ENVIRONMENTAL ENFORCEMENT BY MUNICIPALITIES IN THE NETHERLANDS 

P. DORDREGTER

Director of the Association of Netherlands Municipalities, VNG, P.O. Box 30435,

2500 GK The Hague, The Netherlands.

ENFORCEMENT: Collaboration and persistence

1    GENERAL REVIEW OF THE ENFORCEMENT SYSTEM IN THE NETHERLANDS

Enforcement is the ultimate test of environmental policy - in fact, of every area of policy. Enforcement involves forcing the regulated society to conform to the rules. The fact that there are various means for doing this will be discussed a little later. Above all, enforcement is the final link in the policy cycle, and thereby the prelude to the first policy-making link.

Confronted with the regulated society, and thus the practical situation, the new policy-making requirements imposed by everyday practice become clear. I should mention now that the effectiveness of the instruments used certainly forms part of this feedback, which has the character of an evaluation. Enforceability and public acceptance are important assessment criteria in this test.

In the Netherlands, municipal authorities bear primary responsibility for environmental policy. These authorities are responsible for supervising the vast majority of the country's companies; 400,000 in all. This enormous number of companies includes many organizations, which place a limited burden on the environment. As an example, I can cite the combined residential and office buildings, or which 50,000 are subject to licensing requirements. Provincial authorities are responsible for about another 3,000 companies, either because of the complexity of the industrial processes used or because of their high external impact.

The Netherlands covers an area of some 35,000 km5, has a population of 15 million, and is divided into 12 provinces and 649 municipalities. The provincial authorities, and the municipal authorities in particular, have an open administration in which a large number of tasks are carried out within an integrated policy framework. The municipal tasks may be strictly autonomous duties, such as responsibility for drains and sewers, or duties imposed by national legislation, which can allow municipalities a greater or lesser margin for independent policy-making.

The entire territory of the Netherlands is also divided into water authorities. These are directly elected, functional regional organizations, which bear responsibility for water management and purification of wastewater.

Naturally, the municipalities not only concern themselves with the companies within their boundaries, but also ensure that everyone in their territory complies with the relevant environmental regulations. They supervise moped noise levels, for instance, and discharges of chemical wastes into sewers (cleaning agents, paint remains, medicines etc.) or the street (from lubricants when engine oil is changed, to dog dirt etc.); they also monitor the composition and presentation of domestic refuse (compulsory separation of organic wastes, building and demolition wastes, domestic chemical wastes etc.).

In view of the enormous number of potential polluters and actual transgressions, formal enforcement can never cover the entire population in full. Priorities must be set, and a mix of instruments must be applied.

Municipal authorities are not the only enforcers: a multitude of different organizations may concern themselves with the same company. In addition to the general environmental licenses issued by local authorities under the Nuisance Act, many of the 400,000 companies are required to hold special licenses under other legislation. The water quality inspector may, for instance, call on certain companies to conduct checks of water quality control. In addition to the general administrative bodies, the police and the public prosecutor have their own powers of investigation for the enforcement of criminal law and could, in principle, operate independently of municipal administrative enforcement activities.

Environmental policy is made at different levels. Legislation and the relevant standards and directives provide the framework within which other tiers of government must operate. The aim is allow the greatest possible amount of local policy-making freedom, in order to ensure a customized approach. Naturally, the margins of freedom vary from one area of policy to another.

Unlike many other countries, central government in the Netherlands does not, barring a handful of exceptions (e.g. for nuclear power), perform first-line supervision of compliance with legislation. Central government inspectors supervise the ways in which other tiers of government perform their duties. Controls aimed at certain branches of industry can cut across municipal priorities in extremely aggravating ways. Coordination of the actions of different government agencies is urgently needed. For a company, it is incomprehensible and exceedingly annoying to have a succession of different enforcers moving in.

2   POSITION OF MUNICIPAL AUTHORITIES IN ENVIRONMENTAL POLICY IS NOT SELF-EVIDENT

The fact that municipal authorities have an important environmental task has not always been self-evident. Despite their statutory duties, municipal authorities have allowed many companies to operate without licenses and have certainly not conducted enough inspections. For more than a century, these authorities have been able to avail themselves of the Nuisance Act, which affords them responsibility for controlling local disturbances by companies.

When real environmental policy was developed, the government did not opt to extend the Nuisance Act, but introduced new legislation, with stringent rules, for each new approach laboriously agreed in Parliament. Consequently, each compartment was regulated separately in law and, moreover, the provinces were made responsible for the majority of the new tasks, rather than the municipalities. Responsibility for purification of wastewater and the relevant installations was actually withdrawn from the municipalities by law.

With each new piece of legislation, new financial resources were generated to fund its implementation. In an era of stringent austerity measures, this became increasingly difficult (municipal authorities receive about 75% of their income from central government). Licensing also became increasingly expensive, due to the tighter requirements imposed in response to increasingly complex processes and the use of more hazardous substances.

For a time, municipal authorities were unpopular with the environmental movement and with many politicians, as they were felt to be too close to local industry to be able to take an independent view in the field of tension between economic and environmental interests. Gradually, the idea gained ground that environmental policy needs to be as close to the public as possible, and must be formulated in direct correlation with other areas of policy. In fact, it was precisely the political approach, rather than the technocratic one, which proved to be the most effective.

Relationships between municipal and central government, originally confrontational and marked by skepticism, has now changed into a partnership: tasks are undertaken jointly, using the strengths of both partners. Research established the number of officials required at each level for the different municipal environmental tasks, and the costs. The studies showed that a population of 70,000 is the minimum needed to carry a proper official apparatus. Collaboration between municipal authorities is therefore essential. Central government made financial resources available on a structural basis, issuing instructions that within five years, all companies falling under the responsibility of the municipalities should be properly licensed and should be inspected with the proper frequency. To encourage collaboration, a 25% bonus was offered over and above the basic amount in case of collaboration. At national level, the operation was led by a steering group in which the Environment Department, the inspectorate and the Association of Netherlands Municipalities (VNG) worked together.

The National Environmental Policy Plan Plus (NEPP-Plus) has since been published, operationalising national policy in a large number of action programs. To clarify what is expected of municipal authorities in the execution of this plan, all the objectives have been translated to the municipal level, assigning priorities and the relevant official action. This document is known as the Framework Plan of Approach and is the pride of the Department and my own organization. All municipal authorities use the Framework Plan to define their own situation and to prioritize action. With the help of the Framework Plan, they have all prepared their own environmental policy plans, interpreting the points for action in terms of their own situation. This document serves as a basis for discussions with industry and environmental organizations and is included in the regional talks of the municipal authorities working in partnership. Local communities now know what they can expect of their municipal authorities.

3   REGULATION SYSTEM

Before continuing with the theme of enforcement, I must first explain the regulations themselves. In a large number of branches of industry, licenses are no longer required. Instead, these branches are subject to General Terms and Conditions. Individual companies themselves must ensure that they comply with the requirements. Plans to form, expand or change a business must be reported to the local authority. The municipal authorities do still conduct inspections to check compliance with the General Terms and Conditions.

The repeal of licensing requirements was a result of central government deregulation efforts. The branches concerned consist of small, fairly uncomplicated businesses of a homogenous nature: butchers, bakeries, LPG stations, etc.

The NEPP-Plus laid down a large number of target reductions in emissions, which must be realized within a specific period. The plan also names the branches of industry, which must make a particular contribution to the reductions, known as the policy target groups. Target reductions are agreed with industry for individual substances and are laid down in a declaration of intent, which is then elaborated in a covenant. The three tiers of government hold joint talks with representatives of the branch of industry concerned, and each sign the covenants. A covenant has already been concluded with the basic metals industry and one with the graphical industry is almost complete.

Covenants are a national 'bubble': they show total national volumes of pollution levels considered admissible for emissions of a specific substance. This makes clear what is expected of a branch of industry. The municipal authority is given some indication of the standards, which can be imposed in a license. The distribution of pollution control measures will have to be considered within the branch of industry itself. Clearly, this will demand a considerable amount of consultation. Industry feels that covenants should, in fact, serve as a package of standard conditions and that therefore, there should be no scope for further development by a municipal authority. The municipal authorities adhere to the target group policy, because this means that environmental policy is internalized in a branch of industry and is developed in a corporate environmental plan by the individual companies. This plan serves as the basis for negotiations with the local authority. However, municipal authorities explicitly want a considerable margin of policy freedom in order to tailor final licenses to the situation required locally. In the enforcement situation, that could lead to problems in future.

The licensing and enforcement situation is complex, as I have already shown. There is every reason for concerted action. Different parties in society must help to create a desired situation through coordinated action: a system of countervailing power. Strictly formal enforcement, on the basis of administrative and criminal law, is only one option within a wide spectrum of different instruments. An orchestra does not always want to use only its heaviest instruments, like the kettledrums and tubas: the same applies in government.

4   CONDITIONS FOR ENFORCEMENT

A number of conditions must be met in order to realize effective implementation of environmental policy, and thereby, its enforcement. Firstly, a municipal authority must clearly define what it wants and must make this visible in a proper document. Secondly, the policy must be discussed as far as possible with the different target groups, in an open procedure.

The partners must be told what has and has not happened to their contribution, and why. Where possible, the partners' requirements must be satisfied. This can mean adaptation of the policy itself, or changes in the phases of execution. Standards and figures often seem extremely hard and fast, with a scientific basis, but on closer inspection, are ultimately a political compromise.

Operating in this way can sharply increase public support for policy. General public information must complete the process. The public, too, must be able to see how any compromises are reached and must be shown that high environmental returns have, nevertheless, always taken priority. In the negotiations with industry, the creation of a basis for sound control must be agreed: this could be a corporate environmental plan, but also a certain method of supplying information, together with the appropriate monitoring system.

I have depicted support for policy as a fairly harmonious process: in reality, of course, this is not always the case. A government organization needs partners in order to pursue its policy, certainly in industry, where economic gain can quickly gain the upper hand. It can be made clear to banks and insurance companies that the government will not only bring licenses up to date, but that enforcement action will follow. Experience shows that the RABO Bank is by far the best enforcer if a guarantee is needed for a company loan. Trade unions have an interest in ensuring high standards of environmental hygiene in companies, both for the health of their members and for the continuity of the company. Finally, the public can be asked to keep a watch and to inform local authorities or the police if environmental transgressions are suspected, or to institute civil proceedings themselves.

Publicity is needed to let the public know the municipality's environmental plans. It can also be used to promote desirable environmental conduct. Some directors of municipal environmental services use publicity as a weapon to make reluctant companies conform more quickly to licensing requirements. Press announcements of targeted campaigns in a certain area or branch of industry markedly improves collaboration from the companies concerned. In any action against a company, the presence of the press, tipped off in advance, can make it clear to other potential transgressors in the same branch that the steps are being taken in earnest.

5   PRIORITIES ARE UNAVOIDABLE

I have already mentioned the enormous number of potential enforcement situations and the fact that it is impossible to pay the same level of attention to all of them, everywhere. A set of priorities will have to be drawn up for inspections, based on the potential burden which different companies can place on the environment. In other companies, unannounced random checks must be introduced. The enormous amount of work involved makes it obvious that butchers and bakers could mostly be left to their own devices and that one should rely on external tip-offs in these cases. Self-regulation should be encouraged as far as possible. I have already described how this could be done.

It must in any event be made clear to everyone that action will be taken if violations are discovered. An obvious step would be to require restoration of the former situation, for instance in the case of discharges into the soil by compulsory cleaning, or compulsory replanting, in the case of unlawful felling of trees. If no appropriate response is made to the detection of a violation, action must be systematically pursued, in escalating stages. Ultimately, criminal proceedings may be necessary. Naturally, these will be required where criminal activities are involved, and the closure of the company will be the obvious step. But Dutch law does not make matters easy for enforcers. If a municipal authority announces a company closure, the company concerned can appeal to the Council of State. If the company has been operating for a long time without a license, or in violation of license terms, the Council will tend to overturn the closure decision. Tolerance of a violation is then interpreted in the transgressor's favor: which is a rather remarkable situation. After all, a company should comply with the law, but it is not the company, but the supervisory authority, which is held liable for such compliance. These roles urgently need reversal. A company, which operates without a license, or in contravention of license terms, should be charged for the economic benefits it has illegally enjoyed. This would have a considerable effect as a preventive measure.

Enforcement is a difficult task, and it requires training. It is certainly not always an easy matter to identify the regulation, which has been, contravened from among the multitude of central government, provincial, municipal and water board regulations which simultaneously apply to one and the same company. The method of action and of gathering evidence also requires precision. It can cost officials a fair amount of difficulty to act in a company, which confronts them with large amounts of counter-knowledge. The right attitude also has to be taught. To assist municipal authorities in this area, the Association of Netherlands Municipalities (VNG) has published a Guide for Supervision and Action on Environmental Legislation, describing the successive phases.

6   COLLABORATION IS ESSENTIAL

Inter-municipal collaboration is essential in order to formulate and implement effective environmental policies. The whole of the Netherlands is, by now, covered by partnership areas. In the first instance, these involve joint use of sufficient official capacity. In time, collaboration grows towards a regional environmental service and a policy-making body. Ultimately, the absorption of these regions by genuine regional administrative bodies, which are directly elected, is inevitable.

Enforcement involves a variety of different administrative organizations: municipal authorities, provincial authorities, inspectorates, the police force and the public prosecutor. The Environment Department encourages the formation of enforcement regions.

We already have tripartite consultation between Mayors, in their capacity as heads of the police force, their local Chiefs of Police and the public prosecutors for the districts concerned, in which public order and investigation are discussed in general terms. In some cases, the municipal Alderman responsible for Environmental Affairs will take part in the talks, in order to coordinate enforcement of environmental policy.

A major reorganization of the police force is currently on its way in the Netherlands. The country is divided into 23 police regions, which are far larger than the environmental regions. Separate enforcement regions, corresponding to the environmental regions, will now operate within the police regions. The enforcement regions will reach agreements on priorities, methods of action, where more than one local authority is involved, publicity and coordination of the action to be pursued. In many cases, persuasion is tried first when violations are discovered, followed by official action, with criminal proceedings as a last resort, or as additional action. However, where existing organizations are involved, the inspectorates and environmental organizations do tend take the view that matters have gone beyond the information and persuasion stage!

If necessary, the different stages of the enforcement process must be organized and followed in ways which ensure that procedural errors or inaccuracies in one phase cannot jeopardize the success of a later one. The use of standard procedures wherever possible, and the creation of a joint computerized data base, can be a great help here.

Environmental offenses do not always involve malicious intent. This is why information is so important. Many contraventions are inadvertent. Here again, information or a different organization of the process should be used reduce the margin of error as far as possible. Where there is lack of interest, information will not be enough and corrective action will be needed, with or without a degree of publicity. In the case of criminal offenses, a mix of instruments should be used, including criminal proceedings. Sometimes the possibilities for official and criminal enforcement overlap. For instance, the judiciary can require significant improvements in environmental quality as part of a settlement.

Generally speaking, criminal law is not yet adequately geared to handle environmental offenses. The penalties are usually exceptionally light and as a result, limitation periods are short. In the Netherlands, many environmental offenses are still not covered by the Economic Offenses Act and even when they are, do not rank very high. Consequently, the instruments for tackling environmental offenses and the accompanying penalties are equally weak.