The enforcement of environmental law: challenges and opportunities

Implementation and enforcement

The development of detailed, often ambitious laws designed to protect the environment over the past 30 years has been a striking phenomenon of our age. Laws in the statute book may provide some comfort, but without effective implementation and enforcement they are meaningless. A Member of the European Parliament once remarked "We are good midwives but bad mothers" -- implying that legislators often pay more attention to passing new laws than considering the equally challenging issues of implementation, and what happens after the law has come into force.

The potential gap between the formal law and its enforcement is seen in many fields of law, but it raises particular challenges in the field of environmental protection. In areas of law such as competition, social security, or consumer protection there are clearly defined victims with legal interests who can and will ensure that the law is enforced. In contrast, the environment is often unowned in legal terms -- with the consequence that the environment dies in silence, it has been said. The responsibility for its legal protection lies largely on public authorities -- the police, local authorities, or specialised regulatory agencies -- often under competing policy priorities and severe resource constraints.

Yet, as this Thematic Issue demonstrates, in recent years far greater attention is being paid to the question of enforcement of environmental law -- how it should most effectively be implemented, how best to ensure compliance, and how best to deal with breaches of environmental law where they occur.

These issues can raise delicate political issues at both national and regional levels. Deciding how to employ resources and respond to breaches of environmental law often involves considerable discretion amongst enforcement authorities, and national and local administrations have their own traditions and culture in which they operate. Imposing over-elaborate, top-down solutions may therefore be inappropriate. Within the European Union, environmental legislation has generally left the question of enforcement to the discretion of Member States, and it is rare for EU Regulations or Directives to specify the type of sanction that must be employed. The Court of Justice of the European Union has been equally reticent to trespass on the discretion of national authorities in this context, and simply relied upon the general principle that any sanctions employed must be effective, proportionate, and dissuasive.

An important exception to this picture was the passing of the EU Environmental Crime Directive¹ in 2008, requiring that certain types of conduct in relation to EU environmental law must at least be defined as a crime by Member States. The proposal to do so was the subject of legal challenge before the Court of Justice on the grounds that there was no legal competence under the environmental provisions of the European Treaty to do so. Eventually the Court held that if there was a genuine problem of enforcement, this was the proper subject of a European Directive, but recognised the sensitivities of Member States by holding that the question of the size of penalties was a matter of national not EU law.

Another very important legal development was the decision of the European Court in 2005 in a case taken by the European Commission against Ireland in respect of illegally operated and unlicensed waste sites. Until then enforcement actions concerning the failure by a Member State to implement EU environmental obligations in practice had been confined to specific examples. Here, the Court held for the first time that the numerous cases of illegally operated sites represented a systematic failure in the administrative system for enforcement, and that this represented a breach of its obligations under EU law by the Member State.

EU environmental law, such as the 2010 Industrial Emissions Directive², is beginning to contain requirements concerning inspection and enforcement, though still couched in carefully drafted language so as not to over-intrude on areas thought appropriate for national or local discretion. The Make It Work programme, initiated in 2015 by Germany, the Netherlands and the United Kingdom has now drafted common principles on issues of inspection and enforcement which are recommended for inclusion in future environmental legislation.

Against this background, the papers highlighted in this Thematic Issue provide important insights for policymakers and enforcement, and reflect the contribution of recent research in this area. Four particular themes emerge -- the value of emerging networks of enforcement bodies, the need to exploit new technologies and strategies, the use of appropriate sanctions and the added value of a compliance assurance conceptual framework reflecting the interaction between three main functions -- compliance promotion, compliance monitoring (inspections/surveillance) and enforcement.

Environmental networks

We have seen in recent years the growing development of various networks of enforcement agencies, at local, national, regional and international levels. Cross-border cooperation may be essential for issues such as transboundary pollution, the illegal transport of waste, and the illegal trade in endangered species. But the exchange of views and experience at national level where authorities may handle similar problems in different ways may also provide an invaluable learning experience.

Research is now beginning to attempt to evaluate the effectiveness of these networks, and how they might be improved in the future. Contacts, the development of good relationships, sharing best practice, and access to information can provide real benefits, but there are also challenges in funding, participation, and effective administration of the networks. The 2011 survey by one of the earliest such networks,INECE (International Network on Environment Compliance and Enforcement), covered some 10 networks around the world and highlighted a number of critical factors to ensure success. These include the need to prioritise, ensure adequate funding and the translation of key materials. Effective communication and the continuing evaluation of the performance network were equally vital. Ireland has provided a useful example of a national network -- the Network for Ireland's Environmental Compliance and Enforcement (NIECE) established in 2004, operating in the field of waste disposal and involving a national regulator and 34 local authorities. This helped to provide guidance and training for local enforcement officers, improving coordination and consistency in approach. The NIECE appeared to lead to a dramatic improvement in the quality of local authority inspection plans in a short space of time -- in 2007 less than a quarter of such plans were given an 'A' rating but, by 2009, 85% received such a rating.

Using resources more effectively

Regulators and enforcement agencies never have unlimited budgets, and these days are normally operating under increasing financial constraints. This means developing more effective approaches and strategies. Risk-based enforcement strategies based on focusing efforts on activities judged to be the most problematic have emerged as one response, which is reflected in recent legislation such as the EU Industrial Emissions Directive³. Carrying out the same inspection levels for all industrial installations in a sector may not be the most effective use of scarce resources; it is preferable to give a lighter touch to those considered most compliant, while drilling down on the more problematic. But it is important to first ensure that there is public understanding and confidence in such an approach. Risk assessments are never foolproof. Members of the public who have not been engaged in the development of risk-based strategies are unlikely to react positively to a pollution incident on a site where there have been few inspections because the installation had been previously judged to have little risk, for example.

Against a background of resource constraints, new ways of using technology and data are likely to prove important. The Environment Agency in England provides an example of an intelligence-led policy in the field of illegal export of wastes, using data-collection technologies in a more focused way. The resolution of satellites is becoming ever finer, and a leading British legal expert in the use of space technologies as evidence highlights the potential of such technology to alert authorities of potential breaches of law, to monitor high-risk offenders to ensure compliance, and to check historical data. This research emphasises the need for lawyers to engage with Earth observation specialists so that the disciplines can more fully understand one anothers' needs and constraints. A Belgian judge notes that Earth observation techniques are unlikely to replace ground-based monitoring and will have little to offer in some areas of environmental law, but nevertheless have a potential that is yet to be fully exploited.

Appropriate sanctions

The 2008 EU Environmental Crime Directive highlighted the potential significance of criminal law in dealing with breaches of environmental law, especially for those jurisdictions where there had been a heavy reliance of administrative penalties in dealing with regulatory breaches. Studies here include the use of imprisonment as a sanction, and argue for the greater involvement and acknowledgement of victims in the process.

Yet the message of many recent studies is that reliance on a single form of sanction is unlikely to be the most effective approach. A mixture of administrative and criminal enforcement is preferable, but since in many jurisdictions this is likely to involve different agencies (including the police), the development of new coordination strategies will be vital.

It is clear, however, that we still have little robust, comparative data on the real effectiveness of different forms of sanctions -- either in terms of their impact on the individuals or business involved in the breach of environmental law, or on how they affect the internal costs of regulators and the public sector, including the courts. This needs to be a continuing area for future research and monitoring.

Regulatory agencies are likely to be under increasing scrutiny for their cost-effectiveness and efficiency. In terms of public accountability, it is important to have performance indicators based on activity such as the number and type of enforcement actions taken. But we must not let these requirements obscure the reason we have environmental law and regulation in the first place. Outcome measures relating to the quality of the environment being protected should be a central aspiration, and studies here indicate how they are being developed in some jurisdictions. But it is not an easy exercise. It is all too easy for outcome measures to become goal-orientated targets which then over-dominate the enforcement body's strategy and thinking.

The more recent emphasis on implementation and enforcement is to be welcomed, but there are clearly many areas in which the research community has much to offer. Regulators and government should value the input of independent research to improve their own understanding and performance, and work closely with research bodies to help identify key issues that need exploring. Legislative bodies such as the Council of the European Union⁴ or UK Parliamentary Select Committees should systematically evaluate the actual implementation of environmental legislation so that improvements can be made to the enforcement of existing laws, and lessons learnt in the design of new legislation. The environmental challenges facing our society are profound, but the signs from the recent research identified in this Thematic Issue give some room for optimism.

Professor Richard Macrory, Professor of Environmental Law, Faculty of Laws, University College London

1. http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32008L0099

2. http://eur-lex.europa.eu/legal-content/HR/ALL/?uri=CELEX:32010L0075

3. http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=URISERV%3Aev0027

4. http://europa.eu/about-eu/institutions-bodies/council-eu/index_en.htm