Workshop Session 1: Exploring Current Environmental Compliance and Enforcement Topics

1A Economic Aspects of Compliance and Enforcement
Facilitators: Krzysztof Michalak, OECD and G.H.J. Ranter, The Netherlands

Draft Summary: One of the primary reasons that companies don't comply is that they are unwilling to spend the money necessary to do so. Another reason is that many permits may be too complex or overly burdensome, so companies cannot comply with every detail. Finally, companies may not see the effects of their actions when pollution is dispersed or the harm is caused far from their facility, decreasing their concern about and knowledge of the importance of their compliance.

One proposal for increasing enforcement efficiency would be to shift the burden of proof to the industry to show they are in compliance, rather than forcing the inspectorate to prove violations. In some areas, such as health requirements, "guilty until proven innocent" may apply. Another effort for efficiency involved the prioritization of regulations, to allow inspectorates to better focus their efforts on the most important rules. Efforts are needed to focus permits on outcomes instead of detailed requirements mandating methods to achieve those outcomes. Subsequent penalties should take away economic incentives to violate, make violators rethink their practices, and compensate the public for any harm caused.

1B Compliance Incentives and Other Assistance
Facilitators: Rene Drolet, Environment Canada and Thomas Maslany, United States

Draft Summary: Compliance assistance and incentives are only effective if they are backed by a strong threat of sanctions. To secure compliance, the regulated community must: (1) be aware of the rule; (2) be willing to comply; and (3) be able to comply. The regulated community may be divided into three groups, which change over time based on how the agency interacts with the community, the type of community, and the type of regulation:

1) Compliant Group: complies irrespective of what the government does; believes in rule of law; believes in environmental protection; incorporates environmental regulations into their business plans (Note: government behavior can change the size of this group.)
2) Reactive Group: decides to comply based on the government's behavior/actions (usually the largest group).
3) Enforce Group: refuses to comply with environmental laws and regulations except when threatened with sanctions or after sanctions have been levied.

A key question for compliance assurance: How can government agencies motivate the Reactive Group?
Answer: The carrot and the stick (e.g. assistance and incentives offered against backdrop of enforcement). Some types of compliance assistance include: compliance assistance centers; workshops/training; printed material; audits/inspections; skill transfer programs; training of compliance assistance providers. Some types of positive incentives include: awards; green labels; tax incentives; low cost loans; tax incentives; and legal time extensions. Some types of negative incentives include: public disclosure of non-compliance; financial disclosure of environmental liabilities; and pollution fees.

1C Ecomessage/Interpol and the Police
Facilitators: William Clark, IFAW and Andrew Lauterback, U.S. EPA/Interpol

Draft Summary: Ecomessage is one of the activities that was initiated by Interpol's Environmental Crimes Committee. More specifically, it is a product of two working groups of the Committee, i.e., the Wildlife Crimes Working Group and the Pollution Crimes Working Group. The objectives of the Ecomessage are to enhance communication among environmental law enforcement in different countries and to develop a database to determine trends and information with regard to environmental criminal activity. The Ecomessage system covers all environmental crime having international ramifications such as: wildlife smuggling, illegal transboundary shipment of waste, vessel pollution, and smuggling of ozone depleting substances.

1D Compliance and Enforcement Theories and Design Principles
Facilitators: Lee Paddock, IUCN and Marcia Mulkey, United States

Draft Summary: The workshop began with opening comments from the facilitators laying out the idea of first principles, underlying theories and beliefs, and the need to have a common system of beliefs or values in order to design effective programs and to strategically direct limited resources to raise compliance and influence the drivers of human behavior. Participants shared experiences of designing enforcement systems and discussed enforcement and compliance design problems in the Netherlands, Bahrain, Tanzania, Turkey, Italy, England & Wales, and Canada. There was frequent discussion of the need for those who write laws to consult with those who enforce them in the course of drafting environmental laws. Palamagamba Kabudi of Tanzania discussed the importance of securing legitimacy by involving the public in development of environmental laws.

It was suggested that INECE could investigate areas of cooperation in capacity building not only in the form of exchanging ideas and sharing experiences, but also by providing human resource assistance to those now designing enforcement systems so that they do not repeat the same mistakes already made by others. In other words, INECE should investigate capacity building not just in terms of field implementation, but also in terms of strategies.

1F Information management, Reporting Requirements, and Self-monitoring
Facilitators: Sandy Rowden, Environment Agency (England and Wales); Chris Howes, Environment Agency (England and Wales); Donna Campbell, New South Wales Environment Protection Authority, Australia; and Markku Hietamäki, Finland

Draft Summary: At the beginning of the workshop, it was considered that the words "self monitoring" are misleading and often misunderstood. The group decided to limit the discussion to situations in which authorities order the operator to carry out the environmental monitoring. The group agreed there was a need to come up with a new word to describe this form of monitoring, particularly given the panel discussion in the morning that highlighted the importance of sending the community the right message. The group agreed that information obtained from operators was critically important, as it provided the fuel that drives the train of industrial facilities' environmental performance.

1G Good Governance and the Rule of Law
Facilitator: Adriana Bianchi, World Bank Institute; Angela Bulgara, OECD; Michael Stahl, US EPA

Draft Summary: The purpose of the meeting is to explore concepts of good governance and rule of law, and their relationship to sustainable development. An emphasis is on the word "explore," since the relationship between these concepts is not always clear and requires some elaboration. How do we move away from a situation in which incentive structures promote corruption and poor governance, and move towards a situation in which we have improved governance? How do we know if we reach this goal? What kinds of indicators do we need? What is the role of indicators in helping to measure progress and move us forward?

During the brainstorming, a range of issues arose: The OECD principles are mostly about tools not outcomes, and the approach is still in a pilot phase; in Canada, policy work requires communicating something to senior and elected officials; in developing countries, the audience is often local enforcers who would do more if they had resources and capacity; developing countries often don't have a culture of accountability but educating people about their rights, and helping them to demand good governance, is essential; a challenge is to focus on concrete projects to strengthen compliance, while keeping in mind broader goals such as rule of law; public opinion is not always for environmental protection; and major challenges arise when we pick the elements indicators will cover.

1H Communications Policy and Practice
Facilitators: John Cruden, U.S. Department of Justice and Krystyna Panek-Gondek, Poland

Draft Summary: The facilitators began by stating that, in the context of this workshop, the term "effective communications" means communications that promote or advance environmental compliance and enforcement. For communications with the public, nongovernmental organizations, and the press to be effective, the message must be delivered in an honest, accurate, and timely manner. To promote enforcement within the regulated community, the results of enforcement activities should be shared, along with public reports on both violators and facilities that have come into compliance. Enforcement should also be promoted inside government agencies and related authorities, as well as among government agencies at the regional level.

Participants requested that INECE develop a communications strategy, which could be based on a survey of best practices from around the world. INECE should also look at ways that environmental compliance and enforcement indicators can be used as a tool to communicate messages about environmental compliance and enforcement activities to diverse audiences in a clear and concise manner.

1I Citizen Participation in Environmental Enforcement
Facilitators: Barry Hill, U.S. Environmental Protection Agency; Georges Kremlis, European Commission; Katia Opalka, Commission for Environmental Cooperation; Romina Picolotti, Center for Human Rights and Environment, Argentina

Draft Summary: The three keys to citizen participation are: access to information, right to participation, and access to justice. It should be kept in mind that providing information costs the government a lot of time and effort, and there should be a feeling that it pays back. Public participation should enable citizens to make their views known, to ensure compliance with environmental law and the precautionary principle. Meaningful public participation would require all relevant environmental information to be made available and the views of the public to be taken into consideration to the extent possible.

Participants requested that INECE: strengthen governmental commitments and public support for regional agreements; present training workshops on innovative tools for meaningful public participation; develop a strategy for establishing guidelines for meaningful participation; make an effort to develop databases and other ways of providing information to the public; share success stories; promote human rights (e.g., to life or to health) as being closely related to environmental rights; and mention to governments that public participation can be advantageous and that information given by NGOs and the public should be used.