”Enforcement and Sanctions in Environmental Law”
Nordic Environmental Law Network (NELN) Workshop
STOCKHOLM, 19-21 OCTOBER 2005
Stockholm Environmental Law and Policy Centre organised the 6th NELN Workshop, funded by Nordforsk, on 19-21 October 2005. br>
This was the 6th workshop in the series of Nordic Environmental Law Network (NELN) meetings, financed by Nordforsk. The workshop, devoted to enforcement and sanctions in environmental law, was arranged by the Stockholm Environmental Law and Policy Centre, at the Department of Law, Stockholm University.
For the purpose of the workshop the concepts of enforcement and sanctions were given a broad understanding. Enforcement includes means and procedures for authorities as well as for members of the public to have existing laws applied against actors affecting health, environment and natural resources. In some contexts enforcement also embraces means of implementation. Sanctions include not only penal and administrative sanctions, but also, where relevant, sanctions imposed by members of the public (e.g. in terms of civil liability). Even informal sanctions in relation to environmental law fit with the topic of the workshop. The scope of the workshop also included international, European Community and comparative law related to enforcement and sanctions.
The workshop was divided into five sessions:
I. Institutions for Enforcing Environmental Law: Courts and Alternative Dispute Resolution
II. Instruments for Enforcing Environmental Law: Permits, Liability and Information
III. Enforcing Environmental Law Through Penal Sanctions
IV. National Cases of Environmental Laws Enforcement
V. Comparative and International Outlooks
Session I: Institutions for Enforcing Environmental Law: Courts and Alternative Dispute Resolution
In this session, two different approaches to enforcement of environmental legislation were discussed. Ole Kristian Fauchald and Kadri Sirg made interesting presentations about possibilities of the public to participate in decision-making and have access to justice in environmental matters.
In his presentation “De jure and de facto Access to Courts in Environmental Matters”, Ole Kristian Fauchald discussed access to courts based on the distinction between access de jure and de facto. In his presentation, he explained the distinction in relation to Article 9 of the Aarhus convention, which sets out rules on access to justice. “De jure” access to court is related to the juridical framework, and to who has the right to appeal and on what grounds, while “de facto” access to court refers to the real possibilities or motives to take the matter to the court (weighing possible gains against economical risks). De facto access to courts depends on the costs of the going to court (including reparation and consequences) and the assumed chances of winning the case. The speaker then compared this to the Norwegian system, based on his findings in a study on Norwegian court cases concerning environmental issues. Norway, to promote de facto access to courts, established an independent complaints commission for cases of requests concerning information from private parties and also reduced economic risks for the plaintiff. The results seem to show that the Norwegian system, while giving extensive access to courts de jure, still fails to give de facto access to justice to the extent that should be expected.
Kadri Sirg, in her presentation “Consensus-building: Alternative Dispute Resolution for Environmental Law Enforcement”, advocated the use of mediation; a consensus building technique where a neutral third party helps parties to the conflict to create an environment for problem solving where an agreement can be reached. She held that the implementation and enforcement of environmental law – currently facing practical problems like formality and insufficiency of public participation efforts and focusing on legal procedural and material issues instead of substantive – can be advanced through increased used of consensus-building in the decision-making processes. Consensus-building as a decision-making technique allows parties to go beyond their positions and the factual issues of the case, to address the their interests, needs and concerns. In additions to benefits of consensus-building for public participation and the decision-making in general, it can bring transparency to the decision-making process and be a first step to participatory democracy.
In the general discussion, it was argued that mediation and consensus-building may be needed to get de facto access to decision-making in environmental issues, but it is more difficult to decide whether it should be legally binding and how far it should be regulated.
Session II: Instruments for Enforcing Environmental Law: Permits, Liability and Information
started the second session by presenting his paper on “The Impact of Permits for the Enforcement of Environmental Law”. Central aspects of environmental permits are their scope, effectiveness and legal consequences. Permits as an instrument for environmental control have a long history. Usually, the general rules concerning the preservation of the environment are set up in the environmental laws, but it is for the permit authorities to consider whether to grant the application for license to start a certain activity and, if so, whether there ought to be conditions connected to the license.
Darpö is running a project on “enforcing environmental law in Europe”, in which the Swedish system for permits is compared with the permit systems in UK and some other European countries. The aim of the project is to analyze and discuss permits as legal instruments. How can changes in the environment or concerning a nature resource, changes in techniques and changes in policy and political values influence the permits that have already been given? This question is related to whether one sees the permit as an obligation or a right. Another interesting aspect of permits is how they are affected by transfers and acquisitions of companies and assets. Yet other relevant questions are: Who has the right to take initiative to changes in the permit; the permit-holder, stakeholder or NGO:s? Can conditions be appealed and, if so, what is the margin of appreciation? Is there a juridical review or an appeal on the merits? These issues are studied in the project.
The issue of Casper Herler’s paper “Fairness and Environmental Liability” was the principle of fairness vs. the principle of proportionality in environmental law. He argued that it is a strong moral idea that the polluter should pay, but at the same time there can be great differences between polluters. For instance, is it fair that a private person who has a house with an oil tank that leeks oil into the ground water should have the same economic liability for the damage caused as a big industry which also is responsible for oil leaking out in the ground water? Another problem addressed was liability of a current landowner in case s/he has in fact not carried out the polluting activity. Is it possible to make liability for soil remediation more equitable by applying the principle of fairness to the problem?
According to Herler, fairness and proportionality are in a sense addressing the same kind of balance problem, but the focus is a bit different. Fairness focuses on the situation for the individual, such as the burden of remediation costs in relation to the financial position of the individual. Proportionality refers to the balance between public and individual interests, such as the burden of remediation cost in relation to the interest of protection of, for example, an important ground water reserve.
Herler concluded that there is a need for a distinct principle of fairness because there are currently a problem in matching fairness with proportionality. In environmental law fairness is regulated without attention to environmental interests. Soil pollution liability has connection to tort law and lies between civil law and criminal law. I
n her presentation on “The Role of Access to Information in Enforcing Biodiversity Law”, Louise Fromond argued that public access to information is important for such enforcement because it gives people a possibility to participate in influencing and controlling the lawfulness of the authorities’ decision-making. The right to access to information of the parties in a case is usually broader than that of the public in general. In this context, a definition of a “party” is anyone whose rights, interests or obligations may be affected.
Sometimes there is a need for information to be treated confidentially, if stronger public state or private interest needs protection. For example, the risk of illegal hunting can be a reason for not disclosing information on resting places for an endangered species.
Forest-owners’ lack of information about protected habitats can be a problem in relation to the construction of Finland’s Nature Conservation Act. In the Act, special nature types are listed as restricted areas, but decisions have to be made on a local basis with notification to land owner. However, no notification to land-owners is required when breeding and resting places of certain species are listed. This can lead to a situation where forest-owners get the information about the possibility to use their land for logging at a late stage.
Session III: Enforcing Environmental Law Through Penal Sanctions
The first contribution of this session was
Kimmo Nuotio’s presentation on “Effectiveness of Penal Law in the Protection of the Environment”. The starting point of the presentation was to highlight the significance of the enormous disparities concerning expectations relating to environmental criminal law. On a symbolical level, there is a huge demand to do something, to show that the society really cares about the environment. This demand creates expectations that penal law has great difficulties to meet.
After these initial remarks, Nuotio presented different ways of understanding effectiveness. One possible approach is to focus on the control; the system is efficient if the authorities are able to control the actors efficiently. The presumption is that actors are rational and calculate the pros and cons of a potential risk-taking. On the other hand, the question of efficacy can be understood in terms of a duty to abide felt by the citizens. The values promoted are then internalized, which leads to efficiency.
An important linkage between the different forms of general prevention and the aspects of efficiency were also touched upon in the presentation. According to Nuotio, rational economic actor-theory is in some ways analogous to the external view of general prevention (deterrence). Nuotio pointed out that it is an oversimplification to concentrate on the deterrent effect of penalties because the circumstances where economic actors operate have changed. Our societies are more sustainable than their predecessors and this has an influence on economic actors as well. In his opinion the internal view of general prevention – which focuses on internalization of the moral standards – offers us better answers to questions about efficiency. Penal law should be used in order to support the ethical views of the community; penal law can even be seen as a form of education. Nuotio finally emphasised that penal law can be efficient even if some cases do not lead to conviction. Discussions during the initial phases of a criminal process are also important and they as such can support the values of the community.
The second theme was portrayed by Helena du Rées in her presentation “Matter Sanctions? – Criminological Aspects of Controlling Environmentally Hazardous Activities”. The theme was approached from a criminological perspective, and her empirical observations were based on interviews with executives of different companies. The majority of the interviewees was of the opinion that the risk of sanctioning is low. Despite of that, the interviewees concluded that environmental offending does not pay in the long run. The reason for this paradox is that an enterprise that is looking for a future cannot act as an environmental criminal. If a company has invested in its reputation, environmental crimes are not profitable.
Du Rées used Travis Hirschi’s theory on social bonds in order to explain the results of the interviews. The first important element of this theory is attachment to “significant others”. In this context these “others” can be the market, employees, consumers, business partners etc. The second element of the theory is commitment in a conventional life, which means a company’s involvement in environmental activities. Thirdly, the theory focuses on a belief in the existing norms. Hirschi’s theory seems to give an explanation to the paradoxical situation mentioned earlier. Although the risk of sanctioning is low, the companies comply with the rules. This is possible because companies pay attention to the significant others, they invest in different ways in a conventional lifestyle and they rely on the existing norms.
The discussion that followed mainly concerned the question whether economic actors truly are moral actors. The role of criminal law in controlling environmentally hazardous activities was also a debated issue.
Session IV: National Cases of Environmental Laws Enforcement
Dalia Perkumienè started the fourth session by presenting her paper on “Enforcing the Lithuanian Environment Protection Act”. The Act came into force in 1992. Dalia Perkuminie stated the conditions and the background of environmental protection in Lithuania. In the former USSR environmental protection was not regulated by a separate law, but handled by administrative authorities. In the beginning of independence, there was an environmental activism among the people, but now the implementation of environmental regulations is not always sufficiently supported by the public.
Dalia Perkuminie then presented the headlines of the Lithuanian Environment Protection Act, i.e. the definitions of the main concepts, the purposes of the act, the subjects of the regulation, the rights and duties according to the act, and the liability under the act. She also provided statistics about the enforcement. The Lithuanian environment control agencies found more than 15.000 environmental infringements in year 2004, divided in the sectors: animal protection (40%), air pollution (30%), water pollution and waste (16%), and nature protection (10%).
The EU Commission is optimistic in respect of environment protection in Lithuania and in the successful process of implementing EU directives concerning the environment into the Lithuanian legal system. But still there are problems mentioned by Commission in all main environmental areas, such as air, waste, water, nature, chemical products, genetically modified organisms and radiation.
The following paper “Enforcing General Rules Through Administrative Fines; Experience from Dutch and Belgian Law in the Light of the IPPC Directive” was given by Petri Houweling. Environmental protection and regulation in the Netherlands is a governmental matter, founded in the Dutch Environmental Management Act. She presented the Environmental Management Act, and the main regulatory instruments concerning establishments with environmentally impacts, i.e. permits and general rules.
Petri Houweling brought some statistics showing how about 80% of the establishments are now regulated by general rules and 20 % by permits. She discussed the advantages and disadvantages of the two instruments, and ended up recommending a system combining general rules and permits. This could be done by working with a kind of standardised permits, where the general rules can be supplemented or detailed by local authorities. She also expressed some considerations about the local capability to enforce the regulations and the administrative fine as an instrument of enforcement.
In her paper “Enforcement of Ground Water Rights in India: the Coca Cola Case”, Jenny Grönwall explained the Indian ground water situation and the regulation of ground water rights, the structure of groundwater authorities, and what happens when a multinational corporation enters the scene. The groundwater situation in India has shown to be terribly bad, with a water table all over India falling 1-3 meters a year, due to failing monsoons, competitive deepening of wells, salt-water intrusion, sand-mining and the choice of irrigated wet-crops.
Jenny Grönwall explained the legislative regulation of groundwater management and ground water rights, and also discussed some constitutional and common law issues, e.g. to what extent access to ground water has been construed as a human right. She then presented the headlines of the administrative arrangements of ground water management in India on national, regional and local level, and in particular the mandate of the Panchayat Raj Institutions. This was followed by a presentation of the Coca Cola Case, in the Moolathara village; a case that reveals the real life problems, the local pressure with massive sit-in protests as well as the global echo with world-wide attention, hundreds of web-pages and numerous studies. In doing so, Jenny Grönwall described the case from its start in 2003 up to the current situation, 2005. Finally, she stressed the need for regulatory reforms in order to decouple land- and ground water resources and to achieve a less blurry jurisdictional division of power.
Session V: Comparative and International Outlooks
Femke de Lange
started the fifth session. In her paper “Enforcing European Environmental Legislation: the Role Assigned to NGOs” she approached the topic from three overlapping perspectives, namely the Aarhus Convention, EC law and Dutch criminal law.
According to article 9(3) of the Aarhus Convention, members of the public have the right to claim enforcement of national environmental law. NGOs explicitly fall under the term “public” and should therefore have access to administrative or judicial procedures, in order to watch over and challenge acts and omissions relating to environmental law. The implementation of (environmental) EC law is an issue of national measures that need to be taken within the normative framework set by primary EC law (TEC 10, 249 etc.). The procedural autonomy of member states to choose the enforcement measures is limited by criteria of effectiveness and non-discrimination set by ECJ case-law. Procedural autonomy can also be restricted by EC (secondary) legislation itself. Femke de Lange also discussed the EC competence as to enforcement by criminal law on the basis of the ECJ decision (Case C-176/03) concerning the Council’s Framework decision on the protection of the environment through criminal law.
Various types of measures are being utilized in order to enforce environmental law in the Netherlands: preventive, restorative, punitive and symbolic. As to the mainly punitive measures of Dutch criminal law, NGOs have the right under the Criminal Prosecution Act (CPA) to lodge a complaint with the court against decisions of the public prosecutions office not to prosecute. Furthermore, article 51a of the CPA grants them the possibility to become party to the criminal procedure, in order to directly claim damages. The Dutch Criminal Code contains environmental crimes (articles 173a and 173b). Besides these cases, most violations of Dutch administrative environmental law constitute either a criminal offence or a crime under the Dutch Act on Economic Offences. Finally, the use of “due care obligations” in relation to enforcement of environmental law was discussed.
As a conclusion of the presentation it was found that ensuring proper enforcement of environmental law on the basis of ambiguous norms is difficult, and might endanger the objectives set in the Aarhus Convention (transparency) and primary EC law (effectiveness).
The key issue of Annika Nilsson’s presentation on “Administrative Enforcement of Environmental Law in Europe” was the challenge set by the relationship between environmental law and administrative law. Since the substantial environmental law norms are being enforced through the legal framework set by administrative law, the issue of potential friction between the traditions is of major concern. It was shown that the differences between the traditions occur at different levels. At the level of objectives, environmental law strives for changing the behaviour of actors to reach environmental goals and results, whereas administrative law deals with vertical relationship between the state and the individual, aiming primarily to protect the individual. In environmental law the responsibility of the actor is stressed, possibly with reversed burden of proof, whereas the tradition of administrative law, at least in Sweden, underlines principles of legality, proportionality and Rechtstaat (with the application of “Officialprincipen”).
The different starting points gave ground for the hypotheses that (1) there is an inherent potential for conflicts in the relation between environmental and administrative law, that (2) uncertainty and vagueness prevail around the role and function of administrative enforcement of environmental law, and finally (3) that (1) and (2) lead to ineffective enforcement and implementation deficit of environmental law, with the effect that the environmental goals are not reached. These research hypotheses were elaborated in the presentation by case law examples, showing contradictory tendencies of stressing either legal certainty (administrative law approach) with motivations that the operator should be given precisely formulated obligations, or, on the other hand, that the administrative authorities may not give too precise orders but should leave the forms of application for the operator to decide (environmental law approach).
Annika Nilsson concluded that the objective of proper enforcement can only be met by a communicative and integrated structure of the whole system of environmental administrative law. This goal is currently not met and hence a wide discussion on the shortcomings and challenges should be initiated. She suggested that the focus issues for this discussion should be the balancing of actor responsibility and state responsibility; the profound environmental principles on the one hand, and Rechtstaat tradition on the other.
In the general discussion followed by the two first presentations of this session, the topics of main interest were the instrument of due care obligation (Femke de Lange’s presentation) and further aspects of the relationship between administrative and environmental law (Annika Nilsson’s presentation). The increasing use of due care obligations in the Dutch legislation was concluded to illustrate a tendency towards more general regulation (but maybe also of deregulation). While this is a favourable development from the point of view of reducing the norm overflow, the approach has its limits as to meet the objective of sufficiently clear and precise regulation. As to the relationship of environmental and administrative law it was concluded that the juxtaposition of the two traditions has to be understood only as a basis of discussion, an instrument to serve the goal of their more successful assimilation into a well-functioning system of environmental enforcement.
Said Mahmoudi spoke on the subject of “Enforcing Environmental Law Across State Borders: Restrictions and Possibilities in International Law”. He provided a general overview of the differences between national and international law (IL) with regard to enforcement, emphasising a number of particularities characterising IL. These included the fact that States are both the creators and the subjects of the legal norms; that the basis of legal obligation is consent; that reciprocity plays a central role as an instrument of enforcement. He emphasised that implementation of international obligations in national law is vital for the effective enforcement of such obligations. As a final remark regarding IL in general he drew attention to the increased role of NGOs and individuals in the enforcement of IL obligations that has taken place during the last decade or two. The specific field of international environmental law (IEL) is often perceived of as a soft area of IL. The reason for states to undertake obligations in this field is often, particularly with regard to developing states, that it gives a certain status in the international community or that it may increase a state’s ability to attract financial aid. Three particular subject areas within IEL were highlighted: 1) protection of nature, which is characterised by conventions that aim to coordinate state behaviour rather than to control it; 2) protection of the atmosphere, particularly focusing on the Montreal Protocol and the United Nations Convention on Climate Change with the Kyoto Protocol (the enforcement mechanisms of which are perceived as innovative, facilitative and largely successful); and 3) protection of the marine environment. The last area is the field of IEL which was first subject to significant legal attention and has over the years developed strong and detailed enforcement mechanisms which provide states with useful instruments to enforce the material obligations, provided that there exists sufficient political will to that end. It was concluded that considerable progress has been made with regard to enforcement measures in IEL in later years, partly as a result of the progressive role played by the European Community.
Marko Berglund gave a presentation titled “The International Tribunal for the Law of the Sea: Protecting the Marine Environment Through Provisional Measures”. He provided a general outline of the United Nations Convention on the Law of the Sea (UNCLOS) as a comprehensive legal framework covering a multitude of sea related activities. UNCLOS provides for four alternative means of dispute settlement for states to choose from. One of them, the International Tribunal for the Law of the Sea (ITLOS), was the main topic of the presentation. So far, 23 states have chosen ITLOS as one or their preferred means to settle disputes arising out of the interpretation or implementation of UNCLOS. Since it commenced its work in 1996, ITLOS has dealt with 12 cases. Three of these cases, which were all related to environmental protection, concerned ITLOS’ power to prescribe provisional measures pending the constitution of a so-called Annex VII arbitral tribunal. This is a subject over which the Tribunal has compulsory jurisdiction, even with regard to state parties that have not chosen it as one or their preferred options for dispute settlement. Using the Southern Bluefin Tuna Case, the MOX Case and the Land Reclamation Case, the Marko Berglund analyzed the handling by ITLOS of some central provisions of relevance to dispute settlement. These included the obligation to exchange views, the notions of procedural and substantial urgency (which are prerequisites for the prescribing of provisional measures) and the duty to cooperate. It was further concluded that the Tribunal has been reluctant to take a stand on the status of the precautionary principle in international environmental law. It has instead referred to an obligation of the parties to act with “prudence and caution”. However, with the exception of the Southern Bluefin Tuna case, this has been in the context of protecting procedural rights. One reason for this is that in the provisional measures cases before it, ITLOS has had difficulty in finding the prerequisite urgency to protect the parties’ substantive rights. Although ITLOS seems willing to develop principles of international environmental law, to consolidate its role in this area, it would be important for it to get an opportunity to rule on a merits case in the future.
Closure of the Workshop – and Future Work
The workshop participants ended the workshop by discussing future work and means of cooperation and networking within NELN. Several proposals were given which hopefully can be materialised by future NELN activities.