ALTERNATIVE ORGANIZATIONAL STRUCTURES FOR A COMPLIANCE AND

ENFORCEMENT PROGRAM

 

WILLIAM M. EICHBAUM

 

Vice President, International Environmental Quality, World Wildlife Fund, Washington, D.C. USA

 

 

SUMMARY

 

This paper is about issues associated with the problem of organizing government institutions to carry out effective enforcement and compliance programs.  Compliance is essentially that condition when all legal requirements are met by a particular member of the regulated community.  Enforcement is the set of actions taken, primarily by government, to achieve compliance.  This paper is about organizing for enforcement.  It is not about how to do enforcement, or when to do enforcement, or the legal tools necessary to do enforcement.  Also, since government structures are widely variable from one country to another, the ideas in this paper are not meant to be absolutes.  Rather, they are meant to suggest broad answers to several organizational questions as the problem of organizing for enforcement is considered within the context of particular governance systems.

Finally, it must be remembered that enforcement is a strategic process designed to advance the environmental objectives of society.  It must be planned, resources allocated, preliminary actions taken, and follow up sustained --- often over long periods of time.  Proper organization for this endeavor is crucial to its long term success.

This paper provides a summary discussion of the primary objectives of an enforcement program and the qualities necessary to assure that the program achieves those objectives.  The paper then identifies and briefly discusses the basic functions of an enforcement program and sets forth several different approaches for organizing to accomplish those functions.  The paper discusses the success with which these approaches maximize achievement of the qualities and objectives of an enforcement program and also discusses several external factors which can influence these outcomes.

The observations and conclusions in this paper are largely based on the author's own experiences.  These include nearly twenty years of state and federal government work in enforcement related activities, including the creation of several new environmental enforcement organizations.  Recently, this experience has included consulting with several foreign governments and international organizations on enforcement matters.

 

1        OBJECTIVES AND QUALITIES OF AN ENFORCEMENT AND COMPLIANCE PROGRAM

 

1.1       Objectives for Enforcement

 

            There is great diversity in the subject matter of environmental regulatory programs and the strategies they embody to assure compliance with substantive requirements.  Thus, the subject matter can range across land, water, air, public health, and natural resource protection.  Similarly, techniques for protection can include a range of activities extending from economic incentives or disincentives, to permit conditions, to denial of the privilege to do business through revocation of permits.

Whatever the subject matter or the enforcement strategy, a reality of environmental governance is that there must be a base-line system for compliance and enforcement.  This base­line is established through the enactment of statutes which set norms of behavior and also establish mechanisms designed to assure compliance with those norms.  The mechanisms by which the norms (standards) of environmental behavior are established can be complex and subject to a confounding mixture of scientific opinion and public policy objectives.  In contrast, the purposes of the compliance and enforcement components of environmental protection programs are comparatively easy to define.  There are essentially four objectives for a compliance and enforcement program:

 

  1. Deter and persuade --- One of the most important purposes of an effective enforcement and compliance program is to affect the behavior of the regulated community through the imposition of sanctions.  There are multiple dimensions to this objective.  First, government seeks to assure that the object of the enforcement action does not violate the law in the future.  Second, government seeks to assure that others either voluntarily correct violations before they are discovered by government or achieve a high level of compliance, i.e., do not violate the law.  This deterrent function is vitally important simply because government will never have enough resources to actually take enforcement actions against a very high proportion of violators at any given moment in time; thus, voluntary compliance is crucial to successful protection of the environment.

 

2.      Correct non-compliant conditions --- Importantly, legal processes can be employed to seek administrative or judicial orders directing the cessation of environmental law violations and/or the correction of related adverse impacts.  In the United States legal system, the use of equitable relief mechanisms is an effective device to assure specific performance to protect the environment.  In addition, these mechanisms can, at least, assure that the actions of private parties which have a potential to damage the environment are restrained unless in conformance with applicable law.

 

3.      Punish violators --- While closely related to the deterrent function, punishment for violations of the law has its own independent purpose.  Simply stated, those who violate the law incur an obligation to society.  A violation of environmental law is usually not some abstract event but involves a direct or indirect reality or threat of harm to the environment or public health.  Punishment can have a variety of forms ranging from specific corrective actions, to monetary penalties, to actually serving a prison sentence.1  In general an enforcement and compliance program will reserve this objective for more serious violations.

 

4.      Create a norm of expected behavior --- An important function of enforcement is that the collected body of enforcement actions, taken over a period of time, define the level of behavior which is expected of the regulated community and the consequences when that level is not met.  In fact, this norm of expected behavior is an elaborated statement of the more general requirements that may be set forth in duly enacted laws.  This system of interpretation is not meant to be a mechanism for weakening statutory or regulatory requirements, but rather for filling in the blank spaces which these abstract words often leave.  In addition, to the extent that the enforcement process actually produces written interpretations of law and regulations, such as in a judicial decision, these have important precedential value and therefore serve as important guides for behavior.

 

A well designed compliance and enforcement program can achieve each of the foregoing objectives.  This is particularly important since they normally reinforce and complement each other.  However, the evolution of strategy over time will undoubtedly suggest reasons to emphasize one set of objectives over another given the particular status of the overall environmental protection program.  In summary, the bottom line expectation is that compliance and enforcement activities are carried out in order to maximize the rate of voluntary compliance by utilizing resources of an agency with maximum effectiveness.

 

1.2       Qualities Associated with a Successful Enforcement and Compliance Program

 

            There are several qualities which ought to be maximized through organizational (and other) decisions in order to help achieve the suggested objectives of an enforcement program.  Each of these is quite subjective and the specific steps which might be taken to achieve a particular quality might be quite different in one governance system as compared with another.  However, they do provide one useful checklist against which organizational decisions ought to be measured.

 

1.      Strategic --- Because enforcement actions cannot be brought against every violator, there must be a strategic design to the enforcement program.  For example, program managers must assess: which kinds of enforcement actions will maximize deterrence; what are the most important threats to the environment which need correction; and which legal remedies will be most effective.  The strategic use of scarce resources is essential to achieving the objectives of enforcement, especially that of deterrence and persuasion.

 

2.      Efficient --- The use of always scarce government resources must be efficient.  Wasted inspections, or laboratory tests, or endless conversations without results simply mean that fewer effective enforcement actions are taken.  Inefficient use of resources will tend to lower the volume of successful enforcement actions and therefore lower the rate of voluntary compliance.

 

3.      Swift --- Enforcement actions should be swift.  In essence, the time between discovering a violation and final imposition of the appropriate enforcement sanction must be made as short as possible through the rapid and effective deployment of the various enforcement elements.  Long delays diffuse the deterrent impact of enforcement both in the mind of the violator as well as in the minds of those who are similarly situated.

 

4.      Visible --- The hidden or invisible conduct of enforcement serves to defeat several of its most important objectives, namely, deterrence and the creation of a norm of behavior.  In addition, wide visibility for enforcement actions is one of the most important ways in which the public develops confidence that government agencies are responsibly and effectively carrying out environmental protection duties.  A vigorous enforcement program focused on major violators, communicated through the media, and endorsed by important political figures, strongly contributes to visibility.

 

5.      Fair --- The overall perception of an enforcement program must be that it is fair.  Fairness not only means that individual matters are handled within the norms of legal propriety, but, even more importantly, that over time similar violations are handled in essentially the same fashion.  For example, penalties for comparable violations ought to be equivalent.  Fairness also means that there must be enough resources within the environmental agency so that a reasonable number of actions can be taken within a given period of time.  This perception of fairness must be held by the regulated community in order to maximize the deterrent and persuasive effect of an enforcement action; otherwise, the perception of arbitrary enforcement does little to help mold norms of behavior.

Additionally, if an enforcement program which is strong is, at the same time, thought to be arbitrary and capricious by the regulated community or the public, then it is likely that the political support necessary to its continuance will evaporate.  In fact, to the degree that fair, but strong, enforcement creates the reality of a "level playing field" for the entire regulated community, then that can be a source of support for the program.  Increasingly, certainty or predictability is an attribute of environmental regulation which is highly valued by the regulated community.2

 

6.      Balanced --- It is axiomatic that an agency must have a sufficient level of resources before it is able to carry out the full range of its mandated responsibilities.  From an enforcement perspective, it is important that these resources be balanced in their distribution throughout the agency in order to form the full range of activities necessary to enforcement on a mutually supportive basis.  For example, it does little good to have a very large inspection force if available laboratory facilities cannot process samples in a fashion which produces timely results for enforcement actions. 3

 

Each of the foregoing qualities or attributes is somewhat subjective in nature.  There are no rigorous rules for assuring that a particular set of decisions will maximize achieving one or several of them.  However, organizational decisions can help an enforcement and compliance program achieve these qualities.  The last part of the following section discusses how this is so.

 

2          INSTITUTIONAL FUNCTIONS AND ORGANIZATIONAL STRUCTURES FOR AN ENFORCEMENT AND COMPLIANCE PROGRAM

 

2.1       Institutional Functions

 

            The following discussion sets forth a generalized set of functions which are the component parts, or basis, of an effective compliance and enforcement program.  It is possible that in some circumstances not every one of these needs to be present; however, experience suggests that the most effective programs will have the capacity to perform each function.  It is clear that there can be a great deal of variety in the specific design of a particular function in a given program setting.  Where these variations are important from an organizational perspective they are discussed in this section.  However, the purpose of the following discussion is not to proscribe that design but rather to suggest the role the function plays within the overall context of enforcement and compliance.  From an organizational perspective, it is important that each of these functions is mutually supportive and integrated one with another.

 

2.1.1    Clear and Applicable Standards of Conduct

 

            The regulated entity must be aware of the standard of conduct to which it is expected to adhere.  In general this standard of conduct is set forth as a set of qualitative or quantitative requirements applicable to the entity and designed to achieve a specific measure of environmental or public health protection.  There are a variety of mechanisms by which this can be achieved.  Individual facilities can be issued permits which contain discharge or emission limitations designed for the particular facility.  In the alternative, orders can be administratively issued which impose specific obligations.  Finally, standards of conduct can be imposed by statute or implementing regulation without further administrative action by an agency.  However, most often it is the permit, or equivalent document, containing standards developed by the technical staff of the environmental agency which will be the instrument which, when violated, sustains subsequent enforcement actions.

            To supplement this process of applying standards to particular entities, agency staff must often develop the technical basis for the standards, provide appropriate interpretation, and in some instances provide a range of technical or financial assistance.  These functions are essentially beyond the permit; however, they may often be necessary precursors to its issuance or helpful to assure compliance, especially in the case of smaller organizations.  As suggested below, while it is desirable that there is effective communication between the developers of permit requirements and the enforcement and compliance staff, it is not essential that these functions be actually integrated within the agency.

 

2.1.2       Inspection and Monitoring

 

               There are a variety of ways to determine that facilities are in compliance with the requirements set forth in permits or otherwise.  Generally speaking, these inspection and monitoring functions fall into two broad categories.  There are those which are carried out by the facility itself and those which are carried out by government.

 

 

 

In addition to facility inspection, the conduct of ambient environmental monitoring by government or others, such as citizens or academic organizations, can occasionally provide information which leads back to a source or facility which, through a violation of legal requirements, is causing some form of environmental degradation.

An often overlooked component of effective monitoring is the requirement for adequate laboratory facilities to analyze samples which are obtained during the inspection process.  Long delays, inaccurate results, and inability to analyze for important pollutants must be avoided.

 

2.1.3     Administrative Enforcement Authority

 

The hallmark of administrative enforcement action is that it can be initiated through the administrative action of the environmental agency.  That is, the issuance of an order or some similar action is sufficient to trigger enforcement action without the intrusion of external formal Judicial or other authorities.  While there are wide variations in the type of administrative enforcement actions which might be available in various legal systems, there are several characteristics which are desirable components of a given system.  Administrative enforcement should be able to take a variety of forms including: permit revocation or modification; issuance of administrative orders requiring specific performance; or actions imposing penalties.  Also, since the substantive objective of administrative law enforcement is importantly connected to the policy objectives of the environmental agency, the process, while it must be fair, should not be independent of the agency.

 

2.1.4      Judicial Enforcement Authority

 

Based on my experience, often the final arbiter of compliance with the requirements of environmental statutes will be the external judicial system, even if only in an oversight or review role.  However, in many national settings the more pro-active use of the judicial system appears to be a relatively under-used component of the enforcement system which is ready for development.  The nature of judicial practice within a particular country's national legal system is so variable that it would appear overly ambitious to offer particular principles in this paper.  There are, however, several judicial enforcement authorities which raise an important organizational issue.  The authorities relate to the following:

 

 

 

 

            In each of the above instances, successful use of the judicial authority will necessarily, depend upon careful coordination and utilization of resources.

 

2.1.5    Oversight

 

Oversight and evaluation allow the public and the regulated community to assure themselves that there are existing mechanisms which contribute to the achievement of effective and fair enforcement.  Oversight can be provided through a variety of approaches such as legislative hearings, judicial review of agency actions as indicated above, agency accountability to the national executive, and the media. 4 How these entities exercise their oversight functions can also be an important aspect by which the enforcement program achieves visibility.

It is always necessary to assure that oversight does not become a barrier to effective enforcement through inappropriate intrusion into agency operations or relations with the regulated community.

 

 

 

2.2       Organizational Options

 

            The purpose of the following discussion is to consider several options for organizing an enforcement and compliance program and to evaluate those options from the perspective of the issues which have been laid out in the foregoing discussion, that is, enforcement objectives and qualities and enforcement functions.  There are also some observations about options for overcoming the weaknesses of particular organizational models.

 

2.2.1    Initial Considerations

 

However, before entering into a detailed consideration of organizational models, it is useful to consider two larger organizational issues which are important to compliance and enforcement programs.  First is the question of the location of the environmental functions within the overall government.  Second is the question of the range of substantive environmental issues which ought to be included within the agency, whatever organizational model for the agency is followed.  Again, these two issues will be considered only from the perspective of enforcement objectives, qualities, and functions.

 

2.2.1.1    Location within the Executive

 

The essential locational question is addressed through two considerations: 1.) whether the environmental agency is at the ministerial level; and 2.) whether it is the part of some larger government organization, for example, a public works or public health agency.

There are a number of important factors which, when viewed from the perspective of effective enforcement, suggest that the environmental agency ought to be given ministerial or cabinet status.  First, effective enforcement requires a high degree of political commitment to the substance of environmental protection and the reality of enforcement.  Ministerial rank can be an important symbol of that commitment.  Second, again from a compliance perspective, other agencies of government are often the direct or indirect agents of environmental harm.  Cabinet status allows the head of the environmental agency to confront those other agencies from a position of equality.  Third, enhancing the status of an agency within government can often be a means of improving its political independence, and thus its will to carry out effective enforcement by allowing greater opportunity to develop a strong public constituency.  Finally, cabinet level agencies may often have greater success both within the executive branch of government and vis a vis the legislature in competing for the financial resources so essential to build effective enforcement capacity.  The United States is one of the few major countries where the environmental agency does not have cabinet status.  This issue became a significant part of the environmental debate between the two candidates for President during the 1988 election.  Subsequently, legislation was introduced into the Congress to elevate the agency but it has not yet been enacted into law.  Enforcement issues, as discussed above, have not been among the reasons for this failure.  It is also interesting to note that one of the apparent purposes behind the current evolution of environmental organization in the United Kingdom (combining water regulatory, the integrated inspectorate, and local waste authorities) is to establish a strong environmental protection agency at the cabinet level.

Many of the foregoing considerations also lead to the conclusion that it is rarely advantageous from an environmental perspective for environmental functions of government to be merged with relatively unrelated programs.  In fact, such integration can often serve the cause of enforcement badly because the nature of the work of the other agency (for example, public health) is not primarily regulatory in nature.  In some circumstances, such as for small governments where consideration of economies of scale may be a factor, it may be useful to consider such combinations.  For example, an environmental agency and a public health agency could usefully be combined in order to share common laboratory facilities which it might not be possible to otherwise duplicate.  Of course, this same sharing activity could take place through agreement between two independent agencies.

 

2.2.1.2    Range of substantive issues

 

Consideration of the breadth of substantive issues which ought to be placed within an environmental protection agency is a complex matter, and its resolution will depend upon both the prior experiences about government organization and the expectations of various interests in society.  As a theoretical proposition, two thoughts about the nature of environmental programs are useful.  The first has to do with the way programs operate.  Many programs can be characterized as largely management in nature; that is, the programmatic responsibility to manage a resource which is in the public domain such as parkland or wildlife.  Other programs are largely regulatory in nature.  That is, regulatory systems are developed for directing activity which may affect adversely a public value, such as the discharge of pollutants to a water body.  In fact, these distinctions are often very imprecise because, for example, successful management may require regulation and vice versa.  However, when this question is viewed from the enforcement perspective, it then becomes apparent that at least those environmental programs which are primarily regulatory in nature, and therefore have a strong enforcement potential, ought to be within the same agency.  A second basis for distinguishing among programs is whether they primarily relate to problems associated with pollution discharged to the environment or to the protection of natural resources.  Again, those programs which relate primarily to pollutants will tend to have a stronger regulatory component and therefore ought to be organized together.5 From the enforcement perspective, unifying the organization of those regulatory programs relating to pollutants also makes sense because it allows for a more integrated and therefore efficient use of enforcement resources.  For example, an inspection of a manufacturing facility which can examine the full range of possible pollutants whether discharged to the air, water, or land will be Much more efficient and effective than would a series of fragmentary inspections focused on particular media, water, or only a narrow class of pollutants, for example toxics.

This discussion suggests that the following general organizational decisions would maximize the effectiveness of an environmental compliance and enforcement program.

 

 

 

 

2.2.2    The Three Organizational Options

 

Initial examination of the environmental organizations of a number of countries would suggest that there is a bewildering range of possibilities.  While the variety is, in fact, extensive, there are two major options which can be thought of as functionally defining the extreme ends of a spectrum across which can be arrayed most of the various existing organizations.  At one end of the spectrum is the environmental agency which contains essentially all of the management functions6 as well as all of the enforcement functions (in the following discussion the term "unitary agency" will be used to describe this option).  At the other end of the spectrum is the organizational structure where the enforcement and compliance functions, including compliance inspection activities, are located in an organizational unit completely separate from the environmental management agency, such as within the state law enforcement agency (this will be referred to as the "divided agency").  A third option, located in the mid-range of the spectrum, is that where essentially all environmental management functions, including enforcement related inspections, together with the lawyers necessary to carry out administrative enforcement are located within the environmental management agency while the judicial enforcement functions are within the law enforcement agency (the "traditional option").7

 

2.2.2.1 The unitary agency

 

The unitary agency option offers a series of distinct advantages which are obviously derived from the fact that all enforcement, compliance, and regulatory functions are located within one agency and managed under the direction of a common authority.  These functions include permit writing, inspection, and the conduct of administrative and judicial law enforcement.  A notable example of this option is found in the Department of Environmental Resources of the Commonwealth of Pennsylvania.  This agency was created in 1970 and, pursuant to specific statutory language, embodies all functions relating to enforcement and compliance activities.  This agency also exists at the cabinet level of government and has within its authorities the full range of environmental pollution and resource management functions.

The advantages of the unitary agency include the following:

 

1.      In principle, all of the resources of the agency (particularly those devoted to enforcement and compliance) are directed at the same set of strategic objectives.  Directing resources according to a common set of objectives strengthens the likelihood that a coherent and persuasive environmental strategy will be achieved.

 

  1. A further advantage of deploying the management and enforcement resources pursuant to a common strategy is that it gives a clearer external picture to both the regulated community and the general public, thus advancing the sense of a "level playing field" and public confidence.

 

3.      Communication opportunities between different functions which must contribute to effective enforcement are potentially maximized.  For example, effective enforcement is often dependent on permits which are written in a way which facilitates enforcement.  Understanding the nuances of this issue and assuring that appropriate permits are written is maximized if the permit writers, field inspectors and enforcement staff are in the same agency.

 

4.      A unitary agency will often have relatively significant resources available and can therefore have greater flexibility in directing these resources at the most crucial problems, including the needs of enforcement.  Conversely, resources within the agency will not be diverted to non environmental issues.

 

5.      The results which are agreed to in negotiated settlements of enforcement actions are often critical to defining the agency's strategic and tactical objectives.  The unitary agency can assure that negotiated settlements embody principles which are supportive of those objectives and, even more importantly. that results are not reached which are in conflict.

 

6.      In an effective enforcement program, the relationships between its various functions needs to be carefully coordinated.  Thus, agency administrative actions ought to be considered in the light of the bearing which they will have on subsequent possible criminal enforcement actions or lawsuits seeking specific performance.  Designing and carrying out this complicated set of relationships is most effective when the task is not divided between two agencies.

 

7.      A unitary agency can have a well developed capacity to bring additional resources, such as technical or financial assistance, to help regulated entities with limited means achieve compliance.

 

2.2.2.2   The divided agency model

 

In the divided agency model, the environmental management functions are located in one agency, while activities focused especially on enforcement and compliance are carried out in another agency.  As a theoretical proposition this option could include all enforcement related inspection activities in the law enforcement agency.  This would be quite analogous to the investigative functions associated with traditional criminal law being located in the law enforcement agency, as is the case with the Federal Bureau of Investigation in the U. S. Department of Justice.  In fact, it does not appear that this approach is followed with respect to environmental enforcement.  There are some examples, such as the Attorney General's office in New York State, where there are investigative resources in the law enforcement agency but these are supplemental to the extensive inspection resources located in the environmental agency.  Accordingly, typically the law enforcement agency will exercise administrative and judicial law enforcement functions through a staff predominantly composed of lawyers and will depend on the environmental management agency for most supporting services such as inspection or laboratory work.  However, as suggested, a specialized investigatory staff may be ideally associated with the law enforcement agency.  Advantages of this model are:

1.      Environmental law enforcement will be likely to be associated with more of the attributes and tools of routine law enforcement.  Thus, for example, the use of criminal prosecutions may tend to be more common where appropriate or specialized surveillance techniques may be more readily available.

 

  1. In many settings, the government's law enforcement functions, as carried out by a high level prosecutorial office, are relatively insulated from political or other inappropriate influence, and therefore the possibilities of an effective environmental enforcement program may be maximized.

 

3.      The state's law enforcement officials may have more ready access to the judicial system and therefore to the extent that environmental enforcement is a priority for the law agency, those cases may be more likely to advance rapidly within the judicial setting.

 

  1. The law enforcement agency can serve as a coordinating mechanism for bringing to bear in the enforcement process resources of government which might not be readily available to the environmental agency.  For example, government information in the securities or tax area might be used in coordination with environmental data to advance compliance actions.

 

2.2.2.3 The traditional option

 

The traditional option locates all environmental management functions, together with the staff (which may or may not include lawyers, depending upon the nature of the administrative law system) necessary to carry out any relevant administrative enforcement activities within one agency.  This option essentially reserves to the law enforcement agency the authority to carry out judicial enforcement.  As with the divided agency option, the lawyers in the law enforcement agency are generally dependent on the environmental agency staff for carrying out all of the functions relating to determining standards of conduct, issuing permits, and inspection activities.  However, they will have the capacity to utilize the resources peculiarly associated with law enforcement activities.  The relationship between the U. S. Environmental Protection Agency and the Department of Justice is typical of this traditional approach.

This option carries with it most of the advantages of the unitary option except that in the case of judicial enforcement the problems of coordination between two distinct agencies become paramount.  These problems can result in slow and somewhat inefficient use of the judicial system and perhaps some divergence in strategy between the two agencies.  One of the most notable examples of this divergence occurred when the Attorney General of a state in the United States sued the environmental agency in order to prevent it from taking certain enforcement actions.

 

2.2.3       Supplemental Organizational Strategies

 

               Over the years there have been attempts to develop new organizational tools which address the problem of effective enforcement by adding new elements to the approaches set forth in the foregoing discussion.  One of these is the so-called "Environmental Strike Force" and the other is the recently developed idea of the integrated inspectorate.

 

The Environmental Strike Force

 

The environmental strike force is an idea which builds on the concept of law enforcement strike forces which have been used in other regulatory areas, such as organized crime and drug enforcement.  The core of the idea is the establishment of a small, independent unit primarily made up of lawyers clothed with substantial authority to carry out the full range of environmental investigation and enforcement functions --- a unit which can act quickly and with a high degree of publicity.  The creation of such units in states such as Pennsylvania and California during the early nineteen-seventies reflected a growing social and political commitment to enforce environmental statutes.

The creation of a strike force often results from the action of a senior level political figure, and, as a result, a strike force rarely outlasts the tenure of that individual.  It also usually is highly dependent on the field and laboratory investigative resources of the traditional agencies as well as the body of permitting or related actions which it has taken.  It often can call upon extraordinary law enforcement assets and can command special attention in the courts.  Accordingly, the environmental strike force can be a way of merging the positive attributes of the two extreme theoretical options discussed above.  In this regard, it can greatly enhance the visibility and reality of effective environmental law enforcement.  The strike force is, however, ultimately dependent on the environmental agency for the routine work which provides the base for all enforcement and compliance.  Its somewhat elite character and transitory nature does not make it a long lasting mechanism by which to achieve effective environmental law enforcement.

 

Integrated Inspectorates

Integrated environmental inspectorates are a more recent development which, it is argued, can contribute to more effective enforcement.  They have received the greatest attention in Europe and variations on the theme are being developed in at least England, Sweden, and Holland.  The most fundamental conceptualization of an integrated inspectorate is based on the idea of focusing government resources on regulated facilities on a unified basis.  Thus, when permits are written or inspections are carried out, all potential avenues by which pollution can enter the larger environment are considered and all pollutants of concern are evaluated at the same time.  It is suggested that in an ideal integrated inspectorate, the permitting process and the inspection process of the agency would be carried out on a unified basis.  That is, the same individuals responsible for permit writing would also be involved in the inspection process. 8

In theory an integrated inspectorate can go far, through enhanced efficiency and consistency, to advance the objectives and achieve the qualities of an effective enforcement program.  However, the actual experience with these organizational options is sufficiently new that whether practice will produce the benefits remains to be seen.  In any case, the utilization of integrated inspectorates should not be allowed to go forward in a vacuum.  The inspectorate ought to be an integral part of the environmental agency so that it is closely tied to the strategic planning and standard setting functions and does not begin to create a whole new set of strategic objectives.  There must be effective coordination with actual law enforcement staff if compliance objectives are to be met.  This may actually be achieved by making the enforcement staff such as lawyers part of the integrated inspectorate teams.9 The noted organizational changes in the United Kingdom seem to be responsive to this need for effective coordination.

 

2.2.4       Discussion

 

               Experience suggests that, in considering which end of the spectrum ought to define the best option, most often the advantages of the unitary agency approach outweigh those of the divided agency or traditional agency approaches.10 The listed advantages of each are real; however, those associated with the unitary agency go far to advance the earlier stated objectives and qualities of an effective enforcement and compliance program.  Especially important in this regard are the enhanced ability to achieve a common strategy, maximize communication, and efficiently deploy resources.  These advantages are very hard, if not impossible, to achieve routinely over time in the divided agency setting.  On the other hand, many of the advantages of the divided agency model, such as its high visibility or speedy access to the courts, can be achieved either within the unitary agency through management decisions or by agreement and cooperation with the law enforcement agency.

While the traditional agency approach goes far to overcome the divided agency problems, :t does not easily do so for judicial enforcement activities.  And, as suggested in the discussion of the judicial function, there is a growing need to use these authorities in environmental enforcement and compliance programs.  Unfortunately, the effectiveness of so doing may be compromised by the organizational limitations of the traditional agency approach.  While the traditional agency approach is a common compromise between the two extremes, other than as dictated by tradition, there seems no substantial reason to be bound by this compromise and the opportunities afforded by effective judicial enforcement argue that it be avoided, if possible.

While the strike force variant may be ephemeral, it can achieve a few important objectives which are primarily to correct serious violations and project high visibility.  On the other hand, the Integrated inspectorate is likely to become a much more substantial component of an effective environmental agency.  As such, it may well be a vehicle for also providing a greater level of effectiveness to environmental enforcement and compliance.

For each of the approaches discussed --- unitary, divided, and traditional --- questions remain about how close the routine activities of environmental management can, or should, be associated with enforcement and compliance activities.  The following are examples:

 

 

An affirmative answer to the above questions, and to similar ones, will advance the capacity of the environmental agency to achieve the qualities associated with an effective enforcement program because they enhance effective use of scarce resources.  While such questions are not usually fundamental, in an organizational sense, they exemplify tactical advantages for enforcement which can be achieved through even modest organizational decisions.  These kinds of decisions can also often be most easily implemented in the context of the unitary agency.  Where various responsibilities are divided among agencies the management problems begin to grow significantly.  However senior officials should be aware that simply creating a unified agency does not fully address compliance and enforcement organizational matters.  It is equally important to assure, as the foregoing issues illustrate, that the agency is effectively managed for the objectives set forth at the beginning of this paper.

 

2.2.5    Factors Relating to Decentralization

 

The size or regional diversity of a country and the general nature of how it is governed can strongly influence how organization for effective enforcement might take place.  A large country or one with great regional variation may chose to organize its environmental agency with a strong regional makeup.  Similarly, in a country with a system of federal government, where states have effective and often independent powers and authorities, there are important problems in rationalizing federal authority with that of the states.11 Both of these situations create some similar problems for effective enforcement and, to a varying degree, some opportunities for improvement in enforcement.

Decentralization poses serious problems for consistency of enforcement.  Where decentralization exists because of size or regional considerations, the problems can, at least in theory, be overcome through strong management.  In addition, variations in enforcement which are positively responsive to local conditions can enhance the overall effectiveness of the national enforcement program.  In addition to the general management question, there is also the issue of how many of the enforcement functions ought to be de-centralized.  Should they include initiation and settlement of lawsuits, as well as the permitting and inspection functions.  Answers may vary in particular settings, but as decentralization includes more elements the larger is the management problem.  Resources must be devoted to it.  In addition, to the extent that responsibilities are divided among a number of agencies at the national level, then the management problem is even further confounded.

In a federal system, the problem is not whether to decentralize (that is a functional given) but how to coordinate in an effective way.  This situation can offer an enormous advantage for the overall conduct of enforcement.  The addition of state resources to those of the national government can substantially increase total resources devoted to enforcement.  This can be powerful when the resources are deployed pursuant to a common strategy.  While detailed consideration of managing this relationship is beyond the scope of this paper and, in any case, can only be resolved in the experience of each country, there are some observations that are useful.  In essence the problem for the federal government becomes one of defining how it exercises coordination and oversight of state authorities and actions in a way which advances the objectives of effective enforcement.  Performing this function consists of the establishment of overarching policy and a defined set of authorities at the federal level.  At the same time, the federal authority should seek those opportunities which will maximize the effectiveness of the state authority within those overarching policies.  These actions can take the form of standard setting, training, providing specialized resources, such as aerial surveillance, and financial support.  While often difficult, the federal structure can offer one of the most rewarding opportunities for a national environmental agency to reach out to others to multiply the effectiveness of enforcement and compliance programs.

 

3          CONCLUSION

 

            The fundamental objectives of environmental enforcement are deterrence, punishment, and correction of violations.  To achieve these objectives, enforcement activities need to be characterized as efficient, visible, fair, and subject to oversight.  Below is a chart which sets forth one interpretation of these relationships.  The reader may have others.

How government is organized can affect its ability to meet some of these qualities and objectives.  There is an optimal model of organization which integrates all of the enforcement functions in one agency which operates them in recognition of possible roles for other participants including local units of government, industry and the citizenry.  An integration of all of these values and functions in a particular national setting will yield one of the ideal models for organizing for compliance and enforcement.

 

 


QUALITIES                                         ORGANIZATIONAL MODELS

FOR                                  

ENFORCEMENT                                         TRADI-                               STRIKE           INTEGRATED

                                           UNITARY           TIONAL         DIVIDED       FORCE         INSPECTORATE

 


Strategic                                    +                      +                   -                    +                          0

Efficient                                      +                      +                   -                    0                           +

Swift                                          -                      +                    -                     +                          0

Visible                                        0                      0                    +                    +                          0

Fair                                            +                      0                    0                    0                           +

Balanced                                   +                      +                    0                    -                          0

 

 


INSTITUTIONAL

FUNCTIONS OF

ENFORCEMENT

 

 


Standards                                  +                        +                    0                  -                           0

Inspection                                  +                        +                    0                 0                           +

Administrative                            +                        +                    0                 0                           +

Judicial                                       0                        0                    +                 +                           0

Oversight                                   0                        0                     -                  -                           -

 

 

 


+ = Positive; - = Negative; o = Neutral

 

 

 

 



ENDNOTES

 

1.                  The mention of penalties raises the entire question of where penalties ought to go and the related issues about how to fund agency program activities.  Organizing for enforcement is enhanced if penalties are able to be utilized directly by the agency for increasing its resources.  There are other sources of funds which can also be used in this way such as permit fees and special purpose taxes.

 

2.                  The idea of fairness does not mean that every violator has to be the subject of an enforcement action.  This is often patently impractical.  It does mean that those subject to enforcement action ought, on the whole, to be treated in approximately the same way.

 

3.                  Of course, if this is unavoidable then there are enforcement strategies which can maximize the effectiveness of inspectors who are not backed up by analytical results from laboratories.

 

4.                  While media oversight is the most informal mechanism because it usually cannot be structured through government policy, it may be the most powerful because of the direct linkage to the public.

 

5.                  It is important that these distinctions not be overstated.  Obviously many resource oriented programs have major regulatory components such as is the case in protecting endangered species.  However, the distinctions are useful at least as organizing principles for purposes of decision making.

 

6.                  For purposes of this discussion, environmental management functions include such tasks as scientific review or research, strategic planning, standards setting and permit issuance.

 

7.                  Of course, in neither model will the actual conduct of the judicial function be within the agency.  The administrative review authority may or may not be located in the unitary agency.  It is rarely, if ever, located within the law enforcement agency of the divided model but may be in the environmental management agency.

 

8.                  In some legal systems it is necessary to insulate criminal investigators from those who carry out the routine tasks of the agency, and an integrated inspectorate would have to be modified to take this into account.

 

9.                  A further example of the efficiency associated with the integrated inspectorate relates to the use of monitoring data which is supplied by the regulated community.  In an integrated inspectorate this data might be supplied to the inspection staff and is, on the one hand, easily verified against permit requirements and on the other readily available to enforcement personnel where appropriate.

 

10.              A recent report of the Administrative Conference of the U. S. reaches a similar conclusion.  The report is entitled "Report on the Federal Administrative Judiciary."

 

11.              In some nations municipalities can play just as important a role as do states or provinces.