Mr. Peter Dordregter, Director Association of Netherlands Municipalities (VNG)

P.O. Box 30435, NL-2500 GK Den Haag, Netherlands

Intergovernmental Relationships in the Netherlands

I. Enforcement is the upholding of the policy determined by the municipal council. The process of enforcement assumes that those bound by it are aware of the conditions it imposes, and this should be set down in the form of a license. A license is a scheme of limiting conditions within which a firm must operate in order to obviate unacceptable environmental damage. In one sense, a license may be regarded as a statutory contract, which must be continually renewed whenever new conditions arise within the firm, or if the government, through the gaining of new insights, can no longer accept a policy previously agreed upon. The carrying out of controls, and any penalties which may be imposed, require the existence of an up-to-date license. Unfortunately, research has shown that municipalities in the Netherlands were severely behind in introducing such measures. Very many companies were either operating without a license at all, or else under an inadequate license. This was partly due to a lack of interest on the part of municipalities, but also to a not insignificant degree to factors which lay outside their scope. In order to elicit the will and ability to conduct a successful environmental policy, it is necessary to present an inviting prospect:

a. environmental policy must be placed high on the political agenda;

b. the level of government concerned must be given a recognized role in the policy;

c. it should, moreover, command adequate funds;

d. where necessary, other authorities and governmental institutions, such as the police force and the Public Prosecutor, should coordinate their activities with those of the municipality.

These conditions are increasingly being fulfilled.

Environmental policy has now been placed on the political agenda, with the national environmental policy document being the seal on this development and motoring policy – including the question of whether or not to build five road tunnels in the Randstad area – the test case.

Municipalities have a central role to play in ensuring the success of environmental policy. The enormous number of environmentally damaging activities taking place simply cannot effectively be tackled by only a few large institutions. Moreover, environmental policy should be drawn up in conjunction with the drafting of policies on transport, physical planning, building and housing. This role for municipalities is being expressly acknowledged by the provision of additional funding to enable them to work together, to jointly equip themselves adequately and to aim in four year’s time to introduce a full system of license-granting and an effective enforcement programme. For the first time, municipalities are receiving funding to enable them to finance their own environmental tasks, and extra money has also been promised by national policy documents and the government coalition accord, in order to cover the costs of increased burdens. The first steps in a coordinated approach to environmental problems by different levels of government are thus beginning to get off the ground.

The organization of enforcement is central to our workshop. As I said at the beginning of my talk, enforcement is the capstone of the policy. Inspection controls of firms can reveal infringements of the policy resulting from a series of causes, each of which requires its own specific approach. Many contraventions come about through ignorance or human error. The foremost, and possibly most important instrument of enforcement must therefore be public information and the changing of attitudes.

To begin with, the policy will need to be clearly set out and the license brought up to date. The license-granting authority will need to explain its proposed aims in local newspapers and by means of brochures. It must win commitment for the policy from employers’ organizations and Chambers of Commerce, so that the necessary information is also disseminated by means of internal channels, both formal and informal. Officials and politicians should make specific inquiries and given equally specific clarifications during visits to firms. Those working within industry should be willing to cooperate, motivated by the desire to contribute to a clean environment. This means that it will also be necessary to try to influence corporate culture in such a way that employees will be encouraged to contribute to finding solutions, to come up with ideas and not be inhibited about drawing attention to deficiencies or faults. This should be the task of industrial management. It is important to stimulate industries to set up a system of internal environmental management, since in this way environmental policy will become company policy.

Obviously, for that matter, trade unions should also be motivated to include an environmental policy in their collective labour agreement negotiations. It may seem superfluous to be concentrating so much attention on the need to change attitudes and on the transfer of knowledge. Let me therefore take a different example to illustrate what I mean.

Ordinary households use chemical substances every day – creating a total buildup of waste products which could cause enormous environmental pollution. Chemicals used in photographic development, paint thinners, paintbrush cleaning fluids and so forth, can be disposed of in the home by thoughtlessly flushing them down the lavatory, whereby they eventually interfere with the sensitive bacteria cultures used by water purification plants, causing these plants to break down and their surface water to become seriously fouled. People also dispose of these substances in their garbage bins, thereby polluting waste tips or flue gases from waste incinerators. These activities cannot be monitored, nor can they even be ascertained. It is therefore necessary to motivate people to dispose of such waste attentively, carefully, and, above all, in what must come to be seen as a self-evident way. Municipalities in the Netherlands have established a network of depots for the disposal of domestic chemical waste. Numerous municipalities have even gone as far as organizing door-to-door collections of chemical waste, which involves households having to be prepared to separate it, and keep it separated, from ordinary waste. This measure has been so successful that the authorities have had to devise emergency solutions to process all the household chemical waste collected.

My subject is intergovernmental cooperation: in this situation, too, then, activities undertaken by different levels of government should complement one another. The dissemination of information should be identically focused at all levels, and the various authorities should each be in a position to attain their desired aim, namely: municipalities collect waste individually and store it in their respective depots, following which the provinces arrange for it to be picked up by properly-qualified firms, to be taken to waste processing plants or chemical waste incinerators; the government ensures the willingness of the various branches of industry to cooperate, for example by processing rechargeable batteries or by building large-scale waste incinerators.

To begin with, the public must be willing to realize the policy in their every day activities; this includes not only the public in general as members of households, but also employees and company bosses. A constant stream of information must provide a continual motivation. Such information should include publication in a stimulating way of the results of environmentally friendly activities undertaken by citizens. Industries above a certain size should be stimulated to do the same in their own internal information campaigns, even perhaps rewarding individuals for outstanding performances in environmental management.

Publicity is an important instrument for bringing about the required environmentally conscious behavior. Enforcement strategy proper can also play a role here. Some municipalities deliberately use publicity as a threat, in order to force companies to quickly conform to the conditions of their permit. In the Netherlands, the example of the EPA could be followed in making agreements on publicity with the judicial authorities. This strategy aims exploit specific stages in an enforcement procedure, In order to communicate a deterrent message. Those potentially at risk of infringement or negligence are thus able to evaluate more clearly the risks they are running, the intention being that compliance will obviate the need for disciplinary action. Why am I devoting so much attention to this subject? It is, I repeat, because there are countless possibilities for potential infringements, and because it is not generally possible in the majority of cases, to establish that an infringement has taken place, or at least not legally provable. Moreover, enforcement is a highly costly and labour intensive business, a process which can sometimes drag on for years, passing through many different authorities. Penalties will therefore have to be the exception rather than the rule. And so the most important enforcement tasks, therefore, include the following: the establishment of a clear policy, instruction, guidance, and warnings.

II. Now let us turn to enforcement proper. Many public authorities and organs in the Netherlands are required to carry out enforcement tasks. In addition to general administrative public authorities, such as the state, (inspectorate), provinces and municipalities, there is also the police force and the Public Prosecutor, as well as a group of special investigation departments, of which examples are the General Inspectorate at the Ministry of Agriculture, and the Monitoring Unit for Dangerous Substances at the Ministry of Transport and Public Works.

Different services within the municipality can also exercise investigative powers, such as the police sanitation department. In addition to this, the district water boards – functional corporations with their own direct elections – also have monitoring responsibilities in their capacity as water quality supervisors. In exercising their environmental tasks, municipalities have dealings with all of these bodies, and sometimes, depending upon the particular instance, with all of them simultaneously. The National Environmental Policy Plan will result in a considerable growth in the number of active enforcement bodies, both within and outside the municipalities. Without adequate consultation or good working agreements, municipalities and industries will end up in an inextricable tangle reminiscent of a plate of spaghetti, but one without the Bolognese sauce. Not only must we contend with additional enforcement agencies, we must also cope with the prospect of increased autonomy, a virtual “Alleingang”, in traditional enforcement bodies: the police and justice department. Police forces in certain municipalities are already going their own way where they feel the administration has been too slow in formulating and implementing a good environmental policy.

The National Environmental Policy Plan could strengthen this tendency. It has placed 60 million Dutch guilders at the disposal of the police and the Public Prosecutor over a period of time. A policy document issued by the Ministry for the Interior (responsible for municipalities and municipal police forces) and the Ministry of Justice (responsible for law enforcement) opts for an intrinsic conflict of interests. It assumes that the police should not exercise an autonomous responsibility in enforcing environmental legislation. Environmental enforcement should form part of normal policing duties and should be incorporated into them as far as possible. This assumption is one I readily share. Nonetheless, the intensification programme is being pushed forward in the form of a national project with a project-planning bureau, where municipalities can present applications for permission to undertake development projects. Work will be undertaken with contract management, whereby beforehand, projected results will be formulated in measurable quantities. A distinctly “top down” approach, which elicits tension between national priorities and local insights; an approach, too, which releases various elements and allows them to become more autonomous, and which could undermine local integration. At national government level, the project management does not even provide for any involvement of the Ministry of the Environment. We are therefore faced with an increased autonomy in both a vertical and horizontal direction, which will lead to a great many problems of coordination.

In the US, similar moves towards autonomy may be regarded as normal, while in the Netherlands such a move would be contrary to administrative concepts.

The need for adequate consultation is increasing rapidly. In the Netherlands, the mayor is head of the police force and is responsible for public order. The Public Prosecutor also administers the police, where prosecution for activities punishable by law is concerned. Naturally, this creates a conflict of priorities. The fight against serious crime, because of its ramifications beyond and above the scope of municipalities, is not always seen as a local policing priority. In order to ensure good consultative agreements, regular so-called tripartite discussions are held between the mayor, the public prosecutor and the local chief of police. Environmental matters are as yet seldom raised in the talks. In only a few municipalities does the alderman responsible for environmental matters take an active part in the discussions. Nonetheless, the state police force, which operates at district (regional) level in municipalities with a population of below 25,000, has appointed environmental coordinators (in an advisory capacity). Throughout the country, the formation of environmental regions is currently being implemented, through the availability of the additional government funding which I mentioned earlier, since municipalities can only act concurrently to provide themselves with the necessary professional know-how in the manner required. Some 60 regional forms of cooperation will be set up as a result. They will provide a basis for cooperation between municipalities in accordance with policy. Because this therefore removes the problem of scale for the municipalities, it also creates an appropriate level of communication with other authorities and with the judiciary and police on the matter of how to agree to activities in accordance with policy, at exactly the point where these activities overlap as a result of different laws.

To emphasize once again the fact that the consumers of the policy will benefit from greater attunement between authorities, I shall offer two examples of widely represented simple businesses:

A butcher’s shop, which falls within the framework of a Nuisance Act – AMvB (Order in Council), also falls within the terms of a municipal discharge regulation covering discharges into sewers. The butcher has to deal with only one competent authority. A livestock, farmer, on the other hand, may have to contend with the investigative activities of perhaps as many as four competent authorities, namely:

1. the municipality, responsible for the Nuisance Act;

2. the province, for the Decree on Animal Waste Products, under the Soil Protection Act;

3. the General Inspectorate, Ministry of Agriculture, in charge of accounting of animal waste products under the Animal Waste Products Act, and

4. the district water boards, should any discharges find their way into surface water.

In addition, the regular police force can become involved as part of their powers to conduct general investigations.

It seems clear to me that separate and individual action is not particularly effective, as well as being impossible to “sell” to those affected by it, who will be faced with a stream of officials coming and going. It is far better to benefit from mutual information and insights, and to operate as far as is possible, a common inspectorate. It is a well-known fact that if a discrepancy is located in one area, others are likely to be found elsewhere, and this being so, a better result can be achieved through concerted action.

III. What conclusions, then, can be drawn from the situation which I have outlined? One is that legislation is too disjointed. It is certainly most inefficient for simple businesses, which constitute around 50% of the total number of industries covered by a Nuisance Act, to have to contend with a multiplicity of authorities from the very outset. An integral environmental license to be issued under the shortly-to-be-revised Environmental Protection (General Provisions) Act will do much to improve matters, though still not enough. In any case, implementing orders and water quality covered by the Surface Waters Pollution Act will be exempted from it. But precisely because legislation is so disjointed, cooperation in the area of enforcement is so urgently needed.

The following matters should form subjects for cooperation.

1. Minimal coordination between the various proposed activities and projects. To use the example of the livestock industry once again: an attempt should be made to prevent a situation in which week 1 sees the arrival of representatives from the municipality, followed by provincial inspectors or the general inspectorate in week 2. As far as possible, a visit should be arranged by several authorities in conjunction, or (better still), a visit by one or two bodies could be made on behalf of the other(s);

2. The necessary coordination outlined under paragraph 1. almost automatically means that during mutual consultation, priorities are laid down which are subsequently translated into specific enforcement measures. However, these priorities should be incorporated in a general environmental policy. Enforcement is only part of the integral regulatory process: without a valid license, little can be achieved by enforcement. Naturally, monitoring activities, too, afford more insight into whether a permit is operating adequately. Both permit granting and enforcement activates should, in addition to other activities (such as information and communication), be translated jointly into priorities as well as posteriorities.

3. Collaboration can then be translated into agreements on the allocation of roles between the relevant bodies in the implementation of various projects.

4. Obviously, cooperation should be chiefly directed towards tackling activities which pose a threat to the environment or at industries which attract the concern of more than one particular body. It does not yet seem practical to make those industries which, for example, only have dealings with municipalities, the subject of combined activity. Think of the example of the butcher in this instance. For the so-called “bulk” of enforcement tasks, general guidelines at regional level could be given. The police, too, will play an important role in the “bulk” of the tasks. Administrative enforcement is the main priority here. It will also be useful if the question of where specific tasks could most efficiently be carried out could be discussed. It may, for example, turn out that specific executive tasks are not being applied in the most appropriate place. So, for example, municipal authorities or the police force might be a better choice for keeping an eye on the authorities, even though they are the appropriate authority to do so under the law.

5. Municipalities should organize themselves into regional associations, in order to be able to fulfill their environmental tasks adequately. This would give an impetus to horizontal coordination. The vertical intergovernmental dialogue necessary to successful enforcement can be allied to this. In addition, special tripartite consultations between mayors and aldermen with responsibility for environmental matters on the one hand and the Public Prosecutor and police chiefs on the other can also be integrated.

At regional level, the so-called external integration of environmental policy, i.e. its regulation with physical planning and traffic planning, can also be given the best possible form. This is also important for enforcement; think, for example, of the enforcement of provisions in development plans for the urban fringe, which could have important consequences for the environment.

6. Although as a general rule, administrative enforcement will be the first to be implemented, it should nonetheless be established in such a way that any criminal enforcement introduced subsequently can readily be integrated with it. It is to be recommended that national standard documents and police warrants be drawn up. An attempt must also be made under the guidance of the Ministry of Justice, to standardize and certify the assembling of evidence, such as the taking of samples and other technical investigative techniques, to maximize the changes of collecting a strong body of evidence. The setting up of a planned National Information Centre for Environmental Offenses (Centraal Landelijk Informatiepunt Milieudelicten – CLIM) should be able to assist in making accessible experiences acquired through enforcement. The assembling and generalizing of experiences gained throughout the country – the bottom up line – can contribute to the improvement of legislation and litigation. Conversely, the police could test the provisions imposed by a permit for their verifiability.

7. At regional level, a data network controlled by the Public Prosecutor – such as the one which has been set up in Ultrecht – will be necessary. All monitoring and enforcement activities, including cautions and administrative actions, will have to be reported and processed, in order to encourage a good documentation policy and to obtain insight into the different types and extent of noncompliance. Again at the regional level, legal and technical experts from the three administrative levels will have to exchange experiences in order to ensure successful cooperation.

8. The introduction of this model will consequently involve considerable disruption, not least among municipalities. Particular attention will therefore have to be given to the introduction and implementation of the model. A phased and differentiated introduction will be required. In order for this to succeed, communication with and between the various bodies concerned is extremely important. A seedling does not, after all, turn into a sunflower overnight. Moreover, should you try to speed up its growth by pulling at it, it is liable to snap. However, the following are beneficial to growth: a fertile soil (political will) and plenty of water and light (funding).

9. Intergovernmental cooperation is a difficult process. The fact that this is so can be blamed in part on the almost one and a half centuries of entrenched traditions in public administration in its present form. The process of legislation, too, has not made the process of cooperation any easier. One could, therefore, quite readily imagine that the provinces will begin to take over some of the tasks of, for example, the district water boards or the special investigative services, such as the General Inspectorate. In this way, an integral environmental (enforcement) policy would be given a more satisfactory impetus (functional organizations operate by definition in a disintegrative manner), and in so doing, the number of instances in which cooperation would be required would be drastically reduced.