CHOOSING AMONG CRIMINAL, CIVIL JUDICIAL, AND ADMINISTRATIVE ENFORCEMENT

OPTIONS

A COMPARATIVE DISCUSSION OF UNITED STATES AND NETHERLANDS EXPERIENCE

VAN ZEBEN, D.J. 1 and MULKEY, M.E. 2

 

1   Directorate-General for Environmental Protection, VROM, P.O. Box 450, 2260 MB

LEIDSCHENDAM (The Netherlands)

 

2    Region 111, EPA, 841 Chestnut Building, Philadelphia, Pa. 19107 (United States of America)

 

PRELIMINARY NOTICES

 

Mr. van Zeben is currently Head of the Environmental Crimes Department and Criminal Assistance Team for the Environmental Inspectorate in the Directorate for Environmental Protection for the Ministry of Housing, Physical Planning, and the Environment of the Nether­lands.  In that position, he manages the group of people who are responsible for the inspectorate's criminal information system as well as a range of technical and investigative experts who provide assistance for the prosecutions of environmental crimes.  Prior to taking this position, he was a public prosecutor located in the Hague with responsibility for a variety of environmental criminal cases.  Ms. Mulkey is Regional Counsel for Region III of the United States Environmental Protection Agency.  Her office is responsible for providing legal support to EPA's civil, criminal, and administrative enforcement activities in the five-state region which includes Pennsylvania, Virginia, Maryland, West Virginia, Delaware, and the District of Columbia.  The views expressed here are those of the authors and do not necessarily reflect the views or positions of their respective agencies or governments.  The authors wish to acknowledge the assistance of Bob May, a senior lawyer in the Environmental Inspectorate of the Netherlands, Elisabeth Schippers, one of the state's attorneys who represent the Dutch government in the civil courts, and Martin Harrell, the Regional Criminal Enforcement Counsel for USEPA Region 111.

For convenience, the United States Department of Justice and the Netherlands Ministry of Justice are here collectively called the Justice Ministries.  The Directorate General for Environment of the Netherlands Ministry of Housing, Physical Planning, and the Environment and the United States Environmental Protection Agency are collectively called the environmental agencies.  For ease of reading and because this is not intended for publication under academic standards, we have chosen not to include formal legal citations to the various provisions of the laws of the United States and the Netherlands or to written legal authority for the conclusions of law we include here.  We have provided a list of references which we believe will be more or less readily available to the reader upon request from the source of the publication referenced.

 

SUMMARY

 

This paper presents a discussion of the considerations involved in choosing a formal enforcement response from among three options: criminal prosecution; cases brought in the civil courts; and administrative enforcement actions.  The paper assumes that the enforcement program making these choices has decided that there is an important role for formal coercive actions and has available a legal framework that provides at least some opportunity to bring legal action in criminal courts, in civil courts, and under administrative or executive governmental authority.  The discussion draws extensively on the experience of the enforcement programs of the United States and Netherlands, both of which have enforcement programs and legal systems which fit these assumptions.

This paper discusses four primary factors which affect the choice of formal enforcement options, beginning with the factor of the principal purposes or goals of enforcement-.  We identify five such goals and evaluate how each of the enforcement choices fits within the framework of this set of purposes/goals.  The additional factors which are described and evaluated are the factor of legal characteristics and limitations of the applicable laws, the factor of the facts and circumstances of each particular case or violation, and the factor of practical realities and considerations.  Within each of these sections, the laws and experiences of the United States and the Netherlands are used to illustrate how each factor can influence and affect the process of choice among the three types of formal enforcement options.

 

1                 INTRODUCTION

 

                   Societies who value environmental protection and governments who have chosen to adopt policies         and enact laws to promote environmental protection must evaluate and address the questions relating to enforcement of environmental laws if the goals of environmental protection are to be converted into actual results.  This fundamental role for enforcement considerations in any system aimed at environmental protection provides the background and basis for discussion of a number of aspects of enforcement.  Among those potential topics is the area of specific legal instruments for the implementation of enforcement in specific circumstances or cases.  While those legal instruments may take a number of forms, three of the most fundamental in western jurisprudence systems are criminal enforcement, civil judicial enforcement, and administrative enforcement.

The purpose of this paper is to discuss both the ideal and the actual processes and factors influencing choice among available enforcement instruments for use in any given case and for various types of cases or circumstances.  We recognize that a discussion of choice among criminal, civil judicial, and administrative enforcement involves certain assumptions that may not, in fact, be present in the practical circumstances in which decisions about enforcement are actually made.

For example, a free choice among these three options requires, in the first instance, that all three be available.  In fact, in the Netherlands, the civil judicial option is available only under limited circumstances and for limited purposes, as we will discuss more fully later.  Briefly, the limitation arises from the fact that the Dutch environmental laws do not specifically authorize access by the government to the civil courts for the purpose of enforcing the statutes.  Therefore, the government may use the civil courts only under some general legal theory available to any private party, such as tort or contract.  However, a wide range of situations can be addressed in this manner, ranging from recoupment of the costs of government response to pollution to emergency actions to prevent pollution events.  Similarly, under certain U.S. environmental statutes, the civil judicial option is not available for Penalty actions (Toxic Substances Control Act and Federal Insecticide, Fungicide and Rodenticide Act).  We should also note here that the ultimate recourse at the end of all administrative proceedings in the United States is to the courts, either by appeal taken by the enforcement target or by action taken by the government to enforce the final administrative action.  In that sense there is no purely administrative option.

A discussion limited to choices among these three options implicitly rejects the choice of informal enforcement options which invoke no specific legal process.  In fact, all enforcement programs make at least some use of informal mechanisms to effectuate enforcement, and both the United States and the Netherlands have experienced periods of time and circumstances where there has been fairly extensive use of informal types of responses to enforcement situations.  However, both countries have adopted clear national policies favoring formal legal response for significant enforcement matters, and we have made a conscious decision here not to include informal actions among the choices covered by this paper.

Another implicit assumption is any discussion of free choice among these options is that the same persons or institutions can control decision-making and implementation of all three.  In fact, in both the United States and the Netherlands, the cast of players and decision-makers changes somewhat depending on which option is being considered.  In both systems, for example, a case that is declined by the prosecuting authorities within the justice ministries cannot be pursued as a criminal case even if the enforcement decision-makers within the environmental agencies would choose the criminal option for that case.  On the other hand, the prosecuting personnel in the justice ministries are not likely to be involved at all in the dialog and decision making as between civil judicial and administrative authorities.

Further, it is important to bear in mind throughout that practical realities may override the theoretical reasons to prefer one option over another.  If one area is hampered by seriously inadequate resources, disinterest or hostility from key persons or institutions, for example, it will obviously be a less palatable choice regardless of its apparent correctness for the facts and circumstances of a particular case.  We think that practical limitations are so important that we discuss them below as one of the factors influencing the decision among enforcement options.

Finally, it is important to acknowledge that the handling of any one case does not necessarily involve the simplistic choice of just one of these three options.  In fact, it is not uncommon at all that a criminal case may also require some use of civil or administrative process to address ongoing environmental hazards or recoupment of governmental costs expended to address environmental damage.  Similarly, as noted above, administrative enforcement may have to be combined with activity in the courts to make it effective in the face of continuing resistance on the part of the enforcement target.  During the course of civil judicial proceedings as well, administrative authority may be properly used in some circumstances, although that approach would be extremely rare in the Dutch system.  The specific strategies and rationales for integrating multiple use of these options in a given case is beyond the scope of this paper.

In spite of these complexities, we believe it is possible to improve the implementation of environmental enforcement through careful consideration of how choices among enforcement options are being and should be made in both the United States and the Netherlands.  We will discuss in turn the primary criteria or decision factors which we see as relevant to the decision about which enforcement option(s) are best for a given set of circumstances, using information about actual practice in the two countries throughout to illustrate these principles and general ideas.

 

2          PRIMARY FACTORS INFLUENCING CHOICE OF ENFORCEMENT OPTION

 

            The primary factors affecting choice among enforcement options, which we will discuss in turn, can be identified as follows:

 

1.   Purposes or philosophy of the enforcement program; goals, results sought, and the like.

2.   Legal characteristics, qualities, aspects, and limitations of each type of proceeding under the applicable law.

3.   Nature of the facts, evidence, and surrounding circumstances of each particular case or violation.

4.   Practical realities or limitations affecting the implementation of each option.

 

3          THE FACTOR OF PURPOSE OR PHILOSOPHY OF THE ENFORCEMENT PROGRAM

 

3.1       Elements of Purpose and Goals of Enforcement Programs

 

            Although the very idea of an enforcement program implies something about the purpose-

to enforce the law - it is possible to identify a number of aspects of enforcement purpose and philosophy which are likely to affect the way enforcement is implemented, including the ways choices are made among available enforcement tools.  In general, the purposes behind the choice to pursue any specific case will be one or more of the following:

 

1.        Achieving compliance by the target of the enforcement action.

2.       Promoting deterrence by "sending a message" to this violator and other violators to encourage compliance now and in the future.

3.       Addressing environmental emergencies or hazards of immediate concern.

4.       Reducing overall environmental risks over the longer term.

5.       Promoting fairness and even-handedness, and enhancing fair competition through a "level playing field".

 

There may also be certain subsidiary purposes, which are usually considered because they bear some relationship to the primary purposes identified above.  For example, the enforcement authorities may want to test new or unused legal theories in an effort to strengthen overall enforcement.  It may be important to obtain experience in a certain area or type of proceeding.  Certain types of cases may be brought to maintain the credibility of an enforcement agency or even of specific enforcement instruments or tools.  Each of the three types of enforcement instruments can be evaluated in light of how well it achieves these purposes.

 

3.2.1    Deterrence and Criminal Enforcement

 

The criminal option appears to us to be best suited for promoting deterrence, as it is generally regarded as the most severe sanction available from the standpoint of actual conse­quences (possible loss of liberty and/or severe fines) and public perception (stigma).  It may also carry additional consequences, as in the provisions of the United States Clean Water (Section 508) and Clean Air (Section 306) Acts requiring the barring of a facility subject to criminal conviction from participating in government contracts until it is removed from the list of such facilities.  Under the Dutch criminal law, conviction for economic crimes (which include environmental crimes) can result, for example, in the loss of certain civic rights, required labor, and/or the stoppage of some or all business activities at the location of the offense for up to one year.  The existence of a record of a criminal offense also has a lasting impact on any violator.  The criminal enforcement process is likely to send a potent message to any violator, and if it is accompanied by enough publicity to assure that other violators know of the action, it is also a powerful message to them as well.  Even in the deterrence area, however, the criminal sanction may not achieve the desired purpose if there is a more significant likelihood that the case will be lost or dismissed, or if the sanctions imposed are too light.  For example, if the criminal fine does not recapture the economic gain obtained through violation and if there is also no imprisonment or other consequence, a violator may be willing to calculate that it is advantageous to violate the environmental law even if there is a likelihood of criminal enforcement.

 

 

 

3.2.2       Environmental Compliance and Criminal Enforcement

 

               The idea of environmental compliance should not be entirely separated from deterrence, of course.  The whole point of deterrence is to prompt compliance by not only the target of enforcement but by others who learn the lesson that violations do not pay.  In this sense, criminal enforcement is well suited to the compliance purpose.

Criminal enforcement can also be an effective tool for achieving specific compliance at a given facility and for addressing environmental emergencies where the legal system provides a mechanism for the prosecutor to use legal options to govern the behavior of the violator.  In the Netherlands, for example, both the prosecutors themselves and the criminal courts have the authority to impose so-called preliminary measures during the period prior to trial.  These measures can impose restraints on certain activities and/or require proper storage of materials.  The preliminary measures authority of the judges entends to orders to partially or completely stop operations or order an outside administrator be put in control of the business or operation.  These authorities are set forth in articles 28 (for prosecutors) and 29 (for judges) of the Economic Crimes Act, which applies to environmental offenses, among other economic crimes.  These measures are limited to six months duration, and do not survive the conclusion of the trial.  As part of the final decision in a criminal proceeding, Dutch judges can require total or partial stoppage of business activities for a one year period, appoint an administrator to the business of the convicted person, or impose an obligation to perform the acts required by the environmental laws or to refrain from the acts prohibited by those laws.  By contrast, the United States courts generally do not hear petitions for injunctive type orders in the context of criminal proceedings, and U.S. prosecutors do not have any comparable authority to the preliminary measures under Dutch law.  There is some potential for environmental compliance requirements in sentence conditions, but that requires waiting until the end of the criminal enforcement process, perhaps including appeals.  Bail conditions may also provide some limited opportunity to indirectly govern compliance behavior in some cases.  Other than limited orders directly related to the criminal case, such as to preserve evidence, court orders for environmental compliance activities and to address environmental emergencies require the initiation of civil proceedings in the United States.

 

3.2.3    Risk-based Planning and Criminal Enforcement

 

            The use of criminal enforcement as a tool to address the areas of greatest environmental risk requires planning and targeting criminal investigative resources and/ or the allocation of resources to the development of criminal cases on the basis of areas which pose the more serious risks.  In general, a criminal enforcement approach that relies on more or less random identification of criminal violations, such as through tips or incidental to police patrols, may not be well suited to promoting the goal of directing enforcement toward the highest risk targets or industries.  In both the United States and the Netherlands, criminal enforcement has experienced a period during which criminal cases were identified outside the process of targeting of enforcement priorities developed for use by the environmental enforcement agencies.  When that type of approach dominates, the criminal enforcement program will fit fully with risk-based planning only to the extent that compliance monitoring activities targeted by the enforcement agencies are able to identify criminal cases and to have those cases included with cases identified through the more random approaches and/or to the extent that the randomly identified cases are in the priority areas.

            The existence of a disparity between the way criminal cases had been identified and the priorities set by the enforcement agencies has been a concern in both the United States and the Netherlands, and both governments have introduced some mechanisms to enhance the integration of criminal enforcement with overall enforcement priority-setting.  Given the independence of the prosecuting authorities from the environmental agencies, this has generally taken two forms, coordination and the selective supplementation of resources for criminal enforcement consistent with the goals of the environmental agency.  In the first instance, the environmental agencies and the prosecuting authorities can develop dialogs and coordination mechanisms to foster joint planning and common understandings about what kind of criminal cases should be pursued and why.  This process of integration between the Ministry with environment responsibility and the Justice Ministry is particularly well developed in the Netherlands, where a wide variety of mechanisms are employed to effectuate coordination and joint planning.  These include regional and national groups who meet frequently and involve not only the environment ministry and public prosecutors (justice ministry), but also the national police force (interior ministry, organized into 25 police regions) and provincial (12 provinces) and municipal (>600 municipalities) officials, all of whom have important roles in environmental enforcement in the Netherlands.  Coordination occurs among officials are all levels, ranging from the highest elected officials, through senior civil service management, to working-level networks.

            The United States has also seen a number of mechanisms for such coordination between the Environmental Protection Agency (EPA) and prosecutorial authorities in the Justice Department, ranging from joint participation in national enforcement conferences, joint participation in environmental crimes task forces in selected areas, sustained coordination by EPA criminal attorney and investigative personnel with a large number of the ninety-three United States Attorneys' offices, to coordination between the highest levels of environmental enforcement management at the Environmental Protection Agency and the Department of Justice.

            The environmental agencies also control significant aspects of the resources necessary to support often complex and technically difficult environmental crimes cases.  They have both investigatory and legal personnel available to identify, develop, and support the prosecution of these cases.  They are also often the best or only source available to prosecutors for technical assistance in areas like sampling and analysis or disciplines like toxicology, hydrogeology, or biochemistry.  By exercising decision-making authority over how such resources are used, the environmental agencies can significantly influence the nature and direction of environmental criminal enforcement.  By this combination of coordinated planning and resource support, risk based enforcement planning can be a key factor in the criminal enforcement choice.

 

3.2.4    Fairness and Criminal Enforcement

 

Criminal enforcement also has an important role in ensuring fairness and even­handedness.  A fair system should have some way to differentiate between degrees of seriousness of violations and culpability of violators.  The use of the criminal option for the more serious and more willful violators helps establish an over-all sense that the governmental response is appropriate to the circumstances.  For this factor to be properly served, however, cases that are similar should be handled similarly.  This can be a problem if local prosecutors in different parts of the country have significantly different views about which cases are appropriate for criminal prosecution, or if the approach to levels of imprisonment or fines is very different.  This latter issue has been tackled in the United States by the publication of sentencing guidelines applicable to environmental cases and applicable for judges in all federal courts.  Judges may only depart from the guidelines for good cause stated in the record of the proceedings, and departure from the guidelines can form the basis for an appeal by either prosecutors or defendants.  In both countries, the central office of the Justice Ministries maintain a role in management and oversight of the overall nation-wide docket of criminal cases as a mechanism for some control over consistency.  In the United States Department of Justice, the Assistant Attorney General for Environment and Natural Resources maintains an environmental crimes section which provides assistance to United States Attorneys for criminal cases and supports the Assistant Attorney General's role in docket oversight for environmental crimes.  Perhaps because of the central role played by criminal enforcement in the overall environmental enforcement program, the Netherlands Justice Ministry has developed extensive planning and management programs specific to environmental crimes.  These include the development of guidelines imposed by the advocates general, who are senior to public prosecutors and who work in the appellate courts.  These guidelines from the advocates general cover the methods of prosecution, appropriate sentences, settlement provisions, and the like.  If a given prosecutor does not follow the guidelines, the deviation must be justified.  In addition, the public prosecutors, including the advocates general, all report to one of the five regional Prosecutors General, each one of whom also specializes in one or more types of criminal enforcement, and there is a Prosecutor General responsible for environmental crimes.  There is also a full-time national coordinator for environmental enforcement within the Justice Ministry who provides a mechanism for the sharing of information about on-going cases through informal and formal written communications and meetings.  Finally, in both countries the efforts of the environmental agencies to participate in environmental criminal enforcement through assistance and coordination with the prosecutors also provide a mechanism for some impact on consistency and common approaches to these cases.

 

3.2.5       Summary of Relationship Between Purposes of Enforcement and Criminal Enforcement

 

               In summary, the criminal enforcement option is normally the most effective choice for

maximizing the deterrent impact of enforcement, but its effectiveness for promoting compliance, addressing environmental emergencies, or supporting long-term planning objectives like risk reduction depends on a number of factors that may not be present in all criminal enforcement programs.  Proper exercise of criminal enforcement authority fully supports the principle of overall fairness of an enforcement program.

 

 

 

3.3.1       Environmental Compliance and Civil and Administrative Enforcement

 

               Civil judicial and administrative enforcement appear to be somewhat similar to each other in their relationship to the basic purposes of enforcement, but there can be important differences.  Both types of authorities permit the issuance of orders for compliance and orders to address environmental emergencies.  However, if an administrative order does not achieve its intended result, then the enforcement authorities must begin the process of obtaining judicial assistance in enforcing the order or obtaining the necessary actions.  By contrast, when a judicial order is issued for compliance or to address environmental emergencies, violations of that order become contempt of an order of the court, and the full authority of the system to enforce court orders is immediately available.  This availability of oversight by a court can be particularly important when the compliance activities are to occur over a significant period of time, and it is important to assure that interim milestones are met.  In the United States, court orders are generally preferred for compliance orders involving the installation of major pollution control equipment, for example.  These orders are often entered by the court on consent of the parties after settlement agreements are reached.  Assuming the ready availability of both civil judicial and administrative order authorities and comparable ease of use, it would appear that the judicial option is often preferable for the purpose of obtaining effective compliance.  However, as we discuss below, there may be legal and practical limitations that make these options not equally available or similarly easy to use.

3.3.2       Deterrence and Civil and Administrative Enforcement

 

               Where the administrative and civil judicial options both provide for adequate sanctions in the form of civil penalties or similar burdens, they can both be effectively used to promote deterrence.  Since a principle point of deterrence is to motivate the regulated community to comply before the government identifies them as violators, it is important for this purpose that the government be able to assure that violators are worse off for being caught by the government than they would be if they had complied without government involvement.  Therefore, both the civil and administrative sanctions must be capable of imposing penalties in excess of the economic benefits from non-compliance plus some additional amount necessary to ensure adequate motivation to choose compliance over the potential consequences of enforcement.  For this purpose, it may be necessary that the sanction exceed the amount of damages caused by the violations and it is definitely necessary that the sanction not be limited to violations that continue after detection by the government. (Otherwise, all violators could simply halt violations upon detection and escape all consequences.) For both of these considerations, there are currently limitations of the civil and administrative sanctions under Dutch law.  Dutch civil courts are available for use by the governmental enforcement authorities only when the government can identify a cause of action based on private law, such as tort or contract.  Therefore, the primary monetary sanction available in the civil courts is the recovery of costs expended by the government in response to a negligent or otherwise tortuous act by a polluter.  Where the costs of responding to pollution are significant, the requirement to pa7 these costs can have a profound deterrent effect.  However, many types of violations do not lead to the expenditure of significant governmental response funds.  Very significant air and water pollution, for example, may move so quickly in the environment that the government could not undertake clean-up activities.  Other important types of violations, such as those relating to the proper documentation of the movements of hazardous waste, may not be directly associated with environmental pollution at the point of the violation.  Dutch administrative law currently has no mechanism for imposing penalty sanctions for past environmental violations, although Dutch administrative enforcement tools like license revocation and facility shutdown can provide significant sanctions for past violations.  Under certain of the Dutch environmental laws, the competent governmental authority can impose an administrative compliance order which includes an economic compliance incentive of significant sums for each day of continuing violation.  For types of violations that can be halted immediately, this mechanism does not provide a deterrence effect or message to other violators.  However, for violations which cannot be quickly corrected, this kind of administrative economic sanction has deterrence potential, depending on the levels of sanction for each day of continuing violation, the period of time necessary to achieve compliance, and the relationship of the resulting sanction to the economic benefits enjoyed by the violator from the period of prior violation.  This administrative economic sanction, called a Dwangsom, is discussed in more detail in section 4.3 below.

The availability of comparable civil judicial and administrative penalties varies among U.S. environmental statutes.  In the Solid Waste Disposal Act (Section 3008, also known as Resource Conservation and Recovery Act and generally identifiable as the principle law regulating hazardous waste) and the Emergency Planning and Community Right to Know Act (Section 325), the provisions for administrative and civil judicial penalties are essentially identical, with the same amounts set for each violation per day and with no absolute caps set on the total penalties.  Under the Clean Air and Clean Water Acts, the same amount for each violation per day is provided, but the administrative option may be selected only up to a limited total penalty ($125,000 for the Clean Water Act, Section 309 and, absent Attorney General approval, $200,000 for the Clean Air Act, Section 113).  On the other hand, only administrative penalties are available for violations of the Toxic Substances Control Act and the pesticides law.

Because there are circumstances where the judicial and administrative options are roughly comparable in terms of the scope of sanctions, we can consider whether one has any greater inherent capacity to promote deterrence.  One could speculate that the greater formality and the additional burdens of appearing in the courts might serve to promote deterrence.  Because publicity is so essential to the message-sending aspects of deterrence, it is also possible that judicial actions are more likely to be newsworthy or otherwise to become more widely known.  Recent United States experience with administrative cases involving very substantial penalties appears to support the conclusion that these differences in deterrence potential may not be very great.  Big or otherwise interesting cases obtain publicity in both forums, and the higher the stakes, the more likely the process is to be taken seriously, regardless of forum.

 

3.3.3       Risk-based Planning and Civil and Administrative Enforcement

 

               To the extent that civil and/or administrative enforcement are available and effective to

achieve compliance and deterrence goals, they can also be managed to maximize the effectiveness of an environmental enforcement program in terms of risk-reduction.  To achieve this goal, the enforcement program must have mechanisms to channel its investigative efforts to the areas of highest risk-reduction potential and must also be able to choose which cases to pursue and how to pursue them at least partly on the basis of risk-reduction potential.  In circumstances where the civil or administrative approach has proven effective in achieving environmental compliance at specific violating facilities, the use of this kind of enforcement at facilities which pose high risks would have a direct and immediate impact on the risks which compliance can affect.  For this reason, both the United States and the Netherlands make use of a range of emergency and longer-range civil and administrative authorities to focus on compliance goals whenever a facility or situation presents conditions of high environmental risk.  When there is evidence of imminent potential hazard from pollution, both systems are well-equipped with civil judicial and administrative enforcement responses.  Under the Netherlands Clean Air Act, there is express administrative authority for short duration orders to prevent or control air pollution emergencies. (Chapter 5).  Under most Dutch environmental laws, however, the administrative tools to address emergency conditions are the dwangsom already discussed and the bestuursdwang or administrative force whereby the government can, after proper notice, perform the necessary actions to halt violations and recoup the costs afterwards.  Several of the United States environmental statutes contain provisions for administrative orders to address conditions involving imminent and substantial endangerment to public health or the environment or similar language. (CERCLA, Section 106; RCRA, Section 7003, Clean Air Act, Section 303).  Under CERCLA, also known as Superfund, the government may also expend monies to respond to the release of hazardous substances and seek reimbursement from responsible parties.  The civil courts are available under Dutch law upon a showing of negligence or unlawful act and the imminent threat of damages to the government, as, for example, the prospect that the government will be required to expend response funds.  The court procedures provide for a short proceeding and immediate determination by the president judge based on a balancing of the interests of the parties.  Following such a procedure (called a kort geding), either party may file a case for a full adjudication of the merits of the claims, may appeal the decision, or the emergency decision may stand without further proceedings.  United States environmental laws make express provisions for institution of civil proceedings to obtain court orders to prevent or mitigate actual or threatened imminent and substantial endangerment to public health and the environment. (See Section 4.2 below).

            Both countries are also attempting to improve the targeting of investigative efforts so as to improve the effects of overall enforcement in areas of higher environmental risk.  Both have underway a systematic effort to target certain industries, processes, or pollutants for specific emphasis and study.  For example, in the Netherlands, specific targeting of enforcement activities has been designed and carried out for several important industrial sectors, such as LPG stations and pesticide depots.  In addition to these nationally planned efforts to focus on certain industries or activities, the regional coordination process has led to special efforts based on regional problems.  In the area between the Hague and Haarlem, for example, there has been emphasis on enforcement of the Pesticides Act as it affects the flower bulb industry centered in that region.  Public prosecutors have worked out "project sessions" in some of the courts, where a number of similar cases are dealt with together.  Various of the regional inspectorates have emphasized specific sectors, ranging from grain drying facilities to hospitals.  The factors considered in selection of industrial sectors included the extent of potential environmental threat as well as extent of activity of that sector, and other matters.

            Similarly, in the United States, there have recently been a series of national targeted enforcement initiatives, such as the 1991 filing of a large group of cases under several laws all relating to the pollutant lead (Pb) and the multi-media enforcement efforts related to the Great Lakes, the Chesapeake Bay, and the Mexican border.  All of these initiatives were selected partly on the basis of risk considerations.  Region III of EPA is now in the second year of an effort to develop enforcement responses at sites which were chosen for their risk-reduction potential and which are studied and characterized on the basis of a risk analysis as a part of the process of determining whether and how to pursue enforcement.  These sites were generally not identified for attention through the normal process of detection of violations but were initially targeted on the basis of apparent significance of environmental risk based on available information about emissions, toxicity, and exposure potential.  Enforcement actions have been pursued at several of these sites, include a steel plant and two chemical manufacturing facilities.

In sum, the close relationship between the planning and priority setting by the environmental agencies and their ability to make or affect decisions about civil and administrative enforcement makes possible a close relationship between these enforcement options and risk based enforcement goals.  Which of these options is better suited for this purpose will largely depend on which fits better with the compliance or deterrence purpose, and on which is more practically available and effective.

 

3.3.4    Fairness and Civil and Administrative Enforcement       

 

An enforcement system is likely to provide for greater fairness if the enforcement agencies have a range of options to permit a more tailored response to each situation.  For that reason alone, the use of civil and administrative responses for appropriate cases can promote fairness.  The issue of fairness and the perception of fairness can be important in the choice between civil judicial and administrative enforcement.  Civil judicial enforcement usually involves a more complex and burdensome process, but also a process which provides the opportunity for determination of the outcome by courts which are independent from the enforcement agency.  By contrast, administrative enforcement is generally more informal and efficient for all participants, but the adjudication of disputes (that is, the conduct of any hearing or appeal) is, at least in the first instance, under the control of the environmental agency which initiated the enforcement action.

Administrative enforcement mechanisms are generally structured to address the possible concerns about fairness by providing for administrative procedures designed to assure some separation between the agency as enforcer and the agency as adjudicator.  In the Netherlands, the administrative measures must be preceded by a warning.  If violations continue, the administrative order can be initiated by the enforcement agency, and the recipient of the order may appeal the order and may seek a stay of its effect pending appeal.  The stay request and appeal are heard by an administrative court which has the final determination authority without further appeal.  This administrative or executive court is an independent entity within the national government, which hears administrative cases arising not only in the environment ministry but in other ministries and at other levels of government.  In the United States, the provisions of the law that establish administrative order and penalty assessment authority also provide for mechanisms to insure that there are procedural rights for persons against whom such actions are directed.  For compliance orders, it has been determined by the United States courts in most instances that the opportunity to challenge EPA action is available when EPA (through the Department of Justice) brings a civil judicial action to enforce the orders.  State of Alabama v. EPA, 871 F.2d 1548, 1557­60 (11th Cir.) cert denied, 110 S. Ct. 538 (1989) (CERCLA orders); Southern Pines Associates v. U.S., 912 F.2d 713 (4th Cir 1990) (Clean Water Act).  For administrative penalty assessments (and for compliance orders under the Resource Conservation and Recovery Act), the U.S. environmental statutes provide for the right to administrative hearings which are conducted by administrative law judges or presiding officers located within the Environmental Protection Agency, but under requirements which include a bar on mixture of functions between the enforcement personnel and the adjudicating personnel as well as a bar to communications about the merits of any case between agency enforcement and decision making personnel, except in the presence of all parties to the administrative proceeding.  Depending on whether the administrative hearing in conducted under the adjudicatory hearing requirements of the Administrative Procedures Act, there may be other safeguards to independence of the administrative judges, such as independence within the general personnel system.  In the United States, there is recourse to the civil courts at the end of the administrative appeals process, so that the particular action can be challenged on the grounds of lack of fairness, among other things.

In general, there is no good reason why administrative enforcement need be any less fair than enforcement which invokes independent courts at the outset.  Because administrative procedures can be less burdensome, potentially less costly, and somewhat more informal and perhaps, therefore, less harsh in tone and atmosphere, they may even be perceived as promoting fairness.  There is also the fact that agency administrative judges can develop considerable expertise in the environmental laws and related technical areas and may, therefore, be able to determine the issues in a more informed and efficient manner and be more likely to render similar results in similar cases.  This potential for greater consistency in results for similar cases can be further enhanced where there is a process for internal agency appeal of the result from the first level of agency hearing, as is the case for the administrative hearing procedures under the U.S. environmental laws.

 

3.3.5       Establishing Legal Precedent Using Civil and Administrative Law

 

On occasion, it will be important to the enforcement agencies to obtain certain results on key legal issues in order to strengthen the overall compliance, deterrence, or risk-reduction effectiveness of enforcement.  If, for example, there is difference between the environmental agency and much of the regulated community about an interpretation of regulations or permits, this can lead to widespread failure of regulated enterprises to comply with the agency's interpretation until the matter is resolved by one or more cases in which the agency interpretation is upheld.  Similarly, if there are issues about whether certain entities can be held liable, such as individuals who engage in certain activities within the context of employment by corporations, it may be important to establish the answers to such questions through decisions in enforcement cases.  In evaluating the civil judicial and administrative enforcement options for this purpose, it is important to know how much weight a decision in either forum will carry, as well as how likely the matter is to have a favorable outcome from the point of view of the enforcement purpose.  It may also matter how quickly a result is likely to be obtained.  Although it generally appears to be accurate to say that decisions of the courts carry somewhat more weight than administrative decisions, it is important to remember that United States administrative decisions can also wind up in the civil courts, and those decisions are determined by the courts under a standard of review that involves considerable deference to the agency.  Whether the civil courts are more or less likely to render decisions to the liking of the enforcement authorities may vary depending on the type of issue or even on the particular part of the country where the case is initially heard.  For technically complex issues or those requiring specialized environmental expertise, it may be more suitable to attempt to adjudicate the matters in the administrative forum.

In general, the selection of the right set of facts and circumstances for cases designed to test legal issues may be more important than the choice of civil judicial or administrative forum.  We have not emphasized this enforcement purpose in our discussion of criminal enforcement because, as discussed below, it is generally desirable in criminal cases that the issue of whether there is a clear violation be as well established as possible.  However, under laws where there are significant restraints on the circumstances under which civil or administrative cases can be brought, as is to some extent the situation in the Netherlands, it may be necessary to consider the use of criminal enforcement proceedings to resolve difficult legal issues that are of particular importance to an enforcement program.

 

3.4       Summary of Enforcement Purposes and Choice Among Criminal, Civil Judicial, and Administrative Enforcement

 

An enforcement program can evaluate the use of various enforcement options on the basis of how well each option will promote the basic purposes of enforcement.  In both the United States and the Netherlands, the criminal, civil judicial, and administrative options have the potential to promote the principle goals of enforcement, although it is difficult to generalize about which types of mechanisms are always best suited to which enforcement purposes.  As we have discussed, the particular design of each option under the law of each country often makes a significant difference as to how well suited that option is for a particular purpose.  Excellent examples of those differences are seen in the greater flexibility of the Netherlands criminal procedures in their ability to obtain environmental compliance and the greater availability of sanctions in U.S. civil and administrative provisions with the resulting improvement in deterrence potential.  The availability of all three options and their careful and strategic use will maximize the ability of an environmental enforcement agency to accomplish all of the primary purposes of enforcement that are important to the agency.

 

4          FACTOR OF LEGAL CHARACTERISTICS, QUALITIES, AND LIMITATIONS IN CHOICE OF OPTIONS

 

As we have indicated in a number of specific instances above, the specific terms of the applicable criminal, civil, and administrative laws can make a great deal of difference in the reasons for selecting one over the other for any particular case. in this section, we identify some of the key legal or structural characteristics of each of the three options under U.S. and Dutch law which are significant for purposes of considering choices among the options.  It is not our purpose here to provide a comprehensive or detailed explanation of the I al structure of these three enforcement tools as set forth in U.S. and Dutch law, but rather 9 use examples drawn from these two systems to illustrate the role of such considerations in the choice among enforcement options.

 

4.1       Important Legal and Structural Characteristics of U.S. and Dutch Environmental Criminal Law

 

The criminal provisions of U.S. environmental laws are specifically set forth in each of the environmental statutes, and there is some significant variation among them.  All of the statutes contain provisions for criminal prosecution of knowing and/or willful violations of all or most requirements, but only the Clean Water Act (Section 309) and the Clean Air Act (Section 113) contain provisions for criminal prosecution of certain types of negligent (careless) violations.  Generally, the government can prove that a violation is knowing or willful by showing that the violator knew what he was doing and did so voluntarily, not accidentally.  There are some very limited provisions for strict criminal liability in U.S. environmental laws, as for failure to give notice of spills of hazardous substances above a designated quantity (Section 103 of the Comprehensive Environmental Response, Compensation and Liability Act).  Under the various U.S. environmental laws, criminal sanctions also vary considerably.  Contrast, for example, the maximum $50,000 fine per violation and one year imprisonment for convicted pesticide registrants and producers under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (Section 14) with the maximum $50,000 per day of violation and three years imprisonment for knowing violators of the Clean Water Act (Section 309), with double these limits for second offenses. (These two examples do not include either the lowest maximum criminal sanction found in U.S. environmental laws or the highest.) Some of the statutes provide for increasing the sanction for second offenses and for knowing endangerment of persons; others do not.  The Criminal Fines Act also provides a mechanism for increasing maximum fines in environmental cases in certain circumstances, such as where the death or serious injury of a person resulted from the violation or where the violator is a corporation.  In environmental crimes, as in all other crimes, the U.S. government must prove the guilt of the defendant beyond a reasonable doubt, and the defendant has the right to a jury trial.

Under the Dutch environmental laws, each specific law also contains specific penal provisions, although some of these are limited to defining the violations so that they come under certain sections of the Economic Crimes Act. (See, for example, Section 28 of the Pollution of Surface Waters Act and Section 77 of the Soil Protection Act.) Under the Dutch environmental and ' criminal laws, there is generally strict criminal liability, that is, the prosecutor need only prove that the offense was committed by the accused and is not required to establish that the defendant did so knowingly or willfully.  However, the level of sanction can usually be increased upon a showing that the offender knew or had serious reason to suspect, for example, increased risk to the health of others (Air Pollution Act, Section 91) or of the pollution of the soil (Soil Protection Act, Section 78).  Similarly, under the Chemical Waste Act (Section 55), acts performed intentionally are defined as serious offences in contrast to minor offenses when performed other than intentionally.  The Economic Crimes Act, which applies to most types of violations under all the environmental laws , distinguishes between intent crimes and guilt, or strict liability crimes.  The maximum penalty for intent crimes is two years imprisonment and Dfl. 100,000 for businesses, in contrast to maximum sentences of six months and Dfl. 25,000 for the lesser, strict liability offenses. (All fines may be added to a sum sufficient to recapture the economic benefits obtained from the violations.) A few types of environmental crimes are covered under the Penal Code, where significantly higher prison terms, up to 12 or 15 years, may be available for knowing endangerment to the public health and threats to life, respectively.  Other legal aspects of criminal sanctions under both systems are discussed above, in sections 3.2.1 and 3.2.2, ranging from economic consequences like limitations on government contracting opportunities and loss of control over business operations to personal Consequences like loss of rights to civic participation.  Where some of these sanctions are available only under certain of the environmental laws, as, for example the government contracting provisions found only in the U.S. Clean Air Act (Section 306) and Clean Water Act (Section 508), then the choice of criminal enforcement for violations of those laws may also differ.

In addition to the matter of available sanctions and the issue of whether the government must prove knowing or willful behavior, the legal aspects of criminal law that can affect when and whether it is a preferred choice include such considerations as the period covered by the statute of limitations (how long after the commission of the crime the government may prosecute), the limitations and mechanisms affecting investigations of criminal activity, and the nature and constraints of the procedural requirements governing criminal trials.  One example of the effect of these factors on choices is the longer statute of limitations period available under Dutch law for persons who knowingly and willfully discharge pollutions to the soil, air, or surface waters where they know or should have known that it may cause danger to the public health (Penal Code Article 173a).  Another example is significant differences in investigative tools available under the Economic Crimes Act and the Penal Code.  For economic crimes, investigators have available a number of tools particularly designed for the investigation of business operations, such as the authority to impound administrative records and operations, open and sample packages, access to all places of business operations.  Penal code investigative authorities do not include these specific tools, but violations carrying longer prison terms (currently four or more years), most of which are now included in the penal code, open up the use of investigative techniques like wire­tapping, emergency searches, and preliminary detention of suspects.  These differences can lead a prosecutor to focus an investigation on non-environmental aspects of a case which involves both environmental crimes and other violations which carry longer potential prison terms.

In the United States, investigative techniques and tools are significantly affected by whether the investigation is for civil/administrative or criminal purposes.  Once the investigation has focused on potential criminal liability, a number of safeguards for the rights of accused persons are in effect, ranging from the role of the grand jury in determining whether and how testimony of witnesses is to be considered in felony cases to the specific Constitutional requirements relating to interrogations, searches and seizures, and right to counsel.

Finally, it is important to note in this section that the criminal law and criminal procedures may be very different in their ability to directly impose requirements relating to environmental compliance.  As we discuss in section 3.2.2 above, the Dutch environmental criminal law does provide significant mechanisms for environmental compliance requirements, while the United States system leaves that task largely to civil and administrative law.

 

4.2       Important Legal and Structural Characteristics of U.S. and Dutch Civil Judicial Law

 

            There are a number of fundamental and significant differences between the civil judicial

systems of the United States and the Netherlands which combine to help explain some of the key legal and structural differences in how these two systems can work for environmental enforcement.  In the first instance, the United States system is in the English common law tradition, where the decisions of higher courts are binding on lower courts and the notion of legal precedent (stare decisis) is accorded formal authority.  The Netherlands has a code system, where each judicial decision can theoretically be issued without regard for prior determinations in other cases.  In practice, this difference is not nearly so profound as it might seem.  Civil judicial decisions in the Netherlands are widely reported and prior decisions are relied on by advocates and judges.  Lower courts accord full deference to the determinations of higher courts, and higher courts are unlikely to reverse their own earlier outcomes.  On the other hand, United States judges can and do distinguish current cases from prior cases in ways that permit some variation from ruling decisions, and higher courts may on rare occasions abandon prior decisions by reversal.  Consequently, this apparently dramatic difference between the two systems does not appear to be particularly significant in the current context of environmental enforcement.

Other historic differences, however, do appear relevant in the environmental context.  The first involves a fairly complex matter of legal history in the two countries which we risk severely oversimplifying, but which basically relates to the role of the government as litigant in the civil courts.  At this point in American jurisprudence, it is a long accepted concept that the United States government will appear as civil plaintiff for the enforcement and implementation of a wide range of governmental functions.  The jurisdiction of the civil courts over such actions is expressly provided in many federal laws, including all of the environmental laws.  Compare, for example, the language of the Clean Water Act (Section 309), where "the Administrator [of EPA] is authorized to bring a civil action. . . for any [specified] violation . . . in the district court of the United States", with the language of the Toxic Substance Control Act (Section 17), where "the district courts of the United States shall have jurisdiction over civil actions to . . . compel . . . the taking of any action required by [the Act]." In general, the U.S. environmental statutes also provide for access by the government to the civil courts in environmental emergencies, whether or not there is a specific violation of the environmental laws.  See, for example, Section 303 of the Clean Air Act, Section 504 of the Clean Water Act, or Section 7003 of the Resource Conservation and Recovery Act.  There is no comparable history of access by the Dutch executive authorities to the civil courts.  In general, the Dutch legal system has established a clear distinction between governmental (or administrative) law on the one hand and civil or private law on the other.  While the government can and does appear as a litigant in the civil courts, it enters them largely as a private party, with claims which are the same as or analogous to claims available to private litigants, such as contract or tort claims.  The notion of effectuating uniquely executive authority in the civil courts is mostly alien to the history of civil jurisprudence in the Netherlands.  Nevertheless, the Dutch civil courts do recognize the special nature of the interests which government is entities to protect and the special manner in which the potential or actual experience of damages occurs to the government.  Further, there are certain express statutory provisions for the government's use of civil courts to obtain reimbursement of pollution response costs, such as set forth in Article 21, paragraph 11 of the Soil Cleanup Act.

As a result of this important historic difference of the role of the courts, U.S. environmental statutes have routinely provided an enforcement role for the civil courts while Dutch statutes make no such express provision for use of the civil courts.  Consequently, the Dutch government (national, provincial, or municipal) may seek action from those courts only when it has a cause of action like those available to all private litigants, such as for recovery of costs expended as the result of the negligence (tort) of another or to prevent the commission of a tort, i.e. for emergency action to halt a dangerous situation which, if left unchecked, could result in the government's being damaged through having to expend funds to respond to the situation.  In these kinds of cases, the key issue is not whether there is a violation of the environmental statutes, but whether there is an action in the nature of a tort by which the government has been or appears about to be damaged.  Of course, evidence of violation is relevant to the issue of whether there is negligence, but it is not necessary, and it is not sufficient in the absence of a showing of damages or the threat of damages.  There have been a number of cases successfully pursued in the Netherlands using this approach, primarily to recoup costs for soil cleanup activities.  State vs. Philips Duphar (Volgermeerpolder) (Civil Court, May 31, 1989); State vs. Akzo (Civil Court, December 12, 1990); State vs.  Aaprunol (Civil Court, November 10, 1989).  There has also been some use of the emergency order authority of the civil courts.  State vs.  Benchiser (Supreme Court, April 14, 1988).  However, the availability of the civil courts for environmental enforcement remains limited.

Because of the more extensive role provided for civil judicial enforcement under U.S. law, it is possible in that system to identify other legal structural factors relating to the civil judicial option which are relevant to the choice among enforcement options.  For example, there are some important differences among U.S. environmental laws relating to both injunctive (compliance order) authorities of the courts and to penalty provisions.  Under the Toxic Substances Control Act, for example, there is no express provision for administrative orders for compliance, so that there is only the choice of the court for obtaining a clear legally binding order to comply.  However, the penalty authority of TSCA is limited to the administrative forum.  This creates the dilemma of either choosing a solely penalty enforcement approach, a solely injunctive action enforcement approach, or pursuing enforcement in two different forums, even though the issue of liability will be the same for both.  Although TSCA is the only statute that presents this particular scheme, the Resource Conservation and Recovery Act provides the other extreme: complete injunctive and penalty authority in both the judicial and administrative forums.  Under this statute and most of the others, the enforcement authorities are generally presented with the issue of whether to seek compliance orders directly from the courts or whether to first issue such orders administratively, with the option of seeking to enforce the administrative orders in the courts in the event of violations of the administrative order.  This decision is usually affected by the extent to which it is important to seek penalties for past violations at the same time, the complexity and duration of the compliance tasks to be addressed by such orders, the anticipated likelihood of compliance, and other strategic considerations.  However, the choice of whether to invoke the civil judicial option must be informed by a careful analysis of the specific legal provisions for judicial enforce­ment contained in the environmental laws that are relevant to the facts of the case.  Indeed, the differences in such provisions may also affect that choice of which environmental statute(s) to rely on in circumstances where the facts of the case permit a choice among statutes.