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Environmental
Enforcement Indicators
Report
Title: Elements
of Environmental Compliance and Enforcement Programs Worldwide
Source: Secretariat of INECE
Author: Juliet Cohen, Asst. to Durwood Zaelke
Date
of report review: November 5, 2001
Report notes:
The following is a descriptive list of seven elements of environmental
compliance and enforcement programs worldwide. The European Union
(“EU”), NAFTA Commission for Environmental Cooperation
(“CEC”), Organization for Economic Co-operation and Development
(“OECD”), and International Network for Environmental
Compliance and Enforcement (“INECE”), in whole or in part,
have identified the following elements in their effort to assess
their member nation’s capacity for compliance and enforcement
of environmental laws and regulations.
1. Status
of environmental protection laws and enforcement regulations
2. Institutional capacity for compliance and enforcement programs
3. Environmental management systems
4. Public involvement and education
5. Data collection and monitoring
6. Promoting compliance and compliance assistance
7. Responding to violations and ensuring program accountability
1.
Status of environmental protection laws and enforcement regulations
EU: The
EU’s environmental legislation is comprised of 300 legal acts,
including directives, regulations, decisions and recommendations.[1]
About 10% of EU environmental laws are in the form of regulations;
they are binding and may supersede any conflicting national laws.[2]
Candidate countries for the EU are responsible for the adoption
or approximation, a process known as transposition, of EU laws to
their national legal order before the time accession.[3]
OECD: Generally,
the enactment of environmental laws and regulations in OECD member
countries is part of an environmental protection cycle that includes
policy planning, permitting, implementation, and enforcement.[4]
However, in some Newly Independent States (“NIS”) the
environmental regulatory process is dissimilar because the process
tends to be a top-down approach.[5] The main weakness of the top-down
approach is that there is no mechanism for feedback from environmental
inspectors about the effectiveness of the law, regulation, and permitting
process.[6]
2.
Institutional capacity for compliance and enforcement programs
EU: The process of transposition and implementation
will generally require that candidate countries build new environmental
infrastructure.[7] Environmental infrastructure needed to implement
EU directives and regulations typically includes effective systems
and institutions for monitoring and reporting on emissions and environmental
quality and inspection, institutions and procedures facilitating
public participation in environmental management, and administrative
and judicial recourse for violation of environmental laws. [8]
OECD: OECD member
countries assess environmental performance--in part--by the distribution
of environmental protection responsibilities among different agencies
and levels of government.[9] For example, in OECD member countries
an Environmental Ministry usually designs the policy, while the
environmental inspectorate manages the day-to-day implementation,
compliance and enforcement.[10] In contrast, the institutional structure
and division of responsibilities varies throughout the NIS.[11]
In the NIS enforcement institutions are typically subordinate to
the Environment Ministry; therefore, there is no formal institutional
separation.[12]
INECE: The success
of a country’s compliance and enforcement program is tied to
the establishment of national, regional, and local (municipal) institutions
with clear roles and responsibilities.[13]
3.
Environmental management systems
NAFTA Commission for Environmental Cooperation: Together the United
States, Mexico, and Canada developed a list of 10 elements for effective
environmental management systems for compliance and performance
to be used by the regulated and non-regulated communities (i.e.,
industry, public, government).[14] The NAFTA Commission for Environmental
Cooperation recommends that environmental management systems be
based on the following 10 elements: environmental policy; environmental
requirements and voluntary undertakings; objectives and targets;
structure, responsibility and resources; operational control; corrective
and preventive action and emergency procedures; training, awareness
and competence; organizational decision-making and planning; document
control; and continuous evaluation and improvement.[15]
OECD: The OECD
recognizes the value of implementing environmental management systems
within industry and states that the systems help “. . . incorporate
a culture of responsibility toward the environment, rather than
an occasional consideration of rules imposed by a regulatory institution.”[16]
On the other hand, some NIS countries have instituted a voluntary
approach to developing environmental management systems.[17] This
approach allows industry to develop individual methods to achieve
the environmental production targets set by country’s regulatory
institution.[18]
INECE: Knowing
who is required to meet the environmental requirements helps (1)
establish priorities for compliance and enforcement, (2) detect
violations, and (3) establish incentives for compliance.[19]
4.
Public involvement and education
EU: In the 6th Environmental Action Programme, the EU Commission
made a commitment to develop a more open and transparent government
to bring European citizens, including environmental interests closer
to the European institutions.[20] For example, the programme recognized
that NGOs play an important role in funneling the views of the 'person
in the street' to decision-makers by participating in expert or
technical groups and monitoring the implementation of legislation.[21]
Also, the EU Commission is working to improve the accessibility
and quality of information available to citizens on environment
issues.[22] For example, practical toolkits may be made available
citizens to benchmark their individual or household environmental
performance.[23]
OECD: Distribution
of information in the form of flyers, brochures, and the Internet
can be a powerful tool in promoting compliance by empowering the
public and NGOs to form a pressure on industry to work toward meeting
environmental requirements.[24] For example, through the use of
the environmental performance review, the OECD gauges the extent
of public participation in a country’s waste, water, or air
management program and whether information on that issue is disseminated
to the public.[25]
INECE: Public
involvement, which requires education, is essential to a successful
environmental compliance and enforcement effort. Strong public support,
authority, and capacity will help hold both government and the regulated
community accountable for securing compliance with and enforcement
of environmental requirements.[26]
5.
Data collection and monitoring
EU: EU
member states are required to report, via a questionnaire, the status
of transposition and implementation of approximately 70 directives
and 21 regulations; primarily air, water, and waste laws.[27] The
questions relate to whether the states are complying with the environmental
requirements of the directives. The European Commission collects
compliance data from individual Member States; this information
is available on the Internet.[28]
Candidate counties
are also required to report on the progress of the approximation
process. Candidate countries must supply an objective assessment
of the country’s current status of transposition and implementation,
and information on changes of that status over time.[29] To assist
candidate countries to transpose their nation’s laws, the Commission
for European Communities developed the Guide to the Approximation
of European Union Environmental Legislation (Commission Staff Working
document, July 1997).
OECD: Since
1992, the OECD has reviewed member countries environmental performance.[30]
The environmental performance reviews are done to help member countries
to improve their individual and collective performance in environmental
management.[31] The review process includes five steps: preparation
stage, review mission stage, peer review stage by GEP, publication
stage, and follow-up and monitoring.[32]
INECE: Compliance
self-monitoring, inspections, and enforcement data is the most visible
portion of a countries environmental performance and the most crucial
element of an enforcement program.[33]
6.
Promoting compliance and compliance assistance
EU: Technical assistance is available to candidate countries through
the “Technical Assistance Information Exchange Office”
(“TAIEX”). “TAIEX is a one-stop-shop for short-term
technical assistance on approximation and implementation, including
the necessary administrative infrastructures, of the EU Acquis.”[34]
The EU provides financial resource development guidance to candidate
countries to assist the countries approximation to EU laws.[35]
Also, as part of the 6th Environment Action Programme, the EU will
use transparency methods like a ‘shame and fame’ strategy
to encourage compliance with environmental requirements.[36]
OECD: Compliance
assistance generally takes the form of providing public education
and technical assistance to the regulated community; building public
support; publishing success stories; creative financing arrangements;
providing economic incentives; and building environmental management
capability within the regulated community.[37] Also, the OECD provides
compliance assistance to member states through the environmental
performance review to improve individual government’s progress
of environmental sustainability and economic progress.[38]
INECE: Compliance
assistance is made available to the regulated community to encourage
voluntary compliance with environmental requirements.[39]
7. Responding
to violations and ensuring program accountability
EU: The 6th Environmental Action Programme stresses the need for
Member States to better implement existing environmental laws and
states that the EU will bring increased pressure to bear on Member
States by making implementation failures better known.[40] The EU
Commission tracks infringement data and data on violation cases
under review.[41]
INECE: Achieving
widespread compliance depends on a program’s capacity to prevent
violations before they occur, but also to respond, correct and impose
consequences when violations do occur.[42] The execution of these
tasks in a timely and comprehensive manner will deter the regulated
community from future violations and move them in the direction
of compliance.[43]
Suggested
initiatives: n/a
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[1] Commission
of the European Communities, Guide to the Approximation of EU Environmental
Legislation, 4 (1997).
[2] Id. at 17.
[3] Id. at 8.
[4] Id. at Part 4.1.
[5] Id.
[6] Id.
[7] European Commission’s Directorate-General for Environmental
Protection, Progress Monitoring on Approximation in the Candidate
Countries of Central and Eastern Europe: Progress Monitoring Manual,
Sec. 4.2.
[8] European Commission’s Directorate-General for Environmental
Protection, Handbook for the Implementation of EU Environmental
Legislation, Sec. 2.1.3.
[9] OECD, Environmental Performance Reviews: A Practical Introduction
Annex 1- Checklist for Environmental Performance Reviews, (1997).
[10] Id.
[11] OECD Center for Co-Operation with Non-Members Environment Directorate,
Task Force for the Implementation of the Environmental Action Programmes
for Central and Eastern Europe, Environmental Compliance and Enforcement
in the NIS: A Survey of Current Practices of Environmental Inspectorates
and Options for Improvements, Part 3.1, (Oct. 18-19, 2000).
[12] Id.
[13] INECE, Country Progress/Self Assessment of Environmental Compliance
and Enforcement Programs – Preliminary Report, Sec. 2.2.
[14] Commission for Environmental Cooperation, Improving Environmental
Performance and Compliance, (June 2000).
[15] Id.
[16] OECD Center for Co-Operation with Non-Members Environment Directorate,
Task Force for the Implementation of the Environmental Action Programmes
for Central and Eastern Europe, Environmental Compliance and Enforcement
in the NIS: A Survey of Current Practices of Environmental Inspectorates
and Options for Improvements, Part 6.4, (Oct. 18-19, 2000).
[17] Id. at 6.4.
[18] Id.
[19] INECE, Country Progress/Self Assessment of Environmental Compliance
and Enforcement Programs – Preliminary Report, Sec. 2.4.
[20] Commission of the European Communities, Environment 2010: Our
Future, Our Choice – The Sixth Environment Action Programme,
Sec 8, (Jan. 24, 2001).
[21] Id.
[22] Id. AT Sec. 2.4.
[23] Id. at Sec. 2.4.
[24] OECD Center for Co-Operation with Non-Members Environment Directorate,
Task Force for the Implementation of the Environmental Action Programmes
for Central and Eastern Europe, Environmental Compliance and Enforcement
in the NIS: A Survey of Current Practices of Environmental Inspectorates
and Options for Improvements, Part 6.3, (Oct. 18-19, 2000).
[25] OECD, Environmental Performance Reviews: A Practical Introduction
Annex 1- Checklist for Environmental Performance Reviews, (1997).
[26] INECE, Country Progress/Self Assessment of Environmental Compliance
and Enforcement Programs – Preliminary Report, Sec. 2.8.
[27] Commission of the European Communities, Guide to the Approximation
of the European Union Environmental Legislation, 4 (1997).
[28] EU, Application of Community Law web site, http://www.europa.eu.int/comm/secretariat_general/sgb/droit_com/index_en.htm
[29] European Commission’s Directorate-General for Environmental
Protection, Progress Monitoring on Approximation in the Candidate
Countries of Central and Eastern Europe: Progress Monitoring Manual.
[30] OECD, Environmental Performance Reviews: A Practical Introduction,
Part 1, (1997).
[31] Id.
[32] Id.
[33] INECE, Country Progress/Self Assessment of Environmental Compliance
and Enforcement Programs – Preliminary Report, Sec. 2.5.
[34] European Commission Directorate General Enlargement, Technical
Assistance Information Exchange Office Web Site, http://www.carlbro.be/.
[35] Commission of the European Communities, The Challenge of the
Environmental Financing in the Candidate Countries, (2001).
[36] Commission of the European Communities, Environment 2010: Our
Future, Our Choice – The Sixth Environment Action Programme,
Sec 2.1 (Jan. 24, 2001).
[37] OECD, Task Force for the Implementation of the Environmental
Action Programmes for Central and Eastern Europe, Environmental
Compliance and Enforcement in the NIS: A Survey of Current Practices
of Environmental Inspectorates and Options for Improvements, Part
2.3.6, 2000.
[38] OECD, Environmental Performance Reviews: A Practical Introduction,
Part 1, (1997).
[39] INECE, Country Progress/Self Assessment of Environmental Compliance
and Enforcement Programs – Preliminary Report, Sec. 2.4.
[40] Commission of the European Communities, Environment 2010: Our
Future, Our Choice – The Sixth Environment Action Programme,
Sec 2.1 (Jan. 24, 2001).
[41] EU, Application of Community Law web site, http://www.europa.eu.int/comm/secretariat_general/sgb/droit_com/index_en.htm
[42] INECE, Country Progress/Self Assessment of Environmental Compliance
and Enforcement Programs – Preliminary Report, Sec. 2.6.
[43] Id.
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