THEME 7:    PUBLIC DISCLOSURE AND CITIZEN'S ROLE IN ENFORCEMENT

Recorder: Ann E. DeLong

1    Goals

An exploration of the role of public disclosure, citizen's and others in the enforcement process and their implications for achieving more widespread compliance.

2    Speakers

M. Bowman: The Role of Citizen's in Environmental Enforcement

R. Hallo: Citizen Role in Enforcement: A Spur, a Supplement and a Substitute

R. van Heuvelen: Citizen Participation in U.S. Environmental Enforcement

M. Fuhr: Citizen's Role in the Enforcement of Environmental Law in Europe

F. Irwin: From Public Disclosure to Public Accountability: What Impact will it have on Compliance?

N. Blackburn: Public Disclosure and its Impact on Compliance

R. De Baere: Disclosure of Environmental Information and Enforcement of Environmental Law in Flanders: The Complementary Role of Governmental Authorities and NGO's

E. Klatte: Enforcement of EC Environmental Legislation: The Role of Citizen's and Citizens' Groups

E. Popov: Public Disclosure and its Impact on Compliance: Results and Mistakes (the Case of Bulgaria)

P. Keough: Use of Public Disclosure in Environmental Protection Programs to Enhance Compliance and Change Behavior in the United States

Moderator: Mr. P. Keough, USA.

3    Presentations

Margaret Bowman, Director, Environmental Program, Environmental Law Institute. (USA)

Ms. Bowman presented an overview of the ways citizens can influence and enhance the ability of governments to enforce environmental laws. Among the suggestions she outlined were included publicizing legal requirements to citizens and industry, monitoring and reporting environmental violations,commenting on draft laws and regulations, suing government to perform the duties required by statutes, suing industry to comply with laws and leveraging nuisance and trespassing laws for environmental benefits. In order for citizen suits to be effective, environmental standards need to be clear, the judicial system must be amenable to citizen suits, adequate training in enforcement procedures must be provided and citizens need access to information. Citizens are the greatest natural resource for environmental laws because they have a personal stake in the environmental problems which directly affect them.

 

Robert Hallo, Coordinator for International Affairs, Netherlands Society for Nature and Environment. (Netherlands)

Mr. Hallo emphasized four important roles citizens (or citizen groups) can play in environmental enforcement: 1) to spur governments to act in a timely and effective manner, 2) to supplement governments efforts in environmental enforcement, 3) to act as a substitute for governments and act in cases where the government chooses not to (i.e. in low priority cases). To be effective in these areas, Mr. Hallo emphasized the importance of access to information, clear, enforceable laws and a sympathetic judicial system. He also warned against the danger of losing a citizen's suit and the subsequent difficulties that would pose for other citizen suits.

 

Robert van Heuvelen, Acting Director, Office of Civil Enforcement, U.S. EPA. (USA)

Mr. van Heuvelen discussed the utility of citizen suits to enhance government activities in environmental enforcement. He listed the benefits to government of citizen involvement including, identification of violations, participation in settlements, initiation of citizen suits and review of regulations. Activities governments can initiate to encourage citizen participation include public education on laws and procedures, access to information, institutionalizing statutory reward authorities and paid informant programs.

 

M. Fuhr, ELNI. (Germany)

Mr. Fuhr described the importance of citizen participation in decision-making procedures. He stressed the importance of easy access to information and also the need for good data. Citizens currently have access to government information but not to industry data. Citizens, governments and polluters need to work together for the most effective enforcement programs.

 

Francis Irwin, Director, Pollution Prevention, World Wildlife Fund. (USA)

Ms. Irwin described three tools governments and industry can use to communicate environmental information to the public and how that information can be used to encourage public accountability by industry. The United States has enacted a community right-to-know regulation which requires industry to provide information to the government on annual emissions, recycling of chemicals, accidental releases and source reduction measures taken by the industry. This information is available to the public through the government and has been used by NGOs to push pollution prevention measures by industry. Industries are also encouraged to prepare environmental audits and to make this information available publicly. Lastly, in the EC, companies are using product labeling to make environmental claims.

 

Nigel Blackburn, Director, International Chamber of Commerce. (France)

Mr. Blackburn addressed the impact of public disclosure on compliance. He stressed that many businesses have voluntarily agreed to establish environmental policies, that UNCED promoted public disclosure of environmental information and that many businesses are preparing environmental audits and environmental performance reports designed for public consumption. He suggested that economic instruments, such as tradeable permits, were favored to promote environmentally sound business practices.

R. De Baere, Bond Beter Leefmilieu. (Belgium)

Mr. De Baere described the complementary roles of the government and NGOs in environmental enforcement in Belgium. Citizens can participate in licensing procedures, for example, however, access to the information leading up to the licensing decision is not available to the public. This was a general problem with access to information--that information is only available upon demand (the government does not take a proactive role in publishing environmental data) and that the secrecy of duty code for public servants was a barrier to accessing environmental information. Mr.De Baere called on the EC to set minimum standards for licensing procedures, accessibility of information and public participation.

 

E.R. Klatte, DG Environment, Nuclear Safety and Civil Protection, Commission of the European Communities. (EC)

Dr. Klatte provided practical information regarding the role of the EC in supporting citizen participation, providing access to information and regulating compliance by member states. He reviewed the three types of EC legislation--directives, regulations and decisions--that are legally binding on member states. He also stated that implementation of EC directives by member states is very poor but that the member states do not want the EC to monitor their compliance. Citizens, therefore, play a key role in ensuring compliance through citizen complaints. Citizens have the right to complain, the right to petition the EC Parliament, the right to obtain information, the right to participate in the legislative process and standing in the European Court of Justice. When a citizen complains, the Commission sends a letter to the appropriate agency in the member state requesting clarification. This procedure is effectively used by NGOs to access information otherwise difficult to obtain. Any citizen (even from non-member states) can request information.

 

E. Popov, Ecoglasnost. (Bulgaria)

Mr. Popov described the difficulties experienced by a Bulgarian NGO in increasing the environmental awareness of citizens and government officials and influencing changes in environmental legislation. Problems encountered include the fact that government officials are not aware of citizen's rights, individual citizen's initiatives are not seen as credible by the government and that no provisions for public participation are included in current legislation. New EIA legislation is addressing this problem by incorporating provisions for public comment on draft and final rules and for public hearings. With the movement towards privatization of industry, citizens need to be even more involved in decision-making and policy-making roles.

 

Paul Keough, Deputy Regional Administrator, USEPA, Region I. (USA)

Mr. Keough discussed the role of public disclosure in environmental enforcement in the United States. Because almost all of the data submitted to the EPA by industry is public, disclosure of this information can have a profound effect on how a company does business. EPA trains journalists how to obtain and interpret environmental data and views the disclosure of this information as an important tool for enforcement. Also, the publication of enforcement actions taken by EPA in the press has a deterrent effect on other members of the regulated community. Currently, EPA is trying to design a program to recognize environmental excellence on the part of industry and to publish that information as well.

4    Open Discussion

Civil suits brought against government agencies for a failure to enforce provide an incentive for the government to get serious about their own enforcement efforts.

Several of the speakers and participants emphasized that citizen participation does not necessarily mean that the government is not doing its job--citizen participation should be seen as a supplement to government action.

When developing legislation governing citizen participation, it is important to provide for access to information and to the courts. Also, a mechanism needs to be provided to overcome the cost impediments to citizen suits. In the U.S., technical assistance grants can be provided to citizens groups active at Superfund sites. In England, in court cases, the loser pays all of the court fees.

Representatives from the EC and Central and East European countries stressed that citizens should work within the mechanisms currently available to them to stimulate governmental action on environmental issues. For example, some countries do not currently have a provision for citizen suits. However, citizens and NGOs can work within the existing system, using the media and other means to make their concerns heard. This can be just as effective as citizen suits and is much less costly and time-consuming.

The importance of citizen participation in monitoring efforts was discussed. Citizens know their environment, have a vested interest it the quality of that environment, and can play a central role in monitoring, setting permit limits and keeping an eye on the company's and government's actions. Citizens can continue to be involved after permits are issued.

The issue of data quality and reliability was raised, particularly in the context of citizen suits and monitoring. While data to be used in court typically has to meet certain quality criteria, other measurements can be used to stimulate citizens to become involved in the problem.

It was generally agreed that citizens need to become more active in requesting data, educating themselves on the meaning of that data, and getting involved. An active citizenry is necessary to have an impact on the government and on the environment.

5    Conclusions

Citizens need to be involved in enforcement programs to fill in where governments fail to act, to spur governments to act more swiftly or forcefully and to enhance government efforts in enforcement.

Citizen's participation can take many forms: providing input on draft legislation, monitoring and reporting environmental violations, publicizing legal requirements and violations and initiating citizen suits.

For citizen involvement to be effective, it is necessary to have clear environmental laws and standards, access to information, a judicial system that is receptive to citizen suits, and adequate training for citizens to enable them to interpret the information and initiate the procedures.

Governments need to support NGO participation in the enforcement process and involve NGOs in the current legislative and administrative framework.

Examples of effective information and educational tools that could be used by governments to enhance voluntary compliance and pollution prevention were suggested, including publishing chemical emission data, requiring environmental audits and regulating product labeling.

Business can play an active role in environmental protection through voluntary source reductions, environmental audits, and environmental labeling. Governments can assist in these efforts by providing technical assistance and information on waste minimization technologies.