INECE EPC Member Leads Effort To Create Environmental Ombudsman in Philippines

INECE Executive Planning Committee Member Antonio Oposa, Jr., recently witnessed more than a year of hard work come to fruition with the creation of an Environmental Ombudsman to facilitate the investigation and prosecution of citizen complaints against public officials violating environmental laws. Oposa, a Filipino environmental lawyer, has long been an outspoken engine of activism in his efforts to encourage the Government of the Philippines to enforce laws and regulations that protect the country's environment and conserve its natural resources.

Oposa worked with the Integrated Bar of the Philippines (IBP) and the Office of the Ombudsman to create an Environmental Ombudsman. The IBP also created the National Environmental Action Team (NEAT), which Oposa currently chairs, to provide legal and technical assistance on environmental issues to local governments and to collect and refer public complains to the Environmental Ombudsman.

In Cebu, NEAT has encouraged local government officials to implement and enforce the Ecological Solid Waste Management Act, according to the Sun Star Cebu on 26 June 2004. NEAT has threatened to sue local governments and officials to compel them to enforce the Act. "If you fail to implement the law, God bless you, [I will throw cases at you one after the other]," Oposa said in the Sun Star Cebu to officials who claimed that did not know of the law and lacked the resources to implement it.

NEAT has also worked to protect forest lands and national parks. In a story reported by ABS-CBN News on 30 July 2004, NEAT filed a petition for mandamus, asking the Supreme Court of the Philippines to compel the Office of the President, the Senate, the House of Representatives, and other government agencies to implement the "constitutional mandate of determining the specific limits of forest lands and national parks with clear marking of boundaries on the ground." In the petition, Oposa argued that "the framers of the 1987 Constitution were aware of the urgency to protect forest land," but no law has been written to reflect the Constitutional mandate.

Oposa has also urged President Gloria Macapagal Arroyo to highlight the environmental problems in the Philippines in policy speeches and in the State of the Union Address. In the 22 July 2004 issue of the Philippine Daily Enquirer, Oposa said that the president did not mention environmental issues in recent State of the Union Addresses. "We give too much importance to economics," Oposa said, "totally forgetting that the base of all economic activity is the security, supply, and quality of the very elements that support life, air, water and soil."

Indonesian Environmental NGO Builds Enforcement Strategy from the Ground Up
By Cecep Aminudin and Nadia Astriani, Capacity Building Division Staff, Indonesian Center for Environmental Law. Email: aminudin98@yahoo.com

The Indonesian Center for Environmental Law (ICEL) has worked for the past two years with the United Nations Development Program (UNDP) and the Ministry of Environment of Indonesia to develop and implement environmental compliance and enforcement policies in Indonesia.

ICEL's goal is to introduce environmental compliance and enforcement strategies at the local level that are consistent with Indonesia's National Strategy on Sustainable Development. In Indonesia, the implementation of a decentralized environmental management system is confronted with an array of obstacles, including:

• The limited role of the Local Environment Impact Management Agency;
• The Central Government's dominant role in the creation of new laws and regulations;
• Underdeveloped environmental compliance and enforcement strategies at the national and local level;
• Local regulations which conflict with ECE strategies; and
• Limited public awareness of the issues.

In response to these problems, the ICEL has focused on developing compliance and enforcement policies from the ground up. Some of there initiatives include creating clear and enforceable environmental laws and regulations at the local level, ensuring that there is adequate infrastructure at the local level to support these laws, and developing these laws within the context of a local compliance and enforcement strategy.

ICEL refers to these prerequisites as analytical tools used to assess local compliance and enforcement capacity. These assessments then become a starting point from which to develop a local environmental compliance and enforcement strategy.

The local strategy on environmental compliance and enforcement incorporates these five approaches: command and control; voluntary programs; economic considerations; behavioral considerations; and the use of public pressure.

The project is being applied in Central Java (www.jawatengah.go.id) with Semarang City as the pilot implementation area. The selection of the area was based on the importance of environmental issues, local experience, the social economic condition, and the long-range effectiveness in implementing environmental compliance and enforcement strategy. See www.icel.or.id for more information about the Indonesian Center for Environmental Law.

8 Asian Nations Convene To Fight Illegal Trade in Wildlife
By Julie Stofer, WildAid Development Associate. Email: stofer@wildaid.org

Police and Environmental Officers from eight Asian nations convened in Thailand in September 2004 to undergo two weeks of intensive discussions and training in combating one of the fastest growing forms of crime today - the illegal trade in wildlife.

Designed by WildAid and the Wildlife Conservation Society, in collaboration with the Governments of Thailand and the United States, this is the first course of its kind for the Southeast Asia region. The course "Wildlife Crime Investigations" was opened by Thailand's Minister of Environment at the International Law Enforcement Academy (ILEA) of Bangkok, the host of the training exercise.

The course involved intensive instruction about nature crime and ways to suppress it, including a wide range of technical discussions, lessons, and practical exercises designed to increase officer knowledge about commercial poaching and trafficking in wildlife and the links between nature crime and other forms of organized crime. It also included recommended steps for controlling these illegal activities within each country and through cross border cooperation.

As one of its main goals, the course sought to encourage greater cooperation among participating nations in securing Asia's natural resources. Officers from Thailand, Cambodia, Vietnam, China, Singapore, Malaysia, Philippines, and Indonesia attended.

"Nature crime has become a threat to nations and their resources in every part of the world," said Ravic Huso, Deputy Chief of Mission for the US Embassy in Thailand. "Globally, the illicit trade in wildlife may alone be worth more than $10 billion a year. And we now know that people involved in drug and human trafficking are sometimes linked to wildlife trade."

"To date, this major problem has been left mainly to environmental officials within each nation to solve," said Senator Kraisak Choonhavan, President of WildAid Foundation Thailand. "Increased cross border cooperation and more involvement of police agencies in fighting nature crime are essential if Asia is to maintain its beautiful wildlife, rich protected areas, and important watersheds."

China and the US: Different Enforcement Problems with Similar Solutions
By Bruce Pasfield, US Department of Justice. Email: Bruce.Pasfield@usdoj.gov

China and the United States both suffer from an illegal black market that threatens each country's compliance with an international treaty known as the Montreal Protocol on Substances that Deplete the Ozone Layer ("Montreal Protocol").

This treaty was signed in 1987 after mounting scientific evidence revealed that certain substances, when released into the atmosphere, depleted stratospheric ozone. Ozone, while a harmful chemical at ground level, provides an important shield against the Sun's harmful ultraviolet radiation (UV-B radiation) in the upper atmosphere. Over-exposure to this harmful radiation can lead to skin cancer, cataracts, and other ailments. The Montreal Protocol promotes the recovery of the ozone layer by requiring each signature country to gradually phase out its production and use of ozone depleting substances (ODS).

Illegal trade in ODS can delay the treaty's phase-out schedule and increase the risk to human health. This threat appears genuine as a 2000 U.S. government study concluded that environmental crime, which includes ODS smuggling, is one of the fastest growing areas of international crime, earning traffickers billions of dollars in yearly profits. Here's what China and the U.S., both signatories to the treaty and among the largest producer and consumer nations, are doing to prevent illegal trade and achieve treaty compliance.

In the United States, the problem is continued demand for an ODS known as CFC-12 that was widely used in pre-1994 car air conditioning systems. In 1996, the U.S. and other developed countries banned the production and importation of CFC-12. However, under the terms of the treaty, pre-1994 vehicles (of which there are still approximately twenty million on the road today) can still be legally serviced with recycled or stockpiled CFC-12. A consumer preference for service with CFC-12 rather than more costly retrofits and a dwindling legal supply, fuels the current black market.

China's problem is the diversion of its legally produced CFC-12 to black markets in developed countries. Under the terms of the Montreal Protocol, developing countries such as China were given an extra 14 years (until 2010) to complete their production phase-out of CFC-12. The extra time was provided to accommodate developing countries' comparative lack of capital and their corresponding need to extend the useful life of ODS-based equipment. As of 2002, China was still legally producing over 32,000 tons of CFC-12 annually. This production is supposed to be used exclusively to meet domestic needs and the needs of other developing countries, but the profit from the U.S. black market proved too tempting for some.

Unscrupulous businessmen in the U.S., China, and other countries have teamed up to divert China's and other developing countries' legitimate production into the U.S. black market. Both countries were initially slow to respond, but have now made significant strides in controlling illegal trade. In the mid-1990s, the U.S. launched a law enforcement initiative known as "Operation Cool Breeze", which has resulted in 120 criminal convictions, a million pounds of seized product, and a sharp decline in smuggling activity.

In 2000, China adopted an import/export licensing system for CFC-12 and other ODS. The licensing system requires three separate agencies to approve imports and exports of ODS. A year later, China began training its customs inspectors in preventing and detecting CFC-12 smuggling. U.S. law enforcement experts provided valuable guidance on its enforcement successes and failures at several of these training sessions.

China also requested help closing a loophole in their ODS regulations that has allowed newly produced CFC-12 to leave the country disguised as used CFC-12. In response, the U.S. State Department provided a grant to China's State Environmental Protection Agency to help close that loophole. This effort is part of the State Department's Anti-corruption Environmental Protection Initiative (AEPI), and will help China obtain maximum accountability of its CFC-12 production. The U.S. Department of Justice is also a partner in this initiative and is sending a resource attorney to an ODS legislative drafting workshop in China this summer. Both countries' efforts are critically important as each will now need to guard against illegal trade in the next generation of ODS being phased out: hydroclorofluruorocarbons or HCFCs.

Better, Stronger, Faster - Alternatives to Prosecution
By Michael LeRoy-Dyson, Compliance & Enforcement Team Leader, Consents and Compliance Monitoring, Environmental Management, Auckland Regional Council.

Hard-line, maximum fine, punitive deterrent prosecution has an unquestionably important place in environmental enforcement. However, often there is a need for a softer form of justice, one that focuses on long-term benefits for all stakeholders, building positive relationships, and righting wrongs, rather than running head long into the old adversarial, lose-lose scenario that often develops as prosecutions progresses.

When used appropriately "Restorative Justice" and "Diversion" are two alternatives that are providing overall enforcement outcomes far superior to the traditional "dock-em and do-em" approach. The Auckland Regional Council has been developing the use of both of these options over the past five years with successful results.

Rather than punishing all offenders who pass the threshold for statutory enforcement action, these options allow us to apply broader principles of justice. This not only results in punishment but aids in the rehabilitation of offenders, focuses on repairing environmental harm, and introduces the opportunity for value enhancement to "make up" for the overall damage done.

Although both tools can provide holistically superior outcomes to the traditional prosecution / fine / court order type of enforcement, they are implemented via somewhat different methodologies. Restorative justice offers the option with the most input from the general community and the court system.

We prefer the diversion system, which allows for the greatest regulator control over the process, and is based on the New Zealand Police criminal diversion scheme. It is an 'out-of-court' agreement between the regulator and the defendant. With the leave of the court, it is implemented during adjournment after a guilty plea has been entered and, once the defendant has successfully completed the agreed diversional programme, charges are withdrawn. As a consequence, there is a much more positive relationship between the regulator and the defendant. The process, though still somewhat informal, involves an initial assessment of eligibility of the defendant and the incident for diversion, based on a number of criteria including:

• The incident is the first major offence,
• There is full compliance with current and past directive actions,
• There are no elements of deliberateness or malice, and
• It is not an incident that has resulted in major long-term irreparable damage to the environment.

The option is made available if the initial criteria are met and if they indicate and demonstrate that they are voluntarily motivated to engage in alternative methods of resolving the enforcement issue.

At this stage, details of each option are outlined to the defendant and it is made very clear that this is neither a cheap nor easy option for avoiding enforcement action. Further, an option can only continue to completion while the regulator remains convinced of the defendant's authenticity in the process.

If this is satisfied, a list of prerequisites is supplied to the defendant. These include:

• Admission of fault and assumption of responsibility for the offending,
• Showing remorse and apologizing to us and the community,
• Demonstrating that steps have been taken to fix the problem and ensure that it never reoccurs
• The covering of all remedial and regulatory costs, and
• Proposal of mitigative actions.

This final point is most crucial to the overall success of the plan. If a defendant can be truly engaged in the process, and seriously tries to understand the impact that they have had on the community and the environment, then they can formulate and propose actions that can tangibly remedy, mitigate, and even enhance the environment that has suffered from the offending. The in-depth thinking about the harm done and potential methods of real mitigation and repair is rehabilitating, enlightening, and often fundamentally value changing with regard to the environmental ethics of an offender.

The restorative justice process involves having the court direct a mediated consultation with the defendant and the impacted community, the purpose of which will be to broker an agreement for a restorative plan that meets the restorative needs of those impacted by the offending party. However, this can be a difficult and lengthy processes clearly identified and impacted parties may require significant emotional and physical restitution.

Once consultation and restoration is complete the defendant stands before the court and the judge makes a final decision as to the overall suitability of the restitution and decides on the need for additional punishment or discharge.

As a majority of environmental crimes in Auckland have not clearly identified significantly impacted people, the diversionary processes gets more use with our Council acting on behalf of the community and the impacted environment.

Most importantly, the potential for environmental benefit and improved relationship benefits far exceed the usual results from a traditional prosecution both in time, cost and overall satisfaction.