Enforcement of environmental law in United States and European law: realities and expectations.

• Author: Ercmann, Sevine

1. Introduction

   In the last twenty years, the world has witnessed various major environmental accidents, ranging from Seveso, Italy(1) to Bhopal, India(2) to Chernobyl(3) to Basel.(4) The discharge of toxic chemicals and the fallout of nuclear radiation due to the negligence of major chemical firms and nuclear plants have had transboundary effects. These accidents have had devastating consequences for the lives and ecosystems of present and future generations.

   Technology and industrial processes impose involuntary or public risks on society. Recent environmental tragedies illustrate the failure of states and private bodies in monitoring or controlling the regulatory processes, the necessary equipment, and the individuals responsible for their care and maintenance. When seeking solutions to these issues, the first question that arises is whether our society's methods of control, particularly in the legal field, are adequate to deal with such incidents. Second, despite political and legal progress and increased environmental awareness at national and international levels, is there a deficiency of implementation and enforcement in the existing legal and policy approaches in this field? Third, what other effective methods or control mechanisms should be applied to overcome the practical deficiencies of such instruments?

   The aim of this Article is to suggest solutions to these questions.(5) This Article also intends to provide basic principles and ideas for developing frameworks for improvement of implementation methods.

   Three international conferences on environmental enforcement have focused on finding effective national and international means of enforcing environmental legislation and regulations. Sponsored by the United States Environmental Protection Agency (EPA) and other relevant U.S. authorities, together with the Environmental Ministries of the host countries and the Dutch Ministry of Housing, Physical Planning and Environment, these conferences took place in Utrecht, Netherlands in May of 1990;(6) in Budapest, Hungary in September of 1992; and Oaxaca, Mexico in April of 1994. These proceedings benefitted from case studies on enforcement prepared for the Organization for Economic Cooperation and Development (OECD), from comments by national, regional, and local environmental participants responsible for legal and technical aspects of environmental enforcement, and from comments made by nongovernmental organization (NGOs) and industry representatives.

   The conference reports contained detailed proposals and case studies on enforcement. However, since the problems concerning enforcement strategies cover a wide range of issues, this Article focuses on introducing innovative means of environmental enforcement that various countries have implemented. The first three sections of Part I will lay the foundations of this Article by providing an overview of our current enforcement system. Sections D and E, respectively, describe the effectiveness of promoting environmental awareness, and of extending standing to individuals and environmental organizations as a method of enforcement. Section F analyzes specific developments in environmental enforcement means implemented by various countries.

   8. Enforcement Methods at the National Law Level

   1. Generalities

      To effectively protect public health and the environment, governments must first implement legal requirements (including administrative, civil, and penal provisions) at national and international levels. Implementation of legal requirements starts with effective compliance measures and improved administrative control and participation. These procedures should be followed by better participation, information, and judiciary control measures, culminating in effective enforcement.

      In order to achieve effective compliance and enforcement of national and international environmental law, it is important to define "compliance" and "enforcement" at the outset. The First Conference on Environmental Enforcement defined these terms as follows:

      Compliance is the full implementation of environmental requirements.

      Compliance occurs when requirements are met and desired changes are achieved,

      e.g.,

      processes or raw materials are changed, work practices are changed so that,

      for example, hazardous waste is disposed of at approved sites, tests are

      performed on new products or chemicals before they are marketed, etc. The

      design of requirements affect the success of an environmental management

      program. If requirements are well-designed, then compliance will achieve the

      desired environmental results. If the requirements are poorly designed, then

      achieving compliance and/or the desired results will likely be difficult....

      Enforcement is the set of actions that governments or others take to achieve

      compliance within the regulated community and to correct or halt situations

      that

      endanger the environment or public health.(7)

      Enforcement usually includes a range of activities such as monitoring, inspecting, reporting, gathering evidence to detect violations, and negotiating with individuals(8) and industrial operators to develop mutually acceptable methods for achieving compliance. As a last step to compel compliance, enforcement includes recourse to legal action or dispute settlement.(9)

      The success of each enforcement program depends on how the state exercises its discretion in determining its particular needs and environmental priorities and on choosing the appropriate enforcement method. Effective compliance might require reorganizing existing administrative structures, implementing environmental legislation, using administrative instruments such as circulars, drafting legally binding instruments that are precise and comprehensive, and making short-term economic sacrifices.

   2. Means of Enforcement

      Enforcement is essential in establishing the credibility of environmental requirements.(10) Once credibility is established, continued enforcement is essential to maintain credibility.(11) Credibility encourages compliance by facilities that would be unlikely to comply if environment requirements and agencies were perceived as weak.(12) The more credible the law, the greater the likelihood that national and international efforts to protect the environment will be taken seriously.(13)

      The first step in achieving enforceable environmental measures is to draft laws and other instruments that would provide the necessary authority for enforcement.(14) Effective grants of authority may be prescribed through decrees, regulations, and authorization through licenses. The legal provisions need to be stated clearly, precisely, and practically. Ultimately, this requires broad statutory, regulatory, and administrative authority, especially with respect to environmental standards.

      The most important means of enforcement is legal action. This powerful tool is an effective method of compelling compliance and imposing consequences for violating the law. Legal action may be pursued through administrative measures, civil law application of liability rules, or by imposing criminal sanctions. The improvement of judicial control measures is important to overcome inefficient application of legislation.

      Civil law may be an effective enforcement measure, enabling an agency to prohibit plant operators from continuing illegal activities that endanger the environment, or to seek reimbursement of costs incurred for cleanup. In addition, strict liability may also encourage voluntary compliance.(15) Any instrument that is incapable of providing compliance and that cannot be enforced reduces the credibility of the instruments goals. This applies at both the national and international levels.

      Other enforcement measures include inspection, reporting, evidence gathering, record keeping, negotiation, and dispute settlement. Inspection is a primary element of most of the enforcement methods, and may be carried out regularly or randomly. Normally, it does not require a concrete suspicion, and it may be supplemented by reporting and record-keeping obligations. Inspection is a significant element of most enforcement methods used by international instruments.(16) Gathering of information consists of recording, sampling, and analysis for the verification of compliance with established standards and technical methods. Gathering evidence at the national level is particularly important with regard to administrative and penal law infractions. With international environmental law, it takes the form of factfinding.(17)

      Enforcement can also be achieved by negotiations with individuals or establishments that do not comply with administrative or legislative measures. The Commission of the European Communities now uses negotiations as a method to develop mutually acceptable compliance schedules.(18) The Commission meets regularly with the relevant authorities of the Member States to negotiate the provisions of new directives or to facilitate the interpretation and the implementation of old ones. This method has so far proved to be highly successful.(19) But while negotiations may be useful to promote compliance, there is a risk that negotiations may lead to compromised environmental values or standards.

      Other enforcement means, including area monitoring and remote sensing, concern the ability of agencies to carry out their enforcement duties. New technologies permit automated and consistent monitoring of industrial emissions and discharges, thereby assisting enforcement agencies in their work.

      A new trend for implementing or enforcing national and international environmental measures is emerging, offering a mix of economic incentives on the one hand, and economic sanctions on the other. For example, in the United States, EPA is using more consultative procedures to develop regulations to implement the Clean Air Act.(20) Under the threats of government regulation and toxic tort litigation, companies are "voluntarily' meeting EPA's...