CITIZENS ROLE IN ENFORCEMENT: A SPUR, A SUPPLEMENT, AND A SUBSTITUTE
RALPH HALLO
Coordinator, International Affairs Stichting Natuur en Milieu, Utrecht, the Netherlands
SUMMARY
Enforcement tends to look to the end of the process. After the standards have been set, the permits issued, the inspections and reviews carried out, enforcement plays its role. This paper argues that, for enforcement to be effective, the proper basis must have been laid at the beginning of the process in the design of the system of environmental control. Specifically, provision must be made for the generation of the information required to determine whether environmental rules are being complied with.
1 INTRODUCTION: THE NEED FOR THE RIGHT KIND OF INFORMATION
Effective citizen enforcement depends on access to the right kind of information. The right kind of information is:
(a) information that allows a violation to be easily identified; and
(b) information that is in usable form, that is, that readily serves as proof in enforcement proceedings.
In practice, effective government enforcement requires this kind of information, too. In this sense, the distinction between citizen and government enforcement is an artificial one.
Generation of this information depends on establishing in the law the requirements for appropriate sampling, monitoring and reporting ("SMR") of environmental data. The lesson for enforcers, and for others concerned with the environment, is that effective enforcement depends, in the first instance, on the quality of the SMR requirements established in the law and related regulations. If the system is not properly constructed, no amount of inspection or control by citizens or by government, will make it effective.
This paper considers the citizen's role in enforcement of environmental law on the basis of experience with the enforcement of water pollution control legislation in the U.S. and in the Netherlands1. More so than other examples, the U.S. Clean Water Act provides this kind of information and therefore has been used effectively by citizens. The Clean Water Act also supports citizen enforcement by explicit provisions authorizing citizen judicial enforcement actions (citizen suits). In the Netherlands, the Wet Verontreiniging Oppervlaktewateren (WVO) (Surface Water Pollution Act) has not succeeded in generating this information routinely and citizens have been correspondingly less successful in their enforcement efforts.
2 THE STATUTORY REGIMES
For the discussion that follows, it is useful to begin with a short description of the two laws in question, the U.S. Clean Water Act and the Dutch Wet Verontreiniging Oppervlaktewateren (Surface Waters Pollution Act).
2.1 The U.S. Clean Water Act
The Clean Water Act takes as its starting point the prohibition of any discharge of a pollutant from a point source (a pipe) into the (surface) waters of the United States except in accordance with a permit2. The permits set limits on the kind and quantity of pollutants which may be discharged into the water and in addition require sampling, monitoring and reporting on a regular basis. Reporting takes place primarily via Discharge Monitoring Reports (DMRs) which are usually filed each month by the permit holder.
Failure to comply with the terms of the permit in any respect gives rise to strict liability for a violation. Violations may be enforced by the government or by citizens. The government may enforce administratively for lesser violations or judicially for serious violations. Citizens may enforce judicially in the absence of governmental action. Since there are many possible cases which may be brought, citizen enforcement acts as a useful supplement to governmental prosecutorial resources. The results achieved by citizen suits also encourage more energetic prosecution by the government.
Proof of harm to the waters, the aquatic life, or damages to individual interests need not be shown. It needs merely be shown that the permit limit has been violated. Since the law requires the discharger to report what it has discharged and since these reports may be obtained by the citizen, violations can be easily identified, documented, and proven in court.
Sanctions are twofold in nature. The law authorizes the court (or administrative agency) to impose penalties of up to $25,000 per day of violation and, secondly, to impose injunctive relief. Injunctive relieve is a broad power of the court to command the defendant to perform a specified act or to meet the specific requirements of the law. Thus, a court may order changes in the operation or staffing of a plant, set schedules for construction of pollution control devices, or order other changes or actions. The court retains the power to impose fines for the defendant's failure to obey such court orders.
2.2 Wet Verontreiniging Oppervlaktewateren (WVO)
The WVO or Surface Water Pollution Act similarly takes as its starting point the prohibition of the discharge of wastes into the surface water without a permit3. Among the differences with the Clean Water Act, however, are that permits tend to be less comprehensive, covering fewer pollutants and contain few, if any, sampling and monitoring requirements and minimal reporting obligations. Of particular importance for enforcement have been the absence of strict liability for violations and strong sanction provisions. There is of course no citizen suit provision as this is unknown in Dutch environmental law. This is not to say citizen action is unknown in Dutch law. The administrative law system offers considerable opportunities for action against governmental authorities. Civil law actions against polluters are also possible, though rare4.
3 IDENTIFICATION OF VIOLATIONS BY CITIZENS
The starting point of citizen enforcement activity is determining whether there is polluting activity which warrants enforcement. The question of whether citizens can identify violations can also be asked another way, however. Is it possible to know whether a discharger is complying with his permit?
3.1 Identification of Violations under the Clean Water Act
The Clean Water Act makes identification of violations by citizens (and equally by government authorities) a simple matter, because each discharger's permit and discharge monitoring reports (DMRs) are on file with the designated government authorities. Because permits and DMRs are public documents, the interested citizen can readily obtain them. Citizen groups have thus been able to investigate, for example, the dischargers in a particular industry, all major dischargers in a state, or all dischargers to a particular water body.
The review of a DMR is also simple. Most DMRs consist of a few pages of orderly columns of figures reporting the measured amount or concentration of the pollutants covered by the permit in accordance with the sampling requirements of the permit (e.g. continuous sampling, daily, twice weekly). The values reported on the DMR need only be compared with the standards set by the permit to determine if there has been a violation. It is a matter of a few minutes work to review a DMR and identify a violation.
3.2 Identification of Violations under the WVO
In the Netherlands, in contrast, this paper record is not available. WVO permits are public documents, so if they do exist, citizens can obtain them5. The initial problem is that they often do not exist. Although the law requires all dischargers to have a permit, the issuing authorities continue to have a backlog6. Certain industry sectors and many smaller enterprises still lack WVO permits. Environmental organizations recently successfully brought an action to force the issuance of WVO permits for the heavily-polluting glastuinbouw industry (greenhouse growers of flowers and vegetables)7.
Even where permits exist, identifying violations may not be easy. One reason is that the permits often contain outdated limits which the permit holder can meet without difficulty8. WVO permits are not generally issued for a definite term as Clean Water Act permits are (5 years). Moreover, numerous businesses hold so-called historical permits which reflect lenient grandfathered standards pre-dating the WVO9. Identification of violations of these permits is thus not really the issue. Permit conditions are being met but the permits are not protecting water quality.
The WVO permits also seldom require reporting as detailed and informative as DMRs. Even the information that is available is often not in easily digestible form10. The government recently conceded to environmental organizations investigating the discharges of major industrial installations in Rotterdam harbor that it lacked the personnel and technical capacity to review the information it receives from these polluters11. In any event, the data the government assembles is often not in a form that allows for rapid review and easy understanding.
One possible explanation for the lesser reliance on reporting by the discharger itself relates to the legal status of the information. Where the responsible government authority has evidence of a violation, it can refer the matter to the public prosecutor12. The prosecutor then investigates further and may elect to commence proceedings against the violator. These proceedings are criminal in nature and information provided by the discharger itself can not, as a rule, be used against it. This is a protection analogous to the protection against self-incrimination in American law. Whether as a result of this rule or not, in practice it is the government that does most of the sampling itself. A recent development of note is the acceptance of samples collected by environmental organizations as evidence in prosecutions for WVO violations13.
WVO permits however show a recent trend increasing the SMR requirements14. It is obviously not optimal if the system does not allow even government oversight to function properly. Obviously, citizen enforcement in such circumstances is not likely to be possible, let stand effective. The consequences for citizen enforcement are considerable. Instead of going to an office of a public authority in order to examine a particular file, citizen's groups are forced to extreme lengths to gather information, including literally taking to the water itself.
Citizen's groups have investigated dischargers they suspect to be violating the law by undertaking their own data collection efforts. Using their own boats and equipment, environmental organizations have collected samples directly from dischargers' pipes15. Finding and gaining access to these pipes is not always possible, however. Even if it can be done, the process is an expensive, time-consuming, and uncertain one.
There is thus a major contrast in the ability of citizens to identify violations under the two legal regimes. Under the Clean Water Act, a simple administrative check is sufficient. In the Netherlands, citizens have to begin by raising the money to finance their own investigation, including obtaining the necessary equipment to sample with scientific accuracy in order to begin the process of identifying a violator.
4 INFORMATION IN USABLE FORM
A second precondition for effective enforcement, either by citizens or by government authorities, is ready access to the relevant sort of information. In the case of a water polluter, that information is the data which will allow the enforcer to show that a violation of the law has taken place.
4.1 Information Generated under the Clean Water Act
Under the Clean Water Act, the discharge permit specifies extensive reporting of exactly the kind of information necessary to determine whether a violation has taken place. The permit lists a number of pollutants and the concentration values or other limitations which apply. In addition, and no less important, the permit specifies the frequency of monitoring required, and the nature of sampling which must take place. Thus, for example, pH must be measured continuously and not fall below a stated minimum nor exceed a stated maximum value. Solids must be measured on 20 separate days per month to allow calculation of a monthly average but there is also a daily maximum value. The law treats a failure to comply with any of the sampling, monitoring and reporting requirements on an equal footing with failure to comply with a discharge limit for a pollutant. Both are violations of the permit, and subject to the same sanctions16.
4.2 Information Shortcomings under the WVO
Water quality permits in the Netherlands are much less specific. The WVO authorizes SMR requirements but the permits generally do not impose sufficient requirements to allow a clear picture of a discharger's activities to emerge17. Thus, for example, aggregate information on total discharges over a year can be quite useless for pinpointing violations of a standard at any particular time. Such information is generally not suitable to show harm to water quality, since water quality damage is usually directly related to the concentration of a given pollutant at a particular time. If a yearly average is reported, no one can be sure whether the excessive discharge of pollutants took place at a time of high or low stream flow, during the breeding season of a vulnerable species and so forth.
In short, properly formulated SMR requirements are just as essential as standards for the pollutants themselves.
There is a further complication with the ultimate enforcement of a violation using information generated under the law. Under the Clean Water Act, the DMR is a defendant's own document, signed by the discharger itself. In a legal proceeding, proving a violation of a permit condition is simple. The defendant's DMR, previously filed with the responsible public body, is its admission that a discharge with the stated value took place. Moreover the Clean Water Act does not require proof of harm to water quality in order to establish a violation of the law. A violation is established by proof that the permit limit was exceeded. This is exactly the information that the DMR can incontrovertibly provide.
In the Netherlands, in order to make a showing of a violation stick, a citizen enforcer would have to show that its sampling was accurate and representative, as well as demonstrating the water quality impact resulting from the violation. Defendants are thereby put in a position of being able to raise all sorts of arguments to discredit the citizen's work, such as the inaccuracy of the sampling, that it was not representative, that a laboratory error was involved, or that the excellence can be explained by any one of a number of other factors. Furthermore, the defendant can argue that the discharge did not come from its plant or that it did not cause harm to the water. Obviously, with this long list of factors upon which to base arguments, the likelihood that the citizen will succeed in proving a violation is considerably reduced.
5 ACCESS TO INFORMATION
An additional crucial precondition for the success of citizen enforcement is the citizen's access to information.
5.1 Access to Information Generated under the Clean Water Act
Under the Clean Water Act the DMR is a public record. Citizen's access to public records and documents are guaranteed by freedom of information law. Dischargers routinely file DMRs and access to these documents is so routine that most public authorities do not even require a formal freedom of information act request from citizens wishing to review these records.
5.2 Access to Information Generated under the WVO
In the Netherlands, access to these public records is not routine. The Netherlands does have a form of freedom of information law, the Wet Openbaarheid van Bestuur (Wob) or Open Administration Act18. Access to information under the WVO is, however, regulated by the Wet algemene bepalingen milieuhygiëne (Environmental Protection (General Provisions) Act) (WABM). The WABM provides that publicly-held records related to environmental permits are, as a general rule, accessible to the public19. There are however broad loopholes in the law. Particularly significant in this context is the confidentiality exception. A business entity can, if it so chooses, designate information it provides to the government as confidential business information20. Information so designated may not be released to the public. It is well-nigh impossible to challenge the designation of information as confidential. The exception in the law leaves the regulated in the position of deciding what information the public will see, a decision which is not open to public scrutiny or challenge.
In addition, dossiers referred to the public prosecutor are also not public. Pending a decision whether to proceed with prosecution - a decision that can take months or longer - citizen access to the information is stymied.
Citizen experience with requests for information also reveal certain practical problems. Their requests are not treated as routine and frequently encounter administrative reluctance to process them. Officials are also cautious about opening files and releasing information in part out of fear of releasing confidential information and anxiety about disturbing good relations with the business that supplied the information21. It is clear that the system still emphasizes closeness more than openness.
In neighboring Belgium, where the situation is, if anything, even worse, citizen enforcement efforts strand at an even earlier point, since in Belgium until recently one was not even entitled to know if a discharger held a permit, much less what it contained in the way of standards.
This difficulty with access to the relevant information raises a further unnecessary barrier to citizen enforcement.
6 CONDITIONS FOR CITIZEN ENFORCEMENT
There are of course a number of other preconditions for citizen enforcement to take place. These are beyond the scope of extensive discussion here. A comment about access to the courts is however in order.
The standing of the citizen to bring an action must not be in serious question. Legal action must not be prohibitively expensive. Citizens must not face having to pay the costs of the other side's defense if the citizen's action is unsuccessful.
Under the Clean Water Act, citizen action is specifically encouraged by express provision of the law. Moreover, because a strict liability standard applies, the chance of success is extremely high. As described above, violations are readily identified and proven. The risk of losing a citizen suit and therefore the risk of having to pay the costs of the winning party is small. The Clean Water Act also provides that citizens can recover their attorney's fees in the event they are successful.
In the Netherlands, the notorious American readiness to settle differences before a judge is absent. There is no citizen suit provision in the WVO. Moreover, there remains a residual antipathy in the judiciary to citizen action. This is reflected in the close scrutiny given the question of standing despite established jurisprudence acknowledging citizen interest in environmental matters as legally sufficient to support judicial action.
Equally significant is the substantially smaller chance of success in proving one's claims. Going to court on the basis of your own water samples is a far less secure way of proceeding than to rely on a defendant's own documents containing signed statements of violations of permit standards. Moreover, should the citizen action prove unsuccessful, the costs in civil actions (an item which is less than actual attorney's fees) can mount to thousands or ten of thousands of guilders - amounts which environmental organizations can rarely if ever, afford to lose. Administrative proceedings by contrast can be prosecuted for only nominal costs.
Proceedings under the WVO are also made more extended, complicated, and therefore expensive by the need to show harm to water quality. Under the Clean Water Act, the permit limits are deemed to have been established at a level appropriate to protect water quality. Harm to water quality is relevant only to the penalty stage and not the liability stage of the action.
Another important aspect encouraging citizen enforcement is the chance of a satisfactory result. The court must be in a position to correct the problem through financial or other means. Under the Clean Water Act, significant penalties of up to $25,000 per day of violation can be imposed. In addition the court has injunctive power, that is: the court can order a polluter to take specific steps to come into compliance by a specific day.
In the Netherlands this is less likely. The courts lack authority to impose significant penalties and their injunctive powers are also less extensive and less extensively used.
7 RELATION TO GOVERNMENT ENFORCEMENT
Citizen enforcement works best where it is simple and inexpensive. The preceding discussion has focused on factors that make citizen enforcement possible and effective. If a citizen is in a position to identify violations, he is in a position to act.
The Clean Water Act has demonstrated that a system of this type is possible and workable. Over the past decade, citizens have initiated hundreds of legal actions against permit holders for violations of the Clean Water Act. These actions have been brought against a broad spectrum of polluters including large industrial installations such as steel mills, municipal authorities operating waste water treatment plants, and smaller enterprises whose discharges have serious water quality impacts. These actions have resulted in substantial penalties for non-compliance and court orders to take the necessary steps to come into compliance. In addition, as the next section will discuss, citizen enforcement has had an impact on government enforcement activities.
In the Netherlands, citizen enforcement efforts have been hampered by difficulties in obtaining and making use of information about violations. Citizen enforcement action has been correspondingly limited as the following sections will discuss.
7.1 Spur
One of the functions of citizen enforcement is to spur, to provoke, to encourage government enforcement to take place.
The Clean Water Act to this end contains a notice provision requiring citizens intending to file suit against a polluter, to give the government sixty days notice of their intent to file suit and to bring to the attention of the government the violations at issue22. This notice provision gives the government an opportunity to act. If the government files suit within the sixty day period, the citizen action is foreclosed. If the citizen suit period passes without the government filing, and citizens files a law suit, the government may always intervene as a party. Government right of intervention is unlimited. Even at the conclusion of the case the government may step in to review the settlement terms agreed to by the citizen enforcer and the defendant.
Experience in the US with the Clean Water Act's notice provision has shown that it is effective in bringing to the government's attention the violations concerned and government enforcement has on many occasions resulted.
Government enforcement has also on many occasions not followed the notice given by citizens in which case citizens have been free to pursue the action themselves.
In the Netherlands there is no such formal procedure. Citizens may bring to the government's attention suspected violations by any means available. In general, environmental groups, aware that the possibility for direct enforcement action is limited, have followed the route of urging government action23. The water quality sampling by environmental organizations has also served this purpose by calling attention to a water quality problem and calling for further government action. Given the dominant overlegcultuur (discussion culture), the government generally responds by entering into discussions with the dischargers involved24. There is a general reluctance to pursue judicial remedies. If the competent authority fails to act, or act satisfactorily, citizens can bring an administrative action to compel a more forceful response.
The Netherlands is situated at the mouth of the Rhine and other major rivers including the Maas and the Schelde which flow through Belgium. Efforts to improve water quality here are therefore to a considerable extent dependant on actions taken upstream. The Belgian authorities have however been notoriously lax in controlling water pollution from industrial sources and have not constructed adequate facilities for treatment of domestic waste. Brussels, to cite the most egregious example, discharges untreated sewage into the waters.
Environmental organizations in the Netherlands have for years without success urged the Dutch government to tackle this transboundary problem in conjunction with the Belgian authorities. Improvements have been slow or non-existent. With Belgian polluters of international water courses, the spur has not worked. Despite repeated pleas by citizens and environmental organizations and the evidence they have gathered, action against Belgium water polluters via the Dutch government has not taken place. Environmental organizations have accordingly begun to challenge Belgian polluters in the Dutch courts, thus far without direct success25.
Citizen enforcement can be an effective spur if the government knows that there is a real possibility of citizen action. The US experience in this respect is instructive. In the first half of the 1980's citizen enforcement activity was considerable. In the latter half of the 1980's, partly as a result of this increased citizen's enforcement, the US government also began enforcing much more than it had previously. The government knew that the law provided and the practice had borne out that following failure of the government to initiate a judicial action a citizen suit would follow.
In the Netherlands, in contrast, the possibility of a citizen's legal action following a complaint, is much less likely and may partly explain why Dutch governmental authorities tend to respond to citizen complaints of water pollution violations by entering into further discussions with the polluter as opposed to taking legal action.
In the case of the Belgian water polluters, the Dutch government has been negotiating the so-called 'water treaties' with the Belgian government for twenty years or so without notable progress.
7.2 Supplement to government enforcement
As anyone concerned with environmental law and enforcement knows, attempting to regulate and to keep track of the compliance with environmental laws on the part of industries is an enormous task. In the US the number of Clean Water Act permit holders is in the tens of thousands. It is simply impossible, even under the best of circumstances, for government to do everything. Citizen enforcement is therefore a useful supplement to government resources. Citizen enforcement strengthens the government's reach and can also reinforce the government's power to the extent that a polluter or a potential polluter will undertake efforts to comply with the law because it knows that it faces two possible enforcers: the government and citizens.
In the Netherlands, in contrast, citizen enforcement is difficult and therefore rare: the government must do it virtually all.
The violator knows that if it can avoid government enforcement, e.g. by prolonging discussions, or promising improvements, or threatening to close its plant, it faces very little risk of enforcement by citizens' groups.
7.3 Substitute for government enforcement
Citizen enforcement is also useful as a substitute for government enforcement when the government, for political or policy reasons, chooses not to enforce. Under the Clean Water Act in the early eighties, government's failure to act was recognized by citizens and environmental organizations and they stepped into the gap left in enforcement. Citizen enforcement in such an instance serves the interest of environmental policy and fairness.
The vast majority of businesses have invested in the equipment and manpower and their training needed to meet the law's requirements. Their competitors who have not, have an unfair advantage if they do not incur these costs and are not penalized for their failure to do so.
8 GEDOOGBELEID: THE POLICY OF CONDONING VIOLATIONS
No discussion of citizen enforcement in the Netherlands would be complete without mentioning the official government policy which sanctions non-compliance with the law. This policy, known as 'gedoogbeleid', allows violators of the law to escape prosecution. 'Gedoogbeleid' or the policy of condoning violations, goes beyond prosecutorial discretion. It results in an official exception being made to the law's requirements.
In the past, this exception was generally passive, that is the government simply did nothing to enforce against violations it knew of. Two years ago, the Ministers of Environment and Water Management pledged before Parliament to restrict the practice26. The condoning of violations still occurs but, in theory, subject to the conditions spelled out in the Ministers' pledge. The condoning policy is now active in the sense that it is reflected in an official written document from the relevant competent authority to the violator in question. This document promises to forego enforcement for a transitional period after which the violator is expected to come into compliance.
The practice continues, however. The condoning of violations can vitiate citizen enforcement entirely. A recent example of this is an action brought by the Stichting Natuur en Milieu, against one of the Netherlands' two nuclear power installations for failure to have a permit based on appropriate consideration of safety factors. Immediately following a high court decision in favor of the environmental organizations ruling that the reactor was operating without the appropriate permit, the Dutch Minister of Economic Affairs, with responsibility for energy, announced that he was prepared to promptly issue a permit allowing the installation to continue operation.
9 ENFORCEMENT IN OTHER CONTEXTS
Thus far we have considered enforcement under the traditional end-of-pipe type command-and-control regimes. Before concluding, it is worthwhile to take a look at two other aspects where citizen enforcement can play a role in the prevention of environmental damage.
9.1 Environmental impact analysis
The citizen role in forcing environmental impact analysis to be performed and performed properly, has been significant. Again, information is crucial. Perhaps the most important information is the timely announcement of consideration of a project. Publication is therefore of essential importance.
By publication is meant an announcement in, at a minimum, a journal of wide circulation in the affected locality. The announcement should describe the project sufficiently to allow the reader to get an idea of its scope. Publication should be followed by the right of the public to examine and comment on the project plans as well as on the environmental analysis performed for the project.
The citizen right to challenge environmental impact statements for inadequacy, or the failure to perform them altogether, is a powerful incentive to government and project sponsors to get it right to begin with (and to consider public comments), lest they be sent back to the drawing board with the attendant loss of time and the costs that that entails.
This has been effective. The US National Environmental Policy Act, the first statutory authority for environmental impact analysis, is of broad application, concentrating on possibly significant effects on the environment. In the US, an entire industry has grown up around the preparation of environmental impact analysis. The growth of environmental awareness in public authorities and among project developers has also been significant and is consistent with the purposes of the legislation.
In the Netherlands, the application of environmental impact analysis requirements has been more limited. Only certain categories of projects are subject to the law. This results in a less extensive look and also a less extensive role for citizens in ensuring that potentially environmentally harmful projects are screened for these effects at an early and meaningful moment. Still, the number of environmental analyses is steadily on the increase with the corresponding development of increasing public attention to potential impacts.
9.2 Covenants
There is a trend in environmental policy-making to move away from the traditional command-and-control regulatory regimes toward greater reliance on voluntary agreements between government and industry to achieve environmental compliance.
The use of such covenants as an instrument of environmental policy is for a number of reasons, a disturbing development.
With respect to citizen enforcement, it is particularly serious in that the use of covenants to replace statutory requirements eliminates the possibility of citizen enforcement.
A covenant is an agreement in the nature of a contract between the government and private parties. As a general rule, third party rights are not protected, or put in another way, persons not party to the contract have no right to enforce its terms. If the contract is breached by industry, and the government chooses not to enforce against this breach, there is no remedy for the citizens for the government's failure to act.
Add to this the non-binding nature of many such agreements, and it is easy to see why environmental groups have objected to the practice of carrying out environmental policy by means of voluntary agreements with industry.
10 DIRECTIONS FOR THE FUTURE: THE EUROPEAN DIMENSION
10.1 Enforcement across the Disappearing Border
In Europe, of course, transboundary pollution effects are a major problem. This is especially true in the Netherlands, which sits at the mouth the Rhine and other major rivers, and between the industrial centers of England and Germany. Transboundary pollution requires transnational solutions and these have been sought primarily in the framework of the European Community (EC). Arguably, the difficulties citizens have encountered in transnational enforcement should vanish with the disappearance of the borders between EC countries with the completion of the Internal Market.
EC environmental legislation can have major implications for enforcement across national boundaries. Following a decision by the European Court of Justice, citizens may now bring actions in the place where the environmental harm occurs (i.e. their home country) against polluters operating in another state. This decision has paved the way for actions such as those noted above against the Belgian water polluters.27
Further implications for the standing rules under the internal market could also profitably be investigated. At least where EC-derived environmental rules are at issue, standing should be granted to all citizens of any member state who can show the requisite interest in the subject matter.
A further problem is with access to information. Whatever rights a citizen of a particular state has to obtain public records in his own country, he is generally not able to extend these rights to obtain information in another country. This may change with the coming into force of the EC's directive on freedom of access to environmental information at the end of this year28.
Disregard of the citizen in transnational matters is reflected also in the EC's environmental impact assessment directive which requires notification of governmental authorities in another member state of the possible construction of a project with environmental implications29. No equivalent notice is given to citizens across the border.
10.2 Environmental Inspectorates
Much discussion in the European context on future directions in environmental enforcement has centered recently on the establishment and strengthening of inspectorate services at EC and national levels.
It is the view here that such efforts are misguided. On-site inspection can usefully supplement but not substitute for administrative oversight. It is prohibitively expensive by comparison with the alternatives available. The better method is to see to it that the appropriate paper record is created as described above. Such a paper record can be administratively controlled, and is in a final analysis, a more effective compliance mechanism in that enforcement on the basis of the administrative record is simple and sure.
11 CONCLUSION
From the point of view of government and industry as well as that of the citizen enforcer, what is needed is a regulatory system that, wherever possible, licenses the polluting activities of individual enterprises (public and private) and specifies what they can release into the environment. Equally important, these permits must specify sampling, monitoring and reporting requirements which result in data that provides a complete and ongoing picture of the polluting activities to the polluter, to the regulating governmental authority, and to the interested citizen.
Only then will government be in a position to perform its oversight and control functions efficiently and effectively. And if this information is available to the citizen, he will be in a position to aid in these efforts as a watchdog and helping hand for government enforcement efforts.
ENDNOTES/REFERENCES
This paper draws on the author's first-hand experience with these matters. In the United States from 1985-89, he represented environmental organizations in citizen suits under the Clean Water Act against industrial and municipal polluters. In the Netherlands, the Stichting Natuur en Milieu has been actively involved in enforcement against water polluters as well as efforts to change the law to strengthen its enforcement provisions.
33 U.S.C. sections 1251 et seq.; section 1311.
Wet van 13 December 1969, Stb. 536; Art. 1(1).
On the enforcement rights of citizens, see generally Jurgens, V., Langenhoff, V. and Robesin, R., Actieboek Natuur en Milieu, W.E.J. Tjeenk Willink, Zwolle (2nd ed. 1989).
Wet algemene bepalingen milieuhygiene (Environmental Protection (General Provisions) Act) (WABM), Wet van 13 juni 1979, Stb. 442, Art. 57.
Teunissen, R. and Groen, M. (ed.), WVO afdoende of afgedaan?: Een onderzoek naar het functioneren van de Wet Verontreiniging Oppervlaktewateren" (A Study of the Operation of the Surface Waters Pollution Act), Stichting Reinwater, Amsterdam, 1990, p.28.
See Uitspraak van de Voorzitter van de Afdeling Geschillen van Bestuur Raad van State, 8 April 1992, no. B 05.91.0126 (mr. Van Dijk).
See Teunissen, supra note 6, at 4.
See WVO, Art. 31(3); Teunissen, supra note 6, at 7.
Hoitink, J., de Kruyf, G. and Vis, M., Naar een verplicht milieuverslag. Biedt milieurapportage meer inzicht in milieuzorg door bedrijven? Onderzoek in Nederland en de Verenigde Staten. (Toward an environmental report requirement. Do environmental reports offer more insight into environmental care systems for industry? A study in the Netherlands and the United States.) Wetenschapswinkel rechten, Rijksuniversiteit Utrecht, 1991, p. 21.
Schmit, H., "Rijkswaterstaat heeft geen zicht op lozingen", in Trouw, June 19, 1991, reprinted in Hoitink, supra note 10, at 74.
See. e.g., Fangmann, H., Criminal Enforcement of Environmental Legislation, in International Enforcement Workshop, Proceedings, Vol. I, pp. 129-140 for a description of the role of the public prosecutor and Teunissen, supra note 6, at 29.
Personal communication, J. Rutteman, Stichting Reinwater, June 29, 1992.
Hoitink, supra note 10, at 44.
See, e.g., Teunissen, supra note 6, at 12-25.
33 U.S.C. section 1319.
Art. 1a; Hoitink, supra note 10, at 21; Teunissen, supra note 6, at 27-29.
Wet van 31 oktober 1991, Stb. 703.
Wabm, Art. 57.
Wabm, Art. 58.
Hoitink, supra note 10, at 21.
33 U.S.C. section 1365(b).
See Teunissen, supra note 6, at 30-33.
See Fangman, supra note 12, at 135; Teunissen, supra note 6, at 27.
See Stichting Reinwater v. N.V. Sopar, President rechtbank Middelburg, Nr. 24/1991, in 1991 Milieu en Recht at 357; and Stichting Reinwater v. Carcoke S.A., President rechtbank Middelburg, Nr. 82/1992.
See Tweede Kamer der Staten-Generaal, 21 137 nr. 26 (28 May 1990); 22 343 nr. 2 (10 October 1991).
See Rijnproces, Hoge Raad, 23 September 1988, in 1989 Milieu en Recht at 24.
Directive on Freedom of Access to Information on the Environment, 90/313/EEC, OJ L 158, June 23, 1990.
Directive on the Assessment of the effects of certain public and private projects on the environment, 85/337/EEC, OJ L 175, July 5, 1985.