Workshop Session 2: INECE Compliance and Enforcement Indicators and Other Current Topics

2A1 - ECE Indicators: Getting Started
Facilitators: Dave Pascoe, Environment Canada and Angela Bularga, Regulatory Environmental Programme Implementation Network / OECD

Draft Summary: This workshop emphasized that the difficulties with result-oriented measures should not dissuade programs from beginning in more limited ways. Output indicators with measures such as inspection numbers or the number of regulated entities are a necessary component of indicator systems, despite their limits in showing the environmental results. However, even though the data may be difficult to collect and manage, limited outcomes measures should be sought. Care must be taken not to create measures that create perverse incentives such as increasing the number of insignificant inspections or cases to show greater activity, or indicating the lack of violations as a success rather than as an indication that compliance status is unknown. Indicators must be developed early in the management process and be used to guide resource dedication and strategies. Indicators should be examined in light of the expectations of the programs and may help explain to the public and other stakeholders (who may have other expectations) why regulators act as they do.

INECE could (1) work with Regional Networks to promote global use of ECE indicators and continue to promote the issue to help the networks connect with funders; (2) share information between countries and standardize definitions and terminology to develop a common language on the subject; (3) develop training and guidance on the development and use of basic components, including some specific indicators with which to begin.

2A2 - ECE Indicators: Getting Started
Facilitators: Waltraud Petek, Austrian Ministry of Agriculture and Forestry and Michael Stahl, U.S. Environmental Protection Agency

Draft Summary: Several countries have a history of "State of the Environment" indicators. The challenge is to develop a whole spectrum of indicators from input to outcome and on several intermediate stages. One should not try to make this link by one big leap. An incremental approach is the only way to do so and focus should be given to intermediate outcome indicators. There is not one ideal set of indicators that can be used by every country. There only seems to be a general approach or process of identifying, developing, and implementing ECE Indicators.

INECE could assist countries in the process of identifying, developing, and implementing performance indicators on environmental compliance and enforcement in several ways: (1) by building capacity, e.g., by building these notions on the ECE Indicators process into a training course; (2) by presenting a library of examples of basic indicators, used by different countries, preferably categorized by type or use, so as to give direction to new schemes and to provide a possible benchmark for existing schemes; (3) by encouraging the exchange of information through INECE's website, not only about successes, but also about burdens and failures; (4) by investigating the use of ECE Indicators in situations of cross-compliance, e.g., where the granting of agricultural subsidies is dependent on compliance with environmental regulations; and (5) by continuing the e-dialogue on ECE Indicators with an exchange of experiences with intermediate outcome indicators.

2A3/2A4 - ECE Indicators: Getting Started
Facilitators: Maria Di Paola, FARN, Argentina; Myriam Linster, OECD; Jose Pablo Gonzalez, Costa Rica; and Ken Markowitz, INECE Secretariat

Draft Summary: The lessons learned from this workshop were four-fold. First, while long-term outcomes are attractive goals, they can also be discouraging, since they are difficult to meet and are not immediate. One suggestion was to focus on intermediate outcomes. The second lesson learned stemmed from a concern about whether a minimum standard or requirement could be articulated when trying to start a pilot program, especially since funding can be problematic. Workshop participants agreed that INECE should encourage creativity to account for the different outcomes possible for different countries with different issues. Participants discussed the need to provide inspectors and enforcers of environmental regulations with training and a methodology for ensuring good information management and sharing.

The final two lessons learned addressed the issue of information sharing. The workshop participants' third recommendation was for INECE to continue ECE indicator training, a dynamic process, and to serve as a mechanism encouraging partnerships with institutions critical to creativity and stewardship. This could be done through using the INECE website for countries to share their experiences. The final recommendation to INECE and lesson learned was the need for regional, national, and domestic movement and cooperation as the primary means for INECE to achieve its goals. Without this domestic support system, INECE would be only able to frame an agenda, but not enforce it.

2E - Criminal Law and Environment: Prosecutors, Inspectors, Police and Nongovernmental Organizations
Facilitators: Antonio Benjamin, Brazil and David Uhlmann, U.S. Department of Justice

Draft Summary: The first part of the session focused on key foundation issues that must be addressed in establishing an environmental criminal enforcement program. Those issues include:

1. The nature of the criminal offense - Is the relevant statute aimed at protecting human health, or does it also include the environment?
2. Issues of scienter - What is the mental state standard; e.g., knowing, negligence, strict liability?
3. Who is liable? - Does this include corporations, responsible corporate officers, etc.?
4. Standing to prosecute - Role of victims and NGOs.
5. Penalties - Imprisonment, fines, restitution, compliance orders, etc.
6. Statute of limitations - Should there be one? If so, should it start from the point of discovery?

The second part of the workshop generated a lively discussion concerning the key components of an effective environmental criminal enforcement program. Those components include:

1. Will - Underlying all of the components, there must be the will on the part of the political establishment and the executors to provide the energy and resources to do the job.
2. Statutory framework - There should be a clearly articulated statutory base complemented by an effective regulatory program.
3. Capacity building - Regulators, investigators, prosecutors, and judges all need training to perform their duties.
4. Effective communication - There needs to be trust and open communication among all members of the team; e.g., among investigators, regulators, prosecutors, and other stakeholders.
5. Case selection criteria - Investigative and prosecutorial decisions should be based on clearly articulated criteria and priorities.
6. Outreach and publicity - There needs to be outreach in order to inform the public of case accomplishments and initiatives. This is the only way to accomplish the objective of general deterrence.
7. International cooperation - There needs to be open communication with international organizations and counterparts. This could assist domestic programs in creating the necessary political will.
8. Truly integrated system - A goal to attain is an environmental criminal enforcement program that is truly integrated with all levels of government (i.e., federal, state or provincial, and local). Also, the criminal program should be integrated with administrative and civil enforcement programs, if they exist.

2F - Role of the Courts, Nongovernmental Organizations, and the Press: Climate Litigation Case Study
Facilitators: Peter Lehner, New York Attorney General's Office and Catherine Pearce, Friends of the Earth, UK

Draft Summary: The facilitators began the workshop by describing some of the prominent climate change litigation cases and discussing how these cases may be used to spur action. Participants contributed other ideas for action in response to climate change including: 1) human rights actions based on the right to a clean and healthy environment; 2) cases and communication campaigns highlighting government-backed projects that contribute to climate change; 3) tort actions based in nuisance or trespass based on property damage caused by climate change (such as rising seas levels leading to loss or destruction of coastal property); and 4) legal actions concerning countries or institutions unfairly subsidizing industries that are accelerating climate change.

"Framing" a responsive, engaging message on climate change was also discussed. The general consensus was that media messages about climate change needed to be communicated in a simple, straightforward, and interesting manner in order to grab the attention of a skeptical and/or uninformed public and to answer concerted efforts to dispute the fact that climate change is really occurring. Participants agreed that any message of the dramatic effects of climate change should be combined with a message of hope, including solutions for the future. This "message of hope" could involve telling the story of climate change as it relates to human values and the effects on local communities. A values-based message could be built around the right to clean air, clean water, and a clean environment, in order to preserve the health of future generations. Part of this message would also be that addressing climate change will lead to substantial economic benefits, as entire new areas of industry built on renewable and greener energy sources will create new technology, business development, and job opportunities.

It was suggested that INECE could investigate areas of cooperation in capacity building, networking, and creating of awareness, not only in the form of exchanging ideas and sharing experiences, but by generating material which helps educate the media, the judiciary, and the public and counters the current media "spin" on climate change issues. INECE could also develop concise abstracts in many languages on the science of global warming to be distributed through the web and other media.

2G - Compliance with and Enforcement of Multilateral Environmental Agreements
Facilitators: Elizabeth Mrema, UNEP and Carl Bruch, UNEP

Draft Summary: Workshop facilitators presented an introduction to the United Nations Environment Programme's Guidelines on Compliance with and Enforcement of Multilateral Environmental Agreements (MEAs), which is designed to guide the implementation of existing MEAs, MEAs under negotiation, and MEAs to be negotiated. As follow-up to the Guidelines, UNEP is developing a Manual which is intended to provide options to choose from in promoting compliance with and enforcement of MEAs, as well as further clarification on how the tools described in the Guidelines can be used. The draft Manual has been tested through a series of regional workshops. UNEP is also trying to test/implement the Manual by initiating pilot projects at regional and national levels.

The facilitators concluded the meeting by soliciting comments on the Manual. More case studies are welcomed, as well as suggestions for pilot projects. UNEP is also looking for suggestions for follow-up activities to promote compliance with and enforcement of MEAs. Suggestions were made to use the Manual in university-level courses as well as to make it available to environmental institutes, NGOs, and other training institutions. Suggestions are also sought on improving the indexing to the Manual, in order to increase its value as a reference material.

2H - Wildlife Enforcement Network
Facilitators: Azzedine Downes, International Fund for Animal Welfare; Yvan Lafleur, Environment Canada; and Ladislav Miko, Czech Republic (European Commission DG Environment Directorate B, Designate)

Although the schedule said that this group would develop tools for use in a wildlife enforcement network, the group felt unable to do this until there was a clearer concept of what kind of structure "wildlife enforcement network" meant. To this end, The workshop began with a discussion to define the concept of a "wildlife enforcement network." The group then examined and defined certain key aspects of the network like: what its membership would be, what its functions would be, and how to ensure its effectiveness across development, cultural and language barriers. Overall, there was absolute agreement that such a network is both necessary and useful.

On the issue of membership, the group discussed the fact that although some wildlife enforcement networks currently exist (for instance, within CITES, Interpol, and Europol), these are limited in their participation to officials from agencies with actual enforcement/police powers. The group felt that any new network should not include only those groups, but should also include nongovernmental organizations with a clear involvement and expertise in wildlife enforcement and compliance. While these nongovernmental organizations would be members, only specific individuals within these nongovernmental organizations would have access to sensitive data). The group felt that the network should not just link people with the same functions to one another (i.e. investigators to investigators), but should reflect a more holistic vision of enforcement by engaging representatives of agencies across the enforcement chain (officials, on-the-ground investigators and rangers, prosecutors and judges) in this integrated forum.

2I - Negotiated Compliance Agreements
Facilitators: Ike Ndlovu, Department of Environmental Affairs and Tourism, South Africa and Susan Bromm, U.S. Environmental Protection Agency

Draft Summary: The group first established a common definition of a negotiated agreement as a formal document negotiated between two or more parties to resolve a dispute and that meets the needs and some of the desires of each party. Four categories of negotiated agreement were then defined:

• agreement for a party to make improvement to the environment beyond what is formally required.
• agreement for a party to meet a future compliance date for an established requirement
• agreement for a party to go beyond a future compliance date for an established requirement
• agreement for a party to comply with a past compliance date where there is an established violation

The last three can be called Negotiated Compliance Agreements since they relate to an established requirement. The following four questions relating to negotiated compliance agreements were then discussed.

1. What motivations exist to enter into negotiations for compliance agreements for industry? for government?
2. Are there situations in which governments should not use the compliance agreement?
3. What are elements of a good compliance agreement? Should some elements be non-negotiable?
4. Are there examples of creative elements that your country has included in compliance agreements?

Finally, the group felt it would be useful for INECE to develop guideline documents on negotiated compliance agreements that would help practitioners understand the usefulness of this mechanism and what/why certain elements should be included in the agreement.