Improving environmental governance has emerged as an increasingly important theme in recent U.S. environmental cooperation efforts. In particular, countries with which the U.S. has recently negotiated Free Trade Agreements (FTAs) or is in the process of negotiating FTAs have been the focus of environmental law and enforcement capacity building efforts.

The international community has long recognized the critical role the application of environmental law plays in sustainable development. Agenda 21 highlights the importance of "improving the legal-institutional capacities of countries to cope with national problems of governance and effective law-making and law-applying in the field of environment and sustainable development." Gaps in environmental legal and enforcement systems can diminish a country's ability to ensure that the impacts of trade liberalization do not result in environmental degradation but instead benefits a country's people.

EPA efforts in this area take place against the backdrop of an ambitious U.S. trade liberalization agenda, led by the U.S. Office of the Trade Representative (USTR). While for a period of time progress has been slow in multilateral discussions such as the World Trade Organization Doha Round and the Free Trade Area of Americas negotiations, USTR has simultaneously moved ahead with a host of Free Trade Agreements (FTAs) such as the FTAs between the U.S. and Jordan, Singapore, and Chile. FTAs with Australia and several Central American countries have been signed but have not yet approved by Congress. Negotiations are currently underway with several Andean countries, Bahrain, Thailand, and five Southern African Customs Union (SACU) countries.

The U.S. FTAs with Jordan, Chile, Singapore, Australia, and Central America include provisions committing to effective enforcement of environmental laws.

In part, the opportunity is there because our FTA partners are often countries that are simultaneously modernizing their economic and political systems while seeking to improve environmental governance, including their capacity to apply and enforce environmental law and to address potential environmental impacts of increased trade. This confluence between U.S. objectives and the objectives of our trading partners presents opportunities for cooperative work to strengthen the environmental framework from the ground up, starting with the critical building blocks of environmental law and enforcement.

One means to achieve this is through the variety of environmental cooperation commitments the U.S. has signed with these FTA partners. These instruments take a variety of forms, ranging from an Agreement on Environmental Cooperation with Chile, to a Joint Statement with Morocco, to a Memorandum of Intent with Singapore.

To address the increasing pace of trade negotiations and consequent environmental cooperation opportunities and commitments, the EPA in 2003 formed a cross-office team to coordinate its international environmental law and enforcement training efforts. The EPA International Environmental Law and Enforcement Training Team (IELET) includes members from EPA's Office of International Affairs (OIA), Office of Enforcement and Compliance Assurance (OECA), Office of General Counsel (OGC), and EPA Regions.

The IELET was given the task of developing an inter-disciplinary training curriculum for enforcement personnel, legislators, and judges on environmental law and enforcement. This Environmental Law and Enforcement training incorporates and builds on training materials on environmental enforcement and environmental law which had been developed separately by OECA and OGC.

A pilot test before environmental officials in Morocco in May 2004 received generally favorable reviews. It received another pilot test before environmental officials and stakeholders from the SACU countries (Botswana, Lesotho, Namibia, South Africa, and Swaziland) in October 2004. One unique aspect of this delivery was that it was hosted by the U.S. Department of State International Law Enforcement Academy in Gabarone, Botswana - thus pioneering a promising new collaboration between environmental law and enforcement cooperation and an dedicated to traditional law enforcement activities.

Environmental Law Enforcement in Brazil: Challenges, Constraints, and Suggestions
By Rachel Biderman Furriela, Attorney-at-Law, Masters of Laws (LL.M.), and MSc Environmental Sciences, São Paulo, Brazil. Email: biderman@uol.com.br

Brazil has a strong institutional and legal framework for pollution control and environmental protection, which began to be developed in the 1960s and has been enhanced over the last decades. Civil society groups started getting organized in the 1980s and 1990s, after the military dictatorship ended. However, environmental questions are still not part of the main political agendas of the government or business groups. Environmental control agencies are saddled with low budgets, insufficient personnel, and a weak infrastructure to comply with all their legal obligations. Most significantly, the state of Brazil's environment continues to deteriorate: the Amazon rainforest is still being lost at the rate of 20 thousand square kilometers per year (http://www.greenpeace.org/international_en/campaigns/intro?campaign_id=4006). The savannah is being pressured by extensive monoculture that is extremely dependent on pesticides, and there is only 7 percent of the original Atlantic Rainforest left along the coast.

The most important environmental norms were passed in the 1980s and 1990s and in the beginning of this decade. In the early 1980s, Brazil's first general environmental policy law was passed (Law n. 6,938 of 1981) creating institutions under the National Environmental System: environmental ministry, environmental agency, and police, among others. In 2004 the Brazilian Army joined the enforcement team to help in border areas, mainly in the Amazon region. A law on Public Civil Action was passed in 1985, and since then, both government and NGOs became legitimate actors to file suits in the judiciary on environmental grounds. Individuals can also sue on those grounds, in some specific cases, by filing Popular Actions.

The basis for environmental enforcement was established by the Brazilian Constitution enacted in 1988, which contains a chapter on environmental protection, along with other articles pertaining to environmental issues (http://www.brazil.org.uk/page.php?cid=1322). It establishes the right to a healthy environment and stipulates that economic development and private property are rights that are subject to the principle of environmental protection. It establishes the basis for both government and civil society to challenge violators of environmental norms.

A new era of enforcement began in 1998 when the Brazilian Environmental Crimes Law was passed (Law No. 9,605). The Environmental Crimes Law consolidates in one legal document different environmental crimes that were previously part of different laws. It also establishes new crimes, creating stronger tools for enforcement agents to operate more effectively. Furthermore, it regulates administrative violations and penalties and makes administrative penalties far more expensive, when compared to previous norms. Significantly, the new law stipulates that corporations can be held criminally accountable for environmental violations, and their CEOs can be put in jail for irresponsible and criminal decisions they may take. The prospect of prison is finally forcing companies and executives to focus on environmental issues.

Despite the improvements brought by the 1998 Environmental Crimes Law, environmental enforcement in the country is far from ideal (www.brazil.org.uk/page.php?cid=1745). Many challenges need to be faced in a wide range of areas. With regard to administrative issues, the main problems are lack of financial and human resources for environmental agencies to perform their duties. These agencies normally have the lowest budgets among all governmental agencies, are understaffed and do not promote enough training programs to improve and optimize the capacity of environmental agents. There are not enough agents in environmentally sensitive areas, such as the Amazon, or the "Cerrado" (savannah) region, threatened by large-scale agriculture and logging. The agencies also lack sufficient infrastructure and equipment.

The excessive number of laws and the failure to integrate them is another major problem. Also, there is normally poor knowledge of environmental laws even by enforcement agents, despite growing efforts to improve capacity by agencies, the judiciary, and the prosecutors' offices. Another problem is the existence of conflicts of competence and jurisdiction, created by contradictory laws. Unfortunately, one must say that there is still some level of corruption among environmental agents, which is another serious negative factor (Additional information at www.globalcorruptionreport.org, specifically the Country Report for Brazil at 163-65 at www.globalcorruptionreport.org/download/gcr2004/10_Country_reports_A_K.pdf)

Other relevant factors regarding environmental law enforcement in Brazil includes the lack of a consistent and coherent effort to coordinate environmental policies, measures and laws among all levels of government and jurisdictions. As a result, there are companies that migrate to states with lax enforcement.

Although environmental education became mandatory when the National Environmental Education Policy Act was passed in 1999, initiatives in this area are not sufficient for a country of the size of Brazil, and much of the educational effort still relies a lot on intermittent initiatives by NGOs. It is important that the government and other relevant social actors start serious and continuous efforts to promote environmental education at schools, universities and enterprises as well.

Furthermore, environmental groups are important actors with a larger role to play in demanding enforcement. Different initiatives have taken place both directly in the judiciary or in cooperation with the Prosecutors' Office, to promote environmental suits or demand responsible behavior by relevant actors. It is true, however, that NGOs still lack sufficient resources to help governmental agents by presenting claims and informing of violations.

Recently, in 2003, a Law on Access to Environmental Information was passed, which should enable civil society to demand more information from public and private entities with responsibilities in the field of environmental management. However, society as a whole still needs to become familiar with such an instrument.

There is clearly a need for fiscal reform that will allow exemptions and deductions by those agents that are environmentally responsible, i.e., companies that follow corporate sustainability guidelines and parameters should be able to deduct from income tax, or other taxes, the donations that they make to foundations, non-governmental organizations or directly to projects, in order to promote sustainable development initiatives in the country. Individual donors should also be allowed some sort of exemption in the same situations. Since this is not the case in Brazil, there is very little incentive for potential donors to promote such initiatives, and therefore, non-governmental entities have insufficient resources with which to operate. These types of economic incentives for environmental protection are urgently needed, as are complimentary measures to help promote enforcement of environmental norms. (Additional information at: www.camara.gov.br/internet/diretoria/conleg/RelatoriosEspeciais/303077.pdf, Section 3.3 (Portuguese only), discussing the need for environmental fiscal reform).

The federal and state government should also invest more in the hiring and retention of personnel, as well as increasing the budget in this area. There are numerous national and international institutions that can assist the government in training programs, such the Center on Sustainability Studies at Public and Private Administration School - Fundacao Getulio Vargas in S. Paulo (ces.fgvsp.br), Instituto Pro-Sustentabilidade (www.ipsus.org.br), INECE (www.inece.org), and the Inter-American Development Bank, among others. Also, different state environmental agencies have been historically involved in training initiatives of environmental agents in the country, such as CETESB, the state pollution control agency of S. Paulo.