheries and Oceans Canada, and the University of Victoria. The Centres activities support environmental enforcement and environmental quality monitoring and key clients include municipal, First Nations, and territorial governments. As part of the visits to the Pacific Wildlife Research Center and the Pacific Environmental Science Centre, participants also attended a discussion and ceremony at the Squamish Estuary and Wildlife Management Area, a fjord estuary which provides habitat for numerous endangered species while allowing for continued traditional, recreational, and industrial uses.
Conference Evaluations147
CONFERENCE EVALUATIONS
1 INTRODUCTION The 9th International Conference convened more than 170 participants from governments, international organizations, and non-governmental organizations from more than 65 countries and institutions in Whistler, British Columbia, Canada. The Conference presented 9 high-level keynote addresses, four plenaries, 34 workshops, and three field visit choices. This report summarizes the responses to the Conference evaluations submitted by participants. Participants were invited to use a 1 to 5 ranking system for each event during the Conference, where ranking of 1 was excellent, 2 was very good, 3 was good, 4 was fair, and 5 was poor. 2 OVERVIEW The majority of respondents to the evaluation rated the overall usefulness or value of the Conference as excellent or very good. Specifically, the following benefits of the conference were consistently rated as excellent by the majority of respondents: Forming effective partnerships among those working in compliance and enforcement. Encouraging ongoing international exchange and regional networking. Fostering exchange of expertise and learning through active participation. Being highly relevant to the respondents current work or functions. 3 SUMMARY OF EVALUATION OUTCOMES
Of the 170 participants, 74 completed conference evaluations. Respondents provided very high marks for the Conference. The average rating for questions ranged between excellent and very good. 3.1 Overall Assessment
Concerning the overall usefulness of the Conference, the majority of respondents ranked the overall usefulness as excellent and its relevance to their current work or functions as excellent. The majority of respondents found the extent to which they acquired new or useful information as very good and the focus of this conference on what they specifically needed or wanted to learn as very good as well. The majority of respondents found the Conference to be an excellent opportunity for forming effective partnerships among those working in compliance and
enforcement, encouraging ongoing international exchange and regional networking, and fostering exchange of expertise and learning through active participation. In particular, respondents commented positively on the strong focus of the Conference on encouraging and enriching networks. The majority of respondents found the Conference to be a very good opportunity for increasing institutional capacity to enhance existing and develop new environmental compliance and enforcement programs and thought that the conference did a very good job at serving all people involved in the design of environmental compliance and enforcement programs. Respondents also felt that the Conference was very good at shaping and confirming the role that INECE will play in the future. Respondents noted their enthusiasm to see follow-up on the Conference outcomes, which some believed to be a true measure of the success of the Conference. In evaluating the structure of the Conference, respondents found that the balance between panels and workshops, the site visits, and the length of the Conference to by very good. Respondents noted that the Conference was well-structured, that the organization of the Conference was excellent, and that the workshops were interesting and valuable. Respondents generally felt that the site visits were too far away and that the link to compliance and enforcement was not strong enough to validate the travel time. A number of respondents felt that the Conference could be at least one day shorter. Concerning the mix of participants at the conference, respondents emphasized the value of the mix of experience represented at the Conference. Respondents generally found the number of individuals at the Conference and the number and types of countries and organizations represented to be very good. Participants commented positively on the strong participation from Africa; on the diversity of compliance and enforcement practitioners represented, including the participation of police and the judiciary; and the fact that every continent was represented. A common comment among respondents was that future conferences could be larger, with a greater number of attendees across a larger number of countries. Respondents also shared recommendations, including inviting more external perspectives, widening the geographic regions represented (particularly Arabic region, Central America, major Asian countries, better balance among European countries), including a greater number of international organizations, inviting a greater number of green experts at the participant level, inviting a greater number of non-governmental organizations and private sector representatives, and larger number of participants who are on the ground staff to share lessons learned and expertise between nations. 3.2 Panel Sessions
The majority of respondents found panel sessions one, two, and three to be very good in terms of usefulness of material covered, mix of topics covered, and opportunity for discussion. On panel session one on the Value of Enforcement Cooperation, a
respondent noted, that the first speaker highlighted the value of bilateral assistance to developing countries, particularly if focused on a shared problem; the second speakers plea for enforcement data collection was a key conference message;: and the third speaker very well outlined what cooperation can deliver. Respondents commented that panel session two on Compliance with National Laws to Honor International Commitments was great, very good, and very successful. Respondents found panel session three, Compliance with Existing Laws and Policies that Deliver Climate Change Benefits, to be inspirational and thoughtprovoking. The comments indicate that the topics presented in panel three were new material to some of the audience, with comments including a new perspective on enforcement in achieving co-benefits and I was unaware of how successful the Montreal protocol has been. Respondents also noted that the presentations on panel three could have been shorter, with more time for discussion. The majority of respondents found panel session four to be excellent in terms of usefulness of material covered, mix of topics covered, and opportunity for discussion. Respondents recognized panel four, on Non-Traditional Approaches to Assure Compliance, as the best panel session during conference and complimented the diversity of presenters and the insight provided. 3.3 Keynotes The Keynote Speeches were ranked, on average, as excellent or very good in terms of relevancy by respondents. Respondents found the opening remarks to be very relevant in introducing the range of issues to be covered by conference. Respondents complimented the keynote addresses, finding them to be terrific, powerful, and very relevant. Some respondents voiced concerns that some of the early presentations could share more practical experience, and that the mix of video to in-person presentations could have been more balanced. 3.4 Workshops Overall, respondents felt that the workshops were excellent, and recognized the opportunities for interactive discussion in the workshops as very valuable, with one respondent noting that the interactive discussion in the workshops was the best I have ever experienced. Many respondents indicated that the workshops provided adequate time for interactive discussion, but some also suggested that 120 minutes may be too long for workshop sessions. 3.5 Site Visits
Respondents found the site visits to be excellent (Pacific Environmental Science Center), very good (Port Metro Vancouver, Pacific Wildlife Research Center Riefel Bird Sanctuary), or good (Capliano Salmon Hatchery, Squamish Estuary and Wildlife Management Area) in terms of quality of the information provided, the quality of the tour, and usefulness. Respondents felt that the information shared during the site
visits was valuable (particularly during the Pacific Environmental Science Center and the Port visit, but that too much time was spent traveling to the sites. 3.6 Buffet of Ideas On the Buffet of Ideas, respondents found the Buffet of Ideas to be an excellent way of exchanging information and an excellent opportunity for discussion with a very good mix of topics covered. A respondent commented that the buffet of ideas was great and brought the best practices from different countries and was very informative. 3.7 Background Papers
While this was not a field of the evaluation, a number of respondents described the value and importance of the depth of the Conference background papers in the open remarks. 3.8 Conference Statement and Conclusion
The majority of respondents ranked the appropriateness of the Conference statement and the degree to which the Statement reflected the purpose and goals of INECE both as excellent. The majority of respondents ranked the closing ceremony as excellent. 3.9 Organization and Logistics
The majority of respondents thought that the location, speakers, service desk, cultural event, and availability of the Conference staff were excellent, and that the schedule was very good. The respondents complimented the secretariat staff and the organization of the Conference, highlighted the value of the content of the Conference, emphasized the importance of networking and contacts made, reiterated that the Conference was too long, and suggested that future Conferences be held in international airport hub cities. Respondents recognized the dinner on Whistler Mountain and the reception at the Squamish LilWat Cultural Center as outstanding. 4 FOLLOW UP AND RECOMMENDATIONS
Respondents plan to use information gathered at the conference when they return home in the following ways: use contacts made to share information and knowledge; in various ways in their daily work; to educate senior executives, management, and colleagues; to build competency; to promote INECE and the benefits of its activities; to adjust some program management practices; to identify possible future/continuing areas of exchange with other regional networks and partners; and to plan a training session for officers encourage better cooperation between the environment agency and port authorities.
Respondents would like to become more involved with INECE in the following areas: participate in future conferences and meetings as a participant, panelist, author, or expert; participate in future inspection projects; participate in working groups; disseminate Conference outcomes at the regional level; liaise with the Secretariat; participate in INECE capacity building opportunities; promote INECE and its goals; advance INECEs message as a resource person or as a trainer. In response to the question of where and when the next conference should be held, most respondents suggested that it be held either two or three years from now. Ideas for locations included Kenya, Asian continent, Australia/New Zealand, Washington, D.C., Chile, and Europe. In response to the request for recommendations for INECE, respondents made recommendations in the following areas: (1) strategic planning (need to expand financial support base, focus on two to three priorities, consider bringing INECE under a UN body to assist with government engagement); (2) promotion (increase efforts to market and promote INECE, communication benefits of compliance and enforcement to environmental governance, network with relevant MEA secretariats); (3) connect with new audiences (provincial/state and municipal levels compliance officers, national level enforcement officials, officials from subSaharan Africa); (4) work on new topical areas (support developing countries with manuals, guidance, and systems on compliance and enforcement, administrative enforcement/sanctioning); (5) keep up the good work, particularly on supporting regional networks. Respondents agreed that environmental compliance and enforcement indicators are very important for program management and that INECE could continue to share capacity building materials, examples of best practices, and key publications and resources on this topic. 5 CONCLUSION The 9th International Conference on Environmental Compliance and Enforcement was evaluated as highly effective by the majority of respondents. Respondents made the following comments about the relevancy, value, and organization of the Conference: This was my first conference and I am filled with new knowledge and inspiration. It was a wonderful opportunity to meet others in the compliance community and to learn new things that will inform my work in the future. This is a wonderful forum where people are really communicate. I am really impressed and will continue to spread the principles of INECE in my country. Good level of speakers and choice of topics. Very well organized.
A very good conference with excellent contact and networking opportunities. The strength of the INECE network is in its diversity of representation which is truly impressive. Overall, an excellent conference. The workshops were very good - the opportunity to discuss was the best I have experienced. Excellent opportunity to meet people of many nations with similar work and similar interests. Established many contacts that I plan to follow up with. Ideas gotten will be shared nationally and regionally to ensure effective compliance and government systems. This has been career high for me. I have received a lot of information and insight. An eye opener, INECE made me realize that barriers could be broken through dedicated cooperation among and between different compliance and enforcement agencies both national and international. Excellent opportunity for networking and learning from others. I feel re-energized and comforted to know so many accomplished people are working to protect our environment. It has been remarkable and insightful conference with great networking opportunities.
2 PAPERS SUBMITTED FOR CONFERENCE PROCEEDINGS
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TRACK A: ENFORCEMENT CHALLENGES ACROSS BORDERS

CO-OPERATION BETWEEN ENFORCERS ACROSS THE BORDER (BELGIUM) BAERT, ROBERT1 and BLONDEEL, MARTINE2 Dr. Sc., Inspector-general of the Environmental Inspectorate Division and ViceChair of the Flemish High Council for the Enforcement of Environmental Law (Robert.baert@lne.vlaanderen.be) (robert.baert@vhrm.vlaanderen.be)
1
Master of Science in Chemistry, Head of Chief Inspectorate, Environmental Inspectorate Division (martine.blondeel@lne.vlaanderen.be)
2
SUMMARY Belgium is a federal state and founding member of the EU: a number of policy areas have been transferred to the regions and communities. The Flemish Region is the most northern of the three regions of Belgium. It is a densely populated and highly industrialized region. In the Flemish Region the Environmental Inspectorate Division is in charge for the enforcement of the environmental health legislation. This legislation obliges plant operators to take all measures to prevent damage and nuisance and has been integrated in the Environmental License Decree (1985) which became operational through its implementing orders Vlarem I (1991) and Vlarem II (1995). Vlarem I defines all types of activities and establishments considered to generate nuisance and that are subjected to general and sector-related provisions, specified in Vlarem II. The main objective of the inspectors of the Environmental Inspectorate Division is to enforce the environmental health legislation for the potentially most environmentally damaging establishments, the so called class 1 establishments on Flemish territory. Most of the inspections (80%) are proactive, planned and coordinated by the Environmental Inspection Plan of this Division, while 20% of them are reactive, most of them handling complaints by inhabitants of the Flemish Region. A problem arises when an industrial installation and its impact zone (of damage or nuisance) are situated on different sides of the border. In this case, the Environmental Inspectorate Division usually initiates a co-operation with the authority competent for enforcement across the border. Two cases of successful cooperation will be described. The first is between the Environmental Inspectorate
Division and its Walloon counterpart for solving odor nuisance in the Flemish Region caused by an odor-producing industrial area situated in the Walloon Region of Belgium. The second is between the Environmental Inspectorate Division and its French counterpart because of high dioxin and PCB-deposition by a company which is situated on both sides of the Belgian/French state border, with a shredder installation on each side. 1 THE ENVIRONMENTAL INSPECTORATE DIVISION 1.1 The Environmental Inspectorate Division within the Flemish Authorities
Belgium, founding member of the European Union, is a federal state with communities (the Flemish, French and German-speaking Communities) and regions (the Flemish and Walloon Regions and the Brussels-Capital Region), which each have their own government and parliament. In the case of the Flemish Community and the Flemish Region these have been combined into one Flemish Parliament and one Flemish Government. The federal level has retained a number of competences: foreign affairs, defense, justice, finance, social security, a part of work and employment, an important part of public health, and internal affairs. The regions are territorial entities. They exercise their authorities with regard to the economy, employment, housing, public works, energy, transport, the environment and land-use planning in their territory. The most Northern Flemish Region is densely populated (6.2 million inhabitants on 13,522 km2) and highly industrialized, with concentrations in the harbors of Antwerp and Ghent and along the Albert Canal. Since April 2006 the Flemish Authorities are organized according to 13 policy domains. The organizational structure of a policy area consists of a department, responsible for the policy formulation and evaluation, and agencies that are executive bodies. The Environmental Inspectorate Division forms part of the department of the policy area Environment, Nature and Energy. 1.2 The Environmental Inspectorate Division in Charge of the Enforcement of the Environmental Health Legislation
Environmental enforcement is the rationale of the Environmental Inspectorate Division. The environmental process consists of supervision, taking administrative measures and sanctioning. The latter is not the task of the Environmental Inspectorate Division. Three strategic objectives steer their core activities: (1) Strengthen the enforcement of the environmental health legislation for a qualitative environment. (2) Intensify active interaction with environmental (enforcement) actors. (3) Strengthen expertise.
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The most important core activity is planned and systematic supervision and taking administrative measures. In the Flemish Region, the Environmental Inspectorate Division is the most important enforcement body for environmental health legislation, which encompasses regulations on integrated environmental licenses, environmental management, water, waste, air, noise and vibrations, soil and groundwater, genetically modified organisms, chemicals and control of major accidents hazards. Most of the legislation concerned is a transposition of European legislation. They tackle its vast mission and the multitude and complexity of legislation with a double internal structure: besides the traditional vertical structure a horizontal structure in the form of working groups per environmental compartment was established. Since June 2006 the Service for the Supervision of Major Hazards Companies is in charge of the enforcement of the legislation on major accidents hazards. It is the Environmental Inspectorate Divisions explicit choice to enforce in a proactive and coordinated way, in co-operation with other competent enforcement authorities. Therefore every year an Environmental Inspection1 Plan is drawn up. This Plan describes the framework within which the Division operates, and explains the options and preconditions of the plan. The plan includes all their activities related to the core activity planned and systematic supervision and taking administrative measures, also referred to as enforcement activities. In this way, they bring their approach in line with the EU requirements on the inspection of major hazard companies and of companies with serious environmental impact. The main part is an overview of the enforcement activities. The plan distinguishes specific enforcement campaigns, routine inspections, reactive inspections, and follow up inspections. All traditional environmental topics are covered. Extra efforts are made in the fields of control of major accidents hazards. The annual Environmental Inspection Plan of the Environmental Inspectorate Division is the outcome of a long process of development in which the contributions of both external enforcement actors - through their different viewpoints, knowledge and experience - and of the Division itself are of crucial importance. Also for the execution of the yearly Environmental Inspection Plan enforcement activities, cooperation between the Division and other local, regional, federal and even international enforcement bodies is a must. These co-operation enables them to deal efficiently with crossborder environmental issues such as supra-regional odor nuisance problems (case 1 below) and crossborder dioxin and PCB contamination by shredder plants (case 2 below). Waste chain enforcement, which primarily consists of checks of the import and export of waste in the sea ports and on the roads, requires smooth co-operation with the competent authorities in the different Member States of the European Union. The annual Environmental Enforcement Report2 gives detailed information on the execution of the enforcement activities of the Environmental Inspectorate Division with special emphasis on co-operation.
CASE 1: CO-OPERATION BETWEEN THE ENVIRONMENTAL INSPECTORATE DIVISION AND ITS WALLOON COUNTERPART FOR SOLVING A CROSSBORDER ODOR NUISANCE PROBLEM 2.1 General Methodology of the Environmental Inspectorate Division to Solve Odor Nuisance Problems3
The environmental health legislation obliges plant operators to take all measures to prevent damage and nuisance. This also applies to odor nuisance. However, in the absence of clear criteria regarding the acceptability of odor pollution, the assessment of odor problems remains a subjective issue, as the extent to which odor is considered a nuisance can vary strongly from person to person. Odor nuisance will show up through complaints from the people living in the surroundings of the sources. Each year, the Environmental Inspectorate Division receives 2,000 to 2,500 complaints of which 600 to 800 concern odor nuisance. In order to investigate such complaints, the inspectors will check the odors in the field and try to locate the sources. If necessary, odor reducing measures will be ordered from the plant operators. This way, most of the odor problems can be solved. During this process, feedback is given to the complainers. However, in some cases the relation between the sources and the nuisance complained about is not so evident. In industrial areas, several similar odor sources may be located close to each other, making it difficult to establish their contribution to the observed odor (nuisance). In other cases, the complainers are not convinced that the clean-up of the odor emissions of a company is sufficient. For solving such complex problems, they will rely on the concerted actions of its inspectors, the neighborhood and an official expert, in the framework of an odor investigation. Usually, collaboration from as many citizens as possible is requested as a large number of observations allow a more objective evaluation of the odor problem. The main aim of these investigations is to determine whether or not the odor pollution is acceptable for the neighborhood. Through questioning of the neighborhood, using odor diaries and telephone surveys and sniffing team measurements, executed by the expert and the environmental inspectors, the odor assessment is objectified and tailor-made maximum acceptable odor levels are deduced. As a result, the odor sources are ranked according to their share in the nuisance and the odor nuisance they cause is evaluated. For important sources, it is possible to calculate the odor emission reduction needed in order to meet the maximum acceptable odor level. Based on the conclusions of such odor investigations, the Environmental Inspectorate Division determines its further attitude towards the companies causing the odor nuisance. They have a number of administrative and criminal instruments to promote and/or force the plant operator to reduce odor emissions. Often, professional negotiations between the Division and the company are required in order to solve the problem. These are formalised by the Environmental Inspectorate Division in an odor clean-up plan with binding and realistic implementation terms. The entire clean-
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up process is closely monitored by them and adjusted if necessary. They also communicate the results of the odor investigation and the odor clean-up plan to the neighborhood and the mayor of the community involved. Later on, feedback is given about the progress of the clean-up process. This way, the acceptance of the outcome of the investigation by the neighborhood is facilitated. They succeeded in solving a number of lingering odor problems using this approach. 2.2 Co-operation between the Environmental Inspectorate Division and its Walloon Counterpart for Solving a Crossborder Odor Nuisance Problem
For several years, people living in the community of Rollegem (Flemish region) were suffering from odor nuisance caused by sources in an industrial area in the north of Mouscron (Walloon region). Rollegem is situated in a valley downwind of this industrial zone (major wind from south-west). Under certain meteorological circumstances, the odor lingers in the valley. From 2001 until 2004, the Environmental Inspectorate Division received 86 odor complaints from inhabitants of Rollegem and the nearby Bellegem and Aalbeke (all communities of the city of Kortrijk). The following odor-producing companies were situated in the industrial area at that time: a potato-chips company, a green composting plant, a slaughterhouse, a processor of oils and fats, a medical waste incinerator, a soap factory and a company producing chemicals. The Flemish Environmental Inspectorate Division is not mandated to enforce odor emission reductions in Walloon companies. For this reason, the Division de la Police de lEnvironnement, the former Walloon counterpart of the Division, had investigated these companies in previous years and had cleaned up the main sources of odor. Because the trend of the complaints showed that the problem had improved since then but had not yet been solved completely, they both decided at the start of 2004 to join forces to put an end to the smell once and for all. This co-operation included an investigation in the surroundings in 2004 on behalf of the Environmental Inspectorate Division, followed by carefully targeted enforcement actions by the DPE in 2005, based on the results of the Flemish odor investigation. The odor investigation has been carried out by the Flemish institute for technological research (Vlaamse Instelling voor Technologisch Onderzoek), which is an independent research centre active in the fields of energy, environment and materials (http://www.vito.be/english/index.htm). It started in August 2004 and the investigation report was concluded in the beginning of 2005. The conclusion of the report was that the industrial area of Mouscron caused unacceptable odor nuisance for the inhabitants of Rollegem. The companies having
the biggest impact and causing the most nuisances were the potato-chips company, the soap factory and the green composting plant. The report concluded with the recommendation to the Division de la Police de lEnvironnement to tackle these three companies as a priority. The Environmental Inspectorate Division communicated the results of the odor investigation and the further measures to be taken by the Division de la Police de lEnvironnement to the neighbourhood and to the mayor of the city of Kortrijk. In this communication, the Division de la Police de lEnvironnement stated very clearly that a clean-up time of two years is usual for this kind of problems. Early 2005, the Environmental Inspectorate Division discussed the results of the environmental study with the Division de la Police de lEnvironnement. Shortly afterwards, they draw up a plan of action which was endorsed by the Environmental Inspectorate Division. The Division de la Police de lEnvironnement conducted a thorough inspection at the three prioritized companies in 2005. Measurements were carried out, among other things to determine the chemical substances which caused the odor nuisance. On the basis of the results of these inspections and measurements, the Division de la Police de lEnvironnement imposed a remediation plan on these companies. Following their enforcement approach on the basis of the results of the Environmental Inspectorate Division investigation, the three companies implemented several odor reduction and control measures in 2005-2006. At the same time, the Division de la Police de lEnvironnement had three monitoring stations installed in the neighborhood of these companies so as to monitor the concentration of the measured odor components in the ambient air. In the autumn of 2005, both organizations met to discuss the state of affairs of the remediation. Late 2006, a consultation took place in the city of Mouscron between both organizations and the city council during which the executed remediation works were discussed and visited on site in the companies. It was concluded that the clean-up by the companies concerned, which had been imposed by the Division de la Police de lEnvironnement, had been finished at that time. In 2007, the Environmental Inspectorate Division ordered the Flemish institute for technological research to carry out an evaluation of the remaining impact of the odor on the inhabitants of Rollegem and its surrounding area after the aforementioned remediation had been performed. As tailor-made criteria regarding the acceptability of the odors in Rollegem had been deduced in the Flemish institute for technological research study of 2004-2005, it was made possible to evaluate the results of the cleanup afterwards. This happened by means of a new environmental study and sniffing team measurements. These took place between September and late November 2007. The final report of the institute became available in February 2008. The conclusion of the environmental investigation which the Flemish institute for technological research carried out in 2007 on behalf of the Environmental Inspectorate Division was that the industrial area of the city of Mouscron still caused unacceptable odor nuisance for the inhabitants of Rollegem. This conclusion was the result of a check of the odor concentrations in the surrounding area, which
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were calculated via sniffing team measurements, against the acceptability criteria for odor nuisance derived in the 2004 study. The companies which according to the 2007 investigation, had the biggest impact and caused the most odor nuisance were, in order of importance, the soap factory and a (new) potato-processing company which had indeed been operational in 2004 but whose production capacity had grown considerably since then. The investigation report stipulated that the soap factory had taken insufficient measures to reduce the odor nuisance to an acceptable level and therefore had to put in additional efforts. The new potato-processing company was working on a remediation at that time. The report also states that the potato-chips company which was already considered in the 2004 investigation could still cause unacceptable nuisance. The company had reduced its odor emissions by 30%, but this seemed to be insufficient. The company was implementing additional measures at that time. Finally, there was another new player (a vegetable-processing company) whose odor emissions were perceptible, sometimes even at great distance. However, it could not be concluded in the evaluation study whether or not this company caused unacceptable nuisance for the surrounding area. It was recommended that this case be followed up. The green composting company finally had taken sufficient measures. It was assumed that this company no longer caused unacceptable nuisance, provided it continued to strictly monitor the introduced odor-reducing measures. The Environmental Inspectorate Division submitted the results of this postevaluation to the Division de la Police de lEnvironnement, which took further enforcement action on the basis of the results of this report. A new meeting between both organizations took place in September 2008. According to the Division de la Police de lEnvironnement other supplementary enforcement actions and remediations had been carried out since the start of the VITO study in September 2007, for which the impact on the surroundings had not been an issue in the evaluation study yet. As predicted by the Division de la Police de lEnvironnement, the Environmental Inspectorate Division can agree that, from mid 2009 on, this former mayor odor problem on Flemish territory turned to settle itself in the memory of the Environmental Inspectorate Division rather than in its priority list for action. 3 CASE 2: CO-OPERATION BETWEEN THE ENVIRONMENTAL INSPECTORATE DIVISION AND ITS FRENCH COUNTERPART TO TACKLE A CROSSBORDER DIOXIN AND PCB CONTAMINATION 3.1 General Methodology of the Environmental Inspectorate Division to Tackle Dioxin and PCB Contamination by Shredder Plants4,5
In the Flemish region, intensive monitoring of environmental levels of PCDD/F and in the food chain is carried out since the early 1990s. The Flemish Environmental
Agency has a deposition measurement program at some 70 locations. Sampling is done on a monthly basis. Since 2002, this Agency also analyses the dioxin-like PCB-126 in these deposition samples. The Belgian Federal Agency for the Safety of the Food Chain is responsible for the monitoring of the food chain. Therefore it determines the PCDD/F and dioxin-like PCB content of cows milk and dairy products. Through mutual co-operation, there is a synergy between the three authorities responsible for environmental enforcement environmental monitoring and food chain monitoring. On the one hand, sampling locations for food chain and environmental monitoring are often chosen based on emission data, provided by the Environmental Inspectorate Division. On the other hand, unknown emission sources have been detected near sites of high deposition and/or food chain contamination and thus could subsequently be cleaned up. The largest point sources of PCDD/F emissions have been monitored and tackled by the Environmental Inspectorate Division since 1993. Stack emissions from major sources, such as waste incinerators, iron sintering plants, non-ferrous metals plants and crematories were all reduced by over 95% after taking process-integrated and end-of-pipe measures. These emission reduction measures were ordered and followed-up by the Division in order to obtain compliance with the legal emission limit values and to prevent any nuisance, damage and danger for men and the environment. Between 1995 and 2002, the total yearly PCDD/F point source emission from industry in the Flemish region decreased from 194 g TEQ to 6.2 g TEQ. Generally, clean-up of the stack emissions quickly led to a sharp decrease in deposition levels and cows milk concentrations in the surroundings of the sources. Also, the average PCDD/F level of Belgian cows milk has steadily been decreasing since the mid 1990s. However, the ongoing monitoring programs kept revealing a few remarkable spot contaminations, which could not be explained by stack emissions. This has led to an investigation of the contribution of diffuse emission sources, revealing the importance of such sources at particular plants. One of those striking cases was the dioxin-like PCB contamination around scrap metal shredders. Therefore, in 2004, the Environmental Inspectorate Division conducted a measurement campaign and investigation on the emissions of dioxin-like PCB. This consisted of stack measurements at 7 shredder plants, mainly treating end-of-life vehicles and waste from electronic and electrical equipment. These measurements showed that most of the PCDD/F concentrations in the flue gases were very low; with an average of 0.05 ng TEQ/Nm and a maximum of 0.37 ng TEQ/Nm. Concentrations of dioxin-like PCB were generally higher than those of PCDD/F. They varied much more between different shredders and even between consecutive measurement days. The average dioxin-like PCB concentration was 0.63 ng TEQ/ Nm. Additionally, on site deposition measurements were performed and sweep samples of on site dust were analyzed. They showed that the on site deposition of dioxin-like PCB was clearly higher than in the surroundings. At several sites, values over 100 pg TEQ/m.day were measured. The high PCB deposition in the close vicinity of the shredders cannot be explained by the stack emissions only. Therefore, it is a strong
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indication of the importance of local diffuse emissions. The congener profile of the deposition samples was investigated. It proved to be very similar to that of the on site sweep dust samples. The results of the analysis of site sweep dust samples showed also much higher concentrations of dioxin-like PCB compared to PCDD/F (on the average about 15 times). This is in agreement with the findings from the stack measurements and, to a lesser extent, the deposition samples. All data on stack emissions, depositions, and sweep dust composition were evaluated, taking into account the congener profiles. It was concluded that diffuse emission sources are having a major impact on the environmental contamination, especially for dioxin-like PCB. These diffuse emissions are mainly caused by the dispersion of PCB-contaminated dust. Major sources of these emissions include handling of scrap and manipulation and outside storage of dry flue gas cleaning residues (filter dust). To improve emission control of the dust, scrap and residues should be manipulated as little as possible and fine dry residues should be stored in such a way that dispersion is minimized. Furthermore, mixing of PCB-contaminated dust with other materials should be avoided. In order to limit the emissions and to prevent damage or nuisance, the plant operators were obliged to apply the Best Available Techniques. By the end of 2004, the Environmental Inspectorate Division had ordered the shredder plant operators to initiate an action plan to reduce the environmental contamination by PCDD/F and (dioxin-like) PCB. The Environmental Inspectorate Division stressed that both primary and secondary measures had to be investigated, including an improved selection of incoming scrap, advanced treatment of the flue gases (high efficiency dust removal), closed storage of the cyclone dust and measures to avoid dust generation during scrap handling. Meanwhile, all shredder plants have implemented these measures in order to reduce their PCB-emissions. Some of these measures could be realised in a short time, some of them took several years because they included building activities. In the spring of 2009 at last, the Environmental Inspectorate Division concluded that all possible measures had been implemented. Unfortunately, the effect of these measures is only slightly visible and the expected downward evolution of the PCB-126 deposition in the surroundings has not been perceived very clearly at all locations. Nevertheless, public opinion had been formed by this time and persistently wanted the Environmental Inspectorate Division enforce shredder plants to reduce PCB emission and deposition as much as possible as to prevent by all possible means PCB to enter into the food chain. Co-operation between the Environmental Inspectorate Division and its French Counterpart to Tackle a Crossborder Dioxin and PCB Contamination by Shredder Plants The Environmental Inspectorate Division co-operated very closely with the French DREAL (Direction Rgionale de lEnvironnement, de lAmnagement et du Logement) Nord-Pas-de-Calais, formerly Direction Rgionale de lIndustrie, de la Recherche et de lEnvironnement, to reduce and prevent the emission and the dispersion of PCDD/F and (dioxin-like) PCB on dust from a scrap metal shredder 3.2
plant in Menen a Flemish city at the border of Belgium and France - towards the surroundings. Because of the very special geographical situation of this company the border crosses this company in the middle of its territory the Environmental Inspectorate Division understood from the very beginning that co-operation with its French counterpart was an absolute must to be successful. At both sites of the border, a shredder installation is active en lots of dust creating activities take place. As mentioned above relating to all shredder plants in the Flemish region, also this company was ordered by the Environmental Inspectorate Division to initiate an action plan to reduce the environmental contamination by PCDD/F and (dioxinlike) PCB. This happened in October 2003. After negotiations between the plant manager and the Division, the manager agreed not to constrain this action plan to the Flemish part of the company but to consider it in an integrated way tackling the different plants of the company at the same time. This included not only the shredder activities on the French side of the border but also a depollution plant of the same company in the neighborhood. The Environmental Inspectorate Division followed the clean-up actions of the company very closely and took several initiatives to discuss the topic with the French DRIRE/DREAL during organized meetings on both sides of the border, by telephone and by mail. The subject of these discussions soon included more than the remediation activities of the company concerned and extended to PCDD/F and dioxin-like PCB problems in general on both sides of the border: in 2003 a meeting took place in Lille (France) about the metal scrap shredder plant in Menen and the former Household Waste Incinerator UIOM in Halluin (France); in 2005 there was a meeting in Halluin and a visit to the brand new waste incinerator following a discussion on emission limit values for PCDD/F on both sides of the border; in 2007 a new meeting was organized in Lille, because of high concentrations of PCDD/F in cow milk in the French region Roncq-Halluin this time and a lot of experience has been exchanged; in 2009 a meeting in Brugge (Belgium) took place and the topic this time was the monitoring of air quality, more precisely deposition of PCDD/F, on both sides of the border. Besides this a lot of contacts happened on an ad hoc basis, most of the times because of complaints and investigations about open fires in France near the border, which were considered as possible PCDD/F contamination sources. The most efficient way of co-operation between the Environmental Inspectorate Division and the French DRIRE/DREAL was by performing mutual inspections, the first one being in October 2003 yet. As a result of these inspections and other co-operation actions mentioned above, the metal scrap shredder plant in Menen also turned very co-operative with the enforcement bodies. The plant manager made an action plan for both Flemish and French installations of the company and the execution of all measures of the plan were followed by both inspectors of the Environmental Inspectorate Division EID and of the French Inspectorate (DRIRE/DREAL). At the end of 2006 all measures had been implemented and the effect was visible as the deposition values of PCDD/F and dioxin-like PCB had been
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decreased. Although, some fluctuations in the PCB deposition values remained and still remain today. After 2006 the company did not stop investing time and money in supplementary measures. As an example, in 2010 the company was preparing to build a high wall around part of the company as to prevent dust to escape from its territory. Both, the Environmental Inspectorate Division and the French Inspectorate (DRIRE/DREAL), nowadays are still following the companys actions in this specific matter. 4 CONCLUSION From the cases above, it is clear that co-operation between enforcers, even across the borders, not only facilitates the enforcement process and solves problems of nuisance or contamination, it might also result in mutual information exchange in the field of environmental enforcement, monitoring and policy. Furthermore it seems that plant managers are more willing to co-operate with the enforcers seeing them co-operating well between each other. 5 REFERENCES Environmental Inspection Plans 2004 and 2007 available at http://www.lne.be/ themas/handhaving/afdeling-milieu-inspectie/environment-inspection-plan/theplans. 2 Environmental Enforcement Reports 2004 and 2007 available at http://www.lne. be/themas/handhaving/afdeling-milieu-inspectie/environmental-enforcementreport/the-reports. 3 Blondeel M., Franois F., Bernaert P., Baert R., (2006) Solving odour problems together with the neighbourhood, WEF / A&WMA Odors and Air Emissions 2006 (Hartford, US); 4 Franois F., Blondeel M., Bernaert P., Baert R., (2004) Diffuse emissions of PCDD / F and dioxin-like PCB from industrial sources in the Flemish Region (Belgium), Organohalogen, 66: 921-927. 5 Franois F., Blondeel M., Bernaert P., Baert R., (2005) Dioxin-like PCB emissions in the Flemish Region (Belgium), Organohalogen, 67: 2140-2143.
1
A DATABASE FOR SUSTAINABLY PRODUCED TIMBER; ASSISTING THE IMPLEMENTATION OF TIMBER PROCUREMENT POLICY BENTHEM, VAN, MARK H.A.1 and TIEMENSMA, HENK2 Senior adviser forest management and forest industries, Probos (Dutch Institute for Forestry and Forest Products)1, P.O. Box 253, NL-6700 AG, Wageningen, The Netherlands, mark.vanbenthem@probos.nl, www.probos.nl
1
Senior adviser Dutch Ministry of Infrastructure and Environment. Department of Infrastructure2, P.O. Box 20000, NL 3502 LA, Utrecht, The Netherlands, henk. tiemensma@rws.nl, www.rijkswaterstaat.nl
2
SUMMARY The Dutch procurement policy demands procurement of sustainably produced timber. However, not all traditional (popular) timber species which are used in the Netherlands are available with a certificate for sustainable forest management that meets the Dutch criteria. Luckily, certification of sustainable forest management has led to the introduction of various new timber species on the market, like the Guarea, nyatoh, tornillo, omu, mukulungu, satin, and cumaru. Purchasers in (governmental) organizations find it difficult to have an overview on the rapidly developing market of certified timber with its wide range of certifications systems and claims for sustainably and legally produced timber. At the same time, specific knowledge of wood properties and uses has decreased in many (governmental) organizations in recent years due to new ways of contracting. To overcome these knowledge gaps, a wood database has been developed. The first database was developed in 2006 for internal use within Rijkswaterstaat, the executive branch of the Dutch Ministry of Infrastructure and Environment, with a limited scope of uses in waterworks. Due to its success in 2009 the scope of the database has been expanded to also include panelboards and timber species with uses in housing
Probos, the Dutch institute for forestry and forest products, aims to make a genuine contribution to the sustainable management of the worlds forests. Probos is an independent not for profit organization, whose primary task is to collect, analyze and summarize vital (market) information, so that the debate on sustainable forest management is based on reliable facts and figures. Furthermore, it is our aim to promote innovations in forest management and the use of sound forest products and services. Since 2007 Probos offers a Helpdesk and training for employees of local, regional, and national governments of the Dutch procurement policy for timber. 2 Rijkswaterstaat is the executive of the Ministry of Infrastructure and Environment. Rijkswaterstaat takes care of the smooth and safe flow of traffic, to a safe, clean and user-oriented rural water system and protects our country against flooding. Rijkswaterstaat manages the national road network (3260 km), the state waterway network (1686 km of canals, rivers and 6165 km waterway in open water) and rural water system (65,250 km2). country against flooding. Rijkswaterstaat manages the national road network (3260 km), the state waterway network (1686 km of canals, rivers and 6165 km waterway in open water) and rural water system (65,250 km2).
1
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and the database was also made publicly available through the internet (www. houtdatabase.nl). Technical features, uses (including demonstration projects), suppliers and availability with a certificate for sustainable forest management that meet the Dutch procurement criteria of over 200 timber species and panelboards can be found in this database. In addition, the database includes various up to date factsheets on relevant topics. The user statistics and response from users show that the database is a valuable tool to facilitate green public procurement, to share knowledge and to promote the introduction of lesser known timber species. Not just for governmental procurement officers, but also for the market in general. 1 BACKGROUND 1.1 History and Use of Tropical Hardwoods in the Netherlands The Netherlands is famous for its struggle against water. Wood has played and still plays an important role in the defense against water. During the Middle Ages, wood was imported from abroad, in increasing amounts due to deforestation in the Netherlands. Up until mid 18th century European species such as oak (Quercus sp.) and pine (Pinus sp.) were used in waterworks. Around 1730 there was an outbreak of shipworm (Teredo sp.) which damaged these waterworks. It was not until about 1850 that the unique properties of certain tropical timber species from the overseas colonies were discovered, such as being resistant to shipworm. Slowly their use in waterworks increased. In the 20th century species from the Dutch colony Suriname, like basralocus (Dicorynia guianensis and D. paraensis) in salt water, and species from western Africa (Congo-basin) like ekki (Lophira alata Banks ex Gaertn.f.) in fresh water, became more important. Ekki was especially popular due to the availability of large sizes and dimensions, next to favorable technical characteristics. Due to high demand for timber after World War II, European low quality softwoods that were poorly dried were used in the building industry. As a result, problems arose, with early rotting of wood in window frames. In the 1970s a great deal of the building industry refrained from European softwood and introduced tropical hardwoods, especially for window and door frames. The most popular specie being dark red meranti (Shorea sp) from Indonesia and Malaysia. Due to their durability, strength, reliable supply, quantity and quality tropical hardwoods became very popular. Craftsmanship and broad knowledge of timber properties slowly disappeared in all parts of the timber chain and wood processing was increasingly automated. 1.2 Use of Timber in the Netherlands In 2009 the Netherlands consumed 11,6 million m roundwood equivalents, which is a drop of 29% compared to the year 2000. Of the total consumption 700.000 m roundwood equivalents (6%) is, tropical timber. The distribution of the wood consumption is as follows: 50% paper and paperboard; 30% sawn timber; 16% panels and 4% other uses (Probos, 2010).
In 2008 33,8% of the total consumption of sawn wood and wood based panels in the Netherlands was labeled with a certificate of sustainable forest management complying with the procurement regulations of the Dutch government (see 1.3). This share of total consumption is a substantial increase over 2005 when 13,3% of the total consumption was certified. Due to its proximity to the sea, the Netherlands import large quantities of timber consumed elsewhere in Europe. In 2009 a total of 6,5 million m roundwood equivalents was imported and exported directly (Probos, 2010). Estimated imports of wood products with an illegal origin into the Netherlands fell 21% between 2004 and 2008 and were estimated at around 900.000 m roundwood equivalents in 2008, mainly from China, Indonesia, Russia and Brazil (Chatham House, 2010). Figure 1: Proper specification and innovations in the use of timber contribute to sound timber use, such as this bridge for the heaviest traffic class over Highway A7 at Sneek, made from modified timber (Accoya) from sustainably sourced softwood.
Credits: SHR Hout Research
1.3 Timber Procurement Assessment System Worldwide there are several certification schemes claiming to deliver Sustainable Forest Management. Since the early 1990s there has been debate on what can be defined as sustainably produced timber. In 2002 the Dutch government took the initiative to draft a guideline for the assessment of certified wood products based on the Dutch standards for sustainable forest management. Wood and wood products put on the Dutch market, which meet the standard could be labeled with a special mark. At the end of 2005 there was an agreement about the content of the national guideline, but Non Governmental Organizations could not agree with the proposed organizational structure and they withdrew from the process. The Ministry of Housing, Spatial Planning and the Environment (VROM, the predecessor of the current Dutch Ministry of Infrastructure and Environment) then decided to continue its work, as it needed assessment criteria for environment friendly procurement of timber. To verify the practical applicability of the assessment criteria six certification systems were tested by a board of independent experts. It appeared that none of the systems were fully compatible with the Dutch criteria. The main reason for this was that the criteria were too detailed and complex. The Board recommended establishing an improved and more simple set of criteria that will solely be used for the purpose of public timber procurement instead of a set of criteria for the complete Dutch market. After an extra round of consultation-meetings with relevant stakeholders in May 2008 the Timber Procurement Assessment System was finalized and approved by the Minister in June 2008. The primary objective of the system is to ensure governmental parties, both national and local, that procured timber comes from sustainable sources or, in case evidence can be provided that sustainable timber is not available, at least from legal sources. In addition, the system may also provide this assurance to other timber buying parties like companies and consumers. To meet the objective, the Timber Procurement Assessment System comprises two main items: 1) a set of clear and transparent Timber Procurement Criteria for the Chain of Custody (CoC) and for Sustainable Forest Management, which include legality requirements; and 2) a framework of further requirements and procedures for the verification whether the timber comes from sustainably managed sources or, in case the specified timber is not available from sustainably managed sources, at least legal sources (TPAC, 2010). The Minister has installed the Timber Procurement Assessment Committee (TPAC) to assist the Government Procurement Officer in assessing compliance with the Dutch timber procurement requirements. This committee assesses whether certification systems for timber meet the Dutch Procurement Criteria, and further requirements regarding the reliability of these certification systems. This is the so called Category A evidence consisting of a certificate of the timber and wood products issued by any of the certification schemes that meet the Dutch timber procurement requirements for Category A. In addition, the Timber Procurement Assessment Committee assists, on request, the Government Procurement Officer in assessing so called Category B evidence for sustainably produced timber and for legal timber. Category B evidence is any credible documentary evidence, other than
a Category A certificate, that provides assurance that the timber and wood based products meet the Dutch Timber Procurement Criteria (TPAC, 2010). To enable the Timber Procurement Assessment Committee to make more thorough assessments of certification systems, all stakeholders are invited to share their knowledge and opinions on the functioning of certification systems on an Internet forum at www.tpac.smk.nl. The staff of certification systems is also invited to participate and provide additional information where necessary. Following the wrap-up of the forum discussion, the Timber Procurement Assessment Committee reports back how the comments have been taken into account in the final assessments of the certification systems. These forum reports can be downloaded from the website of the committee. The Timber Procurement Assessment Committee reports the results of the assessment to the Minister and currently to the State Secretary of the results of the assessment. It is up to the Minister or State Secretary whether a certain certification scheme is accepted as being sustainable within the Dutch procurement policy. The following certification systems currently (March 2011) meet the Dutch Timber Procurement Criteria and are accepted within the Dutch procurement policy: Forest Stewardship Council (FSC) and all certification systems endorsed by the Programme for the Endorsement of Certification systems (PEFC), excluding the Malaysian Timber Certification Scheme (MTCS), which is not yet regarded as being sustainable by the Dutch government. All other certification systems that are endorsed by the Programme for the Endorsement of Certification systems (like the Canadian Standards Association (CSA) and the North American Sustainable Forestry Initiative (SFI)) automatically meet the Dutch Timber Procurement Criteria. 1.4 Sustainable Procurement Goals From 2010 onwards, the Dutch federal government is committed to 100% sustainable procurement. In addition, local municipalities aim at 75%, while provinces and water board districts aim at 50% from 2010 onwards, reaching 100% in 2015. Verified legal is the threshold. The Netherlands follow the United Kingdom with regards to what is legal timber. This means that the following legality verification systems are accepted as proof of legality: Timber Legality and Traceability Verification (TLTV) and timber with a Forest Law Enforcement, Governance and Trade (FLEGT) license. The Malaysian Timber Certification Scheme is a certification system for sustainable forest management, but has so far the status of evidence for legality within the Dutch Procurement Policy. In addition to the objectives of certain percentages of sustainable procurement, the Dutch government has put a target of 50% sustainably produced timber on the Dutch market in 2011. 2 WOODDATABASE AS A TOOL 2.1 History of the Current Database
Decreasing knowledge of wood properties and uses, new ways of contracting in which types of materials are not prescribed, and the large amount of different certification
schemes all claiming to meet sustainability criteria have made it evident that there was a wish for tools assisting both procurement officers and the marketplace to meet the goals with regards to sustainable procurement. One of the tools suggested by Probos was a database in which several important aspects could be integrated: 1) which species is suitable for which application; 2) what are the experiences with the species in this application; 3) is the species available with a certificate for Sustainable Forest Management meeting the Dutch Timber Procurement Criteria; 4) who can deliver the species; and 5) how to inform a large target group on the sustainable procurement policy, including background information on a wide range of subjects. Especially Rijkswaterstaat, as one the largest tropical timber users in the Netherlands, needed urgently tools and criteria for their procurement officers to be used for the selection of sustainably produced timber and asked Probos to develop the database suggested. At first, the wood database was developed in 2006 as an (internal) intranet-website focusing only on uses within the waterworks. In 2009 the database was extended including and timber species with uses in housing and made this publicly available through the internet (www.houtdatabase.nl). Appendix 1 describes the technical features of the database. Figure 2: Not prescribing specific timber species in contracts, but the relevant physical and mechanical properties makes it more feasible to meet the requirements with regards to sustainably produced timber. Good example is this bridge in Amsterdam, where the following, partly lesser known, timber species have been used: angelim vermelho (Dinizia excelsa Ducke.), cumaru (Dipteryx spec.), cupiupa (Goupia glabra Aubl.), piquia (Caryocar spec.), tatajuba (Bagassa spec.) and uchi torrado (Sacoglottis guianensis Benth.). Without treatment, the difference in color is soon invisible.
Credits: Precious Woods Europe BV
2.2
Content Wood Database
For each wood species/panel type the general information is available on origin, availability with certificate of Sustainable Forest Management and/or legality verification system (including the status of the certificate in question within the Dutch procurement policy), physical-mechanical properties, esthetical properties (including pictures of the wood of each species), and the processability. In different tabs, additional information is available: extensive technical features (differentiated into practical experience and information gathered in laboratory tests), uses, demonstration projects in the different sectors (including factsheets with pictures and contact details) and suppliers. Suppliers are encouraged to keep their contact details and timber range in the database up to date and to add demonstration projects. In the database there are currently 214 species described and linked to over 600 suppliers, mainly in the Netherlands. Over 100 demonstration projects can be found. This enables sharing of knowledge, especially relevant for the so called lesser known timber species (see Appendix 2). In addition there are fact sheets available on a wide range of subjects. Ranging from the Dutch Procurement policy and details on all Sustainable Forest Management certification systems and legality verification systems to proper specification. The main goal of the database is to inform users on the availability of species suitable for certain application with a Sustainable Forest Management certificate which is accepted within the procurement policy. This means that the option meets the Dutch Procurement Policy is standard checked (see figure 3.2) and only Chain of Custody certified suppliers are shown, since only Chain of Custody certified companies can officially claim to deliver certified timber. 2.3 Search Options Entering the site from the home page, visitors first have to choose a sector: housing, waterworks or panel boards (see figure 3.1). Next all species which have applications in the specific sector pop up and the user can search the database from various points (figure 3.2). First option is to select a certain application, like door panels or bridge decks. This is the preferred search option, since one of the aims of the database is to exchange knowledge on all timber species, not just the most common ones. If a certain application is selected, all species suitable for this application are shown in alphabetical order. This means next to common species also lesser known timber species will be shown (see Appendix 2). The database contains a total of 52 applications (see Appendix 1). All applications are based on official directives in which properties needed for a specific use are described. In addition the database can be searched for more than ten physical and mechanical properties (in ranges), such as mass and wood rigidity, and six esthetical and processing features. If one or more search options are selected (figure 3.3), all species which meet the criteria are listed (figure 3.4). From each species all details can be found (figure 3.5), including demonstration projects, which pop-up as pdf (figure 3.6), and Chain of Custody certified suppliers who claim to be able to deliver the species (figure 3.7).
Figure 3.1: Homepage of www.houtdatabase.nl. Visitors have to choose a sector: housing, waterworks or panel boards.
Credits: Stichting Probos Figure 3.2: If a specific sector is chosen, all species which have applications in this sector pop up. In this case waterworks is selected and 72 species, available with a certificate that meets the Dutch procurement criteria, pop up. In addition, several search options come into view. Next to applications, the database can be searched for more than ten physical and mechanical properties (in ranges), such as mass and wood rigidity, and six esthetical and processing features.
Credits: Stichting Probos
Figure 3.3: Preferred search option is to select a certain application (instead of a certain species). In this case Sheet piling and camp shedding is selected.
Credits: Stichting Probos Figure 3.4: When selecting Sheet piling and camp shedding, 52 species pop up. All available with a certificate that meets the Dutch procurement criteria.
Credits: Stichting Probos
Figure 3.5: From each species all details can be found in different tabs. Ekki (Lophira alata Banks ex Gaertn.f.) is here shown as an example. Ekki is available with a Forest Stewardship Council (FSC) certificate. FSC meets the Dutch procurement criteria with regards to sustainable produced timber.
Credits: Stichting Probos In text: in relation to paragraph 2.3 Figure 3.6: When selecting the tab Applications, all applications of ekki (Lophira alata Banks ex Gaertn.f.) come into view, including demonstration projects. Each demonstration projects can be viewed by selecting the desired one, after which the demonstration project pops up as a pdf document. In this case the boardwalks at the sea front of Oostende.
Credits: Stichting Probos In text: in relation to paragraph 2.3
Figure 3.7: When selecting the tab Suppliers, all Chain of Custody certified suppliers who claim to be able to deliver the species (in this case ekki (Lophira alata Banks ex Gaertn.f.)) come into view. Contact details of each supplier can be viewed, such as in this case Wijma Kampen B.V.
Credits: Stichting Probos In text: in relation to paragraph 2.3 2.4 Maintenance Keeping the database up to date is the key to preserve the value of the database. Addresses of suppliers change, new certification systems enter the procurement policy, companies obtain and loose their Chain of Custody certificate, new (certified) species enter the market, factsheets need regular updating, etc. While still running as an intranet-application Probos executed the maintenance, financed by Rijkswaterstaat. With the extension of the contents of the database and making it available to the public internet in 2009, Probos agreed to find a partner who would take care of day-to-day maintenance and deal with questions, complaints, etc. Centrum Hout (Wood Information Centre), part of The Royal Netherlands Timber Trade Association (VVNH) was the logical partner. From 2010 onwards they maintain the database. Probos is responsible for ensuring the quality and independence of the database and that the definition to what is called sustainable timber is in line with the Dutch procurement policy. A board of independent experts has been established to seek an agreement for conflicts, should they arise. So far, the corporation between Probos, Centrum Hout and the users has been excellent. 2.5 User Statistics Probos and Centrum Hout are satisfied with the number of visitors that uses the internet version of the database. The database was launched by the Dutch Minister of the Environment on December 1, 2009. In 2010 18.427 visitors made their way to
the database, of which 13.100 unique. Visitors came from 86 countries, but since the database is in Dutch the vast majority of visitors came from the Netherlands (84%) and Belgium (11%). The majority (52%) of the visitors finds the database by search engines, where houtdatabase.nl, houtdatabase and hout database are top three keywords. 30% of all visitors reach the site by direct traffic and 18% through sites which refer to the database. The visits by smart phones are so far limited (118 times in 2010). Based on the number of visitors in the first three months of 2011 (5.038, of which 4.070 unique) it is expected that the database will be used over 20.000 times in 2011. 3 FUTURE CHALLENGES
Keeping the website up to date is one of the main challenges, as mentioned before. But there are additional challenges. For instance, timber suppliers claim to be able to deliver a large amount of timber species to attract as many customers as possible. However, a lot of these suppliers do not have all these species in stock or quickly available. In some cases they have never traded the species and will try to sell a different species instead. Above this, incidentally, the same or different species is offered with another or not even a certificate of Sustainable Forest Management that is excepted within the procurement policy. Another challenge lies in the possible extension of the database with other applications, such as flooring, furniture and office supplies. A topic of current interest is the debate on whether to allow other materials in the database. Centrum Hout regularly receives requests to add products with applications in housing and waterworks, but made of for example bamboo or wood-plastic composites. So far the position has been to only accept products made from pure wood fiber into the database. 4 CONCLUSION
Wood is a beautiful, renewable and a very environmentally friendly material (Frhwald, Welling and Scharai-Rad, 2003). Use of timber is one of the ways to give forests value and thus decreasing the chance forestsbeing cleared for other land uses. The main precondition is that wood is sourced from proven sustainably managed forests. Certification of Sustainable Forest Management and the Chain of Custody is the tool to ensure this proven sustainable provenance. For almost all applications enough timber species are currently available with a certificate of Sustainable Forest Management on the (Dutch) market. However, due to the often still traditional way of procurement and contracting, in which only a few popular species are prescribed, the potential of species and volume of sustainably produced timber is not optimized (see also Appendix 2). Due to the wood database this optimization has come a step closer as all actors in the timber value chain, from supplier, architect, contractor and (governmental) procurement officer, now have an excellent tool to source sustainably produced timber that meets the Dutch procurement criteria.
5 BIBLIOGRAPHY Dutch Timber Procurement Policy, Framework for Evaluating Evidence of Compliance with Timber Procurement Requirements. 2010.Retrieved 13 April 2011 fromhttp://www.tpac.smk.nl/webadmin/files/pdf/system%20 documents/Dutch%20Framework%20for%20Evaluating%20Evidence%20of%20 Compliance%20with%20Timber%20Procurement%20Requirements_Feb%20 2010%20(3).pdf. Frhwald, Welling, Scharai-Rad, Comparison of wood products and major substitutes with respect to environmental and energy balances, UNECE/FAO seminar: strategies for the sound use of wood, Poiana Brasov, Romania, 24-27 March, 2003. Grant, J., WWF US and WWF Bolivia, Promoting responsible forest trade of lesser known timber species, Santa Cruz, Bolivia, 2008. Lawson, S. and MacFaul, L., Illegal Logging and Related Trade: Indicators of the Global Response. Chatham House (The Royal Institute of International Affairs), London, UK, 2010. Oldenburger, J.,Winterink,A. and Leek, N.Market share of certified wood more than doubles. Stichting Probos, Wageningen, the Netherlands, 2010. Probos, Kerngegevens Bos en Hout in Nederland. Stichting Probos, Wageningen, the Netherlands, 2010 (Dutch only). APPENDICES (3) APPENDIX 1 TECHNICAL FEATURES The wood database was originally developed in 2006 for Rijkswaterstaat as an (internal) intranet-website in PHP, using a MySql-database. The database consists of two main tables: wood species / panel boards and wood suppliers. Currently, there are 214 species and boards and more than 600, mainly Dutch, suppliers in the database. In order to publish the wood database on the public internet, the website was converted to Drupal by creating a custom Drupal-module in PHP in 2009. The main reason for converting into Drupal (a content-management-system for websites) was to establish a better security scheme, and to create a more user-friendly and flexible maintenance environment. This also allows third parties performing maintenance on the database. The database also contains a page on which third parties such as suppliers, structural engineers, builders, researchers etc can upload information on new timber species that enter the market or new demonstration projects. Also suppliers can check and change information about their company. After a check by Centrum Hout this information will be incorporated in the database.
APPENDIX 2 LESSER KNOWN TIMBER SPECIES Natural forests can consist of hundreds of different species. With sustainable forest management one looks at the full range of species present and not just the few well known species. Using a broader range of species conforms demand to what natural forests can produce sustainably and can reduce the chances that well-known species will be overexploited. Lesser known timber species can often substitute for betterknown species in terms of performance and aesthetics in most applications, but they are generally more cost effective because they are abundant and underutilized. The many lesser known timber species available with rich, truly exotic colors and textures provide new design opportunities for homeowners as well as architects and designers. The use of lesser known timber species can alleviate pressure on well-known timber species and increase the economic viability of sustainable forest management (Grant, WWF US and WWF Bolivia, 2008). It is therefore important to not prescribe specific timber species in contracts, but the relevant physical and mechanical properties (see figure 2). APPENDIX 3 APPLICATIONS PRESENT IN THE WOOD DATABASE Waterworks boardwalks (footways, scaffolding) Bridge decks and timber for landing docks (decking) planks for lock or flood gates construction and fender piles Sheet piling and camp shedding horizontal (hand) rails, parapets fitting or battered piles sawed poles round poles baffle boards / noise barriers lamp and electricity posts / lighting columns traffic gantries traffic barrier, road restraint systems fascine mattress road foundation Housing and utility construction industry doors (indoor and outdoor) doorframe (indoor and outdoor) windows (indoor and outdoor) window frame (indoor and outdoor) siding stairs (indoor and outdoor) steps (indoor and outdoor) handrail, banisters (indoor and outdoor) beams and purline
rafters and joist / girder columns furring strips banisters rail parapet skirting boards, plinth frames lath Panels girder / joist plywood gusset shedding stiffening plate building (bearing)walls plates/sheets/board connectors at joint structures formwork ore falsework outdoor applications siding lining floorboard
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ILLEGAL EXPORTS OF HAZARDOUS WASTE AND USED ELECTRONIC PRODUCTS: ENHANCING COLLABORATIVE ENFORCEMENT WITH CUSTOMS HEISS, ROBERT G. Director, International Compliance Assurance Division, Office of Federal Activities, Office of Enforcement and Compliance Assurance, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, N.W., Washington, D.C. 20460, USA Heiss. Robert@epa.gov SUMMARY This article explores the critical role of the customs agency, in joining with the environmental ministry of any country that is seeking compliance with its laws against illegal exports of hazardous waste and used electronic products, to pursue effective collaborative inspections and other enforcement activities. It discusses the existing barriers and suggests how to promote greater cooperation between the two agencies, by first recognizing institutional differences as well as mutual interests of each, and then by laying an adequate foundation for collaboration and identifying areas for cooperation on export enforcement. 1 BACKGROUND The customs authority of a country serves as the gatekeeper for a nations ports and in most countries provides the primary law enforcement presence of the national government across many areas of legal control. Environmental protection competes for attention at seaports with many other mandates for enforcement that may seem to offer greater potential for harm, if ignored, or return on law enforcement investment, if investigated. The bureaucratic cultures of the customs service and the environmental ministry are shaped by the specific history, organization, and mission of each, and they tend to be quite different. In the recent past, their common environmental enforcement interests with respect to international trade have generally intersected on the entry of environmentally dangerous materials into the commerce of the country, but often less so on the export of such materials. 1.1 Customs Operations Historically and Today For centuries customs resources have been generally allocated primarily (if not exclusively) to ports of entry (or to specifically the entry lanes of a port serving both inbound and outbound trade). This reflected the reality that tariffs and duties on imports of goods provided a reliable revenue stream for the nations treasury that customs was responsible for collecting. Indeed, the customs authority was typically located in the treasury or revenue ministry of the government. To protect
the national interest, however, customs also interdicted contraband and dangerous products, and barred undocumented immigrants from entry; in recent times this has also included drugs and weapons, and dangerous agricultural produce, among other things. Terrorism threats have reinforced the focus on imports. In recent times a shift has occurred as free trade among nations has spread, reducing the general collection of tariffs. Trade has rapidly increased in volume with the advent of containerized shipping and the globalization of trade. These trends have placed greater pressure on customs inspections and enforcement. Although hazardous wastes and, more recently, used electronic products generated domestically have been exported in increasing amounts, imports of commodities for sale continue to receive primary attention from most customs services. Logically, importing nations examine goods coming into their countries, and, consequently, exports of all kinds generally remain secondary in importance, especially given the competing demand for limited resources. However, many customs agencies, particularly in developing countries, may not have the capacity to distinguish and enforce against environmentally prohibited imports, creating a gap that can cause extensive harm to human health and the environment. Even today exports of goods generally continue to be of less interest than imports unless they appear to be associated with some specific criminal purpose, such as the evasion of domestic taxation on goods (e.g., cigarettes) or the fencing of stolen products (e.g., luxury automobiles) by organized crime, or are connected with terrorist activities. Given that an exporter can declare to customs that the shipment of waste is of zero or negative value (despite any potential for recycling), its exportation is regarded as a positive outcome for the sending country, and the consequences for the receiving country are not of domestic concern. The growing awareness of the global effects of poor environmental practices, however, is finally bringing about some change in this perception. At the same time, some customs agencies have implemented a basic shift; from controlling goods only at the point they cross borders and enter ports (i.e., clearing customs), to securing the whole supply chain.1 This shift can variously be attributed to the globalization of the economy, concerns about imported goods that do not meet domestic health or safety standards, and, most apparently, the war on terrorism. In so doing, these customs authorities increasingly scrutinize the transactions of the international trade community in a new way that parallels cradle-to-grave tracking, the basic principle of hazardous waste management. Nevertheless, customs operations worldwide still substantially reflect the traditional priorities of international trade, namely, products rather than wastes, and imports rather than exports. 1.2 Export Enforcement as an Essential Tool of International Environmental Protection Environmental policymakers and ministries recognize that illegal exports of hazardous waste, although sometimes beneficial to the short-term interests of the
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source nation, can produce environmental harm even within their own countries. These movements disserve mutual international waste policies, and only lead to broader pollution problems in the longer run. In the case of waste exports, lopsided shipping patterns, such as the current East-West trade in goods manufactured in Asia, affords an opportunity for criminal exploitation: the glut of empty containers outbound from North America and destined for return to Asia can be loaded with unauthorized waste exports for financial gain. Decades ago the United States Congress addressed abuses in exports of hazardous waste to the developing world by amending the Resource Conservation and Recovery Act (RCRA) to add a new Section 30172 , which conferred authority on the Environmental Protection Agency (EPA) to regulate the export of hazardous waste. The Section prohibited its export unless the receiving country had consented to the shipment. The law required a notification containing detailed information about the intended export, evidence of consent to accompany the manifest during movement of the waste, and an annual report to be filed with EPA summarizing the prior years shipments. This legislation was in response to reported incidents involving the dumping of hazardous waste from the United States in Africa, Central America, and elsewhere, and it recognized the problems associated with sending wastes to places that could not properly manage the wastes.3 New implementing regulations also required the transporter of hazardous waste for export to deliver a copy of the manifest documenting the outbound shipment to U.S. Customs and Border Protection at the point of departure from the United States.4 They collect and forward these export manifests to the EPA for compliance monitoring purposes. 1.3 The Basel Convention and Enforcement Challenges
The Basel Convention5 controlling transboundary movements of hazardous waste has created obligations for sovereign nations at both ends of the transboundary movement chain (and also on the transit countries in between). In particular, it requires the sending country to provide a notice to ensure prior informed consent of the receiving country before shipment occurs. Not only must the receiving country consent, but the sending country must first satisfy itself that the receiving facility is capable of environmentally sound management of the waste. Environmental ministries, not customs ministries, implement this international agreement. Thus, stopping an illegal export of hazardous waste is the primary responsibility of the environmental program and its enforcement resources, and not the customs authority. In fact, however, some Basel Parties have not yet fully implemented the Convention and appear to lack an effective regime of enforcement measures to stop shipments that are not in compliance with Basel controls. The Basel competent authorities who operate the notification process in each country may not have strong enforcement programs in their own ministries, are not customs officials themselves, and do not necessarily enjoy a close relationship with counterparts in the customs ministry of their own country. A greater degree of inter-ministerial cooperation does not exist between the customs and environmental
ministries in a country simply because it is a Party to the Convention. Instead, it falls to each state internally to attempt to bridge this gap. 1.4 The World Customs Organization and Its Environmental Crime Initiatives
Similar to the Basel Convention, the World Customs Organization (WCO) recognizes the duties of exporting countries and has encouraged customs authorities in those countries to participate in law enforcement activities relating to the export segment of the trade. In June 2008 the WCO Council adopted the Customs in the 21st Century policy paper, which identified as Building Block 1 the model of globally networked customs focused on tracking and tracing goods throughout the endto-end international supply chains that exist. Commenting on this principle, then WCO Secretary General-Elect Kunio Mikuriya observed, [T]his concept derives from the shift in customs attention from traditional import controls to the entire supply chain, including export and transit.6 In 2009, when the WCO launched its Environmental Crimes Year, Secretary General Mikuriya declared: [C]ollaboration between customs authorities in exporting countries and those in importing countries is also critical to enforce trade control at both ends of this operation.7 Its environmental crimes inspection project the same year, called Operation Demeter, included both sending and receiving nations in the participating customs authorities, in 64 countries in Europe, Africa, and Asia/ Pacific.8 2 THE CRITICAL NEED FOR A PARTNERSHIP BETWEEN CUSTOMS AND THE ENVIRONMENTAL MINISTRY TO ENHANCE EXPORT ENFORCEMENT
Customs is the essential partner of environmental ministries that are seeking to stop illegal exports of hazardous waste at ports, just as it is for stopping illegal imports. Furthermore, the effective implementation of advanced risk assessment tools like intelligence-led enforcement9 at ports will not be feasible without a close degree of cooperation and information sharing between the two agencies (and any other relevant government entities). This concern was specifically voiced by countries participating in the INECE Seaport Environmental Security Networks International Inspection Project in 2010.10 It applies to exports as well as imports. How can this occur? Customs authorities need to see potential value in incorporating expanded export operations into their activities, or to recognize the risk of not doing so. Effective advocacy by the environmental ministry depends on the ability to recognize what motivates its customs counterparts, and where the common ground lies in the missions of both. Either the environmental ministry or someone in a higher position of authority must then make the case for cooperation on this basis. Ultimately, of course, senior environmental policy officials within a governmentpreferably at a level over both the customs and environmental ministrieswould be the most
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effective catalysts to direct this policy change, but that is unlikely to occur on an operational issue like this. The environmental ministry must recognize that customs, with broad-based gatekeeping responsibilities over a nations ports and borders, must ration its scarce intelligence and inspection resources in a manner consistent with its mandate and its political base of support. Furthermore, like all public bodies, it must be able to expect a reasonable return on its investment of those resources, since it is accountable for its actions. Indeed, the allocation of resources to participate in export activities of an environmental protection ministry must be justifiable both to the public and those who have oversight and appropriations authority over the customs ministry. 2.1 Motivation of Customs Authorities to Undertake Export Inspection Activities An environmental agency may persuade the customs authority to recognize the substantial public interest, and indeed institutional self-interest, involved in responding to a demonstrated risk to health or safety at a port; in fighting criminal behavior that is associated with more widespread, organized crime; or in serving a real commercial need in the international trade community, which, if met, will benefit the nations economy. Sometimes equally effective, however, is the risk of negative publicity from an external task force, investigative agency or NGO if something is not done and violations are detected or illegal shipments are returned after rejection elsewhere. Hazardous waste that improperly departs from one country, and is interdicted and returned from another country, can place at risk the population of the exporting country itself. Now the generating country is not rid of the waste and is playing the price for not controlling the original exportation. Alternatively, a customs ministry may receive a directive from the top that will cause it to commit more resources to monitor exports. The adoption of stricter laws calling for enhanced enforcement may become a national priority, and the customs authority enlisted in that effort. For example, a country may pass a stewardship statute restricting the export of used electronic products, or it may decide that the demonstrated effects of illegal export trade in these products on human health and the environment in another country or region reflect adversely on the sending country. Effective, enforceable regulations will be needed in order to implement this political will. Of course, for an enhanced level of involvement in export traffic, the customs ministry will either require more resources or permission to reallocate resources and disinvest in some of its current work. 2.2 Risks Associated with Customs Cooperation in Export Enforcement The customs authority will look beyond the initial inspection to the question of what to do with any waste that is intercepted and held for any period of time. Customs will resist being stuck with the bill and can be expected to raise the problem as a potential, threshold impediment to cooperation.
Typically the customs authority and the environmental ministry lack the financial resources to serve as the guarantor of the unpredictable expenses associated with storage costs, and, in the case of abandoned wastes, also disposal costs. This problem can be resolved by legislation or a policy, if properly funded. Domestic legislation that assigns liability to illegal exporters whose wastes are returned and underwrites the cost of managing abandoned wastes, or clearly delineates financial responsibility within the government, and, importantly, provides the necessary funds to cover that responsibility, would solve this issue in countries where it is a problem. The key point is that, if an established policy ensures the waste will be removed from customs premises (and responsibility), that will eliminate the issue as an impediment to cooperation.11 3 ESSENTIAL ACTIVITIES FOR CULTIVATING A PARTNERSHIP
To earn the confidence and support of the customs ministry, the environmental ministry needs to solicit the participation of customs, especially on export enforcement, by cultivating customs as a partner in a full range of essential activities, and not merely as an ancillary player or afterthought, and not on only one or a few of these activities. Some essential areas for building trust and gaining strong support for a joint enforcement export activity are the following: 1. establishing a face-to-face relationship at ports; 2. providing training on existing environmental laws and their objectives; 3. assisting with the enforcement of existing environmental laws controlling exports; 4. sharing intelligence; 5. jointly planning and conducting enforcement exercises; 6. jointly assessing operations and making improvements; 7. jointly developing new or improved laws with enforceable requirements. Three of these areas merit particular attention. A face-to-face-relationship costs time and money to the environmental ministry since its notification and other functions are not physically conducted at ports, and its offices may be quite distant from them. Nevertheless, the environmental ministry must recognize that government agencies that have the most productive relationships with customs authorities already do this on a consistent basis. Intelligence gathering and analysis conducted by most customs authorities has been primarily directed at imports, but export intelligence now also becomes increasingly critical in order to effectively target the deployment of limited inspection resources. A functioning pipeline of robust, shared information for targeting purposes, and the critical analysis of that information to develop targets, must precede the actual initiation of joint activities.
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Finally, there is a need for joint or consultative development of new or amended statutes or regulations. If customs will be tasked with a new function at the ports, then its involvement must be solicited and pursued at the outset, its needs and potential reservations as to practicability must be resolved, and its complete commitment obtained. At the same time the availability of resources for customs to take on new responsibilities will need to be explored, just as it must be for the environmental ministry. What cannot be worked out consensually between the agencies may need to be internally decided at the highest levels within the government. 4 EXAMPLES OF EFFECTIVE EXPORT COLLABORATION
It takes domestic political will to push collaboration between agencies to promote environmental protection that includes significant attention to the policing of exports as well as imports of wastes, and to developing international enforcement relationships with the other countries affected by the trade. Some recent developments offer not only hope on this score, but also provide concrete examples of positive steps that can be taken. The examples set forth below reflect different points along the continuum of collaboration; some countries will ultimately experience a full integration of operations at ports, while others, because of their circumstances, may only reach the stage of limited interaction. Along the way, the two agencies may decide that a Memorandum of Understanding would help establish the rules of engagement on cooperative inspection and the sharing of information.12 Regardless, it should be emphasized that effective cooperation in any degree is beneficial. 4.1 Short-Term Cooperative Projects Most countries participating in the 2010 INECE International Hazardous Waste Inspection Project at Seaports13 involved both their customs and environmental ministries. The project was designed primarily to reveal enforcement gaps and develop mechanisms for inspection cooperation; it was not focused on finding actual violations, although some were found. It met these goals by helping to identify needs and establish a baseline of cooperation, which could be built upon and expanded in the future. Nevertheless, it is reasonable to expect that a participating customs authority will likely assess the success or failure of a short-term project, just like a longerterm initiative, primarily on the basis of the number and seriousness of violations identified and the amount of fines collected, notwithstanding any other stated, overriding objectives of the activity. This poses a vexing problem for the participating environmental ministry as well as the sponsoring international network or organization, since hits revealing actual violations cannot be predicted or guaranteed during such a limited time period; this is the case even with advance targeting at a port. Nevertheless, a negligible number of violations detected can set back prospects for broader and more sustained collaboration, unless objectives and expectations are jointly agreed to beforehand and reinforced during the postmortem evaluation.
4.2 Longer-Term Enforcement Initiatives Additional benefits are likely from longer term, joint export enforcement activities, which create close and continuing channels of communication and linkages. Indeed, they may begin to institutionalize export monitoring activity of this sort as core work of the customs service. An example is the joint initiative of the Customs Border Services Agency (CBSA) and Environment Canada in 2005-2008. In addition to the capacity built during the protracted period of collaboration, a total of more than $150,000 in fines resulted from this operation.14 The initiative, which was specifically directed at exports of hazardous waste from the port of Vancouver, British Columbia, began November 1, 2005. The effort resulted in the completion of 50 team inspections by December 20, 2006. As of that date 50 containers had been detected with approximately 500,000 kilograms of metal and plastic scrap which contained hazardous waste or hazardous recyclable materials destined for Hong Kong and/or China; several shipping containers carrying waste electrical equipment containing polychlorinated biphenyls (PCBs); and thousands of computer monitors and other types of used electronic products destined for Hong Kong and China. During this initial period CBSA assessed more than $50,000 (Canadian) in fines against 27 Canadian companies.15 The joint export enforcement initiative at Vancouver continued until 2008 and resulted in additional violations and fines.16 4.3 Permanent, Institutionalized Cooperation on Export Enforcement
Better yet are more durable and comprehensive arrangements for cooperation. Japans permanent partnership institutionalizes export control of hazardous waste among three agencies: Customs, the Ministry of the Environment and the Ministry of Economy, Trade and Industry.17 The Ministry of Economy, Trade and Industry is the licensing authority for exports. In this arrangement, prior consultation between both Ministries and the customs authority results in inquiry and response to establish whether suspicious cargo falls under hazardous wastes. Pursuant to the arrangement, customs requests [the] presence of the Ministry of the Environment and/or the Ministry of Economy, Trade and Industry at an inspection. Furthermore, during Intensive Control Month, conducted annually since 2008, Customs and the regional offices of the Ministry of the Environment conduct a joint inspection exercise to implement strengthened control.18 Another example of a more fully institutionalized approach is reflected in the guidance document, Export and Import of Hazardous Waste and Hazardous Recyclable Material, most recently updated by the Canada Border Services Agency in 2009.19 It recognizes that it is the duty of the Canada Border Services Agency to assist [ ] Environment Canada with the administration of national hazardous waste laws concerning exports, as well as imports and transit shipments.20 Any suspect shipment that is not accompanied by proper documentation must be detained and the nearest Environment Canada regional or district office contacted.21 In response, [a] n Environment Canada enforcement officer will advise the border services officers
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of the appropriate action to be taken, with any verbal instructions being followed immediately by a written confirmation.22 The directive requires the Environment Canada officer to advise the Canada Border Services Agency of the action to be taken on detained shipments within two hours of being notified. If this does not occur, then the matter is referred to the Headquarters office of the Canada Border Services Agency.23 This directive also provides for the sharing of customs information with Environment Canada in accordance with Section 107 of the Customs Act.24 5 CONCLUSION Export enforcement of the environmental laws that apply to transboundary movements of hazardous wastes and other dangerous materials cannot be effectively executed by environmental ministries alone. Environmental ministries can, and must, find common ground for cooperation with their customs counterparts, particularly at portsthe critical trade pressure pointsin order to enhance law enforcement collaboration against illegal exports of environmentally dangerous materials like hazardous wastes and e-wastes. To succeed, a partnership must be built upon the trust that develops from conducting a comprehensive series of joint activities, and it may represent the culmination of participation in short-term joint projects or longer-term joint initiatives, with the ultimate goal of institutionalizing cooperation into a more permanent and lasting arrangement. Furthermore, unless a domestic foundation of collaboration exists between these law enforcement agencies, a country that is a substantial exporter of hazardous waste and used electronic products will have limited capacity to play its proper role in international enforcement cooperation regarding this trade. 6 REFERENCES See e.g., U.S. Customs and Border Protection, Securing the Global Supply Chain: Customs-Trade Partnership Against Terrorism (C-TPAT) Strategic Plan (2004) available at http://www.hsdl.org/?view&doc=38927&coll=limited. 2 Solid Waste Disposal Act, 42 U.S.C. 6938 et seq. (2006). 3 A Senate Congressional report found that [t]he existing notification system is inadequate to address the present and potential environmental, health, and foreign policy problems which occur when wastes are exported to nations which do not wish to receive them, or lack sufficient information to manage them properly. S. Rep. No. 98-284 (1983).Congress also enacted a notice requirement for exports of certain chemicals in the Toxic Substances Control Act, 15 U.S.C. 2601 et seq. (2006). If a person intends to export a chemical that is subject to certain requirements under TSCA, the person must notify EPA. The Agency is responsible for notifying the importing countrys government of the chemical and of EPAs regulatory action. These export notification requirements can be found in Section 12(b) of TSCA and 40 CFR 707 Subpart D. 4 40 C.F.R. 263.20(g)(4) (2010). 5 Basel Convention on the Control of Transboundary Movements of Hazardous Waste and Their Disposal, Mar. 22, 1989, S. Treaty Doc. No. 102-5, 1673 U.N.T.S. 57, available at http://www.basel.int/text/con-e-rev.pdf .
1
Keynote address by Kunio Mikuiya, U.S. Trade Symposium, Washington, D.C., Oct. 29, 2008 available at www.wcoomd.org/speeches. 7 by Kunio Mikuriya, WCO Secretary General Elect, Keynote Address at the International Customs Day 2009: Customs and the environment: Protecting our Natural Heritage (Jan. 26, 2009) available at http://www.wcoomd.org speeches/?v= 1&lid=1&cid=11&id=124. 8 World Customs Organization, Press Release, Operation Demeter Yields tons of Illegal Shipments of Hazardous Wastes (July 8, 2009) available at http://www. wcoomd.org/press/default.aspx?lid=1&id=187. 9 Intelligence-led enforcement provides the means for collecting and associating information by expert analysis in order to identify patterns and anomalies in trade which warrant targeted inspections. It looks to both sides of transactions as well as any intermediate movements. 10 INECE Seaport Environmental Security Network, International Hazardous Waste Inspection Project at Seaports: Results and Recommendations 15, 17-18 (2010) (Recommendation D) [hereinafter INECE Seaport Inspection Project Results and Recommendations] available at http://www.inece.org/seaport/exercise/INECE_Se aportInspectionProjectOutcomes_22dec.pdf. 11 Provision for the allocation of responsibility for seized wastes in Canada is set forth in Canada Border Services Agency, Memorandum D19-7-3, Export and Import of Hazardous Waste and Hazardous Recyclable Material (Feb. 13, 2009) available at www.cbsa-asfc.gc.ca/publications/dm-md/d19/d19-7-3-eng.html. Paragraph 44 of this Canadian customs directive assigns the longer-term liability to Environment Canada:
6
Negotiating Customs and Environmental Cooperation: Elements of an Inter-Ministerial Agreement, available at http://www.inece.org/seaport/accra/ workingsession2_elements.pdf. 13 See INECE Seaport Inspection Project Results and Recommendations, supra note 11, at 18. 14 E-mail from Emmanuel Mendoza, Environment Canada (Feb. 25, 2011) (on file with author). This total includes the amounts identified in the new releases (see endnotes xvi and xvii) and other fines that were collected but not publicized. 15 Environment Canada, News Release, Federal Government Intercepts Hazardous Waste in the Port of Vancouver, (Dec. 20, 2006,) available at http://www.ec.gc.ca/ default.asp?lang=En&n=714D9AAE-1&news=C22EC3D8-6B1C-47FD-A7CA83D0E2B6744D. 16 A marine container intercepted on September 27, 2006, resulted in a guilty plea on one count of exporting hazardous waste without a permit and a court order to pay $7,000 to the Environmental Damages Fund and to dispose of the lead acid batteries involved in an environmentally sound manner. Environment Canada, News Release, Lack of Export Permit Results in Court Imposed Fine, (Oct. 2, 2008) available at http://www.ec.gc.ca/alef-ewe/default.asp?lang=En&n=9044BFC8-1.
12
When the detention of a suspect shipment beyond the two-hour time limit is deemed necessary by the Environment Canada enforcement officer, this enforcement officer will take the necessary action, so that the detained shipment will be removed from CBSAs premises as soon as possible within 24 hours, or such other period of time as agreed to by the SBSA and the enforcement officer.
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In an investigation that began in 2007, The CBSAs Export Unit examined two containers holding approximately 1200 used lead acid batteries and seven cathode ray tube monitors. One container had previously been returned from China. Both containers were referred to Environment Canada and Transport Canada for further examination. Ultimately Jieyang Sigma Metal Plastic Inc. of Toronto, parent company of J.S. Chen Recycling, pled guilty and paid a total of $30,000 in penalties. Environment Canada, News Release, Attempted Illegal Export of Hazardous Material Brings $30,000 Penalty (Jan. 31, 2011) available at http://www.ec.gc.ca/default. asp?lang=En&n=714D9AAE-1&news=C2174570-74D5-4EC7-8A20-8A4851045F14. The discovery of 39 skids of miscellaneous plastic and electronic scrap at the port of Vancouver, destined for Hong Kong, sparked an investigation by Environment Canada. Approximately 30 of the skids contained broken and non-working computer monitors containing cathode ray tubes. CC Ever Better International Co. Ltd. pleaded guilty to exporting hazardous waste or hazardous recyclable material without a period and was ordered to pay a fine of $15,000 to the Environmental Damages Fund. Environment Canada, News Release, Attempted Illegal Export of Hazardous Waste Results in $15,000 Fine (March 2, 2010) available at http://www. ec.gc.ca/default.asp?lang=En&n=714D9AAE-1&news=196B4068-5A76-4338-92AF924BC346CED5. 17 Sayaka Kume, Officer, Customs Clearance Division, Customs and Tariff Bureau, Ministry of Finance, Government of Japan, Approach of Japan Customs on Prevention of Illegal Transboundary Movement of Hazardous Wastes, Presentation at the Workshop 2010 of the Asia Network for Prevention of Illegal Transboundary Movement of Hazardous Wastes in Yokohama, Japan, Slides 6-7 ( Jan. 27-29, 2010) available at http://www.env.go.jp/en/recycle/asian_net/reports/seventhyearwork/ Session%202/S2_04_Japan%20Customs.pdf . 18 Id. Slide 7. 19 Memorandum D19-7-3, supra note xii. 20 Id. at 1. 21 Id. para. 33, at 7. 22 Id. para. 41, at 7-8. 23 Id. para. 43, at 8. 24 Id. para. 46, at 8. Section 107 of the Customs Act of Canada states, at subsections (4)(e) and (5)(c)(i), respectively, that a customs official may providecustoms information if the informationmay reasonably be regarded as necessaryto the environment in Canada or any other country or may provide customs information toan official solely for the purposes of enforcing an Act of Parliamentif the information relates togoods, the importation, exportation, or in transit movement of which is or may be prohibited, controlled or regulated under that Act..
INTERNATIONAL HAZARDOUS WASTE INSPECTION PROJECT AT SEAPORTS: RESULTS AND RECOMMENDATIONS HEISS, ROBERT,1 RUESSINK, DR. HENK,2 ISARIN, NANCY,3 KOPAROVA, MEREDITH,4 GRABIEL, DANIELLE5 Director, International Compliance Assurance Division, United States Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Ariel Rios Building, Mail Code #2222A, Washington DC, 20460, heiss.robert@epamail.epa.gov
1
The Netherlands Ministry of Infrastructure and the Environment, PO BOX 16191, 2500 BD Den Haag, The Netherlands, ruessink.henk@minvrom.nl
2
AmbienDura, Estrada de Quelfes em frt. J. Julio 5A 1esq, 8700-207 Olho, Portugal, nancy.isarin@ambiendura.com
3
Director of Programs, INECE Secretariat, 2300 Wisconsin Ave, NW, Suite 300B, Washington D.C. 20007, mreeves@earthpace.com
4
SESN Project Manager, INECE Secretariat, 2300 Wisconsin Ave, NW, Suite 300B, Washington D.C. 20007, dgrabiel@inece.org
5
SUMMARY The INECE Seaport Environmental Security Network (SESN) developed and facilitated an international hazardous waste inspection period during June and July 2010. The project was a global operational enforcement effort tackling illegal movements of hazardous waste involving environmental, customs, and other enforcement authorities from Africa, the Americas, Asia, and Europe. The project was beneficial to participants in identifying gaps in inspection and enforcement programs. The outcomes provide insight into the type of waste, modus operandi, and routes that are being used and confirm that cooperation between domestic authorities is essential to an effective enforcement strategy. Recommendations that emerged from the Inspection Project include facilitating future inspection projects; providing capacity building for relevant authorities at seaports; communicating INECEs environmental compliance and enforcement expertise to countries working to shape more effective domestic programs; and continuing to build partnerships that promote cooperation and collaboration at seaports. 1 PROJECT PARTICIPATION
Belgium, Canada, Germany, Hong Kong,1 Mexico, the Netherlands, Nigeria, Panama, the United Kingdom (Scotland, England and Wales),2 and the United States participated in the Inspection Project and submitted reporting forms and/or reports to the INECE Secretariat. These countries were either already part of SESN, had shown interest in participating in the Inspection Project, or were considered a key country or port for the shipments of hazardous waste.
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One country (Kenya) prepared for the Inspection Project, but was unable to perform inspections during the Inspection Project period. However, Kenyan officials indicated a desire to continue with preparations for an inspection event and to continue efforts to implement environmental inspections at seaports in their future work. The majority of participating countries are Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous and Other Wastes and their Disposal. This global environmental treaty defines what constitutes illegal traffic of such wastes, specifies the consequences of illegal traffic, defines the take back procedure, and requires Parties to consider the illegal traffic of hazardous wastes and other wastes as a crime that they must prevent and punish under national law. 2 CAPACITY BUILDING TOOLS AND RESOURCES
To support capacity building on hazardous waste shipment inspections generally and the Inspection Project specifically, INECE developed tools and provided support for country preparations. These tools included an Operation Guidance Document for the inspections, reporting procedures and forms, and communication tools. 2.1 Operational Guidance Document
For the development of the Operational Guidance Document, INECE worked closely with an Ad Hoc Working Group. The purpose of this document was to provide tailored operational guidance for enforcement authorities participating in the SESN Hazardous Waste Inspection Project at Seaports. The document summarized the objectives of the project, detailed the reporting procedures that would be used, and provided an overview of international good practice on conducting environmental inspections at seaports. The document also communicated experiences and lessons learned from similar operations, such as the World Customs Organizations Operation Project Demeter and the European IMPEL-TFS projects. 2.2 Choice of Inspection Methods
The Operational Guidance Document presented three options for performing inspections at seaports during the Inspection Project. Participating countries and ports were free to choose from these options, selecting whichever method was most suitable for their specific situation. These approaches were: (1) intelligenceled inspections approach, (2) at-random inspections based on national priorities and working methods, and (3) direct contact between participating ports/bi-lateral cooperation. 2.3 Reporting Forms
The SESN prepared three reporting forms to support the project. The Cargo Investigation Form was used to assess the results of the Inspection Project in terms of numbers of detections, types of violations, types of waste, and routes. The Inspection Action Results Form was used to assess the results of the Inspection
Project in terms of overall outcomes and to provide insight into the level of interagency collaboration, the percentage of illegal or suspected waste shipments, and lessons learned from the project. For the inspections of end-of-life vehicles, a separate form was developed and was to be completed only in the case where a car was considered waste. 2.4 Communications Tools
To facilitate communication and the exchange of information between Inspection Project participants, the SESN developed several tools. SESN circulated a regular news bulletin to keep the participants informed about the progress of the Inspection Project. In total, four updates were circulated. A web-based, password-protected collaboration tool was provided for participants. This workspace was mainly used as a library and communication tool. The web-based system also provided a forum for participants to exchange messages, share ideas and information, and ask questions. Annex II contains a screenshot of the online collaboration tool. SESN also set up a helpdesk to respond to inspection-related questions from participants. Several experts were available to respond to questions and a separate email address was set up to receive inquiries. 2.5 Inspector Exchange
During an inspector exchange, an inspection expert from an experienced country joins in and advises on actual inspections in a less experienced country and/or vice-versa. In addition to providing guidance to less experienced countries, such programs also offer an opportunity to learn about the scope and limits of inspection practices and to share common challenges and responses. During the Inspection Project, inspectors from the Dutch and Belgian environmental authorities expertise and assisted in performing inspections in the Tema port in Ghana from 22-24 June 2010. 3 COUNTRY-LEVEL PREPARATIONS
Most of the countries that participated in the SESN Inspection Project organized a preparatory meeting for the various involved authorities (i.e. environmental inspectorates, customs, port police and port authorities). Country-level preparations were mainly used to introduce officers to the SESN, the Operational Guidance Document and associated procedures, to agree on inspection dates and methods, and to strengthen collaboration among the involved authorities. Participating countries decided how and to what extent they would prepare for their Inspection Project activities, though the SESN recommended that all involved authorities make time to acquaint themselves with the Operational Guidance Document and associated reporting forms at a minimum. SESN assisted countries with their preparatory meetings by providing presentations on the Operational Guidance Document and other information as requested and feasible. Country-
level preparations ranged from making small adjustments to business-as-usual inspection activities to detailed inspection trainings and from meetings of a handful of key officials from various authorities to Nigerias 82-participant program. 4 OUTCOMES 4.1 Inspection Results
Cargo investigation forms representing 74 targeted cargo inspections were completed and returned to the INECE Secretariat by the reporting deadline of 30 July 2010. Of these, infractions were detected in 39 cases (53%) and six cases were still under investigation at the time countries reported their inspection results. The illegal waste streams most often encountered during the event were: electronic waste (e-waste) wrongly declared as secondhand goods, waste batteries wrongly described as plastic or mixed metal scrap, cathode ray tubes from television and computer monitors wrongly described as metal scrap, and refrigerators containing chlorofluorocarbons (CFC). Depending on national or regional legislation, the export of these hazardous waste streams is either forbidden or the control procedure required under the Basel Convention must be followed. In the majority of cases, the notification procedure under the Basel Convention was not complied with. Five Inspection Action Result forms and no End-of-Life Vehicle Forms were returned. Example 1: Experiences in Vancouver Port, Canada In 2006, authorities in the port of Vancouver performed inspections on the export of hazardous waste. During those activities, a high number of violations were found. Therefore, finding no violations during the SESN Inspection Project was unexpected. The following factors may have contributed: Deterrence of illegal exports as a result of lengthy targeting of shipments concentrated in Vancouver during 2006 2008. These interceptions resulted in enforcement actions (including some prosecutions), high dock charges billed back to exporters, and penalties. A change in shipping routes where hazardous waste was no longer being directly exported to countries that prohibit waste streams, such as used computer monitors with cathode ray tubes (CRTs) and waste batteries. Shipments may have transited through countries that do not control these waste streams or the final destination may have been to countries which are not signatories to the Basel Convention. Shipping trends may have changed to utilize other Canadian ports of exit. Shipments of hazardous waste may have been misdescribed as something other than metal, plastic, or lead waste (which was the previous trend). Three to four weeks may not have been enough time to allow for a representative sample to be inspected.
Successful outcomes of the exercise were: o New linkages were solidified between Environment Canada Environmental Enforcement and Canada Border Service Agency at the recently established port of Prince Rupert, British Columbia. o Streamlined inspection processes were established utilizing the latest Canada Border Service Agency technology and databases in the Vancouver and Delta, British Columbia ports. o Awareness of Environment Canadas mandate was raised with its partner, Canada Border Service Agency. 4.2 Taking Back Illegal Shipments
When a transboundary movement of hazardous wastes or other wastes is deemed to be illegal traffic as a result of the conduct on the part of the exporter or generator, the Basel Convention requires the state of export to ensure that the wastes in question are taken back by the exporter, generator or, if necessary, by itself into the State of export. If impracticable, the wastes in question are to be disposed of in an environmentally sound manner. The majority of the participants in the Inspection Project have national procedures in place regarding the take back procedure. For a few countries, take back issues were decided on a case-by-case basis. In total, 19 illegal shipments of waste were returned to the state of export. In nine cases, the treatment of the waste took place in the country where the illegal waste was detected. In other cases involving illegal shipments, the waste shipment rules were violated, but, due to different points of view among the involved ministries, the waste was not returned. In the remaining six cases, participants did not report on the final status of the waste. Decisions about waste take-back were made in a variety of ways during the Inspection Project. In some situations, decisions were made based on feedback from the receiving country. For example, authorities at an airport in Europe detected an illegal shipment of used cartridges destined for West Africa. They made contact with the West African authorities to obtain their opinion on the waste and the waste shipment was refused entry into the West African country. In contrast, in another case involving waste electrical and electronic equipment and truck tire waste labelled as second-hand goods originating from a European port destined for a West African port, the decision was made based on the contents of the shipment. In this instance, European officials determined that the contents of the shipment would be sorted and illegal waste sent to a recovery facility in the European country and second-hand goods sent on to the West African nation. A similar approach was taken by the authorities in Bremen, Germany. During the Inspection Project, a container with used goods destined for Ghana was inspected in
Bremen and blocked in Antwerp after a further inspection in the Port of Antwerp by the federal environmental competent authority in Belgium. The container had originated in Bremen with second-hand televisions, refrigerators, and other used goods. The Belgian inspectors found some of the televisions to be waste. Therepatriation of the containerto Bremen wasdealt with by Bremen Customs Authority at the request of the federal environmental competent authority of Belgium. In a two-day action,the container was unloaded in Bremenby the sender under supervision of the Bremen Customs Authority and in the presence of the police. An expert in the identification of electric and electronic equipment inspected all of the nearly 300 used televisions that were unloaded. More than 100 of them were found to be inoperative and/or damaged and were disposed of legally as waste by the sender in Bremen. The televisions found to be functioningand all other used goods were loaded back in the container to be shipped to Ghana. Example 2: Communication Methods and Waste Take-Back in Hong Kong During the Inspection Project, the Hong Kong Environmental Protection Department as a competent authority under the Basel Convention worked closely with the other competent authorities under the Basel Convention and the contact methods were e-mail, mail, telephone or fax. For the countries which were not in the INECEs participation list or parties of the Basel Convention (i.e. the United States), Hong Kong Environmental Protection Department contacted the relevant environmental authority. For return shipments of hazardous waste, in addition to the relevant shipping companies, shippers and consignees, Hong Kong Environmental Protection Department also informed the relevant competent authorities/environmental authorities on the details of the return shipments in advance so that they could take follow up actions accordingly. Example 3: Inter-Country Communication, Belgium-Germany The Bremen port police in Germany were informed by Belgian authorities of a truck/trailer with CFC-containing refrigerators in the port of Antwerp, Belgium. The transport was destined for Cotonou, Benin, and originated from Bremen. In Bremen, the trailer was inspected in the beginning of June 2010 under the framework of the inspection activities. During that inspection, 13 CFC-containing refrigerators were discovered and the exporter received an official order to dispose of them legally in Bremen. According to the inspection result in Antwerp, the exporter is suspected of having loaded other CFC-containing refrigerators in Bremen onto the trailer to export them wilfully to Africa. The repatriation of the truck/trailer from Antwerp to Bremen was dealt with by authorities in Bremen. Preliminary police proceedings have begun against the French exporter.
4.3
Modus Operandi
During the Inspection Project, mislabelling of waste streams was the most common practice that was encountered. The most frequent cases of mislabelling observed were: (1) electronic waste and CFC-containing refrigerators wrongly declared as second-hand goods; (2) waste batteries wrongly described as plastic or mixed metal scrap; and (3) cathode ray tubes wrongly classified as metal scrap. The reason for misdescribing the waste can be either deliberate (to disguise the waste, evade taxes or duties, or disguise the country of origin of the waste) or unintentional (for example, due to lack of knowledge or unclear criteria for waste versus non-waste). Example 4: Cathode Ray Tubes Misdeclared as Plastic Scrap In the United States, the export of used cathode ray tubes (the glass video display component of an electronic device such as a television or computer monitor) is subject to a notification procedure. However, it is also illegal to ship used cathode ray tubes into China under Chinese law. During the Inspection Project, officials in Hong Kong discovered a shipment from the United States of glass from cathode ray tubes which the shipper declared as nonhazardous plastic scraps. The shipment was deemed to be illegal hazardous waste and was returned to the U.S. 4.4 Routes The Inspection Project provided an opportunity to track the flow of both illegal and legal waste shipments. During the Inspection Project, the most common routes encountered were from North America to destinations in Asia and from Europe to destinations in West Africa and Asia. Transit ports were involved in several of the shipments. See Appendix IV for a table listing the routes encountered during the Project. 4.5 Inspection Methods
Nearly all countries used one or more of three inspection methods described in the Operational Guidance Document: intelligence-led inspections, at-random inspections based on national priorities, and bi-lateral cooperation. The intelligenceled method was considered by many participating countries to be the most effective in terms of targeting possible illegal waste shipments. In feedback about their experience conducting inspections, some participants noted that profiling and access to intelligence is crucial to performing effective inspections and that analyzing past and current data on e-waste streams is imperative to developing a proactive enforcement strategy. Some participants also noted that
a physical check of a container is very time-consuming (namely, between four to eight man-hours). Some participants commented that risk profiling for physical screening was very useful and underlined the importance of the involvement of customs because of the logistical and financial issues associated with detaining and unpacking containers for inspection. Storing and/or transporting a container held for further inspection or enforcement proceedings was found to be expensive in some cases and led to confusion and disagreements among authorities and/or shipping companies about who should be responsible for the costs, particularly if national legislation was not clear on this matter. It was also noted by some participants that disposing or otherwise dealing with hazardous waste in an environmentally-sound manner was expensive. 4.6 Communications Communication between participants during the Inspection Project occurred in several ways. In some cases, countries made direct contact with one another without the INECE Secretariat facilitating. In other cases, the INECE Secretariat helped to put participants in contact or to exchange information among participants. The fact that many of the participants had become acquainted during previous SESN events furthered informal communications between countries which otherwise may have been challenging. At the domestic level, preparatory meetings provided an opportunity to improve existing lines of communication or establish new channels among enforcement authorities. Participants noted that the existence of these informal contacts facilitated the rapid exchange of information between relevant authorities. Each country was left to make its own decisions regarding the method and type of information that would be shared during the Inspection Project in order to avoid problems with sharing sensitive information. 5 KEY OBSERVATIONS AND FINDINGS
The SESN Inspections Project provided a unique opportunity to gather information about the challenges associated with conducting hazardous waste inspections at seaports and to assess the usefulness of various inspection and enforcement tools and approaches. The following is a summary of key observations and findings based on empirical evidence collected during the Inspection Project, comments and requests from participating countries, the SESNs analysis of the reporting forms, and the participants survey responses: The Inspection Project produced tangible results which indicate that compliance with Basel Convention provisions remains a challenge. About half of the waste shipments encountered during the project were deemed to be illegal. These results underline the need for more international enforcement
actions in the future and confirm the importance of awareness raising and capacity building activities. The Inspection Project highlighted the importance of efficient and effective communication channels at the international level. During the project, practical experiences, knowledge, and information were exchanged, formally through the use of tools developed for participants, as well as via informal bilateral contacts, made possible through previous meetings held within the framework of the SESN. The INECE Secretariat also played an important role in facilitating country-to-country communication. Though not a replacement for formal communication channels, these informal methods for exchanging information provided significant added value for operational enforcement collaboration during the Inspection Project. The Inspection Project confirmed the benefits of the learning-bydoing approach and was useful in identifying gaps in inspection and enforcement programs. By actually performing checks on the ground, participants, together with other involved authorities, were able to more clearly identify gaps and weaknesses in their inspection and enforcement programs. Some of these gaps include: difficulty classifying certain waste streams due to a lack of clear criteria; lack of time, staff, intelligence, and reliable data for performing inspections; lack of resources; lack of cooperation among authorities; and inconsistent or contradictory national legislation. Although the inspections performed under this project provide an incomplete picture of the total transboundary movements of hazardous wastes, the outcomes provide insight into the types of waste, modus operandi, and routes involved. E-waste and CFC-containing refrigerators wrongly declared as secondhand goods, waste batteries wrongly described as plastic or mixed metal scrap, and cathode ray tubes wrongly described as metal scrap were the most frequently detected illegal waste shipments. Common routes were from Europe to West African countries and from the United States to Asia. Cooperation among domestic authorities was essential for effective detection and enforcement. Participants noted that, in situations where customs was involved in the inspection process, the use of their tools and equipment (e.g, x-ray scanner) was very helpful. Some form of cooperation between ministries and authorities existed in most countries, either informally or formally. Participants noted that preparatory meetings were an essential first step in aligning enforcement authorities to implement an exercise such as the SESN Inspection Project and that these pre-meetings were feasible to organize.
Participants noted challenges they encountered participation in the Inspections Project.
during
their
They included: lack of formal collaboration with enforcement partners; lack of time to prepare the inspections; lack of good intelligence; absence of a clear (updated) national legislative framework; inconsistent national legislation; and lack of clarity on responsibility for costs of enforcement and inspection activities, such as storage or detention of containers or abandonment by the exporter. The Inspection Project was a useful exercise that generated valuable information for participants. The level of commitment to the project demonstrated by participating countries indicated an increased level of awareness of the problem of hazardous waste trafficking through seaports. For some participants, the Inspection Project was a trigger to (further) sensitizing the involved authorities and gaining practical experience with port inspections in a collaborative way. 6 RECOMMENDATIONS AND NEXT STEPS
Based on the outcomes of the Inspection Project, the SESN has developed the following recommendations to guide the network as it plans future work. They form a call to action, not only for the SESN, but also for countries committed to improving environmental security at their seaports and for relevant international organizations. 6.1 The SESN should facilitate future projects similar to the Inspection Project that focus on operational enforcement collaboration at the national and international levels.
Countries requested that the SESN consider facilitating future international collaboration opportunities at seaports, in the manner of the first Inspection Project. Countries requested modifications including more time for preparations, more training on the ground in advance of the detection period, inspector exchange programs during the Inspection Project, and a longer period for inspections/ detection (e.g., 3 months). The SESN also should consider how future inspection periods may be used to promote greater regional cooperation. The Operational Guidance Document should be revised and updated in certain areas, but should remain an important part of the toolkit. Another recommended addition to the toolkit is a booklet containing photographs of cases of non-compliance which may be used as a guide for inspectors. To improve communication assistance in any future inspection project, the online communication tool and the help desk should be re-evaluated and adjusted. In addition, the reporting forms should be updated to capture more specific
information about how authorities coordinated to conduct their inspections and follow-up, both across national borders and domestically. 6.2 The SESN should support countries in their on-the-ground efforts to improve enforcement of domestic laws that are designed to implement Basel Convention requirements.
Most participating countries have implemented the provisions of the Basel Convention into national law. However, some participating countries either lacked an adequate legislative framework or lacked the capacity to fully implement and enforce existing requirements. The SESN may evaluate ways to work with countries to review the enforceability of existing requirements and/or to share experience in designing and implementing compliance promotion and enforcement strategies. The SESN and Secretariat of the Basel Convention may find here an area of joint work for the two organizations. Additionally, many countries do not have adequate national guidance on differentiating second-hand goods from waste. Similarly, some countries faced the challenge of not having national legislation to respond to shipments of electronic waste. The SESN could consider providing examples or other information on establishing national definitions for second-hand goods, continue to work with countries on national definitions of electronic waste, and otherwise expand cooperative efforts to control illegal shipments of electronic waste. 6.3 Capacity building for relevant authorities at seaports should remain a key priority of the SESN.
Typically, the more experienced countries that participated in the Inspection Project used intelligence-led methods to help identify which containers to inspect. This methodology creates efficiencies in staffing and resources and can help increase rates of detection. However, not all countries have the information or capacity to make intelligence-led inspection determinations. The SESN, in cooperation with Interpol, the World Customs Organization, the Asian Network for Prevention of Illegal Transboundary Movement of Hazardous Wastes, and other partners, can continue to build capacity for the intelligence-led method, while at the same time working with countries to improve capacity for other types of inspections determinations. Capacity building for physical container inspections and other typical port activities also is essential and should continue in the future, including through on-site workshops, inspector exchanges, and other methods, as resources permit. 6.4 The SESN should continue to promote the importance of international and national collaboration among authorities.
Effective communication between import and export countries is a prerequisite for enforcement collaboration. To supplement formal communication channels, participants encouraged the use of informal means of communicating non-sensitive
information. The SESN should continue to help build relationships among peerlevel authorities to promote cooperation in both formal and informal ways. Cooperation among environment, trade, customs, and other agencies is essential to an effective domestic hazardous waste inspections program. The SESN should continue to promote inter-ministerial collaboration through training exercises on the development and negotiation of memoranda of understanding (MOU) and provide sample inter-ministerial MOUs and other guidance. 7 CONCLUSION 3
The illegal trade in hazardous waste remains a significant global environmental issue and compliance with Basel Convention provisions continues to be a challenge. The SESN Inspections Project confirms the usefulness of coordinated international enforcement actions in addressing this problem and in improving the capacity of enforcement authorities to detect and deter illegal shipments. As an informal network of enforcement practitioners, SESN has an important role to play in facilitating national and international collaboration among authorities and supporting their capacity building efforts. 8 REFERENCES Hong Kong is a Special Administrative Unit of the Peoples Republic of China. The Environment Agency of England and Wales participated in the Inspection Project as well as the Scottish Environmental Protection Agency. 3 The full project report may be found at: http://inece.org/seaport/exercise/INECE_ SeaportInspectionProjectOutcomes_22dec.pdf.
1 2
ENFORCEMENT CHALLENGES ACROSS BORDERS: DETECTING AND PROSECUTING ILLEGAL WILDLIFE TRAFFICKING KAARIA, DR. BERNARD IRIGIA1 and MUCHIRI, MR. NDICA LAWRENCE2 Head of Biodiversity Planning & Environmental Compliance, Kenya Wildlife Service, P.O. BOX 40241-00100, Nairobi, Kenya, bkaaria@kws.go.ke; drbernardkaaria@gmail.com
1
Environmentalist/EIA Specialist, P.O. Box 267-60401, Chogoria-Meru, Kenya, lawmuc@gmail.com

2
SUMMARY Although environmental laws and regulations provide a variety of enforcement mechanisms to curtail illegal wildlife trade, enforcement mechanisms pose a huge challenge. Inadequate financial and human resources and lack of institutional capacity are barriers to enforcing these environmental laws. In addition, prosecuting wildlife crime is not a priority for many of the decision makers controlling implementation of environmental laws through the police, customs and judicial authorities. Corruption at local, regional and international levels also obstructs prosecution of wildlife crime. This paper discusses the challenges of detecting and prosecuting illegal wildlife trafficking in East Africa by focusing on enforcement challenges documented by the Lusaka Agreement Task Force (LATF). LATF plays a key role in ensuring compliance with the Convention on International Trade in Endangered Species of Wild Fauna and Flora. 1 INTRODUCTION Effective implementation of environmental initiatives often requires interinstitutional cooperation including the local, regional, and international levels; governments and nongovernmental organizations; and individual stakeholders. However, there are often constraints in efficiently ensuring effective cooperative compliance and enforcement initiatives. The Lusaka Agreement Task Force (LATF) has encountered many challenges in its efforts to enforce the national and international environmental laws and treaties that advance conservation and sustainability of the worlds environment biodiversity and natural resources (Interpol, 2010). Enforcement challenges include: limited financial and technical resources; failure to engage key environmental stakeholders; limited international environmental jurisprudence, and social and political factors.
Kaaria & Muchiri205
DETECTING AND PROSECUTING ILLEGAL WILDLIFE TRAFFICKING
Illegal wildlife trafficking involves the taking, trading, exploiting or possessing the worlds wild flora and fauna in contravention of local, national and international laws. The quest for economic development in developing countries has propelled wildlife crimes and threatens conservation efforts. Wildlife trade has been a major concern in the global community since the dawn of international environmental law. From these concerns several international treaties have emerged, such as the Convention of International Trade in Endangered Species of Wild Fauna and Flora (CITES). Various governments have developed legislative frameworks for mitigating, detecting and prosecuting incidences of wildlife trade crime (Karl, 2008). However cross-border challenges have impeded efforts to curb the illegal trade. 2.1 Role of Africa in Curbing Wildlife Crime
Africa is at the forefront of the struggle to combat the trade in endangered species. Intense poaching prompted by illegal trade has severely depleted certain wildlife populations. To address these problems, Eastern and Southern African countries formed an Intergovernmental Agreement for cooperative enforcement efforts to curb illegal trade in wild fauna and flora, the Lusaka Agreement. The Lusaka Agreement was adopted in September 1994 in Lusaka, Zambia. It entered into force on December 10, 1996, but did not become fully operational until the launching of the Lusaka Agreement Task Force (LATF) in June 1999. To date, the Agreement has been ratified by the Republic of Congo (Brazzaville), Kenya, Tanzania, Uganda, Zambia and the Kingdom of Lesotho. In addition, South Africa, the Kingdom of Swaziland, and Ethiopia are signatories. To facilitate the prevention and suppression of the illegal trade in wild fauna and flora, the Lusaka Agreement Task Force developed cooperation agreements with the Secretariats of Interpol, CITES, the World Customs Organization, the Central African Forests Commission, and the Organization for the Conservation of African Wildlife (also known as the Oganisation pour la Conservation de la Faune Sauvage Africaine (OCFSA)). 2.2 Role of Lusaka Agreement
Implementing the Lusaka Agreement in East and South Africa involves coordinating and facilitating international and regional cooperation to suppress environmental and wildlife crimes; enhancing capacity of local and national law enforcement agencies in through training and awareness programs; collecting, collating, analyzing and disseminating information on the illegal trade in wild fauna and flora; investigating cases of cross border nature involving wild fauna and flora specimens; working with international law enforcement agencies including Interpol, CITES, and World Customs Organization amongst others to tackle wildlife crime; and carrying out regional joint operations with the relevant national, regional and international organizations
2.3
Drivers of Trans-Boundary Wildlife Crime
The problem of illegal wildlife trafficking in the region is compounded by many factors. Complications to enforcement efforts include: Source of commodities: The region is rich in natural resources such as timber and wildlife products which are smuggled in large quantities from the sub region to a number of destinations globally. Geographical location: The regions long coastline, its remote islands, and porous borders present easy exit points for illegal goods. Corruption: Officials in some countries have been accused of colluding with organized criminals. High levels of corruption ease the transfer of goods through the region via official border crossings. Market demand: Poaching is driven largely by market demand in Asia. This trade can be extremely lucrative. For example, a kilo of ivory bought at US $20 in Africa can fetch over US $1000 in wealthy markets like Japan. Concealment: Airline passengers clothing and baggage have been widely used in transporting flora and fauna. For example, ivory has been found concealed in suitcases at Pointe-Noire International Airport in Congo (Brazzaville) and Jomo Kenyatta International Airport (Nairobi). Mis-declaration: Fraudulently entering incorrect information into customs declaration forms and shipping permit applications. Shipments are rarely inspected against these forms.. Permit fraud: Legal documentation is sometimes forged, stolen, and recycled. These sham documents give inspectors the impression that a consignment has been permitted. Postal/courier routes: Many traffickers transport protected wildlife (plants, inert derivatives, less active animals) via standard shipping services. Diplomatic baggage: Enforcement officials have recorded instances of diplomats exploiting the secure nature of diplomatic baggage to smuggle wildlife products. 3 CHALLENGES IN DETECTING AND PROSECUTING ILLEGAL WILDLIFE TRAFFICKING
Despite an increase in enforcement efforts to control illegal wildlife trade, the practice continues in many countries. 3.1 Corruption Wildlife crime is highly associated with corruption at local, regional, and international levels. Customs services play a key role in facilitating the illegal trade. Markets for protected plants, animals, and animal materials include Belgium, China, the Czech Republic, France, Hong Kong, Israel, Japan, Netherlands, Romania, Spain, the United Kingdom, and Vietnam. Without the commitment of customs and enforcement bodies in these countries and in the countries from which trafficking originates (e.g., Kenya, Mozambique, Rwanda, and South Africa), the illegal trade in endangered species will continue.
Kaaria & Muchiri207
3.2
Weak Environmental Policies
Wildlife legislation in some East African countries does not adequately address illegal wildlife trade. Practices such as illegal bush meat exploitation have been mainly considered as a petty offence and most courts fail to treat the matter as a serious issue. Disparities in punishment among Eastern African countries also make it difficult to deter these crimes. For example, possession of elephant meat in Kenya results in a small fine, whereas in Tanzania and Zambia perpetrators may be imprisoned for up to seven years. A related concern is the lack of rationalized environmental policies . 3.3 Availability of Markets
It is difficult for law enforcement agencies to fight wildlife trafficking due to the excessive demands from consumer countries. Suppressing these markets will require national concerted efforts. 3.4 Inadequate Resources
Although wildlife crime is the most lucrative illicit trade, after drug trafficking, it is not taken seriously by the top decision makers. Because these officials control enforcement through the police, customs and judicial authorities, there has been limited personnel investment in wildlife law enforcement. 3.5 Lack of Resources
Many nations allocate limited budgetary provisions to finance implementation of environmental programs. Because authorities are not suitably resourced to address illegal trafficking of wild fauna and flora, agencies are inadequately staffed, staffs are inadequately trained and equipped and enforcement suffers. 3.6 Lack of Institutional Capacity
There is little institutional capacity to mobilize and link activities effectively within and between sectors. For example, there is insufficient coordination between national law enforcement agencies and wildlife law enforcement agencies in combating illegal trafficking of wildlife. 4 CASE STUDIES OF ILLEGAL WILDLIFE TRAFFICKING
Some successes have been achieved in combating illegal wildlife trafficking. A significant number of wildlife contraband seizures (in both small and large quantities) have been recorded within the African region. For instance, the postal parcels containing 120 live leopard tortoises, 27 live Nile lizards, 20 live frogs were seizure in Hong Kong exported from Arusha, Tanzania, in June 2009. Between January 2009 and August 2010, cases of elephant ivory weighing 27,114 kilograms were seized in Asian countries.
In January 2005, six baby chimpanzees and four guenon monkeys were seized at Jomo Kenyatta International Airport (KIA), Nairobi, en route to Lagos, Nigeria, without any documents. In January 2006, 228 tortoises were seized at JKIA while on transit to Bangkok, Thailand, from Entebbe, Uganda, without valid documents; In November 2007, five hundred African Grey Parrots with an estimated worth of US$400,000 were intercepted at Douala port in process for export to Bahrain. These parrots were probably captured illegally in the rainforest of southeast Cameroon. 5 CONCLUSIONS AND RECOMMENDATIONS
Many wildlife criminals are associated with other contrabands. Most of them have connections inside their countries and beyond the national borders. Moreover, the illegal trade exists because the market demand for wildlife products exists. Police and Customs are in the forefront of efforts to combat wildlife crime. More than half of major seizures of wildlife contraband in the Party States have been made by the Police and Customs officers in collaboration with Wildlife Authorities. Although some law enforcement officials have contributed to efforts to combat wildlife trafficking, there remains a great need to sensitize law enforcement agencies to their role in natural resource conservation. Ideally, wildlife regulations would be addressed in officer training and officers would be regularly updated on new developments in wildlife crime enforcement efforts. 6 BIBLIOGRAPHY Alio, Adan M. (2010), The Role of LATF in Combating Environmental Crime. Presentation at 9TH NCP Administrative Meeting 11th 12th October 2010 - MAHE, SEYCHELLES. Government of Kenya, Environmental Management and Coordination Act, 1999. Interpol, 2010, Environmental Crime Programme, Strategic Plan 2011-2013. Karugaba, Karl (2008), Law Enforcement Solutions to Trans-Boundary Bush Meat Trade in East Africa, presented at College of African Wildlife Management Mweka, Tanzania. Lusaka Agreement Task Force (2010), Trans-Boundary Environmental Crime - LATFS Experience, presented at Kampala, Uganda and retrieved from www.lusakaagreement.org. Lusaka Agreement Task Force, 2010, Regional Wildlife Security Operations and Liaison with other agencies: a presentation at KWS Basic Intelligence and Investigation training on 19th May 2010 KWS FTS, Manyani, Kenya. Appendix 1 to this paper, citing major seizures of ivory, may be found in the online version of this paper at http://www.inece.org/conference/9/.
Klingenberg, Joas, Huijbregts & Loonstra209
DUTCH AND EUROPEAN ENFORCEMENT OF THE WASTE SHIPMENT REGULATION KLINGENBERG, ALBERT1, JOAS, ANKE2, HUIJBREGTS, CARL3, and LOONSTRA, ANNO4 Program manager Enforcement Waste Shipment Regulation, Inspectorate of the Ministry of Infrastructure and Transport, PO Box 16191 2500 BD, The Hague, The Netherlands, albert.klingenberg@minvrom.nl
1
Senior Consultant, BiPRO GmbH, Grauerstr. 12, 81545, Mnchen, Germany, anke. joas@bipro.de
2
Senior Inspector, Inspectorate of the Ministry of Infrastructure and Transport, PO Box 16191 2500 BD, The Hague, The Netherlands, carl.huijbregts@minvrom.nl
3
Senior Inspector, Inspectorate of the Ministry of Infrastructure and Transport, PO Box 16191 2500 BD The Hague, The Netherlands, anno.loonstra@minvrom.nl
4
SUMMARY The Netherlands exports, directly or by transit, about 4,4 million tons of waste per year to countries not member of the Organization for Economic Cooperation and Development (OECD). Enforcement of the European Waste Shipment Regulation and the implementation of the Basel Convention are a priority for the Inspectorate of the Dutch Ministry of Infrastructure and Transport. Improvement of compliance with this Regulation should be accomplished through national and international cooperation. The Netherlands participates in IMPEL, the formal European network for implementation and enforcement of environmental law. One of the clusters of IMPEL is TFS, transfrontier shipment of waste. As in previous years IMPEL-TFS organized in 2010 a project, managed by the Dutch Inspectorate, with the aim of performing inspections all over Europe. In 2010, 26 countries performed 12.573 inspections within the scope of this project. 1.412 (13,5 %) of the inspected objects turned out to be transfrontier shipments of waste. 337 violations of the Waste Shipment Regulation were discovered, 23,9 % of the waste related transports. This inspection project, called the Enforcement Actions Project, showed growing cooperation between the enforcement bodies and other involved authorities in the individual countries, such as Customs and Police. Individual countries often lack a sense of urgency for enforcement of environmental law and on a high managerial level there is often not enough support for enforcement activities. This results in a lack of inspections and violations of the Waste Shipment Regulation and that is why continuation of the cooperation in the IMPEL projects
is necessary. Also, the European Commission should strongly stimulate national enforcement programs and cooperation between (at least) European countries to enhance the level of compliance with the Waste Shipment Regulation. INECE, a global platform, is a prime example of the global cooperation that should develop between inspectors and their organizations and this may lead to better compliance with the international legislation for waste shipments. 1 PORT OF EUROPE
On a global level, the Netherlands plays an important role in the export and transit of European waste to non-OECD countries. In this regard, the port of Rotterdam is an important player. In 2009, 23 million tons of waste crossed Dutch borders. About 13 million tons were exported, of which 4.4 million tons were shipped to non-OECD countries. Millions of tons of waste consisting of metals, paper and cardboard, and plastics find its way to countries such as China, India and Vietnam. Such trans-frontier shipment of waste is regulated by the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention). In Europe, the Basel Convention is implemented through the European Waste Shipment Regulation. This regulation has a system of bans and notifications concerning the import, export and transit of waste. For example, the export of hazardous waste to non-OECD countries is banned and the export of recyclable waste is allowed if the kind, origin and destiny of the waste are known. 2 DUTCH NATIONAL APPROACH
Since the beginning of the 1990s, the Dutch national authorities have given priority to the enforcement of environmental legislation, as well as enforcement of the European Waste Shipment Regulation. This is a result of the Netherlandss major role in exporting large amounts of waste to non-OECD countries. An important part of the strategy in the enforcement of environmental legislation is the cooperation with other national enforcement bodies, such as Customs and Police. Official agreements have been made between the responsible Dutch Inspectorate of the Ministry (now called the Ministry of Infrastructure and Environment) and Customs and Police. In fact, these enforcement bodies perform together ten times more inspections than the Dutch Inspectorate itself. However, the Inspectorate is responsible for the complex inspections, setting priorities and in practice also works closely together with Customs and Police to translate the priority-setting in practical ways to select certain shipments in the ports and on the roads. During the last few years, priority was given to electronic waste and plastic waste. In 2010, a total of about 5,500 inspections of waste shipments were performed in the Netherlands by these enforcement bodies.
DUTCH INTERNATIONAL APPROACH
Another important aspect of the Dutch Inspectorates view on enforcement is the belief that international cooperation is necessary to fight illegal shipments of waste. In the last five years, good relationships have been established with individual countries such as China, India, and Ghana. The same is true on the European level with the authorities in UK/Northern Ireland/Scotland, Belgium, and Germany. In China, where there is interest in waste as raw material for industry, it is very important that the enormous amounts of waste leaving the port of Rotterdam do not contain hazardous substances or recycling disturbing compounds. Since 2004 inspections in the Netherlands learned that often illegal shipments of electronic waste were exported to Ghana. For both countries it is important that the illegal shipments of electronic waste are stopped in the Netherlands. Enforcement practices are shared, training programs are performed, and inspectors cross borders following the waste streams and learn from the inspection practices of colleagues in other countries. On a ministerial or high official level, agreements have been signed with several of the mentioned countries to guarantee an official and solid basis for cooperation. 4 EUROPEAN COOPERATION ON ENFORCEMENT
The International Network for Environmental Compliance and Enforcement (INECE) is the global platform for enforcement cooperation. In Europe, the European Union Network for the Implementation and Enforcement of Environmental Law (IMPEL), an important network for the European Commission, plays that role. The Netherlands has played an important role in the establishment of this network, not only financially, but also in the establishment of a sustainable structure for the network. One of the so called clusters within IMPEL is transfrontier shipment of waste (TFS). The purpose of the this cluster is cooperation between countries concerning the implementation and enforcement of the European Waste Shipment Regulation. In 2002 IMPEL-TFS started the Seaport and later the Verification projects with the aim of performing inspections on a European level, enhancing cooperation between inspectors and learning from each other. The Seaport and Verification projects were followed in 2006 by the Enforcement Actions project, with budgets from the European Commission and the Dutch Inspectorate. All these projects were aimed at better compliance with the European Waste Shipment Regulation and cooperation between countries by performing inspections and exchange of information and knowledge. 5 IMPEL-TFS ENFORCEMENT ACTIONS II, LEARNING BY DOING
While the 2002 Seaport I project included only six participating European Member States, the Enforcement Actions II project, started at the end of 2008, included 26
European countries by the end of 2010. In the spring of 2011, the report of this project was accepted by the Board of IMPEL. Some highlights of the report include: 26 countries performed 12,573 inspections within the scope of the project in 2010, mainly road transport inspections, followed by seaport inspections; 1.412 (13.5 %) concerned inspections of transfrontier shipments of waste; 337 violations of the Waste Shipment Regulation were discovered, that is 23.9 % of the waste related transports. In 2009, the first part of Enforcement Actions II project inspections revealed that 25 % of the inspections were waste related and 19 % of these w.ste shipments were in violation of the Waste Shipment Regulation. The authors believe that the lower percentage of waste inspections in 2010 (13.5 %), compared to the 2009 percentage, is a result of performing more general road inspections instead of more information based seaport inspections. This resulted in a higher number of non-waste related inspections. The types of violation of the Waste Shipment Regulation were varied: Of the 337 violations in 2010, 35 % were illegal shipments, i.e., transports lacking notification or consignment and transports under export bans. Fifty-three percent of the violations were administrative violations, mostly because of poor information about the origin, destination, or kind of waste that is required in the Annex VII of the European Waste Shipment Regulation. Twelve percent of the violations concerned violations of national or regional legislation. The most common waste involved in shipments in violation of the Waste Shipment Regulation and specifically contributing to the illegal shipments were: municipal waste, electronic waste, and end-of-life vehicles/vehicle parts. In the Netherlands, plastic waste was an important source of illegal shipments. A promising result described in the IMPEL-TFS reports has been cooperation between the different authorities, such as Customs, Police, and local/regional authorities, for nearly all transport inspections. Also, the number of countries organizing inspections in collaboration with other countries has grown. International cooperation was achieved in 41 % of activities, predominantly in terms of joint border controls. These inspections covered almost all of the land borders with relevant transit traffic freight between those countries that have been actively involved. Furthermore, fourteen exchange activities with nineteen participating countries practiced one of the aims of the project learning by doing: during these exchanges the inspectors of different countries learned about the working methods from each other.
6 CONCLUSION In March 2011, Enforcement Actions II ended. The participating inspectors strongly recommended continuation by means of some kind of follow-up because the project was viewed as an important driver for organizing inspections. The inspectors expressed that contact with other foreign authorities and the exchange programs are very important. Sixty-seven percent of the inspectors responded that they identified or solved illegal shipments issues with the help of the project participants of other countries. In the authors believe, this also means that the European Commission should strongly stimulate national enforcement programs and cooperation between (at least) European countries. A strong argument for this is that the results of the Enforcement Actions II Project show that compliance of the Waste Shipment Regulation is not yet satisfying in many European countries and enforcement of the Regulation is very often not well supported by management on a high level. A level playing field has not yet been achieved yet. Illegal transfrontier shipment of waste is a global problem. To tackle this problem, European cooperation is very helpful but not enough. In addition, also global cooperation between inspectors and their organizations is necessary. INECE as a global platform has already started this kind of cooperation. In the years to come the strengthening of this kind of global cooperation may lead to better compliance of the international legislation for waste shipment and protection of the environment all over the world. 7 REFERENCES IMPEL-TFS Enforcement Actions II, Enforcement of the EU Waste Shipment Regulation, Learning by doing. 03 March 2011, Draft project Report III Inspection Results. Inspection periods 5/6/7 March, June and October 2010.
COMPLIANCE WITH AND ENFORCEMENT OF THE BASEL CONVENTION: LATEST DEVELOPMENTS AND THINGS TO COME DURING THE TENTH MEETING OF THE CONFERENCE OF THE PARTIES VOINOV KOHLER, JULIETTE Legal and Policy Advisor, Secretariat of the Basel Convention, United Nations Environment Programme, juliette.kohler@unep.ch SUMMARY This article provides an update on the latest developments that have taken place in the framework of the Basel Convention to promote compliance by Parties with their obligations under the Convention as well as a to ensure a better enforcement of the Convention at the national level. Of particular interest is the fact that, nearly ten years after its was established, the Implementation and Compliance Committee has recently considered for the first time specific submissions dealing with individual Parties implementation and compliance difficulties. A second development to note is the proposal, from the same Committee, to establish a partnership on preventing and combating illegal traffic aimed at bringing together institutions undertaking capacity building activities. 1 INTRODUCTION The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal is the most comprehensive global treaty dealing with the generation, transboundary movement and environmentally sound management of hazardous and other wastes. Its overall objective is to protect human health and the environment from the adverse effects which may result from such wastess. The Convention celebrated its twentieth anniversay in 2009 and has now 175 Parties. As the tenth meeting of the Conference of the Parties of the Basel Convention gets closer, it seems opportune to present the latest developments that have taken place in the framework of the Basel Convention to promote compliance by Parties with their obligations under the Convention as well as a to ensure a better enforcement of the Convention at the national level. Issues of compliance and enforcement, in particular in relation to the illegal traffic provisions of the Convention, are expected to feature on the agenda of the conference, to be held in Cartagena de Indias, Colombia, on 17-21 October 2011, and Parties will be invited to review and consider adopting decisions on these issues. This article focuses on the outcome of the eighth session of the Basel Convention Implementation and Compliance Committee as well as work under the Convention to prevent and combat illegal traffic of hazardous and other wastes.
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THE EIGHTH SESSION OF THE IMPLEMENTATION AND COMPLIANCE COMMITTEE OF THE BASEL CONVENTION (GENEVA, 21-23 MARCH 2011): THE SPECIFIC SUBMISSIONS PROCEDURE BROUGHT TO LIFE
Because they aim primarily at achieving goals of interest to each and everyone, above and beyond individual national interests, Multilateral Environmental Agreements (MEAs) establish institutional mechanisms and processes with the ultimate objective of ensuring that the integrity of a given treaty is preserved and that its effectiveness is promoted. Preventing or deterring non compliance, facilitating a return to compliance or sanctioning non-compliance all constitute traditional objectives of MEA non-compliance mechanisms, and most MEAs have now in place such mechanisms. The Basel Convention is no exception to this growing trend. Negotiated in the late eighties, the Convention text does not provide for the establishment of a mechanism or procedures aimed at preventing and restoring compliance by Parties with its requirements. At that time, the only MEA with an explicit legal basis providing for the elaboration and adoption of procedures and institutional mechanisms for determining non-compliance with the provisions of this Protocol and for treatment of Parties found to be in non-compliance was the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer, under which framework a non-compliance procedure was established in 1992. In 1995, backed by the rising understanding that a built-in multilateral regime aimed at preventing and restoring compliance was key to ensure MEA efficiency and in line with the growing trend to establish such procedures and mechanisms within MEAs the Parties to the Basel Convention decided to initiate work related to the possible establishment of a mechanism for monitoring implementation of and compliance with the Basel Convention. Negotiations were completed in 2002 with the adoption, by the fourth Conference of the Parties, of the terms of reference of the Mechanism for Promoting Implementation and Compliance with the Basel Convention. Although the adoption of non-compliance mechanisms plays a critical role in monitoring the implementation of an MEA and in preventing and addressing possible cases of non-compliance, other factors heavily weigh on Parties ability and willingness to fully implement a treaty. Political will at the national level, clear and meaningful objectives and associated obligations in the MEA, legitimate MEA institutions, provision of financial and technical assistance to developing countries and countries with economies in transition, and transparent information sharing systems all contribute to a culture of compliance and, ultimately, better environmental governance. The Basel Convention Implementation and Compliance Mechanism is a model of a facilitative compliance mechanism: its objective is to assist Parties to comply with their obligations under the Convention and to facilitate, promote, monitor and aim to secure the implementation of and compliance with the obligations under the Convention. The mechanism is based on the assumption that a party is facing compliance difficulties. It is non-confrontational, transparent, preventive in nature
and oriented in the direction of helping Parties to implement the Convention. The procedures for the consideration of individual submissions as well as the possible outcomes further evidence the facilitative and cooperative nature of the mechanism. The Committee is indeed given the authority to provide a Party, after coordination with that Party, with advice, non-binding recommendations and information, for instance the elaboration of voluntary compliance action plans. Further measures may be decided by the Conference of the Party upon by recommendation by the Committee provided its efforts did not address the Partys compliance difficulty. Such further measures include access to financial resources, for instance through the implementation fund, on one hand, and, on the other hand, the issuance of a cautionary statement. Even in this latter case, though, the issuance of this statement aims at helping Parties to implement the provision of the Convention and to promote cooperation between all Parties. Unlike some other compliance mechanisms, the Basel Convention Implementation and Compliance Committee has a dual mandate: in addition to considering specific submissions, it may, as directed by the Conference of the Parties, review general issues of compliance and implementation under the Convention. This latter function provides the Committee with the opportunity to develop recommendations and conclusions on any issue of general interest to Parties and has the particular value of contributing to preventing non-compliance. For instance, the Committee has been able, under its general review mandate, to elaborate a directory of training institutions which offer courses that can help Parties to deal with cases of illegal traffic under the Convention, or to elaborate guidance manuals to assist Parties to better implement and comply with their reporting obligations. Another recent example of the outcomes of the Committees work in the context of its general review mandate is its recommendation that the Conference of the Parties decide to establish a partnership on preventing and combating illegal traffic. This recommendation, directed to the tenth meeting of the Conference of the Parties (COP-10, 17-21 October 2011), aims to bring together and improve coordination among relevant entities with a specific mandate to deliver capacity building activities on preventing and combating illegal traffic, such as WCO, Interpol, UNEP, individual Parties, the Basel Convention Regional Centres, informal networks (IMPEL-TFS, INECE or the Asian Network for Prevention of Illegal Transboundary Movements of Hazardous Wastes) and the Secretariat of the Basel Convention, with a focus on the development of tools and training materials, the hosting of workshops, as well as information exchange. We will come back to this matter in the second part of this article focusing on enforcement issues. Consideration of specific submissions took place for the first time during the eighth session of the Committee in March 2011. Until then, neither a Party nor the Secretariat had made a submission to the Committee. This situation raised sufficient concern among the Parties for the Conference of the Parties, during its ninth meeting in June 2008, to mandate the Committee to address shortcomings and limitations in relation to the lack of specific submissions to the Committee. Central to the work to be undertaken by the Committee was the development of recommendations in relation to two issues: first the available trigger options - currently a Party self
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trigger, a Party to Party trigger and a Secretariat trigger limited to Parties reporting difficulties - and second the lack of resources to assist Parties that are determined to be facing difficulties in implementation and compliance. Both sets of issues were considered by the Committee during its eighth session. Concerning the trigger issue, the Committee agreed to recommend that Conference of Parties-10 adopt a decision amending the terms of reference by extending the scope of the Secretariat trigger. Should the recommendation be endorsed by the Conference of Parties, the Secretariat would no longer be restricted to make submissions only in relation to possible difficulties faced by a Party in complying with its reporting obligation under article 13 paragraph 3 of the Convention. Instead, the Secretariat could for instance, if aware of possible difficulties of Party in complying with the control procedure for transboundary movements of hazardous wastes, and provided consultations with the Party concerned were unsuccessful in resolving the matter, make a submission to the Committee. In addition, the Committee agreed to recommend that the Conference of Parties introduce a new paragraph to the Committees terms of reference that would confer a triggering role to the Committee, under specific circumstances and provided no individual Party or the Secretariat have made or are likely to make use of the possibility to make a submission. This proposed broadening of the trigger options aims to ensure that the Committee no longer faces paralysis in the event individual Parties or the Secretariat are unable to make specific submissions to the Committee. Concerning the issue of lack of resources to assist Parties that are determined to be facing difficulties with implementation and compliance, the Committee discussed how to bring to life the implementation fund established at Conference of Parties-9. This fund constitutes an enlargement of the scope of the Trust Fund to Assist Developing Countries and other Countries in Need of Technical Assistance in the Implementation of the Basel Convention, with the objective of assisting any Party that is a developing country or country with an economy in transition and is the subject of a submission made in accordance with the terms of reference of the Committee. During its eighth session, the Committee agreed that this matter was of particular relevance, especially since its consideration of specific submissions had clearly evidenced that in order for implementation and compliance difficulties to be resolved, access to funding might be required. The Committee will therefore seek from Conference of Parties-10 the authorization to direct the use of contributions to the implementation fund to assist individual Parties concerned by a specific submission in the event facilitative measures such as advice, non-binding recommendations and information, appear to not be sufficient to resolve the compliance matter. As previously mentioned, the Committee considered for the first time specific submissions during its eighth session. The Committee had received one self submission from Oman, and nine submissions from the Secretariat. All submissions related to difficulties in implementing and complying with the reporting obligation under the Convention enshrined in its article 13 paragraph 3. Under this provision, Parties are required to transmit, for each calendar year, a report on the previous calendar year containing information on various aspects of the implementation of the Conventions obligations. The report takes the form of answers to a revised
questionnaire on transmission of information. Some elements of information, sought in part I of the questionnaire, relate to the institutional and legal framework in place at the national level, for instance the obligation to designate a Focal Point and a Competent Authority or the obligation to take appropriate legal measures to implement and enforce the Convention. Other elements of information to be provided in part II of the questionnaire relate to the implementation of the Conventions substantive provisions on the generation of hazardous and other wastes, and the control of transboundary movements of such wastes. If the provision of substantive data on the former kind of information sought may be seen as relatively easy to be provided, substantive data on the latter kind of information sought can only be provided if a Party has taken a number of steps to implement the Convention, for instance the elaboration and regular updating of an inventory of wastes, the adoption of a waste management legislation and strategy, and procedures for collecting data on waste generation and for tracking the movement of wastes. The level of implementation and compliance with the national reporting obligation under the Convention can thus be seen as an indicator of the effectiveness of the Convention. In practice, about one half of the Parties submit national reports on an annual basis, reflecting an apparently high level of compliance difficulties with article 13 paragraph 3 of the Convention. This situation, coupled with the limited capacity within the Conventions infrastructure for the Committee to consider numerous submissions, led the Secretariat to initiate consultations with nearly a hundred Parties facing possible difficulties with their reporting obligation but to make submissions to the Committee concerning the limited number of Parties presumably facing the most difficulties in complying with this obligation: Parties that have never submitted a national report. As a result, the Committee, during its eighth session, considered nine submissions from the Secretariat with regards to the following Parties that had never submitted a report: Bhutan, Cape Verde, Eritrea, Guinea Bissau, Liberia, Libyan Arab Jamahiriya, Nicaragua, Swaziland and Togo. In considering these submissions, the Committee aimed at identifying the facts and root causes of the matter and assisting in its resolution. Four Parties concerned by a submission attended, in person or via teleconference, discussions on the submission relevant to them. The cooperation of these four Parties, namely Bhutan, Eritrea, Guinea Bissau and Togo, greatly facilitated the work of the Committee in understanding the challenges faced by these Parties, their own efforts to address their difficulties, steps that they were in a position to take to submit at least part I of their national report, and how best the Committee could assist them in restoring compliance with the reporting obligation, for instance through the elaboration, in coordination with these Parties, of a voluntary compliance action plan. Concerning Nicaragua, the Committee concluded that the matter had been resolved following the Secretariats submission, prior to the eighth session of the Committee, of its national report for 2009. Concerning the four other Parties concerned by a Secretariat submission that did not participate in the meeting, namely Cape Verde, Liberia, Libyan Arab Jamahiriya and Swaziland, the Committee agreed to seek their cooperation in order to allow the Committee to assist them in resolving the compliance matter.
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The recommendation, from the Committee, that it be authorized by Conference of Parties-10 to direct the use of contributions to the implementation fund to assist individual Parties concerned by a specific submission stems from the conclusion that resolving compliance difficulties may well require that, in addition to advice and recommendations, resources be made available to these Parties. As evidenced by the negotiations on a possible non-compliance mechanism under the Stockholm Convention, access to funding within the context of a compliance regime is seen by many governments as a critical feature of such a regime. 3 ENFORCEMENT AND ILLEGAL TRAFFIC: TOWARDS A PARTNERSHIP?
As indicated in the first part of this article, one of the key outcomes of the eighth session of the Committee is the recommendation that Conference of Parties-10 establish a partnership on preventing and combating illegal traffic. As evidenced by the directory of training institutions which offer courses that can help Parties to deal with cases of illegal traffic under the Convention, elaborated by the Implementation and Compliance Committee, a variety of institutions offer activities aimed at improving capacity for detection, prevention and prosecution of cases of illegal traffic. Some are governmental institutions, others are non-governmental, some are national, others are regional or global, some focus on specific clients, others will build the capacity of any entity involved in transboundary movements of hazardous and other wastes. All these institutions have different mandates, approaches, activities, legal nature, governance structure and scope. Currently, the Secretariat of the Basel Convention cooperates with a number of institutions in an effort to build the capacity of developing countries and countries with economies in transition to prevent and combat illegal traffic. Some activities are undertaken at the request of individual States and in cooperation with the Basel Convention Regional and Coordinating Centres (BCRCs) in the framework of national projects. These include the Probo Koala Programme (BCRC-Senegal, BCRC South Africa), the West Africa E-waste programme (BCRC-Nigeria, BCRCSenegal and BCRC Egypt) as well as the Project in Trinidad and Tobago and thirteen other Small Islands Developing States in the Caribbean (BCRC-Trinidad). Project activities focusing mainly on the environmentally sound management of specific waste streams also aim at building capacity to prevent and combat illegal traffic. Such project activities are undertaken, e.g. in cooperation with BCRC-Southeast Asia and BCRC-China on e-waste, and BCRC-Central America and Mexico on used lead-acid batteries. Other activities are undertaken at the global level in cooperation with several organizations/networks: the World Customs Organization (WCO), the International Criminal Police Organization (Interpol), the Transfrontier Shipments cluster of the European Union Network for the Implementation and Enforcement of Environmental Law (IMPEL-TFS), the International Network for Environmental Compliance and Enforcement (INECE), the Asian Network for Prevention of Illegal Transboundary Movements of Wastes. Within UNEP, the Secretariat cooperates with several MEA Secretariats mainly Rotterdam, Stockholm and CITES, UNEPs
Green Customs Initiative, UNEP Division of Environmental Law and Conventions, and UNEP Regional Office for Asia and the Pacifics Multilateral Enforcement Network. The Secretariat has signed Memorandum of Cooperation with the WCO, Interpol, IMPEL-TFS and INECE. Cooperation with the other organizations/ networks relies on an informal basis and is based on decisions from the Conference of the Parties. Capacity building activities include the development of tools as well as participation in meetings, workshops and support to inspections exercises. The Basel Convention has a tradition of relying on partnerships as an efficient way of bringing together the various private, public, national or international stakeholders whose joint involvement is key to achieving specific goals of the Convention. Since the fifth Conference of the Parties, partnerships have been established to deal with mobile phones (Mobile Phone Partnership Initiative - and computing equipment (Partnership for Action on Computing Equipment). During the ninth Conference of the Parties, a partnerships programme was adopted that extends to mercury and climate change issues. Precedents of partnerships initiated outside of the framework of the Basel Convention and that are more relevant to the issue of preventing and combating illegal traffic of environmentally sensitive goods include the UNEP Green Customs Initiative and the International Consortium on Combating Wildlife Crime. A Waste Shipments Compliance and Enforcement Platform was also launched on 29 November 2010 by the Inspectorate of the Netherlands Ministry of Housing, Spatial Planning and the Environment. This platform is a valuable part of a preparatory process towards the possible establishment of the proposed partnership on preventing and combating illegal traffic. There is indeed scope to improve the current framework of cooperation between organizations/networks engaged in activities aimed at building the capacity of and improving the implementation by authorities in importing countries to prevent and combat illegal traffic. In addition, the way forward could also aim at bringing forward change within exporting countries as well (tackling the problem at the source), and within the various stakeholders involved in the transboundary movements of wastes chain (improved awareness of and cooperation with generators, disposers, exporters, transport industry). A more comprehensive approach to preventing and combating illegal traffic would have the following benefits: A common understanding of the issues at stake, of the role of the various stakeholders, of their challenges and needs and of how to best address them. A shared vision or strategy for preventing and combating illegal traffic that is line with the objectives and requirements of the Basel Convention. Increased awareness and dialogue among the various stakeholders involved in transboundary movements of hazardous wastes. A coordinated approach in order to avoid duplication or gaps in the activities, to ensure a broader geographical distribution of activities, and to prevent competition over resources.
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A more concerted approach to increase visibility and the importance of the issue of preventing and combating illegal traffic. Greater visibility would generate increased political support within States, could provide an increased leverage for resource mobilization, and would aim at increasing efficiency in the delivery of activities. All these benefits will lead to better environmental governance. 4 CONCLUSION Improving the implementation of a treaty, ensuring compliance with its provisions, preventing and combating illegal activities at the national level are all key to ensuring the effectiveness of an MEA and of its implementing legislation. The recent work of the Basel Convention Implementation and Compliance Committee, both to facilitate compliance with Parties reporting obligation and in relation to preventing and combating the illegal traffic of hazardous and other wastes, provides useful lessons on how MEA institutional mechanisms play an important role in achieving the overall objective of protecting human health and the environment from the adverse effects posed by hazardous and other wastes.
REQUIREMENTS FOR EFFECTIVE SEAPORT ENVIRONMENTAL SECURITY: COLLECTIVE ACTION AT THE PORTS KOPSICK, DEBORAH A. Environmental Protection Specialist, International Compliance Assurance Division, Office of Enforcement and Compliance Assurance, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, D.C. 20460, kopsick.deborah@ epa.gov SUMMARY Recent targeted enforcement actions coordinated by the World Customs Organization (WCO), the European Union Network for the Implementation and Enforcement of Environmental Law (IMPEL) and the International Network for Environmental Compliance and Enforcement (INECE) have confirmed that illegal hazardous waste shipments are still occurring and are still a major concern for countries, regardless of the countrys level of development or participation in international trade. The image of leaky drums of hazardous chemical waste has been replaced, for the most part, by images of increasing volumes of hazardous electronic waste. Environmental and customs agency officials in West Africa and Asia were surveyed to identify their most critical needs for addressing the illegal hazardous waste trade. Officials in both regions identified the need for a clear definition of what constitutes a hazardous waste, increased collaboration with port counterparts at the national, regional and international levels, and more effective enforcement capacity through knowledge transfer on specific waste identification, interception and interdiction tools and techniques. 1 BACKGROUND One of the objectives of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention) is to reduce the number of cross-border hazardous waste shipments to the minimum necessary for environmentally sound waste management. National reporting data from the Basel Convention indicate that over 10.3 million tons of hazardous wastes were involved in legal transboundary shipments in 2006, an increase of 22% from 2004.1 These legal transboundary shipments are justified if the result is a higher level of environmental protection. The amount of illegal hazardous waste shipments is harder to quantify, as only those shipments that are intercepted are reported. Numerous sources have reported that much of the illegal waste movement is controlled by organized crime.2 It is estimated that these criminal groups generate revenues of $1-2 billion (USD)/ year from the dumping of hazardous waste.3 Multiple targeted inspection events coordinated by the WCO, IMPEL, and INECE4 confirm that the illegal hazardous waste trade is still a major issue for developed and developing countries alike.
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There are numerous drivers for this illegal transboundary trade, including financial gain through less costly disposal options, circumvention of laws and regulations to avoid environmental controls or a lack of in-country environmentally sound waste management facilities. Many shipments of legal and illegal hazardous waste pass through seaports while entering, exiting or transiting a country. In order to enhance environmental enforcement at seaports, the INECE Seaport Environmental Security Network (SESN) was formed in 20085. The SESN is a global operational network of officials responsible for environmental enforcement at seaports. The goals of this network are to build capacity, raise awareness and facilitate enforcement collaboration. 2 COLLECTIVE ACTION APPROACH TO COMPLIANCE WITH THE BASEL CONVENTION
The strengthening of compliance with multilateral environmental agreements has long been identified as an opportunity for collective action.6 Collective action, which simply defined is the working toward a goal by more than one person, is an appropriate way to look at the transboundary shipment of hazardous waste as it encompasses a global environmental problem that nations have collectively agreed to solve. This is especially true in the context of transboundary shipments of hazardous wastes and seaports. Collective action can be a force in addressing existing problems and preventing future problems from developing. Cooperation occurs when actors adjust their behavior to the actual or anticipated preferences of others, through a process of policy coordination.7 Each cooperating country is driven toward achieving a specific goal, and strives to gain something as a result of its policy adjustments. Elinor Ostrom, 2009 Nobel Laureate in Economic Sciences, advocates a particularly applicable approach to collective action, where the issues are addressed as close as possible to those responsible for managing the resource.8 In the case of the Basel Convention, which has no supranational regulatory or enforcement authorities, each nation is required to implement the provisions of the Convention through its own national regulatory structure. Therefore, the characteristics of each nation will determine how and to what extent it conducts this process. Each country may follow a different path to implementation, and the unique social, economic and political characteristics of each country may help or hinder the success of this national effort. It is critical that a regulatory framework and an effective enforcement program be in place to allow detection and interception of illegal transboundary shipments of hazardous waste. Numerous entities, such as environmental ministries, customs agencies, ports and harbor authorities, Coast Guard and naval units, as well as economic agencies, may have authorities for environmentally regulated materials at seaports. Therefore, inter-ministerial cooperation, which incorporates collective action among government agencies, is essential to achieving the goals of effective environmental enforcement at seaports. At the same time, international collaboration is necessary to facilitate information and intelligence sharing on illegal shipments, shippers and trade routes.
NEEDS ASSESSMENT 3.1 Regional Focus
Asia and West Africa have historically been the recipients of illegal shipments, including hazardous chemical and electronic waste. In fact, incidents of illegal dumping of hazardous wastes in West Africa prompted the development of the Basel Convention. Dumping in these regions continues as evidenced by the 2009 Operation Demeter, coordinated by the WCO, which netted over 30,000 tons of illegal waste during a 50 day period.9 The enforcement professionals who comprise the SESN are responsible for the inspection and monitoring of all transboundary hazardous waste shipments arriving, exiting or transiting through their respective seaports. Therefore, their perceptions of the issues and challenges reflect a pragmatic view of what is needed at the port level to properly manage these shipments. Officials from environmental ministries and customs agencies were surveyed in West Africa in 2009 (38 responses) and in Asia in 2010 (17 responses), at two SESN workshops. West African countries participating in the 2009 assessment, conducted in Accra, Ghana, included Benin, Cte dIvoire, Ghana, Nigeria, Senegal and Togo. Asian nations participating in the 2010 survey, conducted in Siem Reap, Cambodia, included Brunei Darussalam, Cambodia, China, Indonesia, Lao Peoples Democratic Republic, Malaysia, the Philippines, Singapore, Thailand and Vietnam. Tracking of specific country responses was not required as the purpose of the assessment was to identify regional opportunities for new or existing SESN tools, resources and assistance. 3.2 Structure of Needs Assessment
Prior to the two regional workshops, at the 2008 SESN kick-off meeting, network participants identified four areas that needed improvement at the ports. These included enhancing the ability to exchange information both nationally and internationally; assistance in interpreting the Basel Convention provisions, as well as national laws; international collaboration among all entities responsible for enforcement at seaports; and increasing the exchange of experiences and knowledge. In order to understand how these improvements could be implemented in the field and to aid in achieving a common understanding of the issues, specific definitions of each of these concepts were incorporated into the survey questions of the needs assessment: 1) Communication: Being able to communicate between authorities and countries to follow illegal shipments and better understand the transboundary life cycle of hazardous waste from origin to final disposition. 2) Capacity building: Developing and improving the skills and knowledge of port inspectors and regulators through the use of specific initiatives and tools.
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3) Collaboration: Specifically targeting informal cross-border collaboration between officials of enforcement agencies that can help disrupt the illegal hazardous waste trade. 4) Port inspections: Addressing specific obstacles to effective port inspections that can support compliance with the Basel Convention and national hazardous waste legislation. 4 RESULTS 4.1 Communication
There was overwhelming agreement in both regions that communication lines need to be established to facilitate the exchange of data. In West Africa, most of the respondents indicated a desire for cross-border communications, in addition to communications at the national level. This is most likely reflects concern over the practice of port hopping along the coast of West Africa, which occurs due to the geographic proximity of the ports. Collective action among West African countries is the only effective solution to this problem, for if one country develops a strong import inspection program with the ability to identify and reject suspect or illegal shipments, the waste shipper will look for another nearby port that will allow the illegal cargo to be off-loaded. Collectively communicating information on these shipments can help alert the other ports to the incoming hazardous cargo. In Asia, the needs assessment indicated a fairly even division of opinion between the need for communications at the national level, the cross-border/bilateral level and the regional level. Respondents expressed interest in continuing and improving communications among the Secretariats of the Basel, Rotterdam and Stockholm Conventions, as well as with regional organizations such as the Asian Network for Prevention of Illegal Transboundary Movement of Hazardous Waste (Asian Network), SESN, and the Regional Intelligence Liaison Offices and Customs Enforcement Network of the WCO. Collectively working with the shipping industry was proposed during the Asian workshop as a possible means of disrupting the illegal waste trade. In West Africa, respondents preferred information sharing at the shipment/ container level, followed by verification requests, which include information on permits, licenses, bills of lading, invoices, manifests and other container-specific information. Asian seaport officials requested updated national contact lists as their number one need. Language may be a barrier to effective communication; for example in South East Asia, there are at least twelve primary languages, creating the potential for miscommunication of verbally exchanged data and information. Therefore, e-mail, which provides a permanent record that can be translated, may help overcome language barriers, and was identified by the Asian officials as the preferred means for sharing information along with protected websites. The value of personal contacts among enforcement counterparts in other countries was recognized by both regions as being very valuable.
4.2 Capacity Building There was a unanimous call for enforcement capacity building activities by both West Africa and Asia. When identifying areas of focus, West African respondents highlighted development of waste shipment legislation, inter-agency collaboration, risk and threat assessments, inspection methods and inspector exchange programs almost equally. The West African respondents identified long-term needs, such as the development of international protocols and implementing legislation, as well as hazardous waste management standards and projection of the need for long-term treatment sites. Asia respondents identified inspection methods, followed by inter-agency collaboration, as the regions top priorities. Identifying what constitutes a waste is a complex process due to differences in national legislation, and it is an area the Asian participants flagged as problematic. The procedure for repatriation of rejected shipments of waste, where the waste is returned to the originator, was also identified as an issue in the Asian region. Intelligence-led enforcement emerged from the 2010 Asian workshop as a potential new tool for selectively targeting illegal shipments, and making the best use of limited inspection resources. 4.3 Collaboration
The need to intensify cross-border collaboration was identified by all respondents. Both regions identified an active network, with regular meetings, as the vehicle to achieve this collaboration. West African respondents suggested regular telephone conferences to facilitate timely exchange of data, a website and task teams to follow up on issues of common interest. The Asian survey respondents also placed a high priority on online and virtual collaboration as well as coordinated enforcement activities at ports, such as the SESN International Inspection Month project, conducted at the international, regional and domestic levels. 4.4 Port Inspections
Port inspections represent the enforcement aspect of collective action - what Ostrom refers to as the sword of collective action.10 Although communication has been determined to be an important component of effective collective action, this effectiveness is increased when the participants also impose a sanctioning method through enforcement. The range of survey respondents includes those countries with well-established inspection programs to countries that have much less experience with seaport inspections. Yet all the officials responded that they face obstacles to inspection of hazardous waste shipments at their ports. West African respondents identified lack of capacity as their primary obstacle, followed closely by a lack of collaboration. Also identified was a lack of tools, information, and knowledge as well as problems with interpretation of laws and waste definitions, listed in order of decreasing importance. The Asian respondents identified lack of information as their number one obstacle to effective port inspections, resulting
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from confusion over waste definitions and a lack of information on wastes imported into their respective countries. Problems with interpretation of laws and definitions, as well as a lack of capacity, training, and collaborative opportunities were also priorities, listed in order of decreasing importance. Interestingly, there was little priority given to the lack of relevant law as an obstacle to port inspections; however, interpretation of existing laws and definitions was given a high priority. 5 MEETING THE NEEDS OF THE PORTS
It should be understood that the responses to the needs assessment represent the viewpoints of the individual officials surveyed based on their unique experiences and personal observations and may not necessarily reflect the official position of their governmental agency. Moreover, the survey information collected by SESN is geographically specific and limited to the participants of the two SESN workshops, so the information may not represent a more global population of government officials. However, the similarity of experiences, challenges and suggested solutions may indicate that a regulatory or policy change is needed. Even with these limitations, the information gathered during the INECE needs assessment offers a unique view into inspection operations at seaports. Understanding the view from the port goes a long way to developing the right enforcement tools that are capable of providing the greatest impact. The results indicate that similar constraints to implementation of the Basel Convention exist in both West Africa and Asia. In order for these regions to collaboratively design strategies to overcome these constraints, the enforcement officials will need information, a forum where they can discuss this information and develop strategies, and the ability to initiate implementation of monitoring (port inspections) and sanctions (legal action), two components of enforcement11. The initiation and maintenance of global and regional networks, suggested by the survey respondents, can provide these forums and facilitate the communication and collaborative relationships that lead to effective seaport environmental security. Although priorities may differ, certain themes emerge that are common to both Asia and West Africa: 1. Both regions called for more clarity regarding the definition of what constitutes a hazardous waste. The confusion caused by the lack of a common definition, especially in relation to what constitutes a second-hand good versus a waste, has been highlighted at meetings of the Asian Network and the SESN. This lack of clarity leads to difficulty in properly classifying a waste shipment upon arrival at the port. The development of documentation, either as training materials or visual aids, that explain the process of determining what a waste is and what a waste is not, along with real-world examples, would be a useful tool for officials at the port. 2. Increased collaboration among national agencies responsible for port security as well as with international partners, including the Secretariat of the Basel Convention and regional and global networks, is needed to disrupt and deter the illegal
waste trade. If ports act alone, they lose the benefit of shared information and intelligence on modes of operation, preferred trade routes and identities of those responsible for the illegal shipments. 3. Informal communications can be very effective in the exchange of information, but these communications require access to updated national and regional contact lists, which were requested by respondents in both regions. An important role of the regional and global enforcement networks, such as the Asian Network and the SESN, is to foster development of informal communications between port authorities. Effective communication and collaboration is difficult to achieve but can lead to innovative problem solving, providing individuals know one another and build a level of mutual trust, are able to communicate with one another and believe the other person will act cooperatively when a situation arises. The personal relationships, established through informal networks, will have a positive effect on the amount of information exchanged and can help dissolve any barriers to effective cross-border collective action. However, if some of the involved entities do not participate in the network, the collective action is likely to be less effective and could allow for weak links in regional enforcement to exist, which could be exploited by unscrupulous waste shippers. This is where inclusive regional networks, which foster cooperation, not competition, may be especially effective. 4. More enforcement capacity is needed at seaports, particularly in areas of understanding waste shipment legislation, risk and threat assessments, cargo inspection techniques, and inter-agency collaboration agreements. There are a number of ways to conduct training to advance knowledge at the ports. Conducting inspector exchanges is a highly individualized, although costly, means of training port inspectors. Regional workshops can offer specialized training to attendees. On-site training at the ports is an option, but like the inspector exchanges is more individualized and therefore more costly. Trainthe-trainer programs may be an effective way to increase sustainability of on-site inspector training. On-line training is a method to reach the maximum number of customs and port officials, who can take courses at a time and place that will not adversely impact their responsibilities on the line. On-line training modules can be designed to be customizable to a countrys specific needs and can be translated at minimal cost. Learning, combined with interaction, will lead to a greater ability to identify, interdict and deter the illegal waste trade, while allowing management of the legal waste trade in an environmentally sound manner. 6 CONCLUSIONS
Collectively working together to monitor transboundary shipments of hazardous waste can be an effective way to increase a ports ability to promote compliance and enhance enforcement through consistent implementation of environmental laws and regulations. The use of informal networks, such as the SESN and the Asian Network, may bring together people of both similar and diverse interests, facilitating action that revolves around cooperation, not competition. Countries in the same geographic region, such as South East Asia or West Africa, will have a
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bigger stake in communicating with a neighboring country when transboundary environmental effects need to be considered. The personal relationships developed through informal networks can have a positive effect on the amount of information exchanged and can help dissolve cultural and language barriers. Participants in the collective action are far more likely to be better informed if they communicate with other participants, with face to face communication increasing the efficiency of a collective action. 7
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REFERENCES
Secretariat of the Basel Convention, Waste without frontiers, Global trends in generation and transboundary movements of hazardous wastes and other wastes, 2010, available at http://www.basel.int/pub/ww-frontiers26Jan2010.pdf. 2 Interpol, Electronic Waste and Organized Crime, Assessing the Links, 2009, 49 pgs., available at http://www.interpol.int/Public/ICPO/FactSheets/Wastereport.pdf; Massari, M. and Monzini, P., Dirty Businesses in Italy: A Case-study of Illegal Trafficking in Hazardous Waste, Global Crime, 2004, v. 6 No. 3-4, pp. 285-304. 3 International Crime Threat Assessment, 2000, available at http://clinton4.nara.gov/ WH/EOP/NSC/html/documents/pub45270/pub45270index.html. 4 WCO, Operation Demeter yields tons of illegal shipments of hazardous waste, 2009, available at http://www.wcoomd.org/press/?v=1&lid=1&cid=6&id=187; IMPEL, IMPEL-TFS Threat Assessment Project: The illegal shipment of waste among IMPEL member states, 2006, 100 pgs, available at http://impel.eu/wp-content/uploads/2010/02/2006x-Threat-Assessment-Final-Report.pdf;INECE SESN, International Hazardous Waste Inspection Project at Seaports: Results and Recommendations, 2010, available at http://www.inece.org/seaport/exercise/INECE_SeaportInspectionProjectOutcom es_22dec.pdf. 5 See http://www.inece.org/seaport. 6 Hardin, Russell, Collective Action, 1982, 248 pgs.; Young, Oran, 1999, Hitting the Mark: Why Are Some International Environmental Agreements More Successful Than Others?, in Zaelke,Durwood, Kaniaru, Donald and Eva Kruzikova, 2005. Making Law Work, Environmental Compliance & Sustainable Development, Volume 1, 646 pgs. 7 Keohane, R., After Hegemony, Cooperation and Discord in the World Political Economy, 1984, Princeton University Press. 8 Ostrom, E., Governing the Commons; The Evolution of Institutions for Collective Action, 1990, Cambridge University Press. 9 WCO, Operation Demeter yields tons of illegal shipments of hazardous waste, 2009, available at http://www.wcoomd.org/press/default.aspx?lid=1&id=187. 10 Ostrom, E., Walker, W. and Gardner, R., Covenants With and Without a Sword: SelfGovernance is Possible, 1992, The American Political Science Review, 86(2), 404-417. 11 Ibid.
COMBATING ILLEGAL WASTE SHIPMENTS THROUGH INTERNATIONAL SEAPORTS - A CALL FOR CONCERTED PUBLIC AND P RIVATE APPROACHES RUESSINK, HENK 1 and WOLTERS, GERARD J.R.2 Coordinating policy advisor, Inspectorate for Environment, Ministry of Infrastructure and the Environment, The Netherlands, henk.ruessink@minvrom.nl
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Inspector General of International Enforcement Cooperation, Inspectorate for Environment, Ministry of Infrastructure and the Environment, The Netherlands, gerard.wolters@minvrom.nl
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SUMMARY Illegally shipped waste poses a large risk to the public health and the environment in destination countries. To counteract and prevent illicit waste shipments, competent authorities must work together at the domestic and the international level, particularly also in the area of inspection and enforcement. At the same time, more effective approaches against illegal shipments could develop if government authorities and private companies involved in shipment operations would engage in collaborative, concerted efforts. Opportunities for collaboration could be found in the area of awareness raising, information exchange and risk assessment. Incentives for the industry in doing so would be related to their record and reputation, to liability and costs, and to operational risks. 1 INTRODUCTION The detrimental consequences of illegal international shipments of hazardous and other waste are very obvious in many recipient countries and well-documented1. Toxic components in the waste are released during its unprofessional handling, storage and recycling. As a result, the health of people is negatively affected, as is the quality of the environment (air, water, soil) and eco-systems. As a whole, the ways of dealing with this waste are far from meeting the environmental, social and economic criteria of sustainable development. Clearly, responsible authorities and their institutions both on national and international levels have to define, develop and implement effective policies to act firmly against illicit waste shipment operations and the individuals, companies and organisations behind them. However, putting legislation in place, despite the efforts needed to accomplish that, is just the beginning. Checking compliance with the regulation and reacting appropriately through instruments of enforcement in cases of non-compliance, is a crucial second step. This is not only relevant for the protection of the environment and human health, but also for establishing a level economic playing field with fair and equal market opportunities for all players.
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Furthermore, assuring compliance with the (international) rule of law is an important prerequisite for achieving sustainable development. 2 ESTIMATES OF ILLEGAL WASTE SHIPMENTS
Just to give an impression of the current magnitude of the issue: it is estimated that, on average, approximately one out of ten containers exported from European international seaports is related to waste. Most of these shipments are in compliance with the regulations. However, one out of five to ten of them is exported while violating the applicable environmental rules. Assuming that these numbers are not essentially different on a global scale, and given the current annual worldwide loaded container traffic volume of about 150 million TEU2, this would imply that each year approximately 1,5 million waste-loaded containers are shipped illegally. When one lines up these containers head-to-tail, the distance from Hamburg to Cape Town would be covered. The currently estimated market value of illegal waste amounts to 10-12 billion USD3. 3 ROLE OF AUTHORITIES AND OTHER PLAYERS
Government authorities have an important role and responsibility in detecting and deterring illegal waste shipments. In the daily practice of port operations and logistics, a variety of competent authorities is involved in the processes dealing with container shipments. Apart from customs as the prime stakeholder on aspects of import and export, also port state control, environmental inspection bodies and the police often will be involved. In order to act effectively and optimally against illegal operations and operators concerning waste (as well as other issues), the relevant authorities in and around the ports need to work together in a multidisciplinary manner4. Sharing of information and intelligence, mutual assistance, exchange of expertise and joint compliance checking activities would be examples of such collaborative approaches. Since the nature and scale of the issue of illegal transboundary waste shipments is international by itself, authorities need to work together not only at the domestic level, but also at the international level. Depending on the specific circumstances and issues presented, the collaboration across national borders could be at the bilateral, regional or even global scale. Apart from government authorities, also official international bodies do take part in such approaches. A selection of such collaborative international efforts is described in Appendix A. At the same time, however, it is more and more clear that, given the nature and magnitude of the issue, authorities alone can not tackle and solve the problem of illegal waste shipments. To be more effective in preventing and counteracting the illicit phenomenon, inspection and supervision bodies need the cooperation and help of the involved industry. While enterprises in the industry would do everything in their ability to prevent involvement of any kind with the trafficking of drugs, narcotics, weapons or humans, the same attitude towards illegal trade in waste seems largely missing. Consequently, a concerted effort of national
and international authorities and private stakeholders involved in transnational transportation of cargo is needed. 4 INCENTIVES FOR A CONCERTED APPROACH
It would be a major step forward if responsible players of the international transportation/logistics sector and competent authorities would proactively work together in the battle against illegal waste trade. Crucial stakeholders in this respect are freight forwarders and shipping lines, since it it is ultimately through their services and vessels that illegal cargo is moved. There would be several incentives for relevant private companies to be concerned and to consider collaboration to adress the issue: It is far from benefical for the record and reputation of a company if its name is in any way associated with illegal waste shipments. This is irrespective of the circumstance that a company may not have been aware of having handled or transported such cargo. The result will be that, either directly or indirectly, the commercial and economic interests of the company are negatively affected. A company would face potential costs associated with liability and other legal matters when illegal cargo is detected on their vessels. The handling,storage and disposal of the disputed waste in the country of import could cause financial consequences. Similarly, any unsound operations during these processes could have costly implications. Upon detection of illegal cargo, the regular logistic operations of the ship and its other (legal) cargo might be disrupted, e.g. when judicial authorities hold the vessel under arrest. This could lead to collateral damages, losses and claims. The corrosive and potentially explosive nature of specific illegal waste cargo might be a risk for the integrity and safety of the vessels and those sailing and working on it. It can be assumed that, in view of above incentives and considerations, the responsible representatives of the industry would, by all means, dislike to be associated with unlawful practices like the transportation and trade of illegal waste. Taking responsibility and appropriate measures would also be congruent with the ambition and efforts of many companies to develop a competitive edge towards total risk management, sustainable business approaches and a green image. In addition to this, when properly designed, a voluntary compliance-oriented collaboration scheme between authorities and companies has the scope to lead to a reduction of the administrative burden for the industry. 5 OPTIONS FOR CONCERTED WAYS FORWARD
Some ideas on how authorities and the industry could join their forces are summarized below. Thus far, a few of these have been explored on a smaller scale in some countries and with some companies rather successfully. The challenge would be to build on those in order to arrive at a broader international approach in the near future.
Since awareness is a precondition for any involvement, national authorities together with international, treaty-based authorities could take responsibility to specifically brief the industry on the issue of international waste shipments, the associated legislation and approaches to detect and counteract illegal operations. The industry could actively share specified data from their shipments on a regular basis with authorities for purposes of analysis and intelligence. Authorities often work on the basis of risk analysis and profiling. Based on aspects as dispatcher, recipient, description/coding of cargo, routing and destination, certain shipments are flagged with a higher risk of possible illegal nature. Sharing these risk profiles with the the responsible members of industry could help them to identify bookings of such potential problematic shipments and trigger them to inform the relevant authorities. The industry could be informed in an active manner about the general modus operandi of individuals and enterprises which associate themselves with illicit operations. This could assist them to be attentive of such phenomena and inform authorities subsequently. Authorities, international organizations and shipping lines could agree to organize a strategic international stakeholders meeting, in order to find common ground and understanding of the issue, to mutually inform each other on ongoing activities, and to discuss concrete options for future cooperation and joint efforts in the fight against illegal transnational waste shipments. Naturally public and private parties have and should keep their own specific roles and obligations. At the same time, however, there is a joint responsibility and opportunity to counteract illegal waste shipments and the harm they constitute for human health, the environment, fair economic markets and sustainable development. Currently, the first encouraging indications that stakeholders are prepared to explore and develop concerted public and private initiatives, can be noted. In some countries the first examples of such activities have started or are under development5. International organisations are also seriously considering options for collaboration with the industry. International professional networks, like the International Network for Environmental Compliance and Enforcement (INECE), are more and more engaging with representatives of private parties, like international shipping companies and freightforwarders, to jointly seek approaches towards collaboration. The authors hope that the observations and thoughts laid down in this paper will be instrumental to encourage public and private parties to take concerted approaches. By planning and acting together, joint efforts will be much more effective towards stopping and preventing transnational illegal waste shipments. 6 REFERENCES Substantial documentation is available at www.ban.org and http://www. greenpeace.org/international/en/. 2 Review of Maritime Transport 2009 UNCTAD (2009).
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The International Crime Threat Assessment. Environment and Natural Resources Division, United States Justice Department (2000). 4 This approach of multidisciplinary collaboration of competent authorities is well established and demonstrated in the Container Control Programme, as iniated by the United Nations Office on Drugs and Crime and the World Customs Organisation. As a result of this Programme, interdisciplinary socalled Joint Port Control Units have been established in several strategic ports over the world. 5 Initiatives of this kind can be found in the UK.
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APPENDIX 1: EXAMPLES OF INTERNATIONAL COOPERATION 1 EUROPEAN INITIATIVES
In Europe, the so-called Waste Shipment Regulation (WSR)1, which is the European implementation of the Basel Convention2, applies to all 27 member states. The WSR forbids the export of waste from the European Union to developing countries for disposal purposes and strictly regulates the export of recyclable waste, in particular by procedures of prior written notification and consent. For hazardous waste, export to developing countries for all purposes is forbidden. Basically, shipments that do not comply with the WSR, are illegal. In order to stimulate sound and univocal implementation and enforcement of EU environmental regulation, competent authorities work together in the European Network for Implementation of Environmental Law (IMPEL)3. Specifically, with regard to issues of implementation and enforcement of the WSR, authorities have clustered cooperation in a platform called IMPEL-TFS (Transfrontier Shipment of waste)4. The platform represents a cluster of network activities to stimulate and facilitate effective and efficient international inspections and non-compliance responses of violations of the WSR in the European countries. Compliance checks of waste shipments in seaports, is one of the concrete activities to this end. Through this, IMPEL-TFS contributes to an improved and equal implementation of pertinent regulation at the European level. IMPEL-TFS pays special attention to waste shipments destined for countries in Asia and Africa. In a recent project interim-report5, it is indicated thatin 19% of inspected waste shipments, violations of the WSR requirements were detected, of which 37% were illegal transports, 46% were administrative violations and 17 % other violations. Most breaches of the rules related to shipments of paper and cardboard, plastic, metal and waste of electrical and electronic equipment (WEEE). 2 INTERNATIONAL INITIATIVES
The International Network for Environmental Compliance and Enforcement (INECE)6 has recently launched the Seaport Environmental Security Network (SESN)7. SESN intends to strengthen the enforcement capacity of both developed and developing countries to prevent illegal hazardous waste shipments through ports,
and prevent dumping in the developing world. The networks specific goals are to raise awareness of the extent, nature, and impacts of the transnational illegal trade in hazardous wastes, to strengthen capacity to enforce domestic and international hazardous waste law, and to support cooperation among enforcement authorities who have responsibilities in seaports. Among these authorities are not only environmental inspection bodies, but also port and harbour authorities, customs and police. SESN is working towards a broad coalition and concrete initiatives of stakeholders to invest in improved awareness and capabilities for control and inspection of waste shipments, particularly also in developing countries at the receiving end of the waste streams. In 2010 SESN facilitated an international inspection project of waste shipments in seaports8. One of the important findings was that more than 50% of inspected shipments were noticed to be in conflict with relevant (inter)national regulations. The United Nations Office on Drugs and Crime (UNODC)9, together with World Customs Organisation (WCO) has launched the so-called Container Control Programme. This programme intends to help governments, particularly in developing countries, to establish more effective controls to prevent illegal trade of drugs and other illicit streams, and hence protect legitimate trade flows10 . Collective capacity building and concrete interagency alliances are realized through so-called Joint Port Control Units, in which different enforcement authorities unite forces and share expertise, information and development. In collaboration with INECE, a process has been started to include also environmental container-based crime like trafficking of hazardous waste into the programme. Under the guidance of World Custom Organization (WCO), early 2009 the global Demeter operation11 was executed. It aimed at facilitating custom authorities in detecting and seizing of illicit cross-border shipments of hazardous waste across Europe, Asia/Pacific region and Africa. Demeter, as an international customs initiative, was run in close cooperation with environmental enforcement agencies, the IMPEL network, and the secretariat of the Basel Convention. Demeter was based on intensified risk-based profiling, information exchange and physical inspections. The operation resulted in 30,000 tonnes of illegal hazardous waste netted in 57 seizures. Authorities of 64 countries, active in 300 ports, participated in the project. Interpol, the international police organization, has run a project to analyse and reveal the illegal criminal networks that are behind the shipments of large quantities of electronic waste, such as used computers and other equipment, to the developing world. Although further research is needed to give a more complete picture, it turns out to be rather likely that branches of organised crime are involved in the illegal operations with electronic waste, with connections to crime areas like theft, fraud, smuggling, conspiracy and money laundering12.
OTHER INITIATIVES
There are several examples of bilateral cooperation between authorities of exporting and importing countries to deal with the issue of illegal waste shipments. Often such initiatives focus on matters like exchange of information on specific shipments and/or development of capacity and specific expertise for control and inspection. Several European countries cooperate with countries in Asia (particularly China and India) and Africa (e.g. Ghana, Nigeria, Ivory Coast). When one is following the recent developments, it can be noticed that there is a growing awareness of the importance of compliance and enforcement in countries at the receiving end of the waste streams. Although several Asian countries do want to receive recyclable waste as a source for secondary raw material, they are more and more concerned about the environmental and social harm caused by illegal hazardous waste shipments. As a consequence, there is a growing desire to cooperate with authorities of exporting countries to act against illegal waste shipments. 4
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REFERENCES FOR APPENDIX
Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14June 2006 on shipments of waste. 2 (Basel) Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal. More information and text of the Basel Convention available at: http://www.basel.int. 3 IMPEL Website: http://ec.europa.eu/environment/impel/. 4 IMPEL TFS Website: http://www.impeltfs.eu. 5 available at: http://impeltfs.eu/wp-content/uploads/2009/05/Interim-Report-IMPELTFS-EA-II-final-word.pdf. 6 INECE Website: http://www.inece.org. 7 INECE Seaport Website: http://www.inece.org/seaport. 8 International Hazardous Waste Inspection Project at Seaports Results and Recommendations (December 2010), available at http://www.inece.org/seaport/ exercise/ INECE_SeaportInspectionProjectOutcomes_22dec.pdf. 9 UNODC Website: http://www.unodc.org. 10 More information available at http://www.unodc.org/documents/organizedcrime/generalbrochureEN.pdf. 11 press release on Demeter available at http://www.wcoomd.org/press/default. aspx?lid=1&id=187. 12 Electronic waste and organised crime assessing the links (Interpol, May 2009), available at http://www.interpol.int/Public/ICPO/FactSheets/Wastereport.pdf.
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CROSS-BORDER POLICE COOPERATION IN TACKLING ENVIRONMENTAL CRIME SPAPENS, TOINE Professor of Environmental Crime at the Dutch Police Academy and associate professor of Criminology at the Department of Criminal Law of Tilburg University, The Netherlands, Toine.Spapens@politieacademie.nl SUMMARY Criminal investigation of serious and organized cross-border environmental crimes requires effective police cooperation. However, the mounting of coordinated and systematic efforts in this field still proves to be difficult. The first explanation for this is the lack of a globally applicable legal framework for mutual assistance in criminal matters. Another important and often underestimated reason is practical problems regarding the exchange of information about detected cross-border environmental crimes and setting up a coordinated criminal investigation in two or more countries in response, as well as with regard to the execution of requests for mutual legal assistance. Legal scholars often assume that enhancing the legal framework for crossborder police cooperation is the primary solution to the problems experienced. Here, I show that practical considerations are just as important for effective cooperation in cases of transnational environmental crime. A specific problem is the fact that this type of crime regularly involves countries with non-democratic regimes or even a non-existent central government, as well as weak law enforcement, both in terms of capabilities and integrity, and consequently law enforcement agencies in other countries will often be reluctant to seek legal assistance. 1 INTRODUCTION Environmental crime is in many ways a cross-border crime. To begin with, illegal activities may be transnational in their effect, such as the pollution of air and water. Secondly, the business process of environmental criminal acts may be international in scope, such as the trafficking of hazardous waste from an industrialized nation to a Third World country. Another example is the misuse of differences in environmental laws between countries. An amount of soil coming from a contaminated building site may be considered polluted in one country, whereas it is considered clean in another, for example. A company hired to clean up the site may therefore decide to simply export the polluted soil illegally, thereby avoiding a costly cleaning operation, and to re-import it for further use once its designation has been changed. Thirdly, the persons, or the members of the crime group responsible for the illegal activity may be operating in two or more countries. An example is a captain of a ship who continuously decides to dump waste, such as bilge water, instead of offering it to a specialized harbour facility for processing. Finally, cross-border environmental crime may even take place in cyberspace, for
example by committing fraud in emission trading schemes. In each of these cases, cross-border police cooperation may be necessary to tackle the problem. When talking to police practitioners, one can often hear the complaint that international law enforcement cooperation is in many respects not working. Of course, detectives can often also produce case examples in which they did cooperate successfully with foreign counterparts (Fijnaut et al., 2005; Spapens, 2008, 2009). This is not surprising, because in practice cross-border law enforcement cooperation comprises many aspects, each involving different actions and parties, which result in specific problems. In this paper, I analyze three aspects of operational transnational police cooperation in criminal investigation: the detection of crossborder environmental crime, the setting up of a coordinated investigation, and the gathering of evidence. The scope of this paper is limited in four respects. Firstly, it will address only criminal investigation, and therefore leave aside cooperation problems in cases that are dealt with by administrative and other competent public authorities. Secondly, the paper focuses mainly on operational police cooperation. Consequently, it will not substantially address non-operational police cooperation (e.g. joint training, exchange of good practices) and judicial cooperation (e.g. extradition, transfer of proceedings, taking the suspects to court). Thirdly, the paper is limited to those types of cross-border environmental crimes involving trafficking operations, particularly the illegal export of (hazardous) waste and crimes relating to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). Fourthly, I will address only the investigation of cases of cross-border serious and organized crime, and therefore leave aside cross-border cooperation in providing assistance to the public and in public order policing.1 This paper is structured as follows. Section 2 first outlines the legal and organizational framework for transnational police cooperation. Then sections 3 through 5 address the three different aspects of operational police cooperation mentioned above. Section 6 concludes the paper. 2 THE LEGAL FRAMEWORK FOR POLICE COOPERATION
In cross-border police cooperation in criminal investigation, sovereignty of the countries involved is the leading principle (Michalowski & Bitten, 2005). Consequently, a well-defined legal framework for mutual legal assistance in criminal matters consisting of a patchwork of multilateral and bilateral treaties guides any operational action.2 The term police cooperation is in a sense misleading, because the police on many occasions need the consent of the competent judicial authorities before it can ask for or provide mutual legal assistance. Which institution is competent depends on the type of assistance required and the country involved. Within the European Union (EU), the Schengen Implementation Convention (1991) allows the police to exchange written information already in their possession on its own authority.3 This use of this so-called police-police information is restricted to
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investigative purposes and cannot be used before the court without the consent of the competent judicial authorities. In any case, application of a special investigative method, for instance a request for wiretapping based on the Convention on Mutual Assistance in Criminal Matters between the Member States of the EU (2000), would require the consent of the public prosecution service or an investigative magistrate, for example.4 If a non-EU Member State makes the request, a decision on the exchange of even the simplest piece of police-police information may fall to the national authorities, such as the Ministry of Justice, unless specific conventions apply. The Netherlands, for instance, has signed bilateral treaties on mutual legal assistance with a variety of countries, such as the United States, Australia and Surinam (Spapens, 2010b). A basic level of trust in each others legal system is of course a prerequisite for such treaties. Conventions on mutual legal assistance in criminal matters contain general provisions on how and under what conditions the competent authorities will provide assistance, on the one hand, and articles on specific investigative methods on the other. The European Convention on Mutual Assistance in Criminal Matters, drawn up in the context of the Council of Europe (COE) in 1959, contains for example provisions for the exchange of rogatory letters in general, and allows for the request of interrogation of suspects, the searching of premises, the exchange of criminal records and the hearing of witnesses and experts in particular.5 Many other treaties follow these basic provisions. If a convention on mutual legal assistance in criminal matters or a provision allowing for a specific action is lacking, however, operational police cooperation is not impossible. In such cases, national authorities may decide bilaterally upon the actions needed (Spapens, 2009). Of course, agreeing upon such case-by-case arrangements will take more time. The main instrument for providing mutual legal assistance is what is termed a rogatory letter, or request for mutual legal assistance. Such a request must usually be submitted in writing and must explain the nature of the criminal investigation, the identity of the suspects (if these are known) and their involvement in the illegal activities, the assistance required, as well as the relevant articles of the penal law applicable to the crimes under investigation. A requested party may refuse to comply with the request for a number of different reasons (Joutsen, 2005). An important aspect is that the crimes must be punishable by law in both the requesting and the requested country, although there are sometimes exceptions to this rule. Another noteworthy element is the fact that the competent authorities may also deny assistance when they consider the other partys integrity to be insufficient. An example may be that the regime is non-democratic. This ground for refusal is particularly relevant in cases of cross-border environmental crime, because the illegal activities often involve countries with regimes of questionable integrity or with weak regulatory and enforcement systems (Elliot, 2009; White, 2010).
Because conventions on mutual legal assistance in criminal matters depend on a basic level of trust in legal systems, it comes as no surprise that few of these are both comprehensive on a global scale and applicable to cases of environmental crime. The only real exception is the United Nations Convention against Transnational Organized Crime (2000), now signed by 147 countries.6 Two other examples of multilateral treaties signed by a relatively large number of nations are the aforementioned 1959 Convention, and the Commonwealth Scheme for Mutual Assistance in Criminal Matters (or Harare Scheme), including 48 and 53 states, respectively.7 These three conventions contain comparable provisions for mutual legal assistance. The major difference between the UN Convention and the other two, however, is the fact that the first applies only to serious and transnational crimes, involving a criminal group. The UN defines serious crime as a conduct constituting an offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty. An organized criminal group is defined as a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this convention, in order to obtain, directly or indirectly, a financial or other material benefit. Understandably, these requirements limit applicability of the UN Convention to cases of environmental crime, particularly because the penalties imposed on those crimes are often minimal (Elliot, 2009, p. 75). Consequently, investigative authorities are often required to fall back on bilateral treaties on mutual assistance in criminal matters and, if these are unavailable, on case-by-case arrangements. The advantage of the latter type of agreements is that two states may bilaterally agree upon any type of police action as long as it is not in violation of meta-conventions such as the European Convention on Human Rights. The main downside of the latter type of agreements it that the decisionmaking process is usually slow and the outcomes may differ in otherwise largely comparable situations. Finally, it should be noted that an organizational framework for cross-border police cooperation, for the exchange of rogatory letters and for the coordination of investigative actions, is in place. INTERPOL, with now 188 Member States worldwide, is one institution and the most well known. The modern INTERPOL was re-build in 1946 after World War II, and one of its important tasks is maintaining a network of national bureaus for the secure exchange of information on a 24/7 basis.8 In addition, INTERPOL provides data services, maintains databases of police information and offers operational support to national and international investigations through its specialized crime units and 24/7 command and coordination centre. However, contrary to what the public may think, INTERPOL itself has no operational investigative powers. Now that I have outlined the basic framework for police cooperation, I will turn to practical cooperation in cross-border criminal investigation cases. The first
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requirement for police cooperation that will be addressed is the detection of transnational environmental crime, followed by the exchange of information and intelligence with one or more of the other countries in which the criminal business process takes place. 3 DETECTION OF CROSS-BORDER ENVIRONMENTAL CRIME
Obviously, a case of cross-border environmental crime involves illegal activities in more than one country. It is, however, less obvious that law enforcement officials who detect such an illegal activity immediately share it with their counterparts in countries for which it is also relevant. In this section, I will first outline the principal lines by which the police acquire information about cross-border serious and organized crime. Next, I will turn to the question of how and when such information may be shared with the competent authorities of a foreign country. In general, the police will detect transnational environmental crime either reactively or proactively. The first implies that the police spontaneously receive a report of a crime. A civilian may report the discovery of a dumping site of hazardous waste, for example. Another government agency, such as the Customs, may also detect an environmental crime, following a scheduled control for example, and then inform the police. In a case of transnational environmental crime, the police of country A may start a criminal investigation and then seek assistance of the police in country B. It is, of course, also possible that the police share information about ongoing cross-border environmental crime with foreign counterparts beforehand, in order to mount a coordinated investigation from the start. Next, the police may detect crimes proactively. In such cases, the police actively seek information about environmental crime for the purpose of starting an investigation. Firstly, the police often together with other government bodies may gather information by means of controls, for example of commercial vehicles, trains and ships transporting waste to a destination abroad. The legal framework on police cooperation in the European Union also allows for joint controls by police officers of two or more Member States. A second option is to use informers in criminal circles who can provide intelligence about ongoing crimes and the persons involved. Another approach is to systematically bring together and analyze information on a specific problem already possessed by enforcement agencies.9 Systematic analysis of companies in a particular sector, such as asbestos disposal, may also render enough suspicions of criminal activities to justify further investigation. In most cases, an enforcement agency of one country will be the first to detect a case of cross-border environmental crime. The focal question therefore is how the authorities of other jurisdictions to which the illegal activities are relevant are to receive the necessary information. Firstly, the police of the country in which the illegal activities are first detected may start a criminal investigation during which legal assistance is sought from one or
more of the other countries involved. A rogatory letter or a police-police message informs the authorities and requests specific investigative actions that may render additional information. The authorities may also use the information as a starting point for their own more comprehensive investigation, or use it as part of a broader analysis. In practice, this is the most common trajectory through which foreign authorities receive notice about a cross-border illegal activity yet undetected by themselves. The next option, however, is that the police of the country in which the case of environmental crime is first detected will start an investigation, but limit it to the crimes committed within their own national jurisdiction. In such cases, foreign authorities may not be informed at all, or only after completion of the case. Particularly in trafficking operations, the illegal activity is usually glocal. A criminal group in one country produces the goods, for example, and transports these to another country where another group sells the shipment in smaller parts, or takes care of further working up. Apart from contacts between a few key persons who negotiate the deal, there are usually few links between the persons involved. A good example of a glocal operation is a case of trafficking of e-waste from the Netherlands to Ghana, the Czech Republic and Ukraine (Mostert et al., 2010). By concentrating on the illegal activities close to home, the investigative authorities reduce the risk of premature leaks, particularly if they question the integrity of the regime and the law enforcement agencies of the other countries involved. Moreover, the police and the judiciary also avoid the complications that may follow from asking for mutual legal assistance, such as the extra work involved in writing rogatory letters, and the costs of travelling abroad to confer with foreign officials. Finally, the competent authorities of the country that first detects the case may decide not to mount an investigation. One reason may be that the level of suspicion required by the Code of Criminal Procedure is insufficient to commence proceedings. Another may be that limited resources of personnel and equipment are required for the investigation of other more pressing crime problems. Within the EU, for example, the legal framework would allow for informing another Member State.10 In practice, however, this is still far from common, even in border areas where serious and organized crime is highly interwoven across the area (Spapens, 2008). One of the problems is that detectives do not know to which agency they should send the information, and do not have (or take) the time to enquire. Another problem is that the sharing of this type of yet uncorroborated knowledge, particularly if it concerns intelligence provided by criminal informers, requires a high level of trust in the integrity and the working methods of foreign counterparts. Usually, law enforcement officials will choose a better safe than sorry approach towards the risk of leaks. In practice therefore, the exchange of this type of information largely depends on previous cross-border investigation cases in which cooperation was successful and on the personal relations developed on those occasions. One example is a case in which a Spanish-speaking Dutch police officer was sent to Spain to act as a liaison in a cross-border investigation. During
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his posting, he developed close personal relations with his Spanish colleagues who kept notifying him of any information they came across that might be relevant for the Netherlands (Spapens, 2006). From the above, however, it is clear that the active and systematic sharing of information about cross-border organized crime is still haphazard at best. An international criminal investigation is seldom set up as a coordinated effort from the beginning. Instead, relevant information is often not exchanged at all, or exchanged too late to put it to good use immediately. These problems are a huge frustration to law enforcement officials and largely explain their criticism of the quality of operational police cooperation. Recent international operations initiated and coordinated by the INTERPOL Environmental Crime Programme, identified areas where future operations may be improved. Recommendations focus on greater participation in future operations, more frequent use of modern operational means of communication, the need of coordinated national operational plans, more uniformed standards of reporting, enhanced intelligence exchange including the efficient use of secure systems and official portals and the expansion of international analysis capacity (INTERPOL 2011a and 2011b). 4 SETTING UP A CROSS-BORDER CRIMINAL INVESTIGATION
The next phase in operational police cooperation is to make available the personnel and equipment needed to comply with a request, if it is deemed admissible. A rogatory letter may range from a relatively simple request for a particular investigative action or a piece of information, to a request for mounting a comprehensive investigation in a coordinated effort. Especially the latter may lead to intense discussion, often before any official requests for mutual legal assistance have been exchanged (Fijnaut, et al., 2005). In practice, relatively simple requests for mutual legal assistance comprise the bulk of all rogatory letters (Fijnaut et al., 2005, Van Daele et al., 2008). Even in large-scale criminal investigation cases, the assistance asked of the foreign police will usually be limited to specific actions. An evaluation of requests for mutual legal assistance received in 2001 in two districts of the public prosecution service in the Netherlands, revealed that most of the rogatory letters concerned interrogation of a suspect (31%), the hearing of a witness (12%), identification of a persons whereabouts (14%) and the identification of a telephone number (6%) (Fijnaut et al., 2005, p. 110). In such cases, one or more police officers will be charged with executing the request as a part of their daily routine and therefore requires no specific effort. However, requests for mutual legal assistance may also be complicated and require further investigation by a team of detectives operating in close cooperation with their foreign counterparts over a considerable period (Spapens, 2009). In such cases, single actions will often not suffice and a team of detectives will need to conduct
a proper investigation. The aforementioned study showed that 3% of the rogatory letters received asked for a more thorough investigation and the application of different investigative methods (Fijnaut et al., 2005, p. 111). In such cases, practical difficulties occur more often. To begin with, resources for criminal investigations are scarce, and usually all available personnel are already tied up in ongoing cases. It is therefore not easy to start an investigation at the same time in two or more countries. More importantly, scarcity of personnel and equipment implies that investigative priorities need to be set and every sovereign country follows its own policy in this respect. Consequently, policy makers in one country may consider a specific type of environmental crime a high investigative priority, whereas their counterparts in another state may see it as a less pressing problem. These counterparts will therefore be less inclined to commit resources to an investigation. Studies of police cooperation in the DutchBelgian-German border area, for example, revealed that differences in investigative priorities are usually the main explanation why coordinated investigations will not materialize (Spapens, 2008, 2009). Belgium and the Netherlands both apply the principle of opportunity, for example, but set different priorities for criminal investigation. Property crime is a high priority in Belgium for instance, because the country has a specific problem with Eastern European itinerant gangs, whereas in the Netherlands it is not. In Germany, the principle of legality applies, which obliges the police to investigate any crime brought to its attention. Therefore, the German police have less room for manoeuvre whenever information about a crime is received reactively (Van Daele & Van Geebergen, 2007). Clearly, if it is already difficult to coordinate investigative efforts even in a densely populated border area of three EU Member States, such problems multiply when social and cultural distances increase. If the Dutch police and judicial authorities intend to start an investigation on the import of illegally logged wood, for example, it will be extremely difficult to coordinate the effort from the start with the investigative authorities in the distant countries where the harvesting takes place. Which authorities are competent? Can they be trusted? Will they participate in a coordinated investigation? Do they have the personnel and equipment available needed to investigate the case effectively? 5 GATHERING EVIDENCE
If a relevant convention on mutual assistance in criminal matters applies, the request meets the conditions set, and the competent authorities have successfully settled discussion about mounting an investigation with regard to a specific crime group or illegal activity, practical work can begin in order to obtain the necessary evidence. As I have described in the previous section, one or more police officers will usually deal with the task of executing a simple request for mutual legal assistance. An example is a Belgian request to the Netherlands for the interrogation of a Dutch suspect who delivered a ship to a Belgian shipyard for demolition, without
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mentioning that it had still about a hundred tons of waste oil and bilge water onboard. Another example is a request for further information about the owner of a Dutch car that the police found dumped in a German canal. Of course, trained police officers will have no problem conducting an interrogation and to draw up a verbatim report containing the necessary information for their foreign counterparts, for example. Yet, practical problems may still prevent swift compliance. Police officers often see requests for mutual legal assistance as extra work and therefore give their execution a relatively low priority. Sometimes it may take months for police officers to find the time, particularly if they have little affinity with the topic of the investigation, or assume that the required action is not very realistic or will not render additional information. In addition, rogatory letters are not always clear about the exact information the foreign authorities need for their investigation. In the end, their report may therefore be incomplete, and the requesting party may have to file an additional rogatory letter. Furthermore, some legal systems set specific requirements for verbatim reports or evidence obtained, which may differ from those familiar to the police officers in the requested country. An option for the requesting state is to ask permission for their detectives to be present during the interrogation of the suspect or the searching of premises. Although police officers are usually not allowed to perform executive actions on foreign territory themselves, they can of course help their colleagues in asking the right questions and seizing the objects relevant to their investigation, as well as ensuring that all evidence is collected to meet the Code of Criminal Procedure of their country. However, such visits are costly in terms of time and money, especially when the request refers to a distant country, and are therefore not standard. Finally, even simple requests for mutual legal assistance may require a complex and time-consuming administrative path. In the case of the Netherlands, for example, a rogatory letter requiring investigative action must first be sent to the public prosecution service. There, specialists judge whether the request meets the requirements. If the request originates from outside the EU, or concerns actions that do not fall within the legal framework of the conventions to which the Netherlands is party, assessment falls to the Ministry of Justice. If the request is admissible, the public prosecution service will forward it to a suitable police department for execution. If a suspect needs to be interrogated, the request will be sent on to the district where this person is residing, for example. A case of cross-border environmental crime will usually be forwarded to one of the specialist regional teams responsible for the investigation of these types of crime, or to one of the specialized enforcement agencies such as the investigation squad of the Ministry of Housing, Spatial Planning and the Environment. After the police have obtained the necessary information or evidence, the public prosecution service will once again check if it may be transferred to the requesting foreign party. The Code of Criminal Procedure may also enable the suspects involved to appeal. In the Netherlands, for example, objects seized by the police could not until recently be transferred abroad
before an appeal had been dealt with by a court, a procedure that usually took months (Fijnaut et al., 2005). In complex cases, the competent authorities may decide to have a team of detectives formed to investigate the illegal activities taking place within their own national jurisdiction. Usually, such a team will coordinate activities with the investigation team operating in the requesting country. Team leaders may for instance meet regularly to exchange information and to discuss tactics. An investigation of cross-border organized crime will usually also involve the application of special investigative methods, such as surveillance, wiretapping or bugging. Successful cooperation often requires intense deliberation and an open attitude from police officers and public prosecutors and investigative magistrates towards the specifics of their respective working methods as well as national rules and regulations. Using civilians to infiltrate criminal groups is quite common in the United States, for example, whereas in the Netherlands, the law allows for this only as a last resort and it requires the personal approval of the Minister of Justice. On the one hand, the US police must therefore accept that it cannot use civilians to infiltrate a criminal group in a case involving the Netherlands. On the other, the Dutch police may be able to apply tactics with which their counterparts are less familiar, such as large-scale wiretapping (Spapens, 2011). In practice, working together in parallel investigations continuously calls for adjustment. An alternative is to set up a joint investigation team made up of detectives from the different countries in which investigative action is necessary (Spapens, forthcoming). One advantage of such a team is that its members may exchange information directly, which saves time. Another is that one person leads the investigation, so there is less need for continuous adjustment. Although there are many snags that may frustrate the timely and adequate execution of rogatory letters, or effective cooperation in parallel and joint investigations, practical instead of legal constraints usually account for mishaps. If personal relations between the law enforcement officials at different levels are good, and as long as (organizational) interests converge, legal problems can usually be solved (Spapens, 2008). Network and capacity building are therefore also of huge importance. To this, a wide range of institutions can contribute, not only in the field of policing and customs, but also in the context of the United Nations, CITES, and of (informal) networks such as the International Network for Environmental Compliance and Enforcement (INECE) and the European Union Network for the Implementation and Enforcement of Environmental Law (IMPEL). 6 CONCLUDING REMARKS
This paper shows that many difficulties may obstruct cross-border police cooperation in cases of transnational environmental crime. On a global scale, the legal framework for mutual legal assistance in criminal matters is still limited in scope. This is particularly important because the trafficking of waste and endangered species of wild flora and fauna, for example, often involves both industrialized
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and Third World countries. The latter countries are often not party to the legal framework on mutual assistance in criminal matters, with the exception perhaps of treaties concluded in the context of the UN. Moreover, it may already be difficult to seek cooperation because of a lack of trust. Clearly, there are neither simple solutions to this problem nor quick fixes. To begin with, strengthening mutual trust by enhancing non-operational cooperation could be a fruitful starting point from which to move on to operational cooperation in criminal investigation. Indeed the police in EU border areas followed this same path from the late 1960s onwards. This type of cooperation should not be limited to exchanging best practices and network building at seminars though, but should also include joint training and, whenever possible, building a technical infrastructure for cooperation, for instance to exchange information quickly. INTERPOL already initiated joint training programmes in the field of environmental crime, for example. Of course, there is also much to gain as regards police cooperation between the industrialized countries. These countries are usually party to conventions on mutual legal assistance in criminal matters. Therefore, further expansion of the legal framework does not seem to be the primary solution to problems in crossborder police cooperation. Instead, we should look for practical measures. Here, at least a more rapid exchange of information in the case of detection of a cross-border environmental crime is of the utmost importance. In such cases, the standard procedure should be the notification of INTERPOL and, in the EU, Europol. This would enable these agencies to forward important information to other member states. It would also allow INTERPOL and Europol to build up a database for strategic analysis, to gain a broader insight into the problems at hand, and to direct future interventions more effectively on the basis of intelligence led choices. 7
1
REFERENCES
Particularly in EU border areas, the uniformed police are increasingly allowed to operate on foreign territory, for example in cases of imminent danger (Cf. Spapens, 2010a). 2 These are not to be confused with the legal framework of bilateral and multilateral environmental treaties aimed at specific courses of action to protect the environment, as those cannot be used as a basis for operational police cooperation in criminal investigations. 3 The official title is Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders. In 1998, the Schengen Acquis to the Treaty of Amsterdam extended the convention to all EU Member States. See Official Journal of the European Union L 239, 22 September 2000. 4 Official Journal of the European Union C 197, 12 July 2000. 5 See www.coe.int. 6 See www.unodc.org. 7 See www.thecommonwealth.org. 8 See www.interpol.int.
An investigation of a group of drug traffickers, for example, may also render information that they maintain contacts with a criminal group involved in the smuggling of endangered animals, which the investigation team cannot address further at that time. Such remaining information often serves as the starting point for a new investigation case. 10 Article 46 of the Schengen Implementation Convention (1990) allows for spontaneous exchange of police information. The Council Framework Decision 2006/960/JHA, on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union (the Swedish Framework Decision) recently extended Article 46 to intelligence.
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8 BIBLIOGRAPHY Daele van, D., Spapens, T., Fijnaut, C. De strafrechtelijke rechtshulpverlening van Belgi, Duitsland en Frankrijk aan Nederland, Antwerp/Oxford, Intersentia, 2008. Daele van, D. and Geebergen van, B., Criminaliteit en rechtshandhaving in de Euregio Maas-Rijn, Deel 2, Antwerp/Oxford, Intersentia, 2007. Elliot, L., Combating Transnational Environmental Crime: Joined Up Thinking About Transnational Networks in Kangaspunta, K. and Haen Marshal, I. Eco-Crime and Justice. Essays on Environmental Crime, Turin, Unicri, 2009, pp. 55 - 78. Faure, M. and Heine, G. Criminal Enforcement of Environmental Law in the European Union, The Hague, Kluwer Law International, 2005. Fijnaut, C., Spapens, T. and Daele van, D., De strafrechtelijke rechtshulpverlening van Nederland aan de Lidstaten van de Europese Unie: Zeist, Kerckebosch, 2005. INTERPOL, Operation TRAM. Final report, Lyon, I.C.P.O.-INTERPOL, 2011a. INTERPOL, Operation RAMP. Final report, Lyon, I.C.P.O.-INTERPOL, 2011b. Joutsen, M., International Instruments on Cooperation in Responding to Transnational Crime. In: Reichel P., (ed.), Handbook of Transnational Crime and Justice, London, Sage Publications, 2005, pp. 255 - 274. Michalowski, R. and Bitten, K., Transnational Environmental Crime, in Reichel P., (ed.), Handbook of Transnational Crime and Justice, London, Sage Publications, 2005, pp. 139 - 159. Mostert, M., Raaijmakers, P. and Vreugdenhil, D., Witboek Milieucriminaliteit. Wat er goed gaat in de opsporing van milieucriminaliteit, Politie Nederland, Raad van Korpschefs, 2010.
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Spapens, T. Joint Investigation Teams in the European Union: Article 13 JITs and the alternatives. European Journal of Crime, Criminal Law and Criminal Justice, forthcoming, accepted for publication. Spapens, T. Interaction Between Criminal Groups and Law Enforcement: The Case of Ecstasy in The Netherlands Global Crime, Vol. 12, Issue 1, 2011, pp. 19-40. Spapens, T. Cross-border Public Order Policing in the Dutch Border Areas, Journal of Police Studies, 2010a, Volume 2010-3, pp. 163 179. Spapens, T. Cross-border cooperation in criminal investigations, in Botterill, D., Jones, T. (eds.), Crime and tourism: key themes, Oxford: Goodfellow Publishers, 2010b, pp. 129 147. Spapens, T. Police Cooperation in the Dutch Border Areas in Fijnaut, C., Ouwerkerk, J. The Future of Police and Judicial Cooperation in the European Union, Leiden/Boston: Martinus Nijhoff Publishers, 2009, pp. 73 102. Spapens, T. Policing a European Border Region: The Case of the Meuse-Rhine Euroregion, in Guild, E., Geyer, F. (Eds.) Security versus Justice, Police and Judicial Cooperation in the European Union, Aldershot: Ashgate Publishing Ltd, 2008, pp. 225 241. Spapens, T. Interactie tussen criminaliteit en opsporing. De gevolgen van opsporingsactiviteiten voor de organisatie en afscherming van XTC-productie en handel in Nederland, Antwerp/Oxford, Intersentia, 2006. White, R. Transnational Environmental Harm and Eco-Global Criminology, in Giora Shoham, S., Knepper, P. and Kett, M. (eds.) International Handbook of Criminology, CRC Press, Boca Raton, 2010, pp. 231 - 257.
ENFORCEMENT ACROSS BORDERS IN MULTILATERAL AGREEMENTS: COMPARING THE ENFORCEMENT MECHANISMS OF TRADE, WEAPONS, AND ENVIRONMENTAL MULTILATERAL AGREEMENTS WENDELL, KATELYN J. katelynwendell@gmail.com SUMMARY As heads of state and international environmental organizations consider new climate change agreements, improving international environmental governance, and improving existing multilateral environmental agreements, much can be learned from examining existing multilateral agreements in other contexts. This paper examines the enforcement strengths and weaknesses in three types of agreements, weapons, trade, and environmental, in order to gain insight into what makes an enforceable international agreement. As will be discussed, some of these agreements provide greater enforcement authorities for the governing bodies than others. For example, inspection authorities appear greatest under weapons agreements, while the trade agreement reviewed provides a uniform and clear dispute settlement provision, as well as an enforceable system of sanctions. To draft future multilateral environmental agreements, the strengths of each agreement reviewed should be considered and incorporated. 1 INTRODUCTION Enforcing multilateral agreements across borders creates many challenges, and much will depend on the compliance mechanisms drafted into the agreements. Fact-finding authorities, adjudication procedures, and sanctioning provisions are three key mechanisms in an enforceable multilateral agreement. The United Nations Environment Programme (UNEP) and its members are contemplating both strengthening existing agreements and crafting possible new international governance structures, such as a World Environment Organization.1 Therefore, it will be important to examine the most effective existing agreements and similar governance structures to learn what mechanisms are best to promote compliance, and when necessary, to compel or enforce it, both at a national and global scale. In addition to existing multilateral environmental agreements, trade agreements and weapons treaties provide valuable lessons as to the possible authorities and procedures available. Because threats to trade and national security have long been viewed as primary threats to a sovereign nation, treaties and agreements addressing these dangers are expected to be transparent, effective, and enforceable. As environmental threats grow and gain increasing public awareness and concern, it is possible that the public, and thus national governments, will accept and ratify environmental agreements with equal enforcement power.
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This paper examines the fact-finding, adjudication, and sanction authorities provided in selected environmental, trade, and weapons agreements. It compares the strengths and weaknesses of these agreements. Finally, this paper recommends that any future potential World Environment Organization or new climate change multilateral agreement encompass the strengths of each agreement. 2 ENFORCEMENT MECHANISMS 2.1 Weapons Agreements
2.1.1 Treaty on Non-Proliferation of Nuclear Weapons (Non-Proliferation Treaty) The Non-Proliferation Treatys primary compliance mechanism is the safeguard agreements of the International Atomic Energy Agency (Agency), in accordance with the Statute of the International Atomic Energy Agency (Statute) and the Agencys safeguards system.2 All members of the U.N. are members of the Agency and thus subject to the Statute.3 Similarly, all parties to the Non-Proliferation Treaty are parties to the Statute.4 The Non-Proliferation Treaty requires all non-nuclear weapon5 states to make such agreements with the Agency. (There is no similar requirement for nuclear weapon states.)6 The safeguards agreements give the Agency significant fact-finding and inspection authority, such as authority to examine the design of facilities, to require reports from Parties to the Non-Proliferation Treaty, to require implementation of certain health and safety standards, and to approve means of chemical processing.7 Perhaps most important is that the Statute authorizes the Agency to send inspectors into the territory of the Party to the agreement.8 In addition to the fact-finding and standards authorized by the safeguards agreements, compliance with the Non-Proliferation Treaty may be achieved through use of dispute settlement procedures in the Statute. Disputes regarding application or interpretation of the Statute9 are settled according to Article XVII of the Statute. This article requires negotiation first.10 If this fails, the matter must be referred to the International Court of Justice, unless parties to the dispute agree on another method of resolution.11 There are no dispute resolution provisions in the Non-Proliferation Treaty itself. In the event of noncompliance and the failure of a State to take appropriate action under a safeguard agreement, the Statute provides sanctions. The Agency may withdraw support and materials in furtherance of the agreement or project.12 Its Board of Governors may also make findings of non-compliance with a safeguard agreement and direct the Party to comply, curtail privileges and rights of membership, or call for return of materials supplied by another member.13 The Board of Governors may also refer the matter to the U.N. Security Council.14
2.1.2 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (Chemical Weapons Convention) To implement, monitor, and enforce the Chemical Weapons Convention, it establishes an international body, the Organization for the Prohibition of Chemical Weapons (the Organization), of which all States Parties to the convention are members.15 The Convention also establishes a Conference of the States Parties, an Executive Council, and a Technical Secretariat. Each of these branches of the Organization has separate and distinct authorities and powers, but each plays a role in monitoring implementation and compliance with the Convention.16 Compliance with the Chemical Weapons Convention is monitored and verified by a system of declarations and inspections.17 Upon the Convention entering into force, each State Party must submit certain declarations to the Organization, specifying the location and quantity of chemical weapons and production facilities in the State Partys ownership or possession.18 Thereafter, each State Party must destroy all of these weapons and facilities.19 To verify compliance, the Organization is authorized to conduct three separate types of on-site inspections. These include initial inspections to ensure destruction of weapons and facilities identified in the State Party declarations, periodic inspections to ensure continued compliance, and challenge inspections.20 Challenge inspections allow a State Party with concerns about another State Partys compliance to request an on-site inspection by the Organization to clarify and resolve the compliance concern.21 Upon joining the Convention, each State Party guarantees it will grant access for these inspections, and that it will adopt the necessary national implementing legislation to ensure such access.22 Inspectors for all types of these inspections are given a wide range of immunities and privileges with authority to inspect facilities and documents, conduct interviews, and take samples.23 In the event an inspection results in a finding on noncompliance, or if a State Party is uncooperative in assisting the Organization to implement the Convention, certain sanctions are authorized.24 The Convention allows suspension of a States Partys privileges under the Convention. Where serious damage to the purpose of the Convention may result, the Organization may take collective measures to States Parties in conformity with international law. Additionally, in cases of particular gravity, the Organization must bring the matter to the attention of the U.N. General Assembly and the U.N. Security Council. While the Security Council may take further action depending on the circumstances, the Organization lacks any authority or means to use force to compel compliance with the Convention.25 This lack of authority and the resulting delay in action has been one criticism of the sanctioning and enforcement measures of the Chemical Weapons Convention.26 Disputes arising as to application or interpretation of the Convention are to be settled in accordance with the provisions of Article XIV of the Convention and with the provisions of the Charter of the U.N.27 The Charter of the U.N. and Article XIV both
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require consultation or negotiation between States Parties to a dispute as the first course of action, with a view to expeditious and pacific settlement.28 Article XIV also allows the Organization to assist in the resolution of a dispute by whatever means it deems appropriate and the Organization may also request the International Court of Justice to issue an advisory opinion on legal questions arising under the Convention. The Charter of the U.N. provides that any member of the U.N. may bring a dispute to the attention of the Security Council or the General Assembly. If a dispute is brought to the attention of the Security Council, the Security Council is empowered to investigate the dispute and make recommendations as to settlement. The Security Council is also to take into consideration that legal disputes between members of the U.N. should generally be referred to the International Court of Justice.29 2.2 World Trade Organization
The World Trade Organization was formed pursuant to the Agreement Establishing the World Trade Organization (WTO Agreement).30 This framework agreement encompasses other agreements among WTO members that address particular trade areas or issues generally grouped into three categories: goods, services, and intellectual property.31 Within these sectoral agreements are provisions to ensure or promote compliance, such as national obligations to notify and report under the agreements, and the granting of authority for the WTO to monitor and establish oversight committees.32 Compliance is enforced by a detailed dispute resolution mechanism - the Understanding on Rules and Procedures Governing the Settlement of Disputes (Understanding on Disputes) that is administered by the Dispute Settlement Body33 of the WTO.34 The Understanding on Disputes applies to disputes regarding those agreements listed in Appendix I to the Understanding on Disputes (covered agreements)35 and to disputes regarding the rights and obligations of members to the WTO Agreement.36 The Understanding on Disputes also requires that all disputes under the covered agreements be settled according to the Understanding on Disputes provisions.37 The Understanding on Disputes provides multiple means for dispute resolution. Parties may seek resolution through a consultation process that is both confidential and without prejudice to a Partys rights in any future proceedings.38 Parties may alternatively seek good offices, conciliation, mediation,39 or arbitration.40 Parties may also seek adjudication through a panel process that leads to a binding result.41 The panel generally receives information via Party submissions, but is also given the right to seek information and technical advice from any person or body which it deems appropriate.42 The panel may also seek information from an expert, and obtain statements of facts from both Parties to the dispute.43 A Party may appeal a panel finding to the Appellate Body, but these are limited to issues of law and legal interpretations.44 Panels and Appellate Bodies make reports, which are then adopted by the Dispute Settlement Body.45 The Understanding on Disputes procedures are routinely utilized to resolve disputes and promote compliance with WTO agreements. For example, 17 dispute cases were recorded by the WTO in the year 2010 alone on its Dispute Settlement Gateway website.46
Sanctions are available under the Understanding on Disputes, but are seen as a measure of last resort. If a panel or the Appellate Body makes a determination that an action is inconsistent with an agreement, it may issue a recommendation that the Party come into compliance.47 The Party to whom the recommendation is made must let the Dispute Settlement Body know its intentions on implementation,48 and the Dispute Settlement Body has oversight and surveillance authority over any implemented recommendation.49 If a Party fails to adopt the recommendation in a reasonable amount of time, the Dispute Settlement Body may then award compensation or suspend privileges under the agreement50 if the agreement authorizes or does not prohibit such a sanction.51 However, this measure is only to be taken where the Party fails to implement recommendations and is to be treated as a temporary measure until compliance is achieved.52 If such sanctions are warranted, the complaining Party should seek suspension of concessions under the particular section of the covered agreement at issue.53 If this is not possible, the party in some circumstances may even seek suspension of concessions under other agreements (cross-agreement sanctioning).54 The level of the sanction must also be comparable to the impairment caused by the action/inaction of the noncompliant Party.55 2.3 Multilateral Environmental Agreements
From the growing number of multilateral environmental agreements available for analysis, this paper considers just two. Each of the following agreements is relatively forceful and has more than twenty years of implementation experience. 2.3.1 The Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol) The Montreal Protocol has specific noncompliance procedures, namely fact-finding and investigative authorities that are based primarily on the obligations that Parties report information to the Implementation Committee.56 57 The Implementation Committee may collect information in the territory of a Party suspected of noncompliance, but only at the request of that Party.58 The Implementation Committee is authorized to make findings of fact and of noncompliance.59 It then reports these findings to the Meeting of Parties, which has authority to take actions to bring about full compliance with the Protocol.60 Dispute resolution is governed by Article 11 of the Vienna Convention for the Protection of Ozone Layer (Vienna Convention).61 Article 11 lays out a series of procedures that should take place in the event of a dispute,62 the first being negotiation. If no resolution can be reached, the Parties may jointly seek the good offices of a third party, or mediation.63 A Party may also declare that it accepts binding arbitration or submission of the dispute to the International Court of Justice.64 In the event that mediation fails, and both Parties have selected the same compulsory measure, that measure will be used.65 However, if the Parties have not accepted the same or any procedure, a conciliation commission may be
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convened upon request of one of the Parties.66 The decision of this commission is to be considered in good faith by both Parties. The Implementation Committee under the noncompliance procedures67 may impose sanctions, which include suspension of privileges or trade-related sanctions. A Party may also lose access to technology transfer or to the financial mechanism.68 In the event that Parties undergo the dispute settlement provisions of Article 11, the award or decision of such resolution will depend on the nature of the dispute. Presumably, this would include agreements to conduct or cease certain activities under the Protocol with the aim of achieving compliance. 2.3.2 The Basel Convention on the Control of Transboundary Movements of Hazardous Waste and their Disposal (Basel Convention) Compliance and dispute resolution under the Basel Convention are governed primarily by the Article on Settlement of Disputes.69 However, the Basel Convention also contains an Arbitration agreement, found in Annex VI to the Convention. 70 Additionally, a Compliance Mechanism was established by a decision of the Conference of the Parties.71 The Compliance Mechanism is a subsidiary body to the Conference of the Parties, and is intended to assist Parties to achieve their obligations under the Convention.72 The Compliance Mechanism primarily consults and advises parties, issues non-binding recommendations to the Parties, and also makes recommendations to the Conference of the Parties.73 If a dispute or compliance issue is raised under any of these provisions (Settlement of Disputes, Arbitration, or the Compliance Mechanism), fact finding and investigatory authorities under all three of these provisions are largely based on submissions of facts or disputes by the Parties to this dispute.74 Additionally, facts and information may come from the mandatory reporting obligations under the Basel Convention.75 None of these mechanisms allows for representatives of the Basel Convention to compel investigations in the territory of the Party suspected of noncompliance or a Party to a dispute. To resolve a dispute, the Article on Settlement of Disputes requires the Parties to first seek resolution through negotiation.76 If Parties are unable to do so, they may agree to submit the dispute to arbitration, governed by procedures in Annex VI, or to the International Court of Justice.77 If Parties are unable to resolve disputes in this way, the provisions remind them of their obligations under the Convention to continue to seek resolution of the dispute.78 As such, the Convention does not contain any mandatory dispute resolution procedures. In the event a dispute goes to the Arbitral Tribunal pursuant to the Arbitration provisions in the Basel Convention, the Tribunal can render an award.79 While award is not defined, it is likely that such an award would be a monetary compensation for harms, or an equitable award suggesting action or cease of action by a Party. Any award rendered is final and binding on the Parties to the dispute.80
COMPARING THE AGREEMENTS 3.1 Fact-Finding Authorities
Of the agreements reviewed, the weapons agreements provide the greatest factfinding and inspection authorities. Under the Non-Proliferation Treaty, this is accomplished via the authorities given to the Agency under the safeguards agreements. While there are a handful of countries under voluntary agreements, most Parties to the Non-Proliferation Treaty are under comprehensive safeguard agreements. These provide the Agency with authority to conduct inspections in the territory of the Party to the safeguard agreement. While this may be logistically difficult to accomplish without express approval or assistance of the Party, it is an authority that carries a great deal of weight. Under the Chemical Weapons Convention, the States Parties have explicitly agreed to grant access to the Organization for on-site inspections. Inspectors have authority to examine documents and facilities, interview personnel, and take samples. A country that fails to cooperate and grant these inspections may face sanctions or action by the U.N. Security Council. This on-site, in-territory inspection authority is lacking in the WTO and in the two environmental agreements examined.81 3.2 Adjudication Procedures
Dispute resolution and adjudication of compliance issues are addressed similarly under all three types of agreements. The process generally requires negotiation first, followed by some form of third-party informal resolution, and a final formal process for resolution of disputes. Compelling parties to appear and participate in the formal process remains a challenge for all of the agreements discussed above. For example, the agreement may allow for one Party to the dispute to convene a conciliation commission, such as under the Montreal Protocol. However, the award or decision of such a commission is not binding on the parties, but rather to be considered in good faith. It is unlikely that a Party that refuses to submit to such a process of dispute adjudication would then in good faith accept that commissions decision. In the case of the Non-Proliferation Treaty, the treaty itself does not provide any compulsory dispute settlement provisions. Disagreements under the Statute concerning the International Atomic Energy Agency may be referred to the International Court of Justice. However, the absence of dispute settlement provisions within the text of the Non-Proliferation Treaty leaves a gap in dispute settlement for terms or provisions of the Non-Proliferation Treaty itself.82 Likewise, the Chemical Weapons Convention lacks a comprehensive and clear dispute settlement regime. On the one hand, the Convention relies heavily of referral of matters to the International Court of Justice, which is governed by a comprehensive dispute settlement system. However, by excluding a clear and comprehensive dispute settlement system within the Convention itself, States Parties may face confusion about what methods of dispute settlement should be adopted. By comparison, the WTOs Understanding on Disputes provides the strongest means of compelling Parties to participate in formal dispute resolution. First, the
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Understanding on Disputes requires that any disputes under the Agreements be settled according to its provision.83 Second, if a panel is convened and makes a recommendation or finding of noncompliance to the Dispute Settlement Body, the Dispute Settlement Body can order sanctions. Thus, if a complaint is lodged against a Party and that Party chooses not to submit facts or participate in the process, the resulting decision of the panel is still considered binding. 3.3 Sanctioning Provisions
Sanctioning authority appears strongest under the WTO Agreement and its related compliance measures. As noted above, the WTO Dispute Settlement Body unilaterally may authorize suspension of privileges or a compensatory award if the Party fails to come into compliance voluntarily. In addition to these sanctioning authorities, the Dispute Settlement Body may also conduct surveillance over any implemented compliance order. Sanctions under the Montreal Protocol are similar to the WTO, allowing suspension of trade in covered chemicals/products in the event of noncompliance by a Party. However, unlike the WTO, the Montreal Protocol does not allow oversight of implementation of any compliance order. Additionally, under the WTO, there are parallel agreements under which trade can also be suspended (cross-sanctioning). Of the agreements reviewed in this study, this ability to authorize sanctions under parallel agreements is unique to the WTO Agreement. 4 CONCLUSION In examining these compliance and dispute resolution provisions, it is clear that some agreements provide stronger authority for the governing body than others. From available strong provisions already found in legislated international law, one can draw important lessons and recommendations for drafting of future multilateral agreements, such as a framework agreement for a potential World Environment Organization, or for a new climate change agreement. In the realm of climate change agreements, fact finding and inspection authority will be particularly important. The existence or degree of monitoring, reporting and verification of greenhouse gas emissions in ones own and in other countries is already a hotly debated topic. This issue is often cited as one of the primary areas of conflict and reasons that a binding agreement has not yet been reached. As Parties continue to negotiate in this area, it may be remembered that many of these negotiating states have already committed to international oversight in the realm of nuclear and chemical weapons.84 Finally, to improve international environmental governance, much can be learned from the WTO Agreement and dispute resolution provisions. The existence of a uniform dispute resolution mechanism provides consistency and clarity in how noncompliance and other disputes will be handled.85 The Understanding on Disputes also clearly explains the available sanctioning measures, putting parties on notice of the possible consequences of their actions. A possible new international
environmental organization may also consider the cross-agreement sanctioning authority provided in the World Trade Organization framework agreement. In the event a World Environment Organization is formed and multiple media-specific agreements are drawn under its framework, this cross-sanctioning may create an increased compliance incentive with each agreement. 5 REFERENCES UNEP (United Nations Environment Programme) has listed Environmental Governance as one if its priority areas. A major undertaking in this area is International Environmental Governance Reform. As UNEPs website explains, it is undertaking a consultative process to discuss reform options, in part, to address the fragmented system of MEAs. It is interesting to note that in the Second Meeting of the Consultative Group of Ministers of High-level Representatives on International Environmental Governance, in the proposed set of options, dispute avoidance and settlement and monitoring, compliance and accountability for agreed commitments and building related capacity were listed as items to address developing a global authoritative and responsive voice for environmental sustainability. SS.XI/1: International environmental governance, Annex, page 9. This topic is expected to be discussed at the Rio +20 meetings in 2012. 2 Non-Proliferation Treaty, Article III.1. 3 Statute, Article IV.A. 4 Calamita, N.J., Sanctions, Countermeasures, and the Iranian Nuclear Issue, Vanderbilt Journal of Transnational Law, 2009, p. 1400. 5 A nuclear state is defined as follows: For the purposes of this Treaty, a nuclearweapon State is one which has manufactured and exploded a nuclear weapon or other nuclear explosive device prior to 1 January 1967. Non-Proliferation Treaty, Article IX.3. 6 There are three different types of safeguards agreements: comprehensive, itemspecific, and voluntary offer. IAEA, Safeguards System of the International Atomic Energy Agency, p. 1. Most agreements are comprehensive, meaning that they apply to all nuclear materials. Id. at 2. In February 1992, the Board of Governors determined that the safeguards agreements apply to all materials that are required to be covered, rather than just those disclosed. Id. Item-specific agreements only cover nuclear materials listed in the agreement. Id. at 3. There are only three States with such an agreement: Israel, Pakistan, and India. Id. Voluntary offer agreements apply only to nuclear weapon states, as they are not required by Non-Proliferation Treaty to conclude a safeguard agreement at all. Id. However, all five nuclear weapon states have concluded these voluntary offer agreements. Id. These generally follow the format of comprehensive agreements, but may contain various exclusions or conditions. Id. 7 Statute, Article XII.A. 8 Statute, Article XII.A.6. 9 The Non-Proliferation Treaty itself does not contain dispute settlement language. This is one potential area for improvement for the Non-Proliferation Treaty, as nowhere does it require parties to settle disputes arising under the Non-Proliferation Treaty to agree or submit to any particular dispute settlement process. Many of
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the safeguards agreements contain arbitration clauses as well. Fry, J., Arbitrating Arms Control Disputes, Stanford Journal of International Law, 2008, pp. 378-381. Thus between the Statutes dispute resolution provisions and the arbitration provisions in the safeguards agreements, various dispute settlement methods are provided. Id. However, while these are available, the lack of a provision in the NonProliferation Treaty itself leaves open the possibility that a dispute as to application or requirements of the Non-Proliferation Treaty are without a binding dispute resolution provision. 10 Statute, Article XVII.A. 11 Statute, Article XVII.A. 12 Statute, Article XII.A.7. 13 Statute, Article XII.C. 14 Statute Article XII.C. 15 Chemical Weapons Convention, Article VIII. See also Fitzgerald, K., The Chemical Weapons Convention: Inadequate Protection from Chemical Warfare, Suffolk Transnational Law Review, 1997, pp 437. 16 Chemical Weapons Convention, Article VIII.A VIII.E. 17 Haar, B.t. (On sabbatical leave from the Ministry of Foreign Affairs, P.O. Box 20061, 2500 EB Den Haag (Netherlands), International Inspections: The Example of the Chemical Weapons Convention, available at http://www.inece.org/1stvol1/haar.htm. 18 Chemical Weapons Convention, Article III. 19 Chemical Weapons Convention, Article IV and V. 20 Fitzgerald, K., The Chemical Weapons Convention: Inadequate Protection from Chemical Warfare, Suffolk Transnational Law Review, 1997, pp 439-40. 21 Chemical Weapons Convention, Article IX. 22 Fitzgerald, K., The Chemical Weapons Convention: Inadequate Protection from Chemical Warfare, Suffolk Transnational Law Review, 1997, pp 438-39. 23 See Chemical Weapons Convention, Part II General Rules of Verification. 24 Chemical Weapons Convention, Article XII. 25 Fitzgerald, K., The Chemical Weapons Convention: Inadequate Protection from Chemical Warfare, Suffolk Transnational Law Review, 1997, pp 440. 26 Fitzgerald, K., The Chemical Weapons Convention: Inadequate Protection from Chemical Warfare, Suffolk Transnational Law Review, 1997, pp 440. 27 Chemical Weapons Convention, Article XIV.1. 28 Chemical Weapons Convention, Article XIV.2; Charter of the U.N., Article 33.1. 29 Charter of the U.N., Article 33-37. 30 WTO Agreement. 31 World Trade Organization, Committee on Trade and Environment, Compliance and Dispute Settlement Provisions in the WTO and in Multilateral Environmental Agreements, WT/CTE/W/191, 2001 [hereinafter Compliance and Dispute Settlement], pp. 18-19. 32 Id. at 19. For examples of reporting obligations and oversight committees, see Compliance and Dispute Settlement at 19-23. 33 Understanding on Disputes, Article II.1. 34 WTO Agreement, Article III.3. 35 Understanding on Disputes, Article I.1. See Appendix 1. 36 Id.
Understanding on Disputes, Article 23.1. Understanding on Disputes, Article IV. 39 Understanding on Disputes, Article V. 40 Understanding on Disputes, Article 25. If the Parties to the dispute elect arbitration, they agree to be bound by the result. 41 Understanding on Disputes, Articles 6-14, Appendix 1. See Compliance and Dispute Settlement, pp. 24-26 for a detailed discussion of the consultation, panel, and appellate process. 42 Understanding on Disputes, Article 13. 43 Understanding on Disputes, Article 13. 44 Understanding on Disputes, Article 17. 45 Understanding on Disputes, Article 16, and Article 17.14. 46 http://www.wto.org/english/tratop_e/dispu_e/dispu_status_e.htm. 47 Understanding on Disputes, Article 19 48 Understanding on Disputes, Article 21.3 49 Understanding on Disputes, Article 21.6. 50 Understanding on Disputes, Article 22. 51 Id. 52 Id. 53 Id. 54 Id. 55 Id. 56 The Implementation Committee was established by the Second Meeting of the Parties to the Montreal Protocol. Report of the Second Meeting of the Parties to the Montreal Protocol, Annex III; Compliance and Dispute Settelment, p. 9. 57 A Party can self-report, be reported by another Party, or be reported by Secretariat. Annex III.5.; Compliance and Dispute Settlement, p. 9. 58 Compliance and Dispute Settlement at 9. 59 Compliance and Dispute Settlement , p. 10. 60 Report of the Second Meeting of the Parties to the Montreal Protocol, Annex III.7. The purpose of the IC is to resolve issues of noncompliance in an amicable manner. Annex III.6. As such, the aim is to bring parties into compliance and assist them in doing so, rather than imposing sanctions. UNEP, DELC, Issues of Compliance: Considerations for the International Regime on Access and Benefit Sharing, 2010 [hereinafter Issues of Compliance], pp.21- 22. 61 Vienna Convention, Article 11; Compliance and Dispute Settlement, p. 10. 62 There are no specific fact-finding procedures or authorities listed in Article 11. However, given the mostly voluntary nature of these proceedings, facts before the third party governing the proceedings would likely be submitted by the Parties themselves. 63 Vienna Convention, Article 11.2. 64 The International Court of Justice was established in 1945 by the Charter of the U.N.. It is the principle judicial arm of the United Nations. Article 1, Statutes of the International Court of Justice. 65 Vienna Convention, Article 11.3. 66 Vienna Convention, Article 11.4.
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These are allowed but to be used only when amicable efforts to assist in achieving compliance fail. Issues of Compliance, pp.21- 22. 68 Issues of Compliance, p. 22. 69 Basel Convention, Article 20. 70 Basel Convention, Annex VI. 71 Basel Convention, Mechanism for Promoting Implementation and Compliance. 72 Basel Convention, Mechanism for Promoting Implementation and Compliance Brochure, available at http://www.basel.int/legalmatters/compcommitee/brochurexx0706.pdf. 73 Id. 74 For example, under the Compliance Mechanism, submissions can be made by a Party about themselves or about another Party. Under the Arbitration provisions in Annex VI, the arbitrar may take all appropriate measures to establish the facts. 75 Compliance and Dispute Settlement, p. 11; Basel Convention, Article 13. 76 Basel Convention, Article 20.1. 77 Basel Convention, Article 20.2. 78 Basel Convention, Article 20.2. 79 Basel Convention, Annex VI, Article 10. 80 Basel Convention, Annex VI, Article 10.2. 81 Despite these inspection authorities, the Non-Proliferation Treaty has been criticized for lacking in enforceable provisions and sanctions. See generally Calamita, N.J. Sanctions, Countermeasures, and the Iranian Nuclear Issue, Vanderbilt Journal of Transnational Law, 2009. This reality is a perfect example of how an effective agreement must be accompanied by strong and consistent inspection, adjudication, and sanctioning provisions. A strong inspection authority coupled with a weak sanctioning provision can result in an agreement that is altogether difficult to enforce. 82 Disputes that are referred by parties to the International Court of Justice do come within the jurisdiction of the court. Thus, the Statutes mandate that disputes not settled by negotiation be referred to the ICJ does result in a fairly compulsory dispute settlement provision. However, there is no such language in the Non-Proliferation Treaty itself. Thus, disputes under the Non-Proliferation Treaty may go unresolved. 83 Compare to the Chemical Weapons Convention, which refers both to its own provisions and to the Charter of the U.N. 84 For a comprehensive discussion on the lessons to be learned from the Chemical Weapons Convention, see Haar, B.t. (On sabbatical leave from the Ministry of Foreign Affairs, P.O. Box 20061, 2500 EB Den Haag (Netherlands), International Inspections: The Example of the Chemical Weapons Convention, available at http://www. inece.org/1stvol1/haar.htm. 85 Compliance and Dispute Settlement, p. 23.
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6 BIBLIOGRAPHY Basel Convention, Compliance Committee, Mechanism for Promoting Implementation and Compliance Brochure, available at http://www.basel.int/ legalmatters/compcommitee/brochure-xx0706.pdf.
Calamita, N.J., Sanctions, Countermeasures, and the Iranian Nuclear Issue, Vanderbilt Journal of Transnational Law, 2009. Cousineau, H., The Nuclear Non-Proliferation Treaty and Global Non-proliferation Regime: A U.S. Policy Agenda, Boston University International Law Journal, 1994. Fitzgerald, K., The Chemical Weapons Convention: Inadequate Protection from Chemical Warfare, Suffolk Transnational Law Review, 1997. Fry, J., Arbitrating Arms Control Disputes, Stanford Journal of International Law, 2008. Haar, B.Ter. (On sabbatical leave from the Ministry of Foreign Affairs, P.O. Box 20061, 2500 EB Den Haag (Netherlands), International Inspections: The Example of the Chemical Weapons Convention, available at http://www.inece.org/1stvol1/haar.htm. International Atomic Energy Agency, Safeguards System of the International Atomic Energy Agency, available at http://www.iaea.org/OurWork/SV/Safeguards/safeg_ system.pdf. United Nations Environment Programme, Second Meeting of the Consultative Group of Ministers of High-level Representatives on International Environmental Governance , SS.XI/1: International environmental governance, Annex. United Nations Environment Programme, Division of Environmental Law and Conventions, Issues of Compliance: Considerations for the International Regime on Access and Benefit Sharing, 2010. World Trade Organization, Committee on Trade and Environment, Compliance and Dispute Settlement Provisions in the WTO and in Multilateral Environmental Agreements, WT/CTE/W/191, 2001.
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TRACK B: PROMOTING COMPLIANCE WITH CLIMATE-RELATED REQUIREMENTS

AUSTRALIAS NATIONAL GREENHOUSE AND ENERGY REPORT ACT 2007 CARTER, ROSS1 and BAKER, CHRIS2 First Assistant Secretary, Regulatory Division, Australian Government Department of Climate Change and Energy Efficiency, Level 13, 20 Allara Street, Canberra, Australian Capital Territory 2601
1
Special Advisor, Transport, Renewables and Energy Efficiency Division, Australian Government Department of Climate Change and Energy Efficiency, Level 13, 20 Allara Street, Canberra, Australian Capital Territory 2601
2
SUMMARY The paper outlines the Australian Government approach and experience in developing a robust and comprehensive greenhouse and energy reporting system. The paper describes the context in which national legislation was developed and the potential future policy environment in which the law may play a role. It then describes the compliance and enforcement approach to implementing the law, including the escalation and risk/intelligence based framework. The paper then explains the regulatory tools that the law provides which may be deployed within this framework. The paper concludes with observations on the stage of implementation and regulatory maturity of the system and makes key observations on lessons learned. 1 INTRODUCTION The Australian Governments Department of Climate Change and Energy Efficiency (the Department) leads the development and coordination of Australias climate change policies. As part of a broader climate change strategy, the Department is responsible for administering the National Greenhouse and Energy Reporting Act 2007 (the Act). The Act provides a national frameworkfor the reporting and dissemination of information on greenhouse gas emissions and energy flows in the Australian economy. The Australian constitution of 1901 established a federal system of government, which distributed powers between the federal government and the states. Itinvests the federal government with the exclusive power to make laws on certain matters and
defines the concurrent powers of both tiers of government. Thestates and territories have independent legislative power in all matters not specifically assigned to the federal government. Where there is any inconsistency between federal and state or territory laws, federal laws prevail. Federal laws apply to the whole of Australia. Australia has a well-developed set of environmental laws, including primary legislation and associated regulations, at all government levels and is developing its regulatory capacity and tools to address climate change. 2 CLIMATE CHANGE POLICY CONTEXT
The Act originated with the 2004 Commonwealth of Australia Energy White Paper, which identified the need for improved energy and greenhouse emissions data and information. Policy development proceeded through various stages under the Coalition of Australian Governments and concluded in 2007 in the context of increasing policy debate on responses to climate change. The Government established a Prime Ministers Task Group on Emissions Trading which reported on 31 May 2007. The then Government and Opposition both adopted policies on emissions trading at that time. The Australian Parliament developed and enacted the final National Greenhouse and Energy Reporting legislation in 2007. The Act included the underpinning for the future introduction of an emission trading scheme and a monitoring, reporting and verification framework with this object in mind. With the debate on climate change policy continuing in Australia, on 27 September 2010 the Prime Minister announced the establishment of a Multi-Party Climate Change Committee (the Committee). The Committee was tasked with exploring options for the implementation of a carbon price. On 24 February 2011, the Prime Minister outlined the broad architecture for a carbon price mechanism that, subject to legislation being enacted by Parliament, is intended to commence in July 2012. It is expected that the Government and the Committee will release further details of the proposed carbon pricing mechanism in 2011. If legislation establishing such a mechanism is enacted, it is likely that the Act will provide the necessary emissions data and reporting framework. 3 NATIONAL GREENHOUSE AND ENERGY REPORTING IN AUSTRALIA
The Act introduced a national frameworkfor the reporting and dissemination of information about greenhouse gas emissions, greenhouse gas projects, and energy use and production of corporations. The objectives of the Act, as stated in the legislation, are to: inform government policy and the Australian public; help meet Australias international reporting obligations;
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assist Commonwealth, state and territory government programs and activities; avoid the duplication of similar reporting requirements in the states and territories; underpin the introduction of an emissions trading scheme. The Act also establishes a statutory position of the Greenhouse and Energy Data Officer to administer the Act. This Officer is an Australian public servant and, while appointed by the Secretary of the Department of Climate Change and Energy Efficiency, has an independent statutory role under the Act. To reduce the reporting burden on Australian businesses, one of the objects of the Act, Australian andstate and territory governments have agreed to a standard national approach to greenhouse and energy reporting, known asthe National Greenhouse and Energy Reporting Streamlining Protocol. This initiative seeks to reduce the red tape burden on business created by multiple and varyingreporting requirements. Implementation of the Protocol was agreed through the Council of Australian Governments and will be used to streamline reporting requirements for existing and future greenhouse and energy programs. The Protocol covers reporting requirements relating to energy consumption and production, greenhouse gas emissions, intensity indicators, energy audits, action plans, energy savings, greenhouse gas reductions, and projections. 4 WHO IS COVERED BY THE ACT
As of 1 July 2008, all businesses must apply for registration with the Greenhouse and Energy Data Officer if they: are a constitutional corporation; meet a reporting threshold for greenhouse gases or energy use or production for a reporting (financial) year. Registered corporations must then report their greenhouse gas emissions and energy use and production for each year in which they meet a threshold. The two types of thresholds at which corporations must participate are facility thresholds and corporate thresholds. Both types have a greenhouse gas threshold and an energy threshold. If a corporation exceeds any one or more of the four thresholds for each reporting year, registration is required. The corporate group thresholds lower each year over the first three reporting years. The following table sets out the various thresholds.
Figure 1: Facility and Corporate Group Thresholds for the Act
Registered corporations are required to report all greenhouse gas emissions, energy production and energy consumption from facilities under the operational control of the registered corporation or a member of its group. The following four criteria can be used in determining if an activity or series of activities forms a facility under the Act. 1. Activities must produce greenhouse gas emissions or produce or consume energy. 2. Activities are part of a production process. 3. Activities occur at a single site. 4. Activities are attributable to a single industry sector. Examples of facilities include: retail outlets, primary production and manufacturing plants, construction sites, air, rail road and water transport, and electricity, gas or water supply. A corporation is considered to have operational control over a facility if it has authority to introduce and implement operating, health and safety, and environmental policies. Only one corporation can have operational control over a facility at any time. 5 RESULTS AND OUTPUTS TO DATE
There are currently over 776 registered controlling corporations under the Act. More registrations are anticipated prior to 31 August 2011 because the third reporting threshold is now in place. For the 2008/09 reporting year some 659 controlling corporations have reported, for 2009/10 this increased to 726. The number of entities (facilities, facility aggregates, networks/pipelines, vertically integrated production processes) with emissions that fall under these controlling corporations is in excess of 9000. For the 2008/09 reporting year, reported data included scope 11 emissions of over 348 Mt CO2-e, scope 2 emissions of over 100 Mt CO2-e, energy consumption of over 6,416 petajoule (PJ)2 and energy production of over 20,746 PJ. The data represents
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nearly 64% of Australias 2008/2009 scope 1 emissions, excluding land use, land-use change and forestry. There was a similar order of magnitude of data reported in the 2009/2010 reporting year. Figure 2: National Greenhouse and Energy Reporting
The reported data is a key input to Australias National Greenhouse Gas Inventory, projections and reporting under the UNFCCC and Kyoto Convention, and Australias reporting to the International Energy Agency. Domestically, it is a critical input to policy development relating to greenhouse emission and energy production and consumption in the Commonwealth and increasingly in Australian States and Territories. It provides data to the Australian Bureau of Statistics and the Australian Bureau of Resource Economics and Sciences. Moreover, it provides the monitoring, reporting and verification framework for a range of government regulatory and program initiatives across all jurisdictions. In addition, the Greenhouse and Energy Data Officer must publish the totals that have been reported by each registered corporation whose group had scope 1 and scope 2 greenhouse gas emissions in excess of the 2009-10 publishing threshold of 87.5 kilo tonnes, or who holds a reporting transfer certificate for scope 1 and 2 greenhouse gas emissions and energy consumption.
MONITORING, REPORTING AND VERIFICATION
The Department aims to optimise compliant behaviour proactively through identifying emerging risks and trends combined with early stakeholder engagement. Where readily available information and engagement provides evidence of suspected non-compliant behaviour, response options are flexible, transparent, and consistent. The Department will use intelligence analysis and risk assessment to make strategic decisions about the allocation of resources in order to maximise the number of corporations that voluntarily comply with their obligations under the Act. The core elements of this approach are: assisting corporations to understand their rights and obligations; making it as easy as possible for corporations to meet their obligations; supporting corporations who want to comply; monitoring compliance through a range of methods, including the use of targeted audits; actively pursuing those corporations that opportunistically or deliberately contravene the law. The Greenhouse and Energy Data Officers (GEDO) response to non-compliant behaviour is proportionate to the risk presented by a participants behaviour and is based on the responsive regulation model of Ian Ayres & John Braithwaite.3 Flexibility enables the response to: be proportionate to the risks posed by the breach; recognise the capacity and motivation of the non-compliant entity to return to compliance; signal the seriousness with which the Department views the breach . The following pyramid shows the escalating level of responses.
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Figure 3: The Compliance Pyramid (Adapted from Ayres, I. and Braithwaite, J.)
Criminal/Civil Proceedings Infringement Notice
Enforceable Undertaking s73 Audit s71 Request for information Authorised Officer Powers
Information, education and communication
In determining appropriate responses to non-compliance, the GEDO will use a riskbased approach that takes into account corporations behaviours and motivations. The Compliance Model at Figure 4 (below) shows a spectrum of these behaviours and motivations ranked according to compliance risk, and the corresponding levels of GEDO response. In the short term, accidental non-compliance may be more prevalent than in later years. This is because corporations need to develop an understanding of their legislative obligations and put in place the systems required to meet them.
Figure 4: Risk Response Model

CORPORATION BEHAVIOURS AND MOTIVATION
VOLUNTARY COMPLIANCE Informed self assessment Management is compliance oriented ACCIDENTAL NON-COMPLIANCE Not yet compliant Attempting compliance (e.g. developing internal control systems to ensure compliance) OPPORTUNISTIC NON-COMPLIANCE Resistance to compliance Lack of indication of intention to comply (e.g. no indication of system being developed to ensure compliance) INTENTIONAL NON-COMPLIANCE Deliberate non-compliance Criminal intent or fraud Other illegal activity
LOW
RISK
HIGH
THE GEDOS RESPONSE

HELP AND SUPPORT The GEDO will provide information and opportunities for compliant corporations to ask questions, discuss issues of concern and participate in educational and discussion forums The GEDO will use proactive audits to develop a better understanding of corporations ability to comply. EDUCATE AND PROVIDE CORRECT BEHAVIOUR ENFORCE THE LAW The GEDO will respond Where appropriate, the FEEDBACK to detected non-compliGEDO will initiate court The GEDO will provide ance according to the action in cases of delibadditional guidance to severity (e.g. employing erate non-compliance targeted corporations enforceable undertakings, (including criminal Where an apparent noninfringement notices) prosecution of any compliance is identified, Under certain circumoffence that may have the GEDO will provide stances, the GEDO may been committed) relevant parties with an publish information opportunity to respond about individual corpora The GEDO will provide tions non-compliance feedback on adequacy of systems and arrangements to ensure compliance
THE REGULATORY TOOLS
The Act provides a range of response options to address non-compliance that allow the regulator to respond appropriately based on the level of risk provided by the non-compliant behaviour. This process takes into account the circumstances of the non-compliance and the behaviours of the regulated entity. The regulatory approach is based on a mix of tools including: criminal sanctions (under Division 137 of the Criminal Code it may be an offence to provide false or misleading information in purported compliance with the Act); Chief Executive Officer liability (the Act establishes Chief Executive Officer liability in certain circumstances where a corporation contravenes a civil penalty provision); civil sanctions, including continuing penalty provisions for ongoing noncompliance (for example liability for a civil penalty in some circumstances accrues for each day that a person fails to comply); infringement notices (available where reasonable grounds exist to believe a contravention of a civil penalty provision has occurred);
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enforceable undertakings; power to request information (available where information on whether the Act has been complied with is believed to exist); Greenhouse and Energy Data Officer initiated audits and required audits (this is an essential part of the monitoring and verification framework; the Act establishes a financial standard of audit and assurance that can be applied to reporting); powers of authorised officers (a range of powers to inspect, enter premises and examine, make copies of documents/photographs etc., request a person to answer questions). 8 IMPLEMENTATION The implementation of the Act has featured a significant investment on the business education and outreach effort through a dedicated Business Outreach Section that is focused on assisting regulated corporations to understand and comply with their statutory responsibilities. This includes the development of tools, fact sheets, seminars, and one-on-one visits to regulated and potentially regulated corporations. This education and outreach effort is ongoing, including using a regular e-news letter sent to about 2500 contacts in the regulated community, surveys of regulated entities to identify outreach needs, regular liaison workshops with peak industry bodies and industry associations, and general training workshops regularly available to regulated entities. A key initial implementation action, which has been repeated each year, is the development and continuous improvement of a Registration Identification Model. Using a range of existing data sets, the model is designed to cast a wide net to identify entities which may need to register under the Act and report. This has also guided the outreach effort and is contributing to compliance intelligence. The Acts first statutory requirement was registration, which a regulated entity had to complete by 31 August following the financial year in which it may have reached a threshold. This occurred in three tiers with the Act now in its third reporting year. The Act established registration processes using standard business process mapping approaches supported with standard operating procedures and a codified register. Reporting by registered entities was the second statutory requirement (with reports due by 31 October). Reports undergo statutory validation once received. Additionally, as the reports data content is the primary input aim of the Act, a number of further steps and analysis is undertaken to identify data anomalies or errors. This informs the improvement of guidance, technical scheme adjustment, as well as compliance, risk and intelligence functions. This occurs within a continuous improvement framework for the regulatory function, regulatory tools, and supporting products as well as for reporting entities. These are:
Sectoral analysis of data. Comparison of reported data against other data sources. Time series (year on year) data analysis. Energy flows analysis. Audits. Publication/provision of data (and consequent feedback from data users on quality/anomaly issues). Peer review of data (data users, reporters, community feedback on possible anomalies). In relation to continuous reporting, a resubmission process has been put in place where reporting entities can voluntarily resubmit previous reports where they identify an error or anomaly. This may also occur where the regulator suggests there may be an issue with the veracity of a report. The Greenhouse and Energy Data Officer has clearly indicated that the resubmission of reports in reasonable circumstances is encouraged and that discretion will be applied in relation to noncompliance that may have been implicit in the need for such a resubmission. 9 AUDITS The National Greenhouse and Energy Reporting Act 2007 provides for greenhouse gas and energy audits of reporting entities registered under the Act and requires the establishment of a Register of Greenhouse and Energy Auditors. The established methodology for audits draws heavily on the financial audit and assurance standards and profession while also incorporating technical and specialist skills. Sections 73 and 74 of the Act define the circumstances under which a greenhouse and energy audit may be initiated and allow for the appointment ofRegistered Greenhouse and Energy Auditors to undertake audit engagements. The National Greenhouse and Energy Reporting (Audit) Determination 2009 sets out the requirements for preparing, conducting, and reporting on greenhouse and energy audits. A greenhouse and energy auditor who has been registered under section 75A of the Act is able to conduct greenhouse and energy audits under the Act. There are currently over 120 greenhouse and energy auditors registered under the Act. A number of reporting entities have engaged registered auditors to undertake reasonable assurance, limited assurance, and verification audits. The Greenhouse and Energy Data Officer is currently rolling out a pilot audit program under s74 of the Act. The results of this pilot will be used to ensure the veracity of the methodology, including feedback from the audit profession and reporting entities as well as to shape a more comprehensive ongoing risk/intelligence based audit program. If a carbon price mechanism is put in place, mandatory reasonable assurance auditing of reports pertaining to any liabilities may be required.
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10
LESSONS LEARNED AND FUTURE CHALLENGES
Two key lessons from implementation of the Act are, firstly, the importance of a close and ongoing outreach, education, and engagement strategy with stakeholders, in particular the regulated community. This engagement should commence as early as possible in the implementation cycle, preferably well in advance of obligations commencing. This relationship can be viewed as a capital asset for the regulator but requires a genuine commitment to a joint learning journey. This means an accessible, listening, and solutions focused regulatory demeanour that retains a firm, fair, and consistent compliance approach. The second lesson is the application of a continuous improvement model to all aspects of the regulatory approach. This paper has touched on issues such as the resubmission process, the report verification process, registration etc. For each of these functions, a continuous improvement model is being applied. It is important that a relatively young regulator continuously improve these mature functions as well as developing functions, such as auditing. 11 REFERENCES Scope 1 emissions are all direct greenhouse gas emissions, i.e. emissions from fuel combustion in a boiler. Scope 2 indirect emissions are those arising from the consumption of purchased electricity, heat or steam. 2 1 petajoule is 1015 joules. 3 Ayres, Ian and Braithwaite, John, Responsive Regulation: Transcending the Deregulation Debate. New York: Oxford University Press, 1992.
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12 BIBLIOGRAPHY Australian Government Department of Climate Change and Energy Efficiency Compliance Framework V1, 6 Dec 2010, http://dccintranet/about/Governanceand ProgramSupportDivision/GovernanceandRiskFrameworksBranch/Documents/ Compliance%20Framework%20v1.0%20Final.pdf. National Greenhouse and Energy Reporting Act 2007, http://www.comlaw.gov.au/ Details/C2009C00478. National Greenhouse and Energy Reporting (Audit) Determination 2009, National Greenhouse and Energy Reporting Act 2007, http://www.comlaw.gov.au/Details/ F2010L00053. National Greenhouse and Energy Reporting Guidelines 2008, http://www. climatechange.gov.au/~/media/publications/greenhouse-report/nger-reportingguidelines.pdf. National Greenhouse and Energy Reporting (Measurement) Determination 2008. http://www.comlaw.gov.au/Details/F2010C00563.
National Greenhouse and Energy Reporting Regulations 2008, http://www.comlaw. gov.au/Details/F2009C01309. NGERS Education, Compliance and Enforcement Policy, May 2010, http://www. climatechange.gov.au/government/initiatives/national-greenhouse-energyreporting/~/media/publications/greenhouse-report/nger-education-complianceenforcement-policy.pdf. Prime Ministerial Task Group on Emissions Trading, May 2007, http://pandora.nla. gov.au/pan/72614/20070601-0000/www.pmc.gov.au/publications/emissions/index. html#viewing. White Paper: Commonwealth of Australia 2004, Securing Australias Energy Future. http://www.efa.com.au/Library/CthEnergyWhitePaper.pdf.
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FAILURE TO LAUNCH: INSIGHTS FROM THE ISSUANCE AND NONENFORCEMENT OF THE SECURITIES AND EXCHANGE COMMISSIONS COMMISSION GUIDANCE REGARDING DISCLOSURE RELATING TO CLIMATE CHANGE JAYANTI, SURIYA EVANS-PRITCHARD Attorney (energy and environmental law), 3115 44th Street, N.W., Washington, DC 20016, suriyajayanti@gmail.com SUMMARY In February 2010, the U.S. Securities and Exchange Commission (SEC) issued an interpretive guidance clarifying its position that existing securities law encompasses a legal obligation on SEC-registered companies to disclose to investors any material effect climate change and its consequences may have on a given company. Lauded as a step forward in environmental governance, one year later the guidance has achieved little discernable progress. As this paper explains, this is in part due to the subjectivity and flexibility inherent in a companys determination of what is material to it, and therefore required to be disclosed to investors. It is also partly because of a lack of standards as to what qualifies as an effect of climate change. Primarily, however, it is the SECs lack of enforcement that bears responsibility. While the difficulties of enforcement are themselves partially explained by the subjectivity of the materiality standard, the few remedial actions the SEC has taken demonstrate the capacity for improvement in this area. Accordingly, this paper presents an analysis of the SECs failure to enforce its climate change disclosure guidance, the areas in and methods with which enforcement could achieve valuable compliance, and the environmental governance benefits that might ensue. 1 INTRODUCTION Much of modern environmental governance in the United States has been defined by the false dichotomy of business versus environmental interests. The emergence of green markets, technologies and consumer trends provides concrete evidence that operating with environmental sensibilities is not a recipe for immediate bankruptcy, if only though other reasons abound because commercial benefits can be reaped by those boasting a corporate reputation for social responsibility in general, and environmental responsibility in particular. Consumers and investors increasingly care that companies are considerate citizens, and are rewarding those which are. It is to be expected, therefore, as consumers and investors develop concern about the carbon footprints of corporations, that corporations are consequently becoming more environmentally transparent, responsible and progressive. In recognition of this trend, and following pressure from state, environmental, and public investment entities, among others, the U.S. Securities and Exchange Commission (SEC or Commission) issued in February 2010 a formal
interpretation of law entitled the Commission Guidance Regarding Disclosure Relating to Climate Change (Guidance).1 The Guidance explains the Commissions position that, consistent with preexisting disclosure requirements under Regulations S-K2 and S-X3 and Securities Act Rule 12b-204, companies must disclose in their 10-K or 20-F filings climate change-related information that they deem material to their operations. With the combined pressure of rising consumer interest in environmental responsibility and the SECs articulation that the law requires climate change risk disclosure, it would be reasonable to expect corporations to provide such information. And yet, more than one year after the SEC issued the Guidance, disclosures reveal a meager trickle of climate change risk data, barely an increase from fiscal year 2008 and 2009 filings. This is because the Commission has failed to provide meaningful guidance on what constitutes an effect of climate change, which, when coupled with the inherent subjectivity and flexibility in the materiality standard, means that companies may not even understand what is required disclosure and can easily dismiss the issue as immaterial to them. Moreover, the Commission has completely failed to enforce the Guidance, prompting one commentator to ask, justifiably, Is the SEC ignoring Climate Change Disclosure?5 So, how can mandatory climate change risk disclosure be an effective tool for increasing environmental transparency, as well as hopefully elevating appreciation of the underlying importance of environmental responsibility? As this paper explains in brief, companies need standards with which to better evaluate what are the direct and indirect effects of climate change, and the SEC must actually enforce the regulations requiring disclosure of climate change risks where material. 2 WHY DISCLOSURE OF CLIMATE CHANGE RISK MATTERS
Markets require the free flow of accurate information to function properly, and in this context as in myriad others climate change is the great unknown, dubbed the greatest and widest-ranging market failure ever seen.6 Disclosure of relevant i.e., material7 information by companies in the market place is critical even without the looming uncertainties of climate change but those uncertainties are estimated to contribute as much as a whopping 10-14 percent to overall portfolio risk in the next twenty years, amounting to trillions in economic costs.8 And, of course, any future climate change legislation could completely reshape the economic landscape, for example by mandating renewable energy use or taxing greenhouse gas (GHG) emissions at a materially substantial level. As such, for investors to make the informed decisions that fundamentally underlie the market system, premised as it is on the theory of rational economic action, they need to be able to assess the risks climate change poses to companies in which they might invest. An under-informed market is a malfunctioning one. Furthermore, climate change cannot be properly mitigated without increased pressure on markets to reduce GHG emissions. The forces of supply and
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demand must act on environmentally irresponsible companies to induce carbon footprint reductions, and on green or sustainable companies to support their environmental efforts through increased market share. These pressures, to produce climate-friendly results, need to be applied accurately, which cannot be achieved without corporate transparency in the form of climate-related public disclosure. Similarly, for cap-and-trade or other carbon markets to function properly, the price of carbon must be set at market equilibrium, a task that also depends on accumulation of as much market data as possible. Accordingly, the benefits promised by proper climate change risk disclosure are manifold: Not only will more and better information aid the functioning of the market, it will facilitate governance mechanisms developed to combat climate change while also putting pressure on some of the economys biggest GHG emitters to reduce their carbon footprints. 2.1 The SEC Guidance
Thus, the Guidance is both a response to increased market interest in environmental transparency and also, in theory, a catalyst for companies to provide ever more clear and detailed information about their climate change profiles. It sets out the Commissions position that a number of [SEC] rules and regulations . . . may be the source of a disclosure obligation for registrants under federal securities laws, including Regulations S-K and S-X, and Securities Act Rule 12b-20, which cumulatively require disclosure of the nature of the business, relevant risk factors, significant litigation, and management strategy.9 Specifically, the SEC highlights four categories of climate change-related information or impacts it gauges to be potentially required disclosure where material, though it takes pains to remind readers that these are just some of the ways or examples of climate change related issues that a registrant may need to consider.10 The four categories are the (1) impact of present and future legislation or regulation, for example enactment of a U.S. cap-and-trade regime; (2) international accords, such as the Kyoto Protocol; (3) indirect consequences of regulation or business trends, including, for example, changes in demand or market share for GHG emission heavy products; and (4) physical impacts of climate change, such as damage to factories from increasingly severe hurricanes.11 Whether a given company is obligated to disclose climate change-related data, however, depends on whether it deems that data to be material to its operations i.e., whether there is a substantial likelihood that a reasonable investor would consider it important in deciding how to vote or make an investment decision, or, put another way, if the information would alter the total mix of available information.12 And the Guidance is careful to note that what is required to be disclosed is consequently very much up to the company to determine. For example, the Commission states, with respect to the indirect consequences of climate change, that [r]egistrants should consider their own particular facts and circumstances in evaluating the materiality
of . . . opportunities and obligations.13 Concerning physical impacts, it states: Registrants whose businesses may be vulnerable to severe weather or climate related events should consider disclosing material risks of, or consequences from, such events in their publicly filed disclosure documents. As in all other potential areas of disclosure, materiality is a flexible and subjective standard. 3 THE GUIDANCES FIZZLE Over one year following the SECs issuance of the Guidance, an event marked with considerable fanfare by environmental advocates, even ripples of response are hard to detect in subsequent aggregate 10-K and 20-F filings. Soberly phrased, the Guidance has not had as significant an impact on companies disclosure as some observers initially expected.14 An ISS Corporate Services analysis of companies response to the Guidance found that disclosure of climate change-related information is rare enough that only 20 percent of the filings surveyed addressed both physical and regulatory risks.15 A more recent Ceres report failed to find a single instance of climate change-related disclosure deserving of an excellent rating.16 Considering that climate change has or will affect every segment of society and the economy through, for example, changing weather patterns, GHG emissions caps or carbon taxation, restricted or vastly more expensive energy sources, or increased commodities prices it is peculiar that so few companies consider the issue to be material to them; indeed, one could argue that companies are flouting SEC climate change reporting guidance.17 However, as discussed below, one could also argue that the SEC Guidance fails to provide meaningful guidance or standards for companies to follow, and that the Commission has utterly failed to enforce mandatory climate change risk disclosure. Collectively, these overlapping weaknesses the materiality standard, the lack of clear guidance on what constitutes an effect of climate change, and the SECs lack of enforcement have undermined the Guidances efficacy. 3.1 The Subjectivity and Flexibility of the Materiality Standard
Part of the problem is that the materiality standard is inherently subjective and flexible, and exponentially more so in the context of climate change, where every link in the chain of manmade greenhouse gas emissions, physical changes in the climate system and their socioeconomic impacts is highly uncertain.18 Whereas it is relatively easy though still subjective and flexible for a company to calculate whether the appearance of a competitor in a given market will sufficiently affect the companys bottom line to constitute information investors would want to know, it is far more difficult to estimate the future price of carbon or availability of GHG emissions permits should Congress enact a carbon tax or cap-and-trade regime, respectively. This is because the latter determination rests upon a double analysis of the likelihood of any such legislative action, as well as the materiality19 based upon guessed at costs, prices and values. Similarly, it is impossible for a company to forecast the frequency and severity of hurricanes along the Gulf Coast, so predicting the impact of climate change-related physical effects on the company is complicated.
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And, of course, no company stands to benefit from scaring investors by raising the red flag of potential risk factors when it cannot mitigate or counter the risk due to its inherent uncertainty. Accordingly, what recent 10-K filings reveal is a strong trend of companies dismissing most climate change risks if they are mentioned at all as immaterial to them or beyond their ability to predict with sufficient likelihood to justify discussion. Whether or not this is true in a given instance is difficult to ascertain because what constitutes material information is largely a subjective determination of what the company considers relevant for investors to know. 3.2 The Lack of Standards as to What Constitutes a Material Effect of Climate Change and How to Disclose It
The Guidance is laudable for its effort to present climate change and its consequences as an issue that defies boundaries and definitional limitation. It explains that climate changes impacts can be direct or indirect, physical or market trend-based, supply or demand-side, and so on. What it does not do, however, is provide companies with meaningful guidance on how to identify which issues are climate changerelated. Nor does the Guidance explain how climate change data can be disclosed to investors in a useful format and context, and in a way sufficiently similar to how other companies are presenting their data to permit cross-referencing and comparison. First, climate change is a vertical and a horizontal problem: For a hypothetical apparel company, the effects of climate change will manifest in the price and availability of cotton seeds and water, and the distribution of arable farmland, which will in turn affect transportation costs (themselves variable based on energy and petroleum prices) and the resulting cost of cotton, which will affect the actual cost of producing a garment unit, which will be produced in a factory that emits GHG and may be subject to carbon caps or taxes, and which will then be marketed and sold to a population with increasing environmental awareness throughout a network of retail stores that themselves emit GHG and are subject to green building regulations. Understandably, this apparel company will have trouble determining not just which of these are material, but furthermore, which are sufficiently attributable to climate change to warrant disclosure under than heading. The Guidances statement that [t]hese effects can impact a registrants personnel, physical assets, supply chain and distribution chain20 does not offer meaningful direction to a company tasked with disclosing climate change-related data. Second, the Guidance sets forth no standards regarding how to present climate change disclosure, which renders what little information is provided in 10-K and 20-F filings difficult to compare. The four categories provided regulatory impacts, international accords, indirect consequences and business trends, and physical risks are umbrella headings offering little concrete how to guidance. By comparison, several of the voluntary disclosure mechanisms mentioned by the Guidance, including the Climate Registry, the Carbon Disclosure Project, and the Global Reporting Initiative, provide distinct standards and methodological support
regarding climate change-related disclosure. For example, the Global Reporting Initiative has developed a Sustainability Reporting Framework that guides companies through a step-by-step reporting process using indicators as specific as total direct and indirect greenhouse gas emissions by weight or company initiatives to reduce greenhouse gas emissions and reductions achieved.21 Moreover, each indicator is accompanied by a protocol that fully explains the indicator, its significance, terms, and how to go about gathering and distilling relevant data into a written format.22 While the SEC could have advised companies on how to identify and disclose climate change-related material information by providing its own guiding standards, it could also have directed companies towards a single voluntary reporting mechanism to be used as guidance. Inclusion of several such mechanisms within the Guidance, however, makes disclosure less clear and consistent, and does not help companies offer meaningful disclosure to investors. 3.3 The SEC Failure of Enforcement
The Guidance itself notes that the SEC planned to take follow-up steps to determine whether further guidance or rulemaking related to climate change disclosure is necessary or appropriate in the public interest or for the protection of the environment.23 These steps were to include monitor[ing] the impact of this interpretive release on company filings as part of our ongoing disclosure review program, the holding of a public roundtable on disclosure regarding climate change matters in the spring of 2010, and consideration by the SECs Investor Advisory Committee on the place of climate change issues in its advisory mandate.24 The sum total of the Commissions follow-up and enforcement actions, however, has been limited to six cursory comment letters that requested minor clarifications or details.25 One of the comment letters, addressed to Green Endeavors, Ltd., a beauty salon operations company, essentially suggested that the companys 10-K mention of the United Nations Framework Convention on Climate Change and the Kyoto Protocol was unnecessary because the company elsewhere disclosed that climate change regulation would have no specific effect on its operations.26 In another letter, the Commission asked Green Endeavors to explain how your company operates in a green manner.27 In two of the letters, to Sherwin Williams Co. and Chart Industries Inc., the Commission merely asked the companies to provide information about what consideration you gave to SEC Release No. 339106 in regards to providing disclosures regarding climate change matters.28 With out proper enforcement, most companies have little incentive to disclose risks especially risks as uncertain and generally unquantifiable as climate changerelated risks to investors, though there are exceptions in the form of companies that have recognized the reputational benefits and ensuing market share advantage of developing an environmentally responsible and transparent public image. Most companies, however, remain locked in the mindset that environmentally friendly policies are the antithesis of profitability, and without proper enforcement the Guidance will continue to have little impact on climate change disclosure.
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CONCLUSION: RECOMMENDATIONS FOR IMPROVEMENT AND ENFORCEMENT OF THE GUIDANCE
Enforcement of SEC mandatory climate change-related disclosure will remain sluggish and difficult as long as there are no consistent standards as to what should be disclosed and how it should be presented against which determinations of materiality can be judged. In its current state of flexibility, subjectivity, and uncertainty, climate change risk disclosure is meager and hard to second guess, and thus more or less unhelpful to investors. However, SEC enforcement must improve to put pressure on companies to more thoroughly and meaningfully disclose climate change-related data. In short, the Commission needs to simultaneously step-up enforcement efforts while also providing companies with better guidance in this area. Furthermore, a critical mass of climate change-related disclosure must accumulate before comparisons between companies are properly possible, and it is those comparisons that will permit investors to make informed decisions and that will trigger the GHG emissions reducing behavioral changes necessary to combat the global environmental problem. Without a regulatory incentive in the form of SEC enforcement the vast majority of companies will continue to shirk climate change disclosure obligations, thereby stunting the markets transformation into an environmentally responsible system. 5 REFERENCES SEC, Release No. 33-9106, Commission Guidance Regarding Disclosure Relating to Climate Change, 75 Fed. Reg. 6290 (Feb. 8, 2010) [hereinafter Guidance]. 2 17 C.F.R. Part 229. 3 17 C.F.R. Part 210. 4 17 C.F.R. 230.408; 17 C.F.R. 240.12b-20. 5 Bainbridge, Stephen, Is the SEC Ignoring Climate Change Disclosure? (Jan. 25, 2011), at www.professorbainbridge.com. 6 Stern, Nicholas, The Stern Review, The Economics of Climate Change at 1 (Cambridge University Press, 2006). 7 Only material climate-related (or other) information need be disclosed to the SEC, and information is material if there is a substantial likelihood that a reasonable investor would consider it important in deciding how to vote or make an investment decision, or, put another way, if the information would alter the total mix of available information. Guidance, supra note 1, at 11 (quoting Basic Inc. v. Levinson, 485 U.S. 224, 231 (1988) (internal quotations omitted)). 8 Mercer, Climate Change Scenarios Implications for Strategic Asset Allocation at 1, 8, 12, 16 (Feb. 2011) [hereinafter Mercer, Scenarios]. This estimate is calculated by Mercer, using its TIP Framework technology (T), physical impacts (I) , and climate policy (P) a tool for increasing understanding of the potential investment impacts of climate change, the sensitivity of asset classes and geographical regions to these impacts, and the uncertainties that remain. Mercer, Notes for Editors Climate Change Press Release, Key Questions and Answers, 2. What is the TIP
1
Framework? (Feb. 15, 2011), at http://www.mercer.com/articles/1407185#what_is_ TIP_framework?. 9 Guidance, supra note 1, at 10-21. 10 Id. at 21-22. 11 Id. at 21-27. 12 Id. at 11 (quoting Basic Inc. v. Levinson, 485 U.S. 224, 231 (1988) (internal quotations omitted)). 13 Id. at 25. 14 Davis, Polk & Wardwell, LLP, Environmental Disclosure in SEC Filings 2011 Update at 1 (Jan. 11, 2011) (summarizing the six SEC comment letters) [hereinafter DPW, Update]. 15 Paulraj, Mallika, ISS Corporate Services, Disclosing Climate Risks: How 100 Companies Are Responding to New SEC Guidelines at 7 (Oct. 2010). 16 Coburn, Jim, & Donahue, Sean H., & Jayanti, Suriya, CERES, Disclosing Climate Risks & Opportunities in SEC Filings: A Guide for Corporate Executives, Attorneys & Directors at 17 (Feb. 2011). 17 Braduburry, Danny, US firms flouting SEC climate change reporting guidance, BusinessGreen (Mar. 3, 2011), at www.businessgreen.com/bg/news/2030310/firmsflouting-sec-climate-change-reporting-guidance. 18 Mercer, Scenarios, supra note 8, at 4. 19 See, e.g., Guidance, supra note 1, at 17. 20 Id. at 6. 21 Global Reporting Initiative, Sustainability Reporting Framework, at www. globalreporting.org. 22 For a concise and clear explanation of the Global Reporting Initiative and its component parts, see Linehan, Conor, Financial and Corporate Disclosure of Climate Change Risk Its Role and Recent Developments at 19-20 (Apr. 2010). Other reporting mechanisms are also discussed therein. 23 Guidance, supra note 1, at 28. 24 Id. at 27-28. 25 See DPW, Update, supra note 14, at 6 (summarizing the six SEC comment letters). 26 Id. 27 SEC, Comment Letter Green Endeavors, Ltd., July 19, 2010. 28 SEC, Comment Letter Sherwin Williams Co., May 19, 2010; SEC, Comment Letter Chart Industries Inc., June 22, 2010. 6 BIBLIOGRAPHY Coburn, Jim, & Donahue, Sean H., & Jayanti, Suriya, CERES, Disclosing Climate Risks & Opportunities in SEC Filings: A Guide for Corporate Executives, Attorneys & Directors (Feb. 2011), available at www.ceres.org/Page.aspx?pid=592. Davis, Polk & Wardwell, LLP, Environmental Disclosure in SEC Filings 2011 Update (Jan. 11, 2011), available at www.davispolk.com/files/Publication/.../011111_ env_disclosure.pdf.
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Howard, Andrew, et al., Goldman Sachs Sustain, Change Is Coming: A framework for climate change a defining issue of the 21st century (May 21, 2009). Linehan, Conor, Financial and Corporate Disclosure of Climate Change Risk Its Role and Recent Developments (Apr. 2010), available at www.ucc.ie/law/ LawAndEnviromentConference2010/ConorLinehan.pdf. Mercer, Climate Change Scenarios Implications for Strategic Asset Allocation (Feb. 2011), available at www.mercer.com/climatechange. Paulraj, Mallika, ISS Corporate Services, Disclosing Climate Risks: Companies Are Responding to New SEC Guidelines (Oct. 2010). How 100
SEC, Release No. 33-9106, Commission Guidance Regarding Disclosure Relating to Climate Change, 75 Fed. Reg. 6290 (Feb. 8, 2010), available at www.sec.gov/rules/ interp/2010/33-9106.pdf. Stern, Nicholas, The Economics of Climate Change (Cambridge University Press, 2006).
STRENGTHENING CREDIBILITY IN THE EU ETS FOLLOWING SECURITY AND FRAUD RELATED INCIDENTS MACKEN, KEN Programme Manager, Climate Change and Emissions Trading, Environmental Protection Agency, McCumiskey House, Richview, Clonskeagh, Dublin 14, Ireland, k.macken@epa.ie SUMMARY The EU Emissions Trading System is a cornerstone of the European Unions policy to combat climate change and its key tool for reducing industrial greenhouse gas emissions cost-effectively. Being the first and biggest international scheme for the trading of greenhouse gas emission allowances (permits), the Emissions Trading System was launched in 2005 and now covers some 11,000 power stations and industrial plants in 30 countries. A series of security and fraud related incidents, however, has recently brought into question the credibility of the systems operation. This paper will summarise the different problems which have been highlighted in 2010 and 2011. These include one national Governments decision to resell Certified Emissions Reductions that had already been surrendered; Value Added Tax fraud; phishing attacks on user pass-words; and hacking of various accounts including one National Registry. These resulted in the loss of millions of Euro worth of permits. Additionally, the paper will discuss the responses taken by the EU and Member State Authorities to tighten the systems. The conclusion will then focus on possible lessons to be learned from these examples of fraud and fraud attempts on the Electronic Registries of the EU Emissions Trading System. 1 INTRODUCTION The EU Emissions Trading System is the first international trading system for carbon dioxide (CO2) emissions in the world and has been in operation since 2005. Since 1 January 2008, it has applied not only to the 27 EU Member States, but also to the other three members of the European Economic AreaNorway, Iceland and Liechtenstein. It currently covers over 11,000 installations in the energy and industrial sectors, which are collectively responsible for close to half of the EUs emissions of CO2, and 40% of its total greenhouse gas emissions. An amendment to the EU Emissions Trading System Directive was agreed in July 2008 to bring the aviation sector into the system beginning in 2012. The EU Emissions Trading System is a cap and trade system, which caps the overall level of emissions allowed; within that limit it allows participants in the system to buy and sell permits as they require. These permits are the common trading currency at the heart of the system. One permit gives the holder the right to emit
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one tonne of CO2 or the equivalent amount of another greenhouse gas. The cap on the total number of permits creates scarcity in the market.1 At the core of the EU Emissions Trading System lies the on-line registries system composed of the EU ETS registries and the Community Independent Transaction Log. Operational since January 2005, the registries system ensures the accurate accounting of all permits issued under the system and keeps track of the ownership of permits in the same way as a banking system keeps track of the ownership of money. Those permits are held in accounts in electronic registries administered by Member States. Each EU Member State (plus Norway, Iceland and Liechtenstein) has a national Emissions Trading System registry. To participate in the EU Emissions Trading System, a company or a physical person must open an account in one of the registries by applying online at the registry website of the relevant Member State. The registries are online databases that record: the national plan indicating the permits assigned to each Member State; accounts (held by a company or a physical person) to which those permits have been allocated; transfers of permits ("transactions") performed by the account holders; annual verified CO2 emissions from installations; annual reconciliation of permits and verified emissions, where each company must have surrendered enough permits to cover all its emissions. The Community Independent Transaction Log records and authorises all transactions that take place between accounts in the EU Emissions Trading System registries. This verification is done automatically and ensures that any transfer of permits from one account to another is consistent with the Emissions Trading System rules. The Secretariat of the United Nations Framework Convention on Climate Change operates a central hub, called the International Transaction Log, which connects the national registries to the log.2 A number of fraudulent incidents concerning transfer of permits on the European Registries, however, has resulted in a number of criminal prosecutions to date, with potentially more to follow, and has had a serious impact on the carbon markets. 2 RECYCLED CERTIFIED EMISSION REDUCTIONS
Early in 2010, in an attempt to raise revenue, the Hungarian Government sold permits known as Certified Emission Reductions (issued by the UN Clean Development Mechanism Board) that had already been surrendered by companies to meet their Emissions Trading System compliance requirements. The Government claimed that it sold the credits on condition that they must not be resold in the EU Emissions Trading System. However, 10 trading houses found they had some of them in their accountsafter they bought Certified Emission Reductions on theParis-based bourse Bluenext. The news upset the carbon market and three exchanges reacted by temporarily ceasing all Certified Emission Reductions trade. The EU Commission moved to safeguard the European Trading System by subsequently banning such
reuse, but how the credits came to be sold on Bluenext remains unclear.3 While no suggestion of fraud has been levelled at the Hungarian authorities, nor was the security of the European Trading System registry system ever in doubt, the reputation of the EU European Trading System was seen to be vulnerable to even such indirect impacts. 3 VALUE ADDED TAX (VAT) FRAUD
VAT fraud is a recurring problem for national tax authorities and has in the past been particularly associated with low volume, high value goods such as mobile phones that can readily be moved across international borders. It is hardly surprising then when electronic allowances, in lots worth up to millions of Euro and capable of being transferred across multiple borders in a matter of seconds, attracted criminal attention. The fraud works in a number of variations, but in its simplest form involves person A in one country transferring permits to person B in another country. Such cross border transactions are VAT free. However if person B now sells to person C who is also a resident in the second country, then C must pay VAT to B who is legally required to remit this to the tax authorities. The fraud occurs when B simply disappears with the money. This fraud first appeared in published reports in early 2009 and gathered pace in 2010. It has been estimated4 that in 2009 EU countries have lost a combined total in excess of 5 billion (for example Germany is reported to have lost 850 million; Netherlands 300 million). The solution has been to reverse the legal requirement to pay VAT, so that it is levied on the seller rather than the buyer. While most of the EU Member States have enacted legislation to this effect, some States still have to do so - even though the EU Commission drew Member States attention to a vulnerability in this area as early as September 29, 2009.5 Again this fraud did not raise any questions about the integrity of the Registry system, but it further emphasised the fragile nature of market confidence in the regulatory structures. 4 PHISHING ATTACKS
Phishing is a process of sending spurious emails to account holders asking them to enter their registry password on what purports to be an official site. A number of these attacks have been carried out in which thousands of account holders are hit with the same request. All the perpetrators require is a few compliant replies and they can then enter the associated Registry account and move permits rapidly through a number of cover accounts and ultimately onto the market. Most Registry accounts historically required only one account representative to log in and authorise a transaction, but a few (including Ireland) offered the facility for a second approval to be carried out by a different person (Alternative Authorised Representative).To require dual approval presents a useful protection against such attacks because no permits can be removed unless both account representatives are taken in.
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HACKING ATTACKS
Hacking attacks are much more sophisticated than phishing. In one example on a national registry, the hackers obtained access at a high level resulting in nearly half a million permits being removed without the proper authority from a reserve account. Again these were moved rapidly through a series of accounts in a number of countries. As can be seen from Table 1 below, a number of these phishing and hacking attempts have occurred resulting in considerable volumes of permits taken. It is estimated that these were worth around 50 million (in an EU Carbon market valued at around 72 billion in 2010). Table 1. Examples of Permits Lost to Phishing and Hacking Attacks
Date Published6 Number reported taken 1.6m 475,000 Company Registry Location Romania Czech Republic Additional Information 0.6m traced 09/03/11 475,000 Czech Gov. loan 21/03/11 225,001 returned from Estonia 19 & 24 January 2011 488,141 Austrian Government Account Austria 21/03/11 200,00 returned from Sweden
30 November 2010 19 January 2011
Holcim Blackstone
19 January 2011 21 January 2011
EU suspends registry transfers for all 27 Member States 1.3m 6 Accounts Czech Republic Greece Italy Germany Permits were taken in early 2010 09/03/11 0.7m Czech Gov. loan of permits
8 February 2011 8 & 14 February 2011 10 March 2011
300,000 267,991 232,500
Halyps TCEI Paper Company
LEGAL ISSUES
The EU Registry system was taken off-line on 19th January 2010, and the EU Commission required each Member State to prove that they had undertaken a number of additional security checks and measures before it allowed any national registry to reopen. Aside from the issues around physical security, however, a key legal issue arose what was the legal status of those permits stolen or allegedly stolen. Even though the registry is a closed system with each permit having a unique identifying number, simply being able to trace where any permit might be was not sufficient to ensure it could be recovered. It would appear that the legal status of these electronic permits had never been fully ascertained. To compound matters it seems that the status may be different in different countries depending on national legislation. In some jurisdictions it appears that a buyer beware situation may prevail, meaning that if an account holder is found in possession of stolen permits, then they must be returned to the true owner (presumably under a court order if necessary) and that person who was in possession is at a loss. In other jurisdictions, however, the opposite may apply if the person in possession can demonstrate that he or she bought the permits in good faith, then it may be legitimate to keep them with the original owner taking the loss (and presumably the thieves are the ones who gain). The EU Commission had issued a statement on December 3, 2010 confirming that such allowances continue to represent legally valid compliance instruments i.e. they could still be used by the latest holder to satisfy annual surrender requirements whether they were allegedly stolen or not! 7 EU TAKES ACTION
On February 23rd, 2011 the EU Commission outlined a series of actions it was asking Member States to take in order to enhance Registry security and combat fraud.7 These included a number of additional, short-term measures: regular reviews and updates of registry security plans; a review and strengthening of policies concerning the opening of registry accounts, building on best practices, and a risk based review of existing registry account holders; facilitation of information exchange between Member States regarding suspicious requests to open an account; better training for registry users; better use of options in existing EU legislation to prevent VAT fraud. (Not all Member States had yet eliminated the risk of VAT fraud despite the existence of enabling legislation at the EU level to do so). In addition to these short term measures, the Commission stated that it would: propose a modification of the EU Registry Regulation so as to give a stronger legal basis for measures to protect the integrity of the carbon market and uphold the reputation of the EU Emissions Trading System;
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intensify work to make the European carbon market subject to appropriate financial markets legislation by holding a public consultation on enhanced carbon market oversight as announced on 21 December 2010; pursue options for addressing the issue of stolen allowances (permits) with Member States and stakeholders; increase its dialogue with relevant stakeholders on key implementation issues concerning the EU European Trading System. 8 CONCLUSION The events described in this paper have severely shaken the credibility of the EU Emissions Trading System as a cornerstone project of the EUs policy on Climate Change. The Commission and the Member States have collectively demonstrated a lack of foresight in a number of regards: not clearly defining the legal nature of a permit at the outset and not clarifying the legal position in regard to stolen permits; not anticipating that an electronic registry system holding annual resources worth in excess of 50 billion might be a target for cybercrime; not realising that such a registry is only as strong as its weakest link. Some of the key administrations were also slow in closing the VAT loophole and in taking action once the earliest cyber-criminal attempts were spotted. In designing the new Auctioning Regulation8 for the next European Trading System phase (from 2013 on), much greater attention has been paid to Know Your Customer requirements as well as to much tighter control of the financial instruments involved. In various amendments to the Registry Regulations9 much tighter security controls have already been promulgated and further improvements are envisaged. It is hoped that these steps will succeed and that credibility will be restored though some are already wondering whether money laundering will be the next! 9 REFERENCES Questions and Answers on the Revised EU Emissions Trading System, http:// ec.europa.eu/clima/faq/ets/index_en.htm. 2 Registries, http://ec.europa.eu/clima/policies/ets/registries_en.htm. 3 Point Carbon - 14 May 2010 quoting Hungarian Government Report http://www. kvvm.hu/index.php?pid=1&sid=1&hid=2640. 4 Point Carbon - 02 March 2011 quoting Interpol. 5 Commission MEMO/09/423, Brussels, 29 September 2009. 6 Point Carbon various reports on dates as indicated in Table. 7 Commission IP/11/219, Brussels, 23 February 2011. 8 Commission Regulation (EU) No 1031/2010 of 12 November 2010. 9 Commission Regulation (EC) No 916/2007 of 31 July 2007.
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WHAT LESSONS CAN BE TAKEN FOR THE FUTURE IMPLEMENTATION OF CLIMATE AGREEMENTS? MULI, DOROTHY UNESCO-IHE Institute for Water Education, Delft, the Netherlands, dorohmully@ yahoo.com SUMMARY The implementation of climate change agreements can be viewed at different scales which include international, regional and national levels. Despite the several international negotiations, implementation of these agreements is seen as being weak at global level. Different measures to reduce greenhouse gas can be undertaken at these different levels; however studies show that enforcement is important to ensure that countries implement the climate agreements in order to meet the treaty targets. To a greater extent the enforcement can be well established at the national level. This paper gives the analysis of the lessons that can be learnt from the climate agreements and thus they can be used to improve implementation of the future agreements on climate change. 1 INTRODUCTION International agreements on climate change are necessary due to the global nature of the problems caused by climate change and the fact that multiple countries contribute to the global greenhouse gas emissions. The United Nations Framework Convention on Climate Change (UNFCCC) and the Kyoto protocol were established as a means of providing solution to the long-term global environmental problem with the aim to have an international response strategy to combat the harmful impacts of climate change. The objective of the Convention is stabilization of greenhouse gas concentration in the atmosphere at a level that would prevent dangerous anthropogenic interference with climate system (IPCC, 2007). The Kyoto Protocol sets binding quantified targets for Annex I parties and the European Community for reducing greenhouse gases emissions. The countries are required to reduce their overall emissions of greenhouse gases by at least 5.2 per cent below 1990 levels in the commitment period 2008 to 2012. These agreements are only first steps towards the implementation of an international response strategy to combat climate change. Literature and the ongoing discussions by the scientists and scholars show that at global scale the implementation of these agreements is weak and the Kyoto Protocol will not achieve its obligations by the end of the commitment period ending 2012. What then should be done to avoid this failure in the future? And what lessons can be taken for the implementation of the future climate agreements? This discussion paper focuses on implementation measures being undertaken at international and national levels and the lessons that can be learnt to improve on the future climate agreements.
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IMPLEMENTATION AND COMPLIANCE WITH CLIMATE AGREEMENTS 2.1 International
International climate agreements are signed by countries and then they are required to be translated into the national policies of the countries for implementation purposes. There appears to be a gap between the signing and ratification of the international agreements and the countries implementation and compliance with these multilateral environmental agreements. Spector and Korula (1993) point out that most scholars conceive the outcome of negotiations not as the agreements themselves but as the effectiveness of those agreements; whether the agreements are implemented at all or do they produce the intended impacts on the problem area that initiated negotiations. International negotiations act as one of the motivating factors towards achieving implementation. Capacity strengthening and moral persuasion among the treaty parties encourages the countries to take their Kyoto Protocol obligations. The Compliance Committee of the Kyoto Protocol is responsible for facilitating, promoting and enforcing compliance with the commitments of the Protocol. The Facilitative branch of the Committee is required to assist and support parties in implementing their commitments. Across the globe some countries like the United Kingdom and Germany are reported to be successfully implementing climate agreements by reducing their greenhouse gas emissions. However these agreements on climate change are faced with the challenge of lack of effectiveness in the implementation and compliance (Gupta et al 2003, Hovi, 2004, Jinje, 2009). The Parties to the agreements are responsible for the implementation of their obligations. Others responsible for the implementation are the international institutions such as the Conference of Parties, Meeting of Parties, Compliance Committee, implementation Committee and Non-State actors for monitoring, creating awareness and capacity building. The level of implementation of climate policies can be negatively influenced mainly by impacts of group interests, corruption and poor governance. Factors that slow down implementation of climate change vary from one country to another due to the difference in the state of the countries. UNEP defines Compliance mechanisms as systems adopted under an agreement to promote compliance as well as facilitate implementation. Generally, non-compliance can be a challenging issue to address in international agreements. This is because countries sign the agreements voluntarily and are free to withdraw anytime in accordance with the specified procedures for withdrawal in the particular agreement (UNEP, 2006). In most cases efforts are made to bring the non-complying parties to compliance. Compliance mechanisms of international agreements use different approaches: for instance, parties are encouraged to self-report incidences of noncompliance, especially when lack of capacity is the cause and assistance may be in offered. This usually applies to the developing countries. Under the Kyoto Protocol a two branched Compliance Committee was created during COP-7 in Marrakesh to
review and assess instances of non-compliance and to facilitate capacity assistance to parties having difficulties in implementation. In addition, UNEP (2006) explains other compliance approaches which include: Performance review information, non-compliance response measures and multilateral non-compliance procedures. However at this international level the Enforcement Branch of the Compliance Committee has no powers to enforce compliance among the parties. Although there is provision for compliance mechanisms at international level, compliance measures can also be effective at national level. Due to the principle of national sovereignty it is difficult enforce at the international level. However the international community thought cooperation can provide both technical and financial resources to strengthen monitoring, reporting and verification. This would reduce the incidences of countries cheating on the emission data. One of the challenges in ensuring effective implementation and compliance of international environmental agreements is that a complying State cannot confront a noncompliant State because this can lead to conflict among the States. In this case persuasion of the non-complying State may promote compliance. In summary establishing enforcement at the international is quite difficult, thus enforcement at national level can play a significant role in achieving the treaty obligations. In the future climate agreements the international community should play part in international cooperation and provision of incentives to strengthen enforcement at national level. 2.2 Regional Level
Regional cooperation motivates the member states to achieve successful implementation by capacity strengthening and setting up in regional targets. Additionally enforcement can be applied at this level by ensuring that there are common procedures for all the member states that are well monitored. European Union initiatives to address climate change issue have a great impact to ensuring that all the Member States comply with the EU policies on climate change. The entire EU as a region has set a good example of a regional level network in the compliance and enforcement of climate change commitments. According to Kulessa (2007) the EU claims to be a front runner in climate policies and a leader in international climate negotiations. The EU has set its goals and objectives with the aim of reducing emissions to combat global warming and also encouraging other States to do so. Within the Kyoto Protocol of the UNFCCC, the EU committed itself to a reduction of greenhouse gas emission by 8% by 2012 compared to 1990. In March 2007, the EU updated its target in that by 2020, it will lower greenhouse gas emissions by 30% compared to 1990 levels, provided that other countries commit themselves to comparable emission reduction. However, if the other countries do not make corresponding concessions in international climate negotiations, the EU committed itself to reduce its greenhouse gas emissions by at least 20% by the year 2020.
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Kulessa (2007) further explains that the EUs limited legislative and enforcement authority restricts its leeway to centrally impose climate protection targets and to implement mitigation measures involving more than one nation. Most of the EU member States have also put in place its own domestic actions that build on the European Climate Change Programme measures. According to the European Environment Agency, the EU has shown substantial progress in the compliance with climate policies. The experience on the compliance with and enforcement of emission trading system rules in the EU has been encouraging. Further focus will be on guidelines for monitoring and reporting emissions and third-party verification of emission reports. Probably this will help prevent cheating in reporting the emissions data by countries. The EU is continuously pushing for global legally binding agreement to deal with fast growing problem of climate change (European Community, 2010). In summary regional cooperation boosts implementation through the use of instruments such as the European Emissions Trading Scheme (EU-ETS) and the capacity strengthening among the member states. However, the challenge of transparency and accuracy in emissions trading still applies. Perhaps verification of the gas emission data should be done by international organizations outside the cooperation. This means that the national governments and international nongovernmental organizations should work towards achieving transparency in the verification of greenhouse gas emissions. 2.3 National Level
According to UNEP (2006), a State is said to implement an international agreement at the national level when it adopts the appropriate domestic measures for the purpose of meeting its obligations under the international treaty requirement. The measures can include enacting legislation, formulating new policies or reframing the existing ones or allocating resources. . Compliance and enforcement measures are thus essential in implementation process at national level. The success or failure of implementation and the level of compliance of an international climate agreement depends on how the treaty is domestically implemented by the parties (Nikitina, 2001). She further points out that how the national governments adopt the international commitments into the national policies is the core problem of implementation, compliance and effectiveness of international environmental regimes. If multiple countries achieve effective implementation at national level then this translates to successful implementation of the climate agreements at the international level. Sovacool and Brown (2009) point out that local thinking should be coupled with national and international scales of action in order to achieve the targets of climate policies. However the question of at what level the agreements should be implemented still remains debatable. At local level the authorities and institutions have many tools at their disposal to implement environmental policies, starting at individual level hence the whole society can be mobilised towards taking actions to
maintain environmental integrity. This is because local governments control most of the factors that are related to environment such as land use decisions, residential and commercial regulations, transit options and solid waste disposal (Kousky and Schneider, 2003). It is important to transpose international agreements into national policies and programmes. This is because at national level enforcement measures like the use of regulative instruments can be achieved within the borders of the country. For instance enforcement is possible at national level whereby counties can have in place binding agreements and legislation as well as systems of compliance monitoring and enforcement within the borders. The Netherlands is using the existing legal arrangements in the Environment Management Act and the Housing Act to cut down emissions. At national level countries are required to have in place implementation strategies that will help them meet their targets as per the treaty obligations. However a question arises, do the respective countries have these strategies in place? And is there a standard strategy or checklist that countries should adopt to achieve success in implementation of these multilateral environmental agreements? What strategies can be said to be effective in delivering the required results? In reality some countries such as the United Kingdom and the Netherlands indeed have implementation strategies and they are working towards meeting their obligations however to achieve the targets of the climate agreements globally the emitting countries need to establish feasible implementation strategies. Implementation strategies for climate agreements countries should design implementation strategies that suit their governance, political, economic, geographical and cultural settings. The strategies should be developed by incorporating the requirements of the UNFCCC and the Kyoto Protocol with the aim of meeting the set targets of greenhouse gas emission reduction. A good example is the implementation strategy of the United Kingdom to reduce the greenhouse gas emissions that was designed under the basis of their domestic targets and incorporated the Kyoto protocol requirements and the EU climate policies. So far UK is listed as one of the successful countries in the world in implementing climate agreements. According to European Environment Agency (EEA, 2010, HM Government, 2006) the UK is well on track towards meeting its Kyoto Protocol targets. In 2010 provisional results showed that UK greenhouse gas emissions had reduced by 11% on 1990 levels. This means that the implementation strategy adopted by UK is delivering substantial results in cutting down the emissions. The UKs implementation programme focuses on measures that use integrated approach of 4Es (Enable, Encourage, Exemplify and Engage). Through networking countries can share knowledge on good practices aimed at achieving climate agreement targets of reducing greenhouse gas emissions. 3 CONCLUSION In conclusion, effective implementation of climate agreements can be achieved by providing compliance and enforcement measures at the national level which
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in turn translates to successful implementation of the agreements internationally. Implementation and compliance can be better managed at the national level than at the international level due to the differences in countries political, economic, social and cultural aspects. Cooperation and provision for incentives at international and regional levels in the future climate agreements will help in achieving better implementation of these agreements. Although EU is an exceptional case this regional cooperation serves as one of the motivating factors for the EU member states to achieve success in the compliance with climate agreements, therefore other regions in the world can learn good practices from the EU and use this in facilitating implementation and compliance. Should more regional networks be established to promote compliance and facilitate implementation? Probably, to achieve a successful implementation and compliance of climate agreements there should be agreed criteria by all the parties to the climate agreements to judge and track the progress of the implementation process. This will help in identifying the bottlenecks in the process and solve them if possible. Perhaps countries should come together and agree on criteria that will be followed as a checklist for tracking the progress of implementation of environmental agreements. Strengthening monitoring, reporting and verification of emissions at regional and international is crucial to ensure transparency and accuracy thus avoiding cheating by the countries. The big question still remains, what should be done to ensure the parties to these agreements adopt effective national implementation strategies which will lead to substantial results in reducing greenhouse gas emission in the future? 4 REFERENCES EEA (2010) Climate Change Mitigation (United Kingdom). http://www.eea.europa. eu/soer/countries/uk/soertopic_view?topic=climate%20change. Cited February 2011. European Commission (2007), Combating Climate Change: The EU leads the way. Brussels. Gupta J., Olsthoorn X, Rotenberg E (2003), The role of scientific uncertainty in compliance with the Kyoto Protocol to the Climate Change Convention. Environmental Science & Policy 6: 475-486. HM Government (2006) Climate Change: The UK Programme 2006. Norwich. Hovi J., Areklett I (2004), Enforcing the climate regime: Game theory and Marrakesh Accords in International Environmental Agreements. Politics, Law and Economics 4: 1-26.
IPCC (2007) Fourth Assessment Report of the International Panel for Climate Change, United Kingdom and New York. Jinjie W., (2009), Enviromnental compliance: The good, the bad, and the super green. Environmental Management 90: 3363-3381. Kulessa M.E., (2007), The Climate of the European Union. Setting Efficient EU Climate Policy Targets: Mission Possible?. Kousky C., Schneider S.H., (2003), Global climate policy: will cities lead the way? Climate Policy 3: 359-372. Nikitina E., (2001), Russia: climate policy formation and implementation during the 1990s. Climate Policy 1: 289-308. Sovacool B.K., Brown MA (2009), Scaling the policy response to climate change. Policy and Society 27: 317-328. Spector B.I., Korula AR (1993), Problems of ratifying international environmental agreements: Overcoming initial obstacles in the post-agreement negotiation process. Global Environmental Change 3: 369-381. UNEP (2006) Manual on Compliance with and Enforcement of Multilateral Environmental Agreements, Nairobi.
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TRACK C: PROVEN COMPLIANCE AND ENFORCEMENT STRATEGIES

CONTROL OF MAJOR ACCIDENT HAZARDS: THE JOINT ENFORCEMENT SYSTEM IN THE FLEMISH REGION (BELGIUM) BAERT, ROBERT1, DELVAUX, INGE2 and BIESEMANS WILFRIED Dr. Sc., Inspector-general of the Environmental Inspectorate Division and ViceChair of the Flemish High Council for the Enforcement of Environmental Law, Koning Albert II-laan 20 bus 8, 1000 Brussels, Belgium, robert.baert@lne.vlaanderen. be.
1
Dr. Sc., Head of the Supervision of Major Hazard Companies Service, Environmental Inspectorate Division and substitute-member of the Flemish High Council for the Enforcement of Environmental Law, Koning Albert II-laan 20 bus 8, 1000 Brussels, Belgium, inge.delvaux@lne.vlaanderen.be.
2
Ir., Environmental Inspector, Supervision of Major Hazard Companies Service, Environmental Inspectorate Division, Koning Albert II-laan 20 bus 8, 1000 Brussels, Belgium, wilfried.biesemans@lne.vlaanderen.be. SUMMARY In the Flemish region of Belgium, the Environmental Inspectorate Division is in charge for the enforcement of the environmental health legislation. It is the Divisions explicit choice to enforce in a proactive and co-ordinated way, in cooperation with other enforcement authorities. One important legislative tool is the Seveso II Directive, which was developed to guarantee a high level of protection for man and the environment with regard to major accidents involving hazardous substances. The enforcement provisions of the Directive are implemented by the regional environmental inspectorate and the federal inspectorate of occupational welfare. The most important task of the inspection team is the development of an inspection system that can assess whether all necessary and sufficient measures are taken to prevent major accidents and to limit the consequences for man and the environment. Over the years both the number of inspections and the percentage of the establishments inspected increased. The system continues to find that many operators are unable to implement proper inspection and maintenance programs and to perform adequate risk studies.
THE ENVIRONMENTAL INSPECTORATE DIVISION
Belgium, a founding member of the European Union (EU), is a federal state with communities (the Flemish, French and German-speaking communities) and regions (the Flemish and Walloon regions and the Brussels-Capital region), which each have their own government and parliament. The most northern Flemish region is densely populated and highly industrialized, with concentrations in the harbours of Antwerp and Ghent and along the Albert Canal. The Flemish government since April 2006 is organized according to 13 policy domains. The organiational structure of a policy area consists of a department, responsible for the policy formulation and evaluation and agencies that are executive bodies. The Environmental Inspectorate Division forms part of the department of the policy area Environment, Nature and Energy. In the Flemish region the Environmental Inspectorate Division is the most important enforcement body for environmental health legislation, including the legislation concerning the control of major accidents hazards (COMAH). Three strategic objectives steer the core activities of the Environmental Inspectorate Division: to strengthen the enforcement of the environmental health legislation for a qualitative environment; to intensify active interaction with environmental (enforcement) actors; to strengthen expertise. The most important core activity is planned and systematic inspection and taking administrative measures. The Environmental Inspectorate Division tackles its vast mission and the multitude and complexity of legislation with a double internal structure. In addition to the traditional vertical structure, a horizontal structure in the form of working groups per environmental compartment was established. In June 2006 a new special service was founded: the Supervision of Major Hazards Companies Service, responsible for the COMAH enforcement. It is the Environmental Inspectorate Divisions explicit choice to enforce in a proactive and co-ordinated way, in cooperation with other enforcement authorities. Every year an Environmental Inspection Plan is drawn up describing all planned efforts in relation to the core-activity planned and systematic inspection and taking administrative measures. The plan distinguishes specific enforcement campaigns, routine inspections, reactive inspections and follow-up inspections. All traditional environmental topics are covered. Extra efforts are made in the fields of COMAH, Integrated Pollution Prevention and Control and waste chain enforcement. In this way the Environmental Inspectorate Division brings its approach in line with the EU requirements on the inspection of major hazard companies and of companies with serious environmental impact.
THE COMAH ENFORCEMENT SYSTEM 2.1 Control Of Major Accidents Hazards: Implementation of an Intergovernmental Cooperation Agreement
On 26 June 2001, there came into force the Cooperation Agreement of 21 June 1999 between the Federal State and the regional governments concerning the control of major-accident hazards involving dangerous substances (COMAH CA). This Agreement represents the transposition of the EU Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances, the so-called Seveso II Directive. It comprises the obligations of the operators and the duties of and the cooperation between the responsible federal and regional authorities. The purpose of the COMAH CA is to guarantee a high level of protection for man and the environment with regard to major accidents involving hazardous substances. It promotes an integrated approach of the safety of man and environment and requires that operators (1) take all measures necessary to prevent major accidents and limit their consequences for man and the environment (general care duty) and (2) to prove to the competent inspection authorities that they have taken all these measures (demonstration duty). 2.2 Inspection Services and Inspection Team The COMAH CA lays down essential requirements for inspections by governments. Inspection teams are responsible for the implementation of these inspection provisions in a region. These inspection teams consist of two responsible inspection services: the regional environmental inspectorate and the federal inspectorate of occupational welfare. For the Flemish region the Supervision of Major Hazard Companies Service of the Environmental Inspectorate Division is the responsible environmental inspection service. The most important competent federal inspection service is the Division for the Supervision of Chemical Risks. The most important assignment of the inspection team is the development of an inspection system, which meets the set requirements: an inspection program for all Seveso establishments, a report on each inspection and feedback to the management. The inspection teams are also responsible for accident investigation, submitting accident reports to the European Commission. Moreover, in case the inspectors assess the measures taken by an operator to prevent and mitigate major accidents to be seriously deficient, they have to forward an advice to the licensing authorities to suspend or revoke the operating license. 2.3 Inspection System Versus Enforcement System
The COMAH CA requires an inspection system. It is the Supervision of Major Hazard Companies Services conviction however that inspection is not enough to reach compliance. Enforcement is needed: inspection and taking administrative mea-
sures. And indeed the COMAH CA grants inspection and enforcement rights to the inspectors, including: right of entry, right of investigation, right to give recommendations, exhortations and orders, right to draw up official reports. Therefore the Supervision of Major Hazard Companies Service established an enforcement system rather than an inspection system. As the system also has to account for the necessary follow up inspections, the result is a cyclic system. Figure 1 below illustrates the most important processes of the COMAH Enforcement System. Figure 1: The COMAH Enforcement System
IDENTIFICATION & PROGRAMMATION
CONTROL
(MEASURES)
ENFORCEMENT
INSPECTION
EVALUATION & REPORTING
The main goal of the system is to guarantee that all Seveso establishments are inspected with appropriate frequency and with appropriate inspection tools in order to reach a high level of protection for man and the environment. In the following sections more explanation is given for the different elements of the enforcement system. 2.4 Identification In order include all Seveso establishments in the inspection programme; a good identification system is necessary. The scope of the COMAH CA is linked to the actual or anticipated presence of dangerous substances in quantities equal to or in excess of two sets of threshold values or tiers. Facilities where dangerous substances are present below the lower tiers do not fall within the scope of the COMAH CA. The establishments that fall within the scope, the so-called Seveso establishments, are classified as either lower or upper tier establishments. All Seveso establishments are subject to a notification requirement, general care and demonstration duties, and obligations concerning a major accident prevention policy and internal emergency planning. Upper tier establishments must satisfy a number of additional requirements, such as safety reports and safety management systems.
Given its high level of industrialisation, Flanders has a large and varying number of Seveso companies. Whether an establishment is subject to COMAH regulation can change depending on changes in company structure or in the dangerous substances present at the facility. In addition, changes to chemical classification schemes (e.g., 2011 Globally Harmonized System of Classification and Labeling of Chemicals), have increased the number of Seveso facilities. As of December 2010, some 270 Seveso establishments were identified in the Flemish region. 2.5 Programming According to the COMAH CA, the inspection team must draw up and regularly update an inspection programme for all Seveso establishments. The programme should indicate (1) the type of the planned examination, the foreseen inspection method and the anticipated periodicity, and (2) the inspection service charged with the execution. Both joint inspections and inspection by a single inspection service are possible. The inspections should be aimed at a high level of protection of man and the environment, which implies that the Seveso establishments are inspected with the appropriate frequency and the necessary profundity. Moreover the available inspection capacity should be applied as efficient and effective as possible. 2.5.1 Frequency of the Inspections The COMAH CA requires yearly on site inspection for upper tier establishments. However, there are too many upper tier establishments to meet this goal. Therefore the inspection program for both upper and lower tier establishments is established based upon a systematic appraisal of major-accident hazards. This entails a ranking on the basis of objective data such as the properties and quantities present of the dangerous substances. Facilities with the highest hazard indices are inspected yearly, those with mid-range indices are inspected every two years, and facilities with the lowest hazard indices are inspected every three years. The inspectors can increase this basic inspection frequency in function of on the size and complexity of the establishment, past inspection results, changes in the establishment and accidents. 2.5.2 Goal and Scope of the Inspections According to the COMAH CA, the inspections should be sufficient for a planned and systematic examination of the systems being employed at the establishment, whether of a technical, organizational or managerial nature, so as to ensure in particular that: the operator can demonstrate that he has taken appropriate measures, in connection with the various activities involved in the establishment, to prevent major accidents,
the operator can demonstrate that he has provided appropriate means for limiting the consequences of major accidents, on site and off site, and the data and information contained in the safety report adequately reflects the conditions in the establishment. In other words, through the examination of the internal technical, organizational and management systems the inspections should give the total picture of the COMAH measures at the establishments. It is, however, impossible to get that total picture during one inspection. Therefore the COMAH Enforcement System delimits the goal and scope of the inspections. Since the system is cyclic, throughout the years the picture becomes more and more complete. In order to determine the goal and scope of the inspections inspection domains are defined for the establishments. These inspection domains structure the different aspects of importance for the control of major accidents hazards: determination of the Seveso status/initial inspection; process installation(s); operational staff; dangerous works; emergency planning; incidents and accidents; major accidents prevention policy. 2.5.3 Inspection Programme Each year the federal and regional inspection services work together to update the inspection program, keeping the basic frequency in mind. The inspection program per establishment gives an oversight of the past and future inspections in terms of the inspection domains. When establishing the program for an establishment the inspectors take account of former inspections, the environmental and safety technical history of the facility, and other available information. Throughout the years all internal systems of the establishments must be addressed, and particular attention is devoted to installations representing the greatest risks, internal systems which perform inadequately or insufficiently, and operators with a poor sense of responsibility. An important feature of the inspection program is its dynamic character: the program is adjusted in consideration of current events. 2.6 Inspection Inspections must be conducted in a manner that allows systematic examination of the technical, organizational and managerial systems of the establishments. For the inspection to be systematic, appropriate inspection tools are only those that will allow the inspectors to evaluate whether the operator has adequate systems in place to control the facilitys major accident hazards.
The federal and regional inspection services work together in developing these inspection tools, which are tailored to the inspection domains. For the inspection domain Process installation there are inspection tools based on a generic risk study for common installations and tools that examine specific measures in great detail. Other inspection tools allow for the assessment of the organisational and managerial activities and structures. It is important to note that the inspection tools give guidance to the inspectors, including suggestions for inspection topics and questions. Inspections should also verify measures documented in facility safety report, risk studies, etc. The COMAH Enforcement System also allows for follow up inspection for all inspection domains. 2.7 Evaluation and Reporting
Since the COMAH CA is goal setting legislation and, as such, does not contain detailed, technical provisions, the operators themselves have to determine the necessary measures, whether of a technical, organizational or managerial nature. The goal of the COMAH inspections is to assess whether the operators can demonstrate that they have taken the appropriate preventive and mitigating measures in order to reach a high level of protection for man and the environment. To determine whether for a given risk a measure is sufficient to reach the requested high level of protection, the inspection team uses the following general criteria: the measure is required by legislation; the measure follows from the application of good practices (standards, codes of good practice, lessons learnt from accidents); the measure follows from the application of widely available techniques and the cost is not excessive with regard to the acquired risk reduction; the measure is required by site specificities based on risk studies; the measure is effective, reliable, independent. The inspection tools are based on this concept: they contain measures the inspection services consider necessary to obtain a high level of protection. The inspection tools arent extra legislation though: the operators can deviate from the measures suggested. In that case however they have to prove that the alternative measures offer an equally high level of protection against the risk concerned. As the COMAH CA requires the inspectors draft a report following each inspection containing the goal and scope of the inspection, the key findings and the evaluation of the measures. 2.8 Control (Taking Administrative Measures)
As stated before the COMAH CA entails enforcement: besides inspection corrective administrative instruments and an administrative sanction are included.
As a rule following the inspections the operators receive an enforcement letter including the inspection report and recommendations, exhortations or, in rare cases, orders. In the COMAH Enforcement System: recommendations entail giving operators specific advice regarding improvement of risk control measures; exhortations urge operators to correct non-conforming situations; orders are administrative acts that mandate operators to correct non-conforming hazardous situations. Because the COMAH CA is goal setting legislation, exhortations cannot entail concrete measures. For the exhortations to achieve the necessary precision, inspectors will urge the operators for detailed action plans. In case of seriously deficient preventive and mitigating measures an administrative sanction has to be taken: the prohibition of use. The role of the inspectors is, in these cases, limited to forwarding an advice to the licensing authorities to suspend or revoke the operating license. It is important to note that the suspension and revocation of a license are administrative sanctions only, not safety measures. Under the general Flemish Parliament Act on Environmental Enforcement, however, inspectors of the Supervision of Major Hazard Companies Service have the power to take safety measures in order to eliminate, limit or stabilise significant risks for man or the environment. Whether or not a risk is significant depends on the specific situation and has to be determined case by case. The safety measures can entail all measures the inspectors see fit to control the risk concerned. They can for instance mandate the shut-down of certain installations or order the implementation of extra technical control measures. 3 THE COMAH ENFORCEMENT SYSTEM IN PRACTICE 3.1 Implementation of the Inspection Programme
In 2010 inspectors of the Supervision of Major Hazard Companies Service performed 355 inspections in 242 establishments. The percentage of inspected establishments rose from 45% to 90% for the upper tier establishments and from 37% to 81% for the lower tier establishments, from 2001 to present. This includes a very large number of follow up inspections. The Supervision of Major Hazard Companies Service attaches great importance to the inspection of organizational systems since analysis of the major accidents reported to the European Commission has shown that the majority of these accidents were due to organizational and managerial shortcomings. Good organizational and managerial systems are indispensable to control major accident hazards. Since 2008 COMAH inspections have emphasised the assessment of the effective implementation of the
elements of the safety management system of the establishments. In 2010 for instance the safety management system elements concerning the internal emergency plans, the risk studies, inspection and maintenance, and incident investigation got ample attention: over one third of the inspections addressed at least one of these topics. 3.2 Persistent Shortcomings
Some shortcomings appear to be widespread and persistent. Warehouse inspections consistently demonstrate inventory control problems. Many operators have been unable to develop a registration and acceptation policy, which ensures that accepted quantities of hazardous substances never exceed the quantities the facility is licensed to store. Inventories are too frequently incomplete. For warehouse risk control, it is important that the inventory of dangerous substances is up to date and the actual situation mirrors the licensed. Many operators have repeatedly demonstrated problems with periodic inspections of dangerous substance storage tanks. Periodic inspections are compulsory, yet inspectors continue to find tanks in use without a valid test certificate. In a number of cases no inspection had been performed. Operators had also failed to correct shortcomings marked during independent testing. The most recent enforcement cycle did find improvement however. Supervision of Major Hazard Companies Service review finds that many operators are still unable to systematically identify, analyze and evaluate the major accident hazards at their establishments. In addition, many facility action plans fail to either specify or meet implementation deadlines. 3.3 Case Study: Prohibition of Use for a Refinery
In 2005 the inspection team submitted a motivated advice to the licensing authorities urging suspension of the license for an Antwerp refinery. This company had demonstrated poor hazard control since 1998 during inspections by the Supervision of Major Hazard Companies Service and the Division of the Supervision of Chemical Risks. Multiple infringements of administrative, technical and organizational nature were listed in official reports to the Public Prosecutor. Inspectors had issued numerous exhortations to the operator to take the necessary corrective action. During this time there were constant changes to the facilitys management and staff. In 2005 the inspection team conducted an in-depth examination of the safety management system. The 5 days inspection identified 139 safety management system shortcomings. These shortcomings concerned both the management of the procedures and the actual implementation the safety management system. Inspectors documented problems with: t he systematic identification of major accident hazards, and evaluation of the related risks; the operational procedures and working instructions that ensure the safe operation of the installations;
the design of new installations and processes; the management of change; the periodic inspection and maintenance of the installations; the internal emergency planning; the internal audits and management review of the safety management system.
The inspection team concluded that the measures taken at the establishment were seriously deficient. Official reports were drawn up and forwarded to the Public Prosecutor and a motivated advice was sent to the licensing authorities. These authorities soon suspended all operating licenses of the establishment. The operator appealed against the decision to the Minister of Environment. The refinery was shut down for the three months during which the appeal was pending. In response to its operating licenses being suspended, the operator set up a short term action plan, to make technical modifications to the installations and to address organizational capacity. The inspectors documented these activities for the Minister. Based on the facilitys progress, the Minister allowed a small part of the refinery (three production units) to restart. However, the license suspension was confirmed for four production units, five LPG spheres and 29 atmospheric storage tanks for fuels. In addition, the ministers decision stipulated that the atmospheric tanks would remain inoperable until the risk control systems were approved by the inspection services. The establishment has been slow to repair and refurbish its tanks and implement the necessary risk control measures. To date only 11 tanks have met safety standards. Furthermore, four of the seven production units and the LPG storage were shut down permanently. 4 REFERENCES
Description (in Dutch) of the Control of Major Accident Hazards Enforcement System available at http://www.lne.be/themas/handhaving/afdeling-milieu-inspectie/ hand havingsthemas/toezicht-zwarerisicobedrijven. Environmental Inspection Plans 2004 and 2007 available at http://www.lne.be/ themas/handhaving/afdeling-milieu-inspectie/environment-inspection-plan/theplans. Environmental Enforcement Reports 2004 and 2007 available at http://www.lne.be/ themas/handhaving/afdeling-milieu-inspectie/environmental-enforcement-report/ the-reports.
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LESSONS FOR ENVIRONMENTAL HARMONIZATION: A RISING TIDE THAT LIFTS ALL BOATS? BARTEL, ROBYN1 and STONE, CHRISTOPHER2 Senior Lecturer, School of Behavioral Cognitive and Social Sciences; Research Associate, Australian Centre for Agriculture and Law, University of New England, Armidale, NSW, 2351 Australia, rbartel@une.edu.au
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Research Associate, Australian Centre for Agriculture and Law, University of New England, Armidale, NSW, 2351 Australia; PhD Candidate, Macquarie University, christopher.stone@mq.edu.au
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SUMMARY How can harmonization successfully achieve the objective of being a rising tide that lifts all boats rather than a race to the bottom of regulatory protection in response to industry pressures to reduce red tape and the threat of forum shopping? The paper briefly maps the concept, using as a focus intra-state harmonization, and the promoted benefit of strengthening compliance. We identify the primary arguments for and against harmonization in its various forms, before describing two case studies, one from the United States and one from Australia, from which recommendations are drawn to enhance the potential for best practice in the area. It appears that successful harmonization depends on significant commitment by agencies involved, not only towards harmonization as an objective, but to best practice harmonization. 1 INTRODUCTION 1.1 Harmonization as a Tide Which Lifts All Boats.
The title of this paper incorporates a quote from the current state Premier of New South Wales, Ms. Kristina Kenneally, describing why her jurisdiction was opting out of a national project to harmonize Australias occupational health and safety laws.1 The Premiers hope that this process would be a rising tide that lifts all boats is an apt description of successful harmonization. Unsuccessful harmonization, however, is one under which protection is reduced, and conflicts arise between jurisdictions. The quote and its context therefore usefully map the continuum of both good and bad harmonization. 1.2 Harmonization in Australia
Occupational health and safety is not the only target of reform via harmonization in Australia. Australia is a federated nation state comprising six states and several territories. The Council of Australian Governments 2008 National Partnership Agreement to Deliver a Seamless National Economy listed 27 deregulation
priorities, including Environmental assessment and approvals (ranked number two) and chemicals and plastics (ranked number 16). This reform agenda has been influenced in large part by industry and business pressure to reduce the burden of red tape and regulatory complexity, alongside threats that industries may relocate to areas with less onerous regulation (known as forum shopping). Industry and political pressure has now coalesced in agreement around this issue but the implications for agencies and for regulatory best practice are far from clear. Harmonization has its critics as well as its supporters. It is considered useful at this time, before the path of reform is irreversible, to map the pros and cons of harmonization, both theoretical and in practice, and, through undertaking case studies, begin to develop some criteria by which we can evaluate harmonization and provide recommendations for future attempts at reform in this vein. 2 DISCUSSION 2.1 Intra and Inter-national Harmonization Harmonization has often been considered as an issue between nation states (for example, in the European Union and other regional economic communities, but also amongst developed nations as a result of international cooperation), and, while there are parallels with harmonizing within a nation state, overall the area is under-researched. The existing lessons from which policy learning can take place are limited, particularly with regard to environmental protection.2 Where harmonization of environmental law has been a focus it has been in concert with the harmonization of areas more traditionally of regulatory concern, such as the protection of life and property, and trade.3 The term harmonization itself is used very loosely in the literature and extends from unification (although this is a less common definition)4,5 to legislative similarity or complementarity.6 Harmonization may be of legal instruments or standards, administration,7 co-ordination,8 mutual recognition9 or of principles, concepts, language and structures.10 2.2 Advantages to Environmental Harmonization
2.2.1 Reducing Complexity and Increasing Efficiency Slashing the regulatory burden has become a common catch-cry from business in order to reduce unnecessary11 compliance costs.12 The call has now been taken up by government. The Australian Environment Protection and Heritage Council has stated that an aim of harmonization is to reduce the costs of compliance for business, and also the costs of government administration.13 Public funds are limited and there are opportunity costs involved in allocation. A harmonized system may also significantly reduce transaction costs.14,15 These are the costs in time and resources that undertaking an action requires beyond the cost of the actual action.
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Clear and comprehensible rules reduce transaction costs16 and there is an overlap here with regulatory best practice. 2.2.2 Regulatory Best Practice and Improving Compliance It is basic best practice that rules are easily accessible and comprehensible, that they are certain and clear. Easily understood and followed rules promote compliance and therefore (assuming that the law and its implementation have adequate means and objectives of environmental protection) harmonization on this count should achieve better environmental outcomes. Complexity can be so off-putting for regulatees that they disengage from the regulatory system altogether. In areas of environmental law, which already have low buy-in from regulates, this may not be an isolated outcome, but could form a large proportion of the regulated community. This is a dire state for any regulatory arena and agency to be in.17 The proof of course is in the pudding. Ultimate effectiveness requires an assessment of on-ground outcomes in terms of environmental health and sustainability. There needs to be caution in reacting to areas assumed to be over-regulated: has the regulation succeeded in achieving environmental ends in a cost-effective way? If so, then this is not a case of over-regulation, but successful regulation. Such questions reinforce the need for us to examine the goals of harmonization very closely. What is considered optimal is also very much in the eye of the beholder, so such questions need to be examined not according to the interests of the usual stakeholder groups but to all in society (and indeed, beyond society to future generations and non-human nature). 2.2.3 Equity It has been stated that it may be more important to have a legal question settled, than to have it settled right.18 However, questions of equity are important, and harmonization can help reduce unfairness in a number of ways. For example, by reducing comparative disadvantage from regulatory inconsistency,19 or by reducing information costs for small and medium sized enterprises, which often have difficulty accessing sufficient legal expertise to enter new markets, or by resolving disputes predictably and efficiently.20 Considerations of equity must also include equity to the environment and intergenerational and intra-generational equity. All compliance behavior will occasion some cost to regulatees. It will also occasion cost to regulator agencies. This occurs to ensure that greater costs are not borne by society and the environment. 2.2.4 Summing up the Case for Harmonization Simplification is cited by several authors as the main rationale for harmonization.21 Transaction costs, where they can be reduced without occasioning deleterious consequences for the environment, should be supported so as to minimize opportunity costs to the general community. There is an ever-growing body of regulation and
associated apparatus, which is time consuming for regulatees to negotiate and which may not be adding anything additional to environmental (and social) protection. The main rationale then for harmonization may be expressed thus: clear rules and/ or requirements that can be comprehended by all parties makes compliance easier for industry and thus may be more likely to occur.22 Also, harmonized laws can make enforcement across state or national borders cheaper and more successful.23 In this sense, harmonization is about achieving across space what precedent achieves across time, i.e. certainty of the law, providing predictability of responsibilities, duties, liabilities and requirements in similar contexts, irrespective of location. 2.3 Disadvantages of Environmental Harmonization
2.3.1 Lack of Evidence of Regulatory Outcomes One problem common to the economic arguments made above is that we have little knowledge as to what the necessary, let alone unnecessary, costs of regulation are.24 Ecosystem complexity, long-term effects, and lack of scientific data or other information, are all factors that make effectiveness of environmental protection difficult to quantify. Business costs may also be difficult to ascertain.25 How do we know what is over-regulation? It is common for critiques to point to the number of regulatory instruments and definitions.26,27 Here several points must be remembered: there may be contextual reasons for the differences which may or may not be persuasive for retention in each case but need to be examined and considered. Secondly, sheer numbers say little about the quality of regulation or the burdens imposed.28 And finally, it cannot be assumed that harmonization will cure costs caused by differences. For example, in the case of legislative differences, each of these are up to the courts of each jurisdiction to apply and interpret, which could (and in all likelihood would) see jurisdictional divergence even if statutory provisions were identical. It is furthermore common for critiques to hypothesize that there will be significant savings as a result of harmonization29 however there is little evidence in support of this. For example, amalgamation of departments and rationalization of staff costs money and in the case of environmental regulation the number of staff are determined by the nature of the area and population to be covered, which remains the same whether harmonization has occurred or not. Related issues to be considered are the reverse efficiencies generated by imposing costs on government that previously have been borne by industry. 2.3.2 Environmental and Social Diversity Environmental protection forms a unique sub-set of harmonization and brings with it some interesting challenges. Flexibility and alignment with local conditions, rather than standardization and conformity, is arguably the preferred public good in this area. Most agencies would already be familiar with regulatees complaining
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that regulations are already inappropriately harmonized across biophysically divergent areas, and the claim that one-size-does-not-fit-all. This is particularly true for many environmental problems which are more likely to follow bioregional contours rather than respect political boundaries. It has been pointed out that if harmonization of conditions is the objective, then different laws may be required.30 With regard to environmental concerns, where there are risks of irreversible damage, in may be prudent (and pragmatic) to rely on a more diversified approach: at least in the latter case something of value may be saved somewhere. Standardization can reduce efficiency by not taking into account different circumstances. In a highly pressured political or economic landscape flexibility can create a race to the bottom for standards of protection.31 However this can also occur through harmonization: there can be a lowest common denominator effect where regulations are standardized to the least level of environmental protection. If regulation and administration occurs at a distance from issues on the ground there is the risk that higher social and environmental impacts may be occasioned through ignorance of local conditions and also associated lack of flexibility to take into account local differences. There are also compliance implications of increasing the geographical and social distance between regulators and regulatees. 2.3.3 Regulatory Best Practice and Reducing Compliance Regulators at a great distance socially as well as geographically from the regulated risk not only being ignorant of particular local conditions but of causing regulatee alienation, encouraging non-compliance.32 Social democratic principles may also be impinged here, as locally elected leaders are either no longer needed or accessible. 2.3.4 Summing up the Case against Harmonization The most obvious downside of uniformity, which needs to be addressed, is that necessary adjustments must be able to be made feasible, for areas of unique need and of difference. For example, standards may not be uniform, but have minimum harmonization (where no jurisdiction may go below the set standard, but they are permitted to impose stricter standards).33 Similar outcomes to legislative and centralized harmonization could be achieved by intergovernmental cooperation.34 As well as alignment to particular contexts flexibility can allow leadership, creativity and innovation.35 Harmonization via policy learning and adoption of best practice may be advised, but only where environmental protection is increased.36 2.4 Case Studies of Harmonization Mechanisms in Practice
2.4.1 Harmonization Mechanisms There are numerous methods/mechanisms for achieving harmonization. As examples, the European Union has Directives as a key part of the harmonization efforts;37 in an international context generally, treaties implemented by domestic legislation are
frequently used;38 whereas within a federated state, decisions from the highest court, or legislation from the federal level of government may aid harmonization.39 Also, when considering the available options, the first question, regarding what harmonization means, must be kept in mind. For example, if the focus is on unification of the actual legal instruments, then this can be achieved through: treaties embodying a uniform law;40 model legislation; or the legislation can be mirrored, copied, applied, or power to legislate referred, across jurisdictions.41 However, if the focus is not on harmonizing the actual legislation, or if the goal is not complete unification, then other mechanisms can be used: treaties not embodying a uniform law,42 standard form contracts,43 a joint administrative body or regulator,44 or explanatory/advice documents (e.g. uniform standards, legal guides, codes, etc.) which can be produced by inter- government, government, or non-government organizations (such as an industry group or a body of academic experts).45 Given the wealth of mechanisms available, it is reasonable to ask whether there is any evidence that some are more effective, or more effective in certain circumstances, than others. Unfortunately, there is not much research on this point. Most of the literature that considers harmonization success looks at situational factors, such as availability of resources, practical need for harmonization, and shared cultural and legal traditions between jurisdictions.46 There has been some argument that binding treaties embodying a uniform law should not be the preferred method,47 but largely this is a neglected area in the research, which the case studies below attempt to fill. 2.4.2 Harmonization in Action Two case studies are discussed here. The first involves a conflict between the United States federal Environmental Protection Agency (EPA) and the Texas Commission on Environmental Quality (TCEQ). Since 1990, all states in the US have been required to obtain EPA approval for their operating permit programs for major stationary emission sources of emissions.48 Under these requirements TCEQ received approval of its State Implementation Plan. TECQ however, also issued permits under a disapproved programme of flexible permits.49 In 2010 the EPA took over control of the individual operating permits.50 The situation is unresolved: The Texas Attorney General has launched a case for review of the disapproval.51 The TCEQ has proposed a new standard emissions permit program.52 The EPA is attempting to implement an audit program to bring facilities that were regulated under the flexible permit program into line with federal regulations. It has also stated it is working with TCEQ to create a process that establishes federally-applicable, unit-specific limits, allows for public comment, and gives regulatory certainty to permit holders.53 While the political context is fraught, the substantive issue of disagreement is that the Texan permits can be used to combine emissions across a single facility under one cap, rather than regulating each individual smokestack, flare or boiler.54 This means that a facility can exceed emission limits on some individual sources by reducing emissions on others. The TCEQ contends that this enhances efficiency
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and control of the facilities, leads to significant reductions in emissions (which they support with figures showing emission reductions), and is at least as stringent as the permit program in the approved SIP.55 The EPA argues that the flexible permits allow companies to avoid Clean Air Act requirements,56 due to the inability to detect and measure emissions and consequent enforceability issues.57 Public health and environmental groups have argued that amalgamating emissions disguises pollution spikes that could endanger public health; 58 that Texas is the worst state in the union in many air quality categories;59 and that the flexible permits deny public participation in facility changes.60 There have been public petitions urging the EPA to ensure that Texan air permits are in line with federal standards.61 Environmental groups have put pressure on the TCEQ, filing comments critical of the flexible permit program62 and two environmental groups have filed motions to intervene in the Texas Attorney Generals case against the EPA.63 This case study illustrates the difficulties of trying to implement harmonized environmental regulations that are flexible and effective, in a context of federal oversight of largely state-driven programs. Texas is not alone and there have also been conflicts regarding other states implementation of the Clean Air Act.64 The lessons that can be taken from this case study are that for harmonization to be successful there must be, firstly, commitment to harmonization by all parties (and effective conflict resolution procedures in the event of disagreement), and, secondly, a commitment to outcome-based and evidence-based approaches. There needs to be clear evidence of preferable options. The second case is also unresolved. Harmonization of environmental assessment and approvals in Australia is presently being attempted through streamlining of bilateral (State-Federal) assessments under the Commonwealths Environment Protection and Biodiversity Conservation Act 1999. However, in a recent review inconsistent progress has been reported.65 The review also found that only a minority of applications were actually being assessed under the existing agreements.66 This indicates a lack of commitment and failure on the first criteria from the case study above. Environmental impact assessment systems suffer from numerous issues, primarily that they focus on new rather than existing developments, that they occur too late in the planning stage, that they dont provide for full-life monitoring, that they are open to bias and they are costly.67 This indicates failure on the second criteria. So, what advantage is there to be gained in harmonization which adopts a demonstrably flawed approach? Since harmonization via transplantation (copying or modelling the law and policy from other sites) is increasingly a feature of environmental law, with or without formal agreements to harmonize between the modeller and the copier,68 a commitment to ensuring that models are proven effective prior to their adoption is a prerequisite for successful harmonization. 3 CONCLUSION Harmonization should not occur for the sake of it, it needs to occur for the sake of improving efficacy overall, and this needs to be proven. What appears clear from
the literature and case studies is commitment to both the harmonization goal and evidence-based best practice sit equally as prerequisites for harmonization to be a tide which lifts all boats. The requisite buy-in and commitment from all parties69 requires ongoing consultation and coordination between parties, however it also requires extensive resourcing and political will.70 In Australia, it is politically unlikely for uniformity to be enforced centrally, as this would effectively mean the dissolution of the Federation. It is more likely that administrative systems will be harmonized, particularly via adoption of another jurisdictions admired system through transplantation. However, what may be popularly admired may not be proven effective. The national adoption of deeply-flawed environmental impact assessment procedures is just one example of the critical need for commitment to regulatory best practice to sit equally with commitment to the goal of harmonization as a prerequisite for action. 4 REFERENCES Parliament of NSW, Hansard Legislative Assembly, 19 Oct 2010, Available at http:// www.parliament.nsw.gov.au/prod/parlment/hanstrans.nsf/V3ByKey/LA20101019. 2 Bernabe-Riefkohl, A, 1994-5. To Dream the Impossible Dream: Globalization and Harmonisation of Environmental Laws, North Carolina Journal of International Law and Commercial Regulation, 20: 205. 3 Bernabe-Riefkohl, A, 1994-5. To Dream the Impossible Dream: Globalization and Harmonisation of Environmental Laws, North Carolina Journal of International Law and Commercial Regulation, 20: 205. 4 See, e.g.: Goldring, J. 1978 Unification And Harmonisation Of The Rules Of Law, Fed. L. Rev. 1978, 9: 284; Porcelli, S. and Zhai, Y , The Challenge for the Harmonisation of Law, Transit Stud Rev 1978, 17: 430455; Kambia, W. J., Comparative Law: A Theoretical Framework, International and Comparative Law, Quarterly 1951, 23: 485; Mistelis, L., Is Harmonisation a Necessary Evil? The Future of Harmonisation and New Sources of International Trade Law, in Ian Fletcher, Loukas Mistelis and Marise Cremona (eds) Foundations and Perspectives of International Trade Law, London: Sweet & Maxwell, 2001, pp 3-27. 5 Charnovitz, S., Environmental Harmonisation and Trade Policy, 2004, Available at http://www.geocities.com/charnovitz/Ciel.htm; Van der Laan, R., The European Environmental Policy with respect to Stationary Sources: Harmonisation versus Differentiation (Thesis), 2002. 6 Cuming, R. C.C., Harmonisation of Law in Canada: An Overview, in Perspectives on the Harmonisation of Law in Canada, University of Toronto, 1985. 7 Ibid n 4 8 Ibid n 5. 9 ANZSOG und, Arrangements for facilitating trans-Tasman government institutional co-operation. 10 Glenn, H. P., Unification of Law, Harmonisation of Law and Private International Law, in Liber Memorialis Franqois Laurent, 1989, 783. 11 Defined as adding nothing to environmental outcomes and sometimes perversely to compromising same.
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Freiberg, A., The tools of regulation, The Federation Press, 2010, see p 67 ff and p 71. Environment, Protection and Heritage Council (EPHC), 21st Meeting, 5 July 2010, Darwin. 14 Coase, R. H., The Problem of Social Cost, Journal of Law & Economics 1960, 3: 1. 15 Martin, P, Williams J., & C Stone C., Transaction costs and water reform: the devils hiding in the details, CRC for Irrigation Futures Technical Report No. 08/08., 2008. 16 Porcelli, S. and Zhai, Y. The Challenge for the Harmonisation of Law, Transit Stud Rev, 2010, 17, 430455; Goldring, J., Unification And Harmonisation Of The Rules Of Law, Fed. L. Rev. 1978, 9: 284; House of Representatives Standing Committee on Legal and Constitutional Affairs, Harmonisation of legal systems: Within Australia and between Australia and New Zealand, Canberra: Commonwealth of Australia, 2006; Faria, J. A. E., Future Directions of Legal Harmonisation and Law Reform : Stormy Seas or Prosperous Voyage? Unif. L. Rev., 2009, 5. 17 Bartel, R and Barclay, E. Motivational postures and compliance with environmental law in Australian agriculture. Journal of Rural Studies, 2011, 27(2). 18 Goldring, J., Unification And Harmonisation Of The Rules Of Law, Fed. L. Rev. 1978, 9: 284. 19 House of Representatives Standing Committee on Legal and Constitutional Affairs, Harmonisation of legal systems: Within Australia and between Australia and New Zealand, Canberra: Commonwealth of Australia, 2006. 20 Faria, J. A. E., Future Directions of Legal Harmonisation and Law Reform: Stormy Seas or Prosperous Voyage? Unif. L. Rev., 2009, 5. 21 Von der Heidt, T., Charles, M. B., Ryan, R. and Hughes, B., Managing environmental regulations for the 21st century: challenges and opportunities in an Australian industry context, Managing in the Pacific century: program and abstracts 22nd Australian and New Zealand Academy of Management (ANZAM) Conference, Auckland, NZ, 2-5 December, Promaco Conventions, Canning Bridge, WA, 2008. 22 Ibid n 11. 23 Ibid n 17. 24 Ibid n 10. 25 Regulation Taskforce, Rethinking Regulation: Report of the Taskforce on Reducing Regulatory Burdens on Business, Report to the Prime Minister and the Treasurer, Canberra, January, 2006. 26 Martin, P and Verbeek, Cartography for Environmental Law: Finding new paths to effective resource use regulation, Report Methodology for NRM Law in Context studies (Project No. TPF1), Land and Water Research and Development Corporation, June 2000; P. Martin, P. and Verbeek, M. 2002, Fifty Million Australians: Can this be sustainable? Land & Water Australia, 2002. 27 Victorian Competition and Efficiency Commission, 2009. The Victorian Regulatory System, Melbourne. 28 Ibid. n 10. P 68. 29 Ibid n 19. 30 Eurofound, European Industrial Relations Dictionary, Available at http://www.euro found.europa.eu/areas/industrialrelations/dictionary/definitions/harmonisation.htm 31 Morgan, B. and Yeung, K. 2007. An Introduction to Law and Regulation. Cambridge, 2007, p 308-309.
For the compliance implications of social distance see Ibid n 15. And see also Morgan, B. and Yeung, K. 2007. An Introduction to Law and Regulation. Cambridge, p 332. The authors observe in the international context that similar disconnects dilute the laws capacity to link coercive command to community consensus. 33 van der Laan, R. The European Environmental Policy with respect to Stationary Sources: Harmonisation versus Differentiation (Thesis), 2002. 34 Ibid n 19. 35 Boodman, M., The Myth of Harmonisation of Laws, The American Journal of Comparative Law, 1991, Vol. 39, No. 4 (Autumn, 1991), pp. 699-724. 36 Holzinger, K., Knill, C. and Sommerer, T., Environmental Policy Convergence: the impact of international harmonisation, transnational communication and regulatory competition, International Organization, 2008, 63: 553-587. 37 Mistelis, L., Is Harmonisation a Necessary Evil? The Future of Harmonisation and New Sources of International Trade Law, in Ian Fletcher, Loukas Mistelis and Marise Cremona (eds) Foundations and Perspectives of International Trade Law, London: Sweet & Maxwell, 2001, pp 3-27. 38 Ibid n 18. 39 Ibid n 17. 40 Ibid n 35. 41 Ibid n 17. 42 Ibid n 35. 43 Ibid n 16. 44 Ibid n 17. 45 Ibid n 18. 46 See, e.g., Garro, A. M. Unification and Harmonisation of Private Law in Latin America, 40 Am. J. Comp. L., 1992, 40, 587 and ANZSOG und, Arrangements for facilitating trans-Tasman government institutional co-operation. 47 Porcelli, S. and Zhai, Y. The Challenge for the Harmonisation of Law, Transit Stud Rev, 2010, 17, 430455; Rosett, A. , Unification, Harmonisation, Restatement, Codification and Reform in International Commercial Law, Am. J. Comp. L., 1992, 40, 683. 48 42 USC 7661a (2010). 49 See United States Environmental Protection Authority, 2010, EPA disapproves Texas Flexible Air Permit Program, Available at http://yosemite.epa.gov/opa/ admpress.nsf/e8f4ff7f7970934e8525735900400c2e/1d91bf2747c5682b8525775200626 aa6! OpenDocument. 50 Ibid n 47. 51 Petition for Review, State of Texas v. United States Environmental Protection Agency, No. 10-60614 (July 26, 2010), Available at https://www.oag.state.tx.us/ newspubs/releases/2010/072610epa.pdf. 52 Environmental Groups Support U.S. EPA in Texas Air Permit Case, Environment News Service Available at http://www.ens-newswire.com/ens/aug2010/2010-08-31091.html. 53 August 30, 2010 - Letter from EPA to Chairman Shaw: Available at http://www. tceq.state.tx.us/assets/public/permitting/air/Announcements/from_epa_8_30_10. pdf. 54 Environmental Groups Support U.S. EPA in Texas Air Permit Case, Environment News Service online at http://www.ens-newswire.com/ens/aug2010/2010-08-31-091.
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html and United States Environmental Protection Authority, 2010, EPA disapproves Texas Flexible Air Permit Program online at http://yosemite.epa.gov/opa/admpress. nsf/e8f4ff7f7970934e8525735900400c2e/1d91bf2747c5682b8525775200626aa6!Open Document. 55 Ibid n 49. 56 Ibid n 47. 57 Federal Register/Vol. 75, No. 135/Thursday, July 15, 2010 58 Hess, EPA, Texas fight over air pollution, Chemical and Engineering News, 2010, Available at http://pubs.acs.org/cen/government/88/8834gov2.html. 59 Ibid n 56. 60 Sierra Club, Lone Star Chapter, Weak proposal would foul air, endanger public health, cater to bid polluters, Available at http://texas.sierraclub.org/press/ newsreleases/20100802.asp 61 Soward, L.R., Winds of Change are Blowing, Air Alliance Houston, 2010, Available at http://airalliancehouston.org/commentary/detail/winds_of_change_are_blowing/ and Hylton, H. 2010. Texas Governor Perry declares war on the EPA at http://www. time.com/time/printout/0,8816,1994825,00.html. 62 Ibid n 58. 63 Ibid n 50. 64 See, e.g., LEAF v. EPA, 400 F.3d 1278 (11th Cir. 2005) 65 COAG Reform Council 2008-9 National Partnership Agreement to Deliver a Seamless National Economy: Report on Performance. 66 Ibid n 63. 67 See Bates, Environmental Law in Australia, Butterworths, 2006. 68 Yang, T. and Percival, R. V., The emergence of global environmental law, Ecology Law Quarterly, 2009, 615, 616, 627ff. 69 Ibid n 8, p 28. 70 Ibid n 8 p 28 and p 32. 5 BIBLIOGRAPHY Faria, J. A. E., Future Directions of Legal Harmonisation and Law Reform: Stormy Seas or Prosperous Voyage? Unif. L. Rev., 2009, 5. Goldring, J., Unification And Harmonisation Of The Rules Of Law, Fed. L. Rev. 1978, 9: 284. Mistelis, L., Is Harmonisation a Necessary Evil? The Future of Harmonisation and New Sources of International Trade Law, in Ian Fletcher, Loukas Mistelis and Marise Cremona (eds) Foundations and Perspectives of International Trade Law, London: Sweet & Maxwell, 2001, pp 3-27. Porcelli, S. and Zhai, Y. The Challenge for the Harmonisation of Law, Transit Stud Rev, 2010, 17, 430455.
THE USE OF COMMUNITIES OF PRACTICE TO SUPPORT INTELLIGENCE-LED ENFORCEMENT BROSNAN, MEAGHAN H. M. Program and Policy Analyst, United States Coast Guard Headquarters, Office of Law Enforcement, Living Marine Resources Division (CG-5314), 2100 2nd St SW, Washington, D.C. 20593, USA, Meaghan.H.Brosnan@uscg.mil SUMMARY A Community of Practice is a group of individuals who share a common interest, a set of problems or a passion, and who increase their knowledge and the understanding of these aspects through interpersonal relationships.1 Living marine resource-focused intelligence analysts formed such a Community in May of 2010 called the Living Marine Resource Community of Interest for the purpose of easing their networking and collaboration efforts to support enforcement efforts. This paper will provide a case study of the Living Marine Resource Community of Interest and a general discussion of Communities of Practice as support mechanisms for environmental compliance and enforcement. 1 INTRODUCTION Living marine resource enforcement is an integral part of both U.S. and international marine management systems, and is necessary to ensure compliance with the laws and regulations developed by the management councils and organizations within these systems. These organizations are responsible for a very broad range of regulations, including those that apply to fisheries, marine mammals, marine endangered species, national marine sanctuaries and marine protected areas. Over time, the complexity of the regulations that manage these resources has increased exponentially, while overlapping jurisdictions and authorities to enforce these regulations further complicate enforcement efforts. Agencies responsible for living marine resource enforcement have received limited funding in recent years, while the incentive to operate outside of the law has increased in a world that has a dwindling food supply and increasing needs. Intelligence to support efficient targeted enforcement operations has therefore become increasingly necessary to promote the sustainable use of living marine resources. Living Marine Resource intelligence in the United States is a specialized field that has a small population of dedicated analysts. While nearly every agency with a marine or environmental resource-related mission has at least one living marine resource-focused intelligence analyst, no means existed for these highly disparate analysts to easily collaborate and communicate. Adding to this challenge was the fact that these analysts exist both within and without the US Intelligence Community, limiting the utility of pre-established communication avenues already in existence within this Community.
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To address this need, living marine resource intelligence analysts within the U.S. Government established a Community of Practice for the purpose of promoting their networking and collaboration across agencies and nations. Formed in May of 2010, the community called itself the Living Marine Resources Community of Interest. This paper will provide lessons learned from this Community and insights on the topic published in case studies and academic research. 2 WHAT IS A COMMUNITY OF PRACTICE?
Communities of Practice are loosely defined as groups of people informally bound together by shared expertise and passion for a joint enterprise...2 Communities of Practice have three unique characteristics that can be used to define them: Domain, the area of interest, which creates a common base among members and allows for the development of a group identity. Community, the learning social factory,3 a group of people who interact, learn together, build relationships and through this develop a sense of membership and reciprocal commitment. Practice, the shared repertory of competencies and common resources (i.e. routines, documents, tools, styles, legends, symbols and language) that members have developed; this repertory includes the knowledge created and shared in the past and allows for future learning, for trusted relationships and for circulation of explicit and tacit knowledge. 4 In the context of the Living Marine Resources Community of Interest, the domain is Living Marine Resource intelligence analysts whose mission is to support operations, the community has been developed in the process of standing up the Living Marine Resources Community of Interest, and the practice includes a broad array of analysis skills and techniques that have been developed by the Communitys membership. 3 THE FOUNDING OF A COMMUNITY OF PRACTICE 3.1 The Path of a Community of Practice
Founding a Community of Practice requires the movement of a group of people from a state of indifference with regards to the Community to a state of active support. This evolution from indifference to active support will vary in both specific path and speed with each Community. 5 However, the typical Stages of Development that a Community will travel through are: otential: People face similar situations without the benefit of a shred practice. P Coalescing: Members come together and recognize their potential. Active: Members engage in developing a practice; Dispersed: Members no longer engage intensely, but the community is still alive as a force and a center of knowledge, and; finally Memorable: The community is no longer central, but people still remember it as a significant part of their identities.6
The path that the Living Marine Resource Community of Interest has followed thus far through the Stages of Development is: Step 1: Identify initial members. This took the longest time of any of the initial steps and required extensive outreach. It is interesting to note that the vast majority of members were discovered through their associates who had already joined the Community. In essence, the community had already existed in a disparate form, and only needed to be more formally coalesced. Step 2: Poll members on their goals for the Community. This is important even if the purpose of the Community is self-evident as it promotes member buy-in into the value of the Community and allows the community to develop a sense of purpose. The Living Marine Resources Community of Interest experienced a dramatic jump in registration for its first in-person meeting after members goals were requested. Step 3: Hold an In-Person Meeting of the Community. The first in-person meeting of the Living Marine Resources Community of Interest was essential in cementing the ties of the community and in providing a forum to collaboratively plot the course for a way ahead. Additional benefits of the in-person meeting are detailed below. 3.2 Establishing and Promoting a Community of Practice
Corso and Giacobbe7 described two different categories of levers that promote the formation or expansion of a Community of Practice. The first category, called Animation Levers, fosters the members involvement and participation in the communitys activities with the purpose of improving the effectiveness of the learning and knowledge management processes These levers include: Improving the individual involvement in terms of personal value and identification. An individual will most actively participate in a forum which has a domain that overlaps with their own interests. Enhancing social relations. It is necessary that individual involvement occurs through participation in a social context. Studies have shown that in-person meetings are essential for the establishment and expansion of these interpersonal relationships.8 Improving the connectivity between members. This lever depends on the availability and the quality of interaction spaces, either physical (e.g. a meeting room) or virtual (e.g. a website). Improving the communality. It is the existence of a common ground that enables information and knowledge sharing between the communitys members.9 The initial path the Living Marine Resources Community of Interest followed during its formation included each of these levers. Polling potential members of the Community on their goals improved individual involvement. The first Community in-person meeting, and the social events that were associated with it, helped to establish new and enhance existing social relationships. One of the action items that
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resulted from the first meeting was to establish a forum for easy interaction and to improve the connectivity of all the members. Connectivity continues to be one of the greatest challenges for the Living Marine Resources Community of Interest, as its members include a wide range of domestic and international groups, while the Communitys domain of intelligence support requires a secure repository. The second category of levers, called Promotion Levers can be used when a community wants to acquire new resources in order to be more effective in pursuing its goals10 These levers include: Increasing its visibility. It has to be evident that the community is a concrete and well-organized entity. Culture. The community has to have a cultural foundation that allows pursuing the organizations core values. Aim achievement. The community has to be able to reach results consistent with the organizations goals and, in particular, be able to underline the impacts of its activities on business performances.11 Even though the Living Marine Resources Community of Interest is still growing and collecting an expanding membership, these promotion levers have been used over the past year to maintain momentum and encourage continued involvement. The aim achievement lever has been used through collaborative projects between Community members. These projects will directly impact future operations and asset allocation decisions in support of Living Marine Resources Enforcement. The ready-made network that now exists has been used multiple times to solicit for information or announce meetings, projects and initiatives, ensuring that this information gets to the practitioners that need it most. The increasing its visibility lever has been used through the development of materials that explain Living Marine Resource institutions and laws, and the importance of the sustainable use of marine resources. Having such materials available for senior level decision-makers helps the Communitys members successfully compete for limited resources. As the Living Marine Resources Community of Interest matures, the culture levers will be utilized to further its goals and expand its utility. 4 BENEFITS OF COMMUNITIES OF PRACTICE
The potential benefits of being a member of a Community of Practice are numerous, though the specific benefits that an individual or group might experience will depend upon the specific subject matter and goals of the community. Generally, Communities of Practice are beneficial because they will allow their members to: solve problems quickly because they have go-to people; share best practices unique to the communitys specialty; promote the development of unique professional skills.12 Of the above benefits, one has demonstrated itself particularly in the case of the Living Marine Resources Community of Interest; having a list of go-to Living
Marine Resources Intelligence analysts. The few Intelligence analysts that do focus on the subject are often members of large agencies or organizations, so the Living Marine Resources-focused specialist is often unintentionally hidden within a greater environmental or marine-focused office, thereby making them very difficult to find through traditional channels. In recent months the Community has begun to include international partners, indicating that the full extent of this benefit has not yet been found. Community members have indicated that sharing best practices and professional skills is the subject they are most interested in addressing at the next in-person meeting, indicating that these benefits will more fully express themselves in the near future. The Living Marine Resources Community of Interest has also demonstrated benefits that Communities of Practice can provide beyond those listed above. In particular, these communities can be as informal or established as is appropriate, so the expense and over-engineering that can sometimes occur in formalized societies or companies occur less frequently. Since the Living Marine Resources Community of Interest was created in a resource-constrained environment, the ability of a few motivated individuals to bring the community together with minimal expense was essential. Communities of Practice can also be created and disbanded with relative ease, allowing for narrowly-focused task-driven groups to utilize the construct while avoiding the stagnation that can occur in entrenched organizations. Clearly demonstrating this benefit, the Living Marine Resources Community of Interest was created within three months thanks to the focused goals the group had upon its establishment. As additional support for the benefits of Communities of practice, Table 1 below outlines the challenges the Living Marine Resources Community of Interest members faced before the development of the Community, and the ways in which the Community helped to address these challenges. Table 1: Community-Driven Solutions
Challenges Inadequate resource support Community-Driven Solutions Produced marketing materials highlighting importance of Living Marine Resources. the
Increased visibility of Living Marine Resource issues through Community events and products. Minimal collaboration among Provided contact list of subject matter experts. analysts Provided easy-to-access secure website improving the ease of communication. Provided discussion forum for sharing of solutions to common problems. Limited intelligence support to Multiple collaborative products published in support of enforcement enforcement. Improved problem-solving efficiency and ease of finding needed information.
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CHALLENGES INHERENT IN COMMUNITIES OF PRACTICE
When cultivating a Community of Practice, it is beneficial to be aware of the challenges and pitfalls that may be experienced. First, establishing a Community of Practice where a pre-existing informal network does not already exist can be very time consuming for the original founding members. There must be a strong resolve that this effort will reap adequate rewards for the community to successfully move past this building phase. In addition, especially in the early stages of a communitys development, a large proportion of its members may be from a single organization. If this is the case there is a strong tendency for internal organizational issues not appropriate for application in the greater Community of Practice to overwhelm the community if boundaries and goals are not clearly defined at the outset. Wegner, McDermott, and Snyder13 also identified dysfunctional behaviors that can cause problems within Communities of Practice in each of the three structural elements described in Section 2 of this paper. In the Domain element, communities could become over-zealous in guarding their subject of interest, resulting in imperialistic tendencies, or lose ownership of the subject of interest altogether. In the Community element the community could flounder with an inability to gain perfect consensus, or become overly rigid in the expectations of its members. In the Practice element, an over-dogmatic belief in the skills that are initially developed can prevent further growth.14 Cultivating awareness of these dysfunctional behaviors and actively guarding against them will help prevent their occurrence. 6 CONCLUSION Communities of Practice can be highly effective in providing informal networks for specialized practitioners to share knowledge and skills and collaborate on mutually beneficial projects. They require minimal resources, and if the basic guidelines set out in this paper are used, can often be established with relative ease. Given the current economically-constrained environment, this construct is an essential tool that can be used to promote environmental enforcement efficiency through improved intelligence support. In the case of the Living Marine Resources Community of Interest, the efforts required to establish the Community were very worthwhile. The Community has greatly improved intelligence support to Living Marine Resources enforcement efforts in the United States and continues to expand with new worldwide contacts that can provide unique skills and knowledge to the Community. 7 REFERENCES Wenger, Etienne C., McDermott, Richard and Snyder, Williams C. Cultivating Communities of Practice: A Guide to Managing Knowledge. Cambridge: Harvard Business School Press, 2002. 2 Wenger, Etienne C. and Snyder, William M. Communities of Practice: The Organizational Frontier. Harvard Business Review, 2000, Harvard Business Review, pp. 139-145.
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Wenger, Etienne C. Communities of Practice; Learning, Meaning and Identity. Cambridge: Cambridge University Press, 1998. 4 Wenger, Etienne C., McDermott, Richard and Snyder, Williams C. Cultivating Communities of Practice: A Guide to Managing Knowledge. Cambridge: Harvard Business School Press, 2002. 5 Corso, Mariano and Giacobbe, Andrea. Building Communities of Practice that work: a case study based research. Proceedings of The Sixth European Conference on Organizational Knowledge, Learning, and Capabilities. [Online] March 19, 2005. [Cited: April 14, 2011.] http://www2.warwick.ac.uk/fac/soc/wbs/conf/olkc/archive/oklc6/ papers/corso__giacobbe.pdf. 6 Wenger, Etienne. Communities of Practice: Learning as a Social System. The Systems Thinker, 1998, Vol. 9. 7 Corso, Mariano and Giacobbe, Andrea. Building Communities of Practice that work: a case study based research. Proceedings of The Sixth European Conference on Organizational Knowledge, Learning, and Capabilities. [Online] March 19, 2005. [Cited: April 14, 2011.] http://www2.warwick.ac.uk/fac/soc/wbs/conf/olkc/archive/oklc6/ papers/corso__giacobbe.pdf. 8 Id. 9 Id. 10 Id. 11 Id. 12 Wenger, Etienne C. and Snyder, William M. Communities of Practice: The Organizational Frontier. Harvard Business Review, 2000, Harvard Business Review, pp. 139-145. 13 Wenger, Etienne C., McDermott, Richard and Snyder, Williams C. Cultivating Communities of Practice: A Guide to Managing Knowledge. Cambridge: Harvard Business School Press, 2002. 14 Id.
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8 BIBLIOGRAPHY Hildreth, Paul, Kimble, C. and Wright, P. Communities of Practice in the Distributed International Environment. 2000, Journal of Knowledge Management, pp. 27-38. King, D., Porter, Read and Price, E.. Ocean Development and International Law, 2009, pp. 350-372. McDowell, Don, Strategic intelligence: a handbook for practitioners, managers, and users. Scarecrow Press, 2009. Ostrom, Elinor. Governing the Commons: The Evolution of Institutions for Collective Action. Cambridge University Press, 1990.
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COMPLIANCE M ANAGEMENT AND SYSTEM-BASED SUPERVISION HAAS DE, HAN (J.M.G.),1MEERMAN, PAUL (P.),2 and BREE DE, MARTIN (M.A)3 Policymaker law enforcement, Direction Spatial Planning and Enforcement, Province of Noord-Brabant, Brabantlaan 1, PO Box 90151, 5200 MC s-Hertogenbosch, Netherlands, jmdhaas@brabant.nl, www.handhaveninbrabant.nl
1
Policymaker law enforcement, Direction Spatial Planning and Enforcement, Province of Noord-Brabant, Brabantlaan 1, PO Box 90151, 5200 MC s-Hertogenbosch, Netherlands, pmeerman@brabant.nl, www.brabant.nl/systeemtoezicht
2
Researcher, Rotterdam School of Management, Erasmus University Rotterdam, Managing Director Next Step Management BV, m.debree@nextstepmanagement. nl, www.neststepmanagement.nl
3
SUMMARY This paper describes the backgrounds and experiences of a project by the Province of Noord-Brabant, The Netherlands, involving a new form of supervision: systembased supervision (SBS). The aim of this System is to use the quality of selfregulation of large-scale industrial companies with high-risk processes for the purpose of customizing supervision and improving compliance by assessing their compliance management system (throughout this paper, the term compliance is used to mean regulatory compliance). Public supervisors of the Province use an audit methodology to assess each companys level of internal control regarding regulatory compliance and risk management. If the compliance management system meets the set standards, the company is inspected less frequently. System-based supervision contributes to a more professional relationship between the supervising organization and the regulated company. System-based supervision contributes to a better understanding of how the companies assure measures for protecting the environment and stimulates companies to improve their risk management and compliance. The paper explains the preconditions for system-based supervision and discusses the experiences and pitfalls of the project. 1 INTRODUCTION This paper explores and evaluates compliance assurance through company compliance management systems and is based mainly on a project by the Province of Noord-Brabant (hereafter the Province). The authors have been involved in this project. The Province is charged with the supervision of large-scale industrial companies in terms of their compliance with environmental legislation. These are companies which are operating processes and using substances which might be harmful to the environment.
Law enforcement was long driven by the principle: trust is good, control is better. This principle, however, does not do justice to companies and people that are doing their very best to achieve compliance. Compliance is not an automatism. Companies have to organise assurance of compliance. The assurance of compliance requires a supportive corporate culture and also an investment in an effective management system. The Province holds the opinion that companies with a good record in compliance management deserve more trust than companies which are more indifferent in terms of compliance management. We therefore have adjusted the principle of enforcement to: confidence whenever possible. This paper describes the methodology for system-based supervision currently being applied in the Province. The first section introduces the theoretical backgrounds of assuming trust as a basis for inspections and compliance competence. The second section illustrates the possibilities of this new form of supervision and the preconditions required. The third section details the experiences in the Netherlands and especially in the Province in applying system-based supervision. The paper concludes with recommendations for working with this new method of supervision. Before focusing on system-based supervision, we will first explain why the Province has chosen a different approach to supervision. To comply with regulations is a time and money consuming task for industrial companies, especially when the government produces more and more rules as a consequence of perceived risks (Better Regulation Commission, 2006). While the Province wants to improve the quality of its enforcement results wherever possible, it also pursues a smarter approach aimed at reducing the inconvenience for regulated companies. Also, it wants to end the trend of imposing evermore rules and regulations, and instead restore focus on the underlying goal: the reduction risks to human health and the environment. It is obvious that this approach requires other competencies of both individual law enforcers and the entire organization of the Province. 1.1 Compliance Management Systems
Management systems used by private companies focus on optimizing operational aspects of business like quality, health, safety and the environment. Companies with management systems have the potential to ensure compliance with legal requirements in their own organization and contacts (the so-called compliance management). This potential is seldom or not used by law enforcers because the existing standards for management systems are not specifically aimed at securing compliance with legal requirements but rather at reaching better quality or environmental goals (e.g. ISO 9001 and ISO 14001). Therefore significant differences in compliance results among companies working with certified management systems are observed. And, the other way around, legislators do not always take into account management systems. The Province wants to close the gap between the aims of regulations and management systems. Generally speaking, quality management is based on two elements, namely the assurance of quality and continuous improvement of quality. Assurance means that a certain stable level of quality is achieved by taking specific organizational measures.
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The second element relates to the learning ability and is meant to maintain an ongoing process of improvement of quality through cycles of plan, do, check, and act. The basis for compliance management is that these two principles are used specifically by regulated companies to assure and continuously improve compliance. For the purpose of this paper, a compliance management system is defined as an internal management system used by a company which is explicitly aimed at preventing the company from violating legal requirements and permit conditions (Huizinga et al., 2009). The fact that a regulated company operates an effective compliance management system has implications for the role of the law enforcer. 1.2 Differentiating Between Traditional Supervision and System-based Supervision
Following this introduction of company compliance management systems, it is important to clarify some other concepts and definitions. We differentiate between system-based supervision and output inspections. The distinction between systembased supervision (also referred to as meta-regulation) and output inspections can be explained using a model of learning in organizations. In the traditional supervision approach, the regulator verifies whether or not output (for example actual emission levels) meets the legal standards. Thus, it is considered whether emissions exceed the standards, or certain technical provisions are met, and so on. This way of supervision is aimed at assessing the output and only results into actions of the company to end the violation. The learning effect is limited and has a shallow or so called single loop character (Argyris, 1978). For example, a company that violates an emission limit of mercury into the air is forced to takes measures to stop the emission, but is not necessarily compelled to examine the causes of the emission. The issue of how the management system failed to prevent the emission and how the internal controls have performed is usually not evaluated. The latter is exactly what system based supervision does. System-based supervision brings about a deeper form of learning (double loop learning) because it focuses on the underlying processes, strategies, and procedures that aim to achieve compliance. System-based supervision thus intervenes in the structural causes of non-compliance and therefore brings about a structural improvement in compliance management. The combined efforts of system supervision and output inspections are referred to as system-based supervision.
Figure 1: Model for System-Based Supervision
1.3
Trust as a Basis
Trust forms an important aspect of the strategy. It is commonly recognized that trust leads to efficiency because of less monitoring and less transaction costs (Fukuyama, 1995) and is expected to lead to better compliance (De Goffau, 2008; Gunningham et al., 2009; Huizinga et al. 2009). Trust as a concept is too indistinct to use in a practical supervision strategy. It requires operationalization to benefit from the system dynamics (Six, 2010) to improve effectiveness. Covey (2008) distinguishes between trust based on little or no analysis, and trust based on analysis, thus making a difference between naivety and justified trust. We believe that the statement confidence wherever possible means that confidence should be given only in those situations in which it is justified by the facts. Figure 2: Trust Matrix (Covey, 2008)
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To further operationalize the concept of trust and to materialize the smart trust mentioned by Covey, we use the formula below (Benninga, 2007). Trust = credibility x quality of relationship x reliability
conceit This formula offers four specific aspects that every party participating in a particular relationship can work on to increase trust. In a supervisory relationship, trust exists when regulatory compliance is sufficiently assured and improved where necessary. These above-mentioned four factors of trust are used to develop criteria for compliance management systems. In this way, one is able to create a measure for compliance management, thus operationalizing trust. In the next paragraph is explained which specific features of the management system are assessed and the four levels of compliance competence recognized by the Province. 1.4 Levels of Compliance Competence
The Province has defined standards for four levels of compliance management according to which companies can be classified: 1. Companies that do not want to and/or cannot assure compliance. These companies are not willing to manage compliance or are not able to manage compliance because of the lack of competencies. These companies are unfamiliar with the principles of quality management. This does not necessarily mean that these companies are not in compliance, only that they are not assuring compliance using a management system. 2. Companies with a certified or certifiable management system in accordance with, for example, ISO 9001 or 14001/EMAS (Eco-Management and Audit Scheme). These companies have verifiably implemented quality management to some extent, but this is not specifically aimed at assuring regulatory compliance. 3. Companies with an effective compliance management system. These companies have a management system that is specifically aimed at assuring regulatory compliance. 4. Companies with a proven compliance management system. These companies have a management system that is specifically aimed at assuring compliance. The compliance management system has shown good results for several years and the company is working on continuous improvement. The difference between level one and level two is that a level two company has a management system in operation, whereas a level one company does not. In level three, a company has a specific compliance management system. This is verified by an audit methodology using a checklist with forty-nine questions and verification items. The audit is performed by or in the name of the Province as public supervisors. Companies have to score positive on all essential elements and 50% of the important elements of the checklist. For every element, it is checked whether it is fit for purpose, whether it is documented, and whether it is implemented.1 Level four requires that the system meets additional criteria and that the system meets this level for at least two years.
Figure 3: Levels of Compliance Competence
Each of the four levels of compliance management calls for a different supervision approach (Table 1). When a company is in compliance management level 2, it can be invited to make arrangements about improving to level 3 and 4, in which case supervision is adjusted. This development model shows how companies and regulators can together progress to a higher level by focusing on a better assurance of compliance and appropriate methods of supervision that go with growing trust. In level 4, preventive supervision is limited to a yearly audit and few output samples. Table 1: Supervision Adjusted to the Level of the Compliance Management System
Repressive Repressive Company has reacted Company has not adequately to a reacted adequately violation* Traditional**
Compliance management level 1 2 3 4
Preventive supervision On output On output + arrangement SBS On output and system (50/50) On output and system (20/80)
No penalty No penalty
Stricter penalty Stricter penalty
* i.e. the regulated company has identified and terminated the violation itself and has taken measures to prevent the violation from occurring again. ** traditional repressive supervision may mean written warning, financial penalty or coercion.
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WHAT IS NEEDED FOR THIS NEW FORM OF SUPERVISION?
System-based supervision has its limitations and will only be effective if applied in a certain way in specific circumstances. System-based supervision is not a panacea for everything. Application of system-based supervision requires that a number of conditions are met. The overall basic requirement is a positive attitude (commitment) with regard to a targeted compliance management system, both from the company and the government. All people involved in this process need to have and show a positive attitude and believe that a compliance management system is an effective way to assure compliance. For a company, this means that commitment is required not only from its manager for safety, health, and environment, but also its middle and top management. And equally, on the side of the government, there is the need for an enthusiastic policymaker, a management that understands the methodology, and a member of the board of executives who embraces the paradigm that competent companies can actually reduce the risk of environmental damage to an acceptable level which the Province agrees upon by means of compliance management systems. Last but not least, supervisors should understand and work in accordance with the principles of the method. Starting from a positive commitment to system-based supervision, one can identify the other success criteria for this form of supervision. We have found during our project that the other conditions are confidence, competencies, vision, and methodology. (Note that trust and confidence are used as synonyms in this paper.) As these conditions are inter-related, meaning one condition cannot be met without the other. This implies that system-based supervision requires a multi-disciplinary effort, like playing chess on several boards at the same time (see Figure 4). Figure 4: The Essential Ingredients for System-Based Supervision
2.1
Confidence
System-based supervision can only be effective if there is a certain minimum level of trust between parties. It is essential to leave the past behind and look forward with an open mind to arising opportunities. It is applicable to those companies that are intrinsically motivated to control their impact on human health and the environment, whether or not there are legal requirements to do so (Braithwaite, 2009). Confidence is required as a prerequisite to sharing relevant and sometimes confidential information. A company will show its failures and mistakes in the confidence that the supervisor will give it room to improve its systems. Practically this means that the public supervisor refrains from interventions as long as the company pro-actively detects its own failures, repairs them and takes measures that will prevent that failure to occur again. Confidence is not only a condition for system-based supervision; it is also a product of it. As soon as supervisor and company work together to manage risks, they share interests. This yields even more confidence. This is not surprising if we look at the formula of Benninga, which we have presented above. In the system-based supervision process, both parties work on all four aspects of the trust formula. 2.2 Competencies System-based supervision demands a number of competencies. The first competency concerns attitude. Supervision according to the ideas of system-based supervision means that the traditional public supervisor effectively has to change his or her way of thinking and acting. Inspections, originally a classic output-oriented and suspicious way of supervising, are transformed into audits executed from the starting assumption that the system is effective and trustworthy. This requires an extension of the set of competencies of both the supervisor and the supervising organization. Open, transparent acting is crucial to reach the desired depth of discussion. The company must be transparent about the business process and what measures are taken to manage risks and meet regulatory requirements. The supervising authority should be transparent about the observations and the consequences of these observations. Both the regulated company and the public supervisor are expected to act proactively. If certain permit conditions cannot be met or are not expected to be effective, the company should react before the public supervisor notices a problem. This implies that the proactive company commits an assessment of the feasibility and suitability of regulatory requirements and communicates any problems with the authorities beforehand. An open communication about what could go wrong and what has been wrong is essential for building trust. Another competency concerns knowledge about the auditing of risk management systems. Companies are expected to assure regulatory compliance and risk control
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in their management systems. They do not need to create a dedicated management system alongside the existing one, but rather integrate compliance and risk control into existing control structures. A management system that is certified according to ISO 14001/9001, EMAS, or OHSAS forms a suitable basis. The public supervisor is expected to understand the design, purpose, and working of these management systems as he has to judge these systems professionally. High-quality training in risk management for public supervisors was also one of the recommendations of the Better Regulation (2006). This job requires knowledge about management systems in general, and about auditing and communication skills in particular. On top of that, the public supervisor should have enough technical and legal knowledge to go into details during an audit whenever necessary. This implies intensive training for those supervisors who have been involved mainly in traditional supervision. 2.3 Vision The most important paradigm that public supervisors and regulated companies have to share is that companies are capable of controlling environmental and safety risks and that this capability can be assessed. Clearly, the management of both the public supervising organization and the regulated company have a crucial role to play in this respect. The company has to clearly recognize the importance of controlling environmental and safety risks, and act consistently, not only on paper, but also in practice. The commitment of the management is thoroughly challenged during the compliance management audit. For parties on the government side, from executive to supervisor and permitting officer, there is a need for a clear policy based on the expectation that the regulated company can be in control. Maintaining trust towards participating companies is not always self-evident, especially when things go wrong. 2.4 Methodology System-based supervision is only possible if there is a suitable methodology to measure the degree to which a company has assured compliance. The Province has found that the current auditing schemes like those based on ISO 14001 are not adequate, partly because the standard is not suitable and partly because the auditing practice is not reliable enough in terms of quality and independence. Therefore, the Province has developed its own standard and trained its own people to audit against this standard. Once audited against this standard, it is found that companies improve their management system significantly, also with risk management (Van Dis, 2011). Doing this, confidence further grows and the company deserves more freedom of action, i.e., to chose the way they control its processes.
3 EXPERIENCES In this chapter we share experiences from the project (Meerman, 2010). Experiences are related to the selection and participation of companies, the learning effect on the management system of regulated companies induced by system-based supervision, the competencies and attitude required for system-based supervision efficiency. 3.1 Selected Companies
The Province has pre-selected companies with a good track record concerning compliance and which were expected to use professional management systems. A high percentage (80-85%) of the pre-selected companies participating in information meetings about system-based supervision decided to participate voluntarily in the project. This is perceived as confirmation of the approach aimed at transparency, partnership between public and private parties, and practical (non bureaucratic) project management. It appeared from the first audits that the fourteen companies initially participating in the project scored relatively close to compliance competence level three. Almost all companies required a minor effort to reach level three, whereas all the companies needed an improvement in risk management. The reasons for participation stated by companies were reputation enhancement, government recognition, efficiency, and reducing the risk for reputation damage. 3.2 Penalties As part of system-based supervision, participating companies are required to measure their own level of regulatory compliance. This can make companies very vulnerable with regard to public prosecution. Penalties issued by law enforcers based on violations detected by companies are counterproductive to the open atmosphere of mutual learning and continuous improvement that parties wish to accomplish. This is called the transparency paradox (Gabriel-Breukers, 2008). The Province has therefore decided to refrain from imposing penalties within its jurisdiction if: a) a company takes measures to prevent a violation from occurring by operating an effective compliance management system and b) a company detects a violation itself, discloses and resolves it, and takes measures to prevent this violation from occurring again. A study into the legal consequences of the method of system-based supervision showed that there are no pitfalls and that it is within Dutch legal criteria (Van Bellen-Weijnen, 2009).
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The Province has not yet been able to reach agreement with the public prosecutor on withholding penalties if a company actually measures and improves its regulatory compliance. 3.3 Another Way
Both the Province as law enforcer and the regulated companies participating in the project needed some time to get used to the new approach. It appeared to be important to speak the same language and show interest in mutual problems and positions. Several challenges were encountered during the learning-by-doing approach which was chosen. The Province has identified challenges for supervisors both in terms of attitude and skills. For individual public supervisors adopting system-based supervision was nothing less than a culture shock. It is of crucial importance that supervisors carrying out system-based supervision are not focused on finding violations, but concentrate instead on the effectiveness of the management system in terms of risk management. The referential index had to be changed from legal requirements to what is important in terms of risks. Another challenge was the lack of auditing skills. The Province had to train the supervisors thoroughly to become auditors while maintaining their technical and legal expertise. The process has benefited from inter-vision meetings and peer review. An intervision meeting was organized every three to four months to look at the practical problems and pitfalls the supervisors faced. Teams consisting of two supervisors and one external coach were formed for execution of the audits. By reflecting on the audit reports, the audit team members learned how to interpret findings and formulate conclusions. Another benefit of the process has been that companies and law enforcers no longer oppose one each other, but recognize a common interest in managing risks. Some quotes from participating companies:
Supervisors focus on risk management and giving positive feedback. A new approach in enforcement of environmental regulations. Our risk reduces because we look at items we both consider important. This will lead to synergy between our different plants. Supervisors now really differentiate between companies. Those who are in control are treated differently from those who are not. Checking yourself sharpens the consciousness enormously. System-based supervision helps us to show that we are a good sustainable company.
3.4
Efficiency
System-based supervision does not immediately lead to improved efficiency in law enforcement. During the initial period of one to two years, investments have to be made in development of policy, instruments, training, and communication. Expectations based on the previous chapters are that supervision will be improved and made more efficient after this period of time. Calculations show that efficiency (measured in hours spent by supervisors) can improve by 60-70% for very big plants like refineries and chemical plants with equal or even improved effectiveness. 3.5 Incentive for Corporate Risk Management
An important principle of system-based supervision is that the supervisor and regulated company agree on the assumptions and criteria for effective risk management. This removes a traditional objection of companies that the public supervisor only focuses on compliance to the formal details of regulations instead of focusing on the risks that regulations seek to reduce. It was already recognized that system-based supervision contributes to a more professional relationship between supervising organization and regulated company (Van Bellen-Weijnen et al., 2010). Several participating companies have indicated that system-based supervision stimulates effective management of risk of environmental damage (Van Dis, 2011; Helderman, 2009; De Bree 2010). 3.6 Further Developments
Having taken its first few steps on a prolonged journey, the Province would like to share some of the developments the Province anticipates in the next couple of years. It foresees a further integration of system-based supervision and private management systems like high level structure ISO.2 While traditional supervision mainly focuses on different fields of output like emissions of hazardous substances, accident levels, food quality, waste, and so on, system-based supervision focuses on the general management system of the regulated company and will thus result into a further integration of public supervision for big and complex companies, thus serving better compliance and better environmental results. Some companies use control systems that go beyond geographic borders. The Province has therefore initiated partnerships with other Dutch and foreign public supervisors to form teams. We cooperate with other s and have started a European project3 to examine the feasibility of international teams of supervisors for multinational industrial companies. This project is expected to yield results in September 2011. This might be a stepping stone towards the internationally organized supervision of multinational companies. There are still legal challenges in the tension between trust-based form of supervision like system-based supervision on one hand and the formal penal law on the other hand. We already remarked that penalties can seriously damage trust
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in the relationship between supervisor and regulated company, whereas that trust is needed to be able to analyze and further improve the level of compliance and risk management. The concept of the self-controlled company does not only have implications for supervision. It can also have implications for permits and legislation (Parker, 2003; De Bree, 2006). An essential part of system-based supervision is the assessment of the management of social risks like environmental damage. As soon as it is verified that a company manages its environmental damage risks through system-based supervision, it thus implies that the company has designed and implemented lines of defense to mitigate the risks. These lines of defense are meant to reduce the risk of an undesired event from happening or to reduce the consequences of an undesired event in terms of damage to mankind and the environment. If these lines of defense are implemented and effective, the license does not need to prescribe how risks should be managed. The question of how risks are managed is moved from the licenser to the licensee. In this way, the license can be become a lot simpler and risk management can be become more flexible by leaving it to the professional knowhow of the regulated company. A strict precondition is that the company analyses and manages the risks effectively. System-based supervision is not only suitable for developed countries. When industrial plants are constructed in developing countries, supervision may very well be based upon the principles of system-based supervision, even in the case that no suitable health, safety and environmental legislation has been issued. Most multinational companies use advanced management systems to control hazards and environmental damage, which can be used as an object for supervision. Because of the competencies needed, however, the public supervisors may need to hire outside expertise to execute the system-based supervision. 4 CONCLUSIONS AND RECOMMENDATIONS
Although evidence is still scarce, we have presented both empirical and theoretical indications that system-based supervision can make supervision more efficient and effective at the same time, if applied with suitable tools to companies with potential for self control. As system-based supervision stimulates companies to pro-actively control environmental risks, it is expected to contribute to a better environment. System-based supervision is a method that makes it possible to differentiate between companies with different levels of control. Supervision is a function of the degree to which companies control environmental and safety risks. On top of that, system-based supervision can help to stimulate regulated companies to improve this control. The working mechanism is that companies are challenged about what they do to manage environmental risks rather than what standards they must meet. By clearly explaining what an effective compliance management system is, companies receive practical feedback leading to improvements on strategic and operational levels.
As system-based supervision affects the management system of the regulated company, it can only be applied in those industries where management systems are used. While these management systems may not be suitable as they are, they can serve as a focal point for optimizing compliance management by system-based supervision. The step-by-step approach of the four-level model makes it possible to improve in feasible stages. Levels three and four require serious effort and physical verification of the compliance management system by the authorities. System-based supervision clearly requires a different role of the public supervisor than he is used to in traditional supervision. He should be open to cooperation with the regulated company while maintaining his preparedness to intervene when necessary. System-based supervision requires from the supervisor the ability to understand and assess, within a limited amount of time, the level of control within a companys system. This means that his analytical and communicative skills are severely challenged. For regulated companies, system-based supervision means that the way they are approached by the supervisor depends on their level of internal control. The more proactively and professionally they take their social responsibility, the more room they are given to organize things the way they perceive as most effective. This not only results in an adequate supervision style, but can also lead to less-detailed permits. Developing countries can benefit from the instruments of system-based supervision. If multinational industrial groups build plants in developing countries, system-based supervision can make use of the internal management systems these companies use. Although these countries may not have detailed legislation, system-based supervision can still be promptly applied at low costs, because it is mainly based on risk management. As a result, no specific legislation is required for supervision, except the formal jurisdiction to supervise. System-based supervision requires a different role of the supervising authority. System-based supervision cannot reduce risks to zero, but neither can other forms of supervision. If an incident occurs within a participating company in spite of all the controls, the Province should not revert to old reflexes, but act as a stable partner and contribute to improvements. As long as the company behaves proactively and in a responsible way, the supervising authority should be reluctant to intervene. It is especially in these situations that trust should demonstrate its value. 5 REFERENCES This checklist is also available as a self assessment tool on http://www.brabant.nl/ systeemtoezicht. 2 ISO is working on a modular-based management system structure departing from generic processes.
1
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This is the project Compliance assurance through company compliance management systems under the European Union Network for the Implementation and Enforcement of Environmental Law (IMPEL) started January 2011. 6 BIBLIOGRAPHY Argyris, C. & Schon, D., Organizational Learning: A Theory of Action Perspective, Reading, Mass. Addison-Wesley, 1978. Benninga R., Nyenrode Alumni Magazine, 2007*. Better Regulation Commission, Rsi, Responsibility and Regulation; Whose Risk is this Anyway?, October 2006. Braithwaite, V., Defiance in taxation and governance, resisting and dismissing authority in a democracy, Cheltenham: Edward Elgar 2009. Covey S.M.R., The speed of trust, Business Contact, 2008. De Bree, M.A., Waste and Innovation, Berghauser Pont Publishers, Amsterdam, 2006. De Bree M.A., Hoe Rijksinspecties omgaan met systeemtoezicht, Tijdschrift voor Toezicht, September 2010*. De Goffau, L.A., Vertrouwen in horizontaal toezicht, Grafimedia Almere, Almere, 2008, ISBN 978-90-73081-47-5*. Gabril-Breukers, S.K., Hulp bij Handhaving, WLP, Nijmegen, 2008*. Gunningham, N., & Sinclair, D., Regulation and the Role of Trust: reflections from the Mining Industry, Journal of Law & Society, 2009. Fukuyama, F., (1995) Trust. Simon & Schuster Inc., New York. Helderman J.K., & Honing, Systeemtoezicht, Boom Juridische Uitgevers, 2009*. Huizinga, K. & De Bree M.A., Introduction system based supervision environment and safety for large companies, VROM-Inspectie, 2009*. Meerman, P. & Wolfs, R. Projectverslag Systeemgericht Toezicht, Provincie NoordBrabant, 2010*. Parker, C., Regulatory-Required Corporate Compliance Program Audits, Law & Policy, Vol. 25 no. 3, July 2003. Six, F., Vertrouwen in Toezicht, Tijdschrift voor Toezicht, (1) 4, 2010*.
Van Bellen-Weijnen, Juridische Aspecten systeemgericht toezicht, VROM Inspectie, 2009*. Van Bellen-Weijnen, E.B.J., Van Wingerde K., & De Bree, M.A. in Systeemtoezicht in de Procesindustrie, een symposiumverslag, Erasmus Instituut Toezicht & Compliance, 2010 ISBN 978-90-5677-117-1*. Van Dis, D., Master thesis Rotterdam School of Management/Erasmus University Rotterdam, 2011. The documents marked with an asterisk are only available in Dutch.
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A FLAW IN THE CRIMINAL APPROACH OF INTERNATIONAL WASTE TRANSPORT IN EUROPE ROB DE RIJCK Public prosecutor, Functional Prosecuting Service, Rotterdam, The Netherlands, r.de.rijck@om.nl SUMMARY The criminal prosecution of illegal waste transports into, out of, and within Europe is essentially flawed. On one hand, there is international trade in waste at a very substantial scale, and the system that needs to regulate that trade has been set up by the European Union. On the other hand, however, the prosecution of violations of those regulations has been organized exclusively at a national level. National laws and prosecutions too often are not consistent and effective. The European Court of Justice is rarely used to answer questions of legal interpretation and to harmonize among Member States. The EU lacks a prosecutors network for coordinating approaches to charging and sentencing violators. Some first steps towards international harmonization and collaboration should now be made. These should include the organization in Europe of a prosecutors network to enforce the EU waste regulation more systematically, harmoniously, and effectively. 1 THE INTERNATIONAL CHARACTER OF THE TRADE OF THE WASTE TRADE
As a Public Prosecutor in Rotterdam I am in charge of a unit of the Dutch Prosecuting Service, specializing in environmental crime and fraud. One of my responsibilities is to lead investigations into and to prosecute violations of the international rules for waste transport. Rotterdam is one of the main ports in the world and the largest in Europe. In 2009 almost 10 million TEU1 containers passed this port. The Inspectorate of the Netherlands Ministry of Infrastructure and the Environment estimates that 15% of the international container transports concerns waste. If this is true, then in 2009 slightly less than 1,5 million TEU, so 750.000 containers of 40 feet were shipped via Rotterdam that contained waste. If there was something wrong in 10% of these containers, which is a percentage that some Dutch criminological literature mentions for suspicion of fraud in other areas, then we would be looking at a figure of over 70.000 of such containers a year. Prosecuting violations of regulations for these transports is one of the priorities of the Dutch Prosecuting Service. This is certainly the case when they concern transports of hazardous waste to Africa or to Asia. It is a fact that the environmental risks of these are quite considerable. The punishable offences prosecuted are by Dutch law crimes (as opposed to misdemeanours) with a maximum penalty of six
years imprisonment or a high fine. In the Netherlands, 100 to 200 of such criminal cases are dealt with on an annual basis. By definition, this trade is international in nature, and Dutch cases that lead to verdicts are very diverse. Some of these were cases of ship cargoes with demolition waste and asbestos arriving by seagoing vessel from Sicily and from Ireland that were transferred for inland shipping to Germany. There was a case against a Belgian company that transported engine remains from Spain to China via Rotterdam and a case against a French company for the transport of household waste from the United Kingdom to China. A Belgian company took household waste from Ireland to India. And Dutch suspects also have been active. One of the biggest cases so far has been against Dutch suspects whom exported engine and cable waste to China, both via Rotterdam and via Antwerp in Belgium. A Dutch refinery transported industrial ashes by road from Rotterdam to Austria. The Trafigura case attracted attention worldwide, including from the United Nations. It involved the remains of a refinery process aboard the vessel Probo Koala, which was Greek owned. The process had taken place while the vessel was out on the Mediterranean. The multinational company Trafigura, with registered offices in London and the Netherlands, owned this refinery waste. It had made the ship sail the following route: Amsterdam, Estonia, Togo and Nigeria and finally to Ivory Coast.2 2 THE EU WASTE SHIPMENT REGULATION
The regulations that apply to these waste transports and their controls in Europe come directly from the European Union and are thus in force in all its member states. Transport regulation is one of the key responsibilities of the Union. For all cross-border waste transport, the European Waste Shipment Regulation3 establishes the rules for control. One of its objectives is to make the European system comply with the requirements of the Basel Convention. This Regulation has introduced a system of supervision and control for all waste transports into, out of, and within the Union. The Regulation is too complicated to describe in all its legal details within the scope of this paper. It is, however, rather simple to summarize by referring to the Regulations definition of illegal shipments in Article 2 under number 35. The phrases from this definition that are most important for the prosecution practice are the following:
Illegal shipment means any shipment of waste effected: (a) without notification to all competent authorities concerned pursuant to this Regulation; or (b) without the consent of the competent authorities concerned pursuant to this Regulation; or (c) with consent obtained from the competent authorities concerned through falsification, misrepresentation or fraud; or
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() (e) in a way which results in recovery or disposal in contravention of Community or international rules; or (f) contrary to Articles 34, (prohibition of exports of wastes destined for disposal, dR), 36, (prohibition of exports of certain wastes to countries to which the OECD Decision does not apply, dR), (); or ()
One can see that the Regulation introduces a system of export prohibitions and mandatory notifications, which is then elaborated in the Regulation. This system should be applied equally in all 27 member states of the Union. Article 50 of the Waste Shipment Regulation is essential for the enforcement of the Regulation. It is the basis for the criminal approach by the member states that have violations of the Regulation. Clause 1 of this article imposes on all member states the obligation to react with forceful penalties to violations, as follows:
Member States shall lay down the rules on penalties applicable for infringement of the provisions of this Regulation and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive. ()
There is therefore an obligation for the member states to punish violations of the Regulation effectively and it is reasonable to do this by means of criminal prosecution, certainly for the more serious cases. In short, the trade in waste is an outstanding example of a trade that has an international character and for which applicable rules have been drawn up by the European Union. However, criminal sanctioning of these rules occurs exclusively within the member states. I consider this a definite flaw of the system. 3 INTERNATIONAL ASPECTS OF PROSECUTION AND THE LACK OF COORDINATION
An adequate criminal approach of economic offences must be founded on three pillars: (1) the acquisition of information, (2) investigation and (3) prosecution. One could say much about the international aspects of acquiring information and investigation, but the scope of this paper is restricted to prosecution. When the prosecution of violations of the Waste Shipment Regulation is considered, three aspects of a lack in coordination and exchange within the European Union can be seen. First of all, it is not known to which extent there is actual prosecution in the various states when these infringements are detected. Secondly, it is unclear what the policy of prosecution is and, if there is any, whether it is more or less similar in the various countries. And, thirdly, the Dutch court, in any case, does not take into account
what happens elsewhere in Europe when interpreting the rules of the Regulation and imposing sentences. The interpretation of the rules of the Regulation is an issue that is explicitly raised in the defence speeches. In Dutch criminal cases, defences are made that are focused on the interpretation of the Regulation. The defence takes up the position, for example, that the transported containers did not carry any waste or that the presence of waste in Rotterdam was not transit as defined by the Waste Shipment Regulation. The court has to consider these defences explicitly and thus interprets the European rules. Furthermore, if the court deems the violation proven, it has to impose a penalty and therefore needs to have an opinion on which sentence is proper. When doing this, the Rotterdam district court is inclined to follow to a considerable extent the policy on sanctioning of the Public Prosecution Service. The Prosecution Service developed a sanction policy that has as a minimum a fine of 450 per transported ton of waste for the crime of transporting without notifying the competent authorities. For violation of an export prohibition or fraud, sentences are demanded that are far higher. It must be concluded that the Dutch Prosecution Service has little or no knowledge of the prosecution policy abroad and that it developed this sanction policy independently. And as mentioned, the Dutch court does not acquaint itself with decisions by European colleagues when interpreting the rules and imposing sentences. There is no reason to suppose that the courts in other countries do this either. This is a flaw in the implementation of the Regulation, since the interpretation of the European rules and the policy of imposing sentences for these violations should be the same before the courts in Dublin, Bordeaux, Hamburg and Warsaw. 4 URGENCY OF HARMONISATION AND COORDINATION
After all, harmonizing the interpretation of the rules and the imposition of penalties is of great economic interest. The examples mentioned have shown that business enterprises across Europe have a significant stake in the consistent and uniform application of waste transport regulation. And it is equally important that a European competitor be tried similarly for the same offence. This uniformity is needed for the existence of a level playing field for trade and industry in Europe. This is not a theoretical question. In the case against Omni Metal Service4 it turned out that the responsible administrative authorities in various member states interpreted the rules on composite waste entirely differently. Furthermore, there is the example of a transport from Germany to China that was stopped in Rotterdam. The Rotterdam office of the Prosecution Service had intended to offer the German transporter a settlement proposal of 11.000, until it appeared that an administrative authority in Germany had resolved the same question with the amount of 500. (There are also, for that matter, examples in which the German authorities had decided on a similar sanction as the Dutch would have.)
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However, the economic judicial argument is outshone by the conceptual argument on the implementation of legal rules. A rule formulated by the Union that can lead to sentencing in the member states has only genuine significance as a rule in the European legal sphere if the courts in every member state interpret it equally and if its infringement leads to similar sentences in every member state. There is of course the possibility for national courts to submit preliminary questions to the Court of Justice of the European Union. This is in itself an institution to obtain uniformity in the application of the Regulation. It turns out, however, that this institution is very rarely involved in these cases. A brief search on the site of the EU (EUR-Lex) searching with the terms waste and transport5 provided me with 16 judgements by the Court in preliminary procedures. A mere two of these were passed in criminal cases, that is one from 1997 in the Italian case Tombesi and others and the other one from 2007 in the Rotterdam case Omni Metal Service6. This preliminary procedure is important to resolve questions of interpretation, but is insufficiently adequate for the day-to-day practice. It depends on questions raised by courts and these are hardly ever posed. Moreover, a preliminary question will inevitably lead to a considerable delay in the criminal procedure itself. And finally, although this procedure helps to answer questions of interpretation, it does not apply to questions regarding the policy of prosecution or of sentencing. 5 A FIRST STEP TOWARDS HARMONISATION WITHIN EUROPE
This is why the Functional Prosecution Service is of the opinion that the rules of the Regulation will only come into their own as European legal rules that, additionally, may contribute to establishing a level playing field for companies, if the criminal authorities of the member states can all acquaint themselves in simple manner with each others policies and the sentences by their courts. The prosecuting authorities should make their policies known to each other and the national courts should find out about each others interpretation of rules and sentencing. Such an exchange of information about the policy of prosecution and of case law simply does not take place, however, at this moment and in any case not insofar as the Netherlands is concerned. Recently, however, a splendid example of the importance of this exchange was given by a Swedish colleague who asked for Dutch sentences in a Swedish case in which the defendants had violated the export prohibition of Article 36 of the Regulation. She wanted to use this information to substantiate the formulation of the sentence she was going to demand. It would be wonderful if the Swedish court indeed proceeded to involve Dutch sentences in their considerations. And the other way around, in the future the Functional Prosecution Service will only be too pleased to use this Swedish sentence to develop Dutch case law. We should like to continue this first step with some European colleagues, perhaps with the help of the European Commission, in order to repair to some extent the
flaw that we are facing today. The development of a data system might be too big an investment right now, but in the near future it should be possible to start an international network of correspondents on the subject. In the course of 2011 the Belgian colleagues and the Dutch will try to make a start with this. If this leads to European courts taking into account each others case law that will be a marvellous development. For Europe this is ambitious enough. It goes without saying that there is also a worldwide need to harmonize the interpreting of treaties, but building a global network is even further away. However, it should be possible to get some coordination beyond Europe. By this I refer to some kind of consultations with the authorities of the countries to which European waste is transported. This INECE conference might be a first occasion to start that coordination. 6 REFERENCES Twenty feet Equivalent Unit. One 20 feet container equals one TEU; a 40 feet container equals two TEU. 2 On this case, see e.g. Eze, Chukwuka N. LLM (Dalhousie), The Probo Koala incident in Abijan Cte dIvoire : A critique of the Basel Convention compliance mechanism. Eighth International Conference on Environmental Compliance and Enforcement , INECE, 2008, Cape Town, page 351- 361. 3 Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste, which succeeded the Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community. 4 Judgement passed by the Court of Justice of the European Communities in the case C-259/05 on 21 June 2007. 5 This search was carried out in Dutch. 6 Judgement of 25 June 1997 in the joined cases C-304/94, C-330/94, C-342/94 and C-224/95 and the sentence referred to above in the case C-259/05.
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THE ROLE OF COMPLIANCE MONITORING IN INDUSTRIAL ACCIDENTS DIJKENS, CHRIS Director, International Affairs, VROM Inspectorate of the Ministry of Infrastructure and Environment, The Netherlands, chris.dijkens@minvrom.nl; Chair, UNECE Convention on the Transboundary Effects of Industrial Accidents SUMMARY What role does enforcement play in industrial accidents? Authorities as well as industries have a responsibility to minimize the risk of accidents. Industry should do that through solid company policies on prevention and a safety control system, authorities through policy, regulation and legislation and enforcement. Failing enforcement can contribute to the occurrence and severity of accidents. A closer look at the causes of severe industrial accidents with disastrous outcomes teaches us that they do happen merely as a result of a rapid chain reaction of related local factors. Inadequate law enforcement, as well as technical failures, human error and shortcomings in the companys organization, are major contributors. By systematically implementing and following the links in the safety chain, the risk of an industrial accident can be minimized dramatically. Analyzing the shortcomings in the organization and correcting them, is part and parcel of increasingly high security levels. 1 INTRODUCTION Accidents and disasters occur in all shapes and sizes, varying from natural to man-made disasters. All of them have a negative impact on various elements in their environment and can have devastating primary or secondary humanitarian impacts. Man-made accidents are often caused by failures in industrial operations. In the (petro) chemical industry for instance, there is a low risk of accidents. However, when they do happen, the impact can be enormous due to the hazardous substances involved. Even the safest plant is never risk-free. In Europe, the wellpublicized industrial accidents in Seveso, Italy (1976) and Basel, Switzerland ten years later have brought this message home. Both accidents wreaked havoc on their environment. Other accidents, unfortunately, followed with severe negative impact on health and the environment through the release of hazardous substances which contaminated the surrounding area and poisoned local residents or polluted surface waters and soil. These two accidents have made the international community sit up and take notice. For instance, the Seveso accident prompted the Council of the European Union to adopt the first piece of multilateral legislation to prevent and control such accidents, the so-called Seveso Directive1 in 1982. Other accidents, unfortunately, followed with severe negative impact on health and the environment through the release
of hazardous substances, which contaminated surrounding areas and poisoned local residents or polluted surface waters and soil. The 1992 Convention on the Transboundary Effects of Industrial Accidents2 convened to protect people and the environment against industrial accidents by preventing them from occurring, or reducing their frequency, severity and mitigating their effects. Related to both of these international legal frameworks, participating countries have their own regulations concerning the safety of industrial activities on a national level. As a result, risk assessment and accident prevention have received much more attention in the past two decades. Industry itself has been trying to make its operations safer. Authorities have further intensified and professionalized their monitoring and law enforcement. But is this enough? Apart from varying personal and material damage caused by industrial accidents, they always evoke disbelief and indignation. Authorities are frequently accused of being the main culprit because too little monitoring has taken place. The question arises if there is a direct link between insufficient law enforcement and the occurrence of industrial accidents. This paper addresses whether other elements play a major role in industrial safety and how the safety chain is relevant to safety. The factors that contribute to industrial safety will also be touched upon. Who has which role and responsibility in the safety of high risk companies will also be elaborated upon, as well as the key factors that are relevant to safety. To illustrate the coherence between these factors, the so called safety chain will be discussed. 2 THE ORIGINS OF INDUSTRIAL ACCIDENTS
Accident evaluations usually show that a rapid chain reaction of minor circumstances precedes the accident. Each preceding step does not need to indicate an impending disaster; however, the totality of the circumstances causes the disaster to occur. Such a chain of events can be made up of faulty processes that have been applied for years without any major incidents, but will cause critical links in the chain to snap even faster whenever another fault coincides. After the event, it usually becomes clear that all could have been prevented by adjustments like improved safety provisions, better maintenance or sometimes just simply by following the regulations laid down in the license for the activity at fault. The last two decades it has become more apparent that the immediate causes (unsafe acts, human error), do not occur in isolation but are influenced by external factors such as organizational preconditions. A closer look at major accidents indicates that the observed occurrence of multiple errors cannot be explained by a stochastic coincidence of independent events. A related consistent trend is contributing human error to industrial accidents. The publication of Human Error3 in 1990 describes a theory that prevention of human error is most effectively implemented by controlling the work environment instead
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of focusing only on the individual who failed. Safety does not, as many experts believe, depend on the number of technical measures in place. A high proportion of accidents and catastrophes are the obvious result of management errors, like a lack of control. Many of these factors originate from decisions or actions taken by planners, designers or managers who are too far removed from the scene of the accident. 2.1 Role of Authorities
What role do the authorities play in the prevention of disasters? Authorities are expected to play a major role in prevention. The general public wants the authorities to prevent all disasters but, also knows that some are unavoidable. Responsibilities of the authorities before, during and after disasters include regulation, enforcement, damage control and aid. As even the Romans experienced: a smooth functioning government is based upon regulation and enforcement. In theory it is the authoritys responsibility to protect its citizens from harm as well as they can by voicing policy and related legislation, licensing systems and monitoring compliance. In practice, it appears that authorities neglect this duty and as a result put their subjects in an unsafe situation. If policies are not well drafted or unpractical, legislation is not enforceable, or if enforcement is executed badly or not at all, the foundations of authority are weak or absent. Can accidents be prevented by proper monitoring? Usually, after an industrial accident an independent committee is ordered to investigate and report on how it happened and can be prevented in future. These reports show that several related factors influence the chances of an incident or accident (re)occurring. Monitoring compliance is one of these factors. Differentiating, it must be stated beforehand that monitoring is not a cure-all. Lack of monitoring is by far not the most frequent cause of industrial accidents. Some disasters are outside the scope of government due to the deviant character of the disaster.4 A natural disaster like a flood or an earthquake can have a severe impact on an industrial site with catastrophic consequences. The disaster with the Fukushima nuclear power plant caused by the earthquake and the tsunami on 11 March 2011 can be seen as an example of such a type. However, we certainly cannot do without monitoring compliance. This will always remain necessary. 2.2 Role of Industry
The (petro)chemical and processing industries are the sectors that harbor the highest risk of severe accidents with a large impact, albeit with a small chance. The companies themselves are responsible for controlling acceptable risks. This is a responsibility they gladly take upon themselves the industry says, stating that the chemical industry is, from their point of view, one of the safest, which should warrant trust from the authorities.
In order to prevent, and thus minimize the risk of accidents, there is an elaborate system of European regulations in place, ready to be incorporated into national legislation. Limiting the risk of disaster by industry Rules and regulations explain to businesses what they must do to safely execute actions with hazardous materials. They impose on businesses a tangible safety policy for severe accidents and to implement a safety control system with defined elements in order to have the correct preventive and repressive measures in place. Based upon innovative insights and evaluations of real cases, a number of aspects have been singled out that are paramount for a company to factually control risks by implementing them. In this manner the evaluation of the Texas City BP refinery disaster5 shown number of aspects that were lacking in the BP culture, like the necessary leadership in the company, a proper company (safety) culture and the availability of and working with specific process safety indicators. Today, those aspects are included more and more in compulsory rules and regulations. 2.3 Who is Liable for an Accident and its Aftermath?
Individuals, as well as industry and authorities, have a responsibility to prevent accidents and disasters. If this responsibility is not taken seriously and negligence results in an accident, the responsible party can be held accountable. As a rule, the first claims are usually addressed to the company involved. Holding an authority accountable for failing to act is difficult, but is more frequent. The questions if and to what extent the monitoring authority can be held responsible for failing to check compliance adequately are asked ever more frequently. There are cases in which the authorities are found liable for failing to execute specific monitoring duties. This suggests the existence of an expectational norm for accountability. It means largely that, if the inspector has a clear indication that something is wrong, he should intervene to end the unlawful situation. Michiels6 reasons that, as a rule, if in a certain area of policy no monitoring takes place at all, a violation of the legal duty to enforce the law is taking place. If such is the case when the lack of monitoring contributed to an accident, the relevant authority can be liable in whole or part. A recent ruling of the The Hague court7 emphasizes this point. Authorities are definitely not immune to liability cases when failing to live up to their enforcement responsibilities. This means that in more severe cases, insurers will certainly try to recoup the damages from the authorities, as in The Hague case. 2.4 Compliance Monitoring Approach and Frequency Standardization
The approach to compliance monitoring and frequency are recently being standardized and elaborated. Such an intensive monitoring regime is imposed
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on European authorities by the Seveso guideline. The Convention on the Transboundary Effects of Industrial Accidents also holds obligations of this kind for countries. Monitoring should have at least the following elements or answer the following questions: ave the correct dangers and risks been recognized? H Have the right measures been taken? Are these measures being maintained well? Is there a proper system in place that warrants the measures mentioned above? Does the company in question have the relevant prevention policies in place?
The frequency of monitoring depends on the expected changes in the pattern of non-compliance of the business in question. Also, the dynamic of change in the company, which potentially could lead to non-compliance, can be an incentive for reconsidering the frequency of monitoring. Compliance testing should be annual, at which time the above five questions are considered, satisfying the norm derived from the Seveso guideline. Countries that are not bound by this guideline are, of course, at liberty to use it anyway. 3 IMPROVING SAFETY: A MODEL FOR POLICY MAKING AND EVALUATION
The efforts put into warranting safety are being managed through a safety chain. By executing all tasks represented by the elements of that chain, authorities and companies try to ensure safety and prevent and minimize accidents and disasters. When unraveling the safety chain the elements are broken down into actions and activities. Then it becomes clear that businesses have a responsibility and job to do for several elements of the chain in preventing accidents and disasters. The chain approach is widely used for policy making and evaluation, in terms of risk management, and consists of the phases of risk mitigation and crisis management: proaction, prevention, preparedness, response, damage review and follow-up. The elements in the safety chain are interlinked. Continued evaluation will lead to optimal risk and crisis management of accidents and disasters. This is illustrated in figure 1.
Figure 1: Safety chain
After completing the chain the possibility still remains that things will go wrong. This possibility is called rest risk. Practically the more the rest risk is reduced, the higher the price tag. Naturally everybody wants disasters to be prevented at any cost. The question is at what cost the line is drawn. Authorities try to keep the cost at a level that relates to the possible risk. In order to provide all its subjects with an equal level of protection, there are guidelines such as the one that for every one million people that are subjected to a certain risk, one person a year is allowed to die. In that way every risk object can be qualified in cold numbers. For highrisk projects risk evaluations are made which map out possible occurrences. The chances of such an occurrence really taking place are set against the effect such an occurrence will have in terms of victims and damage. There is also a trend in thinking, however, that a purely numerical risk analysis for a complex society, such as ours, is no longer sufficient. Not just the risk is a measurable given, but also the risk experienced by members of the public should play a part in determining the financial efforts put into preventive measures. Numbers from risk analyses alone are not convincing. The perception of safety can sometimes be far less than what the number indicates. This means that society expects their authorities to sympathize with these feelings and spend money on preventive measures that are not solely based on objective numbers. 3.1 The links in the Safety Chain
In this paragraph the links of the safety chain will be treated in order to illustrate and discuss the coherence between the elements of the chain. Insight in this will be demonstrated by outlining an industrial activity and unraveling each link by subject and related activity. In general, the safety chain approach can be used for all types of industries and for all types of risk paths. Of course, the related activities to the subjects will change per type of industry. In this example the safety chain is
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used regarding the risk management of an industrial activity with risks for and by water8. The illustration of individual links further show what subjects authorities and companies are responsible. This approach can be used for existing and new installations of a certain type of industry. A close involvement of the industry and the authorities within the establishment of each link of the safety chain is of high importance. The obligations applicable under existing legislation and policy must be implemented, but also more specifically measures must be taken in connection with permits issued and the several rules which, when complied with, contribute to and encourage a secure a safe environment. These include a variety of measures concerning safety distances to sensitive objects, quantities of dangerous substances which are allowed to be stored, technical safety features, but also organizational measures such as a safety management system. Compliance by the industry with all obligations imposed and the monitoring of compliance by the authorities in each stage of the safety chain is an important responsibility. Each figure, which illustrates a stage of the safety chain, expresses where the authority (in yellow) and the industry (in red) have a specific responsibility. Figure 2: Hazard Management Proaction
Proaction stands for elimination of structural causes of incidents. It includes activities such as standardization, legislation and planning the exclusion or minimization of
hazardous situations. E.g. correct planning and land use can reduce risks by excluding the development of a hazardous industrial complex near residential areas, thus eliminating its effect on human health should an accident occur. Nevertheless, there are many instances in which operations close to populated areas cannot be avoided and will pose health and safety risks. During the pro-action phase, sources that may pose a risk and possibly impact the surroundings are mapped including exposure routes and the objects that may be exposed. Authorities, as well as businesses, have duties and responsibilities under the elements of the pro-action link. Figure 3: Hazard Management - Prevention
The prevention phase is (given this sequence) focused on reducing the effects of an accident which is likely to happen. This mitigation phase differs from the other phases because it focuses on long-term measures for reducing or eliminating risk.9 Risk reduction measures can be structural or non-structural. Structural measures use technological solutions like flood levees or spatial planning. Non-structural measures include legislation, land use planning (e.g. the designation of nonessential land like parks to be used as flooding zones) and insurance. Mitigation is the most cost-efficient method for reducing the impact of hazards. Mitigation includes providing regulations regarding evacuation, sanctioning those who refuse to obey the regulations (such as mandatory evacuations) and communicating potential risks to the public.10
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Figure 4: Crisis Management Preparedness
Despite the first two links working effectively, accidents or disasters may still occur. During this phase organizations have to be prepared for such a scenario. In this preparation planning phase, education, training and drills are some of the ways to prepare for effective responses to incidents. Common preparedness measures include: risk evaluation, accident scenarios including casualty prediction, communication plans for the public and emergency workers; development and implementation of disaster control plans, accident emergency plans etc.; ensuring the readiness and functioning of crisis management instruments; maintenance and training of emergency services such as emergency response teams; development of and rehearsing assessment methods and evacuation plans; development and stocking of inventory, supplies and equipment; and institutionalizing professional emergency agencies, networks and coordination centers.
Figure 5: Crisis Management - Response
Response means actual action taken to relieve the effect of a serious accident or disaster. The response phase includes the mobilization of the first responders in the disaster area. This is likely to include a first wave of core emergency services. They may be supported by a number of secondary emergency services, such as environmental assessment teams. A rehearsed emergency plan, developed as part of the preparedness phase, should now enable an effective coordination and deployment of these services. Also an international organizational response to any disaster should be based on existing and trained emergency management organizational systems and processes.
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Figure 6: Damage Review Aftercare Management (see opposite)
After the initial response the phase, review and recovery is needed to return to a normal circumstances after an incident or disaster. The aim of this phase is to restore, if possible and/or desirable, the area to its previous state. It differs from the response phase in focus. Damage review and recovery efforts deal with issues and decisions that must be made after the immediate needs are resolved. Recovery actions include replacing destroyed property and vital infrastructure. An important aspect of recovery is evaluation.
Figure 7: Follow up on incidents Aftercare Management
The evaluation should not be limited to just finding the cause(s) or the response to the disaster, additionally efforts should also be made to evaluate the state of affairs during the period leading up to the incident or disaster (the pro-action and prevention phases). The results of which should be reintroduced into the pro-action and prevention phases as soon as possible. The aftermath of a disaster provides a window of opportunity for legislation to implement proactive and preventive measures and strengthen emergency responses. The implementation of mitigation strategies can be considered part of the recovery process if applied immediately after a disaster has occurred.11 Finding (latent) failures and root causes of accidents is the only way to stop the reoccurrence of such incidents and are therefore vital for improving the safety of industrial activities. Hence, incident investigation and analysis are essential parts of the identification of risk and managing the industrial processes safety. The quality of the investigation and analysis determines on what remedial level actions can take place. The better they are, the better the insight will be obtained in the systemic causes of incidents. On the basis of the identification and remediation of these systemic causes, strategies can be developed to prevent future incidents. Several instruments are in use for these analyses which initially focus on the mechanics of the accident (the facts concerning the events and their consequences, including potential consequences) and use it as a structure to identify the hazard management measures (the controls and defenses) that should have been in place.
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4 CONCLUSION It takes more than just a technical hiccup to cause a serious industrial accident. A speeding chain reaction consists of minor festering environmental factors which are insignificant in themselves, but they can, through a causal nexus, lead to disastrous events. The systems built-in barrier of defense begins failing and causing the last critical links in the chain to overload and break. The prime responsibility for safety lies within the industry and they can show this by having solid prevention and safety programs in place. They have to show that by having a solid prevention policy and safety control systems. However, very often these are lacking. By the combination of an absence of an in-company safety culture and faltering leadership, society could be presented with the genesis of a major accident or disaster. Authorities can fail in their duty to monitor compliance adequately. In doing so, they can play a part in the cause of a disaster. By not implementing or enforcing legislation or condoning unsafe situations, authorities have a share in the blame for causing disasters. Even if officials are insufficiently aware of risks or inadequate legislation, they are already contributing to a disaster. It must be stated, however, that even if the authorities did their job perfectly, disasters would still occur. So, only by systematically going through checks of all aspects of the safety chain and following up on the findings, the chances and effects of severe accidents will be minimal. Analyses of any shortcomings and their correction are part of safety enhancement. 5 REFERENCES Seveso Directive, 82/501/EEC, 1982. http://www.unece.org/env/teia/. 3 Reason, 1990. 4 Bovens en t Hart, 1998. 5 See also: http://www.bp.com/liveassets/bp_internet/globalbp/globalbp_uk_english /SP/STAGING/local_assets/assets/pdfs/Baker_panel_report.pdf. 6 Michiels, F.C.M.A, oktober 2006, Houdbaar handhavingsrecht ( In Dutch). 7 Court ruling LJN BP8578 Court of Gravenhage 105.022.405/01 concerning a fire in the chemical company CMI. 8 This example contains elements of a presentation of Winkelmann-Oei, Gerhard, Federal Environment Agency, Umweltbundesamt, Berlin, Germany (2011). 9 Haddow, George D.; Jane A. Bullock (2004) Introduction to Emergency Management. 10 Lindell, M., Prater, C., and Perry, R. (2006). 11 Haddow, George D.; Jane A. Bullock (2004). Introduction to Emergency Management.
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THE IMPLEMENTATION OF THE ENVIRONMENTAL CRIME DIRECTIVES IN EUROPE FAURE LL.M, PROF. DR. MICHAEL G. Flemish High Council of Environmental Enforcement, Koning Albert II-laan 20 bus 15 Brussels, Belgium, faure@frg.eur.nl SUMMARY On 19 November 2008, Europe promulgated Directive 2008/99/EC on the protection of the environment through criminal law. This directive forces the European Member States to use criminal law to enforce legislation implementing environmental directives. The use of criminal law is meant to increase the effectiveness of European environmental legislation since it is believed that only criminal law will have a sufficiently deterrent effect. Specific environmental offences listed in the directive, such as particular discharges or emissions, shipment of waste or operation of a plant in which a dangerous activity is carried out, must have been committed unlawfully and intentionally, or at least with gross negligence, to meet the criminal law provisions. This directive had to be implemented by the European Member States by 26 December 2010. For some Member States, that already had a very elaborate protection of the environment through criminal law, the directives will probably not change that much and implementation could be relatively easy. However, for some Member States which did not have an elaborate protection awarded to the environment via criminal law yet, the directive may bring important changes. Those Member States will have substantial work implementing the directives. The goal of this contribution is to briefly sketch this important European directive which stresses the role of the criminal law in enforcing environmental legislation. Attention will also be paid to its implementation in (some) Member States. 1 INTRODUCTION After the Court of Justice paved the way for the enforcement of (environmental) Directives through the use of criminal law with its landmark decision of 13 September 2005,1 important steps were taken by means of Directives to oblige Member States to provide for criminal penalties in their national legislation for serious infringements of environmental protection provisions of community law on the protection of the environment. The first step was taken in Directive 2008/99/EC of 19 November 2008 on the protection of the environment through criminal law2 and subsequently in another environment-related Directive (Directive 2009/123/EC of 21 October 2009 amending Directive 2005/35/EC) on ship-source pollution and on the introduction of penalties for infringements.3
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The deadline for implementation of Directive 2008/99 was, according to Article 8, 26 December 2010 and for Directive 2009/123, according to Article 2, 16 November 2010. At the time of writing this contribution (December 2010) in theory both directives should have been implemented in Member States law. However, it is very likely that this is actually not the case yet and, in fact, many Member States are indeed still struggling with either the implementation itself, or with the reporting requirements to the EU Commission on the way the Directives have been implemented. The goal of this contribution is to briefly sketch the contents and importance of these environmental crime directives. For some Member States which already had elaborate environmental criminal law provisions, the directives will probably not change a great deal and implementation should be relatively easy. However, for those Member States which did not have elaborate environmental criminal law provisions, the Directives may bring important changes. Those Member States will have substantial work implementing them. In this brief contribution, the provisions of the Environmental Crime Directives will be presented and the specific structure of the environmental crimes incorporated in the Directive will be discussed. Particular problems may come up during the implementation phase which will be addressed as well. One potential problem is the requirement in the Directive that effective, dissuasive and proportionate penalties should be introduced. Another problem is that a variety of ambiguities in the directives may give rise to implementation problems as well. Section 6 concludes. 2 DIRECTIVES 2008/99 AND 2009/123
Directive 2008/99 holds in consideration that experience has shown that the existing systems of penalties have not been sufficient to achieve complete compliance with environmental laws Such compliance, so the text continues, can and should be strengthened by the availability of criminal penalties, which demonstrate a social disapproval of qualitatively different nature compared to administrative penalties or a compensation mechanism under civil law. Consideration 10 explains that the Directive obliges Member States to provide for criminal penalties in their national legislation for serious infringements of provisions of community law on the protection of the environment. However, the text makes it equally clear that the Directive creates no obligations regarding the application of such penalties, or any other available system of law enforcement, in individual cases. Specific behaviour defined in article 3 of the Directive will constitute a criminal offence when committed unlawfully (which is equally defined in article 2(a) of the Directive). Article 5 provides that Member States shall take the necessary measures to ensure that the offences referred to in articles 3 and 4 are punishable by effective, proportionate and dissuasive penalties. As far as legal entities are concerned, this is repeated in article 7. A similar model is followed in Directive 2009/123 concerning ship-source pollution.
Consideration is also based on the policy that criminal penalties, which demonstrate social disapproval of a different nature than administrative sanctions, strengthen compliance with the legislation on ship-source pollution in force and should be sufficiently severe to dissuade all potential polluters from any violation thereof. A new article 5a stipulates that specific infringements will have to be regarded as criminal offences and a new article 8 provides that each Member State shall take the necessary measures to ensure that infringements within the meaning of articles 4 and 5 are punishable by effective, proportionate and dissuasive penalties. Also, Directive 2009/123 has specific provisions concerning the liability of legal persons. Article 8 therefore provides that legal persons who are held liable will be punishable by effective, proportionate and dissuasive penalties. 3 OFFENCES 3.1 Unlawfulness Looking first at the offences in Directive 2008/99 one should first of all establish that according to the formulation in article 3 all of them require unlawfulness which is defined in article 2(a) as infringing: the legislation adopted pursuant to the EC treaty and listed in annex A; or with regards to activities covered by the Euratom treaty, the legislation adopted pursuant to the Euratom treaty and listed in annex B; or a law, and administrative regulation of a Member State or a decision taken by a competent authority of a Member State that gives effect to the community legislation referred to in (i) or (ii). 3.2 Specific Offences
Article 3 of Directive 2008/99 distinguishes 9 offences which I will briefly discuss:

(a) the discharge, emission or introduction of a quantity of materials or ionising radiation into air, soil or water, which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, the quality of soil or the quality of water, or to animals or plants.
The first part of the provision (discharging or emitting or introducing a quantity of materials into air, soil or water) seems to punish the concrete endangerment of the environment. However, the second part provides specific conditions: the emission must cause or be likely to cause death or serious injury to any person, or, cause substantial damage to the quality of air, soil, water, animals or plants would be caused. The first condition focuses on human health and the latter focuses on the environment. This criminal provision is therefore aimed both at activities which cause damage (concrete harm) or emissions (endangerment).
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(b) the collection, transport, recovery or disposal of waste, including the supervision of such operations and the after-care of disposal sites, and including action taken as a dealer or a broker (waste management), which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, the quality of soil or the quality of water, or to animals or plants.
The collection, transport, recovery or disposal of waste focuses on the abstract endangerment of the environment. However, as in provision (a), there is a requirement that this act would either cause or be likely to cause damage to human health or the environment. Including both phrases likely to cause and causes is about punishing not only concrete harm but also the risk of concrete harm. It is important to distinguish the penalties concerned between cases where only substantial damage to the environment is caused and cases where death or serious injury to any person is concerned, which would make the crime obviously more serious.
(c) the shipment of waste, where this activity falls within the scope of Article 2(35) of Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste [6] and is undertaken in a non-negligible quantity, whether executed in a single shipment or in several shipments which appear to be linked.
This is perhaps a harder provision to classify. To the extent that there is merely unlawful shipment of waste it is the unlawfulness of the shipment that is penalized which would make it an abstract endangerment crime. However, since it also includes a requirement that the shipment should be undertaken in a non-negligible quantity one could equally argue that this unlawful shipment also caused threat of harm to the environment, which would make it a concrete endangerment crime. That would, however, require that there also be unlawful disposal of the waste. The endangerment created by the shipment could be merely abstract, whereas an endangerment created by disposal or abandonment would be concrete.
(d) the operation of a plant in which a dangerous activity is carried out or in which dangerous substances or preparations are stored or used and which, outside the plant, causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, the quality of soil or the quality of water, or to animals or plants.
Again, this is an example of a rather complicated formulation: the unlawful operation of a plant is a classic example of an abstract endangerment crime. However, in this case the condition is added that this operation would cause or would be likely to cause death or serious injury to humans or to the environment. Here the same comments apply as to provisions (a) and (b). To the extent the provision focuses on causing personal injury or harm to the environment, it can be considered a concrete harm crime; to the extent that this operation is merely likely to cause these effects, it would be a concrete endangerment crime.
(e) the production, processing, handling, use, holding, storage, transport, import, export or disposal of nuclear materials or other hazardous radioactive substances which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, the quality of soil or the quality of water, or to animals or plants.
In this respect we can be short since the provision has the same construction as (d). It is either a concrete endangerment crime or a concrete harm crime depending on whether the endangerment (likely to cause) or concrete harm (causes) is required.
(f) the killing, destruction, possession or taking of specimens of protected wild fauna or flora species, except for cases where the conduct concerns a negligible quantity of such specimens and has a negligible impact on the conservation status of the species.
Here the classification is relatively simple since killing, destruction, possession or taking all seem to require a specific consequence, which goes beyond the mere endangerment. It is the concrete harm being punished here. However, taking a closer look one notices that once more the provision in fact hides various types of behaviour of a different nature: killing and destroying specimens of protected wild fauna or flora could definitely be considered a concrete harm. However, the possession or taking of those specimens could, but should not necessarily be the same degree of seriousness to the extent that restoration is still possible. In that case, it could be argued that possessing or taking those specimens certainly constitutes a concrete endangerment. This may be an argument in favour of differentiating the penalty between, on the one hand possession or taking, and on the other hand killing and destroying, whereby the latter would obviously be more serious.
(g) trading in specimens of protected wild fauna or flora species or parts or derivatives thereof, except for cases where the conduct concerns a negligible quantity of such specimens and has a negligible impact on the conservation status of the species.
This seems more like an abstract endangerment crime, comparable to offence (c) discussed above (unlawful shipment of waste). After all, unlawful trading in protected wild fauna or flora may lead to an endangerment of particular values, but the endangerment is rather abstract. The focus of the offence is rather on the unlawful character of the trading, which would make it an abstract endangerment crime and hence less serious than the offences protecting similar values in (f).
(h) any conduct which causes the significant deterioration of a habitat within a protected site.
This provision seems to be relatively easy to classify since a concrete harm is required (significant deterioration of a habitat within a protected site) which makes it a concrete harm crime with an environmental focus.
(i) the production, importation, exportation, placing on the market or use of ozonedepleting substances.
Here again the provision is rather difficult to classify since at least five different types of behaviour are mentioned which can all potentially endanger the ozone layer, but in some cases the danger may be merely abstract (for example in case of production) whereas in other cases the danger may be more concrete (placing on the market) or could even lead to concrete harm (use of ozone-depleting substances).
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Turning now briefly as well to the other Directive, 2009/123 on ship-source pollution we can be relatively short since article 4.1 merely provides for one offence being:
Ship-source discharges of polluting substances, including minor cases of such discharges, into any of the areas referred to in article 3(1).
These unlawful discharges are typically concrete endangerment crimes and could moreover be classified as presumed endangerment: proof of harm or threat of harm to the environment is not required, merely unlawful emission. 3.3 Judge or Legislator?
This way of looking at the various offences in the directives has the advantage of providing guidance on how to take the seriousness of the offense into consideration when considering the level of statutory penalty. An important question in that respect is, of course, whether the differentiation according to the protected interests should be reflected in the legislation (that may ideally be the case) or whether a broader range of penalties should be made available and hence there would be larger reliance on the discretionary powers of the judge to match a particular penalty to a specific offence. Arguments can be made in both directions. The judge will undoubtedly ex post have the best information on how the specific behaviour affected the values protected by the legislator and would thus be in a good position to determine what constitutes a proportionate penalty for the particular offence. However, the argument could also be made that it should primarily be the democratically elected legislator that makes ex ante the decision of what type of penalties will apply to what type of behaviour. Of course the principle of legality requires that the conditions for criminal liability should be specified by the legislator and the requirement of lex certa also implies that conditions for criminal liability should be specified as clearly as possible. Even though the legislator should determine the penalties there is still the option of providing very broad penalty provisions, hence allowing a large amount of discretion to the judge to determine which would be a proportionate penalty for a particular offence. 4 EFFECTIVE, PROPORTIONAL AND DISSUASIVE PENALTIES
Both directives underline that penalties will have to be effective, dissuasive and proportionate. This is a notion which comes from the European Court of Justice. The Court held that even though Member States remain free in the choice of instruments for the implementation of a directive, the penalties in case of violation of implementing legislation should at least be effective, proportionate and dissuasive. This was held by the Court in the so-called Greek Corn Case.4 It would go too far to discuss in detail how these three notions could be implemented by the Member States, but a few indications are provided below.5
4.1
Effectiveness
Effectiveness requires that the penalty furthers the goals set by the legislature. Given that the goal of European environmental law is to reach a high level of environmental protection, penalties should further this goal. The effectiveness of a penalty will to a large extent depend upon its ability to create specific and general deterrence. This is closely related to the second requirement, that penalties should be dissuasive. A specific element of effectiveness of penalties in environmental criminal law is that two additional functions can be distinguished (in addition to dissuasion): A second function is that the penalty should also aim at restoration of harm caused in the past. This is sometimes translated in the notion that the penalty should lead to a restitutio in integrum. In simple words, it means that the penalty should also lead to the consequences of the environmental crime being undone by the perpetrator. This may of course have consequences for the type of penalty chosen. A third function of the penalty is that not only harm caused in the past should be undone, but that the penalty should equally aim at prevention of future harm. For example, it may make little sense to impose a heavy monetary penalty upon a legal entity, if one knows that the installation which is the source of the pollution is still going to be used by the firm which paid the fine. Hence, the penalty system must also aim at preventing the continuation of the pollution. These specific functions of the criminal penalty (restoration of harm done in the past and prevention of future harm) are probably specific to environmental criminal law and may have consequences for the type of penalties chosen. These functions may be quite important as indicators of the effectiveness of an environmental criminal penalty system. 4.2 Dissuasiveness In addition, penalties must be dissuasive. Economic theory can be used to explain when potential polluters will be dissuaded from committing environmental crime. Economic theory predicts that if B = benefits p = probability of being detected, prosecuted and convicted S = sanction actually imposed then the decision of the violator depends on: B pxS This simple formula indicates what the goal of criminal law should be in terms of deterrence: sanctions should be of such a type and magnitude that the expected costs are higher than expected benefits to the perpetrator. In this way, it could be held that penalties would be effective and dissuasive.
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A simple example could illustrate this. Suppose that the benefits from an environmental crime (for example costs that can be saved) are 10.000 and that the sanction that would be imposed in case of a conviction would be 100.000. If the probability of detection would be 10% and the probability of conviction 50% the expected cost for the polluter would be 10% x 50% x 100.000 = 5.000. This simple example shows that ex ante a rational polluter would decide to commit the crime for the simple reason that his expected benefits ( 10.000) are higher than the expected costs ( 5.000). A conclusion at the policy level from this simple model is that the penalties imposed are not only strongly linked to the expected benefits to the perpetrator, but also to the resulting harm to society: the larger the harm to society from an environmental crime and the larger potential benefits to the perpetrator, the higher the expected penalty will have to be to reach an effective dissuasion. Second, the optimal penalty to be imposed ex post will, to a large extent, depend upon the likelihood of being apprehended, prosecuted and convicted. The lower the probability of detection, the higher the ex post penalty must be. One, admittedly rough, conclusion from this formula is that it would be interesting to verify on the basis of the nature of the crimes whether it is possible to predict whether particular violations would lead to higher benefits to the polluter, larger harm to society and a low probability of detection. Those would all be indications of the necessity to deter with higher penalties. 4.3 Proportionality The proportionality requirement can be met when one examines (as the author did above in 3.2) what the particular interests are which are protected by the specific crimes. If a crime would merely protect administrative interests, it is a less serious than when ecological values would be protected. The most serious crimes should be those which place human interests (human health or life) at stake. Moreover, the manner in which the interests are infringed is also important: causing concrete harm to an interest is of course more important than merely endangering an interest and creating a concrete danger is again more serious than merely an abstract danger. The advantage of looking at the various offences in this way is that one can focus on the type of values protected by the offence (merely environmental values or also human health) and the way in which these values are endangered by a particular behaviour can also be distinguished. It allows us to differentiate between situations where a particular behaviour merely constitutes an abstract danger to a particular value, a concrete danger or actually harms the protected value (environment or human health). To the extent that the protected values become more endangered or harmed by particular behaviour it may make sense to reflect this in the level of the statutory penalties as well. Hence looking at the offences in this way may provide some guidance, at least as far as the question is concerned, on how the seriousness of different offences can be compared and how this can subsequently be reflected in the levels of the statutory penalties.
5 IMPLEMENTATION An issue that arose during the implementation process is that Directive 2008/99 refers to a variety of rather vague notions. Preamble 5 to the directive refers to the fact that in order to achieve effective protection of the environment, there is a particular need for more dissuasive penalties for environmentally harmful activities, which typically cause or are likely to cause substantial damage to the air, including the stratosphere, to soil, water, animals or plants, including to the conservation of species. These vague notions also appear in the specific offences listed in the mentioned directives, and presented above in section 4.3. The notion of substantial damage is for example used in article 3(a), (b), (d) and (e) of Directive 2008/99. Other vague notions are used as well. For example Articles 3(c), (f) and (g) of Directive 2008/99 refers to (non) negligible quantities or impacts and Article 3(d) of Directive 2008/99 refers to dangerous activities and substances. To some extent the use of these vague notions in criminal law may be problematic since it would violate the lex certa requirement which follows from the legality principle in criminal law and requires that the law should be sufficiently precise for the potential perpetrator to know whether he will fall under the scope of the criminal law or not. Given the case law of the Court in Strasbourg, it may be necessary for the legislator to provide a further detail in order to interpret the vague language used in the directives. The question then arises where one can find such an indication. To some extent the answer is obvious since the notion of unlawfulness as defined in article 2(a) refers directly to the European legislation listed in annexes A and B. Relying on those would have several advantages. First of all these directives are (or at least should have been) transposed into national law and hence there is Member States legislation implementing the directives listed in annexes A and B on which a criminal provision could rely. Second, the advantage of using (to the greatest extent possible) legislation implementing these Environmental Directives would create more unity in the environmental criminal legal framework. After all, the unlawfulness notion refers to that type of legislation; hence it would be logical that such legislation is also used by giving further guidance to the vague notions. Third, the alternative of another type of interpretation would simply mean that every Member State could in principle provide its own interpretation to what it understands by the vague notions in the Environmental Crimes Directives. With a bit of imagination it is hence not difficult to find possibilities to interpret a lot of the vague notions referred to in the Environmental Crimes Directives in the directives listed in Annex to Directive 2008/99 and even to some extent in other environmental directives (not listed in Annex). To the extent that quality standards have been determined or dangerous substances have been defined by Member States this may be very helpful for Member States who wish to provide more precision in their legislation. To an important extent, national legislation implementing European Environmental law may hence be called on by Member States wishing to provide more precision and guidance in the implementation of
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vague notions contained in the Environmental Crimes Directives. This may on the one hand better satisfy the lex certa principle and on the other hand also provide the harmonising effect desired by the European Commission.6 6 CONCLUDING REMARKS
The European Environmental Crimes Directives discussed in this contribution are quite important for a variety of reasons. It is, after a long constitutional conflict, the first time that Member States are forced to use the criminal law to penalize violations of national legislation, implementing European law. They constitute an important step towards a truly European environmental criminal law. Of course one could criticise this tendency and wonder whether a European criminal law is really needed. Questions could especially be asked concerning the exclusive focus on the criminal law as a sanctioning mechanism, since the Commission apparently attaches a lot of weight to the criminal law compared to other remedies such as administrative penalties. Those reflections are to some extent no longer relevant since Member States will have to deal with the directives which, at the time of writing, should already have been implemented. The directives impose, as we showed above, very precise obligations upon the Member States as far as criminalising particular environmental offences are concerned. This raises particular questions e.g. with respect to the implementation technique that will be chosen. The European Commission will not have an easy task in verifying compliance with the directive, since the question can be asked how one can verify whether penalties imposed in Member States legislation are indeed truly effective, proportional and dissuasive and the question can equally be asked how Member States will interpret some of the ambiguities included in the directive. They can, as I suggested, find some inspiration in other environmental directives. Most important is perhaps whether the European citizen will notice an impact from these European directives as far as increased environmental protection is concerned. That will, as is often the case with European Environmental law, to a large extent depend upon the state of environmental criminal law in the particular Member States today. For some Member States, that already had a very elaborate protection of the environment through criminal law (and who should therefore not have a lot of work in implementing the directives), the directives probably do not change much. However, for Member States that did not have such an elaborate protection awarded to the environment via criminal law yet (and who will hence have substantial work implementing these directives), it will actually mean that a potentially better protection is provided to individuals against environmental pollution. However, even in these cases the protection remains potential. After all, the problem is that it will not suffice to impose effective, dissuasive and proportionate penalties in legislation. They also have to be implemented. This is an issue which is well recognised by the European Court of Justice as well: in its well-known Spanish Strawberries Case7 the Court held that a lack of effective prosecution against violators of legislation can be considered as a violation of European law. That is hence the
next issue to which attention will have to be paid as well: after providing a solid theoretical framework the focus should now turn to improving the enforcement system. Indeed, the effectiveness of a criminal law system is to a large extent also dependent upon its enforcement in practice. That may in many Member States still be a source of worry and should hence be a source of attention as well. 7 REFERENCES Case C-176/03 of 13 September 2005; for a comment see Comte, F., Criminal environmental law and community competence, European Environmental Law Review, 2003, 147-156; Comte, F., Environmental crime and the police in Europe: a panorama and possible paths for future action, European Environmental Law Review, 2006, 190-231; Heidemann-Robinson, M., The emergence of European Union environmental criminal law: a quest for solid foundations, Environmental Liability, 2008, 71-91 and 111-136; Pereira, R., Environmental criminal law in the first pillar: a positive development for environmental protection in the European Union?, European Environmental Law Review, 2007, 254-268 and Ryland, D., Protection of the environment through criminal law: a question of competence unabated?, European Energy and Environmental Law Review, 2009, 91-111. 2 OJ L328/28 of 6 December 2008. 3 OJ 280/52 of 27 October 2009. 4 ECJ 21 September 1989, Case C-68/88. 5 A more detailed analysis is provided in Faure, M., Effective, proportional and dissuasive penalties in the implementation of the Environmental Crime and Ship-Source Pollution Directives: Questions and Challenges, European Energy and Environmental Law Review, 2010, 256-278. 6 For further details on the problems caused by the vague notions in the environmental crimes directives see Faure, M., Vague notions in environmental criminal law, Environmental Liability, 2010, 119-133 and 163-170. 7 ECJ 9 December 1997, Case C-265/95.
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8 BIBLIOGRAPHY Case C-176/03 of 13 September 2005. Comte, F., Criminal environmental law and community competence, European Environmental Law Review, 2003, 147-156. Comte, F., Environmental crime and the police in Europe: a panorama and possible paths for future action, European Environmental Law Review, 2006, 190-231. ECJ 21 September 1989, Case C-68/88. ECJ 9 December 1997, Case C-265/95. Faure, M., Effective, proportional and dissuasive penalties in the implementation of the
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Environmental Crime and Ship-Source Pollution Directives: Questions and Challenges, European Energy and Environmental Law Review, 2010, 256-278. Faure, M., Vague notions in environmental criminal law, Environmental Liability, 2010, 119-133 and 163-170. Heidemann-Robinson, M., The emergence of European Union environmental criminal law: a quest for solid foundations, Environmental Liability, 2008, 71-91 and 111-136. OJ 280/52 of 27 October 2009. OJ L328/28 of 6 December 2008. Pereira, R., Environmental criminal law in the first pillar: a positive development for environmental protection in the European Union?, European Environmental Law Review, 2007, 254-268. Ryland, D., Protection of the environment through criminal law: a question of competence unabated?, European Energy and Environmental Law Review, 2009, 91-111.
IMPLEMENTATION OF KEY MULTILATERAL ENVIRONMENTAL AGREEMENTS IN SOUTH EASTERN EUROPE FILIPOVA, TSVETELINA BORRISOVA1 and MESQUITA, BRUNO2 Senior Project Manager/Lawyer, Regional Environmental Center, Law Enforcement & Compliance team, REC Head Office, 2000 Szentendre, Ady Endre ut 9-11, Hungary, LEC@rec.org.
1
Project Officer, Regional Environmental Center, Law Enforcement & Compliance team, REC Head Office, 2000 Szentendre, Ady Endre ut 9-11, Hungary, LEC@rec.org.
2
SUMMARY This paper focuses on the implementation of international legal mechanisms at regional and national levels in South Eastern Europe, and, specifically, on their implementation status, challenges and lessons learned. The chosen pan European Multilateral Environmental Agreements (MEAs), developed under United Nations Economic Commission for Europes umbrella, are: the Convention on the Transboundary Effects of Industrial Accidents (Accidents convention), the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) and the Protocol on Strategic Environmental Assessment, and the Convention on the Protection and Use of Transboundary Watercourses and International Lakes(Water Convention). We also seek to highlight the key issues that the countries in question faced and how they approached or overcame them. Our investigation is restricted to the mining sector and its environmental implication in trasboundary context and, in particular, the potential impact on international waters. In addition the paper will explore links and possible synergies between the selected MEAs and pertinent European Union environmental legislation, with the aim to identify opportunities for resource-efficient implementation. The paper is based primarily on the analysis and data contained in the reports and publications listed in the bibliography section. 1 BRIEF OVERVIEW OF THE REGION
For the purposes of this paper, South Eastern Europe consists of the following countries: Albania, Bosnia and Herzegovina, The Former Yugoslav Republic of Macedonia (hereinafter referred to as Macedonia), Serbia, Montenegro and Kosovo (under UNSCR 1244). The total population of these countries is a little less than 20 million people spread over an area of around two hundred thousand square kilometers, making this group of countries comparable to Romania (as a mere reference point) both in terms of land area and population. The region has an average gross domestic product per capita in USD Purchasing Power Parity ) of 7800, a mere 24% of the European Unions gross domestic product as a whole (USD 32900). In
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terms of life expectancy at birth, the group of 6 countries is averaging at 76.5 years, whereas in the European Union (EU) the same index is at 78.8 years, reflecting poorer living and environmental conditions. The lag in economic development is however not affecting the Balkans sizeable ecological footprint, which stands at 3.18 global hectares of land as opposed to the maximum of 1.28 hectares that the region could support, representing a large deficit of 1.9 hectares per capita. The 1.9 deficit is very similar to the average deficit for Middle Income Countries, even though the majority of the South Eastern European countries are classified as Low Income. This situation brings to light the fact that the Balkans have an unsustainable use of resources and corresponding waste production, making environmental issues very relevant for South Eastern Europe. Unfortunately, standardized data collection in the region is still insufficient and hampered by the political developments of recent years and weak institutions. For instance, it is hard to find reliable and comparable data for Montenegro and Kosovo (as recent political entities). It is therefore a challenge to build an accurate and global picture of status of environment in South Eastern Europe, and the real impact of the implementation of the Multilateral Environmental Agreements (MEA). Table 1: General Statistic data on South Eastern Europe
Countries Albania Bosnia and Macedonia Herzegovina 4,662,163 78.81 $6,600 2,077,328 75.14 $9,400 Serbia 7,310,555 74.32 $11,000 Montenegro 661,807 Total (T) or average (A) 1,825,632 (T) 19,532,152 (A) 76.42 $2,500 (A) $7,800 Kosovo
Population 2,994,667 Life 77.41 expectancy (years) GDP * $7,400 capita PPP** in USD (2010 Est.) Area 28,748 (sq km) Ecological Footprint (Gha/capita 2007)*** Biocapacity (Gha/capita 2007)**** 1.9
$9,900
51,197 2.7
25,713 5.7
77,474 2.4
13,812
10,887
(T) 207,831 (A) 3.18
0.9
1.6
1.4
1.2
(A) 1.28
Source: The CIA World Fact Book, https://www.cia.gov/library/publications/the-worldfactbook/index.html, visited in April 2011 * Gross Domestic Product ** Purchasing Power Parity ***Global hectares (gha) percapita **** Data from the The Foot Print Network, www.footprintnetwork.org, visited in April 2011
RATIFICATION STATUS OVERVIEW OF MULTILATERAL ENVIRONMENTAL AGREEMENTS
The countries within the focus of this study made a significant progress in the last few years in terms of ratification and accession to the conventions within the scope of the paper. As demonstrated in Table 2 three of them have become parties to the Accident convention in the period between mid 2009 and beginning of 2010. Ratification happened fairly soon and, considering the common practice in the region of putting necessary legislation, administrative structures and concrete measures in place subsequent to ratification, the countries have still a long way to go to ensure full and efficient implementation. Albania, being the first to ratify the convention from the South Eastern European region, was notably lacking in proper implementation and the necessary institutional set up and instruments to adequately ensure implementation. In spite of stating in an international conference that ratification of the Accident convention is high on the agenda of Bosnia and Herzegovina, no concrete steps toward ratification have been taken. All the South Eastern European countries ratified the Espoo Convention, whereas similarly to the Accident convention, Albanias ratification preceded the neighboring states, since it was promulgated in 1991. However the 1st and 2nd amendments of the Espoo Convention were ratified only by Albania and Montenegro. It is important to note that the Protocol on Strategic Environmental Assessment has been ratified by all the South Eastern European countries. The Convention on the Protection and Use of Trasboundary Watercourses and International Lakes (Water Convention) is ratified by Albania, Bosnia and Herzegovina and Serbia. Its adoption is under consideration in Macedonia and Montenegro.
Table 2: Ratification Status of Multilateral Environmental Agreements

Convention on Environmental Impact Assessment in Transboundary Context (Espoo) Espoo 1st Amendment (2001) Espoo 2nd Amendment (2004) Protocol on Strategic Environmental Assessment (Enters into force in 2010) Convention on the Protection and Use of Transboundary Watercourses and International Lakes 5 January 1994 (Ratification) 3 December 2009 (Accession) 27 August 2010 (Accession) 2 November 2009 (Ratification) WC Amendment (2003)
Convention on the Transboundary Effects of Industrial Accidents
Albania
5 January 1994 (Ratification) 14 December 2009 (Accession) 31 August 1999 (Accession) 18 December 2007 (Accession) 9 July 2009 (Accession) 9 July 2009 (Ratification) 9 July 2009 (Ratification) 21 May 2003 (Signature) 8 July 2010 (Ratification) 21 May 2003 (Signature)
4 October 1991 (Ratification)
12 May 2006 (Acceptance)
12 May 2006 (Acceptance)
2 December 2005 (Ratification)
Bosnia and Herzegovina
27 January 2010 (Acceptance) 27 August 2010 (Accession)
Macedonia
FyROM
2 March 2010 (Ratification)
Serbia
31 July 2009 (Ratification)
Montenegro
19 May 2009 (Ratification)
Kosovo
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BRIEF IMPLEMENTATION ANALYSES OF MULTILATERAL ENVIRONMENTAL AGREEMENTS
The South Eastern Europe region is a specific geo-political cluster within Europe. In the last 20 years, the region went through, on the political sphere, State deconstruction, war and State reconstruction, whereas in the economic sphere it went from a centrally planned economy to a market based one. The background of each country differs, but the impact of transitions that affected the region created and revealed a set of shared or very similar problems in the countries under focus: Albania, Bosnia and Herzegovina, Macedonia, Serbia, Montenegro, Kosovo (UNSCR 1244). In this group, we would like to point out that Kosovo, is still in the process of acceding to internationally recognized statehood and does not have the legal capacity to accede to international conventions. However, the problems Kosovo faces are in line with those one can perceive for the other countries, especially when it comes to implementing European Unions policy objectives. The rapid increase in MEAs addressing a multitude of environmental concerns and the wide range of decisions taken by their governance bodies has resulted in widespread concern that MEAs are neither complied, enforced nor adequately implemented and that implementation efforts at both national and international levels are insufficiently coordinated. Studies by UNEP (EC Environmental Law and Multilateral Environmental Agreements for Europe, UNEP and UNITAR, 2004) and EU implementation reports (Sixth Annual Survey on the Implementation and Enforcement of Community Environmental Law 2004) show significant gaps in the implementation of MEAs in the Balkan region. European Union accession is the main goal for all the countries concerned. For all these countries, the conventions are only additional tools or requirements to achieve legal harmonization with the EU. One can infer that, partially, the lack of progress in implementing these conventions is due to this reason. The limited resources are directed primarily to European policy implementation. One of the most recurrent capacity problems that South Eastern Europe faces is the lack of qualified staff in the ministries and specialized agencies (where they exist). In addition, most countries have blurred institutional arrangements, with overlapping responsibilities for implementation of international agreements between several departments. In some cases, like Bosnia, national focal points for MEAs do not exist. The cumulative effect is that the institutional capacity to deal with the conventions requirements is not always in place, even though the country might have had acceded and ratified a given convention. A parallel difficulty, arising from the weak and confusing institutional set up is the absence of reliable, consistent collection of data, which means that there are no measurements and monitoring systems to properly enforce the legal regulations. As an escape route, many countries respond to their shortcomings by multiplying legal decrees and regulations, complicating the legal framework and the enforcement mechanisms further.
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While much progress has been made in adoption of legislation, there is still a question concerning the quality of the legislation adopted. Much of it is, especially in certain countries, of too general and declaratory a nature, and it is doubtful whether it establishes a clear regulatory framework with the necessary specificity to be enforceable. Moreover, there is a general lack of specific, secondary legislation aimed at implementation, even though the general legislation has come into force. In general, the regions institutions also have problems absorbing external financial and technical aid. Fifteen years of a large influx of foreign aid have shown that funds and technical assistance are very much donor driven, reflecting their priorities and not necessarily the countries. The aid is also project based, which is unsustainable and lacking visible long term results. Consequently, the implementation of international conventions advances in bursts, without a coordinated direction. The lesson learned from South Eastern Europe is that central administrations should set up clear priorities, supported by action plans, and create mechanisms (maybe a department) to coordinate donor priorities and the use of the money. Such a system should also include transparent reporting mechanisms on how the funds were deployed. This will allow for a clear organization of resources vis--vis policy objectives. The policy objectives, in turn, should be defined and adopted by the beneficiary countries. One of the problems frequently encountered in the region is the lack of a feeling of ownership of convention-determined policy objectives by national administrations the general public. It is therefore necessary to accompany any implementation efforts with public dissemination of information and public debate. This process will help create ownership of the problems. It is not enough to formally ratify a convention in order to tick one more box on a donors to-do list. Another general observation that can be made is that new forms of enforcement mechanisms are slow to be adopted; the countries of South Eastern Europe have largely relied on command-and-control type mechanisms in the past. The slow uptake in new enforcement mechanisms is partially due to the fact that the real application of such tools is encumbered by the general need for basic structural reforms in societies. This is also the case with stakeholder engagement, public participation and awareness raising, where some progress was been made, but the shifting of attitudes is still progress much remains to be done. As such, it is recommended that implementation of new standards set by international agreements be inserted in a framework of wider administrative reform if it becomes obvious that the national existence of an MEA is mostly formal. Another regional challenge is insufficient bilateral cooperation within the countries in the region. Although there are exceptions, for instance Macedonia and Albania that agreed to a joint management of the Ohrid Lake, bilateral agreements among the countries, even in the context of conventions that most have accede to, are scarce. Most of the cooperation is done in the framework of international organizations like the UN. Considering that the region is relatively small and many natural resources reach beyond national borders, it is fair to expect that the countries would develop
deeper ties. That could significantly increase the efficiency of enforcement of environmental laws in the region. The implementation and enforcement of environmental law in South Eastern Europe is not yet a key priority. In fact, it has a received a minor amount of the total amount of aid funds (excluding water infrastructure) and the countries own scarce resources will, even today, not allow for comprehensive actions in the environmental area. In this situation, it is paramount to create a public debate around environmental issues that pushes them higher up on the political agenda. It is also important to refer to the case of Bosnia and Herzegovina. The intricate organization of the country between State level and Entities, means that there is little internal efficiency in environmental issues and donor driven actions have yielded unsatisfactory results. In general, South Eastern Europe has made great progress in the last 15 years, but experience shows that there are relevant problems in transition countries that need to be addressed before attempting to implement complex environmental legislation and policy targets (see point 7, Lessons Learned and Key Findings). 4 SYNERGIES BETWEEN MULTILATERAL ENVIRONMENTAL AGREEMENTS AND EUROPEAN UNIONS DIRECTIVES
EU membership presents opportunities, as well as challenges for MEA acceptance and implementation in the South Eastern Europe region. Although, generally speaking, EU acquis communautaire and MEA obligations are harmonized, there are some differences that may lead to difficult choices with respect to the allocation of scarce resources. All countries in the region are fully engaged in the process of aligning their legislation to the environmental acquis as part of the Stabilisation and Association process. This is one of the main driving forces for adoption of high environmental standards and it can support efficiently compliance with multilateral environmental agreements. Thus, the development of domestic legislation, institutions and policies should be looked at through the prism of potential EU membership. 5 SYNERGIES BETWEEN THE ACCIDENT CONVENTION AND THE SEVESO II DIRECTIVE
The United Nations Economic Commission for Europe, since the early 1990s, focused its efforts on preventing industrial accidents and especially their transboundary effects. Its work led to the adoption of the Convention on the Transboundary Effects of Industrial Accidents (Accident convention). It was signed by 26 UN/ECE member countries and the European Union and entered into force on 19 April 2000. In 1982, Council Directive 82/501/EEC on the major-accident hazards of certain industrial activities (OJ No L 230 of 5 August 1982) so-called Seveso Directive was adopted in response of severe accidents, for example, the Seveso accident in
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1976 at a chemical plant in Seveso, Italy, the Union Carbide factory at Bhopal, India and at the Sandoz warehouse in Basel, Switzerland in 1986. The Seveso Directive was amended twice, with the aim to broaden the scope of the Directive, in particular to include the storage of dangerous substances. On 9 December 1996,Council Directive 96/82/EC on the control of major-accident hazards - so-called Seveso II Directive - was adopted and entered into force in February 1999. Despite adoption of the mentioned legal instruments, in January 2000, another industrial accident in Romania, with severe transboundary effects, made clear that operations involving hazardous substances may still pose a serious threat to our common environment. A mining company in Baia Mare, northern Romania, accidentally spilled over 100,000 cubic meters of cyanide-polluted water into the Lapus River. Within two days, the polluted water reached the Tisza, one of Hungarys largest rivers and since the Tisza is a tributary of the Danube, downstream countries were also affected (Serbia, Romania and the Black Sea region). Fish stocks were wiped out and water supplies were threatened. The restoration of the environment is still ongoing and will not be reached without further international cooperation and assistance. This incident also showed that accidental water pollution can have far-reaching transboundary effects, even if it happens at a location far from any international border. The Convention on the Transboundary Effects of Industrial Accidents (Accident Convention), signed in Helsinki 1992 and the Seveso II directive are parallel legal instruments. Seveso is considered as the legal and technical instrument to fulfill the obligation of the European community arising from the Convention. While the Convention constitutes a part of international law and is binding to its Parties including the European Community, the Directive is obligatory for the EU 27 Member States and the three European Economic Area countries. An amended Annex I of the Convention entered into force on 19 March 2008, aligning it to the amended Seveso Directive 2003/105/EC. The Seveso II Directive goes into much greater detail on most of the points it addresses as compared to the Accident convention. It indicates precisely which establishments fall within its scope and describes in detail what must be included in the notification of major hazard establishments and when notification must take place. It also sets out in detail the requirements applicable to large Seveso plants in relation to prevention policies, domino effect, safety reports, emergency plans and action in the event of and following major accidents. The directives provisions on landuse planning, inspections and prohibition of use are also more detailed. However, there are differences which should be acknowledged while approaching both instruments in a coordinated way. One significant distinction from the Convention is the fact that the directive cover all major hazard establishments (industrial activities as well as the storage of dangerous chemicals) and not only those where accidents are liable to have transboundary effects. In addition the Directive provides for three levels of proportionate controls in practice, where larger quantities of substances mean more controls.
Both legal acts deal with the prevention of major industrial accidents involving hazardous substances and limiting the consequences of such accidents to humans and the environment. Likewise, the two legal instruments cover cooperation between Member States and the Parties before, during and after accidents occur. Similarly, the Convention and the Directive stipulate for the identification of hazardous activities within their jurisdictions and require that the Parties or the Member States be informed of proposed or existing activity. In addition to, and in a greater detail to the Conventions requirements, the Directive sets forth clear obligations to the operators of hazardous activities to establish a major accident prevention policy. Furthermore, operators of upper tier establishments need to establish a safety report, and safety management system. The convention put forward the obligation of development of contingency plans. However the directive provides for Internal Emergency Plans and External Emergency Plans to be elaborated. In order to increase its effectiveness, the Convention should include: further prevention measures to reduce the risk of industrial accidents, policies on the siting of new hazardous activities and on significant modifications to existing hazardous activities, preparedness for emergencies caused by industrial accidents, including contingency plans, to prevent and minimize transboundary effects. Additional information on the objective, scope, and detailed requirements of both legal instruments are contained in an annex to this paper.1 6 LESSONS LEARNED AND KEY FINDINGS
In general, new mechanisms aimed at implementation and enforcement were tested in the region, with varying degrees of success. There are good examples such as inter-ministerial mechanisms, including national coordination bodies. National implementation plans are also in use and they identify policies, programs and plans in parallel sectors through which specific measures were taken in order for an MEA to be effectively implemented. The following are some of the most important lessons: The inclusion of stakeholders in the consultation and negotiation processes should be considered at the planning stage. This will help ensure that the target group will more easily accept and be involved with the obligations deriving from the MEAs and create greater ownership of the problem. For instance, if possible, the ratification procedure should include a stage for stakeholder consultations with detailed requirements, including presentation of the specific MEA with explanations and opening the floor to stakeholder involvement. They can provide valuable information on possible implementation bottlenecks and ways forward on information that should be included in implementation strategic plans and secondary legislation. In line with the previous point, implementation and enforcement efforts should be framed in concise, benchmarked objectives, with step-by-step work plans. In order to achieve this, the countries should engage in defining policy priorities and
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lay them down in an overall strategy paper, from which sectoral action plans can be drafted. Each action plan should also identify obstacles, necessary cooperation with other entities, and available resources. In turn, this will allow to also identify where resources are scarce and where the international donor community should focus Bilateral and multilateral cooperation at a regional level, where it has occurred, has given South Eastern European countries the opportunity to address common problems and to develop common solutions facilitating the implementation of MEA obligations: o Through regional cooperation and the establishment of networks, the countries can establish dialogue, share information, exchange experiences, and benefit from the experience of advanced countries. The ECENA network is given as an example. o Thanks to coordination of actions and common goals, cooperation between countries plays an essential role in the effective and concrete implementation of Conventions. o In a transboundary context, integrated management of resources cannot be achieved by one country alone and requires cooperation among the countries in the region. A regional approach is thus necessary to protect and sustainably manage shared natural resources of South Eastern Europe. Furthermore, uniform procedures of control and implementing legislation/measures can be developed in the field of transboundary movements of goods. Such cooperation can be financially attractive since it helps to find funds and also ensure efficiency in use of available funding. At the enforcement level, training efforts should be undertaken and focused on various target groups (based on the different roles that each group plays with respect to a particular MEA regime). For those MEAs dealing with transboundary movements, customs officers require special training, for example. Training should be expanded to other groups that may play a role in enforcement. For each relevant MEA, an assessment should be undertaken of those actors that should be targeted and special training regimens should be developed. Furthermore, it is important to develop clear organizational charts with a thorough division of competencies and the creation of communication channels between departments and institutions. One way to achieve this is to rework administration into a matrix, where communication can be done vertically (hierarchy), horizontally (interdepartmental cooperation) and diagonally (connection with other institutions). For the model to work, it is necessary that each block of the matrix to have clearly defined competencies and matching resources (especially human resources). 7 REFERENCES Appendix 1 to this paper, which provides descriptions of the Helsinki Convention and the Seveso II Directive, is provided in the online version of this paper at http:// www.inece.org/conference/9/.
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8 BIBLIOGRAPHY Economic Commission for Europe, http://www.unece.org/env/teia/about.html, visited in May 2011. Economic Commission for Europe. Environmental Performance Review Albania. New York and Geneva: UN, 2002. Economic Commission for Europe. Environmental Performance Review Bosnia and Herzegovina. New York and Geneva: UN, 2010. Economic Commission for Europe. Environmental Montenegro. New York and Geneva: UN, 2007. Performance Review
Economic Commission for Europe. Environmental Performance Review Serbia. New York and Geneva: UN, 2007. Economic Commission for Europe. Environmental Performance Review The Former Yugoslav Republic of Macedonia. New York and Geneva: UN, 2002. Economic Commission for Europe. Report of Albania for 2003-2005 on the implementation of the Espoo convention on environmental impact assessment in a transboundary context. UNECE, 2010. Economic Commission for Europe. Report of Montenegro on the implementation of the convention on environmental impact assessment in a transboundary context. UNECE, 2009. Economic Commission for Europe. Report of Serbia on the implementation of the convention on environmental impact assessment in a transboundary context. UNECE, 2009. Economic Commission for Europe. Report of the Former Yugoslav Republic of Macedonia on the implementation of the convention on environmental impact assessment in a transboundary context. UNECE, 2009. European Commission, http://ec.europa.eu/environment/seveso/international.htm, visited in May 2011. Peck, Philip. Mining for Closure - Policies and Guidelines for Sustainable Mining Practice and Closure of Mines. UNEP, 2005. Regional Environmental Center. Bridging the Gaps: Enhancing MEA Implementation in the Balkans. UNEP, 2006. The CIA World Fact Book, https://www.cia.gov/library/publications/the-worldfactbook/index.html, visited in April 2011
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The Foot Print Network, www.footprintnetwork.org, visited in April 2011. UN Economic and Social Council. Fifth report on the implementation of the Convention on the Transboundary Effects of Industrial Accidents. UN, 2010. UN Economic and Social Council. Summary of the assessment of transboundary rivers, lakes and groundwater in south-eastern Europe. UN, 2009. UNDP. Western Balkans Environmental Programme Final Report 2007-2010. UNDP Montenegro, 2010. UNEP. Mining and environment in the Western Balkans. Vienna: UNEP, 2010. Williams, Stewart. Case studies on remediation of environmental hot spots in the Western Balkans. UNDP Montenegro, 2010.
INTEGRATING STRATEGIC INTELLIGENCE WITH ORGANISATIONAL RISK MANAGEMENT LEHANE, JAMES Executive Officer, Australasian Environmental Law Enforcement and Regulators neTwork (AELERT). GPO Box 787, Canberra, ACT 2600, Australia. secretariat@ aelert.com.au. 1, 2 SUMMARY Introducing proactive practices and procedures as part of delivering environmental compliance and enforcement should result in reducing risks and provide environmental regulatory agencies with the ability to better target high risk activities and more serious areas of non-compliance instead of continually reacting to emerging threats. This paper considers the concept of strategic intelligence as an organisational function and how it can be integrated into organisational risk management. Aimed to be a thought provoker and discussion prompter, this paper draws upon a range of literature across a spectrum of industries, commodities and professional streams. 1 INTRODUCTION
Information collection and collation is not a mean to an end; it is the bread and butter of each and every public sector agency, and not the exclusive domain of law enforcement.3
Within the professional stream of intelligence, the three main areas of intelligence services overlap to some extent. Tactical intelligence as a base level provides critically analysed information for investigative and enforcement staff to undertake their duties. Mid-level managers utilise operational intelligence to guide and direct enforcement actions, allocating resources based on probabilities and likelihood of crime and non-compliance occurring within geographical boundaries. The image below (figure 1) graphically represents how these various levels of intelligence intersect and overlap. Figure 1: Overlap of levels of intelligence
Strategic Intelligence
Tactical Intelligence
Operational Intelligence
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For the on-ground investigator, tactical intelligence greatly assists their effectiveness in apprehending offenders and reducing crime across all crime types, including environmental crime. Investigation managers rely, in part, on available operational intelligence to direct resources to hot-spots, target illegal behaviour of concern and tackle broader issues across a wide area. These are critical components of the intelligence landscape, forming the framework for information management and satisfying the strategic intelligence requirements that may exist from time to time. When considering the broader picture, being more global in its deliberations, strategic intelligence, almost synonymously, is associated with the concept and practice of risk management. Without directly comparing the risk management cycle to the intelligence cycle, there are many similarities and synergies that should be explored to consider the level of integration that these two functions may have in leading and directing a regulatory organisation through constant and emerging risks. In preparing this paper, the author, who has experience in federal and state law enforcement, including environmental enforcement, has collated a range of concepts and ideas that are practical opportunities for environmental regulatory agencies. The author led the establishment of a whole of departmental intelligence function with primarily a strategic focus, balanced with very simple tactical intelligence support. This function is now fully established as a permanent team of three dedicated staff providing a range of intelligence services to the department. 2 STRATEGIC INTELLIGENCE 2.1 Strategic Intelligence Defined
Intelligence professionals work across varied professions and perform duties by following basic principles and procedures. This professional stream cuts across tactical, operational and strategic levels and issues. Whilst important, this paper will not consider specifics related to tactical and operational levels of intelligence. In considering the notion and function of strategic intelligence, it is best to clearly define what strategic intelligence is, following the definition provided by McDowell:
Strategic intelligence analysis can be considered to be a specific form of research that addresses any issue at the level of breadth and detail necessary to describe threats, risks, and opportunities in a way that helps determine programs and policies.4
An increasing body of literature provides wide ranging background and detail reporting the various forms and processes of intelligence. In summary, the delivery of intelligence functions is through the application of a generic intelligence process which at a basic level incorporates a continuous cycle of tasking, data collection, collation, analysis, dissemination and feedback, prior to the next or a refined task.5 Ratcliffe notes the importance of the dissemination of intelligence as a critical component of influencing decision makers, which in turn will promote better informed decisions relating to priorities, approaches and resources to be allocated
for crime issues (noting that crime issues can readily be substituted for environmental compliance and enforcement issues).6 By not integrating strategic intelligence as a component of decision making processes, it has been shown that decision makers may not be able to achieve optimal outcomes.7 Resourcing, information holdings, and communication between parties are challenges to establish and develop a model that incorporates strategic intelligence within business processes (as preliminary issues for such a function).8 2.2 Intelligence Functions
In most enforcement agencies (i)ntelligence is largely considered to be a support function rather than a key area of operation.9 This mindset restricts the intelligence function, impeding its effectiveness and ability to drive proactive enforcement measures. Realisation of the importance that the integration of intelligence plays into business planning, risk management and decision making should serve to improve agency services.10 Another important step is viewing the intelligence function as core to the business. Knowledge is a commodity and intelligence is, and always has been, an output of law enforcement.11 Going back to the age old adage that knowledge is power, it follows that integrating knowledge that has been collated, assessed and value-added can only strengthen an organisation in its efforts and decision making processes, especially for those undertaking environmental law enforcement.12 In his collection of selected writings, McDowell highlights that there is still a continuing need to convince senior managers and executives that good planning must be preceded by good analysis, and that strategic intelligence is a particularly apposite tool for this purpose.13 Where resources and appropriately skilled staff are available, the use of an integrated intelligence function may serve the many needs of an organisation in setting and guiding its directions and achieving intended outcomes. This integrated intelligence concept would be achievable through many permutations, including specialist staff across each intelligence area or intelligence professionals operating across levels of the intelligence function. Many factors will come into effect with such management and staffing determinations, including the skill sets of staff, aptitude towards specific work, and agency demands. The integrated intelligence function may not be achievable for a vast majority of environmental regulatory agencies who are regularly faced with restrictive budget concerns and difficulties in sourcing qualified staff to regional areas. Realistically, larger agencies (or potentially a conglomerate of smaller agencies) that will have the capacity and capabilities to establish, develop and integrate intelligence functions into the environmental compliance and enforcement operations and decision making framework.
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RISK MANAGEMENT 3.1 ISO13001 - Risk Management
The Australian Government agency Comcover defines risk management as the activities and actions taken to ensure that an organisation is conscious of the risks it faces, makes informed decisions in managing these risks, and identifies and harnesses potential opportunities.14 The very nature of a majority of government agencies, like private corporations, is that they do not manage risk well. This becomes apparent when industry based writers note that Compliance departments, when they exist, are failing in their duties with required information being held in multiple systems, filing cabinets, and often in the heads of the compliance officer.15 Introduced in Australia in 1995, the Australian/New Zealand Standard for Risk Management (AS/NZS 4360) set the scene for risk management that has been refined several times since (1999, 2004 and more recently 2009).16 Notably, the Risk Management Standard set forth a standardised process for risk management, regardless of business area, commodity or region. This initial Standard for Risk Management was updated in 2009 and published as AS/ NZS ISO 31000:2009, gaining inclusion as an International Standard.17 This standard acknowledges that all activities involve risks, and that organisations can manage risk through anticipating, understanding and deciding on whether to modify it.18 Noting that risk management can be applied across entire organisations, this standard sets forth series of guidelines within organisations, as shown in Table 1. Table 1: ISO 31000:2009 Principles19
a) b) c) d) e) f) g) h) i) j) k) Risk management creates and protects value Risk management is an integral part of all organizational processes Risk management is part of decision making Risk management explicitly addresses uncertainty Risk management is systematic, structured and timely Risk management is based on the best available information Risk management is tailored Risk management takes human and cultural factors into account Risk management is transparent and inclusive Risk management is dynamic, iterative and responsive to change Risk management facilitates continual improvement of the organization.
Whilst there is a wealth of literature available on risk management, these principles provide clear linkages to the intelligence process and are representative of general intelligence. This clear linkage between functional areas should enable ready integration of such functions and allow for improved decision making supported by such principles. 3.2 Risk Management Applied
Jones reported that in the Australian emergency management context, efforts were being undertaken to determine the future impacts on communities from meteorological, climatic and demographic risks.20 Following that level of application, similar processes could be applied to environmental compliance and enforcement to identify regulatory risks. Regardless of commodity or area of interest, an underlying theme being reported in Australian publications is recognition that there is a failure to understand and apply sound risk management principles by legislators, regulators and those elected or paid handsomely to know better.21 Traditionally, experts are viewed as the primary source of guidance for decision makers in implementing risk assessment processes.22 It could be argued that a professional and objective officer well versed in intelligence process would be well suited to providing such advice and guidance. However, any guidance would have limited value if it is not being willingly or openly received. As Sexton and Linder state, [r]isk assessment is not embraced by everyone as a helpful decision-making tool.23 Sexton and Linder 24 raise a number of concerns regarding the risk assessment process, namely that risk assessment is resource intensive; elitist; endless; an excuse to evade issues; and trivialises hazards. The specific process of Cumulative Risk Assessment which Sexton and Linder utilise is reported as being introduced into the United States Environmental Protection Agency (US EPA) in 1986, with expansion and modification in 2006. Based on the details provided by Sexton and Linder, this risk assessment process covers operational and strategic intelligence influences, in that it provides a snapshot of the operational level and providing high level strategic guidance for the evaluation of health risks.25 The US EPA also has a range of other programs and assessment tools being utilised within its mandate, however, this case study depicts that risk management tools are being utilised in part as a functional component strategic intelligence and guidance processes. Sexton and Linder consider whether the application of risk assessment allows for informed decision making to aid environmental justice.26 Extending on the concept of risk assessment aiding informed consent, Payne distinguishes that risk assessment is considered the more neutral, fact-based task with risk management being a political decision about governance.27 This tends to support the importance of
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integrating strategic intelligence within risk management processes, supplementing decision making with objective fact analysis. 4 TOWARDS THE INTELLIGENCE 4.1 INTEGRATION OF STRATEGIC
Integrated Intelligence - Is It Possible?
In exploring the issues related to integrating strategic intelligence and risk management, consideration must also be given to any synergies that may exist around such integration. Is the blending of two such functions possible? Recently in Australia, there have been a number of examples which indicate that strategic intelligence is being integrated into the business of enforcement agencies. A whole of government approach28 has been seen with the release of the Commonwealth Organised Crime Strategic Framework29 and associated Plan30, which provides the guiding principles for the integrated approach being implemented in combating organised crime in Australia. This mainstream law enforcement approach is being supported by the publically available Organised Crime in Australia reports, which was recently updated with the release of the 2011 edition.31 A similar trend is starting to appear in Australian environmental regulatory agencies. One of the first such agencies to publically release their strategic guiding documents was the Queensland Department of Environment and Resource Management. With a strategic Compliance Strategy supporting the agencys Corporate Plan, Annual Compliance Plans32 are also available which provide guidance as to the operational and tactical focus of compliance and enforcement functions within the department. Whilst there is not yet any obvious public reporting on the outcomes of previous Annual Compliance Plans, there is great scope for the Department of Environment and Resource Management to utilise a feedback loop to continue to improve its environmental compliance and enforcement activities through taking advantage of an integrated intelligence model. Large private corporations and government agencies are highly complex organisations. With many possible layers of complexity comes the risk of silos developing, even within agencies. Inextricably linked to the establishment of silos is workplace culture and practice. It has been noted that Culture is the leading risk factor for compromising integrity and compliance in companies today.33 The same must hold true for government agencies. Intelligence organisations, especially large established organisations, exhibit stove-piping, the phenomenon of internal secrecy and vertical information flows rather than information sharing across the organisation.34 Regulatory organisations are not alone if the dedicated intelligence organisations are noted as containing silos. The challenge is breaking down silos internally.
To achieve this, the agencys current state of affairs changes may require the organisation to remove the blinkers, to embrace incremental business process change or to conduct a radical review of systems and processes.35 Pursuing new business processes and implementing an integrated process to risk management would support strategic planning in considering a multitude of perspectives36 that may not otherwise be considered. All agencies working across the environmental compliance and enforcement arena are required to focus their resources to achieve set or agreed business outcomes. The targeting and efficient use of resources is a critical component in obtaining outcomes.37 4.2 Is It the Other Way? Integrating Risk Management into Intelligence Function
To turn the idea of integrating strategic intelligence with risk management around and consider the benefits of integrating risk management into standing business practice and procedures can reportedly realise the following benefits: more robust strategic planning; improved resource allocation and use; greater coordination across different areas of the agency; enhanced communication; improved management reporting; and reduced ... operational volatility.38 A theme that emerged during several previous international conferences on Environmental Compliance and Enforcement identified that environmental enforcement agencies had not rigorously evaluated their compliance programs against effectiveness measures.39 Current reports in relation to indicators for compliance help environmental enforcement agencies to improve program evaluation.40 Integrating components of strategic intelligence with agency risk management would serve to assist in indicator reporting and the review and identification of risks as part of delivering an integrated service to improve the delivery of environmental compliance and enforcement functions. For a number of years now, (t)he public is demanding improved services.41 Working towards integrating functions associated with minimising risks to agencies and intelligence would likely result in an improved level of targeted service delivery by an agency taking the proactive steps. This ability to take proactive measures and deal with uncertainty ties in with recent literature contemplating the concept of resilience within agencies. 4.3 Risk Builds Resilience
Resilience expresses the capability of an organisation or its parts to respond quickly to uncertainty.42 In other words, the management of risk requires an organisation to be agile, in some respects. Where risk cannot be eliminated from a regulated area,
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having contingencies, skilled staff and sound operating procedures in tested and in place will allow the emergent risk to be resolved promptly. The penultimate aim of an integrated strategic intelligence and risk based approach would be to identify and eliminate such risks, which in all reality, will never occur. The integrated approach should however, enhance the organisational resilience to allow effective reaction and mitigation. Crossing from recent authors in the emergency management field to one with more of a corporate finance background reveals a similar argumentative vein. The compliance department must allow compliance work to be redirected to risk mitigation rather than tick-in-the-box.43 Regardless of professional stream, it would appear that a range of Australian practitioner authors have worked towards similar outcomes via different processes. Regardless, the concept of mitigating risk appears to be a central theme recently considered. The Australian Government agency Comcover (as a part of the then central Department of Finance and Deregulation) provided a general guiding statement in relation to linking risk management into business processes: Integrating risk management into the governance, planning and management processes within an agency will provide purpose in applying the risk management process and relate risk back to the agencys core business.44 This guidance also continues to highlight that efficiencies can be realised through an integrated approach.45 Integrating strategic intelligence with risk management processes may allow for more proactive and focussed actions being undertaken by compliance and enforcement areas. The specific operational activity should correspond with higher level corporate directions to be more focussed on the identified risk areas. It would follow, then, that by targeting high risk areas, high returns/outcomes would be achieved by addressing the arising issues.46 This directly aligns with the smart enforcement concept as reported by Paddock,47 through the application of key components: 1. 2. 3. 4. addressing significant environmental problems; using data to help make strategic decisions for better resource utilization; using the most appropriate tool to achieve the best possible outcome; assessing the effectiveness of the program activities to ensure continuous improvement; and 5. effectively communicating to the public and other regulated entities the ... compliance outcomes.48 5 CONCLUSION Given the overlap between intelligence and risk management processes and principles, there is a natural integration between these functions from the outset. More formal integration between functions within environmental compliance and
enforcement agencies provides for better decision making and improved service delivery. Aiming to promote such considerations, this paper argues that the integration of strategic intelligence into organisational risk management processes should be undertaken. As seen through literature relating to risk management, a similar argument has already been made by others in relation to getting risk management integrated into existing business processes. Regardless of how such integration occurs, organisations will realise the benefits, seen through enhanced outcomes being achieved. 6 REFERENCES The paper represents the views of the authors and does not necessarily represent the views of the authors employer or the Australasian Environmental Law Enforcement and Regulators neTwork (AELERT). 2 The author acknowledges the assistance of Dr Matthew Marshall, Senior Policy Project Officer, Australian Government Department of Sustainability, Environment, Water, Population and Communities (DSEWPaC) and Grant Pink, Secretary, Australasian Environmental Law Enforcement and Regulators neTwork (AELERT) for their insightful comments and initial critique of this paper. 3 Stanton, M (2005) The Law Enforcement Intelligence Paradigm: A Square Peg in a Round Hole. Journal of the AIPIO, Vol 14, No.1. Australian Institute of Professional Intelligence Officers, Canberra, Australia. Pg. 65. 4 McDowell, D. (2005) Strategic Intelligence: A Handbook for Practitioners, Managers and Users. Istana Enterprises, Pty Ltd. Pambula, New South Wales, Australia. 5 Ratcliffe, J.H. (2003) Intelligence-led Policing. Trends and Issues in Crime and Criminal Justice, No. 248, Australian Institute of Criminology, Canberra. Accessed at http://www.aic.gov.au/publications/current%20series/tandi/241-260/tandi248. aspx. Pg.3. Accessed on 07 October 2010. 6 Ratcliffe, op cit, 4. 7 McDowell (2005), op cit. 19. 8 McDowell (2005), op cit. 21. 9 Stanton, op cit, 60 10 Duffy, R.F. (1996) Strategic Targeting for Compliance and Enforcement. International Network for Environmental Compliance and Enforcement (INECE) Proceedings of the Fourth International Conference on Environmental Compliance and Enforcement. Available at http://www.inece.org/4thvol1/4toc.htm. Pp.1-8. Accessed on 23 January 2011. 11 Stanton, op cit, 65 12 McDowell, D (1999) Quo Vadis Strategic Intelligence? Overview of the Implementation and Impact of Strategic Intelligence. Original paper reproduced in McDowell, D (2000) Strategic Intelligence & Analysis: Selected Writings. The Intelligence Study Centre/ Istana Enterprises Pty Ltd. Pg.13 13 McDowell (1999) op cit. 9. 14 Comcover (2008) Risk Management: Better Practice Guide. Department of Finance and Deregulation, Australian Government, Canberra.
1
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Esteban, A (2009) Enabling Transparency, Accountability and Integrity. Compliance and Regulatory Journal. Issue 6. Australasian Compliance Institute, Sydney, Australia. Pg 39 16 Jones, T (2008) Advances in risk assessment for Australian emergency management. The Australian Journal of Emergency Management, Vol. 23 No. 4, Pp.4-8. (November 2008). Accessed at http://www.ema.gov.au/www/emaweb/emaweb.nsf/Page/Publications_AJEM_ PastIssues_AustralianJournalofEmergencyManagement(AJEM)Volume23Articles. Accessed on 22 December 2010. 17 Standards Australia/Standards New Zealand (2009) Risk Management Principles and guidelines. AS/NZS ISO 31000:2009. Australian/New Zealand Standard. Standards Australia, Sydney, NSW, Australia. Preface. 18 Standards Australia/Standards New Zealand. op cit. iv. 19 Standards Australia/Standards New Zealand, op cit, 7-8. 20 Jones, op cit. 6. 21 Dahms, T. (2010) Resilience and risk management. The Australian Journal of Emergency Management. Vol 25. No.2. April 2010. Available at http://www.ema.gov.au/www/emaweb/emaweb.nsf/Page/Publications_AJEM_ PastIssues_AustralianJournalofEmergencyManagement(AJEM)Volume25Articles. Pg.21. Accessed on 22 December 2010. 22 Payne, C.R. (2009) Balancing the Risks: Choosing Climate Alternatives. Beyond Kyoto: Addressing the Challenges of Climate Change. IOP Conference Series: Earth and Environmental Science 8 (2009) IOP Publishing. Pg.5. 23 Sexton, K. and Linder, S.H. (2010) The Role of Cumulative Risk Assessment in Decisions about Environmental Justice. International Journal of Environmental Research and Public Health. 7:4037-4049. Available through www.mdpi.com/ journal/ijerph. Accessed on 22 December 2010. 24 Ibid. 25 Ibid. 26 Ibid. 27 Payne, op cit. 5 28 The whole of government approach is a term used in Australia to indicated the complete government approach to issues. 29 Commonwealth of Australia (2009) Commonwealth Organised Crime Strategic Framework. Attorney-Generals Department, Canberra. Available at http://www.ag.gov.au/www/agd/agd.nsf/Page/Publications_OrganisedCrime. Accessed on 23 February 2011. 30 Commonwealth of Australia (2010) National Organised Crime Response Plan Overview 2010-2013: A national response to a national issue. Attorney-Generals Department, Canberra. Available at http://www.ag.gov.au/www/agd/agd.nsf/ Page/Publications_OrganisedCrime. Accessed on 23 February 2011. 31 Australian Crime Commission (2011) Organised Crime in Australia 2011. Canberra. Available through http://www.crimecommission.gov.au/publications/oca/index. htm. Accessed on 15 April 2011. 32 Queensland Department of Environment and Resource Management (2010) Compliance Strategy 2010-2014. Queensland Government, Brisbane. Available at http://www.derm.qld.gov.au/environmental_management/compliance-strategy.
15
html. Accessed on 15 April 2011; Queensland Department of Environment and Resource Management (2010) Annual Compliance Plan 2010-2011. Queensland Government, Brisbane. Available at http://www.derm.qld.gov.au/environmental_ management/compliance-strategy.html. Accessed on 15 April 2011. 33 Esteban op cit. 42. 34 Stanton, op cit, 60 35 Stanton, op cit, 65 36 Payne, op cit. 9 37 Duffy, op cit. 1-8 38 Comcover, op cit, 28. 39 Paddock, L (2005) Strategies and Design Principles for Compliance and Enforcement. International Network for Environmental Compliance and Enforcement (INECE) Proceedings of the Seventh International Conference on Environmental Compliance and Enforcement. Pp.67-72. Available at http://www.inece.org/conference/7/vol1/ index.html. Accessed on 10 October 2010. 40 Stahl, M (2005) Using Indicators to lead environmental compliance and enforcement programs. International Network for Environmental Compliance and Enforcement (INECE) Proceedings of the Seventh International Conference on Environmental Compliance and Enforcement. Pp.315-323. Available at http://www.inece.org/ conference/7/vol1/index.html. Accessed on 10 October 2010. 41 Stanton, op cit, 57. 42 Dahms, op cit, 21. 43 Esteban, op cit, 41 44 Comcover, op cit, 20. 45 Ibid. 46 Paddock, op cit, 69. 47 Ibid. 48 Ibid. 7 BIBLIOGRAPHY Comcover (2008) Risk Management: Better Practice Guide. Department of Finance and Deregulation, Australian Government, Canberra. Dahms, T. (2010) Resilience and risk management. The Australian Journal of Emergency Management. Vol 25. No.2. April 2010. Available at http://www.ema.gov.au/www/ emaweb/emaweb.nsf/Page/Publications_AJEM_PastIssues_AustralianJournalofEm ergencyManagement(AJEM)Volume25Articles. Accessed on 22 December 2010. Duffy, R.F. (1996) Strategic Targeting for Compliance and Enforcement. International Network for Environmental Compliance and Enforcement (INECE) Proceedings of the Fourth International Conference on Environmental Compliance and Enforcement. Available at http://www.inece.org/4thvol1/4toc.htm. Accessed on 23 January 2011. Esteban, A (2009) Enabling Transparency, Accountability and Integrity. Compliance and Regulatory Journal. Issue 6. Australasian Compliance Institute, Sydney, Australia.
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Jones, T (2008) Advances in risk assessment for Australian emergency management. The Australian Journal of Emergency Management, Vol. 23 No. 4, Pp.4-8. (November 2008). Accessed at http://www.ema.gov.au/www/emaweb/emaweb.nsf/Page/ Publications_AJEM_PastIssues_AustralianJournalofEmergencyManagement(AJ EM)Volume23Articles. Accessed on 22 December 2010. McDowell, D (1999) Quo Vadis Strategic Intelligence? Overview of the Implementation and Impact of Strategic Intelligence. Original paper reproduced in McDowell, D (2000) Strategic Intelligence & Analysis: Selected Writings. The Intelligence Study Centre/ Istana Enterprises Pty Ltd. McDowell, D. (2005) Strategic Intelligence: A Handbook for Practitioners, Managers and Users. Istana Enterprises, Pty Ltd. Pambula, New South Wales, Australia. Paddock, L (2005) Strategies and Design Principles for Compliance and Enforcement. International Network for Environmental Compliance and Enforcement (INECE) Proceedings of the Seventh International Conference on Environmental Compliance and Enforcement. Pp.67-72. Available at http://www.inece.org/conference/7/vol1/ index.html. Accessed on 10 October 2010. Payne, C.R. (2009) Balancing the Risks: Choosing Climate Alternatives. Beyond Kyoto: Addressing the Challenges of Climate Change. IOP Conference Series: Earth and Environmental Science 8 (2009) IOP Publishing. Ratcliffe, J.H. (2003) Intelligence-led Policing. Trends and Issues in Crime and Criminal Justice, No. 248, Australian Institute of Criminology, Canberra. Accessed at http://www.aic.gov.au/publications/current%20series/tandi/241-260/tandi248. aspx. Accessed on 07 October 2010. Sexton, K. and Linder, S.H. (2010) The Role of Cumulative Risk Assessment in Decisions about Environmental Justice. International Journal of Environmental Research and Public Health. 7:4037-4049. Available through www.mdpi.com/journal/ijerph. Accessed on 22 December 2010. Stahl, M (2005) Using Indicators to lead environmental compliance and enforcement programs. International Network for Environmental Compliance and Enforcement (INECE) Proceedings of the Seventh International Conference on Environmental Compliance and Enforcement. Pp.315-323. Available at http://www.inece.org/ conference/7/vol1/index.html. Accessed on 10 October 2010. Standards Australia/Standards New Zealand (2009) Risk Management Principles and guidelines. AS/NZS ISO 31000:2009. Australian/New Zealand Standard. Standards Australia, Sydney, NSW, Australia. Stanton, M (2005) The Law Enforcement Intelligence Paradigm: A Square Peg in a Round Hole. Journal of the AIPIO, Vol 14, No.1. Australian Institute of Professional Intelligence Officers, Canberra, Australia.
ENHANCING COMPLIANCE WITH ENVIRONMENTAL LAWS IN DEVELOPING COUNTRIES: CAN BETTER ENFORCEMENT STRATEGIES HELP? OSTROVSKAYA, ELENA1 and LEENTVAAR, JAN2 Lecturer, UNESCO-IHE Institute for Water Education PO Box 3015, 2601 DA Delft, the Netherlands, eostrovskaya@yahoo.com
1
Professor, UNESCO-IHE Institute for Water Education PO Box 3015, 2601 DA Delft, the Netherlands, j.leentvaar@unesco-ihe.org
2
SUMMARY Implementation of environmental policies proves to be challenging worldwide, especially in developing countries. The competition between individual and social interests produces confrontation. Thus it is important to analyze the motivations to comply and the behavior of regulated communities in differing developing countries. This paper discusses a novel approach to this analysis in relation to environmental data management, Table of 11, which is a tool developed for the Netherlands Ministry of Justice. This paper also summarizes findings of studies of the main reasons behind non-compliance of environmental regulations in developing countries. The studies show that monitoring and enforcement significantly impact environmental behavior and environmental quality in developing countries, as well as indicate that there is more than one pathway to high compliance. The paper highlights important considerations for mastering enforcement strategies in developing countries while taking into account differing countries contexts. This paper did not address official corruption, which requires deeper analysis and rectification before developing countries can achieve the most possible environmental compliance. 1 INTRODUCTION
Though the deterioration of environmental quality is a major worldwide concern, full compliance with environmental regulations is rarely observed. As Kremlis and Dusik (2005) note, environmental protection is traditionally fighting for the place in the sun with the economic policies (growth and competitiveness versus environmental conservation). Evidence from developed countries indicates that compliance rates rarely reach 100%. For example, Russel (1990) reported the following rates of compliance with air pollution limits by industrial sources in USA: percentage of sources in violation 65%; percentage of time the sources were in violation 11%; excess emissions as a percentage of standards 10%. According to Heyes (2000), the United Kingdom published compliance rates with many key water quality standards that were significantly below 100%, sometimes as low as 50%. The true compliance rates were likely to be even lower. The Netherlands government
Ostrovskaya & Leentvaar397
initiated a special study initiated that revealed that only 67% of industries complied with Surface Water Pollution Act (Eindrapport, 2002). As summarised in Mitchell (1996), Sparrow (2000), and INECE (2009) the main factors affecting compliance include economic, political, technological, personal, and social ones. However, the most common explanation for non-compliance is insufficient monitoring and enforcement of law. A large and growing theoretical literature indicates that functional enforcement is necessary to ensure compliance (e.g., Ehrlich, 1972; Stigler, 1970; Heyes, 2000; Sparrow, 2000; Zaelke et al, 2005). This is because functional enforcement methods serve as a deterrence, which is defined as the act or means of changing peoples behaviour to avoid a sanction (Silberman, 2000). Enforcement deters detected violators from breaking rules again, and it deters other potential violators by sending a message that they may experience the same adverse consequences for non-compliance. Some theorists assume that effective enforcement may not require frequent or strict regulatory action. For example, Harringtons game theoretic analysis (1988) demonstrated that compliance may be high even when the frequency and severity of enforcement actions are quite low. The empirical evidence for this inference, however, is mixed. Livernois and McKenna (1999) support this hypothesis, while Nyborg and Telle (2006) do not. Huang (1996), Rousseau and Proost (2005), and Shimchack and Ward (2005) find that inspections and sanctions are associated with improved future compliance and environmental performance. Recent empirical evidence also indicates that credible enforcement may increase beyond-compliance behaviour. Shimshack and Ward (2008) show that many plants with discharges typically below legally permitted levels reduce discharges further when regulators issue fines, even when issued on other plants. Also, non-compliant plants often respond to sanctions by reducing discharges beyond reductions required by law. Thus, increased enforcement protects the environment beyond deterring violations. Because perception is so important in creating deterrence, how a government implements enforcement actions is just as important as their existence alone. They can have significant effects far beyond bringing a single violator into compliance if they are well placed and well publicized (Heyes, 2000; Cohen, 2005; Malloy, 2003). 2 CONTRIBUTION AND RESEARCH QUESTION
Although studies show that effective compliance monitoring produces desired results, the behavioral motivations and pathways underlying effective monitoring and enforcement are not well understood. Also, there is not enough empirical evidence on the impacts of monitoring and enforcement in developing countries. This paper reports the study that attempts to contribute to these two understudied areas. This paper also discusses a novel approach to environmental data management and its applicability to studies in developing countries. This framework, Table of 11,
is approved by the Netherlands Ministry of Justice and used in the practice of the countrys environmental agencies, compiles a comprehensive set of environmental indicators from detailed interviews and field observations. This paper is based on application of the framework from Table of 11 to review environmental compliance behavior and regulated entities attitudes towards environmental performance, monitoring, and enforcement five studied countries: Kenya, Rwanda, Nigeria, Tanzania, and China. The studys investigation provides early evidence on environmental performance in developing countries. Further, the methodology permits an understanding of not just environmental outcomes, but the underlying motivations for those outcomes as well. 3 METHOD
To analyze regulatory compliance with environmental laws this study uses five case studies carried out in 2007-2009 in selected developing countries. The study programmes were designed and guided by a rational choice framework, based on the Becker study (1968), and recent achievements in exploring regulatory compliance motivations discussed above in the introduction section. Therefore, the range of variables from traditional deterrence measures: risk of detection and sanction, expected benefits from violation, etc., to social and moral measures: perceiving the regulation and the enforcers authority as legitimate, following the regulation due to peer pressure from the fellow users and from the community, etc., was covered in the studies. The respondents were chosen randomly and included both enforcers and representatives of regulated communities in order to obtain a realistic picture of the current situation and to avoid one-sided judgment. The study used questionnaires based on Table of 11 tests (2006), and was guided by the Tables selection of explanatory variables. The questionnaires included close- and open-ended questions. The checklist of the Table of 11 is composed of 11 dimensions containing variables that relate to spontaneous compliance and to enforcement (Table 1). Table 1: Table of 11 dimensions and underlying assumptions
Table of 11 dimensions Assumptions
1) Spontaneous compliance dimension group Spontaneous compliance dimensions - factors that affect the incidence of voluntary compliance that is, compliance that would occur in the absence of enforcement T1. Knowledge and quality of If legislation is written in clear and understandable rules language, a regulated entity will likely comply with a regulation. T2. Cost-benefit considerations If material and non-material advantages of compliance are (including implications for perceived by a regulated entity being higher than those of image) violation, and material and non-material disadvantages of compliance are perceived being less, then a regulated entity will likely comply with a regulation
T3. Level of acceptance
If a regulated entity (generally) accepts policy, laws, and regulations, to which it should comply, it will likely be in compliance
T4. Respect for official and If a regulated entity respects official authority to setup informal authorities and enforce regulation, it will likely be in compliance. But if innate willingness, habit or values of a regulated entity competes with official authority and regulation, it will likely violate the regulation T5. Informal pressure) control (peer If there is a possibility that non-compliant behaviour of a regulated entity will be detected and disapproved by third parties (i.e. non-government authorities), and the possibility and severity of sanctions that might be imposed by third parties (e.g. loss of customers/ contractors, loss of reputation) are high, a regulated entity will likely be in compliance.
2) Enforcement dimension group Control dimensions - the influence of enforcement on compliance T6. Informal report risk If there is a possibility that an offence may come to light other than during an official investigation and may be officially reported, a regulated entity will likely be in compliance. If there is a high likelihood of being subject to an administrative (paper) or substantive (physical) audit/ inspection by official authorities, a regulated entity will likely be in compliance If there is a high probability of an official detecting an offence during an administrative audit or substantive investigation, a regulated entity will likely be incompliance. If there is an increased chance of control and detection as a result of risk analysis and targeting of firms, persons or areas, a regulated entity will likely be in compliance. If there is a high likelihood of a sanction being imposed if an offence has been detected through inspections and criminal investigation, a regulated entity will likely be in compliance If a sanction and adverse effects associated with imposing sanctions (including loss of respect and reputation) are adequate to cause damage and timely imposed, a regulated entity will likely be in compliance.
T7. Risk of inspection
T8. Risk of detection
T9. Selectivity
Sanctions dimensions - the influence of sanctions on compliance T10. Risk of sanction
T11. Sanction severity
For understanding compliance and compliance motivations, the application of Table of 11 variables resulted in five sub-groupings of regulated entities (according to the English version of 2006):
Unconscious compliers: do not know the rules very well but unknowingly comply with them; usually copy the behaviour of others. Unconscious non-compliers: break the rules because they do not know the rules well. Spontaneous compliers: know the rules and would comply with them even if theoretically the government lacked enforcement measures. Conscious violators: know they are breaking the rules and consciously accept the risk of being caught and sanctioned. Compliers deterred by enforcement: know the rules and would break them, but choose to comply because they disfavor undergoing enforcement activities. The questionnaires included a special set of questions enabling a researcher to make the estimation (can be found at www.iT11.nl). However, this compliance estimate does not provide accurate numbers because the calculations are based on interviewees perceptions about portions of those sub-groups. The estimate provides a general picture of the compliance rate in a regulated community. The critical review of the instrument can be found in Elffers et al (2003), and in a number of Dutch sources (Koenders & Ruimschotel, 2002; Ruimschotel et al, 1996; Van Reenen, et al, 1996; Wietzema Menkhorst et al, 2002). Elffers et al (2003) pointed out that the Table of 11 is a conceptual scheme that can be used for surveys, expert interviews (as it was done in our case studies), round tables, and ex ante evaluation of laws. The studies involved face-to-face interviews and direct field observations. Usually, self-reporting from the target group is used as a method for data collection in this kind of research (Elffers et al, 2003; Eggert and Lokina, 2010), however this study was mainly aimed at gathering the opinions of enforcers about the regulatees behavior. The interviews with regulatees were used for crosscheck analysis, especially to get a more realistic picture of enforcement practices. The study relied more on expert opinion than on survey self-reporting. This research design tried to avoid bias and errors common when people were asked to assess their own violating behavior (Elffers et al, 2003). The study chose randomly regulated entities, while enforcers were selected among notable enforcing authority figures. This approach has limitations; one of the most important is the limited number of respondents. Another limitation is that the issue of corruption was mainly left out of the scope of the study, though we received some complaints about it from the interviewed regulatees. However, the study is advantageously framed to demonstrate the non-compliance from an enforcers perspective and to gather opinions on improving enforcement. 4 COMPLIANCE WITH ENVIRONMENTAL DEVELOPING COUNTRIES: CASE STUDIES LAWS IN
This section describes the five case studies that used the Table of 11, which were conducted within the MSc programs in Environmental science at UNESCO-IHE Institute for Water Education, Delft, the Netherlands, in 2007-2009 (Table 2).
Table 2: Summary of the case studies

Country, area Kenya, Lake Victoria The law in question Kenya Fisheries Act (1991) prohibits the use of certain fishing gears and methods and fishing in certain areas of Lake Victoria The Rwanda Environmental Organic Law (2005) in the part of wetland use regulation and control The Law for Preservation and Control of Forest, cap 39 (1992) Number of respondents - 24 fishers - 15 enforcers from the central government enforcing body - 21 enforcers from Beach Management Units - 13 wetland users - 13 enforcers (regional)
Rwanda, Kigali region
Nigeria, Ogun State
- 10 managers of logging industries - 10 enforcers (national and regional) - 16 managers of retailing companies - 15 enforcers (regional) - 8 managers of mining companies - 8 enforcers
Tanzania, Arusha region China, Inner Mongolia
Plant Protection Act (1997) in the part of regulation of pesticides retailing Water and Soil Conservation Law (1991)
Specialists conducted case studies for developing countries, justifying the use of Table of 11 this context because it provides a general picture of compliance. Table of 11 also assesses the effectiveness of the enforcement strategies with respect to a countrys environmental legislation. Analysis software is user-friendly and manages large amounts of quantitative and qualitative data. Further, the software presents results in a more understandable and visible way that is especially important to communicate the results to stakeholders and the public. Table of 11 is proven help enforcing bodies improve their reporting and accountability if used on a regular basis. There are limitations of using Table of 11: its rankings were found to be quite subjective and sometimes ambiguous. As a result, an analyst handling the data needs to be well trained to interpret the data properly; otherwise one may draw incorrect inferences. Interpreting the controversial rankings also requires a sophisticated understanding of enforcement program operations and a skill for diagnosing problems. In addition, the Tables eleven dimensions all have the same weight, while it is clear that some of them can dominate others. For instance, this study mirrored Eggert and Lokina (2010) to indicate that economic reasons often prevail over moral or normative ones. Table of 11 application enables an analysis of the major compliance and enforcement characteristics in various countries and comparison for experiential learning. Understanding of underlying motivations of regulated entities helps
environmental agencies evaluate the effectiveness of their tools and strategies to achieve compliance. Performance analysis enables agencies to better employ and allocate their resources, invest in activities that achieve results, and modify or disinvest from those areas that are not producing results. Overall, Table of 11 can help environmental agencies increase their efficiency, effectiveness by using their limited resources in a more productive way. Table 3 illustrates the motivations to comply in the countries under study. Table 3: Motivations for compliance
Table of 11 dimensions Knowledge of law Clarity of law Cost/benefit of compliance Cost/benefit of violation Implications for image Policy acceptance Respect for official authority Social control Risk of reporting Risk of physical inspection Risk of detection Selectivity of inspection Risk of sanction Severity of sanction Kenya + + 0 0 + + 0 0 0 + Rwanda + + 0 0 0 + + Nigeria 0 0 0 0 0 0 + + + 0 + Tanzania 0 + 0 0 0 + 0 China + + + 0 0 0 0 0 -
- a dimension has score showing that it has negative effect on compliance 0 no influence or dimension slightly encourages compliance + a dimension has score showing that it encourages compliance
Although data is based on a limited number of interviewees, the study still offers valuable information. For example, in spite of differences between the countries, they experience similar problems in implementation of environmental laws: the level of compliance is rather low (Figure 1), and the governmental agencies are facing serious enforcement problems.
Figure 1: The level of compliance with the environmental laws in countries under study
China Tanzania Nigeria Rwanda Kenya
China Tanzania Nigeria Rwanda Kenya 0% 50% 100%

unconsciously compliant consciously compliant unconsciously deterred by enforcement consciously violating
compliant
consciously compliant consciously violating unconsciously violating
deterred by enforcement unconsciously violating
Compliance levels can vary dramatically from case to case, whether it is a countryto-country comparison or an internal comparison. In all five countries studied, 0% 50% 100% environmental legislation is relatively new and changing, which makes it difficult to enforce. The emphasis on economic improvement or expansion often causes environmental protection to fall to the bottom of the governmental priority list (OECD, 2000). Economic reasons often prevail over moral or normative reasons when the regulatees decide whether to comply or violate a rule. Eggert and Lokina (2010) pointed out that in Tanzanian Lake Victoria fisheries, Tanzanian fishers were poor and could not afford moral and legitimacy concerns to the same extent as the fishers in industrialized countries. Povertys influence yielded higher noncompliance rates compared to those of fisheries in industrialized countries. Compliance depends mostly on the governmental willingness to enforce a specific law. Enforcing agencies in developing countries are not mature enough and lack the ability and capacity to perform their activities properly. There is a lack of formalized procedures to plan and set priorities that can help enforcers to use their limited resources more productively. Some countries, like Rwanda, are just beginning to develop data systems. However, in the absence of organized efforts to collect and report data, even basic analysis of the situation is difficult to accomplish. Another important lesson is that enforcers should design their strategies to reflect that different groups of regulatees have different motivations to comply (see Table 3). Resource users consist of 1) big business, and 2) small businesses, individuals, and each group can demonstrate a variety of behavior and attitudes toward compliance with environmental regulations. Our country case studies can also be divided into two groups according to major characteristics and behavior of regulatees: 1) countries with many large businesses (China, and Tanzania) and 2) countries with many individuals and small-scale businesses (Kenya, Nigeria, and Rwanda). In general, authorities decisions have more influence on big business, which is more sensitive to the public opinion. Big business is willing to adopt environmental management systems (e.g., ISO 14000) and to comply with international standards
in order to compete on foreign markets (OECD, 2000; Yasamis, 2007; Ostrovskaya et al, 2009).). However, a majority of natural resource users in the developing countries, like Rwanda, Nigeria, Kenya, are small businesses and therefore, enforcement strategies should address the limitations of the small-scale sector while highlighting the importance of reducing environmental degradation that result from their activities. Dasgupta (2000), for instance, also indicates the limited coping abilities and lower environmental awareness of small industries in India, and demonstrates that small business is more reluctant to change, as compared to big industries. Dasgupta highlights sanction-based strategy employed in order to force small industries to change technology and/or install pollution abatement equipment and evaluated it as counterproductive and anti-poor. Civil society can play an important role in creating effective social control over industries and resource users. Experience of developed countries (Sparrow, 2000; Heyes, 2000; INECE, 2009) shows that nongovernmental groups (NGOs, neighbouring businesses, individuals, professional associations etc.) can undertake a range of various actions against violators and contribute to bringing them into compliance. They can detect and report offences, negotiate with violators, comment on government enforcement actions, and where the law allows, can take legal action against a violator for noncompliance or against the government for not enforcing the requirements. However, our case studies show that in the developing countries social control is weak due to the current low level of public awareness and concern for the damage to human health and local communities well-being caused by environmental noncompliance (e.g. in China, Kenya and Tanzania). Institutions of civil society may be weak in general (e.g. in Rwanda and Nigeria). Where social control and institutions are weak, the only kind of their contribution to ensuring compliance, which was identified in the cases, is reporting violations to government authorities when the latter provide necessary facilities for that (e.g., hot-lines etc.). Finally, authorities of the developing countries often encounter difficulties in the practical application of legislation. Obligations imposed on regulatees are often unrealistic or overambitious (e.g., in cases of China, Rwanda). Greenspan-Bell (2003) also pointed out, that industrialized countries prescribed overambitious policies to developing countries, however, the success of those policies were determined by local traditions, culture, institutions, and infrastructure. Therefore, local context should be taken into account when the good practices are transferred to developing countries. Greenspan-Bell offered a sound suggestion that developing countries could consider a tiered or timelined approach, that accounts for their capabilities and institutions by selecting compliance-assisting tools after first asking what is achievable and easy to monitor. 5 CONCLUSION
This paper has outlined a number of issues that affect regulatory compliance with environmental laws in developing countries. The case studies were designed within the rational choice model and guided by the Table of 11, which is an
inventory of relevant variables. We are not pioneers in using this framework in the context of a developing country [see, for example, Eggert and Lokina (2010)], but believe our research can contribute to the empirical evidence on its applicability to studying regulatory compliance in developing countries. Our experience also indicates that the Table of 11 scheme (for sorting out different influences within a rational choice framework) turns out to be useful both for future research and for use by enforcing bodies. For enforcers, better understanding of underlying motivations that shape behavior of a regulated community enables them to master their strategies, to more efficiently allocate their resources, to invest in activities that achieve results, and to modify or disinvest from areas that are not producing results. This better understanding consequently helps authorities to productively use their limited resources. The findings obtained from this analysis clearly show the need for deeper analysis or further investigation to understand the drivers and constraints that shape the behavior of regulated entities in developing countries. This study did not address the issue of official corruption. We are convinced that in many countries corruption compromises the position of the enforcers and severely affects the credibility of enforcement. Corruption requires deeper analysis and rectification before developing countries can achieve the most possible environmental compliance. 6 ACKNOWLEDGEMENT We appreciate the support by the Netherlands Inspectie Verkeer en Waterstaat and UNESCO-IHE Institute for Water Education for conducting the research. All students of UNESCO-IHE MSc programs who participated in case studies are gratefully acknowledged. 7 REFERENCES Becker, G, Crime and Punishment: an economic approach. J. of Political Economy, 1968, 76(2), pp. 169-217. Cohen, M. In: Zaelke D, Kaniaru D, Krukov E (Eds.), Making Law Work: Environmental Compliance and Sustainable Development, Vol. 2, 2005, pp. 403-414. Dasgupta, N., J.World Development, 2000, 28(5), pp. 945-967. Eggert, H., and Lokina, R.B., J.Environmental Development Economics, 2010, 15, pp. 197-217. Ehlich, I., J. of Legal Studies, 1972, 1, pp. 259-276. Eindrapport, Naleving en handhaving van de Wet Verontreiniging Oppervlaktewateren in 2000-2001. Ministerie van Justitie Expertisecentrum Rechtshandhaving, Den Haag, Nederlanden (in Dutch), 2000.
Elffers, H., and Heijden van der, P., and Hezemans, M., J. of Quantitative Criminology, 2003, 19(4), pp. 409-439. Greenspan-Bell, R. In: Zaelke, D. Kaniaru, D. Krukov, E. (eds), Making Law Work: Environmental Compliance and Sustainable Development, Vol. 2, 2005, pp 317-330. Harrington, W., J. of Public Economics, 1988, 37, pp. 29-53. Heyes, A., J. of Regulatory Economics, 2000, 17(2), pp. 107-129. Huang, C.-H., J. Environmental and Resource Economics, 1996, 8, pp. 183-204. INECE Expert Working Group on Enforcement and Compliance Indicators, Performance measurement guidance for compliance and enforcement practitioners, 2005, available at www.inece.org. INECE Secretariat, Principles of Environmental Compliance and Enforcement. Handbook. INECE, 2009. Koenders, A., and Ruimschotel, D., Het gebruik van een integrale handhavingsbenadering en de T11-methodiek in de Veiligheidsketen, Jaarboek Veiligheid 2003, augustus 2002 (in Dutch) [T11 methodology used as an integrating perspective in the safety and security chain. Yearbook Safety and Security, 2002]. Kremlis, G., and Dusik, J., In: Zaelke D, Kaniaru D, Krukov E (Eds.), Making Law Work: Environmental Compliance and Sustainable Development, Vol. 2, 2005, pp. 155164. Livernois, J., and McKenna, C.J., J. of Public Economics, 1999, 71, pp. 415-440. Malloy, T.F., J.Temple Law Review, 2003, 76, pp. 451-467. Mitchell, R.B. In: Cameron, J., and Werksman, J., and Roderick, P. (Eds.), Improving Compliance with International Environmental Law, 1996 pp. 3-28. Nyborg, K., and Telle, K. J., Environmental and Resource Economics, 2006, 35, pp. 1-18. OECD report, Environmental compliance and enforcement in NIS: a survey of current practices of environmental inspectorates and options for improvements, 2000 available at www.oecd.org/dataoecd/32/51/19044683.pdf. OECD Reviews of Regulatory Reform: Regulatory Policies in OECD Countries. From Interventionalism to Regulatory Governance, Chapter 5, 2002 available at http:// rru.worldbank.org/Documents/PapersLinks/Regulatory_Policies_in_OECD_ Countries_ch5.pdf.
Ostrovskaya, E., and Leentvaar, J., and Makarova, E. In: Ozhan, E. (Ed.), Proceedings of the Eighth International Conference on the Mediterranean Coastal Environment, MEDCOAST-07, November 2007, Alexandria, Vol. 1, pp. 329-338. Reenen van, P., and Klaasen, B., and Ruimschotel, D., Nieuwe instrumenten voor de rationalisering en opti malisering van beleid en wetgeving: vergelijking van Ketenbena dering en Tafel van Elf. Beleidsanalyse, 1996, 4. (in Dutch) [New instruments to rationalize and optimize policy making and regulation, Policy Analysis, 1996, 4]. Rousseau, S., and Proost, S., J. Environmental and Resource Economics, 2005, 32, pp. 337-365. Ruimschotel, D., and Reenen van, P., and Klaasen, B., De Tafel van Elf: een conceptueel kader en een instru ment bij rechtshandhavingsvraagstukken. Beleidsanalyse, 1996, 3 (in Dutch) [the Table of Eleven: a conceptual work model and an instrument for analysing law enforcement issues, Policy Analysis, 1996]. Russel, C.S. In: Portney P (Ed.) Public Policies for Environmental Protection, 1990. Shimshack, J.P., and Ward, M.B. In: Zaelke D, Kaniaru D, Krukov E (Eds.), Making Law Work: Environmental Compliance and Sustainable Development, Vol. 1, pp. 429-442 Shimshack, J.P., and Ward, M.B. J. of Environmental Economics and Management, 2008, 55(1), pp. 90-105. Silberman, J.D. In: Zaelke D, Kaniaru D, Krukov E (Eds.), Making Law Work: Environmental Compliance and Sustainable Development, Vol. 2, pp. 379-402. Sparrow, M.K., The Regulatory Craft: Controlling Risks, Solving Problems, and Managing Compliance, 2000, p. 346. Stigler, G.J., J. of Political Economy, 1970, 70, pp. 526536. Table of Eleven. A versatile tool, Ministry of Justice, 2006, available at www.iT11.nl. Wietzema Menkhorst, H., and Ruimschotel, D. De T11-methodiek in de financile sector, Jaarboek Fraudebestrijding, Kluwer, maart 2002 (in Dutch) [T11methodology in the financial business sector, Yearbook Fraud Prevention, 2002]. Yasamis, F.D., J. Environmental management, 2007, 39(4), pp. 575-586. Zaelke, D., and Stilwell, M., and Young, O. In: Zaelke D, Kaniaru D, Krukov E (Eds.), Making Law Work: Environmental Compliance and Sustainable Development, Vol. 1, pp. 29-52.
A FRAMEWORK FOR INTELLIGENCE-LED ENFORCEMENT IN ENVIRONMENTAL COMPLIANCE PRACTICE WEEKERS, DAMIAN P. Senior Intelligence Analyst, Field Management Compliance Coordination Unit, Great Barrier Reef Marine Park Authority, damian.weekers@gbrmpa.gov.au. SUMMARY The Great Barrier Reef Marine Park Authority (the Authority) is the Australian Government agency responsible for management of the Great Barrier Reef Marine Park. The Great Barrier Reef World Heritage Area, which includes the Great Barrier Reef Marine Park State Marine Parks, island National Parks, is jointly managed by the Australian and Queensland Governments. The Intergovernmental Agreement that formalises this arrangement outlines the obligations of both Governments to protect and manage the marine and island ecosystems through a joint Field Management Program. The Field Management Program undertakes operations and routine dayto-day activities in the Great Barrier Reef World Heritage Area.1 This paper discusses the role of the intelligence function within the Field Management Program, and introduces the intelligence model currently being utilised by the Field Management Compliance Coordination Unit. It examines the utility of the United Kingdoms National Intelligence Model as a benchmark for the adoption of an intelligence-led business model within the Field Management Compliance Coordination Unit. The argument will be made that the implementation of intelligence-led practices within environmental compliance and enforcement programs can act as a significant force multiplier, by encouraging proactive compliance measures and reducing program resource inefficiencies. 1 INTRODUCTION The Great Barrier Reef World Heritage Area is the largest coral reef system in the world, covering 348,000 square kilometres, stretching 2300 kilometres in length and between 60 and 250 kilometres in width, an area that equates to one and a half times the size of the United Kingdom. The Great Barrier Reef Marine Park was created in 1975 under the Great Barrier Reef Marine Park Act, and the Great Barrier Reef World Heritage Area was confirmed by UNESCO in 1981, the first marine area to receive this recognition. The Great Barrier Reef World Heritage Area is managed and protected via specific legislation and a multiple-use zoning plan. Eight zone types define what activity is allowed to occur in particular locations and are the central element of compliance management strategies. The economic importance of the Great Barrier Reef World Heritage Area is significant. Tourism and commercial and recreational fishing within its boundaries contributes more than $5.4 billion annually to the Australian economy. These industries directly and indirectly employ thousands of individuals and are subsequently responsible
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for supporting numerous communities both small and large along the Queensland coast2. The health of the ecosystem and the wealth of its benefactors are inescapably interconnected like no other region in Australia. Competing social, political and economic interests apply significant pressures on the reef. Ironically, environmental management efforts aimed at ensuring industry sustainability can often be seen as inhibiting commercial and recreational freedoms. Significant threats to this environment include impacts associated with climate change, agricultural pollution and illegal fishing. Negative influences on fish stocks associated with these threats have the potential to increase market demand and the risk of non-compliance, as individuals seek to exploit the resources within protected areas of the Great Barrier Reef World Heritage Area. Moreover, the increasing profitability of fishing activities have been identified as providing an attractive environment for organised criminal groups, primarily through illegal and unreported activity.3 Compliance management within the Great Barrier Reef World Heritage Area is a complex task due to the existence of parallel and overlapping state and federal jurisdictions. In an attempt to mitigate some of these complexities, the Field Management Compliance Coordination Unit was created as a jointly funded program between the Authority (Federal) and Queensland (State). The Field Management Compliance Coordination Unit also works closely with state and federal agencies, including the Queensland Parks and Wildlife Service, Queensland Police Service, Queensland Boating and Fisheries Patrol and the Australian Customs and Border Protection Service, to enhance compliance outcomes through multiagency collaborative management efforts. 2 COMPLEXITY OF THE INTELLIGENCE FUNCTION WITHIN ENVIRONMENTAL COMPLIANCE
Just as the importance of the intelligence function within environmental compliance programs should not be understated, the complexity associated with its successful application should also be acknowledged. In many ways, the ability of environmental regulatory agencies to operate effective intelligence programs is far more challenging than in the traditional intelligence domains of law enforcement and national security. Generally, police intelligence has the ability to draw on detailed crime statistics for analysis and foreign intelligence agencies are able to bring to bear significant intelligence assets as required, whereas environmental compliance units are often dealing with limited incident statistics and collection resources. Illegal fishing is particularly problematic in that the crime generally leaves no visible impact, evidence or witness. Another vulnerability of the intelligence function in environmental compliance is the potential for the unit to be isolated from other government intelligence resources due to privacy and information security policies. These restrictions have direct implications on compliance threat assessments, treatments and ultimately environmental outcomes. The ability of the intelligence unit to successfully navigate through these issues is held in its capacity to adapt
established intelligence-led enforcement paradigms and create operational frameworks that are flexible enough to accommodate the specific requirements associated with environmental compliance. 3 THE FIELD MANAGEMENT COMPLIANCE COORDINATION UNIT INTELLIGENCE MODEL
The development of an intelligence-led enforcement philosophy within the Field Management Compliance Coordination Unit has been an organic process, but one that is reflected across many law enforcement agencies worldwide. Conceptually, the Units intelligence function is framed around the traditional intelligence cycle and the principles held in the United Kingdoms National Intelligence Model.4 The National Intelligence Model and the Intelligence Cycle are both iterative processes that provide parallel frameworks for the intelligence function.6 The combination of these models enhances the utility of intelligence through intelligence-led enforcement practice while ensuring that the intelligence units priorities and outcomes are connected to, and held accountable to the decision making-process. Questions that relate to the scale of the crime problem which are the driving force behind the intelligence-led movement in general, are particularly relevant to the operational and investigative capability of the Field Management Compliance Coordination Unit.4 The National Intelligence Model business model is reflected in the Field Management Compliance Coordination Unit through the adoption of four reporting products: strategic and tactical assessments, and problem and target profiles. The strategic assessment is produced by the Field Management Compliance Coordination Unit as part of its quarterly reporting requirement. The assessment conducts forward threat and response analysis on identified activities within the Great Barrier Reef World Heritage Area. The Intelligence Unit uses this information to develop the Intelligence Priorities Matrix (the Control Strategy defined within the National Intelligence Model) which provides management with a framework that assists in the decision-making process. The Intelligence Priorities Matrix is used to develop compliance and intelligence priorities through consideration of three key indicators: incident reporting, information reporting and the aforementioned strategic risk assessment. The priority rankings are determined by the Compliance Operations Group, the decision-making group within the Field Management Compliance Coordination Unit. The priorities set by the Compliance Operations Group are used in field operations planning considerations and become the priorities of the intelligence function. The practical application of this process is the development of tactical assessments in the form of Patrol Intelligence Briefs, based on the outcomes of operational planning, and the development of Problem and Target Profiles commissioned by the Compliance Operations Group. The Patrol Intelligence Brief is constructed around the principles of Intelligence Preparation of the Battlefield, a military
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concept that defines a systematic and continuous process of analysing the threat and environmental factors (such as weather and terrain) in a specific area. Each Patrol Intelligence Brief is a living document that addresses contemporary issues such as illegal fishing in Marine National Parks within the patrol area of operation. The briefs are forward-looking, identifying new problems and issues. Briefs drive the intelligence collection function through the direct tasking of field officers. This tasking process directly links the collection of information from the field back to the decision-making group via the strategic and tactical products. The information collected also informs the ongoing development of both these products. Profiles are tasked by members of the Compliance Operations Group in response to problems and targets identified through the Intelligence Priorities Matrix. Profiles are produced following a detailed analysis of all available information on a subject. While some Profiles are based on quantitative information, many also require sufficient qualitative information to provide enough context to initiate or support ongoing compliance efforts. Problem Profiles are generally broader in scope and may identify a requirement to develop a Target Profile based on their conclusions. For example, the Intelligence Priorities Matrix may identify a high risk associated with commercial fishing operations within a specific area of the Great Barrier Reef World Heritage Area. The Compliance Operations Group can task the Intelligence Unit to produce a Problem Profile that analyses all the available information and provide recommendations. Through this process targets such as individual vessel or people may be identified as requiring further attention, and so a Target Profile will be commissioned. These profiles aim to inform the Compliance Operation Group when making decisions about patrol resource allocation. The profiles can also be used to provide background information for policy makers within other branches of the Great Barrier Reef Marine Park Authority. 4 THE INTELLIGENCE CYCLE
Within the context of the traditional Intelligence Cycle, the application of the National Intelligence Model as a framework for the Field Management Compliance Coordination Unit intelligence function can be summarised as follows: D irection and Planning - An important component of the National Intelligence Model business model was the inclusion of the Tasking and Coordination Group used to identify priorities through the use of the Control Strategy (problem identification matrix). The Field Management Compliance Coordination Unit uses its Intelligence Priorities Matrix in the same way to identify problems and organise tactical activity around three key measures, incident reporting, information reporting and strategic risk assessment. The matrix is developed by the Intelligence Unit, prioritised by the Compliance Operations Group and used by the Field Operations Coordinator for tactical planning. Information Collecting - The intelligence function is only as good as the information that feeds it. The success of this function therefore relies on the continual flow of relevant information from all possible sources5. General information about activity relevant to the Great Barrier Reef World Heritage
Area is provided through established networks, generally made up of other government agencies with local area responsibilities. The Units intelligence collection strategy identifies information sources and collection methods, and is driven by intelligence gaps identified through the Intelligence Priorities Matrix. Commonly, field staff are tasked through Patrol Intelligence Briefs to collect specific information about problems and targets that they may encounter while on patrol. Over time these requests become increasingly defined and can result in targeted operations. Collation - The Field Management Compliance Coordination Unit has a specific Intelligence-led Case Management database that is used to file, evaluate and store information as it becomes available. Intelligence Analysis - Analysis of information is conducted through either the development of Problem or Target Profiles. The analysis is determined by the priorities set out in the strategic Intelligence Priorities Matrix and generated through contemporary and historic information holdings. The primary goal of the Units analysis products is to identify problems, targets and enforcement opportunities. The aim is to reduce uncertainty by developing conclusions based on established facts and then model target operational and intelligence systems in order to make predictions that can be used in both strategic and operational planning.6 Production/Dissemination - The production and dissemination of intelligence reports is centred around the four key intelligence products as previously indicated, the Intelligence Priorities Matrix (strategic), Patrol Intelligence Brief (tactical) and Problem and Target Profiles (analytical). The Field Management Compliance Coordination Unit Intelligence Model is a way of managing the intelligence function within the broader context of the Intelligence Cycle. While the cycle is represented as a set chain of events to illustrate a logical process, the reality is that the steps are not often as clearly defined as its design suggests. As such, during the development of an analysis report such as a Problem Profile, the identification of information gaps will require an analyst to take a step back in the cycle in order to continue the analysis. While this flexibility is inherent in all problem-solving endeavours criticism of the intelligence cycle that cites this as a fundamental weakness in its application fails to understand the nature of intelligence practice. Indeed it is the flexibility of both the Intelligence Cycle and the National Intelligence Model that allow them to be effectively integrated into nontraditional intelligence arenas such as environmental compliance and enforcement. 5 CONCLUSION The application of the intelligence-led paradigm in environmental compliance and enforcement practice represents a significant force multiplying capability. Its ability to focus the decision-making process on contemporary issues enables improved resource allocation and ultimately improved compliance outcomes. Thus, intelligence-led practices signify a positive response to issues associated with problems of scale and resource by forging an emphasis on proactive compliance management. In large areas of responsibility such as the Great Barrier Reef
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World Heritage Area, the intelligence-led methodology allows compliance action to be refined and targeted making the most of often limited resources. The Field Management Compliance Coordination Unit Intelligence Model, much like National Intelligence Model, facilitates the intelligence-led paradigm by placing the intelligence function at the forefront of the decision making process. Its ability to successfully align with the functionality of the Intelligence Cycle is a testament to its usefulness in managing contemporary compliance problems. 6 REFERENCES Field Management of the Great Barrier Reef, 14 April 2011, available at http:// www.gbrmpa.gov.au/corp_site/management/ddm. 2 Day, J.C., Protecting Australias Great Barrier Reef, Solutions, Vol. 1, No. 1 14 April 2011, available at http://www.thesolutionsjournal.com/node/846. 3 Putt, J. and Nelson, D., Crime in the Australian Fishing Industry, Trends & Issues in Crime and Criminal Justice No. 366, Australian Institute of Criminology, 14 April 2011, available at http://www.aic.gov.au/documents/5/2/8/%7B5281BDAF-257E44CD-9BE8-F2D97F2E7413%7Dtandi366.pdf. 4 Guidance on the National Intelligence Model 2006, 2008, 14 April 2011, available at http://tulliallan.police.uk/workingparties/nim/documents/ACPOSGuidanceonNim. pdf. 5 Quarmby, N. and Young, L.J., Managing Intelligence: The Art of Influence, The Federation Press, Sydney, 2010, pp.10-12. 6 Clark, Robert, M., Intelligence Analysis: A Target-Centric Approach, 3rd Ed., CQ Press, Washington, 2010, p 9.
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7 BIBLIOGRAPHY McCook, L., et al., Adaptive Management of the Great Barrier Reef: A Globally Significant Demonstration of the Benefits of Networks of Marine Reserves. PNAS, vol,107, no.43 (2010), pp.18278-18285. McDowell, Don, Strategic Intelligence: A Handbook for Practitioners Managers and Users, 2009 The Scarecrow Press, Lanham, Maryland. Ratcliff, Jerry, Intelligence-Led Policing, Willan Publishing, Devon. Ratcliff, Jerry H. (Ed.), Strategic Thinking in Criminal Intelligence, 2nd Ed., 2009, The Federation Press, Sydney.
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TRACK D: IMPROVING IMPLEMENTATION OF ENVIRONMENTAL LEGISLATION

ENFORCEMENT OF ENVIRONMENTAL IMPACT ASSESSMENT IN THE NATURAL GAS SECTOR IN PERU: A PRACTICAL APPROACH ALDANA, MARTHA INES Director of Instruction, Enforcement and Incentives Direction, Assessment and Enforcement Environmental Agency. Manuel Gonzles Olaechea 247, San Isidro, Lima, Peru, maldana@oefa.gob.pe SUMMARY Environmental impact assessment (EIA) in Peru is the most important environmental management tool, regulated in the national legislation since 1990. This paper presents the main contents of these regulations including its institutional aspects, focusing in the emerging industry of natural gas, particularly, in the Camisea Project. This project, located in a highly fragile ecosystem with a particular social environment, brought since 2002 great challenges related to the enforcement of the compromises included in the environmental studies applicable. Important lessons related to the need of adequate tools for an effective intervention of the enforcement authority have been learned from this and are recommended to be considered in the future by the new EIA enforcement authority of the country. 1 EIA AND ENVIRONMENTAL INSTITUTIONALITY IN PERU: A BRIEF STORY Peruvian environmental legislation developed EIA regulations since its first comprehensive environmental law given in 1990, the Environment and Natural Resources Code (Legislative Decree 613). The Code was subject to important modifications in 1991 derived from the investment promotion legislation given in those years. In this context, the authorities competent to regulate the different economic activities (sectorial authorities) received the legal mandate to approve regulations related to the EIA process applicable to the activities under their scope. In the energy and mines sector, the mining environmental regulation was approved in 1993 as well as the hydrocarbon environmental first legislation (which was lately changed in 2006); besides, in 1994, the electric activities environmental legislation was also approved.
These different EIA sectorial regulations developed in the nineties, made necessary an integrated EIA legislation which was passed in 2001, as the Environmental Impact Assessment National System Act (Law N 27446). This Law suspended its effects until the approval of its regulation. This particular rule, among other rules of the EIA Law, was modified in year 2008, when a new EIA Law was issued, as part of the free trade agreement between Peru and the US. In 2009, the Ministry of the Environment approved the EIA Law regulation, ordering the sectorial authorities to modify their EIA regulations according to the EIA new rules; nevertheless, this mandate hasnt been complied yet. Therefore, EIA sectorial regulations are, at this time, the main legal tools that regulate EIA procedures and enforcement rules applicable. Regarding institutional environmental enforcement, sectorial authorities (the Ministry of Energy and Mines in the case of natural gas activities) received in 1991 also the mandate to enforce environmental laws applicable to them, including EIA regulations. This institutional arrangement changed in 1996, in the energy and mines sector, with the creation of the regulatory agency for energy activities (dependent from the Prime Ministers Office) which took responsibility, among other tasks, of the one related to the environmental enforcement of energy activities. Lately in 2007, mining activities were also assumed by this agency. When the Ministry of the Environment was created in 2008, an environmental enforcement agency was also created, the Assessment and Enforcement Environmental Agency (OEFA, for its name in Spanish). OEFA has received from the regulatory agency the competence to develop enforcement actions related to mining activities since July 2010, and to hydrocarbon, gas and electricity activities since March 2011. In 2009, an additional legislation was passed establishing the Environmental Assessment and Enforcement National System (Law N 29325) with OEFA as its leading authority. This law gave OEFA competences not only related to the direct supervision and sanction of different economic activities transferred to this new institution but also, to the supervision of the performance of other authorities with environmental enforcement competences in the national, regional and local levels. In addition, OEFA also received the competence to regulate and give incentives related to environmental enforcement. Through this recently created enforcement system, is expected that OEFA will harmonize and strengthen the development of environmental enforcement in the country. Decentralization of the enforcement institutionality constitutes an important challenge for EIA development in Peru. Nevertheless, in most of the regions, decentralized authorities depend from an office aimed to promote investments in the region. This means that the separation of environmental enforcement from investment promotion achieved at the national level is not replicated at the regional
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level, situation that does not contribute for the needed strengthen of environmental enforcement in the country. For more details on Peruvian EIA legislation see the Annex of this paper. 2 EIA IN THE NATURAL GAS SECTOR IN PERU: FROM THEORY TO PRACTICE 2.1 The Camisea Project1
The Camisea gas extraction and pipeline project is one of the most significant energy infrastructure projects in Latin America. Camisea is expected to make an important contribution to Perus economic development, creating jobs and significantly increasing the countrys standard of living. Camisea will also allow Peru to become one of the few Latin American countries able to meet its own internal energy needs, as well as export natural gas. The Camisea Project involves two different stages. The first stage includes the construction of the facilities required to produce gas in Block 88; to separate the natural gas from the associated natural gas liquids to transport the natural gas to Lima (where it is consumed); and to transport the natural gas liquids to a processing plant on the Peruvian coast in order to produce propane, butane, natural gasoline, and diesel. The next stage involves the development of a second field (Block 56) near Camisea, the expansion of the natural gas transportation system, and the construction of a liquefaction plant. The two stages of the Project have an approximate cost of five billion dollars. Most of the projects development cost will be borne by international consortiums of private sector companies in charge of the project, which consists of natural gas production and gas processing (Upstream Component), pipeline transportation (Downstream Component) and natural gas distribution in Lima and the surrounding metropolitan area (Distribution Component). The Upstream Component includes four well pads to extract natural gas from two natural gas reservoirs (located in the Camisea fields at the Ucayali Basin) and an initial processing plant to separate natural gas and natural gas liquids. This component also includes a fractionation plant and marine terminal on the coast for processing and exportation of the natural gas liquids Downstream Component consists of two pipelines (one for natural gas and one for natural gas liquids) that will transport the gas across the Andes. Both pipelines run in parallel from the Camisea field (in the amazon basin), 431 km. east of Lima, to the city of Pisco. The natural gas pipeline then continues northward along the coast up to the capital city, Lima. Development of Camisea is a central component of the Peruvian governments energy strategy, with the potential of producing $5.2 billion in energy cost savings in present value terms over a thirty year period. By developing a stable, low-
cost source of energy, it is expected that Camisea will provide direct benefits to the Peruvian population and increase the competitiveness of Peruvian industry. Marginal costs of power generation will be reduced by 30 percent on average, and air pollution in Lima will decrease air pollution by virtue of the conversion to the use of natural gas, the cleanest of the fossil fuels. While Camiseas economic impact is of a nation-wide level, the Department of Cusco, where Camisea is located, through its regional government receives substantial revenues under a royalty-sharing scheme, aimed to foster sustainable development in this important tourist and historic area of Peru. The contract for the exploitation of this field was executed in 2000, and its production stage began in August 2004. Camisea is located in the Peruvian forest, and people who reside in the area of the project are native communities, whose members live in accordance with centuries-old customs. In the area, there are also small groups in voluntary isolation who do not want to have contact with other cultures or populations. From an environmental point of view, Camisea is located in a hot spot of biodiversity. Except for small areas used by the native communities, Camisea is a tropical forest that has never been interfered with by human hand. Additionally, a small part of the Project Block 88 is located in the buffer area of a wildlife reserve.2 From the year 2002 to 2011, seven different incidents in the liquid gas pipeline and problems related to the distribution of the income received by the districts where the project is located generated a critical opinion against the project. These aspects brought up the issue related to the capacity of this mega project to really improve life quality in its areas of influence. 2.2 Environmental Studies at the Camisea Project At 2002, more than 20 studies regulated the environmental aspects of the Camisea Project, including its different components: downstream, upstream and distribution of gas in urban areas, in addition of studies for variants in the construction of the gas pipeline, complementary works studies, an aerial cross of the pipeline, constructive close, among other studies. These studies content an important amount of information to be processed considering that each one of them consisted of various volumes and included the answers given by the companies responding to the observations generated in the process of approval of such instruments. Unfortunately, in the EIA administrative process there is no stage where the information becomes integrated in a unique text that should condense the final outcome of the process itself. There is a need of such an integrated document that would become a useful tool for the companies themselves, for the enforcement authority and for the public that would know, in an easier way, the enforceable duties of the project.
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Since the initial development of the construction phase of the project, in year 2002, the energy regulatory agency, as it was said before, dependant of the Prime Ministers Office developed enforcement actions, related to the supervision of the project. There were, initially, about 20 professionals of different specialties (engineers, sociologists, biologists, among others) that were distributed along the different construction places in order to verify the compliance of the numerous environmental compromises established in the environmental studies, in addition to the verification of the compliance of environmental regulations applicable. Lately, this area became the Natural Gas Enforcement Managers Office of the energy regulatory agency, created in the year 2008, which comprised the different natural gas projects developed all over the country, with around 150 professionals. In the beginning, a number of difficulties needed to be resolved. An important issue was the different language and concepts that were managed by lawyers and engineers related to what was required to be considered in order to determine the initiation of the sanctions administrative procedures. It was needed to conciliate these different understanding of concepts and requirements (formal and substantial issues) which was not an easy task to do.
2.3 Environmental Enforcement of the Camisea Project at the Regulatory Agency
Additionally, the project itself brought major problems when the before mentioned faults (spills involved) happened, either in highlands or in amazon areas. The faults required special supervision visits, to contract specialized companies in order to investigate the real causes of them and made the project accountable to the media and people affected by them. The Natural Gas Enforcement Managers Office of OSINERGMIN published, on its web page, information about the legal procedures finished on February 2011,3 which includes only the procedures concluded in the administrative branch and excludes those ones pending to be solved either in first or second instance within this institution. From the total of 64 sanctions published (for approximately 10 million dollars), 46 of them4 are related to the enforcement of the Camisea Project,5 including the construction and operation phases of the project6. From these 46 sanctions, 34 (for approximately 8 million dollars) are related to noncompliance of EIA obligations or to development of activities without EIA previously approved. Even though the payment of these sanctions arise approximately 7% of this amount (the rest of it is being discussed in the judiciary branch), they meant an important consideration of the environmental enforcement authority by the operating companies which is a fact that promotes compliance by themselves. The most important sanction imposed (of the ones published) arises to approximately 1.2 million US dollars) and was related to the development of activities not approved in the EIA applicable and exceeding the maximum length for construction activities of the pipeline.
The environmental supervision of the Camisea Project, thus, became an interesting experience in order to learn, in practice, the positive and critical aspects related to the content of this preventive environmental management tool. Among the main issues raised during the development of these enforcement actions, we can point the following: a) Lack of a clear and direct language in the text of the EIA, allowing different interpretations about the extent and content of the compromises acquired. This is a very important issue as long as it is common to find that the whole legal process is developed around the discussion of grammatical issues, referred to the meaning of words used in the text of the study. Derived from this issue, comes the need to require the consultant companies that elaborate the studies to be precise in its texts and to the sectorial authority in charge of assessing and approving these studies, to be careful and not to permit the use of a language that could cause different, and grammatically valid, interpretations. An example of a phrase of this kind:7 Nocturnal works wont be permitted as though they affect the surrounding population. The discussion developed around the meaning of this phrase, related to determine if it was a close prohibition therefore considering a consequence that the surrounding population will always be affected due to this kind of works, or if it was necessary to have evidence about this consequence in the surrounding population in order to apply the referred prohibition. In addition, sometimes, the studies establish recommendations, such as the following:8 It is recommended to reinforce the training of communities on the actions to be taken in the case of a spill. This kind of compromises allow the discussion related to its enforceable nature. In some cases, the proper environmental standard applicable is established as referential data; turning it into not enforceable, as well.9 b) Lack of a compendium of the enforceable duties established in the EIA, considering the modification of them generated in its approva processi. The content of these studies are usually developed in several volumes, sometimes in thousands of pages. In addition, during the administrative procedure for the approval of the studies, an important number of questions (observations) and answers are generated; including the cases when it is required to present additional information in order to approve the answer given. These questions and answers, regularly, modify the initial content of the study and sometimes they vary it substantially; nevertheless, they become an additional amount of information to be considered in the analysis of the compromises to be enforced, becoming necessary to match this information with the original text of the study. In the enforcement of the Camisea Project we
2.4 Main Lessons Learned in the Environmental Enforcement of the Camisea Project
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have found cases where the actions developed in the field were the ones described in the original version of the EIA, when it, finally, became a different regulation considering the answer given by company itself during the administrative procedure of the EIA approval. Therefore, it is necessary to require that in the approval procedure, a consolidated version of the study must be developed; which will be a useful tool not only for the enforcement authority but also for the proponent of the project, and also for the general public that could be interested in the monitoring of the environmental performance of the project. Unfortunately, the actual regulation on this issue does not include this requirement. c) Existence of different environmental standards in the EIA and in other authorizations required for the development of the project, such as effluent permit, deforestation permit, cultural heritage permit and others; which are given by other authorities different to the sectorial one. This constitutes an incoherence that affects the strength of environmental enforcement and confuses the proponent of the project. In the environmental studies of the Camisea project you can find different regulations related to treatment of waste water, nevertheless this, regularly, does not coincide with the regulations established in the permits obtained from the water authorities. In the case of effluent permits, the actual legislation requires that the EIA must be approved and presented to the water authority in order to obtain this one; nevertheless it does not require the sectorial authority that approves the effluent permit the necessary consideration of the content of the EIA into this other permit; not assuring the needed integration between both permits. d) Consideration of extra environmental compromises in the EIA. The integrated nature of the environment makes different topics to be considered in the studies. In the experience of the sanctions of the Camisea Project there have been different environmental sanctions based on occupational health or security or technical issues. For example, there is a sanction based in the non compliance of the duty of giving security lectures before the beginning of the works of the day based on the obligation established about this theme in the EIA.10 There are others related, for instance, to a massive intoxication of workers in camps that was based on the regulations about the catering service, where the legal basis comes from compromises established in the correspondent EIA;11 and other based on the lack of signals and lights in a road inside the installation aspects that derived from the investigation related to a fatal accident occurred in the constructing phase of one of the facilities.12 This kind of sanctions, regularly, wouldnt be a problem; nevertheless, considering the changes in the institutional arrangements developed in the country it is highly possible that this will become a problem as long as the environmental enforcement is the only issue that has been transferred to the Ministry of the Environment; but the enforcement of the environmental studies (considered as an integral document) have also been transferred, which includes, as it has been said, regulations related to extra-environmental issues and there the question remains referred to whom will be in charge of enforcing, in the future, this kind of rules considered in the EIA.
These are some of the issues raised during the experience of EIA implementation in the Camisea Project. These lessons are applicable not only to environmental enforcement but for the legal enforcement used in other areas with initial development such as occupational health, industrial security and technical duties and also to the environmental enforcement required to be developed in other economical sectors. It is also an important outcome to be considered in the new institutional scheme for EIA enforcement in the country. An aspect to consider is, also, the need of an adequate coordination between the enforcement authority and the one in charge of the approval of the studies (the Ministry of Energy and Mines, in the case of the gas sector) in order to develop in a harmonized way the basis for a successful EIA enforcement, which are related to the EIA approval process and the sectorial legislation applicable too. 3 CONCLUSIONS
a) EIA regulations in Peru have been evolving since its original text in the Environmental Code in 1990. In the nineties, sectorial environmental regulations developed EIA rules applicable to the different economic activities. In 2001, a national integrated EIA legislation was passed which required EIA sectorial regulations to be adapted to the new legal scheme, mandate that hasnt been complied yet. Therefore, at this time, the main content of Peruvian EIA regulations are developed in sectorial environmental regulations, including the hydrocarbon activities environmental legislation. b) Environmental enforcement institutionality has been transferred from the jurisdiction of the Ministry of Energy and Mines, to the Prime Ministers Office and then to the Ministry of the Environment, through its enforcement agency: OEFA. The purpose of this development responds to the need to separate the promotion of investments role of the authority from the enforcement one. Nevertheless, the decentralization process has brought a regression considering that the enforcement authority at this level is an office dependent from an investment promotion office. c) The Camisea Project, the biggest energy project of the history of Peru, developed its EIA documents since 2002 which included more than 20 environmental studies that were subject to enforcement by the regulatory agency located in the Prime Ministers Office. This amount of information and the number of inspections developed represented a great effort from a multidisciplinary team gathered to develop the follow up of this mega project. d) Until February 2011, there were a total of 46 legal procedures concluded in the administrative branch (which are the ones made public by the regulatory agency) with environmental sanctions applied to this project. 34 of these procedures (for approximately 8 million dollars) are related to non compliance of EIA obligations or to development of activities without EIA previously approved. The most important sanction imposed (of the ones published) arises to approximately 1.2 million US
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dollars) and was related to the development of activities not approved in the EIA applicable and exceeding the maximum length for construction activities of the pipeline. e) From the implementation of the environmental enforcement of the Camisea Project different lessons learned can be developed such as: t he need of a direct and clear language in the text of the EIA that could not allow different interpretations of the content of the compromises established; the need of a compendium of the enforceable duties established in the EIA considering the modifications that are made to the original text of it during its approval process; the need of harmonization of EIA content and other authorizations given by authorities different to the environmental sectorial authority; the need to integrate regulation of non properly environmental issues regulated within the EIA which are also subject to extra environmental regulations and to the enforcement of other authorities; the need of a close relation between the authority competent for the EIA approval and the environmental enforcement authority itself. f) The new institutional arraignment established in Peru since the creation of the Ministry of the Environment in 2008, and its enforcement authority (OEFA) brings a great challenge for environmental enforcement in the country. This new enforcement authority has begun to develop direct environmental enforcement actions, since July 2010, in energy and mines activities and is focused in the development of this important task. 4
1
REFERENCES
Interamerican Development Bank. Camisea Project Overview (15 March, 2011) available at http://idbdocs.iadb.org/wsdocs/getdocument.aspx?docnum=462033 2 Guardia, Gian Carlo. The Camisea Project: developing legal frameworks for avoiding social and environmental conflicts in sensitive areas. Houston Journal of International Law. Spring, 2009. 3 Natural Gas Managers Office at OSINERGMIN ( 12 March, 2011) available at http://gasnatural.osinerg.gob.pe/contenidos/uploads/GFGN/Rel_Sanciones_FC_ GFGN_Enero_2011.pdf. 4 The difference are sanctions related to technical issues or imposed to other natural gas projects different from Camisea. 5 In addition to the monetary sanctions, the Camisea Project received 11 administrative measures related to the restriction of the activity mandate by the regulatory agency. 6 It must be considered that there is another number of sanctions in process which are not disclosed to the public until the finalization of the correspondent legal procedure. 7 Resolutions N 2811-2007-OS/GG and N 726-2007-OS/CD emitted by OSINERG. 8 Pluspetrol Peru Corporation. Modification to the Environmental Impact Study of the Block 88, Camisea. November 2002. page 20.
About this issue there is an administrative procedure related to it, but as long as its legal procedure has not finalized it can not be referred in this text. 10 Resolutions N 650-2008-1-OS/GFGN and N 242-2009-OS/CD emitted by OSINERG. 11 This is a case not concluded yet. 12 Resolutions N 2360-2008-OS/GFGN and N 244-2009-OS/CD emitted by OSINERG.
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BIBLIOGRAPHY
Aldana Durn, Martha Ins, Environmental Impact Assessment in Hydrocarbon Activities. A Practical Approach. Revista Peruana de Derecho de la Empresa. Empresa y Ambiente. No.65. Year XXIII. May, 2008. Aldana Durn, Martha Ins, Past, Present and Future of Environmental Institutionality in Peru. Revista de la Gerencia de Fiscalizacin de Gas Natural de OSINERGMIN. November, 2009. Gamboa, Csar. Cueto, Vanessa. Dvila, Jimpson, The Peruvian government complied with Camisea. Final Diagnosis of the compliance of compromises of Peru in the Camisea Project. DAR, October, 2008. Gamboa, Csar. Cueto, Vanessa. Dvila, Jimpson, Guardia GianCarlo. Gamboa, Csar. Cueto, Vanessa. Dvila, Jimpson, The Camisea Project: developing legal frameworks for avoiding social and environmental conflicts in sensitive areas. Houston Journal of International Law. Spring. 2009. ParksWatch, Machiguenga Communal Reserve. http://www.parkswatch.org/ parkprofile.php?l=eng&country=per &park=macr&page=thr. Accessed 20/02/11 Torres Slimming, Paola, Globalization, the Camisea Project and the health of the Matsiguenkas. Rev. Peru Med. Exp. Salud Pblica. 2010; 27(3): 458-65. ANNEX 1 ENVIRONMENTAL IMPACT ASSESSMENT LEGISLATION IN PERU
1.1 In the Environmental Code The first Peruvian environmental regulation was the Environment and Natural Resources Code (1990). This Code included a special chapter dedicated to Environmental Impact Assessment, where the mandate to develop Environmental Impact Studies (EIA, for its name in Spanish) - subject to approval by the competent authority- was established for every project of works or activities, public or private, that could cause non tolerable damages on the environment. In addition to this
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general rule, the Code established an open list of projects subject to this procedure1. Additionally, the Code regulated the main content of the EIA including the effects of the project in the physical and social environment, the mandate to establish the required measures to avoid and reduce the damage to tolerable levels, and to present a summary of the study for publicity purposes2. The studies, according to the Code and until these days, can only be developed by qualified and registered entities, and its elaboration costs correspond to the responsible of the project3. Regarding to public participation, the Code established that the EIA were available to the public in general; being possible to request the reserve of confidential information related to industrial property or personal security4. The authorization of the project, according to the Code, should refer the environmental conditions of mandatory compliance for its development5. Finally, the Code regulated the possibility to establish an EIA for ongoing activities that could be generating negative environmental impacts to the environment in order to require the adoption of the correspondent corrective measures6. In the early nineties, Peru was subject to structural changes that focused in promoting investments in the country. In this context, the Environment and Natural Resources Code suffered an important number of modifications and derogations. As a consequence of this, EIA regulations of the Code were changed. Then, the screening rule established in the Code for EIA projects subject to this procedure was derogated by the Framework Law for the Promotion of Investments (1991) that established the competence of sectorial authorities (the authorities in charge of the promotion of the economic activities) to regulate and enforce environmental legislation, including environmental impact assessment regulations7. Therefore, since those years, environmental enforcement of energy activities were subject to the Ministry of Energy and Mines authority, also responsible of promoting the growth of this sector. 1.2 EIA Sectorialized Following this mandate focused in the sectorialization of environmental regulations, the energy and mines authorities developed, separately, the environmental protection regulations applicable to mining activities (1993), to hydrocarbon activities (1993) and to electricity activities (1994). All of these regulations established the competence of the environmental sectorial authorities to approve EIA related to these different activities. Particularly, in the hydrocarbon sector, the regulation original from 1993 was reformulated in 2006. The actualization of the sectorial regulations of the EIA process is a pending issue in the mining and electricity sectors.
Besides, the energy and mines sector regulated public participation in the EIA process since 1996, presenting an institutional evolution looking for broader possibilities to public intervention in environmental decisions. Nevertheless, other sectors such as agriculture, health, transportation, sanitary services, have not yet (and until these days) approved EIA regulations applicable to these specific activities under their scope of competences. 1.3 EIA General Legislation In this context of lack of an integral and harmonized regulation related to EIA procedures, appeared the need of a national legislation in this matter. Then, in 2001, was enacted the Environmental Impact Assessment National System Act (Law N 27446) that established a unique and coordinated system for identification, prevention, supervision, control and anticipated correction of the negative environmental impacts generated as consequence of investment projects; creating a public management system (the National Environmental Impact Assessment System) in charge of the national environmental authority. This law required the approval of its proper regulation in order to be effectively in force. This regulation was approved in 2009, through the Supreme Decree N 019-2009-MINAM, given by the Ministry of the Environment. Therefore, the content of this law aimed to harmonize sectorial EIA regulations, was not a enforceable for more than eight years. A year before, in May 2008, within the legislative measures given in order to facilitate the Free Trade Agreement between US and Peru, the executive branch promulgated the Legislative Decree N 1078 incorporating a number of changes in EIA national legislation such as the inclusion of the strategic environmental impact assessment for the first time in the national legislation, and introducing new competences in this matter for the Ministry of the Environment, recently created in those days, precisions in the content of the studies, and also the abrogation of the rule that required the approval of this laws regulation in order to make it applicable. However, this legislation did not change the rule related to the sectorial competence for the approval of the environmental studies, which is an attribution subsistent until these days. The before mentioned regulation of the EIA Law, emitted by the Ministry of the Environment in 2009, established new rules as the one that requires the environmental studies to be updated every five years; the requirement for the intervention of different environmental authorities in the EIA approval process; the list of activities required to present EIA to the different environmental sectorial authorities; and the administrative process to be developed in the environmental regulations of each sector, among other changes. As a consequence of the implementation of this regulation, environmental sectorial authority were requested to reformulate their sectorial EIA rules applicable to
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regulate the EIA process to the activities under their jurisdiction. A due date was given to develop such task, but it hasnt been complied out yet8. Nevertheless, it is expected that the current sectorial regulations that constitute the actual legal framework for the application of EIA in the country will be modified in the near future; as a consequence of the mentioned mandate. 2 INSTITUTIONAL ARRANGEMENTS FOR EIA ENFORCEMENT
2.1 In the Energy and Mines Sector Peruvian environmental institutions have been subject to constant changes in the last years, with the aim of strengthening the national environmental management. This included the institutional scheme related to environmental enforcement authorities. As it was said, the National Environmental Code of 1990 was the first Peruvian environmental legislation in the country. This regulation created a National Environmental System including the different public institutions with environmental competences. The coordinator of this system was supposed to be designed by the Prime Ministers Office. Nonetheless, a year later, this particular chapter of the Code was derogated by the investment promotion regulation of 1991, mentioned before. Then, EIA rules established in the Code were changed to give a sectorial emphasis to its regulations giving sectorial authorities the task to regulate and enforce environmental legislation, including environmental impact assessment regulations. In 1992, an Act was passed by the executive branch (Decreto Ley N 25763) that established the requirement of environmental enforcement actions for mining, hydrocarbon and electrical activities. This legislation established, for the first time in the country, the possibility of developing environmental enforcement activities through third parties (auditing and inspecting companies), financially supported by the proper enforced actors. This particular aspect and the fact that the law established that the authority itself was not permitted to develop environmental inspections, but only to intervene through those auditing and inspecting companies, made this scheme object of different critics and questionings related to the impartiality of the outcome from such enforcement actions. Related to environmental enforcement of mining activities, in the year 2001, a law was passed (Law N 27474) which established the figure of external enforcers required to be registered in the Ministry of Energy and Mines, who were authorized to develop environmental enforcement visits and were paid by the mining companies through a tax collected by the Ministry of Energy and Mines, avoiding in this way the direct payment between the company and the external enforcer. Also, this law recognized the legality of enforcement visits developed by the proper ministerial authorities. Nevertheless, in the mining enforcement sector, the criticism continued based on the fact that, finally, it was the proper Ministry in charge of the promotion of mining
investments the one that was in charge of imposing sanctions and limitations to the development of these activities. 2.2 In the Regulatory Agency As an answer to these problems and in the privatization tendency of the nineties, in the year 1996, was created the Energy Investment Regulatory Agency (OSINERG, for its name in Spanish) pertaining to the Ministry of Energy and Mines, and lately (2001) pertaining, as the other regulatory agencies, to the Prime Ministers Office (PCM, for its name in Spanish). OSINERG was, then, created for the development of enforcement actions in the hydrocarbon and electricity activities, among other duties. Lately, and related to mining activities, in the year 2007, a law was passed that transferred the mining environmental enforcement from the Ministry of Energy and Mines to the existent regulatory agency (Law N 28964); therefore making the enforcement institutionality in mining activities dependent from PCM too. The environmental enforcement activities under the regulatory agency were based in third parties (supervisors) requested to be registered and qualified by the regulator in order to develop this function. 2.3 In the Ministry of the Environment Although, an institutional change was still an unsolved issued: the creation of the Ministry of the Environment. The context given for this decision was the delegation of regulatory power given by the National Congress to the executive branch, in the year 2008, which was preceded by a public declaration of the President of the Republic referred to the need of giving the national environmental authority the maximum hierarchy possible in the public administration through the creation of the Ministry of the Environment. When the legislation that established the Ministry of the Environment was published, in May 2008, it included, among other institutions, a proper environmental enforcement authority: the Environmental Assessment9 and Enforcement Agency (OEFA, for its name in Spanish). OEFA, the enforcement arm of the national environmental authority, was created as an independent agency within the Ministry of the Environment and began its implementation in the year 2009, having assumed, up to this date, the environmental enforcement of the energy and mines sector10. In 2009, an additional legislation related to environmental institutionality established the Environmental Assessment and Enforcement National System (Law N 29325) with OEFA as its governing entity. This law gave the national environmental enforcement authority functions not only related to the direct supervision and sanction of different economic activities transferred to this new institution but also, to the supervision of the performance of other authorities with environmental enforcement competences in the national, regional and local levels. In addition,
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this authority also received the competence to regulate and give incentives to promote environmental compliance. Through this recently created enforcement system, is expected that OEFA will harmonize and strengthen the development of environmental enforcement in the country. A particular consideration that has to be taken is the descentralization of the enforcement institutionality which has been developed in the mining sector. Here the descentralized authority in charge of this issue is dependent from an office aimed to promote investments in the region. This, to our understanding, constitutes a regression to the institutional scheme where the environmental enforcement was dependent from the promotion of investments authority, which is not recommendable in order to strengthen environmental enforcement. 3
1 2
REFERENCES
Legislative Decree 613, article 8. Legislative Decree 613, article 9. 3 Legislative Decree 613, article 10. 4 Legislative Decree 613, article 11. 5 Legislative Decree 613, article 12. 6 Legislative Decree 613, article 13. 7 Legislative Decree 757, article 50. 8 The 2009 EIA regulation gave a 180 days period in order to comply with the mandate to adapt sectorial EIA regulations to it, but it hasnt been complied yet. 9 The concept assessment relates to monitoring and vigilance of the environmental quality in order to develop enforcement actions. 10 Up to this date, OEFA has received from OSINERGMIN the transference of the environmental enforcement functions related to mining activities (since July 2010), and to liquid hydrocarbons, natural gas and electricity activities (since March 2011).
CITIZEN ENFORCEMENT OF PROCEDURAL RIGHTS IN THE ENVIRONMENTAL IMPACT ASSESSMENT PROCESS IN BELIZE AND JAMAICA ANDRADE, DANIELLE E.1, EXCELL, CAROLE 2 AND GONZALEZ, CANDY 3 Legal Director, Jamaica Environment Trust, 11 Waterloo Road, Kingston 10, Jamaica, dandrade.jet@cwjamaica.com
1
Senior Associate, World Resources Institute, 10 G Street NE Suite 800, Washington, DC, 20002, USA, cexcell@wri.org
2
President, Belize Institute of Environmental Law and Policy, P.O. Box 105, San Ignacio, Cayo District, Belize, candybz@gmail.com
3
SUMMARY The inclusion of procedural rights of access to information, public participation and access to justice in environmental decision-making are recognized in international treaties and soft law agreements as central to the sustainable development agenda1. Since the 1990s, a number of Caribbean countries have enacted environmental legislation requiring the preparation of an Environmental Impact Assessment (EIA) prior to permitting significant developments2. The extent to which procedural rights have been included within EIA provisions however is varied. There has been little analysis of the impact of the use by citizens of procedural rights in these EIA processes3. This paper examines the legislative framework for EIAs and citizen enforcement of procedural rights in the decision-making process for proposed developments in Jamaica and Belize. The legislative frameworks adopted by Belize and Jamaica are significantly different; with the former enacting comparatively comprehensive regulations to guide the EIA process and the latter dependent on internal guidelines. In both countries there has been documented failure in law and practice to deliver effective procedural rights. A review of recent court decisions in Belize and Jamaica illustrates the value of citizen enforcement as a means of safeguarding procedural rights in the conduct and review of EIAs as well as demonstrating the failure in compliance. 1 INTRODUCTION
EIAs are central to the management of development. These studies facilitate government decision-making by assessing the possible impacts (positive or negative) that a proposed project may have on the social, economic and natural environment. The rights of access to information, public participation in decisionmaking and access to justice enable citizens to engage in this development approval process. It ensures that the EIA process is transparent (access to information), that
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citizens are informed of and have a fair opportunity to comment on proposed developments (public participation) and that there are avenues for objection and review of government action (access to justice). The legislative frameworks for EIAs adopted in Belize and Jamaica are significantly different in scope. In the case of Jamaica, there is a complete lack of comprehensive legislative provisions and a reliance on discretionary internal guidelines. In Belize, regulations cover a wide array of processes including the terms of reference for preparation of the EIA, access to documents, legal requirements for preparation, public participation, and review. Citizen enforcement of environmental laws is a worldwide phenomenon that has only recently taken hold in the Caribbean4. In Belize and Jamaica, recent litigation filed by citizens and interest groups challenging their governments compliance with national provisions on EIAs has resulted in pivotal decisions by their Supreme Court and the Privy Council5 outlining the failure to effectively incorporate procedural rights in the conduct of EIAs. This progressive trend in environmental jurisprudence provides an opportunity to review both the legal framework and practice of EIAs and recommend improvements to address current barriers to citizen enforcement. 2 BELIZE 2.1 Access to Information in the EIA Process in Belize
By virtue of Belizes Freedom of Information Act of 1999, every person has the right to obtain access to a document of a Ministry or prescribed authority other than exempt documents specified in the Act6. However the time frames for government to make decisions under this law can extend to well over 28 days if the information is refused. Long time periods for making decisions on access limit the usefulness of this right to the public because of the short timeframes when the public may comment before approval of a development7. The Environmental Impact Assessment Regulations of Belize include procedures to determine if an EIA is required for a proposed activity. Before commencing a project or development, all persons, agencies, and institutions (public or private) must apply to the Department of the Environment. The Department is mandated under the Environmental Protection Act to evaluate and determine the scale and terms of an EIA or to determine if a limited study or no study is needed. The Schedule to the Regulations sets out three categories of projects: projects which always require an EIA, projects within the discretion of the Department and projects which are excluded from the requirement to prepare an EIA. The law does not provide an opportunity for early review by the public. The public has no right to view the application for the proposed development, view and/or comment on the scope of the EIA to be prepared by the developer or to disagree as to the need for a full EIA.
2.2
Public Participation in the EIA Process in Belize
In Belize, the public may have an opportunity to participate both during and after the completion of the EIA process. During the course of an EIA, the developer is required to hold meetings with interested members of the public, especially those within the immediate or adjacent geographical area of the proposed project to provide information on the proposed undertaking to record concerns of the local community8. After the completion of the EIA and submission to the Department of the Environment, the public is given the opportunity to view and comment on the EIA. The developer must publish a notice in at least one nationally distributed newspaper indicating: (1) the location and nature of the proposal; (2) that an EIA has been prepared; (3) where, when, and for how long the EIA can be seen by the public; (4) that anyone can make objections and representations to the Department about the effects the proposed activity will have on the environment; and (5) the deadline for filing comments. At any time the Department of the Environment may invite written comments from interested persons. The Department of the Environment may forward comments to the developer who is required to respond to public comments9. A request can be made that the Department effectively oversee the communication procedure between the developer and citizens by providing consultation10. Comments may also be submitted by members of the public to the National Environmental Appraisal Committee (an inter-governmental body that vets all EIAs). The Committee may advise the Department of the Environment to require the developer to conduct further work or studies, to supply more information, or to amend the EIA. Participatory rights consist not only of the right to be heard but also the right to affect decision-making11. Although the law provides ample evidence of inclusion of procedural rights, in practice there are a number of loopholes in the provisions. There are no provisions set forth in the Regulations if the developer fails to respond to public comments and the Department of the Environment fails to enforce compliance. Although the EIA preparers must demonstrate that they have consulted with stakeholders within the project area, there is no way to gauge how many people were consulted or how they were chosen. There are no rules on how to carry out the consultation or independent monitoring. Although the public has the right to submit comments on the project, there are no means of ascertaining whether the comments were seen by the National Environmental Appraisal Committee or if they were taken into consideration in the final decision. Public meetings allow the public to raise questions about the proposed project and for the applicant to respond to these issues and make any necessary changes to the project and the EIA. In Belize, there is no mandatory requirement to hold a public meeting for any of the three categories of projects. The Department of the Environment, on the recommendation of the National Environmental Appraisal Committee, determines whether a public hearing should be held after the EIA has been prepared12. The National Environmental Appraisal Committee can request
both public consultations and public hearings; however, they are held at the discretion of the Department of the Environment. To date, only two public hearings have been held in Belize for EIAs relating to two dam projects13. 2.3 Access to Justice in Belize
The barriers to accessing justice in Belize are primarily related to the high costs for litigation and the lack of standing to bring an action against private corporations for breach of environmental laws. There is an increasing trend worldwide to broaden standing for citizens to sue violators of environmental law recognizing that citizens can play an important role in enforcement14. Public interest environmental litigation in Belize is predominantly found in the area of judicial review where citizens can apply to the court to review the decision of a public body. Judicial review does not allow courts to substitute their own decisions for that of the public body but the courts can review the legality of a decision, where for instance the decision-maker failed to take into account relevant considerations. Standing requirements for judicial review are wide and inclusive for Belize. An application for judicial review is brought under Belizes Civil Procedure Rules of 2005. Public interest groups with a sufficient interest in the matter (standing) include any body or group that either (1) acts on the request of a person or persons who have been adversely affected by the decision that is the subject of the application; (2) represents the views of its members who may have been adversely affected by the decision; or (3) can show that the matter is of public interest and that the body or group possesses expertise in the subject matter of the application. Box 1: Requirements for standing- Belize An application for judicial review is made in accordance with the Civil Procedure Rules, 2005, 56.2. (1) An application for judicial review may be made by a person, group or body which has sufficient interest (2) This includes: (a) any person who has been adversely affected by the decision which is the subject of the application; (c) any body or group that represents the views of its members who may have been adversely affected by the decision (e) any body or group that can show that the matter is of public interest and that the body or group possesses expertise in the subject matter of the application; or (f) any other person or body who has a right to be heard under the terms of any relevant enactment or the Constitution. Public interest environmental litigation requires the assistance of an attorney and can be costly. There are no assistance mechanisms to remove or reduce financial and other barriers to access justice in Belize. There are no specially trained public interest environmental lawyers and no national legal aid mechanism to support
this work. The general rule is that the loser pays the costs of the winner and courts rarely exercise their discretion otherwise. While there is precedent in Belize for no cost awards in public interest litigation, there have been cases taken in the public interest where costs were ordered against the plaintiffs15. 3 JAMAICA 3.1 Access to Information in the EIA Process in Jamaica
Under Jamaicas Access to Information Act 2002, every person has the right to obtain access to official documents held by public authorities subject to exempt documents, which include documents that contain confidential information or which disclosure would prejudice national security16. As in the case of Belize, the potential usefulness of this law is limited because of the time frame for response to a request under the Act; which can extend to a period of over 120 days if there is refusal to grant access to a request for information and the applicant requests internal review or an appeal. In Jamaica, the EIA procedure is regulated by the Natural Resources Conservation Authority through the National Environment and Planning Agency. Unlike Belize, there are no specified projects that include a mandatory requirement to conduct an EIA. Regulations passed pursuant to the Natural Resources Conservation Authority Act, prescribe categories of development that require an environmental permit17. It is wholly within the Natural Resources Conservation Authoritys discretion to require an EIA for these projects where in its opinion the activities of the project are having or are likely to have an adverse effect on the environment18. There are no regulations to stipulate the procedure for conducting an EIA, requirements for public participation, or for giving the public access to an EIA document. Instead the Natural Resources Conservation Authority and National Environment and Planning Agency rely on their own internal guidelines19. Although current practice has been for the National Environment and Planning Agency to publish EIA documents on its website20, the authority may in fact waive the requirement to notify the general public of the development. In practice, the public may often be unaware that an application has been received for a development or that an EIA has been submitted to the Natural Resources Conservation Authority21. 3.2 Public Participation in the EIA Process in Jamaica
After an EIA has been submitted for review, the Natural Resources Conservation Authority is only required by law to consult all relevant government agencies exercising functions in connection with the environment22. There is no statutory duty to consult the public or a right to participate in EIA decisions. According to the guidelines, if an EIA is requested, the consultant who prepares the EIA should consult the residents within the community or near to the proposed site of the development and their views should be incorporated in the EIA23. The Natural Resources Conservation Authority may thereafter decide whether a public meeting should be held to discuss the findings of the EIA.
Box 2: Discretion to require public hearings in Belize Belize. Sec. 24(2) of the EIA Regulations provide that to determine whether there should be a public hearing, the DOE looks at the following factors: (a) the magnitude and type of the environmental impact, the amount of investment, the nature of the geographical area, and the commitment of the natural resources involved in the proposed undertaking, project or activity; (b) the degree of interest in the proposed undertaking, project or activity by the public, the Department and other government agencies; (c) the complexity of the problem and the possibility that information presented at a public hearing may assist the developer to comply with its responsibilities regarding the proposed undertaking, project or activity. Jamaicas NRCA Act contains no provision on public hearings in the EIA process. Internal guidelines for conducting public presentations sets out a fairly detailed procedure for holding a public meeting complete with neutral chairmanship, notifications and timelines to ensure effective participation. The presentation at the public meeting must be simple and concise, give main findings of the EIA report including both positive and negative potential impacts, mitigation measures and associated costs, and inform the public how to access monitoring results during construction and operational phases24. The public is given 30 days after the public meeting to submit their comments on the EIA to the National Environment and Planning Agency25. Although fairly detailed, the guidelines are discretionary. The procedure required and followed can and does vary on a case-by-case basis. It is difficult to achieve effective and meaningful public participation if the public is not afforded sufficient time to review and comment on the EIA and certainly impossible if the Natural Resources Conservation Authority chooses not to undertake the procedure at all. This is significant as members of the public both at the community level and within non-governmental organizations (NGOs) may identify errors, omissions, or faulty data in an EIA that may have been overlooked. Consultation may even take place well after permits have been granted26. Even where the public consultation process is carried out to the fullest extent, there is no requirement to provide reasons for a decision or to inform the public whether and in what way comments are taken into account. The guidelines are silent on this point. 3.3 Access to Justice in Jamaica
Box 3: Requirements for standing- Jamaica An application for judicial review is made in accordance with the Civil Procedure Rules of Jamaica, 2002. The standing test still requires some nexus to relate the litigant with the cause. The litigant must obtain permission from the court to apply for judicial review, and to do so such person, body or group must have a sufficient interest in the subject matter of the application.
Jamaica, like Belize, has yet to establish appropriate assistance mechanisms to remove or reduce financial and other barriers in accessing justice. In Jamaica, there is no right (statutory or constitutional) for any member of the public to bring an action in court where some person has, or is about to, imminently contravene a prescribed environmental law and the contravention has, or imminently will, cause significant harm to a natural resource27. If there is a failure to adhere to the guidelines or the Natural Resources Conservation Authority Act there is no provision within the legislation for objecting or challenging these failings and objectors must resort to applying to the Supreme Court of Jamaica for judicial review. Standing requirements for judicial review are wide and inclusive for Jamaica. An application for judicial review is brought under Jamaicas Civil Procedure Rules of 2002. Public interest groups with a sufficient interest in the matter (standing) include any body or group that either (1) acts on the request of a person or persons who have been adversely affected by the decision that is the subject of the application; (2) represents the views of its members who may have been adversely affected by the decision; or (3) can show that the matter is of public interest and that the body or group possesses expertise in the subject matter of the application28. The general rule, under Jamaicas Civil Procedure Rules, is that no order for costs may be made against an applicant unless the court considers that the applicant has acted unreasonably in making the application or in the conduct of the application29. Costs have, however, been awarded against public interest organization taking cases to courts for judicial review30. There is no express provision in the Civil Procedure Rules for the making of pre-emptive orders as to costs (otherwise referred to as Protective Costs Orders in the United Kingdom) and as such a potential litigant, at the outset of litigation, is still faced with the risk that costs may be awarded and uncertainty as to the extent of the costs. This may deter individuals from applying for judicial review in cases concerning environmental harm, where they consider the risk and uncertainty to be too great. 4 CITIZEN ENFORCEMENT OF EIA PROVISIONS
Public interest in environmental litigation in the Caribbean is rare31. There have been only a handful of judicial review cases taken to court from Jamaica, Belize, Trinidad, the British Virgin Islands and the Bahamas in the last ten years. The use of legal mechanisms such as judicial review by environmental public interest groups and NGOs to challenge the decision-making process for developments is still new to organizations and to the courts. In 2002, the Belize Alliance of Conservation NGOs, an umbrella group of NGOs, applied for judicial review of the decision of the Department of the Environment to approve a proposed dam on the basis of breach of EIA procedures. In 2005, two Jamaican NGOs- the Jamaica Environment Trust and the Northern Jamaica Conservation Association, and four individuals applied for judicial review of the Natural Resources Conservation Authoritys decision to approve a hotel development relying on similar grounds alleging breach of EIA procedures relating
to public participation. The cases are known as the Chalillo Dam case and the Pear Tree Bottom case. The facts and decisions are set out below. Figure 1: Chalillo Dam in 2007
4.1
The Chalillo Dam case32
Belize Electrical Company Limited (Fortis-BECOL), a Canadian-owned company, submitted an application to the Department of the Environment to construct a hydroelectric dam at Chalillo. The project required the flooding of nearly ten square kilometres of land within two forest reserves (the Mountain Pine Ridge Forest Reserve, the Chiquibul Forest Reserve) and a national park (the Chiquibul National Park). The area has the highest density of endangered and rare animal species in Belize, including the jaguar, puma, ocelot species, the Bairds tapir, the morelot crocodile, and the Scarlet Macaw of which only about 1000 still exist anywhere in the world33. The Department of the Environment granted environmental clearance in November 2001 and subsequently the Belize Alliance of Conservation Non-Governmental Organizations filed an action for judicial review challenging the decision. The Belize Alliance of Conservation Non-Governmental Organizations grounds for judicial review included the claim that the National Environmental Appraisal Committee and the Department of the Environment acted improperly by failing to consider the comments and concerns of local communities including those living near the proposed dam and by failing to hold a public hearing prior to a decision being made that would address issues of health and safety. Other issues raised were a failure to address the inadequate hydrological studies, address faulty and misleading geology reports, and to take into account the destruction of large Mayan sites. In addition, the Belize Alliance of Conservation Non-Governmental Organizations raised concerns of an implied bias on the part of the Chairman of the National Environmental Appraisal Committee and all governmental representatives on the
National Environmental Appraisal Committee based on a public announcement made by the Prime Minister of Belize in support for the project and an agreement wherein the Government of Belize committed itself to construct the access road to the Chalillo dam site and waive on behalf of Belize Electrical Company Limited and its Contractor all licenses, permits, consents and regulatory approvals in connection with the Chalillo project. The first instance court, though recognizing the inadequacy of the EIA and a failure to precisely follow the letter of the EIA Regulations, ruled that there was inadequate proof of impropriety and/or wrongdoing in the EIA process or on the issues of undue influence. The Court decided there was no doubt that a public hearing was warranted and ruled that the Department of the Environment should hold a public hearing even though in view of the Department of the Environments decision this order would, in effect, sound like putting the cart before the horse.34 The Belize Court of Appeal upheld the decision of the lower court but found that the issues raised were of significance and did merit review by the court of final appeal for Belize, the Privy Council. In 2004, three out of five judges of the Privy Council ruled that although the decision to approve the dam was flawed, it was not illegal. The errors in the EIA were not of such significance to prevent it from satisfying the requirements of the legislation or forming a proper basis for approval by the Department of the Environment. The Privy Council relied on the fact that the EIA regulations stated that the EIA should indicate gaps in knowledge and uncertainty and highlight areas of controversy and issues (are) remaining to be resolved. It was not necessary for the EIA to be comprehensive or to pursue investigations to resolve every issue. They concluded that, The Government of Belizehas the right to decide to destroy this area if it so chooses...the court challenge was about the adequacy of the EIA. Despite the shortcomings in the information in the EIA, the NEAC accepted the document, which fulfilled the requirements of the EIA Regulations. In a strong dissenting opinion, two judges held that they would have quashed the Department of the Environments decision to approve the project and would also grant an injunction restraining Belize Electrical Company Limited from continuing work on the project unless and until a corrected EIA is prepared for public consultation, secures recommendation by the National Environmental Appraisal Committee, and approval by the Department of the Environment. Lord Walker of Gestingthorpe concluded at paragraph 121 of the judgement:
Belize has enacted comprehensive legislation for environmental protection and direct foreign investment, if it has serious environmental implications, must comply with that legislation. The rule of law must not be sacrificed to foreign investment, however desirable (indeed, recent history shows that in many parts of the world respect for the rule of law is an incentive, and disrespect for the rule of law can be a severe deterrent, to foreign investment). It is no answer to the erroneous geology in the EIA to say that the dam design would not necessarily have been different. The people of Belize are entitled to be properly informed about any proposals for alterations in the dam design before the project is approved and before work continues with its construction.
Figure 2: Pear Tree Bottom in 2004 (above) and in 2006 (below)
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The Pear Tree Bottom case35
Pear Tree Bottom, located on the north coast of Jamaica, was an ecologically sensitive coastland, slated for designation as a protected area under Jamaicas Policy for creating a National System of Protected Areas. In July 2005, the Natural Resources Conservation Authority granted a permit to a Spanish hotel development company, Hoteles Jamaica Pinero Limited for the construction of a 1,918-room hotel on the site. Shortly thereafter, NGOs Jamaica Environment Trust and Northern Jamaica Conservation Association and four local residents applied to the Supreme Court of Jamaica for judicial review of the decision of the Natural Resources Conservation Authority and the National Environment and Planning Agency to grant the permit. The main issues addressed by the court were whether the Natural Resources Conservation Authority failed to properly consult with other relevant government departments as provided by statute and whether the public meetings held by the Authority and the National Environment and Planning Agency met the legitimate expectations of the public. The Court quashed the decision to grant the permit, holding in part, that the agencies failed to meet the legal standard for consultation because they withheld from the public the marine ecology report and two addenda to the EIA. The court also found the agencies abused their decision-making power by knowingly circulating an incomplete EIA, thereby increasing the possibility that the public would make inaccurate and erroneous conclusions about the impact of the development at Pear Tree Bottom. This action deprived the public of information necessary to make a fully informed and intelligent decision and constituted a breach of the publics legitimate expectation of fair and meaningful participation. The court applied
the Sedley definition for the legal standard for public consultation which was approved by Lord Woolf in R v North and East Devon Health Authority, Ex Parte Coughlan [2001] Q.B. 213, 258:It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken: R v Brent London Borough Council Ex p. Gunning (1985) 84 LGR 168
The court cited the Chalillo dam case quoting, in particular, from the dissenting opinion of Lord Walker of Gestingthorpe that the rule of law must not be sacrificed to foreign investment, however desirable. Hoteles Jamaica Pinero Limited intervened after delivery of the judgment asserting undue hardship and improper service of the pleadings. A subsequent court decision varied the initial orders by revoking the order to quash the permit but upholding the declaratory orders that the procedure for consulting the public and governmental agencies were inadequate. 5 CONCLUSION Transparency in environmental decision-making is crucial. Although judges cannot be called upon to determine the merits of a decision, judicial review can be used to scrutinize the decision-making process, ensure accountability and clarify rights. The Chalillo dam and Pear Tree Bottom cases have shown the utility of judicial review actions as a means to safeguard the right to access information about proposed developments and participate in the EIA process. The cases marked the first time in Belize and Jamaica that an NGO was granted standing when it was not directly involved in the area at risk. They also forever changed each countrys perception about the publics role including the role of NGOs in environmental issues. The cases also revealed the limitations inherent in the legal frameworks for EIAs in Belize and Jamaica. In both cases, the contested projects were eventually allowed to continue despite flaws in providing access to information and public participation. In the case of Jamaica, while it was outside the scope of the courts jurisdiction to make any pronouncements on the general right to participate in EIAs in the absence of a statutory requirement, the court imposed the common law standard for proper consultation based on the principles of natural justice and good administration on the regulatory agencies. The application of this standard in practice is limited to instances where firstly, an EIA has been required and secondly, where the public is consulted. In other words, it is only if the Natural Resources Conservation Authority decides to commission an EIA and consult the public that it can be held accountable to this standard. It cannot be said therefore, given the limitations of a discretionary
framework, that the judgment has fleshed out general EIA requirements as it relates to public participation. Despite or because of these shortcomings, the cases provide a welcome evidentiary basis to promote reform aimed at clarifying procedural rights in these countries. Both Belize and Jamaica should include mandatory access to information and public participation procedures within their legislative framework for EIAs. Legislation could lessen the discretion given to public authorities and ensure increased public participation during the process. To accomplish this, Jamaica should enact clear and detailed legislation for the conduct and review of EIAs. In Belize, the EIA Regulations should be reviewed, in particular the wide discretion given to the Department of the Environment to accept flaws within EIAs and to determine if public hearings are required for developments. The law should include a duty to give reasons and responses to public comment. Finally, a more accessible forum at first instance that could hear public complaints about the EIA process needs to be developed to provide greater access to justice without cost barriers. Building environmental jurisprudence in the Caribbean on procedural rights needs to be continued. However, in the absence of reform, the impression may be left that the long-term value of public interest litigation in the conduct of EIAs in Jamaica and Belize is as a form of protest to delay the grant of approval for developments rather than any meaningful change in the decision-making process for development. 6 REFERENCES Principle 10 of the 1992 United Nations Conference on Environment and Development (The Rio Declaration). Chapter 8.4(f) and 8.18 of Agenda 21, the Programme of Action for Sustainable Development. Both instruments were adopted by over 178 states at the United Nations Conference on Environment and Development (UNCED) held in Rio de Janerio, Brazil from June 3rd to 14th, 1992. Global agreements which include procedural rights in environmental decisionmaking include the 2001 Convention on Access to Information, Public Participation in Decision-Making, and Access to Justice in Environmental Matters (the Aarhus Convention), the 1991 Espoo Convention on Environmental Impact Assessment in Transboundary Context and the 1991 Convention on Biological Diversity. 2 These countries include Barbados, Dominica, Grenada, Jamaica, St. Lucia, Trinidad and Tobago, Bahamas, and Cayman Islands. 3 Perhaps the exception is research completed by Dr. Winston Anderson. See Anderson, W., Environmental legislative and judicial developments in the English-Speaking Caribbean countries in the context of compliance with Agenda 21 and the Rio Agreements. United Nations Environment Programme and Caribbean Law Institute (2002), available at http://www.pnuma.org/deramb/publicaciones/CaribbeanEnvLaw.pdf and Anderson, W., The Environmental Laws of the Commonwealth Caribbean, Caribbean Law Institute, (1992), p.1. See also, Toppin-Allahar, C., A Comparative Analysis of Environmental Impact Assessment Law and Planning Practice in the Commonwealth Caribbean, The Caribbean Law Review, Vol II No.1 (2001).
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See INECE Principles of Environmental Compliance and Enforcement Handbook April 2009, p. 87 available at http://inece.org/principles/PrinciplesHandbook_23sept09.pdf. 5 The Privy Council of the United Kingdom is the final court of appeal for Jamaica, Belize and a number of other Commonwealth Caribbean islands. 6 Section 9 of Belize Freedom of Information Act, 1999. Exempt documents under the Act include Cabinet documents, documents containing confidential information and documents where disclosure would prejudice national security, defense or international relations. See Part IV sections 22- 34 of the Act. 7 Part V of Belize Freedom of Information Act. 8 Section 18 (a) and (b) of the Environmental Impact Assessment Regulations. 9 Section 18(c) and 19(n) of the Environmental Impact Assessment Regulations. 10 Section 18 (4) of the Environmental Impact Assessment Regulations. 11 Shelton, D, Environmental Rights in P. Alston (ed.), Peoples Rights (OUP: Oxford, 2001) 185. 12 Section 24 of the Environmental Impact Assessment Regulations. 13 Pers. Comm, Candy Gonzalez, Belize Institute of Environmental Law and Policy, April 14, 2011. 14 Bonine, J. E., Broadening Standing to Sue For Citizen Enforcement, 1999 available at http://www.inece.org/5thvol2/bonine.pdf . 15 No costs were awarded against a Belizean NGO in its judicial review claim in Belize Alliance of Conservation Non-Governmental Organisations v. Department of the Environment & Anor (Belize) 2004 [UKPC] 6. 16 Section 7 of The Access to Information Act, Jamaica. 17 Natural Resources (Prescribed Areas) (Prohibition of Categories of Enterprise, Construction and Development) (Amendment) Order, 2003. 18 Section 10 (1) (b)of the Natural Resources Conservation Authority Act. 19 National Environmental Planning Agency Guidelines for Conducting Environmental Impact Assessments (2007), available at http://www.nepa.gov.jm/publications/ guidelines/index.asp. 20 www.nepa.gov.jm. 21 EIAs for large controversial projects are sometimes listed on the NRCA website. 22 Section 9(5) (a) of the Natural Resources Conservation Authority Act. 23 National Environmental Planning Agency Guidelines for Conducting Environmental Impact Assessments (2007), p. 29. 24 NEPA Guidelines for Conducting Public Presentations, p. 45. 25 NEPA Guidelines for Conducting Public Presentations, p. 48. 26 The Jetter, Vol. 1 No. 1. p. 6, available at http://www.jamentrust.org/en/images/ stories/pdf_files/publications/the_jetter/The_Jetter_Magazine_2010.pdf. 27 Legislation to amend Jamaicas constitution to provide for a Charter of Rights has been drafted. Section 13(3)(l) of the proposed Charter will include the right, compatible with sustainable development, to enjoy a healthy and productive environment free from the threat of injury or damage from environmental abuse and degradation of the ecological heritage. The Charter will provide that any person authorized by law, or with the leave of the court, a public or civil organization to make an application to the Supreme Court on behalf of aggrieved persons for a declaration that any legislation or executive act, breaches the provisions of the Charter.
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28 29
Rule 56.2 of the Civil Procedure Rules of Jamaica, 2002. Rule 56.15(5)of the Civil Procedure Rules of Jamaica, 2002. 30 In a judicial review claim filed in 2010 by an NGO and residents against several government agencies relating to a mal-functioning sewage treatment plant, partial costs in the sum of JMD$60,000 (USD 700) were awarded against the claimants for wrongfully joining one of the government agencies in the claim. The Jamaica Environment Trust et al v National Water Commission et al, Claim no. HCV 00114 of 2010. 31 As environmental activism has increased worldwide in the last few decades, there have been increased opportunities for civil society in the Caribbean to develop the capacity to conduct public interest litigation through the support of private foundations from overseas. 32 Belize Alliance of Conservation Non-Governmental Organisations v. Department of the Environment & Anor (Belize) [2003] UKPC 63 and 2004 [UKPC] 6. 33 Belize Alliance of Conservation Non-Governmental Organisations v. Department of the Environment & Anor (Belize) 2004 [UKPC] 6 paragraph 6. 34 BACONGO v Department of Environment, Decision dated 19 December 2002 at 80. 35 The Northern Jamaica Conservation Association and Others v. The Natural Resources Conservation Authority and Another (2006) Claim no. HCV 3022 of 2005. 7 BIBLIOGRAPHY Anderson, W. Environmental Law Enforcement: The Role of the Judiciary, available at http://www.inece.org/conf/proceedings2/58%20-%20Enviro%20Lw%20Enforcement. pdf. Anderson, W. Environmental legislative and judicial developments in the English-Speaking Caribbean countries in the context of compliance with Agenda 21 and the Rio Agreements, United Nations Environment Programme 2002 and Caribbean Law Institute, available at http://www.pnuma.org/deramb/publicaciones/CaribbeanEnvLaw.pdf. Anderson, W. The Environmental Laws of the Commonwealth Caribbean, CLI, (1992), p.1. Bonine, J. E., Broadening Standing to Sue For Citizen Enforcement, 1999. Available at http://www.inece.org/5thvol2/bonine.pdf. INECE Principles of Environmental Compliance and Enforcement Handbook, April 2009. Available at http://inece.org/principles/PrinciplesHandbook_23sept09.pdf. Shelton, D. Environmental Rights in P. Alston (ed.), Peoples Rights (OUP: Oxford, 2001) 185. Toppin-Allahar, C. A Comparative Analysis of Environmental Impact Assessment Law and Planning Practice in the Commonwealth Caribbean The Caribbean Law Review Vol II No.1 (2001).
STORMWATER: AN ENVIRONMENTAL PROBLEM THAT IS OFTEN NEGLECTED CONNOR, GARTH N. Multi-media Inspector and Enforcement Officer, Office of Enforcement, Compliance and Environmental Justice, United States Environmental Protection Agency Region 3, 1650 Arch Street, Philadelphia, Pennsylvania, 19103, USA, connor.garth@epa.gov Disclaimer: The views in this article are those of Mr. Connors and are not necessarily the views of the Environmental Protection Agency or the U.S. Government. SUMMARY This paper describes the causes and severity of environmental impacts from various stormwater sources. A brief summary of the recent increases in intensity of stormwater runoff associated with climate change is also discussed. The intergovernmental approach to regulating stormwater in the United States is described. Several different approaches to stormwater enforcement, such as sectorbased and geographic-based enforcement, are examined. Several non-traditional approaches to stormwater enforcement are evaluated. Finally, the author takes a look towards the future in terms of the impacts of stormwater and changing regulations in the future. 1 SIGNIFICANT IMPACTS OF STORMWATER
Nearly every environmental inspector in the world has been out on a rainy day and seen the significant impacts of stormwater on nearby rivers and streams. Industrial sites, such as car or boat repair shops, usually have a number of potential pollution sources that can contaminate water bodies via stormwater runoff. Rivers that are normally dark green will change color to brown or black after large amounts of contaminated industrial runoff. Nutrient-loaded runoff from farms in rural areas has a different impact. Significant amounts of fertilizer and animal waste from farms can cause algae blooms and sometimes even fish kills in receiving streams. Urban runoff in cities can also have a significant impact on the aquatic environment. Cities generally have large paved areas and impervious surfaces which means that most of the water in a rain event moves quickly into main rivers. In urban areas, there is not nearly as much infiltration into the ground as in undisturbed areas, and significant erosion of stream banks can also occur. In addition, in cities with combined sewers, sanitary waste and stormwater run together into a single pipe. A storm event can completely overload the sewage treatment system and lead to an untreated discharge in the waterway. Bacteria and other pathogens in the sewage can wash into swimming and fishing areas and create health hazards under these conditions.
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Construction sites, which generally involve vegetation removal in their initial stages, can be huge sources of sediment if the onsite stormwater is not properly controlled or contained. The sediment from a barren construction site can greatly increase the turbidity (cloudiness) of nearby rivers, and even clog the gills of fish. Helonias bullata, commonly known as Swamp Pink, a threatened plant species of forested wetlands in the Eastern United States, has been recently losing its range as a result of adjacent development and its sensitivity to sediment loads in contaminated runoff. Non-point source pollution of this nature often does not receive the emphasis or the attention of direct discharges, but that does not mean it should be overlooked as a significant source of water pollution. 2 CLIMATE CHANGE & INCREASED PRECIPITATION
Another important aspect of stormwaters impact on our environment that needs to be further emphasized is its connection to climate change. Both the total volume and the velocity of stormwater is gradually increasing with climate change. For example, the calendar year 2010 was the wettest year ever in terms of average precipitation worldwide. This data is from the National Oceanic and Atmospheric Administrations Global State of the Climate Report for 2010. The report was issued on January 12, 2011.1 As with any year, precipitation patterns were highly variable from region to region. However, this past year was the 34th consecutive year with global temperatures above the 20th century average.2 As air temperature increases, the amount of water vapor captured in that air is significantly higher. Global average precipitation records go back to 1900 so the 2010 precipitation average is the most rainfall in at least 110 years. Just as an example, precipitation across the United States has been increasing at an average rate of 0.18 inches per decade. Another change that is taking place is the increase in intensity of storms. In 2000, a once in a year storm was dumping 14 per cent more rain on average than it would have done in 1900. At the top end of that same scale, the intensity of a once in 20 year storm, is increasing even faster, by about 3% a decade estimate is that for every one degree Celsius (Centigrade) rise in temperature, the water content of the lower atmosphere is expected to rise by seven percent.3 Most climate forecasters anticipate several degrees of temperature rise in the next fifty years, although the exact increase is unknown at this time. Since the amount of paved and impervious surfaces are also increasing around the globe, the water in an intense rain event moves quickly into main rivers, and can cause serious flooding to downstream areas. These increases in intensity have to be taken into consideration in calculations of possible stormwater impacts. In general, this increase in precipitation is not nearly as controversial or as hotly disputed as overall climate change. Precipitation can be recorded with a simple rain gauge, and no other technology is needed. There have not been any major changes to a rain gauge in many decades. Rain gauges are used by elementary students to do backyard science experiments about rainfall, even kindergartners (age 5 to 6 in the U.S.) understand how a rain gauge works. The Philadelphia area recorded over
47 inches of rain in 2010; the long-term average is only 42 inches per year. Total rainfall in a particular area is easy to measure, and difficult to dispute. Australia, Pakistan, the Asian Monsoon regions, California and Tennessee all had substantial flooding events in 2010. In just a few days in July of 2010, 300 millimeters (12.79 inches), fell on northern Pakistan, and lead to devastating floods. In basic terms, the warmer the atmosphere, the more water vapor the atmosphere can hold. In general, climate change models that are forced (loaded) with increased greenhouse gases and increased temperatures predict that wet places will get wetter and dry places will get drier in future years. However, no modeling has to be done to delineate the changes in annual precipitation. The simplicity and clarity of increased precipitation around the world makes it an excellent illustration of the impacts of climate change. 3 INTERGOVERNMENTAL COOPERATION
The enforcement of stormwater regulations in the United States has traditionally been a problem involving all levels of government. Home or building construction normally involves local inspectors working for the small agencies that are in charge of erosion and sediment control on a local level. They inspect construction sites before, during and after the building has been erected. These inspectors generally conduct erosion and sediment inspections, and determine if Best Management Practices to control stormwater runoff are in place, operating and working properly. Best Management Practices, such as installation of a silt fence or a stormwater retention pond, can be effective if they are properly maintained. State inspectors often help with these kinds of inspections in rural areas or step in where local inspectors are not available or need assistance, such as at large or extremely complex sites. State and federal stormwater inspectors work together at larger industrial sites. A large industrial facility, such as a coal transfer terminal or a railroad maintenance area (railyard), will involve both state and federal inspectors who will conduct stormwater inspections of all the potential pollution sources on the entire property. As will be further described below, not all industrial sites are subject to the stormwater regulations. A limited number of industrial sectors are subject to the stormwater regulations. The final type of stormwater inspection is a Municipal Separate Storm Sewer Systems. Such an inspection is both time-consuming and complex. This type of stormwater inspection is difficult because even smaller urban areas have a large complex of stormwater sources and conveyance channels to both locate and evaluate. A Municipal Separate Storm Sewer Systeminspection can take several days to complete, and requires a significant amount of driving in order to visit all of the important areas.ctual information available for how many inspections are done each year? Several hundred of these stormwater inspections are done by federal employees each year in the U.S., and state inspectors do thousands of construction site inspections each year.
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STORMWATER ENFORCEMENT
In the United States, stormwater enforcement is separated into several different approaches. First, there is sector-based enforcement, which focuses enforcement personnel on certain industrial sectors. In 1990, The Environmental Protection Agency (EPA) decided to control stormwater discharges that are associated with eleven separate categories of industrial activity. Activities, such as material handling and storage, equipment maintenance and cleaning, industrial processing or other operations that occur at industrial facilities are often exposed to stormwater. The industrial facilities are separated out by Standard Industrial Classification code. For example, a boat building and repair facility has a code of 3732, and it is one of the eleven categories that are regulated. A facility doing boat repair or maintenance may do sandblasting of boats in order to remove paint, and can have areas with contaminated sandblasting soils scattered around its property. A facility of this type will receive a National Pollution Discharge Elimination System (stormwater permit which requires the facility to perform certain actions to reduce stormwater runoff. The facility generally has to develop a Stormwater Pollution Prevention Plan and implement control measures. The Plan is an assessment of potential sources of pollutant in stormwater and the associated control measures which will prevent contaminated runoff from leaving the property. Generally a facilitys staff is also required to periodically walk the perimeter of the site to evaluate any stormwater drainage patterns. Facility staff are also required to take periodic stormwater training. A facility has to carefully evaluate its outside operations and analyze the type of ground cover and even the duration and intensity of rainfall events. Other industrial sectors are not covered by the stormwater regulations and facilities in that sector are not subject to the regulations. One enforcement approach is to focus on a particular industrial sector that is regulated, and then conduct several inspections and follow-up activities at facilities operating in that sector. EPA performs about 20,000 total inspections nationally each year, but that includes all programs, not just water inspections. 5 GEOGRAPHIC-BASED ENFORCEMENT
Geographic-based enforcement is where the overall focus is on facilities in a certain geographical area. This approach makes sense in terms of stormwater enforcement because the focus can be on facilities in close proximity to impaired streams or recreational fishing areas. A cluster of facilities operating in different industrial sectors, but in close proximity to a water body can all be evaluated. With geographic and mapping software improving on a daily basis, excellent maps are now available to help with this type of approach. Software like GoogleEarth, can be used to focus in on very small and remote areas. The sources of significant stormwater discharges can be mapped and pinpointed. The environmental significance of the Chesapeake Bay in the eastern United States or the Great Lakes in the Midwest has generated enormous amounts of interest in geographic-based enforcement initiatives nationwide by local, state and federal regulators. Geographic initiatives are quite
effective in that large amounts of resources are focused on a small geographical area. This increased focus generally results in either protection from degradation or significant improvement of ecologically-sensitive areas. 6 NON-TRADITIONAL APPROACHES
Looking towards the future, it is not difficult to predict some serious environmental impacts from stormwater runoff of various kinds. An important question will be how to prioritize projects or areas for inspections and follow up. Non-traditional approaches might include focusing on facilities in flood-prone areas or on areas that regularly have heavy rainfall. After all, it might be only a matter of time before a facility in this type of location is the victim of a major flooding event with significant environmental impacts. Other approaches are to help facilities prepare for a heavy rainfall before it actually happens or to zero in on the non-regulated facilities or to consider facilities that are not currently regulated because of their industrial sector, but seem to have significant stormwater discharges. It is crucial for enforcement personnel to spend adequate time targeting key facilities or sectors and then properly preparing for a new group of inspections. Getting all inspectors and their managers together in a large brainstorming session is a good approach. Careful targeting and proper planning will lead to significant environment results and outcomes at the inspection stage. 7 CONCLUSION Stormwater is generally not a topic that is included in discussions about global environmental challenges and strategies to address them. Stormwater runoff is ubiquitous, but it is also insidious in terms of its adverse impacts. Stormwater runoff does not get much attention until a major storm event seriously floods or seriously impacts a certain community. The concept of climate change leading to increased stormwater impacts should be utilized more often as a simple way to explain climate change to non-technical staff. There needs to be greater emphasis on stormwater pollution and on reducing its impact on the environment. With evidence that precipitation is increasing and will continue to do so as the effects of global climate change become more apparent, the impacts of stormwater will be more significant in future years. 8 REFERENCES www.noaanews.noaa.gov. Ibid. 3 Battersby S., and Le Page, M., Flood of Floods: Here Comes the Rain, New Scientist Magazine, Issue 2804, 3/24/2011.
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BRIDGING THE CUSTOMS AND ENVIRONMENTAL GAP: ACHIEVING INTER-MINISTERIAL COOPERATION FOR EFFECTIVE CONTROL OF TRADE REGULATED FOR ENVIRONMENTAL THREATS EMORY, JR., RICHARD W. Senior Attorney, United States Environmental Protection Agency, (2254A), 1200 Pennsylvania Ave., N.W., Washington, D.C. 20004, USA, emory.richard@epamail. epa.gov SUMMARY Many nations find it very difficult to achieve compliance with the treaty obligations of multilateral environmental agreements (MEAs), such as the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, which would control international trade for environmental reasons.1 While less formal cooperative steps can be effective, the negotiation and execution of an interministerial agreement between customs and environmental ministries (as well as any other ministries with environmental enforcement responsibilities) will assist any nation to build the needed management framework and working relationships. With such an agreement, any nation should be able to more effectively apply its national laws in ports. These laws may be those to implement any MEA, as well as other domestic laws to control non-MEA international trade for environmental reasons. This article offers some observations and recommendations, drawn from experience with inter-ministerial agreements, to facilitate their negotiation and to improve their content. 1 BACKGROUND AND INTRODUCTION
USEPA, in conjunction with INECE, developed a week-long course Negotiating Customs and Environmental Cooperation Designing an Effective National Program.2 The one-day instructional portion was presented in El Salvador in late 2008, followed immediately by four days of structured, facilitated negotiation. By the end of the week, the El Salvadoran ministries had reached an agreement in principle, which they finalized and signed on December 16, 2008. This agreement is remarkable in that many ministries or governmental units - Customs, Environment and Natural Resources, Health, Agriculture, Defense (both the army and navy), and the Superior Public Health Council - all signed. This agreement is believed to be the first in the world between a national customs ministry and more than one (indeed all) national entities with an environmental role or interest in better control in ports. These training materials have been used by INECE in other venues. In June 2009 an abbreviated version of the course was presented to customs and environmental officials from a number of West African countries at a workshop of the INECE Seaport Environmental Security Network (Seaport Network) held in Accra, Ghana.
In November 2010, the Seaport Network included a presentation based on the course at a one-day workshop hosted by the Seaport Network in Siem Reap, Cambodia, for environmental officials from countries belonging to the Asian Network for the Prevention of Illegal Transboundary Movements of Hazardous Waste. The parties to such a negotiation will be the Customs Ministry on the one side, and on the other side the various ministries that have responsibility for some portion of international trade that is regulated for environmental reasons, as broadly defined. This article will use the term Environment Ministries to encompass all ministries having responsibilities for the protection of the environment, human health, and natural resources under MEAs or domestic law regulating trade not covered by a MEA. While the products or substances in trade for which an Officer of an Environmental Ministry (EO) is responsible will vary by ministry, all EOs perform similar or identical functions as to the trade. The initial function of an EO in the exporting country is to receive each notification to ship, to seek the prior informed consent (PIC) of the EO in the country of destined import, and to consent or object to the shipment. Then EOs must: (1) for approved shipments (if the EO for the export), issue movement documentation (if this is not the responsibility of the shipper itself); (2) communicate with Customs officials when they are clearing shipments in ports; (3) work with Customs officers when they inspect, sample, seize and investigate toxic or endangered cargo that may be or is illegal. In relation to trade controlled by MEAs or for environmental reasons without a MEA, the basic functions of Customs Officers (CO) are to: (1) review movement documents for shipments in port before them for clearance; (2) communicate with EOs as necessary to be sure that shipments are in fact approved and documentation is correct; (3) call in and collaborate with EO technical experts as needed to inspect, sample, seize and investigate shipments. A common interest is that both ministries need to interact efficiently with the trade in order to have the information that is needed for these notification and movement clearance purposes. A promising development is that the World Customs Organization3 (and some national governments including the United States and others) are working to implement the single window for trade and transport data exchange with customs or port authorities. This is a very important tool of cooperation that will affect business-to-government relations by providing to the trade and transport sectors one point for submission of applications and data to customs ministries. Environment Ministries should be working to bring their data exchange in relation to international trade within the single window if one is being developed by their national Customs Ministry.
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Compliance monitoring and inspections by both ministries will lead to investigation of suspected shipments and enforcement. These activities will usually require not only protocols to govern the conduct of the investigation but also the sharing of relevant information that already exists in the ministries and is developed by the investigation. In many cases, the misconduct may violate both customs and environmental requirements, and it will be appropriate that ECs and COs jointly develop such cases and refer them to prosecutors. Acting as one team should lead to enforcement successes that encourage energetic vigilance, and even better teamwork assuring more successes in the future. 2 THE NEED FOR AGREEMENTS BETWEEN CUSTOMS AND ENVIRONMENT MINISTRIES
Among multinational organizations, the opinion is growing that some cooperative arrangement, whether formal or not, is essential to effective environmental enforcement by a country. From experience globally, it is clear to the United Nations Environment Programme that:
illegal traffic require[s] the co-operation of all enforcement agencies at the national level.*** Customs officers cannot combat illegal traffic alone; they have to rely on the relevant national environmental agencies to provide them with the appropriate legal and technical information. *** Conversely, national environmentand enforcement agencies need the support of the Customs agencies.4 Coordination among relevant authorities and agencies can assist national enforcement, including coordination among various enforcement agencies, environmental authorities, customs and other relevant officials, which may include formal agreements such as memoranda of understanding and rules of procedure for communication, as well as formulation of guidelines.5
From experience within Europe, it is clear that:

There are huge differences in the way relevant enforcement authorities cooperate with other authorities (like police and customs services) within the participating countries. In some countries formal agreements (MoUs) have been made between these authorities, while in other countries cooperation between enforcement authorities and customs is rather poor, does only exist on paper, or depends primarily on personal contacts. In some countries there wasat the beginning of this project no cooperation at all between these organizations. *** [Environmental] [e]nforcement organizations on national level, involved in the enforcement of TFS regulations, should take the lead in: Making formal agreements on cooperation and information exchange (MoUs) with customs and police.6 Current national enforcement structures are sometimes barriers for effective enforcement, and cooperation with police and customs is in some countries still problematic. *** It is therefore recommended that national organisations involved shouldbuild a framework for cooperation between inspectorates, customs and police. Cooperation between those inspectorates could be more formalised by e.g. Memoranda of Understandings (MoUs).7
LESSONS LEARNED
Barriers to cooperation are probably blocking progress in many countries, and a few countries have negotiated inter-ministerial agreements. Drawn from the limited experience to date, here are some observations and recommendations that should be useful to many other countries that seek to make such agreements: 3.1 Political Will
The first prerequisite to success is that there be political will at the ministerial level for reform. Non-political and career officials alone rarely have the ability to effect inter-ministerial coordination. The responsibility for reform lies with the President or other national leader and his ministers. 3.2 Mutual Understanding Because COs and EOs have different responsibilities, and their ministries have different priorities and processes, each must improve its understanding of the others needs. For example: MEA responsibilities are often scattered across Environment Ministries that must recognize that their fragmentation and dispersion of responsibilities may be very confusing to COs. Environment Ministries should try to organize themselves so that they can interact effectively with a hierarchical law-enforcement operation such as a Customs Ministry. One important step will be for Environment Ministries to select one among them at a high level to represent all EOs to the Customs Ministry and speak with one voice as they face COs. EOs should appreciate the difficulty that COs face in monitoring all the products and substances that are traded internationally. Within this enormous totality, MEAs cover a small portion that is still a vast variety of commodities that are often difficult to differentiate and even dangerous to inspect. MEAs prescribe or allow a great variety of often complex environmental requirements, processes, and documents/forms for both notifications and movements. Environment Ministries must be available in real time to provide customs officers with legal and technical information covering basically three topics: (1) exactly what substances or items in trade are covered by each MEA, (2) what particular shipments are approved, and (3) what is the correct documentation the CO should have, according to the EOs data base. Environment Ministries must present this information in a way that busy COs can quickly and easily understand and process. COs should accept that MEA compliance should be elevated to priority status, even though environmental dangers are different from other customs priorities (e.g., smuggling of drugs, guns, explosives, and human trafficking). The traffickers are often the same, and environmental dangers can be deadly too. COs should come to understand why EOs often place emphasis on export compliance. A basic reason for this is that, before export can be allowed, many
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MEAs require prior informed consent to import. Furthermore, EOs increasingly recognize that sending countries have joint responsibility with receiving countries to ensure that trade is lawfully conducted. COs should provide some support to export compliance as a means to prevent unwanted and troublesome imports, even though and actually because - COs main concern is import compliance. Environment Ministries may need to provide field-level EOs on hand in ports as needed to actively assist COs with compliance monitoring, inspections, sampling, and seizures. Because it is likely that only a small number of EOs will be available to work in ports, Custom Ministries should consider requiring trade controlled by MEAs to clear only through certain key ports where EOs can be present when needed. 3.3 Negotiating Inter-Ministerial Agreements With political leadership and with mutual understanding established, an agreement can be negotiated. Some recommendations for the negotiation process are the following: P reparation should include (a) advance distribution and consideration by every ministry of a draft agreement (so that high-level officials can instruct their negotiators), (b) careful identification of the mid-level (i.e., below quasidiplomatic, and above front-line) operational compliance managers to participate, and (c) some high-level involvement or availability during the negotiation. Each participating ministry should have an official present and able to propose language of compromise. Ideally, there should also be a "neutral" lawyer or legislative specialist to serve as recorder or reporter for all to write the draft agreement in real time. This key person must be able to reconcile or distill discussion or debate into expressions in the national language that meet wide acceptance. When agreement is achieved or seems imminent on draft language, this person should be able to quickly write and simultaneously project it on a screen for the ongoing consideration of all. Process may affect the format and content of the agreement. For example, if the negotiators divide into subgroups each simultaneously to revise a different section of a model agreement (itself organized in sections following the functions of the regulatory process) that then would report to plenary session, the final agreement may be organized by sections covering separate functions as to which all agree. On the other hand, if the participants chose to work entirely in plenary session, then their agreement may appear with each ministry having a separate section expressing most or all of just what it would do. While this latter approach may achieve an agreement that is less integrated and harmonized than where many ministries agree to the same functions section by section, the advantage of this plenary approach may be that it is easier to achieve an agreement. Whatever the organization of the agreement, it will always be necessary to allow for ministries different and unique needs. The process should allow for "escape paths" for ministries such as attached annexes of reservations and
special provisions for individual signatories. Some environment ministries may not sign anything, but instead, if interested and supportive, may write individual annexes (appended to the framework agreement) to describe their particular intentions or roles. Although these ministries may avoid making a total commitment by signing the agreement itself, their support of the overall arrangement may facilitate cooperation among the ministries. It may be necessary to resort to entirely separate, underlying side agreements (between two environment ministries) as a prerequisite to their signing the framework or umbrella agreement with customs. It is even possible that customs may only get entirely separate, parallel agreements with many individual environment ministries who cannot agree to coordinate among themselves. While obviously some outcomes reflect more cooperation than others, any agreement will likely be better than the status quo ante. Ministerial signatures cannot be pressured or rushed, but are more likely when throughout the negotiation there is high-level involvement or availability for Ministers to have input to the draft. Some continuous ministerial engagement will demonstrate the reality of the political leadership that must exist from the start, and it can result in a signing ceremony at or very soon after the end of negotiations. 3.4 Contents of Inter-Ministerial Agreements An agreement likely will begin by covering only the basics, and over time will expand to cover many operational details that need not be described here. Some possible substantive provisions are offered in a suggested or model partial agreement that will be available on the INECE website. Any agreement should establish accountability and as cooperation intensifies and new issues appear - an ongoing, routine process to adapt and expand the initial, basic agreement. These basic provisions of any agreement should include the following: T he national agreement if possible should cover all trade regulated under national environmental law and should include all Ministries that share responsibility for controlling it. It should express the shared accountability of all Ministries to fulfill the international obligations established by MEAs and the national laws enacted to implement them. Beyond this starting point, the agreement to be comprehensive should include additional substances or items in trade regulated by national law for environmental reasons in the absence of a MEA. Each Ministry should agree to establish its one operational office responsible for the compliance of environmentally regulated trade, staffed with working contacts, and having data management capacity and inter-ministerial communications links to deal routinely and quickly with all MEA shipments. To enable a basic agreement to expand over time to resolve the many operational issues that will arise, ideally the Environment Ministries will identify a one-forall, high-level representative, and the Customs Ministry will identify its one high-level representative. Between them will be a communication link to use to authoritatively and quickly prevent or resolve inter-ministerial confusion
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or disagreement, both routinely and in emergencies including quick-moving suspect shipments. They should also take and promulgate interim policy decisions to assure operational coherence where the agreement is silent. All Ministries should agree to meet periodically (perhaps quarterly) to address arising issues and to maintain progress toward increased integration. This would include adopting interim policy decisions as final, crafting new policy decisions where needed, and including them in the framework agreement as appendices or revisions to it. Where change of law is needed, the Ministers together should take joint action. All Ministries should commit to progress steadily from paper to automated/ electronic capability for (1) data storage, (2) shipment notice-and-consent exchange between shippers and responsible ministries, and (3) inter-ministerial compliance data exchange. 4 CONCLUSION
The gap between the Customs Ministry and the various Ministries with environmental responsibilities can be bridged. This should not require new institutions or reorganization. An agreement of inter-ministerial cooperation, that first establishes routing working relationships at both the staff and management levels, with accountability between two or a few high-level officials of the key ministries, should be sufficient. To begin, such an agreement may settle few operational issues, provided it creates a process for doing so going forward. With some time as cooperation intensifies, the means of collaboration will be written down in an agreement that is increasingly comprehensive. Such an agreement will grow in its usefulness to bring success in the control of illegal international trade that threatens both the environment and the rule of law in human affairs. 5
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REFERENCES
The Basel Convention has published an excellent and detailed Basel Convention Training Manual on Illegal Traffic for Customs and Enforcement Agencies (undated, c. 2006) available at http://www.basel.int/legalmatters/illegtraffic/trman-e.pdf. 2 Training materials are available through the INECE website at http://www.inece. org. 3 World Customs Organization, WCO Data Model: Single Window Data Harmonisation (2007) available at http://www.wcoomd.org/files/6.SW_Files/Data_Harmonisation. pdf. See also, Single Window: Implications for Customs Administrations, available at http://www.wcoomd.org/files/6.SW_Files/SW%20Initiatives/WCO/003-Implica tions.pdf. 4 United Nations Environment Program, Green Customs Guide to MEA Agreements (2008) p. 27, available at http://www.greencustoms.org/reports/guide/Green_ Customs_Guide_new.pdf. See also, http://www.unep.fr/ozonaction/information/m mcfiles/7467-e-GreenCustomsGuide.pdf and http://www.cbd.int/doc/publications/ cpb/cpb-mea-en.pdf. 5 United Nations Environment Program Governing Council, Guidelines on Compliance with and Enforcement of Multilateral Environmental Agreements, Decision
SS. VII/4 (2002), para. 42(a), available at http://www.unep.org/DEC/docs/UNEP. Guidelines.on.Compliance.MEA.pdf. See also, http://www.unep.org/GC/GCSSVII/Documents/K0100451.e.PDF. 6 European Union Network for the Implementation and Enforcement of Environmental Law, Report of the IMPEL-TFS Seaport Project, Illegal Waste Shipments to Developing Countries, Common Practice (2004) secs. 3.6, 7.3.3, available at http://impel.eu/wp-content/uploads/2010/02/2003-x-Seaport-I-project-report.pdf. IMPEL is the acronym for the European Union Network for the Implementation and Enforcement of Environmental Law, comprised of representatives from enforcement authorities of the EU Member States and some other European countries dealing with matters on Transfrontier Shipments of Waste or TFS. 7 European Union Network for the Implementation and Enforcement of Environmental Law, Report of the IMPEL-TFS Seaport Project, International Cooperation in Enforcement Hitting Illegal Waste Shipments (2006) pp. 11-12, available at http://impel.eu/wp-content/uploads/2010/02/2005-8-Seaport-II-Final-Report.pdf.
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FOUNDATIONS OF SUSTAINABILITY FULTON, SCOTT 1 AND BENJAMIN, JUSTICE ANTONIO H ERMAN 2 General Counsel, Office of the General Counsel, United States Environmental Protection Agency, 1200 Pennsylvania Ave NW, Washington, DC 20460, United States, fulton.scott@epa.gov
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Justice, High Court of Brazil, Sao Paulo, Brazil
The authors wish to express their appreciation to Tseming Yang and Steve Wolfson for their assistance on this article. In her seminal 1962 work Silent Spring, Rachel Carson presented a key question to the present generation: How can the benefits of modern society be enjoyed in a manner that avoids endangering public health and the natural resources upon which humanitys future depends? In the years since, countries around the world, with different legal systems and different levels of development, have refined and expanded this concept. The U.N. Conference on Sustainable Development in June 2012 marks the 40th anniversary of the 1972 Stockholm conference, the first major U.N. environmental conference, the 20th anniversary of the Rio de Janeiro Conference on Environment and Development, and the 10th anniversary of the Johannesburg World Summit on Sustainable Development. The 2012 event offers a propitious moment to take stock of that progress and to ask: What are the ingredients that have made for success in sustainable development in the past several decades, and how can we reinforce these factors in a world of rapid change? The U.N. Conference on Sustainable Development will have two themes: a green economy in the context of poverty eradication and sustainable development; and the institutional framework for sustainable development. Since the 1992 Earth Summit, effective national and local environmental governance has increasingly been recognized as key to the second theme and to fulfilling sustainability aspirations. Likewise, while green economy discussions have focused on a range of issues including renewable energy, efficiency, and ecosystem services, implementation will depend on effective national and subnational environmental governance. Without good governance, neither global nor domestic aspirations can be realized. Increasing international recognition of the importance of national and local environmental governance to sustainable development has been reflected in a variety of international instruments, including the 1992 Rio Declaration and the Plan of Implementation from the 2002 World Summit on Sustainable Development. Here, we seek to reanimate this thinking by giving greater context and detail to the precepts of national environmental governance and by pointing to the central role of such precepts to the environmental pillar of sustainable development.
There have been many efforts to address individual features of environmental governance, for example, by training environmental inspectors, prosecutors, and judges. These efforts, while quite valuable, are often isolated and can miss the importance of addressing environmental governance as a system comprising a number of inter-related and reinforcing parts. This system includes environmental laws, implementation mechanisms, accountability regimes, and institutional arrangements. Together, these elements, if appropriately resourced, provide the foundation for environmental protection and conservation of natural resources, in support of sustainable development. They are also key to the emergence of the rule of law in the environmental arena a state of being in which there is the presence of, respect for, and observance of environmental norms. Indeed, the ingredients of environmental rule of law and effective environmental governance are virtually coterminous. Effective national environmental governance complements efforts to improve international environmental protection mechanisms. For example, multilateral environmental agreements are typically implemented through corresponding national laws and institutions. Effective national environmental governance helps ensure that parties to international environmental agreements actually achieve the benefits those agreements are designed to provide, and it provides mechanisms for addressing national and subnational problems that do not receive the same degree of global attention. Further, effective environmental governance contributes to a level playing field for businesses operating globally and helps avoid the emergence of pollution havens, while promoting regulatory coherence conducive to investment needed for development. Environmental laws and regulatory frameworks around the world continue to evolve in response to changing conditions. While countries differ in terms of their most acute environmental problems, their cultural context, and their governmental structure, there is significant commonality both in the challenges they face and in the governance precepts to which they have turned to address those challenges. We identify below some of the key common precepts that have emerged. These precepts should not be viewed in isolation, but as interrelated and mutually reinforcing. Seven core precepts form a basis for effective national (and subnational) environmental governance. They apply both to efforts to protect human health and to protect and conserve natural resources. Our hope is that identifying and reinforcing these core precepts can help countries strengthen their environmental governance systems and thereby make sound, science-based decisions. Improved international coordination to strengthen national environmental governance will help forge a path toward global sustainability. Environmental laws should be clear, even-handed, implementable, and enforceable. For governance systems to be effective, laws should provide a clear roadmap for translating general legal mandates to facility-specific requirements through such tools as implementing regulations and permits. The use of clear, enforceable language, often with reference to science-based reference points, is critical. This provides clarity to the regulated community regarding requirements and reporting protocols, facilitating compliance.
Laws and regulations should also be even-handed in their design and application, ensuring consideration of the vital interests and views of all stakeholders. This may be achieved in part through mechanisms for stakeholder input into regulatory processes before final decisions are made. In many countries, environmental law (sometimes including constitutional provisions) is increasingly constructed to reflect sensitivity to human rights and related notions of justice, equity, and poverty eradication. A central premise of many environmental laws is that prevention is superior to remediation because some harm is irreparable, and because cleanup is more costly than prevention. A combination of technology requirements and ambient norms are used in many systems to achieve such goals. Where governmental capacity is limited, technology-based requirements can serve as a relatively straightforward first step, with ease of application and proven effectiveness. Today there are technology reference points available for most types of polluting activities. Clearinghouses to match available technologies with facility operations can aid implementation. In imposing technology requirements, care should be taken to avoid inhibition of innovation. Many laws contemplate that as programs mature, requirements should be based on ambient environmental goals, with individual interventions increasingly geared toward aligning incentives with desired environmental outcomes, often using monitoring data and other scientific information as reference points for decisionmaking and performance assessment. Environmental laws often provide for review and renewal of standards, to provide a means of updating requirements based on new knowledge. Anti-backsliding mechanisms may also be included to promote continual improvement or at least guard against regression. Laws commonly use measures to make accountability mechanisms more efficient, such as requiring polluters to self-monitor and report violations, limiting defenses that can be raised in enforcement cases, and curbing opportunities to challenge regulatory agency decisions beyond a set timeframe. The laws must also be designed to resonate with and advance the other core environmental governance precepts discussed below. Thus, environmental laws should include clear articulation of mechanisms that ensure accountability, specify reporting and information disclosure requirements, establish procedures for stakeholder involvement, address institutional structure for program implementation, reduce the possibility of corruption, and provide for dispute resolution. Finally, it bears note that proper drafting is only the beginning. Laws that are enacted but not implemented or enforced will fail to achieve desired environmental results. Environmental information should be collected, assessed, and disclosed to the public. Routinely making environmental information available to the public enables civil society to take an active role in ensuring accountability, reinforcing and expanding upon government accountability efforts. It also fosters community engagement and development of an environmental ethic throughout civil society, industry, and government. This precept is of course only meaningful to the extent that an active government effort is underway to monitor and assess environmental conditions and polluting activities. Systematic information collection and assessment can support review of environmental program and policy effectiveness and thereby improve performance.
Many countries have freedom of information laws requiring government disclosure of a wide range of information and limiting exceptions to promote transparency. But the mere existence of a disclosure law is only part of the dynamic; public demand, governmental readiness and capacity to manage and provide information, and procedures for resolving disclosure disputes are also needed. In recent years, the idea of a publicly available Pollutant Release and Transfer Registry (an example being the Toxics Release Inventory in the United States) has emerged as an important tool for creating pressure to reduce pollution. PRTR systems require public disclosure of pollutant release information, often via the internet. Because of public accessibility to this information, company managers who have the power to prioritize actions to reduce pollution tend to pay more attention. Accounting for pollutant releases also exposes waste in production processes, encouraging adjustments towards more efficient materials management. Public access to environmental compliance data reported by the regulated community or amassed by government serves many of the same goals. Generally, reported information can inform public debate and consumer behavior, and leverage competitive pressure and reputational risk as motivators. It also provides vital information to communities on pollution that may directly affect them. Stakeholders should be afforded an opportunity to participate in environmental decisionmaking. Regulated entities and civil society should have an opportunity to engage regulators regarding rules that affect them before decisions are made as well as the opportunity to challenge government decisionmaking not grounded in science and law. A range of public engagement processes may be appropriate, depending on the type of action, timing considerations, and other factors. Communication and education efforts can enhance public awareness and understanding needed for effective public participation, and can also nurture development of an environmental ethic that can serve to further intensify public engagement. Countries increasingly pay particular attention to ensuring the poor and disadvantaged are not excluded from meaningful environmental decisionmaking, often under the label environmental justice, which contemplates the fair treatment and meaningful involvement of all people regardless of race, color, religion, national origin, or income in the development and implementation of environmental laws and policies. It might take special efforts to reach out and engage such communities because of language, cultural differences, or economic disparities. An empowered citizenry is more apt to channel its concerns though legal mechanisms rather than through civil disobedience or other extra-legal means, and is more likely to understand and be accepting of outcomes, while noninvolvement breeds suspicion and disaffection. Environmental decisionmakers, both public and private, should be accountable for their decisions. Effective environmental governance systems hold government decisionmakers accountable for making decisions grounded in science and law, thereby ensuring
confidence in the impartiality and public purpose of their actions. Effective environmental governance systems also hold polluters accountable for compliance with environmental requirements and for remediating environmental damage. As a general rule, the polluter pays: the costs of environmental remediation should be borne by the entity that produced those costs through their polluting activities, rather than by the public at large. Robust government enforcement mechanisms are necessarily the leading edge of the effort to deter violations and level the regulatory playing field. Compliance assistance, reporting requirements, inspections, monitoring, and administrative, civil, and criminal enforcement authorities can all play important roles in an enforcement system. Enforcement remedies include halting the violation, requiring remediation, through injunctive relief or related tools, and assessing financial sanctions. Financial sanctions must be sufficient to deter noncompliance. Unless a penalty exceeding the economic benefit of noncompliance is recovered, violators can obtain an unfair advantage over their competitors who comply. Enforcement actions should endeavor to treat like violations in like fashion, providing a level playing field of expectation and response. Equivalent and non-discriminatory treatment should be also afforded to national and foreign actors, and governments should ensure transparency such that improper influences are exposed to public scrutiny. Direct citizen legal action against polluters has become an important feature in some countries. Such citizen actions can reinforce the backbone of government enforcers and complement their efforts. Direct citizen legal action can also enhance the system of checks and balances on government behavior that lacks vigilance or is not grounded in science and law. Roles and lines of authority for environmental protection should be clear and coordinated. Roles within government should be defined and coordination mechanisms established to foster efficiency and prevent conflicting expectations. Rules and protocols are often needed to direct traffic and achieve both horizontal and vertical coherence in the division of labor between and within different institutions. This is the case whether a government system is centralized or decentralized. Laws should specify whether environmental programs will be administered by an agency independent of other governmental programs. In some instances, regulatory functions can be compromised if they are housed together with business-enabling functions. It is important that laws define implementing agency structure to ensure that regulated community self-interest does not predominate over the implementing agencys public interest mission. Formally structured inter-agency relationships (rather than those created on an ad hoc basis) can enhance effectiveness. Roles can be set out in laws, regulations, or other instruments (e.g., memoranda of understanding) to minimize competition and prevent conflict. Ministries with overlapping authorities in the environmental arena
often develop memoranda of understanding to promote cooperation and efficiency. When multiple levels of government are involved, effective governance necessitates a clear division of labor between national, provincial, and local levels. Which level of government has implementation primacy for example, which level will issue pollution permits should be clearly specified, and mechanisms should be created to address contingencies such as implementation failure by provincial or local governments. Affected stakeholders should have access to environmental dispute resolution mechanisms that are fair and responsive. The judiciary (including, in some countries, administrative courts) plays a vital role as the guarantor of the protective benefits of environmental law. Moreover, what judges treat as important, a society comes to judge as important. Thus, the courts response to environmental problems can have a powerful transforming effect across society, with the seriousness of judicial attention and response projecting to the regulated community and the public at large the importance of environmental quality and the unacceptability of behaviors that jeopardize the environment. The judicial response can serve as a powerful catalyst toward the solidification of the environmental rule of law and the development of an environmental ethic an ethic that, once it takes hold, can engender a sense of responsibility in all sectors of society, inspire citizens to think green and buy green, and encourage businesses to respond to green consumer demand and to their own emergent corporate environmental conscience. Fair and responsive dispute resolution requires impartiality, independence, and timely review by the reviewing tribunal. In light of the irreversibility of some health impacts and environmental harms, justice delayed can be justice denied. Transparency in the dispute resolution process promotes a sense of fairness and furthers development of the environmental rule of law. These goals and faith in the even-handedness of the system are also advanced when affected persons are accorded a forum to present their claims on the public record with written resolutions that articulate the basis for a decision and are made public. Such written resolutions can also serve to educate the regulated community and affected citizens about environmental requirements and the importance of environmental protection. Courts in different countries utilize a variety of mechanisms for dealing with the complexity of environmental cases, including special masters and other court appointed experts, strict liability standards, shifting burdens of proof to the polluter on some issues, and environmental courts. Traditional judicial prerogatives, such as invocation of the courts coercive power to enforce judgments and their ability to maintain jurisdiction to effectuate a remedy, remain of central importance as well. The principled and even-handed administration of justice includes producing consistent, predictable results in like cases and a financial sanction baseline that eliminates the economic benefit of noncompliance. Doing so promotes cost internalization, incentivizes compliance and eliminates market disparities between compliers and non-compliers.
Public integrity in environmental program delivery is essential to achieving environmental protection. Corrupt and unprincipled environmental decisionmaking frustrates program implementation, distorts environmental results, and erodes public confidence in the environmental rule of law. Although the health and other dividends of environmental protection generally far exceed in value the private cost of compliance, and a strong regulatory regime can encourage innovation and foster economic growth, the cost of compliance can be significant to individuals. Thus, implementing anti-corruption measures is vital to reduce the potential for graft and bribery of officials such as inspectors, enforcers, and permitting officers. Standards of ethical conduct and strong, independent review or audit mechanisms are essential, and whistleblower protections, which encourage employees to report employers misdeeds by creating protection from reprisal, can offer a further check against improper behaviors. Judicial professionalism, independence, and impartiality can likewise be enhanced via a code of conduct that provides for financial disclosure and, when there is a conflict of interest, disqualification. Provision for judges financial security and protection from political retaliation can help as well in ensuring integrity. While there have been laudable efforts in the past to enhance environmental governance, such efforts have been isolated and sporadic. What constitutes effective environmental governance has not to date been reduced to a commonly accepted set of ideas around which the world community might more meaningfully organize and mobilize. Recognition of the common precepts of an effective governance system built on the rule of law can, we believe, offer both a meaningful step in this direction and a pivotal move in the direction of sustainable development. The lessons of the past decades illuminate these precepts, which we have attempted to describe briefly in this article. Our hope is that this articulation can help catalyze an international dialogue on this topic, with the 2012 United Nations Conference on Sustainable Development perhaps serving as a watershed moment both for elevating the importance of effective national and subnational environmental governance as a key building block for sustainable development and for enhancing international engagement in the effort to build environmental governance capacity.
ENVIRONMENTAL IMPACT ASSESSMENT AND ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT: AN AGENDA FOR A COMMON APPROACH KOLHOFF, AREND 1 and RUESSINK, HENK 2 Senior advisor for the Netherlands Commission for Environmental Assessment on developing EIA systems in low income countries, akolhoff@eia.nl
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Coordinating policy advisor, Inspectorate for Environment, Ministry of Infrastructure and Environment, The Netherlands, henk.ruessink@minvrom.
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This paper is written on a personal basis. SUMMARY Environmental impact assessment (EIA) and environmental compliance and enforcement (ECE) share the same long term objective of protection of the environmental quality. To become more effective in achieving this shared goal, it is suggested that the communities of EIA and ECE practitioners could better work together. This paper proposes an agenda for a common approach. 1 INTRODUCTION Environmental impact assessment (EIA) is a decision support approach that was founded in the USA in the late 1960s, adopted in the 1980s in most of the western developed countries, and followed by the majority of the developing countries in the 1990s. Today nearly all countries around the world have legally adopted EIA systems. EIA, in principle, is required for those projects that are expected to cause significant negative environmental impacts. The short-term objective of EIA is to inform and influence decision-makers and inform the general public. Subsequently, the EIA report is meant to be used in the preparation of the environmental license. Evaluation studies (Sadler, 1996) show that short-term objectives can be achieved but to what extent depends on a number of factors such as political will, capacity of the authority, and available means. Improvement of environmental quality is considered as the long-term objective of EIA. Evaluations show that EIA does contribute to achievement of long-term objectives, however, evaluations (Espinoza and Alzina, 2001; Ahmad and Wood, 2002) also show that the weak or sometimes absent environmental compliance and enforcement of the environmental license that is based on the EIA report, is a crucial limiting factor. As such, this issue is out of the scope of the EIA system and therefore, a well functioning system for environmental compliance and enforcement (ECE) is a prerequisite for effective EIA. In fact, the EIA and ECE system share the same long-term objective and support each other. On the basis of good EIA, the quality
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of the environmental license can be improved and become a better framework for environmental compliance. This shows the linkages between the EIA- and ECE system. Professionals in the area of ECE are more and more aware of this connection and consider EIA as a priority, particular in regions of big development projects, like in Asia. Since the 1990s, capacity development programs in a large number of developing countries have been implemented aiming to develop an EIA- as well as an ECE system and improve the performance in practice. Examples are Georgia, Pakistan and Ghana. Unfortunately, most programs only focused on one of the two systems. In view of the described linkage between the two systems, it seems reasonable that a capacity development strategy that works simultaneously on both systems is more effective. Therefore, the purpose of this article is to identify the need for the development of a common approach on the basis of lessons that can be learned from practitioners working on the establishment of a more effective EIA or ECE system and develop an overall capacity development strategy. In this paper the following two questions will be addressed: (1) is there a need for integration of the EIA system and the ECE system and (2) is there a need for a common approach for capacity development of EIA- and ECE systems. This article is primarily written for practitioners working in the field of environmental compliance and enforcement and who are aware of EIA but have no, or only limited, working experience with EIA. Therefore in chapter 2, the description of the EIA system is more elaborate than the description of the ECE system. 2 EIA AND ECE SYSTEMS
2.1 Comprehensive Description of the EIA System Countries with EIA legislation establish an EIA system to put the EIA legislation into practice. An EIA system consists of (i) an EIA regulatory framework such as legislation, procedures and guidelines, and (ii) a legal mandate for stakeholders that should be involved. In most countries, the following four main groups of stakeholders have mandates in the EIA process. Firstly, the proponent who wants to implement a project that requires an EIA; either a private investor or a government authority. Secondly, the authorities responsible for EIA and licensing; in nearly all countries these are two separate departments under the responsibility of the ministry of environment or the environmental protection agency. Sometimes it is the responsibility of a sector ministry. Thirdly, knowledge actors or experts such as consultants and knowledge institutes like universities; they are responsible for either the preparation of the EIA study or its quality review. Fourthly, the general public or people affected by the project, often represented through environmental non-governmental organizations.
2.2
EIA Procedure
In general, an EIA is legally required for all projects that are expected to have significant negative environmental impacts. However, the thresholds for applicability of EIA differ between countries. This results in large differences between the number of EIAs that are conducted in a country, for example about one hundred per year in the Netherlands and a few thousand in Russia (Cherp, 2001). This number is of course also influenced by the size of the country and its economy. The EIA procedure consists of five phases: 1. Screening. This is the process in which the need for an EIA is determined, resulting in a decision by an authority. Screening mechanisms that are applied may consist of prescribed lists, expert judgment or a combination of those two. 2. Scoping. This is a process in which the contents of the EIA study are defined. It results in guidelines or Terms of Reference for the EIA study and EIA report, which are approved by the competent authority. The Terms of Reference describe the requirements that should be met, such as environmental standards or the elaboration of a number of site-, process-, or technology alternatives. 3. EIA execution. In this phase, the actual EIA study, based upon the mentioned guidelines or Terms of Reference, is executed. 4. Reviewing and decision-making. Reviewing is a process in which the quality of the EIA report and EIA process is assessed by a so-called review committee of experts. In general, the committees can make one of the following three recommendations to the competent authority: (i) reject the EIA in case essential standards cannot be met and as a consequence the project is rejected; (ii) to adapt the EIA when the quality is not acceptable; or (iii) approve the EIA. Based upon the approved EIA, the competent authority decides to provide an environmental permit or license. This means that for projects requiring an EIA, EIA is one of the most important sources to influence the environmental license conditions. 5. EIA evaluation during implementation of the project (if it was approved). The objective of EIA evaluation is threefold: a. To assess whether the impacts predicted in the specific EIA do occur in practice. This might result in a need for an adaptation of the environmental license. b. To learn and improve the reliability of predictions on impact assessment in the EIA report. This will result in better skills of practitioners and might result in adaptation of existing guidelines for EIA in a specific sector. c. To assess actual developments in the context of the project, e.g., the emergence of a better technological alternative or a need for stricter environmental standards than foreseen during the EIA. Public participation is a very important aspect of EIA. The public in most countries is involved throughout the EIA process, particularly in the phases of scoping, EIA execution and reviewing.
2.3
Performance of the EIA System in Practice
The performance of EIA system is defined as to what extent the short-term objectives, measured in terms of output and outcome, have been achieved. See figure 1 for an overview of possible output and outcome. Performance of EIA systems in western democratic countries ranges from modest to highly effective. In developing countries, the performance of EIA system ranges from very low to modest (Cherp 2001, Wood 2003). However the differences between countries are large. In most countries weak performance is caused by a combination of the following factors. Firstly, the regulatory framework is incomplete, unclear and provides opportunities for multi-interpretation. Secondly, the capacity of the environmental authority is weak due to limited mandate, skills, lack of leadership and political will and pressure of influential politicians on decision-making. Thirdly, the capacity of knowledge actors is weak. Fourthly, environmental non-governmental organizations (NGOs) representing the civil society cannot have an influence due to legal obstacles and weak capacity. 2.4 Concise Description of an ECE System: Procedures and Process
Since it is assumed that most readers have already a basic understanding of the ECE system, this paragraph is limited to a concise description. The ECE system is a specific but important part of a larger system of licensing/ permitting and compliance assurance. ECE finds its basis in a regulatory framework that attributes authority and instruments to government institutions and its officers to monitor, inspect, control and enforce the compliance behavior of regulatees and regulated entities. Permits, licenses, laws and direct binding rules are the legal reference for the conclusions regarding compliance. In well-developed ECEsystems, legal procedures and provisions are in place to safeguard the rights of the regulatees if they disagree with the conclusions and response of the authorities regarding their (non-) compliance. Elements of this protective system can be formal objections directed to the relevant administrative body, or appeal to the court. Also the general public and NGOs may issue official complaints regarding the compliance behavior of regulatees and issue a formal request to the competent authority to enforce the permit or other applicable rules. ECE is crucial in implementing the environmental permit and its conditions. Therefore, the effectiveness of ECE for the short and long term environmental outcomes, strongly depends on the content and the quality of the permit, as issued by the competent authorities. The quality management relating to ECE, when properly done, already starts during the drafting of the environmental permit. To address the (often legal) obligations regarding protection of the environment, e.g. emission limits, the issuing authority has to incorporate appropriate conditions and requirements in the permit. However, when these are impractical, non-enforceable or susceptible to fraud, compliance
with the rules of the permit will face shortcomings and effective enforcement will be close to impossible. In order to prevent these problems, it is particularly important that knowledgeable compliance and enforcement practitioners are involved in the process of drafting a permit which is clear, realistic and unambiguous. After the permit is issued, ECE has its own role to play. Through monitoring, desk studies and on-site inspection visits the level of compliance of the permit-holder is assessed. Cases of non-compliance are addressed in an appropriate, proportional and justifiable manner, according on their gravity and legal provisions. The response could range from a simple verbal notice up to criminal prosecution in severe cases. Apart from this prime function of ECE namely assuring the compliance with the permit there is often also a more evaluative aspect connected to the work of ECE officers. By checking the performance of a company, in an explicit or implicit manner, the environmental inspector simultaneously evaluates the quality of the permit and the conditions/requirements attached to it. By doing so, the officer may notice that in actual practice the permit is not strict enough or too strict with regard to certain aspects of environmental protection. Also it may turn out that specific elements of the permit are in fact unrealistic, impractical or inappropriate, e.g. caused by incorrect assumptions or wrong information. In such cases a formal process can be started to review and modify the (conditions of the) permit. 2.5 Comparison Between EIA and ECE Systems
On the basis of the above descriptions of EIA and ECE, some characteristics that the two systems have in common can be identified: B oth are part of a larger system of licensing/permitting and compliance assurance and critical for a successful implementation of that. Country-specific context factors, such as the political situation, play a role in the effectiveness of both. The long-term objective is protection of the environmental quality. Both deal with the same projects. All projects requiring an EIA need to have an environmental license and are subsequently subject to ECE. Many of the same actors are involved, like the proponent, the competent authority, civil servants representing environmental authorities, environmental non-governmental organizations and civil society. In each of the systems, evaluation plays an important role. The results of such evaluation may lead to adjustment of a license and offer learning experience to improve the licensing quality of future projects.
Box 1: Lessons learned in supporting EIA system development The aim of the Netherlands Commission for Environmental Assessment is to help countries in improving the performance of EIA systems. Based upon 15 years of practical experience in about 20 developing countries a capacity development strategy has been developed. It has the following characteristics. Demand driven; Supporting EIA capacity development is only started on request of or supported by an authority. Context specific; especially the political system and distribution of powers are important factors that determines to what extent EIA capacity development programs will be successful. Therefore, at the start of a program, an assessment of the relevant contextual factors is carried out. Systems approach applied; that means that all stakeholders are identified and their capacity, their views on their role in EIA and their inter-relations are assessed. Based upon this information one can better understand the functioning of the current EIA system and identify opportunities for improvement. Country specific and feasible ambitions; the ambitions one wants to achieve with EIA should be realistic for a country with a specific context and capacities of the main stakeholders. High profile pilot projects are important milestones in the development of EIA systems. Involvement in these projects through setting a high quality standard can contribute to first, second and third loop learning. Establishing learning organizations; in an EIA system a number of stakeholders or organizations are involved and they should be supported to develop into learning organizations in order to become more effective. 3 AN AGENDA FOR A COMMON APPROACH The EIA system and the ECE system have many aspects in common as described in section 2. However, the practitioners from the EIA and ECE community do not always work together sufficiently. A better alignment of the EIA system and the ECE system could provide better opportunities to achieve the systems long-term objective of improving the environmental quality. This means: (1) coordination, or even integration, regarding the development of the regulatory framework for EIA and ECE, such as legislation or formal guidelines, and (2) balanced development of the capacities of the actors involved in EIA and ECE systems. Assuming that ECE practitioners recognize the above observations with respect to the need for a more integrative approach of the EIA and ECE system, it is proposed that practitioners working in both systems start co-operating in practice. Such hands-on approach is often an effective way to become acquainted with each other and supports the process of mutual learning. To what extent integration is feasible, is most likely country dependent.
A viable approach could consist of the following components: S election of a developing country that is willing to develop and apply a joint approach for developing a (more) integrated EIA and ECE system. The Netherlands Commission for Environmental Assessment and INECE jointly execute a mutual assessment of the context, the performance and effectiveness of both systems. Develop a common capacity development strategy and program in which the ambitions and objectives of both systems are approached in a connected manner. On the basis of the shared strategy and program, the specific experts can work with their own processes, methods and tools to develop and strengthen the performance of the individual systems. After completion of assessment and preparation of a common capacity development strategy lessons are learned and more widely discussed in both EIA and ECE community. 4 REFERENCES Ahmad, B. and C.Wood 2002. A comparative evaluation of the EIA systems in Egypt, Turkey and Tunisia. Environmental Impact Assessment Review, 22, 213-234. Cherp, A. 2001. EA legislation and practice in Central and Eastern Europe and the former USSR: a comparative analysis. Environmental Impact Assessment Review, 21, 335 362. Espinoza G. and Alzina, V. ed. 2001. Review of environmental impact assessment in selected countries of Latin America and the Caribbean; Methodology, results and trends. Inter-American Development bank; Centre for development studies. Kolhoff, A.J. ,. Runhaar, H.A.C,and Driessen , P.P.J. 2009. The contribution of capacities and context to EIA system performance and effectiveness in developing countries: towards a better understanding. Impact Assessment and Project Appraisal, 27, 258-270. Sadler, B. 1996. International study on effectiveness of environmental assessment: Final report Environmental assessment in a changing world: Evaluating practice to improve performance. Wood, C. 2003. Environmental Impact assessment. A comparative review. Pretence Hall, Harlow second edition.
Figure 1: Factors influencing EIA systems performance

EIA objectives: Short term Long term
Context

Well informed decision-making, Environmental protection (excluding public involvement) Sustainable development Well informed and acceptable decision-making (including public involvement)
EIA system
performance Output Outcome Impact
Regulatory framework & Capacities

EIA results: Direct output
Direct outcome
Direct impact
None Forced change of project design Forced withdrawal of projects with unacceptable impacts
EIA report Voluntary change of project design Voluntary withdrawal of proj. unacceptable impacts
Indirect output Indirect outcome Change in acceptability Change in acceptability

by affected stakeholders by affected stakeholders Preventive effect Awareness raising & learning by stakeholders, contributing to local democracy
Indirect impact
Change in environmental quality Change in socio-economic situation of affected stakeholders
Source: Kolhoff et al., 2009
RISK-BASED ENVIRONMENTAL INSPECTION IN THE REPUBLIC OF MOLDOVA: DEVELOPING PLANNING TOOLS AND DEFINING THE RESOURCE GAP MAZUR, EUGENE,1 BULARGA, ANGELA,1 and TAPIS, VALENTINA2 Environment Directorate, Organisation for Economic Co-operation and Development; 2, rue Andr-Pascal, 75775 Paris Cedex 16, France; eugene.mazur@ oecd.org, angela.bularga@oecd.org
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Deputy Head, State Environmental Inspectorate of Moldova; Str. Cosmonautilor 9, 2012 Chisinau, Moldova; valtapis@gmail.com
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SUMMARY This article describes the results of a pilot project on risk-based targeting of environmental inspections which was carried out under the aegis of the Regulatory Environmental Programme Implementation Network (REPIN) for countries of Eastern Europe, Caucasus and Central Asia. The project adapted and tested an inspection prioritisation and planning methodology using the case of Chisinau City in Moldova. In order to define the frequency of each site inspection (and subsequently the human resources required for this activity), the Chisinau Environmental Agency produced an electronic inventory of the regulated community and conducted a risk assessment. Based on the assessment results, the Agency developed a draft inspection plan for 2011. The project results demonstrate the need to find solutions that would bring important efficiency gains and improve the Agencys compliance monitoring activity. The projects recommendations for Moldova on increasing the effectiveness and efficiency of environmental inspection are largely applicable to all countries in the Eastern European, Caucasus and Central Asia region. 1 INTRODUCTION The Moldovan environmental authorities have over forty years of inspection (compliance monitoring) experience. Over the last decade, the national inspection procedures have been made very detailed and prescriptive through a number of primary and secondary legal acts. Unfortunately, risk management approaches have not yet been integrated into these procedures, leading to the inefficient use of regulatory resources and doubts regarding the criteria for the selection of sites for inspection. Since a large number of site visits is commonly associated with high performance, the quality of inspection is often disregarded in favour of quantity. The issue of cost-effectiveness of compliance monitoring and enforcement has become even more acute in the context of repeated budget cuts for environmental authorities caused by the economic and financial crisis. In order to address these challenges, the State Environmental Inspectorate of Moldova was willing to use the case of the Chisinau Environmental Agency to adapt
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and test a methodology for targeting polluters associated with higher environmental risk and/or with history of non-compliance, a methodology developed earlier by the Environmental Action Programme Task Force Secretariat. The Inspectorates commitment to roll out the projects outputs across the country was the principal reason for selecting Moldova for this case study. 2 METHODOLOGY FOR RISK-BASED PRIORITISATION OF INSPECTION 2.1 Risk Criteria and Scores
The prioritisation methodology adopted by the Chisinau Environmental Agency was based on a scoring system designed by the Environmental Action Programme Task Force Secretariat (located at the OECD Environment Directorate, www.oecd.org/ env/eap) and based on the approaches of the Netherlands and the United Kingdom (VROM, 2004 and Environment Agency, 2006). The methodology characterises the risk of each regulated facility and, consequently, provides a sound foundation for deciding on the frequency of inspection. Initially, this methodology (including a set of criteria and scores) was developed in Georgia as part of the Guidelines on Operational Planning and Priority Setting for Inspection of Stationary Sources of Pollution. Using the Guidelines as a starting point, the Chisinau Environmental Agency staff adapted them to the local conditions. Two groups of risk factors were quantified: environmental risk factors and behaviour risk factors, with scores that can be both positive (increasing the risk level) and negative (diminishing it). Environmental risks The assessment of environmental risks proceeds from the assumption that some technological processes have a higher level of impact than others and, therefore, require more intensive compliance monitoring. Environmental risks were assessed according to five criteria: Sector-specific environmental risk: the sectoral risk scores were assigned for each of the 99 economic activity codes of the official Classification of the Types of Economic Activity in Moldova based on literature review and expert judgement. National and local priority status of the sector: additional points were added to the score if the sector was considered in national or local government programmes or strategic documents of the State Environmental Inspectorate. Production process design and modernisation characteristics: the scores were assigned based on the time elapsed since the last technological upgrade performed by the operator and the presence of waste minimisation and energy saving technologies Quality of pollution abatement technologies: the scores reflected the adequacy of their design and operation. Sensitivity and proximity of pollution receptors: this criterion was intended to characterise the potential for harm to public health and the environment, which includes the distance between the pollution source and receptors. The sensitivity
of receptors (their number or the particular importance attached to them) was classified as high (e.g. residential, recreational, cultural or protected natural areas), medium (individual residential or office buildings, agricultural lands, etc.) or low. Behaviour risks Behaviour (management) risks are the second group of criteria. They include: S elf-monitoring and reporting: these criteria cover the existence of a self-monitoring programme and a sound procedure for the maintenance of pollution treatment equipment, as well as record-keeping and timely reporting to the competent authority. Compliance history: this important criterion is broken down by type of sanction (administrative fine, environmental damage compensation, temporary shutdown or criminal prosecution) imposed on the operator for every violation discovered during the previous year (five years in the case of criminal sanctions) Corporate environmental management systems: the scores cover the existence of designated environmental personnel in the business or organisation, environmental training of staff and formal certification of the environmental management system. 2.2 Risk Calculation Tool An Excel-based risk calculation tool was developed to facilitate data processing and management for the risk assessment of individual operators. It incorporates all the risk criteria and respective scores defined by the Environmental Agency. The risk calculation tool includes: T wo sheets for data collection on environmental and behaviour risk criteria. A sheet containing tables with (modifiable) reference scores for each criterion considered in the environmental risk and behaviour risk sheets. These scores apply to operators reported characteristics in order to automatically produce risk assessment results in the following sheets. The operators assessment sheet reports computed scores for each criterion of each evaluated operator. The fields are automatically computed once data are introduced in the first two sheets. The individual operator assessment fiche sheet reports computed data for any particular operator. After the operators scores assigned for each criterion are summed up (as illustrated by Table 1), the total score determines the facilitys level of risk (low, medium or high) and the frequency of inspections. The maximum frequency of one planned inspection per year stipulated in the Moldovan legislation would apply to high-risk facilities, while operators in medium and low risk categories would be checked less frequently, once in three years and once in five years, respectively, corresponding
much closer to the Environmental Agencys available resources, as further discussed in Section 3. Table 1: Operator Assessment Summary
Criterion ENVIRONMENTAL RISKS Sector-specific environmental risk National and local priority status Production process design and modernisation characteristics Quality of pollution abatement technologies Sensitivity and proximity of pollution receptors BEHAVIOUR RISKS Self-monitoring and reporting Compliance history Environmental management TOTAL SCORE 0 to 30 0 to unlimited -20 to 10 5 to 40 0 to 30 -15 to 20 -5 to 10 0 to 50 Permitted score values Individual score
2.3 Risk Assessment Results The inventory of regulated entities provided the Environmental Agency with the data necessary to conduct the prioritisation. A review of paper files by inspectors responsible for each of the five districts of Chisinau revealed that there were 975 registered facilities that are subject to environmental control by the Agency. Lead inspectors for each of the districts used the available information on the regulated entities and expert judgement to enter the assessment inputs into the database. The risk assessment using the software described in Section 2.2 showed that there were 79 facilities (8%) with high risk, 497 (51%) with medium risk and 399 (41%) with low risk. The analysis of other data processed by the risk assessment tool demonstrated, for example, that over three-quarters of regulated facilities (76%) operated production processes that are more than a decade old, and 35% of the facilities had unreliable, unutilised or no pollution abatement (treatment) equipment. All this information is very valuable for the Agency not only for targeting its compliance monitoring activities but generally for expanding the knowledge and understanding of the regulated community. The first risk assessment results were derived from incomplete information available to the Environmental Agencys inspectors and should be regarded as
preliminary ones. In fact, an adjustment of individual risk assessment scores based on new information is likely to lead to an increase of the share of high-risk facilities. Nevertheless, this initial tentative assessment of environmental and behaviour risks across the regulated community in Chisinau has generated enough information to perform a first round of inspection planning, as described in the following section. 3 OPERATIONAL INSPECTIONS PLANNING OF ENVIRONMENTAL
3.1 Assessment of Personnel Needs Once it has been determined how many facilities belong to each category of risk (high, medium and low) and the respective inspection frequency has been established, a rough calculation of staff time and number needed to conduct inspections can be done via the following steps: 1. Assessing how much time (days) is spent annually on tasks at the competent inspection authority other than regular planned inspections (such as annual and sick leave, meetings, regulatory tasks besides inspection, unplanned inspections, etc.). 2. Calculating the average effective time each inspector has available for inspection (days per year). 3. Estimating the compliance monitoring effort per risk category, in hours or days that need to be spent at a certain type of facility. 4. Assessing the total time that needs to be dedicated to inspection (person-days). 5. Dividing the total time required for inspection by one inspectors available time in order to evaluate the number of inspectors required. Staff availability for inspection activities The calculation of inspection staff availability at the Chisinau Environmental Agency was done based on real activity reporting data for 2009 (the numbers for the previous two years were quite similar). First, the total number of net working person-days was calculated by subtracting holidays, regular and sick leave from the total work time in the year. The result was 7,343 person-days for 35 full-time staff of the Agency, or 210 work days per staff member. A total of 16 staff participate in inspection activities in the Environmental Agency: nine staff members work in the Inspection Division and seven are delegated from other divisions. Table 2 summarises the number of days spent on tasks other than planned inspections.
Table 2: Inspection Staff Time Allocation per Task, Chisinau Environmental Agency, 2009
Tasks Permitting and environmental impact assessment Environmental permitting Land use permitting Environmental impact assessment (EIA) Subtotal Compliance monitoring Review and verification of operators reporting Planned inspections Unplanned inspections (ad hoc raids, responding to complaints) Preparation of protocols of environmental offences Subtotal Management and institutional collaboration Reporting to State Environmental Inspectorate, Ministry of Environment, annual reporting Collaboration with the Prosecutors Office and other competent authorities Participation in court hearings Internal meetings Staff training Total Total per inspector (16 inspectors) Subtotal Other tasks 334 203 16 12 10 575 12 3360 210 480 480 245 96 1301 1010 228 234 1472 Time spent (days)
As can be seen from Table 2, permitting and EIA tasks take about 44% of the inspectors time at the Agency, compliance monitoring activities (planned and unplanned inspections, review of operators reporting, and preparation of violation protocols) account for 39% of the time, while management and institutional collaboration tasks take 17%. Planned inspections account for about 14% of the inspectors time, or 30 days per inspector. Staff requirements for inspection activities The level of effort and corresponding number of staff required for planned inspection activities in the Chisinau Environmental Agency were calculated based on the risk assessment of the regulated community and the related inspection frequency.
It was determined that high-risk facilities need to be inspected for two days by two inspectors, whereas medium-risk and low-risk facilities can be inspected during one day by one inspector. Under this assumption, all the inspections will have to be integrated (multi-media). The calculations were performed as shown in Table 3. Table 3: Calculation of Inspection Staff Needs
Risk category Number of facilities (A) Normal annual inspection frequency (B) Number of inspections per year (C) Duration of one inspection, days (D) Including planning, preparation, travel, all actions on-site (for all the media), sampling, and reporting. Number of inspectors participating in the site visit (I) Total required level of effort (person-days, E) High A1 79 B1 1 C1=A1*B1 79 D1 2 Medium A2 497 B2 1/3 C2=A2*B2 166 D2 1 Low A3 399 B3 1/5 C3=A3*B3 80 D3 1 C=C1+C2+C3 325 A=A1+A2+A3 975
I1 2 E1=C1*D1*I1 316
I2 1 E2=C2*D2*I2 166
I3 1 E3=C3*D3*I3 80 E=E1+E2+E3 562 F 30 E/F 18.7
Number of work days per inspector (F) Number of inspectors needed
Source: OECD (2004), Assuring Environmental Compliance: A Toolkit for Building Better Environmental Inspectorates in Eastern Europe, Caucasus, and Central Asia. OECD, Paris.
According to these calculations, the Chisinau Environmental Agency needs 18.7 inspectors to implement an inspection programme based on the risk assessment results and the determined inspection frequencies. However, currently the Agency has only 16 inspectors, and the seven delegated inspectors from outside its Inspection Division can only assist the lead inspector but cannot conduct a site visit independently. If, as mentioned in Section 2.3, the number of high-risk facilities is underestimated by the initial risk assessment due to data limitations, the gap in human resources would appear even wider. To bridge this gap, the Agency would need to hire additional personnel (which is unlikely given the current severe budget constraints) or seek efficiency gains in other activities performed by its inspection staff.
3.2 Preparation of an Annual Inspection Plan The Environmental Agency produced an inspection plan for 2011 based on the calculations shown in Table 3. The total number of regulated entities to be inspected is 329, including all the 79 high-risk facilities, 193 medium-risk facilities and 57 low-risk facilities. Medium-risk and low-risk facilities to be inspected in 2011 were determined based on their risk score, the date of their last inspection (those entities that had not been visited for the longest time would be inspected first) and the judgement of individual inspectors responsible for respective city districts. The inspection schedule was presented in a tabular format with the following columns: 1. Operators identification number. 2. Operators name. 3. City district. 4. Economic activity code. 5. Total risk score. 6. Risk category (high, medium or low). 7. Inspection frequency. 8. Date of last inspection. 9. Date of planned inspection in 2011. 10. Person responsible for conducting the inspection. 11. Note on completion of the inspection. As shown in Table 4 (assuming the same time distribution across tasks), if highrisk facilities are visited by two inspectors over two days, it would require 19 staff. Considering the Chisinau Environmental Agencys human resource constraints, it was proposed for a transitional period to have two inspectors visit each high-risk facility for only one day. It is, however, necessary to identify short-term efficiency gains by reducing time allocation for some other lower-priority tasks to increase the time each inspector can dedicate to site visits. 4 CONCLUSIONS AND RECOMMENDATIONS The pilot project has confirmed the need for risk-based targeting of environmental inspections in Moldova by demonstrating the lack of prioritisation in compliance monitoring, lack of inspectors, superficial nature of inspections, all of which results in the poor detection of environmental offences and inefficient use of regulatory resources. One of the biggest obstacles to effective prioritisation of the regulated community based on environmental and behaviour risks of individual facilities is the insufficient quality of data and its poor management. Inspectors often lack objective information on operators environmental management practices, particularly with respect to their production processes. Where the information is available, it is kept in paper files, not well systematised and difficult to access.
The implementation of inspection targeting would have to overcome the regulatory culture that is traditionally hostile to prioritisation. Moldovas Accounting Office demands universal inspection coverage, and roughly half of economic sectors are characterised as priority ones by inspectors. It is primarily the shortage of human resources that is stimulating competent environmental authorities to seek efficiency gains in compliance monitoring. While risk-based targeting of inspections will help to improve the effectiveness and efficiency of non-compliance detection, other reforms would need to be undertaken (e.g. in environmental permitting) in order to achieve a better balance between regulatory needs and the inspectorates available resources. Importantly, Moldovas State Environmental Inspectorate and inspectors on the ground both recognise the problems and are eager to implement solutions to them. Since the above-mentioned challenges are quite typical for environmental enforcement authorities in Eastern European, Caucasus and Central Asia countries, the following recommendations are relevant for environmental authorities not only in Moldova, but also in other Eastern European, Caucasus and Central Asia countries: I mplement the system of risk-based prioritisation and planning of environmental compliance monitoring in Chisinau and across Moldova, with further refinement of the risk criteria and respective scoring in accordance with the country-specific conditions and the practical experience of their use. Build on the electronic risk calculation tool developed in the course of this pilot project to create a full database of regulated entities that would incorporate inspection results and enforcement data for individual facilities and allow for easier inspection planning (e.g. based on the last inspection date in addition to the risk score). Review and revise the strategic enforcement priorities to focus on main local environmental problems and economic activities that are most responsible for these problems. Fully implement integrated environmental inspections to further increase the effectiveness and efficiency of compliance monitoring, and significantly expand inspectorate staff training to enhance inspectors capacity for multi-media compliance evaluation. Examine possibilities to reduce time allocation to non-regulatory tasks (e.g. by simplifying the reporting procedure and using electronic means as much as possible) to allow inspectors to devote more time to site visits already in the short term. Design and implement a reform of the environmental permitting system by introducing integrated, multi-media permits (based on best available techniques) with long validity periods for large, high-risk facilities and a simplified authorisation regime for the rest of the regulated community. This reform, while challenging and demanding a transition period of several years, will dramatically improve the effectiveness and efficiency of the permitting work performed by environmental authorities and free up resources for compliance monitoring and enforcement.
5 BIBLIOGRAPHY IMPEL (2008), Doing the Right Things II: Step-by-step Guidance Book for Planning of Environmental Inspection, European Union Network for the Implementation and Enforcement of Environmental Law, Brussels. Environment Agency (2006), Environmental Protection Operator and Pollution Risk Appraisal (EP OPRA), Version 3.1, Environment Agency, Bristol, UK. OECD (2004), Assuring Environmental Compliance: A Toolkit for Building Better Environmental Inspectorates in Eastern Europe, Caucasus and Central Asia, Organisation for Economic Co-operation and Development, Paris, www.oecd.org/ dataoecd/61/62/34499651.pdf. OECD (2005), Funding Environmental Compliance Assurance: Lessons Learned from International Experience, Organisation for Economic Co-operation and Development, Paris. OECD (2008), Guidelines on Operational Planning and Priority Setting for Inspection of Stationary Sources of Pollution in Georgia, Organisation for Economic Co-operation and Development, Paris. OECD (2008), Guidelines on State Environmental Inspection in Georgia, Organisation for Economic Co-operation and Development, Paris. OECD (2009), Ensuring Environmental Compliance: Trends and Good Practices, Organisation for Economic Co-operation and Development, Paris. VROM (2004), VROM Inspectorate: Compliance Strategy of the Ministry of Housing, Spatial Planning and the Environment, Ministry of Housing, Spatial Planning and the Environment, The Hague, the Netherlands.
TOWARDS MORE EFFECTIVE AND EFFICIENT ENVIRONMENTAL SUPERVISION TRENDS AND DEVELOPMENTS IN THE EU AND THE NETHERLANDS TEEKENS, JAN1 and VAN ZANTEN, PIETER-JAN2 Ministry of Infrastructure and the Environment, Inspectorate of Housing, Spatial Planning and the Environment, The Netherlands, jan.teekens@minvrom.nl
1 2
BMC Consultancy and Management, The Netherlands, pieterjanvanzanten@bmc.nl
SUMMARY This paper discusses the evolution of environmental supervision in the European Union and The Netherlands. The first section highlights some major developments and challenges in this area and describes various initiatives to enhance the effectiveness and efficiency of Environmental Enforcement Authorities in the EU. Within the EU The Netherlands is one of the Member States where the debate on improving supervision is particularly lively. Section 2 of this paper briefly outlines the main aspects of this debate. 1 EUROPEAN UNION DEVELOPMENTS 1.1 The Environmental Acquis
The current aggregate of environmental rules in the European Union the so called environmental acquis can, with the exception of the disputable topic of soil protection, be regarded as completed. The acquis comprises some 300 legal instruments, mostly directives. In spite of establishing new rules it is expected that the European Institutions Commission, Parliament and Council - will focus their attention on improving the existing set of rules and their implementation, recognizing that the environmental outcomes these rules aim to achieve have not yet been fully delivered1. On the legislative side this will be done by systematically carrying out expost evaluations of individual directives and regulations, looking at the effectiveness and efficiency of the rules. In addition, fitness checks will be performed to assess if the total existing regulatory framework for a policy area is fit for purpose and to identify excessive burdens, inconsistencies, obsolete measures and the cumulative impact of legislation. Where deemed necessary, these various assessments will be followed up by revisions of the legislation aiming at less burdensome, simpler, more practical and enforceable rules which achieve better outcomes against lower costs2. This exercise will be not necessarily easy, but still rather straightforward compared to what needs to be done on the implementation side. Implementation of EU environmental rules is the competence of the EU Member States. It is generally acknowledged that in many environmental areas implementation
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is inadequate. Implementation can be defined as the succeeding steps leading to the regulatory outcomes the rules intend to achieve. In case of directives, of which most of the environmental acquis is made up, implementation is comprised of: transposition into national law, setting up the necessary infrastructure to apply the law (for instance assigning authorities to issue authorizations and providing them with the necessary means to carry out that task), the actual application, and finally supervision. In particular supervision - understood here in the broad sense as all the activities and interventions aimed at assuring compliance, including providing information, carrying out inspections and enforcement - is seen as a weak link in the regulatory chain. 1.2 Supervision in the Member States
Supervision, being first and for all the responsibility of the EU Member States, remains a source of concern. Admittedly, it is quite a challenging task for many countries to properly deal with the multitude of EU environmental legislation. This legislation covers a huge variety of topics, is often detailed and technically complicated and on top of that is scattered over so many directives and regulations, lacking an overarching integrated legal framework. In addition EU Member States usually assign supervision tasks and competences to many different layers of government in accordance with their constitutional set up and previous practice. It is the rule rather than the exceptionthat local and regional bodies are given supervision tasks. Given the complexity of the legislation and the need for skilled experts, it is often questionable whether at these levels sufficient critical mass can be organized to effectively and efficiently perform the tasks concerned. Also attributing competences to authorities with a relatively small (geographical) jurisdiction can hinder an effective tackling of activities with regional, national or even global environmental effects. Examples of these are excessive emissions of long-range pollutants, major industrial accidents and chains of interrelated, potentially harmful activities taking place at different locations, like waste production, shipment and treatment. Despite these inherent difficulties Member States have over the recent years made a significant effort at improving supervision through awareness raising, capacity building, improving methodologies and training and empowerment of inspectors and enforcement officers. Not surprisingly there are many driving forces pressing Member States to take action. The European Commission is confronted every year with high numbers of complaints of NGOs and citizens criticizing the lack of enforcement of EU environmental legislation in countries; in fact these complaints make up the biggest part - almost one third - of all the complaints received3. The Commission has great difficulties in following up these complaints and instead of conducting cumbersome and lengthy investigations, prefers seducing and encouraging Members States to invest more in their supervision infrastructure and also allocate more resources to it. Internationally oriented businesses form another stakeholder, arguing for a more robust and more evenly distributed supervision, claiming that the considerable differences in existing supervision efforts throughout Europe are threatening a level playing field.
1.3
EU Developments
Starting in the mid nineties several steps were taken on a European scale towards realizing further developed, higher quality supervision in the Member States. This was done by using the Open Method of Coordination as well as the Community Method. The first term refers to the often rather informal process which aims to achieve convergence towards an important EU wide goal. To achieve convergence, Member States engage in spreading best practice and supporting mutual learning and develop for that purpose tools like commonly agreed guidelines and indicators, and connected peer review and benchmarking arrangements. This approach leaves significantly more room for diverging national policies than the traditional Community Method whereby the EU institutions establish harmonized legally binding rules, which often prescribe in detail not only the aims, but also the instruments4. Bearing in mind that supervision is about choosing those interventions which have the greatest influence on the compliance behavior of a certain target group and that that behavior is often to a high decree culturally determined, it makes sense to leave authorities in the different EU Member States some room to make their own judgments and decisions on what interventions to apply. The Open Method of Coordination seems therefore in many cases the more suitable approach to try to improve supervision across the EU. The formation of the European Union Network for the Implementation and Enforcement of Environmental Law in 19925 marked the start of a series of activities carried out by supervision authorities in Member States to share good practices and develop inspection standards. This work formed the basis for the Recommendation 2001/331/EC of the European Parliament and of the Council of 3 April 2001 proving for minimum criteria for environmental inspections, in this text referred to as minimum criteria. The minimum criteria set minimum requirements for environmental supervision activities where planning, executing and reporting are concerned. It advocates, though not very explicitly, the use of a risk based approach for setting priorities and stresses the need for transparency, accounting for outputs and outcomes and cooperation between different competent authorities. After the adoption of the minimum criteria IMPEL actively supported its implementation by organizing the further sharing and promoting of good practice between Member States and the development of more elaborate and sophisticated tools to improve environmental supervision. In 2005 the Member States reported on how they had implemented the minimum criteria. On the basis of these reports the Commission concluded that a number of Member States at least in certain areas performed considerably better than before, but that on a range of issues many country reports provided insufficient information or suggested that further improvements were necessary.6 Also, the fact that it proved to be very difficult to collect comparable, meaningful data on the functioning and performance of the thousands of supervision authorities across the EU was regarded as very unsatisfactory by the Commission. The Commission since then is considering different ways forward, including the transformation of the
minimum criteria into a directive. IMPEL advised the Commission to at least clarify and refine a number of provisions in the minimum criteria and consider extending its scope. Meanwhile the Commission introduced in individual directives and regulations a number of (binding) supervision obligations.7 For the waste legislation, where the implementation deficit is felt to be the gravest, the Commission even considers the creation of supranational supervision arrangements. There is some concern that the piecemeal introduction of inspection obligations will create a rather cluttered set of rules, leaving little room for Member State authorities to perform an integrated assessment of their inspection tasks. Also it is questioned whether detailed provisions, prescribing for instance fixed inspection frequencies, will have an impact on compliance if inspections are still carried out mechanically with little focus and quality. Perhaps this would all be less worrisome when the increasing number of sectoral proposals to regulate Member State supervision would follow from a Commission-wide strategy on supervision. Unfortunately such strategy does not exist. There is not one vision on the role and design of supervision related to the acquis, not across the different Commission Director Generals and not even across the different sections of the Director General of the Environment8. 1.4 New Challenges
A internal survey conducted by the former Netherlands Ministry of Housing, Spatial Planning and the Environment in 2010 highlighted a number of internationally occurring trends related to supervision in general. One important trend worthwhile mentioning was about changing relationships. Other actors than governmental authorities have taken up supervision activities, thus changing and enriching the supervision landscape considerably. A number of these activities can be labeled as internal supervision: internal control and supervision arrangements to assure compliance with legislation set up by businesses at different levels in their organization, including the management level and the level of internal supervisory boards. Another increasingly important type of supervision is horizontal supervision. This term refers to the increasing use in business sectors of commonly agreed, voluntary supervision mechanisms like quality systems and professional and governance codes, the application of which is checked by certification, mutual auditing and benchmarking, etcetera. Often these arrangements are triggered by the threat of governmental interference and can be subject to (second-line) governmental control. Last but not least what is called Social supervision has become an emerging new branch of supervision. Social supervision is exercised by groups of citizens or consumers, NGOs and other interest groups, using the internet and social media intensively. Well informed and capable of raising very quickly massive publicity, they can effectively influence businesses which are sensitive to reputation damage. Governmental supervision authorities for that matter can also be subject to social supervision as many have found out to their cost. Social supervision directed to businesses has proven to be even more powerful when interest and protest groups build relations with private enterprises like rating agencies, insurance companies and banks with the aim of influencing their dealings with businesses. Social supervision is also boosted when it is facilitated
and supported by government granting more generously legal rights on access to information and legal proceedings. Since it has become evident that these new types of supervision in some cases can usefully complement or even partly replace governmental supervision, supervision authorities are conscious that there is a need to explore how their strategies and activities can be aligned to non governmental supervision. This opens opportunities to achieve higher outcomes against lower efforts simply by combining forces where parties have shared interests. And as a consequence authorities will be more able and keen to target more vigorously their efforts to those areas where governmental interventions remain indispensable and most effective. Working together with other supervision actors requires from the supervision authorities to be more transparent and willing to enter a dialogue to jointly assess fruitful ways for cooperation, while maintaining a clear division of responsibilities. In this context in particular, governmental authorities need to make sure upfront that they have a clear and precise view of their mission, their statutory tasks and competences and most importantly the priority areas where they want to focus their attention on. Reinventing themselves in terms of restating the reason for their existence and their mission in society and showing what outcomes they achieve and what problems they solve, seems to be a necessity for supervision authorities anyway, given the current economic climate. When authorities cannot succeed in communicating why they make a difference, they will be faced by severe cuts in their budgets or even run the risk of discontinuation. At the same time Europes desire to be a competitive player in the global economy presses them to make life easier for businesses. Industry wants less administrative and inspection burdens and probably more importantly expects highly skilled, experienced and efficient inspectors to do business with. 1.5 Two Innovative Schemes: the IMPEL Doing the Right things Scheme and the IMPEL Review Initiative
The developments and challenges described above asked for a proper response from the Member States. There was a clear need for the development of a methodology for organizing environmental supervision which would be more comprehensive and sophisticated than the rather limited and basic approach followed in the minimum criteria. A methodology which would enable authorities to set up their activities along more modern supervision concepts was necessary. These include targeting supervision activities on the basis of the specific mission the organization wants to accomplish or and with the aim of achieving certain predefined compliance outcomes. A methodology which would address the use of the full range of interventions aimed at assuring compliance, taking into account the compliance behavior of the target groups concerned and available forms of non-governmental supervision by other parties. With that in mind IMPEL, on the initiative of the VROMInspectorate of the Netherlands Ministry of Infrastructure and the Environment, started in 2006 the Doing the right things scheme. After collecting and analyzing country practices through a comparison project a guidance book was written on
planning and organizing environmental inspections9. Subsequently IMPEL carried out pilots and tests and organized trainings and follow up meetings, giving experts the opportunity to share experiences in using the Guidance Book. The key concept of the guidance book is that of the so called Environmental Inspection Cycle as shown in figure 1. Figure 1: Environmental Inspection Cycle
1b. Setting priorities Performing a risk assessment to decide on priority areas PLANNING
1c. Defining objectives and strategies Setting supervision objectives and targets for prioritized areas and choosing supervision strategies and activities/ actions to achieve these targets
1a. Describing the context Determining relevant legislation, tasks, mission and goals and analyzing data on the regulated community and state of the environment
1d. Planning and review Reconciling choices made with organizational, human and financial conditions and findings from step 4
4. Performance monitoring Assessing outcomes achieved against supervision targets. Assessing activities/ actions carried out and resources used.
2. Execution Framework work protocols and instructions; information management and exchange; equipment and other resources
3. Execution and Reporting
IMPEL has, since the completion of the doing the right things scheme, promoted the use of the concept of the Environmental Inspection Cycle in contacts with Member States authorities and the European Commission. It also engaged in several follow up projects which are currently executed. The easyTools project aims to give more elaborate guidance on performing risk assessments as a basis for setting supervision priorities10. Another current IMPEL project focuses on the topic of setting inspection targets on desired outcomes and monitoring the authorities performance against these targets. Many authorities think that this is an increasingly important step in the Environmental Inspection Cycle helping them to increase the effectiveness, efficiency, transparency and accountability of their work11. Closely linked to the Doing the right things Guidance book is the IMPEL Review Initiative. This initiative is a voluntary scheme providing for informal reviews of environmental authorities in IMPEL Member countries. It was originally set up to implement the minimum criteria.12 Recently the scheme was renewed, bringing it in line with the concept of the Environmental Inspection Cycle and making it more easy and attractive for environmental authorities to take part. This has encouraged more authorities to participate, especially from the new EU Member States. The Initiative offers the authority concerned inexpensive, fast and professional advice on its structure, operation and performance. The Commission equally can use the reports to gain a better insight in how authorities perform. In fact, the IRI reports will provide the Commission with qualitative information which is much more meaningful than isolated figures without any contextual explanation. 2 IMPROVING SUPERVISION IN THE NETHERLANDS 2.1 Introduction to The Netherlands in Connection with EUDevelopments The Netherlands is a small country in Europe, and is one of the most densely populated countries in the world. Less known is that the country is the tenth largest economy in the world (based on OECD reports) mainly due to its high export volumes, vital business sector and agricultural produce. Its infrastructure is highly advanced and the main ports of Amsterdam and Rotterdam form the hub of the export dynamics, bestowing the Netherlands the reputation of the gateway to Europe. In the Netherlands some of the largest chemical companies are based, and the country is one of the principal providers in Europe for high-tech products in the industrial and consumer sectors. It is Europes largest producer of natural gas, and the seaport of Rotterdam is a main entry port for large amounts of crude oil. As sketched out in the previous section, the role and impact of the EU on national law and the operation of licensing, inspection and enforcement in Member States is substantial. Environmental law agreed by Brussels often leaves Member States some room to decide on how to implement that law, provided that they take the measures and carry out the activities as prescribed by the legislation. In the Netherlands, some 450 regional and local authorities are in charge of implementing the larger part of the environmental acquis. They are responsible for permitting,
inspection and enforcement and are expected to carry out these tasks as effective and as lean as possible. 2.2 A Need for Highly Advanced Legislation and Supervision
The high density and dynamics which characterize the Netherlands have a significant effect on all fields of policy and all levels of government. This goes in particular for environmental law. The design of the environmental law in the Netherlands is constantly reviewed and aligned to new environmental challenges and economic developments. Equally, the quality of the implementation of environmental law and of supervision in particular is frequently debated and reviewed and Dutch experts take a big interest in IMPEL-projects like the abovementioned schemes: Doing the Right Things and IRI.-schemes. Big accidents often trigger extensive inquiries on how effective and efficient safety and health issues are dealt with in practice. Though many supervision authorities have already advanced systems in place for organizing inspections, many of which are comparable with the Environmental Inspection Cycle described above, a number of these accidents suggest that some authorities are not adequately responding to serious noncompliances which (can) result in grave damage to human health and the environment. Case 1: On January the 5th this year, a fierce blaze broke out at an industrial estate in the western part of the province of North-Brabant on the premises of a company which blends and packs chemicals. Due to the presence on the premises of 10 tanks of 23.500 liters of toxic, irritating and highly flammable liquids, it took only minutes for the gravity of the fire to reach alarming levels. Soon thick smoke clouds commenced and moved in northern direction towards the cities of Dordrecht and Rotterdam, alarming authorities to massively turn in fire and emergency squads from the entire region. The scale of the fire demonstrated the effectiveness of the Dutch System for Coordinated Regional Incident Control. This is a national arrangement on the up scaling of disaster control for professional rescue services (police force, fire department, ambulance services, etc.), regionally organized in one of the nations 25 Security regions. It took only a few minutes for the fire to reach the highest level (phase 4), implicating that the area of effect encompassed several regions. Investigations are now being performed to look at the measures that should have been undertaken by the local authorities in terms of supervision and prevention. The case illustrates the complexity of the health and safety issues authorities are burdened with, and the apparent deficits there are in adequately performing the necessary tasks and measures.
Case 2: A remarkable event which received broad national media attention and sparked debate was the continuous exceeding of emission limits and violation of safety standards by a large phosphor producer, located in the south-western region of the Netherlands. Ever-increasing signals that the company failed to improve its performance and was not able to meet national and international standards were confirmed by an abundance of inspection documents highlighting numerous non compliances. This fuelled social unrest. Late 2010, under heavy pressure by both the general public and the national government, the competent authority set up a committee to investigate how this file was dealt with. The main conclusion of the committee was that the authority had failed to fulfill its responsibilities of licensing, inspection and enforcement, a claim the authority concerned did not acknowledge. 2.3 Improving Permitting, Inspection and Enforcement Through the Use of Quality Management
To further improve the work of environmental authorities the Association of Netherlands Municipalities took the initiative to develop a quality management system, designed to accommodate the needs of many different competent authorities. Building on the concept of the Environmental Inspection Cycle this system takes the following process as starting point: T he input of the system is time (manpower), money and standards. The process/throughput is the process of permitting , inspection and enforcement. The outputs are products like numbers of permits issued or inspections carried out, and costs. The outcomes are the effects on the environment, the satisfaction of the citizens, number and impact of incidents, etc. The system provides guidance on how to manage this process taking into account the requirements set in law and criteria specifically developed by KPMG Consultancy firm that will ask proper environmental procedures and critical mass of the environmental authorities administration. The whole system meets the minimum criteria laid down in the European Recommendation mentioned above when it comes to inspection and enforcement activities. Please see Appendix for a diagram of the Quality Management System. 2.4 Better Cooperation and Up Scaling of Tasks
Another challenge is to strengthen the cooperation between environmental authorities and the police and the Public Prosecutor to make sure that criminal enforcement as final supervision intervention is effective. This is one of the aims of a governmental programme, recently launched. This programme focuses on: I ntensifying cooperation between environmental authorities and the police and Public Prosecutor.
B uilding bridges to close the culture gap between civil servants and policeofficers. Putting in place a state of the art IT-system with helps to access information which is needed for mutual operations. Education and instruction. The main purpose of the program is to help establish regional environmental agencies across the country, which will carry out tasks delegated by municipalities and provinces. The scale, resources and expertise of these agencies should offer significant opportunities to work more effective and efficient. There is agreement on the basic work load for these agencies. There are of course typical local issues for which an assessment and solution on the local level seems more appropriate. It makes sense to exempt these from the up scaling of environmental tasks to the regional agencies. On the other hand there are tasks related to the largest industrial installations for which an even further up scaling could be considered as the cases described above indicate. In some areas like building law, things are even more complicated because non governmental actors have taken up supervision tasks they carry out activities which we have labeled in the previous section as horizontal supervision. This raises a number of questions like where, when and under what conditions can public responsibility step back and private accountability come in? There is a clear need to further explore what could be the right division of tasks between government authorities and the private sector as is proven by Case 3 described here below. Case 3: Another recent event which was in the news quite prominently in the Netherlands was the collapse of the so-called B tower in the center of Rotterdam that hospitalized five construction workers. The tower, aiming to accommodate shops, apartments and parking lots was still under construction when the parking storeys on 4th and 5th floors collapsed. Noteworthy was that the project had recently been awarded a prestigious prize for its exclusive use of aluminum and glass in the facades. The collapse was immediately followed by an investigation by Labor inspection, the Criminal Investigation Department and the Public Prosecutor that jointly scrutinized the share of responsibility of all the parties involved in the construction of the building. The apparent cause was the succumbing of the scaffolding on a point in the building where the structure of the pillars is displaced. Surprising was the statement of the alderman that the inspection authorities had been examining the site only a day before the collapse happened. Moreover, inspection of the construction site had occurred for 22 times in total until then. The underlying causes for the accident are still being investigated by the Investigation Council for Safety.
A major criticism expressed by those involved, is the increasing complexity of the construction process, and the unclear sharing of responsibilities between clients, contractors and inspectors. Incidents seem to become more structural due to what some have identified as the real underlying causes: economizing on inspection, the shifting of responsibilities to the market, and the loss of knowledge and qualified personnel due to ageing, the unfavorable image of the construction sector and cutting on education budgets. 3 FINAL OBSERVATIONS
In the Netherlands, improvements are sought for through consensus and evolution, not revolution. However reoccurring incidents are a strong incentive to speed up the process. This is only feasible when the authorities involved are willing to fully engage themselves in the process of establishing the regional agencies. They should be prepared to solve their differences, to accept compromises and last but not least prepared to give their support to the new infrastructure, once it is agreed upon. 13 4 REFERENCES 1 The European environment state and outlook 2010, European Environment Agency. 2 Smart Regulation in the European Union, Commission communication - COM(2010)543 (8 October 2010). 3 According to the Fifth Annual Survey on the implementation and enforcement of Community environmental law the environment sector represented in 2003 over a third of all complaints and infringement cases concerning instances of non compliance with Community law investigated by the Commission. 4 Exploration of Options for the Implementation of the Open Method of Coordination (OMC) for Environmental policy, Institute for European Environmental Policy and Ecologic, 2005. 5 IMPEL is now an International Non-Profit Association of environmental authorities with both its legal seat and its Secretariat located in Brussels, Belgium. Currently IMPEL has members from 32 countries including all EU Member States, Croatia, the former Yugoslav Republic of Macedonia, Turkey,Iceland and Norway. See www. impel.eu. 6 Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions on the review of Recommendation 2001/331/EC providing for minimum criteria for environmental inspections in the member states [sec(2007) 1493]. 7 For instance in the Waste Shipment Regulation, the Regulation concerning the registration, evaluation, authorization and restriction of chemical substances ( REACH), the Industrial Emissions Directive and the proposal for a revised SevesoDirective (Directive on the major-accident hazards of certain industrial activities). 8 See the not yet published - report Survey on European Trends in (Government) Supervision produced by Dr Andrew Farmer and Victoria Cherrier of the Institute for European Environmental Policy (IEEP) through a consultancy contract with the VROM-Inspectorate of the Ministry of Infrastructure and the Environment of the Netherlands.
Note that the Guidance Book was also written with the explicit intention to help authorities in the IMPEL Member Countries to comply with requirements of the RMCEI. It was however set up in such a way that it sufficiently flexible for authorities to apply the guidance in accordance with their specific needs; it is therefore by no means a blueprint which can be simply copied. 10 See: http://impel.eu/projects/development-of-an-easy-and-flexible-risk-assessmenttool-as-a-part-of-the-planning-of-environmental-inspections-linked-to-europeanenvironmental-law-and-the-rmcei-easytools-phase-2. 11 See http://impel.eu/projects/setting-inspection-targets-and-monitoring-performance. 12 The RMCEI states: Member States should assist each other administratively in operating this Recommendation. The establishment by Member States in cooperation with IMPEL of reporting and advice schemes relating to inspectorates and inspection procedures would help to promote best practice across the Community. 13 Due to the size and color requirements of Appendix 1, the Appendix is published in the online version of this paper, available at http://www.inece.org/conference/9/.
BARRIERS AND SOLUTIONS TO BETTER ENVIRONMENTAL ENFORCEMENT IN CHINA WANG, JIN 1and YAN, HOUFU 2 Professor, Peking University Law School, No.5 Yiheyuan Road, Haidian District, Beijing 100871, P. R. China. Email: wangjin_law@pku.edu.cn
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Assistant Professor, Beijing Normal University Law School, No. 19 XinJieKouWai St., HaiDian District,Beijing 100875, P. R. China. Email: ysyan0826@gmail.com
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SUMMARY Environmental deterioration in China is the byproduct of Chinas fast economic growth and weak environmental enforcement. If environmental enforcement were rigorous enough, Chinas environmental situation would not have deterioriated to the current extent. In the past decade, environmental enforcement has definitely been strengthened. However, in China, compliance with environmental law is still seriously affected by the low cost of environmental violation. The reason for the inefficacy of environmental enforcement is very complicated. It is related to subjective omission as well as objective incapable of action of the environmental protection agencies. The effectiveness of environmental enforcement is directly affected by the following factors: (1) the performance evaluation system used by government officials that overemphasizes economic development, the fiscal mechanism which divides revenue and expenditure among the central and local governments; (2) unreasonable legislation; (3) the deficit of administrative systems; and (4) the weakness of judicial support. This article will explain each factor hereinafter and provide corresponding suggestions for the future. 1 DEVELOPMENTS OF AND BARRIERS TO ENVIRONMENTAL ENFORCEMENT IN CHINA China began to enforce environmental laws in 1979. Since 1979, China has enacted nearly thirty laws concerning environmental protection and natural resources conservation, energy conservation, clean production and circular economy promotion. Numerous regulations, policies and environmental standards have also been enacted during the last thirty years. The Party Central Committee and the State Council have emphasized the importance of environmental protection in recent years. The 1980s marked Chinas declaration of environmental protection as a fundamentalnationalpolicy. In the early 21st century, President Hu Jintao called for scientific development and construction of an environmental friendly society.Furthermore, for the first time the Eleven-Five (2006-2010) Plan listed binding targets for energy saving and emission reduction.
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However, the environmental situation in China is still challenging. Environmental violations and major environmental pollution incidents occur frequently and there are more and more massive disturbances taken by the public to protect their own environmental rights and interests. It seems that the environmental protection in China has fallen into a situation of more law with less order. The popular expression: industrial and commercial enforcement depend on licenses; taxation enforcement depends on invoices; public security enforcement depends on handcuffs; environmental enforcement depends on slogans, accurately describes this phenomenon. In November 2010, Zhou Shengxian, the Minister of the National Ministry of Environmental Protection commented to a journalist that the current environmental situation could be summarized as partly improved but remains uncontrolled as a whole, with increasing pressures.1On April 21, 2011, the Macro Strategic Research Report on Chinas Environment, which took over 50 academicians from the Chinese Academy of Sciences, the Chinese Academy of Engineering, the Ministry of Environmental Protection and hundreds of experts three years to compile, noted that Chinas environmental pressure is bigger than any other countrys.2 2 ENVIRONMENTAL ENFORCEMENT AFFECTED BY PERFORMANCE EVALUATION SYSTEM OF GOVERNMENTAL OFFICIALSAND FISCAL SYSTEMS There are many factors that could impact the effectiveness of environmental enforcement, but two factors of primary importance are (1) the use of performance evaluations for government officials that overemphasizes economic development, and (2) the fiscal mechanism that divides revenue and expenditure among the central and local governments. In China, government officials are not directly elected by citizens but appointed by their superiors. Therefore, it is the superiors opinions, not the publics feelings or vote, that determines the future of an official. Because the superiors opinions of an official are captured in evaluation indexes, naturally these indexes will become the guidelines of officials behavior. Whether the evaluation indexes are designed reasonably and enforced strictly will directly affect the effectiveness of environmental enforcement. Since the reform and opening-up policy, the Chinese Communist Party has pursued focusing on the central task of economic construction and has stated that developmentis of overriding importance. Thus, the performance evaluation system of government officials in China overemphasizes the economic indexes while ignoring the environmental protection indexes. This causes local officials to only be concerned aboutGDPgrowth. Because environmental protection fails to stimulate or may even hinder GDP growth, and environmental protection indexes only constitute a small part of performance evaluation, environmental protection is still important in word, secondary in doing and nothing when busy in practice.
Environmental protection continues to be neglected in China even though the Party Central Committee and the State Council have often emphasized the importance of environmental protection. In addition, the fiscal mechanism in China divides revenue and expenditure among the central and local governments. The fiscal mechanism in China is often described as eating at different kitchens.The taxes are divided into central and local government taxes respectively. The central government taxes are much bigger compared to the local government taxes. However, the public service function is mainly financed by local governments. Thus, the level of local public service and the local government officials income are directly determined by the local fiscal status, which is directly connected to economic development. Only through rapid economic growth can local governments enhance the level of public service and officials income. Therefore, local officials have to concentrate on economic growth, business invitation and investment attraction and construction program development, often resulting in heavy environmental pollution. Because environmental protection and environmental enforcement may not increase fiscal income, but instead may consume considerable fiscal resources, coupled with the fact that the environmental indexes are not important in officials performance evaluation, local governments have little motivation to strengthen environmental enforcement. 3 ENVIRONMENTAL ENFORCEMENT LEGISLATIVE FACTORS AFFECTED BY
Two thousand years ago, Aristotle pointed out that the rule of law means rule of good law.Environmental enforcement needs considerate and reasonable legislation as safeguards. Since 1979, China has enacted nearly 30 laws, more than 600 regulations and more than 1000 standards concerning environmental protection. China has enacted environmental laws comparable in amount to other developed countries. However, these numerous and comprehensive environmental laws only look beautiful.In fact, although they have no major mistakes, they do not have any major impact either. They can hardly protect the environment or improve environmental enforcement. The legislative factors affecting environmental enforcement include but are not limited to the following: 3.1 A Lack of Legislation in Certain Areas
Although China has enacted many environmental laws and regulations, there are still many environmental protection fields that do not have any laws or regulations, such as the management of natural reserves, hazardous chemicals, alien invasive species and climate change, as well as the prevention and treatment of soil pollution. In these fields, the legal basis for environmental enforcement is not sufficient, which will absolutely harm the effectiveness of environmental enforcement.
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3.2
Laws that Are too Abstract to Enforce
This problem not only exists within the environmental legislation, but is also a common failing of Chinas legislation. Environmental laws in China are full of abstract or ambiguous provisions that authorize the State Council, the Ministry of Environmental Protection or the provincial governments to make specific regulations or rules, without any time limit. Environmental enforcement will encounter an awkward situation of having-no-legal basis-in-fact before these specific regulations or rules are enacted. Some statistics show that there are more than 140 authorizing provisions in about 30 environmental and natural resources protection laws. However, the State council, the Ministry of Environmental Protection and the provincial governments have utilized less than 70% of the provisions Additionally, among enacted regulations or rules, many were enacted long after being implemented, which severely limits the effectiveness of environmental enforcement.3 3.3 Some Environmental Law Provisions Are Unreasonable or Contrary to the Legislative Purpose
For example, Chinas Environmental Impact Assessment Law has a provision that allows construction programs to go through the relevant environmental impact assessment procedures after beginning construction. Because the environmental impact assessment is the main measure that may be used to fulfill the prevention principle, go through the relevant environmental impact assessment procedures after having begun to construct the original intention of having environmental impact assessment has been misconstrued. In practice, this article encourages the phenomenon of buying tickets after taking rides which tends to cause irreversible environmental harm. It also opens the floodgates for the local governments to blindly develop the economy. A lot of construction programs that have significant environmental impact acquire other agencies construction approvals before the environmental impact assessment may be approved by the environmental protection agencies, rendering the environmental impact assessment first procedure meritless. Under such circumstances, it is very difficult to enforce environmental laws and regulations. 3.4 Environmental Penalties Are too Lenient to Deter Environmental Violations
The so-called low cost of environmental violation means that penalties are too lenient for environmental violations. Take the administrative penalties as an example. Currently, the fine amount is wildly disproportionate to the benefit of environmental violation. Guilty enterprises would rather be fined than correct their violations. This kind of enforcement, which encourages environmental violations, has long been criticized by scholars and the public. During the amendment of the Law on the Prevention and Control of Water Pollution in 2007, many scholars, including the authors of this article, proposed to establish a daily penalty in the law that
would raise the cost of environmental violations. However, the legislature did not adapt this because a daily penalty would increase the burden of enterprises and harm the economic development. When environmental violators are not afraid of penalties, environmental enforcement will surely fail. Finally, the environmental laws overemphasize the interests of governmental agencies and ignore the environmental rights and interests of the public. 4 ENVIRONMENTAL ENFORCEMENT AFFECTED BY ADMINISTRATIVE FACTORS The administrative supervision system has the most direct impact on the efficacy of environmental enforcement. During the past three decades, the environmental enforcement agency at the national level was upgraded from the vice-ministerial level of the National Environmental Protection Bureau to the ministerial level of the National Environmental Protection Administration, then to the cabinet department level of the National Ministry of Environmental Protection. However, upgrading he agency did not strengthen environmental enforcement or improve the environmental situation. Major administrative issues which impact environmental enforcement include: 4.1 Local Environmental Protection Agencies Are Subject to Local Governments In the Chinese government system, environmental protection agencies are components of the local governments, meaning the agency directors are appointed by local governments, the agencies report to the local governments, and their funding comes from the local governments. Therefore, the local environmental protection agencies basically follow all the instructions from the local governments. With the motivation of governmental official evaluation system which put the GDP at the top of the list, the local governmental officials take various measures to interfere with environmental enforcement actions against the enterprises, in order to promote economical development. Local environmental protection agencies are forced to comply with the local governments to keep their jobs and the agencys funding support. In recent years, both the governments and academia have been actively discussing the possibility of vertical leadership in the environmental protection agencies, which could reduce the interference from local governments. However, this hasnt been enacted in practice. 4.2 Environmental Protection Agencies Have Encountered Difficulties in Fulfilling their Responsibilities for Unified Supervision and Administration of Environmental Protection
The Chinese environmental administration system is composed of a unified administration and an agency with divided responsibilities, which appears to be quite flexible. In reality, the responsibilities of the different agencies sometimes overlap, which frequently results in a lack of accountability in environmental enforcement.
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4.3
Limited Government Funding Affects the Capacity of the Enforcement Agencies
Based on the experiences of developed countries, for a country with fast economical development, the investment in environmental protection shall be 1-1.5% of national GDP for a period of time to effectively control pollution, and reach 3.0% to significantly improve environmental quality.4 However, until the end of the eleventh five year period, the investment in environmental protection did not t reached 1.5% of the national GDP in China. The lack of environmental protection investment is a direct cause of insufficient staffing and funding for environmental protection agencies, which can hardly meet the needs of environmental enforcement. 5 ENVIRONMENTAL ENFORCEMENT AFFECTED BY JUDICIAL FACTORS Most of the researchers have blamed the failure of environmental enforcement on systematic issues, legislative deficiency and the inner and outer limits on the environmental protection agencies during the process of environmental enforcement. These are all sound arguments. However, few researchers have focused on the judicial aspect. In fact, under the current judicial system in China, the attitude of the courts directly impact or even determine the actual results of environmental enforcement. According to current environmental laws in China, if a person or entity refused to comply with the penalty decisions made by environmental protection agencies, the environmental protection agencies need to apply to the courts for mandatory implementation, instead of taking direct measure including foreclosure, detention or freezing bank accounts for mandatory enforcement. However, it is unrealistic to expect that the courts will cooperate with the environmental protection agencys request for mandatory enforcement. In fact, many courts are not very cooperative when it comes to mandatory enforcement of the penalty decisions or other decisions by environmental protection agencies. The courts do not cooperate because of the low implementation fee5 for courts, great barriers to implementation6, and in many cases non-litigation implementation7 is not one of the main criteria to evaluate judges. Without the cooperation of courts, penalty decisions made by environmental protection agencies are unenforceable. This also wastes resources, discourages the environmental protection agencies and is detrimental to the credibility of the environmental protection agencies. In other circumstances, it may take a very long time for the courts to implement some decisions, which also seriously impacts the efficacy of environmental enforcement. According to the legal provisions, environmental protection agencies can only apply for judicial mandatory enforcement 60 days after they issue penalty decisions. It also takes a period of time (within 30 days) for the courts to review penalty decisions. If it also takes a period of time for implementation after courts review, the implementation may ultimately be useless anyway. At the same time, pollution and its adverse impact on environmental and human health continue.
It may even be too late where the courts implement the decisions within the time period required by laws---because sometimes the environmental violations may impose imminent threat to human health or environment itself---not to mention the delayed implementations. 6 CONCLUSIONS AND RECOMMENDATIONS Although over the past 30 years, China has adopted more environmental protection and resource conservation laws, regulations and various environmental standards, and environmental protection agencies have been strengthened, unfortunately the reality is still tough. On one side, environmental laws and regulations are increasing and environmental protection agencies are upgrading. On the other side, environmental quality is getting worse in general, and environmental enforcement is seriously compromised by the low cost of law violation. In order to solve this problem, we need to work on all aspects of the environmental enforcement, legislative, administrative and judicial systems. In the future, a number of areas need improvement. First, we need to improve the official evaluation system to raise the ratio of environmental protection. Also, we should adjust the way that financial resources and administrative responsibilities are divided among central and local governments, so that local governments will have enough funding for environmental protection. In addition, we should ensure legislative efficiency and quality, in order to make sure the legislation can provide better support for environmental enforcement and effectively resolve the environmental enforcement challenges we are facing. Furthermore, we should strengthen and guarantee that all levels of environmental protection agencies have the power to perform environmental supervision and administration. In the end, there is a great need for better judicial support for environmental enforcement in order to fully implement the decisions made by environmental protection agencies. 7 REFERENCES Wu Jingjing, The Environment has been Partly Improved but Remains Uncontrolled as a whole: Zhou Shengxian Talked about Exploring a New Way for Environmental Protection, available at http://news.xinhuanet.com/mrdx/2010-11/27/c_13624608.htm, last visit: 2011-4-23. 2 Wu Weizheng, the Macro Strategic Research Report on Chinas Environment released, Chinas environmental pressure is bigger than any other countrys, Peoples Daily, 2011/4/22. 3 Sun Youhai, Rule of Law and the Construction of A Resource-conserving, Environment-friendly Society, Environmental Protection, 2006(11), Pp 46-51. 4 Wu Shunze et al., Analysis and Suggestions on the Lack of Environmental Protection Funding in China, 3 China Human Resources and Environment (2007). 5 In China, if the administrative agencies apply to the courts for mandatory implementation, they need to pay implementation fee to the courts in advanced. The implementation fee is usually calculated by the amount of the penalty. The
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implementation fee is 50 RMB if the penalty is below 10,000 RMB. If the penalty is more than 10,000 RMB but less than 500,000 RMB, the implementation fee will be 0.5% of that amount. If the penalty is more than 500,000 RMB, the implementation fee will be 0.1% of that amount. About 90% of the environmental penalties in China are less 20,000 RMB. 6 Many environmental violators are simultaneously the local major taxpayers. Therefore, in many cases the local governments will obstruct the courts to implement environmental penalties. 7 In China, non-litigation implementation means that an administrative agencies made a penalty decision against a person or an entity who had violated the laws or regulations, and the violator didnt challenge the penalty decision through litigation or administrative review within the limitation, then the agency apply to the courts for mandatory implementation of its penalty decision. 8 BIBLIOGRAPHY OECD, Environmental Performance Review: China, China Environmental Science Press, 2007. Sun Youhai, Beyond the Environmental Storm: Research on the Legislation of Environmental and Natural Resources Protection in China, China Legal Publishing House, 2008. Wang Jin, Explain the Environmental Law: Problems and methods, Court Press, 2006. Wang Jin, The Chinese Path of Rule of Environmental Law: Reflections and Exploration, China Environmental Science Press, 2011. Wang Jin, et al, Thirty Years of Environmental Law in China: Have We Succeeded? Peking University Press, 2011(in press).
ENFORCEMENT OF ENVIRONMENTAL IMPACT ASSESSMENT REQUIREMENTS WASSERMAN, CHERYL Associate Director for Policy Analysis, Office of Enforcement and Compliance Assurance, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue NW, MC-2251A, Washington D.C. 20460, United States, wasserman.cheryl@epa.gov SUMMARY Environmental Impact Assessment (EIA) requirements are perhaps the most widely adopted environmental requirements by both individual countries and international organizations. In its simplest terms, for projects subject to EIA requirements, proponents must identify, assess, and publically disclose project details, predicted impacts on physical, biological and socio-economic environments, alternatives for avoiding and mitigating adverse impacts, and plans for mitigating and monitoring impacts. This documented assessment is then subjected to independent review and public comment procedures, the outcome of which is either rejection or approval of the project and/or EIA document with a commitment to carry out the project, mitigation and monitoring as proposed and accepted. EIA procedures are intended to provide a unique opportunity to identify and then to avoid and mitigate potentially significant adverse environmental impacts and to better integrate long and short term environmental, economic, and social concerns. However, full realization of the environmental, social and economic benefits of Environmental Impact Assessment requirements cannot be achieved without significant improvements in environmental governance. There is widespread recognition that follow-up monitoring and enforcement of commitments to mitigate and monitor are weaknesses in both developed and developing countries1. Furthermore, an unknown number of projects are constructed without having gone through EIA procedures resulting in damage to sensitive resources that might otherwise have been avoided if there were sufficient consequences to deter these practices. This paper is intended to accomplish two things. The first is to identify common compliance challenges faced by countries and international organizations alike and recent advances in EIA program implementation, monitoring and enforcement. The second objective is to inspire a concerted effort to promote and exchange experiences for more effective approaches to achieve compliance with and enforcement of EIA requirements. It is hoped that progress can be advanced under the auspices of the International Network for Environmental Compliance and Enforcement and associated regional enforcement networks, in partnership with the International Association for Impact Assessment, and international organizations such as the World Bank and regional Development Banks.
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EIA PROCEDURES AND REQUIREMENTS
The description of EIA procedures and requirements that follows focuses on EIA requirements applied to proposed projects, recognizing that EIA is increasingly applied to plans, programs and policies often referred to as Strategic Environmental Assessment. Further, within the context of EIA, impacts can be both adverse and beneficial, but for purposes of exploring enforcement the paper focuses on those that may be adverse. Countries and institutions differ as to what they call categories of proposed projects or specific steps in the process, but in general any EIA requirements for the most significant projects have the following in common, depicted in Figure 1 and Table 1: roject initiationPre-EIA process. P Screening: application/categorization. Scoping: terms of reference. Preparation of EIA documents. Independent EIA review and correction of deficiencies. Decision: EIA document, project, mitigation and monitoring. Incorporation of commitments into legally binding agreements. Project implementation. Auditing, monitoring and enforcement.
Figure 1: The Environmental Impact Assessment Process
Table 1: Responsibility in the EIA Process

Project Proponent 1. Initiate Project 2. Prepare EIA Application 3. Scope EIA Issues 5a. Prepare and Submit EIA Documents (Depends upon categorization), High Impact usually requires: - Executive Summary - Project and Alternatives Description - Environmental Setting - Assessment of Impacts - Mitigation and Monitoring - Environmental Management Plan Annexes: Technical detail and comments 4 Public participation throughout 6. Review EIA Document 5b. Correct deficiencies and respond to comment 7. Decision on Project 8. Incorporate commitments into legal agreements 9. Implementation of Project, Environmental Measures and financial assurance 10. Correct violation 10. Auditing, compliance monitoring and enforcement 2. Screening: Review EIA Application and Categorization 3. Prepare Terms of Reference and Scope EIA issues Government
Source: the author, B. EIA Procedures and Public Participation, EIA Technical Review Guidelines for Mining, Energy, Tourism. 2011.
A brief discussion of each of these steps follows, identifying what might be most relevant for compliance and enforcement: 1.1 Project Initiation: No Work may Begin without EIA Approval
No site clearing, site preparation or construction, may take place before the Environmental Impact Assessment (EIA) process is complete and government agencies or development banks either have approved or provided conditioned approval of a proposed project. Project proponents may take steps to initiate a
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project such as arranging for a site, establishing technical and financial feasibility and, with foresight, acquiring environmental expertise to assist in selecting sites and project designs which will avoid or minimize adverse impacts. 1.2 Screening: Application/Categorization
All EIA programs categorize projects and their environmental setting in order to focus the most rigorous EIA analysis and documentation on those projects that have the potential for significant adverse impacts. This is usually accomplished in implementing regulations by a triage system which distinguishes those projects with high, medium and low impact, sometimes with the help of an initial EIA for screening purposes. Information on the project and siteincluding for example, identification of sensitive ecosystems, endangered species, indigenous peoples or other vulnerable populations that might be affectedare taken into account in making the decisions on categorization. Because many countries publish lists of project types and sizes that fall into specific categories, the process of screening or categorization is sometimes left to the project proponent to self identify, selecting on their own the form or analysis to prepare and submit. Some EIA programs require submittal of an application or some other form of formal registration or notification by the project proponent. This application is then used to screen and categorize projects or to confirm the project proponents self-characterization. Violations that may be occur at this stage include submission of false information or mis-categorizing a proposed project so as to avoid requirements for more rigorous EIA analysis, or, in some instances, the failure to apply at all. In addition, many countries have requirements that prohibit a project proponent from segmenting projects so as to avoid categorizing a project as having potentially significant adverse impacts. Depending upon country rules, the prohibition on segmentation may apply to: a) segmenting project expansion so that only a first phase is presented, b) failing to include related projects essential to carrying out the proposed project such as transportation, mining, waste disposal, c) segmenting properties such that adjacent properties are used for different parts of an operation but which are, in reality, connected. The concept that connected actions must be assessed at a single point in time in an integrated EIA document is not universally recognized by countries implementing EIA requirements. 1.3 Scoping and/or Terms of Reference for Preparation of the EIA Document
Every EIA analysis involves some form of scoping to distinguish issues and concerns of relevance to decision making on the project, helping, albeit not always successfully, to avoid encyclopedic documents that can distract from real issues. Some countries and development banks issue a Terms of Reference or guideline to establish the scope and detail of EIA document preparation. Countries in North America and Europe, at least for high impact projects, require formal public scoping processes, including consultation with stakeholders and interested public,
to identify issues to be addressed in the EIA. Regardless of whether a formal step in the process or not, any preparation of an EIA involves scoping but often without the benefit of early public input. Many countries conduct a site visit prior to issuance of Terms of Reference or categorization of the project. The requirements for scoping and adherence to a Terms of Reference are not enforced against a project proponent per se and are usually part of program implementation affecting decisions to approve or disapprove a proposed project/EIA and whether additional information is requested before a decision may be made. Requirements to document scoping can be very helpful in identifying gaps and omissions when the EIA is completed. 1.4 Preparation of the EIA Document
There is usually a format and required content for the EIA document. For the highest impact categories this generally includes: E xecutive summary. G eneral information on preparers, purpose, project ownership and title to the land. Project and alternatives description. Environmental settingphysical, biological, and socio-economic-cultural. Assessment of impacts to the including direct, indirect and cumulative impacts. Mitigation and monitoring to address the identified impacts. Technical annexes. Environmental management plan mitigation and monitoring plan either as a separate document or as part of the EIA. The EIA addresses the full life cycle of the project, from site preparation and construction to operation and finally closure. Direct impacts are those directly associated with the construction, operation and closure of the project. Indirect impacts are those secondary to the project or induced by the project. Cumulative impacts adopt the perspective of the affected resource to examine the past, present and foreseeable future actions and threats that are affecting that resource. The impacts on the physical, biological and socio-economic-cultural environments are assessed off of a baseline projected into the future of what the world would look like in the absence of the proposed project the no action alternative For the preparation of the EIA document, there may be a requirement to utilize consultants who are certified or registered by the country for this purpose. In those instances enforcement would be required for use of non-certified consultants, falsification of credentials or falsification of information used to obtain credentials. 1.5 Independent EIA Review and Augmentation of the EIA Documents
The government EIA review staff assesses the EIA document for completeness, accuracy, significance of impacts, whether issues identified during scoping
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were addressed or impacts addressed through mitigation and monitoring, and compliance with any Terms of Reference or other requirements. More often than not, the document is deficient in some manner and there is a formal request for additional information. There may be time limits for the government and/or project proponent which must be met. Failure to provide complete information or to follow required elements of an EIA regulation or Terms of Reference issued by the government to guide the EIA preparation is not normally considered to be a violation per se. The consequence of course may be rejection of the EIA or official requests for additional information which would create delay. The failure to submit acceptable EIA documents at the outset often leads to a dance between the project proponent/consultants and the government officials, with information coming piecemeal leaving a fragmented picture of impacts and project details that are difficult for the public or other stakeholders to grasp. The types of lapses in the adequacy of the EIA document that typically occur include failure to provide sufficient detail on the proposed project and design considerations to properly assess impacts; failure to consider alternatives2; failure to assess indirect or cumulative impacts; failure to assess impacts on particular communities or resources and failure to identify endangered or threatened species. More fundamentally there may be failure to utilize predictive tools or flaws in their use. In most countries what is initially submitted is considered to be final except for additional information typically requested to fill in gaps or make corrections which may be submitted in the form of supplemental annexes or communications. In the U.S. context the initial submission is a draft which is to be altered based upon formal comment and government review before it is submitted as a final document, which results in greater integration of additional analysis within the EIA document. 1.6 Public Participation
The majority of country laws apply public participation requirements to EIA across a wide spectrum with differing laws and practices from country to country. All too often public participation is too late in the process to be either meaningful or influential, and the process does not allow sufficient time to resolve disputes or conflicts that might arise. Citizens have resorted to the courts to force public hearing and comment opportunities that were denied them in order to influence the outcome of the EIA process. In other words citizen suits are often the means for enforcement of public participation requirements. Public participation requirements may be directed at project proponents and/or government officials. Basically these requirements address: P ublic disclosurethe opportunity to hear. Public commentthe opportunity to be heard. Public responsethe opportunity to be listened to.
1.6.1 Requirements for Public Disclosure Countries differ as to the information and documents that are to be disclosed i.e. made accessible to the public, and what may be considered to be acceptable means of providing access. The complete EIA document may be offered in one jurisdiction and some of it held back as confidential in another with only the executive summary provided. In some jurisdictions, public access requirements may be viewed as having been fulfilled with the right to read a document in a particular location, without the right to make or have a copy. Web-based electronic access may be sufficient in one country but not in another. With the new developments in web-based tracking systems discussed in section 4, countries are able to provide immediate electronic access via the Internet to any and all documents from the application through decision, and at least two countries are taking full advantage of that opportunity. 1.6.2 Requirements to Solicit Public Comment (The Opportunity to be Heard) It is most common for the opportunity to be heard to be relegated solely to the requirement for a formal public hearing with the requirement on the government or project proponent to hold one. A broader public participation or consultation requirement is difficult to prescribe in advance as to what may be needed in a given situation to adequately consult with the public. Some countries require project proponents to prepare and submit a Public Participation or Consultation Plan which may or may not be subject to government and public review, but once adopted is required to be implemented. If there is a requirement for public scoping then there would be consultation with the public before an EIA is prepared to solicit issues to be addressed in the EIA very early in the process. There may also be a requirement for a formal period during which public written comments are solicited, sometimes in tandem with the government review of the EIA document submitted to them and sometimes following the process during which the government reviewers have already taken steps to ensure the documents are complete. As with disclosure, the new automated web-based systems are making it possible to share with the public the EIA document originally submitted, enabling the public to review and comment in parallel with the government review process. 1.6.3 Requirements for a Response to Comments (The Opportunity to be Listened to) There is no requirement to respond positively to every comment received. In most circumstances there is an obligation at least to consider public and stakeholder comments, which is not a requirement to accept each and every comment. To ensure implementation of public participation requirements in terms of response to comments, either by regulation or practice some jurisdictions have expectations that the EIA document will include either some or all of the following:
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summary of actions taken to engage the public and stakeholders. A A summary of comments. A summary of response to comments. Copies of actual comments submitted. 1.7 Decision
The decision may take several forms. It may be an approval, conditional approval, or a rejection of the EIA document or of a proposed project based upon the information in the EIA or lack thereof. It may be a formal finding about the environmental feasibility of the proposed project. It may be acceptance of the environmental management plan, or whatever the terminology might be for mitigation and monitoring plan, and environmentally important aspects of project design, operation and closure. These distinctions can be important to the outcome of the EIA process. Too much emphasis on the adequacy of the EIA document or a one-time determination of environmental feasibility reinforces the inadequate attention to ongoing compliance with commitments. All too often EIA requirements fail because they are perceived and implemented as a one-time event. 1.8 Incorporation of Commitments into Legally Binding Instruments
Some EIA programs rely on the submitted documents from the project proponents as the sole basis for legally binding commitments. To facilitate follow up and clarity of commitments being made, countries may require separate mitigation, monitoring and/or environmental management plans. Still other countries have the advantage of drafting their own conditions for approval in the decision document or in a separate permit or contract. 1.9 Implementation of the Project
The project should be built and operated as described in the EIA documentation as this is the basis for the impact assessment. Countries may or may not have mechanisms in place to entertain changes to the project and to determine whether a new or revised EIA document may be required. 1.10 Auditing, Monitoring, and Follow up Enforcement
The auditing, monitoring and follow up enforcement may be done by of the same unit responsible for EIA, or may be handled by a different unit or not at all. Somehow this responsibility should be clearly assigned and with accountability for results stemming from the EIA process. Some countries distinguish responsibilities by whether it involves the construction phase or operating phase and shift to other forms of environmental permitting when the construction phase is completed. However, EIA commitments run the life of the project through closure and these
commitments need to be carried over into other vehicles and provisions made for the smooth transfer of responsibility. 2 ENFORCING REQUIREMENTS AT THE FRONT END OF THE PROCESS: NO LAND DISTURBANCE OR OTHER PERMITS BEFORE EIA
A significant challenge to EIA programs is enforcement of the prohibition on site clearance and construction without the benefit of the EIA process and, in particular, illegal construction in protected areas, clearly undermining the fundamental purpose of EIA requirements. Consequences to deter these violations are needed in order to overcome the many pressures on project proponents to begin work on a site as soon as they have completed arrangements for site acquisition, financing, project design and technical feasibility studies. Time is money and once those processes are completed the project proponent wants to move ahead quickly. 2.1 Promoting Compliance Failure to fulfill EIA requirements is either out of ignorance or deliberate avoidance. EIA programs need to be creative in enlisting the support of lending institutions and other permitting programs to ensure they reinforce EIA requirements as the first hurdle. They also can play a role in informing developers to understand and comply with their EIA obligations. Outreach explaining the underlying reasons for EIA, how to avoid pitfalls, how to comply and the consequences of failing to comply also may help particularly if linked with efforts to inform them of pollution prevention and cleaner production opportunities. A half-day program was developed for use in Central America and the Dominican Republic for industry leaders on EIA, environmental management systems and pollution prevention. Combining these three topics can draw industry leaders who may not be interested in an event solely on EIA.3 Another means of promoting compliance to avoid construction in protected areas, for example, is to make the mapping information on protected areas more readily available (see Chapter 4). 2.2 Detecting Violations EIA programs are not usually out in the field looking to find more projects that should have been submitted EIAs. To identify the outliers it is best to develop eyes and ears on the ground and in the field much as the work of police, or local governments and citizens is carried out. To relate construction or site clearance activities to EIA approval status requires readily available information. Panama and Costa Rica require that any site or construction work include clear posting of the required EIA approvals and permitting. Further, new tools described in Section 4 will greatly facilitate detection and access to information on the status of EIA approvals particularly since signage may not be visible for large sites.
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2.3 Enforcement Response to Violations Typically it is only the courts that can halt progress on a project that is moving forward without EIA approval i.e. injunctive relief. However this is a costly consequence and one which is understandably undertaken only with great reluctance. However, just last year, Thailands relatively new Administrative Court called a halt to 76 projects in the Ma Ta Phut industrial estate when a citizen group challenged their construction without having gone through the EIA process. This sent shock waves throughout the region, given the costly impact of stopping construction, particularly on this large a scale. In this instance after an adjustment of the list of toxic chemicals triggering the EIA process from 18 to 11, the number of halted projects was whittled down to 2, but this impact has been felt regardless. A courts willingness to impose injunctive relief to stop construction while the project proponent complies with EIA requirements may not offer sufficient disincentive for a project proponent to comply with EIA requirements. Although delay is a cost, some still may be willing to incur the risk of getting caught. Illegal construction in protected areas or buffer zones has resulted in the cutting of mangroves, filling of wetlands and destruction of coral reef without regard to consequences. This damage may result from deliberate or inadvertent destructive actions because boundaries for protected areas are often imprecise and this weakness might be exploited by developers of sites which are more attractive because they are near or even in protected areas. In such instances it is difficult but possible to assess damages and to require restoration of the damaged areas, if the construction will not be allowed to continue. Certainly, this approach is not sufficient if in fact irreversible damage has been caused. Enforcement authorities are discussed further in Section 4. 3 ENFORCING COMMITMENTS TO PROJECT DESIGN, MITIGATION AND MONITORING AT THE BACK END OF THE PROCESS 3.1 Enforceable, Auditable Commitment Language
Through whatever vehicle is appropriate, commitments in or resulting from the EIA should be written in a manner which clearly provides the basis for follow up monitoring, auditing and enforcement. The Principles of Environmental Compliance and Enforcement describes enforceable commitments as those that make it clear who is responsible, for what, by when, and how compliance would be determined. The what would be sufficiently specific so as to establish clear expectations for performance. The EIA process often results in inadequate detail on the proposed project, mitigation, monitoring, and may even lack commitment language. Where there is such language, a lack of quantitative performance expectations and associated commitment to monitor for those measures also will impede enforcement.
Ensuring that commitments stemming from EIA requirements are enforceable and auditable is particularly challenging for countries which rely upon the EIA document itself or a supplemental Environmental Management Plan because the commitment language is typically written by consultants who heretofore have not been trained or experienced in drafting enforceable language. Where countries or institutions do independently draft documents describing the project assumptions and mitigation measures they are in a better position to ensure that they draft the language as requirements they are prepared to monitor and enforce, (e.g. in decision documents or in vehicles such as an environmental permit, concession and/or contract). Regardless, the commitments are often written in vague, difficult to audit language and potentially unenforceable terms. Experts from both environment and sector ministries in Central America and the Dominican Republic countries and the United States have developed three EIA Technical Review Guidelines and Terms of Reference for mining, energy and tourism with the support of U.S. AIDs Environment and Labor Excellence Program and the Central America Commission on Environmental and Development.4 These guidelines attempt to address some of the challenges noted above, including: S ufficient detail on the proposed project and mitigation to support follow up. Auditable commitment language in an appropriate vehicle to capture EIA commitments. Emphasis on quantitative performance standards. Linking mitigation commitments to monitoring. Required contents of a monitoring plan.5 Contingency plans for actions that will be taken if monitoring results show that a quantitative limit has been exceeded. Countries also might consider the adoption of boiler plate language (standard conditions) to elaborate on certain types of commitments in monitoring and mitigation measures that would provide the necessary auditable language. For example, what it means to commit to revegetate or reforest a disturbed area and other examples are provided within the mining, energy and tourism guidelines. 3.2 Compliance Monitoring
Monitoring can be undertaken for three different purposes: a) project monitoring: is the project built/operated/closed as described in the EIA documents; b) performance monitoring: does the level of performance of mitigation comply with applicable standards and other measures of performance committed to in the EIA documents; and c) impact monitoring: are the predicted impacts different or greater than those in the EIA document. The first two of these are directly related to compliance and enforcement issues. The third usually is not but may be a responsibility of a project proponent if prediction of impacts is too uncertain for the government officials to decide that proposed mitigation is adequate, a determination has been made by the environmental authority that an error in predicted impacts would not cause irreparable harm, and there is general agreement that the project can proceed with
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commitments to monitoring and contingency plans for addressing impacts once they are better known. This process is often referred to as adaptive management. Several approaches are used to monitor compliance, all mutually reinforcing: elf-monitoring, reporting and record keeping by the project proponent. S Citizen monitoring and reporting in the form of complaints. Government inspection. Third party auditing. 3.2.1 Self monitoring, Reporting and Record Keeping by Project Proponents
As noted in section 3.1, holding project proponents accountable for monitoring their own performance with quantitative levels of performance expectations implements the polluter pays principle. Other forms of monitoring only provide snap shots of performance at a single point in time. In order to assess compliance with EIA commitments, monitoring data is needed over an extended period of time. Moreover, auditing or government inspections will usually rely upon self monitoring and reporting carried out by the project proponent. As noted above, the recently developed EIA Technical Review Guidelines for mining, energy and tourism provide additional emphasis on monitoring and what constitutes an adequate monitoring plan. 3.2.2 Citizen Monitoring Those close to a project are often in the best positions to identify problems and pursue redress. Citizen complaint processes are common to all environmental programs. However, information on the details of the project design or commitments made during the EIA process often is difficult to access, making citizen monitoring more difficult for holding project proponents accountable for EIA commitments, to identify lapses, to contribute information and views for EIA preparation as well as assuring follow up. 3.2.3 Government Inspections Governments should preserve their unique role as protectors of the public interest, and carry out random and targeted government inspections-- even where the inspection function is augmented by independent third party auditors. Further, resources will need to be committed to enforcement follow up to deficiencies noted in the third party audit reports and for government inspections to corroborate issues raised by third party audits to support an enforcement response. 3.2.4 Third Party Auditing To augment government capacity to inspect projects for compliance with EIA commitments one approach that is being put into place is the use of third party auditors paid for by the project proponent. 6
Implementing third party auditing requirements has raised several issues which are being addressed within Central America: Auditor competence. Augmentationnot replacement of government inspection. Auditor Independence preventing conflict of interest. Mutual recognition of auditor certification.
To establish auditor competence, countries are shifting from mere registries of consultants, to auditor certification programs with requirements for training, experience, and personal competence. There are several international organizations that certify environmental auditors and are working together to ensure mutual recognition.7 Rules also are needed to prevent conflict of interest between auditors and those being audited. Independence, ensured in part by an absence of any conflicts of interest, is essential to credibly audit for compliance. Auditors who also serve as consultants have a vested interest in being perceived as desirable for hire for either purpose, including being rehired to perform an audit. Defining conflict of interest can be challenging as the effort to isolate auditors with an interest must be balanced against the possibility of eliminating those most experienced with EIA for a particular type of business enterprise. Some governments are making random assignments, or approving the selection of an auditor by the project proponent to provide a counterweight to the pressures on auditors to accept the status quo and seek repeat business in addition to other measures to reward accuracy and completeness. 3.3 Enforcement Response to Violations
Failure to meet commitments should be followed by enforcement in order to compel actions needed to protect the environment, cultural and economic interests. One of the most significant challenges facing those who want to enforce EIA requirements is the lack of practical enforcement authorities, mechanisms and sanctions adequate to act as a deterrent for the types of EIA-related violations. These challenges include: nforcement authorities limited to where there are damages or criminal conduct. E Gaps in authorities to address the types of offenses involved in EIA procedures. Inadequate penalty levels to provide a deterrent to violations. Lack of enforcement response policies to define and direct institutional responses to violations of EIA requirements. 3.3.1 Enforcement Authorities Based on Damages and Criminal Conduct
Most countries rely on damage assessment to determine the primary sanction through criminal enforcement authorities. However, these enforcement authorities are poorly designed for requirements for information, situations in which there are
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no discernable damages, or where those damages cannot be easily assessed in the absence of the EIA document itself which would provide a baseline and predicted impacts. This leaves a significant gap in the ability of the countries to respond to failures to prepare an EIA or failures to meet commitments for which damages cannot be readily assessed. Damage assessment also is a difficult and uncertain process, greatly encumbering the ability of the government to respond effectively. Certainly there is widespread recognition that there is a need for training and models to facilitate this process.8 Violations which do not rise to the level of environmental damages require different authorities, methodologies and alternative means of winning an enforcement case. Examples include violations related to: hange in the project or additional activity at the site than described in the EIA. C EIA consultant is not registered or has a conflict of interest. Falsifying information, e.g. wrong location coordinates for the project. Failure to pay the environmental guarantee, renew economic/financial information on the project or obtain required bonding. 3.3.2 Developing Enforcement Enforcement Authorities Better Suited to EIA
Countries in Central America and the Dominican Republic are considering ways to expand their repertoire of enforcement sanctions to enable government program officials to pursue sanctions and compliance schedules through administrative and civil judicial authorities for violations which fall short of criminal behavior, significant recovery of damages or repeat offenses. By building up civil administrative and civil judicial options, they are better able to address types of non-compliance with EIA requirements that are arising on a more regular basis. Table 3 summarizes the enforcement authorities of each of the Central America and the Dominican Republic countries to enforce EIA requirements and highlights provisions which are adopted for wider use in a Model EIA Enforcement Regulation.9 3.3.3 Enforcement Response Policies It is important for countries to develop explicit enforcement response policies to provide the kind of transparency, consistency and predictability that the program needs to build the expectations of consequence and trust that are needed. This allows countries to refocus enforcement and sanctions to underscore their environmental priorities. Many of the country enforcement responses are directed toward repeat violators, and, in the absence of close scrutiny, waiting for detection of repeat violations may not be a successful strategy if they are difficult to identify in the first instance or unlikely to be repeated. Instead of focusing enforcement sanctions on repeat offenders or offenses, countries can consider instead a focus on projects in environmentally sensitive areas, or other environmentally based prioritization schemes.
3.3.4 Citizen Access to Justice
Citizen suits against project proponents and/or government agencies have forced them to take action where EIA procedures are not followed or commitments are not met.10 Hurdles for citizen groups to gain access to the courts are well documented elsewhere. 11 4 WEB BASED AUTOMATED TOOLS PROMISE IMPROVED EIA COMPLIANCE
EIA programs are paper rich and information poor. Data needed to identify environmental, social and economic concerns and impacts are distributed among many different institutions within and outside government. The often lengthy narrative in EIA documents is difficult to access, distribute, distill and track for compliance with commitments and management purposes. Checking on whether new construction has received EIA approval can be daunting. New advances in computer and web-based tools are allowing fundamental improvements in how the EIA process is carried out and helping to address some of the challenges to EIA compliance and enforcement. One example is in Central America and the Dominican Republic where cooperation with the United States has made two tools available: N EPAssist, developed by US EPA and deployed in six countries12; and The web-based automated administrative EIA tracking system developed and deployed in five of the countries by USAIDs Environment and Labor Excellence consultants.13 The two applications are being deployed together and, with significant investment of time and energy by the national EIA program managers and staff, it is changing the way they are implementing their programs. The web-accessible tracking of EIA processing from receipt of applications through to auditing of commitments provides both transparency and accountability. Features include Internet access to all EIA documents which are scanned from the hard copies, tracking of commitments, results and frequency of both audits and inspections, and results of monitoring and reporting to help identify and target problems. The decision to make the systems public by the governments of the Dominican Republic and El Salvador makes it possible for local officials, police, those responsible for safeguarding protected areas and the public to check whether new construction has been approved. Coupling the NEPAssist application with the administrative tracking system, allows the program to identify projects more easily through geospatial mapping and visualization of actual satellite imagery and to apply screening information to confirm the veracity and completeness of applications and EIA documents, and
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to help set priorities for review, inspection and enforcement. The applications report feature with analytical yes-no questions are designed to match questions on the EIA application forms for which data layer information is available. If the public or local officials observe construction at a site, they can check as to whether it has an EIA approval, helping to monitor compliance with EIA requirements. It also enables EIA review staff to quickly identify whether a project may raise issues with protected areas or boundaries and the features which provide information on environmental features at differing distances this is particularly helpful given boundary uncertainties with protected areas. 5 DECIDING WHO REQUIREMENTS TO HOLD ACCOUNTABLE FOR EIA
Project proponents clearly are accountable for adhering to EIA requirements to prepare EIA documents and carry out procedures appropriate to the categorization of their projects and site specific circumstances. They are also responsible for hiring qualified and independent consultants and to take responsibility for the description of the project, consideration of alternatives, engaging in stakeholders and the public and implementing the measures for mitigation and monitoring committed to in the EIA process. However, that accountability can be blurred with enforcement provisions directed at consultants and government officials. The list of offenses and sanctions in effect in the countries of Central America and the Dominican Republic in Table 2 highlights some of those provisions. In regard to consultants, enforcement authorities have been designed to hold the consultants accountable for the quality of their work. It can be difficult to draw a distinct line between the project proponent and the consultant in that regard since the quality of EIA documents may be affected by the timing and manner in which environmental consultants are employed by a project proponent and the resources provided for them to complete their work. To enforce solely against consultants by-passes the responsibility of the project proponent and could serve to reinforce a system in which the project proponent can remain at arms length from the EIA process even to the point of not truly buying into the level of mitigation and monitoring committed to in the EIA documents. They should be held accountable to those commitments and forced to take the process more seriously. According to the enforcement authorities highlighted in Table 2, government officials may be in violation for failure to make a timely approval of EIA documents, accurate prediction of impacts or project categorization. The potential for sending government reviewers to jail for these types of offences seems to overshadow the provisions that ensure project proponents are accountable for accurate disclosure, avoidance, prevention and mitigation of adverse impacts. Of course, many countries are concerned with both the competence and power of government authorities and the possibility they will overstep that authority or become corrupt. In that regard, one might think that it would be sufficient to create administrative mechanisms
for addressing competency and efficiency, and appeal procedures to ensure that government officials have not been biased, arbitrary, or negligent in carrying out EIA or other programs. 6 EIA ENFORCEMENT INITIATIVE FOR INECE AND PARTNERS
The author encourages INECE partners to embark on an initiative designed to focus attention on and enhance capacity internationally for enforcement of environmental impact assessment (EIA) requirements by building consensus on key principles for improving follow up and compliance in the EIA process, and by exchanging experiences, lessons learned and best practices. The Asian Environmental Compliance and Enforcement Network (AECEN), and the Central American Commission on Environment and Development (CCAD) have already broken new ground on the issue. The following new products provide a starting point for such an exchange: E IA Technical Review Guidelines and Terms of Reference for mining, energy and tourism. New tools such as the web-based administrative tracking systems and NEPAssist GIS based application. The proposed model EIA Enforcement Regulation. Auditor and consultant certification programs. The International Association for Impact Assessment, World Bank, and regional development banks are essential partners in this endeavor. Fundamental changes in the EIA process are needed if the outputs from that process are to lend themselves to follow up auditing/monitoring/enforcement. INECE should encourage each of the regional environmental compliance and enforcement networks to take up this project and for INECE, the International Association for Impact Assessment and the World Bank/regional development banks to work to support them on a global basis: 1) to identify common challenges and lessons learned from experience in addressing them, 2) to share training materials, procedures and tools, and 3) to work toward articulating principles for moving forward to address compliance with and enforcement of EIA Requirements within the existing framework of the Principles of Environmental Compliance and Enforcement. 7 CONCLUDING REMARKS
Attention to compliance and enforcement of EIA requirements is timely. However, to effectively achieve compliance with and enforcement of EIA requirements will require some fundamental changes in environmental governance, including:
Table 2: EIA Enforcement Authorities, Sanctions, Incentives in CAFTA-DR countries
Authority Costa Rica Dominican Republic El Salvador Guatemala Honduras Art. 85/ 86 Art. 48 Incomplete Resolution Art.86 Art.86 Art.86 Art.86 Art.86 Art.86 Art. 90 Art. 93/42 Art. 90 Yes Yes Yes
Applies to
INFRACTIONS Art.93 Art.93 Art.86 Art. 33/100 Art. 32 Art. 32 Art. 31
Government Failure to meet review deadlines
Government Administrative appeals
Proponent
Initiate activities without environmental viability/permit
Proponent
Failure to meet environmental commitments
Government Provide environmental permit when proponent has not complied with the requirements
Government Refusing the licensee use or approval of natural resources
Proponent
Failure to pay the fee/ make a payment
Proponent
Emit pollutants that violate the permissible levels set by regulation
Proponent
Alter or falsify information
Proponent
Failure to make restitution
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Proponent
Prevent Inspection
Nicaragua Code
Highlighted Authorities: Now in Model prepared by USAID/Environment and Labor Excellence Program
Authority Costa Rica Dominican Republic El Salvador Guatemala Honduras Art. 93 Nicaragua Art.88 Yes Art. 85 Yes Art. severity Art. 94 Yes Art.87 89
Applies to
Highlighted Authorities: Now in Model prepared by USAID/Environment and Labor Excellence Program
SANCTIONS Art. 96 Yes Yes Art. 33/100 Yes
Proponent
Limited to repeated offense
Proponent
Recovery of Environmental Damages
Government Failure of government to meet review deadlineslegal Art.101 remedy Art.99
Consultant
Suspension of Registration of consultant
Government Administrative sanctions against responsible parties Art.102 removing authority over project of those who may e.g. give false information to expedite project approval Art.105
Proponent
Power to order closure/cease /suspend
Art. 85
Proponent
Public notice of failure
Proponent
Schedule to correct
Proponent
Criminal Sanctions
Proponent
Economic fines
INCENTIVES
Awards
Bond reduction
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B roadening of the institutions engaged and committed to the success of EIA. Ensuring commitments resulting from the process are in terms that can be readily complied with, monitored, audited and enforced. Developing ways for commitments and follow up actions to be accessible, and trackable. Enhancing public and government wide access to EIA documents and commitments. Acquiring new enforcement authorities, tools and sanctions better suited to EIA requirements. Augmenting compliance monitoring with third party auditing. New web-based tools being introduced make monitoring of commitments and identification of those attempting to construct without the benefit of the EIA process more efficient and effective. Engaging local government and the public in the process through greater transparency will enhance the quality and timeliness of decisions and the robust oversight of the outcomes from the EIA commitments to project location, site configuration, design, infrastructure, mitigation and monitoring for the life of the project. New approaches to improve the quality of EIA documents and follow-up through consultant and auditor certification programs will provide a strong basis for making the kinds of changes to EIA documents and procedures necessary for supporting monitoring and enforcement. 8
1
REFERENCES
Much of the information in this paper is the outgrowth of work over the past three years with 5 countries in Central America and the Dominican Republic in the Program to Strengthen EIA Review under the environmental cooperation for the Dominican Republic-Central America Free Trade Agreement free trade agreement with the United States. The program includes training, collaborative development of EIA Technical Guidelines and Terms of Reference for mining, energy and tourism, tools for improved program implementation, consultations with a range of institutions in each country and many extended discussions among EIA Directors from the 6 countries culminating in a working paper with observations about current challenges and potential reforms that will be shared and discussed with each of the Ministers to develop their own reform agendas. In that process follow up monitoring and enforcement of EIA requirements consistently has been one of the key challenges. In Asia, the results of a Rapid Assessment for Identifying Capacity Challenges and Programming Opportunities September, 2009, carried out by the Asian Compliance and Enforcement Network (AECEN) Secretariat concluded that the main challenges are inadequate mechanisms to enforce implementation of EIA requirements and that sanctions are too small to act as a disincentive. In the United States, after 42 years of initiating and implementing EIA requirements, the Council on Environmental Quality, Executive Offices of the President, created by the National Environmental Policy Act to oversee U.S. EIA requirements just this past year issued new guidance on Monitoring and Mitigation responsibilities of Federal Agencies who are the focus of the U.S. EIA requirements.
Although most country EIA laws explicitly require consideration of alternatives, this is notoriously absent or poorly developed in submitted EIA documents and often officials find this requirement too difficult to enforce. Alternatives are different ways to achieve the same purpose and need that might be more environmentally benign, i.e. alternative sites, site configurations, size, staging, pollution control, and means of providing infrastructure to support the project. Officials responsible for implementing EIA laws sometimes view their authority as limited to what is contained in the Terms of Reference or submitted EIA document. Even in circumstances in which public comments identify better ways to address their concerns, the combination of time deadlines, comments taken late in the process, the lack of conflict resolution mechanisms or authority to accommodate them present high barriers which are likely to only be overcome in instances in which impacts are too large and pockets too deep to ignore. 3 See EIA Technical Review Guidelines: Non-Metal and Metal Mining; EIA Technical Review Guidelines: Energy Power Generation and Transmission; and EIA Technical Review Guidelines: Tourism Projects. 4 See Ibid Note 4 EIA Technical Review Guidelines. 5 Monitoring plan --- See EIA Technical Review Guidelines: Non-Metal and Metal Mining, Chapter G. Mitigation and Monitoring Measures, Section 8 Auditable and Enforcement Commitment Language, Water Quality Monitoring Example. 6 In Central America, the regional entity, the Central American Commission on Environment and Development (CCAD), has been working to help all its member countries and the Dominican Republic to establish requirements for utilizing third party auditors to confirm EIA commitments are being met with certification programs for both auditors and consultants. Thailand is one country that has had a consultant certification program in operation for many years. An aprocrophile story is that certified consultants made a fatal error in preparing an EIA for a thermal power plant only to discover that they neglected to include the impact on coral reefs, something that cost the Minister his position and underscores the importance of public participation, following internationally accepted EIA procedures and not just relying on technical know-how of individual consultants in the certification process. 7 Internal auditing pioneered by the Institute for Internal Auditing (IIA) developed the first standards and certification and are now recognized internationally as the foundation for auditing standards. ISO 14000 environmental management standards include standards for auditor certification. The Board of Environmental (Environment, Health and Safety) Auditor Certification which is a joint program of the IIA and Auditing Roundtable working internationally to assist in this process for environmental, health and safety audits. 8 Damage assessment models have been developed in the United States to address natural resource damages for a limited number of programs. See A Primer on Natural Resource Damages (NRD) available under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the Oil Pollution Act (OPA). http://www.epa.gov/superfund/programs/nrd/primer.htm and The Natural Resource Assessment and Restoration Handbook prepared by the Bureau of Land Management, U.S. Department of the Interior, Rel. 1-1712, May 27, 2008.
2
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See Pochet, German, Model EIA Enforcement Regulation U.S. USAID Environment and Labor Excellence Program, June, 2011. 10 There are several observations about common challenges citizens face as a force for compliance and enforcement of EIA requirements. First, courts defer to environmental agencies for decisions on substantive EIA review issues unless there is clear bias or arbitrary action. Since the expectations for the content of EIA analysis can be subject to case specific judgment, courts have shown reluctance to override agencies even if they miss glaring deficiencies in an EIA during their review. This forces challenges to decisions to approve an EIA to overcome a high hurdle. Second, it is easier to challenge actions which courts can identify as clearly illegal, in violation of specific requirements in law and as commitments to action that result from the EIA process. This puts even more importance on the Environmental Management Plan or its equivalent, that is clearly a set of requirements the project proponent must meet, following EIA approval. 11 Kravchenko, Svitlana, Citizens Environmental Enforcement in Ukraine, Fifth International Conference on Environmental Compliance and Enforcement, Vol. 1, p. 145-152 (1998). 12 EPAs NEPAssist application is a GIS and web-based analytical tool using a nonproprietary software developed following 8 years of working with 10 EPA regional offices with diverse data needs. It enables EIA reviewers to: map a proposed project using a drawing tool, coordinates, or other locators; manipulate project boundaries and provide distance information to physical and land use features; accesses and instantaneously maps distributed data from many different sources selected by the user; visualize the project setting using satellite imagery on which other data is spatially displayed; generates a pre-programmed report on a series of yes-no questions on presence or proximity of key features where data layer information is available; enables the user to change parameters and assumptions; and enables the user to go behind the data to examine meta datasource and date of the data and also to identify the names and locations of particular features that may be identified by the analysis. Other countries adopt their own names and interface, use their own data sets, and develop their own analytical questions. They are trained to add and remove data layers in the future. The application and data reside elsewhere so with a password and internet access any EIA reviewer can use the tool on their desktop. Deployment of the tool has been accompanied by inter-ministerial workshops and arrangements for data sharing, some of which will be phased in over time.
9
BIBLIOGRAPHY AECEN Secretariat, Building Capacity for Effective Implementation of Environmental Impact Assessments in Asia: Rapid Assessment for Identifying Capacity Challenges and Programming Opportunities September 2009, funded by the U.S. Agency for International Development. EIA Technical Review Guidelines: [ mining, energy, tourism] Regional Document prepared under CAFTA DR Environmental Cooperation Program to Strengthen Environmental Impact Assessment (EIA) Review, prepared by CAFTA DR and
US Country EIA and Mining Experts with support US Agency for International Development Environment and Labor Excellence for CAFTA-DR Program, U.S. Environmental Protection Agency, and the Central American Commission for Environment and Development (CCAD) available in English from USEPA, and in Spanish from CCAD website, http://www.ccad.ws/. EIA Technical Review Guidelines: Non-Metal and Metal Mining EPA/315R110002/A/B May 2011 EIA Technical Review Guidelines: Energy Generation and Transmission EPA/315R11001/A/B May 2011 EIA Technical Review Guidelines: Tourism Projects EPA/315R11003/A/B September 2011 Gu, Lixin and Sheate, William R., Institutional Challenges for EIA Implementation in China: A Case Study of Development Versus Environmental Protection, Environmental Management Vol. 36, No. 1, pp. 125142 (2005). Hookway, James and Watcharasakwet, Wilawan, The Wall Street Journal, Thailand Tightens Environmental Regulations, March 4, 2010. Kravchenko, Svitlana Citizens Environmental Enforcement in Ukraine, Fifth International Conference on Environmental Compliance and Enforcement, Vol. 1, p. 145-152 (1998). Kravchencko, Svitlana, Current Trends and Practices in Public Participation in Environmental Decisionmaking in the Newly Independent States (1998). Regional Environmental Center, Doors to Democracy, http://archive.rec.org/REC/ Publications/PPDoors/NIS/overview4.html, July 19, 2010 NECEand 3). Osgood, Abby, Memorandum to Cheryl Wasserman, International Experience in Enforcement of EIA Requirements July 30, 2010, Pace University Law School summer law clerk, U.S. EPA, reviewing three cases studies of NGO suits involving EIA: 1) Belize: Macal River Upstream Storage Facility (MSRUF), commonly referred to as the Chalillo Dam Project, 2) China: Shanghai Dynasty Yachting Club, and 3) Ukraine: Sosnivka and the Ecopravo-Lviv Suit. Pochet, German, Model EIA Enforcement Regulation U.S. USAID Environment and Labor Excellence Program, June, 2011. Proceedings: Regional Workshop on Environmental Impact Assessment in Asia: Good Practices and Capacity Needs, June 9-10, Manila, Philippines, U.S. Agency for International Development (AID), Asian Development Bank (ADB) and the Asia Environmental Compliance and Enforcement Network (AECEN). Sutley, Nancy H. Chair, Council on Environmental Quality, Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated Findings of No Significant Impact, January 14, 2011.
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http://www.whitehouse.gov/administration/eop/ceq/Press_Releases/ January_14_2011. Wasserman, Cheryl et. al. Strengthening EIA Review in CAFTA DR Countries: Recommendations for Institutional, Procedural and Management Reforms, March, 2011. Wasserman, Cheryl, The Principles of Environmental Enforcement, Second International Conference, Budapest, Hungary, Pp 13-169, INECE publication and U.S. Environmental Protection Agency, July 1992.
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TRACK E: NON-TRADITIONAL APPROACHES

INTEGRATION OF ENVIRONMENTAL DISCLOSURE INTO REGULATORY MANAGEMENT: THE CASE OF THE AKOBEN ENVIRONMENTAL RATING PROGRAMME ALLOTEY, JONATHAN,1 SEKYI, RANSFORD,1 FAABELUON, LAMBERT,1 ERQUAYE-TETTEH, ESI NANA,1 AFFULL, HARON HARRISON,1 SARFOAFRIYIE, YAW,1 FOROCCO, SAEED, 1 and AFSAH, SHAKEB2 AKOBEN Team, Environmental Protection Agency (EPA), PO Box M326 Accra, Ghana ,www.epaghanaakoben.org
1
Environmental Rating & Disclosure Specialist, Performeks LLC, Bethesda, Maryland, US,www.performeks.com
2
SUMMARY On November 24, 2011 the Government of Ghanas Environmental Protection Agency (EPA) launched an environmental rating and disclosure initiative called the AKOBEN program. This marked a new trend in environmental transparency and it redefined the regulatory management model at Ghanas EPA. Now along with the environmental impact assessment (EIA) law and the legal compliance system, the AKOBEN program created additional compliance incentives by leveraging the power of communities and the media through disclosure of environmental rating of companies. Under the AKOBEN program, each participating company received a color codeGold for excellent, Green for very good, Blue for good, Orange for unsatisfactory and Red for poor. These colors are then disclosed to the public through a formal media event. In this paper we describe the evolution of the AKOBEN program and the preliminary results on how the companies in the mining and manufacturing sectors have started to improve their environmental performance. The experience of Ghana shows that the color-code format for evaluating and rating environmental performance of companies is an effective approach. It is recommended for consideration and adoption by other countries in Africa. 1 INTRODUCTION
Since the fall of totalitarian regimes in the 1990s, a wave of democratization has swept across the globe. This has been aided by the spread of information communication technologies which has brought the world closer. This resulted to openness,
transparency in the governance of nations, institutions and organizations and also at local, national, regional and global levels. This trend has resulted with the public demanding accountability and involvement in governance. The management of the environment has not been left out (Afsah, Laplante and Wheeler 1996). 2 BACKGROUND In Ghana efforts at environmental regulation begun with the establishment of the Environmental Protection Council in 1974, two years after the first United Nations Conference on the Human Environment. This Council was primarily an advisory and research organization. It had no power to enforce any measure for improving the environment or preventing damage to the environment. A first attempt to institute the environmental impact assessment system was unsuccessful as it was feared that it will slow down development. However when the Economic Recovery Programme was launched in 1983, the economy was in decline due to the combined effects of poor weather, institutional rigidities, inappropriate economic policies and internal and external shocks. The Economic Recovery Programme resulted in a positive growth but not without social and environmental cost. This led to a recognition that the sustainability of economic and social development depends on proper and responsible management of the natural resource base and the environment. The Government therefore directed that EIA should be applied to some key sectors in 1989. Prior to this in March 1988, the Government of Ghana initiated a major effort to put environmental issues on the priority agenda through the preparation of the National Environmental Action Plan. The Plan called for the urgent restructuring of the Environmental Protection Council with necessary political backing as well as minimum level of enforcement powers to enable it carry the additional responsibilities. This call led to the transformation of the Environmental Protection Council to the Environmental Protection Agency (EPA) in 1994 with regulatory powers. The EPA put in place an EIA system which required that all new development activities go through the EIA process and secure environmental permits before start of operations. Also all existing undertakings were to prepare environmental management plans. With these instruments in place, it was incumbent to ensure that the regulations are enforced and complied with. With the passage of the Environmental Assessment Regulations, LI 1652 in 1999, the EPA considered environmental disclosure as a possible policy tool. This would make the EIA system comprehensive with a component to ensure that commitments made by developers enforceable. However in developing countries strict enforcing of rules can have serious social and economic costs thus trade-offs have to be accepted to achieve environmental objectives. These considerations in addition to the provisions in the National Environment Policy informed the type of disclosure-with-enforcement regime to adopt. One of the aims of the National Environment Policy is to put in
place appropriate incentives and sanctions to ensure compliance and enforcement of regulations. It was also guided by the following principles of the National Environment Policy:
Use of the most cost effective means to achieve environmental objectives, use of incentives in addition to regulatory measures and public participation in environmental decision-making.
Building on the principles of public participation mandated by the National Environmental Policy, Ghanas EPA created the AKOBEN program, an environmental performance rating and disclosure. The history of EPAs effort to launch an environmental disclosure is shown below. Figure 1: Implementation History of AKOBEN Program
ORIGIN OF THE AKOBEN PROGRAM
The name of the environmental rating programAKOBENhas its roots in Ghanas tradition of Adinkra symbols and it stands for vigilance and warinessa set of behavior that is pertinent for the issue of environmental conservation. AKOBEN also signifies alertness and readiness to serve a good cause. AKOBEN program has strong Ghanaian roots and its rating methodology is tailored to reflect Ghanas environmental values. It is for this reason that the AKOBEN program encompasses both physical and human environment in the rating methodology. AKOBEN program recognizes that the environmental rating and disclosure initiative was first introduced in 1995 in Indonesia through its PROPER program Program for Pollution Control Evaluation and Rating (World Bank 1995). But AKOBEN programs rating methodology for the mining and manufacturing sectors
have many unique elements, and it reflects the state-of-the-art in corporate social responsibility assessment. For this reason AKOBEN program is an important contribution to the ongoing international effort in the field of environmental rating and public disclosure. The AKOBEN rating methodology incorporates the national regulatory performance goals as well as the traditional community relationship aspects that are unique to Ghana. At the same time, it also incorporates the practically feasible aspects of environmental and social performance guidelines of the various international organizations including the World Bank and the IFC, the Global Reporting Initiative (GRI), PROPER-Indonesia, and Australian and World Health Organizations guidelines. 4 CONCEPTUAL FRAMEWORK OF THE AKOBEN RATING METHODOLOGY
Traditionally an analysis of environmental performance is limited to the assessment of whether or not a quantitative value of an environmental parameter has exceeded its numerical standards. At other times, regulators check if a business site has followed the procedural requirements related to permits and reporting. These approaches are useful but they fail to adequately capture some of the new concepts of environmental performance that include corporate social responsibility, voluntary over-compliance and other non-regulatory environmental objectives. In short, a simple In Compliance/Not in Compliance type of assessment is too limited to provide a comprehensive picture of the complex environmental and ecological conditions one typically finds at mining and manufacturing sites. Therefore, the AKOBEN rating methodology uses an approach that reflects the modern concepts of corporate environmental and social performance including ideas such as community relationships, public participation, conflict resolution and continual improvement. AKOBENs rating methodology maps environmental performance of companies into five color codes that is easy to communicate to the general public. Further, this rating methodology uses quantitative, qualitative and visual information to comprehensively evaluate the environmental performance of each company. AKOBEN aims to strengthen both transparency and public awareness. It also aims to address one of the difficult and most challenging areas of impact assessment the issue of follow-up and monitoring when projects become operational after the completion of environmental impact assessment (EIA). Therefore, AKOBEN would serve as the key connector between EIAs and operational environmental performance. AKOBENs approach to environmental performance measurement is designed to be practical, and it also aims to minimize the use of controversial or vague indicators. Though the existing literature on environmental and social performance
measurement is filled with innumerable ideas and concepts, AKOBENs rating system has narrowed it down to only those performance indicators that can be measured, verified and validated by a third party. Further, the focus of the rating system is on environmental outcomes that indicate various levels of environmental and health risks, the probability of restoration of environmental conditions in the long-term, and the quality of corporate commitment to social issues. Using these principles, the AKOBEN rating system maps the environmental performance of companies using a five-color rating scheme. These color categories represent five specific levels of environmental performance as described in Table 1. BLUE, ORANGE and RED ratings pertain to regulatory compliance only, and accordingly these colors indicate the performance of a company relative to the mandatory national regulatory requirements related to environmental issues and the reclamation bond (applies to mining companies only). In comparison, the GOLD and the GREEN ratings indicate performance on non-regulatory aspects including the quality of social and community actions undertaken by companies to further enhance its environmental and social performance (Afsah and Damayanti). Table 1: Description of AKOBEN Colors
Rating Level GOLD GREEN BLUE ORANGE Guiding Principles for AKOBEN Rating GREEN + company follows its corporate social responsibility policies BLUE + adopts voluntary initiatives and is responsive to public complaints Adequate compliance with environmental reclamation bond criteria (for mining only) standards and
Exceedance of regulatory standards for non-toxics, weak environmental monitoring, and incomplete fulfillment of reclamation bond criteria. Failed to follow environmental regulations (LI 1652), shows pattern of chronic exceedance, and creates risks from toxics and hazardous wastes mismanagement and discharges.
RED
The highest level of performancea GOLD ratinggoes beyond the requirements of formal regulations and it signifies that a company applies international best practices and properly follows its corporate social responsibility policies. In contrast, the worst possible rating a company could get is a RED rating which is assigned to those businesses that do not have a valid permit or certificate as per an environmental management plan as outlined in the Environmental Assessment Regulation LI 1652, which is Ghanas principal environmental assessment law. A company could also get a RED rating if its discharges and waste management practices cause serious risk to physical or human environments. The three intermediate rating categories are GREEN, BLUE and ORANGE. The GREEN rating signifies that a site has excellent environmental compliance, it
applies best practices and is responsive to public complaints, but there is room for improvement regarding the implementation of its environment and social responsibility policies. A BLUE rating is also sign of good environmental performance showing that a company has complied with the mandatory environmental regulatory requirements and fulfilled the conditions of the reclamation bond. Failures to meet the operational regulatory requirements related to environmental emissions and ambient quality, and the reclamation bond (applies to mining only) could demote a company to an ORANGEan unsatisfactory rating. And if the violations are severe and create a credible risk of damage to the environment or the human health, the environmental performance of a company could be downgraded to a RED level, which indicates a poor environmental performance. 4.1 How does AKOBEN Handle the Issue of Environmental Complaints
Environmental related complaints, as described solely for the AKOBEN Program, include the following complaints that: 1. are operations related and do they hamper the welfare of the communities in the proximity of the project area; 2. affect water resources of the communities in the catchment area of the project; 3. affect the ambient air quality due to dust and noise. Non-environmental complaints are those that may be related to crop compensation, land ownership issues among others, and other resettlement related issues specifically for mining companies. Environmental complaints are integral part of the concept of community monitoring of mining and manufacturing operations, and it complements EPAs regulatory inspections in important ways (Dasgupta and Wheeler 1997). Since it is not feasible for EPA to continually monitor on-site environmental discharges and emissions, local communities are important sources of information for regulators. AKOBENs rating methodology therefore assigns considerable importance to environmental complaints received from the public, and views this channel for equalizing a situation of asymmetric information between companies and regulators. However, AKOBENs rating methodology also recognizes that environmental complaints are not always automatically valid. Given the complexities of the relationship between companies and its neighboring communities, it is important to screen out frivolous complaints from the genuine ones. For this reason, the management of environmental complaints is a complex matter that needs to be handled with care. Otherwise it is possible that a normally manageable complaint can easily escalate into a costly confrontation between communities and companies. AKOBENs rating methodology aims to discourage such a situation from occurring, but at the same time it gives due credence to legitimate environmental complaints. A company needs a good overall complaints management policy and tracking system to effectively manage the environmental complaints it receives. Accordingly,
AKOBEN assesses the overall commitment and the policy of a company towards community complaints. But AKOBEN methodology recognizes that it is not sufficient to just have Standard Operating Procedure (SOP) for complaints management because the final outcome depends on how well the written policies are implemented. AKOBEN also recognizes that companies that are responsive to public complaints may attract more complaints compared to those that are comparatively less responsive. Therefore, the focus of evaluation for AKOBEN would be on the level of responsiveness and successful closure of complaints rather than just the volume of complaints. The evaluation would also take into consideration the long-term trend of company behavior. And finally, specific incidents of unusual public complaints would be evaluated on a case specific basis by the AKOBEN team. Evaluation of environmental complaints also includes the process of authentication by EPA inspectors. The verification process would include field visits, discussions with communities and companies, and if deemed necessary even samples would be collected for technical review and analysis. To enable the EPA inspectors to conduct a proper review of environmental complaints, companies are required to maintain a comprehensive record of all complaints and their responses. This information would be checked during the AKOBEN audit of companies. 4.2 Assessment of Corporate Social Responsibility Actions of Companies
AKOBEN rating methodology encompasses the concept of social performance of companies also. However, unlike environmental performance that can be quantified through technical and scientific measurements, social performance cannot be measured and expressed in such numerical terms. It is a real challenge to evaluate the quality of social performance of companies because there are no quantitative regulatory standards for social performance. Nevertheless, social performance is the highest ranking rating criteria in the AKOBEN program as it ultimately determines whether or not a company would get a GOLD rating. To evaluate the social responsibility actions of companies, AKOBEN rating methodology does not impose any mandatory performance standards on companies. Instead it has selected to assess performance of companies solely on the basis of how well each company implements its own corporate social responsibility policy. In other words, each company would be held accountable only on the basis of the policies its corporate headquarters has mandated. Accordingly, the assessment of social performance of a company would include three aspects. These are (1) intent of the company towards social issues, (2) expression of intent through a comprehensive social policy, and (3) the actions it undertakes in accordance with its CSR policy.
To conduct this evaluation the AKOBEN team of EPA would collect each companys corporate social responsibility policy and review it to develop a checklist of resource commitments, and community development projects and activities that its policy recommends and has implemented during the year of AKOBEN review. Each companys checklist would be evaluated against the actual community development activities observed at the site of business operations. Based on this evaluation, AKOBEN team would assess the qualifications for a GOLD rating. Since such an evaluation is expected to be very detailed and labor intensive, only those companies that have cleared the criteria for the GREEN rating would be subjected to the GOLD level review. 5 DATA COLLECTION AND QUALITY ISSUES
AKOBEN rating methodology is a data intensive system, and therefore complete and reliable data are critical requirements. There are three sources of data for AKOBEN rating. First, the bulk of the data would be compiled from the monthly monitoring reports that each company is required to regularly submit to EPA. Second, the data collected through site-level inspections would also be used for ratings analysis. And finally, AKOBEN team would conduct field audits to collect the information that are not reported in the regular monthly reports. The quantitative information on environmental parameters would be analyzed by a computer model that uses various statistical tools to check the accuracy, completeness and trends in the data, and compute the level of compliance at the site of business operations. All the qualitative information would be converted into a score and supported by proper documentation to justify the evaluation. 6 APPLICABLE STANDARDS FOR WATER AND AIR QUALITY
For the purposes of the rating, AKOBEN would apply EPAs Sector Specific Effluent Quality and Air Quality Guidelines, and where appropriate, guidelines from international institutions (e.g. WHO,WB/IFC) would also be applied. Furthermore the standards and or guidelines will apply to sampling locations that are specified in each companys Environmental Management Plan Therefore, it is critical that each Plan specify all the monitoring points, its appropriate category (compliance, surveillance or reference point) and the applicable regulation and standards. On a case specific basis, other standards could also be applied. 7 AKOBEN RATING REPORTS
An important goal of the AKOBEN program is to create incentive for environmental improvement through information. One aspect of this informational incentive is the improved understanding of environmental performance that the AKOBEN program is expected to create for companies. As part of the AKOBEN program, each company would receive a comprehensive ratings report from EPA. This report would clearly show where performance is strong and where there are gaps. The
ratings report would also provide clear guidance on where a company needs to make improvements in the future. 8 DISCLOSURE OF RESULTS
AKOBEN would follow a two-step procedure for disclosing the results of AKOBEN rating to the public and the media. As a first step, AKOBEN would privately share the results of the ratings with companies. If there is an issue that requires further review, the company should inform the AKOBEN team in writing. Upon receiving the feedback, AKOBEN would review the ratings and resend the results to the company. The final ratings would be disclosed to the public on World Environment Day every year. 9 DISPUTE RESOLUTION
AKOBEN program is aimed to be a collaborative effort between EPA and companies. While EPA would strictly apply the regulatory standards to evaluate the ratings of mining and manufacturing companies, it would also recognize their social and community development efforts. With such an approach, EPA aims to strengthen the environmental and social performance incentives for companies, and at the same time improve public awareness. But AKOBENs rating system is a complex process which requires multi-dimensional data and information, and it is likely that sometimes there could be a difference of opinion with companies. Therefore, AKOBENs disclosure strategy follows a twostep procedure that would allow for any differences to be discussed and resolved. If required, EPA would conduct fresh data collection and field visits, and also provide documentary and analytical evidence to explain the basis of its evaluation. 10 AKOBEN LAUNCH AND RESULT
The AKOBEN program was successfully launched and inaugurated by the Office of the Vice President of the Government of Ghana and the Minister of Environment, Science and Technology. Speaking at the function, Hon. Sherry Ayittey, Minister for the Environment, Science and Technology, said the AKOBEN initiative symbolizes governments resolve to tackle the challenges of environmental degradation and natural resource management through transparency, disclosure, public awareness creation and community participation. In the first round of ratings, eleven mining companies and 49 manufacturing enterprises were rated. No company received a BLUE or better rating, showing that all the companies had at least one or more compliance violations. As shown in Figure 2, nearly two thirds of the sixty companies from mining and manufacturing sector had serious environmental violations as measured by the RED rating. Additional analysis showed that regarding the compliance with legal requirements, mining companies had better baseline performance compared to their peers in the manufacturing (Figure 3).
Figure 2: Ratings of Companies
Figure 3: Compliance with Legal Requirements
In the area of environmental best practices, the mining sector outperformed the manufacturing sector (Figure 4). However, in the area of hazardous waste management, the mining sector clearly lags behind the manufacturing sector, highlighting the challenge of toxics and hazardous waste management at mining sites (Figure 5). The AKOBEN program has also had measurable improvements on the site level monitoring. As shown in Figure 6, both the mining and manufacturing sectors show a trend of continual improvement in their effort to sample, test, and report monthly monitoring results to the EPA.
Figure 4: Best Practices Adoption
Figure 5: Hazardous waste Management
Figure 6: Environmental Monitoring and Reporting Trend
11 CONCLUSIONS This paper describes the implementation history of Ghanas AKOBEN environmental rating and disclosure program. It shows that it took more than ten years to fully develop this environmental transparency initiative starting from just an idea in 1999, to pilot tests and ultimately to a full-fledged regulatory program in 2011. Initial results and feedback from companies show that disclosure is an effective environmental enforcement tool. It works outside the formal court system through reputational incentives and community and media pressure to motivate firms to comply with environmental regulations. Additionally, the experience of Ghana shows that the color-code format for evaluating and rating environmental performance of companies is an effective approach. It is recommended for consideration and adoption by other countries in Africa. 12 BIBLIOGRAPHY Afsah, S., Laplante, B. and Wheeler, D., 1997 Regulation in the Information Age: Indonesias Program for Environmental Management, World Bank. Dasgupta, S, and Wheeler, D., 1997, Citizen Complaints as Environmental Indicators: Evidence from China Policy Research Working Paper # 1704, World Bank. GRI Guidelines, http://www.globalreporting.org/ReportingFramework/G31 Guide lines/. IFC/World Bank Guidelines, http://www.ifc.org/ifcext/sustainability.nsf/Content/ EHSGuidelines. PROPER Program Indonesia, http://www.menlh.go.id/proper/proper%20baru/ Eng-Index.html. World Bank, 1995, What is PROPER? Reputational Incentives for Pollution Control Technical Documentation.
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USING ENFORCEMENT COOPERATION TO PROMOTE ENVIRONMENTAL GOVERNANCE: THE CASE OF THE NATIONAL ENVIRONMENTAL STANDARDS AND REGULATIONS ENFORCEMENT AGENCY OF NIGERIA BENEBO JP, DR. (MRS.) NGERI Director General/Chief Executive Officer, National Environmental Standards and Regulations Enforcement Agency, Nigeria, dg@nesrea.org. SUMMARY Environmental governance has become a major instrument used by the Federal Government of Nigeria to help address various environmental problems. This has been made possible through the creation of appropriate institutional mechanisms for environmental compliance monitoring and enforcement. Environmental governance must be comprehensive and all-encompassing, involving all sectors and stakeholders. Enforcement cooperation at national, regional, and global levels through networking, capacity building and human resources development, timely exchange of information and experience amongst stakeholders, are essential for the promotion of environmental governance. Strengthening regulatory institutions to help them create the necessary framework and mechanisms for monitoring and enforcement of environmental guidelines, laws, standards and regulations, is also key to promoting good environmental governance. 1 INTRODUCTION This paper discusses the experience of the National Environmental Standards and Regulations Enforcement Agency of Nigeria in the use of enforcement cooperation to promote environmental governance in Nigeria. The paper provides a background to the evolution of environmental governance in Nigeria which began after 1987 as a consequence of the illegal dumping in Nigerias Delta State of toxic waste imported from Europe. It explains the mandate, vision and functions of, and some key activities and programmes of the Agency. These illustrate how cooperation and partnership at national, regional and global levels, in environmental compliance monitoring and enforcement programmes have assisted to promote environmental governance. The paper also highlights some benefits of enforcement cooperation. 2 ABOUT NIGERIA
Nigeria has an area of about 923,800 sq. km. The terrain ranges from southern coastal swamps to tropical forests, open woodlands, grasslands, and semi-desert in the far north. It is endowed with rich natural resources, particularly oil and natural gas. The most populous country in Africa, Nigeria accounts for over half of West Africas population. The population of the country is 152 million, with a population growth rate of 2.0%. It operates a federal republic type of government. The country
is subdivided into 36 states, and the states are further subdivided into a total of 774 local government areas. The variety of customs, languages, and traditions among Nigerias 250 ethnic groups gives the country a rich diversity. 3 KEY ENVIRONMENTAL CHALLENGES IN NIGERIA
Nigerias environment is under increasing threat from human activities and natural disasters. The key environmental issues facing Nigeria are many and multifaceted. They include water pollution, indoor air pollution, industrial pollution, biodiversity loss, erosion, land degradation, desertification, sprawling urban solid wastes, open bush burning, noise pollution, visual pollution, environmental pollution and wildlife crimes, etc. There is also a growing problem of near-end-of-life and end-oflife electrical/electronic products, otherwise called e-waste. 4 ENVIRONMENTAL GOVERNANCE
In the past, weak environmental governance - characterized by poor compliance monitoring and enforcement of environmental laws, standards and regulations was one of the main challenges to addressing the myriad environmental problems in Nigeria. But over the last two decades, environmental governance has become central to government efforts to implement a wide range of environmental programmes designed to protect air, water, natural resources, wildlife and public health. Environmental governance has also become a major instrument used by the government to help address problems such as the discharge of pollutants into the environment, the control of hazardous wastes, and the protection of ecosystems, flora and fauna. This has been made possible through the creation of appropriate institutional mechanisms on environmental compliance monitoring and enforcement. 5 ESTABLISHMENT OF THE NATIONAL ENVIRONMENTAL STANDARDS AND REGULATIONS ENFORCEMENT AGENCY
Prior to the illegal dumping of toxic waste in Koko village, in Delta State, in 1987 by a ship from Italy, Nigeria was not able to manage serious environmental crisis, as there were no institutional arrangements or mechanisms for environmental protection and enforcement of environmental laws and regulations in the country. Responding to the Koko toxic waste episode, the Federal Government promulgated the Harmful Waste Decree 42 of 1988, which facilitated the establishment of the Federal Environmental Protection Agency through Decree 58 of 1988 and 59 (amended) of 1992. This Agency was then charged with the overall responsibility for environmental management and protection. With the establishment of The Federal Environmental Protection Agency, Nigeria became the first African country to create a national institutional mechanism for environmental protection. In 1999 the Government wisely decided to merge, the Federal Environmental Protection Agency and relevant Departments from other Ministries into a single Federal Ministry of Environment. However, the new Ministry of Environment
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lacked the necessary laws to enable enforcement. This created a vacuum in the effective oversight of environmental laws, standards and regulations in the country. To address this gap in line with section 20 of the 1999 Constitution of the Federal Republic of Nigeria, the Federal Government established the National Environmental Standards and Regulations Enforcement Agency, as a parastatal of the Federal Ministry of Environment. The National Environmental Standards and Regulations Enforcement Agency Act 2007 repealed the Federal Environmental Protection Agency Act Cap F 10 LFN 2004. 6 THE VISION, MISSION AND MANDATE OF THE NATIONAL ENVIRONMENTAL STANDARDS AND REGULATIONS ENFORCEMENT AGENCY
The vision of the National Environmental Standards and Regulations Enforcement Agency is to ensure a cleaner and healthier environment for Nigerians, while the mission is to inspire personal and collective responsibility in building an environmentally conscious society for the achievement of sustainable development in Nigeria. The Act empowers the Agency to be responsible for enforcing all environmental laws, guidelines, policies, standards and regulations in Nigeria, as well as enforcing compliance with provisions of international agreements, protocols, conventions and treaties on the environment to which Nigeria is a signatory. The Agencys policy goals also include: a) developing a strategic action plan for effective environmental compliance monitoring and enforcement; b) establishing a robust environmental information management system including database/databank; c) increasing significantly the level of environmental awareness and education in all parts of the country; d) carrying out effective environmental compliance monitoring and enforcement programs to ensure sustainable use of Nigerias natural resources, and to protect citizens wellbeing and control air, land and water pollution; e) coordinating and promoting research and studies, in collaboration with public and/or private Agencies, Institutions and Organisations, on various aspects of environmental degradation and pollution. 7 COOPERATION GOVERNMENTS AND PARTNERSHIP WITH STATE
The Agency has established Zonal Headquarters in the six Geo-political Zones of the country and State Offices in 17 States of the Federation. The National Environmental Standards and Regulations Enforcement Agency State offices work closely with State Governments to ensure effective implementation of compliance and enforcement programs as developed by the Agency, and serve as a repository for information at that level. The Zonal Headquarters coordinate activities of State Offices within the Zone and serve as the first entry point of the Agency in each geopolitical Zone.
At the inception of the National Environmental Standards and Regulations Enforcement Agency, the Director General of the Agency paid official visits to many State Governors and State Governments. The intention was to introduce the Agency and extend hands of cooperation and partnership to the States, so that effective enforcement cooperation could be developed between the State Governments and the Agency. Figure 1: Offices Nationwide (as at March, 2011)
The National Environmental Standards and Regulations Enforcement Agency requires a furnished office accommodation and some logistics like vehicles, computers and internet connectivity from each participating State Government. In return, the Agency provides employment opportunities for some well-qualified citizens of the State and works closely with the State Government to carry out environmental protection programmes and activities, including environmental compliance monitoring and enforcement, and environmental education. Currently, the National Environmental Standards and Regulations Enforcement Agency has 17 State offices in Kano, Kebbi, Plateau, Gombe, Benue, Enugu, Borno, Nasarawa, Ondo, Kwara, Osun, Oyo, Ekiti, Imo, Rivers, Ebonyi and Niger; and 6 Zonal offices located in Port-Harcourt, Owerri, Ibadan, Jos, Kano and Gombe (Figure 1).
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FEDERAL-STATE REGULATORY DIALOGUE
As part of the Agencys participatory approach to involve the state governments and other stakeholders in environmental governance, the Agency, with the support of the UNDP, has initiated the Federal-State Regulatory Dialogue on compliance monitoring and enforcement. The Dialogue provides a forum for participants from the various regulatory agencies at the federal and state levels to share experiences and fashion out best practices in environmental compliance and enforcement, as well as to operationalize the published Regulations and review draft new Regulations. Among the specific objectives of the Dialogue are to: a) promote cooperation among Regulatory Agencies of Governments (Federal and States); b) provide opportunity for participants to discuss and share experiences of best practices in environmental regulatory activities; c) identify factors that facilitate or impede the roles of regulatory agencies, d) enhance the collaboration and synergies between the Federal and State Regulatory Agencies. The Dialogue is a successful initiative that brings together all Regulatory Agencies in Nigeria to work in harmony in the implementation of various regulations developed by the Agency. 9 THE TOXIC WASTE DUMP WATCH PROGRAMME
The clandestine movement and influx of hazardous chemicals and wastes, including non-serviceable second-hand goods (especially electrical and electronics equipment) into Nigeria, prompted the Agency to reactivate the Toxic Waste Dump Watch Programme. This Programme involves the continuous monitoring of the coasts of Member States of the Economic Community of West African States with exchange of signals and alerts to relevant regulatory bodies and enforcement agencies at national and sub-regional levels for necessary action(s) on any suspicious shipment. The members of the National Committee for the Toxic Waste Dump Watch Programme comprise the following government organizations : the Nigerian Navy; State Security Service; National Intelligence Agency; Defense Intelligence Agency; the Nigeria Customs Service; Nigeria Ports Authority; Nigeria Maritime Administration and Safety Agency); the Nigeria Police; and the National Environmental Standards and Regulations Enforcement Agency (the coordinator). Following an alert, the Agency contacts all members of the National Committee for necessary surveillance, and convenes meetings to urgently discuss the modalities for tracking and intercepting the Vessel. The Programme is a successful cooperation and collaboration framework between the relevant enforcement agencies in Nigeria.
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NETWORKING AND INTERNATIONAL COOPERATION
Nigeria is cooperating with the international community for effective networking and timely exchange of information and experience on environmental compliance and enforcement issues. Positive results have come from networking with organizations such as the International Network for Environmental Compliance and Enforcement (INECE) Seaport Environmental Security Network (SESN) and the International Criminal Police Organisation (INTERPOL); national agencies such as the United States Environmental Protection Agency (USEPA), United Kingdom Environmental Agency (UK EA), and the Netherlands Inspectorate of Housing, Spatial Planning and the Environment (VROM); and the European Unions Implementation and Enforcement of Environmental Laws Trans-Frontier (IMPEL TFS). Beyond capacity building and human resources development, the networking has helped the Agency to continuously receive timely information on clandestine and trans-boundary movement of e-waste into Nigeria. Within the past two years, the Agency has received several alerts on the influx of hazardous chemicals and wastes including non-serviceable second hand-goods, like electrical and electronics equipment. The awareness created by the alert system has led, on several occasions, to the diversion of such shipments to other countries instead of Nigeria. Within the past two years also, Nigeria has intercepted and arrested five ships: a) MV Nashville with one container of old/used television sets, used lead batteries, used tyres, old radio sets, used computers, used fridges etc- Lagos, April, 2010. b) MV Gumel with 7 trucks of e-waste and used fridges later found to have 8 trucks - Lagos, June, 2010. c) MV Nashville with 11 containers, Port Harcourt, July, 2010. The ship was detained wrongly because the shippers had declared the new goods imported as used items. The false declaration is to evade payment of customs duty. d) Vera D with 3 containers of used and old CRT television sets, video, monitorsOctober, 2010. e) Grande America with 2 containers of used television sets and fridges Lagos, October, 2010 which have been taken back by the vessel, but with 7 other containers left behind which have been subjected to analysis and found to contain waste electrical/electronic equipment (WEEE). 11 INVOLVING THE GOVERNANCE CITIZENRY IN ENVIRONMENTAL
The National Environmental Standards and Regulations Enforcement Agency is involving the Nigerian citizenry in environmental governance, particularly in compliance monitoring and enforcement, by various ways, such as: advisory committees, document reviews, informational meetings, public fora, citizen monitoring, voluntary environmental marshals or corps.
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11.1 Document Reviews Provision for public comments on project documents, policy analyses or plans is an important mechanism for soliciting meaningful public input to government decision-making. Seeking public comments on documents and reports promotes ownership and increases the perceived legitimacy of decisions. The Agency invites experts from various sectors to make input during the review of old or preparation of new regulations. 12.1 Annual National Stakeholders Forum Special fora are organized to provide a channel for special interest groups to participate in environmental issues. Every year since its inception, the Agency organizes a National Stakeholders Forum on The New Institutional Mechanism for Environmental Protection and Sustainable Development in Nigeria. The Forum is a key component of the Agencys program of public involvement and citizens participation in environmental governance. Participation in the Forum is open to all major stakeholders and sector players at national, state, local government and grass root levels, including legislators, non-governmental organizations, trade unions, cooperatives, associations of business and professional bodies, policy advocacy bodies, consumer and human rights groups, womens associations, youth clubs, neighborhood or communitybased organizations and coalitions, faith-based organizations, the media, academic and research institutions. The theme of the 1st Forum in 2007 was Ensuring a Safer and Cleaner Environment in Nigeria Through Partnerships. The 1st Forum also served as a formal launch and roll out campaign of the new National Environmental Standards and Regulations Enforcement Agency. The theme of the 2nd Forum in 2008 was Developing Relevant Instruments for Effective Enforcement of Environmental Laws in Nigeria. The 2nd Forum addressed problems and challenges that affect effective enforcement of environmental guidelines, standards and regulations in Nigeria; and also reviewed, finalized and adopted the eleven (11) draft documents on environmental regulations, including the permitting and licensing system, developed by the Agency. The theme of the 3rd Forum in 2009 was Gender and Civil Society Organisations in Environmental Compliance Monitoring and Enforcement. For the 4th Forum in 2010, the theme was Going Green for Environmental Protection and Sustainable Development in Nigeria. 11.3 The National Environmental Standards Enforcement Agency Green Corps Initiative and Regulations
Use of a voluntary environment corps or green corps provides a positive opportunity to involve the citizens in environmental compliance monitoring and enforcement. These are citizens who have volunteered to support the work of government environmental officers. The overall goal of the NESREA Green Corps Initiative is to actively involve the citizenry in environmental governance through volunteers under the guidance of NESREA. The specific objectives of the initiative are to:
i. ii. iii. iv. v. vi.
promote environmental volunteerism amongst the citizenry; mobilize the citizenry in solving environmental problems; create environmental awareness at all levels; build partnerships up to the community and grass root levels; inculcate environmental discipline and consciousness; empower the citizenry in effective environmental stewardship.
The National Environmental Standards and Regulations Enforcement Agency Green Corps Initiative was formally launched at the Federal level by the Honorable Minister of Environment during the Agencys 4th National Stakeholders Forum in 2010. The initiative is currently being promoted in all six geopolitical zones of the country. 12 CAPACITY BUILDING DEVELOPMENT AND HUMAN RESOURCES
The National Environmental Standards and Regulations Enforcement Agency is cooperating with many development partners and other international organizations for capacity building and human resources development in the area of environmental compliance monitoring and enforcement. This is important for promotion of environmental governance. Various capacity building programmes have been carried out within and outside Nigeria to train the Agency staff and other relevant stakeholders on various aspects of compliance monitoring and enforcement. Some examples of such programs include: a. Special Compliance Monitoring and Enforcement Training for Security Agencies in Nigeria: The training was to expose the security officers to basic elements of compliance monitoring and enforcement. b. Special Workshop for the Judiciary and Law Enforcement Agencies: The Workshop was to strengthen the enforcement of environmental laws, regulations, standards and guidelines in Nigeria through capacity building of the Judiciary and other Law Enforcement Agencies. The workshop was organized by NESREA, in collaboration with United Nations Development Program (UNDP) and with technical support from the United Kingdom Environment Agency (UK EA), the United States Environmental Protection Agency (USEPA), and UK Partners for Water and Sanitation (PAWS). c. Sensitization Workshop on E-waste and the signing of a MoU: Following the increasing incidents of illegal shipment of e-waste into Nigeria, NESREA in collaboration with the Standard Organisation of Nigeria, the Consumer Protection Council, and the Association of Electronic Goods Marketers of Alaba International Market, Lagos, signed a MoU and organized a sensitization workshop to educate the marketers of electronic/electrical products on the dangers of e-waste.
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d. Special training for the informal e-waste recycling sector players in Nigeria by Basel Convention Regional Coordinating Centre, in collaboration with experts from Northampton University, UK: The Agency staff and informal sector associations were trained. e. Basel Convention E-waste Africa Project Nigeria: Participants included The National Environmental Standards and Regulations Enforcement Agency, Nigerian Customs Service and other relevant Stakeholders involved in e-waste issues. The objectives of the project were to: i. embark on a fact- finding study on the flow of used and end-of-life e-products imported by land and sea, in particular from developed countries; and ii. train local personnel to undertake field researches and collection of data on e-waste issues. f. A two-week Waste Shipment Inspection Training at the Ports of Bremen and Antwerp for officers of relevant Regulatory Authorities: Participants included the Nigerian Customs Services, Ministry of Environment and the National Environmental Standards and Regulations Enforcement Agency from Nigeria, as well as relevant authorities from other African countries. g. National training workshop on enforcement of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) in Nigeria: The workshop was organized by the Agency in collaboration with the CITES Secretariat from Geneva, Switzerland. Participants included all Stakeholders involved in CITES. The objectives of the training were to: i. build the capacity of participants on CITES enforcement; ii. equip participants with proper identification of key CITES specimen; iii. train the officers on proper strategies and techniques in confiscation of evidence in trans-shipment; iv. train officers on proper handling of wildlife specimen; v. equip the participants with CITES protocol on the various appendices. h. UK EA Agency Capacity Building Programme: To date, four senior staff of NESREA have benefited from specialized training with the UK EA, under the Commonwealth Fellowship Programme. i. Netherlands Government Agency Capacity Building Programme: About 22 staff members in the last 2 years have benefitted from sponsorship to various Short Courses on different aspects of the environment. j. INECE Inspection Month Programme: The Seaport Inspection Training Workshop on hazardous waste was organized by the Agency as part of INECE Seaport Environmental Security Network Inspection Month. Members of the National Committee on Toxic Waste Dump Watch participated actively in the programme. The objectives of the training workshop were to:
i. raise awareness and facilitate international enforcement collaboration among governments and to build capacity of officials on ways to detect and prevent illegal trans-boundary shipments of hazardous waste; and ii. promote international good practice for environmental inspection at seaports. 13 CONCLUSION The National Environmental Standards and Regulations Enforcement Agency is the new institutional mechanism created by the Federal Government of Nigeria to ensure effective environmental governance through compliance monitoring and enforcement of environmental laws, standards and regulations. The Agency ensures that all relevant stakeholders are involved in the implementation of its programmes and activities. Environmental governance must be comprehensive and encompassing, involving all sectors and stakeholders. Identifying and building synergies amongst agencies/ institutions of the government is necessary. Building partnerships creates and promotes synergies for environmental governance and would, among other things, build capacity among partners, in particular for citizen groups, and improve transparency by providing access to or new information about a particular environmental issue. Strengthening regulatory institutions to help them create the necessary framework and mechanisms for monitoring and enforcement of environmental guidelines, laws, standards and regulations is key to promoting good environmental governance. There is also need to strengthen regional and global cooperation in order to share timely experience and information, and to transfer best technology and practices, on environmental compliance monitoring and enforcement. The National Environmental Standards and Regulations Enforcement Agency expresses its appreciation and gratitude for all the support, encouragement and assistance it has received from the international community since inception. The Agency will continue to be actively involved at national, regional and global levels in the promotion of environmental governance through enforcement cooperation.
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DEVELOPMENTS IN ENVIRONMENTAL REGULATION: MAXIMIZING OUTCOMES IN THE CURRENT POLITICAL AND ECONOMIC CLIMATE - A REVIEW OF RECENT EXPERIENCE OF NON-TRADITIONAL APPROACHES IN THE UNITED KINGDOM, WITH INSIGHTS FROM EUROPE AND CANADA BOOTH, CHRIS1 and WHITE, MARK R.2 Consultant, Environment Regulation, 33 Cowper Road, Bristol BS6 6NZ, United Kingdom, chris@environment-regulation.co.uk
1
Consultant, 25 Cardinal Place (Upper), Toronto, Ontario, M4N 2S2, Canada markrwhite@rogers.com
2
Peer Reviewed by Pete Bailey, Social Science Manager, Environment Agency of England and Wales SUMMARY This paper draws on some recent studies which seek to explore the effectiveness of non-traditional approaches to environmental regulation and sets this alongside current wider political, economic, and policy developments. It looks at recent views on this subject area expressed by leading academics. Finally it makes suggestions as to what interested parties might do next. The authors show how political and economic drivers around the globe are pushing environmental regulators to find new ways to improve compliance. They do not find a holy grail or magic bullet. Indeed, it cannot always be assumed that non-traditional approaches are necessarily better than traditional ones, or that they can operate independently of them. Robust evaluation is difficult but non-traditional approaches often appear to be successful, especially in combination with traditional ones. Environmental regulators have opportunities to use these new approaches in their pursuit of delivering environmental outcomes despite the current challenging political and economic climate. And, perhaps thankfully, not all the solutions lie in the hands of regulators. The authors hope this paper will stimulate further ideas, experimentation and evaluation of how non-traditional approaches can enhance environmental regulation. We recommend that developments in this area are shared within regulatory communities and that work is done collaboratively between regulators and academics. The International Network for Environmental Compliance and Environment (INECE) is one forum for sharing experiences. 1 TRADITIONAL REGULATION AND APPROACHES TO REGULATION NON-TRADITIONAL
In a traditional regulatory approach, the regulator assumes responsibility for each part of the system and focuses his attention to address site-specific environmental
issues. Environmental standards are set through regulation and regulatory policy, and then are translated into site-specific requirements through a permit. Inspections by the regulator determine whether an operator is in compliance with permit requirements. The regulator uses the sanctions available to them to bring operators back into compliance. In this model, the regulator takes centre stage as a lead actor shaping pro-environmental behavior of business. The purpose of traditional regulation has typically been portrayed in terms of correcting market failures, preventing free-riders, providing a level playing field, and preventing the tragedy of the commons as recently described by Young1 for example. There are various types of non-traditional approaches to regulation. The boundary between traditional and non-traditional is fuzzy, but non-traditional approaches seek to fulfill essentially the same purpose as traditional regulation. Some nontraditional approaches improve the efficiency of traditional approaches while maintaining its focus and roles. Examples are standard rules or cookie-cutter type permits that streamline standard setting and risk-based approaches that focus regulators compliance assurance resources on the highest risk sites. Other nontraditional approaches have a broader focus, moving from the specific environmental issues at a site to broader environmental issues at a company-wide or businesssector level. Responsibilities for each part of the regulatory system may be shared with others so that the regulator becomes one of a number of actors. In that context, it is important for the regulator to understand not only who is involved, but also the wider range of influences on the pro-environmental behavior of business. With this broader focus comes a wider regulatory toolkit and challenges of accountability for the performance of a regulatory regime, the success of which does not lie solely in the regulators hands. This new environmental governance has been cited as the latest phase in regulatory development2 and one which produces new challenges for governments and regulators. 2 THE PRESSURE FOR CHANGES TO REGULATION AND MOVES TOWARDS BROADER GOVERNANCE OF ENVIRONMENTAL PERFORMANCE OF BUSINESS The interest in better ways to improve the environmental performance of business is a normal part of a regulators role. It has been given new emphasis by the current political and economic climate which is challenging regulators around the world to respond to pressures such as: demands for better or smart regulation to simplify regulation and reduce demands on business;3 demands for smaller government (whether due to ideological beliefs or just economic realities); reductions in budgets for many environmental regulators;4 needs to change behaviors by means other than regulation;5 growing recognitions that improved environmental performance by business can be a factor that is motivated by non-government actors and mechanisms6.
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Improving the way businesses are regulated whilst maintaining a high level of environmental protection has been a priority of many Governments over recent years, and has often focused on aspects such as regulatory simplification and reducing the burdens of regulation on business. The UK Governments views on this were expressed by the Prime Minister, David Cameron in a recent speech7 to his Conservative Party members as follows: So I can announce today that we are taking on the enemies of enterprise. The bureaucrats in government departments who concoct those ridiculous rules and regulations that make life impossible, particularly for small firms. This sentiment will be brought into effect by measures announced in the March 2011 budget statement8 In October 2010, The European Commission published a Communication on Smart Regulation9 which sought to re-position better regulation with a new name (Smart Regulation) and proposed an increase evaluation of EU Environmental law. Outside of Europe, similar moves are taking place. In Canada for example, at the Federal level, the Canadian PM, Steven Harper, has created a Red Tape Reduction Commission10,11 Alongside these political drivers, regulators and academics have developed a better understanding of what motivates and does not motivate businesses to establish patterns of good environmental behavior, although recognizing the role that traditional regulation can play in this regard, they have recognized its limitations. For example, in describing criticisms that have been raised against traditional approaches, Black12 writes that government has insufficient knowledge to be able to: identify the causes of problems; design solutions that are appropriate (instrument failure); identify non-compliance (information failure); identify that the implementation of the regulation is inadequate (implementation failure); and/ or to identify that those being regulated are insufficiently inclined to comply (motivation failure). So, for the aforementioned reasons, non-traditional approaches are being introduced, albeit often as pilots or trials and it seems that, if applied alongside traditional means, they provide an opportunity to improve motivations of businesses to better environmental behavior. Of course, the choice of which approaches to use and by whom depends upon an understanding of both who influences business and the businesses motivations. Figure 1 illustrates the interplay of the economic, political, and legal contexts on the regulatory and competitive environment.13 It highlights both the complexity and inter-related nature of the influences on business behavior and the potential for the regulator to influence a range of actors, not just the regulated business. It also highlights the need for the regulator to understand what the range of influences is.
Figure 1: Influences on Business

Social Change Environmental Change Regulatory Actions Technological Change
Barriers to Entry
Media Coverage
Bargaining Powers of Suppliers
Operator
Bargaining Powers of Customers
Public Actions
Threats of Substitutes Competititive Environment
NGO Actions Institutional Influences
Legal Change
Economic Change Contextual Influences
Political Changes
3 NON-TRADITIONAL APPROACHES ENVIRONMENTAL REGULATORS
BEING
USED
BY
From the authors experiences, environmental regulators are responding already to challenges described above. One of the leading figures looking at how regulatory bodies should organize themselves, Malcolm Sparrow, proposes that increased emphasis is being placed on what he calls the expert model as opposed to legal model.14 The authors agree with his analysis so far as their experience is concerned. We have elaborated Sparrows text regarding the expert model with additions of our own in italics. See box 1.
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Box 1: An Expert Model for Regulatory Agencies Acknowledge the constant need to make choices (of who and how to regulate or not, for example). Make them rationally, analytically, democratically. Take responsibility for the choices you make. Correct, by using your judgment, deficiencies of law (for example on diffuse pollution or on waste production). Organize yourselves to deliver important results (for example, collaborate with other bodies in the inspections of companies). Choose specific goals of public value, (environmental outcomes, for instance) and focus on them. Devise methods (such as non- traditional approaches to regulation) which are economical with respect to the use of state authority, the resources of the regulated community, and agency resources. And as you carefully pick and choose what to do and how to do it, reconcile your pursuit of effectiveness with the values of justice and equity. (Additions in italics are the authors) ome examples of non-traditional regulatory approaches that are being used (in S Europe and Canada) are given in box 2. Many of these approaches are not fully developed, but some environmental regulators are starting to use them and to share experience across member states.15 Box 2: Some Examples of Non-Traditional Approaches to Regulation Communication approaches: advice and guidance given by regulator to operators; use of third parties such as trade associations to provide advice to aid compliance; awareness raising and publicity; publishing of performance ratings. Non-traditional inspection approaches: audits: more thorough than inspections but at lower frequency,; sharing of inspections by different Inspectorates; inspection activities by third parties such as accredited technical surveillance organizations who report to inspection authorities; measurements by certified third parties of waste, water pollution, air emissions etc. and reporting to inspection authorities,; use of trade associations to provide a compliance assurance service to its members,; engagement with companies rather than just regulating individual sites (for companies with numerous sites) by having an account manager in a national regulator or a primary authority who leads on behalf of other local or regional regulators,; using remote emission monitoring and/or CCTV to monitor compliance; requirements for operators to install continuous measuring devices at the operators installations and send the results automatically to the inspection authority and/or the Internet; risk based approaches to environmental inspections.
Certification approaches: self certification of compliance by operators; notification by companies of a non-compliance and again after fixing the problem; annual operator compliance reports with an assessment of facility related environmental data and the environmental performance of the facility; operator self-monitoring and reporting; environmental management systems, for example EMAS / ISO 14001. Regulating markets: trading schemes. Other approaches: voluntary agreements or other voluntary approaches; actions taken by the regulator to influence the boardrooms of operators; use of volunteers at appropriate places in the regulatory process, and approaches to regulating good performers. Unfortunately, there has been little evidence collected previously on the effectiveness of such non-traditional approaches to regulation. Indeed, there is precious little evidence on how effective traditional regulation is or has been and where there is some evidence it often lacks convincing proof of causality.16 There is even less evidence of the effectiveness of newer non-traditional approaches as these are not as widespread as traditional regulation and have been around for shorter time. At the beginning of 2010, the Environment Agency of England and Wales commissioned a literature review of the effectiveness of regulation, 17 which specifically included complementary approaches of the types listed in box 1. It found that producing robust evidence is extremely difficult because: T he causal chain is often long and hard to define. There are many other influences on the outcomes you are trying to measure (its not a chain, its a web or system). Gathering reliable data is difficult (on behavior, compliance, outputs, environmental quality etc.). It is hard or impossible to find a control sample (counter factual). There are long timescales between inputs and impacts. Similar points are made by US academics such as Young18 who have studied attempts at evaluation of regulation in the US. INECE have produced various publications relevant to this subject and much of this work was summarized in the INECE publication of 2005.19 Of particular relevance are: NGO compliance strategies which is about provision of information (along with appropriate legal powers for NGOs, citizens etc) on emissions from regulated businesses, with the intention of improving compliance by means
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other than inspections and enforcement by the regulator. It also includes self reporting by businesses. Compliance Assistance and beyond compliance. Several examples are given, many in Europe, with particular reference to small and medium size enterprises. 4 RECENT STUDIES ON NON-TRADITIONAL APPROACHES
A number of very recent relevant studies have been made of non-traditional approaches by the Environment Agency.20 These are summarized below: 4.1 Self Certification
A piece of desk based research was carried out by the Environment Agency to inform if and how self certification compliance schemes could be used in some of its regimes. The research revealed limited use of self certification compliance schemes within an environmental context and few examples were found showing how self certification compliance schemes had been successfully implemented. Some common themes were however identified: T he use of self certification should include some form of compulsive compliance requirement, backed up by a perceived or real threat of enforcement in order to work effectively. An auditing protocol to check performance and compliance is necessary to provide a system of checks and balances. Transparency, accountability, and pre-qualification criteria such as qualification and environmental management systems are important in establishing the credibility of a scheme. 4.2 Boardroom Interventions
A small piece of research was carried out to evaluate the use of account management approaches where the Environment Agency engages at a director level with large companies. The study looked at factors that contribute to an effective account management relationship and how it could be expanded to other regimes. The study presents account management as a relationship journey that often starts off as structured, formal, and data driven interactions on a senior level focusing around compliance and performance information. As the relationship matures, it becomes increasingly forward looking and strategic and requires a formal and frequent interaction. Good personal relationships are essential in order to foster openness, trust, and mutual understanding between the organizations. Key elements of success identified included: S enior level involvement is imperative at the inception stage to give status to the relationship and ensures the ability to influence others and address issues identified.
E nsuring that messages cascade down throughout both organizations is equally important so that actions are followed through. The role of succinct and clearly presented compliance information as a door opener and a vehicle for challenge in both directions between regulator and operator (working through those challenges is key to the process of building trust). 4.3 Advice and Guidance
Two pieces of research have been carried out by the Environment Agency to explore how the use of advice and guidance as a regulatory tool is perceived both by regulated businesses and internal staff. A trial was carried out in the North East of England over six months in 2009 where a number of waste sites operated by the same company were selected to receive more advice and guidance in place of traditional compliance visits. Research was carried out involving staff from both organizations to evaluate the trial and help understand how and when advice and guidance are effective. Findings showed that advice and guidance were most useful for and highly valued by poorer performing sites. Compliance scores improved for some sites. The significant improvements in relations between the company and the Environment Agency were reported on both sides. On the other hand, it was recognized that advice and guidance may not be the right approach for all operators. Some operators may remain unwilling to take action unless they are forced to do so and the option of taking enforcement action still needs to be in place. The individual relationships between Environment Agency officers and site managers are keys to how advice and guidance is experienced by operators. For advice and guidance to be well received, it is important that Agency staff on the ground is knowledgeable, confident in working with the operator and comfortable with using the advice and guidance approach. 4.4 Small and Medium Size Enterprises Compliance
Small and medium size enterprises are estimated to account for 99.9% of the estimated 4.8 million private sector enterprises in the UK at the start of 2008. It is therefore important for the Environment Agency to understand and address the environmental impacts of the sector. A piece of research was carried out by the Environment Agency in 200921 aimed at understanding and improving compliance with regulations by small and medium size enterprises. The study found that although the Environmental Agency regulates a large number of enterprises, regulations are not generally designed around the size of businesses so little information is collated on levels of compliance or factors that affect small and medium size enterprises compliance. The main challenge identified in regulating small and medium size enterprises was communication - both to them to build capacity and increase awareness of regulatory requirements - and from them to enable them to engage with regulations and own
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them. The need to increase understanding among regulatory staff of the needs and challenges encountered when regulating small and medium size enterprises was also highlighted. The use of different co-regulation initiatives could be an effective and efficient way of regulating them, although issues of credibility must still be ensured. 4.5 Combination of Policy Instruments22
The report draws on literature on combining regulatory instruments and concludes that although this is an under-researched area, there is some consensus that behavior change is best pursued through a range of complementary instruments and approaches. The findings show the importance of implementing instruments in the right order to achieve positive results. In some occasions, different instruments have competing objectives and do not work well together. The evidence base needs to be developed to document exactly how, and to what extent, combinations of instruments and approaches might improve policy outcomes. The study shows that the Environment Agency frequently uses instruments in combination in its regulation with some good examples of positive results. The choice of which instruments to use is often done on an ad hoc basis and could benefit from structured evaluation to guide future interventions. This would help the Environment Agency formalize and standardize the ways in which it adopts combinations of instruments and approaches. Relevant studies by others organizations are discussed below. 4.6 Scotlands Environmental and Rural Services (SEARS)
This scheme, launched in 2008, is a partnership of nine organizations including the Scottish Environmental Protection Agency. Visits to farms and other land managers have been reduced dramatically by combining the roles of each partner who used to visit separately to inspect, give advice etc. The 2009/10 Annual Review23 reported numerous benefits including a reduction in administrative burdens and a reduction in environmental risk. 4.7 Better Regulation Research by Scotland and Northern Ireland Forum for Environmental Research (SNIFFER)
SNIFFER is currently funding two projects which are relevant to our subject. One of these24 will develop and test a framework for assessing the effectiveness of regulatory action at low risk sites. Although not yet complete, this project has undertaken a literature review of ten different countries and surveyed current practices of environmental regulators in the UK and Republic of Ireland. It has then proposed how regulators might choose the appropriate regulatory tool according to the nature of risk and the nature of the regulated business. The second project25 commenced in April 2011 and will report in 2012. It aims to provide a greater understanding of:
H ow environment agencies can tell whether businesses are well motivated to achieve regulatory requirements and then go beyond these requirements. What environment agencies can do apart from regulation to increase the motivation of those businesses that are not well motivated to comply with applicable environmental requirements? The capacity of environment agencies to make judgments on which organizations are likely to comply, and what actions to take and by whom. 4.8 The European Union Network for the Implementation and Enforcement of Environmental Law (IMPEL) Project on Better Regulation Principles26 This project identified 50 examples of initiatives from 14 countries to improve the efficiency and effectiveness of regulation. Of course many of these were not nontraditional approaches relevant to this paper but a number of examples were identified such as: A lternatives to traditional on-site inspection, e.g. the Netherlands initiative of self-management supervision where a company adopts management processes to ensure particular environmental outcomes are achieved. Thus, rather than inspect the specific actions and outcomes of the company, the inspectorate can inspect the quality of the self-management systems put in place. Joining up with other government inspectorates, where appropriate, to have more integrated approaches, e.g. Swedens Network Between Supervisory Bodies. Delivery of inspection by third parties, e.g. the use of authorized companies to undertake inspections for poultry farms in England and Wales covered by the Integrated Pollution Prevention and Control legislation. Unfortunately, however the report found that relatively few of the initiatives included an assessment of effectiveness. 4.9 The Organisation for Economic Co-operation and Development (OECD) Reports and Activities An OECD publication on trends and good practices re compliance assurance27 reported on a study to examine in a systematic way a range of environmental compliance assurance systems. The study engaged environmental authorities in six OECD countries Finland, France, Japan, the Netherlands, the United Kingdom, and the United States. Two major emerging economies were also involved China and Russia. The study included a comparative analysis of the OECD countries compliance and enforcement instruments, the ways in which they are applied, and the results achieved. Compliance approaches included compliance assistance, promotion of good corporate environmental management, financial incentives, and using public pressure to encourage compliance. It concludes by summarizing the main trends identified in the eight reviewed countries and indicates issues for examination in future studies on this matter.
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A recent OECD study on measuring performance of compliance assurance systems28 analyzed the experience of ten OECD countries in assessing the outcomes of their environmental enforcement authorities efforts to ensure compliance. Several of these included approaches other than inspections such as compliance assistance or audit agreements. The focus of the project was about the choice of outcome indicators and how these should be chosen and used to evaluate effectiveness, rather than providing evidence of the effectiveness of various approaches. 4.10 Industry Self Inspection and Compliance in the Ontario Forestry Sector, Canada In late 1995 and early 1996, the Ministry of Natural Resources budget was slashed as part of a government wide deficit reduction strategy. Its response was to change its approach to compliance, so that forest license holders took responsibility for conducting inspections, assessing compliance, and providing prevention education. The study developed an evaluation framework which focused on the three themes of: governance, accountability, and performance. Its conclusions highlight areas where the introduction of self inspection to the Ontario forestry sector was lacking.29 These include: G overnance: the lack of a mandatory training, qualification and protection for industry inspectors, conflicts of interest and a change in the power relationship between the Ministry and regulated industry where the Ministry was dependant on industry cooperation for both information and operational functions in ensuring compliance with forest management requirements. Accountability: the Ministries capacity to effectively oversee transfer of important functions is open to question in light of the Ministrys limited resources and weak legislative and penalty framework. Performance: there are major data gaps making assessment of performance difficult. Major questions remain about the quality of inspections; overall levels of compliance fell; the decoupling of policy and operational functions resulted in a major loss of 1st hand information.30 5 WHAT DO THESE STUDIES APPROACHES TELL US? OF NON-TRADITIONAL
The above studies show that non-traditional approaches certainly can work to improve compliance and perhaps reduce environmental impact. Whether they are more effective than traditional means and whether they work in all circumstances is not clear. Gunninghams31 summary: It all depends... is still appropriate. It is the context in which they are used and how they are applied and in what combinations that is relevant. In Gunninghams words32, context matters especially industry sector and company size and you have to recognize that a web of drivers on business already exists. This indicates that regulators and/or their governments might want to develop high level strategies as to which interventions to apply, by whom, where, and in what combinations. The authors have not come across
any examples of any such strategies. Indeed a very recent study on European Government Supervision 33 found that this is also the case in Europe for other regulators (not just environmental ones). Perhaps part of the reasons for this is that it is quite a challenge to provide a simple summary of when certain types of approaches are useful or not. Part of the challenge is that the selection of approaches is in part shaped by the history of the organization using them, and by differences in the influences on the regulatory context. Having said that we have attempted to provide an example of how that might be approached in box 3. Box 3: An example of how to choose regulatory approaches to match characteristics of sectors
Environmental Risk & Resource allocation Low
Low concentration, Low organization, Low capability Low motivation Low barriers to entry, OBJECTIVE: Improvements at the sector level Reactive Self Certification Guidance Random Inspection to build picture of compliance at sector level Reactive Self Certification Guidance Advice Partnership Company based approaches (account management) Random Inspection to build a picture of compliance at sector level
High
OBJECTIVE: Improvements at the site and sector lever Reactive Self Certification Guidance Random Inspection to build picture of compliance at site and sector level, focus on detecting illegal sites Reactive Self Certification Guidance Advice Company based approaches (account management) Partnership Random Inspection to build picture of compliance at site and sector level
Competitive Characteristics of Sector
High concentration, Highly organized High capability High motivation
HOW SHOULD ENVIRONMENTAL REGULATORS USE THIS INFORMATION
The authors make the following recommendations for regulators: R ecognize what is motivating business and what drivers are already in place to promote good environmental behavior. Develop ways of choosing the best approaches to supplement existing drivers on businesses so that their behavior meets regulators expectations. This is about what Gunningham describes as recognizing the context34 and is a new dimension of risk-based regulation. It is about finding a way of judging behavioral and organizational aspects of business and applying regulatory and other tools accordingly. Consider the level at which the problem exists and the timescale that is available to address it. So, for example, the traditional approach usually focuses on the
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site level were all aware of problematic sites. If the problem exists at other levels (site, sector, catchment or geographical area) then shape the regulatory approach to address the problem at that level. Get others on board - work with your Ministries, trade associations, local communities, NGOs and others to obtain leverage from those better placed to improve businesses environmental behaviors. Lobby them to play a part alongside you to deliver environmental goals you seek (i.e. foster hybrid environmental governance as Delmas proposes35). Develop your toolbox of non-traditional approaches that you can apply alongside interventions of others: Build capacity in your own organizations based on your experience and that of other regulators who have tried non traditional approaches. Examine not only what tools are available, but the extent to which they are used and how successful they have been. Deliver those interventions, where it matters most, recognizing Sparrows advice: Pick important problems and fix them apply an expert model: use your judgment over things such as what goals will not otherwise be met and where are there are deficiencies in law. 36 See how non-traditional approaches work and tell people about it. This means finding resources for evaluation and finding platforms to broadcast your results from. INECE conferences are a good place to start. Apply all the above judicially and never forget the value of traditional regulation. Dont be too hasty to reduce regulation. It may sometimes be essential to prevent the types of system failure that we have recently seen in other spheres. WHAT NEXT FOR REGULATORS, FOR INECE AND FOR ACADEMICS
The authors propose that all interested parties work collaboratively in the continued pursuit of an understanding of alternative approaches to regulation and the specific contexts in which these methods might work best, and in what combinations. Regulators with the help of others are in an ideal position to pursue joined up practice and action research by which we mean try things (for the right reasons) with academic involvement (to help design context specific experiments and measure if and why they work). They should do this with knowledge of what others (mainly regulators especially but not entirely environmental regulators) are doing so there is some degree of sharing the risk and resources. All concerned need to communicate what they are doing and the results of evaluation to each other as they go along. For example, INECE might set up a specific area of their web-site as one means where practitioners, policy makers, academics etc can share experiences. 8 REFERENCES Young R (2009) Chapter 1 in Delmas and Young, Governance for the Environment, New perspectives: Cambridge University Press
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Gunningham, N. (2009), Environmental Law, Regulation & Governance: shifting architectures. Journal of Environmental Law vol.21, no.2, pp.179-212. 3 European Commission 2010. Communication on Smart Regulation in the European Union 4 See for example, the (UK) Department for Environment Food and Rural Affairs 2010. Arms length bodies allocations 2011 15. http://www.defra.gov.uk/corporate/ about/reports/ 5 Thaler, R., Sunstein, C. R., 2008. Nudge: improving decisions about health, Wealth and Happiness. Yale University Press. 6 Delmas, M and Young OR (2009), Introduction p 3-11 of Governance for the Environment, New perspectives: Cambridge University Press 7 Cameron D. 2011 Speech at Conservative Party Spring Conference 6 March 2011. http://www.conservatives.com/News/Speeches/2011/03/David_Cameron_ Building_a_better_future.aspx 8 HM Treasury 2011 Budget 2011, The Stationary Office http://cdn.hm-treasury.gov. uk/2011budget_complete.pdf 9 European Commission 2010. Communication on Smart Regulation in the European Union 10 http://www.pm.gc.ca/eng/media.asp?id=3884 dated 13 Jan 2011 accessed 28 Mar. 11 11 http://www.ontariocanada.com/ontcan/1medt/downloads/ofb_overview_en.pdf accessed 28 Mar. 11 12 Black J. 2001, Decentring regulation: understanding the role of regulation and selfregulation in a post-regulatory world. In Oxford Journals, Current Legal Problems (2001) 54 (1): xi-xxv. 13 Porter, M.E. (1980) Competitive Strategy, Free Press, New York, 1980 14 Sparrow, M. K. 2000, The Regulatory Craft: Controlling Risks, Solving Problems, and Managing Compliance, Brookings Institution, Washington D.C., 2000. Ch. 1 15 IMPEL Project: Exploring the use and effectiveness of complementary approaches to inspection for ensuring compliance. See IMPEL website: http://impel.eu/projects/ exploring-the-use-and-effectiveness-of-complementary-approaches-to-inspectionfor-ensuring-compliance 16 Institute for European Environmental policy 2008, Review of the Effectiveness of Regulation. Report produced for the Environment Agency of England and Wales. 17 Environment Agency of England and Wales, 2010. Effectiveness of Regulation: Literature Review and Analysis (awaiting publication). 18 Young OR 2009, Chapter 1 of Governance for the Environment, New perspectives, Cambridge University Press 19 Zaelke, Durwood, et al,2005. Making Law Work: Environmental Compliance and Sustainable Development, INECE 20 Lorentzon, A. Environment Agency of England and Wales, personal communication 2011 21 Environment Agency, (2009), SC080017/R2 Understanding and improving SME compliance 22 Environment Agency, (2009), SC070073/R1 Choice of policy instruments for modern regulation and R2 Guidance on combining policy instruments 23 Scottish Government. 2010. SEARS Scotlands Environmental and Rural Services Annual review 2009 - 10
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SNIFFER (to be published later in 2011) ER 13 Assessing the Effectiveness of Regulatory Activities at Low Risk Sites and Proposing Good Practice 25 SNIFFER (to be published in 2012) ER21 Improving Compliance and Environmental Outcomes in New Ways with Limited Resources 26 IMPEL 2009 Practical Application of Better Regulation Principles in Improving the Efficiency and Effectiveness of Environmental Inspection Authorities 27 OECD. 2009. Ensuring Environmental Compliance: Trends and Good Practices 28 Mazur, E. 2010. Outcome Performance Measures of Environmental Compliance Assurance - Current Practices, Constraints and Ways Forward ,OECD 29 P.11 Winfield M, Benevides H, Industry Self Inspection and Compliance in the Ontario Forestry Sector, (Pembina Institute for Appropriate Development Mar 2003) adapted from MNR, Forest Management Business Plan, pp 15 and 22 30 Ibid ch8 pp62 - 73 31 Gunningham, N. (2009), Environmental Law, Regulation & Governance: shifting architectures. Journal of Environmental Law vol.21, no.2, pp.179-212. 32 Gunningham, N. 2011, Designing Smart Regulation. Presentation to International Regulatory Reform Conference Amsterdam, 10 -11 March 2011 33 Institute for European Environmental Policy 2010. Survey on European Trends in (Government) Supervision. Report for Inspectorate of Housing, Spatial Planning and the Environment in the Netherlands. 34 Gunningham, N. 2011. Designing Smart Regulation. Presentation to International Regulatory Reform Conference Amsterdam, 10 -11 March 2011 35 Delmas, M., and Young OR., (2009), Governance for the Environment, New perspectives: Cambridge University Press 36 Sparrow M.,K., 2011, Risk Control as Regulatory Strategy: Implications for Reform. Presentation to International Regulatory Reform Conference Amsterdam, 10 -11 March 2011
LEGAL TOOLS TO ENCOURAGE CITIZEN PARTICIPATION IN ENVIRONMENTAL ENFORCEMENT IN THE FLEMISH REGION (BELGIUM) DE SMEDT, PETER The author is member of the Flemish High Council for Environmental Enforcement; Scientific Researcher at the Centre for Environmental & Energy Law, University Ghent; and Environmental Lawyer, LDR Lawyers, Kasteellaan 141, 9000 Ghent, Belgium, peter.desmedt@ldr.be SUMMARY In Flanders, an innovative system to improve participation in environmental enforcement has been instituted. In favor of non-government organizations (NGOs), an almost unrestricted actio popularis is guaranteed. An actio popularis can be dened as an action brought by a citizen or an association (e.g. Environmental NGOs) before a court in the general interest, without any need to show a personal interest. Although the existence of an actio popularis is still a matter of controversy among prominent Belgian jurists and politicians, this wide-ranging access to administrative and judicial proceedings is explicitly recognized in the Belgian Federal Environmental Protection Act (1993) and the Flemish Enforcement Decree (2007). The non-organized citizens got legal facilities to participate in environmental enforcement. Via a request to administrative enforcement, which has been introduced in the Flemish Enforcement Decree, citizens can incite an administrative order against environmental infringements. However, in that case the citizen has to demonstrate that the invoked violation causes a personal loss. A technique, which has become important in recent years, especially in the field of environmental disputes, is the right of substitution of inhabitants of a local community. Through the right of substitution ex Article 194 of the Flemish Decree of Communes, whereupon a citizen is allowed to start a procedure in its own name as representative of the commune when the local authorities refuse to act in court, citizens also get access to the actio popularis anchored in the Environmental Protection Act. Nevertheless, this wider access to administrative and judicial proceedings did not result in a significant growth of environmental proceedings. In light of the public policy question how to encourage citizen participation in environmental enforcement; this observation is a pertinent question to discuss. 1 INTRODUCTION Enforcement is the ultimate test of every policy area, including environmental policy. Enforcement involves forcing the regulated society to conform to the rules. In Belgium, the ultimate aim of environmental law and environmental enforcement can be found in the social right to lead a life in conformity with human dignity,
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including the right to the protection of a healthy environment. This constitutional right is anchored in Article 23 of the Belgian Constitution.1 Public authorities bear the primary responsibility for environmental enforcement. In the Flemish Region, enforcement involves a variety of different administrative organizations: municipal authorities, provincial authorities, regional inspectorates (also called regional supervisors), the police force and the public prosecutor. Nevertheless, the Government has no longer a monopoly on environmental enforcement: both citizens and NGOs play an increasing role in environmental enforcement, directly (proceeding against the offender) and indirectly (keeping an eye on the enforcement efforts of the Government). With the improvement of democracy, more and more citizens (organized or not) realize their role, rights and responsibilities related to environmental conflicts and are more willing and able to complement governmental enforcement of environmental law. The importance of participation of citizens and NGOs in environmental enforcement is also recognized and supported in international law. Article 9 of the United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, which was adopted on 25th June 19982 requires that the public have access to legal procedures to challenge acts or omissions by private persons or public authorities that breach national environmental laws.3 Consequently, in many countries of the world, legislators are experimenting with the realization of participation in governmental decision-making. However, only a few countries have developed workable mechanisms for public participation in environmental enforcement.4 In this contribution two instruments, which could encourage citizens participation in the Flemish Region, are highlighted. First, the paper summarizes the request for administrative enforcement in case of an environmental crime, which was implemented by the Flemish Enforcement Decree (2007). Secondly, this article reviews the right to make an application to court in case of a manifest violation of environmental law, which is guaranteed in the Federal Environmental Protection Act (1993). In practice, these instruments are frequently used to act against a continuing policy of turning a blind eye to violations of environmental regulation. 2 REQUEST FOR ADMINISTRATIVE ENFORCEMENT IN CASE OF AN ENVIRONMENTAL CRIME
2.1 General Information Recently, a new environmental enforcement law came into force in the Flemish Region (further: Enforcement Decree).5 This Decree institutes a system which allows infringements of environmental regulation to be sanctioned in two ways: on the one hand judicial enforcement (through penal prosecution), and on the other hand administrative enforcement. Administrative enforcement can
take the form of administrative measures5 or administrative fines. Along with an administrative fine, an administrative confiscation of the illegally obtained assets may be imposed as well. Noteworthy, is the anchorage of the right of third parties to participate in this environmental enforcement. Moreover, in contrast with most other national legal orders in Europe, the Flemish legislator has recognized the actio popularis7 in administrative environmental law, especially for NGOs. Thus far, the initiative to sanction or not to sanction violations was a monopoly of the government and his agents. Under the new Enforcement Decree third parties can, under certain conditions, request the supervisor to take administrative enforcement measures against the offender. This request can only relate to administrative measures (i.e., an order to remediate illegal activities or to stop illegal activities or coercive measures muto proprio), not to administrative fines and other administrative sanctions (e.g. an administrative confiscation of the illegally obtained assets). Additionally, the supervisors decide autonomously what measure has to be imposed. They are not limited by the preferences of the requestor. 2.2 Locus Standi
Article 16.4.18., 1 of the Enforcement Decree grants the right to request for administrative enforcement to the following persons:
If they are aware of an environmental violation or environmental crime being committed, the following persons may request the persons stated in Article 16.4.6 to impose administrative measures: 1 natural persons and legal persons who suffer direct loss as a result of the environmental violation or the environmental crime; 2 natural persons and legal persons who have an interest in curbing the environmental violation or the environmental crime; 3 legal persons within the meaning of the Federal Act of 12 January 1993 on the right to act in protection of the environment7.
Identifying who suffers direct loss seems rather evident. In accordance with the wording of Article 16.4.18, 1, 1 of the Enforcement Decree, the loss has to be the direct result of the infringement of the environmental regulation, for example neighbors of a plant which are disturbed by noise, vibrations, odors, etc. Moreover, the plaintiff can only invoke actual loss. If the plaintiff does not have the required interest, his case is to be dismissed on the ground of not having standing. However, it is not required that the violated regulation intends to protect the interest of the plaintiff (Schutznorm-theory). More difficulties well up with the second group of applicants, namely those who have an interest in curbing the environmental violation or the environmental crime. The Explanatory Memorandum of the Enforcement Decree does not contain any
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guideline. It seems to be a category of persons who can request for administrative enforcement even when they do not suffer any direct loss as meant by Article 16.4.18, 1, 1, and are at the same time excluded from the actio popularis, meant by Article 16.4.18, 1, 3. In other words, if the persons designated in Article 16.4.18, 1,2 can take some advantage of an administrative measure against the violation, then they will have standing. Evidently, such a wide-ranging notion of interested parties sets the door wide open for initiating this specific administrative procedure. Thus, public authorities who have no competence to take administrative measures against violations can be regarded as a person who has an interest in curbing the environmental violation or the environmental crime. Trade unions as well as professional federations might also be reckoned as interested parties, meant by Article 16.4.18, 1, 2 of the Enforcement Decree. Environmental NGOs, within the meaning of the Federal Act of 12 January 1993 on the right to act in protection of the environment (Environmental Protection Act), do not have to demonstrate a personal interest. The Enforcement Decree has introduced a real actio popularis in favor of this category of legal persons. 2.3 Procedural Requirements and Legal Protection
The request for administrative enforcement has to be duly motivated: the applicant must make it plausible that an infringement of environmental law has occurred.9 This requirement aims to prevent a proliferation of requests ex Article 16.4.18 of the Enforcement Decree.10 Article 16.4.18., 2 of the Enforcement Decree states explicitly that the infringement of the law has to be made plausible. This provision has to be interpreted extensively: when the applicant only puts forward presumptions, according to the due diligence principle, the authority should take further initiatives to investigate the case. Thus, the applicant carries no restrictive burden of persuasion. The request for administrative enforcement must specify the administrative measure sought by the applicant. However, the authority is not bound by this indication: he chooses the measure autonomously. After hearing the violator, the authority takes a decision regarding the request within 30 days. The violator as well as the applicant can lodge an appeal against this decision. This appeal has to be brought before the Flemish Government which has to take a decision within 60 days. 2.4 Case Law
Although exact data are not available yet,11 it seems that citizens and NGOs make use of this new instrument quite frequently. A remarkable case is the illegal exploitation of a private flying-club, located on a military base. A nature conservation NGO requested the Flemish Environmental
Inspection Agency to stop these activities, because they could bring harm to the habitats and avifauna of a European protected area (Natura 2000). The national military authority had granted a concession allowing the flying club to make use of the runway, though the club lacked the necessary environmental permit. Nevertheless, the mayor of the community in question supported the flying-club and consequently refused to enact an enforcement order against the operator of the flying club. Moreover, the flying-club also ignored the demand of the Flemish Inspection Agency to stop using the runway for recreative flights. Therefore, the Flemish Inspection Agency enacted, on request of the NGO, an enforcement order to the flying club, containing a regularization order (a request of an environmental permit) as well as an injunction in case the required permit was not achieved within a period of 6 months. This legal instrument has also been used in the following case. In this case, environmental inspections proved odor nuisance in the neighborhood of a plant fabricating swimming pools, since the emission limit values for styrene were exceeded. Since the operator did not pay attention to several demands of the Inspectorate for the Environment to take adequate environmental cleaning measures, bothered residents requested the Inspectorate to impose administrative measures against the plant. In response to this request, the Inspectorate considered that the legal environmental duty of care of the operator was engaged and ordered him to take adequate measures to stop the odor nuisance, especially by fabricating behind closed doors and by implementing an emission-scrubbing system. This new instrument has also been discovered by employees organizations. A Joint Consultative Committee (Works Council) of a chemical plant asked the Inspectorate for the Environment, in accordance with Article 16.4.18 of the Enforcement Decree, to order the plant operator to replace two corrosive liquid reservoirs conform the conditions of the environmental permit and to install a system for detecting leaks from liquid-containing reservoirs. The Works Council took this legal action because, on one hand, the infringement of the permit conditions and the absence of a system for detecting leaks created a dangerous situation for the workers and, on the other hand, the management did not meet the questions of the Council to take the necessary measures. The Inspectorate recognized that the Works Council was able to file a request for administrative measures since it had an interest in curbing the environmental violation or the environmental crime in the sense of Article 16.4.18., 1 Enforcement Act. 3 THE RIGHT TO MAKE AN APPLICATION TO COURT IN CASE OF A MANIFES VIOLATION OF ENVIRONMENTAL LAW
3.1 General Information According to Article 17 and 18 of the Belgian Judiciary Code, a claimant is only entitled to a trial if he has a sufficient personal interest. This interest can be
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pecuniary as well as morally. The requirement of a personal interest means class actions are, according to Belgian law, excluded since a claimant cannot file a claim on behalf of others (nul ne plaide par procureur). Given that the environment is collectively owned (i.e. res communes), no one has a personal interest to go to court to protect the environment. This principle also applies to corporate entities. The Belgian Court of Cassation has consistently ruled that a general or collective interest in itself is not a personal interest for an association or other group.12 Associations, such as environmental NGOs, can therefore only act for the defense of either their own subjective rights, those of association members or other third parties they represent.13 In other words, only the Government is entitled to a trial in order to protect collective or public interests. To avoid the consequences of this strict jurisprudence, in 1993 the Federal legislator adopted the Act establishing a right of action for the protection of the environment (further: Environment Protection Act).14 The Environment Protection Act gives groups and citizens, albeit under certain conditions, the right to claim a court injunction to stop or avoid acts constituting a manifest infringement of environmental regulations. According to the case law of the Belgian Supreme Court (Court of Cassation), such an injunction may also consist of a repair order, under the condition that the restoration of the impaired environment is necessary to avoid supplementary environmental damage15. The infringement of all environmental provisions, including those on land use planning, may be invoked. The notion act is understood as a material act (pollution, operating a plant without a permit, dumping waste, etc.). In addition, the claimant has to demonstrate that the infringement is manifest. This means one has to prove that the illegal act has impaired the environment in one way or another16. Furthermore, not only actual infringements of environmental law but also serious threats for these infringements could justify an action under the Environment Protection Act. 3.2 Locus Standi
3.2.1 Who can proceed under the Environment Protection Act? The Act of 12 January 1993 provides certain NGOs with a right to file an action for injunction of acts infringing environmental regulations or constituting a serious threat of infringement of such regulations. Such action is open to nonprofit organizations having legal personality for at least three years, protecting the environment according to their statutory aim and capable of demonstrating that they are actively involved in the protection of the collective environmental interests.17 The same right is granted to the public prosecutor and the administrative authorities, inter alia local communities. As indicated below, the latter is important since the right of the local communities may, under certain conditions, also be exercised by the inhabitants of that local authority. However, it must be emphasized that administrative authorities may only act under the Environment Protection Act,
on condition that the infringement takes place in the area where the authority has competence and that the power to protect the aspects of the environment belongs to the authority involved.18 The right of action for the protection of the environment under the Environment Protection Act implies a real actio popularis. Neither NGOs nor administrative authorities have to prove a personal interest. When they act under the Environment Protection Act their interest is lawfully presumed. 3.2.2 The right of substitution by the citizens: an explosive cocktail? A legal technique, which has become important in recent years, especially in the field of environmental disputes, is the right of substitution of a local community by inhabitants. Local communities have, by their very nature, standing to act for the collective interests of their inhabitants. In principle, this institution of legal proceedings in the name of the local community is a competence of the local authority, namely the Board of Mayor and Aldermen of a commune or the Permanent Deputation of a Province. However, in case of omission by these authorities, any inhabitant of a commune can give notice to the local authority demanding them to go to court. If the authorities refuse to go to court or do not respond within a reasonable time, the inhabitant can initiate the procedure in its own name as representative of the commune. In principle, this possibility has existed since the Community Act of 1836.19 In Flanders, this possibility has also been broadened to include the substitution of the provincial authority by any inhabitant of that province and the substitution of the communal or provincial authority by legal persons having their seat in the commune c.q. province.20 This technique is even more interesting when it can be combined with one of the special rules on standing, such as in the case of the abovementioned actions for environmental injunctions (Environment Protection Act of 12 January 1993). The Belgian judiciary has accepted this combination,21 even if the local authority itself has previously permitted the act which causes the environmental infringement.22 Indeed, in accordance with Article 159 of the Belgian Constitution,23 the Court is authorized to verify the legality of those permits. 3.3 Procedural Requirements and Legal Protection
The President of the Court of First Instance is competent to adjudicate these lawsuits. According to Article 1385bis of the Belgian Judicial Code, the President of the Court can tie up his judgment with a performance bond (lastreinte). An astreinte consists in a sum of money that the Court may require the defendant to pay to the plaintiff if he doesnt comply voluntarily with the obligation imposed on him in the judgment. Thus, an astreinte resembles closely an Anglo-American subpoena that is imposed upon a judgment debtor in order to induce him to comply with the judgment order.
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If the environmental infringement is also prosecuted as a criminal offence, the criminal judge has to postpone his judgment until the verdict about the claim for the protection of the environment has become conclusive. In other words, the adagium the criminal places the civil in abeyance (le criminel tient le civil en tat) is not applicable in this constellation.24 Suppose the President had to respect this principle, the legal action under the Environment Protection Law would often become meaningless. Before debating, the court has to convene the litigants for an attempt at conciliation. However, this rule is not prescribed under penalty of being null and void25. Additionally, the President is not obliged to forbid the act, even if the act is illegal and environmental damage is caused. Due to Article 1 of the Environment Protection Act the President can forbid the act, which means he is not obliged to do so when he concludes that an infringement of environment law has been proved. In other words, he is able to balance the interests of the offender on the one hand, and the damaged environment on the other. However, the economic interests of the offender cannot be favored systematically, as the right to the protection of a healthy environment has the rank of a constitutional right. The President is also empowered to give the offender an adjournment to remediate the illegality, for example to apply for a necessary permit. The injured party can lodge appeal against the judgment of the President. Nevertheless the judgment is immediately enforceable, regardless of whether the injured party objects it or not. Although the cases have to be judged by way of summary procedure, the duration of the trial period is generally quite long. This is often attributed to the complexity and the technical nature of environmental litigations. In comparison with judicial actions under the Environmental Protection Act, the authority can react quickly through administrative orders, so the environmental infringement can be tackled in the shortest delay. Moreover administrative authorities usually have more (technical) expertise in environmental matters than the President of the Court, so they are better placed to estimate how to handle the (technical) problem on the field sufficiently. 3.4 Case Law A remarkable legal case is the exploitation of a municipal waste incinerator.26 In order to stop exploitation, the operator of the plant was brought to court under the Environment Protection Act. Due to flue gas and health effects, Neighborhood citizens had already complained against the plant. The action was initiated by an action committee, having the protection of the local environment under its statutes and by several citizens as representatives of the commune. In one hand, they referred to numerous infractions of the limit values for nitrogen dioxide in the atmosphere, and in the other, the serious real threat for infringements of these values in the future. The President of the Court of First Instance ordered an expert investigation
to find out whether the plant has caused manifest infringements of the limit values. This judgment was appealed immediately. The Court of Appeal of Ghent ruled that violations in the past cannot ground an action under the Environment Protection Act. Only actual or future infringements can be taken into account. Though the plant did not violate the limit values during the proceedings, the Court of Appeal judged that a serious threat of violation was present. Therefore, the Court ordered to stop preventively the exploitation of the plant since the operator neglected one of the most essential conditions of the exploitation permit, i.e. the installation of a NOx filtration system. Nevertheless, the Court of Appeal did balance the interests involved. More in particular, the Court took into account that waste incineration and employment serve a public interest. Therefore, the closing of the plant was not ordered immediately, so enough time was left to draw up a conversion plan. Another outstanding legal case has to do with the exploitation of the Brussels National Airport.27 Due to extreme noise pollution, a large group of citizens from a community in the neighborhood of the airport went to court to declare a ban on night flights. They based their action on the Environment Protection Law in combination with Article 271 of the Community Act. The Court of Appeal of Brussels adjudicated that the air travel caused an exceeding of limit values for noise emission, which manifests an environmental infringement according to Article 1 of the Environment Protection Act. Therefore, the Belgian State was condemned to take adequate measures to mitigate the noise pollution, especially by using flight plans that could comply with the limit values provided for by the Brussels Air Traffic Noise Act. Also, less spectacular cases are noteworthy. For instance, it was judged that a golf course in a zone with protected landscapes that causes a manifest infringement of the spatial planning regulation justifies the legal claim of a community to stop the exploitation and to order the removal of the modifications of the relief.28 Another example is the prohibition of a motorcycle circuit that infringes on Article 14 of the Flemish Nature Conservation Decree. Article 14 contains a duty of care towards nature. Since the exploitation of the circuit disturbed the avifauna of a nearby agricultural wetland complex it justified a legal claim under the Environment Protection Act. 29 4 FINAL REMARKS
We believe it is no expression of national chauvinism to conclude that the current system in force in Flanders is an innovative system for private parties to enhance environmental enforcement. An almost unrestricted actio popularis for NGOs is introduced in environmental matters. This actio popularis is recognized in judicial and administrative proceedings. In light of the spirit of the Aarhus Convention, the introduction of a real actio popularis in favor of NGOs is justifiable, even if the wording of Article 9, paragraph 3 of the Convention is very ambiguous. In spite of what was feared by some criticizers,
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the institution of this actio popularis did not explode in a growth of proceedings. Since the Environment Protection Act came into force (1 March 1993), NGOs have initiated 41 actions. The non-organized citizens received legal facilities to participate in environmental enforcement as well. Via a request to administrative enforcement, the citizen can incite an administrative order against environmental infringements; however, in that case he has to demonstrate that the invoked violation causes a personal loss. Through the right of substitution ex Article 194 of the Flemish Decree of Communes, citizens also get access to the actio popularis anchored in the Environmental Protection Act. This legal technique has extravagant consequences, because, using the constitutional exception of illegality ex Article 159 of the Belgian Constitution, citizens can compete against the permits allowed by the community by initiating an action, in the name of the community, under the Environment Protection Act. Nonetheless, this procedure has been used in limited ways. Since the Environment Protection Act came into force, only 35 legal actions have been initiated by citizens in case of omission of their community. However, confronted with this relatively low number of actions/requests, the question arises whether citizens participation in environmental enforcement has more to do with a changing of mentality, rather than an institution of legal tools. 5
1
REFERENCES
Article 23 of the Belgian Constitution protects the right to lead a life in conformity with human dignity. This right specifically encompasses the following rights: 1 the right to work and free choice of employment, within the framework of an employment policy aimed at ensuring a stable and high level of employment, to just conditions of work and fair remuneration, as well as the right to information, consultation and collective bargaining; 2 the right to social security, to health care and to social, medical and legal assistance; 3 the right to decent housing; 4 the right to the protection of a healthy environment; 5 the right to cultural and social development. 2 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, www.unece.org/env. adopted in the Flemish Region by Decree of 6 December 2002, Belgian Law Gazette, 1 January 2003. 3 In a case concerning the hunting of brown bears, the Court of Justice of the European Union ruled that individuals, including NGOs, do not have the right under the Aarhus Convention to challenge environmental proceedings. Only national laws can provide such a right. However, in relation to matters covered by EU environmental laws, national laws and procedural rules must, to the fullest extent possible, be interpreted in a manner consistent with the access to justice
objectives set out in the Convention (ECJ, C-240/09, 8 March 2011, Lesoochranrske zoskupenie VLK / Ministerstvo zivotnho prostredia Slovenskej republiky, http://curia. europa.eu/jurisp/cgi-bin/form.pl?lang=en). 4 See Casey-Lefkowitz, S., Futrell, J. W., Austin, J., And Bass, S. The evolving role of citizens in environmental enforcement, Fourth International Conference on Environmental Compliance and Enforcement, 14 pag., http://www.inece. org/4thvol1/futrell.pdf 5 Decree of 21 December 2007 concerning the addition of the Decree of 5 April 1995 concerning general provisions relating to environmental with Title XVI. Supervision, Enforcement and Safety Measures, Belgian Law Gazette, 29 February 2008. See for an English translation of this Decree: http://navigator. emis.vito.be/milnav-consult/consultatie;jsessionid=6E2E633596431E2A1CB1728 1B396CB88?language=en 6 Article 16.4.7. states: The administrative measures can take the form of: 1 an order to the suspected offender to take the necessary measures to end this environmental violation or environmental crime, wholly or partially rectify its consequences or prevent any recurrence of this; 2 an order to the suspected offender to stop activities, operations or practices; 3 an actual action taken by the persons stated in Article 16.4.6, the costs of which are borne by the suspected offender, to end this environmental violation or environmental crime, wholly or partially rectify its consequences or prevent any recurrence of this; 4 a combination of the measures stated in 1, 2 and 3. 7 In Holland, for example, the actio popularis has been abolished in 2005. Since 1 July 2005 the word everyone in Article 18.14 of the Environmental Management Act was substituted by the word interested, so only interested parties can request for administrative measures. The word interested party has a rather constricted definition. Accordance to Article 1:2 of the Dutch General Administrative Law Act interested party means a person whose interests are directly affected by a decision. People who are suffering environmental nuisance can be considered as an interested party. In this legal constellation it is difficult to request successfully for administrative measures when ecological values are affected. 8 See later, under nr. 3.2. 9 Article 16.4.18., 2 Enforcement Decree 10 Memorandum of Explanation, Parl.St. Vl.Parl. (2006-2007), nr. 1249/1, p. 47 11 For example: in 2009 (since 31 May 2009, i.e. date that the Decree came into force) the Flemish Government received 13 normal appeals against orders containing administrative measures and 8 appeals against orders containing administrative measures on request of the individual of legal persons ex Article 16.4.18 Enforcement Decree. In 2010 the Government received 34 normal appeals and 8 appeals against orders containing administrative measures on request of the individual of legal persons ex Article 16.4.18 Enforcement Decree. The Flemish Inspection Agency (one of the environmental enforcement agencies in Flanders with the widest competences for environmental enforcement) received 54 requests since 2009. 12 The main precedent is the Eikendael case, Belgian Court of Cassation, November 19, 1982, Arr. Cass. 1982-83, p. 372

13
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For corporate claimants, personal interest extends only to matters concerning the corporate entitys existence, material goods and moral rights (including its assets and reputation). 14 Law of 12 January 1993 on the right to claim for the protection of the environment, Belgian Law Gazette, 19 February 1993. 15 The main precedent is then Eurantex case. Belgian Court of Cassation, 8 November 1996, TMR 1997, p. 30, note Van den Berghe, J.; see also in this sense: Belgian Court of Cassation, 31 March 2008, TMR 2008, p. 506, note Lefranc, P. 16 See int. al. Belgian Court of Cassation, 18 December 2009, Pas. 2009, 3064; Belgian Court of Cassation, 2 March 2006, MER 2006, 127. 17 Article 2 Environment Protection Act. 18 Belgian Court of Cassation, 14 February 2002, RW 2001-2002, 1504. 19 Article 271 Community Act. 20 Article 187 of the Flemish Decree of Provinces of 9 December 2005 and Article194 Flemish Decree of Communes of 15 July 2005. 21 See Belgian Constitutional Court, case 121/2007, 19 September 2007, Belgian Law Gazette, 31 October 2007; Belgian Court of Cassation, 14 February 2002, RW 200102, 1504. 22 Belgian Constitutional Court, case 70/2007, 26 April 2007, Belgian Law Gazette, 30 June 2007; Belgian Court of Cassation, 10 March 2008, NjW 2008, 357. 23 Article 159 of the Belgian Constitution states that courts and tribunals may apply decisions and general, provincial, or local rulings only inasmuch as these are in conformity with the law. This means that judges are obliged to make abstraction of subordinate legislation that interferes with laws. 24 See Article 3, paragraph 6, Environment Protection Law. 25 Belgian Court of Cassation, 30 October 2003, NjW 2004, 523. 26 Court of Appeal Ghent, 26 June 2001, AJT 2001-02, 828. 27 Court of Appeal Brussels, 9 June 2005, Amn. 2005, 309. 28 Court of Appeal Antwerp, 15 September 2003, NjW 2004, 765. 29 President of the Court of First Instance of Tongeren, 14 December 2007, cited by Lefranc, P. in TMR 2009, 6. 6 BIBLIOGRAPHY
For a general introduction to European and Belgian environmental law for the nonlawyer: Lavrysen, L., Environmental law syllabus, 2009, http://www.emis.vito.be/ environmental-law-syllabus-0902 Lavrysen, L. And De Geyter, L., Organization of the Courts and tribunals and prosecution policy in the area of environmental crime, EU Forum of Judges for the Environment, Summary Report, http://www.eufje.org/uploads/documentenbank/ dc7fdaabc5f9924b0fc1ffc92e42c544.pdf STORME, M.E. And TERRYN, E., Belgian Report on Class Actions, The Globalization of Class Actions, Oxford Conference of 13 & 14 December 2007, http://globalclassactions. stanford.edu/sites/default/files/documents/Belgium_National_Report.pdf
ESTABLISHING REGIONAL WILDLIFE LAW ENFORCEMENT: LESSONS FROM AN UNUSUAL NGOS GOVERNMENT PARTNERSHIP IN THE CENTRAL AFRICAN SUBREGION ONONINO, ALAIN BERNARD Head of the Legal Department: The Last Great Ape Organization, Yaounde, Cameroon. alain@laga-enforcement.org SUMMARY This paper presents the problem of illegal hunting and illegal wildlife trade in the Central African subregion and analyses how a dedicated group of activists organized in small-sized non-governmental organizations are accompanying local governments of four countries. Significant success in Cameroon is now spreading as Gabon, Republic of Congo, Central African Republic join the fight against wildlife crime through the effective enforcement of wildlife legislations at the national and international levels. There are many challenges, in the forefront there is corruption confronting these teams in their daily functions. Nevertheless, the increasing NGO and governmental collaboration already shows significant results not only in terms of wildlife traffickers being prosecuted, but also in fighting corruption and raising environmental awareness. These both act as a deterrent and reduce the overall level of wildlife slaughtering and illegal trade in the Congo Basin. 1 STATUS OF WILDLIFE CRIME IN THE CONGO BASIN
The Central African sub region hosts the Congo Basin humid forests area, an estimated surface area of about 1.62 million km, which constitutes one of the worlds most important natural heritages. A large proportion of worlds biodiversity is found in the area that harbors significant populations of wildlife including flagship species, such as great apes and elephants. The area is also the home to more than 30 million forest dwelling peoples divided into two main ethnics groups: the Baka pygmies and local Bantu. These populations depend mostly on the innumerable environmental and especially wildlife products provided by the forests.1 Wildlife species are therefore directly threatened because they are killed for meat (i.e., hunting for food) as well as for medicinal and cultural purposes. Wildlife products and trophies are used during rituals and serve as emblems for traditional dignitaries.2 But the most serious threat faced by wildlife species occurs when they are killed to supply the increasing demand in wildlife products of local and international markets (i.e., hunting for trade). This is true for ivory trade where the increasing demand, notably in Asia, has led to the increase in poaching and, therefore, a significant decrease of elephant populations. Another factor leading to the increase of poaching and associated illegal trade is the increasingly dense network of new roads created by industrial logging and mining companies, which make it easier to access the deep forest and return with
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wildlife products to big coastal cities. Other aggravating factors include complicity, corruption and the profitability of wildlife and their products, which therefore places illegal wildlife trade at the third rank (according to classification made by United Nations specialists on crime) directly after illegal trade in arms and drugs to which it is sometimes connected as well as to child trafficking, etc. 2 WILDLIFE GOVERNANCE IN CENTRAL AFRICA
The need to improve wildlife governance in the subregion through effective enforcement of wildlife laws formed the basis for NGO-Government collaboration in the fight against wildlife crime. Over the past two decades, local governments have made some efforts for a sustainable management of wildlife resources. This has been the case with the creation and management of protected areas. In Cameroon, for example, there are six categories of protected areas: national parks, zoological gardens, wildlife sanctuaries, fauna reserves, safari hunting zones, and community management hunting zones. UNESCO has classified one of the most important protected areas in Cameroon, the Dja Wildlife Reserve, as a World Heritage Site, thus recognizing its outstanding universal value. Similarly, in order to better manage wildlife resources, other countries of the subregion have created protected areas such as Lop Okanda and Minkebe National Parks in Gabon, Odzalla National Park in the Congo, and Gounda St Floris National Park in the Central African Republic. With the adoption of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) in 1973 and the raise of wildlife protection as a global concern, governments started expressing the will to establish partnerships with local and international conservation entities for a sustainable management of wildlife resources. Wildlife therefore moved rapidly from being sovereign resources of the state to being resources co-managed by many actors including international and non-governmental organizations. Thus, many non-state organizations involved themselves in the management of wildlife together with local governments by carrying out a number of conservation initiatives. These included the sensitization of the public on the necessity of preserving and protecting endangered wildlife species, the promotion and development of alternative incomes and protein sources (e.g., agriculture and farming instead of hunting), the development of partnerships with logging and mining companies based around protected areas to promote good wildlife management practices and certification, and the establishment of trans-boundary conservation initiativesTri-National de la Sangha (TNS) grouping Congo, Central African Republic, and Cameroon and the Tri-National Dja-OdzalaMinkebe (TRIDOM) grouping Cameroon, Congo, and Gabon. By the 1980s, countries of the Central African subregion, as signatories to CITES, all followed the recommendations of this international treaty by adopting national laws governing the wildlife sector. With the reforms occurring in the 1990s in Cameroon and in the 2000s in Congo and Gabon, these countries endowed themselves with deterrent wildlife laws providing severe fines and imprisonment terms. As an illustration, maximum penalties for the killing of a totally protected animal are five years imprisonment and/or a $10,000 fine in Congo, three years imprisonment and/
or a $20,000 fine in Cameroon, and one year imprisonment and/or a $2,000 fine in the Central African Republic. Despite these measures, the level of illegal hunting and illegal trade had been increasing until recently because almost all of the conservation initiatives around protected areas emphasized development efforts without significantly increasing law enforcement efforts against illegal wildlife traffickers.3 The local wildlife administrations of each country in the subregion carried out regular anti-poaching patrols with few seizures of illegal wildlife products (meat and trophies derived from protected species), arms (sometimes heavy weapons like Kalashnikov AK45), ammunitions and the destruction of hunting camps and traps. Wildlife officials also carried out few arrests, but they only targeted small hunters, such as Baka Pygmies, who are the first link in the illegal chain of wildlife trade. The adoption of the first national wildlife laws resulted in almost no arrests or prosecutions of major wildlife traffickers (i.e., white collar poachers) for about nine years in Cameroon and twentyfive years in Congo and Central African Republic. Ultimately, areas with a strong conservation presence, such as Yokadouma and Djoum in Cameroon, Ouesso, Odzalla in Congo, Minkebe, Loango in Gabon, were paradoxically places with high levels of wildlife criminality. It therefore became urgent to find a meaningful response and short-term solution to illegal hunting and illegal trade in wildlife species. A system of collaboration between two major actors in the conservation area, local governments and non-governmental organizations, had to be put in place in order to strengthen the enforcement of national laws and international conventions protecting wildlife endangered species and create the deterrent factor that has so far been missing in the conservation framework. The remaining sections of this paper present the characteristics of illegal wildlife trade in Central Africa and focus on the creation of deterrence to combat it by applying and enforcing the already existing wildlife legislation through NGOgovernment collaboration and fighting corruption. This partnership is unusual because governments collaboration with non-governmental actors was in the past focused on other conservation aspects as discussed above. Law enforcement was regarded as a very delicate and sensitive issue, a source of dispute that was therefore avoided by conservation non-state actors. Huge funding continued to be mobilized on conservation efforts to clear consciences without looking back on the effectiveness of the results. The strategies put in place for this partnership are reversing the trend. 3 CHARACTERISTICS OF ILLEGAL WILDLIFE TRADE IN CENTRAL AFRICA AND MODUS OPERANDI OF WILDLIFE SMUGGLERS 3.1 International Organized Trade
Wildlife smugglers usually operate in syndicates with members found in several parts of a country. Members of the same syndicate can also be found in many countries of the subregion sharing information and organizing their illegal activities
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from one country to another. Moreover, poachers operating around border towns do not hesitate to cross borders and move into other countries either to escape the law or to seek refuge after committing their illegal act. Figure 1 depicts an overview of wildlife trafficking in Central Africa, illustrating this situation and showing connections between countries of the subregion. This is mainly due to the porosity of boundaries coupled with the involvement as accomplices of some customs authorities in each of these countries. The Central African subregion has become one of the most harmed by international wildlife illegal trade thatcannot be effectively combated solely at a national level. There is an urgent need to address the issue of wildlife law enforcement at the regional and international level in order to move from limited national efforts to the establishment of subregional wildlife law enforcement necessary to combat the international illegal trade. Figure 1: Overview of international wildlife traffic in Central Africa and operations sites
3.2
Use of Fraudulent Documents
Most of wildlife trade activities are illegal with some carried out without any of the administrative documents required by the law (capture, detention and collection permits, hunting license, CITES permits). Instead of getting the necessary documents from the wildlife administration, many wildlife smugglers do not hesitate to fabricate documents or use already falsified documents when performing their illegal activities. This is the case with CITES export permits, and the situation has been observed mostly in two forms of illegal trade: export of African Grey parrots
and Internet wildlife trade or wildlife cyber crime, which is a relatively new form of illegal wildlife trade. Concerning parrot trade, most of the CITES permits seized in the hands of traffickers revealed many types of counterfeiting: change in the name of the exporter from one who is regularly registered by the wildlife administration to one who operates illegally, change in the destination from a country that is a Party to the CITES convention to one who is not or who has been banned by CITES, false CITES stamps put on the document, and changes in the quota of parrots authorized by the document. For example, a seizure made at the Douala international airport in December 2007 revealed after a cross-check in the wildlife administration database that one CITES permit shown by the trafficker had many irregularities. The destination was changed from Westerlo (Belgium) to Kingdom of Bahrain, a country banned by CITES for export of parrots at the time of the seizure in 2007. The number of parrots in the false permit was 250, although the original document was delivered for 50 parrots only. There was a subtle adding of the digit 2 before 50 making an increase of two hundred parrots for a single CITES permit. Falsification and use of fraudulent CITES documents to carry out illegal wildlife trade activities over the Internet is a recent phenomenon. It was discovered in Nigeria where the phenomenon (i.e., Internet scamming or 419 scam) was gathering momentum. Wildlife cyber crime consists basically of scammers (mostly young people who intend to get rich and famous rapidly and easily) based in Cameroon posing as sellers and posting over the Internet pictures of wildlife species or products for sale, which are usually non-existent. The purpose is to get potential buyers out of the country, mostly in the Western World, in order to defraud them of huge sums of money using falsified CITES permits. So far Cameroon is the only country among the four where wildlife cyber crime has been observed. According to the Cameroonian law, CITES permits are official documents that can only be delivered by the Minister in charge of wildlife (CITES management authority in the country), and the use of such falsified documents is a crime punishable of up to twenty years imprisonment term. 4 STRATEGIC APPROACH: ENFORCING WILDLIFE LAW, EXPOSING CORRUPTION AND CREATING DETERRENCE
NGO-Government collaboration did not start at the same time in all four countries covered by the initiative. The first experience was carried out in Cameroon, where the first law enforcement non-governmental organization in Africa, The Last Great Ape Organization, started in 2003, worked to develop and refine a model for NGOGovernment collaboration. This partnership aimed to bring about the effective enforcement of laws and regulations governing the wildlife sector. The Last Great Ape Organization succeeded in proving the models success, shifting Cameroon from a decade-old baseline of zero wildlife prosecutions to an enforcement level of one major dealer prosecuted per week. Bolstered by these results, The Last Great Ape Organization started experimenting with other NGOs in transferring their experience and replicating the model throughout the subregion.
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The objective is not to open The Last Great Ape Organization branches in other countries of the Central African subregion, but to first identify in each country conservation NGOs already working locally that intend to carry out law enforcement activities. The Last Great Ape Organization then assists those NGOs in setting national precedents by achieving an enforcement rate of one arrest per week of a major wildlife criminal in each of the four countries, until they are able to have full ownership of functioning national projects of wildlife law enforcement and establish official collaboration with local governments. After the first successful Cameroonian experience, The Last Great Ape Organization started experimenting with other NGOs in Congo, the Central African Republic, and Gabon. Three replication initiatives have already been launched: PALF (Project for the Application of Law for Fauna) project led by The John Aspinall Foundation and Wildlife Conservation Society in the Republic of Congo. In the Central African Republic, the World Wide Fund for Nature - WWFs RALF (French acronym for Strengthening of the Wildlife Law Enforcement) project. AALF (French acronym for Support for the Implementation of Wildlife Law) project led by an NGO Conservation Justice with support from The John Aspinall Foundation. The Last Great Ape Organization model approach consists of four broad activities: investigations, field arrest operations, legal assistance and media promotion and reporting. 4.1 Investigations The field investigation missions began after field surveys revealed that illegal wildlife activities are being carried out mostly inside well-organized and wellequipped networks. These illegal activities span from the small-time hunter to the multimillionaire parrot exporter or manager of ivory handicrafts in the Asian market. They go through middlemen, some of whom are found at key points of the country, such as seaports and airports. Elements of a single network can be found in many parts of one country as well as in many countries in the subregion and abroad. The system put in place consists in developing a network of informants, investigators, and undercover agents who are able to gather precise information. This will enable governments to arrest not only poachers from the first level of the illegal network but also, and most importantly, major dealers behind the illegal trade who usually remain unidentified. The idea is to arrest the dealers red-handed in the act so as to produce concrete evidence for the courts. Due to the sensitivity and the secrecy of information gathered, the NGO conducts this stage of the collaboration independently. Apriority goal also is to target complicity and involvement of wildlife administrative and judicial officials in the trade. Sharing information with government officials is likely to compromise the rest of the process if the said official is connected to any major network. The collected
information is subject to exploitation by a team of wildlife and legal experts of the NGO in order to verify some vital elements such as: The type of products or the species of animal(s) involved (is the animal/product subject to total or partial protection according to wildlife law?). The profile of the dealer (small hunter, middleman, major dealer, recidivist, uniformed officer, etc.). The specificity of the area where the operation will be carried out. The validity of potential official documents involved (CITES export permit, certificate of origin of the animal/products). The detention by dealers of arms and ammunitions etc. 4.2 Field Arrest Operations
After the investigation, an assessment of only a ten percent chance is enough to commence a law enforcement operation in the field. It is at this stage that the competent wildlife authorities are informed and met in order to put in place a strategy for the operation that will result in the actual arrest of the target dealer or trafficker. The operation team is then created and usually consists of the following: At least one representative of the wildlife administration (who should be an official sworn by the court to report wildlife offences and record statements of offenders after operations). One or two representatives from the NGO (operation and legal assistants). Forces of law and order whose assistance is generally requested by wildlife officials. The NGO technically assists wildlife administration and law enforcement officials in the arrest of offenders, the writing of complaint reports, and the channeling of complaint reports to the courts. The NGO also closely supervises field operations in order to report and combat corruption and bribing. 4.3 Legal Assistance
The NGO presence includes its legal team that assists wildlife officials in recording the statement of the offender. The objective is to establish a strong complaint report necessary for an efficient prosecution. This requires good questioning of the defaulter in order to obtain useful information to track other elements and dismantle illegal wildlife trafficking networks, good establishment of various legal responsibilities (cases of complicity) if several dealers are arrested in one operation, and, finally, good qualification of the offence(s) according to wildlife law. The legal team makes a legal analysis for each case to help the representative of wildlife administration as well as the lawyer appointed to assert governments interests in court. The legal team also assists the administrative procedures of prosecuting legal cases arising from field arrest operations by following the entire process from the complaint report through to a final court decision being given and executed, and on to the monitoring of prisoners serving sentences. The legal team helps to fight corruption
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in the judiciary by alerting competent high authorities on corruption and bribing attempts observed in the courts and seek for appropriate measures to be taken. 4.4 Media Promotion and Reporting
The NGO puts reports in national TV news, national radio news, and written press concerning the successful operations and positive court rulings that result from its collaboration with government. This information is also put in international media or given in conferences or seminars through information reports and presentations. The media informs the public that the law is actively enforced, thereby raising environmental awareness, educating the public on the change, and deterring potential violators. Most important is building the public perception that the illegal wildlife trade is a criminal activity.4 5 LAW ENFORCEMENT AGENCIES IN CENTRAL AFRICA 5.1 Governmental Agencies
Each country in the Central African subregion has a governmental department, in charge of conservation and environmental issues, that has a unit dealing with enforcement of wildlife laws. In Cameroon, for example, a special anti-poaching unit has been created inside the National Control Brigade in other to implement the governmental strategy to combat wildlife crime. Officials of this unit are competent to identify, arrest, and prosecute wildlife criminals in the country. Other governmental law enforcement agencies, such as law enforcement officials (police and gendarmerie) and customs (mostly in airports, seaports, and other international entrance points), are also supposed to be involved in the fight against wildlife crime. The problem lies in the lack of collaboration between these agencies and wildlife authorities. 5.2 International Law Enforcement Authorities
International bodies, such as the International Criminal Police Organization (ICPO or INTERPOL) and the Lusaka Agreement Task Force, also collaborate with governmental authorities to combat wildlife crime. INTERPOL offers an excellent platform of exchange of information through the Ecomessage system developed to provide a uniform intelligence data reporting system for the many different law enforcement agencies concerned. Governmental and non-governmental law enforcement agencies have to use ecomessages to report all forms of environmental crime including wildlife crime. An ecomessage has to be submitted through an INTERPOL National Central Bureau (NCB) found in each country of the subregion or through the Sub-Regional Bureau based in Yaounde. The Lusaka Agreement Task Force is also highly involved in the fight against wildlife crime, notably in Congo, and collaborates with local authorities by alerting officials to illegal wildlife activities and identifying wildlife criminals in and around the country.
The Last Great Ape Organization as well as the other NGOs usually send an Ecomessage to the NCB each time there is an external factor after the operation (e.g., a foreigner is arrested or is suspected of being connected to the illegal trade in seized products coming from or intending to move to a foreign country). The use of the Ecomessage system led Cameroon and Hong Kongs wildlife enforcement agencies to be honoured in 2007. They received INTERPOLs Ecomessage Award for the extraordinary level of cooperation that they provided in the investigation after the seizure of 3,900 kilograms of ivory smuggled out of Cameroon and seized in Hong Kong in May 2006.5 6 ACCOMPLISHMENTS 6.1 General Overview of the Results
The Last Great Ape Organization -Government of Cameroon collaboration has showed that it is possible to provide measurable standards for the effectiveness of wildlife law enforcement through the number of major wildlife offenders receiving and serving a punishment. While in most countries in the Central and Western Africa the baseline for this indicator is still zero, the government of Cameroons collaboration with The Last Great Ape Organization succeeded in shifting the country from zero prosecutions to one major dealer arrested and prosecuted each week. A strategic analysis of these results over the past five years shows that almost all forms of illegal wildlife trade activities have been tackled in the framework of this collaboration. These include the trade of great apes, ivory, skins, bush meat, parrots, shells, and internet wildlife (see Figure 2 below). Concerning wildlife cybercrime, The Last Great Ape Organization is the first NGO to have brought up a case of Internet wildlife dealers in Cameroon. After the arrest of one scammer in Buea (Southwest region of Cameroon on the border with Nigeria), The Last Great Ape Organization discovered that Internet wildlife trade was not just a matter of Internet fraud but was linked with illegal wildlife trade. Further investigations carried out with the help of United States Fish and Wildlife Service revealed that the culprit had already sent twenty-two consignments of primate skulls to buyers mostly in the U.S. using falsified CITES permits before he was arrested.6 An analysis of the profile of wildlife traffickers arrested and prosecuted in the last five years in Cameroon clearly shows that strategy is less focused on small-time poachers in the forest but in more important links in the illegal chain of wildlife trade. These include middlemen, national and foreign major dealers (i.e.white collar wildlife traffickers). Most of them are based in the main cities to supply local markets, big hotels and restaurants, and export for the international market (see Figure 3 below).
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Figure 2: Wildlife cases profile in Cameroon between 2006-2010

bush meat trade, 12% others, 4% internet wildlife trade, 5% parrots, 5% tortoises shells, 3% skins trade, 21%
pet trade, 19%
ivory, 31%
Figure 3: Profile of dealers prosecuted in Cameroon between 2006-2010

uniform ocers, 2% foreigners (from Africa, Europes and Asia), 16% hunters, 11% wildlife authori7es, 3%
middlemen, 68%
Although replication projects in three other countries are quite new, notable results are already observed with major dealers being arrested within only a few days of the implantation of these projects and sentenced only few months after the launching of Project for the Application of Law for Fauna (PALF) and Strengthening of the Wildlife Law Enforcement (RALF) projects in Congo and Central African Republic, respectively. The first court decisions were a twelve month imprisonment for a chimp dealer in Congo and a three month imprisonment for a baby crocodile dealer in Central African Republic. Congo is at an average law enforcement rate of one major dealer arrested and prosecuted every month while Gabon has an impressive rate of one dealer arrested every ten days with two crackdown operations already carried out in Libreville.7 Governments have recognized all these achievements, and some of them already decided to formalize the collaboration with official Memorandums of Understanding with The Last Great Ape Organization and Project for the Application of Law for Fauna.
6.2
Cases Studies Illustrating Success of the Initiative
6.2.1 One Ton Ivory and Thousand of Parrots Dealers Successfully Prosecuted in Cameroon Police forces seized in Douala, the economic capital at the junction of all forms of illegal trafficking, one ton of ivory being transported in a truck to Nigeria. The Last Great Ape Organization assisted wildlife and judicial authorities in prosecuting the two dealers involved. After five months of trial, they were sentenced to penalties of one year imprisonment each and a fine of over $116,000 to be paid to the government of Cameroon (see Figure 4 below a picture of the operation taken from The Last Great Ape Organization website). Also in Douala, in only ten days two big consignments for a total of 1,200 African grey parrots about to be exported to Bahrain and Serbia were seized at the international airport alongside falsified CITES permits, in which false CITES stamps were stocked and number of parrots and destinations changed. The dealer involved in first seizure was prosecuted, while the court case of one involved in the second seizure, who is reported to be the biggest wildlife trafficker in the country, was stuck at the level of state prosecutor for more than three years before finally moving to judge for trial. A close follow up by the state lawyer assisted by The Last Great Ape Organization legal team permitted case to get back on track and combat all forms of corruption and other irregularities observed during the legal process. 6.2.2 Seven Successful Coordinated Operations in Cameroon, Gabon, Congo and Central African Republic in Four Days8 From 26-30 November 2010, seven operations were simultaneously carried out in the four countries covered by the replication initiative: In Gabon three operations saw the arrest of sixteen ivory dealers and the seizure of a total of 105 kilograms of ivory. In Cameroon three dealers in turtles shells were arrested in two operations and seventeen sea turtles shells seized. In Congo one dealer was arrested with 30 kilograms of ivory. In the Central African Republic one dealer was apprehended transporting two lion skins, two ivory tusks, and seven leopard skins hidden under a consignment of cow skins en route to Nigeria. All these operations, besides being excellent points scored in the fight against wildlife crime, illustrate the fact that regional law enforcement is no longer at the project stage but is becoming a reality in Central Africa. 6.2.3 Biggest Apes Operation in Gabon9 Only few weeks after the launching of Support for the Implementation of Wildlife Law (AALF) project, Gabon registered the biggest ape operation ever recorded
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in Africa. Five traffickers were arrested with thirteen ape heads and thirty-two ape hands among other contraband wildlife (see Figure 5 below a picture of the operation taken from African Conservation Foundation website). Figure 4: One ton ivory seizure in Douala - Cameroon Figure 5: Apes and other wildlife products seized in Libreville - Gabon
CHALLENGES: RESTLESS FIGHT AGAINST CORRUPTION
Today the most important challenge in wildlife law enforcement in the subregion is the fight against corruption. It is the main obstacle to effective law enforcement in Central Africa10 where corruption is present widely. Corrupt practices are being observed at every stage of the law enforcement process from the field operation with bribes given to police to courtrooms with big envelops of money given to magistrates for their groundless court rulings. In Cameroon, corruption has so far been witnessed in eighty-five percent of The Last Great Ape Organizations operations and in eighty percent of The Last Great Ape Organizations court cases; the situation is almost the same in the other three countries. The strategy put in place to fight corruption and all sorts of irregularities consists of observing and identifying corruption and bribery, which is then reported to competent authorities. Political influence through the Ministers in charge of Wildlife Justice and Security departments among others as well as the international community (embassies, other international NGOs, donors, etc.) is used so that appropriate measures may be taken both to avoid losing the case and to make sure that officials involved are sanctioned accordingly. Some battles have been won, while others lost, but lessons have been learned from these bad experiences and the fight continues. 8 WIDER PERSPECTIVES
The immediate goal is to extend the replication activities to other countries of the subregion and throughout Africa. It will consist of building relations with the governments of these countries in order to set up Government-NGO projects based
on the The Last Great Ape Organization model and ensure sustainability. Some of the targeted countries are Chad, Democratic Republic of Congo and Nigeria. The objective is to expand the model for regional wildlife law enforcement by creating a block of seven countries with an enforcement rate of one arrest per week. Hopefully, more conservation NGOs will assume responsibility for the fight against crime through effective law enforcement. An ultimate goal is that one day policymakers of the subregion will agree on an international convention harmonizing the procedures in each country and unifying the various national wildlife laws. Ideally there may be a single, directly enforceable, supra-national legal instrument that will better combat illegal international trade in wildlife in Central Africa. 9 REFERENCES UNESCO World Heritage Centre (2010), World heritage in the Congo basin, http:// whc.unesco.org/uploads/activities/documents/activity-628-1.pdf 2 For the case of Cameroon, see for example, Nguiffo, S. and Talla, M. Cameroons wildlife legislation: local custom versus legal conception, available at www.fao.org/ docrep/013/i1758e/i1758e05.pdf 3 See for example: Oates, John F. Conservation, Development and Poverty Alleviation: Time for a change in attitudes, The Earthscan Reader in Poverty and Biodiversity Conservation, 2010, pp 277-284 4 The Last Great Ape Organizations activities and results are available at The Last Great Ape Organizations official website www.laga-enforcement.org 5 See for example International Fund for Animal Welfare, Ecomessage Award, http:// www.ifaw.org/ifaw_international/join_campaigns/fight_illegal_wildlife_trade/ protecting_animals_with_international_treaties/ecomessage_award/index.php. 6 More details on this case are available at The Last Great Ape Organizations website http://www.laga-enforcement.org/Portals/0/Documents/Activity%20reports%2020 09/Activity%20Report%20-%20Feb.%202009.pdf 7 Project for the Application of Law for Fauna (PALF) and Strengthening of the Wildlife Law Enforcement (RALF) activities and results are available at The Last Great Ape Organizations official website op cit. 8 Central Africa: four-nation sting operation busts wildlife smuggling ring, Conservation News (12 December 2010), available at http://www.guardian.co.uk and http://www. africanconservation.org/201012122034/conservation-news-section/central-africafour-nation-sting-operation-busts-wildlife-smuggling-ring 9 Mathot, Luc, Conservation Justice, Gabon: 13 ape heads, 32 ape hands, 12 leopard skins, 1 lion skin, 5 elephant tails - and 5 dealers behind bars!, Network News (14 January 2011), available at http://www.africanconservation.org/201101142063/networknews-section/gabon-13-ape-heads-32-ape-hands-12-leopard-skins-1-lion-skin-5elephant-tail-and-5-dealers-behind-bars 10 For more on relation between environmental protection and corruption, see for example, Peh, K. and Drori, O., Fighting corruption to save the environment: Cameroons experience, AMBIO: A Journal of the Human Environment (2010), Vol. 39, Number 4, pp 336-339
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BEYOND DETERRENCE: COMPLIANCE AND ENFORCEMENT IN THE CONTEXT OF SUSTAINABLE DEVELOPMENT PADDOCK, LEROY C. Associate Dean for Environmental Law Studies, The George Washington University Law School, 2000 H Street, NW, Washington, DC 20052, USA, lpaddock@law.gwu. edu. SUMMARY Regulation is the most direct and predictable mechanism for controlling environmental behavior. Strong compliance and enforcement programs that punish violators and deter violations by others are, of course, essential to any successful regulatory system. It is increasingly clear, though, that regulation cannot by itself produce the behavioral changes needed to achieve sustainable environmental outcomes. The nature of environmental challenges has undergone such a fundamental change that the existing regulatory-focused system of environmental governance cannot ensure healthy air, clean water, a stable climate, safe drinking water, vital ecosystems, and continuing biodiversity. Rather, sustainability will also require better alignment of economic drivers with environmental goals and changes in societal values.1 Internal economic drivers have an increasing impact on company environmental performance. These internal business economic drivers include reputation, customer demand, investor pressure, supply chain requirements, the ability to attract and retain employees, insurance availability, license to operate, lender concerns, government and public relations, access to markets, product differentiation, green procurement standards, industry codes of conduct, international environmental standards such as ISO 14000, and operational efficiency. Similarly, whether viewed in terms of individual responsibility or ethics or stewardship, values must play a growing role in environmental governance. The Aspen Institute in its work on resource stewardship observed, [w]ithout personal and collective commitment, without an ethic based on acceptance of personal responsibility, efforts to sustain natural resources protection and environmental quality cannot succeed.2 The need to achieve environmental outcomes well beyond those mandated by law, the growing role of internal economic drivers in organizational environmental behavior and the importance of values in making progress on environmental issues point to the need to rethink compliance and enforcement strategies. While enforcement programs still must punish wrongdoing and deter others from violating the law, government agencies must also consider, as a strategic matter, how compliance and enforcement resources can have an impact on internal economic drivers of environmental behavior and how the resources can influence
societal values more generally. Although compliance and enforcement managers have, for some time, considered economic and values in designing programs, these efforts must be expanded to meet environmental objectives. This section suggests several ways that compliance and enforcement program managers might be able to better leverage their assets to influence internal economic drivers and help build public values that support more sustainable environmental outcomes. These approaches include: e mploying a full range of compliance and enforcement tools to solve important environmental problems; designing compliance and enforcement programs that better align with marketbased incentives; promoting learning and self-evaluation; enabling the public to directly influence environmental decision making; encouraging collaborative problem solving; supporting private sector enforcement through supply chain management; recognizing superior environmental performance. 1 INTRODUCTION Klaus Bosselmann and David Grinlinton observe in their book Environmental Law for a Sustainable Society3, The notion of sustainability is more than a catchy phrase for an improved environmental protection strategy. Many commentators have linked sustainability to fundamental concepts such as freedom, justice and equity. There is a widespread perception today that sustainability must inform future development of society in much the same way as freedom and equity informed its present development. Only a sustainable society, capable of working with nature, not against it, will have a chance of survival.4 Professor John Dernbach in Agenda for a Sustainable America notes, sustainable development requires action by governments at all levels but cannot be achieved by government alone. All segments of American societyindividuals, nongovernmental organizations, businesses, the scientific and technological community, educational institutions, religious organizations and familiesneed to play an active and constructive role.5 This will require continuing efforts to create stronger economic signals supporting more sustainable behavior and to build societal values supporting sustainable outcomes. Forty years after the dawn of the modern age of environmental law, the nature of environmental challenges has undergone such a fundamental change that the system of environmental governance must be re-imagined to ensure healthy air, clean water, a stable climate, safe drinking water, vital ecosystems, and continuing biodiversity. As Professor JB Ruhl has observed, the environment operates in a state of highly complicated, organized disorder. Indeed, scientists are beginning to understand that the disorderthe chaos that is inherent in the environmentis its means of sustainability.6 Based on this more sophisticated understanding of
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the nature of complex environmental systems, Ruhl asks, Is it an accident that sustainable development, adaptive management, and biodiversity were unheard of in the environmental policy debates of twenty [now thirty] years ago . . . ?7 He answers, I think not. Rather, the evolution of environmental law has led us to this point precisely because these three concepts are related and because they are consistent with the vision of law as a complex adaptive system.8 In many ways, existing environmental regulatory and enforcement programs are designed to function in exactly the opposite way. Our environmental laws tend to focus on specific pollutants discharged from specific facilities. These facilities are regulated through facility-specific permits and subject to facility-specific inspections and enforcement actions. Ruhls analysis supports the idea that relying solely on traditional regulatory approaches will not get us where we need to go. While compliance and enforcement programs are a necessary part of any effort to achieve sustainable environmental outcomes, simply enforcing regulations is not sufficient to achieve these outcomes. However, compliance and enforcement programs may be able to play a role that extends beyond deterring violations. Certainly, we want our compliance programs to help organizations meet regulatory requirements and our enforcement programs to deter as many violations as possible. But because compliance with existing environmental regulations is not sufficient to achieve the larger goal of sustainability, it is important for those working on compliance and enforcement programs to think about how they might leverage their work to influence internal9 economic drivers of environmental behavior and help build societal values that help achieve results beyond compliance. Enforcement programs have, for some time, supported efforts that are designed to prevent pollution, encourage the development of better environmental management systems, and promote environmental auditing, all of which can have an impact on internal economics and on values. But enforcement officials typically have not assessed the extent to which their programs can and should strategically take into account internal economics and societal values as part of the larger effort of environmental agencies to achieve sustainable outcomes. 2 DETERRENCE THEORY
The most prominent theory of general deterrence posits that those subject to regulation are amoral calculators.10 Under this theory, a regulated entity will comply only when the entity believes that violations are likely to be detected and a significant penalty would be imposed.11 The amoral calculator or profitmaximizer theory is consistent with the deterrence approach many regulators have historically relied upon in developing their enforcement programs. This view typically leads to the use of traditional enforcement techniques such as government monitoring and inspections coupled with penalties.12 Empirical studies, however, indicate that classic deterrence theory does not reflect the real world. Gunningham, Thornton & Kagan found in a study of electroplating
and chemical companies that neither specific nor general deterrence played a major role in shaping corporate environmental behavior.13 Deterrence did play a role in reminding the companies of their environmental obligation, but the authors found [o]f far greater importance in motivating management was what we term implicit general deterrence.14 They concluded, Regulation works through a complex mixture of pressures, fear, and normative duty.15 A second view of compliance behavior is that of a good faith complier.16 Under this view, compliance flows from the firms drive to obey the law.17 This view of compliance is based on a view that legitimate laws should, as a matter of societal norms, be followed.18 The normative view of compliance suggests strategies more reliant on education and cooperation. Professor Malloy suggests a third factor in compliance decisionmakingfirm routine. He observes that noncompliance under this view may be related to a management failure to track and correct problems that may lead to violations.19 Management problems can be addressed through training and the adoption of better management systems. 3 BEYOND COMPLIANCE BEHAVIOR
A study entitled General Deterrence of Environmental Violations by the Oregon Department of Environmental Quality found that
behaviors that go beyond compliance are likely more motivated by a pro-environment philosophy, by employee and customer relations, and by financial advantages of the improvement [than by deterrence]. It is not reasonable to assume that companies would be compelled to do more than required simply because they heard that other companies failed to meet minimum requirements.20
A critical question for compliance and enforcement program managers is whether their programs are restricted in scope to assuring that regulatory drivers function at their highest level or whether compliance and enforcement programs also play a role in shaping the economic and values drivers that are critical to achieving more sustainable environmental outcomes. These somewhat larger strategic goals for compliance and enforcement are more than theoretical. By better understanding and leveraging the growing number of internal economic drivers such as reputation, supply chain requirements, and consumer preferences that push companies to go beyond minimum regulatory standards to reduce their environmental footprint in ways not required by law, compliance and enforcement programs may be able to stimulate more sustainable environmental actions. Similarly, compliance and enforcement programs can be designed in ways that help make sustainability a societal norm. The Oregon study indicated that existing enforcement strategies have already had an impact on internal economic incentives and public values in addition to
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regulatory compliance. However, one of the key challenges in achieving beyond deterrence objectives is how to transform what are often incidental impacts of existing compliance and enforcement strategies into an intentional policy that achieves wider societal objectives. The Oregon study observed,
By integrating a variety of regulatory toolseach consciously chosen for its effectiveness in a particular applicationan agency can create a system that both pushes and pulls regulated entities toward environmentally protective behavior. Such a holistic approach can work to decrease direct compliance costs (through information sharing, assistance and incentives), increase direct cost to noncompliance (through penalties and sanctions) and increase the probability that non-complying companies will experience further direct and indirect costs (through customer and community pressure) or additional government interventions (through inspections and monitoring).21
INTERNAL ECONOMIC DRIVERS
An increasing number of companies are setting and achieving environmental standards that exceed those required by law or that involve environmental issues for which few or no environmental regulations exist. These actions result from a wide range of what might be best described as internal economic drivers. These internal business economic drivers include reputation, customer demand, investor pressure, supply chain requirements, the ability to attract and retain employees, insurance availability, license to operate, lender concerns, government and public relations, access to markets, product differentiation, green procurement standards, industry codes of conduct, international environmental standards such as ISO 14000, and operational efficiency. These drivers can produce extremely important results, although the results are likely to be less predictable than those achieved through regulatory programs. However, given the limits of regulatory programs discussed above, these environmental results are important to achieving more sustainable environmental outcomes. Marc Allen Eisner pointed out, Future gains in environmental quality may be impossible without a fundamental reconsideration of regulatory design. This reconsideration must take the form of incorporating advances in corporate self-regulation, associational regulation, and standards into the regulatory system and thinking creatively about how public policies can be used to reinforce incentives or compensate for their absence.22 Research suggests at least five reasons a company might voluntarily regulate its environmental practices to gain a competitive advantage: 1. Shrinking waste output and production inefficiencies can reduce environmental impacts and overall costs and increase competitiveness. 2. Environmentally responsible companies attract and retain a higher-quality workforce and increased worker satisfaction leads to increased productivity. 3. Environmentally responsible companies have a better reputation in the community, which can lead to more brand loyalty. These companies also have a decreased risk of being targeted by environmental activists, which can tarnish the brand reputation.
4. Environmental responsibility reduces the risk of being exposed to risks like new regulations, pressure from investors to change policies, and increasing business costs. 5. Environmentalism may provide access to or create a completely new market with the potential for significant revenue growth.23 In short, being more responsible may help corporations out compete rivals by staying ahead of tightening regulations, reducing usage of increasingly costly inputs, and attracting investment dollars from concerned consumers.24 Other researchers agree that a company can gain a serious advantage when they start taking the environment into consideration.25 In their four years of research, Daniel Esty and Andrew Winston found that companies who are successfully and profitably implementing environmental initiatives understand the interface between environmentalism and business.26 These companies started out implementing environmental management plans because they had to, but now see business opportunities in going beyond compliance.27 They have evolved to the point where environmental management is second nature and their focus is now on mining the gold in environmental strategy.28 This is in stark contrast to companies that have not evolved in their thinking since the 1970s . . . and are still grousing about legislation and complying with it grudgingly.29 Another factor in the evolution some companies have undergone is pressure from stakeholders, although the decision to implement environmental initiatives is ultimately linked to the bottom-line. The growing push from stakeholders has caused companies to consider building their reputation for corporate responsibility. Esty and Winston were surprised at how often executives said the reason for launching an environmental initiative was because it was the right thing to do.30 However, building a good reputation is not just the right thing to do, it is also a point of competitive advantage because doing the right thing attracts the best people, enhances brand value, and builds trust with customers and other stakeholders.31 Esty and Winston conclude: The logic of corporate environmental stewardship need not stem from a personal belief that caring for the natural world is the right thing to do. If critical stakeholders believe the environment matters, then its the right thing to do for your business.32 Perhaps the most important new set of stakeholders are banks and insurance companies because they may require environmental assessments for major loans and give lower lending rates to companies with carefully constructed environmental management plans.33 Community pressure is also an important force to be reckoned with. In their research on the pulp and paper industry, Gunningham, Kagan, and Thorton found firms were motivated to go beyond compliance because of pressures from the social license.34 Firms are so motivated because the social license can be enforced in very real ways. It can be enforced by an enhancement or destruction of the firms reputation, by putting pressure on regulators to more vigilantly enforce existing regulations, by the filing of citizen suits, by lobbying for tighter regulations, and by
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market pressures such as boycotts.35 The authors found that pulp and paper mill firms were generally highly motivated to stay ahead of environmental regulations so that they could remain in the publics good graces.36 The attitude of company managers can play an important role in determining whether a company will be motivated to go beyond compliance. In a study of fourteen pulp and paper manufacturing mills in British Columbia, Canada, Australia, New Zealand, and the states of Georgia and Washington, the researchers were focused on trying to understand the reasons for the wide variations in environmental performance.37 One of the interesting observations of their work is that the influence of social pressures on environmental performance depends on an intervening variable managerial attitudes.38 In fact, in their analysis, environmental management style was a much more powerful predictor of mill-level environmental performance than regulatory regime or corporate size and earnings.39 The factors that motivate large firms to go beyond compliance may not, however, have the same impact on smaller businesses. David Williamson and Gary LynchWood found that the social license does not inspire small firms to go beyond compliance because the main motivations of the social license, stakeholder pressure and reputation, do not affect them in the same way they affect large firms and these factors therefore do not produce a response from them.40 The authors identify five factors that influence a firms environmental behavior: 1) the environmental impact of the firms products and processes; 2) customer power; 3) customer interest; 4) corporate/brand visibility; and 5) community pressure.41 They found that two or more factors must have a high pull rating before a firm would be motivated to go beyond compliance.42 These factors often are not significant enough to drive the behavior of smaller firms. Thus, it is important for government, in looking at the factors that motivate corporate behavior, to be thoughtful about whether particular companies or particular industries are more or less likely to be motivated to perform beyond what the law requires. The research suggests that it may be more important to target enforcement on companies that do not have a high public profile while using other tools such as recognition to encourage companies with a higher public profile to maintain or expand their beyond compliance activities. The research also indicates that supporting companies that have strong supply chain requirements may help address potential problems among smaller, less publicly visible companies. In order to achieve optimum results with the limited resources available to them, government agencies must continue to develop their understanding of how these internal economic factors affect corporate environmental decision making and take the factors in to account in designing management systems and setting priorities. 5 VALUES Whether viewed in terms of individual responsibility or ethics or stewardship, values must play a growing role in environmental governance. The Aspen Institute in its work on resource stewardship observed,
Similarly, the Presidents Council on Sustainable Development found, Stewardship is an essential concept that helps define appropriate human interaction with the natural world.44 And, in a recent report, the EPAs National Advisory Committee for Environmental Policy and Technology (NACEPT) recommended that the Agency incorporate the concept of stewardship into its core mission, defining stewardship as
individuals and institutions taking responsibility to protect and enhance the environment and human health. As an ethic, environmental stewardship is rooted in both individual values and organizational cultures. As a practice, environmental stewardship embodies the understanding that compliance with environmental regulations is fundamental, that voluntary efforts are important but not a replacement for compliance, and that individuals and organizations should systematically and continuously work to reduce or avoid the adverse environmental and health impacts of their activities. Stewardship as both an ethic and a practice requires the fair treatment of all communities.45
Continued prosperity depends on our ability to protect natural heritage and learn to use it in ways that do not diminish it. Stewardship is at the core of this obligation. It calls upon everyone in society to assume responsibility for protecting the integrity of natural resources and ecosystems and, in so doing, safeguarding the interests of future generations. Without personal and collective commitment, without an ethic based on acceptance of personal responsibility, efforts to sustain natural resources protection and environmental quality cannot succeed.43
Based on this definition, the National Advisory Committee for Environmental Policy and Technology report suggested,
As our vision indicates, we believe that stewardship can make meaningful contributions to achieving significant environmental outcomes. EPAs work is, of course, driven primarily by regulatory mandates from Congress and is limited by resources. Strong regulatory and enforcement programs play a significant role in motivating stewardship actions. However, the complex environmental challenges the country and the world face often stretch beyond the borders of the law and frequently outstrip the resources available to the Agency. Addressing big environmental problems requires the Agency to leverage other resources (such as private sources of funding, citizen action, and corporate actions like supply chain requirements) and sources of knowledge and experience. We believe that stewardship activities can make important contributions to leveraging these external resources.46
Values are one of the key drivers of environmental behavior. People tend to act in pro-environmental ways when a situation activates a feeling of moral obligation to do so simply put, pro-environmental behaviors are more likely when people feel morally responsible to undertake them. People will engage in pro-environmental actions when situations activate personal norms.47 Personal norms, which are feelings of an obligation to act in a particular way,48 can be a potent influence on environmental behavior because people try to avoid the guilt of breaking personal norms. Personal norms are deeper than social norms, which are rules for expected behavior based on the behavior of others. A person acting on a personal norm will behave more consistently than a person acting out of extrinsically created social
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norms because the feeling of obligation and guilt exist whether or not other people disapprove. 49 When norms become very deeply internalized, they give rise to identity, which is a sense of oneself. The Norm-Activation Theory of Altruism was developed by S.H. Schwartz.50 Schwartz was interested in the question of why people help others when there is no benefit to them. The Norm-Activation Theory of Altruism posits that people help others when situations illicit their feeling of personal obligation that is, when something activates a personal norm. Building on the Norm-Activation Theory of Altruism, the Values-Beliefs-Norms Theory posits that activation of a personal norm stems from ones values. The Values-Beliefs-Norms suggests that values underlie and affect everything, from how a person interprets information, to what they are aware of, to what they think humans are responsible for, to what they do about it. According to Values-Beliefs-Norms theory, values affect and shape ones beliefs, beliefs then affect and shape ones norms, and ones norms lead to behavior. A person will choose environmentally preferred behavior when the choice triggers a feeling of moral obligation to do so. But what that feeling of obligation is will depend on the persons values, because the norm of moral obligation is shaped by values. Stern et. al (1999) have found that Values-Beliefs-Norms theory offers the best account for non-activist support of the environmental movement. Eckersley (1992), Grendstad & Wollebaek (1998), and Thompson & Barton (1994) describe values in terms of anthropocentrism (the belief that the environment needs protection because of its contribution to human welfare)51 versus eco-centrism (the belief that the ecosystem has an intrinsic value and therefore should be protected). Stern et. al describe three value orientations: self-interest, altruism towards others, and altruism toward other species and the biosphere. 52 These can be referred to as egoistic values, altruistic values, and biospheric values. An individual with egoistic values cares about the environment when there is a direct and personal impact on the individual. An individual with altruistic values cares about the environment because of its relevance to other human beings.53 An individual with biospheric values cares about the environment and ecological systems themselves, beyond the impact on human survival and personal comforts. Pro-environmental actions (like other kinds of actions) are taken because a trigger activates a moral obligation. The moral obligation, in turn, depends on ones value orientation, so that only a trigger within the value orientation will activate the moral norm to act. A person with an egocentric value orientation may not be triggered by a message to save the planet, but the persons actions may be triggered by a message to save the lake that the person swims in every morning. Given that diffuse sources of pollution are a critical element of many of our major environmental problems, values are central to solving many of our environmental problems. Compliance and enforcement programs can play an important role in building personal and social norms that support more sustainable environmental outcomes by carefully considering how these programs can have an impact on educating individuals and organizations, reminding individuals and organizations of the importance
of environmental issues, activating egocentric, altruistic, or biocentric values, and demonstrating that those who comply with or, more importantly, go beyond what the law requires are assured that they will not be undermined by noncompliance. 6 BUILDING BEYOND DETERRENCE ENFORCEMENT PROGRAMS COMPLIANCE AND
The preceding discussion of the changing nature of environmental problems, the need to achieve environmental outcomes well beyond those mandated by law, the growing role of internal economic drivers in organizational environmental behavior and the importance of values in making progress on environmental issues point to the need to rethink compliance and enforcement strategies. While these programs still must punish wrongdoing and deter others from violating the law, the significant resources invested in compliance and enforcement programs suggests that program designers and managers must also consider, as a strategic matter, how these resources can impact internal economic drivers of environmental behavior and how the resources can influence societal values more generally. This section suggests for purposes of discussion several ways that compliance and enforcement program managers might be able to better leverage their assets to influence internal economic drivers and help build public values that support more sustainable environmental outcomes. 6.1. Employ a Full Range of Compliance and Enforcement Tools Compliance and enforcement programs can achieve results that extend beyond deterrence by reminding the public of the need to comply with the law, by reflecting the fact that environmental issues are an important public value, and by reinforcing the need to act in conformity with those values. These reminding, reflecting and reinforcing functions are best accomplished when there is regular interaction between the regulators and the regulated community that occurs in settings that range from educational on one end of the spectrum to criminal penalties on the other. This approach is analogous to the concept of community-based policing,54 a widely used though sometimes controversial55 approach to crime reduction. Community-based policing is designed to prevent crime, not just deter crime. It accomplishes this task by using a problem solving approach that tailors the prevention tools to the nature of the specific community problem.56 Among the tools used in community policing are drug abuse education, enforcement of what might be seen as minor violations of health and safety regulations, community meetings, opening neighborhood offices, and conducting foot patrols in contrast to reliance primarily on catching criminals after the fact and punishing the violation.57 Community policing, among other things, is designed to strengthen community values that can help prevent crime.58 Compliance and enforcement programs vary significantly in the range of tools available to deal with non-compliance. Some programs are very narrowly confined, leaving little room to innovate or solve problems in ways that might help build and reinforce environmental values and achieve goals that are more prevention
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than deterrence oriented. In the United States, the narrowest state programs may have only limited compliance assistance programs, administrative order authority (which may be constrained by opportunities to challenge the order before it is issued), and civil judicial penalty authority. This situation severly constrains the choices government agencies have and the ability of compliance and enforcement programs to influence internal economics or values. In contrast, the Federal government and some states have a much broader compliance and enforcement tool kit that allows room for innovation. This broad range of tools facilitates a problem-solving approach to compliance. As Professor Sparrow notes in his book The Regulatory Craft, For regulators, continuing in a traditional, enforcement-centered modegiven the constraints of shrinking budgets, declining public tolerance for the use of regulatory authority, and clogged judicial systemsis now simply infeasible.59 In the environmental context, this is all the more true when our environmental goals go well beyond simple compliance with existing regulations. Instead, Sparrow suggests the need for the capacity to identify, prioritize, and fix significant risks, problems, and patterns of noncompliance. A problem-solving strategy picks the most important tasks and then selects appropriate tools in each case, rather than deciding on the important tools and picking the tasks to fit.60 Compliance and enforcement programs that are designed to support sustainability goals should provide agencies with the freedom to develop problem solving strategies, tools that can be adapted to address a wide range of problems, and create a more pervasive compliance and enforcement presence. This enforcement presence can influence values-based and economics-based behavioral drivers that can help prevent violations rather than simply deterring violations. Among the additional tools that can assist with this task are technical assistance programs, the use of field citations and administrative penalty orders, the authority for citizens to enforce violations, and the availability of strong criminal sanctions. 6.1.1 Technical Assistance Technical assistance programs, in contrast to compliance assistance programs, often provide businesses with consulting services that can assist companies in understanding their environmental problems and implement changes in the processes or products that reduce the environmental impacts of their organizations. This type of assistance can have an impact on the internal economic drivers for companies (operating efficiency, reputation enhancement, employee morale, and insurance savings) as well as on the values of company managers and employees. The Minnesota Technical Assistance Program61 is an excellent example of how a high-functioning technical assistance program can be designed and funded. The Minnesota Technical Assistance Program, like many technical assistance programs, is university-based, and engages engineering students and other students with a technical background to assist companies redesign processes or take other steps to reduce hazards.
6.1.2 Field Citations Field citations can also be an important part of the compliance arsenal.62 Like graffiti on buildings or minor crimes in the community policing context, littering including disposal of tires, appliances, and other items can degrade the public perception that environmental protection is an important value. Littering violations have traditionally been very difficult to enforce because of the time and expense associated with prosecuting what are often classified as misdemeanor criminal violations, and because of the lack of interest by prosecutors and judges in adjudicating these violations when they are overloaded with traditional crimes. It is in this context that Minnesota introduced the use of filed citations in 1991. Research had indicated other means of enforcing relatively minor dumping violations were not effective. To make enforcement more efficient, the state legislature granted the Department of Natural Resources Conservation Officers (who are sworn law enforcement officers, carry firearms and are used to confronting people in the field) with the authority to write what are essentially environmental tickets.63 The legislation authorizing field citations includes a penalty schedule that ranges up to $2,000.64 Field citation programs typically have an expedited appeals process. Field citations help build values by reminding the public that environmental issues, even minor issues such as open dumping, are taken seriously and punished. Very few states have enacted field citation laws.65 6.1.3 Administrative Penalty Orders Administrative penalty authority can also be an important tool in creating a more pervasive enforcement presence in communities. All states in the U.S. have the authority to order a facility to correct violations of environmental laws, but just over half of the states have the authority to administratively assess penalties. Administrative Penalty Orders allow a state agency to assess a penalty for an environmental violation rather than pursue the more time consuming process of judicial enforcement of penalties. While most environmental violations at the state level are resolved by settlement agreements before a case is referred for judicial enforcement, settlement negotiations can be complex and can take months to complete. This may result in a decision not to pursue certain types of small violations because of the time and cost that would be needed to close the case. Administrative penalty orders short cut this settlement or litigation process. In states like Minnesota, administrative penalties are not negotiated. Although the penalty orders can be appealed through an administrative process, the time in which an appeal must be filed may be as short as 30 days. This process allows enforcement actions to be concluded more quickly, making it more practical for agencies to pursue violations for which a smaller penalty would be appropriate. A review conducted by the Minnesota Legislative Auditor about six years after the administrative penalty order process had been introduced in Minnesota found
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Administrative penalty orders provide an actual penalty as opposed to a notice of violation or letter of warning, which violators have often ignored. (staff told us that administrative penalties are also effective with large companies, which can easily afford a penalty under $10,000 [the ceiling under the Minnesota law], but are concerned about their environmental record and corporate image.) On the other hand compared with stipulation agreements [enforcement settlements] which may take years to negotiate and ultimately require the violators consent, administrative penalty orders are relatively easy to use.66
Administrative Penalty Orders resulted in compliance with the environmental requirements in the order in about 90 percent of the cases within one month. Administrative Penalty Orders can help make visible the importance of environmental improvement and, as the Legislative Auditor noted, have an impact on internal economic drivers such as reputation. 6.1.4 Enabling Public Participation Enabling the public to more directly influence environmental behavior can occur through a number of channels. The most direct enforcement related approach is through citizen suits. Many of the environmental laws in the United States authorize citizens to file civil law suits against organizations that violate the law.67 States with delegated authority or the federal government can preempt citizen suits if one or the other government body begins an enforcement action within 60 days after the citizen suit notice of intent was filed.68 A few states also have general environmental citizen suit provisions, referred to in some states as Environmental Rights Acts.69 Organizations may engage in beyond compliance actions to avoid the possibility of a citizen suit that can have a significant impact on an organizations reputation. 6.1.5 Criminal Enforcement Finally, strong environmental programs should have the capacity to prosecute serious environmental violations such as those that may endanger public health or those that underpin the self-reporting system as major crimes. Historically, in the United States, all environmental violations were treated as minor crimes. This form of criminal sanction proved ineffective because prosecutors and judges were not interested in minor environmental criminal violations when their dockets were crowded with what they saw as more serious property or public safety crimes. Most states in the U.S. have turned to civil enforcement tools to address routine environmental violations, but most have also enacted felony criminal penalties for the most serious environmental violations. Criminal enforcement of serious environmental violations reinforces the fact that some environmental violations lie well outside acceptable societal values. They can also have a major impact on reputation and a number of other internal economic drivers.
6.2 Design Compliance Programs that Align with Markets By integrating compliance systems into market mechanisms, compliance and enforcement officials can leverage economic drivers to achieve environmental results and help embed environmental values in organizations. Perhaps the best example of this situation in the United States is the sulfur dioxide trading system. The 1990 Clean Air Act authorized a new tradable allowance program for sulfur dioxide emitted from power plants. At the same time, the legislation required sulfur dioxide emissions to be reduced by approximately 50 percent. The program accomplished the statutory goal with many of the reductions coming earlier than anticipated and with very few enforcement actions. The near 100 percent compliance was facilitated by the requirement that all regulated facilities must install continuous emissions monitors on their stacks and report the results of the monitoring in real time to the EPA.70 Equally important, the penalty for non-compliance was $2,000 per ton of excess emissions and the loss of an emission allowance during the following year. Because an active market for allowances existed that priced allowances at about $150 per ton, there were strong incentives to comply. Another important factor in the success of the acid rain compliance program was the fact that companies could make or save money by operating more efficiently or installing sulfur dioxide reducing technologies. This opportunity to make or save money drove innovation.71 This allowed compliance decisions to be incorporated into the business planning process and provided operators with a business opportunity in the resulting sulfur dioxide market.72 A 2001 study of the sulfur dioxide trading program found the cap-and-trade approach allows firms to apply their entrepreneurial skills to innovate or reduce the costs of compliance and retain part of the economic gains that result from these efforts.73 6.3 Promote Learning and Self-Evaluation Mechanisms that support compliance while also providing information about the environmental aspects of regulated entities operations can help produce results that go beyond deterrence. Environmental auditing programs are perhaps the most important of these learning and evaluation tools. The U.S. EPA and many states have, for over a decade, encouraged environmental auditing as part of their compliance programs. Typically, environmental auditing programs require a regulated entity to systematically review their operations using an environmental management system or a similar mechanism to identify noncompliance. If an entity finds a violation, it must promptly report the violation to the state environmental agency or the EPA, correct the violation, and take steps to prevent recurrence.74 Under the U.S. EPA program, gravity-based penalties can be forgiven and no criminal referral will be made should the violation be identified under the policy.75 This audit program has been expanded to include penalty forgiveness in the case of audits conducted as part of a merger or acquisition. Operating under the audit policy allows participating companies a better opportunity to maintain their reputation, maintain employee morale and community relations,
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reinforce relationships with government agencies, and perhaps reap other internal economic benefits. Audits can also have an impact on values by providing better information to managers about the nature of an organizations environmental impacts and how those impacts can be reduced. At least for some companies, environmental audits are used to assess environmental performance beyond simple compliance with environmental laws.76 Minnesota has used its auditing program to target smaller companies that often do not have the same reputational issues as larger companies by developing easy to use audit checklists.77 While these checklists focus on compliance issues, they also serve an important reminder of the value the state places on environmental protection. A related mechanism for reaching small business is through environmental results programs. These programs originated in Massachusetts as a way of dealing with the very large number of small facilities (such as dry cleaners, auto body shops, printers, and auto salvage yards) that are subject to environmental regulation. Environmental results programs typically require facilities to audit their operations to assure they are in compliance and to self-certify that fact. The certifications are reviewed for accuracy and some inspections may occur to validate the certifications if there is reason to believe the certification may not be accurate. Today 20 states have environmental results programs, many of which were adopted with the encouragement and support of the U.S. EPA.78 One study found, Sectors where [an environmental results program] is applied generally show improved performance - sometimes substantial - after the first round of compliance assistance and selfcertification has been completed.79 Like environmental audits, environmental results programs can lead to greater awareness of the environmental impact of an organizations operations. Non-regulatory environmental management programs can also support both compliance and activities that go beyond compliance. The U.S. EPA has long supported the use of environmental management systems either based on the ISO 1400180 system or on other systems such as the American Chemistry Councils Responsible Care81 program.82 6.4 Enable the Public to Directly Influence Environmental Decision Making
Public engagement in environmental decisionmaking can help reinforce community norms and have an impact on economic drivers such as community relations and reputation. The challenge for government is to increasingly make public engagement a part of a strategic approach to governance that helps produce better environmental results. To do this, agencies must view public engagement not simply as a method of complying with legal requirements in environmental laws and under state or federal administrative procedures acts, but as a mechanism for creating pressure on sources of pollution to improve their conduct.
The EPAs 2003 Public Involvement Policy83 is an important advance in engaging the public in a more substantive way in environmental decision-making. The 2003 Policy notes that [t]o achieve . . . [EPAs] mission, EPA needs to continue to integrate, in a meaningful way, the knowledge and opinions of others into its decisionmaking processes. Effective public involvement can both improve the content of the Agencys decisions and enhance the deliberative process.84 While significant progress has been made in expanding public involvement, some agencies still resist the idea since it departs from the classic model in which government personnel are seen as the experts who are in the best position to make decisions about what actions are in the public interest. Further, public engagement is often viewed relatively narrowly as the opportunity to comment on agency decisions rather than more broadly as an opportunity to engage the public to directly influence the conduct of sources of pollution. Public engagement can have a significant impact on environmental outcomes by, among other things: c reating pressure on a project proposer to produce more information about the environmental impacts of a project; generating information about a project based on local knowledge and expertise that may result in modifications of a project or improved operation; driving modifications in a project to address environmental concerns that may not be subject to direct regulation such as wetlands preservation, habitat protection, noise, traffic, or hours of operation; creating ongoing consultative relationships between members of the public and the facility proposer; pushing government agencies to more carefully consider aspects of a proposed permit that may not be obvious on the face of a permit application including environmental justice concerns; making a regulatory decision more acceptable to a community leading to fewer operational issues and facilitating future modifications or expansions; raising issues about past oversight of a facility owned by a project proposer that may drive improved compliance;85 Unfortunately, the principal public participation methods historically used by government agenciespublic hearings, public meetings, and notice and comment rulemaking proceduresfrequently do not serve well as methods of true public engagement in government decision making. They do not create conditions necessary for effective or authentic86 public participation. King, et al, found that
[a]lthough there is theoretical and practical recognition that the public must be more involved in public decisions, many administrators are, at best, ambivalent about public involvement or, at worst, they find it problematic. As a result, although many public administrators view close relationships with citizens as both necessary and desirable, most of them do not actively seek public involvement. If they do seek it, they do not use public input in making administrative decisions (as indicated by a 1989 study conducted by the Kettering Foundation). These administrators believe that greater citizen participation creates delays and increases red tape.87
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Citizens are increasingly reluctant to defer to expert administrators.88 Instead, as part of a broader movement toward popular democracy, they increasingly want earlier access to the decision-making process, more opportunities to be heard and to bring local knowledge to the table, and a clearer role in decision-making.89 This is a salutary trend and should be embraced by the government as another strategic tool in pressuring sources of pollution to improve their performance. 6.5 Encourage Collaborative Problem Solving Collaborative approaches to designing environmental programs can, in some cases, produce environmental results that would be difficult to achieve absent support from a broad set of stakeholders. These approaches may address a problem for which regulation is unlikely, deal with a problem before it reaches the point where regulations come into effect, or create an atmosphere in which new statutory authority and new regulations can be enacted without intense opposition. In each of these cases, the potential burden on compliance and enforcement programs can be reduced, and solutions can be found that rely on internal economic drivers or on values rather than solely on regulatory drivers. In Minnesota, collaborative efforts have produced a number of important pollution reduction initiatives. Two of these initiatives are particularly instructive. The first program is Clean Air Minnesota, which is a voluntary collaboration among the government, environmental organizations, and business. It was launched to find ways to prevent the Twin Cities region from slipping into non-attainment for ozone and particulates, avoiding regulatory costs associated with non-attainment that were estimated at over $200 million per year. The program has achieved significant reductions in ozone precursors. Even though the context will change, the collaboration will likely continue even should the region fall into non-attainment under the stricter standards that are now in effect. Of particular note, Clean Air Minnesota launched a diesel reduction to focus on the health risks associated with diesel particulate emissions. Project Green Fleet has retrofitted hundreds of school buses and other vehicles throughout the state even though no diesel emission retrofit requirements were likely to be enacted in the state. The second Minnesota program involved an area where national legislation required regulation, but which has proven very difficult to manage: state water quality standards. Minnesota has a lot of impaired waters; water bodies that do not meet national clean water standards. Its 2008 list included over 2,500 water bodies, many of them impaired by mercury as well as nutrients. For several years, interest groups had fought over the need for additional regulation, with some groups advocating a role back of existing standards because of the cost of compliance. Despite the controversy, lakes and rivers are important to Minnesotans in the Land of Ten Thousand Lakes. Clean water is an important value for Minnesotans and important to the states tourist industry. A facilitated stakeholder process aimed at collaborative problem solving was able to break the deadlock.
In 2006, the Minnesota legislature enacted the Clean Water Legacy Act by wide bipartisan margins to deal with this problem. The Act is designed to protect, restore, and preserve the quality of Minnesotas surface waters by providing authority, direction, and resources to achieve and maintain water quality standards for surface waters as required by section 303(d) of the federal Clean Water Act, United States Code, title 33, section 1313(d), and applicable federal regulations.90 It does this through several innovative tools including a goal of assessing waters in all of the major watersheds in the state within 10 years, providing funding for MPCA staff or third parties to develop Total Maximum Daily Loadings for waters that are identified as impaired, using citizen monitoring, creating financial and other incentives to avoid impairment or to restore impaired waters, and creating a stakeholderbased Clean Water Advisory Counsel to advise agencies and to track progress. The state also created a Clean Water Legacy Account that is funded through a constitutional amendment that increased sales tax by 0.375 percent (raising the sales tax from 6.5 percent to 6.875 percent), one third of which (about $80 million per year) goes to the state Clean Water Fund, with the remainder going to conservation and arts projects. These collaborative problem solving efforts built on both internal economic-based and values-based behavioral drivers. The result, among others, is a more cooperative approach to compliance and significant pollution reduction without the need to call upon as many compliance and enforcement resources. This experience indicates that compliance and enforcement programs should, in the right circumstances, encourage and participate in collaborative problem solving efforts. 6.6 Support Private Sector Enforcement through Supply Chain Management Companies are increasingly imposing environmental requirements on their suppliers to protect the companies reputations, to aid with their own compliance, and to meet customer expectations, among other reasons. One study of 74 firms in eight sectors found that over half impose environmental requirements on suppliers, representing more than 78 percent of all of the sales of the top firms in the sectors.91 Clearly, supply chain requirements are playing an important role in environmental performance. These requirements act as both a private enforcement mechanism for supply chain requirements that are part of an environmental regulatory regime and as a means of driving beyond compliance behavior preferred by the company and its customers. Professor Michael Vandenbergh has observed,
In some cases this new form of private governance transfers pressures created by public entities, but in many cases it bypasses public entities altogether, transferring demands for social amenities directly from the citizens of one country to the firms operating in another. This private governance exists as a network of private standards and agreements that influence the behavior of firms on issues sovereign states are unwilling or unable to address.At least in theory, the growth in environmental private contracting provides a means to ameliorate the environmental harms from international trade. Private environmental contracting is not a panacea, and it is only one element of private governance.92
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He concluded,
government policymakers can include promotion of private contracting among the available options when they encounter environmental harms that are difficult to reach with the tools of public and public-private governance. A policymaker not only has traditional regulatory and economic tools at her disposal, she also can seek to stimulate private environmental contracting in supply-chain, credit, corporate asset, insurance, and other markets. To do so, policymakers can reduce information costs to firms by collecting and disseminating information regarding the adoption and implementation of private standards, and by supporting research on the costs and benefits of private environmental contracting. Policymakers also can foster the development of supplychain contracting by creating settings in which firm cooperation is unlikely to lead to anticompetitive behavior.93
6.7 Recognize Superior Performance For many companies, reputation is one of the most important drivers of environmental behavior. As a result, government agencies can leverage this fact by recognizing companies that go beyond what the law requires and by encouraging other companies to follow this lead. Governments have for some time experimented with ways to recognize superior environmental performance through voluntary programs, leadership initiatives, and rating systems. In the United States, this effort began in earnest in the early 1990s with a voluntary toxics reduction program known as 33/50, which challenged companies to reduce the use of 33 of the most toxic chemicals by 50 percent within a period of a few years. This program was followed by a program known as the Common Sense Initiative through which the EPA worked with various industrial sectors (for example, metal plating , electronics, and paper products) to find ways to improve environmental performance. The EPA then launched Project XL (Excellence and Leadership) to experiment with regulatory reform at 50 locations. All of these programs faded away by the end of the 1990s. EPA began its most ambitious effort to recognize and support superior performance near the end of the 1990s with the Performance Track Program. EPA designed Performance Track to recognize facilities (and later companies) that exceeded environmental requirements in a variety of areas. Participants were expected to use an environmental management system to assess their environmental impacts, set stretch goals to reduce several of the impacts, and report regularly on the results they achieved. Performance Track companies were expected to have a good compliance record. As the program neared its 10th anniversary, over 578 facilities from 240 organizations94 were Performance Track members, but controversy was growing quickly about the compliance record of some of the participants and about the significance of the environmental improvements achieved under the program. Soon after President Obama took office, the EPA terminated the Performance Track Program citing concerns about compliance among some of the participating companies, the cost of
running the program, and the extent of environmental gains achieved through the program. The EPA has indicated that the agency is uninterested in creating a new corporate leadership program. Although the EPA continues to operate a number of other voluntary programs, none of those programs, except the Energy Star program, had the public profile of the Performance Track. Despite the problems with Performance Track, recognizing companies that substantially exceed the minimum standards required by law can produce important environmental outcomes driven by reputation and other internal economic drivers and can help strengthen environmental values. The Rand Corporation study of the Performance program and other voluntary environmental programs concluded the voluntary programs can complement regulatory approaches to accelerate environmental improvement.95 The report also notes that:
In the case of Performance Track, its members reported changes that they felt do not occur under more-traditional regulatory approaches. For example, members reported that the application process taught them how to quantify the broad environmental impacts of their activities and set goals for continuous improvement. Performance Tracks members also reported a range of changes in corporate culture, including increased consideration of environmental issues in formal decisionmaking processes, greater employee awareness and engagement on environmental issues, the introduction of environmental considerations in problem-solving efforts, and improved recruiting results, employee retention, and employee morale.96
While Performance Track was flawed, many of the flaws could be corrected by:
i ncluding a broader range of stakeholders including NGOs in the process or developing and overseeing leadership programs; requiring that the environmental goal setting process focus on the most significant environmental problems ; focusing more on organizations rather than individual facilities; providing the public with better information about the environmental outcomes that are achieved through the program; assuring that compliance data is accurate and up-to-date; setting out more clearly how violations by participating companies will be dealt with (for example, recognizing that while most companies will have some violations, companies that fail to promptly report and remedy a violation, that repeatedly violate the law, or that act negligently will be quickly removed from the program). Programs like Performance Track may still be an important way of encouraging environmental performance that goes well beyond compliance. Governments can also leverage the reputation driver, and other internal economic drivers, by rating the performance of companies. These performance ratings could also contribute to changes in values because of the public disclosure of the performance information. This approach has not been used a great deal in the
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United State, but has played a larger role in Indonesia and in China. In the United States, the EPA Region 1 in Boston issued letter grades (A-F) for the Charles River as a means of providing the public with an easily understandable measure of progress in river restoration.97 The Chesapeake Bay Foundation issues a similar report card each year on several aspects of the Chesapeake Bay Restoration Project.98 Indonesias Proper Prokash system uses a color coded system to rate environmental performance with black indicating no environmental management efforts and the potential for serious harm, red indicating some effort, but not enough to comply with the law, yellow meaning full compliance with the law, green representing efforts that go beyond compliance with an emphasis on ISO 14001 compliance, and gold standing for factories or business activities that use the best available clean technology, promote zero discharge of pollutants, and conduct environmental impact management efforts with very satisfactory results.99 China uses a similar rating system referred to as Green Watch, although the system uses somewhat different color codes with the highest rating being green, followed by blue, yellow, red, and black. A recent study of that system suggests that Green Watch has significantly reduced pollution from rated firms, with particularly strong impacts on firms with poor ratings.100 The study also found that the rating system had significant impacts for firms with good (green and blue) ratings. The study noted that environmental performance by green rated firms in four cities may be related to the fact that firms are given additional benefits including 1) preference in the selection of enterprises with the best economic and social performance records, and 2) preferential status by provincial regulators for enterprises that achieve a green rating for three consecutive years. 7 CONCLUSION Achieving more sustainable environmental outcomes will require a combination of regulatory, economic, and values-based drivers. Compliance and enforcement programs play a direct role in ensuring the integrity of regulatory systems. However, it is important for those managing compliance and enforcement programs to also think about how their work can influence the internal economic considerations of regulated entities and help shape environmental values. Among the possible leverage points are creating a more pervasive enforcement presence, designing compliance programs that better align with markets, promoting learning and self-evaluation, enabling the public to more directly influence environmental decisions by agencies, supporting collaborative problem solving, encouraging the use of private supply chain requirements, and recognizing superior performance. Compliance and enforcement program managers may find that engaging in these areas is difficult and complicated, but it will be essential if we are going to meet our goal of achieving more sustainable development. 8 REFERENCES See Paddock, L., Green Governance: Building the Competencies Necessary for Effective Environmental Management, 38 ELR 10609, 2008, pp. 10609-10611.
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The Aspen Institute, The Stewardship path to Sustainable Natural Systems, 1999, pp. 3-4. 3 Bosselmann, K and. Grinlinton, D, Environmental Law For A Sustainable Society (2007). The theologian Thomas Berry observed in his book The Great Work: Our Way Into the Future 1999 The Great Work now, as we move into a new millennium, is to carry out the transition from a period of human devastation of the Earth to a period when humans would be present on the planet in a mutually beneficial manner. See id. p. 2. 4 Id., p. viii. 5 Dernbach, J., Ed., Agenda for a Sustainable America, 2009, p. 28. 6 Ruhl, JB, Thinking of Environmental Law as a Complex Adaptive System: How to Clean Up the Environment by Making a Mess of Environmental Law, 34 Hous. L. Rev., 19971998, p. 935. (1997-1998). 7 Id., p. 1000. 8 Id. 9 There are two primary types of economic drivers that affect organizational environmental behavior. External economic drivers include taxes, fees, and subsidies imposed or provided by government. Internal economic drivers, in contrast, encompass a wide range of monetized and non-monetized factors that may have an impact on the viability of an organization such as reputation, supply chain requirements, employee and community relations, access to markets, product differentiation, and government relations. 10 Gunningham, N, Thornton, D., and Kagan, R., Motivating Management: Corporate Compliance in Environmental Protection, Law & Policy, 2005, p. 289, citing Kagan & Scholz 1984). 11 Id., p. 290. 12 Malloy, T., Regulation, Compliance and the Firm in Zaelke, D., Kaniaru, D. and Krukov, E., Making Law Work: Environmental Compliance and Sustainable Development Volume, 2005, p. 126. 13 Motivating Management, supra note 9, p. 312. 14 Id., p. 312. 15 Id. 16 Regulation, Compliance and the Firm, supra note 11, p. 127. 17 Id. 18 Id. 19 Id., p. 130. 20 State of Oregon, Department of Environmental Quality, General Deterrence of Environmental Violations: A Peek into the Mind of the Regulated Public 63, available at http://www.deq.state.or.us/programs/enforcement/DeterrenceReport.pdf. 21 Id., p. 58 22 Eisner, M., Governing the Environment: The Transformation of Environmental Regulation, 2007, p. 282. 23 Id., pp. 574-575. GE provides the best example of this last reason. It launched Ecomagination, which among other things includes putting new green products on the market that are expected to generate $20 billion in revenues by 2010. Id. 24 Id., p. 576.
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Esty, D. and Winston, A., Green to Gold: How Smart Companies Use Environmental Strategy to Innovate, Create Value, and Build Competitive Advantage, 2006. 26 Id., p. 21. 27 Id. 28 Id., p. 19. 29 Id. 30 Id., p. 13-14. 31 Id., p. 14. 32 Id. 33 Id., pp. 9, 11. 34 Gunningham. N., et al., Social License and Environmental Protection: Why Businesses Go Beyond Compliance, Law & Soc. Inquiry, 2004, p. 339. 35 Id., p. 319-20. 36 Id. 37 Kagan, R., et al., Explaining Corporate Environmental Performance: How Does Regulation Matter? 37 Law & Socy Rev., 2003, p. 53. 38 Id. 39 Id., p. 73. 40 Lynch-Wood, G. and Williamson, D., The Social Licence as a Form of Regulation for Small and Medium Enterprises, 34 J.L. & Socy, 2007, p. 339. 41 Id., p. 331-332. 42 Id., p. 332. 43 The Aspen Institute, The Stewardship path to Sustainable Natural Systems, 1999, pp. 3-4. 44 The Presidents Council on Sustainable Development, Sustainable America: A New Consensus For the Prosperity, Opportunity And A Healthy New Environment for the Future, 1996, p. 109. 45 U.S. Environmental Protection Agency, National Advisory Committee for Environmental Policy and Technology, Advice Letter to the Administrator on Promoting Environmental Stewardship, 2010, pp. 1-2, available at http://www.epa. gov/ocempage/nacept/reports/pdf/2010_06_24_nacept_stewardship_letter.pdf. 46 Id., p. 2. 47 Koger, S. and Winter, D., The Psychology of Environmental Problems, 2010, 3rd Edition. 48 Nordlund, A. and Garvill, J., Value StructuresBehind Proenvironmental Behavior, Environment and Behavior, 2002, available at http://eab.sagepub.com/ content/34/6/740.short. 49 The Psychology of Environmental Problems, supra note 47, p. 102. 50 Schwartz, S., Normative Explanations of Helping Behavior: A Critique, Proposal, and Empirical test, 9 Journal of Experimental Social Psychology, 1973), pp. 349364; Schwartz, S., Normative influences on Altruism, in Berkowitz, L. (ed.), 10 Advances in experimental social psychology, 1977, pp. 221279). 51 A person with an anthropocentric value orientation is less likely to act to protect the environment if a human-centered value interfered. 52 Stern, P., Dietz, T. and Kalof, L., Value Orientations, Gender, and Environmental Concern, 25 Environment & Behavior, 1993, pp. 322-348. 53 Stern has found that mobilization is more successful when the problem is framed
in terms of avoiding harmful consequences to people and in ways that lead potential converts to see themselves as personally responsible 54 Skogan, W., The Promise of Community Policing, in David Weisburd and Anthony A. Braga, Police Innovation: Contrasting Perspectives, 2006, p. 28. 55 See generally, Mastrofski, S., Community Policing: a Skeptical View, in Weisburd, D. and Braga, A., eds., Police Innovation: Contrasting Perspectives, 2006, pp. 44-77. 56 Skogan, supra note 53, p. 34. 57 Id., p. 27. 58 Id., p. 31. 59 Sparrow, M., The Regulatory Craft: Controlling Risks, Solving Problems, and Managing Compliance, 2000, p. 20. 60 Id., p. 130. 61 See generally http://www.mntap.umn.edu/. 62 Paddock, L., Civil Field Citations, 1993, available at http://www.inece.org/3rdvol1/ pdf/paddock.pdf. 63 Minn. Stat. 116.073. 64 Id. at Minn. Stat. 116.073, subd. 2. U.S. EPA has field citation authority under Section 113(d)(3) of the Clean Air Act, 42 U.S.C. 7413. This section authorizes EPA to implement a Federal program through regulations which establish appropriate minor violations and informal hearing procedures. Field citations assessing penalties of up to $5,000 per day of violation may be issued by EPA officers or employees. See Rasnic, J. and Engert, J., United States Clean Air Act Field Citations Program: New Enforcement Authority to Address Minor Violations, available at http:// www.inece.org/3rdvol1/pdf/rasnic.pdf. 65 See Environmental Council of the States, Inventory of States Authority to Issue Penalties, 2010. 66 State of Minnesota, Office of the Legislative Auditor, Pollution Control Agencys use of Administrative Penalty Orders, 1995, p. 4, available at http://www.auditor.leg.state. mn.us/ped/1995/pca1.htm. 67 See, for example, 33 U.S.C. 1365 and 42 U.S.C. 7604. 68 See, for example, 42 U.S.C. 7604 (b). 69 See, for example, Minn. Stat. 116B.03 which provides that Any person residing within the statemay maintain a civil action in the district court for declaratory or equitable relief in the name of the state of Minnesota against any person, for the protection of the air, water, land, or other natural resources located within the state, whether publicly or privately owned, from pollution, impairment, or destruction. In contrast to the citizen suit provisions in the Clean Water Act or the Clean Air Act, 60 day notice is not required under the Minnesota Environmental Rights Act. 70 Swift, B., How Environmental Laws Work, An Analysis of the Utility Sectors Response to Regulation of Nitrogen Oxides and Sulfur Dioxide under the Clean Air Act, 14 Tulane Envt L. J., 2001, p. 403. 71 Id., p. 391-392. 72 Id., pp. 390-391. 73 Id., p. 391. 74 See U.S. EPA, Incentives for Self-Policing: Discovery, Disclosure, Correction and
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Prevention of Violations, 65 Fed. Reg., April 11, 2000, pp. 19,625-19,626. 75 Id., pp. 19,624-19,625. 76 See A. Prakash, Greening the Firm, 2000, p. 155. 77 See http://www.pca.state.mn.us/index.php/regulations/permits-and-rules/guidan ce-and-assistance/environmental-audit-program.html?menuid=&redirect=1. 78 See http://www.epa.gov/erp/index.htm. EPA notes A typical ERP combines several interlocking policy tools in a cyclical process to address environmental problems in a sector. 79 See http://www.epa.gov/erp/results.htm. 80 See http://www.iso.org/iso/iso_14000_essentials. 81 See http://www.americanchemistry.com/s_responsiblecare/sec.asp?CID=1298& DID=4841. 82 EPA has said that it will continue to encourage organizations to design and implement environmental management systems that improve compliance, prevent pollution, and integrate other means of improving environmental performance. EPA is also leading research designed to evaluate the effectiveness of environmental management systems in various settings and integrating environmental management systems into more of its own programs. We are evaluating which EMS elements and applications are most effective and how these management systems might be used to strengthen environmental programs and policies. This includes the ongoing efforts to assess the potential financial benefits of environmental management systems adoption and to assess whether environmental management systems should play any role in the design of regulatory and permitting programs. See http://www.epa.gov/ems/position/position.htm. 83 U.S. Envtl Protection Agency, Public Involvement Policy of the U.S. Environmental Protection Agency, 2003, available at http://www.epa.gov/publicinvolvement/ policy2003/finalpolicy.pdf. 84 Id., p. 1. 85 See Beierle, T. and Cayford, J., Democracy in Practice: Public Participation in Environmental Decisionmaking, 2002, p. 14-15. 86 Authentic public participation implies more than finding the right tools and techniques for increasing public involvement in public decisions. King, C., et al., The Question of Participation: Toward Authentic Public Participation in Public Administration, 58 Pub. Admin. Rev. 1998, p. 317. Rather it is participation that works for all parties and stimulates interest and investment in both administrators and citizens. Id. 87 Id., p. 319. 88 Environmental Law Institute, Building Capacity To Participate in Environmental Protection Agency Activities: A Needs Assessment And Analysis, 1999, p. 2. 89 See Beierle & Cayford, supra note 83, p. 4; see also Slovic, P., Perceived Risk, Trust, and Democracy, 13 Risk Analysis, 1993, p. 680. 90 Minn. Stat. 114D.10. 91 Vandenbergh, M., The New Wal-Mart Effect: The Role of Private Contracting in Global Governance, 54 UCLA L. Rev., 2006-2007, pp. 916-917 (2006-2007). 92 Id., p. 970. 93 Id., p. 968
Hassell, S., Clancy, N., Burger, N., Nelson, C., Rudavsky, R. and Olmstead, S., An Assessment of the U.S. Environmental Protection Agencys National Environmental Performance Track Program 2010, p. 89, available at http://www.rand.org/content/ dam/rand/pubs/technical_reports/2010/RAND_TR732.pdf. 95 Id., p. xiii. 96 Id., p. 88 97 See http://yosemite.epa.gov/opa/admpress.nsf/6d651d23f5a91b76852573590040 0c28/b3380e8da0da4642852574b0005daf83!OpenDocument. 98 See http://www.eco-check.org/reportcard/chesapeake/2009/. 99 Wheeler, D. and Afsah, S., Going Public on Polluters in Indonesia: Bapedals Proper Prokasih Program, available at http://siteresources.worldbank.org/NIPRINT/ Resources/GoingPubliconPollutersinIndonesia.pdf. 100 Jin, Y., Wang, H., and Wheeler, D., Environmental Performance Rating and Disclosure: An empirical Investigation of Chinas Green Watch Program, 2010, section 6, available at http://ideas.repec.org/p/wbk/wbrwps/5420.html.
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9 BIBLIOGRAPHY Beierle & Cayford, Democracy in Practice: Public Participation in Environmental Decisionmaking (2002) Bosselmann and Grinlinton, D., Environmental Law For A Sustainable Society (2007) Dernbach, ed., Agenda for a Sustainable America, 28 (ELI Press 2009) Eisner, Governing the Environment: The Transformation of Environmental Regulation (2007) Esty & Winston, Green to Gold: How Smart Companies Use Environmental Strategy to Innovate, Create Value, and Build Competitive Advantage (2006) Gunningham et al., Social License and Environmental Protection: Why Businesses Go Beyond Compliance, Law & Soc. Inquiry 307 (2004) Gunningham, Thornton and Kagan, Motivating Management: Corporate Compliance in Environmental Protection, Law & Policy 289 (April 2005) Hassell, Clancy, Burger, Nelson, Rudavsky, and Olmstead, An Assessment of the U.S. Environmental Protection Agencys National Environmental Performance Track Program 89 (Rand Corporation 2010) King et al., The Question of Participation: Toward Authentic Public Participation in Public Administration, 58 Pub. Admin. Rev. 317 (1998) Koger and Winter, The Psychology of Environmental Problems, 3rd Edition. (Taylor and Francis Group 2010) Lynch-Wood and Williamson, The Social Licence as a Form of Regulation for Small and
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Medium Enterprises, 34 J.L. & Socy 321 (2007) Kagan et al., Explaining Corporate Environmental Performance :How Does Regulation Matter? 37 Law & Socy Rev. 51 (2003) Malloy, Regulation, Compliance and the Firm in Zaelke, Kaniaru & Krukov, Making Law Work: Environmental Compliance and Sustainable Development Volume 1 (2005) Nordlund and Garvill, Value Structures Behind Pro environmental Behavior, Environment and Behavior (2002) Paddock, Green Governance: Building the Competencies Necessary for Effective Environmental Management, 38 ELR 10609, at 10609-10611 (September 2008) Prakash, Greening the Firm (2000 Cambridge University Press) Ruhl, Thinking of Environmental Law as a Complex Adaptive System: How to Clean Up the Environment by Making a Mess of Environmental Law, 34 Hous. L. Rev. 933 (19971998) Schwartz, Normative Explanations of Helping Behavior: A Critique, Proposal, and Empirical Test, 9 Journal of Experimental Social Psychology 349 (1973) Schwartz, Normative Influences on Altruism, in L. Berkowitz (ed.), 10 Advances in Experimental Social Psychology 221 (1977) Skoga Sparrow, The Regulatory Craft: Controlling Risks, Solving Problems, and Managing Compliance (2000) Stern, Dietz and Kalof. 1993. Value Orientations, Gender, and Environmental Concern 25 Environment & Behavior 1993 Stern, Toward a Coherent Theory of Environmentally Significant Behavior, 56 Journal of Social Issues 407 (2000) Vandenbergh, The New Wal-Mart Effect: The Role of Private Contracting in Global Governance, 54 UCLA L. Rev. 913 (2006-2007)
INTERRELATIONS BETWEEN ADMINISTRATIVE AND CRIMINAL SANCTIONS IN ENVIRONMENTAL LAW: NEW LEGISLATION AND ACTUAL PRACTICE IN FLANDERS RAEDSCHELDERS, SIGRID Head of Division, Environmental Enforcement, Environmental Damage and Crisis Management Division, Environment, Nature and Energy Department, Koning Albert II-laan 20 box 8, 1000 Brussels (Belgium), sigrid.raedschelders@lne. vlaanderen.be SUMMARY Although the restoration of the environment and regulation used to be pursued to highest possible extent through administrative supervision, environmental infringements often went unpunished. This was mainly due to a lack of resources and expertise within the public prosecutors offices. In order to make the environmental policy more effective, the new Flemish Environmental Enforcement Act, which entered into effect in May 2009, provides the possibility to impose an administrative fine for environmental infringements. A distinction is made between environmental infringements (depenalised violations of administrative formalities) on the one hand and environmental offences on the other. Only serious environmental offences are still criminally prosecuted. The remaining environmental offences can be referred by the Public Prosecutor to the Flemish Environment Administration which may impose an administrative fine for these offences as well as the forfeiture of any financial benefit. Such a fine may amount to a maximum of EUR 1,375,000 and must take account of the gravity, the frequency and the circumstances of the offences. An appeal can be lodged with the new Environmental Enforcement Court, which is an administrative court. The first experiences with this new regulation are slightly positive and show that, in addition to criminal sanctions, administrative sanctioning of environmental infringements may generate added value. 1 INTRODUCTION 1 As the Act of 21 December 2007 supplementing the Act of 5 April 1995 containing general provisions regarding environmental policy with title XVI Supervision, enforcement and safety measures2 commonly known as the Environmental Enforcement Act entered into force on 1 May 2009, the Flemish environmental enforcement policy was finally revised after more than 10 years of examining and preparing3. It was often pointed out that the administrative and criminal enforcement of environmental law did not go smoothly, due to, inter alia, a fragmented and obsolete environmental enforcement legislation. This affected the credibility of the policy and also the achievement of effective environmental results.4 The approval of the Environmental Enforcement Act by the Flemish Parliament on 21 December 2007 offered a response to this. The Environmental Enforcement Act
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was supplemented and modified by inter alia the successor Act of 30 April 2009.5 The Environmental Enforcement Act was further implemented by the Flemish Government Decree of 12 December 2008 implementing Title XVI of the DABM6 (hereafter: Environmental Enforcement Decree), which was also modified on 30 April 2009 by a successor decree.7 The Environmental Enforcement Act entered into force on 1 May 2009 as regards environmental hygiene law. As of 25 June 2009, nearly the whole Flemish environmental legislation that is, both the environmental health law and nature protection law falls within the scope of the Environmental Enforcement Act. The Environmental Enforcement Act introduced several new elements into the environmental enforcement landscape. This contribution will be limited to the new system of administrative sanctioning in environmental legislation. 2 ADMINISTRATIVE SANCTIONING ACCORDING TO THE ENVIRONMENTAL E NFORCEMENT ACT 2.1 General We cannot deny that environmental law is a booming branch of law. Environmental legislation has developed into a comprehensive and often complex matter. Enforcement was not evident and often no precedence was provided for the effective sanctioning of offences. Inadequate sanctioning was mainly due to the problems encountered in the enforcement of environmental legislation. For years, Flanders had to manage with a whole range of penalty and supervision provisions in various environmental acts and decrees. In addition to this fragmentation, there was a lack of harmony between the different enforcement actors, which caused the efficiency of the environmental policy to remain very limited. The sanctioning of environmental offences largely remained the responsibility of prosecutors and criminal courts. The limited sanctioning of environmental offences is probably also due to the overburdened public prosecutors offices.8 According to recent figures, the number of summons in environmental matters for all public prosecutors in Flanders is around 10%. Moreover, there were significant differences in approach and prioritisation at the public prosecutors offices of the various districts.9 Given the high administrative cost of criminal law, the rather limited prosecution and the relatively low penalties imposed, the efficiency of environmental criminal law as an enforcement tool could be called into question.10 Consequently, the Environmental Enforcement Act clearly opted for an administrative enforcement model. Criminal law is an ultimum remedium11: the objective is to only handle severe cases of environmental crime. Especially for minor environmental offences, preference is given to a less stigmatizing, administrative approach. The Government of Flanders and the Flemish Parliament explicitly wanted to ensure the enforcement of environmental policy, as far as possible, through administrative channels. Without neglecting the role of criminal law in environmental enforcement, the focus of purely criminal environmental enforcement shifted to a combined enforcement model with an important role for administrative sanctions.
2.1.1 The Administrative Sanctioning System Administrative sanctioning is realised by imposing an administrative fine. This administrative fine, as opposed to administrative measures, is a fine imposed by the regional authorities on the offender. The administrative fine can also be imposed in combination with the deprivation of advantage. The authority to impose administrative fines, if necessary accompanied by a deprivation of advantage, was assigned to the regional authorities, more specifically to the Division of Environmental Enforcement, Environmental Damage and Crisis Management of the Flemish Department of Environment, Nature and Energy.12 2.1.1.1 The Difference between Environmental Offences and Environmental Infringements
In relation to the administrative fine, the difference between environmental offences and environmental infringements is crucial. This difference determines to a significant extent which type of sanctioning will ultimately be applied or given precedence, namely administrative or criminal sanctions.13 An environmental infringement is a violation of a purely administrative formality and will only be sanctioned administratively, in the form of an exclusive administrative fine, if necessary accompanied by a deprivation of advantage. Article 16.1.2, 1 of the Environmental Enforcement Act specifies the criteria a behaviour should meet in order to be considered an environmental infringement: It only concerns a violation of an administrative legislative obligation that falls within the scope of the Environmental Enforcement Act. It does not concern an unlawful emission. It does not concern the unlawful dumping, management or transfer of waste. It does not cause health damage or death. It should not be penalised under criminal law. It should not be related to the obligation to have an environmental permit or recognition or to draw up a safety report or environmental impact report. It must be included in a list, determined by the Government of Flanders. Regarding the latter condition, the Government of Flanders established the environmental infringements by Decree of 12 December 200814 . Currently, the Environmental Enforcement Decree contains 22 annexes with a comprehensive, limitative list of environmental infringements.15 A violation of environmental legislation which meets the criteria of an environmental infringement and which has been included into one of the annexes of the Environmental Enforcement Decree can only be established by a supervisor. The supervisor can draw up a report of identification in which the environmental infringement is established. Here, we must point out that the supervisor is by no means obliged to (immediately) draw up such a report and may, for example, choose to first issue a warning to the offender. If the supervisor does decide to
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draw up a report, he must immediately submit it to the Division of Environmental Enforcement, Environmental Damage and Crisis Management in view of imposing an administrative fine.16 The Division of Environmental Enforcement, Environmental Damage and Crisis Management is not required to start up the sanctioning procedure, but if it decides to start up the procedure for imposing an exclusive administrative fine, it must inform the alleged offender about this.17 The alleged offender has the opportunity to take a look at the documents which state the intention to impose an exclusive administrative fine or to obtain copies of that document18, to submit a written defence19 or to orally clarify his written defence.20 After this, the Division of Environmental Enforcement, Environmental Damage and Crisis Management must, within a period of 90 days after notifying the alleged offender, notify a decision. In 2009 (May-December), the Division of Environmental Enforcement, Environmental Damage and Crisis Management only received 18 reports of identification, which, in comparison to the number of environmental offences notified, is a very limited number. This trend continued in 2010, when the Division of Environmental Enforcement, Environmental Damage and Crisis Management received 38 reports. This report of establishment is a new tool the supervisors are still relatively unfamiliar with. Moreover, the supervisor has a discretionary power and he is not obliged to draw up a report of establishment when establishing an environmental infringement.21 An environmental offence, on the other hand, involves behaviour in contravention of a regulation that is enforced by applying the Environmental Enforcement Act, which can be penalised under criminal law in accordance with the Environmental Enforcement Act. Environmental offences are, if sanctioned administratively, penalised by means of an alternative administrative fine, if necessary accompanied by a deprivation of advantage. Occurrences constituting environmental offences are established by the police and supervisors in a record which is sent to the Public Prosecutor with the court within the jurisdiction where the environmental offence was committed.22 If the latter decides not to penalise the offence under criminal law, the procedure for imposing an alternative administrative fine must be initiated by the Division of Environmental Enforcement, Environmental Damage and Crisis Management. This commences by notifying the offender about the decision of the Public Prosecutor and, if necessary, by requesting the record from the officer concerned. Next, the alleged offender is informed about the intention to impose an alternative administrative fine. The offender then has the possibility to submit a written defence, to consult the case documents or to request a copy. In that case, at the alleged offenders request, a hearing is organized. The decision must be notified within a period of 180 days after notification of the alleged offender. For the sanctioning of environmental offences, a mixed enforcement model was chosen, which will be elaborated below.
2.1.2 The Functioning of a Mixed Enforcement Model In first instance, the environmental offences still end up with the Public Prosecutors office with the court within the area of jurisdiction where the environmental offence has been committed. The Public Prosecutor has been assigned the role of playmaker. He has first choice and the freedom to decide whether or not to consider the environmental offence under criminal law. After a first examination of the case file he should be able to decide whether or not to opt for penalising the offence under criminal law, notwithstanding the ultimate results of the criminal investigation. 23 He must notify this decision within 180 calendar days, possibly to be extended by another 180 days, counting from the day on which he received the report.24 The Public Prosecutor has several options: If the Public Prosecutor decides to consider the environmental offence under criminal law, this implies that the Division of Environmental Enforcement, Environmental Damage and Crisis Management can no longer impose an alternative administrative fine. If the Public Prosecutor decides not to consider the environmental offence under criminal law and finds it necessary to have it settled administratively, he must inform the Division of Environmental Enforcement, Environmental Damage and Crisis Management about this within 180 days (possibly to be extended by another 180 days) counting from the day on which he received the report. This decision will cause the discontinuation of the criminal proceedings, and the initiation of the procedure for imposing an alternative administrative fine by the Division of Environmental Enforcement, Environmental Damage and Crisis Management. If the Public Prosecutor does not notify his decision or if he does not make a decision at all, the imposing of an administrative fine is excluded. This regulation has been deliberately chosen. The underlying reasoning was to, without dictating the public prosecutors what they have to decide, still provoke a certain choice within a certain period of time in order for everyone to fully assume responsibility. Moreover, this relation ensures the safeguarding of the non bis in idem principle. However, this approach presumes a maximum response rate on the part of the public prosecutor. After all, there is a risk that due to a late decision of the Public Prosecutor on whether or not to prosecute under criminal law, sanctioning the offender will not be possible, as the Division of Environmental Enforcement, Environmental Damage and Crisis Management will no longer be able to take any action. So far, the Division of Environmental Enforcement, Environmental Damage and Crisis Management only received about 20 case files for which the Public Prosecutor failed to notify a timely decision, so that an administrative fine could no longer be imposed. Whether or not these cases have been considered under criminal law, is not known.
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The first results show that the double system works well. It seems that for the period 1 May 2009 - 10 January 2010 nearly 10% of all cases regarding Environmental Enforcement, registered at the public prosecutors offices in the Flemish Region have been dismissed until after 1 May 2009, in order to impose an administrative fine. The majority of these cases were forwarded to the Division of Environmental Enforcement, Environmental Damage and Crisis Management, which resulted in the Division of Environmental Enforcement, Environmental Damage and Crisis Management receiving 304 reports in view of imposing an alternative administrative fine. Although this new system has been in force for only six months, we can indeed conclude that it did accelerate matters. This conclusion is supported by the fact that in 2010, the Division of Environmental Enforcement, Environmental Damage and Crisis Management ended with 1,076 case files for which the Public Prosecutor decided not to prosecute under criminal law. If we look at the nature of the offences submitted to the Division of Environmental Enforcement, Environmental Damage and Crisis Management in 2009 and 2010, it is striking that nearly half of these cases is related to waste (29% of all files regard waste dumping, 14% regard waste incineration and 5% regard transport regulation violations). Also the nature protection law takes a prominent position (9% concern the Species Decree; 7% involve infringements of the Nature Decree, 6% concern Fisheries legislation, 5% are infringements of the Forest Act and another 3% regard the Hunting Act). The remaining offences mainly concern dumping (+/- 9%), fertilizers (4%) and exceeding the noise standards in VLAREM II and the RD of 24 February 1977 (in total 6%). Rather rare are the files with infringements of the Soil Act and its implementing orders (1%) and emissions into the air (2%). 2.3 Sanctioning the Offender
Currently, only an administrative fine and possibly a deprivation of advantage can be imposed on the offender. The notion of offender corresponds to the person violating a standard which he was supposed to observe and obliged him to act or refrain. It is merely about the offender himself, not about any potential accomplices who helped him commit or enabled him to commit the environmental offence (as determined in articles 66 and 67 of the Criminal Code)25 However, the pending cases at the Division of Environmental Enforcement, Environmental Damage and Crisis Management show that not only the person labelled as suspect plays a part in the violation of environmental legislation, but also people ordering others to incinerate their waste, cut down trees,... The Division of Environmental Enforcement, Environmental Damage and Crisis Management cannot, as opposed to what is possible in criminal law, sanction accessories or accomplices, which can lead to confusing situations where someone gets a fine, while others who are equally guilty (participate as accessories) get away with it. In 2012, the Environmental Enforcement Act will be submitted to an overall evaluation. The margins for the administrative sanctioning of accessories and
accomplices will be further investigated from a legal standpoint within the scope of this evaluation. 2.3.1 The Administrative Fine The Environmental Enforcement Act mentions, in its article 16.4.27, the maximum amounts of the exclusive and alternative administrative fines. The exclusive administrative fine may amount to 50,000 , increased by the surcharges that apply for criminal fines, currently 5.5. An alternative administrative fine may amount to 250,000 , increased by the surcharges. These forked tariffs provide the Division of Environmental Enforcement, Environmental Damage and Crisis Management, and the Environmental Enforcement College in appeal, with a very large evaluation margin, all the more because it only concerns maximum fines.26 In order to create uniformity in the determination of penalty, the Division of Environmental Enforcement, Environmental Damage and Crisis Management developed an objective penalty framework during the first year of its operation in which fixed criteria are elaborated per category of environmental infringement. Each fine is determined in view of the gravity, frequency and the circumstances in which the offender committed or terminated the environmental offence or infringement.27 The basic amount is based on the gravity of the violation of environmental legislation. The gravity mainly depends on the impact on the environment. For waste-related files, the basic amount, for example, varies according to the nature and quantity of the waste. For noise pollution, the basic amount will increase in proportion to the amount of exceeded decibels. Consequently, this basic amount can be increased if the frequency factor appears to be present. Here, it can be verified whether and how many official complaints and/ or reports have been submitted for similar facts. According to the circumstances, the basic amount (+ possible aggravation by frequency) can be increased or decreased. This way, the amount will be decreased if it appears that the person concerned has regularized the illegal situation, or, for example, has taken the necessary measures in order to re-establish conformity to standard. 2.3.2 Deprivation of Advantage The Division of Environmental Enforcement, Environmental Damage and Crisis Management can, together with an administrative fine, impose a deprivation of advantage. A deprivation of advantage is a sanction whereby an offender is required to pay an estimated sum to the amount of the net capital gain obtained from the environmental offence or infringement. This means that the costs that have been made in order to realize the capital gain will not be counted when determining the deprivation of advantage. The objective of the definition in the Environmental Enforcement Act was to return to the financial status quo ante.
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This way, for example, late payments of taxes cannot be taken into account when calculating the capital gain. At the same time, it concerns a sum which may or may not be estimated. Consequently, the legislator provided the possibility to estimate the net capital gain, also in those cases where the capital gain would no longer be present in the offenders capital. The deprivation of advantage is an addition to the host of sanctions aimed at reducing illegal profits or capital gains obtained during an environmental infringement. A correct and systematic application of this new tool should allow limiting unfair competition in the environmental sector, by making sure that dodging environmental measures does not pay off. In 2009 and 2010, for each case where a fine was imposed, it was always verified ad hoc whether or not imposing a deprivation of advantage was possible/recommended. So far, a deprivation of advantage was only imposed in certain cases, such as for the non-payment of subscription fees to management authorities in view of the duty of acceptance, late investments in installations, the non-performance of analyses. As it is important for this tool to be applied in an objective manner, there was a need to develop a framework which shows more clearly in which circumstances, for which cases and in what way this tool can be implemented. Therefore, a contract was assigned in order to further elaborate the framework in which the deprivation of advantage tool can be applied. The study should provide a methodology to appropriately handle the advantage deprivation tool at the administrative level. 2.4 Appeal to the Environmental Enforcement College
It is possible to appeal against the decision to impose an alternative administrative fine (for environmental offences) or an exclusive administrative fine (for environmental infringements) with the Environmental Enforcement College.28 The college, established on 1 May 2009 and operational since September 2009, is an administrative court in the sense of article 161 of the Constitution. The College assesses whether or not the Division of Environmental Enforcement, Environmental Damage and Crisis Managements decision is in accordance with among others the provisions of the Environmental Enforcement Act and with the principles of good governance. Until before the modifications to the Act containing various provisions regarding environment and nature of 23 December 201029 , the Environmental Enforcement College was able to take one of the following decisions: The reasoned rejection of appeal on the grounds of inadmissibility or contention that the appeal is unfounded, with the confirmation of the imposed administrative fine as a result. The reasoned acceptance of the appeal, resulting into a reduction or discharge of the administrative fine. The overturning of the unlawful decision by the Division of Environmental Enforcement, Environmental Damage and Crisis Management, stating reasons.
In this case, the Environmental Enforcement College can order the Division of Environmental Enforcement, Environmental Damage and Crisis Management to notify a new decision under the conditions stipulated by the college. These conditions may imply that in anticipation of a new decision, the appealing party is released from the obligation to pay the initially imposed administrative fine, that certain irregular or unreasonable motives during the formulation of a new decision should not be involved or that certain regular and reasonable motives during the formulation of a new decision clearly have to be taken into account.30 The authority of the Environmental Enforcement College31 was extended by the Act containing various provisions regarding environment and nature. First of all, article 16.4.19 2 is replaced, in order for the deprivation of advantage to become amenable to challenge by the Environmental Enforcement College. The possibility to appeal was already interpreted in such a way that the decisions of the Division of Environmental Enforcement, Environmental Damage and Crisis Management imposing both an administrative fine and a deprivation of advantage for both parts could be contested with the Environmental Enforcement College.32 The Act containing various provisions regarding environment and nature now explicitly regulates this. Furthermore, the appeal is of a suspensive nature, the Environmental Enforcement College is given unlimited jurisdiction, and the possibility to refer the case back to the Division of Environmental Enforcement, Environmental Damage and Crisis Management after annulment is now cancelled. This is preferable in order to avoid long procedures and legal insecurity for the person who filed the appeal.33 The recent modifications may cause the treatment of the appeal by the Environmental Enforcement College to lead to one of the following judgements: Declining of jurisdiction by the Environmental Enforcement College. Establishment of inadmissibility of the appeal. Establishment of the appeal to be unfounded. Establishment of the appeal to be founded.
If the Environmental Enforcement College declares the appeal to be founded, the contended decision will be wholly or partially annulled. Moreover, the Environmental Enforcement College can decide itself on the fine and if necessary, on the deprivation of advantage. Whereas in the past, the Environmental Enforcement College could only reduce or cancel the fine, it now has the authority to not only reduce or cancel, but also to increase the fine and/or deprivation of advantage.34 Against decisions of the Environmental Enforcement College, a higher appeal can be filed with the Council of State. In October 2009, the first decision to impose an exclusive administrative fine was taken by the Division of Environmental Enforcement, Environmental Damage and Crisis Management and in January 2010, the first decision was taken to impose an alternative administrative fine. In 2010, 12 appeals were filed with the Environmental Enforcement College, of which already 7 appeals were given a verdict.35
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3 CONCLUSION An important innovation within administrative enforcement is the system of administrative sanctioning. The administrative fine was introduced in order to limit impunity and to determine the most appropriate sanction for each type of environmental violation. There is a strong preference for a mixed enforcement system in which the role of criminal law was taken into account the Public Prosecutor remains the playmaker regarding environmental offences -, but in which the administrative sanctioning is a welcome alternative for environmental offences and even plays a main role with regard to environmental infringements. By sanctioning a limitative list of environmental infringements under administrative law only, part of the legal infringements with regard to the environment are indeed depenalised. So far, the possibility to establish environmental infringements by drawing up a report of identification by authorized supervisors has been utilized relatively little. Possible causes are the discretionary power of the supervisor to draw up a report of identification and insufficient knowledge of this new tool. The discretionary power cannot be regarded as problematic, as it is only a matter of purely administrative formality, without any real impact on the environment. The insufficient knowledge of the supervisor, on the other hand, does require attention and if necessary, initiatives regarding training and communication ought to be considered (www.vhrm.be). Moreover, it could be useful to evaluate the list of environmental infringements and if needed, to elaborate it, in order to maximize the effect of depenalisation. For the handling of environmental offences, the Public Prosecutor remains the playmaker. The Public Prosecutor decides - within a certain period of time whether or not to forward the report to the Division of Environmental Enforcement, Environmental Damage and Crisis Management with a view to imposing an alternative administrative fine. The first findings show that this mixed enforcement system was a sound initiative, which confirms the choice of the legislator in a very positive way. The Division of Environmental Enforcement, Environmental Damage and Crisis Management may impose an exclusive or alternative administrative fine - whether or not accompanied by a deprivation of advantage - on the offender, against which the latter can file an appeal with the Environmental Enforcement College. In order to determine the fine, the Division of Environmental Enforcement, Environmental Damage and Crisis Management has developed an objective sanctioning framework with fixed criteria per category of environmental violation, for which the gravity, frequency and circumstances in which the offender committed the offence must be taken into account. However, the Environmental Enforcement Decree does not allow imposing a fine on accessories or accomplices. This is also one of the elements that could be taken into account during evaluation of the Act.
The evaluation of the Environmental Enforcement Act, scheduled to take place in 2012, will undoubtedly give cause for a refinement and improvement of the regulatory framework. 4
1
REFERENCES
Full-text article: Renders, T. and Stas, A., Het Milieuhandhavingsdecreet: een analyse van de Vlaamse Hoge Raad voor de Milieuhandhaving, het systeem van toezichthouders en de bestuurlijke handhaving (deel II), Tijdschrift Milieu- en Energierecht (in press) 2 Flemish Parliament Act of 21 December 2007 supplementing the Flemish Parliament Act of 5 April 1995 containing general provisions regarding environmental policy with Title XVI Supervision, Enforcement and Safety Measures, Belgian Official Journal of 29 February 2008. For an overview of this title in its original version: J.Heyman, Is er een Copernicaanse wending op til in het Vlaams milieuhandhavingsbeleid?, Nullum Crimen 2008, 303-326. For a review of the Environmental Enforcement Act and the Environmental Enforcement Decree in its last draft but one: Billiet, C.M., De Smedt, P. and Van Landeghem, H., Vlaamse milieuhandhaving nieuwe stijl, TMR 2009, 326-374. 3 For an elaborate historical overview: Explanatory memorandum, Parl.Doc. Fl. Parl. 2006-07, no. 1249/1, 5-8; Heyman, J. and Deketelaere, K., Het Vlaams decreet betreffende milieuhandhaving in Deketelaere, K. (ed.), Jaarboek Milieurecht 2007, Milieurechtstandpunten nr. 22, Bruges, Die Keure, 2008, 221-224. 4 Explanatory memorandum, Parl.Doc. Fl. Parl. 2006-07, no. 1249/1, 5. 5 Flemish Parliament Act of 30 April 2009 amending the Act of 5 April 1995 containing general provisions regarding environmental policy and amending different provisions regarding environmental enforcement, Belgian Official Journal 25 June 2009. 6 Flemish Government Decree of 12 December 2008 implementing title XVI of the Act of 5 April 1995 containing general provisions regarding environmental policy, Belgian Official Journal 10 February 2009. 7 Flemish Government Decree of 30 April 2009 amending the Decree of 12 December 2008 implementing title XVI of the Act of 5 April 1995 containing general provisions regarding environmental policy and amending various other decrees, Belgian Official Journal 25 June 2009. 8 Explanatory memorandum, Parl.Doc. Fl. Parl. 2006-07, nr. 1249/1, 19; cf. a.o. Billiet, C. and Rouseau, S., Zachte rechtshandhaving in het bestuurlijke handhavingsspoor: de inspectiebeslissing en het voortraject van bestuurlijke sancties. Een rechtseconomische analyse, TMR 2005, 17. 9 Written questions and answers, Parl. Doc. Chamber, 2007-08, nr. 52QRVA0032, 8142 10 Faure, M.G. and Svatikova,K., De handhaving van het milieurecht in het Vlaamse Gewest in de praktijk, PANOPTICON 2010, 5, 57-81. 11 Explanatory memorandum, Parl.Doc. Fl. Parl. 2006-07, nr. 1249/1, 18. 12 Art. 16.1.2, 4 Environmental Enforcement Act art. 3 and 1, 23 Environmental Enforcement Decree. 13 Billiet, C.M., De Smedt, P. and Van Landeghem, H., Vlaamse milieuhandhaving nieuwe stijl, TMR 2009, 330.

14
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Flemish Government Decree of 12 December 2008 implementing title XVI of the Act of 5 April 1995 containing general provisions regarding environmental policy, Belgian Official Journal 10 February 2009, amended by Decree of 30 April 2009, Decree of 4 September 2009 and of 19 November 2010. 15 Annexes I-XXII to the Environmental Enforcement Decree. 16 Art. 16.3.23 Environmental Enforcement Act. 17 Art. 16.4.41, 1, first paragraph Environmental Enforcement Act. 18 Art. 16.4.41, 1, second paragraph, 1 Environmental Enforcement Act. 19 Art. 16.4.41, 1, first paragraph Environmental Enforcement Act. 20 Art. 16.4.41, 1, second paragraph, 2 Environmental Enforcement Act. 21 Environmental enforcement report 2009, 140. 22 Art. 16.4.31, paragraph 1 Environmental Enforcement Act. 23 Explanatory memorandum, Parl.Doc. Fl. Parl. 2006-07, no. 1249/1, 60-61. 24 Art. 16.04.32 Environmental Enforcement Act. 25 See also Billiet, C.M., Bestraffing van milieucriminaliteit: de beboetingsambtenaar als derde speler op het veld, in Lavrysen, L. (ed.), Het Milieuhandhavingsdecreet in de praktijk. Een jaar nieuwe milieuhandhavingspraktijk onder de loep, in Lavrysen, L. (ed.), Bruges, Die Keure, 2010, 92-94. 26 Explanatory memorandum, Parl.Doc. Fl. Parl. 2006-07, no. 1249/1, 59. 27 Art. 16.04.29 Environmental Enforcement Act. 28 Art. 16.4.19, 2 Environmental Enforcement Act. For a general overview of the Environmental Enforcement College: Heyman, J., Een nieuwe actor in het Vlaamse Milieuhandhavingsbeleid: het Milieuhandhavingscollege, M.E.R. 2008, 239-263 and www.mhhc.be 29 Flemish Parliament Act of 23 December 2010 containing various provisions regarding environment and nature, Belgian Official Journal 18 February 2011. 30 Art. 16.4.19, 2 Environmental Enforcement Act. 31 The original article 16.4.19 3 of the Environmental Enforcement Act was not clear enough and needed clarification, cf. C.M. Billiet, Bestraffing van milieucriminaliteit: de beboetingsambtenaar als derde speler op het veld, in Lavrysen, L. (ed.), Het Milieuhandhavingsdecreet in de praktijk. Een jaar nieuwe milieuhandhavingspraktijk onder de loep, Bruges, Die Keure, 2010, 109} 32 Billiet, C.M., Bestraffing van milieucriminaliteit: de beboetingsambtenaar als derde speler op het veld, in Lavrysen, L. (ed.), Het Milieuhandhavingsdecreet in de praktijk. Een jaar nieuwe milieuhandhavingspraktijk onder de loep, Bruges, Die Keure, 2010, 107. 33 Explanatory memorandum, Parl.Doc. Fl. Parl. 2010-2011, no. 665/1, 23. 34 Article 16.4.19, 2-3 Environmental Enforcement Act. 35 www.mhhc.be.
IMPROVING ENFORCEMENT OF HAZARDOUS WASTE LAWS: A REGIONAL LOOK AT E-WASTE SHIPMENT CONTROL IN ASIA WENDELL, KATELYN J. katelynwendell@gmail.com SUMMARY The illegal transboundary shipment of waste electrical and electronic equipment (e-waste) is a threat to global environmental health. Asia is one region that has been significantly impacted by illegal e-waste shipments. Many challenges in the effort to reduce illegal shipments have been identified, several of which stem from inadequate hazardous waste laws or inability to enforce existing regulations. This paper will first summarize the existing laws and regulations in selected Asian countries, and then analyze the enforceability of these laws according to the Principles of Environmental Enforcement, published by the International Network for Environmental Compliance and Enforcement (INECE). This paper then concludes that while the legislation examined provides valuable control mechanisms of e-waste shipments, much of the legislation can be improved to increase enforceability. The primary areas of opportunity include: increasing authority for export shipment inspections, providing clearer standards for determining which shipments constitute e-waste, and integrating e-waste shipment legislation within a broader framework of domestic e-waste management regulations. 1 INTRODUCTION The illegal transboundary movement of waste electrical and electronic equipment (e-waste) is one of the worlds most challenging environmental concerns, and Asia is one of the regions most heavily impacted by these shipments.1 The Asian Network for Prevention of Illegal Transboundary Movement of Hazardous Waste (Asian Network)2 has identified several predominant trade routes for illegal movements of e-waste in Asia. The economic and developmental diversity found in Asia is reflected in the wide diversity of regulations and requirements applicable to imports and exports of e-waste. These factors make many countries in the region targets for imports of e-waste, as many of these countries need the valuable materials found in e-waste, but lack controls of the import or management of the e-waste to ensure that it is properly handled. Moreover, developed countries in this region, including Japan, South Korea, and Singapore, are major consumers of electronics and generators of used electronic products. The importance of this region to the worlds efforts to ensure the proper management of e-waste makes it a critical area for analysis. Lack of enforceability of existing legal requirements is one of the biggest problems. While many countries in Asia have laws and regulations that control the import or
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export of hazardous waste and e-waste, many of these regulations do not provide sufficient legal authority to environmental and customs inspectors to permit effective enforcement. Additionally, the regulations may lack clarity in determining what is or is not considered waste, as well as the proper procedure once a waste determination has been made. Finally, the differences among the laws of countries regarding which materials constitute e-waste, along with the different control procedures to import and export e-waste, contribute to the confusion.3 This paper first will divide the regulatory approaches of many Asian countries into three main categories, and summarily describe each category. The countries surveyed - India, Bangladesh, Thailand, Singapore, China, Korea, Japan, Malaysia, Indonesia, Philippines, Vietnam, and Cambodia4 as well Hong Kong SAR then are divided into three groups according to which main regulatory category they fit. The paper will then analyze the category with the largest number of countries by comparing the regulations and laws to the Principles of Environmental Compliance and Enforcement Handbook, developed by the International Network for Environmental Compliance and Enforcement (INECE).5 It should be noted that this paper does not attempt to analyze actual volume of import or export shipments in any of the selected countries. 2 SUMMARY OF REGULATIONS
The legislation in each country is detailed and variations among countries grouped together do exist. However, by analyzing the legislation from an enforcement viewpoint, it is possible to distinguish these countries by manner of controlling e-waste and used electronics shipments, fitting loosely into three categories. The first group follows the framework of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention) to regulate e-waste and used electronic shipments (hereinafter referred to as Basel Group). The second group imposes a flat ban on the import of e-waste and used electronics but does not place any pre-shipment requirements or controls on exports of used electronics. The countries in the final group all have some regulatory requirements on pre-shipment clearance or notification for both import and export of used electronics intended for reuse. For purposes of this paper, the distinction must be made between e-waste and used electronics. E-waste is electrical and electronic equipment intended for disposal, recycling, or recovery. E-waste includes whole units as well as components and scrap. E-waste is often referred to as WEEE in many of the documents referenced in this article. Used electronics are whole electrical and electronic equipment intended for direct reuse or repair and reuse, and is often referred to as UEEE in many of the documents referenced in this article. 2.1 Basel Group
The countries in this first category are collectively referred to as the Basel Group and very closely track Basel Convention language and/or procedures. Some countries
in this group specifically reference the Basel Convention in their legislation, and others create a procedural framework similar to the Basel Convention, requiring prior informed consent and notification for import and export of those wastes deemed hazardous. Additionally, some countries in this group ban the import of all hazardous waste and/or e-waste. However, because the Basel Convention and the countries in this group do not consider used electronics intended for direct reuse to be a hazardous waste, there are no permit or notification requirements for the import or export of them. As a result, checkpoint inspection is the primary verification method.6 This group includes Japan, Korea, India, Hong Kong SAR, China, Cambodia, and Bangladesh. For example, Japans law regulating the transboundary movement of hazardous and other wastes refers directly to the Basel Convention. Hazardous wastes are defined as those listed in Basel annexes, and all Basel procedures apply to all wastes considered hazardous under Basel. The purpose section of the legislation specifically states that the law is intended to implement Basel procedures. As such, e-waste and used electronic imports and exports follow Basel requirements.7 2.2 Countries with Ban on Import of Used Electronics
In addition to or in place of Basel-like procedures, the countries in this second category have banned import of used electronics even for direct reuse, but do not have any pre-shipment controls on exports of used electronics intended for direct reuse. These countries include Vietnam, Indonesia, and Thailand. Vietnam regulates exports by Basel procedures.8 This means that export of e-waste and used electronics depends on the shipments Basel hazardous classifications. As such, exports of used electronics for direct reuse will not require any pre-shipment controls or prior informed consent. However, Vietnam more closely controls imports by banning the import of hazardous waste, all e-waste (because it is considered hazardous), and used electronics intended for direct reuse. Vietnam does allow some scrap as secondary materials to be imported. However, this scrap may not contain hazardous substances, and these are only allowed with oversight by the Ministry of Environment. Vietnam also allows the import of some goods and scraps if intended to be re-exported.9 Indonesia generally follows Basel procedures for exports of hazardous waste, e-waste, and used electronics. However, Indonesia bans the import of hazardous waste and e-waste, as long as they are hazardous. To promote domestic industry, import of used electronics for direct reuse is generally banned. The ban is applied on an item-by- item basis, but the legislation lists most common secondhand electronics.10 Thailand is somewhat of a hybrid between this second category and the Basel Group. Thailand classifies e-waste as hazardous substance, and thus subject to Basel procedures for both import and export. Thailand also requires import and export permits from the Thai government for e-waste. Additionally, Thailand controls import of used electronics intended for reuse by limiting the purposes for which specific items can be imported, and by requiring a government import
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permit. Although Thailands import controls of used electronics do not amount to a complete ban, Thailand still requires a formal government-issued permit prior to import of these items, and thus fits into this group because of its controls over imports of used electronics for reuse.11 It should be noted that many countries in the Basel Group, such as China and Bangladesh, require inspection of used electronics import shipments upon arrival in the country before the goods can be released from the consignments on to their final destinations.12 These are valuable procedures that improve enforceability of those regulations. However, such countries have been placed in the Basel Group rather than this second category of countries because they do not ban the import of used electronics for reuse or require government approval prior to shipments of used electronics for reuse, as do the countries in this second category. 2.3 Countries with Pre-shipment Requirements for Import and Export of Used Electronics for Reuse
The countries in this final category have pre-shipment procedural requirements for both import and export of used electronics intended for reuse. The countries in this category include Malaysia, The Philippines, and Singapore.13 For example, Malaysia generally follows the import and export procedures of the Basel Convention for all wastes deemed hazardous. Malaysia also prohibits the import of e-waste, and export of e-waste for purposes of disposal, and requires approval from the Department of Environment prior to an import or export shipment of used electronics for reuse. For guidance, Malaysia issued Guidelines for the Classification of Used Electrical and Electronic Equipment in Malaysia. Annex A of these guidelines contains a flow chart for distinguishing e-waste from used electronics for reuse shipments. If a used electronics designation is made using this chart, the importer or exporter is required to fill out an application and checklist, and submit this to the Department of Environment for approval of the shipment. 3 ENFORCEABILITY OF REGULATIONS
This section will examine the enforceability of the regulations in those countries that closely track the Basel Convention framework (Basel Group), because almost half of the countries surveyed fall into that group. Despite the long history and comprehensiveness of the Basel Convention with respect to hazardous waste, illegal e-waste shipments remain a global problem. Because the Basel Convention addresses hazardous waste, the treaty may not reach all used electronics because only some are considered waste or hazardous under the Basel Convention. Countries in the Basel Group that mirror the Basel Conventions framework will have the same challenge. As such, it is useful to examine the enforceability of these regulations in the context of e-waste. The Principles of Environmental Compliance and Enforcement Handbook, published by INECE, provide guidelines for drafting effective regulations.14 The basic legal issues that should be addressed include: 1) Sufficient Legal Authority, 2) Clear Standards, 3) Clear Roles and Responsibilities, 4) Fair and Equitable Rules, and
5) Coordination with Existing Laws.15 As will be discussed below, the regulations in Asian countries that fall into the Basel Group, and the Basel Convention itself, address most of these legal issues in the context of hazardous waste. However, these regulations could be improved to strengthen effective enforcement for e-waste specifically. 3.1 Sufficient Legal Authority
One area in need of improvement in the legislation is to confer more legal authority on competent authorities to pre-clear and track all e-waste and used electronic shipments, regardless of intended purposes and regardless of final destinations. As shown in the above summary of regulations, many countries surveyed allow the import and export of used electronics for reuse without any prior government approval or notification. This lack of pre-shipment clearance of goods claimed to be intended for reuse leaves opportunities for illegal shipments. This enforcement challenge has been identified by practitioners and scholars in the field. Following INECE Seaport Environmental Security Networks Inspection Project, several participating countries identified insufficient domestic legislation or lack of implementing regulations as a challenge for controlling hazardous waste and e-waste shipments.16 Specifically in the realm of e-waste, several scholarly papers and reports have also identified inadequate legislation as a challenge for controlling e-waste shipments.17 To improve enforceability of legislation intended to control e-waste shipments, national authorities may consider adding pre-shipment notification and consent procedures for all used electronics shipments, regardless of intended purposes, to prevent exploitation of existing regulations. 3.2 Clear Standards
Providing clear and sufficient definitions of hazardous waste and electronic waste is one of the most commonly identified challenges for controlling e-waste shipments. Additionally, consistency of definitions and standards among countries for determining which items are e-waste is a commonly identified challenge as well. 18 Some countries studied provide a clear and thorough check-list or series of inspections and tests that should be conducted to determine if a particular item is e-waste. Other countries depend on a somewhat flexible definition, or rely on the exporters discretion and determination. The Basel Convention and many countries in the Basel Group lack any litmus test or checklist to distinguish e-waste shipments from used electronics intended for reuse, other than the definitions provided in Annexes VIII and IX of the Basel Convention. This ambiguity allows exporters to use their own judgment if the shipment is hazardous or non-hazardous, and thus whether subject to consent and notification requirements. A common and clear framework for e-waste shipments identification, as well as corresponding shipment procedures, would improve control over e-waste shipments. A good example of such a framework is provided by Hong Kong SAR. Hong Kong has a presumption that for purposes of import and export, all used electronics are e-waste and subject to import and export controls unless they can
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be shown to be for reuse for their original intended purposes without repair.19 If an importer or exporter is claiming the goods to be for such reuse, the following factors are to be considered: G enuine demand in Hong Kong. Good conditions and meeting both the technical specifications and safety standard. Compliance testing results and certificates. Proper and sufficient individual protective Packaging. Prior contractual agreement with concerned parties.20 3.3 Clear Roles and Responsibilities
The Basel Convention and the countries in the Basel Group clearly provide the proper procedures to be followed for importing or exporting hazardous waste. The Basel Convention defines key terms and actors, such as Competent Authorities and the Basel Convention Secretariat. The Basel Convention also clearly defines the roles of each party, such as Article 6, which describes the notification procedures that should be undertaken by Competent Authorities. The implementing legislation and regulations in the countries in the Basel Group also clearly define actors and duties. For example, Korean law identifies the authoritative agency within Korea (Ministry of Environment), and the duties of that agency.21 The law also specifies the responsibilities of importers and exporters. All countries in the Basel Group meet this criterion for enforceable regulations. While this particular criterion is met, it should be noted that there is still opportunity to improve enforceability in terms of e-waste regulations. For example, regulations for controlling e-waste shipments should include more explicit descriptions of the relationship between roles and responsibilities of Basel Competent Authorities, which are usually environmental ministries, and national border protection agencies. As identified by several countries in the SESN Inspection Project, better communication and collaboration between competent authorities and border patrol are desired and deemed critical to improve control of hazardous waste and e-waste shipments.22 3.4 Fair and Equitable Rules
The Basel Convention and the countries in the Basel Group generally impose equivalent e-waste shipment requirements on all exporters and importers. Where restrictions apply, these are often due to concerns of environmental justice and recognition of the needs of developing countries compared to developed countries. An example of this recognition is the Ban Amendment. Adopted in 1995 at the third meeting of the Conference of the Parties, the amendment places a ban on export of hazardous waste intended for disposal from Annex VII to non-Annex VII countries. Annex VII countries are members of the European Union, the Organisation for Economic Co-Operation and Development, and Liechtenstein. Non-Annex VII
countries are all other parties to the Basel Convention.23 The amendment has been ratified by three-fourths of all Convention parties. 3.5 Coordination with Existing Laws
The level of satisfaction with this criterion varies widely among the countries surveyed in this study. Some countries have integrated hazardous waste regulations into a greater scheme of environmental protection laws, while others have somewhat segmented hazardous waste laws. Globally, this is an integral part in improving enforceability and ultimately efficacy of e-waste regulations. Japan is an excellent example among the countries studied that has integrated its e-waste import and export regulations within a broader framework of e-waste and hazardous waste management. Japans Fundamental Law for Establishing a Sound Material-Cycle Society provides the basis for the countrys waste management laws.24 Under this umbrella law, Japan has implemented several laws controlling recycling, domestic waste management, and transboundary movements of waste.25 Japans Law for the Control of Export, Import and Others of Specified Hazardous Wastes and Other Wastes fits into this larger framework, and even references other laws within the framework where there may be overlap among the laws. By integrating import and export control of e-waste and used electronics within a broader framework for reduction of e-waste production, Japan is moving towards its goal of a Sound Material-Cycle Society.26 4 CONCLUSION The Basel Convention and the e-waste regulations in Asian countries are valuable and can be used to regulate e-waste effectively. However, opportunities exist to improve enforceability of these regulations regarding e-waste shipments. The primary areas of opportunity include: i ncreasing legal authority over shipments of used electronics intended for reuse, such as requiring notification and prior informed consent; providing clearer standards regarding how to differ those electronics that are truly for reuse from those that are waste, and clearly describing subsequent procedural requirements for shipments; and coordinating e-waste shipment requirements within a broader framework of domestic e-waste legislation to reduce e-waste shipments. As developing and developed countries across the world continue to address the problem of e-waste, much can be learned from existing regulations in regions such as Asia. It is important to consider the strengths of such regulations, as well as areas of opportunity for improving enforcement of these regulations. As countries move forward to implement new legislation or improve existing legislation, it is imperative that these nations consider the factors necessary to make these regulations enforceable.
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5 REFERENCES E-waste contains several toxic substances, including lead, mercury, beryllium and cadmium. Improper handling of e-waste, such as open burning and acid baths to recover precious metals and the dumping of residues, poses a significant threat to human and environmental health. The Basel Action Network, Exporting Harm: The High-Tech Trashing of Asia (2002) available at http://www.ban.org/E-Waste/ technotrashfinalcomp.pdf. See also RoHS substances in mixed plastics from Waste Electrical and Electronic Equipment (September 2010, EMPA) available at http:// ewasteguide.info/files/Waeger_2010_Empa-WEEEForum.pdf. 2 Network website and information about identified trade routes available at http:// www.env.go.jp/en/recycle/asian_net/. Member Countries and Special Administrative Regions: Cambodia, China, Indonesia, Malaysia, Philippines, Republic of Korea, Singapore, Thailand, Vietnam, Japan, Hong Kong SAR, Brunei Darussalam. For convenience, these entities will be referred to as countries in this article. 3 At the Asian Networks Annual Workshop, many countries, for several consecutive years, have identified inconsistent definitions of hazardous waste as a challenge or problem to addressing illegal transboundary movements of hazardous waste and e-waste. For workshop proceedings and documents, see http://www.env.go.jp/en/ recycle/asian_net/NetworkWorkshops.html. 4 This paper contains an analysis based on available domestic legislation, regulations, guidelines and government issued documents, as well as presentations and reports found on the Asian Network website. Documents consulted Included: E-Waste Management and Illegal Traffic in Thailand and South East Asia Countries, by Piyanee Thangtongtawi, presented at 4th Regional Workshop on AsianNetwork for Prevention of Illegal Transboundary Movement of Hazardous Wastes organized by the Government of Japan, venue in Tokyo, Japan during 28-30 January, 2008, which examines e-waste problems and legislative controls in nine countries, and a report entitled Report of the Project on the Import/Export Management of E-waste and Used EEE, published by the Basel Convention Coordinating Center for Asian and the Pacific (2009) (BCCC Report), and several additional secondary sources listed in the Bibliography. 5 INECE, Principles of Environmental Compliance and Enforcement Handbook (2009) available at http://inece.org/principles/PrinciplesHandbook_23sept09.pdf. 6 The Basel Convention annexes list those wastes that are considered hazardous, for which Basel procedures including Prior Informed Consent (PIC) apply, as well as those not considered hazardous, the import and export of which do not require any pre-shipment notification or consent. Following is a summary breakdown of electrical and electronic equipment according to Annexes VIII and IX: For those e-wastes that fall under the not-hazardous category in B1110, which includes electrical and electronic assemblies. . .destined for direct reuse, and not for recycling or final disposal, there are no procedures to be followed for these goods. However, Draft Technical Guidelines on Transboundary Movement of E-Waste, In Particular Regarding the Distinction Between Waste and Non-Waste, (Version 22 September 2010), point out that most electrical and electronic equipment does contain the components or constituents listed in A1180 as hazardous, and as
1
such, e-waste (not intended for reuse) will be presumed to be hazardous unless shown otherwise. However, it remains that a shipment declared to be UEEE is not hazardous waste under the Basel Convention and is therefore not subject to any prior informed consent or notification. Full text of the Basel Convention available at http://www.basel.int/text/documents.html. Draft Technical Guidelines available at http://www.basel.int/techmatters/index.html. 7 Legislation and documents for these countries, except Bangladesh and India, available at http://www.env.go.jp/en/recycle/asian_net/legislative.html. Bangladesh policy includes Imports and Exports Control Act (1950); Import Policy Order 20092012; Export Policy Order 2006-09, draft 09-12. Indias primary hazardous waste policy document is the Hazardous Waste Management Rules (2008). 8 Vietnams legislation and regulations include: Law on Environmental Protection; Law on Trade, 2006 and Implementation Rules; Decree No. 12/2006/ND-CP of the Government ban the import of second-hand commodities including electronics, cooling appliances, home appliances, and information technology products; Decision No. 12/2006/QD-BTNMT of Ministry of Natural Resources and Environment allow some scraps to be imported; Decision No. 23/2006/QD-BTNMT of Ministry of Natural Resources and Environment consider electronic and electrical waste as hazardous waste; Circular No. 12/2006/TT-BTNMT of Ministry of Natural Resources and Environment on guiding the capacity and conditions, and procedure for application, permit and code of hazardous waste management profession. These and additional legislative and policy documents available at http://www.env.go.jp/ en/recycle/asian_net/legislative/legislative-Vietnam.html. 9 For a discussion of Vietnams e-waste and used electronics controls and enforcement challenges, see Shinkuma, T. & Huong, N.T.M., The flow of E-waste material in the Asian region and a reconsideration of international trade policies on E-waste, Environmental Impact Assessment Review, V. 29, 2009, pp. 25-31. The existence of this import for re-export exception, in Vietnam and in other Asian countries, has been identified as one way in which importers and exporters of e-waste may exploit the regulations. 10 Indonesias policy documents include: Act No. 23, 1997, Environmental Management, Articles 20 and 21; Ministerial Decree No 231/MPP/Kp/1997 Regarding Import Procedure of Waste; Decree No. 756, 2003 on Import of Non-new Capital Goods, and Decree no 610, 2004 amending DN 756. These and other policy documents available at http://www.env.go.jp/en/recycle/asian_net/legislative/ legislative-Indonesia.html. 11 For an in-depth analysis of Thailands e-waste laws and regulations, see Thangtongtawi, P., E-Waste Management and Illegal Traffic in Thailand and South East Asia Countries, presented at 4th Regional Workshop on AsianNetwork for Prevention of Illegal Transboundary Movement of Hazardous Wastes organized by the Government of Japan, venue in Tokyo, Japan during 28-30 January, 2008. 12 See the Report of the Project on the Import/Export Management of E-waste and Used EEE, published by the Basel Convention Coordinating Center for Asian and the Pacific (2009), as well as legislation for details on consignment-release requirements and procedures. 13 Policy documents for these countries available at http://www.env.go.jp/en/recycle/ asian_net/legislative.html. For information about Singapores TRADENET system
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and pre-shipment clearance requirements, see Report of the Project on the Import/ Export Management of E-waste and Used EEE, published by the Basel Convention Coordinating Center for Asian and the Pacific (2009) , pp. 15-16. 14 INECE, Principles of Environmental Compliance and Enforcement Handbook, 2009, pp. 21-34. 15 INECE, Principles of Environmental Compliance and Enforcement Handbook, 2009, pp. 21-24. 16 INECE Seaport Environmental Security Network, International Hazardous Waste Inspection Project at Seaports: Result and Recommendations, 2010, pp. 15-16. 17 Iles, A., Mapping Environmental Justice in Technology Flows: Computer Waste Impacts in Asia, Global Environmental Politics, V. 4, No. 4, 2004, pp. 76-107; Kojima, M., Transboundary Movements of Recyclable Resources in Southeast Asia, International Trade of Recyclable Resources in Asia, Ch. 6, Institute of Developing Economies-Japan External Trade Organization, 2005, available at http://www.ide. go.jp/English/Publish/Download/Spot/29.html; Shinkuma, T. & Huong, N.T.M., The flow of E-waste material in the Asian region and a reconsideration of international trade policies on E-waste, Environmental Impact Assessment Review, V. 29, 2009, pp. 25-31. 18 See Asian Network Workshop Proceedings documents, available at http://www. env.go.jp/en/recycle/asian_net/NetworkWorkshops.html. 19 Report of the Project on the Import/Export Management of E-waste and Used EEE, published by the Basel Convention Coordinating Center for Asian and the Pacific (2009), p. 21. 20 Report of the Project on the Import/Export Management of E-waste and Used EEE, published by the Basel Convention Coordinating Center for Asian and the Pacific (2009) p. 21. Hong Kong policy documents available at http://www.env. go.jp/en/recycle/asian_net/legislative/legislative-HK-SAR.html. 21 Act on the Control of Transboundary Movement of Hazardous Wastes and Their Disposal (2007) available at http://www.env.go.jp/en/recycle/asian_net/legislative/ legislative-SouthKorea.html. 22 INECE Seaport Environmental Security Network, International Hazardous Waste Inspection Project at Seaports: Result and Recommendations, 2010, pp. 15-18. 23 The Basel Convention Ban Amendment available at http://www.basel.int/pub/ baselban.html. 24 Report of the Project on the Import/Export Management of E-waste and Used EEE, published by the Basel Convention Coordinating Center for Asian and the Pacific (2009) p. 7. See also Japans policy documents, available at http://www.env. go.jp/en/recycle/asian_net/legislative/legislative-Japan.html. 25 These laws include the Public Cleansing Law, Construction Material Recycling Law, and Law for Recycling of Specific Home Appliances. 26 See Report of the Project on the Import/Export Management of E-waste and Used EEE, published by the Basel Convention Coordinating Center for Asian and the Pacific (2009) for discussion of Japans Sound Material Cycle Society. See also Fundamental Plan for Establishing a Sound Material Cycle Society for a description of Japans vision of a Sound Material Cycle Society, available at http:// www.env.go.jp/en/recycle/asian_net/legislative/legislative-Japan.html.
6 BIBLIOGRAPHY Asian Network for the Prevention of Illegal Transboundary Movement of Hazardous Waste website available at http://www.env.go.jp/en/recycle/asian_net/. Asian Network for the Prevention of Illegal Transboundary Movement of Hazardous, Annual Workshop Proceedings and Presentation Documents available at http://www.env.go.jp/en/recycle/asian_net/NetworkWorkshops.html. Asian Network for the Prevention of Illegal Transboundary Movement of Hazardous, Legislative and Policy Framework Documents available at http://www. env.go.jp/en/recycle/asian_net/legislative.html. The Basel Convention Ban Amendment, available at http://www.basel.int/pub/ baselban.html. The Basel Action Network, Exporting Harm: The High-Tech Trashing of Asia (2002) available at http://www.ban.org/E-Waste/technotrashfinalcomp.pdf. The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal available at http://www.basel.int/text/documents.html. Draft Technical Guidelines on Transboundary Movement of E-Waste, In Particular Regarding the Distinction Between Waste and Non-Waste, (22 September 2010), available at http://www.basel.int/techmatters/index.html. Iles, A., Mapping Environmental Justice in Technology Flows: Computer Waste Impacts in Asia, Global Environmental Politics, V. 4, No. 4, 2004, pp. 76-107. INECE, Principles of Environmental Compliance and Enforcement Handbook (2009) available at http://inece.org/principles/PrinciplesHandbook_23sept09.pdf. INECE Seaport Environmental Security Network, International Hazardous Waste Inspection Project at Seaports: Result and Recommendations (2010) available at http://inece.org/seaport/exercise/INECE_SeaportInspectionProjectOutcomes_22d ec.pdf. Kojima, M., Transboundary Movements of Recyclable Resources in Southeast Asia, International Trade of Recyclable Resources in Asia, Ch. 6, Institute of Developing Economies-Japan External Trade Organization (2005) available at http://www.ide. go.jp/English/Publish/Download/Spot/29.html. Basel Convention Coordinating Center for Asian and the Pacific, Report of the Project on the Import/Export Management of E-waste and Used EEE (2009) available at http://www.basel.int/techmatters/index.html.
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RoHS substances in mixed plastics from Waste Electrical and Electronic Equipment (September 2010, EMPA) available at http://ewasteguide.info/files/Waeger_2010_ Empa-WEEEForum.pdf. Shinkuma, T. & Huong, N.T.M., The flow of E-waste material in the Asian region and a reconsideration of international trade policies on E-waste, Environmental Impact Assessment Review, V. 29, 2009, pp. 25-31. Thangtongtawi, P., E-Waste Management and Illegal Traffic in Thailand and South East Asia Countries, presented at 4th Regional Workshop on AsianNetwork for Prevention of Illegal Transboundary Movement of Hazardous Wastes organized by the Government of Japan, venue in Tokyo, Japan during 28-30 January, 2008. U.S. Government Accountability Office, Electronic Waste: Harmful U.S. Exports Flow Virtually Unrestricted Because of Minimal EPA Enforcement and Narrow Regulation, Statement of John B. Stephenson, Director Natural Resources and Environment (2008).
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TRACK F: STRENGTHENING COMPLIANCE INSTITUTIONS

NEW JUDICIAL ROLES AND GREEN COURTS IN INDIA BAKSHI, PRADEEP1 and YADAV, MADHUR2 Advocate, Managing Partner of R.S. Bakshi & Co. (Advocates) And Vice President of Asia Pacific Jurist Association (APJA), A-4, Defence Colony, New Delhi-110024, India, pbakshi@apjalaw.com
1 2
Research Associate, Advocate, myadav@bakshilaw.com
SUMMARY Indian Judiciary has historically played a pioneering role in environmental law enforcement and compliance. The Indian Constitution enables the Indian courts to play a proactive role. Article 226 provides power of judicial review of every action of the State or its instrumentality. Under Article 32, the Supreme Court can enforce the fundamental rights of individuals and can issue any corresponding writ, direction or order to rectify official action that is illegal, in contravention of procedure, unreasonable, irrational or mala fide. The Supreme Court can exercise jurisdiction suo-moto (meaning on its own motion, similar to sua sponte) or through Public Interest Litigation, another important concept. The Indian Supreme Court has equated the right to a clean environment with the right to life. Based on this principle, the Indian courts have created groundbreaking laws for effective environmental compliance and enforcement. The efforts of the Indian judiciary resulted in enactment of National Green Tribunal Act of 2010, that proposes to efficiently and expeditiously dispose of cases relating to environmental protection and conservation of forest and the natural resources including enforcement of legal rights relating to environment and giving relief and compensation for damages to persons and property and for matters enumerated therewith or incidental thereto. 1 INTRODUCTION The United Nations Conference on Environment & Development, Rio de Janeiro 1992 called upon governments to assess enacted laws and regulation with a view to make them more effective, establish judicial procedures, remedy actions affecting environment and development, establish legal reference, and support services and cooperative network for sustainable development. The U.N. Conference recommended that countries establish institutional capacity and mechanisms for
collecting information, detecting violations, establishing enforcement priorities, undertaking effective enforcement, and periodically evaluating the effectiveness of compliance and enforcement programs.1 To meet the U.N. Conference goals of sustainable development, national environmental governance must be built on the foundation of rule of law and effective compliance and enforcement of environmental requirements and implementing programs.2 India is a signatory to many Multilateral Environmental Agreements (MEAs)3 and is committed to sustainable development. India employs methods of green planning and social mobilization to meet its sustainable development goals. However, India faces challenges in balancing its economic development and meeting its environmental obligations. Patterns of resource use and management pose an increasing risk to Indias rich biodiversity.4 With 2.4 percent of worlds land area, India supports 18 percent of the world population. Indias bio-capacity potential represents its greatest asset and sustainable agriculture is a key concern for India.5 At the same time Indias water footprint depicts moderate to severe stress on blue water resources6 and water is not only critical for agricultural development but a large amount of fresh water withdrawals results from industrial processes, and coal and nuclear based power generation processes.7 India is currently on track to meet its poverty alleviation targets under the Millennium Development Goals by 2015, yet a large gap will continue.8 Traditionally an agrarian economy, India faces tough challenges in reducing health risks and increasing water, food and energy security. Rapid industrialization and urbanization mark Indias economic growth; industrial and infrastructure development have created tremendous pressure on mineral and resource use. Despite Indias size, its overall per capita consumption is low, though urbanization and increasing incomes exhibit increasing consumerist patterns, with emphasis on improving material wellbeing. Yet, a large portion of the population remains exceedingly dependent on biodiversity for meeting their basic needs. New Delhi has consistently held its position as the most polluted city in India9, and Indias most urban centers are amongst the most polluted cities in the world10. Ambient air pollutants exceed the World Health Organization and Indian standards for particulate matter;11 there exists a high level of water contamination because of untreated sewage and non-industrial waste.12 While there is substantial pressure on municipal resources in urban centers to meet health, sanitation, and environmental standards, in rural areas, general neglect has degraded ecosystem services and compounded the problem of preservation and sustainability. Climate change will severely impact India. Though per capita emissions are comparatively low, India remains the fourth largest emitter of Greenhouse Gases in the world, contributing over 5 percent of global emissions. India seeks to reduce its energy intensity between 20-25 percent by 2020 and has an ambitious plan to increase energy efficiency. India also plans to mitigate by increasing the stakes
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of renewable sources in its energy mix and by integrating process and product technologies that generate low or no waste. India fully supports a move towards Green Economy13 and strengthening the institutional framework for Global Environmental Governance.14 2 INDIA: RULE OF LAW, GOOD COMPLIANCE AND E NFORCEMENT GOVERNANCE AND
Indias legal system embodies a hybrid construction that uses English common law structure, with civil law features of codification, while maintaining a precedential system. The constitution establishes a welfare state and provides for a governance model founded on the principal of rule of law and democratic decision-making. In the words of Chief Justice, Y.K. Sabarwal (Retd.), Democracy, liberty and the rule of law together represent the troika that is universally accepted now as the index of a civil society.15 Indian Judiciary has made significant contributions to good governance in relation to Environment. The Constitutional directive under Article 48A & Fundamental Duties under 51(A) (g) establishes normative prescriptions that the State shall endeavor to protect and improve the environment and to safeguard the forests and wild life of the country and every citizen shall be duty bound to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creature.16 To enforce this directive, the Indian Judiciary has played a proactive role in Environmental enforcement and compliance. The Supreme Court has used its extraordinary environmental power under Article 142 of the Constitution to fill the gap in the existing environmental laws and legislate, whenever necessary, in furtherance of the above directive. India has a large body of well-developed environmental legislations. Soon after the Stockholm Convention in June 1972, India passed The Wildlife Protection Act in September, 1972. This led to landmark legislations in the shape of Water (Prevention and Control of Pollution) Act of 1974, amended in 1988; Water (Prevention and Control of Pollution) Cess Act of 1977, amended in 1991; Air (Prevention and Control of Pollution) Act of 1981, amended in 1987; Environment (Protection) Act of 1986 (EPA); and Public Liability Insurance Act of 1991. Rio Summit pressed for incorporating the recommendations of Agenda 21 in national action plans. India acknowledged the need for policy reforms and responded through implementation of the National Policy on Pollution Abatement (1992). This policy encourages the use of economic instruments in addition to traditional Command and Control approaches for pollution abetment. The policy sought to enhance abetment by preventing pollution at point sources and recommends adoption of environmental technology. The National Policy on Pollution Abatement further commits to promoting polluter pays principle and increasing public participation in decision making to strengthen environmental governance.
In addition to National Policy on Pollution Abatement, the Ministry of Environment & Forests is responsible for National Conservation Strategy and Policy Statement on Environment and Development (1992) seeks to provide environmental management to balance economic development interests with sustainable resource practice. The lack of adequate capacity for carrying out effective inspections, efficient monitoring, and qualitative assessments created a weak enforcement system. A weak enforcement system yields low-level compliance with environmental law. Public Interest Litigation, a tool in the Indian Judicial System, allowed courts to exercise judicial activism to expand the scope of environmental jurisprudence.17 Public Interest Litigation can include citizens suits or simply a letter written to court that is treated as petition for proceeding with enforcement action. The court can assume jurisdiction over the subject matter and initiate trial proceedings. Subsequent legislations sought to establish a stronger framework for enforcement with the passage of National Environmental Tribunal Act (1995) and National Environmental Appellate Authority Act (1997). In 2000, the Supreme Court recommended the Law commission to consider constitution of specialized courts due to the inadequacy of enforcement mechanisms.18 The Court exercising its power under Article 142 of the Constitution created the Compensatory Afforestation Management and Planning Authority that forces developers who are converting forest area for non-forest use to be liable to deposit net present value of the benefits lost. India also enacted The Biological Diversity Act 2002 which is administered by a three tier structure encompassing the National Biodiversity Authority), State Biodiversity Boards and Biodiversity Management Committees In response to the Supreme Courts recommendation in 2003, the Law proposed the construction of specialized Environment Courts,19 recently implemented through The National Green Tribunal Act, 2010. This act replaced the National Environmental Tribunal Act of 1995 and National Environmental Appellate Authority Act of 1997. Keren Priyadarshini & Omprakash K. Gupta (2003) conducted a study that traced low levels of environmental regulatory compliance in developing countries and demonstrated the links in relation to Indian domestic compliance by firms and individuals.20 In the authors perspective, the effectiveness or compliance of environmental regulations is dependent on the cost of mitigation, the comprehensiveness of the law in relation to the level of development of the society, and the ability of the industry in question to bear the costs of mitigation, the punitive measures, and the probability of detection of violation. Despite a strong regulatory framework, sustainability management is thwarted by weak enforcement in mining practices, industrial chemical use, and waste management and transportation practices. India uses a traditional deterrence model to ensure environmental compliance. These measures were secured by token punitive measures or with extremely punitive closures. These measures draw attention to the role and limitations of Central Pollution Control Board and State Pollution Control Boards.
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The Central Pollution Control Board and State Pollution Control Boards mainly rely on inspections for violation detection and in the absence of appropriate training for inspectors and lab and testing facilities, the probability of detection and imposing sanctions remain low. Though the policies are ambitious, their inflexibility has weakened the compliance framework, which lacks effective punitive measures. The problem is compounded by poor monitoring and inspection of violations, which further weakens the enforcement of environmental norms. The study recognizes that Judiciarys efforts profoundly impacted compliance and enforcement with environmental laws. The court created Green Benches to facilitate judicial dockets by giving the courts the power to grant both injunctive and remedial relief. Inadequate resources serve as a fundamental constraint for effective enforcement21. The question of Indian compliance is largely a capacity22 issue, even though compliance and enforcement challenges are several and multifaceted. The current National Environment Policy (2006) provides that a judicious mix of civil and criminal processes and sanctions will be employed in the legal regime for enforcement, through a review of the existing legislation. Environment Impact Assessments (EIA), increasing environmental awareness and public participation are integral aspects of environmental management. In relation to Environmental Governance objective, the policy seeks to apply the principles of good governance (transparency, rationality, accountability, reduction in time and costs, participation, and regulatory independence) to the management and regulation of use of environmental resources. The policy seeks to advance capacity development by ensuring higher resource flows, finance, technology, management skills, traditional knowledge, and social capital, for environmental conservation through mutually beneficial multi-stakeholder partnerships between local communities, public agencies, the academic and research community, investors, and multilateral and bilateral development partners.23 Though environment clearances are issued under Environment Impact Assessments notification (2006)24 and Coastal Management Zone Notification (2008), pollution abetment norms are consistently revised based on developments in pollution control technology and their feasibility. The government closely monitors new environmental standards for auto fuel policy, ambient air quality and effluent and emission industrial regulation.25Indian Courts enacted several programs for sound environmental management and capacity development to protect biodiversity, and abet: air pollution, noise pollution, water pollution, wildlife, forests, regeneration, and promote eco-development, environmental research and education and awareness.26 3 INDIA: THE NATIONAL GREEN TRIBUNAL ACT OF 2010
The National Green Tribunal Act came into force on 18th October 2010. This Acts scope is large and encourages institutional development for domestic environmental governance. The National Green Tribunal Act is considered a critical step in capacity development because the Act strengthens the framework of Global Environmental
Governance. Courts are still overburdened with environmental litigation, including the Green Benches that were specifically created speedy disposal of environmental cases. India remains a small minority, following New Zealand and Australia, to adopt Green Court legislation. The National Green Tribunal Act was enacted to fill the gaps in existing adjudicatory framework. Green court legislation maximizes compliance through the optimal design of optimal enforcement strategies. Existing environmental civil and criminal procedural remedies are primarily injunctive. Criminal prosecution and constitutional remedies are inadequate to manage the complexities of environmental litigation. Challenges also exist because compliance models do not compel deterrence, nor do they impose heavy offense costs. Further, remedies fail to provide adequate relief or compensation for personal or property damages due to environmental violations. The Act outlines establishment of Tribunals in Chapter II. Sections 4(1) & (2) states that a Tribunal shall have a full time Chairman and a minimum of 10 and maximum of 40 for full time Judicial and Expert Members. The Chairman can invite any skilled person to assist in Tribunal proceedings. According to Section 4 (3) & (4), the Central Government will specify the seats and territorial jurisdiction through a circuit approach and determine the practice and procedure of the Tribunal. Complex temporal and spatial ecological dimensions arise in environmental dispute. These dimensions require expert and experienced handling in adjudication proceedings, so only a Supreme Court Judge is eligible for appointment to the Chairmans position. A High Court judge is also eligible for appointment to a position of the Judicial Member. To qualify as an expert Member requires: (a) Masters in Science (physical or life sciences) with a Doctorate degree, or a Masters in Engineering or Masters of Technology i) and possesses at least 15 years of experience in the relevant field, including 5 year practice experience in a forest or environmental field s in a reputed National level institution or (b) Fifteen years of administrative experience, including five years of environmental matters in the Central, State or national level. The Central government in consultation with the Chief Justice of India appoints the Chairman, while a selection committee appoints the expert members. Chapter III deals with jurisdiction, powers and proceedings of the National Green Tribunal. The National Green Tribunal Act has original jurisdiction over civil matters that: (a) Raise a substantial question relating to environment is involved, and (b) The question arising out of the implementation of enactments specified in Schedule I.27 The National Green Tribunal has the power to order, direct, and settle disputes, provide relief and compensation. The compensation includes restitution of damaged property and damage to the environment. The National Green Tribunal operates a very broad jurisdiction and is a beneficial piece of legislation because a liberal
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construction encompasses the entire range of environmental laws. The National Green Tribunal Act prescribes for a definitional limitation on a substantial question of law relating to the environment. The National Green Tribunal Act provides for remedy for direct violation of an environmental obligation at three levels i.e. for violations that affect the community at large, for an incidence of substantial property or environmental damage, or for public health damages. The National Green Tribunal Act also produces statutes for environmental consequences that relate to specific activity or a point source of pollution. The Tribunal exercises appellate jurisdiction on all Schedule I enactments and under order or decision of State governments, Central Pollution Control Boards, State Pollution Control Board, National Biodiversity Authority, State Biodiversity Boards. The National Green Tribunal also exercises its jurisdiction over industrial environmental clearances, forests and other infrastructural, developmental projects. In terms of The National Green Tribunal Act, an application for relief and compensation has to be made within five years from the initial cause of action and compensation is payable under those persons specified in Schedule II.28 The National Green Tribunal is free to devise its own procedures since environmental issues and violations involve complex bio-chemical and ecological processes and the rigidity of Civil Procedure Code and the Indian Evidence Act for collection and recording of evidence may not be suitable for making a just and fair assessment of loss to the environment in such complex proceedings. The National Green Tribunal has the power of a Civil Court in respect of summoning, enforcing attendance, receiving evidence on affidavits, examining on oath, and granting ex parte and interim orders and injunctions. The National Green Tribunal Act integrated strict liability, precautionary and polluter pay as part of Sustainable Development management through stare decisis. Civil courts honor The National Green Tribunal orders and award the costs the National Green Tribunal declares appropriate. Chapter IV addresses penalties that arise from non-compliance with The National Green Tribunal orders. Chapter IV states that delinquency is punishable with a maximum of three years imprisonment or with fine not exceeding Rs. 10 crore ($2.24 Million approx.) and additional fine of Rs. 25,000 ($560 Approx) for every days delay. In case of a company, fine may extend upto Rs. 25 crore ($5.6 Million approx.) and Rs.1 lakh ($2243 approx.) per day for continuing offence. The Act also establishes that at the time of commission of offence, the company personnel directly responsible shall be deemed to be guilty. This serves a strong industrial deterrent for environmental noncompliance. Chapter V bars the civil courts jurisdiction over matters that are unique to the tribunal. In these matters, the civil court does not have the authority to grant relief. Civil courts are barred from hearing appeals that are directed to The National Green Tribunal. Business and industry can approach the court about Environmental Impact Assessments that lack clearance. This novel approach seeks to expand the needed science in environmental adjudication.
4 CONCLUSION Proper institutional development of National Green Tribunal will significantly affect compliance. However, the probability of detection will remain considerably low in the absence of capacity development. The Judiciary has been the backbone for developing a large body of environmental jurisprudence, even though policy enforcement has been weak. It is hard to asses this novel legislation due to lack of precedent and application. However, evidence shows that the National Green Tribunal will play a leading role in environmental enforcement and compliance and will become a role model for enactment of similar Tribunals in developing countries. 5 REFERENCES Chapter 8 of Agenda 21 Zaelke, D., Kaniaru, D. and Kruzikova, E. (eds), 2005. Making Law Work Environmental Compliance and Sustainable Development. Cameron May Ltd., International Law Publishers. 3 i.e., Ramsar Convention on Wetlands, 1971; Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), 1973; the Montreal Protocol on Substances That Deplete the Ozone Layer, 1987; the Basel Convention, 1989;the Convention on Biological Diversity, 1992, and its Cartagena Protocol on Biosafety, 1992; the UNFCCC and its Kyoto Protocol; the Rotterdam Convention On the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, 1998; and the Stockholm Convention on Persistent Organic Pollutants, 2001, etc.[See, Amar NathGiri (2011).Citing Internet Sources. Article with no version number.Environmental Laws, Compliance, Enforcement & Regulation in India]. 4 See, GFN, 2008. Indias Ecological Footprint a Business Perspective. Global Footprint Network and Confederation of Indian Industry, Hyderabad, India. 5 Thorat Y.S.P., Ex. Chairman NABARD. Indian Agriculture 2017, Pg. 68-71. 6 WWF, Living Planet Report 2010: Biodiversity, bio-capacity and development. 2010. 7 Food Security, Water and Energy Nexus in India. Citing Internet Sources. Article with name of the Author and serial number, Pg. 1-32. 8 The World Bank(2010).Global Monitoring Report 2010: The MDGs after the Crisis. Washington, DC: The World Bank. 9 http://www.dnaindia.com/india/report_delhi-regains-most-polluted-city-crown_ 1529136. Accessed: 7 April 2011. 10 OECD (2006), Environmental Compliance and Enforcement in India: Rapid Assessment. Pg. 1-31. 11 Of the total air pollution load nationwide, vehicular sources contribute 64 percent, thermal power plants 16 percent, industries 13 percent, and the domestic sector 7 percent. Environmental effects from growing fossil fuel use can only worsen as India seeks to meet the energy needs of its growing economy. It is estimated that over 96 percent of Indias total demand for commercial energy is met by fossil fuel with coal contributing 60 percent and petroleum products providing the remaining
1 2
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36 percent. [Quoted from Para 2.1. OECD (2006), Environmental Compliance and Enforcement in India: Rapid Assessment. Pg. 1-31). 12 It is estimated that 75 percent of the wastewater generated is from municipal sources, industrial waste from large and medium-sized plants contributes to over 50 percent of the total pollution loads. In major cities, less than five percent of the total waste is collected and less than 25 percent of this treated. [Quoted from Para 2.1. OECD (2006), Environmental Compliance and Enforcement in India: Rapid Assessment. Pg. 1-31]. 13 UNEP, Green Economy Report: A Preview. Citing Internet Source, viewed 15th November 2010. 14 See Generally, U.N. General Assembly. Preparatory Committee for the United Nations Conference on Sustainable development, second session. Objectives and Themes of the united Nations Conference on Sustainable Development. Report of the Secretary-General, A/CONF.216/7. 20 December 2010 15 Chief Justice of India, Sabarwal, Y.K. (2006).Citing Internet Sources.Speech with no date.Role of judiciary in Good Governance. 16 Article 51 (A) (g). 17 See Generally, AIR 1987 SC 1086; 1986 (2) SCC 176; 1996 (3) SCC 212 (252); 1999 (2) SCC 718, etc. 18 See Generally,(1986) 2 SCC 176, 201; (1996) 3 SCC 212; (1999) 2 SCC 718; (2001) 2 SCC 62, 84-85, etc. 19 Law Commission of India, 186th Report on Proposal to Constitute Environment Courts, September 2003. 20 Priyadarshini, K. and Gupta, O. K. (2003) Compliance to Environmental Regulations: The Indian Context, International Journal of Business and Economics 2 (1): 9-26. 21 Ibid. 22 A critical link is capacity development. Specifically, capacity building encompasses the countrys human, scientific, technological, organizational, institutional and resource capabilities. A fundamental goal of capacity building is to enhance the ability to evaluate and address the crucial questions related to policy choices and modes of implementation among development options, based on an understanding of environment potentials and limits and of needs perceived by the people of the country concerned. In specific reference to compliance and enforcement perspective, capacity development implies strengthening institutional development. This requires capacity development in the residuary regulatory framework by imparting training to Inspectors, developing their science base by use of latest techniques of detection, control and monitoring, availing adequate laboratory and testing facilities, expanding the scope of residuary exercise of powers by Central Pollution Control Board, State Pollution Control Board, National Biodiversity Authority, State Biodiversity Boards, etc., develop research and environmental indicators on environmental compliance, improve the role of civil society and stakeholder participation in promoting legal compliance, increase support staff (shortage of inspectors), improve environmental management strategies and legal enforcement, develop private-private partnerships for facilitating legal and regulatory compliance, etc. [See Generally, UNEP, Governing Council, twentythird session. Global Ministerial Environment Forum. International environmental
governance: Bali Strategic Plan for Technology Support and Capacity-building, Note by the Executive Director, UNEP/GC.23/6/Add.1. 23 December 2004; Bellamy, Jean-Joseph and Kevin Hill (2010), National Capacity Self-Assessments: Results and Lessons Learned for Global Environmental Sustainability, Global Support Program, Bureau for Development Policy, United Nations Development Program, New York, USA]. 23 Ministry of Environment and Forests. National Environment Policy, 2006. 24 Mining of minerals; offshore and onshore oil and gas exploration, development and production;oil and gas transportation pipelines; thermal power plants;nuclear power projects and processing of nuclear fuel; coal washeries; mineral beneficiation;metallurgical industries (ferrous and non-ferrous);cement plants;petroleum-refining industry; coke oven plants;asbestos milling and asbestosbased products; chloral-alkali industry; soda ash industry; leather, skin and hide processing industry; chemical fertilizers; pesticides industry; petrochemical complexes; man-made fibers manufacturing; synthetic organic chemicals industry; distilleries; integrated paint industry; pulp and paper industry;sugar industry;isolated storage and handling of hazardous chemicals;ship-breaking yards; industrial estates and parks;building and construction projects; townships and area development projects, etc. (Refer to EIA Notification 2006). 25 The central government has identified and targeted 17 highly polluting industries and 24 environmental problem areas. Industrial segregation is based on large resource-intensive industries with high initial investments face negative externalities with increasing costs of compliance, whereas small scale industries face no diseconomies due to weak enforcement and very low level of compliance. 26 Ministry of Environment and Forests. Annual Report 2009-2010, Pg. 1-362. 27 i.e., The Water (Prevention and Control of Pollution) Act, 1974; The Water (Prevention and Control of Pollution) Cess Act, 1977; The Forest (Conservation) Act, 1980; The Air (Prevention and Control of Pollution) Act, 1981; The Environment (Protection) Act, 1986; The Public Liability Insurance Act, 1991; The Biological Diversity Act, 2002. 28 i.e. Death; Permanent, temporary, total or partial disability or other injury or sickness; Loss of wages due to total or partial disability or permanent or temporary disability; Medical expenses incurred for treatment of injuries or sickness; Damages to private property; Expenses incurred by the Government or any local authority in providing relief, aid and rehabilitation to the affected persons; Expenses incurred by the Government for any administrative or legal action or to cope with any harm or damage, including compensation for environmental degradation and restoration of the quality of environment; Loss to the Government or local authority arising out of, or connected with, the activity causing any damage; Claims on account of any harm, damage or destruction to the fauna including milch and draught animals and aquatic fauna; Claims on account of any harm, damage or destruction to flora including aquatic flora, crops, vegetables, trees and orchards; Claims including cost of restoration on account of any harm or damage to environment including pollution of soil, air, water, land and eco-systems; Loss and destruction of any property other than private property; Loss of business or employment or both; Any other claim arising out of, or connected with, any activity of handling of hazardous substance.
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6 BIBLIOGRAPHY 6.1 Articles Becker, Gary. S, Crime and Punishment: An Economic Approach, 76(2) The Journal of Political Economy 169 (1968). Birdsong ,Bret C., Adjudicating Sustainability: New Zealands Environment Court, 29 Ecology Law Quarterly 1 (2000). Food Security, Water and Energy Nexus in India. Citing Internet Sources. Article with name of the Author and serial number, Pg. 1-32. Giri Amar Nath (2011).Citing Internet Sources. Article with no version number. Environmental Laws, Compliance, Enforcement & Regulation in India. Malloy Timothy F., Regulation, Compliance and the Firm,76 Temple Law Review 451 (2003). Najam Adil, Papa Milaela, Taiyab Nadaa, Global Environmental Governance: A Reform Agenda, 2006. Priyadarshini, K. and Gupta, O. K. (2003) Compliance to Environmental Regulations: The Indian Context, International Journal of Business and Economics 2 (1): 9-26. Raustiala, Kal, Complaince & Effectiveness in International Regulatory Cooperation, 32 Case Western Reserve, Journal of International Law 387 (2000). Vandenbergh Michael P., Beyond Elegance: A Testable Typology of Social norms in Corporate Environmental Compliance, 22 Standford Environmental Law Journal 55 (2003). Zaelke, D., Kaniaru, D. and Kruzikova, E. (eds), 2005. Making Law Work Environmental Compliance and Sustainable Development. Cameron May Ltd., International Law Publisher. 6.2 UN Documents
Stockholm Declaration of the United Nations Conference on the Human Environment 1972. United Nations Conference on the Human Environment. Action Plan for the Human Development 1972. UNCED. Agenda 21. United Nations Conference on Environment and Development (UNCED), United Nations General Assembly, New York. 1992.
United Nations Environment Programme (UNEP), 2004. UNEP/GC.23/6: International Environmental Governance: Report of the Executive Director and Bali Strategic Plan for Technology Support and Capacity-Building: Report of the Executive Director(UNEP/IEG/IGSP/3/1). UNEP/GCSS.XI/4. Eleventh special session of the Governing Council/ Global Ministerial Environment Forum Bali, Indonesia, 2426 February 2010. U.N. General Assembly, 19th plenary meeting. Report of the United Nations Conference on Environment and Development. A/Conf.151/26(Vol. I). Official Record. New York. 1992. U.N. General Assembly. Preparatory Committee for the United Nations Conference on Sustainable Development, first session. Progress to date and remaining gaps in the implementation of the outcomes of the major summits in the area of sustainable development, as well as an analysis of the themes of the Conference. Report of the Secretary-General, A/CONF.216/PC/2. 1 April 2010. U.N. General Assembly. Preparatory Committee for the United Nations Conference on Sustainable development, second session. Objectives and Themes of the united Nations Conference on Sustainable Development. Report of the Secretry-General, A/CONF.216/7. 20 December 2010. 6.3 Reports
Bellamy, Jean-Joseph and Hill, Kevin (2010), National Capacity Self-Assessments: Results and Lessons Learned for Global Environmental Sustainability, Global Support Program, Bureau for Development Policy, United Nations Development Program, New York, USA. GFN, 2008. Indias Ecological Footprint a Business Perspective. Global Footprint Network and Confederation of Indian Industry, Hyderabad, India. Law Commission of India, 186th Report on Proposal to Constitute Environment Courts, September 2003.Ministry of Environment and Forests. Annual Report 2009-2010, Pg. 1-362. OECD (2006), Environmental Compliance and Enforcement in India: Rapid Assessment. Pg. 1-31 Thorat Y.S.P., Ex. Chairman NABARD. Indian Agriculture 2017, Pg. 68-71. The World Bank (2010).Global Monitoring Report 2010: The MDGs after the Crisis. Washington, DC: The World Bank. UNEP, Green Economy Report: A Preview. Citing Internet Source, viewed 15th November 2010.
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UNDP (2010), Capacity is Development Global Event: Final Report. WWF, Living Planet Report 2010: Biodiversity, bio-capacity and development, 2010. 6.4 Policy and Statutes
National Action Biodiversity Plan. National Environment Policy 2006. National Impact Assessment Notification 2006. The Air (Prevention and Control of Pollution) Act, 1981. The Biological Diversity Act, 2002. The Environment (Protection) Act, 1986. The Forest (Conservation) Act, 1980. The Indian Constitution. The National Green Tribunal Act, 2010. The Public Liability Insurance Act, 1991. The Water (Prevention and Control of Pollution) Act, 1974. The Water (Prevention and Control of Pollution) Cess Act, 1977. 6.5 Case law
Indian Council for Enviro Legal Action v Union of India, Supreme Court of India, Judgment of 18 April 1996, (1996) 5 SCC 281. Karnataka Industrial Areas Development Board v Sri. C.Kenchappa & Ors., Supreme Court of India, Judgment of 12 May 2006, (2006) 6 SCC 371. Virender Gaur & Ors. v State of Haryana & Ors., Supreme Court of India, Judgment of 24 November 1994, (1995) 2 SCC 577. M.C. Mehta v Union of India, Supreme Court of India, Judgment of 15 May 1992,(1992) 3 SCC 256, 257. M.C. Mehta v Union of India, Supreme Court of India, Judgment of 12 May 1998, (1998) 6 SCC 60. M.C.Mehta v Union of India, Supreme Court of India, Judgment of 16 April 1999, (1999) 6 SCC 9. Murli S. Deora v Union of India, Supreme Court of India, Judgment of 2 November 2001, (2001) 8 SCC 765 16. Mrs. Susetha v State of T.N. & Ors., Supreme Court of India, Judgment of 8 August 2006, (2006) 6 SCC 543. Narmada Bachao Andolan v Union of India, Supreme Court of India, Judgment of 18 October 2000, (2000)10 SCC 664.
N.D. Jayal v Union of India, Supreme Court of India, Judgment of 1 September 2003, (2004) 9 SCC 362. Subhash Kumar v State of Bihar, Supreme Court of India, Judgment of 9 January 1991, (1991) 1 SCC 598, 604. Tarun Bharat Sangh, Alwar v Union of India, Supreme Court of India, Judgment of 11 October 1991, 1992 Supp (2) SCC 448. T.N. Godavarman Thirumulpad v Union of India & Ors, Supreme Court of India, Judgment of 12 December 1996, (1997) 2 SCC 267. NOTE: (SCC) stands for Supreme Court Cases. It reports the judgments of the Supreme Court of India. 6.6 News Reports and Speeches
Chief Justice of India, Sabarwal, Y.K. (2006).Citing Internet Sources. Speech with no date.Role of judiciary in Good Governance. http://www.dnaindia.com/india/report_delhi-regains-most-polluted-citycrown_1529136. Accessed: 7 April 2011.
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USING STRATEGIC LITIGATION TO IMPLEMENT ENVIRONMENTAL LEGISLATION: THE SALAS CASE FOR NATIVE FORESTS IN ARGENTINA DI PAOLA, M.E.1, VINOCUR, G.2 , NEEDLE, C.3 Executive Director, Fundacin Ambiente y Recursos Naturales (FARN), Tucumn 255, 6A, (1049) Buenos Aires, Argentina, medipaola@farn.org.ar
1
Associated Professor, Environmental Law Clinic, FARN- University of Buenos Aires School of Law, gvinocur@farn.org.ar
2 3
FARN Volunteer, Harvard Law School
We thank Diane Eikenberry, FARN Volunteer, The George Washington University School of Law; Roberto Coutenceau, FARN Volunteer, University of San Andres, School of Law; and Leslie MacColman, former Director of the Institutional Development Department of FARN for their collaboration with this paper. SUMMARY In 2007, acknowledging the crisis facing Argentinas native forests, the federal legislature enacted a law mandating their protection: Minimum Standards for the Environmental Protection of Native Forests (Ley de Bosques). However, in the years following the laws enactment the federal government has failed to fully enforce the law, while various provincial governments have failed to fully comply with it. The threat to native forests has remained particularly high in the Province of Salta, located in the far northwest of Argentina. This threat has lead a coalition of indigenous communities and non-governmental organizations (NGOs) to file for injunctive action in Argentinas highest court, the Supreme Court of Justice. This case, Salas, Dino, and others vs. Salta Province RE Amparo, demonstrates the key role that strategic litigation by non-state actors can play in improving the implementation of environmental legislation. In the Salas case, the highest court ruled in favor of the petitioners and mandated the implementation of key conservation tools in Salta, including halting deforestation activities pending the completion of a cumulative environmental impact study. The decision not only forced Salta to comply with the deforestation moratorium imposed by the Ley de Bosques, but also successfully pressured the province to comply with the other key provision of the law by completing an environmental land use plan. Moreover, Salas drew widespread attention to the state of the laws implementation, placing pressure on state actors at the national and provincial levels to improve their performance.
1 INTRODUCTION 1.1 Problem of Deforestation in Argentina
According to United Nations Environment Programme (UNEP) Global Environmental Outlook (GEO) Report 2004, Argentina faces a genuine forest emergency.1 The deforestation rate is six times the world average. Over the last several years 2.5 million hectares of forest surface area have been replaced by soy plantations. Between 2002 and 2006, the deforestation rate was 42% higher than in the period between 1998 and 2002. 2 In the Province of Salta, the absolute loss of forest surface area (414.934 hectares) was 113.5 percent more than between 1998 and 2002.3 1.2 Legislative Solution to Deforestation: the Ley de Bosques
At the end of December 2007, following continued pressure from civil society organizations and the public, Law 26.331, Minimum Standards for the Environmental Protection of Native Forests (Ley de Bosques) was formally approved by Congress. The law introduced the potential for momentous change in the management of national native forest resources. The law went into effect on January 4, 2008. The legislation also highlighted a key provision of the reformed 1994 Argentine Constitution to ensure a uniform floor of environmental protection. Article 41 of the Constitution delegates sole authority to the federal government in the creation of minimum environmental standards. Although these national standards may be complemented by provincial laws addressing individual needs or particularities, provincial add-ons may not lower the federal standards in any way. Following this constitutional hierarchy, the Ley de Bosques requires the provinces to conduct analyses and take any necessary legislative steps to ensure their compliance with the laws national minimum standards for native forests. 1.2.1 Key Provisions: Land Use Planning, Environmental Impact Assessment, Moratorium on Deforestation The Ley de Bosques contains two key measures, one a mandate for comprehensive land use planning in each province, including planning for native forests, and the other a moratorium on logging and deforestation authorizations pending the completion of land use planning. The objective of land use planning is to ensure the preservation and sustainable use of the forests, and also to account for the multiple environmental services that the forests provide the community. These are described by the law as the following: hydric regulation, conservation of biodiversity, conservation of the land and the quality of water, capture of greenhouse gases, contribute to the landscapes beauty and to the defense of the cultural identity of some native communities. Within the context of the law, these environmental services function as the evaluative basis for the distribution of funds used for forest conservation. The law requires environmental land use planning to be completed within one year of the laws enactment and in a way consistent with the full provisions of the law.
The law defines the provisions using ten criteria of environmental sustainability contained in the laws annex. The land use planning process also assigns affected areas one of three conservation categories, I (red), II (yellow), or III (green)4. The categories denote the environmental value of distinct units of native forest and the environmental services the forests provide. The categorization process assigns affected areas a conservation categories based on the application of detailed criteria related to environmental impact and environmental sustainability. This process is compelled and governed by the environmental land use planning law and incorporated forest use planning provisions. A critical accompanying measure of the law requires a preliminary Environmental Impact Assessment for each authorization of logging or deforestation activities (prohibited in areas designated category I or II) and each authorization of sustainable use. In the case of deforestation and logging permits with significant impact, a public hearing or public consultation must also be held. 1.3 Implementation in the Province of Salta The Province of Salta initiated a land use planning process in 2008. Various stakeholders participated, including NGOs, academics, private sector leaders, and indigenous communities. Despite this wide-ranging participant base, the process did not proceed smoothly, and private sector participants representing large agricultural interests nearly derailed it. Under Article 8 of the Ley de Bosques, provinces are prohibited from issuing deforestation permits before the completion of the land use planning process. The provincial government of Salta did not halt the distribution of deforestation licenses in Salta, which were issued without consideration of their cumulative impact, before the law was passed by the National Congress. Although the Ley de Bosques was passed after the Provincial authorities issued massive deforestation permits, the Provincial authorities violated the General Environmental Law and its principles: precaution, prevention and sustainability, and the Biodiversity Convention, which has supra legal preemption in the Argentine system. Threatened by the provincial governments ongoing and illegal authorization of deforestation activities, the disintegration of the land use planning process and the failure of the national government to enforce the Ley de Bosques in Salta, local indigenous communities formed a coalition of non-state actors and filed an injunctive action in Argentinas highest court, the Supreme Court of Justice. 2 ENFORCING THE LEY DE BOSQUES THROUGH STRATEGIC LITIGATION
For the indigenous communities and the NGOs that supported them, filing an action in the Supreme Court of Justice had the dual effect of drawing national attention to the
predicament of native forests in Salta while also bringing the general implementation of the Ley de Bosques to center stage in the public conversation. The Ley de Bosques has particular importance for indigenous communities in Argentina because it explicitly recognizes their profound connection to native forests, which provide their livelihood and sustain their culture. The law seeks to protect that connection by mandating consideration of their connection to areas of native forests in land use planning processes. In the case of Salas, Dino, and others vs. Salta Province RE Amparo, these communities were assisted, through an amicus curiae brief, by three of Argentinas most important environmental NGOs, Fundacin Ambiente y Recursos Naturales (FARN), Fundacin Vida Silvestre Argentina, and Greenpeace Argentina. All three of which had also worked hard to get the Ley de Bosques enacted. 2.1 The Salas Case 2.1.1 Petitioners Brief: Rights under the Ley de Bosques Supported by Rights under the Constitution and International Law
In Salas, Dino, and others vs. Salta Province RE Amparo, a group of persons, indigenous communities, and native associations initiated an injunctive action in the Supreme Court of Justice, called an accin de amparo, to address the infringement of their fundamental rights and freedoms, under the terms of Article 43 of the National Constitution, against the Province of Salta and the national government, seeking: 1) the immediate and definitive cessation of the deforestation occurring in the native forests of San Martn, Orn, Rivadavia and Santa Victoria; 2) a declaration finding the authorization of deforestation and logging permits by the relevant authorities in the affected areas unconstitutional and prohibiting future authorization of deforestation and logging permits; 3) the return of the environment to its state prior to the degradation or monetary compensation if such a return was not technically feasible; and 4) that precautionary measures be granted during legal proceedings mandating the provisional cessation of authorization of deforestation permits in the relevant areas. Petitioners asserted that the province of Salta failed to meet its legal obligations by illegally providing affirmative authorization of deforestation through permits and by tolerating clandestine environmental degradation in the area. Such acts, according to the petitioners, threatened, restricted, and violated their rights under the Constitution, under the Ley de Bosques (Law 26.331) and the General Environmental Law 25.675, and under international agreements. Petitioners also asserted that the national government was vicariously responsible for the wrongdoing in light of its failure to control the relevant state authorities and abide to its international responsibilities. Under Article 75, Section 22 of the 1994 constitutional reforms, international obligations carry particular weight in Argentine courts because of Argentinas constitutionally mandated hierarchy of laws, which gives signed global accords and treaties controlling legal authority in domestic courts. Treaties and agreements
with other countries and international organizations approved by the national Congress supersede domestic law. Certain human rights treatiessome addressing environmental issueslisted in Paragraph 2 of Section 22 are granted concurrent legal status with the Constitution. All other treaties or agreements not listed in Paragraph 2 rank right below constitutional law but above domestic law. In sum, international treaties that have been negotiated, approved and executed by the Argentine federal government enjoy a legal status above congressionally-created laws and, in some cases, equaling the Constitution itself. The petitioners used the primacy of international law in Argentina to make Saltas failure to comply with and the national governments failure to enforce the Ley de Bosques not only a violation of domestic law but a violation of international obligations. In their brief, alongside domestic and constitutional legal arguments, lawyers for the villagers and indigenous communities presented arguments based on several international sources of law, including treaties such as: International Labour Organization (ILO) Convention No. 169 on Indigenous Peoples and Tribes, the Universal Declaration of Human Rights, the American Declaration of the Rights and Duties of Man, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the International Convention on the Elimination of All Forms of Discrimination Against Women, and the Convention on the Rights of the Child. The petitioners argued that the national government violated Article 28 of the American Convention of Human rights by tolerating native deforestation. The provisions of Article 28 require a national government to take affirmative steps to guarantee that provincial authorities can comply with their obligations under the Convention. According to the article 28, human rights of native communities should be guaranteed by provincial and national authorities. The petitioners also invoked the Lhaka Honhat case, filed in the Inter-American Commission of Human Rights by the Association of Indigenous Communities against Argentina. In Lhaka Honhat, which involved allocation of land to an indigenous community in Salta, the parties committed to cease deforestation in the affected area. Given the critical relationship of indigenous communities to the forest, which shapes their worldview and culture and is critical to their economic survival, the right to a healthy environment was a key issue in the case. Additionally in their brief, the petitioners invoked key domestic legislation, the Regimen of Free Access to Public Information on the Environment (Law 25.831), which gives the public the right of access to information about or affecting the environment from any level of government or any business or entity providing public services. A similar law exists at the provincial level in Salta (Law No. 7070, Title I, Chapter 6). Based on the rights created by these laws, the petitioners requested that the provincial government be compelled to create a preliminary diligence report providing information about those whom had requested and received deforestation authorizations.
In relation to the case, FARN, Fundacin Vida Silvestre, and Greenpeace Argentina presented an amicus curiae to the Supreme Court that advocated for a coherent, comprehensive, and humane approach to the conservation and sustainable use of native forests in Argentina, invoking domestic law, international agreements, environmental legal principles, academic research, and environmental governance tools. Their brief invoked many of the same international legal instruments as the petitioners brief, but used them to emphasize the importance of coherent interpretation of international treaties in conjunction with the Constitution and domestic legislation, for the purpose of protecting the environment as well as original native communities. The Convention on Biological Diversity (Biodiversity Convention) and ILO Convention No. 169 on Indigenous Peoples and Tribes provide two critical examples of the importance of coherent interpretation between domestic and international law. The Ley de Bosques based its ten sustainability criteria on the Biodiversity Convention, a treaty ratified by Argentina (Law 24.375). Drawn from the Biodiversity Convention, Criterion Ten is the value assigned to native forest areas by indigenous and local communities. Criterion Ten also explicitly recognizes Argentinas duty under ILO Convention No. 169 to respect the right of indigenous people to a social and cultural identity. Although Argentina originally ratified Convention No. 169 through Law 24.0715, subsequent widespread recognition of the governments failure to comply with its provisions led to the passage of Law 26.1606; which announced a state of emergency in the possession and ownership of lands traditionally occupied by native communities. The Ley de Bosques explicitly recognizes this emergency and Argentinas consequent obligations to respect the rights of its indigenous communities to their traditional lands by also referencing Law 26.160 in Criterion Ten. To help realize this protection and preservation of the lands and livelihood of the indigenous communities, the NGOs proposed the use of two critical tools: the precautionary principle and cumulative environmental impact assessment. The precautionary principle, as stated in the General Environmental Law (Law 25.675, Article 4) and the Ley de Bosques (Law 26.331, Article 3), recognizes that delaying action until there is compelling evidence of harm will often mean that it is then too costly or impossible to avert the threat. 7 This principle is considered a basic tool for the interpretation of the law by judges, administrative authorities, and the community, and it is applied when there is a recognized threat of grave or irreversible damage to the environment. In their treatment of the precautionary principle, the NGOs referred to the International Union for the Conservation of Natures (IUCN) Guidelines for Applying the Precautionary Principle to Biodiversity Conservation and Natural Resource Management, approved by the IUCN Council in 2007. In the Salas case, the lack of the use of the second tool, cumulative environmental impact assessment, helped make the case for the use of the precautionary principle.
2.1.2 Amicus Curiae Brief: NGOs Make the Case for the Ley de Bosques as a Tool for Long-Term Conservation
By introducing and explaining the concept of cumulative environmental impacts and showing that the provincial government of Salta had made no assessment of the accumulated impact that its authorizations of deforestation would have on its native forests, the NGOs demonstrated a credible threat of grave or irreversible damage to the provinces native forests. To further support the existence of a credible threat, the amicus brief cited key technical information from public and academic sources that asserted the state of emergency of the environment in Salta.8 In addition, the brief emphasized the need for effective implementation of the environmental policy tools enshrined in the Ley de Bosques including environmental impact assessments and environmental land use planning as well as others such as strategic environmental evaluation. The NGOs further asserted that effective implementation must include wide-ranging public participation. 2.1.3 Supreme Court of Justice Activates the Ley de Bosques in Salta The Supreme Court responded to the petition for injunctive action and supporting amicus curiae brief by granting the requested precautionary measures, ordering the provisional suspension of logging and deforestation permits granted by Salta during the final quarter of 2007 in the native forests of the four departments of the Province of Salta: San Martn, Orn, Rivadavia and Santa Victoria. The Court based its decision on the precautionary principle, referring to the possibility of irreversible harm to the environment. In its initial ruling on December 29, 2008, the Court also recognized the petitioners legal right to public environmental information by granting the solicited preliminary diligence, which required the provincial government of Salta to provide information on those whom had requested and received deforestation authorizations. Finally, the Court ordered that a public hearing involving all of the relevant parties take place, to be held on February 18, 2009, in which both sides would present their information and arguments. At the public hearing, the petitioners declared that the provincial government had not finished its provincial environmental land use plan, which was required by the Ley de Bosques to have been completed by the end of 2008. Furthermore, the group asserted that Salta had made no prediction of the cumulative impact that its authorizations of deforestation permits could have and that independent predictions showed that the cumulative impact would be irreversible. Following the hearing, Saltas provincial government requested that the Supreme Court remove the precautionary measures that suspended the logging and deforestation permits granted by the province in late 20079. On March 26, 2009, the Court responded by maintaining the measures and also by extending the suspension to include all authorizations of deforestation and logging in the previously mentioned departments. The order mandated that the suspension remain in effect until the province completed a cumulative environmental impact study adhering to the guidelines laid out in the opinion; the order granted the provincial government a period of 90 days to complete the study. Based on the
presentation of the petitioners at the public hearing, the Court found a threat of irreversible harm, with the potential to severely affect the climate of the region and trigger consequences for current and future generations. The Supreme Court based its decision to extend the suspension of deforestation activities and to require a cumulative impact study on the precautionary principle and on the discretion given to judges by the General Environmental Law (Law 25.675, Article 32), which extends their decisions to questions not expressly raised by the parties when the purpose is the protection of the general interest. The Court used its authority to mandate such precautionary measures because the provincial government had failed to genuinely consider the potential environmental impact that could result from the cumulative effects of its deforestation authorizations. The provincial government also demonstrated its failure to consider the environmental effects by not completing the environmental land use planning, mandated by the Ley de Bosques. The decision reflected a clear recognition by the Supreme Court of a real danger of irreversible or serious harm to the region of Saltas climate. The Court mandated that the cumulative environmental impact study be performed by the provincial government of Salta in conjunction with the National Secretary of Environment and Sustainable Development, while also granting communities inhabiting the affected zone a robust opportunity for participation. The decision required the study to a) provide detailed analysis on the cumulative environmental impact of the logging and deforestation activities on the climate, landscape, environment generally, and living conditions of local inhabitants; b) propose a solution reconciling the twin aims of environmental resource protection and economic development, based on a thorough consideration of the involved costs and benefits; and c) provide probability estimates of any trends identified in an effort to fully evaluate the relative benefits for current and future generations. 3 EFFECT OF THE SALAS DECISION ON THE LEY DE BOSQUES
The decision of the Supreme Court in the Salas case had major measurable effects on the province of Saltas compliance with the Ley de Bosques. The first major effect was the Courts preliminary injunction in December 2008 on deforestation and logging authorizations made by Saltas provincial government in the last quarter of 2007, just before the Ley de Bosques went into effect. This injunction essentially reversed the efforts by the provincial government to avoid the moratorium on new deforestation authorizations required by the Ley de Bosques (Law 26.331, Article 8) once it went into effect by halting the implementation of the just-approved licenses. The second major effect of the Supreme Courts decision was to pressure Saltas provincial government into completing the environmental land use planning process and producing a land use plan as required by the Ley de Bosques. When the Salas case was filed in late 2008, the land use planning process had nearly fallen apart. When the parties met for the public hearing before the Supreme Court in
February 2009, the provincial government still had not resurrected the process, even though the Ley de Bosques required land use plans to be in place in all the provinces by the end of 2008. The petitioners asserted this failure as part of their case against the province in the hearing. Although the Court did not mandate that Salta complete the land use planning process in its March 2009 decision, it did order Salta to suspend all deforestation authorizations in the four departments until a cumulative environmental impact study was completed. This suspension was similar to the sanction that the Ley de Bosques imposed for the failure to complete a land use plan within the one-year time perioda moratorium on any use of native forest areas. Due to the Ley de Bosques sanction and the requirement of a cumulative impact study, and the high level of national attention from the public and from the federal government because of the cases high profile in the Supreme Court of Justice, the provincial government of Salta resurrected the land use planning process. Implementing the land use planning from the Ley de Bosques not only improved the defense on the case bear in mind that in the Salas case the Court only provided a favorable precautionary measure (an interlocutory decision), but it did not take a final decision on the case - but also regulated forest activities in the province. Pressure from the public, forest producers, academics and the judiciary resulted in an important public policy outcome in 2009. Salta completed an environmental land use plan and its corresponding map, categorizing and allocating the uses of the different areas of Salta. The Salas case also had an effect on the general implementation of the Ley de Bosques in Argentina. First, because of the local and national medias extensive coverage of the case, the public hearing, and the amicus curiae,10 the case has influenced the public opinion on the issue of the implementation of the law. By bringing a local issue affecting native forests to the national stage, Salas made the ground-level effects of failed implementation of environmental legislation nationally visible. Second, the case and its amicus curiae strengthened the awareness by civil society of the need to implement the National Fund for the Enrichment and Conservation of Native Forest (Fund) created by the Ley de Bosques to support the conservation of native forest areas and to be allocated by the national government. Third, the case highlights the strength of the precautionary principle and judicial discretion (used in the general interest of the environment) to promote the enforcement of the Ley de Bosques. Finally, the success of the local and indigenous communities and the NGOs in this case confirms the power that these groups can have in getting the Ley de Bosques implemented. The Salas decision also went beyond the scope of the Ley de Bosques by requiring the creation of a cumulative environmental impact study, recognizing the need to assess how multiple deforestation authorizations could affect the environment and whether together they could cause severe or irreversible damage. This is significant because the Ley de Bosques requires that environmental impact studies be done on an authorization-by-authorization basis. As the general implementation of the
Ley de Bosques continues to proceed slowly and inconsistently, the Salas decisions embrace of the importance of assessing cumulative impacts of deforestation activities may have future value. Nonetheless, despite its successes in improving the implementation of the Ley de Bosques, particularly in the Province of Salta, the Salas case also has its limitations. Different provinces having completed their land use plans, had run into some difficulties related to their implementation. These difficulties include a lack of sufficient public participation, native people involvement, sustainability criteria and illegal deforestation. Additionally, the Ley de Bosques Fund has not yet been funded at levels called for in the Ley de Bosques; these financial deficiencies harm the laws implementation from the federal government to the provinces. 4 CONCLUSION In sum, the Salas case is a limited success story of the use of strategic litigation to improve the implementation of environmental legislation. Environmental NGOs, together with local and indigenous communities in Salta, successfully argued the case for environmental legislation protecting native forests in the highest court in Argentina. This resulted in the implementation of this national native forests law in the Province of Salta, one of the Argentine provinces most affected by deforestation. The implementation in Salas has not necessarily translated into full implementation in other provinces. Also, the political awareness created by the judgment has not yet secured the full funding of the native forests conservation fund. Nonetheless, the Salas case produced important judicial recognition of the precautionary principle and the cumulative environmental impact assessment, as critical legal tools for nonstate actors in Argentina working to improve the implementation of environmental legislation. 5 REFERENCES GEO Argentina 2004: Environmental Perspectives of Argentina, National Secretariat of Environment and Sustainable Development and UNEP Regional Office for Latin America and the Caribbean, available at http://www.ambiente.gov.ar/archivos/ web/GEO/File/Geo_Argentina_2004.pdf. 2 Native Forest Monitoring: 1998-2002 and 2002-2006 (Preliminary Data), National Secretariat of Environment and Sustainable Development, Forest Evaluation System Management Unit, available at http://www.ambiente.gov.ar/archivos/web/UMSEF/ File/2006_monitoreo_bosque_nativo_preliminar.pdf. 3 See note 2. 4 Law 26.631, article 9: The meaning of the three designated colours of the conservation categories are as follows: Category I (red): red means that the area has a high value of conservation which must not be affected in any manner. These areas must remain as native forests perpetually, even if they may be the natural habitat of some aboriginal communities and object of scientific investigation. Category II (yellow): medium value of conservation areas. With the implementation of certain
1
restoration activities, these areas could have a high conservation value and may also be used with the following purposes: sustainable profit, tourism, scientific recollection and investigation. Category III (green): low value of conservation areas: these areas can be partially or totally affected, but within the limits set by the law. 5 Law 24.071 (B.O. 24.4.92) (Adla, LII-B, 1551). 6 Law 26.160 (B.O. 29.11.06) (Adla , LXVII-A,6). 7 See Guidelines for Applying the Precautionary Principle to Biodiversity Conservation and Natural Resource Management, approved at the 67th meeting of the International Union for Conservation of Nature (IUCN) Council, on 14-16 May 2007, available at http://cmsdata.iucn.org/downloads/ln250507_ppguidelines.pdf. 8 One important source was GEO Argentina 2004; see note 1. 9 The provincial state alleged that through the mentioned precautionary measure, the Court had changed the normal effects that administrative acts are supposed to have, which by nature have a presumption of legitimacy. 10 Nuevo Diario de Salta, first page, 31 July 2009; Nuevo Diario de Salta, 3 August 2009; Ambiente y Medio, television program, Canal Metro, 4 August 2009; Pgina 12 and BAE national newspaper, 9 August 2009; C5N, television program, 12 August 2009; El Tribuno, Salta newspaper, 24 October 2009; La Nacin, national newspaper. 6 BIBLIOGRAPHY Argentine Constitution, available at: http://www.argentina.gov.ar/argentina/portal/ documentos/constitucion_ingles.pdf. Ambiente y Medio, television program, Canal Metro, 4 August 2009; Pgina 12 and BAE, national newspapers, 9 August 2009, C5N, television program, 12 August 2009; El Tribuno, Salta newspaper, 24 October 2009; La Nacin, national newspaper. Brouver, M. and Manghi, E., Structural Changes in the Tucumano-Bolivian Jungle between 1975 and 2000 in the Tartagal Area, National Secretariat of Environment and Sustainable Development, Woods Management, available at http://www.ambiente. gov.ar/archivos/web/UMSEF/File/cambios_stb_1975-2000_tartagal_umsef.pdf (July 2006). Cabral, C. and Plaza, G., Analysis of the global situation of Tartagal, San Martn Department. Diagnosis and evaluation of the basin of the River Tartagal and its influence area, National University of Salta (2006). Clarn, A downpour left Tartagal under the water, 10 February 2009. Clarn, Clearing and woods cut down regulations, 14 February 2009. Decree 91/2009 (B.O. 16.2.2009). Di Paola, M.E. and Esain, J., La Corte suspende el ecocidio en el bosque salteo, Environmental Law Review FARN-La Ley, 20 May 2009, p. 4/10.
FSC Principles and Criteria, Forest Stewardship Council (FSC), available at http:// www.fsc.org/pc.html. Fundacin ASOCIANA, Tepeyac and FUNDAPAZ, Technical Report, Indigenous Territory and Native Forests in the Chaco Salteo: Delimitation of Indigenous Territories to be Considered in the Development of Saltas Land Use Plan, (September 2008), available at http://www.google.com/url?sa=t&sour ce=web&cd=1&ved=0CBQQFjAA&url=http%3A%2F%2Fwww.greenpeace. org.ar%2Fbosque%2Finforme_chaco.doc&rct=j&q=asociana%20tepeyac%20 territorio%20y%20bosques%20nativos%20chaco%20salteno&ei=TkufTZqvL6u0QGDq5iHBQ&usg=AFQjCNFJbOKIDShprDyPmTvYctL5Ak_ZHw&sig2=00Q_18 M4yPDwYBqcDkCi4g. Fundacin Vida Silvestre Argentina, et al, Gran Chaco Americano Ecoregional Assessment, Maps of Areas of Biodiversity Significance (2005), available at http://assets. wwfar.panda.org/downloads/dossier.pdf. GEO Argentina 2004: Environmental Perspectives of Argentina, National Secretariat of Environment and Sustainable Development and UNEP Regional Office for Latin America and the Caribbean, available at http://www.ambiente.gov.ar/archivos/ web/GEO/File/Geo_Argentina_2004.pdf. Guidelines for Applying the Precautionary Principle to Biodiversity Conservation and Natural Resource Management, approved at the 67th meeting of the International Union for Conservation of Nature (IUCN) Council, on 14-16 May 2007, available at http://cmsdata.iucn.org/downloads/ln250507_ppguidelines.pdf. Inter-American Court of Human Rights, The Lhaka Honhat Case: Public Lots 55 and 14 of the Department of Rivadavia, Province of Salta; see also Carrasco, M. and Zimmerman, S., Argentina: El Caso Lhaka Honhat, Report 1, IWGIA 2006, Grupo Internacional de Trabajo sobre Asuntos Indgenas (IWGIA) and Centro de Estudios Legales y Sociales (CELS), available at http://www.cels.org.ar/common/ documentos/informe_iwigia_argentina_caso_lhaka_honhat.pdf. Law 25675 (B.O. 26.11.2002). Law 26.160 (B.O. 29.11.06) (Adla , LXVII-A,6). Law 24.071 (B.O. 24.4.92) (Adla, LII-B, 1551). Law 26.331 (B.O.26.12.07) (Adla, LXVIII-A, 29). Law 7543 (16/12/08) (ADLA 2009-A, 869). Montenegro, C., Strada, M, Bono, J, Gasparri, I., Manghi, E., Parmuchi, G., and Brouver, M., An Estimation of the Loss in Area of Native Forests and the Rate of Deforestation in the North of Argentina, National Secretariat of Environment and Sustainable Development, Forest Evaluation System Management Unit, Technical Team, available at http://www.ambiente.gov.ar/archivos/web/UMSEF/File/umsef_ deforestacin_congresoafoa05.pdf.
Npoli, A. and Vezzulla, J.M., El amicus curiae en las causas ambientales, Fundacin Ambiente y Recursos Naturales (FARN), available at http://www.farn.org.ar/arch/ El%20Amicus%20Curiae%20en%20las%20Causas%20Ambientales%20final.pdf. Native Forest Monitoring: 1998-2002 and 2002-2006 (Preliminary Data), National Secretariat of Environment and Sustainable Development, Forest Evaluation System Management Unit, available at:http://www.ambiente.gov.ar/archivos/web/ UMSEF/File/2006_monitoreo_bosque_nativo_preliminar.pdf. National Native Issues Institute (INAI), Fundacin ASOCIANA, National University of Salta (UNSA), Los Pueblos Indgenas Cazadores-Recolectores del Chaco Salteo. Poblacin, Economa, y Tierras, 2008. National Ombudsman, Special Report, Deforestation in the Province of Salta: Biological and Social Consequences (2009), available at: http://www.google.com/url?sa=t&source=w eb&cd=1&ved=0CBcQFjAA&url=http%3A%2F%2Fedant.clarin.com%2Fdiario%2F2009% 2F02%2F21%2Fum%2Fdeforestacion.pdf&ei=yUyfTcWOC6aX0QHsg8WVBQ&usg=AFQj CNE-U2K3McvFoTpWvjSeDnnEWJcOog&sig2=c7ZPSNxAGuptEc9lBZ5Y5A. National Parks Administration, Regional Delegation NOA, Technical Report N 01/2007, Old Carob Situation (Santiago del Estero and Salta). National Secretariat of Environment and Sustainable Development, Forest Evaluation System Management Unit, Loss of Native Forests in the North of Argentina December 2007 October 2008 (November 2008), available at: http://www.ambiente.gov.ar/archivos/web/UMSEF/File/deforestacion07-08_ley26331.pdf. National Secretariat of Environment and Sustainable Development, First National Inventory of Native Forests (December 2005), available at: http://www.ambiente.gov. ar/archivos/web/UMSEF/File/PINBN/informe_nacional_pinbn.pdf. National Secretariat of Environment and Sustainable Development, National Management of Legal Regulations of Environmental and Biodiversity Conservation, The Farming Frontiers Advance and Its Consequences (March 2008). Nuevo Diario de Salta, first page, Greenpeace, FARN, y Vida Silvestre son parte en la causa por los desmontes, 31 July 2009, available at: http://www.nuevodiariodesalta. com.ar/diario/archivo/Index.asp?fecha=31-7-2009. Pgina 12, Un record en deforestacin, 4 August 2009, available at: http://www. pagina12.com.ar/diario/sociedad/subnotas/129359-41609-2009-08-04.html. Perfil, Investigation Supplement El Observador, Brutal Deforestation at Salta, Demolish land, 11 January 2009.
Proceedings of the Wich Congress, 8 November 2007, in Native Forests, Fundacin ASOCIANA newsletter, Fundacin ASOCIANA and Duarte, Dr. M., translation, Prez, E., photos, Fundacin ASOCIANA and Nanni, F. Quispe, C., Giardini, H., and Moreno, D., Native Forests Minimum Environmental Standards Law (Ley de Presupuestos Mnimos de Bosques Nativos), FARN Annual Environmental Report 2009, available at www.farn.org.ar/informe2009.pdf.
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ENVIRONMENTAL MONITORING AND ENFORCEMENT IN THE UNITED STATES: EMPIRICAL EVIDENCE FROM THE ECONOMICS LITERATURE GRAY, WAYNE B.1 and SHIMSHACK, JAY P.2 Professor, Department of Economics, Clark University, 950 Main Street, Worcester, MA 01610, USA, wgray@clarku.edu
1
Assistant Professor, Department of Economics, Tulane University, 206 Tilton Hall, 6823 St. Charles Avenue, New Orleans, LA 70118, USA, jshimsha@tulane.edu (Please direct any correspondence regarding this paper to Professor Shimshack.)
2
This paper is a summary of a significantly more comprehensive original paper: Gray, W. and Shimshack, J., The Effectiveness of Environmental Monitoring and Enforcement: A Review of the Empirical Evidence, Review of Environmental Economics and Policy, Oxford University Press, 2011, in press. SUMMARY This short paper summarizes a more comprehensive article in press (Gray and Shimshack 2011). We review the economic evidence on the impacts of environmental monitoring and enforcement on subsequent pollution discharges and compliance behavior. Key questions include: What do we currently know about environmental enforcement and compliance? Are proposed changes in environmental oversight regimes consistent with the state of knowledge? What dont we know about environmental enforcement and compliance? 1 AIMS AND SCOPE
Regulatory punishment for pollution violations is a mainstay of nearly every industrialized nations environmental policy, and developed nations devote substantial resources to promote environmental compliance. For example, the United States Environmental Protection Agency (EPA) spends over $600 million annually on the monitoring and enforcement of pollution control laws. Estimates suggest that state agencies spend a roughly similar amount on pollution oversight every year. Scholars and policy-makers generally believe that effective pollution regulations require recurrent inspections and sanctions. However, environmental compliance assurance is becoming increasingly controversial. Several indicators of environmental enforcement in the United States suggest declining oversight. For example, EPA budgets indicate that staffing levels at the Office of Enforcement and Compliance Assurance fell by approximately one fifth between 1995 and 2010. Government oversight agencies like the Office of Management and Budget increasingly call upon EPA to justify enforcement expenditures. A growing number of academics and policy-makers advocate for a movement away from traditional regulatory regimes
towards more voluntary, information, and cooperative compliance assurance programs. This contentious policy environment motivates natural questions. What do we currently know about environmental enforcement and compliance? Are proposed changes in environmental oversight regimes consistent with the state of knowledge? What dont we know about environmental enforcement and compliance? What research is necessary to fill critical knowledge gaps? This article addresses these questions by reviewing the existing empirical evidence on the impacts of environmental monitoring and enforcement on subsequent pollution discharges and compliance behavior. Before proceeding, it is useful to define this reviews scope. This paper focuses on recent empirical economic studies that are most relevant to todays policy environment. Since the empirical economics literature almost exclusively studies institutions from the United States, we focus on lessons on the effects of EPA and state-level interventions. 2 BACKGROUND AND CONTEXT
Environmental monitoring and enforcement in the United States occurs in a decentralized setting with federal oversight. The overall regulatory structure is provided by the Code of Federal Regulations and the Environmental Protection Agency (EPA). However, many permitting, inspection and sanction activities are conducted by state-level regulatory agencies to which such authority has been delegated. In some cases, EPA regional offices may directly oversee specific facilities, typically because states have declined regulatory responsibility. 2.1 Monitoring Activities and Strategies
Major facilities regulated under high-profile environmental United States statues such as the Clean Air Act, the Clean Water Act, and the Environmental Planning and Community Right-to-Know Act are required to file regular self-monitoring reports, which are the primary sources of information on compliance and emissions. Since self-reported violations tend to be treated with administrative penalties while deliberate falsification of reports can result in significant criminal prosecutions of both employees and managers, researchers generally consider facility self-reports to be truthful. On-site state or EPA inspections help to ensure the accuracy of selfreports and verify the maintenance and operation of abatement equipment. For smaller facilities and less prominent regulations, compliance and emissions data are observed only during regulatory inspections. Regulator monitoring activities consist of facility visits. Nearly all monitoring activities are media- or statute-specific, but more comprehensive multiple-media investigations are permissible under the law. Monitoring activities range from quick visual inspections lasting a few hours to rigorous evaluations lasting one month or more. Many inspections include examinations of emissions, as well as evaluations
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of abatement equipment installation, operation, and maintenance. Other regulator monitoring activities may include reviews of self-reporting records and procedures, extensive interviews, and regulator sampling of pollution emissions. Current EPA compliance monitoring strategies recommend that major Clean Air Act stationary sources receive a full inspection at least once every two years and that minor Clean Air Act sources that emit more than 80 percent of the threshold for classification as a major source receive a full inspection at least once every five years (USEPA 2001a). Concerning the Clean Water Act, current EPA compliance monitoring strategies recommend that major sources receive a comprehensive inspection at least once every two years and that minor sources receive an inspection at least once every five years (USEPA 2007). However, these are merely targets for the frequency of compliance monitoring; they are not legally binding requirements. 2.2 Enforcement Actions and Stringency
Enforcement actions for violations range from telephone and letter warnings to fines and criminal prosecutions. Informal enforcement actions are typically levied by local authorities. While a few state environmental agencies have the authority to issue small onsite administrative penalties akin to traffic tickets, fines and other formal sanctions are typically imposed by the administrative law judges that comprise state or regional EPA administrative courts. Significant appeals or atypical violations may be referred to centralized EPA administrative courts or to the Washington, D.C.-based independent Environmental Appeals Board. Some especially serious violations or high-level appeals may be referred to states attorneys general and the federal Department of Justice for civil prosecution. Criminal referrals are also possible, although such action is most often reserved for cases involving deliberate efforts to operate outside the regulatory environment, deliberately deceptive behavior such as record falsification, or cases causing unusual harm to human health (Uhlmann 2009). EPA establishes legal guidelines, on a statute-by-statute basis, for enforcement stringency. In general, these guidelines state that sanction severity should increase with the duration and extent of noncompliance. Significant or unresolved violations are supposed to receive a formal enforcement response, typically including a formal Notice of Violation detailing the infringement and an Administrative Order officially requiring a return to compliance. Once a violation rises to the level of a financial penalty, guidelines dictate that the magnitude of the fine should be a function of (1) the economic benefit to the facility that results from the violation, (2) the seriousness of the violation and the magnitude of its potential harm to human health or the environment, (3) the facilitys ability to pay, (4) the companys compliance and enforcement history, (5) fairness and consistency, and (6) discretionary adjustments (USEPA 2001b). When judicial actions are considered, the guidelines add matters of willfulness and court victory probabilities to the punishment principles described above (USEPA 1989). Note, however, that the guidelines give strong priority to administrative penalties over civil and criminal referrals since resource
considerations generally suggest levying the minimum penalty necessary to achieve a given compliance objective. 2.3 Scope of Oversight
The EPA and delegated states are responsible for overseeing more than 41 million entities regulated under 58 programs from 14 key environmental statutes. Much of the oversight is directed towards approximately 24,000 Clean Air Act major facilities, 20,000 Clean Air Act synthetic minor facilities, 7,000 Clean Water Act major facilities, 2,000 Resource Conservation and Recovery Act hazardous waste treatment, storage, or disposal facilities, and 30,000 Resource Conservation and Recovery Act large-quantity hazardous waste generators. According to EPAs Office of Inspector General, the Agency has limited knowledge of the precise size of the regulated universe and how that size has changed over time (USEPA 2005). 2.4 Overall Trends and Themes Gray and Shimshack (2011) provide a detailed overview of trends of United States pollution oversight indicators. Two key themes emerge. First, environmental monitoring and enforcement activity varies significantly across time. Second, environmental monitoring and enforcement activity varies substantially across space. Inspection frequencies, sanction probabilities, and fine distributions differ substantially across states. Temporal and cross-state differences in company and industry composition imply that federal compliance monitoring strategies and enforcement management guidelines are not precise rules in practice. Further, regulatory agencies are influenced by budget allocations, local economic conditions (Deily and Gray 1991), pressures from local interest groups (Peltzman 1976), and local political pressures (Kleit et al. 1998). 3 EMPIRICAL ECONOMIC EVIDENCE
Gray and Shimshack (2011) provide a detailed overview of the economic approach to evaluating environmental monitoring and enforcement. This section reviews results from that research. We focus on the empirical evidence on the deterrence effects of monitoring and enforcement. We examine evidence concerning air pollution, water pollution, and toxic and hazardous waste pollution. We then explore the literature that goes beyond basic deterrence assessment to explore the mechanisms underlying environmental deterrence. 3.1 Deterrence Impacts of the Clean Air Act
Empirical studies on the deterrence impacts of Clean Air Act monitoring and enforcement actions have consistently found that recent regulator activity influences air pollution compliance. For example, Gray and Deily (1996) and Deily and Gray (2007) examined enforcement and compliance data for 41 large steel mills between 1976 and 1989, a period of rapid decline in the steel industry. The 1996 study analyzed the impact of enforcement actions on compliance with air pollution
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regulations, while the 2007 study performed a joint analysis of enforcement and compliance with environmental and worker health and safety regulations. Both studies detected a statistically significant and large impact of regulatory activity (either inspections or other enforcement actions) when a lagged measure of regulatory activity (an indicator variable for whether or not the plant had any activity in the prior two years) was used. The 2007 study found that being the target of any EPA enforcement activity in the prior two years increased the probability of a plants being in compliance by about 32-33 percent relative to those plants that had not been the targets of any enforcement activity. This effect is larger than in most other studies, but it is important to note that the overall compliance rate in the data sample was only 38 percent. Gray and Shadbegian (2005) examined air pollution compliance responses to EPA/ state inspections and enforcement actions for 116 pulp and paper mills for the period 1979-1990. Their results indicated that plants increased their compliance rates by approximately ten percent in response to a typical regulatory action. This result held roughly equally for inspections and enforcement instruments. Additionally, the authors found that enforcement responses varied across plants. For example, pulp mills were less sensitive to inspections than paper mills. Plants owned by larger parent companies were less sensitive to inspections, but more sensitive to enforcement actions. Rather than focusing on compliance rates, Nadeau (1997) found that EPA regulatory activity can also affect the duration of a plants non-compliance periods. Using data on air pollution compliance at 175 pulp and paper plants from 19791989, Nadeau tested whether the number of quarters a plant was in violation of air pollution statutes was related to the amount of regulatory activity it faced. The study distinguished between monitoring activity (inspections and emissions tests) and enforcement activity (administrative, civil, judicial, and penalty actions). A ten percent increase in a plants predicted threat of enforcement actions was associated with a four to five percent reduction in the duration of the violation. The results for predicted inspection activity, however, were largely insignificant, with a ten percent increase in a plants predicted threat of inspections being associated with a zero to four percent reduction in the duration of noncompliance. For most industrial facilities, air pollution compliance is systematically observable to researchers but pollution emissions are not. However, in a study of electric utility facilities for which emissions data were available, Keohane, Mansur, and Voynov (2009) demonstrated that the impacts of enforcement on air emissions can be significant. This study is also unusual because it examined the effects of litigation by regulators, rather than administrative enforcement. The authors reviewed the responses of 249 coal-fired power plants to the threat of being included in EPA lawsuits alleging violation of New Source Review regulations, and found that plants that faced a one standard deviation higher predicted probability of a lawsuit reduced their sulfur dioxide emissions by ten percent relative to plants facing a lower predicted probability of being sued. However, the authors also found that the 46 plants that were eventually sued experienced no further pollution reductions,
suggesting that plants responded more to the threat of lawsuits than to the lawsuits themselves. 3.2 Deterrence Impacts of the Clean Water Act
Empirical studies of the deterrence impacts of Clean Water Act monitoring and enforcement actions have found that regulator activity influences water pollution discharges and compliance. Magat and Viscusi (1990) explored the impact of EPA inspections on conventional water pollution compliance at 77 pulp and paper mills for the period 1982 1985. They found that a given facilitys probability of noncompliance was about twice as high if the facility had not been inspected in the previous quarter (the overall compliance rate in their sample was 75 percent). The impacts on pollution discharges were also large; on average, an inspection reduced a facilitys subsequent conventional water pollution discharges by approximately 20 percent. Earnhart (2004a; 2004b) examined conventional water pollution discharges for 40 Kansas wastewater treatment plants, and Glicksman and Earnhart (2007) studied similar data for 400 chemical facilities. All three studies found that enforcement actions, especially monetary fines, consistently reduced relative discharges. They also collectively concluded that deterrence effects varied by regulator type, with federal inspections and sanctions deterring more violations on average than similar state actions. Shimshack and Ward (2005) analyzed the compliance responses of 217 pulp and paper mills to fines and other regulatory actions for the period 1988-1996. They found that an additional fine induced about a two-thirds reduction in the statewide water pollution violation rate in the year following the fine. Non-monetary sanctions had no noticeable impact on compliance, and an additional fine induced substantially greater compliance than an additional inspection. In a related study of 251 pulp and paper mills that examined relative discharges rather than compliance status for the 1990-2004 period, Shimshack and Ward (2008) also found significant deterrence effects of enforcement. In this case, statewide conventional water pollution discharges fell by approximately 7 percent in the year following a fine being imposed at any plant in the state. In contrast to the other studies reviewed here, Langpap and Shimshack (2010) explored the impacts of private, rather than public, enforcement actions. They investigated the deterrence effects of private citizen suits, as well as the extent to which private citizen suits crowd out, or crowd in, public monitoring and public enforcement. They found that private enforcement actions significantly enhanced environmental compliance, but that direct deterrence effects were significantly weakened by the net crowding out of public enforcement. 3.3 Deterrence Impacts of in Hazardous and Toxic Waste Settings
The literature also suggests that monitoring and enforcement can significantly influence hazardous waste emissions and compliance. Stafford (2002; 2003) analyzed
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a large sample of more than 8400 facilities regulated under the Resource Conservation and Recovery Act. The 2002 study found that a federally mandated rule change that increased possible financial penalties for noncompliance ten to twenty fold resulted in an approximately fifteen percent reduction in plants violation probabilities. The 2003 study showed that strict liability rules, state environmental spending, and allocating a higher percentage of employees to regional offices decreased pollution-related violations. However, the study found that these activities also increased recordkeeping violations. Several interpretations are possible, but this latter result may suggest that penalties decrease plants incentives to report completely and accurately. Other studies have found that increased threats of lawsuits have affected toxic waste discharges and hazardous industrial site cleanup. Alberini and Austin (1999; 2002) explored the response of toxic waste discharges to differences in the liability laws imposed on polluters. The 1999 study found that the impacts of manufacturing activities on the number of spills for some chemicals varied by legal regime, suggesting that enhanced legal threats encouraged firms to handle some toxic materials more carefully. The 2002 study also found that strict liability rules were associated with reductions in the severity and frequency of toxic releases, but that the effects varied by firm size. Sigman (2009) found that especially stringent liability laws can have far reaching consequences. Laws that raised the threat of lawsuits for developers of contaminated former industrial sites increased vacancy rates and reduced industrial land prices in central cities. 3.4 General versus Specific Deterrence
Recent studies have emphasized the distinctions between specific deterrence and general deterrence. Specific deterrence refers to the extent to which regulatory actions deter subsequent violations at the inspected or sanctioned facility. General deterrence refers to the extent to which regulatory actions aimed at one facility generate spillover effects that impact the environmental performance at other facilities. Shimshack and Ward (2005) provided early evidence on the regulator reputationbuilding effects of general deterrence. They found that a fine on one plant strongly influenced other plants beliefs about the regulators toughness, thus magnifying the impact of any given fine. They observed a two-thirds reduction in the statewide water pollution violation rate in the year following a fine, and they found that nearly all of this deterrence effect was attributable to general deterrence. The average spillover effect of a fine on other plants in the same state and industry was almost as strong as the impact on the sanctioned facility itself. In a study of air pollution compliance for 521 manufacturing plants in the United States, Gray and Shadbegian (2007) took the analysis of general deterrence further, by incorporating information on the exact location of each plant. They found that inspections at one plant tended to increase compliance at both the inspected facility and nearby facilities. They also found that general deterrence effects were restricted by state boundaries. That is, inspections at plants that were nearby, but
located in a different state, did not increase compliance. These results suggest that jurisdictional boundaries may be important determinants of the reach of the regulator reputation effect that underlies general deterrence. 3.5 Enforcement and Beyond-Compliance Behavior
Economists generally view enforcement as a tool to secure compliance with regulations. Thus, the interpretation of the effects of monitoring and enforcement that are found in the literature would appear to be that pollution reductions are achieved when plants have reduced emissions to the legal threshold. However, Shimshack and Ward (2008) demonstrated that EPA enforcement actions not only reduced pollution by decreasing violations, but also significantly increased overcompliance. They found that when regulators issued fines to other plants, plants with discharges that were typically below legally permitted levels were induced to go further beyond compliance. They also found that non-compliant plants often responded to sanctions on other facilities by reducing their discharges well below the levels required for compliance. Shimshack and Ward (2008) further demonstrated that this behavior can be economically rational when plants have stochastic discharges or jointly-produced multiple pollutants. That is, in periods of high perceived regulator stringency, plants may lower their target discharges below allowable levels to reduce the risk of accidental violation and to reduce the risk of violation for a jointly-produced pollutant. Overall, the authors found that most of the large measured impact of fines on pollution discharges was due to plants going beyond compliance, rather than plants in violation seeking to come into compliance. 4 POLICY IMPLICATIONS
What do these findings imply for economics and policy? First, the literature consistently finds that there are large deterrence effects from environmental regulations that have teeth. That is, a large amount of the observed variation in environmental performance can be attributed to the traditional economic incentives resulting from monitoring and enforcement actions, rather than to corporate social responsibility, altruism, or non-regulatory pressures. This suggests that significant increases in environmental quality might be achieved through small incremental investments in environmental monitoring and enforcement. If current standards are not overly stringent and enforcement costs are moderate, the resulting enforcementinduced changes in plant behavior may translate into large social welfare gains. A related, but somewhat less definitive, implication of the literature is that current incremental environmental compliance costs may be small, at least for the pollutants and large facilities commonly studied in the literature. Sanctions, especially fines, are infrequent relative to the number of violations, and levied fines tend to be small relative to penalties allowable under the law. Yet, the marginal penalty appears to spur large and rapid changes in environmental performance. This suggests that plants may devote more attention to equipment maintenance and operational efficiency, spill avoidance, and employee training after regulator actions and during
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periods of high perceived regulatory scrutiny. These activities do not rely on large direct expenditures such as those required for new installations of major pollution control equipment. The collective findings of the literature also suggest that current state and federal environmental assessment methods incompletely measure the impacts of monitoring and enforcement activities on compliance and pollution. The EPA currently uses measures such as inspection counts, numbers of sanctions, total value of penalties collected, and pounds of pollution reduced through consent decrees or court settlements. One possible shortcoming of this approach is related to the issue of reverse causality: penalties and other sanctions tend to be higher when overall environmental performance is worse, so a regulator who is successful at reducing violations may appear to be less effective. An equally significant issue is that these indicators fail to capture some deterrence effects that the literature suggests may be large. More specifically, current assessment measures fail to capture the impact of current inspections, sanctions, and fines on future environmental performance at the sanctioned facility as well as the spillover effects of these actions on the environmental performance at other facilities. Finally, EPAs current assessment methods fail to capture beyond-compliance effects that result in pollution reductions at plants that were already in compliance. 5 CONCLUSION The empirical evidence that has been reviewed here suggests that monitoring and enforcement are significant determinants of pollution prevention and environmental compliance. First, environmental monitoring and enforcement activities generate substantial specific deterrence, reducing future violations at the targeted firm. Second, environmental monitoring and enforcement activities generate substantial general deterrence, reducing future violations at facilities other than the targeted one. Third, environmental monitoring and enforcement activities generate not only reductions in violations, but also significant reductions in emissions. This last result holds even for industries where compliance is generally high. However, there remains a need for continued research on deterrence. Unresolved questions include: How large is the deterrence impact in international contexts? How do plant characteristics influence the strength of enforcement responses? Should enforcement resources be targeted to repeat violators? How does deterrence vary across regulatory instruments? How does the plant learning process underlying general deterrence function in the real world? Are the benefits of environmental monitoring and enforcement activities greater than the costs of such activities? How do pollution prevention impacts from a marginal dollar invested in enforcement activity compare to pollution prevention impacts from a marginal dollar invested in less traditional regulatory approaches?
6 BIBLIOGRAPHY Alberini, A. and Austin, D., Strict Liability as a Deterrent in Toxics Waste Management, J. Environmental Economics and Management, 1999, 38, pp. 20-48. Alberini, A. and Austin, D., Accidents Waiting to Happen: Liability Policy and Toxic Pollution Releases, Rev. Economics and Statistics, 2002, 84, pp. 729-741. Deily, M. and Gray, W., Enforcement of Pollution Regulations in a Declining Industry, J. Environmental Economics and Management, 1991, 21, pp. 260-274. Deily, M. and Gray, W., Agency Structure and Firm Culture: OSHA, EPA, and the Steel Industry, J. Law, Economics, and Organization, 2007, 23, pp. 685-709. Earnhart, D., Regulatory Factors Shaping Environmental Performance at Publicly-Owned Treatment Plants, J. Environmental Economics and Management, 2004a, 48, pp. 655681. Earnhart, D., Panel Data Analysis of Regulatory Factors Shaping Environmental Performance, Rev. Economics and Statistics, 2004b, 86, pp. 391-401. Glicksman, R. and Earnhart, D., The Comparative Effectiveness of Government Interventions on Environmental Performance in the Chemical Industry, Stanford Environmental Law J., 2007, 26, pp. 317-371. Gray, W. and Deily, M., Compliance and Enforcement: Air Pollution Regulation in the U.S. Steel Industry, J. Environmental Economics and Management, 1996, 31, pp. 96111. Gray, W. and Shadbegian, R., When and Why do Plants Comply? Paper Mills in the 1980s, Law and Policy, 2005, 27, pp. 238-261. Gray, W. and Shadbegian, R., The Environmental Performance of Polluting Plants: A Spatial Analysis, J. Regional Science, 2007, 47, pp. 63-84. Gray, W. and Shimshack, J., The Effectiveness of Environmental Monitoring and Enforcement: A Review of the Empirical Evidence, Rev. Environmental Economics and Policy, 2011, in press. Keohane, N. Mansur, E. and Voynov, A., Averting Enforcement: Evidence from New Source Review, J. Economics and Management Strategy 2009, 18, pp. 75-104. Kleit, A., Pierce, M. and Hill, R., Environmental Protection, Agency Motivations, and Rent Extraction, J. Regulatory Economics, 1998, 13, pp. 121-137.
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Langpap, C. and Shimshack, J., Private Citizen Suits and Public Enforcement: Substitutes or Complements? J. Environmental Economics and Management, 2010, 59, pp. 235249. Magat, W. and Viscusi, W.K., Effectiveness of the EPAs Regulatory Enforcement: The Case of Industrial Effluent Standards, J. Law and Economics, 1990, 33, pp. 331-360. Nadeau, L., EPA Effectiveness at Reducing the Duration of Plant-Level Non-Compliance, J. Environmental Economics and Management, 1997, 34, pp. 54-78. Peltzman, S., Toward a More General Theory of Regulation. J. Law and Economics, 1976, 19, pp. 211-240. Shimshack, J. and Ward, M.B., Regulator Reputation, Enforcement, and Environmental Compliance, J. Environmental Economics and Management, 2005, 50, pp. 519-540. Shimshack, J. and Ward, M.B., Enforcement and Over-Compliance, J. Environmental Economics and Management, 2008, 55, pp. 90-105. Sigman, H., Environmental Liability and Redevelopment of Old Industrial Land, NBER Working Paper No. 15017, 2009. Stafford, S., The Effect of Punishment on Firm Compliance with Hazardous Waste Regulations, J. Environmental Economics and Management, 2002, 44, pp. 290-308. Stafford, S., Assessing the Effectiveness of State Regulation and Enforcement of Hazardous Waste, J. Regulatory Economics, 2003, 23, pp. 27-41. Uhlmann, D., Environmental Crime Comes of Age: the Evolution of Criminal Enforcement in the Environmental Regulatory Scheme, Utah Law Review, 2009, pp. 1223-52. United States Environmental Protection Agency (USEPA) Office of Water, The Enforcement Management System: National Pollutant Discharge Elimination System, 1989. United States Environmental Protection Agency (USEPA), Clean Air Act Stationary Source Compliance Monitoring Strategy, 2001a. United States Environmental Protection Agency (USEPA) Office of Enforcement and Compliance Assurance, Combined Enforcement Policy for Section 112(r) of the Clean Air Act, 2001b. United States Environmental Protection Agency (USEPA) Office of Inspector General, Limited Knowledge of the Universe of Regulated Entities Impedes EPAs Ability to Demonstrate Changes in Regulatory Compliance, 2005.
United States Environmental Protection Agency (USEPA) Office of Enforcement and Compliance Assurance, Clean Water Act National Pollutant Discharge Elimination System Compliance Monitoring Strategy for the Core Program and Wet Weather Sources, 2007.
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COLLABORATING WITH TERTIARY EDUCATION INSTITUTIONS TO PROVIDE BASIC TRAINING TO ENVIRONMENTAL MANAGEMENT INSPECTORS JARDINE, MARK Director, Compliance and Enforcement Support Services, Department of Environmental Affairs, 315 Pretorius Street, Pretoria, South Africa, mjardine@ environment.gov.za. SUMMARY Selecting the most appropriate basic training model for environmental compliance and enforcement officials is a challenging task. This is due to a number of factors, including the multi-disciplinary nature of regulatory functions related to the environment, the diverse qualifications and backgrounds of people working in this sector, as well as the balance of theory and practical knowledge and experience that is required to effectively execute this mandate optimally. This paper will explore the merits and challenges in choosing to collaborate with tertiary education institutions as the preferred model to deliver this training. It will include a brief overview of the development of the Environmental Management Inspector basic training programme, a summary of the identified objectives established at the onset of the programme, and finally, an assessment of whether these objectives have been met. In conclusion, this paper suggests that collaborating with tertiary education institutions can provide a successful model for delivering basic training to environmental inspectors on condition that key aspects, such as standardisation, quality assurance, career development, academic credibility, accessibility and cost effectiveness are clearly defined, monitored and evaluated. 1 INTRODUCTION An amendment to the framework piece of national environmental legislation, the National Environmental Management Act1 in 2005, changed the landscape of environmental compliance and enforcement in South Africa. This amendment not only resulted in a consolidated set of compliance and enforcement mandates, powers, functions and duties for all environmental inspectors monitoring and enforcing national environmental legislation, but also required the establishment and implementation of a Director-General approved basic training programme for all prospective environmental inspectors from various authorities across the country. The primary model for the delivery of this basic training programme has been through a collaborative effort by the national Department of Environmental Affairs working in partnership with various tertiary education institutions. In selecting a preferred modality for capacitating the inspectors, the department opted for the middle-ground between complete reliance on internal resources (for
example, a training academy) on the one hand and the procurement of external resources (for example, total outsourcing to a service provider) on the other. 2 PHASED IMPLEMENTATION
The implementation of the Basic Training Programme can broadly be divided into the following 3 phases: 2.1 Phase 1: Bridging Training (2005-2006)
The basic curriculum for the bridging training was developed after a multistakeholder symposium was convened in February 2005, consisting of international (US Environment Protection Agency and UK Environment Agency), national, provincial and local environmental authorities. The Bridging Training Programme was developed to provide immediate compliance and enforcement capacity for the urgent implementation of pieces of national environmental legislation that had recently commenced. This first phase of training was presented through the award of a tender to the University of Pretoria and the NGO TRAFFIC (East and Southern Africa) and comprised 10 days of contact teaching, assessments based on daily tests, practicals as well as a final exam. 2.2 Phase 2: Basic Training (2007)
The implementation of a joint monitoring and evaluation system by the service provider, the Department of Environmental Affairs, the United States Environment Protection Agency and the UK Environment Agency led to the conversion of the bridging course to the basic course, which formed the basis for the core syllabus that is currently presented. The main drivers behind these changes were the following: t he need to tailor-make the basic training to provide for compliance and enforcement in the green (biodiversity/protected areas) and brown (pollution, waste and environmental impact assessment) and blue (marine) subsectors. the call for the duration of the training intervention to be expanded and to include a distance learning (internet) component. the request for accredited training that would be recognised in the formal educational framework. Consequently, a 6 month internet-based (with 2 weeks of contact teaching) course programme was proposed; and offered to learners by the service provider during the course of 2007. The basic training course is divided into 3 modules: a) The Legal Context for Environmental Compliance and Enforcement, b) Becoming an Environmental Management Inspector and c) Fundamental Compliance and Enforcement Activities. The following course outline (set out in the table in appendix 1) provides an overview of the content of each of these modules.
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2.3
Phase 3: Basic Training (2008 to date)
Due to a growing demand for the basic training course, together with the need to build a sustainable and accessible basic training programme for all environmental inspectors, the Department of Environmental Affairs decided to broaden the scope of tertiary education institutions available to present the basic training programme. Of the 9 institutions that attended a briefing meeting, only 3 confirmed that they were prepared to assist the department in presenting the basic training programme, namely, the University of South Africa, the University of Pretoria and the Cape Peninsula University of Technology. The Universities of South Africa and Pretoria followed the previous 6 month distance learning model, while Cape Peninsula University of Technology implemented a 3 week pure contact programme. 3 MEMORANDUM OF UNDERSTANDING
The foundation of the collaborative partnership with three tertiary education institutions was the conclusion of a memorandum of understanding, setting out the rights and responsibilities of each of the parties. The duties of the tertiary education institutions were as follows: t o ensure that the Tertiary Institution Courses are planned, developed, presented and assessed in accordance with the norms and standards reasonably expected of tertiary education institutions; to ensure that the facilitators/presenters of the Tertiary Institution Courses have the appropriate knowledge, skills and experience to facilitate/present the courses according to the requisite standard; to provide all logistical, administrative, academic and other resources required for the proper presentation/facilitation of the Tertiary Institution Courses; to implement an appropriate monitoring and evaluation system in respect of the Tertiary Institution Courses; to provide regular updates to the Department on the progress of the course and informing the Department timeously of any problems in the presentation/ facilitation of the course; to update and improve the modules of the Environmental Management Inspector Basic Training Course in accordance with the latest legislative developments (such as the Waste and Integrated Coastal Management Bills) and environmental compliance and enforcement best practice; to join relevant national and international associations/networks, including the INECE International Network for Compliance and Enforcement Training Professionals. On the other hand the duties of the department were to: p rovide all reasonable support and assistance to the tertiary institution required to effectively perform their responsibilities in terms of the Agreement; to disseminate all the information provided by the tertiary institution on the
Tertiary Institution Courses to relevant representatives of the Environmental Management Inspector Institutions; to provide the contact details of potential Tertiary Institution Course facilitators/ presenters who have had previous experience in the presentation/facilitation of the Environmental Management Inspector Basic Training Course; to provide updates and recommendations to the tertiary institution on relevant legislative developments, environmental compliance and enforcement procedures and practices. 4 ANALYSIS 4.1 Criteria In deciding to collaborate with tertiary education institutions in the delivery of the basic training course, the department took the following criteria into account: 4.1.1 Standardisation By developing the basic training programme at a certain level (Honours Degree) and carrying a specific weight of academic credits (40), it was believed that the partnership with tertiary education institutions would lead to the maintenance of a minimum national standard, irrespective of which institution presented the programme. 4.1.2 Quality Assurance A primary motivation for placing the basic training programme in the hands of the tertiary education institutions was to utilise the existing quality assurance systems within these organisations. Issues such as the development and marking of appropriate assessment material, the vetting of presenters, and the implementation of internal monitoring and evaluation systems were felt to fall squarely within the expert domain of tertiary education institutions. 4.1.3 Career Development A potential advantage of delivering the basic training course through tertiary education institutions was the ability to offer courses that would add to the existing qualification history of the applicant and assist them in their continuing professional development. There was an additional perception that developing the basic training on an appropriately high level (Honours Degree) would place environmental inspectors on equal footing with professionals in the regulated community. 4.1.4 Academic Credibility By tapping into the academic resources within tertiary institutions, it was felt that university personnel would be of an appropriate calibre to deliver an Honours level training programme; and assist the Department in ensuring a well-researched and up to date capacity-building intervention.
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4.1.5 Accessibility In addition to making the basic training course more geographically accessible through the engagement of tertiary education institutions across the country, it was also envisaged that the institutions would develop and apply appropriate admission criteria to course applicants. The implementation of a Recognition of Prior Learning system would, in principle, permit an applicant with a number of years of practical experience in environmental compliance and enforcement onto the basic training course without meeting the formal qualification requirements. This was of particular importance given the extremely wide range of educational backgrounds of prospective environmental inspectors. 4.1.6 Cost Effectiveness By approaching those institutions whose core business is to provide education and capacity building (i.e. universities) with a public interest training programme, it was envisaged that a cost effective model could be developed in order to make the course widely affordable for environmental compliance and enforcement institutions requiring designated Environmental Management Inspectors in order to fulfil their legislative mandate. 4.2 Lessons Learnt
In general, collaboration with tertiary education institutions in the presentation of the basic training has been a positive experience, with many of the expected objectives being achieved, however, in considering this type of model; the following challenges should be noted: 4.2.1 Standardisation In spite of developing the basic training course at an Honours Degree level of 40 academic credits2 during Phases 1 and 2, there is a significant variation in the standard with which the course was subsequently presented in Phase 3 by the three tertiary institutions. This variation could be due to a number of factors, including the ability of the institution to provide appropriate resources aligned to the multidisciplinary nature of the course or the rigour with which an internal quality assurance system was implemented. 4.2.2 Quality Assurance The presence of internal quality assurance within the tertiary education institutions does not preclude the need for the department to pro-actively participate in the development and marking of appropriate assessment material and the vetting of presenters. In addition, the department needed to implement its own monitoring and evaluation system through the development and dissemination of course evaluation forms in order to gather meaningful feedback from course participants,
and to ensure that this feedback, in turn, is discussed between course coordinators/ presenters with a view to ensuring continual improvement of the training programme. 4.2.3 Career Development The presentation of accredited training encompasses a number of different requirements in the development and presentation of courses, including complex approval procedures from external educational authorities; in addition to the fulfilment of the internal criteria of the tertiary institutions themselves. This process must be weighed against the need of the employing institution to fulfil the legislative training requirement as expeditiously as possible, in order to utilise an employee with the requisite inspector designation. At one institution, approval was obtained for the basic training course to count as credits towards an Honours Degree in Environmental Management and Analysis. However, these credits were not transferable to other tertiary education institutions. 4.2.4 Academic Credibility While the inclusion of tertiary education institutions gave a measure of academic credibility to the basic training course, it was found that the institutions staff members, while possessing the requisite theoretical knowledge, did not have the practical experience to transfer compliance and enforcement skills in an applied manner. In operational areas, such as the application of administrative or criminal sanctions, the tertiary institutions therefore relied heavily on experienced inspectors at the department and/or external consultants to deliver these aspects effectively. 4.2.5 Accessibility The geographical distribution of the 3 tertiary education institutions meant that 2 were located in 1 province in the north east of the country (Gauteng), and 1 in the south west (Western Cape). Despite the internet component of the basic training course, this has significant financial implications for applicants from other parts of the country who required travel, accommodation and catering costs. A lack of agreement between the department and the tertiary education institutions may have led to an inconsistent application of the Recognition of Prior Learning system, potentially excluding a number of applicants with appropriate experience who failed to meet the formal admission requirements.3 4.2.6 Cost Effectiveness In 2010, the course fees for the basic training course were between ZAR 12.500 16.000. These fees, together with the costs associated with travel, accommodation and catering, led to many employing institutions complaining of the expensive nature of the training programme that hampered their ability to develop sufficient human resources to execute their Environmental Management Inspectorate
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duties within their limited financial resources. The tertiary education institutions responded by stating that their fees were market-related given the fact that the training was offered as a short course/learning programme (as opposed to a formal qualification); and therefore not eligible for government subsidization. 4.3 Environmental Management Inspectorate Training Needs Project
In order to develop an effective training programme for environmental compliance and enforcement officials, it has been suggested that an assessment is required to determine whether the initial training was successful and if the requirements for practising autonomously are met. In order to meet this objective, the department initiated an Training Needs Project for environmental inspectors, with the aim of gathering broad-based feedback from trained and designated environmental inspectors on a number of key training, capacity building issues, including the success of the basic training programme. The figure in appendix 2 shows the satisfaction rating of 113 inspectors who participated in this project. The rating was based on a scoring of 3 criteria, namely service delivery, value for money and course content.4 Overall course content was rated the highest, followed by value for money and service delivery.5 5 CONCLUSIONS Collaborating with tertiary education institutions in developing and presenting a basic training programme for environmental compliance officials can yield positive results, especially in circumstances where there is limited internal capacity within the environmental authority/ies to deliver this service. However, based on the experience of the Department over the last 5 years, it is proposed that other authorities considering a similar approach develop and implement a rigorous and effective monitoring and evaluation system to constantly assess whether this model fulfils the objectives of the project. Establishing clearly defined performance criteria related to standardisation, quality assurance, career development, academic credibility, accessibility and cost effectiveness will assist in this process. 6 REFERENCES Act No107 of 1998. Credits can be defined as a collective volume of learning required for a qualification in terms of the minimum number of credits required at specific exit levels of the national qualifications framework. For instance, generally one credit is equivalent to ten notional study hours. In higher education, an average full-time student undergraduate is expected to study for a 40 hour week, thus requiring a minimum credit load of 120 credits per academic year for a Certificate, Diploma and Bachelors degree; and 180 credits per academic year for Masters Degree and beyond. 3 The department did recognise the limitations of a one shoe fits all approach; and, in 2010, developed a separate basic training programme for field rangers at a much lower level than the 40 credit, Honours level training. The training package,
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comprising a facilitators guide, and interactive training DVDs in 7 South African languages was developed to cater for officials who may not have completed their formal secondary education and very often did not speak English as a first language; however, they fulfilled a critical function on patrolling and monitoring the coastline and protected areas of South Africa. 4 Du Toit, J Department of Environmental Affairs, Environmental Management Inspectorate Training Needs Project, 2010/11 Draft Report. 5 Percentage of participants rating between 7-10 a) Course Content = 81%; b) Value for Money = 72% and c) Service Deliver = 67%. APPENDIX 1: COURSE OUTLINE FOR ENVIROMENTAL MANAGEMENT INSPECTORATE (EMI) BASIC TRAINING Department of Environmental Affairs MODULE 1: LEGAL CONTEXT FOR ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Unit 1 Title Introduction to environmental compliance and enforcement Constitutional and Administrative Law Environmental Law for EMIs Content Role and objectives of enforcement Different enforcement tools and when to use them
The Constitution Promotion of Administrative Justice Act and Promotion of Access of Information Act National Environmental Management Act and all specific environmental management acts Overview of all other key environmental legislation and regulations Elements of a crime Admissibility of evidence Key features of different types of business entities and implications of different business entities for enforcement
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Criminal law and law of evidence Introduction to Business Entities
MODULE 2: BECOMING AN ENVIRONMENTAL MANAGEMENT INSPECTOR

Unit 1 Title Mandate, functions and powers Content Detailed discussion of the National Environmental Management Acts Sections 31A to Q and 34A to F, including Chapters 2, 5 and 8 of the Criminal Procedure Act
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Unit 2
Title Ethics
Content Principles of ethics EMI Code of Conduct Consequences of unethical behaviour Overview of Environmental Management Inspectorate Networking and intelligence sharing Overview of other roleplayers in environmental enforcement Principles of working in multi-agency teams Databases & resources Avoid-resolve-manage approach, with emphasis on verbal conflict reduction or resolution Appropriate use of force Basic self-defence techniques
Networks and resources
Operational Conflict Management
MODULE 3: FUNDAMENTAL COMPLIANCE AND ENFORCEMENT ACTIVITIES

Unit 1 Title Health & Safety for EMIs Content General principles of health & safety Different types of industrial hazards, how to prevent them and how to respond to them Examples of inspection accidents Inspections and Investigations Chain of evidence/custody principles and tools Good documentation practices (including EMI Log Book) Planning for inspections Obtaining site entry for inspection Site inspection activities Inspection interviewing Introduction to principles of sampling Report-writing Data entry, use and quality Definition and types of investigations Documenting the investigation Planning for investigations Off-site investigation, including surveillance On-site investigation, including crime scene management Witnesses Search and seizure Practical inspection/investigation exercises Continued
Conducting compliance inspections and investigating suspected noncompliance with environmental legislation
Enforcement in cases of noncompliance with environmental legislation
Court structure and roleplayers Summons, arrest and bail Decision to prosecute and charge sheets Court procedure (including getting accused and witnesses to court) Preparing witnesses (including expert witnesses) and testifying in court Plea and sentence agreements and negotiating with the defence Sentencing Appeal, review and cost recovery Issuing compliance notices and directives Monitoring compliance with compliance notices and directives Interdicts and contempt of court Dealing with the media and the sub judice rule Practical court exercises
APPENDIX 2 : OVERALL SATICFACTION RATING WITH ENVIRONMENTAL MANAGEMENT INSPECTORATE BASIC TRAINING Draft Training Needs Report, Department of Environmental Affairs (2011)
Please refer to the online version of this paper for the color table for Appendix 2 at http://www.inece.org/conference/9/.
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A STRATEGIC APPROACH TO MANAGING RISK AND DELIVERING OUTCOMES THROUGH ENVIRONMENTAL ENFORCEMENT LYNOTT, DARA 1 AND OLEARY, GERARD 2 Director, Office of Environmental Enforcement, Environmental Protection Agency, Johnstown Castle Estate, Wexford, Ireland, d.lynott@epa.ie
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Programme Manager, Office of Environmental Enforcement, Environmental Protection Agency, Johnstown Castle Estate, Wexford, Ireland, G.OLeary@epa.ie
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SUMMARY Since its establishment in 1992, the functions assigned to the Environmental Protection Agency (EPA) in Ireland1 have grown dramatically. Part of that growth has included the establishment of the Office of Environmental Enforcement, a dedicated office in the EPA, to improve overall compliance with European legislation. This paper sets out the strategic approach of the Office of Environmental Enforcement for enforcing environmental regulations in a credible and transparent fashion. In particular, it describes how environmental outcomes have been achieved by using risk based approaches to enforcement. 1 ROLE OF IRELANDS ENFORCEMENT OFFICE OF ENVIRONMENTAL
In 2003, the Environmental Protection Agency (EPA) in Ireland established an Office of Environmental Enforcement (OEE). This coincided with the introduction of the Protection of the Environment Act, 2003, which provided the EPA with strengthened enforcement powers. The Office of Environmental Enforcement is dedicated to the implementation and enforcement of environmental legislation in Ireland. The main outputs of the Office are: Compliance visits comprising of detailed audits and inspections, and air, water, noise and landfill gas emission sampling at licensed facilities. The publication of national enforcement reports to drive compliance with European Directives on drinking water,2 urban waste water,3 and waste, as well as the publication of the annual Pollutant Release and Transfer Register for Ireland.4 The prosecution of cases at the District Court level and the investigation of serious environmental crime, some in cooperation with the national police force, resulting in the submission of case files to the States Director of Public Prosecutions. The establishment of a national Environmental Enforcement Network, which implements the EU Recommendation on environmental inspections.5
T he establishment of a national environmental complaints management system.6 The development of a range of technical and regulatory guidance to assist the regulated community in its understanding of the requirements of environmental regulations. 2 THE CHALLENGE FACING REGULATORS
The challenge that regulators face on a day-to-day basis in Ireland and elsewhere was articulated by the National Audit Office in the United Kingdom (UK)7 when it stated that regulators must: D eliver the objectives and outcomes set down in statute. Develop a comprehensive risk assessment system which can deal with a wider range of risks both high level and facility specific so as to inform judgements about the application of resources to different areas of risk. Understand the effectiveness of their activities to strike the right balance between enforcement activity and other means of achieving compliance. This was said in somewhat different words by Professor Malcolm K. Sparrow of Harvard University where he said:8
Regulators, under unprecedented pressure, face a range of demands, often contradictory in nature: Be less intrusive .but more effective; Be kinder and gentler but dont let the bastards get away with anything; Focus your efforts .but be consistent; Process things quicker and be more careful next time; Deal with important issues .but do not stray outside your statutory authority; Be more responsive to the regulated community . but do not get captured by industry.
This is certainly different from the traditional approach to enforcement, depicted in Figure 1 where the focus of activities is on the following actions: he detection and cessation of illegal activities. T The remediation of contamination. The regularisation of unpermitted facilities. The application of penalties and sanction.
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Figure 1: Traditional Approach to Enforcement
The Office of Environmental Enforcement adopts and promotes a strategic approach to enforcement that involves a combination of enforcement tools to maximise compliance with environmental legislation and deliver outcomes for the environment.9 This approach is in line with the principles of Better Regulation, which are a key focus of environmental agencies across the EU, as set out in the 2005 report, Reducing administrative burdens: effective inspection and enforcement, by Peter Hampton.10 The enforcement tools aim to put the environment first and encourage individuals and businesses to integrate good environmental practices into normal working methods by seeking to prevent environmental pollution before it has a chance to occur.
DEVELOPMENT OF ENFORCEMENT STRATEGY IN IRELAND
Figure 2: Office of Environmental Enforcement Enforcement Strategy
The strategic approach of the Office of Environmental Enforcement is graphically represented in Figure 2 above and represents the requirement for our organisation to set out an enforcement plan for the year, which must take into account of the enforcement policy of the organisation and the resources that are available. The enforcement plan will use a number of tools to achieve environmental outcomes these are illustrated as five small green cogs to the right of the figure. The reason for using the analogy of machinery cogs is to highlight that all of the different enforcement activities must work together and complement each other in order for there to be a measurable impact on the environment; much like a production line in a factory. Examples of the types of enforcement activities for each of the five tools illustrated above that deliver intermediate outcomes for the environment are set out in the following table:
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Table 1: Office of Environmental Enforcement Activities

Influencing Industry Working With Industry Representatives Sectoral Enforcement Plans Advice and Guidance Written Guidance Ad. Campaigns Regulatory Design Licensing Inspections Risk Based Inspection Sanctions Prosecution Policy Admin., Civil And Criminal Sanctions
Performance Outcome Driven Based Charging
The remainder of this paper examines how risk based enforcement delivers environmental outcomes in regulating: I ndustrial Facilities. D rinking Water Supplies. Urban Wastewater Discharges. A number of terms are used throughout this paper that are worth defining, these are: Risk-based enforcement: aligning resources to the activities that pose the highest environmental risk, thereby making best use of resources. Intermediate outcomes: changes in knowledge, behaviour or conditions that happen as a result of enforcement activities and which ultimately lead to environmental outcomes. Examples of intermediate outcomes include cessation of illegal activities; remediation of contaminated sites; reduction in pollution emissions; investment in infrastructure and abatement equipment; and an increase in the number of facilities that are authorised. Final outcomes: the ultimate outcomes of program activities, such as improvements in water quality. The final environmental outcomes are reflected by the state of the environment as reported on a frequent basis by the EPA. 4 INDUSTRIAL FACILITIES
Large industry in Ireland is regulated by the Integrated Pollution and Prevention Control Directive (IPPC), a European Union Directive that aims to: mprove the standard of environmental protection within the whole of the EU. I "Achieve integrated prevention and control of pollution." "Prevent or... reduce emissions in the air, land and water." "Achieve a high level of protection of the environment taken as a whole." 11
The Environmental Protection Agency Act, enacted in 1992, allowed for the licensing of industry by the EPA.12 To date, 1005 applications have been processed.13 There was a wide array of sectors and industries to be licensed. The sectors ranged from
intensive pig and poultry production units to complex pharmachemical facilities. Regulators must develop an effective system of environmental regulations that focuses resources on the areas where the risks are highest. The regulations must be consistent, tangible, and provide a transparent rationale for the level of enforcement that can be communicated to a wider community. Developing a risk based approach to licence enforcement made sense as it provided such a system. The Office of Environmental Enforcement commenced the development of a methodology for assessing the environmental risk of waste at Integrated Pollution and Prevention Control Directive licensed facilities in 2005. The methodology was compiled based on international best practices, in particular practices in England, Scotland, Norway and the Netherlands. It comprises five key attributes, namely: T he complexity of activities based on the Integrated Pollution and Prevention Control Directive category. The location based on the proximity to sensitive receptors such as rivers. The emissions from the facility based on the amounts of pollutant releases to air, water and land as well as off-site transfers of waste and of pollutants in waste water from a list of 91 key pollutants including heavy metals, pesticides, greenhouse gases and dioxins reported as part of the European Pollutant Release and Transfer Register14. The environmental performance based on environmental management system in place. The compliance history based on prosecutions taken or enforcement notices served. For each facility, an assessment is conducted of each of the attributes and a score is obtained. In the case of the emissions attribute, there are separate assessments for emissions to air, water, sewer, and waste management. Depending on the assessment score obtained, the attribute is classified as a high (shown as A1, A2 and A3 in the figure below), medium (shown as B1, B2 and B3 in the figure below), or low risk (shown as C1, C2 and P in the figure below). The risk assessment is conducted on an annual basis for all licensed facilities. The Office of Environmental Enforcement uses the overall risk classification to allocate resources for the annual inspection programme and other enforcement activities. The annual enforcement levy is also based on the risk classification.15 Figure 3 shows the distribution of risk class across all the IPPC licensed sites for the 2008 period. While there are 3 band of Risk there are 9 sub bands the P designation refers to the Pigs and Poultry sectors.
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Figure 3: Distribution of Risk Class in Integrated Pollution and Prevention Control Directive Licensed Sites in 2008
Distribution of IPPC Enforcement Categories - 2008

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s 100 e e s 80 n e c i 60 l f o 40 r e b m 20 u N 0
A1
A2
A3
B1
Enforcement Category
B2
B3
C1
C2
Since the implementation of this risk based approach to enforcement, the Office of Environmental Enforcement has seen the intermediate outcome of a gradual shift from higher risk activities to lower risk activities. There was a net reduction in overall aggregated enforcement risk amongst IPPC facilities of approximately 5% between 2009 and 2011 (See Figure 4). Figure 4: Reduction in Aggregated Enforcement Risk 2009-2011
Defining final environmental outcomes for industrial facilities and attributing them directly to regulatory efforts is a difficult task. However, intermediate outcomes are the signposts that regulators use to let them know when they are on the right direction to a final environmental outcome. Intermediate outcomes can include a
reduction in pollution or risk, an increase in compliance or public satisfaction, or the remediation of a contaminated site. These are the short to medium term focuses of outcome-based enforcement plans. They are considered as the stepping stones, which if successfully achieved, will contribute to the final environmental outcomes desired. Intermediate outcomes are what regulators sometimes miss while licensing, inspecting or taking legal actions. In 2009, Trinity College Dublin produced a research report on the Environmental performance of industries in Ireland16 licensed under the requirements of the Integrated Pollution and Prevention Control (IPPC) Directive. The results indicated that the aims of the IPPC Directive (referred to above) have been achieved by the prevention and reduction of emissions. EPA licensing of industry has resulted in a significant reduction in emissions to the environment. In particular, a comparison of emissions from the pharmaceutical/chemical sector between 1995 and 2007 has demonstrated an approximate reduction of 68% in emissions.17 Considering the increase of activities in the sector (as reflected by the general increase in industrial/economic activities as a whole), this decrease is even more significant and corresponds to a total emissions avoidance of 76%. The results are presented in the Figure 5 below: Figure 5: Total Pollution Avoidance in the Pharmachemical Sector 1995-2007
In 2009, the Office of Environmental Enforcement published the report, Focus on Environmental Enforcement in Ireland, covering the years of 2006 2008. This is the second such report from the EPAs Office of Environmental Enforcement. It provides an assessment of Irelands enforcement of environmental standards and highlights the challenges the country faces in fully complying with European requirements for the protection its air and water. The report highlighted compliance for each sector of activities licensed under IPPC legislation. Continued progress in achieving these
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outcomes will be presented in future Focus on Environmental Enforcement in Ireland reports published every three years, with the next report covering the years 2009 2011. 5 DRINKING WATER SUPPLIES
In March 2007, the EPA and in particular the Office of Environmental Enforcement were given new regulatory powers18 to supervise approximately 1,000 public water supplies operated by Local Authorities. Each water authority is required to achieve the water quality standards specified in the regulation and notify the EPA of any failure to comply. The EPA can issue legally binding Directions and prosecute for failure to comply with a Direction. The challenge again for the Office of Environmental Enforcement was how to effectively regulate so many supplies of varying quality against 50 parameters set out in law. The answer again was to focus resources on the areas where the risks are highest. The rationale for developing a risk based approach to enforcement was to focus on quality parameters for drinking water that had a direct impact on health. In particular the focus was on supplies that: ad elevated levels of E. Coli. H Had inadequate barriers to cryptosporidium. Had elevated levels of chemical parameters. Had poor operational control at the treatment plant as identified by monitoring results or Office of Environmental Enforcement Audits. Were identified by Health Authorities as requiring improvement. In the Office of Environmental Enforcement 2009 report on Drinking Water Quality in Ireland,19 the locations of 339 public water supplies were identified as requiring examination from source to consumer to determine whether replacements or upgrades were needed. This list represented 36% of the national supply. This list of 339 water supplies became known as the Remedial Action List. When the Office of Environmental Enforcement published20 its Remedial Action List in 2008 for ranking water supplies, it requested local authorities to assess the risk associated with the 339 drinking water supplies on the Remedial Action List. The results of that assessment indicated that 63% of the supplies needed to be upgraded to eliminate the risk to health associated with the supply. The resulting media interest was significant and contributed to the development of increased political will to tackle the problem. The intermediate outcomes are considerable: 4 2% of supplies identified by the Office of Environmental Enforcement have undertaken the necessary remedial actions. Remedial works complete in 172 supplies serving over 500,000 persons in two years. All supplies the Remedial Action List have been prioritised for funding with 274 million allocated.
N umber of public water supplies in which E-coli was detected have more than halved between 2004 and 2008. Remedial actions have been identified and timeframes agreed for 84% of supplies on the Remedial Action List. To achieve a final outcome, each water authority has to fully characterise all the risks associated with a supply. To do this the EPA has adopted the World Health Organisations approach for safe and secure drinking water supply. The approach requires that health or environmental risk is assessed for each drinking water supply source, as well as its treatment plant and the distribution network so that these risks can then be managed. The first water safety plan was completed by Galway City Council in 2010.21 Continued progress towards this final environmental outcome will be charted in the annual drinking water report published by the EPA. 6 URBAN WASTEWATER TREATMENT
In March 2007, the EPA was given new regulatory powers22 to licence approximately 1,000 urban wastewater treatment facilities operated by Local Authorities. The primary purpose of the regulation is to prevent and reduce the pollution of waters by waste water discharges. The regulations give effect to the EU Dangerous Substances Directive23, which specifies emission standards for discharges of dangerous substances and requires them to be subjected to licensing. The licensing authorisation process was introduced in phases commencing in December 2007. Approximately 200 licences have been issued to-date. To deal with the challenge of regulating over 1,000 facilities, the Office of Environmental Enforcement has developed a Dynamic Risk Enforcement Assessment Methodology to harness the significant environmental data at its disposal to determine, in a dynamic way, how the environment is receptive to the changes in performance of a waste water treatment system. This risk based approach methodology allows us to prioritise waste water discharge agglomerations on the basis of risk to the environment and to allocate resources with a view to improve compliance and water quality. Similar to the methodology developed for industrial facilities, the Dynamic Risk Enforcement Assessment Methodology allocates risk classification to waste water agglomerations on the basis of five environmental attributes: 1. Level of Treatment (Complexity). 2. Observed Impacts. 3. Possible Impact (Location). 4. Discharge Compliance (Emissions). 5. Enforcement Record. The rationale for developing this risk based approach to enforcement was to focus on discharges that were having an observed or possible impact on the environment. The observed impact attribute is determined from live and up-to-date field data on environmental quality collected by EPA staff and captured on EPA databases. Consequently, regular changes and updates in environmental data automatically
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update the risk category, i.e. it is dynamic. The inclusion of observed impacts attribute in the Dynamic Risk Enforcement Assessment Methodology provides a mechanism for tracking intermediate outcomes in the receiving water environment. For example, changes in the ecological status of the receiving water, measured as water quality (Q) values for rivers and bathing water quality values, will be tracked with consequent changes to the enforcement category recorded as an intermediate outcome. The possible Impact attribute reflects the risk associated with the distance to sensitive receptors such as beaches or drinking water supplies. A screen shot of the resulting assessment is given in Figure 6. There are 4 bands of risk with Red signifying the highest Risk and Green signifying the lowest risk. Each square when clicked will expand to show all the data that makes up the risk score for the facility including ortho-photography for the site and ordinance survey mapping. Figure 6: Screen Shot of Dynamic Risk Enforcement Assessment Methodology
In addition to tracking measurable intermediate outcomes, the Dynamic Risk Enforcement Assessment Methodology allows the Office of Environmental Enforcement to manage: enforcement prioritisation; resource allocation; permitting prioritisation; incentivised compliance; prioritise infrastructural investment.
The final outcome to be achieved will be when zero wastewater treatment plants are suspected of causing pollution, as charted in the bi-annual Urban Wastewater Report24 published by the EPA.
7 CONCLUSIONS Ireland faces difficult challenges in meeting many of its environmental protection obligations under European legislation in the face of reduced resources available to regulators.It must avoid the major financial penalties that may be imposed by the European Court of Justice for non-compliance with European law. There are challenging commitments in the following areas: P reventing deterioration of water quality, under the Water Framework Directive. Ensuring that drinking water is clean and wholesome and that it achieves a high standard of quality. Ensuring that municipal waste water is treated and disposed of in accordance with National and European legislation and that it does not lead to water pollution. Continued enforcement of these regulatory requirements will continue to be a significant driver in the delivery of positive environmental outcomes. However the use of risk based approaches to enforcement, better regulation and a drive for positive intermediate outcomes for the environment will be important tools to achieve the final environmental outcomes desired in a transparent manner. 8
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REFERENCES
The EPA website is available at www.epa.ie. Ireland Environmental Protection Agency, The Provision and Supply of Drinking water 2008/2009, (2011), available at http://www.epa.ie/downloads/pubs/water/ drinking/name,30629,en.html. 3 Ireland Environmental Protection Agency, Office of Environmental Enforcement, The Urban Waste Water Discharges in Ireland for Population Equivalents Greater than 500 Persons - A Report for the Years 2006 and 2007, (2009), available at http://www.epa. ie/downloads/pubs/water/wastewater/name,26384,en.html. 4 Ireland Environmental Protection Agency, The Scope of the E-PRTR, available at http://www.epa.ie/whatwedo/enforce/lic/prtr/prtrscope/ (last visited on 14 March 2011). 5 Council Recommendation 2001/331/EC, Providing for Minimum Criteria for Environmental Inspections in the Member States, 2001 O.J. (L 118) 41. 6 Ireland Environmental Protection Agency , Office of Environmental Enforcement, Environmental Enforcement Network Newsletter, (July 2010), available at http://www. epa.ie/downloads/pubs/enforcement/name,30211,en.html. 7 UK National Audit Office, Regulatory quality: How regulators are implementing the Hampton Vision, (2008), available at http://www.nao.org.uk/publications/0708/ hampton_regulatory_quality.aspx. 8 Sparrow, Malcolm K. The Regulatory Craft: Controlling Risks, Solving Problems, and Managing Compliance (2000). 9 Ireland Environmental Protection Agency, Office of Environmental Enforcement, Office of Environmental Enforcement, Enforcement Policy, (2003), available at http:// www.epa.ie/downloads/pubs/enforcement/name,24423,en.html.

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Hampton, P., Reducing administrative burdens: Effective Inspection and Enforcement, (March 2005), available at http://www.hm-treasury.gov.uk/d/bud05hamptonv1. pdf. 11 Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control 1996 OJ (L 257/26). 12 The Environmental Protection Agency Act, (1992), available at http://www.epa.ie/ downloads/legislation/licensing/name,14037,en.html. 13 As of November 2010. 14 The European Pollutant release and transfer Register website is at http://prtr. ec.europa.eu/. 15 Ireland Environmental Protection Agency, The Environmental Protection Agency Licensing and Enforcement Charging Policy, (2011), available at http://www.epa.ie/ downloads/pubs/enforcement/name,30673,en.html. 16 Styles, David, OLeary, Eileen and. Jones Michael B., Measuring the environmental performance of IPPC industry I & II (2009). This was EPA sponsored research. 17 Various emissions are combined on the basis of environmental impact to produce a single index of environmental performance know an Environmental Emissions Index (EEI). 18 Irish Government S.I. 278 of 2007 European Communities (Drinking Water) (No. 2) Regulations 2007 (Iris Oifigiil 15th June, 2007). 19 Ireland Environmental Protection Agency Office of Environmental Enforcement, The Provision and Quality of Drinking Water in Ireland - A Report for the Years 20072008, (2009), available at http://www.epa.ie/downloads/pubs/water/drinking/ name,25872,en.html. 20 Ireland Environmental Protection Agency, EPA Remedial Action List (RAL) for Drinking Water Supplies, (02 April 2008), available at http://www.epa.ie/news/ pr/2008/april/name,24320,en.html. 21 Ireland Environmental Protection Agency Office of Environmental Enforcement, Guidance for Local Authorities on Developing Drinking Water Safety Plans (2009), available at http://www.epa.ie/downloads/advice/water/drinkingwater/name,30173,en.html. 22 Irish Government S.I. No. 684 of 2007 Waste Water Discharge (Authorisation) Regulations 2007 (Iris Oifigiil 9th October, 2007). 23 Directive 2006/11/EC of the European Parliament and of the Council of 15 February 2006 on pollution caused by certain dangerous substances discharged into the aquatic environment of the community. 2006 O.J. (L64/52). 24 Ireland Environmental Protection Agency Office of Environmental Enforcement, Urban Waste Water Discharges in Ireland for Population Equivalents Greater than 500 Persons - A Report for the Years 2006 and 2007, (2009), available at http://www.epa.ie/ downloads/pubs/water/wastewater/name,26384,en.html.
INTERNAL COMMUNICATION STRATEGIES FOR BUILDING CAPACITY AMONG NON- INSPECTORS MARSHALL, DR. MATTHEW 1 and PINK, GRANT
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Senior Policy/Project Officer, Compliance and Enforcement Branch, Department of Sustainability, Environment, Water, Population and Communities (DSEWPaC); GPO Box 787, Canberra, Australian Capital Territory, 2601, Australia, Matthew.Marshall@environment.gov.au. Director, Compliance and Enforcement Branch, Department of Sustainability, Environment, Water, Population and Communities (DSEWPaC); GPO Box 787, Canberra, Australian Capital Territory, 2601, Australia, Grant.Pink@environment.gov.au.
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The authors acknowledge the assistance of the following in the preparation of this paper: Ms Rose Webb, Assistant Secretary, and Mr Michael Tonge, Senior Policy and Projects Officer, Compliance and Enforcement Branch, DSEWPaC. SUMMARY The Australian Federal Governments premier environmental agency is undergoing a cultural transition from a department with primarily policy and program functions to adding extensive regulatory powers and responsibilities. To effect this transition and in addressing the highest area of risk, namely relating to the proper use of coercive powers and the adequate skill level of those using these powers, the department recently completed a training, certification, appointment and audit process for inspectorate personnel. The remaining risk in the department relates to a growing gap at the interface between policy and program non-inspectorate staff and staff engaged in inspectorate-type functions. The inspectorate staff includes managers and officers of policy areas with regulatory compliance responsibilities. The risk here is more diffuse and less immediately harmful than that for staff engaged in high level enforcement roles, and the policy officers and managers have their own remit and authority. As a result hierarchical, top-down prescriptive measures are considered neither fully justified nor appropriately effective. To reduce this risk, the Department is engaging in a targeted communicative process that encourages policy and program areas to participate in environmental regulation. The communicative process employs horizontal and informal continuous professional development through awareness sessions, internal training opportunities and networks, especially discipline-specific Communities of Practice.
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1 INTRODUCTION 1.1 The Department
The Department of Sustainability, Environment, Water, Population and Communities (DSEWPaC hereafter the Department) is the Australian Governments (federal level) premier environmental regulator. The Department is undergoing an evolution to add to its policy and program administration the role of regulatory and enforcement agency. This inclusion of regulatory functions arises from the specialised, sometimes mixed nature of environmental law (which includes programmatic, licensing, injunctive, prohibitive, penalty, restorative and tortious elements) and the unsuitability of an environmental legislative regime in terms of fitting it into the remit of established enforcement agencies such as the police.2 1.2 The Departments Regulatory Transition
The Department is still developing experience in the processes and requirements for enacting a legislative regime. Historically, the Department has engaged in policy and programmatic efforts in the environmental field and a large part of the Departments efforts remain dedicated to that form of governance. The development of the Department to add environmental enforcement regulatory responsibilities has involved identifying and overcoming certain problem areas.3 The Department remains a hybrid of commodity-specific activity, programs, incentives, policy, legislative review, monitoring, audit, compliance and enforcement. In addition, while it covers the area of the environment, the Departments current remit also includes other matters, such as water licensing and controls, economic sustainability and population management.4 This mixed remit is, in part, what distinguishes the Department from other federal regulatory bodies5 and some agencies in other national jurisdictions such as the USA Environment Protection Agency (EPA) and the Dutch VROM-Inspectorate. Appendix 1: Departmental Compliance and Enforcement Framework is a pictorial representation of the Departments new regulatory compliance model including; its compliance and enforcement spectrum, broad division of functions and the corresponding staff skill-sets. 1.3 Inspectors, Partial Inspectors and Non-Inspectors
Altering the character of a department to include regulatory responsibility brings certain risks. Not carrying out necessary alterations and still attempting to engage in compliance and enforcement activity (or failing to engage in compliance and enforcement activity) attaches even more risk. This issue of risk is a key problematic for a Regulator.6
Part of the assessment of risk within the Department involved classifying staff according to function. In the case of the Department with a range of roles as Regulator, policy developer and program manager, it became clear that in the compliance and enforcement context there were roughly three types of staff. The internal classification system for those staff is tied directly to the authorisation and training scheme instituted to minimise the first and highest stage of risk. However, it is worthwhile generalising the terminology regarding a non-traditional Regulators staff. Simply put, the staff engaged in enforcement activities can be termed inspectors. The staff engaged in compliance activity can be termed partial inspectors. Staff that manage inspectors and partial inspectors, staff with certain legislated and/ or delegated decision-making functions, staff in monitoring and audit roles, staff engaged in outreach and educational programs, as well as staff with organisational support roles can all be classified as non-inspectors. See Table 1. Table 1: Departmental Staff Typology and Training
Non-Inspectors Policy and Programs For Direct supervisors of Compliance and Enforcement Staff: Recommended diploma level certification in investigations or statutory compliance For Senior Management of Compliance and Enforcement Staff: Recommended advanced diploma level qualifications in investigations or statutory compliance * Certificate IV, Diploma or Advanced Diploma as appropriate. Partial Inspectors Compliance Commodity specialists with compliance responsibilities (sometimes in addition to monitoring and audit, education and outreach or policy and program duties): Mandatory qualifications* in investigations or statutory compliance Inspectors Enforcement Enforcement officers with authority to exercise coercive powers: Mandatory qualifications* in investigations or statutory compliance
REGULATORY STAFF STRUCTURES AND SUPPORT 2.1 Authorisation and Training
The outcome of the risk assessment process was a determination in 2006 by the Departments Compliance and Enforcement Committee endorsing the division of authorised officers7 into tiers, with each tier having prerequisite certified training
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requirements.8 These authorised officers are a combination of inspectors and partial inspectors. The tiering system established tier 1 officers as those authorised to exercise coercive evidence and information-gathering powers (inspectors), and tier 2 officers as authorised to conduct compliance and monitoring activities, such as desktop assessments, inspections with consent or by other statutory but noncoercive means9 (partial inspectors). All inspectors (tier 1) and partial inspectors (tier 2) in the Department are sufficiently certifiably qualified. A high level of qualification and expertise among inspectors and partial inspectors is a necessary aspect of environmental regulation and was clearly identified as an area to be addressed in the risk assessment process, as it has been in other national jurisdictions.10 Attached to the risk management and tiering system was a mapping of generic compliance and enforcement activity conducted by the Department. This mapping illustrates the differences between enforcement and compliance activity and therefore between inspectors and non-inspectors. It also shows areas of activity that can be and are conducted by non-inspectors, as well as high-end areas of enforcement that require reference to and the involvement of general law enforcement agencies, or police services. See Table 2. Table 2: Departmental Functions
Non-Inspectors Policy and Programs Policy area officers: Administration Staff management Program management and implementation Legislative review Policy development and dissemination Compliance and enforcement mapping and planning Certain statutorily appointed decisionmaking functions Partial Inspectors Tier 2 Compliance Policy area officers: Regulatory compliance functions including conducting desktop and field monitoring and audit activity, data collation Limited evidence gathering and specific case noncoercive investigation Some policy and program work Inspectors Tier 1 Enforcement Enforcement officers: Use of high-end coercive investigative and evidencegathering powers Very limited policy and program work such as: developing guidelines, training others in regulatory enforcement aspects, and providing advice on legislative review
2.2
Decentralised Compliance and Enforcement Responsibility
The Departments flagship piece of legislation covering the majority of environmental offences at the federal level is the Environmental Protection and
Biodiversity Conservation Act (1999). The branch of the Department tasked with enforcement of the Act is the Compliance and Enforcement Branch .The branch developed along traditional lines as a dedicated environmental regulatory agency within the rest of the Department, which otherwise remained decentralised in terms of regulating its other (currently) fourteen pieces of legislation. The Departmental inspectorate (tier 1) forms a single organisational body within the Compliance and Enforcement Bureau in the form of the Environment Investigations Unit. Environment Investigations Unit inspectors predominantly come from other law enforcement agencies such as the Australian Federal Police and the Australian Customs and Border Protection Service. Other regulatory activity is diffused through the Departmental policy and program areas and constitutes a varying proportion of their overall workload. Their personnel have a degree of expertise regarding the legislation, sectors, commodities and stakeholders they deal with. Partial inspectors (tier 2) are members of policy areas. The majority of partial inspectors are policy area non-inspector personnel elevated to inspector-ship, having undertaken the relevant certified training. They are therefore adept both in their commodities and in regulatory compliance. The remaining noninspector personnel are predominantly managers with regulatory decision making responsibilities at various levels of seriousness and impact. 2.3 Policy Areas
The completion of the inspector and partial inspector risk minimisation process highlighted the key remaining area of risk among staff: non-inspectors in the form of policy area officers and managers with compliance and enforcement responsibility. Non-inspectors with operational roles, including monitoring and audit functions, have subsequent to the authorised officer risk management process mostly undertaken training and become partial inspectors. Remaining non-inspectorate staff include administrative support staff (with no direct or only minimal impact on compliance and enforcement activity) and managers with various degrees of decision-making power. The risk in the case of non-inspectorate managers was determined as not just about the non-inspectors having or not having sufficient capacity, but that the capacity could not be readily determined and assessed. Equally there were few structures in place to increase and disseminate what capacity may have been there. The risk level was such that capacity building had to extend beyond inspectors and partial inspectors to all staff engaged in compliance and enforcement activity, even indirect activity.11 Just as non-inspectors constituted a newly recognised area of risk, a new approach became necessary. The procedures relating to inspectors and partial inspectors were
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mandated and put in place through the exercise of vertical, hierarchical, referred power (effectively an enforcement approach). Policy area personnel, managers and decision makers with regulatory responsibility required (and still require) a targeted influential communicative approach of a more horizontal cast (ensuring compliance). This communicative approach has moved from specific, unilateral interactions (which have proven very successful) to the current phase of multilateral, non-hierarchical and informal networks that encourage involvement from non-inspectors in terms of membership, participation, interaction, communication, presentations and training. 3 FORMER COMMUNICATIONS 3.1 Risk Managing Managers
Managers and higher level decision-makers manifest an evident area of risk. They direct the activities of tier 2 partial inspectors, they oversee strategic compliance and enforcement operations, and they make decisions that impact upon the regulated community. In risk assessment terms, they stand at the intersection point between regulatory and programmatic activities, policy and operation, and rising frequency of harm and rising quantum of harm. They are, however, not enforcers. Their experience, knowledge and expertise lie in other specialised knowledge fields scientific, economic, legal, policy, programmatic, financial and, of course, managerial rather than regulatory compliance. This means that one of the first steps in compliance and enforcement capacity building among managers is to effectively communicate to them the principles, operation and purposes of a regulatory regime. It is this educational aspect to the risk management process that has required a different approach than that taken with the inspectors and partial inspectors. While managers can simply be instructed to follow procedures, they may not possess the background of understanding necessary to make such instructions reasonable. A number of approaches were therefore developed and employed to ensure increased understanding. New approaches are still being implemented in this ongoing evolutionary process. 3.2 Ongoing Approaches Taken
The communications options employed in relation to all staff (inspectors, partial inspectors and non-inspectors) have undergone a continuing process of review and development. Furthermore, the overall strategy has been one where communication options emerge from each other or support each other across a spectrum of formats and operations. Attached to this are efforts to target options to suit specific requirements, while maintaining enough general applicability so that resources are not over-extended through over-provision of services. The options that have been operating since the tiering of authorised officers and that continue to target noninspectors include: certified training, training workshops, participation in formal and vertical networks, and legislation and commodity specific awareness sessions.
3.3
Certified Training
Certified training for the managers of inspectors and partial inspectors is strongly recommended within the departmental Authorised Officer Procedural Guideline. A recent audit of departmental regulatory compliance training indicates that only a low number of policy area managers have pursued this training, though there is no data collected on the reasons for that. Anecdotally, however, some policy area managers have expressed the sense that regulatory compliance comprises only a small part of their overall workload, while others have stated that they themselves lack capacity. In relation to non-inspectorate staff in operational, non-management roles, those approaching compliance activities continue to pursue and achieve certified training, thereby maintaining skill levels as partial inspectors. 3.4 Training Workshops
Training workshops are organised by and for inspectors and partial inspectors. These workshops that predominantly have an operational emphasis take place over 1 or 2 days, have been well attended and are strongly recommended by those who attend. The effectiveness and popularity of the workshops seems high, but currently not too many have been run. The existing interest level in training workshops, however, means that there are already plans to arrange for more of them. This is a communications option that shows great promise and opportunities, but with the current emphasis on meeting the technical requirements of inspectors and partial inspectors, this is not currently the best suited approach for non-inspectors. Nevertheless, participation in and observation of these workshops by non-inspectors has been seen to increase understanding and encourage participation. 3.5 Formal, Vertical Networks
Formal, vertical networks are sustained through official formal governance structures conducted through regularly scheduled meetings. They allow for lineof-sight12 from the executive of the Department to the operational level. Within the Department there are two such organisational entities: (1) Compliance Executive Committee and (2) Compliance Operators Network. The first is the prime Department-wide decision-making forum. The second is the forum for line areas to report on ongoing regulatory compliance activity. These structures operate in concert to ensure that Department-wide instructions are referred down the internal hierarchy and data on implementation is provided up. As such they are capacity use, not capacity building forums. This limits their appropriateness for educational communications. They do disseminate information. They track compliance and enforcement measures and departmental standards, procedures and requirements. But for their necessary running, a high level of competent understanding is assumed in such forums. Attached to that are questions of status among managers that lead to a maximisation of achievements and strengths with an attendant minimisation of knowledge shortfalls and uncertainties.13
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The two forums are necessary and highly effective policy, operational and governance institutions. But with such an emphasis there isnt scope for the additional task of building regulatory capacity among managers. However, it is expected that as the Department progresses in its efforts, the CON will lose some of its verticality and become a more open and equal forum for compliance and enforcement managers. 3.6 Awareness Sessions
Legislation and commodity specific awareness sessions have proven extremely popular and effective in terms of increasing knowledge of and commitment to regulatory compliance especially when targeting partial inspectors and noninspectors alike (they are usually presented to mixed audiences of partial inspectors and non-inspectors). They share many features in common with training workshops, including general format and level of involvement, but are differentiated by the fact that they are not delivered by external service providers. These sessions are instead internally designed, developed and delivered by a combination of inspectorate staff and non-inspectors who communicate Department and Government-wide compliance and enforcement policies, expectations and legal requirements in the context of the policy areas specific legislation. The sessions, ranging from half to whole day in duration, establish commonalities within the Department, convey information and provide an opportunity for discussion of issues. They also have the effect of normalising and demystifying regulatory compliance for those without previous experience in the field. There are two minor shortfalls in the operation of the awareness sessions. Economies of scale make them less efficient than sessions that could be provided to broader audiences. A great deal of the awareness sessions content is replicable one session to another, but their development and delivery still generally constitute a high use of resources. The second issue is that the awareness sessions operate best in relation to staff with very low levels of understanding in relation to compliance and enforcement. As capacity has grown across the Department in the regulatory area, there has been a greater scope for a more inclusive and participatory approach. 4 COMMUNICATION FACILITATION 4.1 An Emerging Approach
Approaches to building capacity are built on an assessment of the strengths and weaknesses that have presented themselves in the formats already employed. In particular awareness sessions have shown strong effectiveness in relation to capacity building among non-inspectors but the issue remains appropriate use of resources and a desire to increase policy area participation. At the same time formal networks have a membership comprised of the targeted managerial non-inspectors and clear lines for the disbursement of information, but their structure is inappropriate for capacity building. The new approach
developed merged aspects of the network and of the awareness sessions that would ameliorate challenges in the structure of each while giving rise to a distinct type of communicative forum in the form of informal and horizontal networks. 4.2 Informal, Horizontal Networks
The introduction of informal, horizontal networks to the Departments operations and interactions entails establishing topic-based forums attended by those with relevant interest, regardless of level or placement within the organisation. Two such forums have been established: C ompliance and Enforcement Practitioners Network Communities of Practice: o Monitoring and Audit o Compliance o Investigations The networks do not operate in isolation to each other. Instead the Compliance and Enforcement Practitioners Network acts as an umbrella network for the various Communities of Practice, while organising its own non-specialised seminars and presentations. These networks, like the training workshops, to which they have been attached, have already shown great promise. There is the sense of a critical mass being built that recommends these network structures as appropriate for promoting the character of the Department as a regulator. The networks provide impetus, a site for the running of training workshops and provide data on areas of need regarding internal guidelines and other written advice. They act as sites of communication facilitation. 5 COMMUNITIES OF PRACTICE 5.1 Development The Communities of Practice have emerged from a number of intersecting sources such as the academic and applied work on the concept of the community as developed by the Harvard Business School14 and the increased use of networks in environmental enforcement.15 The practical application of the Communities of Practice, as stated, emerged as a direct product of the targeted line area commodity and legislation specific communication activities. But the awareness sessions and workshops remained only one approach to a concern that could be addressed more holistically. Additionally, as capacity has grown, the unilateral educational approach does not necessarily reflect the ongoing development and improvement in knowledge and skills.16 5.2 Application and Purpose
The Communities of Practice are in place to address the increased capability within the policy areas and to allow for a sharing of that capability. The nature of the
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Communities of Practice is such that contributions are drawn from the participation of the membership. If a skill, ability, new understanding or approach exists within the membership of the Communities of Practice it can be disseminated through the Communities of Practice. Also, the Communities of Practice are more efficient knowledge disbursement forums as regards general operational, policy and procedural information as they can be accessed simultaneously by policy areas. 5.3 Future Usage
The Communities of Practice within the Department have the capacity to operate as network hubs, facilitating other forms of network interaction and activity. This is a critically useful function as it allows for the continuation of other types of network, access and communication without an appreciable drain on resources.17 The early success of the Communities of Practice engagement and activities indicates a further development of the Communities of Practice collectively and through the organising principle of the Compliance and Enforcement Practitioners Network as a central site for educational, capacity building communications. This will make for the best use of resources. It will also, and this is perhaps more important, inculcate a sense of belonging and ownership among line areas, effecting real cultural change. 6 COORDINATED INTERNAL STRUCTURES AND FORUMS
6.1 Networked Networks With the introduction of the Communities of Practice, the Department now has a range of forums and structures in place that cover the wide diversity of internal organisational need. The formal networks cover delegation, direction and accountability, while the informal networks address capacity, ongoing development and knowledge dissemination both to those with inspectorate roles and those with non-inspectorate compliance and enforcement roles. Given that there are intersections between various levels of internal operations, as well as between practice and policy; given that there are staff who perform both inspectorate and non-inspectorate functions in certain instances, and; given that compliance and enforcement seems a tangential matter for some sectors of the Department: the organisational structures and forums do not act in isolation one to the other. There are linkages across operational forums in terms of oversight and reportage and there are linkages across the informal forums in terms of organisation and facilitation across generic and specific kinds of content. Furthermore, there are linkages between informal and formal networks. The formal networks receive reports on the operation of the informal networks and the informal networks are used as portals for dispatching Department-wide regulatory policy and decisions. In short, the combined networks inter-animate one another, while also internally generating cohesion, purpose and direction for their future success and operation. However, this would not have proved so successful unless a holistic approach had been taken to questions of capacity building. See Table 3.
Table 3: Departmental Compliance & Enforcement Structures

CEC Compliance Executive Committee (very formal) Sets strategic direction for Departmental compliance and enforcement effort Membership: Branch heads (cf. Table 1) by position CON Compliance Operators Network (formal) Operationalises CEC-endorsed compliance and enforcement effort Membership: Section heads (cf. Table 1) by position CEPN Compliance and Enforcement Practitioners Network (informal) Provides enabling support for C&E practitioners (includes oversight of CoPs) Membership: All compliance and enforcement personnel by function CoP Communities of Practice (very informal) Practitioners determine wants/needs within their CoP Membership: voluntarily by interest/identification
7 CONCLUSION Capacity building among an inspectorate is not the same as capacity building among non-inspectorate staff and managers. Certain understandings and attitudes cannot be assumed, so new planning needs to be undertaken, new problems identified and new solutions and tactics developed. Risk sits with managers and decision-makers, as it does with inspectors, so these are regulatory sectors that should be addressed. In the Australian national experience, horizontal and non-hierarchical governance structures centred on Communities of Practice are, even in the very early stages, proving extremely useful and indicate success in the future. 8 REFERENCES See White at pp.32-53 for an identification of the problems with environmental law and its enforcement as related to processes of social construction. 2. Pink has reported on the experience of developing the Department as a Regulator, including the problems confronted. Cf. Pink at p.230. 3. Couturier points out that altering the character and operation of any department is a difficult process. Cf. Couturier at p.152. 4. In Australia these bodies are identified together under the Heads of Commonwealth Operational Law Enforcement Agencies (HOCOLEA) and comprise the first rank enforcement agencies. The HOCOLEA member agencies are: Attorney-Generals Department, Australian Competition and Consumer Commission, Australian Crime Commission, Australian Border Protection and Customs Service, Australian Federal Police, Australian Prudential Regulatory Authority, Australian Securities
1.
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and Investment Commission, Australian Taxation Office, Australian Transactions Reports and Analysis Centre (AUSTRAC), Department of Immigration and Citizenship, CrimTrac, Commonwealth Director of Public Prosecutions. 5. Cf. Woodward at p.258. 6. Pink identifies these as inspectors, wardens or rangers under Commonwealth legislation. Cf. Pink at p.231. 7. Pink provides a brief history of this process at p.227. 8. Section 48 of the Water Efficiency Labelling and Standards Act (2005) allows inspectors to enter the public parts of a premises and then inspect and purchase items as though a member of the public. Until asked, an inspector is not bound to reveal that he or she is an inspector. This type of section is referred to colloquially as a secret shopper provision. 9. Cf. Van der Schraaf at p.243. 10. The OECD recommends a broad view be taken towards capacity in relation to public management systems. For a comprehensive list of areas to consider cf. Bularga at 13. 11. Line-of-sight is colloquial, short-hand terminology that refers to clear reportage and oversight mechanisms. It doesnt necessarily relate to operations of power by the executive in relation to policy areas, but it ensures the adequate transfer of information and knowledge so that such power operations are conducted on as fully informed a basis as possible. 12. The question of functionality and appropriateness for role in formal, vertical forums is addressed by Wenger, McDermott and Snyder at p.11. 13. Wenger E. and Snyder, W., Communities of Practice: the Organisational Frontier in Harvard Business Review January-February 2000, pp.139-145. 14. Cf. Bularga at 53. 15. For an assessment of the difficulties in establishing learning platforms for groups cf. Bularga at 64. 16. This is always an area of concern: cf. Bularga and Michalak at p.15. 9 BIBLIOGRAPHY Bularga, A et al (compilers), 2009, Assessing Environmental Management Capacity: Towards a Common Reference Framework. OECD Publishing. Paris, France. Bularga, A and Michalak, K (managers), 2005, Funding Environmental Compliance Assurance. OECD Publishing. Paris, France. Couturier, D, Prioritised Staff Skills for an Environmental Enforcement Training Program in INECE 8th International Conference on Environmental Compliance and Enforcement Proceedings, 5-11 April 2008. Cameron May and INECE Secretariat. Notting Hill, London: pp 147-154. Pink, G, Building Regulatory Capacity in Environmental Agencies: Through Tailored Training in INECE 8th International Conference on Environmental Compliance and Enforcement Proceedings, 5-11 April 2008. Cameron May and INECE Secretariat. Notting Hill, London: pp 225-234.
Van der Schraaf, A, Capacity Building in the Dutch Inspectorate in INECE 8th International Conference on Environmental Compliance and Enforcement Proceedings, 5-11 April 2008. Cameron May and INECE Secretariat. Notting Hill, London: pp 243-252. Wenger, E, McDermott, R, Snyder, W, 2002, Cultivating Communities of Practice. Harvard Business Press. Boston, Massachusetts. White, R, 2008, Crimes Against Nature: Environmental Criminology and Ecological Justice. Willan Publishing. Cullompton, Devon. Woodward, J. More Cost effective Environmental Regulation with Less Red Tape in INECE 8th International Conference on Environmental Compliance and Enforcement Proceedings, 5-11 April 2008. Cameron May and INECE Secretariat. Notting Hill, London: pp 253-262.
Appendix 1: Departmental C&E Framework
Appendix 1: Departmental C&E Framework

Regulatory, Legal & Reputation Risks
(Risk)
(Phases of C&E spectrum) alleged non- Investigate non-compliance C&E outcomes
Encourage compliance Monitor compliance Respond to compliance
(Activities & who does them) Inspectors (Tier 1)
Non inspectors
Partial Inspectors (Tier 2)
Education Outreach
Medium level
&
M C C Compliance Management Committee (CMC)
Compliance Activities
Enforcement
Combination: Line area / in-house investigators / Police
Low level
Line area
Line area
(Skill set)
Appropriate tailored training acceptable Cert IV desirable Cert IV mandatory Supervisors should have Diploma or Associate Dip
Commodity expertise Representation skills
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OUTCOME INDICATORS OF ENVIRONMENTAL COMPLIANCE ASSURANCE IN OECD COUNTRIES: CHALLENGES AND AVENUES FOR FURTHER DEVELOPMENT MAZUR, EUGENE Environment Directorate, Organisation for Economic Co-operation and Development; 2, rue Andr-Pascal, 75775 Paris Cedex 16, France, eugene.mazur@ oecd.org SUMMARY This article summarises the findings of an OECD study which analysed the experience of ten OECD countries in the design and implementation of quantitative indicators of results (outcomes) of environmental enforcement authorities efforts to ensure compliance with pollution prevention and control regulations. The study considered six types of intermediate and final outcome performance measures, including compliance rates and indicators of improved environmental management practices and reduced risk. Based on the OECD criteria for the evaluation of environmental indicators measurability, analytical soundness and policy relevance it identified key challenges for developing and using specific categories of compliance assurance outcome indicators and suggested several ways to improve their effectiveness. The review of a toolbox of existing outcome indicators and the analysis of their respective strengths and weaknesses suggests that it is not possible to identify a universal optimal set of indicators. The functionality of individual outcome measures ultimately depends on their purpose (e.g. internal performance assessment or external accountability) and suitability for joint analysis with the enforcement authoritys resource (input) and activity (output) indicators. 1 INTRODUCTION The 2009-2010 OECD study on outcome performance measures of environmental compliance assurance was part of the wider OECD programme on environmental compliance promotion, monitoring and enforcement. The study was conducted in collaboration with the environmental enforcement authorities of Australia, Belgium (Flanders), Canada, the Netherlands, Switzerland, the United Kingdom (England and Wales) and the United States, with additional inputs from Denmark, Ireland and Poland. In this work, the OECD also cooperated closely with the EU Network for the Implementation and Enforcement of Environmental Law (IMPEL), which in 2009 conducted a project to define and test performance indicators for the implementation of the EU Recommendation on Minimum Criteria for Environmental Inspections. The OECD project has also drawn on the partnership with the International Network for Environmental Compliance and Enforcement (INECE), starting with the 2003 joint workshop on environmental compliance and enforcement indicators. In parallel with this work, the OECD developed a guidance document on measuring
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results of environmental regulation and compliance assurance for countries of Eastern Europe, Caucasus and Central Asia (OECD, 2009b). 2 DRIVERS FOR INDICATORS THE DEVELOPMENT OF OUTCOME
Traditionally, the performance and cost-effectiveness of regulatory agencies have been managed and evaluated largely by reference to their level of activity (outputs), rather than to the outcomes they accomplish. Although outputs alone give some sense of enforcement presence and are relatively easy to measure, they do not enable analyses of the extent to which a programme is achieving its goals. Furthermore, outputs alone do not indicate whether compliance is increasing, nor do they address whether environmental conditions have improved. In recent years, environment agencies have increasingly recognised that reliance on input and output indicators alone does not account for qualitative differences in the effectiveness of various enforcement activities. This trend is part of a more general tendency to focus compliance assurance on environmental outcomes (OECD, 2009a). Environmental agencies in a number of countries (the U.S. and the U.K. in particular) have developed useful, and, in some cases, sophisticated outcome indicators. However, enforcement officials from all the studied countries felt that more needed to be done to improve the measurement of results from environmental compliance assurance programmes. The main driving factors for identifying, designing and using more meaningful outcome performance measures include: Meeting legal and policy obligations. In several countries, government agencies are required to report on the outcomes of their activities. For example, under both the Government Performance and Results Act in the U.S. and the Management, Resources and Results Structure in Canada, agency activities to outcome-focused performance indicators in all major programme areas. Internal management needs. Outcome indicators help programme managers learn what is working and what is not working and determine what needs to be done differently (e.g., in terms of targeting of activities) to accomplish the enforcement agencys goals. For many, programme performance is the primary reason to invest in the development and use of outcome measures. They also help the agency to implement the principles of better regulation by achieving a more effective, efficient and accountable regulatory system. This is an important driver in the U.K., for example, where better regulation is a major cross-sectoral policy initiative, as well as in Canada, where the federal government put in place a Cabinet Directive on Streamlining Regulation in 2007. Budget justification. Funding bodies, parliaments in the first place, want to know what the taxpayers are getting for their money, particularly in the current period of budget deficits. Outcome performance indicators help explain what results will be
purchased with a given amount of resources. Even indicators about basic outputs, such as the number of inspections conducted, can be helpful in justifying the need for dollars and personnel. Budget officers and legislators, however, are demanding more indicators about outcomes or results. This is one manifestation of a worldwide trend toward performance-based management, in which government resources are allocated toward producing preferred outcomes and results. Increasingly, environmental enforcement authorities feel the need to present quantified compliance assurance improvements and environmental benefits of programmes in budget deliberations. Demand for enhanced external accountability. Environmental enforcement authorities need to demonstrate the public value of their work. This includes the need not only to convince the public and policy makers that enforcement is conducted in a proper and professional manner, but also that enforcement activities result in a higher degree of compliance and, eventually, in a better environmental quality. Since there are multiple target audiences, it is often necessary to use multiple measures to provide a full accounting of programme performance. 3 PRINCIPAL TYPES OF EXISTING OUTCOME INDICATORS OF C OMPLIANCE ASSURANCE
Results of compliance assurance activities can be measured with intermediate and final outcome indicators. Intermediate outcome indicators characterise changes in compliance knowledge and behaviour of the regulated community. The study identified the following types of intermediate outcome performance measures in relation to compliance assurance activities (with some examples): C ompliance rates: ratio between the number of inspections that did not identify violations and the total number of inspections (Pennsylvania, U.S.); number of facilities with documented non-compliance divided by the total number of known regulated facilities (Massachusetts, U.S.). Measures of recidivism and duration of non-compliance: level of recidivism following criminal conviction (U.S.); percentage of facilities returning to compliance after receiving a compliance order (Belgium). Pollution release indicators: mass of pollutants reduced, treated or eliminated through enforcement actions (U.S.); pollutant load indicator (Australia); emissions of priority air pollutants (U.K.); number of serious pollution incidents (U.K.). Indicators of improved environmental management practices and reduced risk: number of businesses with high risk scores (U.K.); number of regulated entities changing environmental behaviour as a result of enforcement actions (U.S.); dollars invested in improved environmental performance as a result of enforcement actions (U.S.). Measures of effectiveness of individual compliance assurance instruments: percentage of entities receiving direct compliance assistance reporting that they increased understanding of environmental requirements (U.S.).
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Final outcomes are improvements of environmental conditions as an ultimate result of compliance assurance activities. Examples of final outcome indicators include improved ambient water or air quality, or reduced soil contamination. Final outcome indicators are widely used as environmental quality monitoring parameters, but it is often very difficult to associate them with specific compliance and enforcement actions. An example of an environmental quality indicator linked to compliance assurance activities is number of bathing waters in compliance with requirements used by the Environment Agency in England and Wales. Intermediate outcome indicators are widely regarded as a more practical performance management tool. The first reason for this is that most intermediate outcomes can be directly attributed to the activities of the compliance assurance programme. Secondly, intermediate outcomes almost always manifest themselves more quickly than final outcomes which often focus on changes in large-scale environmental conditions. Therefore, they lend themselves better to management response and reporting. As a result of the analysis of the current use of outcome indicators of compliance assurance, three approaches to the design of performance assessments have been identified: Performance assessment focused on the effectiveness of compliance assurance instruments across regulations and environmental problems. This approach is used in large part by the U.S. Environmental Protection Agency, although some outcome indicators have recently been split by sector (air, water, waste) in relation to specific statutes. The advantage of this approach lies in the environmental enforcement authoritys ability to evaluate the effectiveness of individual tools. Such indicators can be used, for example, to measure the improved compliance knowledge of the regulated community as a result of compliance assistance or the effectiveness of inspections in identifying violations and triggering complying actions. However, the excessive aggregation of the measures across environmental problems (e.g., pounds of pollution reduced) detaches them from final environmental outcomes. Performance assessment focused on specific environmental problems reflecting the environmental enforcement authoritys strategic priorities. This is the predominant approach in the U.K., Denmark and Ireland, where outcome indicators are used to track high-risk industrial incidents, emissions of priority pollutants (including greenhouse gases), and waste management offences, among others. The pros and cons of this approach are the reverse of those of the first: strong ties to environmental outcomes (which facilitates strategic planning), but a lower operational management value. Multi-tier performance assessment focused on pollutant-specific results of regulatory actions at the lower level and on the overall programme effectiveness at the higher level. This approach, used by Environment Canada to design its system of outcome indicators, combines the strengths of the first two. It first identifies reductions of individual regulated pollutants as a result of compliance assurance activities, and then aggregates them into a composite measure characterising the environmental
impact of these reductions. The complexity of this approach makes it difficult to assess the effectiveness of individual compliance assurance instruments. 4 CHALLENGES OF MEASURING COMPLIANCE ASSURANCE OUTCOMES
In its work on environmental indicators, the OECD distinguishes several criteria for their evaluation, among which the following are most relevant for compliance assurance measures (OECD, 2003): M easurability indicators must be available at a reasonable cost/benefit ratio and be updated at regular intervals in accordance with reliable procedures. Analytical soundness indicators must be well founded in technical and scientific terms. Policy relevance measures must be useful, simple, representative, easy to interpret, show trends over time, and provide a basis for international comparisons. 4.1 Measurability
Resource limitations for data collection and management arguably present the greatest barrier in developing outcome indicators. Significant resources are required to cover the effort, time and expenses necessary to measure and analyse compliance and enforcement-related indicators. While pollution releases and environmental quality are routinely monitored and reported, data for compliance rates and compliance assistance indicators is much more resource-intensive. Typically, no specific budget allocations are made for staff or funding of performance data acquisition and management. Rather, the information is routinely collected as part of the overall compliance assurance programme. Data entry can be tedious and is often considered less important than doing the compliance and enforcement work that generates the data. With limited (and often shrinking) budgets, data collection management suffers as resources are focused on critical programme needs. As a result, the data on outcomes of compliance assurance activities may be incomplete. In countries where environmental enforcement authorities are in the process of developing outcome-oriented performance indicator systems, their introduction may imply a significant shift in the organisational culture from a focus on activities to achieving environmental results. The implementation of new outcome indicators also requires support and engagement from higher managers, especially when it comes to adding new data-related tasks to the agencys ongoing activities. A reasonable balance must be achieved between the benefits of performance management and costs to the principal functions of an enforcement authority (compliance assistance, monitoring and non-compliance response). Nationallevel environmental enforcement authorities in small countries or sub-national environmental enforcement authorities may consider (in the absence of other policy pressures) that the investment of time and money in the design and analysis of outcome indicators is excessively high and prefer qualitative performance
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assessment in a more direct and personal manner. However, at least a few compliance assurance outcome indicators are likely to prove necessary for external accountability purposes. 4.2 Analytical Soundness
The review of the existing compliance assurance outcome indicators has revealed four principal analytical challenges in their design: Scope definition. Taking account of the relative seriousness of violations of environmental requirements and of the relative regulatory importance of the violated requirements from inflicting major environmental damage to so-called paperwork offences is a key issue in defining and interpreting compliance rates and measures of recidivism and chronic non-compliance. One way to address it is to limit the indicators scope to serious offences (as it is done, for example, in the U.K.). A similar problem arises in weighing the relative impact of pollutants in composite indicators of pollution reduction. Several methods to account for pollutant toxicity have been proposed in the U.S., Canada and Australia. Focusing on individual priority substances, as practised in England and Wales, may be the most analytically sound way of handling this issue, but doing so can overlook the cumulative or synergistic effects of pollutants. Another scope (scale) issue concerns defining the universe or population of concern. The larger and more heterogeneous the universe or population, the fewer the characteristics the facilities will share and the greater the likelihood of exogenous, or confounding, variables, playing a role in the performance of the facilities. Statistical validity. No environmental enforcement authority is currently using sampling approaches to develop representative, statistically valid compliance rates, measures of recidivism or chronic non-compliance (except on a pilot basis). For an indicator to be statistically valid, a census or near-census population must be monitored (80% or more of a regulated population) or a sample of inspected facilities must randomly assigned. However, randomly inspecting facilities to generate statistically valid compliance rates contradicts the concept and current trend of risk-based targeting of compliance monitoring. Reliance on self-reporting by regulated entities only partly addresses this issue due to the limited extent of self-reporting requirements and the need to verify self-reported data. Observation periods. One of the basic predicaments of outcome indicators of compliance assurance is that the results of compliance and enforcement activities, particularly their environmental impact, are not immediate and may take years to emerge, whereas outcome reporting and performance management is usually done annually. This factor affects measures such as pollution reduction following enforcement actions or money spent for environmental improvements, where pollution release or environmental quality outcomes often cannot be related to
the activity counts in the same year. Longer measurement periods may partly compensate this problem, but may lead to other analytical distortions such as averaging of the behaviour of the regulated community over extended time periods and increasing the risk of confounding factors influencing the outcomes. Link between activities and outcomes. The uncertainty associated with demonstrating a causal relationship between the programme outputs (compliance assistance, inspections, enforcement actions) and the outcomes affects indicators of improved environmental management practices, pollution release reductions and, especially, improvements of ambient environmental quality. Although there are ongoing studies in the U.K. and the U.S. on how to account for the influence of external factors, the cause-and-effect link in each case must be credible enough to persuade policy makers and the public of the decisive role of the environmental enforcement authority in bringing about the positive outcomes. The U.K. Review of Enforcement in Environmental Regulation (Defra, 2006) concluded that the linkage between data on incidents and data on enforcement actions was not adequate to allow the effectiveness of enforcement to be comprehensively assessed. Each of these analytical challenges complicates the development of meaningful outcome indicators and calls for their more focused use, as further discussed in the concluding section of this paper. 4.3 Policy Relevance
The interpretation of outcome indicators of compliance assurance is fairly difficult for a number of reasons. Although some outcome indicators are in high demand from various stakeholders because of the simplicity of their message (so-called bumper-sticker numbers such as compliance rates, reductions of pollution releases or environmental quality improvements), the problems of analytical soundness of their design described in the previous section diminish their utility. More generally, the analysis of outcome indicators (and of any performance measure) is only meaningful when it encompasses the entire range of performance measures, output indicators in particular, as well as a broader context. For example, a reduction in the number of non-compliance incidents may be interpreted to mean better behaviour of the regulated community, poor detection by the environmental enforcement authority, or a change in the regulators targeting scheme. The correct interpretation can only be made after comparing improvements in compliance behaviour with the magnitude and nature of the enforcement presence. It is also useful to consider certain outcome measures (e.g., pollution release indicators) in conjunction with economic indicators to check for decoupling between the economic activity and environmental impacts. The need for broader analysis than the face value of outcome indicators is also reflected in the fact that the analysis of trends in compliance assurance outcomes is not always possible. Time fluctuations in such outcomes as pollution reduction or monetary value of environmental improvements reflect results of specific
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enforcement actions which, by their nature, vary from year to year depending on the size of enforcement cases and the strategic focus of the compliance and enforcement programme. For example, some of the largest pollution reductions obtained by the U.S. EPA have historically resulted from a small number of very large cases addressing specific sector priorities such as large petroleum refineries and coal-fired utilities. As these sectors are addressed and new sectors comprised of relatively smaller facilities are targeted, corresponding outcomes would be expected to decrease. The trends analysis is more feasible and informative when it is targeted at specific sectors and is conducted jointly for outcome, output and input indicators. Figure 1 showing the dynamics of non-compliance among Danish wastewater treatment plants over a 17-year period is an example of a persuasive illustration of the impact of compliance assurance on the behaviour of regulated entities. Figure 1: Compliance of Public Wastewater Treatment Plants, Denmark
Source: Danish EPA, 2010
Another major challenge of the existing outcome indicators is their inability to adequately measure prevention of pollution and prevention of non-compliance across a segment of the regulated community. By focusing on the effects of compliance assurance actions on the inspected or sanctioned firm itself (so-called specific deterrence), the currently used indicators do not reflect the impact of these actions on environmental performance of other facilities (general deterrence). According to a series of studies ordered by the U.S. EPA to address this issue (Shimshak, 2007),
a statistical model can be used to analyse a statistical correlation between variables of compliance assurance activities and environmental performance, measured in terms of the actual emission or discharge of regulated pollutants relative to permit limits. This statistical analysis would be applied to one industry sector at a time. Results of deterrence measurement may help an environmental enforcement authority identify regulatory instruments within a sector that may induce particularly significant changes in environmental performance, or sectors where compliance monitoring and enforcement have a particularly significant deterrence effect. This could greatly contribute to increasing the efficiency of compliance assurance programmes. Deterrence measurement may also help an environmental enforcement authority establish a link between compliance monitoring and enforcement and measured environmental outcomes. However, as in many other cases of enforcement-related academic research, statistical requirements and data limitations make calculating deterrence indicators, usable in performance measurement, quite challenging (if not impossible) in practice. Finally, the variety of existing compliance assurance outcome indicators complicates their comparison across different sub-national jurisdictions in countries with decentralised systems of environmental governance and especially between different countries. This is mostly due to differences in the design and measurement methodologies of specific indicators as well as differences in the underlying regulatory requirements. The divergence in definitions of basic terms (e.g., installation in the U.K. and a facility in the U.S.) and specific compliance and enforcement instruments (e.g., what constitutes inspections and enforcement actions) makes international comparisons extremely difficult. 5 CONCLUSIONS AND RECOMMENDATIONS
Given the analytical challenges associated with the design of compliance assurance outcome indicators, it is impossible to identify a best practice approach or a set of flawless indicators. However, the review and analysis of a toolbox of outcome indicators resulted in an evaluation of their strengths and weaknesses which underpin several key principles for their implementation: O utcome indicators should only be developed after a clear management need has been identified and a plan defined for how and by whom they would be used. It is best to systematically integrate performance measures early into the process of design of new policies and regulations. Outcome indicators should, to the extent possible, be associated with timespecific targets in order to integrate the strategic planning and performance management processes. Targeting outcome indicators on concrete regulatory priorities (pollutants, sectors, etc.) improves their analytical soundness but reduces comparability from one environmental enforcement authority to another (nationally or internationally), as different agencies have different priorities. The dynamic (trends) analysis of outcome indicators, especially when conducted in conjunction with the environmental enforcement authorities resource (input) and activity (output) indicators, substantially increases their policy relevance. It
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is also advisable to consider outcome measures of compliance assurance in the context of more general environmental and economic indicators. Compliance assurance outcome indicators, as any other performance measures, need to be regularly reviewed and revised to maintain their objectivity (as agency staff tend to adjust their work to maximise positive indicators) and relevance to the changing regulatory programme. Based on these principles, a number of considerations may be advisable to incorporate in the design of new, or the improvement of existing, measures. The evaluation of the key categories of indicators according to the OECD criteria and recommendations for maximising their effectiveness are summarised in Table 1. So far, environmental enforcement authorities in very few OECD countries have developed and used outcome indicators of environmental compliance assurance. As the experience of their implementation broadens, further studies, workshops and other collaborative efforts would be valuable to facilitate the exchange of good practices in this area. In particular, the following issues merit deeper analysis: I mproving analytical soundness of outcome indicators, including reliable correlations between compliance assurance activities and final environmental outcomes. Classifying and measuring of non-compliance based on the degree of its environmental impact. Measuring the preventive impact of compliance assurance activities avoidance of pollution releases (e.g., by using baseline scenarios) and general deterrence of non-compliance. Using composite indices and weighting to characterise compliance and pollution reduction outcomes. Optimising the size of an environmental enforcement authoritys suite of outcome performance measures from the cost efficiency perspective. Feasibility of developing a limited number of comparable outcome measures to track compliance with similar environmental regulatory requirements in different sub-national jurisdictions (in decentralised systems of environmental governance) or internationally (for example, in the context of European Union Directives).
Table 1: Summary of Conclusions and Recommendations for Key Types of Outcome Indicators
Analytical Soundness Low: Most existing compliance rates are not statistically representative because of inspection targeting. They do not distinguish between violations with different environmental impact. Low: Because of inspection targeting, many initial or repeated violations may not be detected. Medium: Aggregation of pollutants without regard for their toxicity weakens link to environmental problems; need to prove a link to enforcement or compliance assistance. Risk of misreporting by regulated community. High: These indicators demonstrate tangible environmental results if used in conjunction with economic activity indicators. Medium: Recidivism rates are often insufficient to describe recalcitrant non-compliance: low recidivism may hide chronic non-compliance. Medium: Useful in programme targeting but not as a measure of behaviour of the entire regulated community. However, may be politically appealing due to the simplicity of their message. Policy Relevance Recommendations Develop compliance rates by seriousness of violation or category of non-compliance depending on degree of its environmental impact. Use sector-specific rates.
Indicator category
Measurability
Compliance rates
Medium: Based on inspection data or selfreporting. Requires census, near census, or random inspections for statistical validity.
Indicators of recidivism and duration of noncompliance
Medium: Based on targeted inspection data. Chronic noncompliance may be hard to detect.
Use combination of rates of recidivism and chronic noncompliance; focus on selected serious offences.
Pollution release indicators
High: Based on expected enforcement response outcomes or routine emission reporting and incident notification.
Concentrate on releases of priority pollutants and releases following enforcement actions. Number of pollution incidents is a good proxy indicator.
Indicator category Low: Hard to define improved practices; EMS certification or other management improvements may not be related to regulatory pressure. Monetary value of complying actions only presumes eventually improved performance. Low: Difficult to show a causal link between many forms of assistance and environmental outcomes. Medium: Useful in assessing concrete tools and initiatives but is rarely tied to environmental problems. Could show effectiveness of noncompliance prevention. Medium: A powerful evidence of results if a link to compliance assurance programmes can be demonstrated. Medium: Improved corporate environmental management does not necessarily mean better compliance. The value of investment may fluctuate depending on large enforcement cases.
Measurability
Analytical Soundness
Policy Relevance
Recommendations These indicators may be more useful if applied to selected segments of the regulated community where it is easier to define improved practices and to demonstrate their link to compliance assurance activities.
Indicators of improved environmental management practices and reduced risk
Low: In most cases, no established reporting mechanism.
Measures of effectiveness of compliance assistance
Low: Data collection requires user surveys that raise issue of reporting bias. On-site observations are very expensive. Medium: Difficult to show a causal link to compliance assurance activities.
Targeted use for specific instruments and segments of the regulated community.
Environmental quality measures
High: Based on routine environmental quality monitoring.
Use only those indicators that relate to targeted, problemoriented efforts; most relevant to priority improvements in local environmental quality.
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BIBLIOGRAPHY
Danish EPA (2010), Measuring and Monitoring Outcomes of Environmental Inspections in Denmark, presentation by Henning I. Hansen at the OECD expert workshop Outcome Performance Measures of Environmental Compliance Assurance, 18-19 March 2010, Paris. DCMR (2009), The Environment in the Greater Rotterdam Region: 2009, Rijnmond Environmental Protection Agency (DCMR), Schiedam, the Netherlands. DECC (2009), Annual Report 2007-08, Department of Environment and Climate Change, New South Wales, Sydney, Australia. Defra (2006), Review of Enforcement in Environmental Regulation Report of Conclusions, Department for Environment, Food and Rural Affairs, London. Environment Agency (2007), Creating a Better Place Translating Strategy into Action: Environment Agency Corporate Plan 2008-11, Environment Agency, Bristol, U.K. Environment Agency (2009), Creating a Better Place: Environment Agency Corporate Strategy 2010 to 2015, Draft for Consultation, Environment Agency, Bristol, U.K. Environment Canada (2009), Immediate Outcome Indicators Information Determination Process, Guidance Document, Environmental and Wildlife Enforcement Indicators Initiative, Enforcement Branch, Environment Canada, Montreal. Flemish Administration (2008), Environmental Enforcement Report 2007, Environmental Inspectorate Division, Department of Environment, Nature and Energy, Flemish Administration, Brussels. IEC (2010), Compliance Indexing Project, report prepared for U.S. EPA, Industrial Economics, Inc., Cambridge, Massachusetts. INECE (2008), Performance Measurement Guidance for Compliance and Enforcement Practitioners, Second Edition, International Network for Environmental Compliance and Enforcement, Washington D.C. OECD (2002), Aggregated Environmental Indices: Review of Aggregation Methodologies in Use, ENV/EPOC/SE(2001)2/FINAL, Organisation for Economic Co-operation and Development, Paris. OECD (2003), OECD Environmental Indicators: Development, Measurement and Use, Reference Paper, Organisation for Economic Co-operation and Development, Paris, www.oecd.org/dataoecd/7/47/24993546.pdf.
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OECD (2004), Measuring What Matters: Proceedings from the INECE-OECD Workshop on Environmental Compliance and Enforcement Indicators, 3-4 November 2003, Organisation for Economic Co-operation and Development, Paris, www.inece.org/indicators/workshop.html. OECD (2009a), Ensuring Environmental Compliance: Trends and Good Practices, Organisation for Economic Co-operation and Development, Paris. OECD (2009b), Measuring Results of Environmental Regulation and Compliance Assurance: Guidance for Countries of Eastern Europe, Caucasus and Central Asia, Organisation for Economic Co-operation and Development, Paris. Shimshak, Jay P. (2007), Monitoring, Enforcement and Environmental Compliance: Understanding Specific and General Deterrence, State-of-Science White Paper, prepared for the U.S. EPA, Washington D.C., www.epa.gov/oecaerth/resources/reports/ compliance/research/index.html. Styles, David et al. (2009), Measuring the Environmental Performance of IPPC Industry: Devising a Quantitative Science-based and Policy-weighted Environmental Emissions Index, Environmental Science and Policy, 12 (2009), 226-242. U.S. EPA (2002), Guide for Measuring Compliance Assistance Outcomes, Revised June 2002, U.S. Environmental Protection Agency, Washington D.C. U.S. EPA (2006), Expanding the Use of Outcome Measurement for EPAs Office of Enforcement and Compliance Assurance, Report to OMB, US Environmental Protection Agency, Washington D.C. U.S. EPA (2008), Re-evaluation of the Use of Recidivism Rate Measures for EPAs Civil Enforcement Program, Report to OMB, U.S. Environmental Protection Agency, Washington D.C.
A FRAMEWORK FOR RISK MANAGING THE APPOINTMENT OF OFFICERS AUTHORIZED TO EXERCISE COERCIVE POWERS: ONE FEDERAL DEPARTMENTS APPROACH TONGE, MICHAEL Senior Policy Officer, Regulatory Compliance Policy and Practice Section, Australian Government Department of Sustainability, Environment, Water, Population and Communities, GPO Box 787, Canberra, Australian Capital Territory 2601, michael. tonge@environment.gov.au
Protection of individual liberty is at the heart of Australian democracy. Where there exist powers that have the capacity to interfere with individual liberty, they should be accompanied by checks and balances sufficient to engender public confidence that those powers are being exercised with integrity.1
SUMMARY The Australian Government Department of Sustainability, Environment, Water, Population and Communities (the Department) administers a variety of environmental laws that provide for the appointment of officers (authorised officers) for monitoring, compliance and enforcement purposes. Authorised officers are typically granted a broad range of enforcement powers, including powers to acquire information, powers of seizure, and powers of arrest (coercive powers). The department recognises that the ability to exercise coercive powers against members of the public incurs a number of risks. These risks include the potential misuse of powers due to inadequate training of compliance and enforcement staff, insufficient organisational systems or poor management oversight. To mitigate these risks the department developed a principles-based risk management framework that overlays the legal appointment mechanism for authorised officers. 1 THE DEPARTMENT AND ITS OPERATING CONTEXT
The Australian Government Department of Sustainability, Environment, Water, Population and Communities2 is the Australian Governments (Federal level) premier environmental regulator.3 A relatively new and emerging regulator, it has in the order of 2000 staff and covers a large geographic spread across Australia and its external territories. While much of the department is concentrated in the nations capital, Canberra, it also has compliance staff in the more distant locations such as the Northern Territory and the Australian Antarctic Territory. The Department administers 15 disparate pieces of environmental legislation containing offences and associated compliance and enforcement provisions. This legislation covers numerous commodities, industries and sectors, and primarily
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comprises domestic environmental legislation giving effect to international agreements to which Australia is a signatory. A list of this legislation is shown in Appendix 1. These statutes typically provide for the appointment of authorised officers (inspectors, wardens and rangers) who are duly authorised to exercise certain powers in the course of performing monitoring, compliance, investigation or enforcement activities under the legislation or subordinate regulations. The scope of the powers conferred can be very broad, and may include powers to compel the provision of information; powers to board; powers to force entry via a warrant; powers of search and seizure; and powers of arrest. Authorised officers appointed under departmental legislation are comprised of departmental employees, members of other Federal co-regulators,4 and State or Territory (provincial) officers drawn from partner environmental agencies. Prior to January 2009 each compliance and enforcement area of the Department (of which there were in excess of 15) appointed its authorised officers according to its own discrete processes, imperatives and commodity nuances. While the appointments met the legal requirements under the relevant legislation there was no consistency of training standards, centralised quality assurance or single tracking mechanism. 2 THE IMPETUS FOR TIGHTER CONTROLS
The ability to exercise coercive powers against members of the public can incur a number of risks, including but not limited to: t he potential misuse or mishandling of powers as a result of inadequate training or inadequate supervision of authorised officers; insufficient organisational systems to support integrity in the application of coercive powers and demonstrate accountability in their use; insufficient visibility by senior management, in relation to the use of powers by the Department; inconsistency of approach across the Department, in relation to appointment and management of authorised officers, in ensuring powers are exercised in a way that is appropriate for the specific roles and levels of expertise of individual officers. These risks may, in turn, lead to an agencys regulatory efforts being compromised and the nugatory expenditure of compliance resources; the erosion of public confidence in the agency and the regulatory system; and in extreme cases, even tortious liability. They are exacerbated by the fact that, in the environmental regulatory context, there is a need to appoint as authorised officers a significant number of staff whose backgrounds are in predominantly in commodity expertise rather than law enforcement.5
The risks inherent in the exercise of statutory powers of a coercive nature have been highlighted in several high-profile Australian Government reports, several of which resulted from reviews into agency practices prompted by complaints and media scrutiny.6 One such report, the Palmer Report, was central to coalescing the Departments resolve to develop more rigorous processes for the management of authorised officers, as it made the following observations in relation to the exercise of coercive powers:
Main Finding 6 A strong government policy calls for strong executive leadership, together with careful management, to ensure that enforcement and application of the policy are justifiable and equitable. Such a policy places on the accountable department an onerous responsibility for having in operation systems and processes designed to ensure integrity of application and demonstrable accountability and for engendering public confidence in the policys operation...7 Main Finding 9 [Departmental] officers are authorised to exercise exceptional, even extraordinary powers. That they should be permitted and expected to do so without adequate training, without proper management and oversight, and with no genuine quality assurance and constraints on the exercise of these powers is of concern.8
THE DEPARTMENTS SOLUTION
3.1 Development of a Risk Management Framework In response to these risks, in 2008, the department undertook a project to develop a framework to address the appointment of authorised officers on a whole-ofdepartment basis. This resulted in the departmental Authorised Officer Procedural Guidelines (the Guidelines), which were approved for implementation in December 2008 and took effect during 2009. The Guidelines provide a risk management framework that overlays the legal appointment mechanism for authorised officers, and were developed in response to directives from the Departments Compliance Executive Committee, which recognised the need for robustness and consistency in the departmental approach to authorised officer management. In particular, it was recognised that: a uthorised officers must be appointed in writing and have high-level management oversight within the department; authorised officers must have suitable training to perform their respective roles; variance in the capacity of individual authorised officers, their supervisors and associated case management decisions should be minimised across the department in the interests of consistency; accordingly, a whole-of-department risk management framework should be applied to authorised officer management.
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The Guidelines provide a principles-based framework which assists the Department in ensuring that: a uthorised officers appointed under its legislation have the appropriate skills, knowledge and experience to perform their roles; standards and processes in relation to authorised officers are applied consistently; authorisations are tracked at departmental level to ensure validity and accountability; the level of the appointing officer is commensurate with the powers conferred and the geographic locus of the officers appointed. 3.2 How the Framework Operates
For risk management purposes the Guidelines establish a framework consisting of three discrete levels or tiers of authorised officers. Each tier is defined in terms of the powers exercised, the minimum acceptable training standard, the level of appointing officer, and the supervisory mechanisms put in place to manage the associated risks. The three tiers are summarised below. Tier 1 (High Risk) Tier 1 authorised officers are inspectors or wardens with an enforcement focus and who are conferred with the full suite of coercive powers. Risks are mitigated by specifying that: T ier 1 authorised officers are those likely to be required to exercise coercive powers on a routine basis due to their enforcement role; the minimum qualification level is a Certificate IV (under the Australian Quality Training Framework), or a recognised equivalent;9 there is to be independent vetting of candidates skills, knowledge and experience prior to sign-off by the appointing officer; there is a single departmental appointing officer position (which is at the Deputy Secretary level second only to the head the Department); vetting and tracking of the appointment is done by a central departmental entity. Examples of Tier 1 authorised officers include dedicated departmental investigators and state fisheries enforcement officers authorised under departmental legislation. Tier 2 (Risk reduced to Medium) Tier 2 authorised officers are inspectors or wardens with some form of compliance responsibility, but who generally do not have enforcement as their primary focus. They are typically commodity experts whose expertise may require them to participate in enforcement activities, but they are not expected to have the skill set, experience or recent proficiency to play a lead role in the exercise of high-end coercive powers.
Risk is reduced through the use detailed guidelines or directions relating to the exercise of powers, depending on the relevant statutory provisions. Alternatively, powers may be conferred selectively where provided for in the legislation.10 Tier 2 appointments are further characterised by the following: T he minimum qualification level is formal training commensurate with the officers role, the nature of the powers conferred, and frequency of use (i.e. something less than Certificate IV vocational training standard may be accepted if appropriate). There is independent vetting of candidates skills, knowledge and experience prior to sign-off by the appointing officer; however, the power to vet may be devolved. The power to appoint is devolved by one level from that for Tier 1 (to the Division head). The appointment is recorded and tracked by a central departmental entity. Examples of Tier 2 authorised officers include science-focused compliance staff; archaeologists, marine experts, and experts on fuels, hazardous wastes, synthetic greenhouse gases and other commodities for which the department has regulatory responsibilities. Tier 3 (Low Risk) Tier 3 authorised officers are park rangers, who are conferred with low-level statutory powers such that it is appropriate for their appointment and oversight to be decentralised. They are required to have undergone appropriate tailored training for their role and vetting, appointment and tracking is done at the local level. 3.3 Key Pillars of the Risk Management Framework
3.3.1 Legislation Takes Primacy In addition to the tiered system introduced as part of the overall risk management framework, a key pillar is the relationship between the requirements of the Guidelines as a one-size fits all process and the legislation under which authorised officers are appointed. As each statute has discrete requirements and nuances relating to the appointment of authorised officers, the Guidelines were implemented with recognition that they are principles-based only, and, where they are inconsistent with particular statutory requirements, the provisions of the legislation and any associated instruments of delegation issued by the executive branch of Government.
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3.3.2 Powers Conferred Cannot Be Unlawfully Fettered While the risk of appointing Tier 2 authorised officers is mitigated by using directions or guidelines to shape how conferred powers may be used, it is important to recognise that, unless the legislation permits powers to be conferred selectively, newly appointed authorised officer are granted the full suite of powers and are therefore empowered at law to exercise those powers in their own right and according to their own discretion. This principle is respected through the appropriate use of directions or guidelines, such that: D irections (which must be complied with) are issued upon appointment, where the legislation permits the appointing officer to do so. Where the issue of directions is not provided for in the legislation, statute specific guidelines (which should be complied with but are not mandatory) are issued instead. The directions or guidelines for Tier 2 authorised officers are typically one to two pages in length; are signed by the appointing officer and issued upon appointment; and are addressed to each appointee in person. They typically require that certain high-risk coercive powers (such as warrants, search and seizure or boarding without consent) are not exercised unless the officer is under the supervision of a Tier 1 authorised officer. 3.3.3 Officers can move between tiers The Guidelines also recognise that authorised officers may, at various times in their employment, have cause to move between tiers. This may range from the need to re-appoint a Tier 3 ranger as a Tier 2 inspector or warden; or the suitability of a Tier 2 authorised officer, with further training, experience and a change of role, to become Tier 1. Additionally, the Guidelines contain provisions that provide for the downgrading of an authorised officers Tier if, for example, a need for remedial training is identified as part of performance management. These provisions are subject to the normal Government natural justice and procedural fairness principles. 4 UTILITY AND LESSONS LEARNED
Having been in operation for just over two years and having been subjected to an audit at the two year anniversary, the Guidelines have been found to have utility in terms of: a chieving consistency and ensuring compliance with broader Government requirements (e.g. training standards for investigators11);
t he independent vetting of Tier 1 and Tier 2 authorised officer candidates acting as a filter for candidates whose proposed tier of appointment was either marginal for their skill sets, experience and role, or totally inappropriate. The utility of the Guidelines have been to some degree validated externally, through their adoption by at least one environmental enforcement agency at the State (provincial) level of Government. The Guidelines were found by that agency to have utility in both the risk management framework they prescribe, and the ease with which they were adapted to that agencys legislation and operating context. Notwithstanding the clear utility of the Guidelines and the framework they embody, a number of lessons have been learned as a result of implementation. 4.1 Use as Part of a Broader System The authorised officer appointment and management system encapsulated in the guidelines is but one part of a broader system of supervisory mechanisms, and should be viewed as part of a broader scheme of legislation, policies, procedures and practices that help to shape the behaviour of authorised officers. Complementary mechanisms include: p rivacy and administrative laws; external (to the Department) Australian Government requirements such as the Australian Government Investigations Standards; the Departments Compliance and Enforcement Policy; internal management hierarchies and operational supervision; Department and broader Federal Government codes of conduct; internal operational decision making bodies such as the Compliance Management Panel.12 4.2 Implementation Takes Time Due to the numerous pieces of departmental legislation covered by the guidelines and their discrete requirements, each relevant statute had to be researched to ensure the framework could be applied and to what extent. In some cases, the delegated power to appoint authorised officers had to be re-aligned with the Guidelines, and this could only be achieved as part of the normal periodic cycle of delegation review. Furthermore, the development of statute-specific Tier 2 directions or guidelines had to be undertaken in consultation with the relevant departmental section responsible for administering that legislation. This took some months, and for certain statutes the process remains ongoing, especially for those where enforcement is predominantly undertaken by external partner agencies through associated service agreements (e.g. annual business agreements).
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4.3 Need for Adequate Resourcing The introduction of department-wide framework such as this requires a project management approach and therefore a central entity to manage it. In addition to managing the projects overall implementation, this central entity has to be responsible for ongoing management of the Guidelines and mentoring the various parts of the department through their introduction. For convenience, this same entity was given responsibility for vetting proposed appointment documentation, ensuring the requisite follow-up steps are undertaken (such as the issuing of appropriate identity cards), and the tracking of new appointments on a central register. They also undertake periodic audits of authorised officers as required by the Guidelines. . 5 CONCLUSION The Australian Government Department of Sustainability, Environment, Water, Population and Communities administers a variety of environmental laws that provide for the appointment of authorised officers, some of which confer a broad range of coercive enforcement powers. To mitigate the risks inherent in conferring these powers the department developed internal Authorised Officer Procedural Guidelines which provide a risk management framework that overlays the legal appointment mechanism for authorised officers. This assists the Department in ensuring that: a uthorised officers appointed under its legislation have the appropriate skills, knowledge and experience to perform their roles; standards and processes in relation to authorised officers are applied consistently; authorisations are tracked at departmental level to ensure validity and accountability; the level of the appointing officer is commensurate with the powers conferred and the geographic locus of the officers appointed. 6 REFERENCES Palmer, MJ., Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau: Report, Commonwealth of Australia, 2005 (Palmer Report), opening paragraph, page i. 2 Prior to September 2010 the department was known as the Department of the Environment, Water, Heritage and the Arts. 3 Pink, G., Building Regulatory Capacity in Environmental Agencies: Through Tailored Training, 2008, 8th International Conference on Environmental Compliance and Enforcement Conference Proceedings, 5-11 April 2008, Cape Town, South Africa, p.225. 4 Such as members of the Australian Federal Police, the Australian Customs and Border Protection Service, and the Australian Quarantine and Inspection Service. 5 Such as environmental scientists, archaeologists, marine experts, and experts on fuels, hazardous wastes and synthetic greenhouse gases. 6 These include the Palmer Report; Administrative Review Council Report No 48: The Coercive Information Gathering Powers of Government Agencies, 2008; and
1
Commonwealth Ombudsman Report No 15/2010: Australian Customs and Border Protection Service Administration of Coercive Powers in Passenger Processing (December 2010). 7 Palmer Report, page ix. 8 Ibid. 9 The Certificate IV in Government (Investigations) is the nationally recognised and accredited vocational training qualification for officers who undertake formal investigations. 10 There are currently no departmental statutes which allow for powers to be conferred selectively; however, there are several pieces of draft legislation which may facilitate such as approach in the future. 11 The requisite training standard for investigators has been clearly prescribed in other Australian Government policies, however, the definition of investigators has been open to interpretation. The Authorised Officer Procedural Guidelines clarify the Departments interpretation and provide consistency in this area. 12 The Compliance Management Panel is an internal governance mechanism that provides senior executiveoversight for critical decisions on compliance and enforcement matters. The committee meets routinely on a weekly basis or as required for time-critical matters. 7 BIBLIOGRAPHY Administrative Review Council Report No 48: The Coercive Information Gathering Powers of Government Agencies, Commonwealth of Australia, 2008. Commonwealth Ombudsman Report No 15/2010: Australian Customs and Border Protection Service Administration of Coercive Powers in Passenger Processing, Commonwealth of Australia, 2010. Available at: http://www.ombudsman. gov.au/files/customs_admin_of_coercive_powers_in_passenger_processing_ report_15_2010.pdf. Australian Government, Australian Government Department of the Environment, Water, Heritage and the Arts Annual Report 2009-2010. Available at: http://www.environment. gov.au/about/publications/annual-report/09-10/corporate.html#cross-cutting. Australian Government Department of Sustainability, Environment, Water, Population and Communities, Authorised Officer Procedural Guidelines, Commonwealth of Australia, 2009 (not publicly available). Palmer, MJ., Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau: Report, Commonwealth of Australia, 2005. Available at http://www.immi.gov. au/media/publications/pdf/palmer-report.pdf. Pink, G., Building Regulatory Capacity in Environmental Agencies: Through Tailored Training, 2008, 8th International Conference on Environmental Compliance and Enforcement Conference Proceedings, 5-11 April 2008, Cape Town, South Africa.
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APPENDIX 1: DEPARTMENTAL INTERNATIONAL OBLIGATIONS

Legislation Environment Protection (Sea Dumping) Act 1981 Typical Commodities/ Activities Disposal at sea.
LEGISLATION
AND
RELEVANT
International Obligation 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972 (London Protocol)
Sea Installations Act 1987 Environment Protection and Biodiversity Conservation Act 1999
Structures in Commonwealth Waters
Activities in Commonwealth National Parks, Commonwealth Marine Reserves or affecting the environment on Commonwealth Land or in Commonwealth waters. Actions having a significant impact on listed protected species, ecological communities, marine species, migratory species, wetlands of international significance, World Heritage Areas, National or Commonwealth Heritage. Nuclear actions.
Activities in Australias Antarctic Territories.
The Convention on Biological Diversity The Convention on the Conservation of Migratory Species of Wild Animals (1979) (Bonn Convention) The Japan-Australia Migratory Bird Agreement (1974) (JAMBA) The China-Australia Migratory Bird Agreement (1986) (CAMBA) Convention on International Trade in Endangered Species (CITES) The Convention on Wetlands of International Importance Especially as Waterfowl Habitat Ramsar (Ramsar Convention) Convention Concerning the Protection of the World Cultural and Natural Heritage (the World Heritage Convention) International Convention for the Regulation of Whaling Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol) Convention on the Conservation of Antarctic Marine Living Resources
Antarctic Marine Living Resources Act 1980 Antarctic Treaty (Environment Protection) Act 1980 Australian Antarctic Territory Act 1954 Heard Island and McDonald Islands Act 1953
Fuel Quality Standards Act 2000 Hazardous Waste (Regulation of Exports and Imports) Act 1989
Motor fuel contamination The export or import of hazardous waste, including electronic waste. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention) Convention to Ban the Importation into Forum Island Countries of Hazardous and Radioactive Wastes and to Control the Transboundary Movement and Management of Hazardous Wastes within the South Pacific Region (Waigani Convention) Vienna Convention for the Protection of the Ozone Layer Montreal Protocol on Substances that Deplete the Ozone Layer Agreement between the Netherlands and Australia concerning old Dutch shipwrecks
Ozone Protection and The importation, handling Synthetic Greenhouse and disposal of ozoneGas Management depleting gases and Act 1989 equipment/appliances containing them. Historic Shipwrecks Act 1976 Activities affecting historic shipwrecks including relics previously obtained from wrecks. The sale and installation of water-using appliances and plumbing fittings. Management of the water resources of the MurrayDarling Basin, and other matters of national interest on water and water information.
Water Efficiency Labelling and Standards Act 2005 Water Act 2007
Based upon Table 2: International Conventions and Treaties, pp 292-293, Australian Government Department of the Environment, Water, Heritage and the Arts Annual Report 20092010.
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TRACK G: DEVELOPING EFFECTIVE ENFORCEMENT NETWORKS

NORTH AMERICAS COMMISSION FOR ENVIRONMENTAL COOPERATION: ONE EXAMPLE OF A SUCCESSFUL REGIONAL NETWORK BROMM, SUSAN E. Director, Office of Federal Activities, and U.S. Co-chair of the Enforcement Working Group of the Commission for Environmental Cooperation, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue N.W., Washington, D.C., 20460 USA bromm.susan@epa.gov SUMMARY Since 1994, Canada, Mexico and the U.S. have been working together to protect the shared North American environment under the auspices of the Commission for Environmental Cooperation (CEC). The Commission was created pursuant to the North American Agreement on Environmental Cooperation which was developed in conjunction with the North American Free Trade Agreement (NAFTA) in response to concerns that failure to harmonize environmental protection among the NAFTA parties would create an uneven playing field, possibly giving one country a competitive advantage over another. The CEC comprises three bodies: the Council, the Joint Public Advisory Committee and the Secretariat. The Council has the ability to appoint working groups of experts in themes of common interest. One of those groups is the Enforcement Working Group (EWG). In the fifteen years since its inception, the Enforcement Working Group, under the CEC, has made great progress in cooperation on environmental enforcement throughout North America. This paper will examine the past successes and future plans for enforcement cooperation among the signatories to the Agreement. 1 HISTORY OF THE COMMISSION FOR ENVIRONMENTAL COOPERATION 1.1 The North American Free Trade Agreement
The North American Free Trade Agreement, negotiated in the late 1980s and early 1990s, created the worlds largest free trade area, eliminating duties and quantitative restrictions on trade among the three signatory nations.1 On September 18, 1992, then U.S. President George H.W. Bush sent formal notice of intent to sign the trade
pact to the U.S. Congress. The United States was on the verge of a Presidential election and there was pressure on candidate Bill Clinton to make known his position on the agreement. By this time, mainstream environmental organizations in the US, including the Sierra Club, World Wildlife Federation and the Environmental Defense Fund had launched a well-organized campaign raising significant concerns about the environmental ramifications of the agreement. Among other concerns, they feared that increased competition spurred by the Agreement would create a race to the bottom, thereby weakening environmental standards in all three countries. On October 4, 1992, candidate Clinton announced his support for the agreement, stating that he would not, if elected, re-open the agreement for further negotiation but would rather negotiate side agreements to address what he saw as deficiencies in the pact. In Clintons opinion, environmental concerns, among others, needed to be addressed in a trilateral side agreement. On December 17, 1992, U.S. President George H. W. Bush, Canadian Prime Minister Brian Mulroney and Mexican President Carlos Salinas ceremonially signed the free trade pact. The agreement then needed to be ratified by each nations legislative or parliamentary branch. After taking office in January 1993, newly elected President Bill Clinton made good on his campaign promise and tasked Mickey Kantor, the new US Trade Representative Ambassador, to commence negotiating the environmental side agreement. Environmental organizations lobbied the Administration and the U.S. Congress to keep the pressure on to develop a robust environmental side agreement, and even filed a lawsuit under the National Environmental Policy Act against the Trade Representative for failure to prepare an environmental impact statement for the trade agreement. The environmental side agreement, called the North American Agreement on Environmental Cooperation, was negotiated, then signed and made public on September 14, 1993. NAFTA and its side agreements went into effect on January 1, 19942 1.2 The North American Agreement on Environmental Cooperation (NAAEC) The NAAEC identifies a number of objectives, including, among others: (a) foster the protection and improvement of the environment in the territories of the Parties for the well-being of present and future generations; (c) increase cooperation between the Parties to better conserve, protect, and enhance the environment , including wild flora and fauna; (f) strengthen cooperation on the development and improvement of environmental laws, regulations, procedures, policies and practices; (g) enhance compliance with, and enforcement of, environmental laws and regulations.3 It also established an international organization the Commission on Environmental Cooperation. The purposes of this Commission are to address regional environmental concerns, help prevent potential trade and environmental conflicts,
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and promote the effective enforcement of environmental law. The Commission structure includes a Council (with a workgroup substructure), a Secretariat, and a public advisory committee. The North American Agreement on Environmental Cooperation also sets forth some basic rules on how the Commission will operate. It addresses cooperation among the countries.4 It also addresses both the sharing of information as well as the protection of enforcement confidential information.5 Finally, the agreement addresses the funding of the Secretariat.6 2 STRUCTURE OF THE COMMISSION FOR ENVIRONMENTAL COOPERATION 2.1 The Council
The CEC Council is made up of cabinet level representatives from each of the three governments. Currently, the Administrator of the US EPA and the Canadian and Mexican Ministers of Environment participate on the Council. The Council is the governing body of the Commission and generally has all the required authorities to carry out that mandate.7 Generally, the Council works on a consensus basis.8 The Council meets at least once a year and has the authority to establish ad hoc or standing committees and workgroups. The CEC has five Council created working groups: Trade and Environment Working Group, Sound Management of Chemicals, Biodiversity and Conservation Working Group, the Air Quality Working Group and the Enforcement Working Group, that span a wide range of environmental issues. The Trade and Environment Working Group promotes mutually supportive environmental and economic policies and sustainable development based on cooperation. The Biodiversity Conservation Working Group aims to protect North American species by guiding and implementing projects related to the prevention of invasive species associated with trade and economic process and the conservation of North Americas marine and terrestrial animals and their habitats. The Enforcement Working Group addresses North American enforcement issues, enforcement capacity-building and provides in-depth information and analysis on the Parties enforcement and compliancepromotion activities. These initiatives help to properly manage the trade of hazardous waste and other harmful materials, as well as remove materials harmful to human health and the environment from commerce. The EWG considers also the North American Wildlife Enforcement Group that aims to stop the illegal trade of wildlife and properly penalize those who attempt to ship endangered, threatened or protected species, products and by-products illegally or in non-compliance with applicable laws and international conventions such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). 2.2 The Secretariat
The Secretariat is headed by an Executive Director, rotated consecutively between nationals of the Parties, appointed for a three-year term renewable for a second three year term.9 Currently, the Secretariat functions with a staff of approximately
50 and receives total annual funding from the three countries of approximately $9 million US. 2.3 The Joint Public Advisory Committee
The Joint Public Advisory Committee has 15 members: 5 from each of the party Countries. The Committee convenes at least once annually and provides advice to the Council on any matter within the scope of the North American Agreement on Environmental Cooperation.10 3 THE ENFORCEMENT WORKING GROUP
Under the current committee structure, enforcement activities are centralized within the Enforcement Working Group, established in 1996 by Council Resolution 96-06. The EWG is co-chaired by senior enforcement officials from the US EPA and the US Fish and Wildlife Service, Mexicos Procuradura Federal de Proteccin al Ambiente (PROFEPA), and the Canadian Environmental Protection Agency. The Workgroup covers both environmental and wildlife issues. Since its inception, the Enforcement Working Group has identified the need for improved capacity to track and enforce laws regulating the transboundary movements of hazardous wastes and ozone depleting substances, and for cooperative approaches to the enforcement of domestic laws, including those that implement CITES, through the work of the North American Wildlife Enforcement Working Group. The Enforcement Working Group meets regularly at least once a year in person but often more frequently than that - as well as periodically by teleconference. The co-chairs have found this regular interaction critical to achieving good communication as well as maintaining the momentum of its joint work. The Co-Chairs have instituted an ad hoc subgroup infrastructure that mirrors the current priority work of the Enforcement Working Group. 3.1 Establishing Priorities for the Enforcement Working Group In 2009, the Council announced a new strategic plan for 2010 2015. The three priorities set by the Ministers are: Healthy Communities and Ecosystems; Climate Change, Low Carbon Economy; and Greening the Economy in North America.11 Guided by this direction, the Working group Co-Chairs met to develop specific enforcement activities to support these strategic goals. In defining specific enforcement activities, the Co-Chairs considered: 1. How can we build on previous work of the CEC Enforcement Working Group and take that work the next step. 2. How can we define future activities in light of lessons learned from past work. 3. How can we build upon our domestic work and domestic priorities to achieve better results through trilateral cooperation.
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3.2
Past Work of the Enforcement Working Group
In the first decade of its existence, much of the work of the Enforcement Working Group was focused on capacity building. In this vein, past accomplishments of the Enforcement Working Group include: A. In 2008, the CEC implement the first on-line training course aimed at building capacity and disseminating information on regulations and enforcement techniques for ozone depleting substances (ODS). This course explains the importance of the ozone layer and provides a general background on the relevant international agreements, domestic laws and policies, as well as the science behind the regulation of ODS. After taking this course, officials involved in detecting and stopping the illegal shipments of ODS have a basic knowledge of the reasons for controlled importation into Canada, the United States, and Mexico. This course is intended for customs officials, border inspectors, and environmental officials who would like a greater understanding of why most countries of the world are working together to phase out the use of ODS.12 This training course was considered a model and parts of it were translated to Russian Language to provide training to officials in mid-Asia by the United Nations Environment Program. B. The Enforcement Working Group held three workshops on environmental compliance in each one of the NAFTA countries that reached out to the import/ export community. These workshops focused on border compliance assistance, opportunities for partnerships in environmental compliance and sustainable trade, and technology for monitoring to promote environmentally safe borders and environmentally sound shipments. It also allowed for discussion of the challenges and opportunities for improved environmental compliance, as well as programs and activities to promote environmental compliance in Mexico, Canada, and the United States at both the federal and provincial levels. C. A 2008 seminar on judicial training in Mexico City aimed to strengthen capabilities and exchange expertise and best practices among judges, prosecutors and law enforcement officials. The seminar provided a forum for North American judges to learn about principles of environmental law and to develop a clearer understanding of effective methods of handling environmental causes. Additionally, the seminar covered common methodologies at work in enforcement cases, procedural and evidentiary challenges for effective environmental law enforcement, environmental enforcement at the local level, and alternate mechanisms to solve environmental disputes. 13 D. The Enforcement Working Group developed an on-line training course on hazardous waste for customs, border and environmental officials. This training provides general information for the public, as well as specific instruction for border inspectors on hazardous waste policy and legislation and import/export issues. The program represents a collaborative effort between the environmental, customs and border officials of Canada, Mexico and the United States that aims to increase knowledge regarding identifying and interdicting hazardous waste shipments. Through a flexible modular training program that incorporates
environmental enforcement and customs knowledge and expertise, border officials will be able to better understand the hazardous waste trade, which will empower them to better identify and interdict illegal shipments.14 E. The Enforcement Working Group completed an interactive tool that provides information derived from the annual report known as Taking Stock that uses and compares information included in the Pollutant Releases and Transfers Registries in the three countries (in the US the Toxic Releases Inventory, in Canada the National Pollutants and Releases Transfers Registry and in Mexico the Registro de Emisiones y Transferencia de Contaminantes). This information allows identifying the amount and type of hazardous and toxic substances in off-site transfers amongst the North American countries.15 F. The North American Wildlife Enforcement Group created an accredited training course for Wildlife Inspectors in 2008. The training dealt with wildlife forensics, methods and techniques for wildlife identification, wildlife management, forensic techniques for penal and administrative offenses investigation, and Geographic Information Systems for penal and administration offenses. From the 51 participating students, 45 were successful (88 percent) in completing the training. These trainings are essential in order to strengthen capacities for improving the enforcement of wildlife management, conservation and protection in North America. The course had a Blended Learning format in which both information and communications technologies for e-learning modules and ad hoc tools and materials for the onsite module were used. G. Recently, the CEC Secretariat signed a letter of understanding with the World Customs Organization to make available a CITES online training course in the three CEC official languages. This course covers the different regulatory aspects (documents, procedures, etc.) and practical aspects (controls, seizures, etc.) of the trade in endangered species of wild fauna and flora. The course was already available in English and French languages and the participation of the CEC will allow for making it available in all CEC official languages. H. In addition, the Hazardous Waste Task Force an ad hoc group on hazardous waste established by the Enforcement Working Group, has been developing a project that will allow for the electronic exchange of information among the parties on the import and export of hazardous waste within North America. This project allows for the direct exchange of export notice and consent data, as well as operational data. The benefits to the North American environment include the improved quality of export notice and consent data, timelier export/import data for Notice Officers and exporters, and a greater ability of governments to provide timely and complete information in response to requests. Furthermore, this electronic exchange facilitates the adoption of more advanced tracking technologies and lays the foundation for possible future automation of other hazardous waste or other environmentally regulated materials export/import data. I. Most recently, the Enforcement Working Group has convened experts from each of the three countries to share information and intelligence on illegal shipments non-compliant small engines entering North America. These collaborative efforts will help to better protect the North American health and environment
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from threats posed by non-compliant engines. Parties will be more prepared to develop actions to reduce or eliminate such outside threats and more capable of working cooperatively to address threats from non-compliant imports. 3.3 Future Work of the Enforcement Working Group
Although the Enforcement Working Groups future work plans are still under development and review, much of the likely future work is based on leveraging past efforts at cooperation and capacity building. The close working relationship that has been established between the Parties domestic experts on non-compliant small engines will form the basis for stepped up future work in this area. The sharing of intelligence has been particularly valuable in this area as our experience is that exporters are shipping their non-compliant goods to more than one of the parties. Intelligence sharing has also helped the parties stay ahead of the ever evolving efforts of unscrupulous exporters to mask their non-compliance. Work will also continue on detecting and prosecuting illegal transboundary movements of ozone depleting substances. An exciting new area of mutual cooperation is preventing and detecting illegal transboundary movements of electronic waste between and through North American countries. This effort will be built on the countries domestic experience with using intelligence lead enforcement tools and techniques. Initial efforts will focus on Cathode Ray Tubes. By sharing intelligence in a systematic way, the three countries, working together, can get a much clearer picture of the flows and transactions of illegal e-waste movements in North America. Tackling this problem trilaterally is far more effective than each country working solely on its own. 4 LESSONS LEARNED WHY HAS THE CEC MODEL WORKED?
As a regional network, the CEC Enforcement Working Group has a long history of good cooperation and strong working ties. Why has this model of Regional cooperation worked? One major advantage of the Enforcement Working Group is that it was established under a trilateral agreement committed to at the highest levels of government in all three countries in connection with an important free trade agreement. This translates into a well defined organizational structure, including a secretariat, and an on-going funding commitment by the Parties. The secretariat has provided significant support to the Enforcement Working Groups efforts including activities such as providing and supporting contractual tools (e.g., for the development of electronic data exchange system on hazardous waste import/export), providing translation services (all CEC documents and meetings are conducted in French, English and Spanish, therefore translation services are critical), planning and implementing meetings of the Parties, doing analyses such as comparisons of domestic requirements of the parties, conducting other supporting research activities, and assisting in developing and conducting training and workshops. This institutional structure that the Enforcement Working Group exists within has given it a major advantage over networks that dont have that support.
However, there are lessons that can be derived from the EWG that may be helpful even to regional networks that dont enjoy the same level of financial and institutional support. We have found that it is essential that trilateral priorities have a strong congruence with all three countries domestic priorities. Few enforcement programs have the resources to take on additional work beyond their domestic priorities. To the extent that domestic practitioners see the trilateral work as forwarding and enhancing the domestic work they do, the greater their level of commitment to it. Such work must support and further domestic priorities and not be seen as an add-on. The experience of the Enforcement Working Group has also demonstrated the value of regular and frequent communications. Face to face meetings can lead to working relationships that promote informal, real time discussions among the domestic experts of the parties. The Enforcement Working Group has also realized the need of the parties to formally address the issues associated with sharing and protecting enforcement sensitive information. Countries will not be willing to share such information if they fear its possible release. In the case of the Enforcement Working Group this issue was addressed directly in the North American Agreement on Environmental Cooperation. If there is not such a document behind the network, it may be necessary or desirable to develop and execute some sort of a Memorandum of Understanding addressing the matter. In conclusion, in todays global environment and economy, it is critical that environmental enforcement officials be adept at working across national borders. Regional networks are crucial to achieving this. The CEC Enforcement Working Group provides one example of a successful regional network. 5 REFERENCES http://www.ustr.gov/trade-agreements/free-trade-agreements/north-american-free -trade-agreement-nafta. 2 For a complete history of the negotiation of the NAFTA side agreement, see Audley, John J., Green Politics and Global Trade, NAFTA and the Future of Environmental Politics, Georgetown University Press, 1997 and Charnovitz, Steve, 8 Temp. Intl & Comp. L. J. 257 (1994). 3 NAAEC, Part One, Article 1: Objectives. 4 NAAEC, Part Four, Article 20: Cooperation. 5 NAAEC, Part Four, Article 21: Provision of Information and Part Six, Article 39: Protection of Information. 6 NAAEC, Part Six, Article 43: Funding of the Commission. 7 See NAAEC, Part Two, Article 10: Council Functions. 8 NAAEC , Part Two: Article 9: Council Structure and Procedures. 9 NAAEC, Part Two, Article 11: Secretariat Structure and Procedures. 10 NAAEC, Part Two, Article 16: Joint Public Advisory Committee. 11 Commission for Environmental Cooperation Ministerial Statement, Denver Colorado, June 24, 2009. 12 CEC Online ODS Training, available at http://www.cec.org/ods/en/module01/ cec_odspolicy_m01t01p01_e.asp.
1
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Presentations, lectures and background papers stemming from this and past judicial training seminars in 2005 and in 2007 under the auspices of the CEC are currently available on line: http://biblio.juridicas.unam.mx/libros/6/2954/1.pdf. 14 This course is available at: http://www.cec.org/Page.asp?PageID=1226&ContentI D=&SiteNodeID=612&BL_ExpandID. 15 This is available at: http://www.cec.org/Page.asp?PageID=924&SiteNodeID=569.
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THE NETWORK FOR ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT IN MOROCCO (NECEMAR): AN INECE INITIATIVE SUPPORTED BY A STRONG MOROCCAN POLITICAL WILL DERDER, MOHAMED RIDA1 and ZYANI, BRAHIM2 INECE Special Counsel in North Africa, P.O Box 147 Kasba Tadla, Morocco, ridaderder@msn.com.
1
Should be changed to: Director of the Department of Control and Regulation in the Moroccan Secretariat of State charged of Water and the Environment,36, Avenue Al Abtal Agdal Rabat, Morocco,bzyani2002@yahoo.fr.
2
SUMMARY Although late, 23 January 2010 marked the founding of the Moroccan Network for Environmental Compliance and Enforcement (NECEMAR.) Morocco took the lead to create the first in-country environmental compliance and enforcement network in the Maghreb with the aim to strengthen the Network for Environmental Compliance and Enforcement in the Maghreb (NECEMA) due to a number of reasons. Specifically, among NECEMA members, Morocco is the country that has benefited the most from the environmental compliance and enforcement culture introduced by the International Network for Environmental Compliance and Enforcement (INECE) since the hosting of its 7th International conference on April 2005. Additionally, Morocco recently has witnessed a strong political will from the highest authority in the country supporting environmental compliance and enforcement. 1 INTRODUCTION During the past few years, Morocco has made huge efforts to enact an interesting environmental law arsenal. However, Moroccan environmental laws were enacted in an accelerated pace compared to the tools available to enforce them. Fortunately, the perfect timing of the 7th International Conference of the International Network for Environmental Compliance and Enforcement (INECE) in Marrakech, Morocco, in April 2005, raised environmental compliance and enforcement awareness in the Maghreb region in general and in Morocco specifically. Therefore, the Network for Environmental Compliance and Enforcement in the Maghreb (NECEMA) was launched on 21 February 2007, in order to develop links among the countries of the Maghreb emphasizing environmental compliance and enforcement issues with regard to domestic environmental laws. However, in order to strengthen NECEMA, it becomes necessary for member countries to create strong in-country networks. Recently, Morocco took the lead to create the first in-country network for environmental compliance and enforcement in the Maghreb.
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HISTORICAL BACKGROUND: NECEMA BETWEEN THE 8TH AND THE 9TH INECE INTERNATIONAL CONFERENCES 2.1 NECEMA in 2011
The Regional Planning Committee of the Network for Environmental Compliance and Enforcement in the Maghreb (NECEMA) held a meeting inRabat, Morocco, on 28 January 2011 to confirm its 2011 work plan and to review accomplishments of 2010. Government officials from Morocco, Mauritania and Tunisia participated in the meeting, along with international experts from INECE and from the Regional Environment Center. During the meeting, the Executive Committee decided that the emphasis of the 2011 work plan will be on strengthening the Secretariat of NECEMA as well as the availability of funding, the execution of the adopted work plan, and the visibility of NECEMA. The meeting also provided the opportunity to review accomplishments of the network in 2010 across NECEMAs three priority areas: (1) supporting efforts by Maghreb countries to develop an integrated strategy to advance compliance with environmental laws; (2) advancing cooperation among countries of the region; and (3) building capacity for environmental enforcement. 2.2 NECEMA in 2010
On 22-23 January 2010, NECEMA representatives held a meeting in Marrakech. Participating were Mauritania, Morocco, and Tunisia, as well as representatives of INECE, ECENA, VROM, and GTZ. The meeting was organized by the Moroccan Ministry of the Environment andco-sponsored by GTZ and INECE. After a welcoming presentation by the Chair, the participants discussed the results of NECEMAs previous three year work plan. Based on the lessons learned, the participants agreed upon the next tri-annual action plan of 2010-2012 that includes numerous common subjects of interest. Mr. Brahim Zyani, who chaired NECEMA during the past three years, handed over the chairmanship to Mr. Samir Kaabi of Tunisia who handed the vice presidency to Mr. Ahmed Mohamed Saghir of Mauritania. Morocco agreed to keep hosting the secretariat of NECEMA. Also, the participants agreed to held the next NECEMA meeting in Tunisia. Recognizing the efforts invested in bringing Algeria and Libya to the NECEMA, participants agreed upon strengthening those efforts in the future. Participants stressed the need for funding of the network. NECEMA representatives and VROM agreed upon looking on the possibilities of organizinga waste transport training as well as a training onDoing the Right Things Right. 2.3 NECEMA in 2009
Key activities of NECEMA in 2009 have included sharing stories of success, news, environmental law updates, and best practices on Maghreb environmental
compliance and enforcement among all members; raising awareness of the importance of environmental compliance and enforcement in the region, focusing on topics such as hazardous waste management; establishing sub-regional environmental compliance forums; assisting in founding the Arab Network on Environmental Compliance and Enforcement (ANECE) and become a member; and collaborating with other regional networks. NECEMA currently is researching regional capacity building needs regarding environmental inspectionsin ports focusing on waste transportation and is planning a workshop on this issue in collaboration with the Netherlands later this year. 3 NECEMAR
On 23 January 2010, the Moroccan government and the International Network for environmental Compliance and Enforcement (INECE) co-hosted a meeting in Marrakech in order to create an in-country network for environmental compliance and enforcement named the Network for environmental Compliance and enforcement in Morocco (NECEMAR). A brainstorming regarding environmental law compliance and enforcement in Morocco allowed the participants to adopt an action plan focusing on the following: 1. The assessment of the pace and level of environment compliance and enforcement with regards to the protection of the environment. 2. The assessment of multilateral environmental agreements ratified by the Moroccan government. Moreover, NECEMAR adopted methodological approach and specific activities based on the evaluation of the application and applicability of environmental laws as follows: 1. 2. 3. 4. to specify the list of environmental laws to be examined; to review the deadlines for the publication of regulatory action; to review the level of enforcement of each environmental law; to compare the pace of environmental law implementation through a retrospective exercise of regulatory monitoring which should be institutionalized; 5. to identify the causes of non-compliance or non-applicability of the environmental law; 6. as well as the constraints to their application (technical, economic, financial, institutional, social, political;) a matrix listing the constraints will be used to organize the information gathered; 7. to propose a monitoring and control system for environmental enforcement based on the national capacity using benchmarking. Furthermore, aware of the importance of the multilateral environmental agreements (MEAs) ratified by the government of Morocco, NECEMAR will give a special attention to the following activities:
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1. 2. 3. 4. 4
sorting between MEAs officially published and other ratified MEAs; reviewing the level of compliance against benchmarks; identifying the relationship between national environmental laws and MEAs; synthesizing the impact of the synergy between the three Rio conventions on the Moroccan environmental compliance and enforcement. DEVELOPMENTS IN MOROCCO
The impact of the framework law relevant to The National Charter on Environment and Sustainable Development on environmental compliance and enforcement: The royal speech on the occasion of the Throne holiday was a signal for the Moroccan government to develop a framework law on the Charter of the environment and sustainable development. This important legal event will allow NECEMAR to study the impact of the framework law on environmental compliance and enforcement. It is worth mentioning that the charter reflects the major concerns expressed by the Moroccan people. Also, all the departments of the government have contributed to the process of developing the national charter that will be available in framework legislation. This involvement at an early stage of drafting the framework law will facilitate environmental compliance and enforcement. Reflecting on the draft framework law on environment and sustainable development in terms environmental compliance and enforcement, NECEMAR is a great tool to highlight both the specificity of the process of this draft as well as the high expectations it raises and the importance of mobilizing all stakeholders for the effective transposition of the principles and values embodied in the framework of the National Charter. 5 CONCLUSION A strong political will allowed Morocco to take the lead and created the first incountry network for environmental compliance and enforcement in the Maghreb, much needed to strengthen NECEMA. NECEMA was a successful outcome of INECE 7th international conference that has introduced the environmental compliance and enforcement culture in Maghreb region. Therefore, NECEMAR perfectly reflects the concept of start and strengthen. 6 REFERENCES
http://www.inece.org/mena/necema/index.html.
THE EFFECTIVE USE OF AN ENVIRONMENTAL ENFORCEMENT NETWORK IN IRELAND OLEARY, GERARD, MSc, MA, MICE1 and LYNOTT, DARA J. B.E., MSc, PE, C.Eng, FIEI2 Programme Manager, Office of Environmental Enforcement, Environmental Protection Agency, PO Box 3000, Johnstown Castle Estate, Co. Wexford, Ireland. g.oleary@epa.ie
1
Director, Office of Environmental Enforcement, Environmental Protection Agency, PO Box 3000, Johnstown Castle Estate, Co. Wexford, Ireland,d.lynott@epa.ie
2
SUMMARY Environmental regulators in Ireland are responsible for in excess of 500 environmental protection functions contained within some 100 pieces of legislation. As Treaty guardian,1 the European Commission oversees implementation of legal acts in the environmental field throughout the member states. The European Commission and Court of Justice have in the past been critical of Irelands implementation of certain European legislation. One particular judgment against Ireland, on 26 April 2005, addressed the lack of adequate measures to implement the Waste Directive (75/442/EEC) correctly. The judgment referred to a number of waste disposal sites where it was determined that the EU Waste Framework Directive was not implemented, and used this determination to form the view that there was a systemic failure to implement the Directive in Ireland. Indeed the Advocate Generals opinion,2 which preceded the judgment, noted that: In short, a general and structural infringement may be deemed to exist where the remedy for this situation lies not merely in taking action to resolve a number of individual cases which do not comply with the Community obligation at issue, but where this situation of non-compliance can only be redressed by a revision of the general policy and administrative practice of the Member State As one tool to improve Irelands compliance with European environmental legislation, the Environmental Protection Agency (EPA) established an Environmental Enforcement Network in 2004 comprised of regulators and policymakers. This paper examines the establishment of the Network, its operation and how it helped Ireland become the first EU member state to have comprehensive enforcement plans for all 34 local authorities. 1 ESTABLISHING THE NETWORK Many government departments, authorities and agencies in Ireland have a statutory role in protecting the environment, but the principal environmental regulators
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are the EPA and the 34 local authorities. When the Office of Environmental Enforcement (OEE) was established within the Environmental Protection Agency in 2003, a key priority for this Office was to tackle the problem of illegal dumping of waste in Ireland, and the illegal movement of waste to Northern Ireland. This could only be done through the collective effort of a number of public sector agencies, both North and South. The Office therefore set about developing an integrated national approach to the enforcement of environmental legislation through the establishment of an Environmental Enforcement Network. A National Steering Committee was established in 2004 to direct the activities and priorities of the network. The members of the Steering Committee, meeting at least three times a year, promote the network and ensure that the various organisations commit resources to agreed priorities. The EPA chairs the Committee with representation from the City and County Managers Association, local authorities, the Department of the Environment, Heritage and Local Government, the Health Services Executive and the Inland Fisheries Board. The enforcement network now has over 1,000 public sector staff registered from about fifty agencies within Ireland. The core objective of the network is to bring about improved co-operation and coordination between the various agencies involved in enforcement of environmental legislation so that a higher and more consistent standard of environmental protection is achieved in Ireland. The agreed functions of the network are to: C o-ordinate the environmental enforcement activities to tackle national environmental issues. Develop and sustain the capacity of enforcement Agencies to detect, investigate and prosecute environmental crime. Develop and maintain a consistent approach to the enforcement of environmental legislation. Build and retain experience in the implementation, application and enforcement of environmental legislation through coaching, mentoring and the use of electronic media. Promote the use of best practice by local authorities through the development of guidance of legislation, inspection and prosecution techniques. Provide a mechanism for feedback to policy makers and legislators on the practical implementation of policies and regulations. The networks modus operandi is that a working group of experienced practitioners from relevant agencies is established to deal with a specific issue or problem. Historical problems include the illegal dumping of waste in Ireland and illegal transboundary movement of waste to Northern Ireland. However, in recent years, attention has focused more on drinking water and water quality matters in Ireland. The working group analyses the problem and agrees on best way to tackle it. Following this analysis agreed enforcement actions may include facility inspections by multiple agencies, the preparation of guidance or the delivery of training for the wider network practitioners. Once the task is completed the group disbands.
The use of an extranet (see figure 1) for the network allow members to share enforcement information. Enforcement officers can identify other colleagues dealing with similar enforcement issues and have access to the latest protocols developed by the network. The use of this electronic forum allows for the induction of new local authority staff or the transfer of staff into the enforcement area, where they might not have had past experience. Figure 1: Environmental Enforcement Network Extranet
Nine working groups have been established. The working groups consist of key local and public authority personnel, EPA and government department staff. They are typically small focus groups with specific tasks as defined in their terms of reference. The outputs of the working groups (e.g. guidance documents, protocols, training) are disseminated to relevant public authority enforcement staff through national enforcement networks and via national conferences. Any documents generated are also available on the Enforcement Network extranet site (www. enforcementnetwork.ie). The Network also examines draft legislation and provides feedback to policymakers on any concerns regarding its implementation. Feedback from these networks has been very positive. Participants express the benefits of meeting their colleagues in other local authorities and agencies and of exchanging ideas that help them in their day-to-day enforcement work. The Network provides a forum for discussion and has recently produced a Code of Practice for the Development of an Enforcement Policy for Unauthorised Waste Activities.3 All local authorities now have such policies in place to deliver effective, proportionate and dissuasive sanctions against unauthorised waste operators. The Office of Environmental Enforcement published an enforcement manual which draws together all of enforcement protocols developed by the various working groups within the network. The production of the manual was a huge team effort, directly involving 65 persons from a range of organisations. The manual outlines
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the structure and functions of the Environmental Enforcement Network and its member organisations. It provides guidance on general enforcement topics including inspection management, complaints handling and resolution, evidence gathering, and preparation for court. Specialised guidance concerning the investigation of waste related activities and detailed inspection protocols are also included. The manual is available to all members of the network. Table 1 below provides a sample of some guidance and training prepared during 2010. Capacity building and knowledge management has been enhanced through training; the formal dissemination of guidance; and exchange of information sessions organised on specific topics. These sessions take place in the format of meetings, seminars and conferences. An advanced training course has been developed and delivered to over 200 enforcement officers throughout the country. In 2010 alone the network had eight events with over six hundred people attending. To keep members up-to-date, an e-zine was launched in 2010. The success of the Network is documented in two Focus on Enforcement Reports published by the EPA4 that demonstrate that greater efficiencies and outcomes that can be gained through better collaboration and coordination between public bodies engaged in environmental protection work. The network succeeded in bringing about a change in the culture of cooperation between the EPA, local authorities and other agencies. Linkages were also established with international bodies where these were deemed relevant. For example, a working group on Transfrontier Shipment of Waste, which deals with the import and export of waste, is tied in with international working groups engaged in dealing with this issue. This allows rapid communication between enforcement officers in different countries when dealing with waste export issues. Table 1: Local Authority Enforcement Guidance and Training provided by EEN in 2010
EEN Guidance Manual EEN Newsletter (mid-2010)
Additions to guidance manual in 2010 Outcomes base planning guidance Enforcing the Battery Regulations Vehicle Refinishers Installations Enforcement Odour Complaint Investigation
Updates on recent developments such as: BMW Workshop reporting & guidance Food Waste Regulations workshop OECD Environmental outcomes workshop Water Conference - Galway Air Solvent working group RMCEI enforcement plans workshop
Single house treatment systems Two workshops in 2010
Drinking Water Handbook & Training Course 2010 A series of training events in 2010
National Environmental Complaints Pilot Line 4 Working group workshops, launch and pilot completion
Pollutant Release and Transfer Register and Annual Environmental Reporting Guidance and website
NATIONAL INSPECTION PLANNING
The European Parliament and Council made a recommendation on the 4th April 2001 providing for minimum criteria for environmental inspections in the Member States (2001/331/EC) to provide for the setting of minimum inspection criteria for environmental inspections in European Union member states. The purpose of the Recommendation is to strengthen compliance and implementation of EU environmental law. The EU Recommendation requires enforcement agencies, with responsibility for regulating industrial and other enterprises subject to authorisation, permitting or licensing under European Union law to undertake their inspection duties in accordance with the Recommendation. The key requirements of the Recommendation are that an Authority: P roduce an environmental inspection plan. Do inspections of regulated installations in implementation of the plan. Review and report on those site inspections. In 2005, the European Advocate General noted this situation of non-compliance can only be redressed by the revision of the general policy and administrative practice of the Member State. So in 2005, the Environmental Enforcement Network began to support and co-ordinate the preparation of environmental enforcement plans for all 34 local authorities in Ireland. Figure 2 illustrates the progress and milestones achieved to Ireland becoming the first EU member state to have inspection plans for all local authorities. In recent years the Network has focused much work on delivering outcomes from inspection activities.
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Figure 2: Development and Implementation of Inspection Plans in Ireland
2.1
Local Authority Inspection Plans
The Network developed guidance to assist the 34 local authorities to prepare inspection plans. The planning process is divided into five steps outlined in Figure 3 below. Key steps include establishing priorities and determining the desired outcomes from enforcement activities. Scarce resources are then applied on the basis of environmental priorities/risk. The inspection plans in turn provide a platform for a national systematic approach to inspection and enforcement on the basis of risk. Feedback on the implementation of the plans has allowed the production of national reports such as the 2009 Focus on Enforcement Report4. Figure 3: Local Authority Planning Process
A key part of such plans is the inclusion of projected outcomes from enforcement activities. Table 2 provides a sample of suggested intermediate outcomes from waste and water enforcement activities. Table 2: Sample Environmental Outcomes
Final Environmental Outcome Waste The protection of the environment against harmful effects caused by management of waste Intermediate Outcome Metric
Close or regularise all unauthorised facilities
The Number of unauthorised facilities closed down/ regularised. The number of scrap cars on unauthorised end of life sites
Identify the priority compliance factors in waste permits, e.g. EWC codes, accurate waste tonnages
>70% of facilities in compliance with priority permit conditions. >90% compliance with waste records/Annual environmental report requirements in high risk permitted facilities The number of high risk farmyards implementing rehabilitation/remedial works No. of Cross reports to the Department of Agriculture
Water The River Abhainn will achieve Good Ecological Status by 2015
Reduction in the number of water bodies under pressure from diffuse agricultural pollution
The Office of Environmental Enforcement recognised that the development of such plans was new and as such an incremental approach was adopted. Each year the quality of plans are assessed by the Office of Environmental Enforcement so that the quality over time can be measured. A checklist is developed each year with specific criteria to rate a plan. Plans attract a higher rating for example if inspections are planned on the basis of risk, a mid-year review is built into the process or there is a realistic estimate of the level of resources required to implement the plan. Figure 4 illustrates the improvement in the overall quality of the 34 local authority plans between 2007 and 2009. In 2007 less than 20% of plans were A-rated with this figure increasing to 85% within two years.
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Figure 4: Local Authority Inspection Plan ratings 2007 to 2009

100% 90% 80% 70% 60% 50% 40% 30% 20% 10% 0% B Rated A Rated C Rated
C Rated C Rated B Rated
B Rated
A Rated
A Rated 2007
2008
2009
PERCEPTIONS OF THE NETWORK
The National Economic and Social Council in Ireland is a government think tank that analyses and reports to the Taoiseach (Prime Minister) on strategic issues relating to the efficient development of the economy and the achievement of social justice and the development of a strategic framework for the conduct of relations and negotiation of agreements between the government and the social partners. A 2010 report from this Council (2010)5 concluded that the network shows that enforcement is as much about fortifying various organisations capacity to implement environmental policy as sanctioning them for not doing so. The authors suggest that this is in keeping with recent trends in EU environmental policy making. The Organisation for Economic Co-operation and Development (OECD) undertook a review of Irelands public service in 20086. The organisation encouraged Ireland to form networks within the wider public service to exploit agility, informality and openness and reduce duplication of coordination efforts. In a separate review another OECD report7 stated that The Environmental Enforcement Network... provides a mechanism for concentrating resources and promoting co-ordination and coherence across administrative divisions. Indeed in his seminal book on regulatory and enforcement practice, Sparrow (2000)8 determined three core elements that capture the essence of emerging strategies. They are a clear focus on outcomes, the adoption of a problem-solving approach, and an investment in collaborative partnerships.
4 CONCLUSIONS Returning again to the agreed functions of the Network discussed earlier. Developing inspection plans for all local authorities has allowed Ireland to align scarce resources to focus on national priorities. The Network has supported local enforcement officers through guidance, training and exchange of information through use of an extranet, e-zine and attendance at workshops and conferences. By doing so, this has facilitated securing high court orders against unauthorised waste activities and submitting files to higher courts through the Director of Public Prosecutions. Working together has allowed the publication of two national reports setting out the outcomes achieved from all enforcement activities in Ireland. These reports, while delivering on the Better Regulation agenda, also provide a feedback to policymakers on the outcomes of environmental legislation. 5 REFERENCES EC Treaty, http://europa.eu.int /eur-lex/en/treaties /dat /EC_consol.html. Opinion of Advocate General Geelhoed Delivered on 23 September 2004 Case C-494/01 Commission of The European Communities v Ireland. http://eur-lex.europa.eu/ LexUriServ/LexUriServ.do?uri=CELEX:62001C0494:EN:PDF. 3 http://www.epa.ie/downloads/advice/waste/waste/name,26489,en.html. 4 EPA 2009. Focus on Environmental Enforcement in Ireland for the years 2006-2008. http://www.epa.ie/downloads/pubs/enforcement/. 5 National Economic and Social Council (NESC) 2010. Re-finding Success in Europe: The Challenge for Irish Institutions and Policy. http://www.nesc.ie/dynamic/docs/NESC%20122_Refinding%20Success%20in%20 Europe.pdf. 6 OECD 2008. OECD Public Management Reviews - Ireland: Towards an Integrated Public Service. ISBN Number: 9789264043251. (http://www.oecd.org/document/31/ 0,3746,en_2649_37427_40529119_1_1_1_37427,00.html. 7 OECD 2010. Environmental Performance Reviews: Ireland 2010. ISBN: 9789264079496. ( http://www.oecd.org/document/42/0,3343,en_33873108_33873500_45123050 _1_1_1_1,00.html?rssChId=33873500). 8 Sparrow M. K (2000). The Regulatory Craft: Controlling Risks, Solving Problems, and Managing Compliance. Brookings Institution Press.
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6 BIBLIOGRAPHY The EPA website is available at www.epa.ie. Recommendation 2001/331/EC of the European Parliament and of the Council of 4 April 2001 providing for minimum criteria for environmental inspections in the Member States [Official Journal L 118 of 27.4.2001]. EEN Newsletter July 2010 Update on Activities with the Environmental Enforcement Network - July 2010.
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EVOLUTION OF A REGIONAL ENVIRONMENTAL ENFORCEMENT NETWORK: THE AUSTRALASIAN ENVIRONMENTAL LAW ENFORCEMENT AND REGULATORS NETWORK (AELERT) LEHANE, JAMES 1 and PINK, GRANT 2 Executive Officer, Australasian Environmental Law Enforcement and Regulators neTwork; GPO Box 787, Canberra, Australian Capital Territory, 2601, Australia, C/- secretariat@aelert.com.au
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Secretary, Australasian Environmental Law Enforcement and Regulators neTwork; GPO Box 787, Canberra, Australian Capital Territory, 2601, Australia, C/- secretariat@aelert.com.au
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SUMMARY 1 2 This paper documents the evolution of the Australasian Environmental Law Enforcement and Regulators neTwork (AELERT), through several phases, focussing on both the accomplishments and challenges encountered along the way. Commencing as a national network with five Australian foundation member agencies in November 2004, by November 2010 membership of AELERT has grown to incorporate over 75 member agencies. Significantly, membership is truly representative as it includes members drawn from all three levels of government and each of the eight Australian jurisdictions and both levels of government in New Zealand. AELERT has evolved organically, rising from a bottom-up practitioner base in the early years to being recognised by a top-down Ministerial level body as a professional network of similarly aligned member agencies with an increasing regional and international profile. 1 INTRODUCTION 1.1 Network evolution
Established in 2004, the Australasian Environmental Law Enforcement and Regulators neTwork (AELERT) has grown into a substantial regional network in the Southern Hemisphere. Now in its eighth year, AELERT has had a number of achievements; and represents a model for collaboration for environmental law enforcement and regulation agencies internationally. 1.2 The Australasian Environmental Law Enforcement and Regulators Network
AELERT has evolved organically from a preliminary meeting of twelve environmental enforcement agencies in November 2003. AELERT emerged at the
end of 2004 as a nascent environmental enforcement network of practitioners. Evolving from a national to a regional-international network, its efforts have focused on facilitating and coordinating national wildlife operations and holding annual conferences. During the past six years, the network has grown in membership and significance. It is now recognised by a Ministerial level body as a professional network of similarly aligned environmental enforcement agencies.3 The establishment of AELERT and its subsequent growth in both membership and capacity-building deliverables is the result of the efforts of a small number of key people within key agencies throughout the network. In a time of financial conservatism, by working together member agencies realise important benefits. As AELERT matures, it will continue to work to increase participation and engagement from its member agencies. 2 EVOLUTION OF THE AELERT NETWORK 2.1 Precursor Activities
In November 2003, representatives from twelve environmental regulatory agencies from around Australia met in Canberra (the National capital) to discuss the challenges they were confronting.4 Participants observed that shared challenges, included: onfronting the cross-jurisdictional nature of environmental issues; c improving the level of co-operation between agencies; promoting cultural change both internally and externally; reforming legislation to improve enforceability and ensure compliance; improving training standards and opportunities for staff; improving consistency and accountability in decision making. 5
The representatives determined that effective environmental enforcement outcomes were influenced by other components of the regulatory framework, including legislative drafting, administrative processes, environmental assessments and approvals, investigative methods, and resources. The meeting also provided consensus that deficiencies in any one area could undermine effective enforcement and the credibility of the law and the regulatory agencies. Building the confidence of the regulated community was determined as critical to establishing and maintaining the credibility of environmental regulatory agencies. These issues soon became the basis for the inaugural AELERT Charter developed in late 2004 and early 2005. Participants also recognized that agencies could no longer operate individually or without some level of engagement with similar agencies across provincial borders. This recognition appears to be in line with recognition elsewhere and globally of needing to work together.6 Whilst an informal Wildlife Enforcement Officers network already existed, a number of leaders took up the task of progressing the
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opportunity for enhanced and improved collaboration across the broader spectrum of environmental regulators in Australia. These leaders were instrumental in organising and delivering the inaugural Australasian Environmental Law Enforcement Conference. 2.1.1 The Inaugural Conference During November 2004, the inaugural Australasian Environmental Law Enforcement Conference was held in Melbourne, Australia. The conference was well attended, attracting 167 conference participants from Australia and overseas, with the conference theme was Making the pointy end work. The theme reflected the practitioner focus of AELERT particularly in relation to the high-end enforcement aspects of environmental regulation. This conference delivered a wide range of topics to participants, in both plenary presentations and thematic breakout sessions focused on pollution, water, wildlife, and vegetation. 2.1.2 The Official Launch of AELERT The 2004 conference formally established AELERT as a network. Doing so involved establishing appropriate governance arrangements and a National Committee to provide guidance and oversight of the network. The National Committee consisted of a Chair, Deputy Chair, Secretary, Treasurer and Jurisdictional Representatives from the Australian States and Territories and the Australian (Federal) Government. The official launch of AELERT included developing a Charter for the network. The Charter7 sets out a number of specific objectives for AELERT and its member agencies that focus on provid[ing] a forum and support for cross-border enforcement issues, awareness-raising, and professional development.8 2.1.3 Membership AELERT was established around agency membership rather than that of individuals. Membership of AELERT is granted when the Head of an environmental regulatory agency submits an application. 2.1.4 Structure The National Committee quickly established several Sub-Committees to undertake specific tasks. The role and immediate task of the Conference Sub-Committee was to organise and oversee preparations for the 2nd annual AELERT conference to be held in Brisbane, Australia in 2005. The Training Sub-Committee was tasked with establishing a series of competency and training standards, developing and providing nationally accredited training and promoting professional development for compliance and enforcement staff in AELERT member agencies.9 Soon after, the Best Practice Sub-Committee was established. Its task was to consider best practice solutions to practical issues and develop discussion papers on emerging issues such as options to achieve best practice by promoting inter-
agency cooperation and the facilitation and exchange of information and expertise. This Sub-Committee was also tasked to establish a Resource Library for member agencies to access when developing policies and procedures such as Compliance Policies and Investigations Manuals. The Resource Library acts as a central repository for agencies to access. The Best Practice Sub-Committee was disbanded during 2008, before a structural review of AELERT in early 2010 saw some of its projects reinvigorated albeit with a slightly different focus. AELERT also established a Compliance and Audit Sub-Committee in recognition of the importance of audits in environmental regulation, and to work on products in support of the many audit functions within environmental regulatory agencies. The range of products developed includes the AELERT Guide to Drafting Quality Conditions, Dictionary of auditing and other compliance terms and the Guidance for Third Party Auditors. In 2008, the Wildlife Crimes Working Group commenced as a commodity specific operational group. This group was established to coordinate and lead joint interagency and cross-jurisdictional wildlife-related operations across the network. This group is now the Operations Cluster with a wider mandate. A Legal Sub-Committee focussing on a range of issues primarily relating to prosecutions and legislative reform that confronted AELERT members was also established during 2008. This subcommittee worked towards facilitating better outcomes for operational practitioners. 2.2 Evolution Moving forward
Following the conference and the establishment of AELERT, activities and deliverables expanded substantially during 2005. 2.2.1 Delivering to Members The various AELERT Sub-Committees undertook a number of activities as part of establishing AELERT. Projects of particular importance and significance were the: F acilitation of Certificate IV in Government (Investigations) and Diploma in Government (Investigations) courses. Annual Conferences between 2005 and 2010 rotating around jurisdictions. Growth in membership and establishment of AELERT Second Tier (as local jurisdictional chapters). Oversight by Ministerial Council & Standing Committee. Establishment of a dedicated AELERT Secretariat function. Increasing repository of material in the AELERT Resource library for members. Establishment and strengthening of links with other networks.
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2.2.2 Training Courses These training courses were tailored for the environmental compliance and enforcement profession by the Australian Governments Department of Environment and Heritage10 and a training consultant and were provided to AELERT member agencies under licence and at no cost. This allowed the delivery of a nationally consistent training standard tailored for environmental regulatory practitioners (on completion of the course certification occurring through a Registered Training Organisation). 2.2.3 AELERT Annual Conference The AELERT conference is now considered the key industry event for environmental regulators in Australasia. The AELERT conference was initially focussed towards practitioner case studies, evolving over time to deliver broader regulatory practice discussions and case studies. Table 1 lists the AELERT Conferences by year; detailing the conference theme and individual participants, which provides an indicator of the level of support the conference received largely from within its membership: Table 1: AELERT Conferences - 2004-2011
Year 2004 2005 2006 2007 2008 2009 2010 2011* Conference Theme Making the pointy end work Working together for regulatory compliance Getting the Balance Right Innovative compliance The Way Forward Risks & Opportunities Regulation in a dynamic future driving changing attitudes Diversity in environmental regulatory responses Connecting people: connecting regions (October 2011) Participants 167 231 248 271 217 162 286
2.2.4 Growth in membership Efforts to expand AELERT membership focused on expanding sub-national networks (Second Tier). Queensland was first to establish a Second Tier network to expand membership across provincial partner agencies. This has developed a forum for national and provincial regulatory agencies to work together with local government on shared issues and problems. In the later part of this decade, AELERT allowed for Affiliate membership, expanding the core membership to government agencies that do not have specific environmental regulatory responsibilities and academic institutions that have research interests in the environmental regulatory arena.
Figure 1: AELERT Membership - 2004-2010

100 90 80 70 60 50 40 30 20 10 0 2004 2005 2006 2007 2008 2009 2010 2011
Anecdotally, by early 2008, AELERT was having an observable impact on member agencies and how they appeared to be operating. One scholar noted that the AELERT:
...network provides a counter to the more traditional bureaucratic silo mentality of some agencies and has assisted in developing within agencies cultures which enable and promote learning. Agencies are developing cultures of professionalism, learning, and engagement, both with other agencies within and across jurisdictions, as well with those being regulated. This evolution of agency style means that agencies will be more effective in the analysis and development of regulatory practice as well as more effective on the ground to attain environmental goals, build and regain public trust, and provide public benefits.11
2.2.5 Environment Protection and Heritage Council In 2008, as part of ensuring AELERT remained relevant to agencies and was aligned with broader directions of governments across the network, efforts to link AELERT into a Ministerial Council began. A substantive briefing was prepared and submitted to the Standing Committee sitting under the Ministerial Council. During 2009, the Council of Australian Governments Environment Protection and Heritage Standing Committee endorsed AELERT to operate under the auspices of the Committee and its overarching Environment Protection and Heritage Council. 2.2.6 Dedicated Secretariat Function Initially, ad hoc and in-kind contributions supported AELERT activities. As the Network grew, a formal support structure became necessary to support AELERT efforts. As such, this service was therefore expanded and formalised during 2007 2008. A local government member agency agreed to house the secretariat, resulting in co-location with the then AELERT Secretary. The funding for this
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more formal Secretariat was shared between the lead central government member agency and the host local government member agency. This preliminary Secretariat function undertook generic Secretariat services in support of the AELERT Steering Committee. As a consequence of AELERTs alignment with the Ministerial Council a national formula for funding of an AELERT Secretariat Project Officer enabled this function on a two year trial basis. This funding formula provides for the AELERT Secretariat Project Officer position being paid for by contributions by the Commonwealth and all Australian States and Territories (provinces). This position is based in Canberra within an Australian Government member agency, again co-located with the AELERT Secretary. In hosting the Secretariat Project Officer position, the host department also underwrites additional costs associated with the position, over and above the provincial contributions. The formalisation of the AELERT Secretariat Project Officer role allowed for an expansion of the duties and deliverables for the network. Important has been the enhanced communication within the network through regular communications and specific projects to progress the development of the network. At the base level, the AELERT Secretariat Project Officer continues to deliver a range of products and services, ranging from content management of the AELERT website (www.aelert.com.au) and general membership administrivia, secretariat services to the AELERT Executive and Steering Committee, and preparation of high level documentation. 2.2.7 Governance In its first seven years, the role of the AELERT Chair has been performed by representatives from the Federal, State and Local Government member agencies. Following the inclusion of New Zealand member agencies into the network during 2008, the A in AELERT changed from Australian to Australasian. Necessarily the AELERT National Committee became the AELERT Steering Committee. With this expansion, all Australian jurisdictions and New Zealand had a level of representation on the Steering Committee, making the network truly regional. 2.2.8 Structural Change At the February 2010 AELERT Steering Committee, the previous nomenclature of Sub-Committees and Working Groups was updated to reflect contemporary international trends with the implementation of Clusters as part of the AELERT structure.12 AELERT is now serviced by the following Clusters: Better Practice
Capacity Building Legal Practice Operational Special Projects Cluster
This move away from the Sub-Committees to the Cluster and project team approach was based upon a number of established environmental enforcement networks (European Union Network for the Implementation and Enforcement of Environmental Law (IMPEL), INECE and the Interpol Environmental Crime Programme) that hybridised their structures to provide the best fit for the network. 2.2.9 Established Links with other Networks During 2009 2010, the AELERT Secretariat increasingly received requests for assistance, advice, and support from a range of partner networks and international agencies. These requests were facilitated through to member agencies, and have resulted in a number of projects and new relationships, such as the New South Wales Department of Environment, Climate Change and Water partnering with the Department of Natural Resources in Ho Chi Minh City, Vietnam as part of an Asian Environmental Compliance and Enforcement Network (AECEN) Twinning Project.13 2.3 AELERT Present Day
AELERT provides an integrated approach to environmental compliance and enforcement regionally and, in part, beyond. This is accomplished by working together to deliver on-ground cooperation amongst agencies, and high level oversight by the Ministerial Council. However, Economic issues in the past few years have tightened the budgets of government agencies significantly. More restrictive fiscal situations have amplified the need for agencies to work together to realise joint benefits and outcomes. The AELERT Secretariat function is able to provide some level of facilitation and coordination within current resources, but the ideal situation of being able to give full service and support to active member agencies will be something to work towards in the future. 2.3.1 AELERT Secretariat The AELERT Secretariat undertakes ongoing liaison with peer networks such as INECE globally, and AECEN regionally as AELERTs nearest neighbouring network. The AELERT Secretariat facilitates and coordinates requests and partnership opportunities from sub-national, national, regional and global partners and stakeholders. The requests range from responses to and coordination of surveys and research being undertaken by partner networks, agencies or academia,14 through to specific requests for program assistance and points of contact in environmental regulatory agencies.
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The AELERT Secretariat facilitated the Australian contribution to Operation RAMP the Interpol Environmental Crimes Programme global enforcement operation targeting the illegal trade in reptiles. It has also provided a level of support to the Environment Protection and Heritage Council National Harmonisation of Environmental Laws project that is considering options for consistency across jurisdictions in respect to environmental regulation. The AELERT Secretariat continues to manage and maintain the AELERT website, which includes a continually expanding Resource Library and Shared Learning Resources section for member agencies. The AELERT Resource Library is a centralised repository of documentation, including presentations from previous AELERT Conferences, Policies, Guidelines and general reports relevant to the AELERT membership. During 2010, AELERT engaged with social networking through establishing a LinkedIn group for current and former AELERT members to share information and ideas, as well as serving as a mechanism for AELERT member agencies and third party organisations to advertise training and professional development opportunities.15 This social networking group continues to expand and be utilised by group members. 2.3.2 AELERT Clusters and Projects The various AELERT Clusters continue to develop a wide range of projects. Into 2011 and beyond, various training programs and opportunities for training and continuing professional development will continue to be offered to AELERT members with a number of AELERT member agencies taking the lead in organising and delivering a range of training events. Operationally, AELERT member agencies continue to work together on a number of initiatives. Collaboration thus far has been largely wildlife focussed. Planning is now underway for AELERT to champion a national operation relating to hazardous waste transfer and disposal. Efforts in other areas of concern will follow. 2.3.3 Membership and Second Tiers At the start of 2011, AELERT membership consists of about 75 member agencies and organisations (both Full and also Affiliate, being non-regulatory government agencies and interested academic institutions). This membership continues to extend across all jurisdictions in Australia and New Zealand and all levels of government. Across the ten jurisdictions within the AELERT network, a number are yet to establish a Second Tier network. Several jurisdictions have functional Second Tiers that deliver a range of forums, workshops and training to jurisdictional members. Some jurisdictions have combined their second tiers on geographic considerations in an effort to obtain enhanced benefits from working closely together.
2.3.4 Academic Engagement With early engagement by a proactive academic16 in 2003, and increasingly by other Australian Universities since, AELERT and key member agencies (bilaterally) have seen a greater level of engagement and interest by some of Australias leading academics in relation to environmental regulation, criminology and environmental crime. This mutual engagement should serve to strengthen relationships between government agencies and academic institutions, at the same time as aiding research relating to environmental crime, criminology and regulatory affairs throughout the region. 3 FUTURE OF AELERT
During the most recent Steering Committee meeting, in February 2011, the AELERT jurisdictional representatives stated strongly and reinforced the need that AELERT continue to deliver benefits to frontline practitioners, who are considered the core of the network. As such, it was agreed that following the 2011 conference that the AELERT conferences would become a biennial event. The biennial conference would be interspersed with increased Second Tier events within jurisdictions and across the various focus areas of the Clusters to provide frontline practitioners with greater opportunities to participate in thematic or issues based worksho0pes and seminars. With Steering Committee agreement, a submission was made to the EPHSC in May 2011 which resulted in AELERT receiving approval to increase its Secretariat from one to two permanent staff. The increased Secretariat, commencing from July 2011, will enhance service delivery to member agencies and provide greater oversight of AELERT Cluster projects. In relation to future directions, the Steering Committee gave strong support for a substantial delegation to attend, participate in, contribute to, and lead components of the 9th INECE conference. As such, the future direction of AELERT will be informed by the lessons and experiences of other peer networks. 4 CONCLUSIONS AELERT was established as a bottom-up network which has evolved to now include a top-down level of oversight and direction setting. This organic evolution has seen growth across the various environmental regulatory professional streams and inclusion of various additional commodity streams into the broader network. AELERT does not operate in an operational, policy or network vacuum. As an evolving network, AELERT continues to require a high level of political support and practitioner engagement that supports and drives ongoing mutual assistance and cooperation. The engagement of network members is a critical component of all AELERT activities, both operational and projects. As the AELERT experience has shown, the
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core group of individuals and agencies committed to progressing the development of a network is critical, and the ability to continually harness resources within and for a network is a key component to the networks success and longevity. As with any group or network, the projects being developed and delivered will continue to be undertaken by a small number of individuals within key AELERT agencies. It is the dedication of these people that will ensure the longevity of the network and hopefully inspire others into action to contribute. Documenting the first seven years of AELERTs evolution and growth as a regional network provides an overview of what has gone before and, hopefully, give context and guidance to others in establishing future networks, be they top-down or bottom-up. 5 REFERENCES The paper represents the views of the authors and does not necessarily represent the views of the Australasian Environmental Law Enforcement and Regulators neTwork (AELERT) or any member agency. This paper recognises the efforts of a relatively small group of dedicated professionals who shared a vision and committed a large amount of their time over many years to establish and develop AELERT into the environmental enforcement network that it is today. 2 The authors acknowledge the assistance of the following in reviewing this paper who ensured its accuracy; Mr Greg Sullivan, Chair AELERT, Mr Greg Reid, Vice Chair AELERT and New Zealand Jurisdictional Representative, Ms Rose Webb, Australian Government Jurisdictional Representative, Mr John Winkworth, former South Australian Jurisdictional Representative, and Robyn Bartel, AELERT Affiliate Member (University of New England). 3 Burnett, P, 2010, Welcome and Official Opening speech (Unpublished) 7th Australasian Environmental Law Enforcement and Regulators neTwork Conference, 04 November 2010, Canberra, Australian Capital Territory. 4 Australasian Environmental Law Enforcement and Regulators neTwork (AELERT), 2011a, Background. Accessed from http://www.aelert.com.au/?page_id=5 (06 January 2011); Pink, G, 2008, Building regulatory capacity in environmental agencies through tailored training. International Network for Environmental Compliance and Enforcement (INECE) Proceedings of the Eighth International Conference on Environmental Compliance and Enforcement Proceedings, South Africa. pp 225-233. Available at http://inece.org/conference/8/proceedings/35_Pink.pdf (06 January 2010). 5 AELERT, 2011, op cit. 6 Sperling, L, 2008, Rule of Law and the Environment in a Globalized World. International Network for Environmental Compliance and Enforcement (INECE) Proceedings of the Eighth International Conference on Environmental Compliance and Enforcement. Pp.515-526. Available at http://inece.org/conference/8/proceedings/69_ Sperling.pdf (06 January 2011) p 522. 7 Australasian Environmental Law Enforcement and Regulators neTwork (AELERT), 2011b, AELERT Charter. Available from http://www.aelert.com.au/documents/ AELERT%20Charter%20v5%20June%202009%20(FINAL)2.pdf. (03 February 2011).
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Bartel, R, 2008, The Formal and Informal Orders in Land Clearance Regulation in Australia. International Network for Environmental Compliance and Enforcement (INECE) Proceedings of the Eighth International Conference on Environmental Compliance and Enforcement. Pp.435-443. Available at http://inece.org/conference/8/ proceedings/60_Bartel.pdf (06 January 2011) p 441. 9 Pink, 2008, op cit. 10 Note following machinery of government changes, the Department of Environment and Heritage is now known as the Department of Sustainability, Environment, Water, Population and Communities (SEWPaC). 11 Bartel, R, 2008, op cit. p 441. 12 AELERT, 2011a, op cit. 13 Asian Environmental Compliance and Enforcement Network (AECEN), 2010. Vietnam and Australia Establish Twinning Partnership to Reduce Industrial Pollution in Ho Chi Minh City (18 August 2010). Available at http://www.aecen.org/stories/vietnamand-australia-establish-twinning-partnership-reduce-industrial-pollution-ho-chiminh (03 February 2011). 14 With the 2009 Organisation for Economic Co-operation and Development (OECD) research relating to Outcome Performance Measures of Environmental Compliance Assurance: Current Practices, Constraints and Ways Forward and 2011 European Union Network for the Implementation and Enforcement of Environmental Law (IMPEL) survey which considers complementary approaches to environmental inspections being two such examples. 15 Australasian Environmental Law Enforcement and Regulators neTwork (AELERT), 2010, Year In Review: Annual Report of the Australasian Environmental Law Enforcement and Regulators neTwork. Handout to AELERT 2010 Conference participants. 16 Dr Robyn Bartel, then of the Australian National University, took a lead role in bringing the twelve regulatory agencies together for the meeting that ultimately led to the establishment of AELERT.
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6 BIBLIOGRAPHY Australasian Environmental Law Enforcement and Regulators neTwork (AELERT), 2011, Background. Accessed from http://www.aelert.com.au/?page_id=5 (06 January 2011). Australasian Environmental Law Enforcement and Regulators neTwork (AELERT), 2011b, AELERT Charter. Accessed from http://www.aelert.com.au/documents/ AELERT%20Charter%20v5%20June%202009%20(FINAL)2.pdf (03 February 2011). Australasian Environmental Law Enforcement and Regulators neTwork (AELERT), 2010, Year In Review: Annual Report of the Australasian Environmental Law Enforcement and Regulators neTwork. Handout to AELERT 2010 Conference participants and available on AELERT website Resource Library. Canberra, Australia. Bartel, R, 2008, The Formal and Informal Orders in Land Clearance Regulation in Australia. International Network for Environmental Compliance and Enforcement
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(INECE) Proceedings of the Eighth International Conference on Environmental Compliance and Enforcement. Pp.435-443 Available at http://inece.org/conference/8/ proceedings/60_Bartel.pdf (06 January 2011). Boyd, J. A, 2002, Summary of Workshop: Asia & Pacific Regional Meeting (Facilitators: Kurukulasuriya, L., Comino, M., and Oposa, A.), International Network for Environmental Compliance and Enforcement (INECE) Proceedings of the Sixth International Conference on Environmental Compliance and Enforcement. Pp.174. Available at http://www.inece.org/conf/proceedings2/79-AsiaPacific.pdf. (12 January 2011). Burnett, P, 2010, Welcome and Official Opening speech (Unpublished) Australasian Environmental Law Enforcement and Regulators neTwork 7th Conference, 04 November 2010, Canberra, Australian Capital Territory. Environment Protection and Heritage Council (EPHC), 2010a, 22nd Meeting of EPHC: Communiqu - 4 November 2010. Available at http://www.ephc.gov.au/sites/ default/files/EPHC_Cmq__Communique_2010_11_04_0.pdf (17 December 2010). Environment Protection and Heritage Council (EPHC), 2010b, 21st Meeting of EPHC: Communiqu - 5 July 2010. Accessed from http://www.ephc.gov.au/sites/default/ files/EPHC_Cmq__Communique_2010_07_05.pdf (17 December 2010). Kaniaru, D, 2002, The Role of Institutions and Networks in Environmental Enforcement. International Network for Environmental Compliance and Enforcement (INECE) Proceedings of the Sixth International Conference on Environmental Compliance and Enforcement. Pp.1-5. Available at http://www.inece.org/conf/proceedings2/10Role%20of%20Institutions.pdf (08 December 2010). Jones, D., 2002, Summary of Plenary Session #9: Reports of Regional Meetings and Workshops (Moderators: Tony Oposa & Wout Klein), International Network for Environmental Compliance and Enforcement (INECE) Proceedings of the Sixth International Conference on Environmental Compliance and Enforcement. Pp.457-465. Available at http://www.inece.org/conf/proceedings2/77-Plenary%20 Session9ALT.pdf (12 January 2011). National Environment Protection Council (NEPC), 2009, Annual Report 2008 2009, Adelaide, South Australia. Available at http://www.ephc.gov.au/annual_report (17 December 2010). Pink, G, 2008, Building regulatory capacity in environmental agencies through tailored training. International Network for Environmental Compliance and Enforcement (INECE) Proceedings of the Eighth International Conference on Environmental Compliance and Enforcement Proceedings, South Africa. Pp.225-233. Available at http://inece.org/conference/8/proceedings/35_Pink.pdf (06 January 2010).
Sperling, L, 2008, Rule of Law and the Environment in a Globalized World. International Network for Environmental Compliance and Enforcement (INECE) Proceedings of the Eighth International Conference on Environmental Compliance and Enforcement. Pp.515-526. Available at http://inece.org/conference/8/proceedings/69_ Sperling.pdf (06 January 2011).
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NETWORKING IN EUROPE: HOW NETWORKING AND COOPERATION HAVE HELPED RESPOND TO ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT CHALLENGES IN IMPEL MEMBER COUNTRIES NICHOLSON, MICHAEL IMPEL Secretariat, Gulledelle 96, Brussels, Belgium. info@impel.eu SUMMARY IMPEL has a broad membership. Its members have hugely different resources available to them to implement roughly the same body of laws. Added to this are geographical, political and cultural conditions that make it more challenging for some countries to implement and enforce legislation in the way the policy maker intends. However networking and cooperation demonstrated here have helped to bridge the gap and reduce the effect of the factors above. The three qualitative case studies in this paper highlight organisational change in member countries via IMPEL projects to the working practices of regulatory authorities to improve environmental outcomes such as the inclusion of more risk criteria in Portuguese inspection planning as a result of the Doing the Right Things project or better communication with the public in Slovenia as a result of the IMPEL Review Initiative. They also hint at quantitative changes such as the change to Estonias Waste Act or the simplification of Scotlands quality control system. Often it is not about reinventing the wheel but simply recycling what is already there by learning from others successes and experiences. 1 INTRODUCTION The European Union Network for the Implementation and Enforcement of Environmental Law (IMPEL) is an international non-profit association of the environmental authorities of the EU Member States, acceding and candidate countries of the European Union and EEA countries. At present, IMPEL has 45 members / environmental authorities in 32 member countries1. IMPEL was set up in 1992 as an informal Network of European regulators and authorities concerned with the implementation and enforcement of environmental law. The Networks objective is to create the necessary impetus in the European Union to make progress on ensuring a more effective application of environmental legislation. It is a forum for collaborating, sharing, reviewing, understanding and applying good practice in implementing and enforcing environmental regulation. The core of IMPELs activities concern: e xchange of information and experience on implementation and enforcement of existing EU environmental legislation;
d evelopment of common views on the coherence and practicality of current EU legislation; commenting on issues of practicality and enforceability at an early stage in the development of new EU legislation; development of tools and guidance for use by environmental authorities. During the previous 19 years IMPEL has developed into a considerable, widely known organisation, being mentioned in a number of EU legislative and policy documents, e.g. the 6th Environment Action Programme2 and the Recommendation on Minimum Criteria for Environmental Inspections3. The expertise and experience of the participants within IMPEL make the network uniquely qualified to work on both technical and regulatory aspects of EU environmental legislation. IMPEL members have different amounts of resources available to them, both human and financial, to implement and enforce approximately the same number and body of laws around Europe. This of course poses a challenge, though IMPEL and its activities are designed to help reduce the effect of these differences by facilitating cooperation. This paper will briefly examine the structure of IMPEL as a means to assisting better networking and cooperation within the membership of IMPEL. This will then be applied to three qualitative case studies4 where environmental compliance and enforcement challenges have been tackled via IMPEL projects: 1) better inspection planning in Doing the Right Things, 2) assisting in the implementation of the Recommendation of Minimum Criteria for Environmental Inspections in IRI Scotland and IRI Slovenia and, 3) an inspector exchange programme in the Baltic region focussing on the trans-frontier shipment of waste. 2 STRUCTURE OF IMPEL 5
IMPEL is an Association with a legal statute and a body of rules to govern the relations between its members and with external organisations. This formality, however, belies and possibly misrepresents its character and arguably one of its strengths. IMPEL is a network where members voluntarily take part in its meetings, offer their expertise and share their knowledge about environmental compliance and enforcement. The expertise and experience of the participants within IMPEL make the network uniquely qualified to work on both technical and regulatory aspects of EU environmental legislation. Apart from one paid full time employee in the secretariat, all participants are employed by their national organisations. Funding is sourced via a membership fee, voluntary contributions of its members and other external funding sources such as the European Unions LIFE+ programme. Figure 1 is a summary of the structure of IMPEL. It describes the relationship between the main elements of the network and describes their core function.
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Figure 1: Summary of the Structure of IMPEL
The main body of project work is carried out in the Clusters. The Clusters provide a forum for technical specialists and project managers to discuss IMPEL projects and enable initial discussions of new project ideas and peer review of existing projects. Projects are ad hoc working groups of various representatives from the national authorities plus, on occasion, the European Commission or other external observers. IMPEL projects bring together mostly inspectors but also policy makers, technical specialists, lawyers and communications experts. This provides a varied perspective on the strengths and weaknesses of a piece of legislation in terms of its practicability and enforceability. As a general rule, IMPEL projects look at how legislation is currently implemented and enforced and then good practice and/or tools for the inspection and/or permitting process are defined or developed. Projects are often in the form of peer reviews, comparison projects, information exchange, good/best practice transfer, inspector exchange and/or joint inspections. National Coordinators, as fixed focal points in an IMPEL member country, represent their country at IMPELs General Assembly meetings and act as a point of contact. In some cases, there is more than one environmental authority within a country and so they represent several organisations within their country. The obvious strength being that they are one point of reference for the network within that country and they can rely on that person to disseminate all information to all organisations within that country. It is important to communicate success in order to ensure that project outcomes are recognised. Each project is circulated amongst the IMPEL members and their national network of contacts. The website is also used to display and promote the work of IMPEL. Every year, Cluster 2 on Trans-Frontier Shipments of Waste organises a conference to promote its work to key stakeholders. Every three years,
IMPEL leads on the organisation of a broader conference on the implementation and enforcement of European environmental law in practice. These conferences target experts and practitioners in the field of transposition, implementation, application (e.g. permitting), inspection, enforcement and reporting of European environmental legislation; working for national, regional and local authorities. As well as an active website that provides news to its members, updates on when meetings are taking place, and can store past and present project reports and project documents; IMPEL uses several IT tools to manage its activities. These are essential for good project management and communication amongst a large, diverse network. IMPELs Basecamp is accessible through the IMPEL website, and allows project teams to share live project reports; edit live documents using the Whiteboard; share information about project meetings; store the latest versions of project documents, share an online calendar and exchange messages. The IMPEL Forum is a relatively new addition to the set of tools that can help to bring environmental practitioners together. The IMPEL Forum is open to all, not just IMPEL members, and invites questions and comments about many different topics and practices going on in Europe and beyond. As a response to a European Union Committee of the Regions report6, IMPEL has gone further to extend the network of participants in its activities and to promote outcomes more broadly, by developing National Websites that sit underneath the IMPEL website. These communicate many of IMPELs messages in the IMPEL members own language. 3 CASE STUDIES 3. 1 Case Study 1: Doing the Right Things: Inspection planning in Portugal In 2001 the European Parliament and European Council adopted the Recommendation (2001/331/EC) providing for minimum criteria for environmental inspections (RMCEI)7. The purpose of the RMCEI is to contribute to, and help to achieve, a more consistent implementation and enforcement of European Union environmental law in all Member States. The RMCEI establishes guidelines for environmental inspections of installations, other enterprises and facilities whose air emissions, water discharges or waste disposal or recovery activities are subject to authorisation, permit or licensing requirements under EU law (controlled installations). All inspecting authorities in the Member States should apply these guidelines. They concern amongst others minimum criteria on establishing and evaluating plans for environmental inspections. Since the adoption of the RMCEI, experts within IMPEL have been discussing on several occasions how to implement these planning criteria in the RMCEI. The Doing the Right Things (DTRT) series of projects aimed to develop a practical guide on planning of environmental inspections (see annex 1), that would be
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sufficiently flexible to accommodate the different needs of the inspection authorities in the IMPEL member countries and at the same time would enable them to comply with the requirements of the RMCEI. For the Portuguese Environmental and Spatial Planning General Inspectorate, the DTRT project has influenced and changed specific aspects of planning inspections. Isabel Santana, Portuguese National Coordinator for IMPEL and Co-Chair of Cluster 1 on Permitting and Inspection, said that setting priorities for inspections was a key challenge: With the help of DTRT, we have worked on improving the risk assessment database for Integrated Pollution and Prevention and Control installations; we have inputted more accurate location criteria, information about the operators attitude and the number of accidents and incidents was also included. This has better prepared inspectors when going to sites and though it had been a challenge to keep the database updated, she said they had benefitted from this because there had been a better targeting and use of resources. Another benefit they had seen was the improvement in the relationship with the separate permitting organisation in Portugal who manages the data of three of the risk criteria (emissions to air, water and waste management). She said that there was now a more effective exchange of data (- European Pollutant Release and Transfer Register data) to update IGAOTs risk assessment database. Going forward, IGAOT are expanding this approach to Registration, Evaluation, Authorisation & restriction of CHemicals(REACH) inspections and other directives as well. Another change had been the implementation of a more pro-active communication strategy that took place before the enforcement of the REACH Regulation. Isabel said that they had worked with the chemicals sector, plastics and production of paints and varnishes, communicating effectively with industry associations and installations to inform them about the requirements of legislation. This had produced excellent results in terms of compliance and they were also now considering expanding this approach to other industrial sectors as well. Isabel said that the main benefits of projects like DTRT were the exchange of ideas between inspectorates that are working on similar things and that are tackling the same problems: This is a huge benefit for us. Networking is very important because we have realised we are not working alone to come up with solutions. Many of the solutions have or are being tackled by other countries and so it is important not to re-invent the wheel. In terms of who was involved in projects like DTRT, Isabel said that a broad range of participants in a project team is often an advantage: Though many of the projects we participate in require knowledge about inspections, the participation of lawyers for example often provide a different point of view to a problem and can enhance the final outcome. She suggested it was also important to match the skills with the project because some projects require different skills such as those that focus upon communication with external audiences like the operators or the public. Finally, she said it was also important that the participant was of sufficient seniority to be
able to diffuse that knowledge back within their own organisation and that there is a consideration made when sending experts that are either at inspector, Head of Unit or Director level. Isabel said that there were limitations to projects like this and gathering information in this way. It still requires time and resources to implement good practice back in your home organisation: This is of course a challenge. High level management support is crucial to ensuring that the lessons learnt from other organisations experiences can be successfully embedded in your own organisation. 3.2 Case Study 2 - The IMPEL Review Initiative: a view from Scotland and Slovenia
The IMPEL Review Initiative (IRI) scheme is a voluntary scheme developed by the IMPEL Network providing for informal reviews of environmental authorities in IMPEL Member countries. It was set up to implement the requirements of the RMCEI:
Member States should assist each other administratively in operating this Recommendation. The establishment by Member States in cooperation with IMPEL of reporting and advice schemes relating to inspectorates and inspection procedures would help to promote best practice across the Community.8
The IRI is an informal review, not an audit process. The IRI is intended to enable the environmental authority and the Review Team to explore how the authority carries out its tasks. It identifies areas of good practice for dissemination together with opportunities to develop existing practice within the authority and authorities in other IMPEL Member Countries. The Review Team consists of a broad cross section of the IMPEL network, focused upon the inspection and enforcement of a small number of EU Directives or Regulations such as IPPC or SEVESO. The IRI provides advice for the purpose of benchmarking [against other inspectorates] and continuous improvement of their organisation. It also encourages capacity building in environmental authorities in IMPEL Member Countries, the exchange of experience and collaboration between these authorities on common issues and problems. In 2007 the Scottish Environment Protection Agency (SEPA), and in 2010 the Inspectorate for the Environment and Spatial Planning in Slovenia, both undertook IMPEL IRIs. Development Unit Manager, Simon Bingham, hosted IMPEL on behalf of SEPA but he has also subsequently acted as project manager on three more IRIs in Portugal, Slovenia and Latvia. Senior inspector, Tatjana Bernik, and National Coordinator for Slovenia in IMPEL, hosted the review team in Ljubljana. When asked what they had learnt from the IRI process and what the main benefits of conducting peer reviews like the IRI were, Simon said that: ...they allow you to stand back and assess your own organisation from a more objective point of view. Though you may know your own organisation, sometimes you do not question your own organisation. It is good to be an observer of your own organisation in
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a team where others are reviewing and questioning why you do something in the way you do. Tatjana said that the IRI provided them with a list of good practices and opportunities to develop in the future: this helped us to recognise where the gaps were and what we can do easily by ourselves to improve implementation and enforcement. She said that the IRI is quite structured in terms of the questions it asks the host country but it is up to the host to set the framework of the IRI, in other words, what areas will be reviewed (IPPC, SEVESO, Water Framework Directive etc) and it can invite other authorities to join the process. Simon commented upon two key benefits that the project delivered: Firstly, the IRIs highlight where SEPA is a model for good practice. This is very useful for us because it highlights to our senior management where things are going well according to this body of senior, external inspectors from around Europe and therefore what we need to be careful of when considering change. Secondly, the opportunities for development were also very useful because it helped us to identify priorities for change. It helped us to see something from an external point of view and helped us to question why it was we were not doing something or why we had not given it a certain priority. The IRI has also influenced and led to change in these organisations. Tatjana said that the IRI provided good experiences and opportunities to implement some organisational changes to other inspection services within their Inspectorate. Some specific changes that were made included giving greater emphasis to the prioritisation of work; to introduce a Frequently Answered Questions (FAQs) page on the website; and to use the website more as a medium for communication with the public for example by making available broad yearly inspection plans and information on targeted campaigns. Simon added: ...our risk assessment system was highlighted as a good practice and this has since been further strengthened. Secondly, our quality control system was again considered as good but it was quite large and the review team recommended simplifying and reducing the number of documents it contained. Since then 26 different types of inspection forms for example have now been reduced to 2!. Simon and Tatjana were asked what the main benefits of conducting peer reviews were. Simon said that: the IRI or similar peer review should not be underestimated or under-valued. Money cannot buy this level and type of expertise. Peer reviews like the IRI help to create a shared understanding, promote and share new ideas, validate your own systems and ways of working, to benchmark and develop consistency, fairness and a level playing field. IMPEL collaboration through the IRI is immense. You could hire a consultant to help you review your own organisation and they will probably tell you what you want to hear. Alternatively you could use networks, such as IMPEL, to provide that advice honestly and cheaply9. Tatjana concurred: From my point of view this is the cheapest way to get good results from highly experienced and professional experts in the field of environmental regulation without consultants. I think this type of review could even be applicable to many organisations outside of the field of environment.
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Case Study 3 - Baltic Exchange Days: the Estonian Experience
In June 2010, IMPEL organised a four day exchange programme in Estonia. Inspectors from Estonia, Latvia, Lithuania, Poland, Finland and the Netherlands came together to share learning and discuss specific challenges relating to waste shipments and waste shipment regulations. Of particular concern were illegal shipments of waste between Baltic countries and in this case waste arriving in Estonia from Latvia and Finland. The IMPEL team was also joined by a member of the Estonian Environmental board in charge of permitting and notifications of waste transport as well as two officials from the Tax and Customs Board of Estonia (TCB) responsible for checks at land borders and ports. Rene Rajasalu, senior inspector at the Estonian Inspectorate and lead for this IMPEL project, said that the aim was to tackle the problem of illegal waste shipments and improve the knowledge and understanding of participants of the Waste Shipment Regulations, both Estonian Inspectors and the TCB. A joint visit was also made by the Finnish and Latvian inspectors to a recycling factory of lead acid batteries: There has been an up-surge in exports in recent years and now 20,000 tons are collected in Baltic states before being transported into Estonia. Rene said that his organisation had benefited from the project because of the more direct contact with the Inspectorates in Finland, Latvia and Lithuania. Points of contact had been established so that routine checks on shipments can be made more quickly and accurately: My two colleagues in the Estonian Inspectorate who were also on this project have now worked with, and learned from, other inspectors from other countries that have significant experience on how they handle waste shipment issues. This has helped to diffuse skills and knowledge around the Estonian Inspectorate quickly and in a practical way. Moreover more formal points of contact have been established with the TCB who now have specific points of contact not only within the Estonian Inspectorate but also in Finland and in Latvia. This has helped to reduce the potential for illegal shipments as the TCB have a better knowledge and understanding of Waste Shipment Regulations and they have specific points of contact to follow up any queries. Some of the Estonian Inspectorates working practises have also changed as a result of the IMPEL project, for example, some of the conclusions and inspection practices have informed and influenced Estonias National Waste Act as well as changed how Estonian authorities check for illegal waste shipments. Rene said that the project used IMPELs Basecamp system to store documents and share information: This was very useful and helped us to collaborate before and after the event. It is also useful for storing information like contact lists and points of contact within other countries. The website could perhaps store more guidance documents and manuals but these are often easy to find on other websites. When asked about following up the learning in this project, Rene said that the Estonian Inspectorate will be meeting with the Russian authorities to discuss waste shipments
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between their two countries. The summaries and outcomes from this project along with several other IMPEL projects (End of Life Vehicles project, Enforcement Actions I and Enforcement Actions II) will be used to stimulate discussion and to help improve the knowledge of the Russian officials of Estonias waste shipment regulations. 4 CONCLUSIONS IMPEL has a broad membership. Its members have hugely different resources available to them to implement roughly the same body of laws. Added to this are geographical, political and cultural conditions that make it more challenging for some countries to implement and enforce legislation in the way the policy maker intends. However networking and cooperation demonstrated here have helped to bridge the gap and reduce the effect of the factors above. The informality in IMPELs structure is one of its strengths. Its minor obligations (e.g. funding is limited to one full time employee) mean that it is not overly burdensome. All participation is voluntary and ad hoc dependent upon the interest of its members in specific projects. This enables some members more freedom to pursue activities within this international forum than they would otherwise have been able to in a larger, more structured and financially onerous organisation. IMPELs projects are the networks lifeblood. This face to face contact enables inspectors and policy makers to see that they are not working alone in silos but rather that they are working on the same challenging situations as others in 30 or more other European countries. The IRI is a relatively low cost, peer based review project, that brings together a diverse set of skills, experience and expertise with regard to environmental compliance and enforcement. Though this could be considered as a limitation, it is important that the IRI remains an informal review and is not considered as an audit. This gives it its inherent strength because it engenders trust and cooperation amongst its participants and fosters a collaborative atmosphere where good practice and areas for improvement can be identified in a positive and constructive manner. The development of methodology such as that demonstrated in the Doing the Right Things case study, illustrates how IMPEL members are working towards better coherence and common views on implementation and enforceability. Better planning of environmental inspections helps to better management of risk and better, more intelligent use of increasingly limited resources available to the Ministries and inspectorates around Europe. The exchange of experience demonstrated in the third case study highlights how the spread of good practice leads to an improvement in the quality of the work of environmental authorities and how it contributes to continuous improvement of quality and consistency of application of environmental law across the EU - the socalled: the level playing-field.
These three qualitative case studies suggest deeper organisational change being made to the working practices of regulatory authorities of IMPEL member countries to improve environmental outcomes such as the broader inclusion of DTRT risk criteria in Portuguese inspection planning or better communication with the public in Slovenia. They also hint at quantitative changes such as the success of communication with REACH operators in Portugal, the change to Estonias Waste Act or the simplification of Scotlands quality control system. Arguably, more quantitative research on this could be carried out but the paper provides an opportunity to see how networking and cooperation have helped IMPEL member countries respond to environmental compliance and enforcement challenges. Figure 2: The Environmental Planning Cycle from Doing the Right Things10
1. Planning 1b. Setting priorities
risk assessment ranking and classification resources
1c. Defining objectives and strategies

objectives and measurable targets inspection strategies to ensure compliance communication strategy
1a. Describing the context

identifying the scope information gathering
1d. Planning and review

o organizational, human and financial conditions o inspection plan (including inspection schedule) o review and revision

4. Performance monitoring
monitoring accounting for effort, performance results comparing and auditing external reporting
2. Execution Framework
work protocols and instructions protocols for communication, information management and information exchange equipment and other resources

3. Execution and Reporting
routine inspections non-routine investigation o accidents o incidents o occurrence of non compliance reporting information exchange with partner organisations
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5 REFERENCES The EU 27, acceding countries: Croatia, FYR Macedonia, Iceland and Turkey; and Norway as a member of the European Economic Area. 2 Decision No 1600/2002/EC of the European Parliament and of the Council laying down the Sixth Community Environment Action Programme (22 July 2002) available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2002:242 :0001:0015:EN:PDF. 3 Recommendation of the European Parliament and of the Council on Minimum Criteria for Environmental Inspections (2001/331/EC) (04 April 2001) available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2001:118:0041:0041:E N:PDF. 4 Case study responses were edited for brevity and fluency by the author. Responses were checked and approved by the interviewee. 5 Available at: http://impel.eu/about/organisation. 6 Opinion of the Committee of the Regions on The role of local and regional authorities in future. environmental policy (2011/C 15/02) (18 January 2011) available at: http://impel.eu/ wp-content/uploads/2011/01/2011-01-18-Regions-Insp.pdf p.C15/6. 7 Recommendation of the European Parliament and of the Council on Minimum Criteria for Environmental Inspections (2001/331/EC) (04 April 2001) available at: http://eur-lex. europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2001:118:0041:0041:EN:PDF. 8 Ibid., p.2. 9 The IRI team provides its time for free so costs are usually associated with just the travel, accommodation, room hire etc. On average, IMPEL IRIs cost ( 7,000). This cost is spread out over the whole network. 10 IMPEL, Doing the Right Things II: Step by step guidance book for the planning of environmental inspections (December 2007) available at: http://impel.eu/tag/guidancebook.
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CREATING AND SUSTAINING REGIONAL ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT NETWORKS: LESSONS FROM THE EAST AFRICAN NETWORK FOR ENVIRONMENTAL COMPLIANCE & ENFORCEMENT OPONDO, GERPHAS KEYAH Regional Coordinator, East African Network for Environmental Compliance and Enforcement, Nairobi, Kenya, gopondo@nema.go.ke/gerryopondo@yahoo.co.uk SUMMARY Over the past four decades, environmental law has become central to global efforts to implement a wide range of environmental programs designed to protect air, water, natural resources, wildlife, and public health. However, simply having environmental laws in place is not enough to address the ever-increasing environmental challenges. Governments must find ways to ensure that the regulated community meets the requirements put forth in the environmental laws and their implementing regulations. Environmental compliance and enforcement requires strong and consistent institutional and societal commitments to resolve specific public health and environmental challenges through effective implementation of environmental laws. Strengthening environmental compliance and enforcement requires collective efforts among institutions and individuals. However, the main challenge without contradicting each other by cooperating harmoniously is how to deal with the divergent and often conflicting mandates of the various regulatory agencies. To address this, there is need to have in place a mechanism or a forum that will bring together all the actors to discuss issues and explore means of collaborating with and assisting each other in the enforcement of environmental legislations that fall within their mandates and responsibilities. Informal compliance and enforcement networks provide a perfect forum for this type of collaboration. This paper describes the process of developing such informal networks in the context of the East African Network for Environmental Compliance and Enforcement. The paper also discusses the strategies that have been employed to ensure sustainability of the network, as well as the challenges and the strategies being employed to overcome the same. 1 INTRODUCTION The term network, used in the context of organizational governance, refers to an extended group of people with similar interests or concerns who interact and remain in informal contact for mutual assistance or support. In the context of global governance, network is a term that may apply to many forms of cooperation across governments. However, in the context of this article, a network is a form of cooperation involving governments, governmental institutions, or government officials where members interact with their peers directly and operate without a
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formal treaty or international institution. Several such networks have been created in the field of environmental compliance and enforcement some of them are general in scope, while others are topical. These types of networks are increasingly having a major impact on the effectiveness of regulatory institutions of states. 2 DEVELOPMENT OF THE EAST AFRICAN NETWORK FOR ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
One of the key outcomes of INECEs 8th International Conference on Environmental Compliance and Enforcement in Cape Town, South Africa, was the commitment to explore opportunities for regional networking in Africa. During the above stated conference, INECE hosted a regional conference for compliance professionals from sub-Saharan Africa. Participants considered the benefits of a regional enforcement network as one of the tools necessary for strengthening environmental enforcement capacity in the region. The regional conference resolved to establish the SubSaharan Network for Environmental Compliance & Enforcement with the objective of enhancing environmental compliance and enforcement in the region by sharing information and experience. Participants agreed to divide the network into four sub-regions, each with a sub-regional focal point namely: Eastern Africa (Kenya); Southern Africa (S. Africa); Central Africa (Cameroon); and West Africa (Ghana). However, without sufficient leadership and activities at the sub-Saharan level, the network did not live beyond the conference. Despite the failure by the Sub-Saharan Network to register progress in meeting its objective, the idea of regional environmental enforcement networks for Africa did not die. On 6-7 May 2010, delegates from the East African nations of Burundi, Kenya, Rwanda, Tanzania, and Uganda, along with environmental compliance and enforcement experts from the international community, gathered in Nairobi, Kenya, for the Launching Conference of the East African Network for Environmental Compliance and Enforcement (EANECE). At this conference, delegates from the five East African countries resolved to establish this Network. 2.1 Kenyas Leadership Role in Steering the Network
The National Environment Management Authority is the principal agency of the Government of Kenya responsible for coordinating and supervising all matters relating to environmental management in the Kenya. The National Environment Management Authority participated in the 8th International Conference on Environmental Compliance & Enforcement. At the regional conference where the Sub-Saharan Africa Network was established, Kenyas Director of Environmental Compliance & Enforcement, Mr. Benjamin Langwen, was designated as the subregional focal point for Eastern Africa. After the conference the National Environment Management Authority convened the first meeting with relevant institutions within Kenya and the idea of establishing a network was accepted. In January 2010, National Environment Management Authority initiated the process of establishing the East African Network for Environmental Compliance
& Enforcement. The initial steps involved mobilizing all the national institutions involved in environmental management to support the idea of establishing a regional network for environmental compliance and enforcement. The other countries in the region were simultaneously mobilizing their national institutions in readiness for the regional conference in May, 2010 for the launching of the regional network. On 31st March 2010, National Environment Management Authority hosted a workshop in Nairobi for senior officials from government ministries, agencies, and institutions who have in their mandates environmental management, regulatory, and enforcement responsibilities, to discuss and agree upon cooperation and collaboration in the field of environmental compliance and enforcement in Kenya. Participants at the meeting resolved to establish a national network for environmental compliance and enforcement in Kenya. Participants also resolved to support the establishment of a regional network for East Africa. On 6th - 7th May, 2010, delegates from the five East African nations of Burundi, Kenya, Rwanda, Tanzania, and Uganda gathered in Nairobi for the Launching Conference of the East African Network for Environmental Compliance & Enforcement. After two days of deliberations, the delegates adopted a charter establishing East African Network for environmental Compliance and Enforcement. The delegates also accepted the National Environment Management Authoritys offer to host the Secretariat of the network. 2.2 Mission, Goals and Objectives of the Network
The mission of EANECE is to promote the rule of law, good environmental governance, and sustainable development in East Africa through efficient and effective implementation and enforcement of environmental requirements. The goals of the East African Network for Environmental Compliance & Enforcement include: to build capacity of environmental management agencies in East Africa on environmental compliance and enforcement; to promote EANECE as a strong and vibrant regional network and strengthen its affiliate national chapters for effective compliance and enforcement cooperation; and, to create awareness of the importance of environmental compliance and enforcement. The specific objectives of the network include: strengthening relationships within each of the East African countries between government entities that have in their mandate environmental management, compliance and enforcement responsibilities, in order to improve compliance with environmental requirements; improving cooperation between East African countries on mutually beneficial environmental regulatory compliance issues through sharing of best practices and information on strategies for strengthening compliance and enforcement; promoting the development and implementation of improved environmental policies, laws, regulations, and institutional arrangements; and, enhancing the capacity of the environmental management agencies and institutions in East Africa to enforce environmental requirements.
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With the support from the International Network for Environmental Compliance & Enforcement, the East African network held the first meeting of its Executive Committee in September 2010. Also in attendance to share experiences were two representatives of the United States Environment Protection Agency and the Coordinator of the Network for Environmental Compliance and Enforcement in the Maghreb. The meeting adopted a three year Action Plan (October 2010- September 2013). The Action Plan outlines the objectives and strategies under each goal, and enumerates several actions necessary to achieve each goal. Implementation of this Action Plan is already underway. 2.3 Success for Sustaining the Network
The East African Network for Environmental Compliance & Enforcement believes that strong national environmental compliance and enforcement networks are essential for the effectiveness, visibility, and vibrancy of the regional network. The network is, therefore, working with the respective national environmental management agencies in the five East Africa nations to build new national networks and strengthen existing ones. Kenya was the first one to launch its national network on 31st March 2010 with twenty three governmental institutions subscribing to the network. Tanzania followed suit and launched its national chapter on 21st September 2010 at a conference in Dar-esSalaam. Over thirty institutions signed up to join the Tanzanian network. Uganda has set in motion plans to hold a conference for the launch of its national network in the first half of 2011. It is expected that Rwanda and Burundi will follow suit and establish their national networks before the end of this year, 2011. At the first Executive Committee meeting, it was proposed that each national chapter should make some financial contribution towards the ruining of the Secretariat. Effective 1st July 2011, each national network will contribute a modest USD 1000 annually to the Secretariat. Based on the response, this figure may be enhanced in the future. 2.3.1 Mainstreaming Network Activities in Institutional Programmes of Work The East African Network for Environmental Compliance & Enforcement encourages participating institutions to include both national and regional network activities in their strategic plans, annual work programmes, and budgets to ensure the necessary support and strength through funding from member institutions. Kenyas national environment Management Authority has already done the same, and it is hoped that the rest of the member institutions across the region will follow suit. It is intended that any support from development partners will compliment the efforts of the networks member institutions in sustaining network activities.
2.3.2 Continuous Communication with Members In order to keeps the fire burning, the network Secretariat maintains continuous communication with members on various topical issues including reporting on the progress, successes, and challenges of network activities. The secretariat maintains this communication mostly through email and telephone. Members are also encouraged to maintain communication amongst themselves. This has allowed friendships to develop out of the relationships through the network. Accordingly, many participants now view each other not just as professional colleagues but also as friends. This type of relationship has kept alive continued individual interest and participation in the network. 2.3.3 Demonstrating the Value of the Network The EANECE Secretariat has continuously strived to demonstrate the value of the network to the participating institutions. For example, on 3-5 May 2010, just before the regional conference to launch the East African network, the Secretariat, with the support of Kenyas National Environment Management Authority, the Royal Danish Embassy in Nairobi, USAID-Kenya, INECE, and the United States Environmental Protection Agency (USEPA) organized an executive workshop on environmental compliance and enforcement at the Kenya School of Monetary Studies, Nairobi, for twenty-five government officials involved in environmental management from the five East Africa nations .The workshop featured the following courses: P rinciples of Environmental Compliance and Enforcement. Conducting Environmental Compliance Inspections. Developing Performance Measures for Environmental Compliance Enforcement Programs.
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This workshop demonstrated to the participants the benefits that are possible through participation in the network. Another example is Kenyas National Environment Management Authority has now opened up its Enforcement Course, previously reserved for its employees, to participants from other government agencies in Kenya. So far, twenty-two environmental inspectors from the City Council of Nairobi have been trained. The Secretariat has continued to organize fora where members meet to exchange information on various environmental issues. 2.3.4 Establishing a Permanent Secretariat The East African network owes its stable rise and success to the existence of a dedicated Secretariat. During its formative stages of the network, the National Environment Management Authority of Kenya recruited a Coordinator through the support of development partners. The Coordinator was responsible for putting in place all the necessary preparations for the establishment of the network, as well as
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follow up activities to ensure the network grows. Currently, the Coordinator heads the Secretariat and is fully dedicated to the work of the Network. The National Environment Management Authority of Kenya has provided office space for the Secretariat, while other support, including remuneration, currently comes from development partners. Although the Coordinator currently mans the secretariat singly, it is hoped that the staffing levels will improve in future as the activities of the Network also expand. The long-term goal is to have a permanent Secretariat to serve the various needs of the network. 3 CHALLENGES IN THE DEVELOPMENT OF THE EAST AFRICAN NETWORK FOR ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT 3.1 Understanding the Concept of Informal Networking
During the initial stages of the network, it was very difficult to get participants from government agencies to understand the concept of informal networking in the context of environmental compliance and enforcement. That formal government agencies as well as government officials could cooperate, interact, and operate with their peers directly without a formal agreement, treaty, or international institution was a new concept which required greater understanding. However, with practical examples from other networks, such as the Network Environmental Compliance and Enforcement in the Maghreb, EANECE was able to surmount this hurdle. Today, the idea of informal networking has become acceptable among all the participating institutions and individuals in the Network. 3.2 Obtaining Political Support for the Network
Whereas the participating government institutions and officials engage at the informal level, political support from key decision makers in government, especially the ministers of environment and the heads of the participating institutions, is key to the success of the network. It has been a challenge for the Secretariat of the East African network to get full commitment of the various participating institutions. This has been a major challenge particularly in Rwanda and Burundi where participation in the networks activities is still lackluster. However, the network is slowly overcoming this challenge by engaging a wide range of participants and demonstrating the value of the network through practical activities on the ground. 3.3 Fundraising for the Network
Currently, the network is majorly dependent on funding from development partners, particularly the Danish International Development Agency and the United States Environmental Protection Agency through the International Network for Environmental Compliance & Enforcement. The National Environment Management Authority of Kenya also provides limited funding for Kenya-specific activities. Whereas there have been proposals that the participating institutions
make some financial contributions, still no agreement exists on how much they should pay. Also, it is a challenge for many government institutions to make budgetary allocations for activities of the network that may not have been captured in the long term strategic plans. It has been recommended that all the participating institutions should consider incorporating the networks activities in their annual work programmes and budgets effective July 2010. Only time will tell if this strategy succeeds. Another challenge, especially when approaching development partners for funding, is the informality of the network. Most of the development partners are used to dealing either with government agencies or other incorporated bodies such as non-governmental organizations. Many times, therefore, they raise questions of accountability with respect to the informal network. The East African Network is currently considering various innovative options to address this challenge, including the possibility of incorporating the Secretariat. 4 CONCLUSION The East African Network for Environmental Compliance and Enforcement is one of the newest regional networks in the field of environmental compliance and enforcement. This network has provided a forum for environmental agencies across East Africa to collaborate and cooperate in order to achieve sustainable development through compliance with environmental requirements. Whereas the development process of this network may be different from those of other regional networks, valuable lessons can be drawn from its strategies for success as well as how it has responded to emerging challenges. With a steady growth, this network is bound to play a leading role in enhancing environmental compliance and enforcement not only in Africa but also globally. 5 BIBLIOGRAPHY Gerardu, J., Jones, D., Reeves, M., Whitehouse, T. and Zaelke, D (Eds.): Proceedings from the 8th International Conference on Environmental Compliance and Enforcement, 2008, p. 7 10. Slaughter, A.M., A New World Order, (2004). Zaelke, D., Kaniaru, D. and Kruzikova E. (Eds.), Making Law Work: Environmental Compliance and Sustainable Development, 2005, Vol.2, p. 383 431.
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ASSESSING THE UTILITY OF ENVIRONMENTAL ENFORCEMENT NETWORKS: MAXIMIZING BENEFITS TO MEMBERS PINK, GRANT Secretary, Australasian Environmental Law Enforcement and Regulators neTwork (AELERT), C/- secretariat@aelert.com.au; Director, Compliance and Enforcement Branch, Department of Sustainability, Environment, Water, Population and Communities (DSEWPaC). GPO Box 787, Canberra, Australian Capital Territory, 2601, Australia, grant.pink@environment.gov.au
... global problems need global partnerships ... [and] enforcement networking is one small example of the benefit of such cooperation. 1
SUMMARY
This paper provides a summary of the authors recent study that assessed the utility of environmental enforcement networks. The study considered fourteen current and active environmental enforcement networks, at the sub-national, national, regional and global levels, from seven countries. The study established that there is utility in networks across the countries and networks studied. Further, the study identified a range of strategies and potential activities for environmental enforcement agencies to assist them in maximising the benefits they derive from their network engagement. 1 INTRODUCTION: ASSESSING THE UTILITY ENVIRONMENTAL ENFORCEMENT NETWORKS OF
Modern policy accepts that environmental crime is becoming increasingly interjurisdictional and global in nature.3 As a result, environmental enforcement agencies (agencies) are looking for ways to increase their regulatory reach.4 Environmental agencies utilize environmental enforcement networks (networks) to achieve greater efficacy in response to this trend, with academics and practitioners5 alike noting a proliferation of networks since the 1990s.The consequence of this proliferation is that environmental compliance and enforcement practitioners and agencies increasingly involve and invest in networks. Agency involvement has led to a heightened level of network significance and study, with particular attention given to how agencies might best utilise networks to assist them in achieving improved environmental enforcement outcomes. 2 BACKGROUND The author has been involved in Australian environmental compliance and enforcement roles for over a decade, at both the provincial and national levels of government. Initially, his network involvement was intermittent, as a practitioner involved in investigations and enforcement roles. Recently, he has become
increasingly engaged with networks because of his role as an environmental compliance and enforcement manager within an Australian Federal Government agency and an executive office holder within the Australasian Environmental Law Enforcement and Regulators neTwork (AELERT). Since 2007, the author became heavily involved in networking with networks. This primarily involved AELERT, the International Network for Environmental Compliance and Enforcement (INECE), and the Interpol Environmental Crimes Committee (Interpol ECC). His involvement recently expanded to include the Asian Environmental Compliance and Enforcement Network (AECEN). Based on discussions with other network office holders and stakeholders, the author suggests that networks: 6 R equire a strong ongoing secretariat. Require ongoing commitment and leadership (which frequently falls to an energised few). Are reliant upon ad hoc resources from disparate sources (which tend to involve a disproportionate resource burden on some members). Lack enforceable governance arrangements. Involve a transitory (and at times non-representative) membership drawn from a variety of government and non-government organisations (often with vastly competing interests).7 These observations ran parallel to the authors research that entailed a Masters level investigation of environmental enforcement network utility. 3 RESEARCH The study sought to answer two questions: (1) is utility present in environmental enforcement networks and (2) if utility is present, how can environmental enforcement agencies maximise the benefit they derive from their involvement with environmental enforcement networks? 3.1 Research Participants
All of the research participants held direct environmental compliance and enforcement responsibilities within a national or provincial environmental enforcement agency. Participants also had formal roles within one or more of the networks studied. The participants had contributed, participated in and gained experience from: s even countries; e ight agencies; f ourteen networks (covering those that are sub-national, national, regional and global);
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a ssociation with networks that have been established for between six and twenty-five years. More specifically, the demographics of the research participants were: Gender two female and six male. Age ranging from approximately thirty-five to sixty years. Years in government service ranging from approximately ten to forty years, and Years occupying an office holder role in a network ranging from three to twenty-two years.8 The fourteen networks considered in the study are listed alphabetically in Table 1 below: Table 1: Networks considered in study 9
Abbreviation AELERT CEC CLAG ENDWARE HEEPA IACP IMPEL Full Name Australasian Environmental Law Enforcement Regulators Network Commission for Environmental Cooperation (North America) Combined Law Agency Group (New Zealand) European Network of Drinking Water Regulators Heads of European Environment Protection Agencies International Association of Chiefs of Police Implementation and Enforcement of Environmental Law (Europe) International Network for Environmental Compliance and Enforcement Interpol Environmental Crimes Committee Northeast Environmental Enforcement Project (North America) Natural Resources Investigations Group (Australia) The Environmental Enforcement Network (Ireland) Wildlife Enforcement Group (New Zealand) Western States Project (North America) Type & Est. Regional (2004) Regional (1994) National (1999) Regional (2005) Regional (2003) Global (1989) Regional (1992)
INECE Interpol ECC NEEP NRIG TEEN WEG WSP
Global (1990) Global (1992) Regional (1980) Sub-national (2001) National (2004) National (1993) Regional (1986)
3.2
Research Data
The research data focused on collecting information across four broad areas namely: Involvement Value Effectiveness Support for networks 3.3 Questionnaire The questionnaire consisted of nine questions that were designed to elicit information relating to: T he number of networks that a particular agency was actively associated with (Q1). An assessment of return for effort expended (Q2). The main benefits and challenges encountered through an agencys association with various networks (Q3 & 4). How information from the network is made available to agency staff and their level of understanding of the network (Q5, 6, & 8). The level of support provided by an agency to networks (Q7 & 9). 2.4 Interview The interview consisted of six questions that were designed to elicit more detailed information than the information gathered in the questionnaire. The author posed questions in a less formal structure that allowed more freedom in answers. Through this structure, the author sought, specific examples and descriptions of: T he benefits of networks (Q1). The challenges of networks (Q2). The strategies employed by agencies to derive enhanced benefits from networks (Q1). The strategies employed by networks to provide greater benefits to members (Q4). General advice that might be of use to those considering involvement in networks (Q5 & 6). 4 ANALYSIS 4.1 Thematic Analysis
The author subjected the questionnaire and interview to iterative thematic analysis. The results of which appear below in Table 2, noting an other category was also included to capture and reflect less dominant responses.
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Table 2: Questionnaire and Interview Data Dominant and Common Themes 10

Q 3 & 4 (questionnaire) Q 1, 2, 5 & 6 (interview) Benefits Contacts Operational Better Practices Other Challenges Participation Resources Secretariat Other Q 3 & 4 (interview) Strategies Internal (agencies) External (networks) Representation Reporting Showcasing Other Communication Events Knowledge Management Other
4.2
SWOT Analysis
The results were then subjected to an analysis of Strengths, Weaknesses, Opportunities, and Threats (referred to as SWOT). The author analyzed the outcomes and shaped his assessments into the policy options and recommendations for agencies considering network involvement. 5 FINDINGS 5.1 Overview The objective of this research was to arrive at a set of policy options that decision makers could use within agencies to assess how their agency could maximize network association benefits. Table 3 below shows the themes that emerged from an examination of each of the SWOT factors. Table 3: SWOT Analytical Matrix - Environmental Enforcement Networks 11
Analysis of Strengths, Weaknesses, Opportunities, and Threats Supportive Internal (to networks) Strengths Enhanced contacts Operational benefits Accessing better practices Opportunities Representation Reporting Benefits Communication Events Knowledge management Detrimental Weaknesses Lack of active participation Lack of resources Criticality of network secretariats Project completion rates Threats Inability to sustain internal capacity Loss of key staff Inadequate information distribution
External (to networks)
MAXIMISING BENEFITS OF NETWORK ENGAGEMENT 6.1 Four Broad Areas
As mentioned previously, the research focused on the four broad areas of involvement, value, effectiveness and support for networks. The author derived the recommendations and policy proposals listed in Table 4 through research and data analysis. Table 4: Options for realising enhanced benefits from networks
Area Recommendation/Policy Proposal
Involvement Nominated staff and positions dedicated towards agency involvement, coordination and liaison with networks; Succession planning strategies in place to ensure continuity of network representation; and Appropriate internal communication mechanisms to ensure all agency staff have access to and are able to benefit from the learnings of the network. Value To the maximum extent possible, alignment between the agencies core functions and effort and that of the network; and Those agency staff involved in networks value adding by returning the learnings to the broader agency knowledge holdings and practices. Effectiveness Communication strategies in place and utilised to ensure all agency staff and stakeholders (where appropriate) have access to information relating to the network; and Reporting arrangements in place so that agency involvement can be reported upon and that reports be distributed within the agency so that benefits of the network can be pursued and realised by the broader agency. Support Agency funds (preferably ongoing budget) directed towards networks (principally to support secretariats, projects and activities); Senior agency officials taking up lead (office holder or governance) roles within networks; Network roles and responsibilities integrated into the core duties (position or job description documents) of key agency staff; and Agency staff encouraged to be actively involved in network activities and projects.12
7 CONCLUSION Networks provide individuals, teams, and agencies with access to a vast array of environmental compliance and enforcement expertise. Practitioners and network office holders particularly value this expertise. As reliance on networks grows,
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both groups should work to continue network progress, especially in times when resources are being reduced or are subject to increased scrutiny. On examination, networks provide unique utility in the particular field of environmental compliance and enforcement. Further, the study demonstrated that networks have the ability to coalesce environmental compliance and enforcement expertise, which enables agencies to engage in bilateral or multilateral projects and initiatives. This multiplication factor enables agencies to commence, engage, complete, and benefit from projects and initiatives. This is consistent with Sparrows observation:
If practitioners bite off too much, chances are they will choke. Bite of too little, and nobody will much care. Obviously an agency can take bigger bites than an individual or a department; and a consortium of institutions [like a network] can presumably take even bigger bites without being overwhelmed.13
8 REFERENCES Steiner, A (2007). [Foreword]. In Networking Counts: Combating illegal trade in ozone depleting substances, United Nations Environment Programme, Paris. Pg.2. 2 The paper represents the views of the author and does not necessarily represent the views of the Australasian Environmental Law Enforcement and Regulators neTwork (AELERT) or any member agency, or the Department of Sustainability, Environment, Water, Population and Communities (DSEWPaC). 3 Australian Crime Commission (2011), Organised Crime in Australia 2011. Australian Government, Canberra, http://www.crimecommission.gov.au/publications/ oca/_files/2011/oca2011.pdf; Bricknell, S. (2010). Environmental crime in Australia. AIC Reports: Research and public policy series 109. Canberra: Australian Institute of Criminology. 4 Slaughter, A-M. (2004). A new world order. In Zaelke, D, Kaniaru, D, & Krukov, E. (Eds.), Making law work: Environmental compliance & sustainable development volume 2, (pp. 387-403). London: Cameron May Ltd. Pg. 389. 5 For example see Farmer, 2007; Kaniaru, 2002; Slaughter, 2004; and Tomkins, 2009. 6 With Greg Sullivan, Chair AELERT (Hobart, Australia, August 2007), Gerard Wolters, Co-Chair INECE (Cape Town, South Africa, April 2008), Andrew Lauterback, Chair INTERPOL Environmental Crimes Committee (Lyon, France, October 2008), and Theodore Ted Greenberg, Senior Money Laundering Specialist, the World Bank (Wollongong, Australia, February 2010.) 7 Pink, G. (2010). Environmental Enforcement Networks: A Qualitative Analysis. Pg. 8. 8 Pink, op cit, pp. 15-16. 9 Pink, op cit, p. 23. 10 Pink, op cit, p. 18. 11 Pink, op cit, p. 40. 12 Pink, op cit, pp. 54-56. 13 Sparrow, M.K. (2008). The character of harms: Operational challenges in control. New York: Cambridge University Press. Pg. 84.
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9 BIBLIOGRAPHY Australian Crime Commission (2011). Organised Crime in Australia 2011, Australian Government, Canberra, ACT Available at http://www.crimecommission.gov.au/ publications/oca/_files/2011/oca2011.pdf (18 April 2011). Farmer, A. (2007). Handbook of environmental protection and enforcement: Principles and practice. London: Earthscan. Kaniaru, D. (2002). The role of institutions and networks in environmental enforcement, In INECE 6th International conference on environmental compliance and enforcement, April 15-19, 2002 San Jose, Costa Rica, Proceedings Volume 2, (pp. 51-55), INECE. Pink, G. (2010). Environmental Enforcement Networks: A Qualitative Analysis (December 7, 2010). Available at Social Science Research Network: http://ssrn.com/ abstract=1803179 (14 April 2011). Slaughter, A-M. (2004). A new world order. In Zaelke, D, Kaniaru, D, & Krukov, E. (Eds.), Making law work: Environmental compliance & sustainable development volume 2, (pp. 387-403). London: Cameron May Ltd. Sparrow, M.K. (2008). The character of harms: Operational challenges in control. New York: Cambridge University Press. Steiner, A. (2007). [Foreword]. In Networking Counts: Combating illegal trade in ozone depleting substances. Paris: United Nations Environment Programme. Tomkins, K. (2009). Police, law enforcement and the environment. In R. White (Ed.), Environmental crime: A reader, (pp. 515-527). Devon: Willan Publishing.
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ENVIRONMENTAL ENFORCEMENT NETWORKS: DEVELOPMENT OF A NETWORK EVALUATION MATRIX PINK, GRANT1 and LEHANE, JAMES 2 Secretary, Australasian Environmental Law Enforcement and Regulators neTwork; GPO Box 787, Canberra, Australian Capital Territory, 2601, Australia, C/- secretariat@ aelert.com.au
1
Executive Officer, Australasian Environmental Law Enforcement and Regulators neTwork; GPO Box 787, Canberra, Australian Capital Territory, 2601, Australia, C/secretariat@aelert.com.au
2
SUMMARY Despite sharing relatively common purposes, Environmental Enforcement Networks are each unique. Part of this is because the circumstances vary under which they were established. A range of factors influence their development and ultimately determine their relative capability and potential maturity as a network. This paper postulates five possible phases of development through which Environmental Enforcement Networks may transition. Further, it suggests that the application of Capability Maturity Model processes, like those used as part of organisational assessments, is worthy of consideration by Environmental Enforcement Networks. The ability to determine the phase of development that an Environmental Enforcement Network is going through enables mapping the progression of the network through that phase. The authors consider that this conceptual model framework may assist and guide networks to reach their next level of maturity more effectively and efficiently. This paper proposes a Network Evaluation Matrix that has been informed by the foundational Capability Maturity Model framework.. 1 INTRODUCTION 1.1
1 2
Development of Environmental Enforcement Networks
All Environmental Enforcement Networks (networks) direct time, effort and resources toward development. For the purposes of this paper, the evolution of a network includes, but is not limited to: e stablishing the network; m aintaining the network; and o ngoing development of the network. In an associated paper, the authors have comprehensively documented the establishment, maintenance, development and growth of the Australasian
Environmental Law Enforcement and Regulators neTwork (AELERT).3 AELERT is a regional environmental enforcement network operating throughout Australasia. In documenting the evolution of AELERT and in undertaking the research, the authors considered the various phases through which networks progress. Using three overarching categories: establishing, maintaining and developing as a base, the authors considered four questions: W hat are the levels of network maturity? How can network maturity be assessed? What type of factors should be considered in determining the maturity level of networks? What is a networks current level of maturity? During the discussions and deliberations around the four questions, the potential benefit of applying a Capability Maturity Model to networks was considered then explored in some detail. Following analysis and modification, this paper proposes a Network Evaluation Matrix that has been informed by the foundational Capability Maturity Model framework.4 This matrix determines network maturity by applying a series of indicators, and establishes a typology of networks. 2 BACKGROUND 2.1 Capability Maturity Models
The Capability Maturity Model is a framework that was designed and developed during the 1980s, by the Software Engineering Institute at Carnegie Mellon University, to assess and improve software development capability.5 In its simplest form, the Capability Maturity Model is a framework that outlines the improvement and maturity and ...guide[s] process improvement across a project, a division, or an entire organization6 through five or six stages (six stages where level zero or none is included). A currently documented six level Capability Maturity Model, with process as the main focus, is shown in Diagram 1:7
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Diagram 1: Capability Maturity Model Six levels of a process

L5 L4 L3 L2 L1 L0 INFORMAL NOT PERFORMED All base practices performed informally. STRUCTURED All processes managed, planned & tracked. Plan, control, verify & track performance. STANDARDIZED All processes well defined & documented. Define, maintain, document & use standard process. MEASURED OPTIMIZING
All processes All processes optimized & quantitatively continuously improved. managed & controlled. Continuously improved Establish enterprise measurable quality goals capability & use metrics & process effectiveness to manage performance
Similarly, the Capability Maturity Model with five levels of progression has been established for integration into an organisation and details a more comprehensive approach with focus points and processes being considered: Diagram 2: Capability Maturity Model Five levels of an integrated process8
Diagrams 1 and 2 show the levels ranging from Not Performed or Initial through to those that are considered Optimal and involve continuous improvement. Typically, the foundational Capability Maturity Model is shown in five levels as in Diagram 2 and tend to describe the levels as initial, repeatable, defined, managed, and optimised. Capability Maturity Models provide a framework by which the relative maturity of a process can be determined. Capability Maturity Models have been modified and used as part of organisational assessments. It is for this reason that modification of the Capability Maturity Model seemed appropriate for determining network maturity. 2.2 Environmental Enforcement Networks
Generally, environmental matters have gained momentum as public policy issues and major areas of public concern since the 1960s. In response, and with increasing frequency especially since 1990, governments have introduced environmental protection legislation.9 In an attempt to build capacity to enforce environmental protection legislation, regulators have become involved in the establishment and development of Environmental Enforcement Networks around the world. Some of these Environmental Enforcement Networks have existed in various forms for over twenty years, across various regions, covering wide-ranging jurisdictions, issues and commodities.10 These Environmental Enforcement Networks have operated independently, bilaterally, or multilaterally, dependent upon the nature of the issues they specifically sought to address. Environmental Enforcement Networks have also partnered and joined together to access the broader reach of the International Network for Environmental Compliance and Enforcement (INECE) on global initiatives. This is consistent with INECE being a network of networks.11 3 DESIGNING AND FRAMEWORK FOR NETWORKS 3.1 DEVELOPING AN EVALUATION ENVIRONMENTAL ENFORCEMENT
What Are the Levels of Network Maturity?
In 2002, during the sixth International Conference on Environmental Compliance and Enforcement, participants from six regions12 gathered separately within their respective regional networks and considered a range of issues affecting networks. They determined that networks fall within the three categories: absent, fragile or well established.13 Whilst absent, fragile, and well established are reflective of several fixed levels of networks, these three levels are possibly limiting, as they do not capture and reflect the ongoing evolutionary processes of networks, as well as potential regression.
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Integrating the earlier observations of the INECE model14 with the foundational Capability Maturity Model, the authors consider it useful to include emerging and maturing as two additional transitional phases. These additions result in five comprehensive and representative levels of network maturity: absent, emerging, fragile, maturing and well established. Table 1 compares the five levels of the foundational Capability Maturity Model against the five levels of the Network Evaluation Matrix. It also shows whether the phase is fixed or transitional. Table 1: Capability Maturity Model Levels aligned with Network Evaluation Matrix Levels and Type
Capability Maturity Model levels Initial/Ad hoc Repeatable Defined Managed Optimised Network Evaluation Matrix Levels Absent Emerging Fragile Maturing Well established Fixed Transitional Fixed Transitional Fixed Type
3.2
How Can Network Maturity Be Determined?
The Capability Maturity Model process defines the behaviours or factors within each level of maturity. More specifically, the Capability Maturity Model process can assist:
... in measuring and enhancing your process improvement capability ... [t]he model offers a simple yet comprehensive assessment of process improvement capabilities and promotes the definition of distinct levels of maturity (i.e. development) for the set of capabilities. Each level of maturity is supported by layers of detail pertaining to the individual capabilities for that model. A maturity assessment can then be made for each individual capability with regards to both current and target states.15
As such, drawing upon the Capability Maturity Model methodology, the assessment of Environmental Enforcement Networks with the Network Evaluation Matrix results in identifying and documenting a number of capabilities that span the five distinct levels of maturity. Various assessment processes may be used by Environmental Enforcement Networks to establishwhere they fit within the Network Evaluation Matrix. Options include self-assessment by Secretariats, governing bodies or by members, and can extend to external review (which may take the form of review by another Environmental Enforcement Network Secretariat, governing body or independent third party). This paper seeks to establish the basis for such assessments. The capabilities and associated levels of network maturity are now considered in greater detail.
3.3
What factors should be considered in determining the maturity level of networks?
In his book, entitled Handbook of Environmental Protection and Enforcement: Principles and Practice, Farmer states that successful networks:
... require a full commitment by members ... an active secretariat and adequate funding. [And if]... the network is seen to be of value, that is, it delivers what the members need16
Distilling the above, the authors postulate that the five major themes contain core criteria that should be used to assess Environmental Enforcement Networks, namely: members, finances, governance, support and deliverables.
Sub-topics of the major themes have been developed to provide greater functionality. The five themes are now considered briefly in turn. Members involves issues associated with members such as the; total number of members, location (geographic distribution) of members, type (individual, agency, etc.) and/or category of member (full, affiliate, observer, etc.), contribution of members (whether it be; in-kind, financial, advocacy, or leadership); and value of membership. Sub issues of this category include: m embership, l eadership, and v alue. Finances relates to the finances required to staff the secretariat function. Environmental Enforcement Networks also seek funds to hold conferences and workshops and other enabling activities so that network projects can be undertaken. Sub issues of this category include: b udget, c ontributions, and project funding. Governance involves finding the balance between being over-prescriptive (so as to not fetter involvement or participation) and so relaxed that it leads to concerns
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about a lack of accountability. Governance remains an iterative issue that should be revisited as the network addresses issues. Sub issues of this category include: a ccess, r eview, and s tructures. Support occurs through playing a liaison role between members. Support is based upon a mutual exchange where members support the network and the network and members support other members directly. Sub issues of this category include: l iaison, s upport base, and s upporting function. Deliverables involves being able to demonstrate the value of networks. As such, Environmental Enforcement Networks tend to focus on tangible benefits. Such benefits usually take the form of outputs such as publications, manuals, conferences, workshops, and other events. Intangible benefits such as reputation, association and peer support, are generally unreported and unrecognized. Notwithstanding, they need to be recognized and factored into any assessment of maturity. The five major themes aim to recognise and attribute some value to the intangible benefits of Environmental Enforcement Networks. Sub issues of this category include: e vents, o utcomes, and p roducts. 4 THE NETWORK EVALUATION MATRIX
In combining the five levels of network maturity with the five capability categories of networks, a matrix begins to take shape. The Network Evaluation Matrix details the core capability indicators across the levels of network maturity. The complete Network Evaluation Matrix is shown in Appendix 1 at the conclusion of this paper. For convenience of publication, the full Network Evaluation Matrix has been broken down by maturity level. The levels are now considered in turn.
4.1
Absent Level
Given that a network has not yet been established, the Absent level of network maturity has no criteria available for assessment. See Table 2. Table 2: Network Evaluation Matrix Absent Criteria
Members N/A Finances N/A Governance N/A Support N/A Deliverables N/A
4.2
Emerging Level
Once established, networks transition to the Emerging phase of development. This level forms the basis for the network and its future directions and activities. See Table 3: Table 3: Network Evaluation Matrix Emerging Criteria
Members Membership Typically low within networks sphere of influence Restricted to core member agencies or individuals operating within networks sphere of influence Leadership Few individuals / member agencies take lead role across network Finances Budget Nonexistent or modest to initiate / commence the network Governance Access Member access to foundational and guiding documents No open source access to networks guiding documents Support Liaison Limited or no liaison with other networks Deliverables Events A few events for members Limited number of members working together on specific projects
Contributions Limited in-kind contributions restricted to core member agencies or individuals
Review Informal review by foundation members
Support base Network effectiveness reliant on core members providing ad hoc coordination
Outcomes Prospective members considering potential of network Limited functionality within network to deliver outcomes
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Value Negligible or questionable value to noncore members Core members only active participants with few benefits realised
Project funding Non-existent or minimal
Structures General Aims and Objectives laid down Typically developing and fluid No written procedures
Supporting functions Base level administrative tasks undertaken for network A few key individuals maintain the network
Products Low number of publications disseminated Publication limited to contributions of members
4.3
Fragile Level
Networks that continue to develop may then progress to the Fragile level. This level involves an expansion of the networks membership and support base. Also, governance structures and processes continue to develop with an increase in the deliverables. See Table 4: Table 4: Network Evaluation Matrix Fragile Criteria
Members Membership Generally increasing across significant actors within network sphere of influence Finances Budget Contributions are spasmodic and are made by small number of sources Not sustainable Governance Access Central repository of information and communiqus to members Limited open source access to networks guiding documents Review Regular changing of operating rules, Constitutional documents, etc. to fit circumstances Structures Guiding documentation developed reactively to situations. Support Liaison Emergent and exploratory liaison with other networks undertaken Information sought from other networks Deliverables Events Irregular events with increasing frequency Preliminary attempts to undertake cooperative exercises
Leadership Wider range of key individuals / member agencies taking on leadership roles across network Value Tangible benefits available for active members Most members inactive / passive
Contributions Few core member agencies / individuals providing inkind support
Support base Growing level of support base Increasing numbers of interested individuals
Outcomes Low level coordination to deliver outcomes Members seeking benefits
Project funding Very limited, if available Sourced from lead member in project team
Supporting functions Central support function to support membership
Products Infrequent publications being developed and disseminated
and question value of network Low level communications disseminated to members from core members
Clear Aims and Objects set out for network
and administrative tasks only
Range of network members contributing to publications
4.4
Maturing Level
The Maturing phase sees significant increases in the deliverables provided to and/ or available to members. It also includes greater transparency of the network governance to members. The Maturing level is appropriately named, as it is the point at which the network has consolidated its direction, focussed its efforts, and has an increasing number of procedures and processes to inform and guide its activities. See Table 5: Table 5: Network Evaluation Matrix Maturing Criteria
Members Membership Expanded to reach critical / core number of potential members within relevant network area of operation Finances Budget Sufficient funding for network to continue for short to medium term (2-3 years) Governance Access Increasing access of members to network steering / guiding documents Open source access to limited network produced documents Review Third Party review of constitutional documents and guidance considered Support Liaison Interest by and liaison with other networks Capacity and capability discussions to identify areas of commonality Deliverables Events Held on semi regular basis Delivered across network Range of events relevant to all members Restricted range of members working conjointly
Leadership Critical mass of individuals / member agencies take on leadership roles Wide range of membership not represented in leadership roles
Contributions In-kind support provided by central member agencies / individuals
Support base Widening support base across network sphere of influence
Outcomes Member agencies receiving identifiable benefits Individuals professionally realise benefits
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Value Leading members displaying demonstrable benefits through active participation Level of inactive / passive members reducing Increasing engagement and communication between members
Project funding Project funding - increasing but ad hoc Project leaders are able to source limited funding to support project
Structures Proactive development of guiding documentation with consultation across membership Development of Operation and Strategic Plans to set direction of network
Supporting functions Administrative tasks major part of function Low level of coordination and project capacity
Products Are of useable standard and considered as a step toward better practice across industry Contributions from those outside of network being included
4.5
Well Established Level
The Well Established level is the most advanced level in terms of network development. Within this level of maturity, the network reaches the saturation point for its membership, has a comprehesive support base, includes active contributions from across the network, and has a secure source of funding for network services. Deliverables in the Well Established network are regular, tangible and of high standard. The deliverables in turn provide a catalyst for promoting the network, attracting new members, and marketing the network. This level tends to involve more aspects of review and continuous improvement. See Table 6. Table 6: Network Evaluation Matrix Well Established Criteria
Members Membership Maximum or near maximum of possible members within relevant operation of network coverage Finances Budget Secured on permanent basis Sustainable arrangements Governance Access Open and transparent access to network steering papers across membership and support base Foundational and guiding documents available as open source Support Liaison Level of support from other networks seen through interaction and joint activities Good working relationships between networks Deliverables Events Held regularly and well attended Coordinated centrally for delivery across membership Members readily work collaboratively
Members Leadership Large proportion of members taking leadership roles across network
Finances Contributions High proportion of members contributing inkind support to projects, events and initiatives
Governance Review Governance structures reviewed and consistent with better practice Subject to external scrutiny and review
Support Support base Strong support and contribution base from practitioner and senior management alike
Deliverables Outcomes Delivering tangible benefits to members Serve as attractor, drawing new members into network Members overtly promoting the benefits of involvement Products High standard and considered better practice across industry Subject to review and improvement process Wide range of contributors to network publications
Value Majority of members realise benefits of membership attained through active participation Open communication across members
Project funding Projects driven by / within network are readily funded Projects undertaken by network bring in associated funding
Structures Robust written governance structures in place Membership well represented on guiding body
Supporting functions Central function for coordinating network activities, project and events Administrative tasks are a minor part of the function
ASSESSMENTS MATRIX 5.1
USING
THE
NETWORK
EVALUATION
What is a networks current level of maturity?
The purpose of the Network Evaluation Matrix is to categorise the maturity levels of existing networks and establish a typology of networks. To assist in this assessment, numerical values can be given for each sector of the matrix. These values establish the maturity of an aspect of the network and can be added together to determine an indicative overall level of network maturity. The following numerical values (point scores) have been allocated for the various maturity levels: 0 - Absent, 1 - Emerging, 2 - Fragile, 3 - Maturing, and 4 - Well Established.
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Table 7 below displays how these ratings for part of the Network Evaluation Matrix. Table 7: Levels of Network Maturity: Factors
Five Capability Areas Environmental Enforcement Netowrk Level of Maturity Network Evaluation Matrix Grand Total --/20 Members Well Established Maturing Fragile Emerging Absent Capability sub-total 4 3 2 1 0 Finances 4 3 2 1 0 Governance 4 3 2 1 0 Support 4 3 2 1 0 Deliverables 4 3 2 1 0 -
To assist in determining the relevant level of maturity, the following threshold and transition values or scores have been allocated: = Absent, 0 1 7 = Emerging, 8 13 = Fragile, 14 17 = Maturing, and 18 20 = Well Established.
As the evolution of the AELERT paper17 took shape, it became clear that AELERT had transitioned though a number of phases. In preparing both papers, the authors tested the Network Evaluation Matrix by using AELERT as a self-assessment case study. The assessment considered the first, third and seventh year of AELERTs operation. The results indicate that AELERT has transitioned from Emerging to Fragile and now may be considered as Maturing. See Table 8: Table 8: AELERT Self-assessment
Year 2005 2007 2010 Members Finances Governance 1 2 2 1 2 3 1 1 3 Support 1 2 4 Deliverables 1 1 3 Total and rating (5) Emerging (8) Fragile (15) Maturing
A BENEFICIAL MATRIX OR NOT? 6.1 The value of the Network Evaluation Matrix
The Network Evaluation Matrix is designed as a detailed assessment tool of a networks development. It enables an isolation and categorisation of improvements as well as areas of shortfall. This provides targeting data for future review, management and evolution. In addition, the model can provide an overall picture of the networks status. On both these levels, the Network Evaluation Matrix offers criteria and a process for both internal and external quality review. By determining the current phase of development of an Environmental Enforcement Network, the Environmental Enforcement Network is then able to map progression through future phases of development. This conceptual model may assist and guide networks to reach their highest level of maturity more effectively and efficiently. Moreover, it provides a platform for Environmental Enforcement Networks to perform a self-assessment to direct network effort and strategic planning, and also allows for peer assessment by other networks or independent third parties. 7 CONCLUSION The Network Evaluation Matrix framework has emerged from the specificexperience of assessing AELERT as the Australasian Environmental Enforcement neTwork. Its broader applicability has yet to be tested. It is anticipated that the model will find use in the assessment of other Environmental Enforcement Networks globally and that amendments, modifications, uses, and applicability of the model will be conveyed back to the authors. This paper should be the opening of a dialogue on assessing Environmental Enforcement Networks. Such a dialogue could best be coordinated by INECE in partnership with its regional Environmental Enforcement Networks. Network secretariats, coordinating bodies, and sponsor organisations may be interested in refining some of the ideas and concepts contained in this paper further in an attempt to provide Environmental Enforcement Networks with a roadmap to assist network development. The Network Evaluation Matrix builds on the work of Jones18 and postulates that there are five levels of maturity for Environmental Enforcement Networks. In addition, the Network Evaluation Matrix offers five discreet capability areas that may be considered for standardising a range of possible assessments. As an assessment framework, the Network Evaluation Matrix enables networks to self-assess their level of maturity. This assists Environmental Enforcement Networks in identifying areas in which to concentrate effort in order to advance to the next level of maturity. It also provides a set of criteria and benchmark standards for independent evaluation.
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8 REFERENCES The paper represents the views of the authors and does not necessarily represent the views of the Australasian Environmental Law Enforcement and Regulators neTwork (AELERT) or any member agency. 2 The authors acknowledge the assistance of Dr Matthew Marshall, Senior Policy Project Officer, Australian Government Department of Sustainability, Environment, Water, Population and Communities (DSEWPaC) for his insightful comments and critique of reviewing this paper. Additionally, review comments from Dr Robyn Bartel, Senior Lecturer, University of New England were positive. 3 Lehane, J. and Pink, G. (In Press) Evolution of a regional environmental enforcement network: The Australasian Environmental Law Enforcement and Regulators neTwork (AELERT). Proceedings of the 9th International Conference on Environmental Compliance and Enforcement, 20-24 June 2011. International Network for Environmental Compliance and Enforcement (INECE), British Columbia, Canada. 4 The foundational Capability Maturity Model (CMM) has since been modified into the Capability Maturity Model Integration (CMMI) and the Process Improvement Maturity Model (PIMM). Carnegie Mellon University (2011) Capability Maturity Model: Integration. Available at http://www.sei.cmu.edu/cmmi/ . Accessed 14 March 2011. 5 Crow, K. (2011) Capability Maturity Model. Available at http://www.npd-solutions. com/cmm.html. Accessed 18 February 2011. 6 Carnegie Mellon University, op cit. 7 Network Maturity Maturity Partnership (2011) Network Maturity Model: Capability. Available at: http://www.networkmaturity.com/capability.htm. Accessed 14 March 2011. 8 National Aeronautics and Space Administration (NASA) (2011) Capability Maturity Model: Integrated. Available at http://mdob.larc.nasa.gov/hilites/Hl.03/SEPG03. graphic.jpg. Accessed 23 March 2011. 9 Wolters G. (2005). Foreward. In Zaelke, D, Kaniaru, D, & Krukov, E. (Eds.) Making law work: Environmental compliance & sustainable development. Volume 1. Pp. 19-20. London: Cameron May Ltd. 10 Wijbenga, B, Ruessink, H, De Wit A, & Kapitein P. (2008). Environmental policing in the 21st century Background, organisation and experience in the Netherlands. Proceedings of the 8th International Conference on Environmental Compliance and Enforcement. 5-11 April 2008. International Network for Environmental Compliance and Enforcement (INECE). Cape Town, South Africa. Pp.323-333. London: Cameron May. 11 International Network for Environmental Compliance and Enforcement (n.d.). Raising awareness, developing networks, strengthening capacity. [Brochure]. 12 The six regions were South America, Africa, Europe, Central America, North America, and Asia and Pacific. Jones, D. (2002) Summary of Plenary Session #9: Reports of Regional Meetings and Workshops (Moderators: Tony Oposa & Wout Klein), Proceedings of the Sixth International Conference on Environmental Compliance and Enforcement. International Network for Environmental Compliance and Enforcement (INECE). Pp.457-465. Available at http://www.inece.org/conf/
1
proceedings2/77-Plenary%20Session9ALT.pdf. Accessed 12 January 2011. Pp.457463. 13 Jones, op cit, Pg.464. 14 ibid 15 Hitachi Consulting, (2011). Process Improvement Maturity Model. Available at http://www.hitachiconsulting.com/uk2/0125.cfm. Accessed 18 February 2011. Pg.1. 16 Farmer, A. (2007). Handbook of environmental protection and enforcement: Principles and practice. London, Earthscan. Pg.261. 17 Lehane & Pink, op cit. 18 Jones, op cit. 9 BIBLIOGRAPHY Carnegie Mellon University (2011) Capability Maturity Model Integration Available at http://www.sei.cmu.edu/cmmi/. Accessed 14 March 2011. Crow, K. (2011) Capability Maturity Model. Available at http://www.npd-solutions. com/cmm.html. Accessed 18 February 2011. Farmer, A. (2007). Handbook of environmental protection and enforcement: Principles and practice. London, Earthscan. Hitachi Consulting, (2011). Process Improvement Maturity Model. Available at http:// www.hitachiconsulting.com/uk2/0125.cfm. Accessed 18 February 2011. International Network for Environmental Compliance and Enforcement (n.d.). Raising awareness, developing networks, strengthening capacity. [Brochure]. Jones, D. (2002) Summary of Plenary Session #9: Reports of Regional Meetings and Workshops (Moderators: Tony Oposa & Wout Klein), Proceedings of the Sixth International Conference on Environmental Compliance and Enforcement. International Network for Environmental Compliance and Enforcement (INECE). Pp.457-465. Available at http://www.inece.org/conf/proceedings2/77-Plenary%20 Session9ALT.pdf. Accessed 12 January 2011. Lehane, J. & Pink, G. (In Press) Evolution of a regional environmental enforcement network: The Australasian Environmental Law Enforcement and Regulators neTwork (AELERT). Proceedings of the 9th International Conference on Environmental Compliance and Enforcement, 20-24 June, International Network for Environmental Compliance and Enforcement (INECE), British Columbia, Canada. National Aeronautics and Space Administration (NASA) (2011) Capability Maturity Model: Integrated. Available at http://mdob.larc.nasa.gov/hilites/Hl.03/SEPG03. graphic.jpg. Accessed 23 March 2011.
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Network Maturity Maturity Partnership (2011) Network Maturity Model: Capability. Available at: http://www.networkmaturity.com/capability.htm. Accessed 14 March 2011. Select Business Solutions (2011) What is the Capability Maturity Model? (CMM). Available at http://www.selectbs.com/process-maturity/what-is-the-capabilitymaturity-model. Accessed 15 March 2011. Wijbenga, B, Ruessink, H, De Wit A, & Kapitein P. (2008). Environmental policing in the 21st century Background, organisation and experience in the Netherlands. Proceedings of the 8th International Conference on Environmental Compliance and Enforcement. 5-11 April 2008. International Network for Environmental Compliance and Enforcement (INECE). Cape Town, South Africa. Pp.323-333). London: Cameron May. Wolters G. (2005). [Foreward]. In Zaelke, D, Kaniaru, D, & Krukov, E. (Eds.), Making law work: Environmental compliance & sustainable development Volume 1. Pp. 19-20. London: Cameron May Ltd.
THE FLEMISH HIGH COUNCIL OF ENVIRONMENTAL ENFORCEMENT A COORDINATED ENVIRONMENTAL ENFORCEMENT POLICY STAS, AN Permanent Secretary of the Flemish High Council of Environmental Enforcement, Koning Albert II-laan 20 bus 15 - 1000 Brussels, Belgium, an.stas@vhrm.vlaanderen. be. SUMMARY The Flemish High Council of Environmental Enforcement has, since 1 May 2009, been the institutionalized consulting body for many environmental enforcement actors within the Flemish region. It has been established by decree with the objective to create a coordinated environmental enforcement policy. Consultation is expected to lead to environmental enforcement protocols wherein agreements are made among the enforcement actors. The Council is tasked with the responsibility to draw up an annual programme and a report on the enforcement of environmental law within the Flemish region. This paper provides an overview of the tasks assigned to the Council, how these were (or were not yet entirely) implemented, and also the problematic areas that the Council has already encountered. Although the challenges are considerable and progress will be gradual, the first steps have been taken. More information collection, extensive consultation, and additional harmonization are necessary for the Council to proceed in its next stages. 1 INTRODUCTION Environmental law and its enforcement constitute, within the federal Belgian arena primarily a regionalized legislative and executive competence of the three regions individually, namely the Flemish region, the Brussels Region, and the Walloon Region. In addition, the federal government holds a number of competences in the area of the environment, such as the determination of product standards and the transit transportation of waste.1 Until recently, the environmental enforcement legislation in the Flemish region was fragmented and outdated. This changed when a new, uniform, and updated regulation - known as the Environmental Enforcement Decree - entered into force on 1 May 2009 with the decree of 21 December 2007 in complementation of the decree of 5 April 1995 concerning the general provisions on environmental policy with the title XVI Toezicht, handhaving en veiligheidsmaatregelen Supervision, enforcement, and safety measures.2 3 Amongst other aims, this new regulation takes as its objective the more effective processing and transacting of environmental problems and the creation of an administrative sanctioning instrument as an alternative to the past ineffective prosecution policy conducted via the courts.4
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Prior to the Environmental Enforcement Decree coming into effect, a great many actors and departments were involved in the enforcement of the environmental legislation within the Flemish region. Following the entry of this decree, their numbers now merely multiplied. Not only are more departments within the Government of Flanders empowered to appoint overseers, but likewise at the local level there is need for the appointment of municipal overseers, overseers of intercommunal associations, or overseers of police districts and provincial overseers. Both the federal and local police possessed, and still possess, competences to enforce the environmental legislative provisions when there is evidence of environmental violations. Likewise, the burgomasters and the provincial governors have been given certain competences within the framework of environmental enforcement and for the imposition of administrative measures. As a consequence, supervision is spread across a number of administrative levels.5 Before the Environmental Enforcement Decree, sanctioning was imposed mainly on the grounds of a criminal offence, organized at the federal administration level under the exclusive competences of the public prosecutors offices. The Environmental Enforcement Decree did, however, create the possibility for an administrative sanction whereby the administration within the Government of Flanders, hence at the regional level, can impose administrative monetary fines.6 Given the great number of parties involved at the various administrative levels, it should surprise no one that the Environmental Enforcement Decree has made provisions for an institutionalized network or forum of environmental enforcement actors, namely the Flemish High Council of Environmental Enforcement, that formed in 2009.7 It replaced the Prosecution Policy Commission, where the various environmental enforcement actors had tried to delineate and implement a coordinated policy via priority memos.8 But the earlier Prosecution Policy Commission only possessed an unofficial status,9 and was primarily focused on reaching agreements between the regional overseers and the public prosecutors offices. In contrast, the Council has taken steps to have a broader spectrum of environmental enforcement actors within the framework of the Environmental Enforcement Decree represented in its operations, and its tasks and duties are embedded by decree giving it a more formalized and institutionalized status.10 The expectations set for this Council and network were, and still are, very high. Not only did the Council itself start up at a very ambitious level, also the political world and its agents, being the enforcement actors, have great expectations. The purpose is that the Council proposes the priorities for the environmental enforcement policy and draws up an annual programme and a report on the subject of enforcement of environmental law within the Flemish region. In this account, an overview will be offered of the tasks that the Council was assigned by decree and of the way in which these were, or were not yet entirely, implemented. As such, the focus will be put on the problematic areas that the Council has already encountered in its activities.
THE AIM AND THE ORGANIZATION OF THE FLEMISH HIGH COUNCIL OF ENVIRONMENTAL ENFORCEMENT
In order to assist the Government of Flanders within the context of the general coordination and the substantive content complementation of the Environmental Enforcement Policy, the Flemish High Council of Environmental Enforcement was formed.11 It is the task of the Council to propose the principles and the priorities of the Environmental Enforcement Policy in a proactive manner. In order to secure and maintain ongoing consensus on these principles and priorities, the Council organizes in a systematic manner and at regular intervals consults amongst the involved enforcement actors.12 This consultation takes place during plenary meetings and in working groups. The Flemish High Council of Environmental Enforcement, which started its activities in May 2009, at the time of the entry into force of the Environmental Enforcement Decree, is composed of official and expert members and counts not only regional overseers13 and enforcement entities but also members of the federal police, local police, the public prosecutors offices, the cities and municipalities and the provinces as representatives. In the context of strategic advising, the SocialEconomic Council of Flanders and the Environment and Nature Council of Flanders also have a representative member on this council. This broad composition is aimed at achieving a wide-ranging scope for the councils activities.14 The fact that almost every enforcement agent in the Flemish region is represented in the plenary meeting, and almost all of them in the meetings of its working groups, results in a widespread in the field expertise, something absolutely necessary in the development of a policy that has to be of practical application. Conversely, this broad composition, especially given the fact that the Council in its decisions strives for total consensus, obviously does not, in effect, simplify any attempt to reach ready resolutions and recommendations. Some actors base themselves on their very extensive experiences, while other actors only received their enforcement competences at the time of the entry into force of the Environmental Enforcement Decree in May 2009. A policyoriented, uniformly accepted synchronization amongst all of these diverse actors is, indeed, crucial yet hardly a simple matter. At the start of its activities, the members, representatives, and substitutes on the Flemish High Council of Environmental Enforcement being collaborators selected from the various environmental enforcement agencies or associated actors were asked to identify what for their entities formed the most important issues and problem areas in the environmental enforcement policy. The object of this was to arrive at some prioritization for the activities of the Council that would dovetail closely with the problems encountered in the practice. It appeared that every enforcement actor had to deal with a great many problems during the execution of his enforcement assignments, and for which the Council might, or might not, act as a forum in the search for solutions. These various problematic areas could be classified under four headings, related to a specific phase in the environmental enforcement or a general supportive part of it:
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1. 2. 3. 4.
Observation and Overseeing. Administrative and Penal Sanctioning. Information Exchange. Data Collecting, Knowledge Building and Innovation.
The Flemish High Council of Environmental Enforcement formed four working groups in order to investigate these problematic areas, these groups to bear the same name as the four above-mentioned themes. It is, in fact, not at all certain that during plenary sessions all problematic issues are being investigated, proposals formulated, and decisions taken. The formation of these four working groups around the identified themes has not been consolidated and can be adapted in keeping with the extent in which the needs of the environmental enforcement actors are evolving. The working groups meet in smaller numbers to investigate the problem and formulate a solution or a recommendation that is subsequently presented to the plenary meeting. An important fact is that not only permanent members, representatives, and substitutes of the Council are invited to participate in the debates and the activities, but likewise collaborators of other enforcement agencies that do not have a member or a representation in the plenary meeting of the Council are asked to participate in the working groups. This not only enhances the general expertise and knowledge, but also the consensus on, and the scope of, the decisions. The reservation that exists with regards to the plenary meeting and the great number of enforcement actors represented in it obviously pertains to the working groups as well. The fact is that a great variety of enforcement actors are working on the problems investigated in these working groups, all of them with their own traditions and visions on the solutions proposed by the groups and wanting to see these integrated in the results. As such, the working groups endeavor to find a way of amalgamating all such visions and proposals into one practical uniform proposition. In the Environmental Enforcement Programme 2010 (see infra) a programme was specified for each of the working groups, to be implemented in 2010.15 However, it quickly became apparent that all of these problems encountered could not possibly be resolved in just one year of operations. Hence, instead of concentrating on a great number of priorities, the working groups changed their modus operandi towards a more gradual approach that dealt only with a limited number of themes and projects. As a result, there was a notable improvement not only in efficiency and effectiveness in the efforts, but also a greater chance of success for these working groups. 3 ASSIGNMENTS 3.1 The Environmental Enforcement Programme
The Flemish High Council of Environmental Enforcement annually draws up an Environmental Enforcement Programme which sets forth the priorities for the coming calendar year of the environmental enforcement policy to be conducted by the Government of Flanders. Also, this programme may contain recommendations
on environmental enforcement at the provincial and municipal levels, as well as on the cooperation with and amongst these policy levels. The Environmental Enforcement Programme may contain recommendations on policy but no concrete action plans in the field, nor instructions and directives for the enforcement actors.16 The legislator has formulated the exact content in very vague wording. By the fact that no action plans directed to the enforcement agencies may be introduced into the programme, the scope of it was clearly demarcated and it may be assumed that the policy recommendations need to be formulated to the attention of the Government of Flanders. As such, in this case there can only be drawn a limited distinction with the decreed content of the Environmental Enforcement Report that likewise contains recommendations for the further development in the environmental enforcement policy (see infra). The fact that no directives or instructions may be entered into the programme means that no common enforcement plan can be devised for (a segment of) the enforcement actors. However, the coordinating role of the Council can be fulfilled by working within the total compass of the combined programmes of the various enforcement entities, thus to recognize the overlaps and the lacunae existing within these separate programmes.17 Harmonization amongst the enforcement actors can be brought about on the basis of the Environmental Enforcement Programme. A crucial element in this approach is the need for existing and detailed programmes or plans of the various enforcement actors. The fact is that a purposeful enforcement policy will lead to greater compliance with the regulations than would be the case with random inspections. Given the impossibility to regularly inspect all systems within the available time span and with the limited resources at hand, it may be opportune to work out the enforcement in an organized and specifically formulated manner (e.g., by assigning priorities).18 From the Environmental Enforcement Programme 2010 the first programme introduced by the Council it appears that not every enforcement actor has his own programme or plan in place and that the entities that have it do not actually make up such programmes and plans in comparable ways. The enforcement actors were, in fact, asked what their intentions and plans regarding enforcement of environment law encompassed for the year 2010. Certain enforcement actors were able to proffer a very detailed overview of the inspections they were planning for the coming year, while others did not manage to pass beyond a mere summary of their competences without any indication on the manner in which they were expecting to carry out their remit. Hence, one of the most important future challenges for the Council is to convince the various environmental enforcement actors of the need and the benefit of proper planning. This is not only crucial for the environmental enforcement within the Flemish region in general given the significance of programmed or planned supervision but it serves likewise to enhance the quality of the enforcement programmes rather than just proceeding purely descriptively and collectively. The Environmental Enforcement Programme 2010 had a rather limited scope. This has not only to do with the decreed restrictions and the mostly non-comparable
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programmes of the individual enforcement actors, but also with the fact that this was the first Environmental Enforcement Programme. The establishment of such a programme requires a given methodology that is to be developed and continuously refined, case pertaining, by no longer confining the programming to an annual event but to work with multi-year planning that formulates the objectives for the medium term. During the initial years, this will no doubt result in a trial & error process until the time when the Environmental Enforcement Programme can actually be turned into a full-fledged overarching and all-encompassing policy instrument. Nonetheless, the Environmental Enforcement Programme 2010, aside from the planned activities of the individual enforcement agencies, contains an overview of the problem areas existing in the current Environmental Enforcement Policy and the manner in which the Council amongst others via the working groups wanted to approach these problematic areas itself in 2010. Also positive is the fact that for the first time, the existing plans and intentions concerning enforcement within the Flemish region were grouped together. This then means that the Environmental Enforcement Programme serves a great informative purpose. 3.2 The Environmental Enforcement Report
In contrast to the Environmental Enforcement Programme, however, the Environmental Enforcement Decree did determine a very clear content for the Environmental Enforcement Report. This report to be drawn up on an annual basis as well needs as a minimum requirement to contain a general evaluation of the regional environmental enforcement policy conducted during the past calendar year, plus a specific evaluation of the manner in which the separate enforcement instruments were employed in the task. In addition, the report has to proffer an overview of the cases for which, within the fixed time period, no ruling was rendered vis--vis the appeals versus the decisions concerning administrative measures, and to formulate an evaluation of the decision-making practices of the public prosecutors offices on whether or not to criminally prosecute an observed environmental violation. Moreover, the Environmental Enforcement Report needs to contain an overview and a comparison of the environmental enforcement policy conducted by the municipalities and the provinces, an inventory of the insights gained in the course of the enforcement period and that may be suitable for future use towards improving the environmental regulations, policy visions and policy implementation, plus recommendations for the further development of the environmental enforcement policy.19 The Environmental Enforcement Report is a crucial element to shape the environmental enforcement policy, to support and, case pertaining, to update it. It needs to be all encompassing and contain all relevant facts and figures about the environmental enforcement policy conducted during the past calendar year. The Environmental Enforcement Report is expected to proffer a concrete idea of the manner in which the environmental enforcement policy is being implemented in the field.20 The Environmental Enforcement Report 200921 was approached mainly in a quantitative manner. Since the number of environmental enforcement actors that
needs to be surveyed is quite substantial, this quantitative approach seemed to be the most practical solution. For instance, questions were asked concerning the number of appointed overseers and the number of full-time equivalents that these individuals devoted to enforcement tasks. In addition, the overseers were asked about the number of controls executed since the time of entry into force of the Environmental Enforcement Decree and the results thereof (advisories, warnings, reports, reports of determination of the observed facts, and administrative measures). By asking for this kind of information, the Council was, in the first place, able to map out the current status of the enforcement landscape within the Flemish region. This is likewise the case for the sanctioning aspect. The prosecutors offices in the Flemish region were asked to proffer an overview of the environmental dossiers registered with them and what follow-up was given to these. Likewise, the newly formed administration within the Government of Flanders that is responsible for the levy of fines was asked for the number of the monetary penalties imposed in 2009 and for what kinds of environmental violations. Hence, the sanctioning was also analyzed in a quantitative manner. The status quo as established in the Environmental Enforcement Report 2009 does, indeed, offer opportunities for the future Environmental Enforcement Reports to draw comparisons with respect to the evolution of environmental enforcement based on the data gathered in the initial reports. As such, it is to be expected that a future quantitative approach may be combined with a more qualitative one. Hopefully, such an expectation might be reinforced by the fact that the surveying of the enforcement actors can be continued in greater depth and detail in a more qualitative fashion. During the drafting of the Environmental Enforcement Report 2009, the various enforcement actors were urged to provide more explanation with their furnished data. This meant that the statistics could be complemented with the needed clarification and certain observations could be adjusted to a more realistic level. The fact remained, though, that some of the enforcement actors were in their own position confronted within the reinforcement landscape vis--vis that of others. Since the Flemish High Council of Environmental Enforcement strives for consensus, it was necessary to take account of certain sensitivities in the field. Although there was certainly no question of censorship, it was nonetheless necessary to present some of the facts and figures in a more realistic perspective. Notwithstanding the fact that the composition of the Environmental Enforcement Report is also certainly subject to the trial & error process, it may nevertheless be held that the make-up of the initial report has brought about a renewal into the enforcement landscape, given the volume of information that was gathered on this first occasion. While there is no doubt that the composition of the Environmental Enforcement Report marks the start of a period of growth, there is primarily a question of monitoring a great number of facts and figures albeit not quite yet of an overall true evaluation of content; nonetheless, in this first analysis clear problem areas in the environmental enforcement policy are being detected and identified. For instance, it has become evident that not yet every overseer correctly
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applies the new procedures in the Environmental Enforcement Decree and that certain enforcement instruments still have to find their way into the practice. On the other hand, the report likewise gave evidence of successes booked by the decree. Within a mere seven months of the entry into force of the decree, it was already noted that some 10% of the environmental enforcement dossiers had been handed by the prosecutors offices to the administration within the Government of Flanders competent for levying administrative fines and that a large majority of the responding municipalities had already appointed a municipal overseer.23 The Environmental Enforcement Report 2009 hence points out an important indication of the effective entry into force, the initial implementation of the Environmental Enforcement Decree, and the problematic and success factors that result from it. It may therefore be expected that the Environmental Enforcement Report shall turn into an instrument of increasing import to follow up the implementation of the environmental enforcement policy and to evaluate it more thoroughly at a later time. Likewise, the future Environmental Enforcement Reports need to contribute input for the Environmental Enforcement Programme and viceversa. The aim is to draw up these two documents in a cyclical manner and that they will reciprocally affect their respective content, thus enabling the evaluation of the programmed material and the use of the evaluation in future programming. 3.3 Protocols The Environmental Enforcement Decree appoints that within the context of the Council environmental enforcement protocols may be conducted. These protocols are designed to give further substantive content to the environmental enforcement policy established in the Environmental Enforcement Report.23 At the same time, these protocols need to ensure that there be clear agreements about the operating field, given that the various overseeing entities have in the Environmental Enforcement Decree not only received complementary but sometimes also overlapping competences and assignments.24 The protocols might not only contain a territorial demarcation but also a demarcation of content, this depending on the activity to be controlled.25 In addition, a protocol is meant to make optimal use of the means and resources at the disposal of the environmental enforcement actors and to ensure harmonization amongst them. From a legal standpoint, an environmental enforcement protocol is not an agreement, even though such a protocol will be put in writing, but it may be assumed that the actors involved in it will voluntarily abide by its provisions (gentlemens agreements). While these protocols are deemed essential for the determination and the realisation of the enforcement priorities, of the actions undertaken in that respect, and of their follow-up,26 no environmental enforcement protocols have been concluded within the context of the Flemish High Council of Environmental Enforcement. This, amongst other reasons, has to do with the fact that the Council has given priority
to its decreed assignments, namely the annual drafting of the Environmental Enforcement Report and the Environmental Enforcement Programme. By the same token, it is not an easy task for the enforcement actors, in spite of the fact that the protocols do not impose legally binding commitments, to harmonize the exercise of their own competences with others possessed of the identical competences, nor is it self-evident to other actors that have been appointed as overseers to implement the assignments entrusted to them. The aim is, indeed, that such agreements be broad in scope and be arrived at by common consent and consensus. This requires a great deal of prior research, consultation, and an indisputable willingness for collaboration. The prior research was partially conducted within the context of the Environmental Enforcement Report 2009. In this process, a number of the problem areas within the environmental enforcement in the Flemish region were not only clearly summarized but, furthermore, substantiated by a lot of facts and figures. Likewise, a great deal of effort was devoted by the working groups to the still existing problems within the enforcement landscape. However, not all of these problems and the solutions in casu lend themselves to inclusion into an environmental enforcement protocol. The Council and its working groups have already furnished solutions for many needs, such as, for instance, the development of a number of sample form letters and templates to serve within the framework of a smoother and uniform information exchange. The purpose of the environmental enforcement protocols is viewed, however, as weightier than ordinary practical agreements. It is to be expected that the protocols whereby the Council will attempt to facilitate interaction with the enforcement actors involved, and which are to be concluded in the (near) future, will rather deal with fundamental choices and agreements. That kind of protocol cannot be forced. Receiving the needed consensus in this regard will take a lot of time and feedback amongst the various actors. 4 CONCLUSION The formation of the Flemish High Council of Environmental Enforcement marked the first time that the various enforcement actors were brought together within a formal context and a broad dialogue was initiated. Although expectations were very high and the Council saw itself compelled to scale down its initial expectations to a more realistic and feasible level, nevertheless the Council has made a good start. Certainly the Environmental Enforcement Report 2009 combines a wealth of previously widely diffused or unknown facts, as expected by the legislature that had explicitly decreed what was expected from this report. The mandated content of the Environmental Enforcement Programme, in contrast, was rather vaguely formulated and was distinguished primarily by what was to be excluded from it. The Council has in the course of its activities been able to already identify a number of points of attention and priorities in the enforcement actors fields of operations and is trying to resolve or address these via its working groups. The Council remains confronted by a number of challenges. However, it is not a sinecure to study these rapidly and to quickly formulate a fitting response to them. For that reason, it is important to keep in mind that this novel council itself
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needs further deployment over a broader field and that its decreed assignments range across a broader context. The creation of a wider collaboration with the enforcement actors needs more time. However, the initial results are promising, and it can be expected that the Council will continue to expand and flesh out its role as a coordinating body in a gradual process. The first steps have been taken, and more information collection, extensive consultation, and additional harmonization are necessary for the Council to proceed in its next stages. 5
1 2
REFERENCES
Lavrysen L. , Handbook Milieurecht, 2006, pp. 125-157. Decree of 21 December 2007 to complement the Decree of 5 April 1995 concerning general provisions on environmental policy with title XVI Toezicht, handhaving en veiligheidsmaatregelen, Bel. Off. Journal 29 February 2008. For an overview on this title in its original version: Heyman J., Is er een Copernicaanse wending op til in het Vlaams milieuhandhavingsbeleid?, Nullum Crimen, 2008, pp. 303-326. For a discussion of the Environmental Enforcement Decree and the Environmental Enforcement Act the penultimate edition : Billiet C.M., De Smedt P. and Van Landeghem H., Vlaamse milieuhandhaving nieuwe stijl, in Tijdschrift voor Milieurecht, 2009, pp. 326-374. 3 Explanatory note, Parliamentary papers of the Flemish Parliament, 2006-2007, no 1249, p. 3. For an extensive historical overview and explanation with the drafting of the Decree see : Explanatory note, Parliamentary papers of the Flemish Parliament, 2006-2007, no 1249, pp. 3-19. Heyman J. and Deketelaere K. Het Vlaams decreet betreffende milieuhandhaving in Deketelaere K. (ed.), Jaarboek Milieurecht 2007, Milieurechtstandpunten nr. 22, Bruges, Die Keure, 2008, pp. 221-224. 4 Geysels F., Meeus R., Vanheule J. and Hoeben J., Handhavingszakboekje Milieu 2009, 2009, p. 6. 5 Decree of 21 December 2007 to complement the Decree of 5 April 1995 concerning general provisions on environmental policy with title XVI Toezicht, handhaving en veiligheidsmaatregelen, Bel.Gaz. 29 February 2008, article 16.1.2, article 16.2.7, article 16.3.1, article 16.3.24, and article 16.4.6. 6 Stas A. and Renders T., Het Milieuhandhavingsdecreet: een analyse van de Vlaamse Hoge Raad voor de Milieuhandhaving, het systeem van toezichthouders en de bestuurlijke handhaving, Tijdschrift Milieu- en Energierecht (in press) ( In Dutch). 7 Act of the Government of Flanders of 13 February 2009 concerning the appointment of the members of the Flemish High Council of Environmental Enforcement, mentioned in article 16.2.7 of the Decree of 5 April 1995 concerning general provisions on environmental policy, Belg. Off. Journal 19 March 2009. 8 Heyman J. and Deketelaere K. Het Vlaams decreet betreffende milieuhandhaving in Deketelaere K. (ed.), Jaarboek Milieurecht 2007, Milieurechtstandpunten nr. 22, Bruges, Die Keure, 2008, p. 226. 9 Billiet C.M., De Smedt P. and Van Landeghem H., Vlaamse milieuhandhaving nieuwe stijl, Tijdschrift voor Milieurecht, 2009, p. 331. 10 Act of the Government of Flanders of 13 February 2009 concerning the appointment of the members of the Flemish High Council of Environmental Enforcement, mentioned in article 16.2.7 of the Decree of 5 April 1995 concerning general provisions on environmental policy, Belg. Off. Journal 19 March 2009.
Act of the Government of Flanders of 13 February 2009 concerning the appointment of the members of the Flemish High Council of Environmental Enforcement, mentioned in article 16.2.7 of the Decree of 5 April 1995 concerning general provisions on environmental policy, Belg. Off. Journal 19 March 2009. 12 Explanatory note, Parliamentary papers of the Flemish Parliament, 2006-2007, no 1249/1, p. 24. 13 The Administration of the Government of Flanders counts a total of 13 departments, entities, and agencies with the competence to appoint regional overseers within their personal organizations remit. 14 Explanatory note, Parliamentary papers of the Flemish Parliament, 2006-2007, no 1249/1, pp. 24-27. 15 Environmental Enforcement Programme 2010, Flemish High Council of Environmental Enforcement, pp. 41-47. 16 Explanatory note, Parliamentary papers of the Flemish Parliament, 2006-2007, no 1249/1, p. 25. 17 Environmental Enforcement Programme 2010, Flemish High Council of Environmental Enforcement, p. 25. 18 Billiet C.M. and Rousseau S., Zachte rechtshandhaving in het bestuurlijke handhavingsspoor: de inspectiebeslissing en het voortraject van bestuurlijke sancties. Een rechtseconomische analyse, Tijdschrift voor Milieurecht, 2005, p. 19. 19 Decree of 21 December 2007 to complement the Decree of 5 April 1995 concerning general provisions on environmental policy with title XVI Toezicht, handhaving en veiligheidsmaatregelen, Bel.Gaz. 29 February 2008, article 16.2.5. 20 Explanatory note, Parliamentary papers of the Flemish Parliament, 2006-2007, no 1249/1, pp. 25-26. 21 Environmental Enforcement Report 2009, Flemish High Council of Environmental Enforcement, (English version in press). 22 Environmental Enforcement Report 2009, Flemish High Council of Environmental Enforcement, p. 102 and pp. 151-155. 23 Geysels F., Meeus R., Vanheule J. and Hoeben J., Handhavingszakboekje Milieu 2009, 2009, p. 49. 24 However, it appears from the parliamentary preliminary work that it was actually meant to avoid an overlap of the competences (Explanatory note, Parliamentary papers of the Flemish Parliament, 2006-2007, no 1249/1, p. 31). There remain, however, different overseers competent for certain regulations, e.g., Environmental Permits Decree. 25 Explanatory note, Parliamentary papers of the Flemish Parliament, 2006-2007, no 1249/1, p. 28. 26 Explanatory note, Parliamentary papers of the Flemish Parliament, 2006-2007, no 1249/1, p. 24.
11
BIBLIOGRAPHY
Billiet, C.M. and Rousseau S., Zachte rechtshandhaving in het bestuurlijke handhavingsspoor: de inspectiebeslissing en het voortraject van bestuurlijke sancties. Een rechtseconomische analyse, Tijdschrift voor Milieurecht, 2005, pp. 2-33.
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Billiet, C.M., De Smedt P. and Van Landeghem, Het milieuhandhavingsdecreet in de praktijk een jaar nieuwe milieuhandhavingspraktijk onder de loep, 2010, 338 p. Billiet, C.M., De Smedt P. and Van Landeghem, Vlaamse milieuhandhaving nieuwe stijl, Tijdschrift voor Milieurecht, 2009, pp. 326-374. Environmental Enforcement Programme 2009, Flemish High Council of Environmental Enforcement, (English version in Press). Environmental Enforcement Programme 2010, Flemish High Council of Environmental Enforcement. Explanatory note, Parliamentary papers of the Flemish Parliament, 2006-2007, no 1249. Faure M.G. and Svatikova K., De handhaving van het milieurecht in het Vlaamse Gewest in de praktijk, Panopticon, 2010, pp. 57-81. Geysels, F., Meeus R., Vanheule, J. and Hoeben J., Handhavingszakboekje Milieu 2009, 2009, p. 520 Heyman, J. and Deketelaere, K. Het Vlaams decreet betreffende milieuhandhaving, in Deketelaere K. (ed.), Jaarboek Milieurecht 2007, Milieurechtstandpunten nr. 22, Bruges, Die Keure, 2008, pp. 221-224. Heyman, J., Is er een Copernicaanse wending op til in het Vlaams milieuhandhavingsbeleid?, Nullum Crimen 2008, pp. 303-326. Lavrysen, L. , Handboek Milieurecht, 2006, 643 p. Stas, A. and Renders, T., Het Milieuhandhavingsdecreet: een analyse van de Vlaamse Hoge Raad voor de Milieuhandhaving, het systeem van toezichthouders en de bestuurlijke handhaving, Tijdschrift Milieu- en Energierecht (in press)
3 APPENDIX
List of Participants837
LIST OF CONFERENCE PARTICIPANTS
Ms. Sheila Abed Chair IUCN Commission on Environmental Law Nicanor Torales 150 Asuncin, Paraguay 1851 Tel: +595-981-410-962 E-mail: sheila.abed@idea.org.py Mrs. Bernadette Araba Adjei Legal Officer Legal and Monitoring Water Resources Commission C/O CT56 30 Cantonments Accra, Ghana Tel: +233-266-150-525 E-mail: bernadette.adjei@gmail.com Mr. Shakeb Afsah Performeks LLC United States Email: shakebafsah@performeks.com Ms. Martha Ins Aldana Director Enforcement and Incentives Direction Environmental Assessment and Enforcement Agency (OEFA) Calle Manuel Gonzles Olaechea N247 San Isidro Lima, Peru Tel: +511-719-3241 E-mail: maldana@oefa.gob.pe Mr. Gregorio Ylaya Algoso, Jr. Supervising Agent Central Visayas Regional Office (NBICEVRO) National Bureau of Investigation Cebu City, Philippines 6000 Tel: +63-919-241-9357 E-mail: gregpaje@yahoo.com Mr. Jonathan A. Allotey Environment Professional P.O.Box KN 1990
Kaneshie Accra, Ghana Tel: +233-20-811-2686 E-mail: jan_allotey@yahoo.com Mr. Stephen O. Andersen IGSD United States E-mail: soliverandersen@aol.com Dr. Lawrence Chidi Anukam Director Planning and Policy Analysis National Environmental Standards and Regulations Enforcement Agency (NESREA) 4 Oro Ago Crescent Federal Capital Territory Abuja, Nigeria Tel: +234-803-7865491 E-mail: lanukam@nesrea.org Mr. Dragan Asanovic Assistant Director Sector for Permits Environmental Protection Agency IV Proleterske 19 Podgorica, Montenegro 81.000 Tel: +382-20-618-255 E-mail: dragan.asanovic@epa.org.me Mr. Shakeb Afsah Monitoring, Evaluation, and Public Disclosure Specialist Performeks LLC 9621 Alta Vista Terrace Bethesda, MD, 20814 Tel: +1-301-564-0089 shakebafsah@performeks.com Dr. Robert Baert Vice-Chair Flemish High Council for the Enforcement of Environmental Law Koning Albert II-laan 20 Bus 8
Brussels, Belgium B-1000 Tel: +32-2-5538582 E-mail: info@vhrm.vlaanderen.be Ms. Milag Ballesteros AECEN Secretariat 75 Jalan Tua Kong Singapore 457267 Tel: +65-6844-4214 E-mail: mballesteros@eco-asia.org.ph Dr. Robyn Bartel Geography & Planning University of New England BCSS Armidale New South Wales, Australia 2351 Tel: +61267732904 E-mail: rbartel@une.edu.au Dr. (Mrs.) Ngeri Benebo Director General National Environmental Standards and Regulations Enforcement Agency (NESREA) 4 Oro Ago Crescent Federal Capital Territory Abuja, Nigeria Tel: +234-805-964-8809 E-mail: dg@nesrea.org Justice Antonio Herman Benjamin High Court of Brazil Brazil Mrs. Sara Boogers Public Prosecutor Flemish High Council of Environmental Enforcement Parket van de Procureur des Konings Turnhout, Belgium B-2300 Tel: +32-473-252103 E-mail: sara.boogers@just.fgov.be Mr. Christopher Booth Consultant Environment Regulation 33 Cowper Road Bristol, United Kingdom BS6 6NZ Tel: +44-117-973-9401 E-mail: chris.booth56@btinternet.com
Mr. Nathan Borgford-Parnell Staff Attorney Institute for Governance & Sustainable Development 2300 Wisconsin Ave, NW, Suite 300B Washington, D.C. 20007 tel: +1-202-338-1300 E-mail: NBorgford-Parnell@igsd.org Ms. Dinah Brandful Assistant Commissioner Excise and Preventive Service Ghana Customs Accra, Ghana E-mail: dbrandful@yahoo.com Ms. Susan Bromm Director US EPA Office of Federal Activities 1200 Pennsylvania Ave. NW Washington, DC 20460 United States Tel: +1-292-654-5400 E-mail: bromm.susan@epa.gov Lt. Meaghan Brosnan Program and Policy Analyst Office of Law Enforcement, Living Marine Resources Division U.S. Coast Guard Headquarters 2100 2nd Street SW Washington, DC 20593 United States Tel: +1-202-372-2188 E-mail: meaghan.h.brosnan@uscg.mil Ms. Angela Bularga Environment Directorate OECD 2, rue Andr-Pascal Paris, France 75775 Tel: +33-14-524-9863 E-mail: angela.bularga@oecd.org Mr. Peter Busink Conservation Officer Conservation Officer Service Ministry of Environment Squamish British Columbia, Canada Tel: +1-604-815-8170 E-mail: peter.busink@gov.bc.ca
Dr. Steve Bygrave Assistant Secretary Climate Change and Energy Effficiency Australian Government 20 Allara St Australian Capital Territory Canberra, Australia 2600 Tel: +61-2-6159-7282 E-mail: stephen.bygrave@climatechange.gov.au Ms. Michelle Carr Director of Strategy and Quality Assurance Environmental Assessment Office 836 Yates Street Victoria, British Columbia V8W 9V1 Canada Tel: +1-250-387-6748 E-mail: michelle.carr@gov.bc.ca Mr. Ross Carter First Assistant Secretary Regulatory Division Department of Climate Change and Energy Efficiency Department of Climate Change and Energy Efficiency GPO Box 854 Australian Capital Territory Canberra, Australia 2601 Tel: +61-2-6159-7721 E-mail: ross.carter@climatechange.gov.au Mr. Liam Cashman DG Environment European Commission Rue de la Loi 200 Brussels, Belgium 1049 Tel: +00-32-2-29-90325 E-mail: liam-joseph.cashman@ec.europa.eu Mr. Ezra Clark Green Customs Coordinator, OzonAction Branch Division of Technology, Industry and Economics United Nations Environment Programme 15 rue Milan Paris, France 75441 Tel: + 33-16-43-77 611 E-mail: ezra.clark@unep.fr
Mr. Troy Collings Managing Director Best Practice Regulatory Services Leve 2 12 Blacket St QLD Brisbane, Australia 4103 Tel: +620421128000 E-mail: troy@bprs.com.au Dr. Martin de Bree Erasmus University Rotterdam/Next Step Management Marshalllaan 91 Hellevoetsluis Zuid-Holland 3223 HC Netherlands Tel: +31181312756 E-mail: info@nextstepmanagement.nl Mr. Han de Haas Direction Spatial Planning and Enforcement Province of Noord-Brabant PO box 90151 s-Hertogenbosch, Netherlands 5200 MC Tel: +31-73-6812229 E-mail: jmdhaas@brabant.nl Mr. Peter De Smedt Environmental Lawyer Flemish High Councel Environmental Enforcement Kasteellaan 141, 9000 Ghent Ghent, Belgium 9000 Tel: +3292342916 E-mail: peter.desmedt@ldr.be Mrs. Inge Delvaux Head of Service Environment, Nature & Energy Department Flemish Environmental Inspectorate Division, the Supervision of Major Hazard Companies Service Koning Albert II-laan 20 bus 8 Brussels, Belgium 1000 Tel: +32-2-5538198 E-mail: inge.delvaux@lne.vlaanderen.be
Mr. Mohamed Rida Derder IGSD Morocco E-mail: ridaderder@msn.com Mr. Sonny Dhami Acting Chief Intelligence Division Canada Border Services Agency 605-333 Dunsmuir Street Vancouver, British Columbia V6B 5R4 Canada Tel: +1-604-666-8400 E-mail: Sonny.Dhami@cbsa.gc.ca Mr. Chris Dijkens Ministry of Infrastructure and the Environment Netherlands E-mail: Chris.Dijkens@minvrom.nl Mr. Mihail Dimovski Senior Expert/Topic Area Leader Environmetnal Directorate The Regional Envionmental Center Ady Endre 9-11 Szentendre, Hungary 2000 Tel: +3626504052 E-mail: mdimovski@rec.org Mr. Zoran Dimovski State Environmental Inspector State Environmental Inspectorate Ministry of Environment and Physical Planning BulevarGoce Delcev bb (MRTV)1000 Skopje Skopje, Republic of Macedonia 1000 Tel: +38923213775 E-mail: zdimovski61@t-home.mk Ms. Oanh Hoang Do Deputy Head Department of Natural Resources and Environment Planning Division 357/15 Nguyen Thien Thuat st. Ho Chi Minh, Viet Nam Tel: +84-8-38225233 E-mail: oanhdh@tphcm.gov.vn
Ms. Erin Eacott Counsel Regulatory Prosecutions Public Prosecution Service of Canada 211 Bank of Montreal Building Edmonton, Alberta T5J 3Y4 Canada Tel: +1-780-495-7423 E-mail: erin.eacott@ppsc-sppc.gc.ca Mr. Tong Fan Senior Staff Center of Environmental Emergency Ministry of Environmental Protection of the Peoples Republic of China No. 115, Xizhimen Nanxiaojie Beijing, China 100035 Tel: +86-10-66556489 E-mail: fantong05@mails.gucas.ac.cn Prof. Dr. Michael G. Faure Flemish High Council of Environmental Enforcement Koning Albert II-laan 20 Brussels, Belgium 1000 Tel: +32-2-553-8582 E-mail: info@vhrm.vlaanderen.be Ms. Alison Feibel Executive Assistant INECE Secretariat 2300 Wisconsin Ave NW Washington, DC 20007 United States Tel: +1-202-338-1300 E-mail: afeibel@inece.org Ms. Michelle Ferguson Public Prosecution Service of Canada Canada E-mail: michelle.ferguson@ppsc-sppc.gc.ca Mr. Andrew Ferguson Principal Sustainable Development Strategies, Audits and Sutdies Office of the Auditor General of Canada 240 Sparks Street Ottawa, Ontario K1A 0G6 Canada Tel: +1-613-952-0213 (x6307) E-mail: Andrew.Ferguson@oag-bvg.gc.ca
Mr. David L. Ferrell Director Law Enforcement and Investigations USDA Forest Service 1621 N. Kent Street Arlington, Virginia 22209 United States Tel: +1-703-605-4690 E-mail: dferrell@fs.fed.us Mrs. Tsvetelina Borissova Filipova Senior Project Manager/Lawyer Environmental Policy Directorate Regional Environmental Center 9-11 Ady Endre ut, Szentedre, Hungary 2000 Tel: +3626504095 E-mail: filipova@rec.org Ms. Amy Fraenkel Regional Director and Representative UN Environment Programme Washington, DC 20006 United States Tel: +1-202-785-0465 E-mail: amy.fraenkel@unep.org Professor Duncan French Professor of International Law University of Sheffield United Kingdom Tel: +441142226849 E-mail: d.french@shef.ac.uk Mr. Scott Fulton General Counsel Office of the General Counsel U.S. EPA 1200 Penn. Ave NW Washington, DC 20460 United States Tel: +1-202-564-8040 Mr. Obopeng Tokgamo Gaoraelwe Deputy Director: Compliance and Enforcement Northern Cape Department of Environment and Nature Conservation 90 Long Street Kimberly Northern Cape, South Africa 9300
Tel: +2753-807-7300 E-mail: ogaoraelwe@half.ncape.gov.za Mr. Issaka Garba Abdou Diplomat Legal Affairs Ministry of Foreign Affairs Po BOX 396 Niamey, Niger Tel: +22796575847 E-mail: garba_abdou2000@yahoo.fr Mr. Ken Garing Sr. Inspector NEIC US EPA PO Box 25227 Denver, Colorado 80225 United States E-mail: garing.ken@epa.gov Mr. Jo Gerardu INECE Secretariat 2300 Wisconsin Ave NW Washington, DC 20007 United States E-mail: gerardu@inece.org Mr. Marko Goluza Regional Director Environmental Enforcement Environment Canada 201-401 Burrard Street Vancouver, British Columbia V6C 3S5 Canada Tel: +1-604-209-5815 E-mail: marko.goluza@ec.gc.ca Ms. Ann Marie Gorecki Conservation Officer BC Ministry of Environment PO Box 220 Brackendale, British Columbia v0N1H0 Canada Tel: +1-604-815-9111 E-mail: AnnMarie.Gorecki@gov.bc.ca Ms. Danielle Grabiel Program Manager INECE Secretariat 2300 Wisconsin Ave NW
Washington, DC 20007 United States Tel: +1-202-338-1300 E-mail: dgrabiel@inece.org Ms. Coleen Hackinen Senior Contaminated Sites Officer Land Remediation Section BC Ministry of Environment 2nd Floor, 10470 152nd Street Surrey, British Columbia V3R 0Y3 Canada Tel: +1-604-582-5337 E-mail: coleen.hackinen@gov.bc.ca Mr. Paul Hagen Principal Beveridge & Diamond, P.C. 1350 I Street, NW Washington, DC 20005 United States Tel: +1-202-789-6022 E-mail: phagen@bdlaw.com Mr. Robert G Heiss Director US Environmental Protection Agency International Compliance Assurance Division, OFA, OECA 1200 Pennsylvania Avenue NW Washington, DC 20460 United States Tel: +1-202-564-4108 E-mail: heiss.robert@epa.gov Mr. Tim Hicks Project Assessment Manager Environmental Assessment Office BC Ministry of Environment PO Box 9426 STN Prov Govt Victoria, British Columbia V8W9V1 Canada Tel: +1-250-387-6758 E-mail: Tim.D.Hicks@gov.bc.ca Mr. Markku Hietamki Environmental Counsellor Finnish Ministry of the Environment Kasarminkatu 25 Helsinki, Finland 00010 Tel: + 358-50-3616-392 E-mail: markku.hietamaki@ymparisto.fi
Mr. David Higgins Manager Environmental Crime Programme INTERPOL 200 Quai Charles de Gaulle Lyon, France 69006 Tel: +33-472-447-623 E-mail: d.higgins@interpol.int Mr. Patrick Emeka Igbo Deputy Director/Special Assistant to DG Zone/State Operations National Environmental Standards and Regulations Enforcement Agency (NESREA) 4 Oro Ago Crescent Federal Capital Territory Abuja, Nigeria Tel: +234-803-271-7074 E-mail: pigbo@nesrea.org Ms. Nancy Isarin Environmental consultant Ambiendura Estrada de Quelfes Olho Algarve, Portugal 8700-207 Tel: +351-289-701354 E-mail: nancy.isarin@ambiendura.com Ms. Lisa P. Jackson Administrator U.S. EPA 1200 Pennsylvania Avenue, N.W. Washington, DC 20460 United States Chief Gibby Jacob Chief Squamish Nation (First Nation) Squamish, BC V8B 0C2 Canada E-mail: gibby_jacob@Squamish.net Justice Vijender Jain Former Chief Justice Punjale and Haryana High Court India Tel: +91-0120-2511535 E-mail: justicevijenderjain@gmail.com
Mr. Mark Jardine Compliance and Enforcement Support Department of Environmental Affairs 315 Pretorius Street Pretoria Gauteng, South Africa 0001 Tel: +272-012-310-3375 E-mail: mjardine@environment.gov.za Mr. Dave Jevons BC Conservation Officer Service PO Box 220 Brackendale, BC V0N 3G0 Canada E-mail: dave.jevons@gov.bc.ca Mr. Davis Jones Associate Director International Compliance Assurance Division US EPA 1200 Pennsylvania Ave., NW Washington, DC 20460 United States Tel: +1-202-564-6035 E-mail: jones.davis@epa.gov Mr. Donald Kaniaru Environmental Lawyer Kaniaru and Kaniaru Advocates ABC Bank House, 1st Floor, Woodvale Groove, Westlands Nairobi, Kenya E-mail: wkaniaru@kaniaruadvocates.co.ke Dr. Peter King Team Leader, Environmental Governance ECO-Asia 54 Kenny Street North Balwyn Victoria, Thailand 3104 Tel: +66-858-111-948 E-mail: pnking1948@yahoo.com.au Mr. Arend Jan Kolhoff MSc Development Co-op NCEA A.V. Schendelstr 800 Utrecht, Netherlands 3511 ML Tel: +31302347660 E-mail: akolhoff@eia.nl
Mrs. Meredith Reeves Koparova Director of Programs INECE Secretariat 2300 Wisconsin Ave NW Washington, DC 20007 United States Tel: +1-202-338-1300 E-mail: mreeves@earthpace.com Mr. Edward J. Kowalski Director Office of Compliance and Enforcement U.S. Environmental Protection Agency 1200 6th Avenue, Suite 900 Seattle, Washington 98101 United States Tel: +1-206-553-6695 E-mail: kowalski.edward@epa.gov Mr. Arnold Kreilhuber Legal Officer Division of Environmental Law and Conventions United Nations Environment Programme PO Box 47074 Nairobi, Kenya Tel: +254-0-20-762-4543 E-mail: arnold.kreilhuber@unep.org Dr. Katharina Kummer Piery Executive Secretary Secretariat of the Basel Convention Geneva, Switzerland Mr. Benjamin Langwen Director Compliance & Enforcement National Environment Management Authority Box 67839 Nairobi, Kenya 00200 Tel: +25420 608118 E-mail: blangwen@nema.go.ke Ms. Gwenda Laughland Director, Compliance Policy & Strategic Projects Compliance Policy and Planning Branch BC Ministry of Environment 5th Floor, 2975 Jutland Road Victoria, British Columbia V8T5J9 Canada
Tel: +1-250-387-9761 E-mail: Gwenda.Laughland@gov.bc.ca Mr. Andrew Lauterback US EPA United States E-mail: lauterback.andrew@epa.gov Ms. Jessica R. Lawn Counsel Public Prosecution Service of Canada Government of Canada 7th Floor Vancouver, British Columbia V6Z2S9 Canada Tel: +1-604-666-0131 E-mail: jessica.lawn@ppsc.gc.ca Mr. Heng Keng Lee Department of Environment Department of Environment Level 1-4, Podium 2 & 3, Wisma Sumber Asli, 25, Persiaran Perdana Putrajaya Federal Territory, Malaysia 62574 Tel: +603-8871-2275 E-mail: lee@doe.gov.my Mr. James Lehane Executive Officer Australasian Environmental Law Enforcement and Regulators neTwork (AELERT) GPO Box 787 Australian Capital Territory Canberra, Australia 2601 Tel: +61-2-6274-2259 E-mail: secretariat@aelert.com.au Dr. Paul Leinster Chief Executive Environment Agency United Kingdom Mr. Randall Wayne Lewis Environmental Coordinator Project Negotiation & Development Squamish Nation (First Nation) 1201-99 Billy Road Squamish British Columbia, Canada V8B 0C2
Tel: +1-604-317-1875(M) +1-604-892-2292(O) E-mail: randall_lewis@squamish.net Mr. Jaime Lira Superintendente Superintendencia del Medio Ambiente Moneda 970, piso 13 Santiago, Chile Tel: +56-99-3098809 E-mail: jlira@sma.gob.cl Mr. Luciano Loubet Prosecutors Office Brazil Rua JK de Oliveira, 127, Bnh Bonito Mato Grosso do Sul, Brazil 79290 000 Tel: +55-67-3255-1300 E-mail: lucianoloubet@bol.com.br Mr. Eugene Lubieniecki INECE Secretariat 2300 Wisconsin Ave NW Suite 300B Washington, DC 20007 United States E-mail: glubie@rocketmail.com Mr. Dara Lynott Deputy Director General Office of Environmental Enforcement Environmental Protection Agency P.O. Box 3000 Wexford, Ireland 0000 Tel: +1-353-53-9160600 E-mail: d.lynott@epa.ie Mr. G Jack MacDonald Allotrope Ventures 950 Cambie Street Vancouver, BC V6B5X5 Canada Tel: +1-778-323-8639 E-mail: gjm@allotropevc.com Mrs. Salome Machua Deputy Director Enforcment Compliance and Enforcement National Env. Management Authority P.O.Box 678393 Nairobi, Kenya Tel: +254-722212644 E-mail: smachua@nema.go.ke
Dr. Ken Macken Programme Manager Climate Change EPA Ireland EPA Regional Inspectorate Clonskeagh Dublin, Ireland 14 Tel: +353-1-2680167 E-mail: k.macken@epa.ie Ms. Nicole Maric Law Enforcement, Organized Crime and Anti-Money Laundering Unit United Nations Office on Drugs and Crime (UNODC) Switzerland E-mail: nicole.maric@unodc.org Mrs. Marcy Markowitz CEO Earthpace LLC 7812 River Falls Drive Potomac MD 20854 Tel: +1-301-983-4266 E-mail: mjm@earthpace.com Mr. Kenneth Markowitz Managing Director INECE 2300 Wisconsin Ave, NW Suite 300B Washington, D.C. 20007 United States Tel: +1-202-338-1300 E-mail: kjm@earthpace.com Mr. Otieno Nyunja Maurice Nyunja Chief Environmental Planning Officer Environmental Planning and Research Coordination National Environment Management Authourity P.O Box 67839-0200 Nairobi, Kenya 00200 Tel: +254726158678 E-mail: nyunja@yahoo.com Mr. Eugene Mazur Project Manager Environment Directorate OECD 2, rue Andr-Pascal Paris, France 75775
Tel: +33-1-4524-7692 E-mail: eugene.mazur@oecd.org Ms. Catherine R. McCabe Principal Deputy Asst Administrator OECA 1200 Pennsylvania Ave, NW Washington, DC 20460 United States Tel: +1-202-564-2440 E-mail: mccabe.catherine@epa.gov Mrs. Sonja Susanna Meintjes Deputy Director Biodiversity Enforcement Depatment of Environment Affairs 315 Pretorius Street Pretoria , South Africa 0001 Tel: +27-0-12-310-3545 E-mail: smeintjes@environment.gov.za Mr. Ken Melamed Mayor Resort Municipality of Whistler 4325 Blackcomb Way Whistler, BC V0N 1B4 Canada Tel: +1-604-935-8103 Mr. Emmanuel C Mendoza Operational Expert Environment Canada Enforcement Branch 201-401 Burrard Street Vancouver, British Columbia V6C 3S5 Canada Tel: +1-604-666-2736 E-mail: emmanuel.mendoza@ec.gc.ca Mr. Larsey Mensah Director Legal Environmental Protection Agency Box MB 326 Accra, Ghana Tel: +233-277-42-42-54 E-mail: lmensah@epaghana.org Mr. John Damian Merritt Chief Executive Officer DSE EPA Victoria
200 Victoria Street Carlton Victoria, Australia E-mail: john.merritt@epa.vic.gov.au Ms. Maureen May Mitchell Operations Technical Specialist, Environmental Inspector National Energy Board Operations BU 444 - 7th Avenue SW Calgary , Canada T2P 0X8 Tel: +1-403-299-3600 E-mail: maureen.mitchell@neb-one.gc.ca Mr. Ed Mitchell Director of Environment & Business Environment & Business Environment Agency Horizon House Bristol Avon, United Kingdom BS1 5AH Tel: +44-117-934-4101 E-mail: ed.mitchell@environment-agency. gov.uk Ms. Stacey Hamilton Mitchell Chief Department of Justice Environmental Crimes Section 601 D Street, NW Washington. D.C. 20004 United States Tel: +1-202-305-0363 E-mail: stacey.mitchell@usdoj.gov Mr. Juan David Mora Environmental Engineer Directorate of Environmental Licenses, Permits and Procedures Ministry of the Environment, Housing and Territorial Development calle 34 No. 8 - 40 Bogot, Colombia Cundinamarca Tel: +571-332-34 00 E-mail: jmora@minambiente.gov.co Ms. Ignacia Moreno Assistant Attorney General Environment and Natural Resources Division
U.S. Department of Justice Washington, DC United States Mr. Rob Morris National Operations Scottish Environmental Protection Agency United Kingdom E-mail: Rob.Morris@sepa.org.uk Mrs. Aniko Nemeth Expert/ project manager Law Enforcement and Compliance Regional Environmental Center (REC) ady endre ut 9-11 Szentendre, Hungary 2000 Tel: +36-20-964-28 37 E-mail: anemeth@rec.org Mr. Michael Nicholson Secretariat IMPEL Gulledelle 96 Brussels, Belgium 1200 Tel: +0032-2-771-59-18 E-mail: info@impel.eu Mr. Gerard OLeary Office of Environmental Enforcement Environmental Protection Agency PO Box 3000 Co. Wexford, Ireland Tel: +00-353-539160600 E-mail: g.oleary@epa.ie Mr. Gerphas Keyah Opondo Regional Coordinator East African Network for Environmental Compliance P.o.Box 67839 Nairobi, Kenya 00200 Tel: +254-722- 306- 461 E-mail: gerryopondo@yahoo.co.uk Mr. Antonio Oposa President Law of Nature Foundation 126 Lapulapu St. Baloor Cavite, Philippines E-mail: a.oposa@gmail.com
Mr. Gord T. Owen Chief Enforcement Officer Environment Canada Enforcement Branch 200 Sacre-Coeur Boulevard, 13th Floor Gatineau, Canada K7A 0H3 Tel: +1-819-997-2019 E-mail: gord.owen@ec.gc.ca Mrs. Angela Joycelyn Owusu DowuonaHammond Chief Collector Customs Laboratory Ghana Revenue Authority P.O.Box 68 Accra, Ghana Tel: +233-244-648283 E-mail: angimmond@yahoo.com Mr. LeRoy Charles Paddock Associate Dean Environmental Law George Washington University Law School 2000 H Street NW Washington, DC 20056 United States Tel: +1-202-994-0417 E-mail: lpaddock@law.gwu.edu Mrs. Anita Pokrovac Patekar Directorate For Inspection Ministry of Environmental Protection, Physical Planning and Construction Vinogradska 25 Zagreb, Croatia 10000 Tel: +385-1-3712-797 E-mail: anita.pokrovac.patekar@mzopu.hr Mrs. Jeannine Pensaert Attach - Coordinator Directorate-general EnvironmentInspection Federal Public Service Health, Food Chain Safety and Environment Place Victor Horta 40 box 10 Brussels, Belgium 1060 Tel: +32-2-524-95-61 E-mail: jeannine.pensaert@health.fgov.be
Mr. Robert Percival Director Environmental Law Program University of Maryland School of Law 500 W. Baltimore Street Baltimore, MD 21201 United States Tel: +1-410-706-8030 E-mail: rpercival@law.umaryland.edu Mrs. Romina Picolotti Director CEDHA Buenos Aires, Argentina E-mail: rpicolotti@gmail.com Mr. Grant Pink Secretary Australasian Environmental Law Enforcement and Regulators neTwork (AELERT) Level 4, 33 Allara Street Australian Capital Territory Canberra, Australia 2600 Tel: +61-2-6275-9474 E-mail: grant.pink@environment.gov.au Mr. Raymond Purdy Centre for Law and the Environment Faculty of Laws University College London UCL Faculty of Laws, Bentham House London, United Kingdom WC1H 0EG Tel: +44-207-679-4554 E-mail: raymond.purdy@ucl.ac.uk Mr. Hu Qin Project manager Environmental Defense Fund China Program China E-mail: qinhu@cet.net.cn Ms. Sigrid Raedschelders Legal Advisor Flemish Government Department of Environment, Nature, and Energy Vlaamse Overheid Departement Leefmilieu, Natuur en Energie Afdeling Milieuhandhaving Brussels, Belgium 1000 E-mail: sigrid.raedschelders@lne. vlaanderen.be
Dr. Rosalind Reeve Associate Fellow Chatham House P.O. Box 47074 Nairobi, Kenya 100 Tel: +254-726-99-33-77 E-mail: roz.reeve@gmail.com Mr. Martin Roberts Ministry of Environment Province of British Columbia PO Box 9322 Victoria, B.C. V8W 9M1 Canada Tel: +1-250-387-4608 E-mail: Marty.Roberts@gov.bc.ca Ms Ramona Roberts Counsel Regulatory Prosecutions Group Public Prosecution Service of Canada 900-840 Howe Street Vancouver, BC V6Z 2S9 Canada Tel: +1-604-666-0831 E-mail: ramona.roberts@ppsc-sppc.gc.ca Mr. Robert Robichaud Operations Director Environment Canada Environmental Enforcement 33 Weldon St. Suite 240 Moncton, New Brunswick E1C 0N5 Canada Tel: +1-506-851-4725 E-mail: robert.robichaud@ec.gc.ca Dr. Giuseppe Rotondaro Environmental Protection Agency of Lombardia Italy E-mail: g.rotondaro@arpalombardia.it Justice Winai Ruangsri Senior Research Justice Environmental Division The Supreme Court 6 Ratchadamnorn-Nai Avenue Bangkok, Thailand 10200 Tel: +66-2224-6625 E-mail: towinai@yahoo.com
Dr. Henk Ruessink Ministry of Infrastructure and the Environment Netherlands E-mail: henk.ruessink@minvrom.nl Ms. Brenda Ryan Manager Operational Support Environment Canada Wildlife Enforcement Division 13th Floor - 200 Sacre Coeur Blvd Gatineau, Quebec K1A 0L3 Canada Tel: +1-819-953-0608 E-mail: brenda.ryan@ec.gc.ca Mr. Tnis Saar Director National Audit Office of Estonia Tallinn, Estonia 15013 Tel: +372-6400-765 E-mail: tonis.saar@riigikontroll.ee Mrs. Heather Sanger Policy Analyst Environment Canada Enforcement Branch 200 Sacr-Coeur Blvd. - 13th floor Gatineau, Qubec K1A 0H3 Canada E-mail: heather.sanger@ec.gc.ca Mr. Mas Santosa Founder Indonesian Center for Environmental Law Indonesia E-mail: mas.santosa@yahoo.com Mr. John Scanlon Secretary-General Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) Maison Internationale de lEnvironnement Chatelaine-Geneva, Switzerland 1219 Mr. John Macfarlane Sellar Chief of Enforcement CITES Secretariat Maison Internationale de lEnvironnement Chatelaine-Geneva, Switzerland 1219 Tel: +41-229178293 E-mail: john.sellar@cites.org
Mr. Terence Shears Senior EU Relations Adviser External relations Environment Agency (England and Wales) Horizon House Bristol, United Kingdom BS1 5AH Tel: +44-117-934-4029 E-mail: terence.shears@environmentagency.gov.uk Mr. Kunihiko Shimada Special Advisor to the Minister Ministry of the Environment 1-2-2 Kasumigaseki Tokyo, Japan 100-8975 Tel: +81-3-5521-9009 E-mail: kunihiko_shimada@env.go.jp Mr. Pedro Simon Federal Prosecutor Federal Public Ministry Argentina Mrs. Kerri Lynn Skelly Senior Contaminated Sites Officer Environmental Protection BC Ministry of Environment 10470 152 Street Surrey, British Columbia V4K 1P7 Canada Tel: +1-604-582-5266 E-mail: kerri.skelly@gov.bc.ca Ms. Melinda Soffer Director of Finance & Administration Institute for Governance & Sustainable Development 2300 Wisconsin Ave NW Washington DC 20007 United States Tel: +1-202-338-1300 E-mail: msoffer@igsd.org Mrs. Oluronke Soyombo Director Inspection & Enforcement National Environmental Standards and Regulations Enforcement Agency (NESREA) 4 Oro Ago Crescent Federal Capital Territory Abuja, Nigeria Tel: +234-803-644-1567 E-mail: rsoyombo@nesrea.org
Prof. Toine Spapens Police Academy Netherlands E-mail: a.c.spapens@tilburguniversity.edu Mr. Michael Stahl USEPA Headquarters Ariel Rios Building 1200 Pennsylvania Avenue, N. W. Washington, DC 20460 Tel: +1-202-564-6600 Email: stahl.michael@epa.gov Mrs. Ljiljana Danilo Stanojevic Assistant Minister Sector for Control and Surveillance Ministry for Environmental Protection and Spatial Planning Dr Ivana Ribara 91 Belgrade, Serbia 11000 Tel: +381648166302 E-mail: ljiljana.stanojevic@ekoplan.gov.rs Ms. An Stas Permanent secretary Flemish High Council of Environmental Enforcement Koning Albert II-laan 20 bus 15 Brussels, Beligium 1000 Tel: +32-2-5537580 E-mail: an.stas@vhrm.vlaanderen.be Mr. Achim Steiner Executive Director United Nations Environment Programme P.O. Box 30552 Nairobi, Kenya 00100 Ms. Allyn L Stern Regional Counsel Region 10 US EPA Region 10 1200 6th Ave Seattle, Washington 98101 United States Tel: +1-206-553-1223 E-mail: stern.allyn@epa.gov Mr. Marc Stuart Founding Managing Director Allotrope Partners United States E-mail: mds@allotropevc.com
Mr. Manchare Heche Suguta Legal Officer National Environment Management Council P.O. Box 63154 Dar-es Salaam, Tanzania Tel: +255-22-277-4889 E-mail: hechesuguta29@yahoo.com Mr. Greg Sullivan Chair Australasian Environmental Law Enforcement and Regulators neTwork 59-61 Goulburn Street Sydney New South Wales, Australia 2000 E-mail: greg.sullivan@environment.nsw. gov.au Mr Ken W Taekema Inspector Provincial Investigations Conservation officer Service 2080A Labieux Rd Nanaimo, Canada V9T6J9 Tel: +1-250-751-7317 E-mail: Ken.Taekema@gov.bc.ca Mr. Jan Teekens Inspectorate of Housing, Spatial Planning and the Environment Ministry of Infrastructure and the Environment P.O. Box 20951, 2500 Den Haag, The Netherlands Tel: +31650215542 E-mail: jan.teekens@minvrom.nl Minister Izabella Teixeira Minister of the Environment Ministry of Environment Esplanada dos Ministrios, Bloco B Brazil Mr. Ben Timmers Enforcement Provincie Noord Brabant Postbus 90151 s-Hertogenbosch Noord Brabant, Netherlands 5200 MC Tel: +0031-6-18302309 E-mail: btimmers@brabant.nl
Mrs. Jose Trudel Manager Compliance Promotion Environment Canada 351 St-Joseph Blvd Gatineau, Quebec K1A 0H3 Canada Tel: +1-819-956-5952 E-mail: josee.trudel@ec.gc.ca Ms. Zofia Tucinska Chair IMPEL Sweden E-mail: zofia.tucinska@swedishepa.se Ms. Tai Ullmann Executive Assistant IGSD 2300 Wisconsin Ave NW Washington, DC 20007 United States Tel: +1-202-338-1300 E-mail: tullmann@igsd.org Mrs. Cecilia Urbina Chief of the Compliance and Enforcement Division Superintendence of The Environment Moneda 970, piso 13 Santiago, Chile Tel: +56-2-6171821 E-mail: curbina@sma.gob.cl Mr. Jan Van den Heuvel DCMR Milieudienst Rijnmond Postbus 843 Schiedam, Netherlands 3100 AV Tel: +31-10-246-82-30 E-mail: jan.vandenheuvel@dcmr.nl Mr. Michael Wall Senior Attorney and Director, Western Litigation Program Natural Resources Defense Council 111 Sutter Street San Francisco, CA 94104 United States Tel: +1-415-875-6100 E-mail: mwall@nrdc.org
Mr. Roel Maria Willekens Chief Superintendent National Programme Environmental Crime Police Netherlands Vogelstraat 41 s-Hertogenbosch Netherlands, Europe 5212 VL Netherlands Tel: +0031651332195 E-mail: Roel.Willekens@brabant-noord. politie.nl Mr. Matthias Wolf German Emission Trading Authority Federal Environment Agency, Germany Bismarckplatz 1 Berlin, Germany 14193 Tel: +49-30-8903-5156 E-mail: matthias.wolf@uba.de Mr. Steven Wolfson Attorney Adviser OGC/CCILO U.S. EPA 1200 Penn. Ave. Washington, DC 20460 United States Tel: +1-202-564-5411 E-mail: wolfson.steve@epa.gov Ms. Anna Louise Wolgast Judge Environmental Appeals Board U.S. EPA 1200 Pennsylvania Ave., N.W. Washington, DC 20460 United States Tel: +1-202-233-0122 E-mail: wolgast.anna@epa.gov Mr. Gerard Wolters Inspector-General for Enforcement Cooperation Ministry of Infrastructure and Environment Rijnstraat 8 The Hague, Netherlands 2500 EZ Tel: +31-0-70-339-46-20 E-mail: Gerard.Wolters@minvrom.nl
Ms. Christine Woodhouse Assistant Manager, Issues Management Environmental Protection Division BC Ministry of Environment PO Box 9339 Stn Prov Govt Victoria, BC V8W9M1 Canada Tel: +1-250-356-5016 E-mail: Christine.Woodhouse@gov.bc.ca Mrs. Elaine Brennan Wright Regional Environmental Center 5214 Brooks Road Woolford, Maryland 21677 United States E-mail: elwright@sas.upenn.edu Hon. Merideth Wright Environmental Judge Vermont Environmental Court PO Box 686 Montpelier, VT 05601-0686 United States Tel: +1-802-828-1668 E-mail: envj.wright@gmail.com Mr. Tseming Yang Deputy General Counsel OGC/IO U.S. EPA 1200 Pennsylvania Ave, NW Washington, DC 20460 United States Tel: +1-202-564-8064 E-mail: yang.tseming@epa.gov Mr. Durwood Zaelke Director INECE Secretariat 2300 Wisconsin Ave NW Washington, DC 20007 United States Tel: +1-202-338-1300 E-mail: zaelke@inece.org Mr. Zhimin Zhang Deputy Director General Center of Environmental Emergency and Accident Investigation Ministry of Environmental Protection of the Peoples Republic of China
No. 115, Xizhimen Nanxiaojie Beijing, 100035, P.R. China Tel: +86-10-66556456 Dr. Eric Zusman Policy Researcher Institute for Global Environmental Strategies Japan E-mail: zusman@iges.or.jp
Mr. Brahim Zyani Director Director Secretariat charg de lEau et de lEnvironnement Morocco E-mail: bzyani2002@yahoo.fr
Acknowledgements853
ACKNOWLEDGEMENTS
The Editors would like to take this opportunity to thank each individual who contributed to the success of this conference. We would like to extend a special thank you to the speakers, moderators, facilitators and rapporteurs, as well as those people who submitted papers for the conference proceedings and to those who contributed to the conference exhibits. In particular, we would like to express our deepest appreciation to our host governments of Canada and of British Columbia. We sincerely thank our local speakers for their generous hospitality and their inspiration: Chief Gibby Jacob, KKeltn Siym, the Hereditary Chief and Councilor of the Squamish Nation; Mayor Greg Gardner of the District of Squamish; and Mayor Ken Melamed of Whistler. We gratefully acknowledge the messages of inspiration provided by Hon. Lisa Jackson, Administrator of the U.S. Environmental Protection Agency; Hon. Izabella Teixeira, Minister of Environment of Brazil; Ms. Ignacia Moreno, Assistant Attorney General for Environment at the United States Department of Justice; Mr. Scott Fulton, General Counsel of the U.S. Environmental Protection Agency; Mr. Achim Steiner, Executive Director of the United Nations Environment Programme; Ms. Katharina Kummer Peiry, Executive Secretary of the Secretariat of the Basel Convention on the Control of Transboundary Movements of Hazardous Waste and their Disposal; and Mr. John Scanlon, Secretary General of the CITES Secretariat. The Executive Planning Committee of INECE provided leadership and direction in the design of the program, in the selection of the speakers and facilitators, and in the nomination process to identify individuals from around the globe who provided practical contributions to the conference. In addition, Executive Planning Committee members actively participated throughout the course of the conference. The Conference day chairs Justice Antonio Herman Benjamin of the High Court of Brazil; Catherine McCabe of the United States Environmental Protection Agency; and Gerard Wolters of the Ministry of Infrastructure and Environment in the Netherlands must be applauded for their leadership throughout the week. Environment Canada staff Heather Sanger provided invaluable local support in the planning and preparation of the Conference. Additionally, INECE was fortunate in the guidance and support it received in planning the site visits from Dave Jevons, Randall W. Lewis, Caroline Ashekian, Amber Newman, Manny Mendoza, members of the Squamish nation, and from staff at Port Metro Vancouver, Deltaport, and the Pacific Environmental Science Centre. We also thank the staff at the Hilton Whistler Resort and Spa, and AVW-TELAV, for their hard work in making the conference a success. We recognize our excellent conference volunteers, who worked on-site during the Conference: Gene Lubieniecki; Hannah, Jesse, and Elena Markowitz;
and Joey Stoll. The conference would not have been possible without the hard work and dedication of the INECE staff. Richard Emory provided invaluable support in editing the Conference papers, along with his team of editors at USEPA, especially Irene Hantman, University of Maryland Law Fellow, and Katherine Kennedy, Legal Intern and JD Candidate, as well as all other law students who reviewed and edited papers submitted for publication. We also recognize Alison Feibel at the INECE Secretariat for her work on these conference proceedings. Funding of the conference logistics, planning, workshop development, and participant travel was provided by the conference sponsors: the United States Environmental Protection Agency, Environment Canada, Environment Canada Enforcement Branch, Flemish High Council of Environmental Enforcement, the Environment Agency for England and Wales, the Commission for Environmental Cooperation of North America, and the Netherlands Ministry of Infrastructure and the Environment. With great appreciation, The Editors
Project Management and Conference Support855
PROJECT MANAGEMENT AND CONFERENCE SUPPORT

Durwood Zaelke Director INECE Secretariat 2300 Wisconsin Avenue N.W., Suite 300B Washington, DC 20007 Phone: +1.202.338.1300 Fax: +1.202.338.1810 Email: zaelke@inece.org
Davis Jones U.S. Environmental Protection Agency jones.davis@epa.gov Henk Ruessink Netherlands Ministry of Infrastructure and the Environment Henk.Ruessink@minvrom.nl Nathan Borgford-Parnell INECE Secretariat NBorgford-Parnell@igsd.org Mohamed Rida Derder INECE Secretariat ridaderder@msn.com Alison Feibel INECE Secretariat afeibel@inece.org Michael Frizzell INECE Secretariat Mfrizzell40@yahoo.com Jo Gerardu INECE Secretariat gerardu@inece.org
Danielle Grabiel INECE Secretariat dgrabiel@inece.org Melinda Soffer INECE Secretariat msoffer@inece.org Tai Ullmann INECE Secretariat inece@inece.org CONSULTANTS Ken Markowitz Earthpace, LLC kjm@earthpace.com Meredith R. Koparova Earthpace, LLC mreeves@earthpace.com Marcy Markowitz Earthpace, LLC mjm@earthpace.com Stephanie Hanford-Haas Connectivity Consulting stephanie@connectingtogreen.com

9TH International Conference On Environmental Compliance and Enforcement Conference Proceedings

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9TH International Conference On Environmental Compliance and Enforcement Conference Proceedings

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9TH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT CONFERENCE PROCEEDINGS 20-24 June 2011 Whistler, British Columbia,

viNinth International Conference on Environmental Compliance and Enforcement 2011

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1 REPORTS FROM THE CONFERENCE

4Ninth International Conference on Environmental Compliance and Enforcement 2011

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Summary of the Summit of Regional Network Leadership9

Hon. Lisa P. Jackson11

SPEECHES AND REMARKS

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Panel 1: The Value of Enforcement Cooperation21

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Panel 1: The Value of Enforcement Cooperation23

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Panel 2: Compliance with National Laws to Honor International Commitments25

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Panel 2: Compliance with National Laws to Honor International Commitments27

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Panel 4: Non-Traditional Approaches to Assure Compliance33

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Panel 4: Non-Traditional Approaches to Assure Compliance35

Track A: Enforcement Challenges Across Borders37

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WORKSHOP A5: INFORMATION COOPERATION PROJECTS Facilitators:

Track A: Enforcement Challenges Across Borders49

Track B: Promoting Compliance with Climate-Related Requirements51

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