315R07002
7th International Conference
on Environmental
Compliance and Enforcement
9-15 April 2005
Marrakech, Morocco
Proceedings Volume 2
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7th International Conference on
Environmental
Compliance and Enforcement
Marrakech, Morocco
9-15 April 2005
33
O
\
OEGD
I)
z
OCDE
European Commission
THE WORLD BANK
VROM
Moroccan Ministry of the Territory Planning
Water and the Environment
ENVIRONMENT
AGENCY
UNEP
United Nations Environment procjrarnme
Finnish Ministry of the Environment
Environment Environnement
Canada Canada
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SEVENTH INTERNATIONAL CONFERENCE ON
ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
CONFERENCE PROCEEDINGS
VOLUME 2
9-15 April 2005
Marrakech, Morocco
Editors:
Mr. Jo Gerardu, VROM, The Netherlands
Mr. Davis Jones, US EPA
Mr. Kenneth Markowitz, INECE Secretariat
Mr. Durwood Zaelke, INECE Secretariat
Executive Planning Committee:
Mr. Peter Acquah, AMCEN
Mr. Bie Tao, People's Republic of China
Ms. Angela Bularga, REPIN
Dr. William Clark, Israel
Mr. Jim Gray, England and Wales
Dr. Marco Antonio Gonzalez Pastora,
CCAD/SICA
Mr. Donald Kaniaru, Kenya
Mr. Lai Kurukulasuriya, UNEP
Dr. Ladislav Miko, Czech Republic
Mr. Antonio Oposa, Jr., Philippines
Mr. Manuel Rodriguez Becerra, Columbia
Mr. Charles Sebukeera (Co-chair), UNEP
Ms. Sabine Sommer, IMPEL
Mr. Durwood Zaelke, (Director), INECE
Secretariat
Mr. Antonio Herman Benjamin, Brazil
Dr. Adriana Bianchi, World Bank Institute
Ms. Paula Caldwell St-Onge, Canada
Mr. Mihail Dimovski, ECENA/BERCEN
Mr. William Futrell, United States
Mr. Markuu Hietamaki, Finland
Mr. Georges Kremlis, European Commission
Mr. Jose Luege, Mexico
Mr. Akio Morishima, Japan
Mr. Carlos Manuel Rodriguez, Costa Rica
Mr. Kenneth Ruffing, OECD
Mr. Phyllis Harris (Co-chair),
United States
Mr. Gerard Wolters (Co-chair), The
Netherlands
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These Proceedings, Volume 2, include papers prepared
by speakers, topic experts, conference participants and
other interested parties for the Seventh International Con-
ference on Environmental Compliance and Enforcement,
April 9-15, 2005 in Marrakech, Morocco.
Copyright ©2005 by the INECE Secretariat. No part of
this book may be reproduced in any form or by any
means without the prior permission of the INECE Secre-
tariat and the author(s) and attribution to the Seventh
International Conference on Environmental Compliance
and Enforcement, 9-15 April, 2005, in Marrakech, Moroc-
co. Use of these materials is strongly encouraged for
training and further dissemination.
Opinions expressed are those of the authors and do not
necessarily represent the views of their governments or
organizations, or the INECE Secretariat.
Conference Sponsors:
Centre de Developpement des Energies Renouvelables (CDER)
Ceske Svycarsko (National Park Bohemian Switzerland of the Czech Republic) and Appian Group
Ciments du Maroc (CIMAR)
Deutsche Gesellschaft fur Technische Zusammenarbeit (GTZ)
Environment Agency, England and Wales
Environment Canada
European Commission
International Fund for Animal Welfare
Institute for Governance and Sustainable Development
Ministry of Justice, Morocco
Ministry of the Environment, Finland
Ministry of the Territory Planning, Water, and Environment, Morocco
Ministry of VROM, Department of International Environmental Affairs, The Netherlands
Ministry of VROM, Inspectorate of Housing, Spatial Planning and the Environment, The Netherlands
Organisation for Economic Co-operation and Development
Royal Air Maroc
United Nations Environment Programme
United States Department of State
United States Environmental Protection Agency
World Bank Institute
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PREFACE
PREFACE
These Proceedings principally
contain reports from the panels and work-
shops of the Seventh International Confer-
ence on Environmental Compliance and
Enforcement, held in Marrakech, Morocco
from 9-15 April 2005. There are also some
articles submitted by Conference partici-
pants and other enforcement profession-
als, to add to those presented in the first
volume of Proceedings.
These reports and papers present
empowering concepts, insights, and expe-
riences, as well as important ideas for
INECE, and are made available to enforce-
ment practitioners throughout the world to
further our common endeavor. These
materials, like the first volume prepared
prior to the conference, are also available
through the INECE web site (www.inece.org),
along with the proceedings of the previous
six INECE Conferences.
The theme of the INECE Seventh
Conference was MAKING LAW WORK:
ENVIRONMENTAL COMPLIANCE AND
SUSTAINABLE DEVELOPMENT, which
built upon the premise that the integrity of
our ecosystems, the conservation and wise
use of our natural resources, and our
progress toward sustainable development
all require a strong and effective legal sys-
tem, with strong and effective compliance
efforts, including the right mix of enforce-
ment and compliance assistance.
INECE's Seventh International
Conference brought together enforcement
officials from 63 countries and 124 organi-
zations, representing all regions of the
world - developed and developing - to
share experiences and make plans to take
environmental compliance and enforce-
ment efforts to the next level. Ultimately,
the success of INECE's Seventh Interna-
tional Conference was in the strength of
the individual commitments pledged in
Marrakech; the durability of the bonds
forged among local, regional, and interna-
tional networks and practitioners; and the
powerful and innovative ideas and projects
spurred at the Conference and beyond. It is
our hope that these and the other results
that emerged become forces for change
and a call for action by governments and
nongovernmental organizations alike to
strengthen the rule of law for sustainable
development, to enforce compliance with
environmental law, and to make law work.
On behalf of the Executive Plan-
ning Committee and the Secretariat staff,
we look forward to your continued and pro-
ductive use of INECE's Seventh Interna-
tional Conference materials. Comments
and suggestions should be sent to the
INECE Secretariat by email at inece@
inece.org, by fax to 1-202-338-1810, or by
mail to 2141 Wisconsin Avenue NW, Suite
D2, Washington, DC, 20007.
THE EDITORS
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IV SEVENTH INTERNATIONAL CONFERENCE ON LNVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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TABLE OF CONTENTS
CONTENTS
INECE EXECUTIVE PLANNING COMMITTEE AND SPONSORS
I. REPORTS FROM INTERNATIONAL CONFERENCE
PREFACE
OPENING KEYNOTE ADDRESS: MINISTER MOHAMED EL YAZGHI, MINISTRY
OF TERRITORY PLANNING, WATER, AND
THE ENVIRONMENT, MOROCCO 5
MARRAKECH STATEMENT: Making Law Work for People, Environment,
and Sustainable Development 7
DECLARATION DE MARRAKECH: Faire fonctionner le droit pour les
populations, I'environnement et le
developpement durable 13
RECOMMENDATIONS FOR INECE from the 7th INECE Conference on
Compliance and Enforcement in Marrakech, Morocco 19
SUMMARY OF PANEL 1: Relationship between Good Governance and
Environmental Compliance and Enforcement 21
Presentation by Sir John Harman 29
Presentation by Pieter van Geel 31
Presentation by Kenneth G. Ruffing 33
Presentation by Jonathan A. Allotey 35
SUMMARY OF PANEL 2: The Compliance and Enforcement Message 37
SUMMARY OF PANEL 3: Enforcement Initiatives: Stories of Success 43
SUMMARY OF PANEL 4: Environmental Compliance and
Enforcement Indicators: Measuring Performance,
Managing Resources 51
SUMMARY OF PANEL 5: Strengthening the Implementation of
Multilateral Environmental Agreements 55
SUMMARY OF PANEL 7: The Role of International Financial Institutions in
Compliance and Enforcement 61
WORKSHOP SESSION 1: Exploring Current Environmental Compliance
and Enforcement Topics 65
Summary of Workshop 1A: Economic Aspects of Compliance
and Enforcement 67
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Summary of Workshop 1B: Compliance Incentives and other Assistance 73
Summary of Workshop 1C: Ecomessage/lnterpol and the Police 79
Summary of Workshop 1D: Compliance and Enforcement Theories and
Design Principles 83
Summary of Workshop 1E/F: Information Management, Reporting
Requirements and Self-Monitoring 87
Summary of Workshop 1G: Good Governance and the Rule of Law 91
Summary of Workshop 1H: Communications Policy and Practice 97
Summary of Workshop 11: Citizen Particpation in Environmental Enforcement... 101
WORKSHOP SESSION 2A: Environmental Compliance and Enforcement
Indicators: Getting Started 105
Summary of Workshop 2A1 107
Summary of Workshop 2A2 113
Summary of Workshop 2A3/A4 115
WORKSHOP SESSION 2E-2I: Other Current Environmental Compliance
and Enforcement Topics 121
Summary of Workshop 2E: Criminal Law and Environment: Prosecutors,
Inspectors, Police, and Nongovernmental Organizations 123
Summary of Workshop 2F: Role of the Courts, Nongovernmental
Organizations, and the Press: Climate Litigation Case Study 125
Summary of Climate Change Cases Worldwide:
Background paper for Workshop 2F 133
Summary of Workshop 2G: Compliance With and Enforcement of
Multilateral Environmental Agreements 137
Summary of Workshop 2H: Wildlife Enforcement Network 141
Summary of Workshop 21: Negotiated Compliance Agreements 145
WORKSHOP SESSION 3: Networking to Improve Enforcement Cooperation ..149
Summary of Workshop 3A: Water Resource Management
Governance to Eliminate Poverty 151
Summary of Workshop 3B: Vessel Pollution 155
Summary of Workshop 3C: Hazardous Waste at Ports 157
Summary of Workshop 3D: Analyzing the Compliance and Enforcement
Mechanisms of the Montreal Protocol 159
Summary of Workshop 3E: Enforcement of Emissions Trading Programs 165
Summary of Workshop 3F: Illegal Logging: Regional Strategies for
Enforcement Cooperation 167
Summary of Workshop 3G: Penalties and Other Remedies 173
Summary of Workshop 3H: Multilateral Environmental Agreements:
Synergies for Compliance 181
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TABLE OF CONTENTS
REGIONAL CONFERENCE
Regional Conference, Opening Speech by Jo Gerardu 187
Summary of the INECE Regional Conference for Morocco and North Africa 189
FIELD VISITS 191
CONCLUDING REMARKS BY GERARD WOLTERS 193
CONFERENCE EVALUATION 199
II. ARTICLES
Raising Industry's Role in the Field of Environmental Compliance
Assurance: Elements of Reform In Kazakhstan,
Angela Bularga, Andrey Korchevsky, Aare Sirendi 207
Using Peer Reviews to Promote Environmental Improvements and
Good Governance: The Case of the Kyrgyz Republic,
Angela Bularga and Krzysztof Michalak 215
Strategy for the Supervision of Carbon Dioxide and
Nitrogen Oxides Emissions Trading, Theo de Gelder. 221
The Emergence of Citizen Enforcement in International Organizations,
David B. Hunter 229
Designing Mandatory Disclosure to Promote Synergies Between Public and
Private Enforcement,
Annette B. Killmer 235
Measurable Targets for Enforcement Performance,
Wout Klein 245
Minimum Criteria for a Professional Environmental Enforcement Process, Part II,
Wout Klein 251
Strengthening Implementation of MEAs: The Innovative Aarhus
Compliance Mechanism,
Svitlana Kravchenko 255
The Challenge of the Implementation of the Environmental Acquis
Communautiare in the New Member States,
Georges Kremlis and Jan Dusik 263
Compliance Promotion in the United Kingdom,
Paul Leinster, Jim Gray, Chris Howes, and Rosie Clark 271
UNEP Guidelines, Manual, and Pilot Activities on Compliance with
and Enforcement of Multilateral Environmental Agreements,
Elizabeth Mrema and Carl Bruch 277
Argentine Case Study: Using Human Rights as an Enforcement Tool to Ensure
the Rights to Safe Drinking Water,
Romina Picolotti 283
Environmental Enforcement and Compliance and its Role in Enhancing
Competitiveness in Developing Countries,
Lawrence Pratt and Carolina Mauri 291
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4 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Compliance with the Montreal Protocol,
K. Madhava Sarma 301
Fixing a Critical Problem: Used Oil Filters,
Zohar Shkalim 313
Using Indicators to Lead Environmental Compliance and Enforcement Programs,
Michael M. Stahl 315
LIST OF PARTICIPANTS 325
PROJECT MANAGEMENT AND CONFERENCE SUPPORT 355
ACKNOWLEDGEMENTS 357
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EL YAZGHI
OPENING KEYNOTE ADDRESS:
MINISTER MOHAMED EL YAZGHI, MINISTRY OF TERRITORY
PLANNING, WATER AND THE ENVIRONMENT, MOROCCO
Mr. President of INECE, Mr. Wall of
the Marrakech-Tensift Region, Honorable
Members of INECE, Ladies and Gentle-
men,
It is an honor for me to address
your prestigious assembly on the occasion
of the 7th conference of your network in
Marrakech. On behalf of the Government of
my country, I would like to welcome you
and to tell how proud we are for your hav-
ing chosen Morocco, the Land of Peace, of
conviviality and of a great civilization. Your
presence here in Marrakech today is a
message of confidence and friendship
which we appreciate very much; it is a wel-
comed addition to other events at the inter-
national level that focus on environmental
protection and on the search for ways and
means to promote the good environmental
cause in the world today.
Allow me, ladies and gentlemen, to
mention but two international environmen-
tal events that were hosted by this charm-
ing city, Marrakech: COP7 which was held
from 21 October to 9 November 2001 and
the International Partnership Forum on
water and energy which took place here
only a couple of weeks ago. This goes to
say that by choosing this venue for debat-
ing the issue of environmental law compli-
ance and enforcement, INECE strengthens
in a way the environmental vocation of Mar-
rakech and by the same token draws the
attention of the international community to
the fundamental dimension of the environ-
mental agenda, namely the need to comply
and to apply the rule of law.
Ladies and Gentlemen,
It is my pleasure to take the oppor-
tunity of your conference to give you a
broad idea about the environmental legisla-
tive and regulatory situation in my country.
Like most other countries, the Moroccan
legal arsenal consists of numerous texts
with unequal legal weight: laws, decrees,
as well as internal administrative circulars
that contain legal stipulations of an environ-
mental nature. Some of these texts are
indeed old but they have the merit of cover-
ing the environmental field in its broad
sense: classified sites, water, forests, cul-
tural monuments, protected areas, quar-
ries, mining, fuels, etc.
However, in 2003, environmental
legislation in my country witnessed a leap
forward with the adoption by parliament of
three law proposals that were entirely ded-
icated to environment: Law 11-03 pertain-
ing to environmental protection and
improvement; it spells out the basic rules
and general principles of the national policy
in this area. Then there is Law 12-03 per-
taining to environmental impact studies
aimed at subjecting every project that is
likely to harm human health, fauna, soil, cli-
mate, cultural heritage or the environment
in general.
On another level and in parallel
with these texts, Morocco contributes to
international environmental law, particularly
by participating in major international con-
ferences dedicated to the environment
(Stockholm, Rio and Johannesburg). It is
worth reminding, in this regard, that the
Moroccan delegation to the Johannesburg
Conference was presided by His Majesty
Mohamed VI, which goes to show the great
interest decision makers of my country
have for the environmental agenda. It is
also worth reminding that my country is
party to around one hundred environmental
conventions and agreements and it is striv-
ing to integrate into its internal law most of
the international principles and commit-
ments.
But, like most countries, it must be
admitted that Morocco encounters serious
difficulties in implementing environmental
regulations. Granted, these difficulties are
not insurmountable; especially since there
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
is a real political will in my country to go for-
ward with sustainable development strate-
gy, natural resource protection and the fight
against pollution.
Mr. President, Ladies and Gentle-
men,
I would like at this stage, as a con-
tribution to your debate, to put before your
honorable assembly, some general ideas
as to why environmental legislation is met
with important obstacles when it comes to
implementation. There are, in my view, four
(4) fundamental explanations for this situa-
tion:
In the first instance, I find that one
of the reasons lies precisely in the very
objective pursued by environmental law in
modern countries, namely the fight against
pollution and the protection of scarce natu-
ral resources, which require a change in
behavior not only of individuals but also of
entire communities. And it is not an easy
task to make people do away with their old
habits and make them internalize non-
harmful environmental behaviors.
Then, I think the conditions under
which legal and regulatory standards are
established are not alas unrelated to those
standards at the level of implementation. In
fact, when it comes to formulating, examin-
ing or adopting legal rules, the legislative
assemblies and decision makers do not
take sufficiently into consideration adminis-
trative and/or social conditions for imple-
mentation; hence this oversight is translat-
ed into a gap between what the text stipu-
lates and the actual use made of it in reali-
ty. This observation is not the exclusive lot
of developing countries; far from that,
developed nations face similar difficulties in
this regard as well.
The third reason lies with the defi-
ciency of implementing tools; this deficien-
cy is particularly due to the multitude of
structures and authorities concerned and to
the difficulty of coordination, for information
sharing and for the means of an optimal
implementation of environmental regula-
tions. As a matter of fact, it should be noted
that, if today the creation of new structures
is widely justified, the lack of coherence
and cooperation between those structures
constitutes a real source of dysfunction
which is inevitably reflected at the level of
applicability and respect for environmental
regulations.
Finally, one can never stress
strongly enough the importance of human
capacity building in the implementation of
those rules. Without the men and women
endowed with both legal and technical
training, the texts cannot impose them-
selves by themselves. And yet we now
know that the frontiers between the fields of
knowledge and the barriers between aca-
demic branches reduce the sphere of legal
teaching significantly. The legal approach
to environmental issues remains poorly
developed among the human resources
working directly on environmental prob-
lems. It goes without saying that legal
capacity building among individuals and
institutions is the best way to secure a high
level of applicability and compliance with
environmental rules and regulations.
Mr. President, Ladies and Gentle-
men,
This manifestation was an excel-
lent occasion for the consolidation of the
cooperation as regards enforcement and
compliance of the environmental laws in
Maghreb countries. The positive results of
the conference held on this Saturday fore-
cast well the development of a profitable
partnership as regards environmental law
compliance in this area of North Africa.
I am convinced that the presenta-
tions which will be made at the various pan-
els and workshops planned within the
framework of your conference will enable
the participants to be updated on the gen-
eral progress of the movement on environ-
mental law in various countries belonging
to other continents. Your recommendations
and reports are eagerly awaited; they will
be, of course, of great use for promoting
the practice of good environmental gover-
nance around the world. I wish you full suc-
cess in your deliberations and renew my
thanks for having chosen Morocco for your
7th conference.
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MARRAKECH STATEMENT 7
MARRAKECH STATEMENT
Making Law Work for People, Environment, and Sustainable Development
Co-Chair and Executive Planning Committee Final Conference Statement
7th INECE International Conference on Compliance and Enforcement
in Marrakech, Morocco
INTRODUCTION
1. At this 7th International Confer-
ence of the International Network on Envi-
ronmental Compliance and Enforcement
(INECE) participants from more than sixty
developing and developed countries from
governments, international, and non-gov-
ernmental organizations gathered in Mar-
rakech, Morocco, to affirm the role of envi-
ronmental compliance and enforcement in
supporting the rule of law, strengthening
good governance, and securing progress
towards sustainable development.
THE ROLE OF INECE
2. As the only global network of
independent experts dedicated to pursuing
the rule of law, good environmental gover-
nance, and sustainable development at all
levels of governance, local to global,
INECE links the environmental compliance
and enforcement efforts of more than 4,000
practitioners - inspectors, prosecutors,
regulators, parliamentarians, judges, and
NGOs - from 120 countries, through train-
ing and capacity building programs, raising
awareness, and enhancing enforcement
cooperation.
3. INECE's goals are to raise
awareness of compliance and enforce-
ment, develop networks for enforcement
cooperation, and strengthen capacity to
implement and enforce environmental
requirements. Founded in 1990 by the
environmental agencies of the Netherlands
and the United States, in partnership with
UNEP, the European Commission, the
World Bank, the OECD and other organiza-
tions, INECE has played a crucial role in
strengthening environmental compliance
and enforcement around the world.
4. At this international meeting,
participants identified new opportunities for
INECE to strengthen environmental com-
pliance and enforcement by closing the
"compliance gap", enhancing capacity, and
implementing the laws agreed at the
national and international level, to promote
human well-being, ensure a competitive
and viable economy, conserve and improve
the environment, and help achieve sustain-
able development.
RECOGNIZING ACHIEVEMENTS
5. Over thfi past 30 years, consid-
erable efforts have ijeen made to improve
management of human' relationships with
nature. Countries have created environ-
mental agencies, negotiated multilateral
agreements, and undertaken new initia-
tives at the local, national, and internation-
al levels to protect human health, conserve
biodiversity and wildlife, and manage natu-
ral resources. These efforts have involved
leaders in government, parliaments, and
the judiciary, in international organizations,
businesses, and civil society, and in other
sectors of society. Environmental officials,
in particular, have often been at the fore-
front of efforts to promote the rule of law
and good governance.
ACKNOWLEDGING CHALLENGES
6. These achievements are signifi-
cant. But also acknowledged are the grow-
ing challenges. There is a need to further
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
strengthen our stewardship of the Earth
and of all living species and natural
resources, the foundation of social and
economic development and the heritage of
our children and grandchildren, in accor-
dance with the precepts of sustainable
development. Human activities have
changed the Earth's ecosystems and cli-
mate more in the last 50 years than in any
comparable period in human history.
According to the Millennium Ecosystem
Assessment, the most systematic survey of
the state of the planet, the deteriorating
condition of the environment will, unless
addressed, compromise efforts to address
poverty, hunger and health, as well as other
development objectives established in the
Millennium Development Goals.
IMPLEMENTING THE MILLENNIUM
DEVELOPMENT GOALS AND WSSD
7. These challenges can be
addressed. The Millennium Development
Goals and the outcomes of the World Sum-
mit on Sustainable Development can be
implemented, but it will require additional
efforts. Faced with growing environmental
challenges and persistent poverty for bil-
lions, achieving these development goals -
particularly those of integrating "the princi-
ples of sustainable development into coun-
try policies and programmes and reversing
the losses of environmental resources" -
will require a significant commitment to
strengthen governance, the rule of law, and
compliance.
STRENGTHENING GOVERNANCE AND
THE RULE OF LAW
8. Sustainable development
depends upon good governance, good
governance depends upon the rule of law,
and the rule of law depends upon effective
compliance and enforcement. Good gover-
nance is characterized by institutions that
are open, participatory, accountable, pre-
dictable, and transparent. The rule of law
supports these characteristics by ensuring
that rules are applied consistently, efficient-
ly, and fairly by independent institutions to
all, including those who govern. Securing
compliance with laws is easier when there
is public participation in their development,
and they are founded on fundamental
social values and norms. Law must also
respect principles of intra- and inter-gener-
ational equity, which call for poverty allevia-
tion, the protection of human rights, and
respect for future generations. Yet, even as
the number of instruments and institutions
has increased, most indicators of environ-
mental quality continue to decline. A key
reason is the failure to invest in compliance
and enforcement.
THE BENEFITS OF INVESTING IN
COMPLIANCE AND ENFORCEMENT
9. Investing in compliance and
enforcement benefits the public by secur-
ing a healthier and safer environment for
themselves and their children. It benefits
individuals, firms and others in the regulat-
ed community by ensuring a level playing
field governed by clear rules applied in a
fair and consistent manner. Economically,
firms meeting or exceeding environmental
standards regularly build customer loyalty,
increase efficiency, and enhance their prof-
its. Countries benefit by creating a pre-
dictable investment climate based on the
rule of law thereby promoting economic
development. And through strengthening
compliance with international obligations,
countries ensure that multilateral environ-
mental agreements are implemented by all
parties through effective domestic action.
STRENGTHENING EFFORTS AT
DOMESTIC AND INTERNATIONAL
LEVELS
10. The need to strengthen compli-
ance was recognized by heads of state and
government at the 1992 Rio Earth Summit.
Agenda 21, the blueprint for sustainability,
thus directs countries to collaborate to
enhance their compliance and enforcement
capacity. At the international level, coun-
tries must respect their commitments in
multilateral environmental agreements. At
the domestic level, efforts are required at
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MARRAKECH STATEMENT
all stages of the regulatory cycle - design,
implementation, enforcement, evaluation
and feedback - to ensure regulatory sys-
tems are feasible and fair, effective and effi-
cient.
DESIGNING RULES FOR COMPLIANCE
11. Laws and policies must be
designed with compliance and enforceabil-
ity in mind. For the regulated community to
comply, it must be aware of the rules, will-
ing to comply, and able to comply. Laws
must therefore be no more complex than
necessary, cost-effective to comply with,
and consider the social, cultural and psy-
chological profile of the regulated commu-
nity. Rules running counter to cultural prac-
tices or ignoring economic incentives are
likely to fail. Rules that reward environmen-
tal leadership, build on best practices, and
ensure a level playing field are more likely
to succeed in securing compliance.
ENHANCING COMPLIANCE
ASSISTANCE AND INCENTIVES
12. Well designed rules may still
pose difficulties to those who lack techni-
cal, financial, or administrative capacity.
Securing compliance therefore calls for
renewed efforts to raise awareness of the
law, to strengthen compliance assistance
programs, and to enhance incentives for
compliance. Efforts at the national level
must be designed to address the needs of
small- and medium-sized enterprises, and,
at the international level, the needs of the
least developed and developing countries.
International institutions and donors have a
particular role to play in supporting these
efforts.
ADDRESSING NON-COMPLIANCE
13. Countries have a responsibility
to protect those who comply with the law
not merely by assisting those who cannot
comply, but by finding and sanctioning
those who do not comply. Compliance
assistance and incentives are only effective
if backed by a credible threat of penalties
and sanctions. By communicating the out-
comes of enforcement actions, penalties
and sanctions also deter others from break-
ing the rules. Efforts to address non-com-
pliance should be firm but fair, transparent
and consistent, and proportionate to the
magnitude of public risks, the seriousness
of the violation, and the need for deter-
rence. At each stage in the regulatory
process, efforts should be made to evalu-
ate effectiveness and to feed the results
back into activities to enhance the contribu-
tion of key actors in strengthening compli-
ance and enforcement.
THE CONTRIBUTION OF KEY ACTORS
IN STRENGTHENING COMPLIANCE
AND ENFORCEMENT
14. Strengthening environmental
compliance and enforcement requires
renewed efforts by individuals and institu-
tions everywhere. Government officials,
particularly inspectors, investigators, and
prosecutors, must exercise public authority
in trust for all of their citizens according to
the standards of good governance and with
a view to protecting and improving public
well-being and conserving the environ-
ment. Legislators play a key role in creating
legislation that can be effectively enforced
to achieve its goals. The judiciary has a
fundamental contribution to make in
upholding the rule of law and ensuring that
national and international laws are inter-
preted and applied fairly, efficiently, and
effectively.
15. The regulated community and
the public have a responsibility to comply
with the letter and spirit of the law and to
encourage compliance by others. Non-gov-
ernmental organizations play a leading role
in public education and assisting enforce-
ment agencies. The media has a responsi-
bility to raise public awareness by providing
objective analysis and information about
environmental challenges and efforts to
address them. The international communi-
ty, including donors and international
organizations, has a responsibility to
strengthen domestic efforts through capac-
ity building, technical and financial support,
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
and by promoting an enabling environment
for more effective compliance and enforce-
ment.
A PROGRAM OF ACTION
16. The Co-Chairs and Executive
Planning Committee of this International
Conference call on regulators, legislators,
courts, networks, negotiators, tribunals,
development banks, the media, business-
es, industry certifiers, lawyers, scientists,
engineers, financial experts, NGOs, and
individuals working at all levels - local,
national, regional, and international -to:
a. Recognize the imperiled state of
the environment and the need to build
capacity to establish and strengthen the
rule of law, good governance, and ecologi-
cally sustainable development in order to
conserve natural resources and ensure
human health, ecosystem integrity, and
economic development.
b. Urge the international communi-
ty and policymakers in each and every
country to acknowledge the importance of
compliance and enforcement with environ-
mental laws at all levels as critical to
achieving rule of law, good governance,
and ecologically sustainable development.
c. Affirm the importance of provid-
ing capacity building to those countries,
firms, and individuals that lack the capacity
to comply, and of identifying cases of non-
compliance and enforcing appropriate and
equitable sanctions to punish those that
violate environmental laws and to deter
others.
d. Improve the ability of environ-
mental agencies to gather and analyze
information to develop effective and effi-
cient environmental regulatory programs.
STRENGTHENING THE
CONTRIBUTION OF INECE
17. INECE has a crucial role in
advancing these objectives and improving
the institutional capacity of, and coordina-
tion among, major actors in the field of
environmental governance. INECE is pur-
suing these goals through a diverse array
of activities including, for example, through
developing accepted performance meas-
ures. To help public agencies strengthen
their management and improve their effec-
tiveness and efficiency, INECE is develop-
ing indicators that measure environmental
compliance and enforcement. INECE offers
teaching, training and capacity building
courses, and maintains extensive internet
resources, such as interactive forums, digi-
tal libraries, and searchable databases.
Through international conferences, INECE
presents practitioners world-wide with the
opportunity to acquire the knowledge and
build the long-term relationships needed to
tackle the challenges of environmental
compliance and enforcement. To strength-
en these efforts and to deepen the contri-
bution of INECE to its members, govern-
ments, and the public the Co-Chairs and
Executive Planning Committee of INECE:
a. Call upon all INECE practition-
ers to share information and practices,
through INECE and other channels, to pro-
mote compliance and enforcement that
ensures that environmental regimes are
effective and efficient.
b. Encourage INECE to continue
expanding its training and capacity building
initiatives, and to strengthen its partner-
ships with international, regional, and
national organizations, as well as NGOs
and academic institutions, with a view to
pooling their respective comparative
advantages, avoiding duplication, and opti-
mizing the use of available resources.
c. Reaffirm INECE's commitment
to strengthen and develop regional net-
works, especially in Latin America, Asia,
Eastern Europe, Caucasus and Central
Asia, and Africa, including a new network
for North Africa.
d. Recognize the important role
non-governmental organizations can play
in enforcement and compliance, as inde-
pendent actors and as supporters to gov-
ernment enforcement and compliance
efforts, and call on INECE to support their
creation and contribution to compliance
and enforcement.
e. Encourage INECE to continue
its efforts to collaborate with national part-
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MARRAKECH STATEMENT 11
ners, academic institutions, international
organizations and other partners in the
research community to develop and help
implement a multidisciplinary research
agenda that supports the INECE mission.
f. Call upon INECE to continue to
develop and pilot INECE Environmental
Compliance and Enforcement Indicators, in
cooperation with regional networks, with a
view to improving performance, public poli-
cy decisions, and environmental gover-
nance globally, as well as the quality of the
environment.
g. Call on INECE to strengthen its
work in collaboration with other partners to
enhance the capacity of parliamentarians
in the field of international law and institu-
tions for sustainable development.
h. Call on INECE to encourage
networks of judges for the environment and
to organize a forum where different net-
works can meet and exchange views.
i. Call on INECE to work with part-
ner organizations to collect success sto-
ries, case law, and other practical exam-
ples of the application of the principles set
out in the 1992 Rio Declaration on Environ-
ment and Development, in accordance with
the INECE strategic plan's objective of ana-
lyzing "key regional and international devel-
opments of relevance to the work of
INECE".
j. Call on INECE to promote best
practice on citizen involvement and funda-
mental citizen rights, such as access to
information, public participation, and
access to justice.
k. Call on INECE to develop a
wildlife enforcement and compliance net-
work, inviting the participation of national
and international enforcement agencies,
institutions and specific networks (e.g.
INTERPOL Working Group on Wildlife
Crime and the Lusaka Agreement Task
Force), as well as NGOs with expertise in
enforcement and compliance and other rel-
evant partners.
I. Commit INECE to build upon its
accomplishments including its confer-
ences, publications, training courses, and
website, and to develop new products and
services to support a growing network of
experts working on compliance and
enforcement world-wide.
CONCLUSION
18. The Conference's Co-Chairs
and the Executive Planning Committee
gratefully acknowledge the assistance and
support of the Moroccan government and
express our deep gratitude for the gener-
ous hospitality provided. We also thank our
sponsors and partner organizations, includ-
ing the US Environmental Protection
Agency, the Ministry of Housing, Spatial
Planning and the Environment in The
Netherlands, the US Department of State,
the Finnish Ministry of the Environment, the
European Commission, the Environment
Agency of England and Wales, the World
Bank, the OECD, Environment Canada,
and the International Fund for Animal Wel-
fare, as well as the embassies of the Unit-
ed States and The Netherlands.
19. The challenge of our genera-
tion is to change the attitudes and actions
of individuals, organizations and the regu-
lated community and to modernize our reg-
ulatory systems to ensure sustainable
development for the generations to come.
History will judge us harshly if we fail to fos-
ter a stronger sense of responsibility for the
Earth.
20. Key to meeting this challenge
is building fair and sustainable societies
based on the rule of law and principles of
good governance. This is a task that many
- including INECE and its partners - have
taken up. As we confront this challenge, we
urge new partners to join us in developing
and implementing a program of action to
strengthen compliance and enforcement,
and to advance the broader effort of con-
verting common principles and shared val-
ues into the meaningful action required to
create a better and more sustainable future
for all of the world's people.
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12 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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DECLARATION DE MARRAKECH 13
DECLARATION DE MARRAKECH
Fa/re fonctionner le droit pour les populations, I'environnement
et le developpement durable
Declaration finale du co-president et du comite executif de planification
7ieme conference Internationale sur la conformite et I'application de la loi en
environnement tenue a Marrakech
INTRODUCTION
1. A cette 7ieme conference du
Reseau international sur la conformite et
I'application de la loi en environnement
(INECE) tenue a Marrakech, les partici-
pants d'organismes internationaux, gou-
vernementaux et non gouvernementaux,
provenant de plus de soixante pays
developpes et en developpement, se sont
reunis a Marrakech au Maroc pour con-
firmer le role de la conformite et de I'appli-
cation de la loi, le maintien de la regie de
droit, renforcer la bonne gouvernance et
garantir notre progression vers le
developpement durable.
LE ROLE DE INECE
2. En qualite de seul reseau global
d'experts independants dedies au respect
de la regie de droit, de la bonne gouver-
nance environnementale et au developpe-
ment durable a tous les niveaux de gouver-
nance, INECE integre les efforts de confor-
mite et d'application de plus de 4000 prati-
ciens (inspecteurs, avocats de la poursuite,
legislateurs, parlementaires, juges, les
ONGs ) de 120 pays, par des programmes
de formation et d'accroissement des
capacites, la sensibilisation et la coopera-
tion en matiere d'application de la loi.
3. Les objectifs de INECE sont de
promouvoir la conformite et I'application de
la loi, de developper des reseaux pour la
cooperation en matiere d'application de la
loi, et, d'accroTtre la capacite de mise en
oeuvre des exigences environnementales
et d'en assurer le respect. Fonde en 1990
par le biais des agences environnemen-
tales des Pays Bas et des Etats-Unis, en
collabaration avec le PNUE, la Commis-
sion europeenne, la banque mondiale,
I'OCDE et d'autres organisations, INECE a
joue un role determinant dans le renforce-
ment de la conformite environnementale au
niveau mondial.
4. A cette conference Interna-
tionale, les participants ont identifie une
occasion pour que INECE renforce la con-
formite environnementale et I'application
de la loi en eliminant les failles ou lacunes
a la conformite, en ameliorant les capacites
et en mettant en ceuvre les outils legislatifs
qui ont ete etablis aux niveaux nationaux et
internationaux, en promouvant le mieux
etre des humains, en assurant une
economie competitive et viable, en conser-
vant et en ameliorant I'environnement et
facilitant I'avancement du developpement
durable.
RECONNAITRE LES
ACCOMPLISSEMENTS
5. Au cours des 30 dernieres
annees, des efforts considerables ont ete
realises afin d'ameliorer la relation entre les
humains et la nature. Plusieurs pays ont
cree des agences de protection de I'envi-
ronnement, negocie des accords multi-
lateraux et entrepris de nouvelles initiatives
aux niveaux local, national et international
afin de proteger la sante humaine, conserv-
er la biodiversite et la faune et gerer les
ressources naturelles. Ces efforts ont
impliques les dirigeants de ces pays, leurs
Parlements, les tribunaux, les organismes
internationaux, les entreprises privees et la
societe civile. Les officiers d'application de
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14
SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
la loi ont souvent ete au centre des efforts
de promotion de la regie de droit et de la
bonne gouvernance.
RECONNAITRE LES DEFIS
6. Les realisations sont significa-
tives. Nous reconnaissons toutefois les
defis grandissants, un centre desquels
apparaTt le besoin de renforcer notre bonne
gerance de la Terre, des especes vivantes
et les ressources naturelles, les fondations
de notre developpement economique et
social ainsi que ('heritage de nos enfants et
petits enfants. Les activites humaines des
dernieres 50 annees ont change I'ecosys-
teme de la terre et le climat plus que toute
autre periode comparable dans I'histoire de
I'humanite. Selon revaluation de I'ecosys-
teme du millenaire (Millenium Ecosystem
Assessment) - evaluation la plus systema-
tique de I'etat de la planete, la deterioration
de I'environnement compromettra les
efforts investis pour favoriser la sante et lut-
ter centre la pauvrete et la faim, ainsi que
d'autres objectifs etablis dans les objectifs
de developpement du Millenaire.
LA MISE EN CEUVRE DES OBJECTIFS
DE DEVELOPPEMENT DU MILLENAIRE
ET DU SOMMET MONDIAL SUR LE
DEVELOPPEMENT DURABLE
7. Nous pouvons attaquer ces
defis. Les objectifs de developpement du
millenaire et les conclusions du Sommet
Mondial sur le developpement durable peu-
vent etre mi en oeuvre mais des efforts
additionnels seront requis. Face a ces defis
environnementaux grandissants et la pau-
vrete persistante pour des milliards d'hu-
mains, la realisation de ces objectifs de
developpement - particulierement ceux qui
integrent les principes du developpement
durable dans les politiques nationales et
les programmes ainsi que le renversement
des pertes de ressources naturelles -
necessitera un engagement significatif
pour le renforcement de la gouvernance,
de la regie de droit et de la conformite aux
lois.
RENFORCEMENT DE LA
GOUVERNANCE ET DE LA
RELOGE DE DROIT
8. Le developpement durable
repose sur la bonne gouvernance, laquelle
depend de la regie de droit qui implique la
conformite et ('application des lois. La
bonne gouvernance est caracterisee par
des institutions ouvertes, participatives,
responsables, previsibles et transparentes.
La regie de droit soutient ces caracteris-
tiques en veillant a ce que les regies soient
appliquees de maniere coherente, efficace
et juste par des institutions impartiales de
tous, incluant ceux qui gouvernent. Garan-
tir la conformite aux lois est plus facile
lorsqu'il y a participation du public au
developpement des lois et lorsque celles-ci
sont fondees sur des valeurs fondamen-
tales sociales et des normes. Le droit doit
egalement respecter les principes d'equite
intra et inter generationnelle, qui exigent
I'elimination de la pauvrete, le respect des
droits de la personne et le respect des
generations futures. En depit de I'augmen-
tation des instruments juridiques et des
institutions, la plupart des indicateurs ejwi-
ronnementaux ont declines. L'une des
raisons cles pour cet echec est le defaut
d'investir suffisamment dans la conformite
et I'application des lois environnementales.
LES BENEFICES D'INVESTIR
EN CONFORMITE ET EN
APPLICATION DE LA LOI
9. Les investissements dans la
conformite et I'application de la loi benefi-
cient au public en garantissant un environ-
nement plus secure et plus sain pour tous
et les generations suivantes. Ces
investissements beneficient aux commu-
nautes reglementees en garantissant des
conditions reglementaires claires et
appliquees egalement a tous de facon
coherente et equitable. Economiquement,
les firmes qui respectent les normes envi-
ronnementales developpent la loyaute de
leur clientele et seront plus efficientes, et
verront une augmentation de leurs profits.
Cela profile aux pays en assurant que les
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DECLARATION DE MARRAKECH 15
ententes multilaterales sont mises en
vigueur par toutes les parties via leurs
actions nationales.
ACCROISSEMENTS DES EFFORTS
INTERNATIONAL^ ET DOMESTIQUES
10. Le besoin d'accroTtre la confor-
mite a ete reconnu par les chefs d'etats et
les gouvernements au Sommet de la Terre
a Rio en 1992. Le Plan d'action pour le
developpement durable (agenda 21)
enjoint les pays a ameliorer la conformite et
la capacite en application de la loi. Au
niveau international, les pays doivent
respecter leurs engagements en vertu des
ententes multilaterales environnementales.
Au plan domestique, des efforts sont requis
a toutes les etapes du cycle reglementaire
- conception, mise en ouvre, application,
evaluation et retroaction - afin d'assurer
que les systemes reglementaires sont
applicables, equitables, efficaces et effi-
cients.
CONCEPTION DES REG LES
DE CONFORMITE
11. Les lois et les politiques doivent
ete concues en ayant a I'esprit les objectifs
de conformite et d'applicabilite. Afin d'etre
conforme, la communaute reglementee
doit connaTtre les regies, les accepter et
etre en mesure de se conformer. Les lois
ne doivent pas etre plus complexe que
necessaire, etre economiquement realis-
ables et considerer les profils sociaux, cul-
turels et psychologiques de la communaute
reglementee. Les regies contraires aux
pratiques culturelles et economiques sont
vouees a I'echec. Les regies qui recom-
pensent les chefs de file environnemen-
taux, elaborees sur les meilleurs pratiques,
et assurent des chances egales pour tous,
ont plus de chance de succes et pour
garantir la conformite.
AMELIORER LE SUPPORT A LA CON-
FORMITE ET LES INCITATIFS
12. Les regies bien concues peu-
vent tout de meme creer des difficultes
pour ceux qui ne possedent pas les capac-
ites techniques, financieres ou administra-
tives necessaires. Garantir la conformite
exige des efforts repetes pour augmenter
la connaissance des exigences legales,
pour renforcer les programmes d'assis-
tance, et pour ameliorer les incitatifs a la
conformite. Les efforts au niveau national
doivent etre congus afin de rencontrer les
besoins des petites et moyennes entrepris-
es et, au niveau international les besoins
des pays en voie de developpement. Les
institutions internationales et les pour-
voyeurs de fonds ont un role particulier a
jouer pour soutenir ces efforts.
REPONDRE A LA NON-CONFORMITE
13. Les pays ont la responsabilite
de proteger ceux qui se conferment a la loi
pas seulement en aidant ceux qui ne peu-
vent se conformer, mais en identifiant et en
sanctionnant ceux qui ne sont pas con-
formes. Les incitatifs et I'assistance a la
conformite sont efficaces seulement
lorsque supportes par une possibilite credi-
ble de sanction. Les penalites et les sanc-
tions ont egalement un effet dissuasif sur
d'autres reglements et soutiennent une
competition economique equitable. Les
efforts en reponse a la non conformite
devraient etre fermes mais equitables,
transparent^, coherents et proportionnels
aux risques, au serieu de I'infraction et au
besoin de dissuasion. A chaque etape du
processus reglementaire, des efforts
devraient etre fails pour evaluer I'efficacite
et mieux orienter les efforts afin d'ameliorer
la contribution des intervenants principaux
dans ('amelioration de la conformite et de
I'application.
LA CONTRIBUTION DES
INTERVENANTS A L'AMELIORATION
DE LA CONFORMITE ET DE
L'APPLICATION
14. L'amelioration de la conformite
et de I'application requiert des efforts
renouvelles par tous les individus et les
institutions. Les fonctionnaires doivent
exercer leur autorite au nom de tous les
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16
SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
citoyens en accord avec les normes de
bonne gouvernance et dans une perspec-
tive de protection du bien etre public et de
conservation de I'environnement. Les leg-
islateurs jouent un role clef en creant des
lois qui peuvent etre appliquees efficace-
ment pour atteindre ces objectifs. Les tri-
bunaux ont un role fondamental a jouer
pour maintenir la regie de droit et faire en
sorte que les lois nationales et Interna-
tionales sont interpretees d'une maniere
juste, efficiente et efficace.
15. La communaute reglementee
et le public ont la responsabilite de se con-
former a la lettre et a I'esprit de la loi et
d'encourager la conformite a la loi par tous.
Les medias ont la responsabilite de sensi-
biliser en fournissant des analyses objec-
tives et de I'information sur les defis envi-
ronnementaux ainsi que les efforts consen-
tis pour y faire face. La communaute inter-
nationale, incluant les bailleurs de fonds et
les organisations internationales, ont la
responsabilite de renforcer les efforts
nationaux par un support technique et fin-
ancier et de promouvoir un contexte favor-
able a une conformite et une application de
la loi plus efficace.
UN PROGRAMME D'ACTION
16. Les co-presidents et le comite
executif de planification de cette con-
ference internationnale enjoignent les indi-
vidus, les ONG's, les medias, les entrepris-
es privees, les organismes de certification,
les avocats, les scientifiques, les
ingenieurs, les experts financiers, les legis-
lateurs, les tribunaux, les negociateurs, et
les banques de developpement de tous les
niveaux, - local, national, regional et inter-
national - de:
a) ReconnaTtre les perils qui menacent
I'environnement et le besoin d'etablir et
de renforcer la regie de droit, la bonne
gouvernance, le developpement durable
afin de conserver les ressources
naturelles et d'assurer la sante humaine,
I'integrite des ecosystemes et le
developpement economique ;
b) Presser la communaute Internationale et
les concepteurs de politique dans
chaque pays de reconnaTtre I'impor-
tance de la conformite et de I'application
des lois environnementales a tous les
niveaux critiques afin de respecter la
regie de droit, la bonne gouvernance et
le developpement durable;
c) Valoriser I'importance de fournir de la
formation aux pays, compagnies, et indi-
vidus qui n'ont pas la capacite de se
conformer, et d'identifier la non confor-
mite et d'appliquer des sanctions appro-
priees et equitables pour punir ceux qui
sciemment violent les lois environ-
nementales et dissuader les autres;
d) Ameliorer la capacite des agences envi-
ronnementales de recueillir et analyser
les informations afin de developper des
regimes reglementaires efficaces et effi-
cients.
LE ROLE DETERMINANT DE INECE
17. Le reseau INECE a un role
determinant pour que progresse ces objec-
tifs, pour ameliorer la capacite institution-
nelle, et coordonner, les intervenants prin-
cipaux dans le domaine de la gouvernance
environnementale. INECE poursuit ces
objectifs grace a des activites diverses
pour aider les agences publiques a renfor-
cir leur gestion et ameliorer leur efficacite et
leur efficience, INECE developpe des indi-
cateurs qui mesurent la conformite et Tap-
plication de normes environnementales.
INECE offre des cours de formation, de
I'enseignement et de renforcement de la
capacite et tient a jour via Internet des
forums de discussions interactifs, des bib-
liotheques virtuelles et des bases de don-
nees. Par des conferences internationales,
INECE offre aux praticiens du monde entier
I'opportunite d'acquerir la connaissance et
d'etablir des relations a long terme requis-
es pour faire face aux defis de la confor-
mite et de la application des lois environ-
nementales. Pour accroTtre ces efforts et
augmenter la contribution de INECE a ses
membres, aux gouvernements et au public,
les co-presidents et le comite executif de
planification:
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DECLARATION DE MARRAKECH 17
a) Enjoignent tous les praticiens de INECE
de partager les informations et les pra-
tiques via INECE et autrement, de pro-
mouvoir la conformite et ('application qui
garantissent que les regimes environ-
nementaux sont efficaces et efficients;
b) Encourage INECE a continuer d'etendre
ses initiatives de renforcement de la
capacite, de renforcir ses partenariats
avec les organisations internationales
regionales et nationales ainsi qu'avec
les ONG, les institutions academiques,
en vue de profiler des avantages
respectifs de chacun, eviter la duplica-
tion et optimiser ('utilisation des
ressources disponibles;
c) Reaffirme I'engagement de INECE de
renforcer et developper des reseaux
regionaux, specialement en Amerique
latine, en Asie, en Europe de I'Est, dans
les Caucase et dans I'Asie centrale, en
Afrique incluant un nouveau reseau en
Afrique du Nord;
d) ReconnaTt le role important que les
organisations intergouvernementales
peuvent jouer en matiere de conformite
et d'application comme intervenant
independant et en support des efforts
gouvernementaux dans ce domains, et
enjoint INECE de supporter leur creation
et leur apport a la conformite et a I'appli-
cation;
e) Encourage INGE a continuer ses efforts
de cooperation avec les partenaires
nationaux, les institutions academiques,
les organisations internationales et
d'autres partenaires dans la commu-
naute de la recherche pour developper
et supporter la mise en place d'un agen-
da de recherche multidisciplinaire qui
supporte la mission de INECE;
f) Enjoint INECE de continuer le
developpement et de diriger le projet
d'indicateur de performance, en coopera-
tion avec les reseaux regionaux dans la
perspective d'ameliorer la performance,
la prise de decision en matiere de poli-
tique, et la gouvernance environnemen-
tale globale, ainsi que la qualite de I'envi-
ronnement;
g) Enjoint INECE de renforcer son travail
en collaboration avec d'autres parte-
naires pour accroTtre la capacite des
parlementaires dans le domaine du droit
international et des institutions pour le
developpement durable;
h) Enjoint INECE d'encourager les reseaux
de juges pour I'environnement et d'or-
ganiser un forum ou les differents
reseaux peuvent se rencontrer et
echanger;
i) Enjoint INECE de travailler avec le
PNUE, UICN, CEL, et d'autres institu-
tions pour recueillir des cas de reussites
remarquables, de la jurisprudence et des
exemples concrets d'application de con-
cepts environnementaux clefs tels que le
principe de prevention, le principe de
precaution, le principe du pollueur
payeur, selon Pobjectif du plan
strategique de INECE d'analyser les ele-
ments clefs regionaux et internationaux
pertinents au travail de INECE;
j) Enjoint INECE de promouvoir les
meilleures pratiques pour ('implication du
public et les droits fondamentaux du
public tels que I'acces a I information, la
participation du public et I'acces a la jus-
tice;
k) Enjoint INECE de developper un reseau
d'application de la loi en matiere fau-
nique et d'inviter les differentes agences
d'application de la loi nationales et inter-
nationales, les institutions et les reseaux
specialises (e.g. Interpol, Working Group
on Wildlife Crime et le Ousaka Agree-
ment Task Force), tous les ONG qui ont
une expertise ainsi que les autres parte-
naires concernes;
I) Engage INECE a batir sur ses realisa-
tions incluant ses conferences, publica-
tions, formation, cours et son site Web,
ainsi qu'a developper de nouveaux pro-
duits et services pour supporter un
reseau grandissant d'experts travaillant
en matiere de conformite et d'application
de la loi.
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18
SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
CONCLUSION
18. Les copresidents et le comite
executif de planification sont reconnaissant
de I'apport significatif du gouvernement
marocain et expriment leur grande grati-
tude pour la genereuse hospitalite demon-
tree. Nous remercions nos commanditaires
ainsi que nos organismes partenaires pour
leur support, notamment la USEPA (United
States Environnemental Protection
Agency), le Ministere de I'habitation, de
ramenagement et de I'environnement des
Pays Bas, le Departement d'Etat ameri-
cain, le Ministere finlandais de I'environ-
nement, la Commission europeenne, I'A-
gence environnementale d'Angleterre et du
Pays de Galles, la Banque mondiale,
I'OCDE, Environnement Canada et le
Fonds international pour le bien-etre des
animaux, ainsi que les ambassades des
Etats-Unis et des Pays Bas.
19. Le defi de notre generation est
de changer les attitudes et les cornporte-
ments des individus, des organisations,
des communautes reglementees, pour
assurer un developpernent durable pour
les prochaines generations. L'un des defis
est de moderniser nos regimes reglemen-
taires afin de rencontrer les besoins
changeants de notre societe. L'histoire
nous jugera severement si nous echouons
dans la promotion de notre responsabilite
pour la terre.
20. Un element clefs dans la reali-
sation de ce defi est de developper des
societes equitables et durables basees sur
le respect de la regie de droit et les
principes de bonne gouvernance. C'est
une tache que plusieurs - incluant INECE
et ses partenaires ont prise en charge. En
addressant ce defi, nous pressons les nou-
veaux partenaires de joindre nos rangs en
developpant et mettant en oeuvre un pro-
gramme d'action pour renforcer la confor-
mite et I'application et de transformer dans
un effort global les principes communs
ainsi que les valeurs partagees dans des
actions significatives requises pour creer
un futur plus durable pour tous les citoyens
de la terre.
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RECOMMENDATIONS FOR INECE 19
RECOMMENDATIONS FOR INECE
from the 7th INECE Conference on Compliance and
Enforcement in Marrakech, Morocco
Conference participants spent a week in Marrakech discussing ways to promote the
rule of law, good governance, and sustainable development by focusing on the three
INECE goals of:
(1) raising awareness of the importance of environmental compliance and enforcement;
(2) strengthening capacity to implement and enforce environmental requirements; and
(3) developing networks for enforcement cooperation.
In a variety of instructive panels,
interactive workshops, and animated dis-
cussions - all described in more detail in
this volume of conference Proceedings -
conference participants strongly encour-
aged INECE to take specific actions in fur-
therance of these goals. Participants
specifically urged INECE to play a leading
role in further developing a strategy to
demonstrate that environmental compli-
ance and enforcement can help to promote
good governance, the rule of law, and sus-
tainable development.
Participants suggested that INECE
continue developing useful tools for
enforcement and compliance, placing par-
ticular emphasis on INECE's efforts to
assist countries in the process of identify-
ing, developing, and using Environmental
Compliance and Enforcement (ECE)
indicators. Participants indicated strong
support for INECE's ECE indicator project,
recommending specific actions such as
developing trainings, compiling a library of
examples of basic indicators used by differ-
ent countries, building a Community of
Practice among ECE programs conducting
indicators projects in order to compile
accomplishments and lessons learned, and
working with regional networks to promote
the use of ECE indicators. Participants also
suggested that INECE explore opportuni-
ties to use ECE indicators as a tool to com-
municate information on and results from
ECE activities to diverse audiences - rang-
ing from parliamentarians to financial insti-
tutions to field officers to the public - in a
clear and concise manner.
Participants also pushed for
INECE to further its efforts on a variety of
specific issues. Participants recommended
that INECE raise awareness of the impor-
tance of compliance and enforcement in
emissions trading schemes, serve as a
resource for exchanging information and
data between environmental compliance
and enforcement experts on emission trad-
ing activities in different countries, develop
a simple document on elements of emis-
sions trading systems, and develop a work-
shop in the near future for practitioners.
Participants urged INECE to identify ports
in countries or regions that are probably the
most sensitive targets for illegal ship-
ments of hazardous waste, identify spe-
cific waste streams that represent the most
severe risks, and recommend focal points
in each of the relevant interested countries.
Participants encouraged INECE to hold a
regional or international meeting of experts
on forest sector enforcement to address
the issue of illegal logging and to promote
national and local enforcement capacity
building. And participants asked INECE to
work to build capacity for good governance
practices to assist countries in meeting
their water resource management obliga-
tions.
Conference participants further
suggested a continued focus on building
the capacity of certain groups and profes-
sions, such as the judiciary and its need
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20
SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
for better information on penalty calculation
and other remedies. Participants urged
INECE to provide training for regulators,
investigators, prosecutors, and judges to
perform their environmental criminal
enforcement duties. Participants also sug-
gested that INECE promote and facilitate
the international exchange of information to
develop and strengthen national programs
for determining penalties and developing
methodologies; aid in the dissemination of
information regarding the importance of
appropriate penalties and enforcement;
promote mechanisms to share information
among judges to develop specialized
expertise; consider the creation of an inter-
national award for judicial excellence; seek
harmonized approaches in penalties and
remedies, particularly for transboundary
crimes; create guidelines on how to calcu-
late harm and demonstrate the harm to
judges; and present judges and prosecu-
tors with best practices and real examples
of how legislation can be implemented.
Sincere thanks goes to all confer-
ence participants for their valuable input.
The recommendations from the Marrakech
Conference, which the Executive Planning
Committee will be evaluating to determine
priorities and to assess relevance to the
INECE goals, are part of the process of
revising the INECE Strategic Implementa-
tion Plan for its next three-year cycle. As
demand for INECE assistance continues to
grow, these recommendations from the
conference participants, and the many
other recommendations and ideas con-
tained in the reports in this volume, provide
important guidance and inspiration to
INECE.
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SUMMARY OF PANEL 1 21
SUMMARY OF PANEL 1: RELATIONSHIP BETWEEN
GOOD GOVERNANCE AND ENVIRONMENTAL
COMPLIANCE AND ENFORCEMENT
Moderator: Sir John Harman, Chairman, Environment Agency (England & Wales)
Panelists: Jonathan Allotey, Executive Director, Environmental Protection
Agency, Ghana
Ladislav Miko, Deputy Minister of the Environment, Czech Republic
Kenneth Ruffing, Deputy Environment Director, Organisation for
Economic Co-operation and Development (OECD)
Pieter van Geel, State Secretary for the Environment, The Netherlands
Rapporteurs: Sandy Rowden, Environment Agency (England & Wales)
Terence Shears, Environment Agency (England & Wales)
1 INTRODUCTION
The panel demonstrated how com-
pliance and enforcement are building
blocks for the rule of law and good gover-
nance and, ultimately, for sustainable
development, and emphasized the need for
improving communication between law-
makers and enforcement practitioners to
ensure better legislation. The panelists
explored the roles of civil society, environ-
mental ministries, parliamentarians, judges,
and the press in environmental compliance
and enforcement and ways to confront cor-
ruption and ensure transparency.
2 PRESENTATIONS
2.1 Presentation by Sir John Harman
Sir John Harman opened the panel
by saying that he hoped the panel would be
able to identify why good governance was
important for compliance and enforcement
(and vice versa) and why it was essential to
have good cooperation between imple-
menting authorities. Regulators are certain-
ly accountable to ministers but also to reg-
ulated businesses and individuals. Where
there is a clash of accountabilities, there is
a question over which is the most impor-
tant: in other words, there is a question
over whether compliance and enforcement
standards should be left to politicians.
Society demands high environ-
mental standards. There is a pressing need
to tackle a legacy of harm to the environ-
ment on a global scale, but protection, con-
servation, and good governance can only
take place within a framework of good gov-
ernance and respect for the rule of law.
Businesses can compete on equal
terms Where regulations are enforced fairly.
Effective environmental compliance, com-
pliance assurance, and enforcement,
where necessary, are key tools for deliver-
ing good governance. However, if govern-
ments and regulators expect companies to
respect the law and accept increasing reg-
ulatory standards, they should also recog-
nize that regulators are accountable to the
public and to the regulated community, as
well as to ministers, for aspects of their reg-
ulatory practice.
Despite the global differences in
legal frameworks and administrative sys-
tems, there is general agreement on the
concept of good governance. Good envi-
ronmental regulation is central to good gov-
ernance, while regulatory regimes can also
give incentives for good governance in
businesses. Compliance and enforcement
are powerful tools that underpin good gov-
ernance.
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22
SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
2.2 Presentation by Secretary
Pieter van Geel
Secretary Pieter van Geel said that
the Dutch government is deeply concerned
about the enforcement of environmental
regulations, whether in the Netherlands,
the European Union, or on a global scale.
That is why the government supports and
participates in the European Union Net-
work for the Implementation and Enforce-
ment of Environmental Law (IMPEL) and
the International Network for Environmen-
tal Compliance and Enforcement (INECE).
These networks help to protect the environ-
ment for future generations and at the
same time create a level playing field for
companies.
Many international organizations
have emphasized the importance of good
governance and the rule of law. They are
both essential conditions for achieving sus-
tainable development. Weak legal and judi-
cial systems, where non-compliance is the
norm, undermine the rule of law and cause
environmental degradation while slowing
progress towards sustainable develop-
ment. Weakness in the rule of law has seri-
ous consequences for the confidence of
economic actors and hinders investment.
Lack of investment in turn deprives govern-
ments of resources to invest in education,
social welfare nets, and sound environ-
mental management.
The rule of law could be strength-
ened in many ways. To date, most efforts
have concentrated on developing new laws
and creating new institutions rather than on
building capacity for ensuring compliance
with existing rules and making sure that
these are clear and are not contradictory. A
culture of compliance should be developed
to replace a culture of non-compliance or
corruption. International assistance for
building capacity should expand efforts
aimed at the deeper goal of increasing
compliance with laws, and it is here that
INECE has a critical role to play. There
should be increased focus on compliance,
but it is not possible to build a culture of
compliance overnight. Often it is necessary
to change long-standing practices,
entrenched interests, cultural habits, social
norms, and even religious norms.
2.3 Presentation by
Mr. Kenneth Ruffing
Mr. Kenneth Ruffing said that there
are several definitions of good governance.
The Organisation for Economic Co-opera-
tion and Development (OECD) has adopt-
ed a set of six principles: rule of law,
accountability, transparency, efficiency and
effectiveness, responsiveness, and forward
vision. There are examples to illustrate that
good governance supports environmental
improvement and also that lack of good
governance hampers countries' efforts to
maximize the benefits of environmental
policies and minimize the negative impacts
of sectoral policies on human health, the
environment, and natural resources.
While the existence of good gover-
nance is a necessary condition to ensure
better environmental management, it is not
a sufficient condition on its own. Specific
elements are necessary to achieving the
desired objectives. For instance, policies,
laws, and regulations should reflect con-
sensus and science-based objectives.
Attention should be paid to the full regula-
tory cycle with suitable mixes of policy
instruments, sectoral policy integration,
and compliance monitoring, assurance,
and assessment. The institutional frame-
work should have a clear allocation of
responsibilities and powers to national and
sub-national levels of government. Finally,
it is necessary to ensure provision of envi-
ronmental information, public participation,
and access to an impartial judiciary.
Effective public administration is
fundamental to good governance. In many
OECD countries, environmental agencies
or ministries have been at the forefront in
developing good governance practices. At
the same time, many environmental con-
cerns have been championed by the gener-
al public demanding that governments pro-
tect the environment. Thus, parliamentary
bodies and regulators, an independent judi-
ciary, and an engaged citizenry each have
essential roles to play in strengthening gov-
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SUMMARY OF PANEL 1 23
ernance for improving environmental out-
comes.
The OECD has been supporting
countries in the region of the former Soviet
Union and in Asia in strengthening their
enforcement systems. It has contributed
towards developing laws and encouraging
compliance with them in a number of ways.
It fostered agreement on environmentally
effective and economically efficient policies
and on their underlying principles; it identi-
fied good practice; and it adopted legal
instruments, usually establishing monitor-
ing and "peer review" mechanisms aimed
at fostering compliance. OECD wants to
continue to play an active part within
INECE by exchanging good practices and
supporting the development of effective
and efficient policies and compliance
assurance based on good governance
principles.
2.4 Presentation by
Mr. Jonathan Allotey
Mr. Jonathan Allotey gave an
African perspective on good governance
and environmental compliance. Gover-
nance and environmental management are
universal and involve norms and values.
These are both informal (customs and
practices) and formal (written rules and
instructions). In Africa there are many tradi-
tions and systemic taboos and rituals. Tra-
ditional governance was responsive and
delivered at a local level. With colonization,
major changes in governance were
imposed. It was centralized, and informal
groups were no longer part of the system.
Rules were now written down.
Indigenous rules were time-hon-
ored and adaptive. However, the traditional
view was no longer seen as legitimate. For
example, when forest reserves were estab-
lished, local people were hostile because
they saw their livelihood as threatened. On
the other hand, there were traditional forest
reserves based on traditional rules which
now stood as islands in the midst of
degraded lands.
A particularly good example was a
monkey sanctuary in an area where mon-
keys were seen as sacred. They lived with
people and were not seen as a threat to
people, just as people were no threat to
them. Local rules and traditions worked
well in this situation. In an urban area, there
was a period of ban on the use of drums to
allow a peaceful period before farming and
fishing seasons - a traditional equivalent
for modern regulation for noise control.
Another example was the protection of
lagoons and wetlands where there were
closed and open seasons for fishing. It was
quite possible for traditional knowledge and
concerns to co-exist with modern systems
of ownership, etc. It was necessary to go
back to roots and to examine enduring con-
cepts on which systems had developed.
2.5 Presentation by Dr. Ladislav Miko
Dr. Ladislav Miko recognized that
environmental compliance and enforce-
ment are very important and effective tools
in supporting good governance. However,
he suggested that their use and effect
could' be strongly influenced by different
national and international factors. In partic-
ular, he quoted some of the lessons
learned by the Czech Republic in moving
away from the former totalitarian regime.
In the national context, there is a
tradition of non-compliance and of breaking
the law because the law was often used as
a tool against the demands of the general
public. This behavior persists for a long
time, even after the political change. Envi-
ronmental goals tend to be set either very
low, representing the current environmen-
tally harmful situation in the country, or very
high and unattainable. Although the public
recognizes the value of the quality of the
environment, low standards of living mean
that they prefer cheap products to more
expensive, environmentally safe ones.
Environmental measures taken by the gov-
ernment are often seen as a burden in
achieving a better standard of life.
There was a lack of trust in state
bodies under totalitarian regimes, such
that, when they had gone, there was a ten-
dency to limit the size of the state as much
as possible. This limited the resources
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24
SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
available in terms of finance and personnel
for good governance. The approach taken
to implementation of laws and compliance
and enforcement is bureaucratic, so it is not
possible to simplify the system. There is lit-
tle coherence between the bodies of the
state, and traditional ways of behavior are
often environmentally unacceptable (for
example, wastewater disposal or hunting of
birds). Finally, there is no feedback, even if
the legislation is in place.
In the international context, small
countries with less developed economies
are greatly influenced by the broader
region. If some countries in the region do
not follow international environmental stan-
dards, the advance towards environmental
targets is very limited. Developing coun-
tries often do not have trust in the fact that
they gain internationally with good environ-
mental behavior. Environmental goals set
by international bodies are seen as being
too ambitious and unrealistic.
There are of ways of avoiding or
solving these problems. There should be
open environmental information about
compliance with multilateral environmental
agreements. There might be financial sup-
port for countries developing effective com-
pliance and enforcement systems, as well
as support in terms of providing experts
and practitioners for direct transfer of expe-
rience. There should be support for devel-
oping national systems of environmental
education, and international minimum stan-
dards of inspectors' expertise should be
set. There should also be a road map of
effective enforcement, defining the neces-
sary conditions and starting points for
implementing particular approaches and
methods.
3 DISCUSSION
Dr. Bill Clark, Nature and National
Parks Protection Authority, Israel, began
the discussion session by asking how an
authority or regulator can avoid liability
when they publish negative data and infor-
mation about companies on the internet.
Mr. Kenneth Ruffing believed that if the
published information is publicly available
anyway, this avoids the liability and pro-
vides information that can stimulate the
local community to participate in environ-
mental compliance and enforcement. Sir
John Harman provided an example from
the Environment Agency (England &
Wales), where company data is made
widely available on the internet, allowing
searches by postcode (zip code) that yield
local sources of pollution and environmen-
tal risk. This process makes publicly avail-
able data publicly accessible.
Mr. Lee Paddock, Director of Envi-
ronmental Law Programs, Pace University
New York, highlighted the issue that many
environmental compliance and enforce-
ment staff have limited experience and
training outside their own areas (for exam-
ple, in economics), and asked how capaci-
ty, training, and experience of these staff
can be expanded. Secretary Pieter van
Geel stated that environmental compliance
and enforcement inspectors could not live
in isolation but must live and work in their
social and economic contexts. Dr. Ladislav
Miko believed that inspectors need training
on issues such as economics, as well as
communication skills. With this training,
they are more capable of explaining the
environmental compliance and enforce-
ment and environmental goals to others. It
is essential that inspectors operate in multi-
disciplinary teams with a wide range of
skills in order to achieve their environmen-
tal compliance and enforcement aims and
contribute towards sustainable develop-
ment. Mr. Kenneth Ruffing proposed that
capacity building is most effective at the
national level, though efforts are also being
made at an international level, and indicat-
ed that training courses and programs are
available to assist in this capacity building.
Dr. Palamagamba Kabudi, Tanza-
nia, in response to the key points made by
Mr. Jonathan Allotey, noted that in Africa
the issue of traditional versus modern
styles of regulation is a problem across the
continent. Modern environmental legisla-
tion in many African countries has excluded
the role of the indigenous institutions, and
cooperation is required between countries
to restore a more holistic approach. Mr.
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SUMMARY OF PANEL 1 25
Allotey indicated that one way to resolve
this is by bringing local authorities into envi-
ronmental compliance and enforcement, as
for example occurred with the Monkey
Sanctuary. One method to help achieve a
holistic approach, merging traditional and
modern regulation, is to create an invento-
ry of indigenous practices and to study
these to identify where the conflicts
between tradition and modernity occur, to
allow these issues to be resolved with par-
ticipation of all parts of society. One power-
ful example in Ghana was a nature protec-
tion measure to prevent the extinction of
local animal species. Traditionally, the local
cultural or ethnic groups use one species
as the symbol of their authority. If these
species become rare or extinct, this could
be seen as the loss of that group's authori-
ty. By using this argument, groups have
been persuaded of the need to protect the
wildlife to preserve their traditional society
customs and beliefs.
Dr. Kabudi from Tanzania also
asked, in response to the comments of Dr.
Ladislav Miko, how the balance between
international and national demands could
be found so that national priorities are not
displaced. Both Mr. Kenneth Ruffing and
Dr. Miko agreed that the best way to
achieve this is by ensuring that all environ-
mental compliance and enforcement pro-
posals are subject to rigorous cost-benefit
analysis. However, there is a need to over-
come the problem of how to communicate
complicated cost-benefit analyses to the
wider community in a manner that is under-
standable. New, innovative ways of com-
municating these ideas are needed. Dr.
Miko further added that while international
demands provide an impetus for national
action on issues, there are too many inter-
national demands at one time, and there is
a need for countries to prepare road maps
of the way forward for that country, to allow
prioritization of action.
Mr. Chris Dekkers, Ministry of
Housing, Spatial Planning and the Environ-
ment (VROM), in the Netherlands, raised
the issue of emissions trading. Monitoring
and reporting of emissions trading is not an
issue that many find interesting or impor-
tant, and there is a general reluctance to
address the enforcement, compliance, and
verification of emissions trading, despite
these being essential activities. The Panel
was asked what the role of INECE could be
in resolving this problem. Secretary Pieter
van Geel believed that policy makers are
only interested in compliance if things go
wrong: only if there is no level playing field
in Europe on emissions trading will there be
a focus on compliance and enforcement.
Dr. Ladislav Miko added that fair and prop-
erly functioning environmental compliance
and enforcement systems would have to be
in place to allow trading to occur. People
need to be made aware of the full costs and
benefits of particular environmental pro-
posals.
Mr. Georges Kremlis, European
Commission, provided some additional
points on how law can be better informed in
order to contribute to good governance. He
stated that there is a need for better law
making, and there should not be over-reg-
ulation. All parties need to cooperate in the
development of laws, which should ensure
that the laws are also enforceable. In the
European Union, they are undertaking
Regulatory Impact Assessments, which
also improve legislation. In addition, sanc-
tions need to be fair and proportionate.
With greater decentralization of power with-
in countries, there is also a need to build
capacity in local authorities to deal with
environmental compliance and enforce-
ment. The European Union's Aarhus Con-
vention is a key way of helping with envi-
ronmental compliance and enforcement
and supporting good governance.
Ms. Katia Opalka, Commission for
Environmental Cooperation, Canada,
asked the Panel how governments should
enhance the profile of the regulator with
industry and the public. Ms. Linda Duncan,
environmental law and policy consultant,
Canada, also asked how the credibility of
environmental regulators in many countries
could be improved. Dr. Ladislav Miko said
that the government should use top spe-
cialists and should ensure positive public
presentation of the regulator to the public
and industry. Secretary Pieter van Geel
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26
SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
explained that the roles of government and
society cannot be split. He highlighted how,
in the Netherlands, general society reacts
when they feel that the government is not
fully backing environmental enforcement. If
the government does not do this, it leads to
the government losing its moral integrity.
Mr. Bakary Kante, United Nations
Environment Programme, raised the issue
of sanctions in international environmental
agreements. He stated that it is very chal-
lenging for all governments in the multilat-
eral agreement to agree on sanctions. For
example, under the Basel Convention it is
virtually impossible to enforce the agree-
ments, as there is no scheme to do this. Dr.
Ladislav Miko added that the public finds it
difficult to understand the system of sanc-
tions. Mr. Kenneth Ruffing asserted that it is
important to recognize the difference
between national and international sanc-
tions. Nationally, proportionate fines must
be based on an estimate of the environ-
mental damage, multiplied by a factor for
punitive damage. Internationally, it is not
always necessary to include sanctions at
this level. However, sanctions have been
included on an international basis in the
Kyoto Agreement. Sir John Harman
explained that, in the European Union, the
ability to take issues to the European
Courts of Justice and to apply sanctions on
governments had been very powerful in
environmental compliance and enforce-
ment cases.
Ms. Linda Duncan asked the Panel
how to overcome the tension between strict
compliance and softer environmental com-
pliance and enforcement options. Mr.
Jonathan Allotey stated that a mixture of
options should be used within a country
depending on the context of the issue being
tackled. Mr. Kenneth Ruffing highlighted an
OECD study on voluntary approaches that
concluded that it was useful to use volun-
tary approaches to complement the tradi-
tional approaches, particularly where there
was little capacity for environmental com-
pliance and enforcement. The research
also provided a list of approaches that have
been successfully applied in different con-
texts. Secretary Pieter van Geel outlined
the approach taken in the Netherlands
where environmental compliance and
enforcement start with voluntary agree-
ments, but at a later stage, more formal
regulations are implemented if the environ-
mental targets are not being met. This
approach has delivered many positive out-
comes, and therefore the Netherlands use
a mix of the traditional and softer options.
Sir John Harman stated that voluntary
agreements can be used as the forward
edge of environmental compliance and
enforcement, but need to be accompanied
by the understanding that if voluntary
agreements are not delivering the desired
environmental outcomes, then traditional
regulation will be used. Reductions in pes-
ticide use in agriculture have been
achieved through voluntary agreements in
the UK, as the government threatened to
tax the use of pesticides if the use did not
decrease. Dr. Ladislav Miko also agreed
with this approach and added that regula-
tion in the later stages helped create a level
playing field for businesses by not allowing
those not in the voluntary agreements to
gain advantage.
Mr. Sibusjso Gamede, Basel
Resource Centre, South Africa, stated that
environmental compliance and enforce-
ment include improving the knowledge of
the judiciary and their ability to preside in
environmental cases. He asked the Panel
how the learning process for the judiciary
and support for inspectors can ensure com-
pliance and enforcement. Sir John Harman
noted that the question of judicial education
is not just a South African concern, and Mr.
Jonathan Allotey echoed that judges'
knowledge is often low (and sometimes
they admit it).
4 CONCLUSION
In conclusion, Sir John Harman
summarized the key points of the panel dis-
cussions on how environmental compli-
ance and enforcement are building blocks
of good governance.
The main outcomes of the discus-
sion were as follows:
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SUMMARY OF PANEL 1 27
Compliance and enforcement does not
happen in isolation but in a wider politi-
cal and social context.
Regulators need to be aware of the lim-
itations of top-down standard setting.
Specify the end result but be flexible
about the means.
The principles of subsidiarity should
apply to environmental compliance and
enforcement, but how they can be
applied is rarely considered.
Enforcement is there for a purpose, and
outcomes should take priority in meas-
uring its effectiveness.
Lawmakers and policy makers should
make use of the practical experience of
those responsible for enforcement.
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28 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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HARMAN 29
THE RELATIONSHIP BETWEEN GOOD GOVERNANCE AND
ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
HARMAN, SIR JOHN
Chairman, Environment Agency (England and Wales)
May I begin by welcoming you to
this Panel on the Relationship between
Good Governance and Environmental
Compliance and Enforcement, key themes
for the conference as a whole.
During this panel discussion I hope
we will be able to identify why good gover-
nance is important for compliance and
enforcement, and why cooperation between
implementing authorities is essential.
To whom are we as regulators
accountable for what we do? To Ministers,
certainly; but also to the public, and to reg-
ulated businesses or individuals. What do
these accountabilities demand of us? Who
benefits from what we do?
If these accountabilities clash,
which wins out? Should we put the public
interest first? Or to put the question anoth-
er way, are compliance and enforcement of
environmental standards too important to
be left to politicians? To help address these
questions we have a panel of eminent
speakers:
— Secretary Pieter van Geel from The
Netherlands.
— Kenneth Ruffing from the Organisation
for Economic Co-operation and Devel-
opment (OECD).
— Jonathon Allotey, Executive Director,
Environmental Protection Agency,
Ghana.
— Ladislav Miko, Deputy Environment Min-
ister, Czech Republic and Director Des-
ignate DG Environment (Directorate B:
Protecting the Natural Environment).
We circulated a paper on the rela-
tionship between good governance and
environmental compliance and enforce-
ment. I expect that many of you will have
had an opportunity to read the paper, but I
should like to highlight some of the key
points from it.
Society demands high environ-
mental standards. The need to address a
legacy of harm to the environment on a
global scale is more pressing than ever but
protection, conservation and improvement
of the environment can only take place
within a framework of good governance
and respect for the rule of law.
Regulations, enforced fairly,
enable business to compete on equal
terms. Effective environmental compliance,
compliance assurance and, if necessary,
enforcement are key tools for delivering
good governance. But good governance
cuts both ways. If governments and regula-
tors expect companies to respect the law
and accept good regulatory standards, they
also need to recognise that regulators are
accountable to the public and to customers,
as well as to ministers, for aspects of their
regulatory practice.
In my paper for this panel, I have
given examples of definitions of good gov-
ernance. Despite the global differences in
legal frameworks and administrative sys-
tems there is a high degree of shared
understanding of what constitutes good
governance. In fact the underlying princi-
ples across the world are almost the same.
I have therefore taken the principles of the
European Commission as the main basis of
my paper, not because I consider them bet-
ter than those from other regions, but
because they are those by which my organ-
isation, the Environment Agency, bases our
work and modernising regulation agenda.
In this panel, we are going to dis-
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30 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
cuss these issues further, and we hope to
hear good examples of how compliance
and enforcement activities across the world
both benefit from good governance and
contribute to it.
Good environmental regulation is
central to good governance. Regulatory
regimes can incentivise good governance
in businesses. Compliance and enforce-
ment can be powerful tools that provide
support for good governance.
To help us explore these questions
further I turn to our panel and invite each of
them to contribute some introductory
remarks before we open the session for
wider debate.
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VAN GEEL 31
THE RELATIONSHIP BETWEEN GOOD GOVERNANCE
AND ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
VAN GEEL, PIETER
State Secretary for the Environment, The Netherlands
Let me take one minute of my time
to make some general remarks. This year,
Morocco and the Netherlands are com-
memorating their 400-year relationship.
Although this conference is not part of the
official celebrations, I am pleased and hon-
oured to be participating in it.
The Dutch government is deeply
concerned about the enforcement of envi-
ronmental regulations, not only in the
Netherlands but also throughout the Euro-
pean Union and on a global scale. That is
why we support and participate in the EU
Network for the Implementation and
Enforcement of 'Environmental Law
(IMPEL) and the International Network for
Environmental Compliance and Enforce-
ment (INECE).
We feel this is necessary to protect
our environment for our generation and -
more importantly - for future generations.
But we also need to create a level playing
field for companies so they can comply on
equal terms.
The need to promote enforcement
and compliance was recognised by the par-
ticipants in the Rio Earth Summit back in
1992. The Summit established an interna-
tional mandate, in Chapter 8.21 of Agenda
21, identifying compliance and enforce-
ment capacity as essential elements of
environmental management.
We participate in activities organ-
ised by INECE, which began in 1990, fulfill-
ing the mandate established at the Rio
Earth Summit.
How do the Rule of Law and Good
Governance help us achieve environmen-
tal compliance and enforcement?
Let me begin by saying that inter-
national organisations like the European
Commission, the United Nations Environ-
ment Program, the World Bank, the United
Nations Development Program and the
Asian Development Bank have stressed
the importance of Good Governance and
Rule of Law.
I realise definitions may differ
slightly, but in general this is what we mean
when we talk about the Rule of Law and
Good Governance.
— The Rule of Law means having inde-
pendent, efficient and accessible judicial
and legal systems, and a government
that applies fair and equitable laws
equally, consistently, coherently and
prospectively to all its citizens.
— Good Governance is characterised by
accessibility, accountability, predictabili-
ty and transparency.
— Good Governance:
- promotes accountability, openness
and transparency, citizen participa-
tion, efficiency, and other aspects of
the Rule of Law in public institutions
at all levels;
- includes clear decision-making proce-
dures for all public authorities, civil
society participation in decision-mak-
ing processes, and the ability to
enforce rights and obligations through
legal mechanisms; and
- allows for sound and efficient man-
agement of human, natural, econom-
ic and financial resources for equi-
table and sustainable development.
Good Governance and the Rule of
Law are essential conditions for achieving
sustainable development.
Weak legal and judicial systems,
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
where non-compliance is the norm, under-
mine the Rule of Law and cause environ-
mental degradation and slow progress to
sustainable development. This not only
affects sustainable development, but also
carries severe economic consequences.
Weakness in the Rule of Law has devastat-
ing consequences for the confidence of
economic actors and hinders investment.
Lack of investment slows economic growth,
which in turn deprives governments of
resources to invest in education, social
safety nets and sound environmental man-
agement.
These are the negative effects.
What can we do to strengthen the
Rule of Law?
— To date, most efforts to strengthen the
Rule of Law concentrate on developing
new laws and creating new institutions,
rather than building capacity for ensur-
ing compliance with existing rules and
making sure that they are clear and not
contradictory.
— It is not enough merely to point out the
elements of the Rule of Law and to
invest in institutional reforms, if a culture
of compliance is not developed to
replace the culture of non-compliance or
corruption.
— International capacity-building assis-
tance should expand efforts aimed at
the deeper goal of increasing govern-
ment compliance with laws. INECE has
a critical role to play here; it is the only
global network of professionals dedicat-
ed to improving compliance with envi-
ronmental law.
— Increased focus on compliance, along
with better coordination and increased
support, will improve the success of
efforts to strengthen the Rule of Law,
which in turn will improve the success of
efforts to improve Good Governance,
and help us move towards Sustainable
Development.
— However, we cannot expect to build a
culture of compliance overnight. The
process is often a gradual one, involving
changes to long-standing practices,
entrenched interests, cultural habits and
social and even religious norms.
We, the Dutch Government, are
committed to these developments and to
increasing focus on compliance and
enforcement. This has to be done in a flex-
ible way, taking advantage of the activities
of government and industry to achieve our
goals. Industry has to be encouraged to be
part of the compliance process through
compliance assistance schemes, self-regu-
lation and voluntary environmental per-
formance agreements.
Allow me to return to where I start-
ed. The Dutch Government is in favour of
capacity-building, good governance and
using networks like INECE to achieve our
goals of sustainable development on a
level playing field. That is why we support
activities like INECE and why it is important
that I am participating in this conference
with so many people who are truly engaged
in their work as enforcement activists. I look
forward to discussing this and other points
with my fellow panellists and the confer-
ence participants.Thank you.
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RUFFING 33
RELATIONSHIP BETWEEN GOOD GOVERNANCE AND
ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
RUFFING, KENNETH G.
Deputy Director, Environment Directorate, Organisation for Economic Co-operation
and Development (OECD)
It is a pleasure and an honor for
me to be able to participate in this impor-
tant Conference.
To express what its 30 Members
mean by good governance, the OECD,
through its Public Management Committee,
has adopted a set of six principles: rule of
law, accountability, transparency, efficiency
and effectiveness, responsiveness, and
having a forward-vision. The content of
most of these is similar to those in the
European Commission White Paper
referred to by Sir John Harman, but OECD
also attaches importance to cost-effective-
ness and places considerable emphasis on
having a forward vision.
Evidently, good governance is like-
ly to lead to environmental improvement; its
absence certainly hampers countries'
efforts to maximize the benefits of environ-
mental policies and to minimize the poten-
tially negative impacts of some economic
sector policies on human health and the
environment.
Good governance is a necessary,
but insufficient, condition to ensure better
environmental management. Additional
specific elements which fall under the
heading of environmental governance are
also necessary. The most important are:
— consensus/science-based objectives
(differentiated by time) appropriately
reflected in policies, laws, and regula-
tions;
— attention to the full regulatory cycle with
appropriate mixes of policy instruments
(regulatory, economic, social, etc.); sec-
tor policy integration; compliance moni-
toring, assurance, and assessment;
— an appropriate institutional framework
(including a clear allocation of responsi-
bilities and powers to national and sub-
national levels of government);
— provision of information, including the
right of access to it as provided for, e.g.,
in the Aarhus Convention; public partici-
pation; and access to an impartial judici-
ary.
In many OECD countries, environ-
mental agencies or ministries have been at
the forefront in developing good gover-
nance practices, notably by fostering
greater openness and participation in deci-
sion-making processes.
In ensuring good environmental
governance, there are mutually reinforcing
roles for three key actors:
— government: parliamentary bodies and
regulators can help foster a culture of
compliance by using the most cost-
effective policy instruments (and mixes)
possible, which will often be economic
instruments (such as emissions trading,
and environmental taxes and charges,
sometimes complemented by voluntary
approaches), and by providing access to
information (e.g., pollution releases and
transfer inventories);
— an independent and impartial judiciary to
which private citizens have access as
plaintiffs is essential for assisting gov-
ernments in maintaining effective envi-
ronmental enforcement regimes;
— citizens, individually and through non-
governmental organizations, can use
media outlets (and the internet) to name
and shame violators; and they can make
vigorous use of the courts to ensure that
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34
SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
laws are effectively enforced and,
indeed, interpreted more broadly where
citizens can appeal to such norms as
environmental justice and the right of cit-
izens to have a healthy environment (in
this regard, there are important refer-
ences in the draft European Union Con-
stitution and in the Environmental Char-
ter of France).
The OECD contributes towards
developing laws (both international and
national) and fostering compliance with
them in a number of ways. It promotes
agreements on environmentally effective
and economically efficient policies and on
their underlying principles (polluter pays,
user pays, etc.); it identifies good policy
practice; and adopts legal instruments,
supported by monitoring and "peer review"
mechanisms aimed at fostering compli-
ance. Members also share experience and
provide support to Non-Member countries.
The OECD has been an active
partner of INECE, supporting analysis of
various aspects of compliance assurance,
including economic aspects and environ-
mental compliance and enforcement (ECE)
indicators. It has also been supporting
countries in the region of the former Soviet
Union and in Asia in strengthening their
enforcement systems.
The OECD is willing to continue to
play an active part within INECE by facilitat-
ing an exchange of good practice and sup-
porting the development of effective and
efficient policies and compliance assurance
systems based on principles of good gover-
nance and sound environmental manage-
ment.
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ALLOTEY 35
THE RELATIONSHIP BETWEEN GOOD GOVERNANCE AND
ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT:
AN AFRICAN PERSPECTIVE
ALLOTEY, JONATHAN A.
Executive Director, Environmental Protection Agency - Ghana
I would like to make my contribu-
tion from the perspective of an African
developing country. The concepts of gover-
nance and environmental management are
universal in all societies, African countries
not excluded.
GOVERNANCE involves a set of
norms and values which are expressed in
two (2) or more ways: informal and formal.
INFORMAL polices, laws, and rules are
founded on custom and practice. FORMAL
polices, laws, and rules are expressed in
written forms and established institutions.
In Africa there -are two systems of
governance in operation - traditional and
modern. Traditional governance is com-
posed of unwritten, informal, and systemat-
ic taboos (prohibitions and restrictions), rit-
uals, and rules that regulate the interaction
between individuals and the natural envi-
ronment. This type of governance has its
own characteristics:
— It is evolutionary, i.e., has emerged from
within a societal system and grown in a
cumulative way. Knowledge has passed
down from generations through experi-
mentation, learning, and application.
— It is responsive and resilient to the ecol-
ogy on which they are based.
— It is localized and participatory -
decisions are taken at different levels
involving informal organizations (e.g.,
households).
The modern governance system
vests planning and decision-making in cen-
tralized government agencies and denies
participation of local and informal groups.
The system is composed of written and for-
mal policies, environmental plans, legal
instruments and informal laws, rules of
practices, and institutions.
The pre-colonial era was charac-
terized by pure traditional governance sys-
tems. Colonialism introduced the modern
or formal governance system.
The traditional governance system
has indigenous roots and is time honoured
and adaptive. Local people understood it
well.
Conflicts have arisen when local
traditional practices are no longer viewed
as legitimate or consistent with national
policies or when entities external to a coun-
try ignore needs and imperatives of local
people.
For example, in Ghana, forest
reserves were created and restrictions
placed on entry by local people by introduc-
ing forest guards. Management of the
resource did not permit participation by
local people to serve their needs in terms of
food and medicine.
However, there were traditional for-
est reserves - sacred groves - with rules of
entry and restrictions on collection for med-
icines, hunting, etc. Most of them came
under threat from so-called modern ways of
doing things (urbanization, construction,
etc.). Today, though small in size, they
stand as rich islands of biodiversity in a sea
of degraded lands. Currently the concept of
community-based natural resource man-
agement approaches similar to traditional
governance systems are been promoted.
There is one case of a monkey
sanctuary - where the people regard mon-
keys as sacred and villagers and animals
live together. A cohabitation strategy of
instituting by-laws in line with the beliefs of
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
the people has bridged the gap between
customary and formal laws and regulations
to save the monkeys, and is now a tourist
attraction and providing livelihood to the
community.
There are many of these traditional
governance and compliance systems all
over Africa (e.g., rules on noise making,
fishing, and farming along water bodies).
There is a need to incorporate tra-
ditional knowledge systems and principles
of conservation in the overall national envi-
ronmental governance structure - where
basic questions about ownership distribu-
tion and control and utilization of environ-
mental resources are integrated into the
design of appropriate structures.
In Ghana, there is a saying in one
of the local languages: SANKOFA - a call
to traditional values. We need to go back to
our roots and examine the good enduring
concepts in our societies that have served
our people well. In Africa, good governance
and environmental compliance and
enforcement would be assured by incorpo-
rating traditional governance values.
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SUMMARY OF PANEL 2 37
SUMMARY OF PANEL 2: THE COMPLIANCE AND
ENFORCEMENT MESSAGE
Moderator: Bakary Kante, United Nations Environment Programme, Kenya
Panelists: Sheila Abed, Chair of IUCN (World Conservation Union) Commission
on Environmental Law, and IDEA (Environmental Law and Economics
Institute), Paraguay
Antonio Benjamin, Law for a Green Planet Institute, Brazil
Ken Cook, Environmental Working Group, United States
John C. Cruden, Deputy Assistant Attorney General, U.S. Department
of Justice
Rapporteurs: Matthew Stilwell and Scott Stone, INECE Secretariat and the Institute for
Governance and Sustainable Development, United States
1 INTRODUCTION
The purpose of this panel is to pro-
vide participants with the tools and mes-
sages necessary to foster a culture of com-
pliance and enforcement in their organiza-
tions, home countries, and regions. The
panelists discussed the benefits/costs of
enforcement, tools for promoting success,
and new approaches to compliance.
2 PRESENTATIONS
A summary of the presentations of
the four presenters to the plenary follows:
2.1 Presentation by Dr. Sheila Abed
Dr. Sheila Abed spoke on challenges
facing developing countries in securing bet-
ter compliance and enforcement. The Mil-
lennium Ecosystem Assessment captures
the significant challenges facing develop-
ing countries. It stresses that key ecosys-
tems on which we rely are under stress,
particularly in developing countries that
husband the world's biodiversity. Among
her main points were the following:
— Crime pays. Enforcement is inadequate
in many countries and actors benefit by
breaking the law. Compliance needs to
be enhanced to address this problem.
Enforcement systems are only as strong
as their weakest link. A first step towards
enforcement and compliance is the
amendment of frameworks and the
building of national capacities. Biodiver-
sity-rich countries are often fmmersed in
an authoritarian culture, marked by cor-
ruption and arbitrary procedures.
Enforcement and compliance are thus
related to good governance and the rule
of law.
Coherent and comprehensive regulatory
frameworks require better coordination
among institutions.
Obstacles to compliance and enforce-
ment include insufficient resources, poor
staff development, inadequate educa-
tion of staff and the public, and insuffi-
cient access to information and to jus-
tice. Addressing these obstacles
requires more attention to economic,
social, and political issues.
Economic issues can also be an impor-
tant vehicle for compliance. Addressing
these through economic incentives can
promote competitiveness, increase effi-
ciency and level the playing field.
Social and political issues must also be
addressed, such as the essential need
to enhance participation and public
involvement.
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
In conclusion, Dr. Abed asserted that
frameworks must be adapted to local con-
ditions, where a mix of measures will usu-
ally be required, including economic instru-
ments. She further explained that efforts to
strengthen compliance should reflect that
the inadequacy of financial resources is
unlikely to be remedied in the short term,
so incentive-based approaches should be
promoted. In addition, officers must be bet-
ter trained and supported, to achieve better
compliance.
2.2 Presentation by
Mr. Antonio Benjamin
Mr. Antonio Benjamin, a Brazilian
environmental lawyer and prosecutor,
spoke on shaping the compliance and
enforcement message, with a focus on five
main points: (1) whether there is a global
message; (2) the importance of the mes-
sage; (3) issues facing developing coun-
tries on environmental compliance and
enforcement; (4) assessing tools for com-
pliance and enforcement; and (5) the future
of environmental compliance and enforce-
ment.
On the first point regarding a global
message, Mr. Benjamin stated that a num-
ber of elements can be combined to form a
coherent and collective message on envi-
ronmental compliance and enforcement.
He discussed three elements in particular:
— Ecologically sustainable development
has become a global paradigm and,
although often lacking in clarity, provides
an overarching goal to which efforts to
strengthen compliance and enforcement
can be linked.
— The rule of law is essential in promoting
progress towards sustainable develop-
ment and in achieving other important
social objectives.
— Law demands compliance and enforce-
ment. Without compliance, the law is
deprived of meaning.
Mr. Benjamin asserted that these
elements, taken together, could be consid-
ered as central components of a more
effective global message on compliance
and enforcement. They can help to address
a culture of non-compliance as a global
problem, which reflects not only a lack of
willingness to comply, but more importantly
also a lack of capacity to comply. Both civil
and common law countries face these chal-
lenges.
Second, Mr. Benjamin addressed
the issue of the audience for the message
and why that is important. To start, we must
ourselves have a clear sense of our mis-
sion, of the contribution we have made over
the last few decades, and that which we will
continue to make in the future. He
explained that there is a message we want
to pass to parliaments, to show that a good
piece of legislation can be well-enforced
and achieve its goals. There is also a mes-
sage we want to convey to the business
community about fairness in the market
place and fair competition, which requires
rules to be applied equally to all parties.
Finally, there is also a message we want to
pass to the non-governmental organiza-
tions. Mr. Benjamin further contended that,
as well as policies, we need laws with
which we can secure compliance. And
finally, he declared that there is a message
we must convey to the donor community, to
ensure that the investments they make
result in the objectives they seek.
Third, Mr. Benjamin discussed the
main challenges facing developing coun-
tries on environmental compliance and
enforcement. He addressed a number of
issues:
— Regulatory systems in all parts of the
world have been improved. Moderniza-
tion of the regulatory process is an
essential part of strengthening the rule
of law and must continue.
— There is growing public demand for bet-
ter environmental compliance and
enforcement. The public is becoming
progressively aware of the need for
environmental compliance and enforce-
ment and progressively more supportive
of it.
— Drafting good laws remains a problem in
all countries. The United Nations Envi-
ronment Programme (UNEP), INECE,
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SUMMARY OF PANEL 2 39
and other actors can provide model laws
and other tools to assist countries to
improve their regulations.
— All developed and developing countries
face financial and human resources
challenges that must be addressed.
Fourth, Mr. Benjamin argued that the
assessment of environmental compliance
and enforcement tools should also be a pri-
ority in strengthening compliance and
enforcement:
— In many cases, there is a lack of system-
atic environmental compliance and
enforcement strategies and priorities,
which can be addressed through the
activities of UNEP, INECE, and others.
— There is a continuing focus on a bureau-
cratic model of environmental compli-
ance and enforcement, and poor gener-
ation and management of environmental
compliance and enforcement informa-
tion. It is difficult to develop environmen-
tal compliance and enforcement indica-
tors when you lack information.
— Another challenge that must be
addressed is the career insecurity of
environmental compliance and enforce-
ment personnel, as well as capture of
agencies.
Mr. Benjamin concluded by stating
that we must strengthen environmental
compliance and enforcement if we are to
leave our children and future generations a
world we desire.
2.3 Presentation by Mr. Ken Cook
Mr. Ken Cook spoke on how to pres-
ent a message - or set of messages - that
help to create a culture of compliance and
enforcement. He made three main points:
first, as environmental law has improved so
has the message of those who oppose
these developments; second, this tendency
is challenging the work of compliance and
enforcement officials and others; and third,
we need to think about how to communi-
cate better to address this opposition and
make room for our work.
Mr. Cook first addressed how we can
shape better messages. He asserted that
the best messages come from culture. We
are not simply trying to establish a mes-
sage of compliance and enforcement. We
are also thinking about how our cultures
receive information about compliance and
enforcement. He maintained that concepts
such as "compliance and enforcement"
inspire some, but cause resistance in
many; therefore we need to reframe our
message to connect with a broader public.
Mr. Cook also contended that culture
comes from many sources, including the
family. He mentioned these statements as
examples: "pick up after yourselves", "stop
tracking mud through the house", "if you
break it, you buy it". These statements
embody values - fairness, equality, oppor-
tunity, respect for nature, respect for her-
itage and the past. He argued that these
values in many ways are at war with
modernity, commerce, and ideology, but
they remain fundamental. Mr. Cook further
declared that when we stray from these val-
ues, we do so at our peril, and find our-
selves using technocratic arguments that
people do not understand or relate to. He
explained that people without a specialized
background (similar to the participants')
may not understand the language we use.
To communicate with the public, we need to
use common language that connects with
their core values. Mr. Cook presented
some metaphors to draw on: (1) The sher-
iff riding into town is fair, but tough, and
keeps the town orderly; (2) The cop on the
beat keeps the order, knows people, and
secures the peace. In contrast, describing
the EPA as the Gestapo, as has been done
by some in the United States, presents an
unfavorable image.
Mr. Cook also contended that organ-
ized opposition stays on message to dilute
technical information and present a positive
and acceptable message to the public.
While some of their messages are "nega-
tive", most strike a more engaging and pos-
itive tone. Some examples of these mes-
sages are: "making progress but having a
long way to go", "science is not settled",
and "risk reduction is probably not worth
the costs". They stay positive and connect
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
with people's values. He stated that the
regulatory community, by contrast, has a
negative message that causes people to
disconnect. We describe problems as over-
whelming, and the solutions as long-term.
We use technical language. We thus need
to reframe our message. Examples of more
positive messages are: we take care of the
planet for our future; we are investing; and
the problems are not insoluble.
Mr. Cook offered three suggestions
as we move this forward:
— Keep it simple. Messages should be
tested out on people who do not work in
the field, to ensure that they connect.
— Teach first. We need to raise awareness
as a first step towards building trust and
understanding, and before securing
compliance and enforcement.
— Give credit where credit is due. We need
to be better at recognizing achievement
and reward it as a way of expanding the
circle of people who are interested in
protecting the environment.
2.4 Presentation by Mr. John Cruden
Mr. John Cruden drew on his exten-
sive experience as the person responsible
for all civil environmental enforcement in
the United States and presented three sig-
nificant points: the concept of compliance
and enforcement; lessons learned from the
last few years; and next steps to communi-
cating our ideals and passions to the public
and citizens we serve.
First, Mr. Cruden stated that the con-
cept of environmental enforcement and
compliance is the engine that drives the
train towards environmental improvement
and success. Compliance means achieving
our standards, and failing to comply lowers
the real standards we are setting. He
argued that we must do a better job at
explaining our roles and promoting our val-
ues and messages. In particular, we must
communicate that when we do not ade-
quately enforce, companies that are com-
plying with the law are put at a competitive
disadvantage and the environment suffers.
Second, Mr. Cruden explained that
over the last few years, enforcement
experts in the United States have learned
at least three crucial lessons. First, as
enforcers, we work better when we partner
with other entities - citizen groups, states,
and local entities. Partnerships are an
essential part of building better compliance
and enforcement. Second, clarity in goals
and objectives is required. Those closest to
the event must feel part of the process. We
must cut through our complex vocabulary
to connect with real people. Setting out
simple rules clearly - as is often done in
children's classrooms - is essential. Third,
we must use our own resources wisely in
achieving the goals we are seeking. We
lack resources, so we must use them effec-
tively and efficiently.
Third, in terms of next steps, Mr.
Cruden asserted that we must:
— Develop a clearer message. What are
the elements of a clear and successful
message? We need to send a simple
message that people must "clean up
their mess" and behave responsibly.
— We need to deter future misconduct.
Industry players want compliance to
ensure a level playing field. Like a good
soccer game, the rules should be
enforced fairly upon all players.
— We need to improve our communication
to all actors: we must improve communi-
cation to citizens, non-governmental
organizations, and the media; we need
to communicate accurately to the regu-
lated community; and we must commu-
nicate effectively to others in govern-
ment that our work is important not just
to the environment, but also
to the economy and other sectors of
society.
3 DISCUSSION
During discussion in plenary, participants in
the meeting asked a number of relevant
questions:
— What is the importance of international
environmental agreements in shaping
domestic environmental agendas and
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SUMMARY OF PANEL 2 41
rules? (Dr. Iwona Rummel-Bulska,
Switzerland)
— Are we optimistic or pessimistic about
getting the concept of compliance and
enforcement across, and why? (Mr. Paul
Gavrel, Canada)
— Is it possible to create a good future for
future generations with our current
efforts? (Mrs. Zahia Ibersienne, Algerian
NGO representative)
— Do our institutional models - the estab-
lishment of formal environmental agen-
cies and so forth- make them easy to
attack and fail to connect us with more
fundamental values and approaches?
(Mr. Paul Gavrel, Canada)
— Do you think that implementation of mul-
tilateral environmental agreements
would be improved by seeking funding
for implementation before ratification?
— Does communication with those who
should comply also imply cooperation?
What is the appropriate balance?
Remark by Mr. Ken Cook (United
States): To reconnect the environment with
our values, we need to focus on how to bet-
ter communicate with the public. We need
to be careful about the model we pick. We
should not, for instance, refer to those that
government works with as "customers",
such as "the customer is always right".
Remark by Mr. John Cruden (United
States): People are fundamentally con-
cerned with the air, water, and land, and
are willing to sacrifice their other goals to
achieve these goals. We are doing well at
communicating the problems, but badly at
communicating our successes. We need to
be better at showing the value we create.
Remark by Dr. Sheila Abed
(Paraguay): Enhancing national capacities
for enforcement is crucial. We must also
make simple and clear messages that
address all stakeholders in society. We
must do better at making our goals - the
goals of securing compliance and enforce-
ment - those of the broader political
process.
Remark by Mr. Antonio Benjamin
(Brazil): Legal frameworks that stress pre-
vention and precaution must be built and
strengthened. The stronger they are, the
easier our job. We need therefore to work
on the legislative side, but also within our
community to create a culture of precaution
and prevention. He expressed optimism in
the area of pollution control but noted that
green environmental law, biodiversity, and
habitat protection are more of a challenge -
the impacts are irreversible and the effects
often fall further from the acts causing
them. We have not yet realized the rele-
vance of international agreements in shap-
ing national legislation. The main role is not
only that of hard international law, but also
in guiding the development of other softer
practices. The Stockholm Declaration, for
instance, has been included into national
law in many jurisdictions.
4 CONCLUSION
In conclusion, the moderator Mr.
Bakary Kante summarized discussions and
offered the following key points:
— Working together in achieving environ-
mental compliance and enforcement is a
crucial message - we must work togeth-
er to achieve our goals.
— Clarity is essential if we are to communi-
cate better with the public.
— The rule of law plays a critical role, as
well as economic incentives, in achiev-
ing environmental compliance and
enforcement.
— UNEP and other agencies have been
called on to develop tools and models to
support and strengthen environmental
compliance and enforcement. UNEP is
ready to respond to this call, which
addresses one of the core areas of its
mandate.
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42 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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SUMMARY OF PANEL 3 43
SUMMARY OF PANEL 3: ENFORCEMENT INITIATIVES:
STORIES OF SUCCESS
Moderator: Kenneth Cook, Environmental Working Group, United States
Panelists: Bill Clark, Nature and National Parks Protection Authority, Israel
Antonio Oposa, Jr., Philippines
Justice Adel Omar Sherif, The Supreme Constitutional Court, Egypt
Walker B. Smith, Environmental Protection Agency, United States
Rapporteurs: Matthew Stilwell, Institute for Governance and Sustainable Development,
Geneva
Matthew Cooper, Environmental Media Consultant, United States and
New Zealand
1 INTRODUCTION
This panel presented successful
enforcement initiatives and sought to
inspire future successes. A diverse group of
panelists from government, civil society,
the judiciary, and a local community-based
action group highlighted practical enforce-
ment examples and success stories.
INECE has helped facilitate these success-
es by working to: 1) raise awareness of
compliance and enforcement; 2) develop
networks for enforcement cooperation; and
3) strengthen capacity to implement and
enforce environmental requirements. The
stories and practical examples described
during the panel demonstrate that enforce-
ment initiatives are actually about protect-
ing our collective future and preserving the
environment for future generations. All par-
ticipants emphasized the importance of
communication, networking, and capacity
building to ensure successful enforcement
action. The judiciary, government agencies,
nongovernmental organizations (NGOs),
and communities all have special roles to
play in facilitating effective enforcement
and ensuring that successes and any "Eco-
Hero" stories are communicated to a wider
audience.
2 PRESENTATIONS
2.1 Presentation by Mr. Kenneth Cook
Mr. Kenneth Cook, President of the
Environmental Working Group, opened the
panel by explaining that the panelists would
talk about stories of success, stories on the
ground, stories of capacity building, and
stories of taking action. He stressed that in
the second half of the last century, and at
the beginning of this century, we are
"standing up for the entire future", we are
standing up for the planet, and we are look-
ing to the future to secure victory. Mr. Cook
inquired as to whether we have our finger
in the dyke or whether we are close to a
victory for the people and the environment.
He then announced that the four speakers
would present a broad range of successful
enforcement initiatives and the stories
behind these successes.
2.2 Presentation by Dr. Bill Clark
Dr. Bill Clark, International Liaison
Officer for the Nature and National Parks
Protection Authority in Israel, questioned
what we mean by a successful enforce-
ment initiative. We are asked to consider
the concept of success, and within the con-
text of INECE's three overarching priorities.
What do we know about each?
First, INECE seeks to raise aware-
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
ness of compliance and enforcement.
Recent decades have witnessed an
increased awareness of environmental
crime. Until recently, there was a thriving
trade in ivory, animal pelts, and other ani-
mal species. As a consequence, species
were being depleted and driven into extinc-
tion. Countries have adopted endangered
species laws, the Convention on Interna-
tional Trade in Endangered Species
(CITES) was agreed upon, but despite
these admirable efforts, the dirty business
of illegal trade in contraband wildlife prod-
ucts continues. Most people today know
about endangered species and understand
that keeping species from extinction is
important. But all of this success in raising
awareness has been matched by increas-
ing criminality - so we face a dilemma.
Despite all of the successes and the raising
of awareness, "dirty trade" continues at a
disturbing rate.
INECE's second goal is to develop
networks for enforcement cooperation. Dr.
Clark noted that this conference is helping
to create many initiatives and collaborative
projects and that this is an ideal opportuni-
ty to increase communication networks.
Interpol has also created enforcement net-
works on environmental issues. For exam-
ple, Interpol's Project Noah identified one
person as a key actor in trafficking in many
regions. This key actor was cornered in
Mexico, extradited to the United States,
and sentenced to 71 months in a U.S.
prison. Other networks too have had signif-
icant success stories, such as the Lusaka
Agreement and Europol. Dr. Clark stressed
that networking works, and that we need
much more of it.
Of course, the criminals also cre-
ate their own networks. They create differ-
ent groups, different communication chan-
nels, and different ways of moving species.
Today we think less of "organized crime"
and more of "networked crime". The
numerous legal and political obstacles
hamper authorities' attempts to curb these
criminal activities. But we must work within
these obstacles and resolve them to
enhance the flow of information and to
secure human rights and effective law
enforcement. Responsible law enforce-
ment must be accountable; criminals can
work outside formal responsibilities, but
authorities cannot. We must be account-
able, follow the rules, and protect the infor-
mation of individuals used in relation to the
enforcement and prosecution of criminal
activity, even if there is no level playing
field. But networking helps us to do this
well, linking us across borders and around
the world.
INECE's third goal is building
capacity. Dr. Clark affirmed that there have
been numerous successes in increasing
capacity. One is Interpol's EcoMessage,
which provides all officials with access to
Interpol's information and network. Another
is the Lusaka Agreement, which is an infor-
mal network of African officials who work
together for wildlife protection and enforce-
ment. The Lusaka Agreement Taskforce
has undertaken a range of important initia-
tives, including the recovery of huge smug-
gled stocks of ivory from Singapore, in col-
laboration with Singaporean officials. The
International Fund for Animal Welfare *
(IFAW) has also built capacity through a
range of partnerships. IFAW built scientific
capacity to undertake DNA and isotope
analysis of ivory, to find the ivory's origins
and the structure of the criminal organiza-
tions undertaking the smuggling. This sci-
entific capacity building helps support
enforcement capacity. Networking opens
access to technical resources and capaci-
ties. These are not the traditional tools of
African park rangers; things are changing
as new technology and networking works
to support enforcement.
What is the sense of raising aware-
ness, building networks, and creating
capacity - the three goals of INECE - if the
criminals still have the upper hand? If we
look into our own work, we know that for
everyone we catch, there are still many get-
ting away. If we can break the chain of
criminality - break the links at any point in
the chain - then the principal concerns of
society are met. However, with wildlife and
pollution, the first link is the problem. The
conviction of wildlife criminals is often too
late, as the animals are already dead or the
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SUMMARY OF PANEL 3 45
environment is already polluted. So we
must emphasize the importance of deter-
rence if we are to be better in achieving the
goals society has set for us.
2.3 Presentation by
Mr. Antonio Oposa Jr.
Mr. Antonio Oposa, Jr. of the Philip-
pines told a story. Once upon a time in the
Far-East, there was a group of islands
called the Philippines. It was known to be
the richest island of biodiversity in the
world. But the real wealth of the Philippines
is under the water. It has many more miles
of coastline than the United States. It is the
richest center of biodiversity in the world. In
a small sector of their ocean, there are
more species of coral than in many other
parts of the world. But this biodiversity has
been destroyed by blast fishing, cyanide
fishing, and other activities based on
exploitation of these fragile ecosystems.
There were three million hectares of coral
reef, now there are only eight thousand
hectares left. The Visayan Sea and Philip-
pines islands can be found in the Sulu-
Salawesi Marine Triangle, an epicenter of
biodiversity on Earth, but it is facing col-
lapse. How can we respond to this? "We
can curse the darkness, or we can light the
candle."
In January 2003, Mr. Oposa and
colleagues launched an operation with
local police and convicted seven people of
damaging the coral reefs through dynamite
fishing. Yet instead of simply taking the
convicted persons to jail, part of their punish-
ment was to act as fish wardens to protect
the sea they were previously destroying.
Mr. Oposa's group then focused on
addressing the production of the blasting
caps that were used for fishing. After shut-
ting down production on their island, his
group moved to address production of
blasting caps on other islands. With the
help of the Navy, the group organized a
gunboat to shut down blasting cap opera-
tions on a neighboring island.
An ongoing challenge remained to
capture not only the fishing boat crews, but
also the owners who are often rich, power-
ful, and have links with corrupt police. With
the help of local law enforcers and the
Navy, his group convicted a number of
owners, sending a message to criminals
that illegal operations would not be tolerat-
ed. Mr. Oposa observed that in the rules of
nature, there is no right or wrong, only con-
sequences. So to promote longer-term
care of the coral reefs and the marine envi-
ronment, his group organized the Visayan
Sea Squadron to empower and educate
youth, help local governments establish
marine sanctuaries, and undertake marine
surveys. The purpose of the Squadron is to
enlighten the youth, who must take respon-
sibility for the future of their natural environ-
ment. The group promotes the three "E's"
of environmental stewardship: Education,
Engineering (social, physical, legal, and
financial), and Enforcement, leading to
Conservation, Protection, and Restoration
(CPR). In effect, this is CPR for the environ-
ment. These successes are due to net-
works and inter-agency cooperation.
.Mr. Oposa concluded with two
thoughts:
"In the laws of nature, there is no
right or wrong, only consequences."
"Though nothing can bring back
the hour / of splendor in the grass and glory
in the flower, / we grieve not rather find /
strength in what remains behind."
This is an evolving story.
2.4 Presentation by
Justice Adel Omar Sherif
Twenty years ago, Justice Adel
Omar Sherif, Deputy Chief Justice of the
Supreme Constitutional Court in Egypt,
became involved in protecting the environ-
ment. At this time, having an interest in the
environment was questioned by many, who
wondered why environmental issues would
be of interest to a judge and not simply
environmental officials. However, Justice
Sherif argued that in order to be part of the
civilized world, one must have a commit-
ment to the environment. It was not until
the global judges meeting in Johannesburg
that it became evident to developing coun-
tries that to be part of the civilized world
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
today they must respect all human rights
including the right to the environment.
Since then, collaborating with the
United Nations Environment Programme
(UNEP) and the Supreme Court of Egypt, a
union of judges focusing on the environ-
ment has been established to support
judges in the Arab Region, by creating net-
working and awareness and by providing
databases and resources. Support for the
judges has come from UNEP to establish a
global center for training judges. The gov-
ernment of Egypt has provided the center
with land and headquarters, which will cost
over 15 million dollars.
These organizations are working
with partner organizations in Europe and
elsewhere to develop the program and its
materials. The goal is to help judges in the
region and in the wider developing world to
understand the environmental challenges
and to build a world that is cleaner, more
peaceful, and more democratic.
2.5 Presentation by Ms. Walker Smith
Ms. Walker Smith, director of the
Office of Civil Enforcement at the U.S.
Environmental Protection Agency ("EPA"),
began her presentation by explaining that
initiatives are often developed to meet a dif-
ferent challenge than core enforcement
activities. A key component of core enforce-
ment activity is to ensure a level playing
field. Thus, there is an implicit assumption
that there is a basic level of compliance in
the sector, and the goal is to bring those
who are out of compliance to the same
level as those who are complying. But what
if virtually the entire sector is out of compli-
ance? Then creating a level playing field is
not the issue. The playing field is level, but
it is level at the bottom. This scenario is ripe
for an initiative.
This is not to say that the more tra-
ditional model of bringing one or two big
enforcement cases cannot motivate a sec-
tor into compliance. One example of how
this strategy can promote compliance in a
sector is the EPA's recent enforcement
action against DuPont. The EPA filed an
administrative case against DuPont for fail-
ure to provide the Agency with information
on the adverse effects of PFOA, a sub-
stance used to make Teflon. The EPA
alleged that DuPont's failure was a viola-
tion of Section 8(e) of the Toxic Substances
Control Act ("TSCA"), which requires com-
panies to submit information to the EPA
about chemicals that may present a sub-
stantial risk to human health or the environ-
ment. The DuPont case has gotten the
industry's attention about the importance of
meeting its obligations under TSCA. Even
though the case is still in litigation, the
industry has identified TSCA compliance as
one of its biggest priorities, has invited the
EPA to national conferences to speak
about the importance of TSCA compliance,
and has come to the Agency to discuss
TSCA compliance.
However, compliance with TSCA
does not require a company to invest in
expensive Control technology. Ms. Smith
explained that it has been the EPA's expe-
rience that where compliance is expensive,
the traditional model of bringing one or two
cases is often not sufficient to bring a sec-
tor into compliance. Here the level playing
field can operate as a disincentive for com-
panies to come into compliance: until com-
panies in the sector are convinced that the
Agency will bring additional enforcement
actions, they may be unwilling to expend
funds for pollution controls when their com-
petitors are not making similar expendi-
tures.
That dynamic changes when the
EPA announces an initiative against an
entire sector. EPA sector initiatives have
proven highly effective. The petroleum
refining industry is an example of a suc-
cessful EPA initiative that is nearing conclu-
sion. The EPA inspected over 100 petrole-
um refineries for compliance with the Clean
Air Act, the Clean Water Act, and haz-
ardous waste regulations, found violations
at every facility, and identified the sector as
a national priority. However, the task of
bringing the entire refining industry into
compliance with numerous statutes proved
daunting, so the EPA tasked a working
group with determining which violations
should be the focus of the priority and with
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SUMMARY OF PANEL 3 47
determining an enforcement approach.
The resulting strategy focused on
the areas with the most significant environ-
mental impacts, involving significant VOC,
NOx, SO2, and toxic emissions. Thus the
Agency decided to concentrate on four
areas in the initiative: flaring, benzene
emissions, leak detection and repair, and
new source review. New source review
requires installation of the best available
control technology for new and modified
units in refineries, including heaters, boil-
ers, and cracking units.
EPA also decided to use an inno-
vative approach to traditional enforcement
to obtain compliance in each of these four
areas. Under the more traditional approach
to enforcement, the EPA develops a case
using information requests, inspections,
and other methods to identify violations.
Once those violations are identified, the
Agency engages in settlement where pos-
sible, or proceeds to litigation. Whether the
parties are in settlement negotiations or lit-
igation, they spend significant efforts
attempting to prove or disprove the viola-
tions. Once the violations are established,
the parties engage in discussing the appro-
priate remedy for the violations.
The EPA wanted to try an
approach that would bring the parties to
resolution more quickly and would bring an
entire company into compliance at one
time, rather than suing a company on a
facility by facility basis. Under this alterna-
tive approach, the EPA limits the investiga-
tion of the company and does not fully
develop information on all of the potential
violations. In return for the EPA's agree-
ment to limit the investigation, the company
agrees that the negotiations will focus not
on the violations, but rather on how to bring
the company's facilities into compliance
with the law, thus remedying any underly-
ing violations.
This approach means that the par-
ties do not have to engage in a time con-
suming and costly discovery process about
each violation, providing obvious resource
benefits to the EPA and participating com-
panies. The companies save resources on
litigation costs and can enter into system-
wide settlements that allow them to incor-
porate business planning into the settle-
ments, a more difficult proposition in facility
by facility negotiations. Moreover, since the
EPA will have less information about a
company's specific violations, the penalty
imposed in the consent decree can be
reduced. If companies reject this alterna-
tive approach, the EPA proceeds with tradi-
tional enforcement. Most of the petroleum
refining industry has agreed to the alterna-
tive approach, although the EPA has had to
proceed with information gathering on
some occasions when settlement discus-
sions broke down. Following a period of tra-
ditional information gathering, the parties
have generally resumed settlement discus-
sions.
This approach has led to signifi-
cant benefits. It began with a sector out of
compliance, and now over half of the indus-
try (by refining capacity) is under a consent
decree, requiring system-wide emissions
reductions and compliance with the Clean
Air Act. Another significant percent of the
industry is in settlement negotiations that
are close to resolution, and EPA hopes to
have 80% of the industry under national
consent decrees within the year. The
remaining 20% of the industry will be
addressed by EPA regions and by states.
This process, Ms. Smith explained,
has also allowed companies and the EPA
to discuss ways to improve technology to
get more effective control technology at
lower cost. An unanticipated benefit of this
approach has been enhanced communica-
tion and cooperation within the industry
about pollution control. When the first con-
sent decrees were signed, the settling com-
panies created a "Consenters' Group" that
meets on a regular basis to discuss pollu-
tion control, including new technologies to
meet the emissions limits in the decrees.
The EPA also meets with the Consenters'
Group to discuss compliance issues. This
communication within and with industry has
proved important in enhancing compliance.
Ms. Smith concluded by stating
that the EPA has built on the lessons
learned in the refinery initiative and devel-
oped other national priorities to address
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
widespread noncompliance in sectors that
have a significant environmental impact.
Initiatives are challenging and require a sig-
nificant commitment of time and resources,
but they can turn an industry around and
make a real environmental difference.
3 DISCUSSION
Participants and panelists
addressed a number of issues through
questions and discussions.
Question: The role of judicial net-
works is crucial. The European Union (EU)
has established a forum of judges for the
environment. It has circulated a question-
naire to the twenty-five EU countries. This
technique could also be used by INECE to
gather information. Different forums of
judges could collaborate and exchange
best practices. We could also see an acad-
emy under the auspices of INECE to pro-
mote best practices. There is, for instance,
important case law on the precautionary
principle applied by Supreme Courts which
could be promoted among judges. (EU rep-
resentative)
Answer: Collaboration among
judges is important and can help to pro-
mote common language and approaches
across different jurisdictions. International
cooperation at national, regional, and inter-
national levels is particularly important.
(Justice Adel Sherif)
Question: First, experiences in
Bangladesh establishing a separate envi-
ronmental court with special magistrates
has proved illustrative. While much training
focused on higher level judges, often cases
are brought in the lower courts. How,
through initiatives such as the new judges
facility, can we facilitate the training of mag-
istrates at lower levels? Second, in relation
to collaborative approaches discussed by
Ms. Walker Smith, is there a danger of cap-
ture when the regulated community is
included in the discussion? (Ms. Linda
Duncan)
Answer 1: In relation to training,
the policy of the new center will be to make
training available to all judges who are
interested, subject to capacity. The chal-
lenge is for judges to accept the concept of
training, so it is important to approach
judges in the right way. (Justice Adel Sherif)
Answer 2: Collaboration on issues
such as flaring in the petroleum industry
has worked well. It has prevented opposi-
tion to consent degrees which might other-
wise have seen challenges by the industry.
(Ms. Walker Smith)
Question: Workers in a company
are also part of the network that could be
called on to help promote compliance. Can
unions be better included in discussions
about compliance?
Answer: In some cases, workers
are interested in creating a cleaner indus-
try. In others, workers are concerned about
more work, additional responsibilities, and
new challenges. So there is pressure on
management to educate workers to adapt
to new technologies and approaches. (Ms.
Walker Smith)
Question: How do we achieve suc-
cess stories in countries with governments
that are perceived as being more anti-envi-
ronment, or at least not convinced that
environmental management is a priority?
(Mr. Albert Kohl)
Answer 1: The president of the
Philippines has not made environmental
enforcement a priority at the national level.
So we work together with officials and law
enforcement officers at the local level. We
also work with the youth, preparing them
with improved environmental awareness
for when they will take over. (Mr. Tony
Oposa)
Answer 2: We have to be better at
getting our message out and framing the
message for public and political manage-
ment, about why it is the right thing to do.
Government has been supportive where
some companies have been complying and
where others have not. Concepts of the
rule of law and fairness are powerful. We
are not making new laws, but enforcing
laws passed by Congress. This message
gets through. INECE could consider identi-
fying four or five countries to be sensitized
and worked with to improve their environ-
mental awareness. (Dr. Bill Clark)
Answer 3: Over the past four
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SUMMARY OF PANEL 3 49
years, the EPA has had greater successes
on specific pollutant reductions than in the
previous four years. No-one at a political
level has prevented EPA's Office of
Enforcement and Compliance Assurance
(OECA) from taking these cases. (Ms.
Phyllis Harris)
4 CONCLUSION
Each of these case studies illus-
trates success in a different category of
environmental enforcement, including ille-
gal fishing, wildlife smuggling, judicial
awareness, and pollution reductions. In
each example, different approaches to the
problem were used to achieve success,
from local to national activities. However,
all these success stories shared common
elements:
— Setting out with a clear goal and objec-
tive allows you to demonstrate success.
— We must be accountable for our activi-
ties and publicize our successes.
— Collaboration with other enforcers, and
in some cases with the industry we are
enforcing, is a crucial component for
changing behavior directly and indirectly.
— Innovation and new approaches are
needed to address both old and new
problems.
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50 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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SUMMARY OF PANEL 4 51
SUMMARY OF PANEL 4: ENVIRONMENTAL COMPLIANCE AND
ENFORCEMENT INDICATORS: MEASURING PERFORMANCE,
MANAGING RESOURCES
Moderator: Paula Caldwell, Environment Canada
Panelists: Myriam Linster, Organisation for Economic Co-operation and Development
Michael Stahl, Environmental Protection Agency, United States
Maria Eugenia Di Paola, Fundacion Ambiente y Recursos Naturales,
Argentina
Rapporteur: Rene Drolet, Environment Canada
1 INTRODUCTION
Presentations on environmental
compliance and enforcement (ECE) indica-
tors were delivered from three organiza-
tions (OECD, the Fundacion Ambiente y
Recursos Naturales (FARM) from Argenti-
na, and the U.S. Environmental Protection
Agency). The panel then opened into a
group discussion involving all participants.
Discussions demonstrated that there is
always a need for several indicators, but
there is no universal set of indicators. The
appropriate set of indicators depends on
the specific circumstances of a given situa-
tion and must be tailored to the purpose of
the exercise. Lessons learned from various
countries emphasize the need for flexibility
and continuity, as well as the need for prag-
matism (the need to learn from pilot proj-
ects). Exchange of information and interna-
tional cooperation are therefore key ele-
ments for success. The panel also demon-
strated that both developing countries and
developed countries face challenges in
identifying, developing, and using ECE
indicators. However, the nature of these
challenges may be different.
This panel culminated in various
recommendations for INECE. It was rec-
ommended that a Community of Practice
be built among ECE programs conducting
indicators projects in order to compile
accomplishments and lessons learned.
Participants also identified the need for
training in this area. It was suggested that
the Performance Measurement Guidance
for Compliance and Enforcement Practi -
tioners document be used as a starting
point to develop training tools.
2 PRESENTATIONS
The session started with presenta-
tions on environmental compliance and
enforcement (ECE) indicators from three
organizations (OECD, the U.S. EPA, and
FARM).
The first presentation was given by
Ms. Myriam Linster and was entitled "Enw -
ronmental Indicators: Development, Mea -
surement, and Use". This presentation out-
lined the OECD's experience with environ-
mental indicators. The PSR model (Pres-
sure-State-Response) is the conceptual
framework used by the OECD to develop
environmental indicators. In this model,
ECE indicators are examples of
"Response" indicators. This model has
proven useful for the OECD in the develop-
ment and use of environmental indicators.
Since 1992, the OECD has developed a set
of 40-50 core environmental indicators to
review the environmental performance of
47 countries. Environmental indicators
have proven their usefulness for a broad
range of purposes. It has become clear that
a universal set of indicators does not exist.
Decision on which indicators to use must
be made in accordance with the objectives
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
and circumstances of each situation. The
development and use of environmental
indicators is a dynamic process that needs
flexibility, continuity, and pragmatism. The
only possible way is to learn by doing. It
was pointed out that there is much to learn
from exchange of experiences, which
emphasizes the interdependency between
international and national progress and the
importance of international cooperation.
Mr. Michael Stahl followed with a
presentation on "Performance Indicators
for Environmental Compliance and
Enforcement Programs". The presentation
outlined a three-stage model for identifying
(stage 1), developing (stage 2), and using
(stage 3) performance indicators. Evidence
suggests that most countries are in the
identification and development stages.
Best Practices for each stage of this model
are identified and discussed in a report pro-
duced by the INECE Expert Working Group
on ECE Indicators (Performance Measure -
ment Guidance for Compliance and
Enforcement Practitioners). Discussions
within the international community have
shown that indicators projects are tailored
to the unique circumstances and settings of
individual countries. It is also noted that the
challenges facing developing countries in
their indicators projects are different from
those experienced by developed countries.
Developing countries are often faced with
compliance cultures in formative or very
early stages, environmental laws not fully
implemented, immature environmental
agencies, and a system lacking data collec-
tion. For developed countries, challenges
are mainly associated with the duration of
implementation of projects, lack of interpre-
tive skills, misuse and/or misinterpretation
of results by external audiences, and the
inherent limitations of indicators. ECE per-
formance indicators are being used for var-
ious management purposes in certain
countries. Such uses include the monitor-
ing of performance through regular reports,
review of performance of organizational
units, evaluation of the effectiveness of
specific programs, or the reporting of
results to multiple audiences.
The last presentation was entitled
"Pilot Project on ECE Indicators in Latin
America - The case of Argentina" and was
delivered by Ms. Maria Eugenia Di Paola
from the Fundacion Ambiente y Recursos
Naturales, describing a pilot project on
ECE indicators associated with air and
water quality. The pilot project was devel-
oped by FARM in Argentina, in the frame-
work of an initiative of the World Bank Insti-
tute in Latin America, with other institutions
from Brazil (Lawyers for a Green Planet)
and Mexico (Ceiba), with the support of the
Economic Commission for Latin America
and the Caribbean (ECLAC) and INECE.
The project was carried out in the Munici-
pality of Moron, Province of Buenos Aires,
and involved three levels of government,
with major support and involvement from
the Mayor of Moron. The methodology
described in the INECE Expert Group doc-
ument (Performance Measurement Quid -
ance for Compliance and Enforcement
Practitioners) was used as a starting point
for this project and was refined. A large
number of indicators were identified, both
for water and air quality. Overall, there were
many more indicators for inputs and out-
puts, compared to intermediate and final
outcomes. This pilot project demonstrated
that NGOs have an important role to play in
such projects, particularly in stimulating
and increasing interest within govern-
ments. The project also clearly demonstrat-
ed that a single indicator is not enough, and
that one needs an interrelated system of
various indicators in order to tell a story.
3 DISCUSSION
The presentations were followed
by exchanges between panelists and the
audience. A summary of the discussions is
presented below, by major topics.
3.1 Perception Issues
There was a discussion on the per-
ception issues that may arise when indica-
tors are used to provide information to the
public. Panelists acknowledged that this is
indeed a potential problem. Members of the
public can be scared by what they see
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SUMMARY OF PANEL 4 53
and/or may not interpret the indicators the
way they should. It was suggested that this
risk may be reduced if information is given
to the public using a set of various indica-
tors, with some context to help interpreta-
tion. The choice of indicators is critical as
well. Developers of indicators must always
keep in mind the possibility of misinterpre-
tation or misuse of indicators by others.
3.2 Funding Allocations Based
On Indicators
A question was asked with respect
to a hypothetical situation in which funding
would be allocated based on benefits to the
environment. Panelists were asked how
they would proceed to measure such ben-
efits. It was pointed out that such a situa-
tion would emphasize the need for the
development of more indicators. It was
suggested that in such situations the focus
should be on the development of a set of
two or three outcome measures that are
readily usable. The importance of consult-
ing with stakeholders on the choice of indi-
cators in such cases was also emphasized.
3.3 Training
There was a suggestion that devel-
oping countries need to learn from those
countries where ECE indicators have
already been developed and used. It was
pointed out that formal training is needed
and that lessons learned need to be
shared. There seemed to be consensus on
this topic among the participants.
3.4 Challenges
Several questions focused on the
various challenges associated with the
development of ECE indicators. Those
challenges may be related to the interac-
tions of compliance and enforcement per-
sonnel with their policy development coun-
terparts in government. Other challenges
are related to the development of indicators
for criminal prosecution programs. The
specific challenges of developing ECE indi-
cators in federally-oriented countries were
also discussed. In the latter case, one pan-
elist suggested that the main challenge in
federal countries is related to data collec-
tion and management (the need for timely
and accurate data).
4 RECOMMENDATIONS FOR INECE
This panel culminated in various
recommendations for INECE:
— A Community of Practice should be built
among ECE programs conducting indi-
cators project^ in order to compile
accomplishmerits^and lessons learned;
— Indicators should be used to establish a
culture of performance (promote indica-
tors as a management tool to improve
performance and increase effective-
ness);
— Training should be developed and made
available. It was suggested that the Per -
formance Measurement Guidance for
Compliance and Enforcement Practi -
tioners document be used as a starting
point to develop training tools.
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54 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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SUMMARY OF PANEL 5 55
SUMMARY OF PANEL 5: STRENGTHENING THE IMPLEMENTATION
OF MULTILATERAL ENVIRONMENTAL AGREEMENTS
Moderator: Donald Kaniaru, Kaniaru & Kaniaru, Advocate and former
Director of Environmental Policy Implementation, United Nations
Environment Programme
Panelists: Rosalind Reeve, Chatham House and the International Fund for
Animal Welfare
Elizabeth Mrema, United Nations Environment Programme
Gilbert Bankobeza, Ozone Secretariat
Iwona Rummel-Bulska, World Meteorological Organization
Sibusiso Gamede, Basel Convention Regional Centre, South Africa
Rapporteur: Rene Drolet, Environment Canada
1 INTRODUCTION
Mr. Donald Kaniaru opened the
panel by declaring that implementation of
multilateral environmental agreements
(MEAs) is critical, since in the last 30 years
more environmental agreements have
been adopted1 than in any other area of
international agreements except human
rights. He noted that an important tool in
this process is the United Nations Environ-
ment Programme's (UNEP) recently devel-
oped guidelines on MEA implementation. A
key to making the process work is convinc-
ing legislatures, nongovernmental organi-
zations (NGOs), and funding agencies of
the importance of MEA implementation.
Following Johannesburg, Mr. Kaniaru
observed, the pivotal issue is the question
of implementation: how can we get change
on the ground? Mr. Kaniaru asserted that it
is time to shift focus away from new legis-
lation to how best to implement what has
been adopted.
2 PRESENTATIONS
2.1 Dr. Rosalind Reeve
2,1.1 The Convention on International
Trade in Endangered Species of
Wild Flora and Fauna (CITES)
The objective of CITES is to ensure
international cooperation among parties to
prevent international trade in specimens of
wild animals and plants from threatening
their survival. It operates through a system
of mandatory licensing whereby trade in
specie's listed on 3 appendices is controlled
through permits. Commercial trade is
banned for species listed on Appendix I, but
under Appendices II and III, trade is permit-
ted subject to certain controls.
Several implementation and com-
pliance tools have evolved over the 30
years since CITES entered into force. They
include voluntary export quotas, national
reporting, the national legislation project,
technical support and ad hoc missions,
training workshops, the review of signifi-
cant trade, compliance action plans, and
the use of recommended CITES trade sus-
pensions to address persistent non-compli-
ance. Suspensions may be recommended
against non-compliant countries for all list-
ed species or individual species. They have
been used against 10 countries for gener-
alized non-compliance and have proved an
effective tool to increase annual reporting
of trade data and to encourage parties to
enact CITES implementing legislation.
Under the national legislation project, a car-
rot-and-stick approach is successfully
addressing non-compliance with enacting
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
national implementing legislation. Technical
assistance is backed up by legislation
plans, deadlines, and threats of trade sanc-
tions if plans are not provided and dead-
lines met. The threat of trade sanctions has
prompted parties to request technical
assistance and has led to capacity building.
2.1.2 The Convention on Biological
Diversity (CBD)
The objectives of the Convention
on Biological Diversity are to conserve bio-
logical diversity and to promote sustainable
use of the components of biodiversity and
fair and equitable sharing of benefits aris-
ing from the use of genetic resources. Prior
to 2002, the focus for biodiversity was on
policy development, but this emphasis
changed with the adoption of the 2010
strategic plan designed to achieve signifi-
cant reduction of biodiversity loss and shift
focus to implementation.
Implementation tools for the Biodi-
versity Convention include access to the
Global Environment Facility (GEF) to con-
duct implementation projects, country
reporting mechanisms, a clearinghouse
mechanism, and technology transfer pro-
grams. National reports are required every
four years, but several of these reports are
late and the data is often qualitative. The
clearinghouse has three objectives — to
promote scientific and technical coopera-
tion, information exchange, and network
development.
2.1.3 The Cartagena Protocol
The Cartagena Protocol, which
regulates cross-border trade in living modi-
fied organisms (LMOs), also includes
reporting requirements and a biosafety
clearinghouse. Additional compliance
mechanisms include a compliance commit-
tee and soft measures such as advice or
assistance, capacity building, issuance of
cautions, and a name and shame option.
2.1.4 CITES and CBD Compared
In comparing the strengths and
weaknesses of CITES and CBD, the follow-
ing results can be seen. For CITES, the
strengths are its narrow focus, its robust
compliance system, and the ability to rec-
ommend trade sanctions. For the CBD, the
strengths are its clearinghouse mecha-
nism, the ability to access the GEF, and
NGO participation. CITES' weaknesses
include lack of funds and political will, lack
of information on national implementation
and enforcement, lack of capacity in nation-
al authorities, exclusion of enforcement
personnel from decision-making, and the
legal basis for compliance mechanisms.
For the CBD, weaknesses include lack of
focus, complexity, multiplicity of reporting
requirements, and lack of information on
national implementation.
2.2
Ms. Elizabeth Mrema
The Lusaka Agreement's ultimate
objective is to eliminate illegal trade in wild
fauna and flora, and to set up a permanent
Task Force for that purpose. All signatories
must establish a national bureau to deal
with CITES issues and must second an
enforcement officer to the Lusaka Task
Force located in Nairobi. The ministers with
jurisdiction over wildlife from each party
serve as the Governing Council. Although
the Agreement has been in effect for 10
years, the Task Force has only been in full
operation for two and a half years.
One focus of the Task Force is to
create a network with other CITES-related
officials worldwide. However, under the
Agreement, Task Force agents are author-
ized to go into the field to conduct opera-
tions and make arrests (59 such operations
have been conducted to date). The on-the-
ground work under Lusaka is a critical
aspect of the program.
One key issue is to strengthen the
link between the Task Force and prosecu-
tors to increase the likelihood of successful
convictions. Another important issue is that
success must be measured by something
other than the number of convictions since
the animals are often already dead. Instead,
the Task Force must go to the root causes
of poaching and try to deal with these
issues to prevent the harm in the first place.
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SUMMARY OF PANEL 5 57
2.3
Dr. Gilbert Bankobeza
The implementation of the Montre-
al Protocol provides several valuable les-
sons for other MEAs.
Better information about success-
ful implementation techniques, including
how data is generated and collected under
other MEAs, would help facilitate imple-
mentation under new MEAs. This informa-
tion gathering process would be easier if
there were better cooperation among con-
vention secretariats.
At the national level, countries
should compare how implementation
occurs across the various MEAs to which
the countries have become parties.
The compliance incentives in the
Montreal Protocol are important to its suc-
cess, including: the trade with notification
and the trade sanctions provisions, the sus-
pension of participation section, the finan-
cial mechanisms that can assist with
capacity-building and technology transfer,
and the common but differentiated obliga-
•tions under the Protocol. It would have
been impossible to achieve such broad
participation (189 parties) without a broad
range of implementation tools.
Kyoto utilizes some of the same
implementation tools, including technology
transfer and common but dfferentiated
obligations, and more MEAs can follow this
lead. However, for these tools to be suc-
cessful there must be a strong national
focal point for implementation. We do not
have a common set of implementation tools
in part because the MEAs were adopted at
different times in different political contexts
so that some of the tools were not ripe for
use at the time of adoption. As a result,
inter-ministerial cooperation at the national
level is very important in assuring success-
ful implementation of MEAs.
2.4 Mr. Sibusiso Gamede
The three conventions related to
hazardous chemicals — Basel, Rotterdam,
and Stockholm — provide an international
framework for environmentally sound man-
agement of hazardous chemicals through-
out their lifecycle. Synergies among the
three conventions are possible at the inter-
national, regional, national, and local levels
since there are a number of similar issues
with each convention. Benefits of coordina-
tion among the three conventions and the
various levels of government are:
— Administrative — minimizing overlaps
and inconsistencies among policies and
programs.
— Cost — minimizing duplicative efforts.
— Communication — improved informa-
tion exchange.
— Life-cycle management — ensuring
that chemicals management occurs at
all stages of the chemical life cycle.
— Joint programming — leading to more
attention from potential international
and bilateral donors.
The obstacles to greater cooper-
tion and synergies include, among others:
Lack of awareness.
— Inter-ministerial cooperation.
— Lack of skills across program areas.
— Lack of funding.
— Lack of coherence among policies.
— Failure to link chemicals management
to sustainable development.
Synergies can be created at the
international level through (1) the develop-
ment of international capacity in facilitating
synergies, (2) improved guidance and
training material, and (3) improving region-
al mechanisms for jointly implementing the
Conventions, such as the Basel Regional
Centres.
INECE could make significant con-
tributions to MEA implementation in sever-
al areas including:
— Indicators.
— Providing examples of effective regula-
tory systems (a particular problem for
Africa).
— Capacity building.
— Providing model framework legislation.
— Exchanging information.
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
— Developing model legislation that har-
monizes related conventions.
— Strengthening regional cooperation.
2.5
Dr. Iwona Rummel-Bulska
The most critical problem in devel-
oping compliance and enforcement pro-
grams for MEAs is the lack of financial
resources. Countries need financial assis-
tance to build enforcement programs, and
they need access to low-cost compliance
technologies that can be quickly and easily
adopted by businesses in developing coun-
tries.
The Montreal Protocol has been
effective, in significant part, because of its
access to the GEF. Climate will be much
harder to deal with than ozone-depleting
chemicals. Funding may come from fees,
but it will be much harder to increase fees
without U.S. involvement. There is also a
significant difference in implementation
depending on the focus of the MEA. Ozone
was primarily a developed-country issue
with a developed-country solution, so it was
easier to implement and to fund. Other
MEAs have more direct impacts on devel-
oping countries and are harder to imple-
ment and fund. For example, the GEF does
not provide funding for implementation of
the Basel Convention.
What is missing under all agree-
ments is verification; there is almost no on-
site monitoring for environmental MEAs.
This is not the case in other areas such as
treaty regimes that address nuclear facili-
ties or weapons.
Collaboration with other organiza-
tions like customs agencies may be helpful
in advancing implementation of MEAs. Cor-
porate liability and compensation could
also play an important implementation role.
Although this is a sensitive issue that has
not produced consensus among NGOs and
other organizations, perhaps INECE can
assist in exploring the role MEAs might play
in establishing a standard of care for pri-
vate liability.
3 DISCUSSION
Dr. Bankobeza pointed out that
even when the international community is
not ready to act on implementation, there
are still ways to proceed. For example, the
Montreal Protocol was amended four times
to improve implementation provisions so
that when the international community was
ready to act, better tools were already in
place.
Ms. Mrema suggested that there is
a need to work with all convention secre-
tariats covering similar issues to bring them
together to work on enforcement in areas
such as hazardous chemicals, trade in
endangered species, and illegal logging.
Dr. Reeve pointed out problems
with implementation of CITES and the Con-
vention on Biological Diversity at the
national level. Biodiversity-related treaties
addressing specific issues are usually
implemented through different national
agencies than the CBD. There is a need for
inter-agency cooperation at the national
level and coordination of capacity building.
However, harmonization needs to be mutu-
ally supportive and not dilute the effective-
ness of the specific biodiversity-related
treaties.
Ms. Picolotti from Argentina noted
the value of "shadow reports" produced by
NGOs on national implementation pro-
grams. She asked whether any of the MEA
secretariats, particularly CITES, encourage
these types of reports. Ms Picolotti also
observed that focusing on human rights
issues such as access to food might be a
vehicle for raising implementation issues
related to issues such as biodiversity.
Mr. Ruessink from the Netherlands
said that political will is often an issue and
inquired about whether INECE could work
with NGOs on this issue.
Dr. Reeve responded that there
has been no push for shadow reports relat-
ed to CITES but that it is a good idea. She
pointed out that NGOs have a capacity
problem related to shadow reports since
there are over 160 CITES parties. On the
political will issue, she noted NGOs are a
key to strengthening political will.
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SUMMARY OF PANEL 5 59
Dr. Rummel-Bulska observed that
there is little cooperation related to human
rights issues but that it should be done in
areas such as chemicals. She said one
way of creating a constituency for MEA
implementation is to work with universities
because professors often are seen as very
credible people and less subject to political
influence. We also need to work more
closely with judges, in her opinion.
Ms. Mrema agreed with Ms.
Picolotti that shadow reports can be useful
and suggested that it may be helpful to
have a common format for these reports to
facilitate their use.
Ms. Duncan from Canada pointed
out the need to carefully watch enforce-
ment successes, because once successful,
those opposed to regulation may try to
change the laws that were the basis for the
enforcement actions.
Ms. Melen from the Ukraine noted
the value of public involvement as part of
national reports under the Aarhus Conven-
tion. She pointed out that the Ukraine
report changed significantly from the first to
the final draft as a result of public com-
ments on the first draft.
Dr. Rummel-Bulska observed that
public involvement is critical. She noted
that Article 19 of the Basel Convention
allows an NGO to submit its own report on
implementation, triggering a verification
mission.
Dr. Bankobeza pointed out that
NGOs played a crucial role in the lead-up
to the Montreal Protocol. This has led to a
situation where the parties fear being in
non-compliance because of the public
response.
Mr. Shears from England noted
that the European Union Network for the
Implementation and Enforcement of Envi-
ronmental Law (IMPEL) has been working
to define the scale of illegal trade in species
and that it is much higher than expected.
He also noted the possibility of links
between illegal trade in species with other
crime networks such as illicit drugs.
4 CONCLUSION
Mr. Kaniaru closed the session by
noting that there is still much to be done to
improve coordination and synergies among
the MEAs. He also pointed out that more
MEAs need access to GEF resources to be
effective. Finally, Mr. Kaniaru observed that
lessons learned from implementing earlier
conventions need to be taken into account
in designing implementation programs for
the newer conventions.
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60 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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SUMMARY OF PANEL 7 61
SUMMARY OF PANEL 7: THE ROLE OF INTERNATIONAL
FINANCIAL INSTITUTIONS IN COMPLIANCE AND ENFORCEMENT
Moderator:
Panelists:
Adriana Bianchi, World Bank Institute
Sheng Shuo Lang, Multilateral Fund for the Montreal Protocol Secretariat
Alberto Ninio, World Bank
Dariusz Prasek, European Bank for Reconstruction and Development
Rapporteur: Melanie Nakagawa, INECE Secretariat
1 INTRODUCTION
This panel addressed the role of
multilateral development banks in environ-
mental compliance and enforcement.
Panelists discussed measures to ensure
internal compliance with the banks' own
environmental and sustainable develop-
ment policies, such as inspection panels,
compliance advisors and offices, accounta-
bility mechanisms, etc. They also explored
ways banks can support environmental
compliance and sustainable devejopment
in countries receiving funding. This support
may include indigenous policies, environ-
mental impact assessments, and other rel-
evant activities. Finally, panelists and con-
ference participants brainstormed practical
mechanisms to improve environmental
governance and to meet sustainable devel-
opment objectives.
2 PRESENTATIONS
2.1 Presentation by
Mr. Sheng Shuo Lang
Mr. Sheng Shuo Lang's presenta-
tion focused on the Multilateral Fund's use
of funding as leverage to help developing
countries comply with the Montreal Proto-
col. The Fund's assistance to China to
reduce and eliminate the production of
chlorofluorocarbons (CFCs) exemplified
the effectiveness of a performance-based
funding modality. China became the largest
CFC producer in the world after the devel-
oped countries terminated CFC production
in 1996. China produced 45,000 tons of
CFCs in 1997; since then production has
been growing in double digits every year. In
1999, China agreed to close down its
plants if the Fund would pay China 150 mil-
lion dollars in annual installments. Funding
was conditioned on achievement of
agreed-upon production reductions and on
independent verification. On-site verifica-
tion was satisfied by reviewing plant
records on level of production, consump-
tion of raw materials, number of days of
production, and other details. Any default
on reduction achievement could be penal-
ized by US$1,000 for each ton not reduced.
2.2 Presentation by Mr. Alberto Ninio
Mr. Alberto Ninio's presentation
focused on the accountability and function
of the World Bank Inspection Panel. The
Panel, created in 1993, is the oldest
accountability mechanism in the context of
multilateral organizations. Mr. Ninio shared
his reflections on the Panel and described
what is happening on the ground. First, he
explained some limitations on multilateral
development banks. For instance, the gov-
ernment, not the Bank, is responsible for
implementing projects; the Bank can only
suspend disbursements and subsequently
leave the project altogether. As a result,
long-term sustainability of agreed meas-
ures may be compromised. This problem
can be addressed if public funds are used
with transparency and if regional develop-
ment banks are responsible to the people
and shareholders.
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Mr. Ninio stressed the importance
of accountability. In response to demands
to finance in a socially responsible manner,
the Bank adopted several policies and an
independent verification and accountability
mechanism - the Inspection Panel.
Creation of the Panel signaled a shift in
public international law giving nongovern-
mental organizations (NGOs) and individu-
als access to the highest level of the Bank,
the Board of Directors. Mr. Ninio believed
that the Panel has had a positive impact
despite a limited number of complaints and
a conservative cost estimate of about $20
million over the past 12 years. On balance,
the positive change he has witnessed in the
Bank's internal culture of compliance may
be viewed as a considerable feat.
Mr. Ninio concluded by discussing
recommendations for the future of the
Inspection Panel. He recommended
mandatory facilitation or mediation
because he felt this process could easily
dispose of some complaints. He also rec-
ommended mandatory sharing.of lessons
through dialogue, as this is not currently
done on a systematic basis. Similarly, the
Panel could have an advisory component.
Mr. Ninio mentioned that stricter time-
frames could apply to the investigation
phase to ensure that the Panel's findings
are available without major delays. Lastly,
he suggested having either a fixed panel
that is completely replaced after five years,
or having ad hoc specialized panels for
each case.
2.3 Presentation by
Dr. Dariusz Prasek
Dr. Dariusz Prasek discussed envi-
ronmental appraisal of investment projects
and environmental compliance and
enforcement from the perspective of the
European Bank for Reconstruction and
Development (EBRD). He began by outlin-
ing common misconceptions of EBRD's
abilities, environmental safeguards, regula-
tions, and mechanisms for enforcement.
Established in 1991, the EBRD is the
youngest of the regional development
banks. It is owned by sixty-two countries
and two supranational shareholders: the
European Union and European Investment
Bank. Although based in London, it has
regional offices in all countries of operation,
including Central/Eastern Europe and
some parts of Asia.
In 1991, the EBRD became the first
international organization given an environ-
mental mandate, consisting of guiding prin-
ciples for environmental and sustainable
development. The EBRD mandate touches
on the issues of community, involuntary
resettlement, and labor standards. The
EBRD handles both small- and large-scale
projects, such as the Baku-Tbilisi-Ceyhan
pipeline project. It is guided by environmen-
tal policy and focuses on conducting envi-
ronmental projects to manage risk, disclose
information, and have thorough consulta-
tion.
The EBRD also has the youngest
accountability mechanism - an independ-
ent recourse mechanism - drawing on les-
sons learned from the Inspection Panel and
the International Finance Corporation's
Compliance Advisory Ombudsman.
The EBRD's classification system
determines the impact of each Bank proj-
ect, guided by the principle that compliance
with national laws is always a must. The
project must meet both national regulations
and European Union standards. If there are
issues to be mitigated and improved as a
result of due diligence, the Bank agrees
with clients on Environmental Action Plans.
These plans are legal agreements con-
ducive to achieving international good
practice standards. Dr. Prasek stressed the
importance of meaningful consultation and
monitoring activities during project imple-
mentation. This is often where NGOs play a
role because they raise the issues and con-
duct periodic environmental assessments.
Dr. Prasek concluded his presenta-
tion by briefly discussing the EBRD's inde-
pendent recourse mechanism, stating that
its two main functions are problem solving
and compliance. He believed that interna-
tional commitments can be met at the proj-
ect level through compliance and enforce-
ment mechanisms. He emphasized the
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SUMMARY OF PANEL 7 63
importance of working in partnerships
because small institutions cannot solve
everything.
3 DISCUSSION
After the presentations, there was
a period of questions and answers. The
panelists fielded a variety of questions
ranging from inspection monitoring to veri-
fication procedure.
One key point raised was the differ-
ent verification mechanisms used by each
organization:
— In the Multilateral Fund, independent
auditing firms carry out verification.
— In the World Bank, verifiers are selected
by the World Bank President with the
approval of the Board of Directors, and
can never be hired by the Bank again as
employees or consultants.
— In EBRD bank audits, there is independ-
ent verification and routine requests for
corporations to achieve various certifica-
tions, including ISO 14001.
Another important issue raised was
the use of EBRD's political leverage to
achieve recipient country domestic compli-
ance with EBRD standards. Similarly, Dr.
Adriana Bianchi noted the private sector's
use of the Equator Principles to achieve
environmental safeguards in project lend-
ing and financing.
4 CONCLUSION
The final set of questions brought
forth the notion that INECE can work with
enforcement and compliance groups for
capacity building on a variety of levels. Cur-
rently, the World Bank has worked on
capacity building with INECE, with a recent
presentation on indicators given at the
Bank by Mr. Michael Stahl of the US Envi-
ronmental Protection Agency and INECE.
At a local level, there is still work to be
done. Mr. Ninio pointed out that a project
typically takes three to four years to pre-
pare, and building capacity can take a life-
time. Thus, there is a need to balance the
timing of forming capacity and moving the
project forward. Often this process is done
in parallel in accordance with public partic-
ipation and by considering mitigation of off-
sets.
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64 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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WORKSHOP SESSION 1 65
WORKSHOP SESSION 1
Exploring Current Environmental Compliance and Enforcement Topics
Conference participants explored important current topics in environmental compli-
ance and enforcement, including broad "background" concepts (theories of compliance,
design principles, and exploration of good governance and the rule of law), types of prac-
tices or approaches (economics, compliance assistance, communications policy, and pub-
lic participation), and a specific example of an ongoing cooperative enforcement effort
(Ecomessage).
1A Economic Aspects of Compliance and Enforcement
Facilitators: Krzysztof Michalak, Organisation for Economic Co-operation and
Development
Ger H.J. Ranter, Province of Overijssel, The Netherlands
1B Compliance Incentives and Other Assistance
Facilitators: Thomas Maslany, Environmental Protection Agency, United States
(retired)
Rene Drolet, Environment Canada
1C Ecomessage/lnterpol and the Police
Facilitators: Bill Clark, Israel Nature and National Parks Protection Authority
Andrew Lauterback, Environmental Protection Agency,
United States; Interpol
1D Compliance and Enforcement Theories and Design Principles
Facilitators: Lee Paddock, International Union for the Conservation of Nature;
Pace Law School, United States
Marcia Mulkey, Temple University, United States
1E/F Information Management, Reporting Requirements, and Self-monitoring
Facilitators: Donna Campbell, New South Wales Department of Environment
and Conservation, Australia
Markku Hietamaki, Ministry of the Environment, Finland
1C Good Governance and the Rule of Law
Facilitators: Angela Bularga, Organisation for Economic Co-operation
and Development
Adriana Bianchi, World Bank Institute
Michael Stahl, Environmental Protection Agency, United States
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66 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
1H Communications Policy and Practice
Facilitators: John Cruden, Environment and Natural Resources Division,
Department of Justice, United States
Krystyna Panek-Gondek, Inspectorate for Environmental Protection,
Poland
11 Citizen Participation in Environmental Enforcement
Facilitators: Georges Kremlis, European Commission
Katia Opalka, Commission for Environmental Cooperation
Romina Picolotti, Center for Human Rights and Environment,
Argentina
Barry Hill, Environmental Protection Agency, United States
Report Out from Workshop Session 1
Moderator: Bharat Mathur, Environmental Protection Agency, United States
In the following pages, the reports of these workshops are presented.
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SUMMARY OF WORKSHOP 1A 67
SUMMARY OF WORKSHOP 1 A: ECONOMIC ASPECTS
OF COMPLIANCE AND ENFORCEMENT
Facilitators: Krzysztof Michalak, Organisation for Economic Co-operation
and Development
Ger H.J. Ranter, Province of Overijssel, The Netherlands
Rapporteur: Davis Jones, Environmental Protection Agency, United States
GOALS
To discuss the reasons why companies violate environmental laws and explore
both regulatory and non-regulatory solutions to this problem.
1 INTRODUCTION
The facilitators raised four key
questions for consideration:
1. What are key factors that lead firms to
comply or not to comply with environ-
mental requirements?
2. What are types of regulatory approaches
that are enforceable and lead to environ-
mental improvements?
3. What is the appropriate balance
between compliance monitoring and
enforcement to respond to violations?
4. What are other non-regulatory schemes,
such as performance ratings, public dis-
closure, and emissions trading, that may
also encourage changes in behavior or
compliance with environmental rules in a
more cost-effective manner?
One of the primary reasons that
companies violate environmental laws is
that they are unwilling to spend the money
necessary to comply. Another reason is
that many permits may be too complex or
overly burdensome, so companies can not
comply with every detail. Finally, compa-
nies may not see the effects of their actions
when pollution is dispersed or the harm is
caused far from their facilities. This
decreases their concern and knowledge of
the importance of their compliance.
Penalties are one mechanism that
may be useful to "balance the books" and
increase the cost of non-compliance to
motivate enterprises to invest appropriate-
ly. However, other mechanisms, including
closure of the facility, criminal sanctions,
pubic disclosure, and direct communication
with the company may also be effective.
One way proposed to increase
enforcement efficiency would be to shift the
burden of proof to the industry to show they
are in compliance, ratheV than on the
inspectorate to show violations. Another
effort for efficiency involved the prioritiza-
tion of regulations for inspectorates to bet-
ter focus their efforts on the most important
rules.
Efforts are needed to focus permits
on outcomes instead of detailed require-
ments mandating methods to achieve
those outcomes. This would both increase
compliance with more limited requirements
and make compliance more efficient for the
regulated community and enforcement
more meaningful for the authorities. If the
permitted limit is achieved, there would be
limited oversight. However, if the emission
limit is exceeded, the polluter would have to
prove that they had met or exceeded the
required management practices. Inspec-
torates would not have to prove complicat-
ed technical violations in court; instead the
polluter would have to prove that they met
the requirements. Subsequent penalties
should take away economic incentives to
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
violate and make violators rethink their
practices and compensate the public for
any harm caused.
2 DISCUSSION SUMMARY
Mr. Kenneth Ruffing of the Organi-
sation for Economic Co-operation and
Development (OECD) opened the work-
shop by presenting the outcomes of the
December 2004 OECD/INECE workshop
on the Economic Aspects of Environmental
Compliance Assurance held in Paris and
distributed the background paper for that
workshop, (see http://www.oecd.org/docu-
ment/20/0,2340,en_2649_34339_3364565
2_1_1_1_1,00.html) The conclusion of the
event has led the OECD to continue to
work on the topic and gather more views
and experiences to develop cost-effective
controls and economic motivators for com-
pliance. Compliance promotion systems
that have been in place rely on many com-
ponents to function effectively, including
actions at the firm, compliance monitoring
by the competent authorities, enforcement
actions when violations are found,' and the
collection of penalties when appropriate.
But these systems are only as strong as
the weakest link, and if companies contin-
ue to fail to comply, efforts count for little.
Estimates show that 60% - 80% of facilities
in OECD member countries may be out of
compliance at any given time, and percent-
ages may be worse among non-member
countries.
There must be an increase in the
use of economic instruments to reduce the
cost of compliance and provide additional
economic incentives to comply. More
empirical analysis on compliance rates and
the causes for non-compliance is needed,
as well as the most effective policy
approaches. Countries need to better ana-
lyze the financing that their programs need
and to better understand and utilize mech-
anisms such as self-implementing
approaches to help reduce the costs to the
government of increasing compliance. It is
incumbent on all to find the most efficient
means to improve compliance rates.
2.1 Are Penalties an Effective Means
of Providing Economic Incentives
for Compliance?
Money and profits are the biggest
factors that motivate entities to not comply
with environmental laws. Investments
required for compliance cut into profits and
investments in other areas. Penalties can
be an effective way to balance these costs
and eliminate the financial incentive not to
comply by recouping any economic bene-
fits derived from the violation. However, Mr.
Peter Lehner commented that many times,
penalties are not big enough to truly cover
the savings from non-compliance. The
State of New York brought several cases
against coal-fired power plants for viola-
tions of the U.S. Clean Air Act. As a result
of one case, a company will install pollution
control devices costing over $1 billion, but
these changes should have been done 10
years ago. The $8 million penalty collected
doesn't come close to covering the return
on their investment achieved by delaying
the required expenditures. The statutory
maximum for this type of continuing penal-
ty could have been much higher, even in
the hundreds of millions of dollars, but in
the current climate, no one would authorize
a penalty that truly recaptured the econom-
ic benefits the company gained over the
years. More effort is needed to educate
judges and decision makers on the true
value of non-compliance and the costs of
damages.
The United States Environmental
Protection Agency has developed a mathe-
matical model to calculate the economic
benefit of noncompliance. The standard-
ized method has helped increase the
penalties, and ensure some national con-
sistency, but often, in cases with very high
economic benefits, the full value is seldom
collected in the penalty.
Mr. Neil Davies commented that
penalties may also be based on the envi-
ronmental damages resulting from non-
compliance. However, the value of the
damage is usually very difficult to deter-
mine, and may be quite high if all factors
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SUMMARY OF WORKSHOP 1A 69
are considered. Mr. Daniel Geisbacher
added that we can count dead fish, or other
concrete effects, but not broad damages to
the environment or intangible effects. Mr.
Peter Lehner described some of the tools
used in the United States, particularly to
evaluate the loss of wetlands. However,
measurable effects such as number of fish
killed, while easier to calculate, only
account for a fraction of the harm, and do
not measure the value of the aesthetics
and other intangibles. In other cases, we
can calculate the number of deaths result-
ing from a given amount of air pollution, but
ascribing the worth of a human life is
extremely controversial.
2.2
Penalties as Deterrence
Mr. Neil Davies said that deter-
rence comes from the marginal cost of
compliance compared with the risk of
detection and the amount of a penalty.
Damages to the environment are often
caused by accidents or unforeseen events.
As such, the collection of damages does
not usually result in true deterrence. Mr.
Ken Ruffing added that if the penalties
themselves do not rise to the true benefit of
non-compliance, going beyond that amount
may be moot, and ineffective.
Mr. Peter Lehner stated that penal-
ties are generally used to respond to culpa-
bility, and may determine which is more
appropriate: the collection of damages
caused or the economic benefit derived.
Another aspect of the penalty should be
punitive to help deter future violations.
In developing countries, penalties
may not be feasible as a mechanism to
change behavior. Dr. Warapong Tungitti-
plakorn explained that in Thailand, the Pol-
lution Control Department has not been
able to get any company to pay any
amount of penalty. The government is try-
ing to develop a penalty policy for judicially
acceptable calculations, but have no
administrative mechanism outside the
court system to assess and collect a penal-
ty. They have had some success in negoti-
ating non-penalty solutions directly with
companies, but have not taken any cases
to court.
2.3 Other Types of Effective Sanctions
In the United Kingdom, Mr. Martin
Murray said that, although they have the
authority to close a facility, the authority is
seldom if ever used. There is a fear that the
company could sue the government for lost
profits while they were closed. However,
the statute does not allow much discretion,
and if the company does not voluntarily
comply, the statute mandates that they
cease operation. This is seen as too
extreme a response for most violations.
Mr. Mihail Dimovski explained that
several industries in Eastern Europe were
closed because of the risks they presented,
particularly at chlorine plants. The inspec-
torate has the authority to cut the power to
the facility, in effect forcing its closure. Both
the inspectorate and the company found
that it was much more expensive to close
the facility than any penalty, greatly accel-
erating the response. Closure can be much
more punitive and powerful than other
means of enforcement.
Mr. Krzysztof Michalak cited exam-
ples where the government actively adver-
tised the closure of enterprises to promote
the authority of the ministry and the conse-
quences of non-compliance. However, Mr.
Peter Lehner said that in his experience,
the ministry would never announce that
they forced the closure of a company for
environmental reasons, as it reinforces the
argument that environmental protection is
incompatible with job creation.
2.4 Do Different Types of
Companies Respond Differently
to Compliance?
Mr. Peter Lehner said that he has
seen several differences in companies
based on their ownership and size. Private-
ly held companies can more effectively
plan for longer terms and project future
benefits compared to present costs. Public
companies are often less concerned about
future benefits and are forced to place
more importance on short-term benefits.
For this reason, more closely-held compa-
nies are generally more compliant as they
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
are willing to make the expenditures neces-
sary for longer term needs. Another factor
is how local the ownership of the company
is. Local companies tend to have a larger
stake in the community and are more con-
cerned with environmental issues. As com-
panies become larger and more diversified,
they may tend to comply less.
Mr. Kenneth Ruffing cited some
contradictions that came from a study of
firms that didn't focus on compliance, but
on predictions of whether environmental
management systems (EMS) are in place
or not. They examined factors that may
make firms change processes to prevent
pollution and subsequent compliance prob-
lems, instead of end-of-pipe treatment.
These studies have found that widely-held,
global corporations are more likely to have
better EMSs due to reporting requirements
and corporate social responsibility. This
seems to conflict with New York's experi-
ence on compliance of different size firms.
Mr. Peter Lehner responded that
big cpmpanies may be more likely to have
an EMS, but are also very carefully scruti-
nizing and guarding their environmental
budget. He admitted that he may have
overstated differences between large and
small companies, because many small
companies are not complying due to costs.
The contrast may be more appropriate for
mid-size firms with a strong connection to a
community compared with multinational
conglomerates.
Mr. Daniel Geisbacher agreed that
there are differences between large and
small companies. Larger companies care
more about reputation, as that may impact
their stock price. Smaller companies tend
to operate with smaller margins, are closer
to bankruptcy, and may not be able to
afford compliance.
2.5 Other Incentives for Compliance
However, there are other factors
that may give larger companies a greater
incentive to comply. Mr. Antero Honkasalo
said that the problem with small and medi-
um-sized enterprises is that they primarily
lack the knowledge and resources to com-
ply. In addition, the inspectors may not
have the expertise necessary to verify com-
pliance. In Finland, there are more than
400 municipalities, some with only a few
thousand inhabitants, so the local inspec-
tors may not be able to determine compli-
ance at the more complex facilities.
The compliance situation may also
differ depending on the social norms in dif-
ferent countries. For example, in Nordic
countries, there are generally high levels of
compliance due to great respect for law
generally. In these situations, the concen-
tration should not be on the penalty, but on
prevention. Penalties are a reactive
response after the fact, rather than proac-
tively ensuring compliance before viola-
tions occur.
Through an OECD country assess-
ment in Chile, Mr. Kenneth Ruffing
observed that the government worked with
one particular sector to provide technical
assistance through the trade association.
This effort ensured that all enterprises
knew what the rules are, they knew that
they all need to comply, and they received
technical assistance and recognition for
voluntary participation. Working through
the trade group ensured very good partici-
pation and increased compliance. The reg-
ulated sector saw it not as an effort to set
the regulatory bar higher, but raise every-
one to the bar in the same time-frame.
Mr. Neil Davies described a similar
approach in the United Kingdom. Trade
associations signed up for agreements with
the environment agency, not individual
companies. If an individual enterprise then
complied with the agreement, they
received a rebate on their energy levy as
an economic motivation.
2.6 Clear, Enforceable
Permits Required
The group also acknowledged the
need for permits and regulations that focus
on the outcome, not necessarily the way
the outcome is reached. A flexible frame-
work for compliance allows the operator to
find the most efficient way to reach an
emission limit, so they are more likely to
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SUMMARY OF WORKSHOP 1A 71
comply. Ms. Maryna Yanush suggested
that this can also make the inspectorate
more efficient by freeing the inspectors to
look at the outcome and result, rather than
the minutia of detailed rules.
Mr. G.H.J. Ranter stated that regu-
lators should look for middle ground so
inspectors can inspect in efficient ways, but
businesses can follow rules with no discus-
sion or questions. In Holland, they are mak-
ing efforts to reduce the number of rules,
prioritize between more and less important
rules, and focus on the most important.
Regulators should focus on the goal behind
the rule, not the detailed procedures need-
ed to achieve the goal.
Mr. Peter Lehner explained that in
the United States, permits must be specific
so violations will be specific and complaints
will stand up in court. Violations of general
objectives are very difficult to enforce; the
law may say that companies must not pol-
lute the air, but it is hard to establish a vio-
lation without specific criteria. Judges tend
to favor private interests, so we must be
very clear about why costs are required.
Courts are designed to protect private
rights, not the publip right to a healthy envi-
ronment, so detailed permits are required
to shift the burden of proof to the polluter.
2.7 Other Non-Regulatory Structures
There may be room for greater
flexibility if the effluent or emission is meet-
ing the overall objectives. Mr. Kenneth
Ruffing asked whether the problems with
penalties and strict compliance measures
advocate for other economic tools and mar-
ket sources. Emission trading schemes put
the burden on companies to establish their
emission volumes/types so they can partic-
ipate in the market. Enforcement is on the
validity of their measures, but authorities
would not need as much monitoring if pol-
luters could choose cost-effective ways of
reaching outcomes so they can trade emis-
sion credits after controls are implemented.
The key is to get the limit right, which
applies to either a trading system or a per-
mit-based regulatory system.
Many countries have established
taxes or fees on waste or effluent to moti-
vate pollution prevention. Mr. Ruffing stated
that a large number of OECD countries
have environmentally related taxes, fees,
or charges. However, there are so many
exemptions that the system is not effective.
Studies have shown that between 1300
and 1400 exemptions to pollution taxes or
fees exist in the 30 OECD countries.
While these tools may be effective
to address emission or effluent problems,
there are many environmental require-
ments designed to eliminate releases or
accidents. Mr. Peter Lehner cited the situa-
tion with storage tank leak prevention sys-
tems where any discharge is prohibited.
Neither pollution trading schemes or waste
taxes would work to regulate those sys-
tems, so traditional mechanisms are still
effective.
3 CONCLUSION
The group agreed that compliance
decisions are motivated by economic and
financial factors in most circumstances.
Economic efficiencies must be sought that
promote compliance and eliminate any
incentives to violate environmental laws.
The full range of tools must be used to
eliminate economic disincentives to compli-
ance, including penalties to address viola-
tions and new regulatory approaches to
reach environmental goals in the most effi-
cient manner possible.
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72 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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SUMMARY OF WORKSHOP 1B 73
SUMMARY OF WORKSHOP 1B: COMPLIANCE
INCENTIVES AND OTHER ASSISTANCE
Facilitators: Thomas Maslany, Environmental Protection Agency, United States (retired)
Rene Drolet, Environment Canada
Rapporteur: Scott Stone, INECE Secretariat
GOALS
To explore the following questions:
— How can government agencies motivate those who decide to comply with or to violate
the law based on the government's actions ("the Reactive Group")?
— What are some unique programs that accomplish this motivation?
— Who can the government partner with (and how) to implement these programs?
— How do you address issues associated with these programs?
1 INTRODUCTION
Compliance assistance and incen-
tives are only effective if they are backed by
a strong threat of enforcement with sanc-
tions.
To secure compliance, the regulat-
ed 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 inter-
acts with the community, the type of com-
munity, and the type of regulation. These
three groups are: (a) compliant group; (b)
reactive group; and (c) resistant group.
2 DISCUSSION SUMMARY
The regulated community divides
into three groups:
— 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).
— Reactive Group: decides to comply or
not comply based on the government's
behavior/actions (usually the largest
group).
— Resistant Group: refuses to comply with
environmental laws and regulations, and
enforcement actions must be taken to
compel them to comply.
Government agencies can help
motivate the Reactive Group by using the
carrot and the stick (e.g. assistance and
incentives offered against the backdrop of
enforcement).
2.1 Some Types of Compliance
Assistance
Some types of compliance assis-
tance include compliance assistance cen-
ters, workshops/training, printed material,
audits and inspections, skill transfer pro-
grams, and training of compliance assis-
tance providers.
2.2 Some Types of Positive Incentives
Positive incentives include awards,
green labels, tax incentives, low-cost loans
or grants, tax incentives, and legal time
extensions for compliance.
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Legal extensions can be informal
or written into the law. In the early 1980s,
the United States passed the Steel Exten-
sion Compliance Act in order to encourage
investment in modernization. This legisla-
tion allowed members of the steel industry
to postpone their investment in pollution
prevention if they agreed to a long-term
compliance schedule for all their violations.
2.3 Some Types of Negative
Incentives
Negative incentives include public
disclosure of non-compliance, financial dis-
closure of environmental liabilities, and pol-
lution fees.
2.4 Issues Associated with
Compliance Assistance Programs
One issue that may arise with com-
pliance assistance programs is that indus-
try may fear communicating non-compli-
ance, as facilities in violation are usually
unwilling to disclose this fact to the govern-
ment.
Another issue is that there can be
tension between compliance assistance
staff and enforcement staff within govern-
ment. There is a need for good communi-
cation between compliance assistance and
enforcement staffs because sometimes the
enforcement staff views compliance assis-
tance as a step backward. There is also a
need to make it clear to enforcement staff
that compliance assistance makes their
jobs easier because they lack resources to
prosecute every instance of noncompli-
ance. Additionally, documenting attempts to
offer compliance assistance to firms that
refuse to accept them provides justification
for enforcement actions, which can help
when the decision to prosecute raises diffi-
cult political issues.
Finally, compliance assistance is
not effective without enforcement.
2.5 Reducing Cost of
Government Programs
Working with trade organizations
and other groups to help spread govern-
ment compliance assistance messages
can lower the costs of compliance assis-
tance programs.
2.6 Reliance on Government Advice
Reliance on government advice
can be used as a defense for non-compli-
ance when firms follow a detailed compli-
ance assistance program and still fail to
come into compliance.
There is a need to limit how much
detail a compliance assistance program
provides. The position of the United States
Environmental Protection Agency (USEPA)
is to point firms in the right direction, but not
give professional engineering advice, etc.
The USEPA will only identify types of tech-
nologies, places to acquire it, etc.
2.7 Tailoring Programs
Compliance assistance must be
adapted to fit the targeted industry as differ-
ent industry and corporate cultures will
respond differently to forms of compliance
assistance. Choosing the most effective
format requires understanding a business
sector's behavior regarding compliance,
including at sociological and psychological
levels. Each business sector has its own
unique ways of receiving information, lev-
els of resources to devote to government
requirements, and interaction with the gov-
ernment.
For example, in the U.S. in the
early 1990s, the USEPA announced regu-
lations for the dry cleaning industry. Half of
all dry cleaning facilities in the U.S. were
owned by Koreans, who got most of their
information from Korean trade associa-
tions. Initially, the USEPA did not have a
working relationship with these trade asso-
ciations, and so the new regulations did not
reach large parts of the regulated commu-
nity until the USEPA created such a rela-
tionship.
2.8 Key Questions & Issues
Question: Working with the private
sector can lower costs of compliance assis-
tance programs, but how can regulators
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SUMMARY OF WORKSHOP 1B 75
maintain their independence when working
closely with industry?
Answer: Providing public informa-
tion to a trade association and/or non-
governmental organizations (NGOs) opens
lines of communication. Regulators are not
asking the trade association or NGO to
report violations to them.
Question: How should regulators
respond when a firm contacts the agency
because the firm wants to do something
that is not required, but meets many of the
same regulatory goals?
Answer: Regulators should reiter-
ate the regulatory standard and provide the
firm with advice and interpretation of the
standard. The agency should have a com-
mon message that all personnel can use,
such as that they are willing to work with
firms, but the bottom line remains the
same.
Question: If a firm accepts compli-
ance assistance, should the regulator
waive penalties for noncompliance?
Answer: The regulator should not
provide government-backed guarantees
regarding enforcement.
Question: How effective is the
European Union's strategy of publishing all
available technologies and requiring that
the regulated community show that the
technologies they use are the best option
for them?
Answer: Regulators must be care-
ful not to give one firm any information that
provides a competitive advantage over
other competing firms.
Question: How can it be made
clear for inspectors and other regulators to
distinguish between when they are provid-
ing advice and when they are describing
the law or standard?
Answer: Some enforcement per-
sonnel have extensive training regimens,
but the compliance assistance personnel
do not. Compliance assistance personnel
should get similarly extensive training.
Clear policy on providing compliance assis-
tance should be developed.
Question: What role does planning
and cost play in compliance assistance
programs?
Answer: Every agency will
approach this differently, but there are a
few basic guidelines:
— capacity-building and compliance assis-
tance programs should involve all
agency personnel and not just the
enforcement staff;
— there can be constitutional limits to pro-
grams that involve taxes and tax funds,
which require everyone to be taxed in
the same manner;
— funds collected from environmental
enforcement actions (via penalties and
fines) can be applied to different compli-
ance assistance programs, but this often
requires special training for judges or
provisions in the law;
— it can be useful to work with other gov-
ernment agencies when pursuing com-
pliance assistance programs; in the
U.S., the USEPA will work with state
agencies because they have different
constitutional and other legal limits on
how they can use penalty money.
Question: Are there any unique
compliance assistance programs? With
whom and how can the government partner
to implement these programs? How can
you address issues associated with these
programs?
Answer: NetRegs is a program in
the UK that is geared toward small and
medium-sized enterprises (SMEs).
NetRegs makes environmental legal
requirements accessible to SMEs via the
internet, tailoring specific standards to spe-
cific industries. It has proven to be more
cost-effective than inspections. Making a
website useful to SMEs requires marketing
research, asking SME owners and opera-
tors what they think of the website, measur-
ing how many people use the site, and
other factors such as what SMEs' needs
and key issues are. For example, for devel-
opers, the key issue is time because they
want to start building right away. Some pro-
grams will allow for developers with a long
history of compliance to have an expedited
permitting time.
Question: What types of funding
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
can be used for compliance assistance pro-
grams, and is it possible to get funding from
the private sector?
Answer: It depends on the laws
and constitution of the country. However,
many non-government groups such as
trade organizations or citizen groups have
a similar mission (i.e., to improve the envi-
ronment or to service the regulated com-
munity) and are willing to devote their
resources in partnership with the govern-
ment to provide compliance assistance.
Also, in some situations it is possible to use
collected penalties for compliance assis-
tance.
Question: What are some contro-
versial approaches (i.e. approaches where
participants were not in universal agree-
ment as to their effectiveness)?
Answer: (1) Allowing local/state
governments to administer compliance
assistance programs; (2) Amnesty pro-
grams. In the U.S. pesticide program, when
widespread non-compliance was deter-
mined, the USEPA allowed a six-month
period for self-reporting with significantly
reduced penalties but followed it with a vig-
orous enforcement period. In India, firms
are given an amnesty for past violations if
they sign up to a compliance plan and a
legal action was not already initiated
against them.
Question: Where do you find
money to pay for incentive programs?
Answer: The United States had a
milk program where a small percentage of
each sale (1-2 cents) went to a fund to pro-
mote drinking milk. The USEPA has been
working to create an industry-managed tax
along similar lines that can be used for
compliance assistance or pollution abate-
ment. Additionally, in the United States,
some environmental laws have tax incen-
tives programs. The United Kingdom has a
series of environmental taxes, some of
which are set aside for the development of
alternatives.
Question: How should agencies
allocate resources between enforcement
and compliance assistance programs?
Answer: It depends on the politics
of the day; different administrations have
different trends in terms of whether they
favor enforcement or compliance assis-
tance. However, the balance between com-
pliance assistance and enforcement is not
zero-sum - the job of the agency is compli-
ance assurance. This is a balance between
enforcement and compliance assistance,
not just emphasizing one or other.
The participants here made two
observations: (1) if you are starting a pro-
gram, it is good to emphasize both, and (2)
you should not talk in terms of numbers of
enforcement actions, but in terms of pollu-
tion reduction or behavior changed. A suc-
cessful compliance assurance program is
not based on number of cases, because if
the number of cases goes up, then you are
really not succeeding. Rather, the number
of violations should go down.
Question: The Multilateral Fund
(MLF) is providing funds for compliance
assistance to comply with the Montreal
Protocol. What will success depend on:
incentives or deterrence? Is there a way to
ensure that the money is spent for compli-
ance assistance to ensure compliance?
Answer: Compliance assistance
and incentives will not work without an
enforcement program.
Question: Will rewarding firms with
good track records work from the outset, or
only after you have gone through ugly
enforcement battles?
Answer: Some developing coun-
tries that receive compliance assistance
help from foreign sources do not have suc-
cess because compliance assistance usu-
ally requires the firms to spend some
money up front. Without the threat of
enforcement, they are not likely to spend
the money.
3 RECOMMENDATIONS FOR INECE
— Develop a section of the website that
links to other compliance assistance
programs.
— Form a compliance assistance expert
working group to produce policy guid-
ance and papers.
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SUMMARY OF WORKSHOP 1B 77
Explore ways to make more information
available, but balanced against some of
the risks and legal liabilities in doing so.
Consider how a firm that has won envi-
ronmental awards can be prosecuted for
violations and whether the awards make
it more difficult to succeed.
Develop compliance assistance pro-
grams for green issues, as well as
brown.
Find ways to demonstrate the costs and
savings of compliance assistance pro-
grams, relative to the cost of inspections
and their effectiveness.
Link compliance assistance programs to
indicators projects in order to measure
their effectiveness.
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78 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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SUMMARY OF WORKSHOP 1C 79
SUMMARY OF WORKSHOP 1C:
ECOMESSAGE / INTERPOL AND THE POLICE
Facilitators:
Rapporteur:
GOALS
Bill Clark, Israel Nature and National Parks Protection Authority
Andrew Lauterback, Environmental Protection Agency, United States;
Interpol
Henk Ruessink, Ministry of Housing, Spatial Planning and the
Environment (VROM), The Netherlands
— Assess the ways Ecomessage, to facilitate sharing of information about international
environmental crimes, can foster improved enforcement coordination at the inter-agency
and international levels, including the police.
— Provide participants with sufficient background on Ecomessage, so their organizations
can participate in the international program at an inter-agency level.
1 INTRODUCTION
About fifteen participants with a
variety of backgrounds and nationalities
joined the workshop on the
Ecomessage/lnterpol Data Base. Two col-
leagues with dedicated expertise on the
subject acted as moderators, Bill Clark of
the Israel Nature and Parks Authority and
Andrew Lauterback of US EPA. As an intro-
duction for the discussions, the facilitators
presented the background and the set-up
of the Ecomessage system.
2 DISCUSSION SUMMARY
Ecomessage is one of the products
initiated by Interpol's Environmental Crimes
Committee. Interpol's role - in general - is
to collect, compare and exchange informa-
tion on international criminal activities.
Connected to this function of Interpol,
Ecomessage was developed by two work-
ing groups of the Environmental Crimes
Committee, the Wildlife Crimes Working
Group and the Pollution Crimes Working
Group.
The objectives of Ecomessage are
to enhance reporting and communication
concerning criminal environmental
offences between environmental law
enforcement professionals in different
countries and to develop a database to
determine trends and information with
regard to environmental criminal activity.
The data can be used for purpose of moni-
toring and analyzing environmental crime.
Criminal intelligence analysis of Ecomes-
sage data is presently the most promising
technique for defining the size, composi-
tion, structure and dynamics of criminal
syndicates involved in environmental
crime. This information is critical to any
campaign seeking to suppress this type of
criminality.
The Ecomessage system ideally
covers all essential information with regard
to serious environmental crime having
international ramifications. Such crimes
are, for instance, wildlife smuggling, illegal
transboundary shipment of waste, vessel
pollution, and ODS smuggling.
Ecomessage is centrally reposited
with the Interpol General Secretariat in
Lyon, France. The information on environ-
mental/ecocrime can be submitted to the
system in an efficient and standardized
way by means of a simple form. The sys-
tem allows cross-referencing and dedicat-
ed extraction of data. Several organizations
may submit data, e.g. police, agencies,
ministries and NGOs. The entrance to the
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Ecomessage facilities is, however, always
through the Interpol's National Central
Bureaus (NCB) in each participating coun-
try.
At the moment, some 800
Ecomessages have been submitted, most
of those on wildlife crime. INECE and the
International Fund for Animal V\elfare
(IFAW) are currently working together with
Interpol to stimulate an intensified use of
Ecomessage. In connection to this, mail-
ings have been sent to inform relevant
stakeholders around the world about exis-
tence and potential of Ecomessage.
In the Workshop discussions, the
current benefits and suggestions for
improved usage of Ecomessage were
addressed. The following notions were
brought forward:
— Get the message out that Ecomessage
exists and is having success. By this,
the use of the system can be stimulated
so that more data are gathered concern-
ing environmental crime. Exchange of
such data will help to further improve the
international enforcement of the rules of
law.
— Keep sending the message to Interpol
and others that ecocrime is an important
aspect. These crimes seriously threaten
environmental quality, sustainability and
health all over the world. So it can not be
stressed enough that adequate enforce-
ment actions have to be taken to protect
the planet and its people. Since many of
the environmental crimes have an inter-
national context and are not bound by
national borders, the exchange of infor-
mation between countries is crucial to
tackle the problem. The Ecomessage
facility within Interpol is therefore an
important instrument that deserves full
support and application.
— Keep the system simple and with low
thresholds. This is of importance
because potential users would be dis-
couraged if the use of the system is
made difficult. The easy approach of the
system should therefore be maintained,
e.g., by the use of simple entry form with
a limited number of truly essential items.
Care should be taken that the system is
kept dedicated to the real major interna-
tional environmental crime cases. If too
many minor cases are fed into the data-
base, the power of the instrument and
the motivation to submit cases would be
reduced.
In order to retain sufficient support for
working with Ecomessage, the backing
of the responsible management in the
contributing organizations should be
sought and ascertained. If not, there is a
serious risk that the use of the system
would become too incidental and too
dependent on the dedication of individ-
ual compliance and enforcement
employees. One of the actions that
therefore should be taken is that man-
agement is informed about the benefits
Ecomessage does offer. Stories of suc-
cess might help to get the message
across here.
It should be noted that a system like
Ecomessage is for many countries in
fact the first and only tool to obtain some
data gathering of environmental crime at
all. The accessibility and simplicity of the
system is hence a very important
aspect, since sophistication would ham-
per its use in such countries. In connec-
tion to this it is essential that due atten-
tion be paid to basic training and educa-
tion in method and techniques of envi-
ronmental data gathering.
It should be realized that in some cases
authorities that submit data to the sys-
tem will not directly benefit from this
input for their specific case. Neverthe-
less, it is crucial that data of important
environmental crimes are continuously
fed into Ecomessage. Only in that way,
the result form monitoring and analysis
of data can in the end serve everybody
and facilitate better compliance and
enforcement of the rule of law. In cases
where there is a direct one-to-one result
from the data entered into Ecomessage,
it should be guaranteed that the workers
in the field really get these results fed
back to them for their specific case.
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SUMMARY OF WORKSHOP 1C 81
The results from Ecomessage could
also serve the purpose of building
awareness and public and political pres-
sure if used in a smart and communica-
tive way. Good examples of this are
reported from the Czech Republic.
Another successful case reported was
that a nongovernmental organization
managed to get its expenditures refund-
ed from an insurance company for the
clean-up of an oil spill on the basis of
data from the Ecomessage system.
In an effort to stimulate the use of
Ecomessage to report wildlife crime, the
International Fund for Animal Welfare
has budgeted a US$30,000 award for
the agency which submits the most sig-
nificant Ecomessage of a Convention on
International Trade in Endangered
Species intersessional period. The Inter-
pol Working Group on Wildlife Crime
has established criteria for selecting the
awardee, and plans to apply those crite-
ria to various candidates at its upcoming
meeting. The award will not be made as
cash, but rather will be made as $30,000
in law enforcement training and/or law
enforcement equipment for the winning
agency.
3 CONCLUSION
Ecomessage is a simple but pow-
erful tool for reporting and communicating
criminal environmental offenses of interna-
tional character. The use of Ecomessage
should be further promoted, as is currently
being done in a joint effort by INECE, IFAW,
and Interpol. The enforcement of the law
will benefit from the data gathered,
exchanged, and analyzed via Ecomes-
sage.
For its effective operation,
Ecomessage should be kept as a system
that can be used without unnecessary
thresholds. Provisions should be made that
other organizations and communities with
an affiliation to enforcement - apart from
police forces - could easily contribute to
and extract from Ecomessage.
By actively spreading stories of
successful use of Ecomessage in fighting
international eco-crime, the importance of
enforcement of the law will be underlined.
Communication about concrete environ-
mental results that have been achieved
thanks to Ecomessage is an essential
instrument to stimulate public awareness
and to build political pressure concerning
environmental issues.
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82 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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SUMMARY OF WORKSHOP 1D 83
SUMMARY OF WORKSHOP 1D: COMPLIANCE AND
ENFORCEMENT THEORIES AND DESIGN PRINCIPLES
Facilitators: Lee Paddock, International Union for the Conservation of Nature;
Pace Law School, United States
Marcia Mulkey, Temple University, United States
Rapporteur: Dave Grossman, INECE Secretariat
GOALS
To explore ways participants can evaluate and apply in their home organization a wide vari-
ety of compliance and enforcement theories and program design principles that have
emerged, considering the unique circumstances in each particular program and in each
cultural setting.
1 INTRODUCTION
The workshop began with opening
comments from the facilitators laying out
the idea of first principles, underlying theo-
ries 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. Facilitators provided
participants with two sheets of questions
intended to provoke discussion. The work-
shop then opened up into discussion of
national experiences and participant
thoughts on design principles. Participants
shared experiences of designing enforce-
ment 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.
2 DISCUSSION SUMMARY
2.1 Asking the Key Questions and
Finding Common Beliefs
Ms. Marcia Mulkey contended that
a key design challenge is determining the
functions to co-locate within a common
reporting chain and with common person-
nel, as opposed to functions located else-
where that require coordination. She
explained that it is impossible to put all rel-
evant programs together, such as the
dilemma of whether to locate an environ-
mental enforcement program in an enforce-
ment agency or an environmental agency,
and how to maintain coordination with the
agency into which the program is not inte-
grated. She also asserted the need for a
common belief system and asked what the
underlying theories and beliefs are that we
collectively accept to be truths.
Mr. Lee Paddock presented the
issue of how to raise compliance levels,
such as through direct enforcement,
inspections, permitting, targeting, compli-
ance assistance, or a strategic approach
combining all of the above. He also
inquired about the drivers of human behav-
ior and stated several possibilities, such as
regulatory systems, economics, values,
and traditions.
In response, Mr. Wout Klein assert-
ed that it was more important that enforce-
ment officials ask themselves these ques-
tions than that the workshop participants
find "the answers." Ms. Marcia Mulkey con-
curred, noting that it is more important that
all those working together in the same
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84
SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
agency share the same core set of beliefs
than that the workshop participants find a
common set of answers. Mr. Ryan Levitt
contended, however, that it was desirable
to have some global commonality as well.
Justice Amadeo Postiglione main-
tained that the participants also needed to
clarify their own philosophy for constructing
solutions. He asked if institutions were the
answer or if other social or scientific solu-
tions would be more effective, and whether
states should be trusted as mediators for
the environment. If not, then the alterna-
tives and the other actors that should play
a role need to be considered.
2.2 Effective Message Sending
Mr. Renzo Benocci asserted that
the most important question is how to max-
imize the effectiveness of enforcement
activities in the face of limited resources,
considering the appropriate role for deter-
rence and message sending. He contend-
ed that you must market what you do with-
in your own organization, getting buy-in
from people in your own departments, and
then must move the marketing efforts up to
the agency's political masters and to the
public. He asserted that this marketing
must be done in a way that conveys what
was done, why it was done, and why it was
essential. This approach attempts to get all
members of your enforcement community
to share the same vision.
Ms. Marcia Mulkey responded that
message sending is very important in order
to achieve common buy-in, but that we
must recognize that how to do the message
sending differs between agencies. Mr. Lee
Paddock offered that it was also important
to consider how to better send this mes-
sage to lawmakers and policymakers.
Mr. Renzo Benocci declared that it
was also key to develop a better enforce-
ment message, which requires gathering
the information to explain why certain
actions are being taken, how they are
effective, how they could be improved, and
what the consequences are of not improv-
ing them. Decisionmakers cannot resolve
agency problems if they do not know about
them. What this means is that agencies
cannot have everyone on staff doing only
enforcement, because then no one is doing
the reporting that lets the agency and poli-
cymakers know where the gaps are.
Mr. Ryan Levitt maintained that the
ongoing message should be about protect-
ing the environment and how the regula-
tors' actions help to do this, rather than
about compliance and enforcement.
2.3 Country Experiences
Ms. Ozge Karadeniz stated that
when Turkey announced multi-media
inspection regulations, it was a big shock
for the industry. As a result, Turkey
engaged in a two-year preparation period,
with training programs for industry and for
inspectors. Reports were sent to industry,
and real inspections began this year. She
asserted that the preparation period was
important.
Mr. Chris Howes explained that
revisions to the Environment Agency (Eng-
land & Wales) have been based around
basic principles, such as risk screening.
The concern is less about principles and
more about resource balancing, since the
agency tends to put lots of effort into creat-
ing perfect permits at the expense of imple-
menting and verifying compliance with
them.
Mr. Ebraham Ali shared that in
Bahrain, a warning letter is sent first when
a violation is found, and if no response is
received, then the facility is shut down until
it replies. He asserted that there needed to
be legislation for enforcement that allows
for other options.
Mr. Palamagamba Kabudi stated
that Tanzania has enacted a lot of environ-
mental acts and that the Environmental
Management Act (EMA) has recently been
approved to help coordinate among them
all. Local authorities need to be taken into
account because Tanzania is a big country,
and an effective national environmental
protection agency would only be effective
in the main city of Dar es Salaam. The
biggest difficulty is figuring out how to coor-
dinate among all the authorities, which is
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SUMMARY OF WORKSHOP 1D 85
why the EMA was created and passed.
Heads of the key Tanzanian governmental
departments form a National Environmen-
tal Committee that meets twice a year. Now
that Tanzania has all the environmental
acts, enforcement is the key issue. Eco-
nomic incentives are now being explored,
as well as how to harmonize them with the
traditional "command and control" pro-
grams that Tanzania is used to. "Command
and control" programs have actually had a
negative impact on forests in Tanzania,
where local communities are assisting the
poachers. Public cooperation is therefore
key, which is why Tanzania took two years
to draft a law - workshops were held
throughout the country in an attempt to
involve everyone in Tanzania. The goal
was to attain legitimacy, seek common val-
ues, and involve the stakeholders to get
common buy-in to the core principles. Tan-
zania has also instituted a reward system in
the act that covers wildlife, and has
arranged for compensation to officers and
informers who are injured in the cause.
There are also rewards in the Forest Act
and Fisheries Act. Given the government's
limited resources, the public's hefp is need-
ed to enforce the laws, but systems of pub-
lic involvement that involve telephones and
the internet are not feasible because most
people in the country do not have access.
Tanzanian NGO civil society is still in an
infant stage. Furthermore, Tanzania's con-
sensus-based culture, in which people are
happy to talk regardless of how long it
takes to achieve consensus, can make
enforcement difficult.
Justice Amadeo Postiglione noted
that in Italy there were too many laws, and
that the water law had 63 articles and 7
annexes. This illustrates the point that the
drafting of laws is very important.
2.4 Input Into Drafting of Laws
Ms. Marcia Mulkey stated that peo-
ple who write environmental standards are
often not writing those standards with the
issue of ease of detection in mind.
Mr. Terence Shears suggested that
the "experts" writing the laws may not be
the ones best-suited to designing laws that
are enforceable. Mr. Renzo Benocci added
that it is also important to draft the laws and
regulations so they can be understood by
laymen.
Mr. Albert Koehl contended that
clear values and knowledge of what is
meant to be achieved by the laws make it
easier to create and implement standards
and to communicate them to the public.
3 RECOMMENDATIONS FOR INECE
It was suggested that INECE could
investigate areas of cooperation in capaci-
ty building not only in the form of exchang-
ing 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 mis-
takes already made by others. In other
words, INECE should investigate capacity
building not just in terms of field implemen-
tation, but also in terms of strategies and
design principles.
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86 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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SUMMARY OF WORKSHOP 1E/F 87
SUMMARY OF WORKSHOP 1E/F: INFORMATION MANAGEMENT,
REPORTING REQUIREMENTS AND SELF-MONITORING
Facilitators: Donna Campbell, New South Wales Department of Environment and
Conservation, Australia
Markku Hietamaki, Ministry of the Environment, Finland
Rapporteurs: Markku Hietamaki, Donna Campbell
GOALS
— To share experiences to identify issues that regulators face in relation to self-monitoring,
the reporting of self-monitoring information and the management of that information.
— To identify any work that INECE might do in the future to assist regulators address
these issues.
1 INTRODUCTION
Key questions presented by the
facilitators:
— What does the term "self-monitoring"
mean?
— Why do regulators require operators to
monitor performance?
— Wouldn't it be better for regulators to
monitor performance to ensure compli-
ance?
— How can the quality of monitoring data
be assured?
— What approaches have countries used
to improve the quality of data provided
by operators?
2 DISCUSSION SUMMARY
2.1 What Does the Term "Self
Monitoring" Mean?
The term "self monitoring" is mis-
leading and often misunderstood. It is
sometimes interpreted as meaning the
operator volunteers to carry out the moni-
toring when in fact there is a legal require-
ment imposed on the operator to both carry
out the monitoring and to carry it out in a
particular way.
The panel discussion in the morn-
ing on "The Compliance and Enforcement
Message" highlighted the importance of
sending the community the right message.
A better term is needed to describe moni-
toring that operators are required by law to
carry out. The focus of the workshop was
on environmental monitoring that operators
are required by law to carry out.
2.2 Why Do Regulators Require
Operators to Monitor
Performance?
Monitoring data is required for a
variety of purposes, including inventories
for policy makers and public reporting, to
ensure compliance with environmental
laws (e.g., emission limits on a permit), and
emissions trading.
The kind of data required, and its
quality, will depend on the purpose for
which it is collected. Broadly speaking,
aggregated data used for inventories does
not need to be as precise as data used to
check compliance. Good regulators recog-
nize the cost of monitoring requirements on
industry and ensure that they only require
what is necessary for the purpose for which
the data is being collected.
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
2.3 Wouldn't It Be Better for
Regulators to Monitor Performance
to Ensure Compliance?
Compliance monitoring required by
regulators today is generally around the
clock. It would be prohibitively expensive to
have a government inspector at every plant
24 hours a day, 7 days a week, monitoring
compliance.
It was noted by some participants
that operators are generally motivated to
monitor their own performance. Operators
want to ensure they don't cause environ-
mental harm that may result in legal claims
for damages or adverse publicity affecting
their profitability. Poor environmental per-
formance may also be costly to the opera-
tor because it generates unnecessary
waste disposal costs.
Responsibility for monitoring must
rest with the operator, both in principle and
from a practical viewpoint.
2.4 How Can the Quality of Monitoring
Data Be Assured?
It was agreed that assurance of the
quality of monitoring data is the most diffi-
cult and pressing issue facing both regula-
tors and operators.
The complexity and significance of
environmental monitoring in today's world
is generally underestimated. Countries
have developed their monitoring require-
ments and their quality assurance systems
from their own starting points. However,
where pollutants cross national boundaries
the need for information to be measured
and collected in a transparent way is vital.
Efforts should be geared towards reliable
monitoring as well as principles of good
approaches and standards for monitoring
of industrial emission.
Emissions trading is increasing in
importance. The quality of monitoring data
is critical to make emissions trading
schemes work. The data must be both
accurate and comparable. There is a need
for greater uniformity in the way countries
require monitoring to be done in order for
emissions trading schemes to work across
national boundaries. Emission charges will
affect the future profits of the operator, and
they will demand reliable monitoring of
other operators in the trading scheme. This
must drive the authorities to establish equi-
table measurement and reporting systems
in order to create a level of playing field.
2.5 Approaches Countries Have Used
to Improve the Quality of Data
Provided By Operators
In Australia, the head of the com-
pany (CEO) holding a license is required
each year to: 1) certify that all monitoring
has been carried out in accordance with the
license requirements and 2) identify all
instances of non-compliance with license
requirements. It is a very serious offense by
the CEO personally if he or she does not
certify honestly and correctly. This is con-
sistent with the US approach that carries
out inspections to ensure that operators
have the necessary monitoring systems in
place backed up with the threat of large
fines if they are not. When the Australian
scheme was introduced, there was an
intensive education campaign to ensure
that CEOs understood their obligations. A
surprisingly large number did not. The edu-
cation campaign, backed up with the threat
of personal liability, resulted in a big
improvement in the provision and quality of
monitoring data.
In the European Union, for some
industrial sectors such as large combustion
plants and waste incinerators, there are
very elaborate requirements for the quality
control of continuous emission measure-
ments. The directives set requirements
relating to the uncertainty of the measure-
ments and CEN standard EN 14148 stipu-
lates how measurements and the quality
control must be done. The IPPC directive
stipulates that the environment permit must
specify how the measurements are to be
taken by operators.
Finland has implemented these
requirements in national legislation and
developed electronic procedures to collect
and manage the operator's compliance
monitoring data. The standard method is
that the operator completes a report using
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SUMMARY OF WORKSHOP 1E/F 89
forms available on the Internet. There are 3
kinds of reports: 1) a report of disturbances,
2) a report of exceedance of limit values, 3)
a report of compliance with permit condi-
tions. The first two reports must be sent to
the regulator immediately after the event
has occurred. The third report is only
required to be sent periodically. In addition,
actual fuel usage and emissions to air,
water and waste must be reported to the
regulator.. The inspector receives an elec-
tronic message every time a new report
arrives. The checking of the data is done in
the server that is outside of the regulator's
system and only checked data is moved
inside the regulator's system.
The latest method used in Finland
is for the operator to have its own system
for collecting all necessary data from its
process control systems. The operator's
system calculates results that can be com-
pared to limit values and an operator sends
this information to the regulator periodical-
ly. The regulator must audit not only the
measuring system but also the data collec-
tion and management system to ensure
that the whole system is reliable. This sys-
tem is so far in use in only a few installa-
tions.
The Netherlands has recently
adopted a scheme for accrediting inde-
pendent verifiers to check the quality of
monitoring data used in emission trading
schemes (COa and also NOx).
It was clear from the workshop that
much could be learned from the experi-
ences of other countries.
3 RECOMMENDATIONS FOR INECE
The most pressing need is for a
comparison of:
— The monitoring methodologies for pollu-
tants that cross national boundaries.
— The effectiveness of methods or
schemes used to assure the quality of
the monitoring data provided by opera-
tors. These could include the examples
given above and an examination of
schemes for the accreditation of inde-
pendent verifiers in other fields of regu-
lation.
Also, at the inspector level, there is
a need for a simple checklist to ensure
monitoring for a particular purpose is done
correctly by the operator. This might
already exist in training materials but the
INECE website might provide a simpler
more direct means of accessing it.
I
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90 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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SUMMARY OF WORKSHOP 1G 91
SUMMARY OF WORKSHOP 1G:
GOOD GOVERNANCE AND THE RULE OF LAW
Facilitators: Angela Bularga, Organisation for Economic Co-operation and
Development
Adriana Bianchi, World Bank Institute
Michael Stahl, Environmental Protection Agency, United States
Rapporteur: Matthew Stilwell, Institute for Governance and Sustainable
Development, Geneva
GOALS
To explore the role of good governance and the rule of law in promoting sustain-
able development.
1 INTRODUCTION
The workshop discussions com-
menced with a short introduction by Dr.
Adriana Bianchi, and a round of introduc-
tions by participants. It continued with a
brainstorming session on key issues relat-
ing to good governance, rule of law, and
compliance, which developed into a deeper
discussion on a range of key issues. The
workshop concluded with a summary of
key topics discussed during the session.
The workshop aimed at exploring
concepts of good governance and rule of
law, and their relationship to sustainable
development. The discussion was held
around the following key questions:
— How can the international community
promote good governance?
— How do we move from a situation in
which incentives structures promote cor-
ruption and poor governance towards
one in which we have improved gover-
nance?
— How do we measure whether we are
moving towards this goal?
— What kinds of indicators do we need?
What is the role of indicators in helping
to measure progress, and in moving us
forward?
2 DISCUSSION SUMMARY
2.1 Presentations
Presentations were made to the
group Ms: Angela Bularga and Mr. Michael
Stahl.
2.1.1 Ms. Angela Bularga
The international community can
play an important role in creating a shared
vision of good governance and substantial-
ly contribute towards promotion of good
governance. In this respect, the Organisa-
tion for Economic Co-operation and Devel-
opment (OECD) is at the forefront of efforts
to understand and help governments adopt
good governance - in both its member
countries and non-members.
For example, the OECD has
worked for many years in the former Soviet
Union to improve environmental gover-
nance and policy implementation. For a
long period, the un-transparent and often
corrupt nature of the governance system in
this region made efforts to protect the envi-
ronment difficult. In 1991, the start of a tran-
sition to democratic governance and a mar-
ket economy required a rethinking of the
design and functioning of the whole gover-
nance system. Unfortunately, a decade of
transition did not bring spectacular
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
changes and often accentuated old prob-
lems: the effectiveness of environmental
agencies remains limited, lobbying by pow-
erful groups and individuals for special priv-
ileges is widespread, and rules are not ade-
quately enforced; thus non-compliance is
high. Important factors that nourished non-
compliance were the slow pace of gover-
nance and economic reforms, the compli-
cated legal framework and poor economic
situation, society's failure to believe in fair
regulation, and the erosion of the rule of the
law.
Based on a wealth of experience
accumulated internationally, the OECD pro-
vided support to the countries of Eastern
Europe, Caucasus, and Central Asia
(EECCA) to define direction for regulatory
and institutional reform and elaborate a ref-
erence model of good governance for envi-
ronmental enforcement systems. This
model was reflected in a concise policy
document, called "Guiding Principles for
Reform of Environmental Enforcement
Authorities of EECCA". The Guiding Princi-
ples were developed with active participa-
tion of experts from EECCA and OECD
countries within the framework of the Reg-
ulatory Environmental Programme Imple-
mentation Network (REPIN) and were
endorsed at the Kiev Conference of Envi-
ronmental Ministers (May 2003) from 51
countries. The principles are wide-ranging,
and emphasize, among other things, that
prevention is better than cure; that the reg-
ulated community should be treated fairly;
that government agencies should be
accountable, transparent, and equitable;
and that feasible compliance targets and
objectives should be established.
By endorsing the Guiding Princi-
ples, EECCA countries recognized the
need for reform. The next step was to help
countries to implement the Guiding Princi-
ples. One way to do this was to promote
peer reviews, i.e. systematic examination
and assessment of the performance of a
state by other states, with the ultimate goal
of helping the reviewed country adopt best
practices established in the Guiding Princi-
ples. The REPIN peer review scheme is
intended to serve the following purposes:
— To provide international peer support for
institutional reform of enforcement
authorities;
— To enhance their transparency, account-
ability, and visibility, at national and
international levels;
— To extend opportunities for inter-govern-
ment policy dialogue and support capac-
ity building.
The Ministry of Ecology and Emer-
gency Situations of the Kyrgyz Republic
was the first environmental authority sub-
ject to this scheme. The review suggested
a number of short and longer-term steps for
reform of domestic compliance assurance
instruments, strategies, and institutions.
These steps are closely linked with, and
support, the implementation of the coun-
try's strategic development objective of
adopting a good governance system.
Another major issue that arose
was "how to communicate a message on
good governance in a simple and integrat-
ed manner". To address this issue, OECD
has developed a rating framework that
reflects environmental policy development,
legislative framework, policy instruments
and relevant implementing regulations, and
the institutional framework. The rating
framework offers, first of all, the benefit of
measuring progress in individual countries,
but also can serve to identify where they
are on a scale versus their country peers.
While rating is done based on expert judg-
ment, the transparency of the criteria and
supporting data enable stakeholders to ver-
ify the ratings.
2.1.2 Mr. Michael Stahl
Indicators play a key role in making
progress towards good governance and
the rule of law, and in demonstrating
progress to others. Indicators demonstrate
things like: the presence or absence of
phenomena; whether they are increasing
or decreasing; whether targets and goals
are being met; and if not, how far away suc-
cess is.
Indicators can help to strengthen-
ing public participation. Whether compli-
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SUMMARY OF WORKSHOP 1G 93
ance programs are working needs to be
established and shared with the public.
Indicators are also good at helping to man-
age and improve environmental compli-
ance and enforcement programs. Yet many
government bodies are not yet using them
for this goal. Rather, they are mostly using
them to measure progress, instead of tak-
ing the next step of systematically manag-
ing and improving programs.
As we look at what kinds of indica-
tors to establish, we should be careful
about not only measuring outcomes and
results. We want indicators that speak to
outcomes, but we also need to measure
the kinds and levels of activity in a pro-
gram. We should not simply focus on the
improvements in air quality without meas-
uring what we are doing to get there. That
is, we should measure outputs and out-
comes.
2.2 Brainstorming
During the brainstorming session,
a diverse range of issues arose. The main
points are set out below, organized around
the main themes of the discussion:
?
2.2.1 Good governance and the rule
of law
— Do we all have the same conception of
the rule of law? We have different back-
grounds, so do we share a common per-
spective?
— The rule of law includes a number of ele-
ments. Rules must be developed pub-
licly and promulgated widely. They must
be applied equally, fairly, and pre-
dictably. They must be applied to all
actors including the government.
— Understanding the rule of law requires
understanding what the law is. Some
issues are regulated, but others are not.
So the law does not cover all relevant
activities. The tendency of agencies to
get monies from regulation may cause
them to focus more on those industries
that provide them with resources than
others.
2.2.2 Strengthening compliance and
enforcement
— In countries where we see good envi-
ronmental compliance, we may also
expect to see good governance in other
fields. Environmental officials have often
been at the forefront of improving com-
pliance, the rule of law, and good gover-
nance. Their experiences may be
instructive for other communities.
— The OECD principles emphasis the
need for independence of officials from
public and political pressure, yet this
may be difficult to achieve in practice.
For example, the key indicator of per-
formance for many enforcement agen-
cies in EECCA is how many claims they
make, and how much they earn from
fines and penalties. Yet these incentives
may cause agencies to ignore industries
that do not generate fines, and, in some
cases, to focus perversely on tolerating
higher levels of pollution to provide more
resources to the government.
— In strengthening compliance and
enforcement, education is a crucial ele-
ment Public opinion, too, is often criti-
cal. Yet public opinion is not always sup-
portive of environmental protection.
Public opinion may also affect elected
representatives in government, who
may influence enforcement activities. To
what extent should regulatory agencies
be independent of political pressure and
public opinion?
2.2.3 The role of indicators
— What is the role of indicators, and how
can we make valid comparisons across
different countries and contexts? Envi-
ronmental enforcement and compliance
indicators are one good tool for promot-
ing good governance. Participation indi-
cators are also important in securing
access to information, participation, and
justice.
— At the same time, major challenges
arise when we pick the elements indica-
tors will cover, and seek to compare
across these different elements. We
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
should acknowledge problems with our
institutions, and note that indicators and
other tools may also give rise to
renewed pressure - political and other-
wise - on our agencies.
— How can Environmental Compliance
and Enforcement (ECE) indicators be
better used to measure and promote
good governance? A presence of a
robust environmental compliance and
enforcement program indicates a ten-
dency towards good governance. It is at
least one factor in demonstrating a
move towards the rule of law and good
governance.
2.2.4 Developing a broader "tool kit"
— As well as focusing on indicators,
enforcement officials also need to think
of the other elements in the tool kit. One
is peer review, which provides a good
way to improve the management and
performance of environmental agencies.
Another is enforcement and compliance
strategies and policies, which provide a
tool for use by all members in society to
evaluate government performance. A
third is the extent to which laws or direc-
tives provide for sufficient delegation of
authority. From experience in some
developing countries, the less authority
is delegated, the more likely is the con-
sideration of inappropriate factors. Dele-
gation protects the officer from harass-
ment. The challenge is to build indica-
tors to measure good governance, and
how to tie these into the elements of a
broader toolkit.
2.2.5 The role of the judiciary
— In Canada, environmental laws reflect
the expectation that everyone will obey
the law - individuals, firms, and govern-
ment. National laws bind provincial gov-
ernments and their officers. More broad-
ly, independence of the bureaucracy, the
judiciary, and other officers is essential.
The judiciary must be seen as being
able to limit the power of the state, not
merely as an officer of the state. How
are the courts perceived in developing
countries?
In the Philippines, the Supreme Court is
seen as an honorable institution - sup-
porting positive public perceptions of the
rule of law. At the lower levels, however,
there are more significant problems of
corruption, deriving from the often close
relationship between judges and other
actors. Judicial reform, along with new
programs being implemented, is
enhancing the ethical standards and
performance of the judiciary.
In Argentina, the president has promul-
gated a degree including a system of
transparency in judicial affairs. The
impeachment of three members of the
Supreme Court followed this decree.
This has strengthened the judiciary and
improved its standing in the public. Nev-
ertheless, Argentina still lacks a tradition
of judicial independence. So further
work on access to justice is required.
Indicators provide a good tool in this
effort.
The mandate of some international
organizations is often to work with
Supreme Courts, yet the level of corrup-
tion may be high, making it difficult to
promote judicial reform. The need,
therefore, is often to work with other
more independent actors in society,
including civil society and key actors in
the regulated community. In one coun-
try, there is movement to develop a
"green bench" to address environmental
issues.
The situation in developing
countries
Developing countries often face particu-
lar challenges in securing compliance.
Effective policy work requires communi-
cating effectively with senior and elected
officials. In developing countries, the
audience is often local enforcers who
would do more if they had the resources
and capacity. We should support these
people.
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SUMMARY OF WORKSHOP 1G 95
— At the same time, these people often
remain in place, while the more senior
officials often change. Part of our chal-
lenge then is how to change the culture
of senior bureaucracies. The problems
are often practical. Peer to peer work is
also critical - it provides a good way of
putting enforcement officials or judges
from different jurisdictions together to
learn and share experiences.
— Developing countries often lack a cul-
ture of accountability. But changing the
culture of officials is a long task. A
sounder approach, therefore, is to focus
on empowering the people to know,
understand, and enforce the laws. Edu-
cating people about their rights, and
helping them to demand good gover-
nance, is essential. Participatory gover-
nance mechanisms may exist but are
underutilized.
— The gap in resources available to offi-
cials in developed and developing coun-
tries is profound. In many developing
countries, resources for compliance offi-
cials are woefully inadequate. For
instance, officials may have too few
resources to even visit the facilities they
are supposed to regulate. We need to
close this gap. We must also correct the
perverse incentives that create perverse
outcomes. In correcting these, at the
same time, we must ensure we do not
rob the agency of a key source of their
income, or otherwise downgrade their
status. If agencies lack resources, how
do they ensure that they can apply the
law fairly to all in the regulated commu-
nity?
2.2.7 Other challenges
— One challenge is to focus on concrete
projects to strengthen compliance, while
keeping in mind broader goals such as
the rule of law. The role of each of the
three branches of government is impor-
tant. Citizen groups can help public
authorities to enforce the law. We need
to think about how to develop mecha-
nisms that will persist in time so that
they preserve the rule of law over the
longer term.
— There is a shift from supporting interna-
tional exchanges and environment,
towards "good governance". Our chal-
lenge is to show that our business is an
important aspect of good governance.
Our field thus provides a great test case
of successes and problems. We have to
play a leading role in demonstrating that
we can help to promote good gover-
nance. We need to form a partnership
and develop a strategy to promote this
goal, and to secure the resources to
showcase our work, strengthen gover-
nance, and continue our present and
new activities.
3 CONCLUSION
These discussions are particularly
pertinent to the goal of this conference and
of INECE. The workshop covered a range
of issues relating to governance, the rule of
law, and compliance. The following are par-
ticularly pertinent:
— We discussed the notion of good gover-
nance, and acknowledged its main com-
ponents - including cost-effectiveness,
accountability, and transparency.
— Yet we do not necessarily have a clear
and operational definition. The OECD
guidelines provide an important step in
this direction.
— Peer review provides a good vehicle for
strengthening compliance, rule of law,
and good governance.
— Accountability must also be better insti-
tutionalized, as it has in some cases
with transparency.
— Different resource levels and the inde-
pendence of officials and judiciary must
also be ensured.
— Authorities' awareness of accountability
must be strengthened.
— How do we educate for change? We
need to strengthen efforts to raise
awareness and build a group of people
who support our work.
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96 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
— We also had suggestions to develop — Resources for enforcement and compli-
broader toolkits and to see how indica- ance must be adequate. How can we
tors work in the context of a broader set ensure adequate resources are avail-
of tools. able?
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SUMMARY OF WORKSHOP 1H 97
SUMMARY OF WORKSHOP 1H:
COMMUNICATIONS POLICY AND PRACTICE
Facilitators: John Cruden, Environment and Natural Resources Division, Department
of Justice, United States
Krystyna Panek-Gondek, Inspectorate for Environmental Protection,
Poland
Rapporteur: Meredith Reeves, INECE Secretariat
GOALS
To give participants the opportunity to discuss how their organizations use effec-
tive communications to promote or advance environmental compliance and enforcement.
1 INTRODUCTION
The facilitators opened the work-
shop by stating that, in the context of this
workshop, the term "effective communica-
tions" means communications that promote
or advance environmental compliance and
enforcement.
For a person working to communi-
cate information about compliance and
enforcement activities, there are three main
groups of target audiences. The first is civil
society, including the public, non-govern-
mental organizations, and the media; the
second is the regulated community; and
the third is government agencies and relat-
ed authorities.
Furthermore, regardless of the
intent of your communications strategy,
information is only as good as far as your
audience understands it and can use it.
Therefore, education and training should
be an essential component of effective
communications.
2 DISCUSSION SUMMARY
Ms. Krystyna Panek-Gondek
began the discussion by describing
Poland's experience with its innovative "List
of 80" program, which makes public the
names of the country's 80 worst polluting
companies. The List is also used by the
environment agency to target inspections
and enforcement actions towards the worst
polluters.
The List sent the message that the
worst polluters are the focus of the Inspec-
torate's interest, and enterprise got the
message that government and the public
are in control. The List created public legit-
imacy for enforcement, as well as public
support for the program.
Companies are included on the
List based on the following criteria: (1) how
many times the emitted pollutants exceed
the allowed limits, (2) the degree of con-
centration of the pollution; and (3) the loca-
tion of the plant and the range of its
adverse effects. A company can be
removed from the list if it meets and main-
tains the terms and conditions established
by its ecological permit.
Mr. John Cruden brought the par-
ticipants back to the three target audience
groups, by pointing out that what you say
depends greatly on which of the three audi-
ences you are targeting - for each, you
need a separate communications plan.
Mr. Cruden went on to describe the
relationship between the United States
Department of Justice (U.S. DOJ) and
companies. When a company settles litiga-
tion with Justice following an environmental
dispute, the company agrees to take some
action, e.g., to meet environmental stan-
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
dards or clean up pollution. U.S. DOJ
invites civil society to comment on the set-
tlement by posting a public notice and pro-
viding a 30-day comment period.
2.1 Why Is It Necessary To
Communicate With Civil Society?
The workshop participants devel-
oped a list of reasons of why it is important
to communicate with civil society (the pub-
lic, NGOs, and the media), including:
— to raise public awareness;
—to educate the public about new laws and
provisions;
—to make the public understand what
enforcement agencies are doing;
—to obtain legitimacy for enforcement
actions;
—to deliver to nongovernmental organiza-
tions (NGOs) and media information nec-
essary to trigger supportive action;
—to prove that enforcement agencies work
efficiently and spend public funds in an
appropriate way;
—to involve people in the decisionmaking
process;
—to create public support that influences
government, parliaments, and interna-
tional organizations.
Ms. Brenda Brito (Imazon, a Brazil-
ian NGO) and Mr. Kenneth Cook (Environ-
mental Working Group, a Washington,
D.C., "think tank with an attitude") both
made the point that non-governmental
organizations can play a key role in trans-
lating governmental records and data into
useful public information.
Ms. Brito discussed Imazon's
experience with researching the effective-
ness of criminal law on illegal logging. Two
central challenges to the project have been
(1) the difficulty of obtaining data on judicial
decisions and (2) the difficulty in finding
alleged violators due to the length of time it
takes to prosecute a case.
Ms. Brito described how danger-
ous the work of the NGO can be, particular-
ly in terms of giving tips to the government
about illegal logging activities. Imazon tries
to work with the "help" of the loggers. The
Brazilian government does not know any-
thing about the number of loggers, where
the permit boundaries are, or what is per-
missible to take. In many cases, it is easier
to get information from the loggers. Imazon
does not ask direct questions about illegal
activities, and considers itself to be more of
a think tank than an active participant in
prosecution.
Ms. Brito described Imazon's use
of "policy briefs" to communicate to policy
makers and the public about illegal logging.
Imazon is also exploring the use of the
Internet in communicating to its target audi-
ences; although the World Resource Insti-
tute's Global Forests Initiative posts Ima-
zon policy briefs and news stories, Imazon
is currently planning a Web site on "The
State of Amazonia".
Mr. Kenneth Cook discussed Envi-
ronmental Working Group's (EWG) use of
information from the US government (fre-
quently obtained through Freedom of Infor-
mation Act ("FOIA") requests), along with
discovery evidence from tort actions, and
original laboratory tests and other
research, to inform the public and the
media about threats to human health and
the environment. EWG is unique in that it
has made an equal investment in its media
staff and its research staff, and selects proj-
ects based on their appeal to the media.
Mr. Cook emphasized that it is very impor-
tant for NGOs to have both external and
internal communications. Internal commu-
nications include sharing exciting news
regularly with funders.
Mr. Jonathan Allotey (Environmen-
tal Protection Agency, Ghana) and Mr.
Mohamed Ben Hassine (Tunisia) described
their countries' efforts to involve the public
in environmental decision-making, includ-
ing through the Environmental Impact
Assessment process. Both countries invite
public comments and input on the scoping
process, as well as on the draft impact
statements. The opportunity for comments
and feedback often can result in the public
supporting the ultimate outcome of the
impact assessment process.
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SUMMARY OF WORKSHOP 1H 99
2.2 Why Is It Necessary To
Communicate With Regulated
Communities (Both Enterprises
And Authorities Responsible For
Implementation Of The Law)?
Participants' suggestions on the
reasons it is important to communicate with
the regulated community included:
—to educate the regulated community
about new provisions;
—to promote best practices;
—to involve both enterprises and responsi-
ble authorities in the regulatory chain;
—to establish cooperation among different
compliance and enforcement bodies
(vertically and horizontally);
—to optimize the practice and implementa-
tion of environmental policy.
2.3 Why Is It Necessary To
Communicate With Government
Organizations, International
Bodies, And Regional Groups?
Participants' ideas on the reasons
to communicate with governmental organi-
zations, international bodies, and regional
groups included:
—to prove the effectiveness of inspection
work (in the scope of compliance and
enforcement);
—to check if the objectives established in
environmental policies are being met;
—to prove good performance among
organizations.
Mr. Allotey and Mrs. Mihaela Beu
(Regional Chief Commissar, Romania)
described the role of training workshops in
communicating with the regulated commu-
nity and with government inspectors. Mr.
Allotey described the training workshops
held in Ghana to introduce companies to
new rules and requirements. Mrs. Beu dis-
cussed how, in Romania, the government
works hard to communicate with the regu-
lated community to achieve compliance.
The government shares the enforcement
resource allocation plan with the regulated
community, which details how many
resources are involved in promoting com-
pliance and how many resources are dedi-
cated to enforcement activities.
2.4 How Should Communication
Be Done?
Participants also described meth-
ods that resulted in effective communica-
tions. Participants agreed that the three
main criteria for effective communications
were that they be (1) comprehensive and
comprehensible, (2) open/transparent, and
(3) an honest representation of the event or
activity.
The communications should also
be shaped to the needs of the recipient. In
describing the challenges faced by the
United Nations Environment Programme's
(UNEP's) regional environmental compli-
ance and enforcement officers, Mr. Jim
Curlin (an Information Officer at UNEP's
Division of Technology, Industry and Eco-
nomics) noted that in most developing
countries, the Internet has limited reach,
and that it is critical to modify communica-
tions policies in response to each country's
social context, and to utilize appropriate
media, including radio, television, banners
in the marketplace, and other methods. Mr.
Allotey commented that pamphlets and
brochures (which may need to be pictorial
and/or in the local language) are also
appropriate communications tools. Ms.
Meredith Reeves (INECE Secretariat)
briefly described the role of Environmental
Compliance and Enforcement Indicators as
tools for communicating complex informa-
tion in a straight-forward, easily-understood
manner. Mr. Kenneth Cook added that it is
critical to the success of the communication
effort to not allow much time to pass
between discovery and sharing the
announcement, and to have a media plan
in front of the research.
Mr. Matthew Cooper (an independ-
ent environmental media consultant)
described the role of storytelling in effective
communications. Mr. Cooper noted that
when a message is presented in a human
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
context (e.g., through a story that relates
directly to a real situation), it is more likely
to be understood and received by the
intended audience.
Mr. Allotey described the use of
public award programs to companies that
put in the effort to clean up their activities.
Ghana's EPA uses a rating scale of Red
(non-compliance), Green (operating in
compliance), and Gold (achieved compli-
ance) to share information about the envi-
ronmental performance of companies in
the mining and manufacturing sectors. Mr.
Allotey also said that, in Ghana, the EPA
communicates directly with the press and
responds to press inquires on the position
of the government on issues.
Ms. Francesca Di Cosmo dis-
cussed the US Environmental Protection
Agency's seven rules for risk communica-
tions, noting that the rules apply to environ-
mental compliance and enforcement com-
munications as well. The rules are:
1. Accept and involve the public as a part-
ner.
2. Plan carefully and evaluate your efforts.
3. Listen to the public's specific concerns.
4. Be honest, frank, and open.
5. Work with other credible sources.
6. Meet the needs of the media.
7. Speak clearly and with compassion.
Ms. Di Cosmo continued by
emphasizing the importance of under-
standing the target audience for any com-
munication effort, and of understanding
your own message before sharing it with
others. Ms. Di Cosmo noted that it was
important to communicate the basic mes-
sage clearly, without using confusing termi-
nology or jargon.
Participants in the workshop
agreed that there is a need for elaborating
communications strategies for every target
audience.
3 RECOMMENDATIONS FOR INECE
—Develop a communications strategy,
which could be based on a survey of best
practices from around the world. By
extension, participants recommended
that INECE collect and promote strate-
gies for developing messages to the
three groups of target audiences.
—Look at ways that environmental compli-
ance and enforcement indicators can be
used as a tool to communicate mes-
sages about effective enforcement activ-
ities to diverse audiences in a clear and
concise manner.
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SUMMARY OF WORKSHOP 11 101
SUMMARY OF WORKSHOP 11: CITIZEN PARTICPATION IN
ENVIRONMENTAL ENFORCEMENT
Facilitators: Georges Kremlis, European Commission
Katia Opalka, Commission for Environmental Cooperation
Romina Picolotti, Center for Human Rights and Environment, Argentina
Barry Hill, Environmental Protection Agency, United States
Rapporteur: Dorine Hornung, Ministry of Housing, Spatial Planning and the
Environment (VROM), The Netherlands
GOALS
— To explore citizens' access to environmental data - both public and private - from the
1966 U.S. Freedom of Information Act to the 1998 UN/ECE Aarhus Convention
— To explore the role that citizens play in the enforcement process once access to envi-
ronmental data is granted
1 INTRODUCTION
The first part of the workshop is
devoted to information disclosure to the
public, the second part of the workshop
examines how this theme is reflected in
actions by citizens groups and in laws that
seek to more directly involve citizens in the
enforcement of environmental laws through
citizen suits, reporting of alleged violations
to the government, etc.
The basic questions presented by
the facilitators were:
— What are the successes and the prob-
lems involving citizens' participation?
— What does "meaningful" mean when we
speak about meaningful citizen involve-
ment?
— What are the rights that the citizens and
the nongovernmental organizations
(NGOs) have?
2 DISCUSSION SUMMARY
Prior to the discussion, the key ele-
ments of citizen and nongovernmental
organization participation were set. These
are:
— Access to information
— Right to participation
— Access to justice
Katia Opalka opened the workshop
discussion with an interesting presentation
about citizens' involvement in Canada. She
explained what routes citizens and NGOs
in her country can take and what the Cana-
dian system is for access to information for
citizens and NGOs. For example, citizens
can launch private prosecutions. Citizens
and NGOs can ask the minister for an
investigation, and if the government does
not meet the request to their satisfaction,
they can go to court. This allows citizens to
monitor environmental issues. In addition
to this, Canada has an online network - the
Canadian Environmental Network - which
invites people and NGOs to participate.
The politicians rely on the NGOs as speak-
ers for the citizens. There is also a system
for investigation of complaints made by cit-
izens.
Following this example of a gov-
ernment that really involves citizens and
NGOs, the situation in Latin America was
shared with the participants by Romina
Picolotti. Usually, the possibility for citizens
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
to participate is based upon the right of
information. In Latin America, this cannot
be explained without mentioning the his-
toric civil rights situation. Democracy is also
the right to know what is happening. But
only since a couple of years ago has there
been an environmental movement that
supplies information. Today, in some Latin
American countries, there is a 'right to infor-
mation act' but this does not apply to all.
Even when an act is available, government
officials are still not sharing information
easily. When information is requested, it is
shared as a favor rather then as a
response to a right. And even when the
government is willing to share, the data
may not be accessible; for example, files
may be on the floor, or data systems may
be absent. If the government does not
share the information, the NGOs would
rather accuse them of violating the human
rights act rather then the right to get infor-
mation based on the right of access to envi-
ronmental information. This is because the
government is probably more willing to
share information if accused of violating
human rights. One problem in using this
approach is that in Argentina, NGOs have
no human rights.
After these two presentations, an
interesting discussion was held, sharing
experiences. The different remarks made
or key points stated are listed below. For a
good understanding of the discussion, it is
noted that most of the participants were
representing NGOs.
— It should be kept in mind that providing
information costs the government a lot
of time and effort (for example, they may
not be able to afford the costs of making
photocopies), and there should be a
feeling that the government benefits
from it, because otherwise authorities
see only the risk that they will be sued
constantly.
— Public participation should enable citi-
zens to make their views known, to
ensure compliance with environmental
laws and the precautionary principle.
— Citizens and NGOs should have access
to justice to support access to informa-
tion, to participation, and to courts.
— Meaningful public participation would
require all relevant environmental infor-
mation to be made available and the
views of the public to be taken into con-
sideration to the extent possible.
In addition to these key points the
following remarks were also made. These
remarks are listed in no particular order:
— 'Meaningful information' means getting
general information as well as specific
information. And it should not only mean
sharing information, but also giving
rights to control discussions and then
the right to appeal. In Austria, in the
case of public participation in certain
dossiers, they are handled differently,
with more care, by the government.
— A participant stated that access to infor-
mation is linked to access to justice. This
means the government actively supply-
ing information, not only on request,
such as access via databases. When
the information is shared, such as via
the Internet, it will actually pay itself
back.
— A participant from an NGO said that
sometimes information is held back, or
the opposite may occur: they give too
much so it is difficult to understand. It
was also stated that governments are in
some cases only sharing technical infor-
mation, which the public does not under-
stand.
— Website access is not in all cases and/or
for all countries enough for sharing infor-
mation. This is because not all people
have access.
— If the government uses the possibilities
mentioned in the Aarhus Convention, it
will be easier for them to reach the peo-
ple. Citizens are sometimes surprised of
the possibilities they have. The govern-
ment's role should be more than just
supplying technical data.
— Without providing information to the
people, it is impossible to give people
awareness. In the Ukraine, they are
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SUMMARY OF WORKSHOP 11 103
encouraging people to get access to
information. NGOs can go to court now,
but citizens cannot do this yet. In front of
the court, the government once stated
that it did not want to share all the docu-
mentation because it was secret. But
the court said that they had to share
because otherwise they would violate
the convention.
It is very different in Africa: 'you are just
lucky getting information'. A participant
from an NGO said that it was sensed
that the government sees NGOs only as
troublemakers. It has to be said that
there is not much money available to
share information.
A problem is that not all state bodies are
trained properly about the possibilities of
the Aarhus Convention and its imple-
mentation. It was also stated that envi-
ronmental democracy cannot be built
from one day to another and sometimes
the NGOs want more than what the gov-
ernments are ready for. It is not always
a matter of willingness; it takes time, and
th'e governments need to build this
capacity.
Governments should keep in mind that
citizens' complaints are the eyes and
ears that enable the effectiveness of the
environmental laws.
— Governments often see industries as
partners, but they should see NGOs as
beneficial partners as well.
3 RECOMMENDATIONS FOR INECE
— Strengthening governmental commit-
ments and public support for regional
agreements, making them spread world-
wide.
— Presenting training workshops on inno-
vative tools for meaningful public partic-
ipation, which should be for NGOs
together with regulators.
— Developing a strategy for establishing
guidelines for meaningful participation.
— Making an effort to develop databases
and other ways of providing information
to the public, e.g., by sharing best prac-
tices.
— Sharing success stories and the way
that they were used.
— Promoting that human rights (e.g., to life
or health) relate to environmental rights.
— Mentioning to governments that infor-
mation given by NGOs and the public
should be used, to get the advantage of
the participation.
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104 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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WORKSHOP SESSION 2A 105
WORKSHOP SESSION 2A
Environmental Compliance and Enforcement Indicators: Getting Started
Representatives from Argentina, Austria, Canada, Costa Rica, the United States,
and others from the INECE Expert Working Group on Indicators led a series of workshops
that introduced the concept of environmental compliance and enforcement (ECE) indica-
tors and discussed basic components of program design and implementation. Drawing
from the experiences of the workshop leaders, the workshops provided guidance to prac-
titioners for identifying, implementing, and using ECE indicators and discussed issues such
as costs, lessons learned, and the values, benefits, and need for ECE indicators.
2A ECE Indicators: Getting Started
A1 Facilitators: Dave Pascoe, Environment Canada
Angela Bularga, Organisation for Economic Co-operation
and Development
A2 Facilitators: Michael Stahl, Environmental Protection Agency,
United States
Waltraud Petek, Federal Ministry of Environment, Austria
\ A3/A4 Facilitators: Maria Di Paola, Fundacion Ambiente y Recursos
Naturales, Argentina
Jose Pablo Gonzalez, Office of the Attorney General,
Costa Rica
Myriam Linster, Organisation for Economic Co-operation
and Development
Kenneth Markowitz, INECE Secretariat
Report Out from Workshop Session 2A
Moderator: Michael LeRoy-Dyson, Auckland Regional Council,
New Zealand
In the following pages, the reports of these workshops are presented.
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106 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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SUMMARY OF WORKSHOP 2A1 107
SUMMARY OF WORKSHOP 2A1: ENVIRONMENTAL COMPLIANCE
AND ENFORCEMENT INDICATORS: GETTING STARTED
Facilitators: Dave Pascoe, Environment Canada
Angela Bularga, Organisation for Economic Co-operation
and Development
Rapporteur: Davis Jones, Environmental Protection Agency, United States
GOALS
To strengthen capacity to measure and manage the effectiveness of the partici-
pants' compliance assurance and enforcement activities by launching new environmental
compliance and enforcement (ECE) indicator pilot projects.
1 INTRODUCTION
The facilitators began by raising
two key questions to help focus the discus-
sion.
1. What are the challenges to starting ECE
indicator pilot projects?
2. How can INECE help?
The difficulties with result-oriented
measures should not dissuade programs
from beginning to measure environmental
outcomes in more limited ways. Output
indicators with measures such as inspec-
tion numbers or the number of regulated
entities are a necessary component of indi-
cator systems, despite their limits in show-
ing the environmental results. However,
even though the data may be difficult to col-
lect and manage, limited outcomes meas-
ures should be sought. Agencies should
not be afraid to make mistakes; they should
be encouraged to be creative and to exper-
iment with indicators. Care must be taken
not to create measures that create per-
verse incentives, such as increasing the
number of insignificant inspections or
cases to show greater activity, or by indicat-
ing the lack of violations as a success
rather than as an indication that compli-
ance 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 expecta-
tions of the programs and may help explain
why regulators act as they do towards the
public and other stakeholders, who may
have other expectations.
INECE could play a key role in the
following areas:
— Working with Regional Networks to pro-
mote global use of ECE indicators and
continue to promote the issue to help
the networks connect with funders.
— Sharing information between countries
and standardizing definitions and termi-
nology to develop a common language
on the subject.
— Develop training and guidance on the
development and use of basic compo-
nents, including some specific indicators
with which they can begin.
2 DISCUSSION SUMMARY
Several countries have begun to
measure performance and outcomes in dif-
ferent ways, and have different experi-
ences in developing environmental compli-
ance and enforcement indicator programs.
Mr. Dave Pascoe began by relating his
experience in Canada as they developed a
performance measurement system. They
began by choosing only a selected number
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
of indicators from a menu referenced in a
larger list of measures (from the INECE
publication "Performance Measurement
Guidance for Compliance and Enforcement
Practitioners"). The biggest lesson learned
was that in a pilot, you should not discount
any indicators, even if you only begin with a
more limited set. If some measures do not
work, it is acceptable to make mistakes and
then discard a particular measure, but pro-
grams should not begin a pilot by leaving
anything out of future consideration.
Many countries have advanced
systems, which may rely on the internet or
other tools, to collect and publish informa-
tion on environmental releases and activi-
ties, such as timely and appropriate
response to violations or other activities.
These systems may do a great job of cap-
turing data, but often do a poor job at
measuring performance and results. Differ-
ences in performance of industry toward
compliance or effluent releases are not
always adequately linked to environmental
performance such as stream quality.
In The Netherlands, a new law
requires yearly environmental data reports
for public release from the environmental
authority. The decree described criteria for
data and presentation of information to
ensure adequacy of the data presented to
the public. Information was in two parts:
1. Effect of pollution on surrounding area
around plant.
2. Information about monitoring system
and data management system.
For some items, such as methane,
polluters can calculate the exact emissions,
but for some other pollutants such as fugi-
tive benzene, it can be much harder to
directly measure. Therefore, the authorities
had to establish uniform data collection
methods and reporting mechanisms. They
also had to get agreement on responsibili-
ties of government and industry regarding
data systems.
The development of indicators
must not be done too much in isolation of
other parts of the compliance monitoring.
Some well-meaning indicators can create
perverse incentives, if not done with a
wider perspective. For example, indicators
that compare the work of subnational units
can create motivation for units to perform to
meet the measure, rather than to perform
to meet the ultimate goal of the measure,
leading to inadequate or incomplete com-
pliance.
Finland first investigated process-
es and how they work, and then developed
measures on work outputs and schedules
to show how work proceeds. The develop-
ment of indicators should go hand in hand
with development of work processes to
improve work flow and efficiencies. Indica-
tors should help to put work in positive light
and should not be designed as a method to
criticize. Program evaluation should be
designed to improve programs, not to justi-
fy tearing them apart or eliminating pro-
grams that do not adequately fit the meas-
ures.
The INECE Internet forum on indi-
cators highlighted a system to capture key
data from inspection reports. The goal of
the system is to take all the necessary data
for the indicators from inspection reports,
rather than requesting more data from the
inspectors or additional forms for inspec-
tors to complete. Inspectors already have
too much work to add additional data col-
lection or reporting demands.
The goal of indicator systems is to
measure the effectiveness of compliance
work. In Canada they broke the indicators
into two parts. The first measure is compli-
ance with the rules and outputs such as the
amount of fines, the number of inspections,
and the number of cases. It is fairly easy to
report and collect information of this type,
and to measure the effectiveness of indus-
try compliance. However, it requires a small
leap of faith to believe that compliance will
reach the goals of the rules. But, if there
are limited resources, this may be enough.
The second measure is the efficacy of the
rules. It can be very difficult to figure out if
rules themselves are working, but we can
assume that if people not following rules, it
is impossible for the rules to reach the
expected outcomes. Once compliance
occurs, then we can measure the out-
comes and ultimate results.
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SUMMARY OF WORKSHOP 2A1 109
In one pilot, Canada first started an
initiative with measurement of things like
awareness of the environmental obliga-
tions. They then did one year of compliance
promotion to the targeted industrial sector.
Awareness went up to 70 - 80%. They then
measured targeted enforcement, and sub-
sequently found 90 - 95% compliance. The
dual track measurement helped them see if
they could measure the effects of compli-
ance promotion vs. enforcement, and
showed that both tools are most effective
when used together. It required some trial
and error on which indicator worked, but
better results occurred when different indi-
cators were tested.
Indicators should be designed and
used to define compliance and enforce-
ment strategies and allocate resources to
best achieve goals. Define the baseline
indicator, measure the current state, then
perform the activity and see if it worked.
Many countries start work before they have
measures and do not know how to ade-
quately direct the resources in the most
productive way.
Indicator programs should not be
created just for the measures, but they
must be a planning and management tool
to learn about the effectiveness of work, not
just to measure.
Some of the perverse incentives
are evident in Russia. Large countries do
not have nearly as many inspections per
facility as smaller countries. In Russia, and
many other countries, inspectors can not
revisit facilities unless a violation is found,
so inspectors may invent a violation so they
can come back to a facility later to continue
to review areas they may not have com-
pletely covered the first time. Another per-
verse indicator is created when penalties
add to the inspectorate's funding and budg-
et, creating motivation for higher fines
rather than environmental improvements.
Many areas do not set objectives correctly
because of other causes or influences.
An indicator is defined as an
expectation for a particular result. When
dealing with the public, experience has
shown that the best indicators are found
when everyone with expectations in that
area are consulted, including governments,
auditors, nongovernmental organizations
(NGOs), treasuries, the public, etc. Whose
expectations are being met? Information
used to explain enforcement may not be
the same as the information needed to
evaluate the effectiveness of the enforce-
ment, but both are important. Are indicators
created by the agency or imposed from out-
side? It is all about "effectiveness", and
effectiveness is in the eye of the beholder.
That is, what governments consider a suc-
cess may not be viewed as such by the
public. Indicators are an important source
of information on expectations of law
enforcement. It is important to know what
the public expects, and to understand that
it does not always match what the agency
is doing based on law, budget, or agency
priorities. It is crucial to help define what
the public wants, and whether law enforce-
ment can deliver on those expectations.
The hierarchy of preferred indica-
tors often depends on resources and the
ability to collect measures. Activity is an
important and indispensable indicator. We
need activity levels to compare to results to
show what we have done with our time and
resources. But we also have to look at the
entire compliance continuum and compli-
ance strategy. We need to look at the full
spectrum of activities and see which is
effective in which parts of the continuum.
When you look at what you are going to
measure, you should also look at the deter-
rent value of "presence", even when viola-
tions are not found and there is no other
direct result from an inspection or other
activity. Ideally, all parts of the continuum
should be measured, but this may be unre-
alistic.
One problem with enforcement
indicators based on ambient environmental
conditions comes from externalities such as
transboundary pollution. Do you want to be
responsible for quality of environment when
some effects are beyond national control?
We must "think globally, act locally". Compli-
ance and enforcement programs can only
be responsible for national law. Domestic
programs can not monitor a multi-national
company's activities in other countries.
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Perhaps this is one way INECE
can help? How can we ensure that indica-
tors toward one company in one country
are applied equally in others? Different
national programs should work together to
try to make multi-national corporations
globally accountable. There is someone at
the top of every company that is responsi-
ble, how can we get to them?
Some countries have tried to
develop indicator programs, but because of
the lack of funding or internal capacity, they
have not finished or implemented the
required indicators. Can INECE help create
mechanisms where donors and requesting
countries could come together? INECE can
help build networks and push the ideas
through regional networks. Donors may be
able to help networks work regionally better
than individual countries.
Countries are asking about the
basic elements of indicator programs, and
asking for guidance on what to do and what
indicators they should use, not on how to
develop measurement systems them-
selves. But if we create a system for them
instead of helping them learn to develop
their own, the efforts may not be sustain-
able. INECE should develop training on the
benefits of indicators and why they are use-
ful, then how to develop a system so coun-
tries are better equipped to work out their
own measures in a consistent way.
There is a success story from Nor-
way where they worked with three coun-
tries in southern Africa on how to establish
an environmental department, and worked
specifically on inspections and enforce-
ment. All three new departments have been
successful. This was a result not just of one
or two courses, but rather a longer term
engagement with back-and-forth visits and
intensive capacity building. Any type of sus-
tainable capacity building, particularly on
long-term subjects such as indicators,
requires a long-term commitment.
The OECD is initiating a similar
project in Kazakhstan. In some cases,
there may be a possible bilateral agree-
ment for help, and environmental programs
may want to cooperate under that frame-
work. In other situations, regions may pre-
fer to deal with an outside broker such as
INECE or other international organizations.
INECE has successfully connected
funders with issues in a couple of
instances. In Southeast Asia, INECE has
connected funders from the United States -
Asia Environmental Partnership (USAEP)
and the Asia Development Bank with
experts in the US EPA, the OECD, and
elsewhere and will be holding a regional
workshop on enforcement indicators in
August in Manila. Another example exists
in Central America where the Central Amer-
ica Commission for the Environment and
Development is working with funding from
the US Agency for International Develop-
ment (USAID) and experts through INECE
to start indicator pilot projects in the region.
Russia presents an example of
performance-based budgeting that is forc-
ing them to rethink their indicators. There
are requirements in the law that the govern-
ment must report their results to the public,
so they are working to strengthen their
measurement systems. Currently, they
have a great deal of data, but it is not effec-
tively used. They have collected data for
the public "State of Environment" report,
but do not think about trends, visible dis-
play of data, and long-term analysis.
3 RECOMMENDATIONS FOR INECE
INECE could try to develop a tool
or guidance with learning lessons on devel-
oping and using indicators, particularly on
how to creatively develop and use informa-
tion that already exists based on where it
has already been done.
Another role for INECE could be to
examine how different indicators, such as
compliance rates, inspections, and out-
comes are addressed or segmented by dif-
ferent countries. E.g., the number of
inspections is not as easily defined as it
seems: what is an inspection? How are dif-
ferent levels of inspections counted? How
do you count a team vs. an individual
inspection? A set of common definitions
used across boundaries would help as
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SUMMARY OF WORKSHOP 2A1 111
countries or other institutions make com-
parisons.
INECE could also help with defin-
ing severe nonconformities. Many different
systems exist such as the US definition of
"Significant Non-Compliance" or "SNC",
which differentiates between violations
based on their seriousness and triggers dif-
ferent responses which are closely tracked
to ensure adequate response is taken.
What are the most serious ones? What
types of violations matter most? While this
may differ depending on legal regimes,
INECE could share how countries reach
their determinations so others could apply
the same logic within their regulatory sys-
tem.
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112 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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SUMMARY OF WORKSHOP 2A2 113
SUMMARY OF WORKSHOP 2A2: ENVIRONMENTAL COMPLIANCE
AND ENFORCEMENT INDICATORS: GETTING STARTED
Facilitators: Michael Stahl, Environmental Protection Agency, United States
Waltraud Petek, Federal Ministry of Environment, Austria
Rapporteur: Wout Klein, Ministry of Housing, Spatial Planning and the Environment
(VROM), The Netherlands
GOALS
The facilitators presented as goals for the workshop:
1. Hearing about issues that participants are faced with when defining, developing, and/or
implementing environmental compliance and enforcement (ECE) indicators
2. Defining ways in which INECE could help with these issues.
1 INTRODUCTION
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 at
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 intermedi-
ate outcome indicators.
There is not one ideal set of indica-
tors that can be used by every country.
There only seems to be a general approach
or process of identifying, developing, and
implementing environmental compliance
and enforcement (ECE) indicators.
2 DISCUSSION SUMMARY
2.1 Experience
Experience with ECE Indicators
among workshop participants ranged from
practically none to fairly sophisticated. Spe-
cific situations were mentioned by mem-
bers from:
— Bahrain
- USA
— New Zealand
— Austria
— Australia
— Poland
— Romania
— Ghana
— England & Wales
- IMPEL
Some of these countries are really
at the beginning of an ECE Indicators
scheme. Other countries have experience
with "state of the environment" indicators,
but not with performance indicators
focused on environmental compliance and
enforcement. Several countries are in the
burdensome process of linking their
enforcement output indicators to the state
of the environment.
2.2 Observations
From these various experiences
and from the work on ECE Indicators by
INECE and the Organisation for Economic
Co-operation and Development, several
observations emerge that are stipulated by
the participants and moderators.
— Several countries have a history of
"state of the environment" indicators.
The INECE group focused on perform-
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
ance indicators for compliance and
enforcement that are, so far, in most
countries described in terms of input or
output.
The challenge is to develop a whole
spectrum of indicators from input to out-
come and at several intermediate
stages, like, for instance, what was done
in the Chesapeake Bay water quality
program.
One should not try to make this link by
one big leap. An incremental approach
is the only way to do it.
Focus should be given to the intermedi-
ate outcome indicators, because
they are more directly related to the
enforcement activities than are outcome
indicators,
they are more directly related to the
efforts of the regulated community and
are more readily accepted, and
they are sooner to be obtained and
attributed to the actions.
There is no 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. (See: M. Stahl, "Performance
Measurement Guidance for Compliance
and Enforcement Practitioners, avail-
able at http://inece.org/forumsindicators.
html").
In this process, one should try to focus
on only a few indicators, especially
those that will be really and sensibly
used by the management or by the
national government; indicators that
pose a burden on employees or local
authorities of collecting data that will
never be used will soon discourage the
whole process.
There is always a risk of perverse incen-
tives originating from a specific indicator,
so that inspectors might make the wrong
choices just to get good indicator
results.
— There is also a risk of misuse and misin-
terpretation of indicators; a decrease in
incoming fines can either indicate a
lower performance of the inspectors or a
higher performance of the regulated
community.
— Communication and education about
the sense and meaning of the indicators
is essential at all stages, both inside the
agency and to the outside (politics, com-
munity, industries). Several of these
audiences can very well be co-design-
ers in the development stage.
3 RECOMMENDATIONS FOR INECE:
INECE could assist countries in the
process of identifying, developing, and
implementing performance indicators on
environmental compliance and enforce-
ment in several ways:
— By building capacity, e.g. by incorporat-
ing these notions on the ECE Indicators
process into a training course or by
mentoring actual processes in develop-
ing countries.
— By presenting a library of examples of
basic indicators, used by different coun-
tries, preferably categorized by their
type or use, in order to give direction to
new schemes and a possibility of bench-
marking for existing schemes.
— By exchanging information through
INECE's website, not only about suc-
cesses, but also about burdens and fail-
ures.
— By investigating the use of ECE Indica-
tors in situations of cross-compliance,
e.g. where the granting of agricultural
subsidies is dependent on the compli-
ance with environmental regulations.
— By continuing the E-dialogue on ECE
Indicators with an exchange of experi-
ences with intermediate outcome indica-
tors.
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SUMMARY OF WORKSHOP 2A3/A4 115
SUMMARY OF WORKSHOP 2A3/A4: ENVIRONMENTAL COMPLIANCE
AND ENFORCEMENT INDICATORS: GETTING STARTED
Facilitators: Maria Di Paola, Fundacion Ambiente y Recursos Naturales, Argentina
Jose Pablo Gonzlaez, Office of the Attorney General, Costa Rica
Myriam Linster, Organisation for Economic Co-operation and Development
Kenneth Markowitz, INECE Secretariat
Rapporteur: Melanie Nakagawa, INECE Secretariat
GOALS
To introduce the concept of environmental compliance and enforcement (ECE)
indicators and discuss basic components of program design and implementation. The par-
ticipants represented countries at varying stages of economic development as well as
sophistication with regards to enforcement and compliance programs. This workshop
helped identify how participants from countries that do not have an ECE indicator program
or are in the process of establishing one would go about designing an effective ECE pro-
gram. Participants shared lessons learned and raised new ideas about how to facilitate
establishment of an effective ECE indicator program and, in particular, suggested ways for
INECE to guide this process.
1 INTRODUCTION
The discussion focused on five key
questions posed by the facilitators. These
were:
1. How can we start developing ECE indi-
cators? What are the benefits of using
ECE indicators?
2. What challenges are associated with
identifying, designing, and using ECE
indicators?
3. What role can INECE play in developing
and using ECE indicators?
4. How can we share experiences from
INECE pilot projects to assist other
countries in initiating projects?
5. What is the role of International Financial
Institutions (IFIs) in providing financial
assistance for compliance and enforce-
ment programs? More specifically, what
role can they play in countries to help
them fund the information sharing and
data gathering aspects?
Several ideas were suggested by
members from a variety of countries rang-
ing from those with a strong enforcement
regime to those still in the nascent stages
of environmental enforcement.
2 DISCUSSION SUMMARY
2.1 Key Points Attributed to
Specific Individuals
1. Ms. Maria Di Paola commented
that access to lessons learned from other
indicator programs and sharing experi-
ences are important for countries just
beginning pilot programs. For instance,
Brazil and Mexico have been good exam-
ples for Argentina to learn from by examin-
ing our shared similarities while still paying
attention to our differences.
2. Mr. Jose Pablo Gonzalez high-
lighted that training, regional trends, and
enforcement cooperation are critical to an
effective ECE program.
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
3. Mr. John Chouinard added that it
is important to focus on intermediate out-
comes and goals and to avoid looking for
proof of cause and effect.
4. Mr. Kenneth Markowitz noted
that in order to get the full impact of a coun-
try's Organisation for Economic Co-opera-
tion and Development (OECD) assessment
report, we should identify ways to work with
OECD to integrate ECE indicators into the
country assessment report process. We
cannot look at these indicators in a vacu-
um, but rather we should pay attention to
the externalities involved and other pres-
sures. This same idea is true in other con-
texts such as the Millennium Challenge
Corporation country selection process and
the World Bank's initiative on country
assessments. Both of these are exploring
ways to better understand a country's abili-
ty to govern effectively. There is a signifi-
cant role for compliance and enforcement
indicators to contribute to the success of
these efforts.
5. Ms. Maria Di Paola suggested a
potential role for IN ECE. E-dialogues are a
good way to exchange information and
share different experiences useful to our
pilot programs. If INECE is interested in
developing pilot programs, it would be use-
ful to think how the methodology will fit into
a country's unique system. It would be
interesting to review the same indicator
through different perspectives, another
mechanism for the promotion of exchange.
2.2 Shared Experiences from Existing
Programs: Lessons Learned
Based on Costa Rica's experience,
Mr. Jose Pablo Gonzalez discussed the
importance of compiling data and
resources on indicators and then organiz-
ing this data. While Costa Rica has legisla-
tion forcing officials to manage indicator
data, they do not have an effective means
of enforcing it. Mr. Ken Markowitz agreed
with Mr. Gonzalez and added that not only
is collecting, organizing, and distributing
data difficult, but it is also expensive.
Therefore, he questioned what the role of
international finance institutions would be
in fiscally supporting compliance and
enforcement programs. He further ques-
tioned what roles they can play in countries
to help fund aspects of information gather-
ing. Finally, he inquired as to whether there
is a role for INECE to facilitate or assist with
this process.
The workshop then discussed the
need to monitor and control ECE programs,
the role for public participation, and how to
evaluate effectiveness of a program. Types
of monitoring indicators include input indi-
cators (e.g., resources available) and out-
put indicators (e.g., number of enforcement
actions, number of inspections, and num-
ber of cases filed). But more significantly,
the workshop posed the question of how
we can try to understand improvement in
environmental quality.
One participant, Mr. John
Chouinard from Canada, suggested the
need for stronger consequences for non-
compliance. This goes hand in hand with
making sure an inspector is vigilant in his
monitoring. For instance, he suggested that
inspectors should have a checklist of major
activities that require compliance and then
record this data. With recorded data, a
business can have a picture of changes in
its performance over time, and inspectors
can focus their attention on those who they
now know do not comply. Basically, the offi-
cer in the field needs to know the purpose,
reason, and use of the information he gath-
ers. With a data system, or a generated
system, inspectors know where to go and
what to check for.
The participants then discussed in
greater detail input, output, and outcome
indicators. Mr. Rene Drolet commented
that we should focus attention on alterna-
tive outcomes. Based on his own experi-
ence, he found that long-term outcomes
can be attractive, but can also be discour-
aging. He found his staff discouraged when
looking at long-term indicators, but when
he focused on outcome-based indicators,
that translated into small wins and encour-
aging results. In other words, while final
outcome indicators present an attractive
goal, it may be premature in most countries
to jump toward outcome indicators without
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SUMMARY OF WORKSHOP 2A3/A4 117
taking performance measurement in steps
designed to provide useful information on
program activities.
Mr. Fred Kok cautioned that while
outcomes are important, it is also important
to look at the quality of data versus the
quantity. This was supported by Mr.
Krysztof Michalak's suggestion that there
be good monitoring of the quality data.
The workshop stressed the notion
of clarifying outcome indicators and focus-
ing on intermediate outcome indicators.
One such approach is the pressure-state-
response (PSR) approach. However, the
participant from Australia, Ms. Maria Comi-
no, posed the question of whether, when a
country has legislation and uses the PSR
approach, there is a way to piggyback ECE
indicators on this type of legislation. One
solution may be to look at it from a cost-
effective approach.
In response, Mr. Ken Markowitz
suggested looking to the Organisation for
Economc Co-operation and Development
(OECD) for guidance. OECD has signifi-
cant expertise with the pressure-state-
response model. The process at the OECD
is to try to not look at this in a vacuum, but
to consider the externalities involved, such
as non-point sources of pollution. However,
the participant from the OECD, Ms. Myriam
Linster, mentioned that the OECD could
use better figures and better indicators.
Instead, the OECD currently uses other
data, similar to what Mr. Markowitz dis-
cussed. INECE can help improve OECD
indicators. For example, INECE can help
figure out what information is needed to
show that a project is effective. INECE
could also explore voluntary approaches.
Mr. Rene Drolet noted that behav-
ioral changes provide a good indication of
compliance. He is interested in knowing
more about which industry sectors would
respond best to compliance promotion in
achieving high levels of compliance. Start
with a baseline and try to link change with
a particular compliance response. This
gives an indication of where to focus atten-
tion - in his case, the farming community.
In Canada, Mr. Dave Pascoe was able to
raise awareness about the fisheries act by
explaining to the fishing community what
constitutes a violation. However, he ran into
political problems during the enforcement
phase. For enforcement actions in Costa
Rica, Mr. Jose Pablo Gonzalez was asked
by the attorney general to monitor impacts
and set out guidelines for prosecutors with
the goals of achieving better settlements
and quality of enforcement.
The participants discussed empiri-
cal data showing that there is a small per-
centage of the regulated community that
will comply. There is also another small
percentage that will not comply because
there are economic disincentives to com-
ply. However, in the middle there is a com-
munity where with some compliance assis-
tance or a "kick in the knee" in the form of
a notice of violation, they will comply. The
challenge is to first determine who fits in
which of these categories and then use the
bag of tools we have to know what tool to
apply to each group. The workshop partici-
pants then discussed what they can do with
this group and how the collective INECE
participants can use indicators to move this
gray group into compliance.
The suggestions offered for fur-
thering compliance within this group includ-
ed several suggestions.
(1) The participants suggested
looking at cost effectiveness. This entails
calculating the chance that the offense will
carry high fines and finding those who
would pay millions versus only a few thou-
sand dollars in fines. In addition, it requires
determining which offenders take on the
perspective that they would rather be fined
than go under. In these situations, it is best
to try to calculate the fine in the direction of
compliance.
(2) The participants suggested it is
important to get the sources of emissions
and pollution registered. Similarly, these
registries must be kept updated to facilitate
effective monitoring and tracking mecha-
nisms.
(3) The participants suggested that
we pay close attention to small and medi-
um-sized enterprises that may, if better
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
informed, come into compliance. For exam-
ple, eighty percent of small and medium-
sized firms in the United Kingdom did not
know regulations applied to them.
(4) Developing good governance in
countries that are just setting up environ-
mental legislation and laws, like Bosnia
Herzegovina, can help build the capacity
for effective ECE indicators. Bosnia Herze-
govina needs a good foundation, which
includes good legal institutions, capacity,
and budget, a healthy economy, and a pri-
vatization process. Perhaps then, in the
long-term, they will be able to develop ECE
indicators.
Dr. Roberto Rodriguez suggested
that there should be regulatory plans based
on a baseline for each country and a set of
indicators. This would allow each country to
extract a common regional approach in
accordance with ECEs on an international
level. These ECEs would be targeted at
helping countries comply with environmen-
tal agreements at the local level through
.standards and permits, in accordance with
Multilateral Environmental Agreements
(MEAs) and national plans. Drawing from
Costa Rica's experience because it is more
advanced, a country would look at indica-
tors of performance instead of looking at
indicators of impacts, which are hard to
measure. Perhaps the Central American
Free Trade Agreement (CAFTA) could
serve as an opportunity to spread the use
of ECE indicators in Central America.
3 RECOMMENDATIONS FOR INECE
The final issue raised was how
INECE can help. It was noted that it is
important for INECE to respond to the
needs of the network, while expanding the
network.
Mr. Jose Pablo Gonzalez stressed
the importance of training.
Ms. Myriam Linster suggested that
in some countries with extensive financial
constraints, there must be a minimum
amount of resources necessary to begin an
indicators and ECE program. Given the
financial constraints, the recommendation
agreed to by the workshop participants was
to encourage creativity, which takes into
account the different outcomes possible
from different countries with different
issues. Narrowly defined pilot projects
(e.g., focusing on one law or part of a law)
that lead to valuable information should not
be discounted. The INECE methodology
could serve as a starting point. INECE's
role could be to encourage the involvement
of academic institutions and non-govern-
mental organizations (NGOs) to start the
process, similar to what is being done in
Argentina with the World Bank Institute
(WBI) and Fundacion Ambiente y Recursos
Naturale (FARN).
Participants also discussed the
need to provide inspectors and enforcers of
environmental regulations with training and
a methodology for ensuring good informa-
tion collection, management, and distribu-
tion. Such practices will greatly assist in
conducting a pilot project, irrespective of
the scale.
The workshop participants recom-
mended that INECE develop a standard-
ized ECE indicator training program,
dynamic and interactive in nature. This
training could serve a dual function as a
mechanism for encouraging partnerships
with institutions and as a means of foster-
ing comprehensive indicator development
within a country. The INECE website could
serve as a clearinghouse for the training
and for sharing experiences among partici-
pants in the program.
Another role for INECE would be to
highlight those who are the champions of
in-country projects, have the vision and
political capacity, and are leaders. INECE
partners can do training and capacity-build-
ing, but there still needs to be movement
from inside the country as well. Individual
champions within an organization are criti-
cal and can make a huge difference.
Ms. Maria Di Paola highlighted the
significance of the e-dialogue and the
INECE website as a way to promote infor-
mation exchange and the different experi-
ences useful to our pilot programs. Feed-
back is especially important if used to
review the same indicator through different
perspectives. If countries continue to try
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SUMMARY OF WORKSHOP 2A3/A4 119
things and share what has been tried, this INECE was in regard to the need for
can advance the dialogue on ECE indica- regional, national, and domestic coopera-
tors as people develop and explore the link- tion as the primary means for INECE to
ages between ECE indicators and other achieve its goals. Without this domestic
indicators. support system, INECE would be only able
The final recommendation to to frame an agenda, but not enforce it.
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120 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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WORKSHOP 2E-2I 121
WORKSHOP SESSION 2E-2I
Other Current Environmental Compliance and Enforcement Topics
Conference participants explored other important current topics in environmental
compliance and enforcement, including enforcement methods and roles (criminal law and
negotiated compliance agreements), a case study of climate litigation efforts, a potential
wildlife enforcement network, and an assessment of compliance and enforcement in the
context of multilateral environmental agreements.
2E Criminal Law and Environment: Prosecutors, Inspectors, Police, and
Nongovernmental Organizations
Facilitators: Antonio Benjamin, Law for a Green Planet Institute, Brazil
David Uhlmann, Department of Justice, United States
Peter Murtha, Environmental Protection Agency, United States
2F Role of the Courts, Nongovernmental Organizations, and the Press:
Climate Litigation Case Study
Facilitators: Peter Lehner, Environmental Protection Bureau, New York Attorney
General's Office, United States
Catherine Pearce, Friends of the Earth International, United Kingdom
2G Compliance with and Enforcement of Multilateral Environmental Agreements
Facilitators: Elizabeth Mrema, United Nations Environment Programme
Carl Bruch, United Nations Environment Programme
2H Wildlife Enforcement Network
Facilitators: Azzedine Downes, International Fund for Animal Welfare
Yvan Lafleur, Environment Canada
Ladislav Miko, Ministry of the Environment, Czech Republic
21 Negotiated Compliance Agreements
Facilitators: Susan Bromm, Environmental Protection Agency, United States
Ike Ndlovu, Department of Environmental Affairs and Tourism,
South Africa
Report Out from Workshop Session 2E-2I
Moderator: Sibusiso Gamede, Basel Convention Regional Centre, South Africa
In the following pages, the reports of these workshops are presented.
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122 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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SUMMARY OF WORKSHOP 2E 123
SUMMARY OF WORKSHOP 2E: CRIMINAL LAW AND
ENVIRONMENT: PROSECUTORS, INSPECTORS, POLICE, AND
NONGOVERNMENTAL ORGANIZATIONS
Facilitators: Antonio Benjamin, Law for a Green Planet Institute, Brazil
David Uhlmann, Department of Justice, United States
Peter Murtha, Environmental Protection Agency, United States
Rapporteur: Andrew Lauterback, Environmental Protection Agency, United States
GOALS
— To discuss the roles of prosecutors and inspectors in enforcement and how the public
and nongovernmental organizations (NGOs) can play a role in the process
— To generate a list of principles and best practices for cooperation and coordination
among investigators, prosecutors, and other environmental and enforcement officials
1 INTRODUCTION
The first part of the session
focused on key foundation issues to be
addressed in establishing an environmen-
tal criminal enforcement program. The sec-
ond half of the workshop focused on the
key components of an effective environ-
mental criminal enforcement program.
2 DISCUSSION SUMMARY
2.1 Key Foundation Issues
The first part of the session
focused on key foundation issues that must
be addressed in establishing an environ-
mental criminal enforcement program. The
workshop participants did not discuss indi-
vidual opinions on how best to answer each
issue. It was very instructive to step back
from specific case work and apply a macro
view to the fundamental issues of environ-
mental criminal enforcement. The founda-
tion issues that must be addressed in
developing an environmental criminal
enforcement program 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 standard
for mental state: knowing, negligence,
strict liability, etc.?
.3) Who is liable? - Does this include corpo-
rations, responsible corporate officers,
etc.?
4) Standing to prosecute - What is the role
of victims and NGOs? In some coun-
tries, victims and others with standing,
possibly NGOs, can initiate a criminal
prosecution, or require the government
prosecutor to pursue an environmental
violation by criminal process.
5) Penalties - What are the appropriate
penalties? They may include imprison-
ment, fines, restitution, compliance
orders, etc.
6) Statute of limitations - Should there be
one? If so, should it start from the point
of discovery by the governmental
authority or the point when the violation
is committed?
2.2 Key Components
The second part of the workshop
addressed the key components of an effec-
tive environmental criminal enforcement
program. The discussion was very lively
and all members participated. The group
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
decided that the essential components that
need to be present in order to have a suc-
cessful program 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 com-
plemented by an effective regulatory
program.
3) Capacity building - Regulators, investi-
gators, 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, such as
between investigators, regulators, pros-
ecutors, 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 interna-
tional 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 enforce-
ment program that is truly integrated
with all levels of government: federal,
state or provincial, and local. Also, the
criminal program should be integrated
with administrative and civil enforcement
programs if they exist. It was agreed that
this is more accurately considered a
goal than a component, and one that
should be continuously sought.
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SUMMARY OF WORKSHOP 2F 125
SUMMARY OF WORKSHOP 2F: ROLE OF THE COURTS,
NONGOVERNMENTAL ORGANIZATIONS, AND THE PRESS:
CLIMATE LITIGATION CASE STUDY
Facilitators: Peter Lehner, Environmental Protection Bureau, New York Attorney
General's Office, United States
Catherine Pearce, Friends of the Earth International, United Kingdom
Rapporteur: Matt Cooper, Environmental Media Consultant, United States and
New Zealand
GOALS
— To discuss what elements of climate change and its causes have made litigation a pos-
sible tool to promote action, drawing on prominent climate litigation actions;
— To identify ways in which national and international laws may be used to address climate
change polluters (whether nations or industries);
— To discuss and identify the important role that media & nongovernmental organizations
(NGOs) play in the climate issue and in litigation strategies;
— To critically analyze the way in which the issues of global warming and climate change
are framed and portrayed in the media generally.
1 INTRODUCTION
1.1 Climate Litigation
The facilitators began with opening
comments generally describing some of
the more prominent climate change litiga-
tion cases around the world that may be
used as a possible tool to spur action on cli-
mate change. Also discussed was the way
in which climate change is played out and
portrayed in the media and how issues of
climate change and global warming are
framed generally. The three types of litiga-
tion cases identified were: 1) cases to get
governments to disclose information about
the climate change impacts of their actions;
2) cases to directly limit carbon emissions;
and 3) cases to reduce energy use or
encourage use of "greener" or renewable
fuels.
Other theories and ideas dis-
cussed involved: 1) the utilization of human
rights actions based on the right to a clean
and healthy environment; 2) cases,
actions, and communication campaigns
highlighting government-backed projects
that are not climate friendly; 3) tort actions
based on nuisance or trespass based on
property damage caused as a conse-
quence of climate change (such as rising
sea levels leading to loss or destruction of
coastal property); 4) actions based around
countries or institutions unfairly subsidizing
industries that are accelerating climate
change; 5) choices of relief sought in such
actions (i.e., injunctive relief versus claims
for monetary damages).
1.2 Framing and Messaging
The workshop participants agreed
that any message concerning dramatic cli-
mate change effects already occurring or
coming in the near future (e.g., stories of
environmental catastrophes and environ-
mental refugees created through resource
scarcity, droughts, etc.), should be married
with a message of hope and education
based on renewable or "green" energy. It is
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
necessary to tell a story of climate change
as it relates to human values and the effects
of climate change on local communities.
The general consensus was that
the message of climate change needed to
be communicated in a simple, straightfor-
ward, and interesting manner to grab the
attention of a skeptical or uninformed pub-
lic and to answer concerted efforts to dis-
pute the fact that climate change is a reali-
ty. A values-based message could be built
around the right to clear air, clean water,
and a clean environment generally, in order
to preserve the health of future generations
(i.e., to lessen human health effects of fos-
sil fuel use through the use of cleaner ener-
gy). Part of this message would also be
that addressing climate change will lead to
substantial economic benefits and opportu-
nities in addition to environmental benefits
- an entire new area of industry built on
renewable energy sources and the new
technology, business developments, and
job opportunities it creates.
2 DISCUSSION SUMMARY
2.1 Opening of Workshop
The facilitators introduced and
gave a general overview of some of the
high-profile climate change cases currently
being litigated, or that have previously been
litigated, around the world. These cases
are set out in detail in the background
paper Summary of Climate Change Cases
Worldwide attached to this workshop
report. Participants agreed that the scientif-
ic evidence of climate change is robust,
and it is becoming more and more certain
that climate change impacts can be attrib-
uted to increased carbon dioxide emissions
from human activities. The three types of
litigation cases introduced for discussion
were:
1) Cases to get governments to disclose
information about the climate change
impacts of their actions and force con-
sideration of climate emissions;
2) Cases where citizens and/or govern-
ments are trying to directly limit carbon
emissions; and
3) Cases seeking to reduce energy use or
encourage use of "greener" and renew-
able fuels.
2.2 Cases from Background
Paper Discussed
2.2.1 Climate Litigation & Industry: Case
1 .A - State Attorneys General in
U.S. Sue Private Utilities
This case involved eight U.S.
states (including New York) and the City of
New York suing the five largest power com-
panies in the U.S. in July 2004, claiming
the companies, which emit nearly 10% of
the nation's total carbon dioxide emissions,
were substantial contributors to the public
nuisance of global warming. The action
seeks injunctive relief to reduce pollution; it
does not seek damages.
2.2.2 Climate Litigation & Industry:
Case 1 .D - German NGOs Sue
Government for Export Credit
Support of Fossil Fuel Projects
This case involved a legal chal-
lenge by NGOs against the German gov-
ernment in June 2004 over its secret export
credit support for fossil fuel projects since
1997 through its own agency, Euler Her-
mes AG. Money was expropriated into off-
shore fossil fuel projects, and the goal of
the action taken against the German Fed-
eral Ministry of Economics and Labor was
to force the government to disclose the
contribution to climate change made by
such government-supported projects in
developing countries. The case is still
pending.
2.2.3 International Law & Climate
Litigation: Case 3.D - NGOs
Submit Climate Change Petitions
Under World Heritage Convention
This case involved a petition to the
World Heritage Committee in November
2004 to place Sagarmatha National Park
(Mt. Everest) on the World Heritage Danger
List as a result of glacial degradation
caused by climate change. This national
park is a focal point of Nepal's tourism-
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SUMMARY OF WORKSHOP 2F 127
based economy and is rich in biodiversity,
which is imperiled by melting glaciers that
could destroy the park's natural and cultur-
al value and place thousands of lives at
risk. The case was also linked to two other
petitions calling for the coral reefs of Belize
and glaciers in Peru to be added to the
Danger List as a result of climate change.
The World Heritage Committee is
to meet in July this year to decide whether
to pick up these cases.
2.3 Other Theories of Interest and
Related Cases Discussed
2.3.1 Human Rights Cases: Case 3.A-
Arctic Peoples to Frame US
Inaction on Climate Change
as Human Rights Violation
In the near future, the Inuit people
intend to bring a petition in the Inter-Ameri-
can Human Rights Commission against the
United States, through the Inuit Circumpo-
lar Conference (ICC). The ICC case will
highlight the link between human rights and
environmental degradation, especially con-
sidering that climate change is projected to
impact the Arctic regions sooner and more
substantially than other parts of the Earth.
The group discussed whether
there are other opportunities around the
globe to bring similar actions based on
"Eco-Justice" and the link between human
rights and environmental damage. Are
there possibilities to use World Trade Orga-
nization (WTO) mechanisms for this pur-
pose and to bring actions against some of
the world financial institutions in order to
highlight and bring these human rights and
environment stories to light?
2.3.2 Injunctive Relief versus Claims
in Damages
The group agreed that calculating
the value of damages in the area of climate
change was indeed difficult, whereas
injunctive relief could impose overall reduc-
tion targets. Such reductions could be
achieved by various means which could
include: improving the efficiency of power
plants; using renewable energy sources;
and investing in conservation measures
(such as conversion of power plants from
coal to gas).
2.3.3 Reduction Goals
The group discussed whether
there was a basis or framework for what
constitutes an attainable and realistic goal
for emissions reduction. Based on statistics
and evidence of carbon accumulation in the
atmosphere, scientists have tried to deter-
mine a reasonable and realistic emission
reduction goal that would put us on a tra-
jectory toward some real results and
toward avoiding the dramatic conse-
quences of global climate change.
A possible role for network partici-
pants is to help pull together some of these
emission statistics and formulate questions
to focus discussions on what is a reason-
able target level. The longer we wait to
impose targets, the higher the emission
cuts need to be. It was agreed that real cuts
need to start now.
2.3.4 Sector Legal Suits
Suits against entire industrial sec-
tors were identified as a valuable tool for
creating pressure on industry to develop
regulations rather than individual lawsuits
against single industry players. By focusing
on controls and regulation, you develop
and create market mechanisms that can
ultimately lead to larger changes in industry
behavior and greater emission reductions.
2.3.5 Tort Actions Based in Nuisance
or Trespass
The possibility of nuisance or tres-
pass tort actions based on property dam-
age caused as a consequence of climate
change was discussed. The specific exam-
ple raised was rising sea levels leading to
loss or destruction of coastal property. Par-
ticipants noted that proving the causal link
between climate change as a consequence
of carbon emissions and the property dam-
age now occurring could at times be diffi-
cult.
The example of Pacific island
nations becoming submerged due to rising
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
sea levels was raised. Examples such as
this were not persuasive to people in coun-
tries such as the Ukraine which is not an
island nation and therefore people do not
see this example as relevant to them. In the
context of Kyoto, the Ukraine is interested
in selling carbon credits under Kyoto and in
the economic advantages the agreement
may bring..
Exxon's Climate Footprint: the
Contribution of Exxonmobil to Climate
Change since 1882, a report issued by
Friends of the Earth International in Jan-
uary 2004, also was discussed. One of the
major conclusions of the report was that
Exxonmobil's emissions of carbon dioxide
from 1882 to 2002 totaled approximately
5% of global carbon dioxide emissions, or
one twentieth of the world's total. It was
noted by participants that more such
reports could assist attribution efforts.
2.3.6 Actions Based in Human Rights
The possibility of human rights
actions based on the link between human
rights and environmental degradation was
raised for discussion again. Related con-
cepts discussed included: environmental
refugees; the possibility of a major environ-
mental catastrophe; and the dramatic eco-
nomic as well as human consequences
that can occur as the result of an environ-
mental disaster. The idea would be to pro-
mote the view that lack of clean water, lack
of clean air, coastal flooding, loss of gla-
ciers and snowmelt, etc. are human rights
issues. The group discussed the question
"How powerful is the human rights angle?".
Some felt that litigation of such
human rights cases in local jurisdictions,
rather than in the international courts, was
more likely to succeed. It is difficult for a
local judge to disregard a local human
rights argument as opposed to internation-
al actions based solely on environmental
concerns, which can be too far removed
from local concerns and effects on local
communities. It was suggested that inter-
national human rights bodies were not
ready for a case based on environmental
human rights. Another question posed was
whether the Alien Tort Claims Act could be
utilized as the basis for a legal action in the
United States.
A human rights strategy should
ideally involve a series of litigation actions
that would raise global awareness of the
issue of climate change and how it is affect-
ing local communities, peoples, and cul-
tures. Various forms of environmental
media and press coverage could be used
to support such a campaign.
The group suggested that this was
something network participants could help
support, networking with, sourcing, and
supporting local lawyers around the world to
make such a litigation campaign a reality.
Litigation is not as prevalent and
tied into the culture of other countries as it
is in the United States, but the idea of joint
actions setting out the problems, connec-
tions, and similarities that exist between
countries, regions, peoples, and cultures
on the issue of climate change (water
scarcity, drought, changing weather pat-
terns, rising sea level, etc.) is a good idea.
Such actions could also help provide a
vision for the future based on cleaner ener-
gy, new technologies, and alternative trans-
portation networks.
Any cases brought must be sound
and have beneficial effects on the problem.
An added benefit is that sound cases will
survive challenges and thus stay in the
courts long enough to enable the media to
stay focused on the human rights angle as
a press-worthy issue.
In the context of the United States
it was pointed out that economic arguments
were as compelling, if not more compelling,
than an action based in human rights.
There may be a real opportunity for a tort
case based on property damage caused as
a consequence of climate change (the
example of sea levels rising was raised
again). Is there evidence from an econom-
ic and industry viewpoint (such as rising
insurance premiums for coastal property in
high risk areas or offshore oil rigs for exam-
ple) that can be drawn upon and used as
evidence to support the fact that global
warming is a reality rather than a disputed
theory?
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SUMMARY OF WORKSHOP 2F 129
2.3.7 The Framing of the Climate
Change Message in the Media
Public attitudes are extremely
important. The group suggested that we
need to focus on the goal of communicating
the problems that are already occurring, or
beginning to become apparent, and marry
this with a message of hope for the future -
suggesting solutions and renewable ener-
gy options as an alternative to the status
quo. We need to set out what the problems
are, in a simple and clear way, and suggest
the positive solutions available. It is very
difficult to sell a negative message - the
doom and gloom message of global warm-
ing and hard science - in the absence of a
human story and solutions that provide
some hope for our collective future.
2.3.8 Other Ideas and Strategies
Raised in Group Discussion
The need to address the argument
that "the science of global warming is
unclear" was discussed. Litigation can be
used as a tool to demonstrate the real evi-
dence that climate change and global
warming is occurring and that there will be
real and dramatic human consequences as
a result. A related topic discussed was the
fact that the media's portrayal of the "cli-
mate change debate" in the States is very
unbalanced. The reality of the climate
change science is that there are over 1500
scientists who attest to the fact that climate
change is a reality versus a few industry-
backed scientists who are suggesting that
climate change either is not occurring or
does not pose a problem. The media in the
States needs to be encouraged and edu-
cated so that the portrayal of the issue in
the media is more balanced. Alternatively,
is the better approach not to even enter into
a debate on the science?
Other points raised include:
— There is a real need to combine media,
law, and science, to facilitate a coopera-
tive approach to selling the message.
Only by having all of the different
experts in the field working together can
we battle the counter-spin in an effective
manner. NGOs and expert groups also
need to work to educate judges and the
media about the reality of climate
change.
There must be a focus on basic human
values and the effects climate change is
having on human communities.
The environmental movement must get
away from speaking solely about strict
scientific data and evidence and re-
frame the message of climate change at
a level of human values and how envi-
ronmental change is impacting people
and communities. The group discussed
the idea of telling the stories of the plight
of indigenous people and local commu-
nities being impacted by climate change
as an indicator of the wider changes that
could impact all people and their way of
life.
We may be at a "tipping point" where
there will be sudden change that could
have dramatic effects (such as a major
environmental or humanitarian disaster).
The media is a very visual tool that
should be utilized to create video releas-
es and tell many human stories. There is
a very clear need to create media con-
tent and produce documentary pieces
about the issue. Examples of human
stories are the Sherpas from Tibet -
whereby a human story can be told, but
undercutting the local story is a wider
message about climate change.
A majority of countries have accepted
that climate change is a reality but are
acting on this knowledge in different
ways. There must be joint action from
countries in all regions of the world to
address climate change.
The group discussed the example of the
Chernobyl Nuclear Reactor disaster and
lessons learned. This environmental
catastrophe spurred a whole environ-
mental and democratic movement in the
Ukraine, and the press arising from the
disaster has created substantial political
pressure to ensure that such an incident
does not occur again. Unfortunately,
people have now become tired of the
issue because it is always portrayed in a
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
negative light. The press in the Ukraine
has become very sensationalist where-
by stories are only published if they are
possible to sell to a mass audience.
— In Algeria, there are educational pro-
grams to help prevent summer fires,
using theatre as the medium to educate
and tell a story.
— It was agreed that renewable energy
and a focus on sustainable building
practices both provide a valuable oppor-
tunity to develop and promote a positive
message through: education about
alternatives to fossil fuel reliance; exam-
ples of green buildings; and emphasiz-
ing reduced impacts on human health
(i.e., cleaner air and water) through
cleaner energy.
— Other ideas discussed involved ancillary
cases promoting energy efficiency and
cases where deforestation is highlighted
as a cause of and contributing factor to
climate change.
— The group discussed the establishment
of marine sanctuaries in the Philippines,
the possible scientific theory that coral
reefs are in fact carbon sequestration
sinks, and whether anyone knew of any
studies currently being undertaken that
prove this theory. In the context of cli-
mate litigation cases, it was agreed that
there needed to be a strategy of linking
plaintiffs to defendants, as well as iden-
tifying where and in what forum (nation-
al/international) to bring an action.
3 RECOMMENDATIONS FOR INECE
The group concluded that network
participants have a potential role to play in
eliminating the barriers that may exist in
bringing legal actions based on climate
change. It was suggested that network par-
ticipants could investigate areas of cooper-
ation in capacity building, networking, and
creating awareness, not only in the form of
exchanging ideas and snaring experi-
ences, but by generating material and evi-
dence that helps educate the media, the
judiciary, and the public, countering the cur-
rent media spin on climate change issues.
Network participants could also help in the
preparation of evidence and material to
support the formulation of any climate
change legal actions. This could include
the development of concise abstracts, for
use in many languages, on the science and
stories of global warming to be distributed
to the public, media, and judiciary, utilizing
the internet and other forms of media.
The assistance work suggested
included:
— Disseminating and simplifying the back-
ground science so that laypeople
(media, politicians, the public, etc.) can
understand the issue of climate change
and the threat it poses clearly.
— Presenting the climate change science
in a way that demonstrates the causal
link between human-based carbon
emissions and the dramatic effects of
climate change on people.
— Providing legal support and networking
opportunities around prominent climate
change litigation cases and ensuring
that the human stories behind such
cases are publicized. Translating scien-
tific articles into simple abstracts that
can support litigation cases and be used
to educate media and the public. These
abstracts would also be translated into
other languages where needed.
4 CONCLUSIONS
— Actions based on human rights and
environmental degradation are and can
continue to be a very successful strate-
gy to raise awareness of climate
change. In the event that the laws of a
particular jurisdiction do not allow for an
action to be brought, a good fallback
position may be a tort action based on
property damage (so long as the defen-
dant is large enough and has existed for
long enough to meet appropriate tests of
causation).
— Education of the media, public, judiciary,
and lawmakers is extremely important to
ensure the message of climate change
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SUMMARY OF WORKSHOP 2F 131
is communicated and represented in a
balanced and clear manner.
Information about climate change and
stories of the effects of climate change
on people must be communicated sim-
ply and effectively through media
sources and the press. Media and pub-
licity is also a valuable tool to help sup-
port and publicize a particular litigation
action.
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132 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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SUMMARY OF CLIMATE CHANGE CASES WORLDWIDE (2F) 133
SUMMARY OF CLIMATE CHANGE CASES WORLDWIDE
GROSSMAN, DAVE,1 AND STONE, SCOTT2
1 Staff Attorney, INECE Secretariat and Institute for Governance and Sustainable
Development
2 Staff Attorney, INECE Secretariat and Institute for Governance and Sustainable
Development
2141 Wisconsin Ave. NW, Suite 02, Washington, DC 20007, United States,
dgrossman@inece.org, sstone@inece.org
1 CLIMATE LITIGATION & INDUSTRY
1.1 State Attorneys General in U.S.
Sue Private Utilities
Eight states (California, Connecti-
cut, Iowa, New Jersey, New York, Rhode
Island, Vermont, and Wisconsin) and the
City of New York, and three NGO land
trusts, sued the five largest power compa-
nies in the United States in July 2004.
These companies own or operate 174 fos-
sil fuel burning power plants in 20 states
that emit approximately 650 million tons of
carbon dioxide each year. This is nearly
25% of the U.S. utility industry's annual car-
bon dioxide emissions and about 10% of
the nation's total. The action calls on the
companies to reduce their pollution and
does not seek monetary damages. Plain-
tiffs claim that the power companies' COa
emissions contribute to global warming, a
nuisance under the federal common law of
public nuisance, or alternatively, under the
state common law of public nuisance. The
defendants have moved to dismiss the case
for lack of personal jurisdiction and argue
that federal statutes and treaties regarding
climate change pre-empt common law in
the area. The case is still pending.
More information:
http://www.oag.state.ny.us/press/2004/jul/
jul21a_04.html
http://www.pawalaw.com/html/cases.htm
1.2 NGO Sues U.S. Government
for Failing to Consider CO2
Emissions from Federal Project
NGO sued the U.S. Department of
Energy and the Bureau of Land Manage-
ment for violating the National Environmen-
tal Policy Act (NEPA) and the Administra-
tive Procedure Act (APA) in granting appli-
cations for permits to construct and operate
power lines to connect power plants in
Mexico to California's electric grid. NEPA
requires that all major federal actions sig-
nificantly impacting the human environ-
ment undergo an environmental assess-
ment to determine the extent of the action's
impact. In 2003, the court held that the
Environmental Assessment and the Find-
ing of No Significant Impact were inade-
quate under NEPA for failing to consider
carbon dioxide emissions from the power
plants.
More information:
http://www.earthjustice.org/urgent/display.
html?ID=106
http://www.earthjustice.org/news/
documents/5-03/borderdecision.pdf
1.3 U.S. Municipalities Sue Export
Credit Agencies for Funding
Fossil Fuel Industry
The city of Boulder in Colorado, the
cities of Oakland and Arcata in California,
and several NGOs brought suit in August
2002 under NEPA against U.S. export cred-
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
it agencies for funding fossil fuel projects.
The Export-Import Bank (Exlm) and the
Overseas Private Investment Corporation
(OPIC) provided over $32 billion in financ-
ing and insurance for oil fields, pipelines,
and coal-fired power plants over the past 10
years without assessing their contribution to
global warming or their impact on the U.S.
environment as required under NEPA. The
U.S. Government has filed motions to dis-
miss the case, arguing that the plaintiffs lack
standing, that Exlm and OPIC have not
taken any action subjecting them to judicial
review, and that OPIC is exempt from
NEPA. The case is still pending.
More information:
http://www.climatelawsuit.org
1.4 German NGOs Sue Government
for Export Credit Support of Fossil
Fuel Projects
NGOs began legal action against
the German government in June 2004 for
its secret export credit support for fossil fuel
projects since 1997, when the Kyoto Proto-
col was agreed to. Germanwatch and
Friends of the Earth Germany (BUND)
have taken action against the German Fed-
eral Ministry of Economics and Labour in
the Administrative Court in Berlin to force
the German government, under the free-
dom of environmental information law, to
disclose the contribution to climate change
made by projects supported by the German
taxpayer through its export credit agency
Euler Hermes AG. The case is still pending.
More information:
http://www.climatelaw.org/media/german.
suit
http://www.foei.org/publications/link/rights/
32case.html
1.5 U.S. State Sets Carbon
"Shadow Price"
Minnesota approves the siting of
new power plants based on analysis of the
plants' social costs and benefits. In order to
account for a proposed plant's carbon diox-
ide emissions, Minnesota's Public Utilities
Commission determined that assessment
of a plant's cost must include a charge of
US$0.30 - $3.10 per ton of CO2 emitted,
depending on geographic location. The
power industry challenged that assessment
process. The court upheld the analysis in
1998.
More information:
http://www.globelaw.com/Climate/
MinnCase.htm
1.6 U.S. States and NGOs Sue
Department of Energy for
Weakening Efficiency Standards
Seven U.S. states and NGOs sued
the U.S. Department of Energy (DOE)
under the Energy Policy and Conservation
Act (EPCA) and the Administrative Proce-
dure Act (APA). EPCA requires DOE to get
energy efficiency standards for appliances
at the maximum level that is technological-
ly and economically feasible. DOE set stan-
dards for air conditioners (now used in 85%
of U.S. homes and accounting for over one-
third of U.S. peak electricity demand). In
early 2001, the new U.S. presidential
administration sought to replace the stan-
dards with much weaker ones. The states
and NGOs sued, basing their interest on
the global warming impact of the increased
emissions. The court held in 2003 that the
weakening of the standards violated EPCA
and the APA and reinstated the standards.
More information:
http://www.commondreams.org/
headlines04/0114-04.htm
1.7 Industry Sues U.S. State for
Setting Vehicle Greenhouse Gas
Emissions Standards
California is the only U.S. state
with the authority to set vehicle emission
standards (because it did so before the fed-
eral Clean Air Act was enacted). California
set greenhouse gas emission standards to
take effect in 2009. In December 2004,
industry sued California and has submitted
papers challenging the scientific link
between CO2 emissions and global warm-
ing. California has moved to dismiss on
procedural grounds. The case is pending.
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SUMMARY OF CLIMATE CHANGE CASES WORLDWIDE (2F) 135
More information:
http://www.enn.com/today.html?id=550
http://www.autoalliance.org/archives/00016
3. html
2 LITIGATION AS A CONSEQUENCE
OF GOVERNMENT ACTION &
INACTION
2.1 States and NGOs Sue U.S.
EPA to Force Regulation
of Greenhouse Gases
Twelve U.S. states, several cities,
and several NGOs sued the U.S. EPA in
2003 for its failure to regulate greenhouse
gas emissions from vehicles. Plaintiffs
claim that the EPA erred in deciding that
carbon dioxide was not a "pollutant" under
the Clean Air Act. The EPA asserts that the
broad, inclusive language of the Act should
not be read to authorize as major a pro-
gram as one increasing the fuel efficiency
of cars. This case is still pending; oral argu-
ments in the U.S. Court of Appeals for the
D.C. Circuit were just heard this past Fri-
day.
More information:
http://www.nytimes.com/2005/04/09/
politics/09emissions.html.
http://www.climatelaw.org/media/states.
challenge.bush.
2.2 NGOs Challenges Australian
Minister's Power to Preculde
Consideration of Greenhouse
Gases
Australian NGOs challenged a
minister's power to prevent a planning body
from considering greenhouse gas emis-
sions before deciding to approve a coal
mine expansion. In November 2004, the
judge agreed with the NGOs and said that
these emissions must be taken into
account.
More information:
http://www.climatelaw.org/media/CANA.
Australia
http://www.austlii.edu.au/au/cases/vic/VCA
T/2004/2029.html.
2.3 Argentine Citizens Sue for
Access to Information on
Climate Change Actions
As the result of severe flooding in
2003, Argentine citizens brought legal
action against their government under
Argentina's Accion Informativa mechanism
and Article 6 of the UN Framework Conven-
tion on Climate Change to force the gov-
ernment to admit to its official failure to
adapt to climate change. The case
revealed that changes to infrastructure to
prevent flooding had been developed by
governmental authorities but not imple-
mented.
More information:
http://www.climatenetwork.org/eco/cops/
copl 0/en/ECOCOP1010.pdf
3 INTERNATIONAL LAW & CLIMATE
LITIGATION
3.1 Arctic Peoples to Frame U.S.
Inaction on Climate Change
as Human Rights Violation
The Inuit Circumpolar Conference
(ICC) intends to bring a petition in the near
future against the United States in the Inter-
American Human Rights Commission. The
ICC case will highlight the link between
human rights and environmental degrada-
tion, especially considering that climate
change is projected to impact the Arctic
regions sooner and more substantially than
other parts of the Earth.
More information:
http://www.inuit.org/index.asp?lang=eng
&num=244
http://www.climatelaw.org/media/inuit.
3.2 NGOs Submit Climate Change
Petitions Under World Heritage
Convention
NGOs and others submitted a
petition to the World Heritage Committee in
November 2004 to place the Sagarmatha
National Park (Everest) on the World
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136 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Heritage Danger List as a result of glacial
degradation caused by climate change.
Sagarmatha National Park is a focal point
of Nepal's tourism-based economy and is
rich in biodiversity, which is imperiled by
melting glaciers that could potentially
destroy the park's natural and cultural
value and place thousands of lives at risk.
The petition was handed in along with peti-
tions calling for coral reefs off Belize and
glaciers in Peru to be added to the Danger
List as a result of climate change.
More information:
http://www.climatelaw.org/media/UNESCO
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SUMMARY OF WORKSHOP 2G 137
SUMMARY OF WORKSHOP 2G:
COMPLIANCE WITH AND ENFORCEMENT OF
MULTILATERAL ENVIRONMENTAL AGREEMENTS
Facilitators: Elizabeth Mrema, United Nations Environment Programme
Carl Bruch, United Nations Environment Programme
Rapporteurs: Joseph Freedman, Environmental Protection Agency, United States
Carl Bruch, United Nations Environment Programme
GOALS
This workshop had three primary goals. First, it sought to raise awareness of the
UNEP Guidelines and Manual designed to facilitate implementation of multilateral environ-
mental agreements (MEAs). Second, the workshop sought to identify additional best prac-
tices and case studies for the Manual. Finally, the workshop provided a forum in which to
discuss the next steps for improving compliance with and enforcement of MEAs.
1 INTRODUCTION
In this workshop, UNEP introduced
Guidelines and a draft Manual on Compli-
ance with and Enforcement of Multilateral
Environmental Agreements. The Guide-
lines and Manual are designed to assist
countries in implementing, complying with,
and enforcing multilateral environmental
agreements. The workshop showed partic-
ipants how to use the checklists, case stud-
ies, explanatory text, and annexes to
enhance compliance and enforcement.
Participants were also invited to share their
own experiences of compliance with and
enforcement of MEAs and provide feed-
back to UNEP for improving the Manual.
Following an introduction to the
Manual, UNEP facilitated a discussion of
the Manual. The facilitators sought specific
examples and considerations relating to
implementation of MEAs in the areas of:
— cost-benefit analysis on becoming a
Party to an MEA;
— public-private partnerships; and
— technology transfer.
In addition, the facilitators opened
the discussion for other aspects of negoti-
ating, implementing, and enforcing MEAs.
2 DISCUSSION SUMMARY
While the workshop discussions
focused on the three themes (cost-benefit
analysis, partnerships, and technology
transfer), participants raised a broad series
of issues and experiences that addressed
the entire life cycle of MEAs.
Discussions highlighted the impor-
tance of involving a broad range of sectors
and interests in negotiating MEAs. Future
implementation may depend on many enti-
ties in order to be effective and successful.
By involving these entities in preparing for
negotiations or during the actual negotia-
tions, participants noted that it was possible
to broaden the constituency supporting a
particular MEA. One sector that the Manu-
al could highlight more is the private sector.
Private sector representatives have been
incorporated into national delegations for
various MEAs, including the Basel Conven-
tion, the Stockholm Convention, the Rotter-
dam Convention, and the Montreal Proto-
col. Involving the private sector can add
technical expertise to the delegation,
access additional information on produc-
tion aspects (e.g., of a potentially regulated
substance or commodity), highlight avail-
ability and feasibility of technology, and
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
build support of the regulated community
for the MEA. Notwithstanding the potential
benefits of including non-state actors, there
is still much concern about involving them
in negotiations.
Examples of involving the public in
developing and implementing legislation
and policies were also highlighted. For
example, in 2004, Tanzania created the
National Environmental Advisory Commit-
tee, which includes governmental repre-
sentatives (who chair the Committee) as
well as representatives from civil society,
the private sector, and institutions of higher
learning. It meets twice a year and provides
recommendations to the government on
different issues. In addition, there is a
requirement to consult civil society and the
private sector before submitting bills to Par-
liament.
If a country has a federal system,
coordination between the national (federal)
authorities and sub-national (state or
provincial) authorities becomes much more
important. Such coordination can take
place in negotiations - for example by
including sub-national authorities on official
delegations - as well as during the imple-
mentation phase. Depending on the coun-
try, capacity building at the sub-national
level might be done by federal institutions,
or it might be more effective to develop
approaches in which sub-national institu-
tions train sub-national government offi-
cials.
In trying to determine whether to
become a party to a particular MEA, many
countries are interested in how to conduct
cost-benefit analyses. Countries are partic-
ularly interested in the financial conse-
quences of becoming a party, particularly
for compliance and implementation. This
has been done in specific instances follow-
ing adoption of the Montreal Protocol (dis-
cussion highlighted an instance where the
costs had been estimated at an erroneous-
ly high level, which may be contrasted with
more objective recent examples), the UN
Framework Convention on Climate
Change, and the Kyoto Protocol. To meet
these needs, the Basel Convention Secre-
tariat and the Ozone Secretariat have
developed cost-benefit booklets.
As cost-benefit analysis may be
perceived as examining a narrower set of
considerations (often those most easily
given a financial value), one alternative
would be to consider a risk benefit analysis,
which considers a broader range of non-
economic values.
The discussion noted a number of
experiences in technology transfer. The
Multilateral Fund of the Montreal Protocol
has been particularly successful in this
regard. Ozone technology highlighted one
of the challenges for technology transfer:
while most of the control technology for
ozone depleting substances is in the public
domain (and thus transfer is fairly straight-
forward), production technology tends to be
heavily protected and controversial. The
Manual could better highlight these sensi-
tivities. Other examples of technology
transfer include under the UNECE Heavy
Metals Protocol, the Basel Convention, the
Rotterdam Convention, the Stockholm
Convention, the Climate MEAs, and tech-
nology transfer through private founda-
tions. The Multilateral Fund and UNEP's
Division of Technology, Industries and Eco-
nomics, among other institutions, have
sought to highlight available technologies
by cataloguing the technologies and plac-
ing this information on the Internet.
Discussions also highlighted a vari-
ety of ways to improve the usability of the
Manual. Participants suggested that the
Manual be distributed in a CD-ROM format,
as well as a print version, with a ten- to fif-
teen-minute tutorial on how to use the Man-
ual. Participants also suggested that the
index could be made electronically search-
able by word.
3 CONCLUSIONS
In conclusion, the group applauded
the development of the UNEP Guidelines
and the draft Manual as useful tools. The
workshop also provided considerations,
approaches, and examples for developing,
implementing, and enforcing MEAs. These
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SUMMARY OF WORKSHOP 2G 139
suggestions were offered to strengthen the
Manual in discrete ways. Following the
workshop, UNEP will revise the draft Man-
ual on Compliance with and Enforcement
of MEAs to take into account the sugges-
tions from this workshop and from other
sessions of the INECE Conference, as well
as suggestions received through events
convened by UNEP.
The group also asked UNEP to
consider other, non-textual ways to
enhance the usability of the Manual. Final-
ly, some participants highlighted some spe-
cific ways that UNEP could promote com-
pliance with and enforcement of MEAs in
particular countries or contexts. UNEP is
reviewing those requests and will follow up,
as appropriate.
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140 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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SUMMARY OF WORKSHOP 2H 141
SUMMARY OF WORKSHOP 2H:
WILDLIFE ENFORCEMENT NETWORK
Facilitators: Azzedine Downes, International Fund for Animal Welfare
Yvan Lafleur, Environment Canada
Ladislav Miko, Ministry of the Environment, Czech Republic
Rapporteur: Anita Sundari Akella, Consultant, United States
GOALS
(1) To identify tools to encourage information sharing among wildlife enforcement experts
at the interagency and international levels.
(2) To establish a mechanism for coordination and exchange of information regarding
wildlife enforcement, including input from various relevant organizations and agencies.
1 INTRODUCTION
The facilitators opened the work-
shop by advancing a series of questions
discussed by the participants:
(1) What should the membership of a
wildlife enforcement network be?
(2) What is the function of a wildlife
enforcement network?
(3) How can such a network be effective
across barriers arising from level of
development, language, and culture?
2 DISCUSSION SUMMARY
Ms. Donna Campbell began the
discussion by asserting that "wildlife pro-
tection" should include not only managing
illegal trade, but also habitat protection.
Mr. Ken Ledgerwood asserted that
the wildlife enforcement network's goal
should be to break the links in the chain
that Bill Clark discussed during Panel 3
(Enforcement Initiatives: Stories of Suc-
cess) earlier in the day.
Mr. Azzedine Downes pointed out
that in the past, networks have linked
lawyers to lawyers and investigators to
investigators only, but that this is not neces-
sarily the best way to advance a network.
Instead, the network should link disparate
agencies involved in enforcement, and
even people whose direct function is not
necessarily enforcement should be includ-
ed. Mr. Peter Pueschel elaborated on the
idea by offering that such a network could
also help overcome the silence on wildlife
enforcement issues at the decision-making
table.
Mr. Ofir Drori offered his opinion
that the network should focus on two types
of objectives: strategic (giving a global view
of the problem so that appropriate respons-
es can be generated) and tactical (collabo-
rating and exchanging information on spe-
cific cases).
In response to Ms. Donna Camp-
bell's inquiry into what the problems are
with the networks that currently exist, Mr.
Yvan Lafleur declared that from the
enforcement official's perspective, a net-
work like this is only useful if it helps you
obtain information and contacts from other
countries. For instance, if you can get infor-
mation on cultural context (specific details
relevant to a particular investigation, or
help in identification of species), or on laws
in other countries (through links to expert
lawyers, etc.)
Ms. Rosalind Reeve also stated
that from a non-governmental organiza-
tion's (NGO's) perspective, a network like
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
this should provide a place to give informa-
tion on wildlife trade and smuggling issues
and cases because they often have infor-
mation, but nowhere to report it. According-
ly, NGOs should definitely be involved in
such a network, after establishing certain
protocols for NGO participation to avoid
compromising sensitive data, etc. She
explained that wildlife enforcement net-
works do exist, but they tend to be closed
off to anyone other than enforcement or
government officials (e.g. the Tiger
Enforcement working group of CITES and
the Interpol working group) and/or relate to
a specific region only (e.g. Lusaka, which is
only in Africa, only accessible to govern-
ment). Aside from this, most "networking" is
happening informally, individually, and
could probably benefit from greater cohe-
sion.
Dr. Ladislav Miko, Deputy Minister
for the Czech Ministry of the Environment,
declared that the Interpol Working Group
has been very useful to him both in finding
contacts and allowing him to make use of
technical capacity (e.g., experts or labora-
tories) in other countries. However, a major
challenge he recognized is how to institute
interaction and cooperation with non-
enforcement bodies like NGOs. Many
times, these channels are actually only
accessible by the police, and not even by
Ministry officials. Many of the "networks"
tend to be diffuse and informal, based on
personal relationships only. This lack of
cohesion may be difficult to overcome - for
instances, there are databases in different
countries that all get their information from
the same source (e.g. Ecomessage) and
yet the databases containing this same
information cannot be joined.
At this point, Ms. Donna Campbell
asked whether much of the information
would be available to NGOs if they were
even included in the network. In response,
Mr. Yvan Lafleur stated that the network
could be sanitized so that they would be
able to have access to it without any con-
cerns about sensitivity arising. On another
point, Mr. Lafleur noted that there really is
no point in the existing formal/interpersonal
networks operating in isolation, but
acknowledged that we will never be able to
change the way that the World Customs
Organization, Interpol, and others conduct
their business. Therefore, if those "clubs"
were to be part of a larger umbrella, maybe
there could be greater interaction.
Mr. Bill Clark elaborated that sensi-
tive data should not be much of an issue
anyhow, since the truly sensitive informa-
tion is not transmitted via a network, but
government to government. Mr. Peter
Pueschel added that in many instances,
sharing even nominal information can be
useful, not just the sensitive information.
Dr. Ladislav Miko illustrated this point by
arguing that information on what you do
with a seized animal - where you can send
it and be assured that they are treating the
animals well - could be facilitated by a net-
work that could give this type of 'Vetting".
Mr. Ofir Drori emphasized that it is
important to divide the objectives of the net-
work at the different levels of operation. For
instance, a network should include (a) Gen-
eral information (e.g., contacts in other
countries), (b) Strategic information (e.g.
like data found in Ecomessage), and (c)
• Tactical information that maximizes the
availability of data for operational use. The
last is the most conflicting objective
because it involves ensuring confidentiality
of data. Mr. Drori then questioned how a
network would guarantee that information
gets to the right place without spreading the
data around.
Mr. Azzedine Downes further
declared that a network should also contain
an education component that helps to
avoid repetition in training programs,
organizes capacity-building efforts,
addresses overlapping content, etc. It is
important that the network make every
effort to move beyond the management
level, actually getting down to the level of
practitioners in the field (not just ministry
level or enforcement agency decision-
maker level). Ms. Rosalind Reeve elaborat-
ed on this by stating that the fact that
enforcement agents are not involved in pol-
icy and decision-making is a major prob-
lem. Because of this, policies that are
developed are often impractical for applica-
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SUMMARY OF WORKSHOP 2H 143
tion on the ground, or ignore key real
issues. We need to also work to put
enforcement on the agenda of Multilateral
Environmental Agreements (MEAs).
Dr. Ladislav Miko interjected that a
network should be a lot of things, but per-
haps at this moment we should focus on
what is achievable now, rather than getting
too lofty or over ambitious. What seems
easily done in the short term are things like
information sharing and coordination of
training activities.
Mr. Bill Clark said that the ground
rules for this network in the first instance
should be to not engage in projects that are
big or sensitive, and to stick to activities
that are at the information level, but we can
certainly work to assist other existing net-
works, engaging in do-able mini-projects.
For instance CITES has no enforcement
authority but countries are meant to identi-
fy and list their enforcement authorities with
CITES, yet most have not - this could be a
constructive project for the network to
engage in. In addition, the network could
make a listing of the dozen most common-
ly seized Appendix I/I I animals and try to
find the best sanctuaries where they can be
sent, or identify 200 persistent offenders
worldwide and make sure that if captured,
there is some public record of it - like a
name and shame list, so that it can be con-
sulted by the CITES Management Authori-
ty or by local authorities before permits are
given. Mr. Yvan Lafleur responded that the
only problem is that this type of name-and-
shame listing may increase the risk of peo-
ple deciding not to bother getting a permit.
Mr. Ken Ledgerwood noted that
unless networks have a "nerve center" that
includes personnel and some access to
funding, they do not work. Totally informal
does not necessarily work.
Mr. Azzedine Downes added that
the International Foundation for Animal
Welfare (IFAW) and the International Net-
work for Environmental Compliance and
Assurance (INECE) are currently working
on developing a Memorandum of Under-
standing (MOD) for joint activities over five
years and will be identifying joint projects
Dr. Ladislav Miko looked at the
possibility of providing support from the
European Commission (EC) on green
issues and identified this as a major priori-
ty for his work at the EC. Dr. Miko suggest-
ed that this network may or may not have to
occur through INECE.
Mr. Peter Pueschel added that
developing a system that allowed people
access to information without having to go
through bureaucratic channels would be an
improvement. In this discussion, the priori-
tized objectives from the group he specifi-
cally noted are: (a) Information - new
trends in wildlife trade, legislation, publicly
accessible databases, and naming and
shaming; (b) Special Cooperation/
Exchange - rating shelters, developing
capacity-building standards, building
national capacity, and legislation drafting;
and (c) Advocacy/Message-Sending - this
happens automatically as the network
becomes a presence in congresses where
policy/legislation is set.
Dr. Ladislav Miko also added that it
is important to engage the NGOs by provid-
ing an address to which they can send any
information on wildlife trade/smuggling that
they have. Ms. Rosalind Reeve stated that
the Biosafety Clearinghouse of the Con-
vention on Biological Diversity is a really
great nexus of information that could serve
as a model/tool for us to learn from as we
develop the network.
Mr. Yvan Lafleur pointed out that in
order to get people to commit to giving
information into the system, it needs to be
something formal and established. Also, to
avoid people not wanting to be a part of it,
it should be based somewhere neutral.
Dr. Hedia Baccar added that the
network should also have a sub-regional
component.
3 CONCLUSION
Dr. Ladislav Miko summarized that
some "outputs" or guidelines that we have
discussed here include: (a) contacts, infor-
mation sharing, (b) a specialists group to
analyze key problems and come up with
recommendations for how each should be
handled, and (c) some regional structures
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144 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
that are linked to an international structure. (d) the functions of such a network would
In addition, the overall points seem to be as include strategic and tactical objectives,
follows: (a) Such a network is necessary general data sharing, education/training/
and useful, (b) it should be informal, but capacity building, (e) it should be corn-
under a formal umbrella, (c) it could be prised of both regional subgroups and an
under INECE but need not necessarily be, international umbrella group.
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SUMMARY OF WORKSHOP 21 145
SUMMARY OF WORKSHOP 21:
NEGOTIATED COMPLIANCE AGREEMENTS
Facilitators: Susan Bromm, Environmental Protection Agency, United States
Ike Ndlovu, Department of Environmental Affairs and Tourism, South Africa
Rapporteur: Thomas Maslany, Environmental Protection Agency, United States (retired)
GOALS
To explore the salient elements and usefulness of compliance agreements and the
motivations of industry and government regarding entry into such agreements.
1 INTRODUCTION
Ms. Susan Bromm opened the
workshop by suggesting questions that
participants should consider during the dis-
cussion:
— What motivations exist to enter into
negotiations regarding compliance
agreements for industry and for govern-
ment?
— Are there situations in which govern-
ments should not use compliance
agreements?
— What are the elements of a good compli-
ance agreement? Should some ele-
ments be non-negotiable?
— Are there examples of creative elements
that your country has included in compli-
ance agreements?
2 DISCUSSION SUMMARY
2.1 The South African Experience
Mr. Ike Ndlovu gave a presentation
on the negotiated agreement experience in
South Africa. The South African National
Environmental Management Act and Envi-
ronmental Management Cooperative Act
include provisions to negotiate agreements
that go beyond compliance with existing
requirements, so as to establish new
expectations. These provisions are intend-
ed to complement - not replace - existing
legal requirements.
To facilitate negotiations with con-
cerned parties, the government may indi-
cate that it plans to adopt new require-
ments in a particular area of concern, pre-
senting an opportunity for parties that cre-
.ate these environmental problems to have
their input recognized and addressed. Dur-
ing the negotiations, the government will
come to an agreement with the concerned
parties on new environmental targets (dis-
charge or emission requirements, product
changes, etc.), monitoring requirements,
provisions for monitoring progress towards
meeting the new expectations (mile-
stones), and periodic progress reports. As
part of this process, the government devel-
oped Environmental Cooperative Agree-
ment Guidelines to provide a framework for
the process. Mr. Ndlovu presented two
examples of this negotiated requirement
process:
— The Plastic Bag Initiative: The use of
thin plastic bags for packing purchase
goods was creating a significant trash
problem. The South African government
negotiated an agreement with the man-
ufacturers of the plastic bags to ban the
thin plastic bags and to introduce a
charge for the new plastic bags to facili-
tate recycling of the bags. They also
agreed on an acceptable thickness and
the type of ink that can be used on the
bags.
— The Vesuvius Refractory Company:
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
This company manufactured building
material and created air pollution that
was a concern. The government
imposed a control program on the com-
pany to reduce the emissions, but it did
not comply with the program, so the
government filed an action with the
court. When the court ruled in favor of
the company, the government threat-
ened to shut down the facility. The com-
pany then indicated a willingness to
negotiate a new schedule to reduce
their emissions. The agreement resulted
in full compliance with the requirements.
2.2 What Constitutes a
Negotiated Agreement?
After the presentation of the South
African experience and some preliminary
discussion, the group recognized that a
common understanding on what consti-
tutes a negotiated agreement was needed.
The group recognized four types of
negotiated agreements:
1)an agreement for a party to make
improvement to the environment beyond
what it is formally obligated to do,
2) an agreement for a party to meet a
future compliance date,
3) an agreement for a party to go beyond a
future compliance date, and
4) an agreement for a party to comply with
a past compliance date where there is
an established violation.
The last three fall into the category
of negotiated compliance agreements.
2.3 What Motivations Exist to
Enter Into Negotiations for
Compliance Agreements fo
Government and for Industry?
Motivations for government include:
— To secure agreements that get addition-
al benefits beyond compliance
— To increase the likelihood of a success-
ful resolution of the problem, since it rec-
ognizes some of the companies' needs
(compared to other alternatives)
— To save money and time, since negotiat-
ed agreements may be the most cost-
effective and timely way for the agency
to resolve a non-compliance situation if
the alternative is a potentially long and
challengeable court action
— To benefit the environment, since it may
provide a more timely return to compli-
ance
— To avoid the need to shutdown the facil-
ity, especially if the facility is providing
an important service
— To fill gaps in the requirements where
clarity is necessary.
Motivations for industry include:
— To create goodwill and a positive envi-
ronmental image
— To resolve disputes in a manner that the
company can live with in its business
plan
— To provide some certainty.
2.4 Are There Situations in Which
Governments Should Not Use the
Compliance Agreement Process?
Workshop participants concluded
that negotiated agreements should not be
used:
— Where the company will get an unde-
served benefit
— Where the agreement is unenforceable
or will not be enforced
— Where the company has a history of vio-
lating past agreements
— Where the public will not accept a nego-
tiated agreement
— Where you have a weak legal basis or
can only come up with a weak agree-
ment
— Where other alternative mechanisms
are more efficient and effective to bring
about compliance.
2.5 What Are the Elements of a "Good"
Compliance Agreement?
Workshop participants concluded
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SUMMARY OF WORKSHOP 21 147
that to be a good agreement:
— The agreement must be enforceable
— There should be an established frame-
work for negotiating an agreement
— The agreement should include a dispute
resolution process
— All parties must have the authority to
sign the agreement
— The agreement should include both
milestones and a final compliance date
— The agreement should provide for peri-
odic progress reports
— The agreement should address penal-
ties for missing a milestone
— There should be transparency and pub-
lic involvement
— The agreement should make the envi-
ronment whole (such that environmental
insults caused by non-compliance are
fully remediated).
There was considerable discussion
on the issue of "making the environment
whole". It was generally felt that while this
concept does not normally appear in nego-
tiated compliance agreements, it is an
important element for consideration. This
concept would go beyond provisions such
as cleaning up spills, to provide for reduc-
tions in emissions to the air or discharges
to the water that would offset those emis-
sions or discharges previously added to the
environment that were beyond the compli-
ance level.
2.6 Are There Examples of Creative
Elements That Your Country
Has Included in Compliance
Agreements?
Workshop participants shared the
following elements:
— Miscellaneous or collateral benefits as
part of the agreement, e.g., provisions
such as mandatory audits or Environ-
mental Management Systems that help
prevent future violations
— Training programs established by the
violator for audiences outside the violat-
ing company
— Supplemental Environmental Programs
that provide additional benefits beyond
the requirements
— Programs that establish environmental
management programs or other require-
ments in the corporate structure that is
above the facility that is in violation
3 RECOMMENDATIONS FOR INECE
Workshop participants requested
that INECE develop a guideline document
on Negotiated Compliance Agreements.
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148 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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WORKSHOP SESSION 3 149
WORKSHOP SESSION 3
Networking to Improve Enforcement Cooperation
These workshops were designed to strengthen INECE topic-specific networks, to
foster enforcement cooperation activities through INECE regional networks, and to benefit
from multi-disciplinary synergies to improve the implementation of, compliance with, and
enforcement of environmental laws in projects in the INECE Strategic Implementation Plan.
3A Water Resource Management: Governance to Eliminate Poverty
Facilitators: Romina Picolotti, Center for Human Rights and Environment,
Argentina
Barry Hill, Environmental Protection Agency, United States
Ceazar Natividad, Department of Environment and Natural
Resources, Philippines
3B Vessel Pollution
Facilitators: David Uhlmann, Department of Justice, United States
Katia Opalka, Commission for Environmental Cooperation
3C Hazardous Waste at Ports
Facilitators: Robert Heiss, Environmental Protection Agency, United States
Henk Ruessink, Ministry of Housing, Spatial Planning and the
Environment (VROM), The Netherlands
3D Analyzing the Compliance and Enforcement Mechanisms of the
Montreal Protocol
Facilitators: Jim Curlin, United Nations Environment Programme
Gilbert Bankobeza, United Nations Environment Programme
3E Enforcement of Emissions Trading Programs
Facilitators: Neil Davies, Environment Agency (England and Wales)
Chris Dekkers, Ministry of Housing, Spatial Planning and the
Environment (VROM), The Netherlands
Joe Kruger, Resources for the Future, United States
3F Illegal Logging: Regional Strategies for Enforcement Cooperation
Facilitators: Antonio Benjamin, Law for a Green Planet Institute, Brazil
Yvan Lafleur, Environment Canada
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150 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
3G Penalties and Other Remedies
Facilitators: John Cruden, Environment and Natural Resources Division,
Department of Justice, United States
Chief Justice Vladimir Passes de Freitas, Brazil
Deputy Chief Justice Adel Omar Sherif, Egypt
3H Multilateral Environmental Agreements: Synergies for Compliance
Facilitators: Carl Bruch, United Nations Environment Programme
Kenneth Markowitz, INECE Secretariat
Alberto Ninio, World Bank
Report Out from Workshop Session 3
Moderator: Wout Klein, Ministry of Housing, Spatial Planning and the
Environment (VROM)
In the following pages, the reports of these workshops are presented.
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SUMMARY OF WORKSHOP 3A 151
SUMMARY OF WORKSHOP 3A: WATER RESOURCE MANAGEMENT:
GOVERNANCE TO ELIMINATE POVERTY
Facilitators: Romina Picolotti, Center for Human Rights and Environment, Argentina
Barry Hill, Environmental Protection Agency, United States
Ceazar Natividad, Department of Environment and Natural Resources,
Philippines
Rapporteur: Marcia Mulkey, Temple University, United States
GOALS
1. Evaluate and understand the special importance of water to human life and ecosystem
preservation.
2. Link sustainable water management and water pollution control to environmental justice
and community health
3. Evaluate opportunities for INECE to support sound water policies and practices.
1 INTRODUCTION
This workshop emphasized the
vital importance of water and a general
consensus of access to clean, healthy and
adequate water as a basic human right,
individual and collective.
In the context of this basic human
rights issue, this workshop discussed the
opportunity to build bridges about the
importance of water with the international
human rights community (such as the spe-
cial rapporteurs of the Human Rights Com-
mission), the world's religious communities,
and others.
The workshop explored a number
of country-specific examples of dealing
with the challenges of water protection,
water allocation, and water management
and then discussed opportunities for
INECE to advance global efforts. Specifi-
cally, the workshop felt that the core com-
petencies of INECE should be targeted to
water issues in several important ways.
2 DISCUSSION SUMMARY
2.1 Key Points from Specific People
1. Ms. Romina Picolotti, Argentina:
As facilitator, Ms. Picolotti framed the dis-
cussion, introducing how water is being
dealt with by law and offering an Argentine
example of a poor neighborhood located
next to a Coca Cola plant. The community
lacked a water supply and used only shal-
low wells. Waste sewage from the plant
routinely overflowed, directly contaminating
water supplies. Following a lawsuit by
CEDHA (a nongovernmental organization),
the state has built a new water supply and
has introduced new national legislation dic-
tating that fees paid for a water supply will
only be used to address sewage problems
and imposing new limits on growth pending
sewage capacity.
2. Mr. Ceazar Natividad, Philip-
pines: The Philippines developed a new
system to protect a major Philippine lake
intended as a drinking water supply, based
on pollution fees (wastewater charges).
The system worked well in this lake, lead-
ing to major BOD (Biological Oxygen
Demand) improvements. It is now being
implemented nationally.
3. Mr. Barry Hill, US: As facilitator,
Mr. Hill offered the example of Haiti, with its
contaminated water and correspondingly
high illness rates; the example of Mexico
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
City, with 26 million people draining the
aquifer and depleting the drinking water
supply; and the example of the Mattaponi
Tribe in the state of Virginia, U. S., which is
dependent on a river-based lifestyle but is
faced with the diversion of the river to a
reservoir, destroying tribal culture and
lifestyle.
4. Mr. Mohamed Ben Hassine,
Tunisia: Tunisia has limited rainfall and is
reliant mostly on groundwater. Fresh water
is allocated among domestic uses, agricul-
ture, and industry and consists of 3,000
wells plus small wells, weirs (large and
small), and small lakes. Government has
developed a water allocation and conser-
vation strategy and increased ministry
resources. The focus includes increased
public awareness and changes in irrigation
practices.
5. Ms. Maria Comino, Australia:
Australia is embarking on new efforts to set
priorities among water users, including
ecosystems. In this context, it is just learn-
ing how to balance the science issues, the
political forces, the institutional complexity,
etc.
6. Mr. Daniel Geisbacher, Slovak
Republic: Use of water management plans
based on desired water uses is the main
strategy in Central Europe. This involves
decision-making about uses and pollution
standards.
2.2 Other Details of Discussions
In addition to the specific examples
set forth above, the discussion covered the
following points:
— Water is essential to life - there is a
powerful link between water and human
rights. Many states recognize a human
right to a clean, healthy environment,
including some that recognize it in con-
stitutional provisions. The inclusion of
environmental human rights into consti-
tutions does not assure actual results,
however.
— There is a well-recognized connection
between contaminated water and
human illness.
— Water is a limited resource and subject
to multiple demands, e. g., agriculture,
industry, domestic, and recreational
uses.
— Water and security issues are closely
tied. Because of the vital role played by
safe, clean water in the survival of peo-
ple and key economic systems, includ-
ing agriculture, water may prove a
tempting target for terrorists. Because
water sources may be readily accessi-
ble, especially where surface water
sources are critical, the vulnerability of
water supplies may exacerbate this
security threat.
— Water and poverty are inexorably linked.
Water can be a source of disease and
death or a lifeline to health and prosper-
ity.
— Water and technology present special
challenges. Lead piping, for example,
can create health risks for otherwise
clean drinking water sources.
— There is a clear link between climate
change and water quantity (changes in
water recharge rates and patterns;
impact on glacial melt).
— Water is involved in all the complex con-
siderations around "collective rights".
The cultural and legal approaches to
water management and water allocation
are highly interdependent with a soci-
ety's approach to property, individual
freedoms, and collective considerations.
3 RECOMMENDATIONS FOR INECE
INECE can serve as a central
depository of information about standards
for water quality management and
approaches to water allocation. (Workshop
participants noted the availability of numer-
ous documents on water quality and infra-
structure development from the Organisa-
tion for Economic Co-operation and Devel-
opment).
INECE could work with other multi-
national organizations (United Nations
Environment Programme, The World Con-
servation Union) to promote the notion of
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SUMMARY OF WORKSHOP 3A 153
clean, safe, and adequate supplies of water
as a human right (individual and collective)
and, relatedly, identify global warming as a
water supply disruption with the potential
for significant human impact.
INECE should build bridges to the
human rights international community (e.g.,
the special rapporteurs of the Human
Rights Commission) and promote dialogue
and cross-learning about water.
INECE could collect information on
best practices of integrated water use and
quality management systems that take into
account multiple users, climate changes,
and all other impacts.
INECE could feature water issues
in all products and tasks: training materials,
indicators, conference programs, etc. The
participants felt that water is of such central
importance as a cross-cutting issue that
every opportunity should be taken to
emphasize and enhance understanding of
issues relating to water.
INECE should concentrate on its
core compliance and enforcement focus in
the context of water resources issues -
going beyond pollution to all aspects of
water management (including land man-
agement as it relates to water impacts).
Current legal systems tend to separate
attention to water quality and water alloca-
tion. Although integration efforts are under-
way, the compliance and enforcement
"piece" is lagging behind. We should think
about what areas related to water are best
suited to INECE competencies and are not
well covered by other efforts.
INECE could collect information on
national experiences in the area of privati-
zation of water management and serve as
a central information source. (Workshop
participants recognized that the issue of
privatization is complex and potentially
controversial.)
INECE could explore partnering
with the world's religious communities on
issues relating to water and its importance
(starting, perhaps, with awareness raising).
INECE could supplement the exist-
ing work on integrated water resource plan-
ning and management to be sure that
enforcement and compliance are ade-
quately covered.
INECE should work to build capac-
ity for good governance practices to assist
countries in meeting their water resource
management obligations.
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SUMMARY OF WORKSHOP 3B 155
SUMMARY OF WORKSHOP 3B: VESSEL POLLUTION
Facilitators: David Uhlmann, Department of Justice, United States
Katia Opalka, Commission for Environmental Cooperation
Rapporteur: Andrew Lauterback, Environmental Protection Agency, United States
GOALS
— To explore the successes and failures of existing compliance and enforcement
mechanisms to limit pollution, including oil, wastes, and CFCs, from marine vessels
— To propose innovative methods to remedy current gaps in enforcement
1 INTRODUCTION
The workshop facilitators opened
the session by framing the definition of ves-
sel pollution, which includes:
1. accidental oil spills; and
2. waste generated on-board and dis-
charged from the ship in violation of an
international treaty, such as MARPOL.
2 DISCUSSION SUMMARY
Participants heard about a Canadi-
an initiative that would build on the mini-
mum standards provided in MARPOL. To
address bird mortality caused by ocean
dumping of oily bilge water, the Parliament
of Canada is considering amending envi-
ronmental statutes to facilitate evidence-
gathering by allowing game officers, within
Canada's 200 mile Exclusive Economic
Zone, to detain, board, inspect, and redi-
rect ships suspected of ocean dumping.
The workshop participants then
focused their attention on what efforts are
working to control vessel pollution, the
challenges enforcement officials confront,
and recommendations for improving the
effective enforcement of vessel pollution.
2.1 What Is Working?
1. The existing treaty, MARPOL (The Inter-
national Convention for the Prevention of
Pollution of Ships), establishes the base
for vessel pollution control.
2. In most countries, domestic laws have
been passed to implement MARPOL.
3. There have been some prosecutions
and appropriate penalties.
4. There is international interest, and there
are international efforts, in the realm of
vessel pollution control, like Interpol's
Project Clean Seas.
5. There is massive public support.
2.2 Challenges for Enforcement
1. The target is a powerful worldwide indus-
try with a long history of ineffective self-
regulation.
2. There is limited or no enforcement by the
flag state authority.
3. Most discharges occur on the high seas
and so are difficult to detect.
4. Evidence of vessel pollution is hard to
gather.
5. Investigations can be expensive, espe-
cially those involving holding ships at
port.
6. Training of ships' crews on best manage-
ment practices is inadequate.
7. There is a lack of adequate disposal
facilities at ports.
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
2.3 Recommendations for
Improving Enforcement
1. Strengthen domestic laws everywhere,
especially concerning the extension of
jurisdiction to the Exclusive Economic
Zone and the strengthening of extradi-
tion treaties, whistleblowing provisions,
and the criminal culpability of captains,
corporate officers, directors, and agents.
2. Improve evidence gathering, for instance
through the use of satellite technology
and the sharing of information (including
data bases and information on leads)
3. Build the capacity of investigators and
regulators.
4. Develop a manual of best practices for
investigations.
5. Participate in the International Maritime
Organization.
6. Promote the increased availability of on-
shore disposal facilities.
7. Eliminate the concept of flag states of
convenience.
8. Partner with NGOs concerned with
wildlife and pollution to develop a strate-
gic public relations and education cam-
paign to alert people to the massive
scope of the problem (public education,
according to the workshop participants,
is the most important recommendation).
3 RECOMMENDATIONS FOR INECE
INECE is in a unique position to
provide significant support for international
efforts to regulate and enforce against ves-
sels discharging waste at sea . The recom-
mendation proposed by the workshop par-
ticipants that fits most neatly within
INECE's mission is the development of a
public relations and education campaign to
alert people to the scope of the problem.
INECE can also provide a forum for regula-
tors and enforcement officials to come
together to work on issues related to vessel
pollution. Lastly, INECE can represent its
members before other international bodies
and advocate new approaches to control
pollution from ships.
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SUMMARY OF WORKSHOP 3C 157
SUMMARY OF WORKSHOP 3C: HAZARDOUS WASTE AT PORTS
Facilitators: Robert Heiss, Environmental Protection Agency, United States
Henk Ruessink, Ministry of Housing, Spatial Planning and the
Environment (VROM), The Netherlands
Rapporteur: Fred Kok, National Board for Compliance and Enforcement,
The Netherlands
GOALS
— To design a project to improve enforcement to reduce shipments of hazardous waste
through ports.
— To discuss success stories (including the IMPEL-TFS project), potential new partner
countries, and synergies with the Green Customs Initiative.
1 INTRODUCTION
At the start of the workshop, the
facilitators gave short introductions to the
subject, highlighting the fact that interna-
tional transport of waste is a growing prob-
lem that needs serious attention, and not-
ing the growing awareness about the prob-
lem.
2 DISCUSSION SUMMARY
Workshop participants offered the
situation in the United States as an exam-
ple of the growing awareness of the prob-
lem. As a consequence of the September
11th attacks, U.S. Customs agents are now
more aware of all kinds of international
transport, including transport of waste.
Therefore, customs has become a natural
partner in the fight against illegal waste
trading, and greater attention has been
paid to both import and export procedures,
as well as the need for new approaches for
tracing waste streams.
There are also initiatives from the
United Nations Environment Programme
(UNEP) to support data systems. Addition-
ally, there is awareness that international
cooperation is urgently needed to tackle
the problem. Exchange of information is
essential, although uniform definitions and
interpretations are often difficult to achieve
with many parties involved in the process.
Nevertheless, we have to realize
that each of us faces similar problems. So
we should work together to solve some of
the difficulties and use the opportunities
and strength of the INECE network to learn
from good practices and to disseminate
valuable information.
Some valuable experiences are
available from the IMPEL-TFS project. This
project, which was presented in brief, com-
bats illegal transfrontier shipments of waste
from European harbors to non-OECD
(Organization for Economic Cooperation
and Development) countries. Further
details can be found in a separate paper,
as published in Nancy Isarin's paper in Vol-
ume 1 of the 7th INECE Conference Pro-
ceedings.
In the subsequent discussion, it
was stipulated that our common goal
should be to stimulate and coordinate
enforcement and compliance through joint
projects dealing with hazardous waste at
ports. Countries in both the developed and
the developing world should participate in
these projects, since a lot of waste is
shipped from developed countries to devel-
oping countries to avoid the cost of proper
recycling or disposal. In the countries
receiving waste, there is often little or no
legislation; enforcement is often weak or
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
missing; and proper treatment/storage
facilities may be absent. Human health and
the environment are consequently put at
risk.
3 RECOMMENDATIONS FOR INECE
To stimulate proper action, INECE
could take the initiative to create and coor-
dinate an action plan with clearly defined
goals, project partners, a funding strategy,
and a scheme for implementation. Potential
partners are: IMPEL-TFS, Green Customs,
UNEP, the World Customs Organization
(WCO), Interpol, the Basel Secretariat,
Basel Action Network, the Chemical Legis-
lation European Enforcement Network
(CLEEN), OECD, the North American
Commission for Environmental Coopera-
tion (CEC), Silicon Valley Toxics Coalition,
the Strategic Council on Security Technolo-
gy, Toxics Link, and other NGOs. After
adoption of the action plan, a report on the
enforcement cooperation project might be
expected in spring of 2006.
Based on the ideas of the work-
shop participants, some components of the
action plan could be the following:
— INECE participants should organize a
simple and effective initial means for the
exchange of TFS-data. At this stage, it is
not desirable to invest a lot of effort in
setting up sophisticated databases
since that would require too much time
and too many resources; in addition, the
essential underlying infrastructure is
missing.
— INECE participants should recommend
focal points in each of the relevant inter-
ested countries, as is done in IMPEL-
TFS projects. The purpose of these
focal points is to disseminate general
knowledge and to exchange specific
information on shipments with focal
points in other countries. The ideal focal
point should have good contacts with
other TFS stakeholders in his/her coun-
try, such as customs, police, and NGOs.
In conjunction with the focal points, joint
inspections should be organized for
training and instruction, as well as a
means to share and adopt good prac-
tices in tackling TFS problems.
INECE participants should devise a sim-
ple instrumental toolkit that interested
countries can use to find out whether
they have a (potential) problem with TFS
through their harbors. Through the use
of this toolkit, the situation with respect
to TFS can be brought to some clarity in
those cases where basic information on
the subject is currently lacking.
Further work on raising awareness of
the problem of (hazardous) waste ship-
ments is needed. Such work could
include ensuring that media outlets pick
up and spread stories of successful
enforcement cases against illegal waste
transports. Naming and blaming the
offenders could also be considered. To
get the problem on the political agenda,
providing information to NGOs and the
general public is essential so that politi-
cal pressure can be built.
Based on what is known from IMPEL
projects and other information, INECE
participants should identify harbors in
countries or regions that are probably
the most sensitive targets for illegal
shipments, as well as specific waste
streams that represent the most severe
risks. An initial focus for follow-up activi-
ties can then be defined.
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SUMMARY OF WORKSHOP 3D 159
SUMMARY OF WORKSHOP 3D: ANALYZING THE COMPLIANCE AND
ENFORCEMENT MECHANISMS OF THE MONTREAL PROTOCOL
Facilitators: Jim Curlin, United Nations Environment Programme
Gilbert Bankobeza, United Nations Environment Programme
Rapporteur: Scott Stone, INECE Secretariat
GOALS
To explore the role that INECE can play in:
— Building capacity for compliance and enforcement in developing countries with regard
to the Montreal Protocol.
— Encouraging the enforcement community in developed countries to share thei compli-
ance and enforcement expertise with developing countries so they can implement the
provisions of the Montreal Protocol effectively.
1 INTRODUCTION
Mr. Jim Curlin gave an introductory
presentation on the basic features of the
Montreal Protocol. Adopted in 1987, the
Montreal Protocol was designed to phase
out the use of ozone-depleting substances
(ODS) and is generally regarded as the
most successful multilateral environmental
agreement (MEA).
The Montreal Protocol has entered
what is termed the "late stages" of imple-
mentation. This means that the developed
world has largely come into full compliance
with its terms and that the production and
use of ODS has been virtually eradicated.
However, problems remain in the develop-
ing world where ODS are still produced and
used. Many of these countries contribute to
a significant black market for ODS in the
developed world.
In 1991, the Multilateral Fund for
the Implementation of the Montreal Proto-
col was established to provide developing
countries with the funding necessary to
comply with the terms of the treaty. Man-
aged by the United Nations Development
Programme (UNDP), United Nations Envi-
ronment Programme (UNEP), United
Nations Industrial Development Organiza-
tion (UNIDO), and the World Bank, the fund
has supported 4,600 technical capacity-
building projects for 134 developing coun-
tries worth 1.75 billion U.S. dollars. It will
phase out 182,690 tons of ozone depleting
potential (OOP) consumption, and 62,200
tons of OOP production. Most of this has
already been accomplished as of 2004.
To qualify for assistance from the
Multilateral Fund, a Party must have coun-
try programs (implementation and compli-
ance strategies) in place. Also, the data
that a country submits to the fund must be
timely and accurate to be considered. Reg-
ular technological assessments of each
country are made every two years to moni-
tor compliance with the treaty.
The goal, of course, is to build suf-
ficient capacity in developing countries so
that it can meet its legal obligations under
the treaty. They keys to national compli-
ance include national policies, legislation,
regulations, directives for licensing and
quota systems, export controls, bans on
equipment using ODS, and economic
instruments. Compliance and enforcement
stakeholders include government agencies
(foreign affairs, environment, customs,
agriculture, judiciary), industry (ODS users
and producers, importers), and civil society.
Compliance assistance under the
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Montreal Protocol includes institutional
strengthening for National Ozone Units
(NOUs) (which are responsible for imple-
mentation and compliance), national and
industry-sector compliance strategies, and
investment and technical assistance from
UNDP, UNIDO, and the World Bank. UNEP
operates a compliance assistance program
that consists of policy development and
enforcement, data reporting, customs train-
ing, technical support, information, and
communication.
There are frequent meetings
among the many national NOUs to
exchange experiences, ideas, and knowl-
edge and to develop skills. These meetings
are opportunities for sharing data and intel-
ligence, and they have proven to be a cost-
effective and constructive way to assist
developing countries with their enforce-
ment efforts.
Mr. Curlin pointed out, however,
that there are still pressing issues unre-
solved. First there is a great need for devel-
oped countries, other MEAs, and non-
governmental organizations to transfer
real-world compliance and enforcement
experiences and knowledge from devel-
oped countries to developing countries.
There need to be bilateral exchanges on
specific issues, both North-South and
South-South, matching peer-to-peer
inspectorates to address different issues.
Furthermore, there should be a focus on
training officials, prosecutors, and judges in
all countries so they know the most effec-
tive way to adjudicate customs seizures
and how to levy and enforce penalties that
will further effective implementation of the
Montreal Protocol.
Mr. Curlin concluded his introduc-
tion with a brief summary, noting that: (1)
the Montreal Protocol is succeeding, but
much work remains to be done; (2) compli-
ance is being achieved, and treaty goals
are being met, and (3) the ozone layer is on
a path to recovery
2 DISCUSSION SUMMARY
2.1 Capacity Building
There is a need to establish com-
mon and realistic goals for capacity build-
ing that developing countries are able to
meet. When building capacity, all efforts
need to be made to create transparent
national enforcement and compliance
regimes. Training environmental and cus-
toms officers as well as members of the
judiciary and legislature is essential, and
current training programs must be main-
tained and expanded.
Additionally, there must be a com-
mon international program of compliance
verification, and the results must be made
publicly available. The resulting public input
will give the Parties incentives to improve
their compliance records.
2.2 Regulating Producers of CFCs
— The 1997 Montreal Amendment to the
Montreal Protocol introduced a system
for licensing the import and export of
controlled substances. Under this
regime, each manufacturer is licensed
for each product it produces. A good
number of parties have implemented
this licensing system, and by controlling
the number of licenses issued, these
parties are able to identify illegal manu-
facturers. Though many countries
adopted this system, there are often few
or no supporting enforcement mecha-
nisms; if the licensing system is not
backed up by enforcement mechanisms
(with both trade and use aspects), it is
meaningless. This has allowed black-
market production of ODS to flourish in
many countries around the world. This
illegal production supplies black-market
consumption in Party nations that have
already successfully regulated their own
producers, thus undermining the goal of
the licensing system to regulate and
reduce the amount of ODS production.
— The Multilateral Fund (MLF) finances
the closure of the CFC/Halon producers.
The state government must agree with
the MLF that the government will use
the funds to reduce the number of these
facilities and the amount of the
CFC/Halon produced. The MLF will
freeze the delivery of funds unless the
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SUMMARY OF WORKSHOP 3D 161
government delivers clear proof of
progress. Mexico has gone fully out of
production as of May of 2005.
— The MLF also has a complete list of
every facility that produces banned sub-
stances.
— Quite often CFCs are used in fine chem-
ical production that once occurred in
developed nations. When this manufac-
ture is moved to developing countries
with weaker enforcement mechanisms
and production controls, the production
of CFCs can actually increase. This
combined with irresponsible handling
and less sophisticated facilities can work
to undermine the goals of the Protocol to
reduce/eliminate ODS all together.
Regional programs may be a good way
to help developing nations regulate
these industries and enforce the terms
of the Protocol. A regional program will
allow local countries to pool and focus
resources on the biggest problems first
and will be sensitive to local needs.
2.3 Regulating International Trade
of Banned Substances
— The developed countries have a great
need for enforcers to gather intelligence
and identify the sources of illegally
imported products.
— It is relatively straightforward to develop
a database for banned substances that
are coming in and out of a country.
Because of the size of the CFC market
and the fact that the chemicals are com-
ing in from a multitude of different
sources, some countries have decided
that the way to attack this problem is to
focus on the importer/exporter, which
are more easily targeted and which are
often responsible for massive amounts
of illegal traffic and commonly deal in
numerous chemicals and products.
— Current MLF efforts to provide countries
with the equipment and technology nec-
essary to catch ODS at their borders are
both expensive and inefficient, because
the volume of trade crossing a border at
any given time is so immense. Instead,
environmental inspectors should be
tasked with tracking the illegal products
back to the importer/exporter. The track-
ing process should begin with the
receiving market, because looking on
store shelves is easier than trying to
identify illegal ODS as they cross the
border in the stream of commerce. Fur-
thermore, if the investigation traces the
ODS back from the store to the manu-
facturer, the environmental agent will
discover the source of the ODS and
whether that source is responsible for
more than one ODS. Then the agent
can verify whether the country of manu-
facture is allowed to produce that ODS.
How the success of an import/export
enforcement regime is measured is
important. If a retailer is caught with
ODS in its merchandise, busting the
shopkeeper is not an efficient or judi-
cious remedy, because a manufacturer
may have a market that involves thou-
sands of retailers and covers dozens of
products. Therefore, indicators that sim-
ply measure the number of busts is not
the best way to measure success;
arresting a hundred shopkeepers has
less of an environmental impact than
stopping a single import/export opera-
tion that brings huge quantities of ODS
into the country. Furthermore, it often
costs the same amount to bust the
shopkeeper as it does to bust the
importer, and an agency may only have
enough resources to bust one of them.
Even investigating an import/export
operation without a bust can cause a
major upheaval in business and deter
illegal activity.
Some developing countries do not need
to be in compliance until 2010 and are
not currently prohibited from manufac-
turing CFCs. They can export legally; it
is only the imports that are illegal. There-
fore, the enforcement community needs
to focus on the importers and not the
producers. If enough importers are bust-
ed, the producers will be deterred
because their market will become unsta-
ble.
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
— MLF is trying to promote some coopera-
tion between importing and exporting
companies. The developing country
exporter can provide a list to importers
in developed countries about who is
authorized to produce CFCs. This is an
excellent use of Montreal Protocol
regional networks because it identifies
bad exporters.
— MLF is trying to develop indicators to
monitor laws that limit the import/export
of CFCs. The first indicator should be
whether a country has a list of author-
ized importers. If a country does not
have such a list, it may show that they
are not concerned about the
import/export of CFCs.
— The representative from Bahrain sug-
gested that they need assistance to
avoid giving anyone an exception to
import into the country if they are not
known to be legal CFC importers/manu-
facturers. Bahrain also needs to know
about aerosols/sprays, e.g. which facto-
ries legitimately manufacture them with
CFCs. This is a question that could be
addressed by posing it through the net-
work to other countries.
2.4 Judges, Prosecutors, and
Inspectors
— Education for judges and prosecutors is
a very high priority. It is also critical that
the on-the-ground enforcement commu-
nity is educated on environmental policy
matters including the Montreal Protocol.
— Prosecutors and judges must be able to
evaluate the societal costs of environ-
mental damage. They need to be able to
understand the actual significance of
each violation and to levy penalty/reme-
diation judgments appropriately. For
instance, it may seem impractical to
prosecute the selling of the toy "Silly
String", but if the dangers of the CFCs
that may be contained in the product
were understood, the importer of such a
product would receive a stiff fine.
— INECE emphasizes that environmental
goals should always be reflected in the
regulations and requirements that
embody them. Inspectors should under-
stand the significance of these broad
environmental policies. Inspectors
should understand not just how many
violations they need to detect, but the
significance of that quantity in relation to
the overarching environmental objec-
tive. This would encourage the input of
inspectors and enforcers in the creation
of domestic regulation which, all too
often, neglects adequate enforcement
mechanisms.
2.5 Legislation/Regulation
— Countries need to pass regulations that
include specific instructions for industry
on how to comply with the terms of the
Montreal Protocol. A company simply
cannot be expected to interpret the
Montreal Protocol alone and bring itself
into compliance without national policy
and regulation. The government should
identify the types of activities deemed to
be illegal and communicate this informa-
tion to the company clearly.
2.6 Disposal
— An example of a common disposal prob-
lem was raised: Once an old refrigera-
tor reaches the end of its lifespan, it is
often disposed of in the developing
world. If the refrigerator is destroyed
there, there may be a release of CFCs
into the atmosphere. Often, however,
the refrigerator is re-used, because it is
cheaper to refurbish it and add new
refrigerant than to buy a new refrigerator
with non-CFC refrigerant. The recycling
of refrigerators from the developed
world keeps the CFC production indus-
try alive in many developing countries
where they are trying to phase out CFC
use.
— Under the Basel Convention for the
Transboundary Movement of Hazardous
Waste, the refrigerator could be consid-
ered waste. However, the definition of
waste varies depending on disposal ver-
sus re-use, so its regulatory status
under Basel is unclear depending on
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SUMMARY OF WORKSHOP 3D 163
whether the refrigerator is shipped for
disposal or for re-use.
3 RECOMMENDATIONS FOR INECE
— INECE should work with various regions
on developing regional enforcement
programs.
— INECE should work with the Parties to
develop a mechanism for evaluating
program success that is not based sim-
ply on the number of citations.
— INECE should help Parties build capac-
ity to identify illegal importers/exporters.
— INECE should expand its educational
programs to include CFC policy for judi-
cial and enforcement communities.
— INECE should consider distributing a list
of known manufacturers of CFCs.
INECE needs to link up with the Montre-
al Protocol website that contains the list,
and the outcomes of this workshop also
need to link to both sites.
INECE should create a global website
for all information on CFCs, containing
information relevant to enforcement and
compliance promotion. It would include
things such as: reasons and need for
legislation, descriptions of the products,
how they can be located, main countries
of origin, alternate uses, substitute uses,
what types of products, scales for fines,
etc.
INECE needs to work with regulation
writers to make sure that the regulated
community will be able to understand
what they need to do to comply with leg-
islation implementing the Montreal Pro-
tocol.
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164 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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SUMMARY OF WORKSHOP 3E 165
SUMMARY OF WORKSHOP 3E: ENFORCEMENT
OF EMISSIONS TRADING PROGRAMS
Facilitators: Neil Davies, Environment Agency (England and Wales)
Chris Dekkers, Ministry of Housing, Spatial Planning and the
Environment (VROM), The Netherlands
Joe Kruger, Resources for the Future, United States
Rapporteurs: Arthur Roborgh, Ministry of Housing, Spatial Planning and the
Environment (VROM), The Netherlands
Martine Meerburg, Ministry of Housing, Spatial Planning and the
Environment (VROM), The Netherlands
GOALS
To explore the role that INECE can play in developing a consistent world-wide trading
scheme of greenhouse gas (GHG) emissions.
1 INTRODUCTION
To answer the aforementioned
inquiry as to the role of INECE in develop-
ing and enforcing a consistent world-wide
trading scheme of GHG emissions, the
workshop was divided into two parts that
discussed the requirements for:
1. Enabling the private sector to comply
2. Enabling the Competent Authority to
ensure and enforce compliance.
The aim was to get:
— Three recommendations on part 1 for
enabling compliance and three recom-
mendations for enforcing compliance
— Three recommendations on part 2 for
enabling compliance and three recom-
mendations for enforcing compliance
Finally, it was decided to try to
draw more general recommendations
directly related to the main inquiry as raised
above. These recommendations were pre-
sented by Mr. Joe Kruger as bullet points
during the plenary meeting of INECE.
2 DISCUSSION SUMMARY
Mr. Neil Davies started by outlining
the aim of the workshop: to review the
design elements of an emissions trading
scheme, including allocations, legislation,
institutional arrangements, and regulation
to ensure compliance.
Mr. Chris Dekkers then gave an
overview of the European Union Emissions
Trading Scheme (EU-ETS) Directive on
carbon dioxide emissions trading, using a
PowerPoint presentation now available on
the INECE website (www.inece.org). He
emphasized that compliance by the private
sector depends heavily on proper monitor-
ing (e.g., the European Commission's Mon-
itoring & Reporting Guidelines), proper
reporting, and proper verification (e.g., the
European Accreditation Cooperation's
guidance note and verification protocols).
Furthermore, he highlighted that regula-
tions to enforce compliance by the compe-
tent authority are aimed at the use of an
electronic registry, inspection, enforce-
ment, and sanctions.
Mr. Joe Kruger focused his presen-
tation on compliance and enforcement in
the United States concerning SO2 and NOx
emissions trading programs and gave a
U.S. perspective on key similarities and dif-
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
ferences with the EU-ETS trading
schemes, supported by a PowerPoint pres-
entation. In this presentation, Mr. Kruger
outlined the following:
1) emissions monitoring, reporting, and
verification,
2) data systems concerning emissions and
allowance registries,
3) penalties and enforcement provisions,
and
4) public access to emissions and
allowance data.
Next, there was a short question-
and-answer session, after which the group
tried to answer the questions outlined
above. The first conclusion was that in
many countries, there is a sizeable knowl-
edge gap for environmental compliance
and enforcement experts on the require-
ments, conditions, and costs of emissions
trading. For this reason it is important to
raise awareness and exchange information
on the lessons learned from existing
schemes.
3 RECOMMENDATIONS FOR INECE
There was agreement that INECE
could develop introductory materials (e.g.,
Frequently Asked Questions documents)
on compliance and enforcement aspects of
emissions trading, and could provide a plat-
form for exchanging information and data
between environmental compliance and
enforcement experts. Regarding specific
activities, INECE could develop an enforce-
ment and compliance manual for emissions
trading, with best practices and basic
requirements. INECE might also facilitate
or sponsor an analysis that compares the
practices of 'third party verification' to the
traditional role of the regulator in verifica-
tion. More generally, INECE could play a
vital role in future initiatives to set up guide-
lines for compliance and enforcement of
emissions trading. INECE could also be the
forum for creating linkages between envi-
ronmental compliance and enforcement
experts and international organizations like
the European Union, international accredi-
tation bodies, the European Union Network
for the Implementation and Enforcement of
Environmental Law (IMPEL), and the Unit-
ed Nations Framework Convention on Cli-
mate Change (UNFCC).
3.1 General roles for INECE
— Raise awareness, and provide informa-
tion and clarification
— Serve as a resource on emission trading
activities in different countries
— Establish links with other parties
involved (accreditation bodies, UNFCC,
IMPEL etc.)
— Aim for a balance on general consisten-
cy and flexibility in international trading
schemes
3.2 Various products that INECE
should develop
1. A simple document on elements of emis-
sions trading schemes, including Fre-
quently Asked Questions
2. Give more information on:
a. skills
b. training requirements
c. data gathering and sharing
d. monitoring requirements and
standards
e. other technical issues
f. third party verification and regulatory
input
g. sanctions
h. costs and financial and environmental
benefits (compared to tax systems)
3. A workshop in the near future for practi-
tioners
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SUMMARY OF WORKSHOP 3F 167
SUMMARY OF WORKSHOP 3F: ILLEGAL LOGGING: REGIONAL
STRATEGIES FOR ENFORCEMENT COOPERATION
Facilitators: Antonio Benjamin, Law for a Green Planet Institute, Brazil
Yvan Lafleur, Environment Canada
Rapporteur: Anita Sundari Akella, Consultant, United States
GOALS
— Identify a set of common issues that will allow the international and national institutions
working on deforestation issues to work together on logging sector enforcement in the
context of the International Network for Environmental Compliance and Enforcement
(INECE).
— Come up with a concrete proposal that will allow INECE to move into this new direction,
in the 'green' sector.
1 INTRODUCTION
The facilitators opened the discus-
sion by asking the participants to draw on
their countries' experiences to define illegal
logging. The facilitators then progressed
the workshop by opening discussion of
what the international issues are and how
they should be prioritized. They then raised
the question of whether the international
community should be targeting a particular
type of illegal logging. Finally, the discus-
sion group talked about the proper role for
INECE and the international community.
2 DISCUSSION SUMMARY
Mr. Antonio Benjamin opened the
workshop by acknowledging the various
definitions of illegal logging and asked the
participants to give a definition based on
what goes on in their respective countries.
Dr. Ladislav Miko explained that in
the Czech Republic, no clearcutting of
areas greater than one hectare is allowable
by law, and landowners are required to
leave seventy percent of the trees on their
land standing. However, it is not always the
owner that cuts, and often criminals come
in and extract timber. Sometimes the prob-
lem is a different one - for instance, in the
Caucasus, poor people were breaking the
law by cutting timber for fuelwood, so that
they could avoid freezing. Dr. Miko
expressed the difficulty in enforcing the law
in such situations.
Dr. Miko added that the Czech Min-
istry of the Environment has developed a
system for evaluating ecological damages
in the forest, based on 12 years of
research. The specific system is particular
to Czech forests and will not be applicable
in other sites; however, the system's funda-
mentals can serve as a basis for those
wishing to calculate damage to forests in
other countries.
Picking up on Dr. Miko's observa-
tion about poor people and logging, Ms.
Sheila Abed responded that in much of
Latin America, illegal logging is linked to
poverty issues. Deforestation happens
because of land use change, often slash
and burn agriculture by squatters who
sometimes work with traders to sell valu-
able wood before clearing. However, these
types of deforestation are difficult to fight
because they are closely linked to social
and political issues.
Ms. Brenda Brito further explained
that in Brazil, there are "legal reserve"
requirements - for instance, in Amazonia,
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
landowners are required to retain eighty
percent of their land as forest. In other
parts of the country, it is twenty percent.
However, this law is neither complied with
regularly nor enforced effectively.
Mr. Tony Oposa added that in the
Philippines, no logging beyond the allow-
able cut is allowed, but it happens. There is
also conversion of forestland to other uses
by poor people. Often, selective logging
opens roads that small farmers and the
landless use to enter the forest, which they
then convert.
Ms. Rosalind Reeve illuminated
some of the transnational issues with log-
ging regulation. In Kenya, people were
allowed to cultivate among the trees in pro-
tected areas - until it was discovered that
they were growing all kinds of things
(including marijuana). The government
then clamped down. They began requiring
a permit for any cutting on private lands or
for any transport of timber. The result has
been that the timber coming into Kenya
now is largely harvested illegally from the
Congo. The Congo has a good law, but
it is not implemented - in the Eastern
Congo, for instance, there is no enforce-
ment at all.
Mr. Ofir Drori explained that in
Cameroon, illegal logging mainly takes the
form of companies not staying within the
rules of their concessions - they break reg-
ulations regarding diameter, species, and
quantities. These companies control the
law enforcement agencies and so there is a
lot of corruption. The government is also
reluctant to be too strict with the rules
because they do not want the companies to
leave the country and do business else-
where instead. There is some small-holder
illegal logging once the big companies
have left, but this is not the major problem.
Mr. Antonio Benjamin responded
that in Brazil, the problem differs according
to where you are. In the developed south,
deforestation and illegal logging are minor
issues, and development (along the coast,
in the Atlantic Forest, and in agricultural
areas) is the main problem. In the north,
logging is not as much of an issue as
expansion of the agricultural frontier - driv-
en by large, wealthy agro-business. Peas-
ants are sometimes used by them to do
their dirty work, but are not the main actors.
If you address the big actors in this region,
it could have considerable impact on the
ground even if it does not stop expansion
altogether. The issue is complicated
because this is a region of low develop-
ment, and a lot of export income comes
from the soy that is being grown here. Mr.
Benjamin asked how it is possible to battle
this kind of deforestation.
Mr. Benjamin further noted that
many compliance and enforcement issues
have to do with the legal framework itself.
The precautionary principle is important - if
appropriate uses of the resource are pre-
scribed in the law, it is much easier to do
compliance and enforcement. For instance,
Brazil's legal reserve system is established
in the law and if it were complied with,
eighty percent of the Amazon and twenty
percent of the remainder of the country
would be conserved. This is not the case,
but if there is political will, it should be pos-
sible to enforce this law.
The facilitators summarized that
overall, based on what everyone had said,
the problem of illegal logging is widespread
and caused by a number of contributing
factors that legislation and enforcement will
have to tackle. With this in mind, the facili-
tators urged participants to focus on the
goal of developing concrete proposals that
INECE can work on in the illegal logging
realm, with a focus on enforcement.
Dr. Ladislav Miko suggested that
the workshop participants should decide
what the priorities within INECE relevant to
this topic should be, since many issues
should be handled nationally. He then sug-
gested focusing on (a) what the internation-
al issues are and (b) how to prioritize them.
Mr. Peter Pueschel added that the
working group should keep in mind what
the capacities and sphere of impact of
INECE are. For instance, they may be high-
ly effective at making economic arguments
that can show the links between illegal log-
ging and demand in consumer countries. It
is important to make efforts on both the
consumer and producer side. Enforcement
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SUMMARY OF WORKSHOP 3F 169
officials need tools, and those tools should
be provided.
Mr. Antonio Benjamin observed
that these ideas point to building support
for a project proposal on illegal logging.
Mr. Yvan Lafleur suggested that
the group should consider which aspects of
illegal logging they can hope to influence.
He summarized by identifying the following
types of illegal logging in the conversation:
(1) Social - Mr. Lafleur questioned whether
INECE could really address logging that
has to do with social issues.
(2) Technical - loggers are not respecting
the details of cutting (diameter at breast
height, etc.) in their concessions.
(3) Commercial - companies are not
respecting the law, either because they
do not care or because there is no
enforcement. Mr. Lafluer identified this
type of illegal logging as having the
most impact at the international level.
(4) Criminal.
The facilitators posed the question
of whether the group wanted to target its
activities to any particular type of illegal log-
ging-
Mr. Ofir Drori thought that the
group should restrict itself to things that are
(a) under the law (i.e. not social) and (b)
international. The most logical target is the
large companies, because their behavior
has implications beyond their borders. One
idea could be to build a network that can
share information that could be helpful in
criminal proceedings
Ms. Brenda Brito explained that the
problem in Brazil is a bit different, as the
majority of Brazil's illegal timber is con-
sumed domestically, making it a domestic
issue. Ms. Brito thought it would be useful
for INECE to hold a regional meeting to dis-
cuss how to:
(a) identify major organizations/stakehold-
ers involved in illegal logging,
(b) identify existing legal mechanisms in
regional countries and test other inno-
vative ones that might work (i.e., using
negotiated compliance agreements in
this sector rather than strictly focusing
on command and control),
(c) provide technical assistance to compa-
nies and loggers who might log legally
if they knew how and understood what
the rules were, and
(d) provide capacity building and training
for local agencies working on enforce-
ment.
Ms. Rosalind Reeve suggested
that the group should concentrate on what
is beyond the law, what is international, and
what INECE is good at (for instance, which
tenets of brown-side enforcement can be
translated for the green side?).
Mr. Peter Pueschel elaborated that
information exchange on trade routes is
important and questioned whether capacity
support for enforcement agencies will be
harder where there are large multinationals
involved. He added that there is a need for
national enforcement capacity building to
help look at (a) organized criminal sector
illegal logging activity (including linking to
work being done by Interpol) and (b) com-
panies that are just taking advantage of
weak enforcement.
Mr. Antonio Benjamin supported
the framework suggested by Brenda Brito
and advocated for thinking about a global
meeting of experts on forest sector
enforcement - something that will help to
legitimize this message by discussing it
with a broader audience. He also suggest-
ed working with The World Conservation
Union's (IDCN's) Commission on Environ-
mental Law.
Dr. Ladislav Miko further suggest-
ed that if there is to be such a workshop,
the topic to be discussed must be very
clear and that it would be helpful to priori-
tize the places where there is a link
between illegal logging and primary habi-
tat/biodiversity. He explained that if they
could bring key people in forest sector
enforcement together and get them speak-
ing the same language, it would be an
advance.
Mr. Yvan Lafleur suggested a
series of regional meetings that lead up to
an international meeting, because of Ian-
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
guage and culture barriers. However, Ms.
Rosalind Reeve disagreed, suggesting
instead an international meeting that would
then spawn regional meetings. She also
suggested including nongovernmental
organizations (NGOs) active in this area
(Global Witness, Environmental Investiga-
tion Agency, Chatham House) in such a
meeting.
Mr. Peter Pueschel advocated for
focusing on understanding who the interna-
tional companies doing illegal logging are
and identifying the international trade
routes used by these companies and their
partners on the ground. He further stated
that this international meeting should have
a limited number of participants.
Mr. Matthew Cooper suggested
that INECE, because of its access to
experts, can give advice about how to gen-
erate and share information. It can also
access NGOs who do not have access to
information - through appropriate messag-
ing and sound advice.
Mr. Yvan Lafleur stated that local
input would be required and that it is hard
to create guidelines or messages that are
global.
Ms. Anita Akella suggested incor-
porating conservation NGOs who are de
facto "working on enforcement" as part of
their conservation work on the ground.
However, Mr. Peter Pueschel disagreed,
stating that inclusion of such NGOs creates
the potential for the discussion to become
too broad, not focused on enforcement. Mr.
Ofir Drori offered a solution that only NGOs
working explicitly on enforcement be invit-
ed, because otherwise you get message
drift and end up broadening the topic at
hand beyond "real" enforcement.
Dr. Ladislav Miko interjected that
foresters have meetings on these topics
too, and should be kept in close contact to
avoid duplication. He suggested sending
an INECE emissary to European meetings
of foresters and contacting them to find out
what has already been done, what needs to
be done, and how INECE can contribute.
Mr. Antonio Benjamin elaborated
on the need for NGOs at the workshop by
stating that the workshop envisioned is an
enforcement stakeholders meeting to pre-
pare something for the enforcers them-
selves. Therefore, the network does have
to listen to what NGOs who do policy work
and know that enforcement is important
have to say. The majority of the participants
should be people who work directly with
enforcement - but we should also invite a
few from the large NGOs. However, he
agreed that it is important to make it clear
that this is not a policy meeting, and not a
science meeting - that rather, it is a meet-
ing to decide what the next concrete steps
will be in designing strategies for forest
sector law enforcement.
Mr. Tony Oposa suggested a plan
of having a team of 2-3 people of legal
renown coming to a country, developing a
good sense of what the enforcement chal-
lenge in that country is, and paying visits to
national officials to create awareness of the
gap between what the law says and what is
happening in reality. The method could
exert subtle, pressure on the political lead-
ership to change the environmental prob-
lems.
Ms. Rosalind Reeve added that the
network should include NGOs like Green-
peace who can hit the headlines and
impact public awareness.
Ms. Brenda Brito recommended
that each member of this group could list
people and organizations from different
countries that they think should participate
in this meeting. Mr. Antonio Benjamin coun-
tered that membership selection should be
done by INECE and the INECE Executive
Planning Committee, with people sending
suggestions of criteria (e.g., how to pick the
countries that the participants come from:
based on the size of the country or focus-
ing on representatives of megadiversity
countries).
Mr. Yvan Lafleur said that compa-
nies must also be involved. Ms. Rosalind
Reeve replied that companies did not need
to be involved at such an early stage. In the
African context, bringing the companies in
will be like inviting the fox into the hen-
house and will not work.
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SUMMARY OF WORKSHOP 3F 171
3 FACILITATORS' RECOMMENDATIONS
FOR INECE
INECE should review and analyze
other activities related to the coordination
of enforcement activities and enforcement
training regarding the issue of illegal log-
ging. INECE should develop a strategy
based on this analysis to join in these activ-
ities or develop additional activities while
avoiding duplication with the on-going ones.
The facilitators also recommend
that INECE develop a proposal for capaci-
ty building programs for inspectors, public
prosecutors, and judges in megadiversity
countries that face widespread illegal log-
ging. In addition, INECE should develop a
proposal for a comparative global study in
key countries of legislative models
designed to fight illegal logging.
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172 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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SUMMARY OF WORKSHOP 3G 173
SUMMARY OF WORKSHOP 3G: PENALTIES AND OTHER REMEDIES
Facilitators: John Cruden, Environment and Natural Resources Division,
Department of Justice, United States
Chief Justice Vladimir Passes de Freitas, Brazil
Deputy Chief Justice Adel Omar Sherif, Egypt
Rapporteur: Davis Jones, Environmental Protection Agency, United States
GOALS
To explore the following three questions regarding judicial enforcement:
1. What experiences or problems have workshop participants had in attempting to obtain
penalties or remedies for illegal activity?
2. What are the most important factors a judicial officer should consider in deciding appro-
priate penalties or other remedies?
3. What should we recommend that INECE do to assist in informing judges about available
penalties and other remedies for illegal environmental misconduct?
1 INTRODUCTION
Varied experiences demonstrate
that there is frequently inadequate judicial
understanding of environmental law, but
the United Nations Environment Pro-
gramme (UNEP) is actively helping to build
world-wide capacity. South America, Fin-
land, and the European Union Network for
the Implementation and Enforcement of
Environmental Law (IMPEL) have had
seminars for judges and prosecutors, and
the numbers of court cases have subse-
quently increased. Some agencies do not
have experience in seeking criminal cases
or civil penalties, while others have dedicat-
ed courts or tribunals and prosecutor units.
Some innovative judgments include "publi-
cation orders" and "environmental service
orders" to obtain compliance. Others have
effectively utilized administrative courts.
The various aspects of environ-
mental harm and economic benefit are
important to prove, even when they are not
required to prove the case. In addition, the
intent of the defendant is often a key issue
in criminal cases and may help the judge
determine the adequacy of the penalty. We
should share best practices for calculating
penalties and for developing methodolo-
gies that are clear and straightforward. The
international exchange of information
between countries can help develop and
strengthen national programs.
More judicial education and sup-
port is necessary, and UNEP's work,
including the judicial training center in
Cairo, helps meet this need. In some coun-
tries specialized courts may provide a
mechanism for sharing information among
judges and developing individual expertise.
Chief Judges and trained judges should
help promote the issue to their colleagues
to establish credibility in the message, and
INECE should help by spreading the infor-
mation. Prosecutors must be included in
the process, both as experts and to
improve their own skills. Recognition of
excellence is an outstanding motivation,
and INECE should consider creating an
international award for judicial excellence.
Finally, we should seek harmonized
approaches in penalties and remedies, par-
ticularly for transboundary crimes, so all
countries can show the fairness and con-
sistency of their penalty structures.
Mr. John Cruden introduced the
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
session by describing the various theories
for civil penalties and asserting that despite
differences in how countries obtain and cal-
culate penalties, they ultimately have
shared experiences and goals. He then
asked the other facilitators for introductory
remarks.
1.1 The Brazilian Experience
Judge Freitas began by citing the
need for good institutions that can make
improvements on resolutions beyond civil
and administrative penalties. Brazil has a
special law on environmental crimes, but
only 2 or 3 articles of the law have penalty
provisions, and those are mostly insuffi-
cient. General prosecutors are becoming
more aware of environmental require-
ments, and some have created environ-
mental crime units. Now, prosecutors are
bringing cases against entities at different
levels than in the past, including corporate
presidents in some instances.
In many cases, convicted individu-
als or entities in Brazil can negotiate reso-
lution involving clean-ups without mandato-
ry jail time. For example, criminals convict-
ed of illegal logging can appeal to the court
to postpone the term for 2 years, and avoid
jail altogether if the prosecutor is subse-
quently satisfied with their activities to solve
the problem during that time. This helps
achieve environmental benefits in lieu of jail
time. Some judges are beginning to use
this type of innovative sentencing to
achieve more environmental results.
Training on environmental law has
improved for judges, and some courts are
starting to include environmental issues in
the exam required prior to becoming a
judge. They have also established a few
special environmental courts. If there are
not enough cases to justify a dedicated
court, the newly established specialized
courts can also handle other types of
cases.
We must create a good knowledge
base in environmental law among judges to
raise their interest in addressing those
problems, which can be very difficult.
Judges will listen to other judges (especial-
ly senior judges), but additional motivation
is useful. UNEP helped create a Congress
on Environmental Law in Iguazu Falls in
southern Brazil that brought carefully
selected judges from other parts of Latin
America to motivate and educate the
judges about environmental law, with out-
standing results.
Another motivational tool is to help
judges publish papers and articles on the
issue by providing a forum for disseminat-
ing information that other judges will recog-
nize and respect. Another tool is to provide
special recognition to particular judges who
have made a difference.
1.2 The Middle Eastern Experience
Judge Sherif spoke about his
experience as an environmentally-motivat-
ed judge in the Middle East. One of the
problems involves judges and law enforce-
ment officers, specifically regarding penal-
ties. Most countries have enacted legisla-
tion that may include penalty authority, but
judges have set attitudes about their dis-
cretionary power and do not like to be guid-
ed by "mandatory" penalty guidelines. They
want to exercise their full discretionary
authority in determining the size of penal-
ties.
It is not enough to just provide the
legislation, but it is as important to empow-
er and educate judges. In Egypt, this is
done through specialized tribunals and by
promoting awareness of the international
agreements and the challenges they seek
to solve. There is an ongoing need to
increase the judges' capacity, education,
and awareness of environmental law.
1.3 The American Experience
Mr. John Cruden discussed the two
sides of environmental enforcement in the
United States. Criminal violations are han-
dled with fines and prison time, while civil
or administrative violations are addressed
through penalties to capture any economic
benefit and wrongful profits, at a minimum.
In calculating penalties, environmental
harm must also be taken into account, as
well as the violator's ability to pay. In addi-
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SUMMARY OF WORKSHOP 3G 175
tion, restitution, injunctive relief or correc-
tive action, and supplemental environmen-
tal projects are important components of
settlements and consent decrees in the
United States.
Mr. Cruden emphasized, however,
the importance of prosecutors not only pre-
senting evidence sufficient to prove the
case, but also demonstrating the degree of
environmental harm. He cited an example
where a company had illegally filled in a
wetland, destroying it in the process. The
prosecutors charged it as a criminal case.
They won the case (which was upheld on
appeal), but the judge did not award a very
big fine, and the sentence was probation
without jail time. The low level of judicial
response was probably because the prose-
cutors did not adequately explain the seri-
ousness of the offense. The judge agreed
that the law was violated but did not under-
stand why the wetland was important
enough to justify incarceration.
Mr. Cruden emphasized that this
brings up three key problems for the prose-
cutor: (1) How do we present and explain
the environmental harm? To be credible
and deemed worthy by a judge, there must
be adequate evidence of the environmental
consequences of the illegal activity. (2)
How do prosecutors convince a judge that
they are requesting the correct penalty? At
a minimum, prosecutors must explain how
the penalty recoups the economic benefit
or wrongful profits obtained by the mis-
deeds. (3) How do prosecutors demon-
strate that the company has enough money
to pay the penalty or complete the environ-
mental restoration sought in the case? The
evidence must adequately demonstrate the
importance of the penalty and the ability of
the company to pay the requested penalty
and complete the necessary injunctive
relief.
2 DISCUSSION SUMMARY
2.1 Canada
Mr. Albert Koehl said that in Cana-
da each prosecutor must be able to prove
violations to the judge, as well as why the
response is appropriate. The judge's lack of
experience may lead to inadequate penal-
ties and remedies. The lack of capacity
leads to an inefficient system and exces-
sive appeals. A general lack of interest and
motivation may lead judges to ignore envi-
ronmental cases. Specialized tribunals
would be very helpful and would cut ineffi-
ciencies in prosecutors explaining law and
remedies in each case with a different
judge.
2.2
Australia
According to Ms. Donna Campbell,
Australia has a specialist court with both
criminal and civil authorities for land and
natural resource issues. The legislature
has laid down guidelines for the determina-
tion of penalties, primarily associated with
the environmental harm and the culpability
of the defendant. Prosecutors have found it
very difficult to determine the harm, and
scientific uncertainty abounds, making
judgments problematic.
Australia uses two additional types
of extrajudicial remedies. The first are "pub-
lication orders", where the company must
pay to publish articles or press announce-
ments about the offense. The second are
"environmental service orders" that require
violators to carry out environmental work
and to clean up around the facility and the
community. They also have provisions in
which citizens are given authority to bring
cases as well.
UNEP has paid for judges to come
from the Asia/Pacific region to see how the
Australian EPA is enforcing. This has
helped both internally (through the external
examination of practices) and externally
(by sharing best practices). This is part of
the larger UNEP Judicial Training project.
Essentially, UNEP divided the world into 10
regions and has done workshops and
courses in each region. In South America,
judges are working with other countries and
NGOs such as Law for a Green Planet and
FARN. Mr. Cruden participated in a work-
shop in Argentina, and was able to advise
judges from across Central and South
America about techniques in collecting and
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
presenting evidence, penalty determina-
tion, environmental harm, and environmen-
tal restoration techniques.
2.3 Costa Rica
Mr. Jose Pablo Gonzalez
explained that Costa Rica is limited by lack
of specialized judges, but does have a spe-
cialized unit of prosecutors dedicated to
environmental cases. Judges and prosecu-
tors share the judicial training academy and
can share training. Judges often do not like
to be trained by prosecutors, but through
the impartial academy, they can train
together.
Many environmental crimes fall
under different statutes or laws, and judges
need to know more about these laws. How-
ever, some judges think they need to come
to the case completely uninformed to avoid
bias, so prosecutors have to explain the
law, science, technology, harm, etc., and
failing at any part of that explanation jeop-
ardizes the case. Judges merge civil and
criminal authorities, so judges must com-
bine penalties, jail time, fines, and reme-
dies all together. The prosecutor's office
has^finished a manual listing the environ-
mental crimes, how they should be proven,
and what penalties/remedies should be
sought, which will be a critical tool for edu-
cating judges.
In Costa Rica, judges are now
using provisional probation similar to the
example cited by Judge Freitas in Brazil to
allow for remedial actions. They are also
encouraging settlements to expedite
cases. Costa Rica has the authority to set-
tle or agree to conciliation, and now 90 -
95% of cases conclude with a settlement
that is then sent to a judge for approval.
Settlements, signed by judges, serve as a
useful tool and an enforceable resolution.
In the United States, settlements become
public prior to judicial approval. Settle-
ments are submitted to the judge, who is
asked to wait to approve the settlement to
give the public a chance to review and
comment on it. The advantage of judicially
approved settlements is that they make any
subsequent violation of the settlement a
violation of a court order rather than a sim-
ple agreement.
2.4 The United States
Mr. Lee Paddock explained that
New York State has over 2500 judges in
the state courts alone. Among the U.S.
states, only Vermont has a dedicated envi-
ronmental court. Pace University Law
School in New York and the North Ameri-
can Commission for Environmental Coop-
eration hosted a North American judicial
conference, which delineated the following
two issues.: 1) We must find the right way
to reach judges so they will accept training.
Judges are resistant to training from one
side of an argument (i.e. environmental
agents or prosecutors). But when judges
have been reached in a neutral way, the
judges demonstrated that they really want-
ed the training and were surprised about
how much there is to know about environ-
mental law. 2) We should create networks
of judges that other judges can turn to for
support or training. Judges from one coun-
try may look to judges from other countries
for advice they will accept. The Internation-
al Union for the Conservation of Nature
(IUCN) has worked with UNEP to develop
resources for judges around the world and
would be a crucial partner for INECE work
in this area.
Ms. Walker Smith from the US EPA
explained that judges may want to rule for
government, but they will still want ade-
quate evidence of environmental harm and
proof of the underlying offenses. Prosecu-
tors also must convince judges when an
individual or company attempts to defend
by arguing how difficult it is to comply with
the law or how complicated environmental
requirements can be. We should concen-
trate on the illegal activity and the environ-
mental consequences of the conduct in
presenting our case to the judge or tribunal.
Mr. Davis Jones explained that in
the U.S., there are administrative courts
dedicated to environmental issues. These
courts can handle lower level, non-criminal
violations in a very effective and efficient
manner. In addition, the agency has written
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SUMMARY OF WORKSHOP 3G 177
penalty policies that guide prosecutors in
the calculation of penalties. Judges often
defer to these policies with cases often
centering on the appropriate application of
the policy rather than the penalty itself. He
went on to explain how the U.S. calculates
the economic benefit of non-compliance
and demonstrated a simplified tool known
as the "BEN Model" that accounts for vari-
ous factors such as the time-value of
money to determine the benefits of delayed
and avoided compliance costs. Mr. Jones
then demonstrated for all of the participants
the simplified process by which economic
benefit can be calculated and presented to
a judge.
2.5 European Union Network for the
Implementation and Enforcement
of Environmental Law (IMPEL)
Mr. Antero Honkasalo referenced
an IMPEL study that examined reasons
why cases failed. The study showed that
lack of prosecutor knowledge was a prob-
lem (as opposed to the judges'). IMPEL
shared results and queried other countries
to find similar problems. This convinced
some countries to create special environ-
mental units of prosecutors instead of an
environmental court. They also found some
countries that lacked standardized prac-
tices on how to bring cases to court, so
IMPEL arranged seminars for judges and
prosecutors to create standardized proce-
dures. While it may be an incomplete indi-
cator of success, the number of environ-
mental court cases has increased, showing
a better acceptance from prosecutors and
judges and how enforcement is solving
problems and repairing specific harms.
2.6 United Nations Environment
Programme (UNEP)
Mr. Donald Kaniaru personally
started the UNEP Judges Symposiums in
1996 and has tried to accommodate prob-
lems by successfully engaging senior
judges to establish credibility. UNEP began
with the belief that developing countries
needed additional judicial capacity building
where they did not have adequate environ-
mental laws to rely on. At the international
level there was standardized material, but
not at the local or national level, which
judges could actually use. UNEP started its
program with the chief justices of the high
courts, but the day-to-day decision makers
are really judges at lower levels, who must
also be addressed.
UNEP has found that starting up
specific environmental tribunals is excel-
lent, but they need to establish procedures
and rules of practice for those courts that
may not otherwise exist, which can be very
resource-intensive and time-consuming. In
addition to sensitizing judges, you must
also sensitize both sides of the bar. Most
courts will not take the initiative toward
solving environmental problems; advo-
cates, attorneys, and prosecutors must be
convinced of the importance of environ-
mental crimes so that they will take cases.
There is also a need for guidelines
on how to calculate harm and how to
demonstrate harms to judges. There must
be a push for movement toward harmo-
nization of processes regarding transna-
tional problems. For example, crimes
involving elephants migrating from Tanza-
nia to Kenya should be treated the same in
both countries' laws, and international
organizations such as INECE should work
to harmonize laws, prosecution, and penal-
ties.
2.7
Belarus
Ms. Maryna Yanush suggested
that published commentaries on environ-
mental laws can be used to develop some
common language for all to use and follow.
Ms. Yanush emphasized that it is important
to understand the point of view of judges
and prosecutors, not just technical informa-
tion. They can be helped by showing them
best practices with real examples of how
legislation can be implemented. Judges
can also help inspectors understand the
judicial requirements for proof, as well as
how inspectors can better explain cases to
judges. In Belarus, there is a forum
between senior judges and ministry offi-
cials to help identify procedural and institu-
tional problems. Judges and prosecutors
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
should also be involved with drafting of leg-
islation to help identify gaps that may make
the laws more difficult to enforce.
2.8 The Economic Side of
Enforcement: Deterrence
Mr. Krzysztof Michalak cited the
OECD's work on the economic side of
enforcement and explained that deterrence
is a function of the probability of detection
and severity of the sanction. Environmental
agencies must consider, given restraints,
the balance between compliance monitor-
ing and fines/penalties to determine the
optimal level of a penalty.
This calculation will vary county to
country; in Japan, the fact that an inspec-
tion occurred is considered a significant
penalty by the company, so a much lower
monetary fine is necessary. The amount of
the fine or penalty should be commensu-
rate with how much is actually needed to
create deterrence.
Another cultural difference is how
harm is assessed by judges. In Central
Asia, the calculation is based on zero toler-
ance or no acceptable impact, which drives
penalties to unreasonably high levels. In
China, a campaign was carried out that
shut down many polluting enterprises, but
due to the nature of the campaign and the
failure to carry through over the long-term,
polluters merely waited and came back to
their previous compliance status.
Different systems are not always
understood well enough. The U.S., U.K.,
and other countries may have well-accept-
ed credible tools and methodologies, but
others are hampered by lack of transparen-
cy or standardization, which significantly
hampers enforcement. OECD can provide
information from its work in different
regions to share methodologies so that
standard practices can be established
before the case rather than in response to
an individual enforcement action, which
can lead to charges of arbitrary response.
2.9 Tanzania
Mr. Palamagamba Kabudi, who
drafted the new Tanzanian environmental
law, has been training judges in environ-
mental law - country-specific training for 25
senior judges, including a Supreme Court
judge. But he is increasingly recognizing
that Tanzania must also train prosecutors
and inspectors. They are discussing devel-
opment of specialized environmental
courts, or one with the existing Land Court
(similar to the Australian system). They
want to avoid, however, developing too
many specialized courts in every region,
which leaves the alternative of training
everyone.
The new Tanzanian law includes
clear penalty provisions, including impris-
onment. The law was developed in a very
public, open process with public support for
penalties. The legislature thought penalties
were appropriate but too high in the original
proposal and reduced them in the final law.
The new law also allows for restoration
orders, prohibition orders, and cost orders.
If both parties agree, there is the possibility
to settle out-of-court by paying a fine and
agreeing to corrective actions. The law also
provides for consent judgments and for
working on Alternative Dispute Resolution.
2.10 Israel
Dr. Bill Clark said that they do not
have much problem in Israel winning
cases, but were told by the Ministry that
they could not approach judges outside of
court (such as for a training) because of
ethical concerns.
Dr. Clark also explained that there
is often a need for one country to work with-
in other countries' judicial systems to help
ensure consistency within the penalty
framework, as became evident in an ivory
seizure in Japan, when a smuggler had
paid an administrative fine equivalent to
$300 for an illegal consignment of ivory
worth many thousands of dollars. In China,
a smuggler convicted of a similar crime was
sentenced to life in prison and another was
sentenced to death with possible reduction
to life in prison. In Kenya, a smuggler was
caught with 4 suitcases of ivory and fined
several thousand dollars, but his passport
showed multiple trips with no conse-
quences for the repeated violations.
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SUMMARY OF WORKSHOP 3G 179
3 RECOMMENDATIONS FOR INECE
— Promote and facilitate the international
exchange of information between coun-
tries to develop and strengthen national
programs for determining penalties and
developing clear and straightforward
methodologies.
— Aid in the dissemination of information
regarding the importance of appropriate
penalties and enforcement, and pro-
mote mechanisms to share information
among judges to develop specialized
expertise.
— Consider the creation of an international
award for judicial excellence as an effec-
tive motivation to develop and enforce
penalties for environmental law viola-
tions.
— Seek harmonized approaches in penal-
ties and remedies, particularly for trans-
boundary crimes, so all countries could
show the fairness and consistency of
their penalty structures.
Create guidelines on how to calculate
harm and demonstrate the harm to
judges.
Present judges and prosecutors with
best practices and real examples of how
legislation can be implemented.
Facilitate the sharing of international
organizations' work in different regions
to share methodologies, so that stan-
dard practices can be established
before any enforcement action as
opposed to after-the-fact, which can
lead to charges of arbitrary response.
Search for a harmonized approach to
seek parity within the international com-
munity.
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180 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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SUMMARY OF WORKSHOP 3H 181
SUMMARY OF WORKSHOP 3H: MULTILATERAL ENVIRONMENTAL
AGREEMENTS: SYNERGIES FOR COMPLIANCE
Facilitators: Carl Bruch, United Nations Environment Programme
Kenneth Markowitz, INECE Secretariat
Alberto Ninio, World Bank
Rapporteur: Dave Grossman, INECE Secretariat
GOALS
To explore the following questions:
1. What types of information and what compliance and enforcement activities should we be
looking at for the UNEP-INECE Multilateral Environmental Agreements (MEAs) indicator
project on developing indicators?
2. What are some examples of particular input and output indicators that will be beneficial
in measuring the impact of compliance and enforcement activities?
3. How should we approach identifying synergies in implementation of MEAs at the nation-
al level?
1 INTRODUCTION
The workshop began with an
explanation of the UNEP-INECE indicator
project, which focuses on identifying indica-
tors to promote synergies in the implemen-
tation of two clusters of topic-related MEAs
- one cluster on biodiversity conventions
and one on chemical conventions. There
was also a preliminary discussion of the
definitions of input, output, intermediate
outcome, and final outcome indicators.
2 DISCUSSION SUMMARY
2.1 Project Goals and Method
Mr. Carl Bruch explained that he
saw a couple of goals for the project: (1) to
develop and pilot-test a set of indicators to
track progress over time, oriented largely to
agency staff trying to take specific meas-
ures to implement and enforce MEAs,
though also relevant to the negotiators try-
ing to develop national positions; and (2) to
develop qualitative case studies of interest-
ing approaches of how countries have
implemented MEAs synergistically, thereby
allowing for an element of experience-shar-
ing in the project.
Dr. Iwona Rummel-Bulska (World
Meteorological Organization) added that
these goals can be united, and that one
should start by looking at one complex
country and see how many focal points it
has for its MEAs, how many competent
authorities it has and whether they talk to
each other, what legislation it has, whether
the legislation is being implemented, etc.
Dr. Rummel-Bulska further declared that
one should start from the country side of
things, checking how that country is imple-
menting the enormous amount of MEAs.
Ms. Olya Melen (Ukraine) asserted
that the issue of a synergetic approach is
present in the majority of countries. Con-
ventions are signed and put on a shelf, with
no one evaluating effectiveness. Indicators
are important. She suggested that there is
a need for one body or commission within
UNEP or INECE to collect all the data, con-
sisting of representatives of focal points of
different conventions and of people of a
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
high governmental level. This committee
additionally can facilitate the reporting
process of conventions and can serve as a
clearinghouse of information.
Ms. Elizabeth Mrema (UNEP) pro-
posed starting with the MEA itself and the
Secretariat, as a process to guide us in
terms of identifying stakeholders, audi-
ence, national-level contacts, and perhaps
indicators.
Mr. Matthew Stilwell (Institute for
Governance & Sustainable Development,
Switzerland) stated that when thinking
about this project, there are some key
questions and issues that need to be
addressed:
(1) Who is the ultimate audience for the
project: frustrated negotiators? people
in national ministries? on-the-ground
enforcement officers?
(2) In light of the audience, what is the goal
of the project? Is it to promote imple-
mentation of existing MEAs? Is it to pro-
mote future development of MEAs in a
synergistic way?
(3) At what level are we looking for syner-
gies: in the MEAs themselves (e.g.,
institutional arrangements, cooperative
projects) or at the national level (e.g.,
implementation laws and measures)?
At what level in the causal chain do you
want to intervene most? Where is the
main emphasis of the project?
(4) Overlaps among conventions are often
quite different, and the secretariats
themselves are often unaware they are
there. The Convention on Biological
Diversity (CBD) and the Ramsar Con-
vention on Wetlands overlap on wet-
lands; CBD and the Convention on
International Trade in Endangered
Species (CITES) overlap on species;
Ramsar and CITES overlap on wet-
lands species. But these overlaps are
all in different contexts. The further
down the chain you get, the harder it
gets to find synergies. One suggestion
is to take a sectoral approach. The
UNEP economics and trade branch did
a study focusing on rice, which estab-
lished a single specific context across
countries and provided useful data that
allowed for building general models that
could apply to other sectors. Every situ-
ation is quite different and complex, so
it is hard to apply a one-size-fits-all
approach when dealing with final out-
comes. Higher up the indicators logic
chain (e.g., inputs), it can be easier.
Mr. Carl Bruch agreed, noting that
the higher level is what we are trying to do
- looking broadly at the biodiversity sector
and the waste sector. The question is: how
do we do it at a high enough level that it is
useful but where there still are synergies?
Mr. Matthew Stilwell explained that
as one moves down the chain, it will be
necessary to move from an indicators
approach to an assessment approach,
looking at specific projects in specific sec-
tors. That is the only way to understand the
complexities. Indicators are better for
understanding inputs and intermediate out-
comes. As you start moving toward ultimate
environmental outcomes, you will need
more tailored approaches. Also, a good
starting point is to ask the secretariats
about their 5 favorite delegates, and they
will often give you people who are great on
the ground, though not necessarily focal
points. Also, look at the Economics and
Trade Branch's methodologies, which may
be adaptable. Mr. Stillwell said that he had
written a paper on synergies between
Ramsar, CBD, and CITES and that it was
quite difficult to get the data. MEA secretari-
ats themselves often had not thought about
how economic instruments would apply
across MEAs. Mr. Stilwell suggested that
we look at the project from the national
level - i.e., what data do national folks
need to promote national synergies?
Mr. Alberto Ninio inquired as to
whether the aim is to get national finance
ministers the hard numbers they always
ask for when getting a loan from the World
Bank or providing funding to an environ-
ment ministry about the outcomes they can
expect.
Dr. Iwona Rummel-Bulska con-
tended that if you start with a single coun-
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SUMMARY OF WORKSHOP 3H 183
try, you get different indicators than if you
start with the MEAs. She asserted that the
number of conventions a country is part of,
whether they produce CFCs and export
waste, what the institutional structure is,
how many focal points there are, and
whether the focal points communicate with
each other should all be considered. Start-
ing from the country side, you then go
through all the MEAs. She further inquired
into which MEAs are being looked at, since
there are many important regional agree-
ments on these issues that should also be
considered.
Mr. Sibusiso Gamede (South
Africa) explained that countries, especially
developing ones, ratify MEAs for a variety
of reasons, many of which might not be
environmentally-related. For example,
some will join Kyoto because they see a
financial mechanism that will facilitate for-
eign investment. This would make it difficult
to develop a sole set of indicators for Kyoto
without understanding why a country joined
the Protocol in the first place. You might
find that those reasons affect the institu-
tions created to implement the MEA.
Dr. Iwona Rummel-Bulska replied
that there are always different reasons, but
that does not matter. Once they are in, they
have to comply, and that is what we are
after.
Dr. Rosalind Reeve (International
Fund for Animal Welfare) asserted that it
will also be necessary to actually go into
the country to get the data, because you
will not get the true information from the
governments.
2.2 Multiple Authorities Involved in
MEA Implementation
Dr. Warapong Tungittiplakorn
(Thailand) suggested that the project
should work from the top down. For this
project to happen, Dr. Tungittiplakorn
asserted that the project needs strong
interest from the heads of departments and
from decision-makers. Furthermore, in
countries like Thailand, many departments
are responsible for hazardous waste man-
agement, so the project needs support not
just from the head of one department, but
from the heads of many different depart-
ments. But Thailand has a hazardous
waste committee, which has representa-
tives from different departments (e.g., Agri-
culture, Industrial Works). He suggested
that it would be best to coordinate with the
committee.
Mr. Poul Byskov (Norweigan Pollu-
tion Control Authority) pointed out that Nor-
way is like Thailand in that it has MEA
authority and jurisdiction housed in many
different departments. Also, Norway focus-
es more on industry, factories, wastewater
treatment plants, etc. MEAs exist in the
background, only occasionally coming to
the forefront.
Mr. Sibusiso Gamede emphasized
that especially with developing countries, it
can be very difficult to find out "who's who
in the zoo" and what is happening, because
of the fragmentation. In South Africa, for
example, when there is notification for a
transboundary removal under the Basel
Convention, that goes to the Department of
Trade and Industry, then to Foreign Affairs,
then to the Department of Safety and Secu-
rity. Each plays a different role in the chain,
but they do not speak to each other; each
does its own task. The best starting point is
the MEAs, which require each country to
develop and submit an implementation
plan. Perhaps the project should start with
a review of those implementation plans.
Mr. Matthew Stillwell added that
there are similar problems at the MEA sec-
retariats themselves. Each is so involved in
its own work, it is hard to talk to others
about how their work is complementary.
2.3 Suggestions for Input Indicators
Mr. Ken Markowitz asked what the
indicators are that we should try to look at,
so when we go to the pilot project coun-
tries, we have a clear sense of what we are
asking for? He suggested starting with rec-
ommendations for basic input indicators.
What inputs would we want to look for to be
able to get data to assess efficiencies?
What types of data would be helpful?
Dr. Iwona Rummel-Bulska pro-
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
posed that one indicator can be the number
of focal points there are - if an MEA has 10
focal points, something is clearly wrong.
Mr. Sibusiso Gamede added that
the number of compliance and enforce-
ment personnel charged with the responsi-
bility for implementation of MEAs should be
considered as an input indicator, as well as
a skills and expertise assessment to try to
reconcile human capital with what the
enforcement and compliance agency is
supposed to do.
Mr. Poul Byskov stressed stake-
holder identification - defining who all the
actors are (companies, etc.). and perhaps
finding indicators that can help make com-
panies accountable.
Ms. Olya Melen suggested as indi-
cators: (1) The number of cases of non-
compliance. (2) The number of complaints
brought by different bodies.
Dr. Warapong Tungittiplakorn sug-
gested exploring whether there is a strong
commitment from the decision-makers and
others.at a high level in the implementing
authority, as well as whether there is a
national implementation plan.
Ms. Tamara Malkova (Ukraine)
suggested as an indicator whether there
are linkages between the environmental
ministry and other non-environmental min-
istries (e.g., financial, transportation) that
might be responsible for parts of a conven-
tion. So we might want to look at how often
or in what papers non-environmental struc-
tures give recommendations or instructions
for, or even just mention, MEAs.
Mr. Alberto Ninio proposedas an
indicator financial sources, allocation, and
sustainability for compliance and enforce-
ment.
Ms. Linda Duncan (Canada) pre-
sented the following four possible indica-
tors: (1) Have they clearly delegated
responsibility to a specified authority to
implement and report on the MEA? (2) Are
there regular reports? (3) Has the country
developed and implemented a strategic
plan with an associated budget and time-
line to implement the MEA? (4) Is there
some sort of measure for progress from
report to report? Have they set perform-
ance targets for themselves? Is there a
peer-reviewed baseline against which to
measure progress?
Ms. Olya Melen also recommend-
ed looking at the amount of national legis-
lation that has been amended after ratifica-
tion of the MEA.
Mr. Carl Bruch highlighted the fol-
lowing: (1) Regulations and standards that
have been amended, not just legislation.
(2) Technical resources and equipment. (3)
Is there an institutional requirement for
communication and coordination among
agencies at the national level (horizontally)
and among agencies at different levels
(vertically)?
Ms. Elizabeth Mrema emphasized
looking at the personnel, resources, and
other aspects of the institution itself. Also,
the implementation plan serves as the
baseline. Other issues will come in when
doing the plan, such as whether there are
laws in place and whether they are effec-
tive. So, does the country have a review
process?
Mr. Ken Markowitz highlighted the
following: (1) Technical assistance and
training., (2) The level of capacity building
within the institution (e.g., the number of
trainings). (3) The level of support coming
from outside organizations (e.g., the World
Bank) for capacity building.
Mr. Ike Ndlovu (Department of Envi-
ronmental Affairs and Tourism, South
Africa) expressed the need for an index of
some sort between legal and permitting
requirements and the staff and resources
we have to meet those requirements.
Dr. Rosalind Reeve contributed the
following: (1) Levels of penalties. (2) Is
there an enforcement strategy?
2.4 Suggestions for Output Indicators
Dr. Iwona Rummel-Bulska sug-
gested as an output indicator the number of
permits given, taking into account the need
for an Environmental Impact Assessment?
Ms. Olya Melen contributed the fol-
lowing: (1)The amount of information col-
lected and disseminated by the focal point.
(2) How often do the enforcement bodies
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SUMMARY OF WORKSHOP 3H 185
cooperate and communicate?
Ms. Tamara Malkova pointed out
that the number of public outreach activities
to the regulated community and the public
would be a useful output indicator.
Mr. Alberto Ninio recommended
the fines and penalties imposed and actu-
ally collected that remain at least in part
with the environmental enforcement
agency.
Dr. Carl Bruch stressed (1) The
number of trainings and the number of peo-
ple trained, perhaps broken down into spe-
cific units and sectors. (2) The number of
prosecutions. (3) The number of convic-
tions.
Ms. Elizabeth Mrema suggested
the following: Has the review process been
used, and how often?
3 RECOMMENDATIONS FOR INECE
Participants in the workshop
offered a variety of comments and sugges-
tions, including:
(1)The importance of having department
heads and decision-makers with a
strong interest in doing the project;
(2) Starting data collection with the MEA
Secretariats, providing contacts and
focal points in target countries;
(3) The implementation plan required by
many MEAs could be a good source of
information;
(4) Consider who the ultimate audience is
for the indicators;
(5) Consider at what level of the implemen-
tation process we are looking for syner-
gies, and how focused on a sector you
want to get; and
(6) Consider creating a body or committee
to coordinate collection of all the data.
Suggestions from the group for
input indicators included:
(1) Number of personnel charged with
implementation of MEAs,
(2) Stakeholder identification,
(3) Number of violations,
(4) Number of focal points,
(5) Whether there is support from a high
level in the implementing authority,
(6) Whether and how often non-environ-
mental agencies mention MEAs in their
documentation and efforts,
(7) Financial sources, allocation, and sus-
tainability for compliance and enforce-
ment,
(8) Whether there is an authority with a
clearly delegated responsibility to
implement and also to report on the
MEA;
(9) Whether the country has developed and
implemented a strategic plan with an
associated budget and timeline for
implementation of the MEA;
(10) Whether national legislation, regula-
tions, and/or standards were changed
after MEA ratification;
(11) Amount of technical resources and
equipment, and amount of technical
assistance and training;
(12) Adequacy of focal points;
(13) Whether there is an institutional
requirement for horizontal and vertical
communication;
(14) Level of capacity building within insti-
tution, the number of trainings, and
whether there is support coming from
outside organizations (e.g., the World
Bank) for capacity building;
(15) An index of some sort to correlate
requirements to be met with staff and
resources available to meet them;
(16) Whether the country has a review
process.
Suggestions for output indicators
included:
(1) Number of inspections, instances of vio-
lations, enforcement cases, permits,
prosecutions, and convictions;
(2) Quality of inspections;
(3) Amount of information collected and
disseminated by the focal point;
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
(4) Amount of cooperation with other stake-
holders that enforce aspects of MEAs;
(5) Development of a national implementa-
tion plan and enforcement strategy;
(6) Whether there has been outreach to the
regulated community and the public;
(7) Amount of fines / penalties imposed and
actually collected and that remain at
least in part with the environmental
enforcement agency;
(8) Whether the review process is used;
(9) Whether there is a baseline against
which to measure progress over time.
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REGIONAL CONFERENCE, GERARDU, Jo 187
REGIONAL CONFERENCE, OPENING SPEECH BY JO GERARDU
On behalf of the INECE co-chairs
and the Executive Planning Committee,
welcome.
My colleague Davis Jones from the
US Environmental Protection Agency and I,
Jo Gerardu from the Netherlands Ministry
of Housing, Spatial Planning and the Envi-
ronment, are very honored to address you
at this regional conference.
We are very pleased to see such a
great turnout of our colleagues from Alge-
ria, Tunisia, Mauritania, and our wonderful
host country, Morocco.
We have worked very closely with
the Moroccan ministry to develop this pro-
gram to strengthen compliance and
enforcement in Northern Africa.
The three goals of INECE are:
1) raising awareness of the importance of
environmental compliance and enforce-
ment;
2) developing networks; and
3) strengthening capacity.
This is the perfect opportunity to
further these goals and to open up new
doors and further cooperation with new
partners.
We are very happy that you have
all come together for this meeting.
It provides the perfect example for
the international conference that begins
here tomorrow.
Again, it is our pleasure to wel-
come you.
LA CONFERENCE REGIONALE, DISCOURS D'OUVERTURE
DE JO GERARDU
Au nom des co-presidents et du
Comite Executif de Planification de
I'lNECE, je vous souhaite la bienvenue.
Mon collegue Davis Jones de I'A-
gence Americaine pour la Protection de
I'Environnement et moi meme, Jo Gerardu
du Ministere de I'Habitat, de I'Amenage-
ment Spatial et de I'Environnement des
Pays-Bas, sommes tres honores de nous
addresser a vous a cette occasion.
Nous sommes tres heureux de
remarquer cette forte presence de la part
de nos collegues Algeriens, Tunisiens,
Mauritaniens, et merveilleux holes du
Maroc.
Nous avons travaille etroitement
avec le ministere de I'environnement du
Maroc afin de developer ce programme qui
vise le renforcement de la mise en applica-
tion et la conformite environnementales
des pays de I'Afrique du Nord.
Les trios objectifs de I'lNECE sont:
1) Sensibiliser sur I'importance de la mise
en application et la conformite environ-
nementales ;
2) Creer des reseaux; et
3) Renforcer les capacities.
C'est une meilleure opportunite
pour realiser ces objectifs et ouvrir de nou-
veaux horizons et promovoir la cooperation
avec de nouveaux partenaires.
Nous sommes tres heureux de
vous avoir parmi nous dans cette rencon-
tre.
Cette rencontre offre un bon exam-
ple pour la conference Internationale qui
debutera demain.
Encore une fois, merci d'avoir
repondu present a I'invitation a prendre par
a cette rencontre.
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188 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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SUMMARY OF THE REGIONAL CONFERENCE FOR MOROCCO AND NORTH AFRICA 189
SUMMARY OF THE INECE REGIONAL CONFERENCE FOR
MOROCCO AND NORTH AFRICA
Dl COSMO, FRANCESCA
U.S. Environmental Protection Agency Region 3,1650 Arch St., Philadelphia PA
19103-2029, United States, dicosmo.francesca@epa.gov
In conjunction with the Moroccan
Ministry of Territory Planning, Water and
Environment, INECE hosted a Regional
Conference for local and regional profes-
sionals on issues of particular relevance to
Morocco, North Africa, and the Mediter-
ranean region.
Over 65 participants from govern-
ments and nongovernmental organizations
(NGOs) enthusiastically engaged in strate-
gic discussions on advancing the imple-
mentation of environmental compliance
and enforcement in the region. The Confer-
ence provided a unique opportunity for gov-
ernment-government and government-
NGO collaboration. The workshop was
conducted in French with limited English
translation.
Participants concluded that a
regional enforcement network, affiliated
with and supported by INECE, was an
essential tool for promoting best practices
and building capacity in the region. Partici-
pants agreed that the new network should
capitalize on lessons learned from existing
networks, including their goals and objec-
tives.
The following is a summary of
questions, comments, and ideas from par-
ticipants about the development of a
regional enforcement network:
— Shall the network be managed by the
Government or an NGO? The Govern-
ment can make suggestions. The NGO
can introduce the debate.
— What is the definition of the Region that
the Network will cover? Will it be all of
North Africa or will it be sub-regional (i.e.
Magreb only)?
The new network should capitalize on
the goals and objectives of other exist-
ing networks, using those objectives to
develop the objectives for the INECE
network.
The new network should utilize the les-
sons learned from other networks.
Each country has a clear set of enforce-
ment goals that are set by the environ-
ment ministries. What is the value-
added of this network? What will be its
mission? What are the expected out-
comes? Will there be separate goals or
outcomes for each country? For all
countries? Will it protect their values?
These questions should be answered to
develop an appropriate network for
Northern Africa.
Starting from the assumption that the
network is supported by the govern-
ments and fits into other networks, the
organizers of the new network need to
analyze what is happening now (the cur-
rent state of affairs) relative to enforce-
ment within each country as a basis to
understand their concerns and objec-
tives. The new organization needs to be
justified. What is the need for the net-
work? Links to economic development
would be helpful and useful to show how
laws and enforcement can be linked to
job opportunities. Also, a list of projects
that are underway would be useful (to
show that capacity building is underway
and the lessons learned from them).
An understanding of who is doing what
in this field would be useful to avoid
overlapping with the missions, objec-
tives, projects, etc., of other networks.
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
We need to define the geographic scope
of this new network under INECE. The
Magreb is probably a good idea. NGOs
should be included. If government is
included, then it can get complicated.
But, the role of government needs to be
considered. What will the role of govern-
ment be?
Will this be an administrative organiza-
tion or an NGO organization? NGOs can
get a lot of things done and can help
with implementation. How will the net-
work operate? A combination of focal
points may be useful. The network
should support NGOs at the local level
as well as sustainable development.
Use the lessons learned from other
organizations. Also, the platforms that
other organizations use may be used for
this organization (e.g., the United
Nations Environment Programme's pro-
gram for climate change). There are
other programs for international cooper-
ation; we should think about using exist-
ing structures and add this network to it.
An enforcement network for North Africa
is needed. But, how can we tackle the
issue? Developing terms of reference
for the development of this network may
be a good way to organize it. The organ-
izers should know the local circum-
stances to make sure it will succeed. We
should think about the issue of "infor-
mal", as well as look at other networks
and see those as experiences and
examples, especially the successful
ones. The three countries of the Magreb
share similar problems. We need to
highlight the objectives of the project, its
benefits, and the international support,
both financial and technical.
• The setting up of the network for the
Magreb is not the point. We need to start
from what brings us together. Lots of
things are common. Sustainability of the
network is very important. Should the
network be multi-disciplinary or mono-
disciplinary? Broad projects or more
specific projects? Network among jurists
or lawyers? Specialized networks may
have a better chance of succeeding.
The Magreb as the basis for the network
is probably a good start; the network can
be expanded later. The field of environ-
mental legislation should be the corner-
stone. Focus on a specific area, but
determining the scope of the network is
important.
The organizers of the network should
look at today's program for guidance rel-
ative to what the network can achieve
and issues to be covered. It is up to
everyone here to take the first steps.
Local governments should be included in
the network. For example, municipalities
in many countries are responsible for the
management of municipal solid waste,
and they are therefore responsible for
compliance in this area. Involving them
in the network would be a way to help
educate them about enforcement and
compliance issues that relate to them.
An example of a good network that is
working in Northern Africa is the North
African Network of Humid Areas. They
rotate the coordination of the network
among the member countries. They
have quarterly meetings. It may be a
model to study.
A network for the Magreb that will focus
on environmental laws is a good idea. It
should also focus on shared experiences
and shared information. Also, rotating
the secretariat, having a bi-annual con-
ference, making national reports, having
a national coordinator, and involving rel-
evant stakeholder groups can gain the
commitment of members for the pro-
gram. The network can charge fees or it
can be free, depending on funding. The
network should be developed with local
(Magreb) resources.
- The European Union (EU) supports a
regional network for Northern Africa. It
may be a good idea to link this new net-
work with ongoing processes of EU
standards and their networks.
- Efficient networks should also include
the private sector.
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FIELD VISITS 191
FIELD VISITS
Wednesday, 13 April 2005
In conjunction with the Moroccan Ministry of Territory Planning, Water, and Envi-
ronment, INECE arranged for a field trip to local sites. All participants traveled by bus to the
3 sites described below.
CIMENTS DU MAROC (CIMAR)
In 1997, the L'Association Profes-
sionnelle des Cimentiers (APC) (Profes-
sional Association of Cementers) entered
an agreement with the Moroccan Ministry
of the Environment. The members of the
APC (including Ciments du Maroc) agreed
to take all necessary measures to solidify
the quality objectives of the National Strat-
egy for Environmental Protection and Sus-
tainable Development, to work with the
Environment Ministry and other relevant
departments for rational management of
natural resources and energy, to comply
with national regulations relating to envi-
ronmental protection and rational resource
management, to consider an integrated
approach for protection of the air, water,
and soil, and to limit as much as possible
negative impacts on the environment. The
APC members signed this agreement
because the government created a fund to
help industry clean up its pollution, high-
lighting the potential influence of govern-
ment-provided .economic assistance. Fol-
lowing this agreement, CIMAR voluntarily
reduced its dust pollution and gas emis-
sions. CIMAR has also received ISO 14001
certification.
SIDI KAOUKI
Wind energy offers excellent possi-
bilities for non-polluting electricity produc-
tion for medium to high energy needs. It
also offers the potential to provide an elec-
tricity supply to villages located far from the
national grid, where clean energy can help
improve social and economic development.
In October 2000, Sidi Kaouki started sup-
plying electricity through a hybrid wind-
diesel system connected to a local grid at
low voltage. Sidi Kaouki makes possible a
supply of electricity to households in the
Kaouki village, located in the province of
Essaouira, in southern Morocco (170 km
from Marrakech), which did not have elec-
tricity before. The wind turbines are a proj-
ect of CDER (Centre de Developpement
des Energies Renouvelables), a govern-
ment agency with the Office Nationale
d'Electricite. CDER sited a wind turbine
project here because of the high winds in
the area, as it has done in other windy
areas of Morocco in an effort to reduce
greenhouse gas and other emissions from
the process of generating electricity.
VILLAGE DES POTIERS
Village des Potiers (Potters' Vil-
lage), located 6 km outside of Marrakech, is
a place where local potters make and sell
their wares. Pottery artisans formerly used
biomass and tires, among other things, for
curing their products in traditional ovens.
This resulted in greenhouse gas emissions,
air pollution, forest and agriculture degra-
dation, and a poorer quality product. An
NGO called CDRT (Centre de Developpe-
ment de la Region de Tansift) tried to con-
vince the pottery artisans to use gas ovens
instead to address health and air pollution
concerns, but the artisans were resistant to
change because of the expense of chang-
ing ovens. CDRT raised funds and guaran-
teed loans for the artisans to change their
ovens to gas. The first few artisans to use
the gas ovens produced a superior product
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
and could work under more conditions
(e.g., when it rains) and thus made more
money, offsetting the costs of the new
ovens. In fact, between the improved prod-
uct quality and efficiency and the reduced
maintenance costs, gas ovens saved the
artisans money. After the success that the
first few artisans had with the gas ovens,
many are now following in their path, with
the majority of artisans now using natural
gas ovens. As a consequence, the air qual-
ity in the area has improved dramatically.
Village des Potiers highlights the role that
NGOs and economic assistance can play.
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WOLTERS 193
PRESENTATION OF THE CONFERENCE STATEMENT
AND DISCUSSION OF THE FUTURE OF COMPLIANCE
AND ENFORCEMENT
SUMMARY
Gerard Wolters, Inspector General of The Netherlands Ministry of Housing, Spatial
Planning, and the Environment (VROM) moderated the final session of the conference.
During the closing session, Mr. Wolters described the key messages that emerged from the
conference and presented the final Marrakech Statement to the conference participants.
The participants were then invited to share comments on the results of the conference and
to share their views on the future of compliance and enforcement.
Following the participants' comments, short film of the conference was presented.
The film highlighted the conference message that "environmental compliance and enforce-
ment are the foundation for the rule of law, good governance, and sustainable develop-
ment," through short interviews with participants. The film also depicted the networking
opportunities provided by the conference and showcased the culture of Marrakech.
Following the film, Mr. Wolters paid a special tribute to Jo Gerardu, who has over-
seen INECE's dramatic evolution since its beginnings in 1990 as a bilateral exchange
between the U.S. Environmental Protection Agency (U.S. EPA) and the Dutch VROM.
Through Jo's hard work, dedication, vision, and leadership, INECE has grown into a broad
partnership of government officials, NGOs, and international organizations from all reach-
es of the globe.
Mr. Gerardu delivered a brief set of remarks, emphasizing the role of each of the
participants in supporting the network. Mr. Wolters concluded the conference by calling for
each participant to fulfill the commitments made during the conference and embodied in the
Marrakech Statement.
1 INTRODUCTION
I want to thank all of you for provid-
ing us with your comments on the Co-
Chairs' Conference Statement. We think it
has come together very well and presents
a powerful statement about our message
and about the challenges and opportunities
we face.
The Conference Committee that
worked on this statement included Donald
Kaniaru, Antonio Benjamin, Tony Oposa,
Ladislav Miko, Paula Caldwell, Krzysztof
Michalak, Angela Bularga, Phyllis Harris,
Durwood Zaelke, and myself, with assis-
tance from Jo Gerardu, Davis Jones,
Matthew Stilwell, and Ken Markowitz.
The Secretariat staff provided a
working draft to the Executive Planning
Committee and to the Conference State-
ment Committee. It was modified in sever-
al versions with assistance from all of you.
Again, we thank you for all these contribu-
tions.
Let me recall what are in my view
the substance, the message, and the most
important part of the statement.
— Strengthening governance and the
rule of law
Sustainable development depends upon
good governance, good governance
depends upon the rule of law, and the
rule of law depends upon effective com-
pliance and enforcement.
— The benefits of investing in compli-
ance and enforcement
Investing in compliance and enforce-
ment benefits the public by securing a
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
healthier and safer environment for
themselves and their children. It benefits
individuals, firms, and others in the reg-
ulated community by ensuring a level
playing field governed by clear rules
applied in a fair and consistent manner.
Countries benefit by creating a pre-
dictable investment climate based on
the rule of law, thereby promoting eco-
nomic development.
— Strengthening efforts at the domestic
and international levels
The need to strengthen compliance was
recognized by heads of state and gov-
ernment at the 1992 Rio Earth Summit.
Agenda 21 directs countries to enhance
their compliance and enforcement
capacity. At the international level, coun-
tries must respect their commitments in
multilateral environmental agreements.
This is the important message you
have to take home and communicate to
your colleagues, your governments, and
your organizations.
2 COMMENTS FROM PARTICIPANTS
INECE is a network and our real
success is the work we are going to do
together. I understand that there are some
participants who would like to talk about
new initiatives that have evolved out of the
conference, so I would now like to open the
floor for comments from people who want
to make statements.
- Alberto Ninio (World Bank): Mr. Ninio
commented on his support for the indi-
cators project and complemented the
organization of the conference as
"remarkable." Mr. Ninio conlcluded by
stating that the World Bank will continue
to work with INECE.
— Ada Alegre (Ministry of Energy and
Mining, Peru): "I think the success of this
conference was based on the excel-
lence of the speakers and facilitators but
especially on the hard work of the
INECE team. Also the origin of the par-
ticipants from different regions of the
world, and the different moments to
meet each other, were very important.
The conference had a good balance
between law issues and a friendly
atmosphere." Ms. Alegre concluded by
stating that she will work in Peru to try to
improve enforcement, based on lessons
learned during the conference and
experiences shared with her by other
participants.
Elizabeth Mrema (United Nations Envi-
ronment Programme): Ms. Mrema com-
plimented the interactive model used
throughout plenary panels and work-
shops. Ms. Mrema also noted the need
to "enhance and increase participation
of enforcement personnel and agencies
from developing countries in future con-
ferences." Ms. Mrema noted that UNEP
will continue to strengthen their bond
with INECE.
Neil Davies (Environment Agency (Eng-
land and Wales)): Mr. Davies praised
the conference and expressed his
enthusiasm for working with INECE in
the future on emissions trading, "in con-
junction with other countries, including
the U.K."
Fouad Zyadi (Ministry of Territory Plan-
ning, Water and Environment, Morocco):
Mr. Zyadi commended the conference
participants for accomplishing "six
months of work in one week." Mr Zyadi
made a commitment to working with
INECE to explore opportunities for
capacity building in Morocco.
Ladislav Miko (European Commission,
Environment DG): Dr. Miko explained
that this was his third INECE Confer-
ence, and that while it was great every
time, this conference was the "best
ever". He declared that he could not
remember any other INECE conference
where participants got so familiar with
each other and had so many opportuni-
ties for official and unofficial discus-
sions. He praised the combination of
plenary panels and specific workshops,
the active involvement of participants,
and the social program. Overall, he
described the conference as "simply a
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WOLTERS 195
great success." Dr. Miko concluded by
confirming his commitment to identify
enforcement cooperation opportunities
between the European Commission and
INECE.
Azzedine Downes (International Fund
for Animal Welfare): Mr. Downes com-
mented that he felt "quite positive about
future cooperation in developing a
wildlife enforcement network."
Tom Maslany (U.S. Environmental Pro-
tection Agency, Ret.): Mr. Maslany
praised the conference and commented
on the need to "collect empirical data"
about enforcement efforts.
Maria Comino (Department of Infras-
tructure, Planning and Natural
Resources, Australia): Ms. Comino
noted that INECE's message to the pub-
lic is capacity building. She congratulat-
ed INECE on the very successful con-
ference and invited the network to have
the 8th International Conference "down
under".
Warapong Tungittiplakorn (Pollution
Control Department, Thailand): Mr. Tun-
gittiplakorn thanked the organizers for
their hard work in arranging his travel to
the Conference. He also noted that he
had "learned a lot and met wonderful
people," and announced the August
2005 meeting designed to launch a
regional environmental compliance and
enforcement network in Asia.
Gloria Ramos (National Environmental
Action Team, Philippines): Ms. Ramos
noted that she appreciated the develop-
ing countries' perspectives that were
presented in the workshops, and that
the presence of lawyers at the confer-
ence had been important. "We leave
here with bigger hopes, heavier pack-
ages from all the materials we've
received, and allies in enforcement we
can call upon."
John Cruden (U. S. Department of Jus-
tice): Mr. Cruden complimented Confer-
ence Chairman Gerard Wolters, and
commented, "This is my second confer-
ence. I've met heroes, found allies, and
developed new relationships, including
with representatives from South Ameri-
ca. The most valuable item I take home
from the conference is the email contact
list. I very much hope to continue the
friendships that have been made here."
Antonio Benjamin (Law for a Green
Planet Institute, Brazil): Mr. Benjamin
noted that coming from a biologically
mega-diverse country like Brazil, he
"would like to recognize the importance
of this conference's increased focus on
green issues. Although INECE was
founded by a group of dedicated people
in the brown sector, it is critical for the
network to find a balance between
brown and green issues. I think it was
done this year." Mr. Benjamin thanked
the Executive Planning Committee on
behalf of the Brazilian delegation.
Roberto Rodriguez (Comision Cen-
troamericana de Ambiente y Desarrollo
(CCAD), El Salvador): Dr. Rodriguez
affirmed the commitment of CCAD to
continue to work with INECE.
Melissa Fourie (Department of Environ-
mental Affairs and Tourism, South
Africa): Ms. Fourie, commenting on
behalf of Ike Ndlovu, noted that South
Africa is starting off with enforcement
and compliance for waste and air, and
thanked the British High Commissioner,
Clair Twelvetrees, and Sue Holland for
their assistance in facilitating the travel
of South African participants to this
important event.
Sibusio Gamede (Basel Convention
Regional Centre, South Africa): Mr.
Gamede described the conference as
"very educative and entertaining." He
noted that "optimism is needed for com-
pliance and enforcement" and that
"capacity building is taken for granted
but we still struggle for it." He concluded
by acknowledging that he hoped there
will be more participants from Africa at
the next conference.
Albert Koehl (Sierra Legal Defense
Fund, Canada): Mr. Koehl stated, "this
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
was a fabulous opportunity and I plan to
keep in touch with these dedicated and
passionate participants to further devel-
op ideas from the conference."
Krzysztof Michalak (Organisation for
Economic Co-operation and Develop-
ment): Mr. Michalak made three points
in his comments: (1) as embodied in the
Conference Statement, enforcement
and compliance are crucial tools to build
and support good governance; (2)
another point that emerged from the
conference was that countries have
responsibilities to comply; and (3) the
conference provided many valuable net-
working opportunities for discussing
new issues and what to do. Mr. Michalak
concluded, "I look forward to using these
tools and to the next conference."
Palamagamba Kabudi (Institutional
and Legal Framework for Environmental
Management Project, Tanzania): In his
remarks, Mr. Kabudi expressed the sen-
timent that "I am because you are",
appreciative of the exchange of ideas
that occurred during the conference. He
also said, "African optimism says 'make
the eagle rise up, and see the horizons',
which has optimism. Success stories
say that we should be optimistic and not
despondent. Capacity building is not a
thing we take for granted, but something
we strive for. We expect that representa-
tion of Africa will be much more preva-
lent in future INECE conferences."
Renzo Benocci (Environment Canada):
Mr. Benocci thanked Paula Caldwell for
significantly expanding the Canadian
delegation that attended this confer-
ence, in comparison to previous ones.
Hocine Benyahia (National Federation
for the Protection of the Environment,
Algeria): Mr. Benyahia, who is part of a
small nongovernmental organization in
Algeria, described the unique learning
experience that the conference provid-
ed, and hoped that this was not the last
one.
Linda Duncan (Consultant on Environ-
mental Law & Policy, Canada): Ms. Dun-
can complimented the conference par-
ticipants on stepping beyond the lines
defining what groups they represent to
form a true cooperative enforcement
network.
Gerard Wolters concluded the
remarks by thanking the participants for
their comments.
3 THANKING THE CONFERENCE
STAFF, HOSTS, AND PARTICIPANTS,
PRESENTED BY GERARD WOLTERS
There are also several others who
were critical to making this conference a
success. First and foremost, I would like to
thank the INECE Secretariat staff, who
worked night and day this week to make
this conference happen: Ken Markowitz,
Marcy Markowitz, Dave Grossman, Scott
Stone, Meredith Reeves, Aesah Javier,
Mike Frizzell, Melanie Nakagawa, Linda
Massopust, Davis Jones of the US EPA,
and, of course, Durwood Zaelke.
I would also like to thank our hosts
here in Morocco for all of their efforts. In
particular, I would like to thank Fouad Zyadi
and Naima Oumoussa and others with the
Moroccan Ministry of Territory Planning,
Water and the Environment.
Special thanks must be given to
Mohamed Rida Derder, the North African
Counsel with the INECE Secretariat and a
jack-of-all-trades who arranged the sub-
stance of the regional conference and
many of the logistics of this conference,
and who helped many of you get your lug-
gage back.
And, of course, I would like to
extend thanks to the hotel staff. The hotel
managers and staff have made our stay
here very enjoyable and have gone out of
their way to accommodate our requests.
We appreciate all of their efforts.
Also I would like to thank all the
speakers, moderators, facilitators, and rap-
porteurs who contributed to the success of
our conference. And of course this also
refers to all those who have been instru-
mental to the success of the Regional Con-
ference on Saturday and those who were
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WOLTERS 197
facilitating the Principles of Compliance
and Enforcement Executive Course.
Finally, friends and colleagues, I
would like to thank all of you for participat-
ing in this conference and sharing your
thoughts and insights. INECE will benefit
from all your valuable input during plenary
sessions and all the workshops. You all are
the stars of this conference.
Of course, you are also the stars of
the film by Douglas Varchol, which will cap-
ture the story of this conference and the
stories of some of its participants. I thank
Douglas for his efforts this week to compile
a documentary film for us about the confer-
ence. Douglas is a filmmaker, not a film edi-
tor, so the edits will take place over the
coming weeks. But he has kindly agreed to
show a short preview, which we will now
see. Enjoy.
4 JO GERARDU'S CLOSING
COMMENTS, PRESENTED BY
JO GERARDU
What is there to say after this draft
of an Oscar nominee? I want to thank you
for all the compliments that have been
addressed to me for my activities as an
INECE participant. I want to make three
remarks but do not worry; I'm not keeping
you away from your lunch for long.
In 1989, in Washington, D.C., there
were three of us: Cheryl Wasserman of
U.S. EPA, Bert Metz of the Royal Dutch
Embassy, and myself. We met at an
exchange program on compliance and
enforcement between the U.S. EPA and
our Ministry of VROM. At that moment, we
decided to follow our idea to organize a
larger exchange meeting in Utrecht in 1990
with participants of other countries and
organizations. Our bosses agreed with our
ideas and this was the moment INECE was
conceived, and you demonstrated this
week how well this idea has been growing
and has matured.
INECE is a success not only due to
the work we were able to do. You can be a
very good photographer but if there is noth-
ing in your picture you have no results. I
feel the same about INECE; you as partici-
pants are INECE, you are the network, and
I'm proud to be part of your network.
I want to thank Gerard for the pos-
sibilities he gave me to work for INECE
over the years. Most of all, I want to thank
my wife Marij, who never really complained
when I was again abroad. She too made
this happen.
I end with a phrase out of a song of
the Rolling Stones: "INECE I'm gonna miss
you". Thank you all and good luck.
5 FINAL REMARKS, PRESENTED BY
GERARD WOLTERS
We worked hard but enjoyed our-
selves. We have renewed old friendships
and made new ones. I hope this confer-
ence has been as rewarding for all of you
as it has been for me. But we must not.
allow the experiences of this week to be
confined to this week only. Let this confer-
ence be a catalyst for further action. I want
to recall to you the words of Phyllis Harris,
one of our Co-chairs, that INECE is not the
Executive Planning Committee, nor is
INECE the Secretariat, but INECE is all of
you.
So to all of you: LENAFTAHH
ABUWAB (A)TTAA-WOON (Arabic for "Let
us open the doors of partnership")
Again, I thank you all and have a
safe trip home. And with these words, I
declare the 7th INECE International Con-
ference on Environmental Compliance and
Enforcement closed.
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198 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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EVALUATION OF INECE's 7TH INTERNATIONAL CONFERENCE 199
EVALUATION OF INECE'S 7th INTERNATIONAL CONFERENCE
1 INTRODUCTION
The 7th INECE Conference was
attended by 188 participants from 63 coun-
tries and 124 organizations, representing
all regions of the world. The Conference
presented six plenary sessions with 25
speakers, and 24 workshops with 83 facili-
tators and rapporteurs. Participants repre-
sented national governments (55%), NGOs
(9%), regional governments (6%), interna-
tional organizations (15%), bank and devel-
opment agencies (5%) and other organiza-
tions (10%).
strengthening the rule of law and good gov-
ernance and, ultimately, achieving sustain-
able development objectives.
The Conference program achieved
its best marks in encouraging ongoing
international exchange and regional net-
working, fostering exchange of expertise
and learning through active participation,
number of participants, relevance of the
conference to current work, and useful-
ness. Lowest marks (between Good and
Very Good) were given to the number and
types of countries represented and the site
visits.
Geographic Regions Represented
Africa
Asia & the Pacific
Central & Eastern Europe
Central America
South America
International
Middle East & North
Africa
North America
Western Europe
Total
Participants
No.
10
8
19
2
8
35
35
39
32
188
%
5.3
4.3
10.1
1.1
4.3
18.6
18.6
20.7
17.0
100
Organization Types Represented
National Government
International Organizations
Non-governmental Organization
State/Province/Regional Gov't
Banks and Development Agencies
Municipal/Local Government
Unspecified
Other
Total
Participants
No.
103
29
16
11
9
0
1
19
188
%
54.8
15.4
8.5
5.9
4.8
0.0
0.5
10.1
100
2 SUMMARY OF THE
EVALUATION OUTCOMES
Of the 188 participants, 103 com-
pleted conference evaluations. Participants
overwhelmingly provided high marks for
the Conference. The average rating for
most questions ranged between Excellent
and Very Good.
They expressed high satisfaction
with the conference. Participants expressed
their greatest approval for the conference
goal of developing and communicating a
strong message on the critical role of envi-
ronmental compliance and enforcement in
The three conference workshop
sessions and six plenary sessions were
very well received, with high approval rat-
ings. Overall, the participants were enthusi-
astic about the substantive sessions, the
opportunities for networking, and the Con-
ference as a whole, as indicated by the nar-
rative comments that participants shared
on the evaluation, including:
— "An excellent forum for collective learn-
ing among compliance and enforcement
professionals."
— "A fine conference providing great sub-
stantive value."
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
"I think the success of this conference
was based on the excellence of the
speakers and facilitators.... Also, the ori-
gin of the participants from different
regions of the world and the different
moments to meet each other were very
important."
"The conference has given me a clear
picture of what needs to be done to
achieve effective enforcement in South
Africa."
"I learned a lot and feel motivated to
fight for the defense of the environment.
Besides that, I met many people with
whom I had the opportunity to exchange
experiences."
"An excellent conference. I have
renewed contacts, made new contacts,
and most importantly, feel energised to
do more in the future for effective com-
pliance and enforcement."
"On Sunday, I participated in the Princi-
ples of Environmental Enforcement
Training course. This course stimulated
me to organize training for inspectors in
my country."
— "I do not remember any other confer-
ence I attended where participants got
so familiar with each other and had so
many opportunities for discussion - in
official and unofficial ways."
— "It has been a pleasure to be part of the
7th INECE Conference, and I'm looking
forward to putting some of lessons
learnt into practice."
— "I am very glad that I had the opportuni-
ty to meet so many experts from differ-
ent countries and to share their experi-
ence and knowledge."
3 RESULTS
Each Conference participant
received a blank evaluation form and was
asked to complete it prior to their departure
from the Conference. Most questions on
the evaluation could be answered by
assigning a number between 1 and 5 as
the response, where 1=Excellent, 2=Very
Good, 3=Good, 4=Fair, and 5=Poor. This
section presents the original evaluation
questions and shows the average rating for
each evaluation question.
SECTION 1: CONFERENCE GOALS
1.1
1.2
1.3
1.4
How did you feel about the conference's goal of developing and
communicating a strong message on the critical role of environmental
compliance and enforcement in strengthening the rule of law and good
governance and, ultimately, achieving sustainable development
objectives?
How successful did you feel the conference was in achieving this goal?
How did you feel about the conference's goal of strengthening the
capacity of governments, development banks, and other institutions to
measure and manage the effectiveness of their compliance assurance
and enforcement activities by launching new environmental compliance
and enforcement indicator pilot projects that build upon the experiences of
current initiatives?
How successful did you feel the conference was in achieving this goal?
1.51
1.81
1.97
1.97
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EVALUATION OF INECE's TTH INTERNATIONAL CONFERENCE 201
1.5
1.6
1.7
1.8
How did you feel about the conference's goal of inspiring new enforcement
cooperation projects on issues of pollution, natural resources, and
biodiversity, and creating plans that set forth clearly defined goals, project
partners, funding strategies, and implementation?
How successful did you feel the conference was in achieving this goal?
How did you feel about the conference's goal of facilitating professional
development within the compliance community and discussing the best
compliance and enforcement tools, techniques, and theories from around
the world, identifying key research and data collection needs?
How successful did you feel the conference was in achieving this goal?
1.83
2.11
1.67
1.96
SECTION 2: ASSESSMENT OF THE CONFERENCE
2.1 How successful do you feel the conference was in:
Shaping and confirming the role that INECE will play in the future?
Forming effective partnerships among those working in compliance
and enforcement?
Increasing institutional capacity to enhance existing and develop new
environmental compliance and enforcement programs?
Serving all people involved in the design of environmental compliance
and enforcement programs?
Encouraging ongoing international exchange and regional networking?
Fostering exchange of expertise and learning through active
participation?
1.82
1.74
2.13
2.04
1.45
1.61
2.2 Concerning the participants at the conference, how do you feel about:
The number of individuals in attendance?
The number and types of countries represented?
The number and types of organizations represented?
The mix of experience?
1.68
2.41
2.13
1.83
2.3 Concerning the structure of the conference, how do you feel about:
The optional p re-conference training workshop on Principles of
Environmental Compliance and Enforcement?
The balance between Panels and Workshops?
The site visits?
The length of the conference?
1.74
1.79
2.61
1.99
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
2.4
Concerning the usefulness of the conference, how do you feel about:
The relevance of this conference to your current work or functions?
The extent to which you have acquired information that is new or useful
to you?
The focus of this conference on what you specifically needed or
wanted to learn?
The overall usefulness of the conference?
1.60
1.74
1.91
1,60
SECTION 3: DAY ONE — SPECIFIC CONFERENCE PLENARY THEMES AND TOPICS —
MONDAY MORNING
Opening Plenary Session: Building Blocks of Good Governance
3.1 Panel 1 - Relationship between Good Governance and Environmental Compliance and
Enforcement
Usefulness of material?
Mix of topics covered on panel?
Opportunity for discussion?
1.90
1.78
1.90
3.2 Panel 2 - The Compliance and Enforcement Message
Usefulness of material?
Mix of topics covered on panel?
Opportunity for discussion?
End of Day Plenary (after workshops)
3.3 Report out of workshop sessions
Usefulness of material?
Opportunity for discussion?
1.87
1.84
2.03
2.16
2.45
SECTION 4: DAY ONE — WORKSHOPS — MONDAY AFTERNOON
Please evaluate the workshop that you attended in Session 1 :
1A Economic Aspects of Compliance and
Enforcement
1B Compliance Incentives and Other
Assistance
1C Ecomessage/lnterpol and the Police
Was the discussion
valuable?
1.86
1.67
1.58
Were your
expectations met?
2.25
1.75
1.92
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EVALUATION OF INECE's TTH INTERNATIONAL CONFERENCE 203
1D
1E/F
1G
1H
11
Compliance and Enforcement Theories and
Design Principles
Certification, Information Management, and
Self-Monitoring
Good Governance and the Rule of Law
Communications Policy and Practice
Citizen Participation in Environmental
Enforcement
2.08
2.00
1.55
1.50
1.33
2.92
2.00
1.60
1.75
1.67
SECTION 5: DAY TWO — SPECIFIC CONFERENCE PLENARY THEMES AND TOPICS —
TUESDAY MORNING AND AFTERNOON
5.1 Panel 3 - Enforcement Initiatives: Stories of Success
Usefulness of material?
Mix of topics covered on panel?
Opportunity for discussion?
1.75
1.65
1.88
5.2 Panel 4 - Environmental Compliance and Enforcement Indicators: Measuring
Performance, Managing Resources
Usefulness of material?
Mix of topics covered on panel?
Opportunity for discussion?
1.89
2.03
1.99
End of Day Plenary (after workshops)
5.3 Roundtable discussion from Indicator Workshops
Usefulness of material?
Opportunity for discussion?
2.07
2.28
5.4 Report out of workshop sessions 2E - 21
Usefulness of material?
Opportunity for discussion?
2.12
2.37
SECTION 6: DAY TWO — WORKSHOPS — TUESDAY AFTERNOON
Please evaluate the workshop that you attended in Session 2:
2A ECE Indicators: Getting Started
Session A-1
Was the discussion
valuable?
2.00
Were your
expectations met?
2.40
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Session A-2
Session A-3/4
2B Criminal Law and Environment: Prosecutors,
Inspectors, Police, and NGOs
2C Role of the Courts, Non-governmental
Organizations, and the Press: Climate
Litigation Case Study
2D Guidance and Manual on Compliance with
and Enforcement of MEAs
2E Wildlife Enforcement Network
2F Negotiated Compliance Agreements
1.82
1.69
1.62
1.40
1.70
2.00
1.88
1.95
1.64
1.85
1.50
1.80
2.13
1.86
SECTION 7: DAY THREE — FIELD VISITS — WEDNESDAY
Village Des Potiers
Ciments du Maroc (CIMAR)
Sidi Kaoki (Wind Power)
Quality of
case
study?
2.76
2.77
3.31
Quality of
presentation
and tour?
3.14
2.89
3.64
Usefulness of
field visit?
2.94
3.15
3.50
SECTION 8: DAY FOUR — SPECIFIC CONFERENCE PLENARY THEMES AND TOPICS
— THURSDAY MORNING AND AFTERNOON
8.1 Panel 5 - Strengthening the Implementation of MEAs
Usefulness of material?
Mix of topics covered on panel?
Opportunity for discussion?
1.95
1.87
2.05
SECTION 9: DAY FOUR WORKSHOPS — THURSDAY AFTERNOON
Please evaluate the workshop that you attended in Session 3:
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EVALUATION OF INECE's 7m INTERNATIONAL CONFERENCE 205
3A Water Resource Management: Governance
to Eliminate Poverty
3B Vessel Pollution
3C Hazardous Waste at Ports
3D Analyzing the Compliance and Enforcement
Mechanisms of the Montreal Protocol
3E Enforcement of Emissions Trading Programs
3F Illegal Logging: Regional Strategies for
Enforcement Cooperation
3G Penalties and Other Remedies
3H Multilateral Environmental Agreements:
Synergies for Compliance
Was the discussion
valuable?
2.10
1.17
1.63
1.71
1.86
1.00
1.25
1.65
Were your
expectations met?
2.30
1.00
1.75
1.50
2.00
1.33
1.25
1.88
SECTION 10: DAY FIVE — PLENARY SESSIONS — FRIDAY
10.1 Panel 7 - Compliance and Enforcement in the Context of Multilateral Development
Banks
Usefulness of material?
Mix of topics covered on panel?
Opportunity for discussion?
1.90
1.85
1.83
10.2 Video
Usefulness of video contents?
Do you feel it provided a good overview of the conference?
2.16
2.23
10.3 Presentation of Conference Statement
Appropriateness of the statement?
Do you feel this reflects the purpose and goals of INECE?
1.71
1.63
10.4 Closing Ceremony Session
How do you feel about the closing session?
1.74
SECTION 11: EXHIBITS
UNEP
VROM
USEPA
Were the topics
of interest to
you?
2.16
1.84
1.92
Productive
exchange of
information?
2.16
1.93
2.04
Quality of the
exhibit material?
2.04
1.61
1.81
Availability of
materials?
2.19
1.68
2.08
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
CEC
Environment
Agency
OECD
World Bank
Institute
IFAW
IMAZON
Others
2.23
2.00
1.91
2.42
2.45
2.53
2.00
2.21
2.08
2.03
2.28
2.33
2.41
2.00
2.03
1.95
1.81
2.13
2.09
2.24
1.94
2.00
1.95
1.96
2.21
2.15
2.24
1.96
SECTION 12: ORGANIZATION OF THE CONFERENCE
City Location
Schedule (workshops, free time, other)
Speakers
Service desk
Chez Ali cultural event
Cornptoir Restaurant outing
Contact with Executive Planning Committee
Availability of Conference Staff
1.44
1.72
1.58
1.69
2.16
1.52
1.82
1.40
4 CONCLUSION
In conclusion, the participants expressed strong support for the organization and
outcomes of the 7th International Conference on Environmental Compliance and Enforce-
ment. Participants strongly supported the Conference goals and praised the Conference for
providing many opportunities for networking between participants facing similar challenges
in improving enforcement in their respective countries. Participants also complimented the
organizers for bringing together an impressive group of speakers, all of whom are leading
practitioners in the fields of environmental compliance and enforcement. The Executive
Planning Committee will carefully study the numerical results and narrative comments from
the evaluations. The lessons learned will be used to improve and shape future conferences
and recommendations made by participants for INECE projects will be reviewed and incor-
porated into INECE's expanded Strategic Plan.
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BULARGA, KORCHEVSKY, SlRENDI 207
RAISING INDUSTRY'S ROLE IN THE FIELD OF
ENVIRONMENTAL COMPLIANCE ASSURANCE:
ELEMENTS OF REFORM IN KAZAKHSTAN
BULARGA, ANGELAS KORCHEVSKY, ANDREY,2 and SlRENDI, AARE3
1 Project Manager, Environment Directorate, Non-Member Countries Division,
Organisation for Economic Cooperation and Development (OECD),
angela.bularga@oecd.org.
2 Project Expert, Executive Director of the Centre for Health Protection and
Environmental Projects, Kazakhstan
health@nursat.kz
3 Project Expert, former staff of the Estonian Environmental Inspectorate, Estonia
aare.sirendi@kki.ee
OECD, 2 Rue Andre-Pascal, 75775 Paris Cedex 16, France
SUMMARY
Assisting transition economies in the region of Eastern Europe, Caucasus, and
Central Asia to better align environmental policy development and implementation is the
core objective of the Regulatory Environmental Programme Implementation Network (com-
monly referred to as REPIN). The Network facilitates access to best practices of environ-
mental management and compliance assurance and implements pilot projects in individual
countries of the region. Raising industry's responsiveness to the regulatory environmental
compliance assurance program in Kazakhstan is one such pilot projects. Its results are pre-
sented in the current article.
1 INTRODUCTION
Over the last decade, the regulated
community in the Eastern Europe, Cauca-
sus, and Central Asia region, as in other
regions, has become subject to new instru-
ments of environmental policy that create
incentives to comply with regulatory
requirements or go beyond such require-
ments. In some cases, fervent discussions
around new instruments, in particular vol-
untary approaches, eclipsed the need to
assess the effectiveness of, and reform,
more traditional instruments, including self-
monitoring, self-reporting, and self-correc-
tion. To address this need, a pilot project
was launched in Kazakhstan under the
framework of REPIN.
DEFINITION OF "ENVIRONMENTAL
SELF-SUPERVISION"
One of the first challenges within
the project in Kazakhstan was to find a syn-
thetic term that would best reflect the sys-
tem of mandatory actions by the regulatees
to ensure their own compliance with regu-
latory requirements (most often known as
"self-monitoring"). The project team pro-
posed to use the term "environmental self-
supervision" and defined it as a system of
organizational and technical measures, put
in place and financed by regulatees, sub-
ject to environmental permitting or general
binding rules in the field of environmental
protection, in order to ensure their own
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
compliance with environmental require-
ments. This includes:
— monitoring of (i) operations; (ii) emis-
sions of pollutants regulated by permits
or general binding rules; (iii) ambient
conditions in the vicinity of the facility
concerned - with a scope that would
balance environmental effectiveness
with costs of monitoring;
— record-keeping of data obtained through
monitoring of any unforeseen circum-
stances, non-compliance episodes, cor-
rective measures, and complaints from
the general public;
— providing reports to the competent
authorities - in mandated cases, with a
specified regularity, and in a duly aggre-
gate form;
— undertaking other measures, such as
assigning environmental responsibilities
throughout the whole chain of manage-
ment, providing basic environmental
training, performing self-inspection, and
implementing self-correction actions.
3 BENEFITS OF ENVIRONMENTAL
SELF-SUPERVISION
For the regulated community, reli-
able data on emissions and the environ-
mental impact of their production can have
significant value from an economic view-
point. For example, such data can help to
better identify and reduce environment-
related costs (that can be as high as 30
percent of operational costs in some
branches), and minimize environmental lia-
bilities. Disclosure of facility-specific data
and comparison between enterprises with-
in the same industrial sector, or with inter-
national benchmarks, can further indicate
where cost-savings are possible. Further-
more, access to other companies' facility-
specific data can build trust within indus-
tries that the government is targeting to
ensure a level playing field.
The other primary benefits include
the possibility of ensuring the earliest pos-
sible response to any environmental prob-
lem occurring because of malfunctions in
production processes and, at the same
time, reduce public spending on govern-
mental compliance monitoring. Self-super-
vision data can provide a basis for verifica-
tion of compliance with legal requirements
and enforcement and for calculation of var-
ious charges. The program can also help to
optimize national, regional, and local ambi-
ent monitoring systems and establish prior-
ities for inspection.
Disclosure of facility-specific data
can help citizens to take individual deci-
sions that affect not only their health, but
also economic well-being, such as where to
buy property. Worldwide, the social rele-
vance of self-supervision is growing due to
higher public access to environmental
information, in particular in light of estab-
lishment of national Pollutant Release and
Transfer Registers.
While there are many other bene-
fits of self-supervision, they will be har-
nessed only if its results are actually used
by stakeholders within decision-making
processes. Data collection for the sake of
data will lead, most likely, to an erosion of
the system's value.
4 DESIGN OF ENVIRONMENTAL
SELF-SUPERVISION IN
KAZAKHSTAN
In Kazakhstan, environmental self-
supervision has a long history at the largest
industrial facilities - some of the oldest
enterprises reported establishing such pro-
grams in the mid-1970s. The design of self-
supervision has many positive elements
that correspond to good international prac-
tice, but some of its weaknesses and its
poor links with the new economic and
social context diminish its potential bene-
fits.
4.1 Strengths
The obligation for industrial opera-
tors to conduct self-supervision is indicated
in the Law on Environment Protection,
which is a very positive characteristic of the
Kazakh regulatory framework. Also, legal
stipulations exist in the Administrative and
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BULARGA, KORCHEVSKY, SlRENDI 209
Penal Codes to minimize the possibility of
fraud and negligence within self-supervi-
sion program implementation. The second-
ary legislation gives further guidance on
approaches and procedures of self-super-
vision. In conjunction with a stronger focus
on the integrity and professionalism of staff
who develop secondary legislation, this
model of regulating self-supervision could
be very effective. It provides sufficient
scope to adjust in a timely manner to any
new transition challenges and to gradually
develop and tighten regulatory require-
ments without compromising the goals of
social and economic development.
The regulated community (in prac-
tice, the largest facilities) is in charge of
developing individual multi-media self-
supervision programs and of presenting
them for approval to the competent author-
ities. The obligation to conduct self-supervi-
sion applies regardless of ownership; uni-
form self-supervision requirements are
established for public and private compa-
nies. Enterprises ("natural resource users")
bear full responsibility for implementing
self-supervision programs and provide the
necessary expertise, equipment, and ana-
lytical facilities. Sometimes services are
obtained on a sub-contract basis. Results
of self-supervision are communicated to
competent authorities through regular sta-
tistical reports or immediately in the case of
emergency situations or accidents. The
costs of self-supervision are met by the
enterprise.
The government of Kazakhstan
regulates the functioning of these systems
through certification of laboratories, annual
approval of programs, inspection, etc.
Competent authorities are allowed to use
self-supervision data in law enforcement
against violators; this approach is widely
used, in particular due to scarce resources
available to competent authorities to con-
duct compliance monitoring.
Finally, non-governmental organi-
zations and the general public voice
demands to have access to facility-specific
environmental information. This is backed
up by Kazakhstan's ratification of the
Aarhus Convention and signature of the
Kiev Protocol on Pollutant Release and
Transfer Registers.
4.2
Weaknesses
While the self-supervision system
has the potential to be very effective, it is
undermined by a number of problems, such
as:
— gaps and conflicts in laws and regula-
tions, including a poor definition of basic
concepts;
— lack of clarity in the mandated scope of
self-supervision;
— insufficient attention to quality assur-
ance and quality control;
— assessment of self-supervision perform-
ance, based on the existence of a spe-
cific organizational form, i.e., of an envi-
ronmental unit within an industry, rather
than on the quality of self-supervision
programs and outcomes of their imple-
mentation;
— continuing low mutual trust between
public authorities and industry;
— poor laboratory facilities of both regulat-
ed industries and competent authorities;
— lack of mechanisms to disclose facility-
specific data and take into consideration
the interest of the general public while
designing self-supervision programs;
— limited coordination between different
departments and sub-divisions of the
Ministry of Environment Protection on
matters of self-supervision due to their
focus on carrying out very specific func-
tions mandated in legal acts.
The incoherence of the legal basis
in allowing the existence of two similar
terms with blurred definition - self-supervi-
sion and self-monitoring - creates much
confusion among the regulated community.
Frequently, self-monitoring is understood
as the instrumental measurement of emis-
sions or ambient quality, while self-supervi-
sion means the decision-making process
following self-monitoring. In addition to this
interpretation, it is also common to under-
stand self-supervision as emission monitor-
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
ing and self-monitoring as ambient monitor-
ing (i.e., the monitoring of soil, air, or water
quality).
Competent authorities often con-
sider that industries have to monitor the
maximum possible number of parameters
without balancing the scope of self-supervi-
sion with inherent costs. At the same time,
competent authorities do not have ade-
quate resources to keep track of and ana-
lyze the information received from industry.
This leads to a situation in which industries
create a superficial mechanism of self-
supervision disconnected from the overall
management system and therefore of little
value beyond mandatory reporting. Con-
trary to international practices, in order to
verify compliance, the values of parame-
ters monitored by operators are compared
with historic (inventory) emission levels,
rather than the permit conditions.
The quality of self-supervision data
raises doubts for a number of reasons.
There is no statutory procedure to ensure
the integrity of sampling, sample preserva-
tion, transportation, and analysis. The
robustness and reliability of calculation
methods are often challenged due to a high
level of uncertainty and absence of quality
control and quality assurance. There is evi-
dence of major discrepancies between the
measurements made by the state analyti-
cal laboratories and enterprise laborato-
ries. Quality problems with laboratory tests
often lead to controversy, which sometimes
has to be resolved in court. Consequently,
both the industries and the competent
authorities incur additional administrative
costs.
5 PROPOSED ELEMENTS OF
POLICY REFORM
There is a need for reforming the
current system of self-supervision in Kaza-
khstan. Most importantly, its obsolete legal,
institutional, and technical characteristics
have to be addressed and the quality and
use of data for decision-making should be
enhanced. The need to reform the existing
system is recognized by various stakehold-
ers, including governmental authorities,
industry, and the general public. It is recom-
mended that the reform aim at the following
key outcomes:
— unambiguous definition of basic con-
cepts and improved legal basis;
— differentiated scope of self-supervision
for large industries and Small and Medi-
um-Sized Industries, and its link to per-
mit conditions or general binding rules;
— clear requirements on the content of
self-supervision programs;
— longer validity of self-supervision pro-
grams, with a possibility to amend them
when necessary, and the introduction of
post-closure requirements;
— combined use of various types of moni-
toring (direct and indirect monitoring;
operational, emission, and impact moni-
toring) within self-supervision programs,
abandoning the practice of all-encom-
passing impact monitoring, and accept-
ance of various organizational forms of
self-supervision to better suit the
resources available to particular cate-
gories of enterprises;
— reliable approaches to setting regimes
of monitoring and optimization of self-
supervision costs;
— uniform requirements for quality assur-
ance and a strategy to ensure data qual-
ity;
— efficient data management, reporting,
and a meaningful use of information in
decision-making, including self-correc-
tion actions;
— regular review and use by authorities,
and public scrutiny of self-supervision
data;
— better use of self-supervision data for
inspection and enforcement, in parallel
with the development of the incentive
framework for regulated industries to
comply with self-supervision require-
ments.
6 MANAGEMENT OF THE TRANSITION
A transition period (seven to eight
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BULARGA, KORCHEVSKY, SlRENDI 211
years) should be envisaged for improving
self-supervision, with the adoption of an
intermediate model, which would facilitate
the step-by-step achievement of feasible
objectives and bring the system closer to
international practices. This will need to be
fully coordinated with the process of imple-
mentation of requirements under the Kiev
Protocol on Pollutant Release and Transfer
Registers (PRTR). During the transition
period, internal financing of proposed
measures (Ministry of Environmental Pro-
tection's (MEP) budget and budgetary pro-
grams) could be matched with external
technical assistance.
6.1 Improving the Legal Basis
In the short term (one year), the
MEP will need to propose amendments to
the existing legal basis in order to strength-
en the foundations of self-supervision. In
this context, the definition of self-supervi-
sion, its elements and forms will need to be
clarified, the differentiated approach
towards large industry and Small and Medi-
um-Sized Enterprises enacted, and the
powers of the competent authorities stipu-
lated more precisely. The Administrative
and Penal Codes will also need to be
amended. Good laboratory practice and
other process-relevant requirements need
to be mandated in secondary legislation.
The quality of legal amendments will need
to be monitored intensively, based on feed-
back from practice during a period of two to
three years, with a view to further improving
the legal basis, if necessary.
The development and approval of
a thematic chapter for the Environmental
Code (foreseen for 2007) should be
finalised through a wide stakeholder con-
sultation process. In this context, the MEP
staff need to understand that directly man-
dating self-supervision and determining its
elements in great detail may restrict future
developments in the field concerned. It also
can be a serious impediment for correcting
the design of self-supervision, if the primary
legislation is not exact or misleading. How-
ever, legal requirements of direct applica-
tion may be more easily enforceable and
have a stronger impact on compliance
behaviour than requirements imposed
through secondary legislation.
An important task is to link the
reform of self-supervision with the reform of
permitting and introduction of differentiated
requirements for large industry and other
members of the regulated community (see
also the Guidance on Integrated Environ-
mental Permitting for Eastern Europe, Cau-
casus, and Central Asia). A good step for-
ward is the development of the List of Envi-
ronmentally Hazardous Installations in
Kazakhstan, although the categories of
installations identified in the List need fur-
ther definition, in particular as concerns
production thresholds. To further develop
this List, it is suggested that the MEP uses
the list of categories in Annex I of the Euro-
pean Union's Directive on Integrated Pollu-
tion Prevention and Control and the Scope
of the PRTR Protocol as a starting point.
6.2 Addressing Institutional Issues
As a matter of immediate priority,
the MEP should strengthen communication
and cooperation between its departments
and other sub-divisions that contribute to
the reform and functioning of self-supervi-
sion. This includes, first of all, the State
Committee for Environmental Control, the
Department for State Environmental
Review and Licensing, the Department of
Environmental Policy, and the Department
of Legal and International Affairs. Focus
should be put on developing procedures of
data sharing and joint decision-making,
including:
— coordination of any plans to develop
secondary legislation and guidance for
industry to conduct self-supervision;
— mandatory review of permit require-
ments (or stand-alone self-supervision
programmes) by other Departments and
the State Committee for Environmental
Control;
— immediate feedback from inspection to
permit-writers;
— establishment of a database on compli-
ance history of facilities (including permit
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
applications, permit documents, reports
from site visits, reports from the facility,
etc.) that would be accessible for all
government stakeholders and easy to
use;
— regular and ad-hoc coordination meet-
ings.
In order to facilitate the work of reg-
ulators and inspectors, the MEP should
develop general and sector-specific techni-
cal guidance that would describe the
mandatory and desirable elements of self-
supervision within a branch. This could be
based on the consultative guidance docu-
ment, developed by the EAP Task Force
Secretariat within the demonstration proj-
ect in Kazakhstan. Such guidance should
be widely available and disseminated
through all means, including through the
MEP's website.
Training will be necessary for vari-
ous stakeholders to better understand the
design of modern self-supervision systems.
A training course could be included in the
programme delivered by the National Train-
ing Centre under MEP, based on materials
developed within the demonstration proj-
ect.
Establishing a powerful information
system to share data reported by operators
and make them available to the general
public can greatly contribute towards
increasing the value added of self-supervi-
sion. This should be done within the frame-
work of implementation by Kazakhstan of
the Kiev protocol on PRTRs. Also the MEP
may want to adopt electronic reporting
within the framework of the e-government
introduction.
6.3 Improving Laboratory
Infrastructure and Practice
The government will need to pro-
mote and support the creation of reference
laboratories and analytical centers, and
their participation in the international inter-
calibration, training, and certification of per-
sonnel. This could include the improvement
of both the existing laboratories and the
technical skills available with competent
authorities, and at the same time, the
development of independent private labo-
ratories, this often being a more cost-effec-
tive approach. In the latter case, a legal
right to sub-contract sampling and labora-
tory analysis should be given to competent
authorities, and budgets planned for out-
sourcing such services.
It will be important to review and
develop the monitoring capacity of pollu-
tants that are specified in international
agreements. For instance, the capacity to
monitor dust particles of 10 microns
(PM10) in air emissions should be devel-
oped immediately.
International experience should be
used to improve laboratory practices and
techniques. In this context, a very helpful
tool is the OECD's Resource Centre for
PRTR Release Estimation Techniques. The
Resource Centre is an Internet site that has
been developed by the Task Force on
PRTRs of the OECD's Environment,
Health, and Safety Programme. The pur-
pose of the site is to provide a clearing-
house of guidance manuals/documents of
release estimation techniques for the prin-
cipal pollutant release and transfer reg-
istries developed by OECD Member coun-
tries. The manuals and documents include
descriptive information on the sources of
pollution and the pollutants that are
released, as well as information on emis-
sion factors, mass balance methods, engi-
neering calculations, and monitoring infor-
mation. The Resource Centre will be updat-
ed on a regular basis to include additional
and new documents available. See
http://206.191.48.253/
6.4 Implementing Facility-Specific
Pilot Projects
Pilot projects aiming to establish a
comprehensive self-supervision programs
in selected enterprises can be a useful tool
to assess, among other things, the benefits
and costs of implementation of self-super-
vision, in particular as part of the transition
to integrated permitting. Such pilot projects
can be recommended particularly for large
new investments where enterprises have
sufficient capacity. Criteria for selecting
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BULARGA, KORCHEVSKY, SlRENDI 213
installations for such pilot projects include,
most importantly: the environmental
impact, compliance costs, and financial
performance.
7 BIBLIOGRAPHY
European Integrated Pollution Prevention
and Control Bureau. Reference Document
on the General Principles of Monitoring.
July 2003, http://eippcb.jrc.es
Hietamaki, M. (2002), Self-monitoring (of
air emissions, discharges to water and
waste) in Finland. Proceedings of the Sixth
International Conference on Environmental
Compliance and Enforcement, http://www.
inece.org
IMPEL (1999). Operator Self-Monitoring.
Impel Network (1999) available at
http://www.europa.eu.int/comm/environ-
ment/impel/
IMPEL (2001). Best practice in compliance
monitoring available at http://www.europa.
eu.int/comm/environment/impel/
IMPEL (2002). The Finnish Comparison
Programme II available at http://www.
europa.eu.int/comm/environment/impel/
INECE (International Network for Environ-
mental Compliance and Enforcement),
Source Self-Monitoring Requirements:
International Comparison, http://www.
nece.org
Saarinen K. A method to improve the inter-
national comparability of emission data
from industrial installations. Environmental
Science & Policy 6 (2003).
Saarinen K. Monitoring total emissions
from industrial installations. Environmental
Science & Policy 6 (2003).
United Nations Economic Commission for
Europe (UNECE) Paper ECE/MP.PP/
AC.1/2005/6 on institutional and legal
implementation of the PRTR protocol
http://www.unece.org/env/documents/
2005/pp/ece/ac.1/ece.mp. pp. ac. 1.2005.6.e
.doc
UNECE Paper ECE/MP.PP/AC.1/2005/7
on the scope of the PRTR protocol, http://
www.unece.org/env/documents/2005/pp/e
ce/ac.1/ece.mp.pp.ac.1.2005.7.e.doc
US Environmental Protection Agency.
Compilation of Air Pollutant Emission Fac-
tors, AP-42, http://www.epa.gov/ttn/chief/
ap42/index.html.
World Bank Group. Pollution Prevention
and Abatement Handbook 1998. Towards
Cleaner Production. Washington, D.C.
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214 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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BULARGA, MICHALAK 215
USING PEER REVIEWS TO PROMOTE ENVIRONMENTAL
IMPROVEMENTS AND GOOD GOVERNANCE:
THE CASE OF THE KYRGYZ REPUBLIC
BULARGA, ANGELA,1 and MICHALAK, KRZYSZTOF2
1 Project Manager, Environment Directorate, Non-Member Countries Division,
Organisation for Economic Cooperation and Development (OECD),
angela.bularga@oecd.org
2 Administrator, Non-Member Countries Division, Environment Directorate, OECD,
krzysztof.michalak@oecd.org
OECD, 2 Rue Andre-Pascal, 75775 Paris Cedex 16, France
SUMMARY
The Kiev Conference of the Ministers of Environment (May 2003) recommended
that countries of Eastern Europe, Caucasus, and Central Asia (EECCA) implement the
"Guiding Principles for the Reform of Environmental Enforcement Authorities in Transition
Economies". The Guiding Principles, which build on good governance practices, provide a
reference model for an effective and efficient system of environmental compliance assur-
ance. To help countries of the region to implement the Guiding Principles a Peer Review
programme has been launched in the framework of EECCA REPIN Network. The current
article presents the experience of the first pilot application of a Peer Review Scheme in Kyr-
gyzstan.
1 INTRODUCTION
The members of the Regulatory
Environmental Programme Implementation
Network (REPIN) agreed, at their 5th annu-
al meeting in October 2003 in Kiev, to
launch a pilot Peer Review Scheme intend-
ed to facilitate reforms of compliance
assurance in Eastern Europe, Caucasus,
and Central Asia (EECCA). REPIN
endorsed the objectives and methodology
of peer reviews and welcomed the initiative
of the Kyrgyz Republic to be the first coun-
try subject to this mechanism of inter-gov-
ernmental dialogue and support. The
"Guiding Principles for the Reform of Envi-
ronmental Enforcement Authorities in Tran-
sition Economies of EECCA", recommend-
ed for implementation by the Kiev Minister-
ial Declaration (May 2003), provided a ref-
erence framework for the review.
The benefits and high policy profile
of peer reviews have been demonstrated
due to a vast practical experience, includ-
ing regular (economic, regulatory, and envi-
ronmental performance) reviews undertak-
en by the OECD, Environmental perform-
ance reviews carried out in the EECCA
region by the United Nations Economic
Commission for Europe (UNECE), as well
as the reviews of environmental funds car-
ried out by the Task Force for the Imple-
mentation of Environmental Action Pro-
gramme (EAP Task Force) in Central
Europe and lately in EECCA. The IMPEL
Review Initiative, established in 2001 by
the Member Countries of the European
Union (EU), provided another example of a
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
successful application of the peer review
concept.
BOX 1: PEER REVIEWS AT OECD
A peer review involves a systematic
examination and assessment of the
performance of a state by other states,
with the ultimate goal of helping the
reviewed country adopt best prac-tices
and comply with established standards
and principles.
The peer review mechanism is free of
any threat of non-compliance sanc-
tions arising from the findings of the
review: its impact relies on the influ-
ence and persuasion exercised by
"peers" (equal partners in the review
process). The Peer Review Scheme
serves the following purposes:
— To provide international peer sup-
port for institutional reform.
— To enhance government's trans-
parency, accountability, and visibili-
ty, at national and international
level.
— To extend opportunities for inter-
government policy dialogue and
support capacity building.
2 THE PRACTICAL APPLICATION OF
THE SCHEME IN KYRGYZSTAN
The review was carried out at the
request of the Ministry of Ecology and
Emergency Situations (Ministry) of the Kyr-
gyz Republic by an international team of
experts. The preparatory phase of the Kyr-
gyz Peer Review consisted of preliminary
analysis carried out in the period November
2003 to February 2004. The analysis was
based on available background reports,
national policy and legal framework, and a
self-assessment report prepared by Kyrgyz
counterparts. Prior to the review mission,
the Ministry disseminated the Guiding Prin-
ciples among all stakeholders at the nation-
al level, which contributed to a better
understanding of the reference framework
for the review among stakeholders.
The review mission was carried out
from 15-20 March 2004 by a team of seven
experts from OECD, Central European and
EECCA countries, and the OECD Secre-
tariat. The mission included a series of
interviews with political leaders, managers
and experts representing the Ministry's
headquarters and regional departments,
other governmental organisations, as well
as NGOs and the regulated community. In
total, more than 70 people were consulted
during these meetings. At the end of their
mission, the review team members pre-
sented and discussed initial findings at a
meeting with Ministry staff. A press confer-
ence was held jointly by the Secretariat and
high-level officials from the Ministry on the
objectives, outcomes, and follow-up of the
review mission.
Subsequently, the draft review
report was prepared by the Secretariat.
This report was discussed during the
REPIN annual meeting in Yerevan (26-29
September 2004). The final set of conclu-
sions and recommendations were adopted
by consensus.
A round-table with key stakehold-
ers was conducted on the outcomes of the
review of environmental enforcement sys-
tem in Kyrgyzstan (9 February 2005,
Bishkek). More than 50 people attended
the round-table, including representatives
of the Council of Ministers, Ministry of
Economy and Industry, Ministry of Finance,
Ministry of Health, the NGO community,
major industrial enterprises, as well as
national and regional level officials and
staff members of the Ministry.
The participants of the round-table
concluded that the peer review revealed
"real" problems and challenges of the envi-
ronmental enforcement system in Kyrgyzs-
tan. The Ministry will work to reform the
environmental enforcement system follow-
ing the review recommendations, and all
partner organisations (including the Min-
istry of Finance) agreed to provide support
to the reform process. The participant from
the Ministry of Health pointed out that the
recommendations were also valid for their
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BULARGA, MICHALAK 217
inspection unit (Sanitary Epidemiological
Service) and these would be taken on
board during the reform of that service.
3 OUTCOMES OF THE PEER
REVIEW IN KYRGYZSTAN
3.1 Country Context
Since achieving independence in
1991, the Kyrgyz Republic has implement-
ed broad reforms aimed at attaining macro-
economic stability, improving the regulatory
system and creating the foundations of a
democratic society and market economy.
The economy of Kyrgyzstan is relatively
open: The country was the first former
Soviet republic to be accepted in 1998 into
the World Trade Organization.
Market reforms have not yet been
completed. This includes unfinished public
sector reforms and a lack of favourable
framework conditions for private entrepre-
neurship and the promotion of investment
activity. The domestic situation has been
exacerbated by external obstacles to
growth, of which the main ones are remote-
ness from - and dependence upon - major
international commodity and financial mar-
kets, as well difficulties in preserving tradi-
tional economic relations with the neigh-
bouring countries. Although economic
recession has been stopped and produc-
tion is recovering the past few years, Kyr-
gyzstan remains among the poorest in the
world and 44% of the population still lives
below the poverty line .
Strategic priorities of Kyrgyzstan
have been outlined in the Comprehensive
Development Framework, adopted in 2000
for the ten years to 2010. The overall devel-
opment goal is the political, social and eco-
nomic well being of the people of the Kyr-
gyz Republic, with freedom, human dignity
and equal opportunity for all. This has been
broken down into three basic goals:
— Effective and transparent governance
system;
— A fair and secure society to ensure that
all members of society share equitably
in the nation's political, social and eco-
nomic development
— Sustainable economic growth and
development.
Although the adverse impact on
the environment decreasing over the last
decade because of the generally
depressed situation in industrial and agri-
cultural production, this trend was compen-
sated by environmentally malign practices
and resource-intensive processes used to
attain short-term economic goals. There is
an overall degradation of environmental
infrastructure, accompanied by a reduced
spending for environment protection
needs. This resulted in considerable
threats to human health: more than 16% of
the total number of diseases in Kyrgyzstan
are caused by air pollution, 10% - from pol-
luted water, 9% - from the contaminated
soil.
3.2 Environmental Management
System in a Nutshell
The Republic of Kyrgyzstan has
developed an extensive environmental
management system with particular instru-
ments, working methods, institutions, and
communication interfaces in place to imple-
ment environmental policy objectives.
Command-and-control instruments, includ-
ing permitting, compliance monitoring and
non-compliance response, were introduced
in the late 1970s. In the mid-1990s, they
were complemented by economic instru-
ments. These were mainly pollution
charges, and to a lesser extent non-regula-
tory, information-based instruments, such
as environmental information provision and
awareness-raising activities.
It is important to mention that the
country's economic and social context is
not favourable for better environmental
management, although the Country Devel-
opment Framework targets more effective
state governance and secure conditions of
life for all members of society. Unfortunate-
ly, the political support for environmental
improvements was so far largely declara-
tive. The government emphasised the eco-
nomic recovery of the country without tak-
ing due account of external environmental
costs imposed by current production pat-
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
terns. For instance, the air permit system
has been suppressed for some time as part
of a wider process to encourage entrepre-
neurship and foreign investment. A very low
percentage of the Gross Domestic Product
is devoted to environmental purposes: in
the Kyrgyz Republic, only 0.03% of the
Gross Domestic Product is allocated to the
environment compared with one to 1.5% in
OECD countries.
3.3 Institutional Capacity for
Environmental Enforcement
The main environmental authority
was established in 1989 and went through
several structural reforms, particularly fre-
quent after 1999. Presently, the Ministry
has full executive authority in Environmen-
tal protection. The Ministry is the successor
of the former Ministry of Environment Pro-
tection but, unfortunately, has so far been
unable to keep as high an institutional pro-
file for environmental protection as it has
for emergency response.
Compliance with, and administra-
tive enforcement of, regulatory require-
ments is ensured by 185 environmental
inspectors employed by the Ministry and its
regional branches. Their scope of activity
covers mainly industrial pollution control
with around 2,200 large installations under
national and sub-national jurisdiction.
Other members of the regulated communi-
ty are not yet well identified, especially
among Small and Medium-sized Enterpris-
es, whose number has now reached 30
thousand. Given the absence of Small and
Medium-sized Enterprises in the centrally
planned economy, this is rather an impres-
sive growth of the regulated community.
Over the last few years the atten-
tion of environmental inspectors has been
placed primarily on enforcing the payments
of pollution charges as the way to compen-
sate for the limited funding of Environmen-
tal authorities. This focus has reached the
point of distorting the very mission and
integrity of compliance assurance system
and eroding the self-confidence and public
credibility of enforcement officers.
There are other serious problems
in the design and operation of the environ-
mental compliance assurance system in
the Kyrgyz Republic. Inter alia, these
include:
— A regulatory framework that favours
companies' short-term interests, while
disregarding potential negative environ-
mental impacts and the costs of environ-
mental pollution to society, for example,
the suppression of air permit systems
and restrictions on inspectors' authority
to conduct on-site visits;
— Frequent reforms of the organisational
structure of the environmental authority
without a clear vision of how these
reforms will help achieve priority envi-
ronmental objectives. Similarly, working
methods are currently applied that lead
to inefficient use of resources;
— Confrontational relations with the regu-
lated community due to lack of dialogue
between stakeholders, low understand-
ing of compliance problems, unfeasible
regulatory requirements, and outdated
instruments of compliance assurace and
promotion;
— Limited human, financial, and material
resources to carry out inspections. In
particular, very low operational budgets
and no capital investment for monitoring
and inspection facilities.
3.4 Key Recommendations of
the Review
The major challenge for environ-
mental enforcement authorities in the Kyr-
gyz Republic is to shift their operation away
from pursuing revenue-raising goals
towards focusing on ensuring compliance
with environmental requirements in order to
achieve environmental results. Preventa-
tive actions should be used more systemat-
ically and frequently and the regulated
community should be treated with consis-
tency, in a transparent and proportionate
manner.
The credibility of enforcement
actions should be ensured by establishing
feasible and enforceable compliance
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BULARGA, MICHALAK 219
objectives and working in a transparent,
accountable manner. Also the value of the
enforcement authorities will be elevated if
policy makers and the general public are
better acquainted with the potential bene-
fits of a fair and firm enforcement, including
decreased social and economic costs of
environmental pollution and degradation,
enhanced rule of law and a guaranteed
level playing field for industry.
The review concluded that fulfil-
ment of the core mission of the enforce-
ment authority in the Kyrgyz Republic
which is to ensure compliance thus protect-
ing the environment and human health will
require:
— improving the environmental regulatory
framework;
— Acquiring adequate powers and raise
the institutional status of the enforce-
ment agency;
— Adopting risk-based and performance-
oriented working methods;
— Embracing higher professional stan-
dards and foster international co-opera-
tion;
— Interacting with stakeholders openly and
constructively.
Specific recommendations were
provided under each of these objectives.
Also the review suggests a number of
short- and longer-term steps for reform of
domestic compliance assurance instru-
ments, strategies, and institutions in light of
good international practice. These steps
are closely linked with, and support, the
implementation of the country's strategic
development objective of adopting a good
governance system.
4 CONCLUSIONS
The peer review process confirmed
to be an effective mechanism for distilling
achievements and bottlenecks in environ-
mental enforcement, identifying direction
for reform and concrete actions. It helps
also to build in-country partnerships for
improving the effectiveness of environmen-
tal compliance assurance. The OECD/EAP
Task Force Secretariat will continue using
this mechanism in EECCA: Armenia is the
next country to be reviewed under the
scheme.
5 BIBLIOGRAPHY
"Guiding Principles for the Reform of Envi-
ronmental Enforcement Authorities in Tran-
sition Economies" available at www.
oecd.org/env/eap
"Peer Review: an OECD Tool for Co-opera-
tion and Change" available at www.oecd.
org/dataoecd/33/16/1955285.pdf
"Environmental Enforcement in the Kyrgyz
Republic: Promoting Environmental
Improvements and Enhancing Good
Governance" at www.oecd.org/env/eap
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220 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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DE GELDER 221
STRATEGY FOR THE SUPERVISION OF CARBON DIOXIDE
AND NITROGEN OXIDES EMISSIONS TRADING
DE GELDER, THEO
Netherlands Emission Authority, Prinses Beatrixlaan 2, 2595 AL, Den Haag,
The Netherlands, Theo.degelder@minvrom.nl
SUMMARY
This paper presents a summary of a discussion paper of the same title, which was
distributed at the 7th INECE Conference. The summary describes the problems that need
to be addressed and of the strategy's limitations, as well as a discussion of the planned
approach and an introduction to carbon dioxide and nitrogen oxides emission trading in The
Netherlands.
1 BACKGROUND AND
QUANTITATIVE CHARACTERISTICS
On 13 October 2003, the European
Parliament and the Council passed a direc-
tive (2003/87/EC) to introduce a system of
emission trading in greenhouse gasses in
the European Union as of 1 January 2005.
The directive is instrumental to the realisa-
tion of the Kyoto targets and must ensure
that the industry and energy sectors deliver
he emission reductions implied by the
Kyoto Protocol. The directive requires that
Member States enact the legal structure to
implement the directive obliging Member
States to issue emission permits to the
larger industrial companies enabling them
to participate in the emission trading
scheme. All member states must draw up
an allocation plan that determines the
emission allowances to be issues to partic-
ipating companies. All companies have to
monitor their emissions in accordance with
the permit requirements at the end of the
year draft an emission report stipulating
and specifying their total carbon dioxide
emissions and hand over sufficient
allowances to cover their total emissions.
Included in the Carbon Dioxide
Emission Trading Scheme will be those
plants that are covered by the definitions in
Annex 1 of the European Carbon Dioxide
directive. These concern energy activities
in which the installed thermal capacity of
the combustion plants in the installation
(facility) is above 20 "MWth,1 but also a
number of other designated categories with
or without a threshold as listed in the
annex. Member States are obliged to sub-
mit national allocation plans (NAPs) for
approval by the European Commission.
According to Annex A of the Dutch national
allocation plan 355 establishments in the
Netherlands fall under the directive. How-
ever, this also includes 150 establishments
with an annual emission of less than 25
kilotons of carbon dioxide. Early on, the
Netherlands has flagged that the cost of
participation of these installations in the
trading scheme far outweighed the bene-
fits, and with the approval of the Commis-
sion an out-out provision for these installa-
tions was created. Some 26 of these 150
establishments have opted to participate in
the emission trading. A total of 206 estab-
lishments have been provided with an
emission permit and have been issued with
allowances in accordance with the
approved national allocation plan.
In October 2001, the European
1MWth signifes "Megawatt thermal," and is a measure of energy production.
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
parliament and the Council decided on the
National Emission Ceilings directive
(2001/81/EC), which imposes on each
Member State ceilings for the national
emissions of nitrogen oxides, sulphur diox-
ide, and particulates. The ceiling for the
nitrogen oxides emissions in the Nether-
lands for 2010 is 260 kilotons. The Dutch
government has decided to introduce a
system of emission trading for nitrogen
oxides emissions of the industrial installa-
tions as a cost effective instrument to
realise the required emission reductions. In
this context a target of 55 kilotons of nitro-
gen oxides has been set for the industrial
installations to which the legislation on
nitrogen oxides emissions apply. In general
it means all industrial installations with a
total thermal capacity of more than 20
MWth and installations with process emis-
sions of the steel and other metal industry,
cement and glass production, chemical
industries etc. For each category of nitro-
gen oxides emitting industry, a perform-
ance standard rate has been defined that
applies to all the establishments in the
same way. The performance standard rate
is expressed in grams per gigajoule (g/GJ)
of energy used and for process emissions
in gram or kilograms nitrogen oxides per
ton produced in that process. The starting
value is 68 g/GJ in 2005, decreasing with 5
or 6 gram annually to 40 g/GJ in 2010.
2 THE NETHERLANDS
EMISSIONS AUTHORITY
Early during the first discussions in
1999 on the introduction of nitrogen oxides
emissions trading it was learned that the
aspects of proper monitoring, inspection
and enforcement to comply with the legal
requirements are most critical elements of
any emissions trading programme, and that
thereto the Dutch Government would have
to set high standards and develop ambi-
tious targets high.
From the very beginning, this
ambition has been focused on setting up an
effective structure and organisation that
would be able to manage the application
and issuance of emission permit most effi-
ciently and effectively, and would be
equipped with sufficient staff and expertise
to inspect, enforce and correct deviations
from the permit conditions or between actu-
al emissions and those reported by the
establishments.
The Netherlands Emission Authori-
ty's ambition is to achieve a situation with a
high compliance rate. The Netherlands
Emission Authority has been set up as an
independent administrative organisation
that will act as the competent authority
charged with the permitting, inspection and
enforcement of emissions trading at the
above mentioned establishments. During
the last two years this authority has pre-
pared itself for the tasks and responsibili-
ties in respect of the implementation and
execution of new legislation. One of the
steps taken to prepare the Netherlands
Emission Authority for its tasks and respon-
sibilities concerned the formulation of the
inspection and enforcement strategy to
ensure that companies actually comply
with the legal requirements. The inspection
and enforcement strategy has been devel-
oped in a consultancy assignment whereby
as much as possible knowledge and expe-
riences from the UK and the USA has been
taken on board. This strategy defines the
tools that the Netherlands Emission Author-
ity intends to use in order to achieve the
high rate of compliance that is needed in an
emissions trading environment.
2.1 Legislation For The
Implementation Of Emission
Trading And The Role Of The
Netherlands Emission Authority
To be able to implement emission
trading in the Netherlands the framework
Environmental Management Act has been
amended on the following elements.
A new chapter (Chapter 16), deal-
ing specifically with emissions trading of
carbon dioxide and nitrogen oxides has
been added to the Environmental Manage-
ment Act and two existing chapters have
been amended.
Chapter 2 (Advisory bodies) allows
for establishing of the Netherlands Emis-
sions Authority as the legal body charged
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DE GELDER 223
with the issuing of emission permits,
inspection and enforcement of emissions
trading.
Chapter 18 (Enforcement) has
been amended to provide for the penalties
and other instruments to enforce effectively
the various emissions trading require-
ments. The two schemes of emissions trad-
ing, i.e. nitrogen oxides and carbon dioxide
require similar provisions for the monitor-
ing, permitting, verification and inspection.
The requirements in
Chapter 16 in the Act provides for
one emission permit for nitrogen oxides
and carbon dioxide, and for a monitoring
protocol as an integral part of the emissions
permit covering the equipment, manage-
ment of data and the internal procedures to
safeguard the proper monitoring of both
emissions. The Netherlands Emission
Authority is responsible for the issuance of
the permit and the approval of the monitor-
ing protocol. In the new set-up, the opera-
tor is to prepare just one emission report
and to have it verified and hand it in accord-
ing to the same procedures. In order to
facilitate and to ensure a fully equal treat-
ment and procedure for the implementation
and enforcement of both trading schemes
the Netherlands Emission Authority will
supervise the legal requirements, the per-
mitting, the inspection and the enforcement
of the new legislative requirements.
2.2 The Principal Tasks
The principal tasks of the Nether-
lands Emission Authority include:
— Validation of monitoring protocols.
— Issuance of permits.
— Carrying out supervision and enforcing
compliance.
— Keeping records of trading transactions.
— Publication of emission totals and out-
comes.
— Imposing administrative sanctions.
In performing these tasks, the
Netherlands Emission Authority will coop-
erate closely with the provincial authorities
as the competent authorities for the Envi-
ronmental Management Act (Wm-BG), in
particular on the validation and issuing of
permits and supervising and enforcement
of compliance. Furthermore, the Nether-
lands Emission Authority has established
close working relationships with the Public
Prosecutor to achieve effective coordina-
tion between criminal and administrative
proceedings. To be able to guarantee reli-
able and accurate monitoring and reporting
emission data a compliance and assurance
system has been set up in cooperation with
the industry and government and provincial
authorities. It is set out in figure 1.
Figure 1:
Enforcetiient
" Validation / prftttte is&md
I Moment of |
I enforcement
System for guaranteeing monitoring and reporting in
context of emission trading
(Source: report "Strategy for the supervision of CO2 - and
NOx - emission trading. Dutch Ministry of Environment, 29
April 2004)
In order to assist the industry at an
early stage in their preparations for drafting
their monitoring protocols, a Programme of
Requirements for the monitoring of carbon
dioxide and nitrogen oxides emissions was
being developed before the legislative
requirements were in place. This Pro-
gramme of Monitoring Requirements,
which in the meantime has been translated
into the ministerial order on monitoring for
carbon dioxide and nitrogen oxides, sets
out the monitoring and reporting require-
ments the companies must comply with.
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
The companies themselves must draw up a
monitoring protocol based on the require-
ments laid down in this Programme of
Requirements. The monitoring protocol is
the main element of the permit application
by the company. The Netherlands Emission
Authority then validates the monitoring pro-
tocol by assessing whether it meets the rel-
evant requirements and whether the
description of the installation is a true
reflection of the actual situation as covered
by the Integrated Pollution Prevention and
Control (IPPC) permit to the company.
On the basis of the validated mon-
itoring protocol the emission permit is then
issued. The company subsequently carries
out its monitoring process in accordance
with the monitoring protocol. In case
changes occur in the monitoring or other
relevant changes in the permitted situation,
these must be reported and in certain
cases also Netherlands Emission Authori-
ty's approval of the changes in the monitor-
ing protocol must be solicited. At the end of
each year the company is to draw up an
emission report that is to be verified by an
independent verification body that is
accredited to verify emission report under
the emissions trading scheme. The verified
emission report is then sent to the Nether-
lands Emission Authority. The Netherlands
Emission Authority will accept the verified
emission report and the emissions con-
tained therein, but as her task and respon-
sibility as competent authority the Nether-
lands Emission Authority will carry out inde-
pendently various inspection and control
activities to assess whether the emissions
reported in the annual reports are indeed
monitored and reported in conformity with
the permit conditions. To that end, the
Netherlands Emission Authority will carry
out regular visits at the establishment
aimed at auditing the emissions reported
by the companies and carry out in-depth
inspections to assess that the process of
Figure 2: Information Flows
Accreditation of
measuring company
Accreditation of the
verifier
measuring equipment
Measuring
input &
output
according to
monitoring
protocol
Buying & selling
of allowances
(+flnanciaJ
transaction)
= primary information and data emissions
= secundiary information needed for the verification of quality and reliability primary information
= tertiary data and information transactions
(Source: report "Strategy for the supervision of CO2 - and NOx - emission trading. Dutch Ministry of Environment, 29 April 2004)
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DE G ELDER 225
monitoring, reporting and verification func-
tions in line with the intentions of the legis-
lator.
2.2.1 Information Flows
The reliability and correctness of
the emission data provided in the emis-
sions reports are Netherlands Emission
Authority's central concern. The supervi-
sion strategy distinguishes therefore two
levels on which emission data are generat-
ed usually.
On a secondary level the strategy
is directed to information related to the
measuring and production data cycle, the
calculation and processing of these data
and the resulting reports. On what is prob-
ably the highest level it concerns the
processes aimed at quality assurance and
quality control (QA/QC). The figure 2 below
sets out the relevant information flows as
far as the supervision is concerned.
As indicated above, the strategy
for supervision focuses particularly on the
primary and secondary information flows.
2.2.2 Limitations
The strategy for supervision is
directly concerned with the inspection and
enforcement of compliance with the regula-
tions, in order to ensure the reliability and
accuracy of the reported emission data.
There is also the relationship with associat-
ed tasks such as validation, the issuing of
Figure 3: Concepts used in the context of supervision and enforcement
(Source: report "Strategy for the supervision of COa_and NOx - emission trading. Dutch Ministry of Environment, 29 April 2004)
Enforcement of the rules is intended to ensure compliance with the applicable regulations (regulations imposed
by law as well as those that are part of a permit). It concerns activities carried out by the competent authority
that are intended to achieve a certain degree of compliance or enforce it. These activities can be of a preven-
tive or repressive nature and usually include general supervision and taking action in the case of infringements
(see the diagram below). ' -
Enforcement
Repressive
enforcement
Validation
permits issued
Preventive
supervision
Administra-
tive action
Criminal
procedings
The term 'enforcement' includes both the concept of preventive and repressive action.
Preventive activity on the part of the Netherlands Emissions authority (NEa) means the validation of the moni-
toring protocol, the issuing of permits and preventive supervision. By preventive supervision is meant check -
ing whether (permit) regulations are being complied with and whether the permit is adequate. If infringements
are discovered this is followed by consultation and the NEa will indicate the nature and degree of the shortcom -
ings. In this strategy for supervision preventive supervision will simply be referred to by the term supervision.
In addition to consultation, the repressive phase of the enforcement may be started with the initiation of admin-
istrative steps (in the form of a penalty, an administrative fine) or criminal proceedings (charge, criminal prose-
cution). In this strategy for supervision the term repressive enforcement will be used to refer to the application
of (administrative) sanctions.
When the supervision is aimed at uncovering offences, it takes on the form of an investigation. This requires
prosecuting or investigative powers. This phase falls outside the scope of this strategy for supervision.
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
the permits and the evaluation of annual
emission reports. The step involving action
taken to correct infringements (repressive
enforcement) is not part of this strategy.
The action can consist of imposing or warn-
ing for legal sanctions, either of an admin-
istrative or penal nature. The strategy for
punitive action and penalties will be devel-
oped by Netherlands Emission Authority as
a separate line of enforcement. This strat-
egy however does deal with the relation-
ship between inspection and repressive
enforcement.
3 COMPLIANCE FACTORS FOR
DETERMINING THE STRATEGY:
THE TABLE OF ELEVEN
One of the tools which has been
developed as a "thinking framework" is the
so-called Table of Eleven. This Table of
Eleven offers eleven factors from the target
group's perspective that influence the caus-
es of infringement or the motives for com-
pliance with the regulations. A distinction
has been made between spontaneous
compliance factors and enforcement fac-
tors. At various levels, tools can be used
that take into consideration and reflect the
factors in spontaneous compliance as well
as the enforcement factors. The following
figure illustrates the Table of Eleven.
Another tool that is emphasized in
the discussion paper is communication.
Interviews held with experts from the USA
showed that a proper communication is
very important for encouraging sponta-
neous compliance. Making sure the parties
concerned are well informed applies to
increasing knowledge and the clarity of the
regulation but also the degree of accept-
ance of the policy.
4 SANCTION STRATEGY
Netherlands Emission Authority
has developed a sanction strategy to rem-
edy in the situation that shortcomings are
found during audits or depth-inspections.
The sanction strategy sets out in detail how
inspectors must act when different types of
deviations are noticed. The strategy
includes a "how to act" model. In this model
there are four categories of various devia-
tions classified and ranked by urgency and
seriousness. By following a process-dia-
gram inspectors know precisely which
steps in response should be taken.
Figure 4: Compliance, enforcement and sanction factors.
Enforcement factors
Costs benefits of compliance
Knowledge/clarity of regulations
Seriousness of sanction
Chance of sanction
Selectivity
Chance of being caught
Chance of being checked
Chance of informal notification
Chance of informal check
Faithful observance of standards
Acceptance of policy
Sanction
factors
Spontaneous compliance factors
(Source: report "Strategy for the supervision of CO2 - and NOx - emission trading. Dutch Ministry of Environment, 29 April 2004)
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DE GELDER 227
5 GUIDE TO THE DISCUSSION PAPER
The most important conclusions
regarding the strategy for supervision can
be found in Chapter 2. Continuing on this,
the background, justification and further
elaboration of these conclusions are set out
in a further four chapters. Chapter 3 pro-
vides an elaboration of the objectives and
the preconditions of this strategy for
inspection. This chapter discusses the
basic premises of the strategy and also
deals with the impact of the time aspect on
a changing strategy for supervision. Chap-
ter 4 provides a further elaboration of the
strategy and the approach to the supervi-
sion. A description is given of the sources
drawn on for determining the strategy and
the instruments for the execution of the
strategy (communication and two types of
inspections), possible reasons why super-
vision is required and the relationship of the
supervision with other steps in the process
such as validation, the issuing of permits
and assessment of emission reports.
Chapter 5 focuses on the various aspects
of carrying out inspection. These include
the required capacity and expertise for the
various instruments as well as the inherent
risks of deviations. An indication is also
given of what form the collaboration
between the competent authority for the
Environmental Management Act and the
collaboration on an international level might
take as part of the supervision. Finally,
Chapter 6 looks at the role evaluation and
feedback play as part of the supervision. It
also explains the role of building up
dossiers and generating management
information as part of the evaluation, as
well as international possibilities for further
fine-tuning and evaluation.
Note:
Participants of the conference who
would like to receive a hard copy of the
paper or the electronic version are invited
to sent a request by mail to:
Theo.deGelder@minvrom.nl
Netherlands Emission Authority
Address: Prinses Beatrixlaan 2
2595 AL, Den Haag
The Netherlands
Tel: 0031 (0)70391361
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228 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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HUNTER 229
THE EMERGENCE OF CITIZEN ENFORCEMENT IN
INTERNATIONAL ORGANIZATIONS
HUNTER, DAVID B.
Professor, Washington College of Law, 4801 Massachusetts Avenue, NW, Washington,
DC 20016, United States, dhunter@wcl.american.edu
SUMMARY
In recent years, the nation-state's monopoly over international law and institutions
has been eroding. The rise of an effective and active global civil society on the one hand
and that of increasingly powerful international institutions on the other have created a pow-
erful dynamic that is reshaping the way international law is made and enforced. This paper
describes the emergence of influential environmental and social standards at international
financial institutions and the parallel emergence of citizen-based mechanisms to enforce
those standards.
1 INTRODUCTION
Since the 1980s, international
financial institutions led by the World Bank
Group have been developing environmen-
tal and social policies that are oriented
towards protecting certain rights and inter-
ests of affected communities. These poli-
cies address, for example, issues relating
to environmental assessment,1 involuntary
resettlement2 and indigenous peoples.3
The influence of these standards extend
well beyond the substantial sphere of
World Bank Group operations, however, as
they have become the models for regional
development banks and national laws in
some countries.
More recently and importantly, the
standards of the International Finance Cor-
poration, the private sector arm of the
World Bank Group, have emerged as the
predominant standards for all international
project finance in developing countries.4
Export Credit Agencies from the OECD
countries have agreed to benchmark their
environmental and social standards
against those of the International Finance
Corporation.5 In addition, the world's
largest commercial banks, who collectively
are responsible for arranging more than
80% of all foreign project finance in devel-
oping countries, have agreed to follow
International Finance Corporation stan-
dards.e
The development and strengthen-
ing of these standards, and their applica-
tion to the full range of financial institutions,
has resulted in large part from pressure
brought by international civil society in col-
laboration with local affected communities.
These stakeholders recognize, however,
that standards without any enforcement or
oversight mechanism will not result in
improved practice on the ground. For that
reason, the call for enhanced environmen-
tal and social standards has been met by a
parallel call for effective, transparent and
independent enforcement mechanisms.
Beginning with the 1993 creation of
the World Bank Inspection Panel, affected
citizens have been given new rights to hold
international institutions accountable for
compliance with their policies and proce-
dures. Today citizens enjoy enforcement
mechanisms at five multilateral financial
institutions7 and three bilateral financial
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
institutionss where they can seek to enforce
the environmental and social policies of the
institutions. Each of these enforcement
mechanisms differs to some degree, but
they share one thing: they all provide local
people with an opportunity to seek the insti-
tution's compliance with applicable environ-
mental and social policies. The original
conception for these mechanisms emanat-
ed from civil society organizations and aca-
demics outside of the traditional interna-
tional legal order who recognized the need
for enhanced citizen involvement in inter-
national institutions.9 These mechanisms
were viewed both as a response to the
international organizations' immunity and
as a way to ensure that those people most
affected by the organization's activities
have some sort of mechanism to ensure
their rights and interests under the policies
were met.
Generally speaking, the citizen
enforcement mechanisms at international
financial mechanisms can be categorized
as reflecting a "compliance model" exem-
plified by the World Bank Inspection Panel,
a "problem-solving" model exemplified by
the International Finance Corporation's
Compliance Advisor and Ombudsman
office, or a hybrid of both systems exempli-
fied by both the Compliance Advisor and
Ombudsman office and the Asian Develop-
ment Bank's Accountability Mechanism.
Brief descriptions of the Inspection Panel
and the Compliance Advisor and Ombuds-
man office's processes are provided below.
2 HOW THE WORLD BANK
INSPECTION PANEL WORKS"
The World Bank Panel was created
"for the purpose of providing people direct-
ly and adversely affected by a Bank-
financed project with an independent forum
through which they can request the Bank to
act in accordance with its own policies and
procedures."11 The Panel evaluates the
Bank's performance against the standards
set forth in the Bank's operational policies
and procedures. It is comprised of three
permanent members, each of whom serves
for five years. To ensure independence,
Panel members cannot have served the
Bank in any capacity for the two years pre-
ceding their selection. More importantly,
Panel members can never work for the
Bank again. The Panel also has a perma-
nent Secretariat with five staff.12
Claims can be filed by any affected
party or parties (other than a single individ-
ual) in the borrower's territory.^ The affect-
ed parties' local representative, the Bank's
Board of Executive Directors, or, in some
cases, any one Executive Director, is also
eligible to file claims. In a deliberate
attempt to limit the role of NGOs and their
lawyers, non-local representatives can rep-
resent affected parties only in "exceptional
cases" where "appropriate representation
is not locally available."14
Claims must be in writing and must
explain how the affected parties' interests
have been, or are likely to be, directly
affected by "a failure of the Bank to follow
its operational policies and procedures with
respect to the design, appraisal and/or
implementation of a project financed by the
Bank."1s The claimant must demonstrate
that it has exhausted other remedies by
first providing Bank staff a reasonable
opportunity to respond to the allegations.
Upon receiving a complete request for
inspection that is not clearly outside the
scope of the Panel's authority,16 the Panel
registers the claim, notifies the claimant
and the Board of Executive Directors, and
forwards a copy of the claim to Bank Man-
agement, which has twenty-one days to
respond.17 The Panel then has twenty-one
days to review Management's response
and to make a recommendation to the
Board of Executive Directors regarding
whether the claim warrants a full investiga-
tion.^
The Board of Executive Directors
has exclusive authority to authorize or deny
a full investigation. Although this led to sig-
nificant politicization of the Panel process
in the first few years, since changes made
in 1999 the Board has supported every
Panel recommendation for an investiga-
tion.19 Once an investigation is authorized,
the Panel enjoys broad investigatory pow-
ers including access to all Bank staff. Mem-
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HUNTER 231
bers of the public may also provide the
Panel with supplemental information rele-
vant to the claim. After the investigation, the
Panel issues a report evaluating the Bank's
compliance with its policies. Within six
weeks, Management must submit to the
Board of Executive Directors a report and
recommendations in response to the
Panel's findings. The Panel's Report, Man-
agement's recommendations, and the
Board's decision are released two weeks
after Board consideration.
As of January 1, 2005, the Inspec-
tion Panel had received thirty-three formal
requests for inspection and registered thir-
ty of them.20 The Panel has found the eligi-
bility requirements have been met and rec-
ommended an investigation in seventeen
claims, and the Board has approved inves-
tigations in thirteen of those requests.20
The Board has approved every investiga-
tion recommended by the Panel since a
clarification of the eligibility procedures was
made in 2000.
3 HOW THE INTERNATIONAL
FINANCE CORPORATION
OMBUDSMAN'S OFFICE WORKS
The President of the World Bank
Group created the Office of the Compliance
Advisor/Ombudsman (CAO) in 1999 to
address complaints relating to the Group's
private sector arms - the International
Finance Corporation and the Multilateral
Investment Guarantee Agency - neither of
which were covered by the Inspection
Panel. Although the Office of the Compli-
ance Advisor/Ombudsman's office has both
an advisory and compliance function, it
considers its ombudsman function as its
primary and most important responsibility.
The ombudsman function was designed to
respond "to complaints by persons who are
affected by projects by attempting to
resolve the issues raised using a flexible,
problem-solving approach."22 Any individ-
ual, group, community, entity or other party
affected or likely to be affected by the social
or environmental impacts of an Internation-
al Finance Corporation or Multilateral
Investment Guarantee Agency project may
make a complaint to the ombudsman. Rep-
resentatives of those affected by a project
may also file a complaint, with appropriate
proof of the representation.
The Office of the Compliance Advi-
sor/Ombudsman acknowledges receipt of
all complaints, typically within five days of
receipt. The Office of the Compliance Advi-
sor/Ombudsman then evaluates whether
the complaint falls within its mandate, and,
if it does, whether to accept or reject the
complaint. Complaints must demonstrate
that the complainant has been, or is likely
to be, affected by actual or potential social
or environmental impacts on the ground.
The complaint must relate to an aspect of
the planning, implementation or impact of
an International Finance Corporation or
Multilateral Investment Guarantee Agency
project. Complaints that are "malicious, triv-
ial or which have been generated to gain
competitive advantage" are not accepted.^
The Office of the Compliance Advisor/
Ombudsman also determines whether it
thinks a problem-solving approach - for
example facilitated dialogue, consultation
or mediation - could be effective in
addressing the complainant's concerns.
Once a complaint is accepted, the
Office of the Compliance Advisor/Ombuds-
man immediately notifies the complainant,
registers the complaint, refers the com-
plaint to the relevant International Finance
Corporation or Multilateral Investment
Guarantee Agency personnel with a
request for information, and informs the
project sponsor of the complaint. Manage-
ment has 20 working days to respond to
the request for information.
The Office of the Compliance Advi-
sor/Ombudsman then undertakes a prelim-
inary assessment to determine how it pro-
poses to handle the complaint. This
process is not time-bound but normally
takes 30 working days after the decision to
accept the complaint. After the preliminary
assessment, the Office of the Compliance
Advisor/Ombudsman provides to the
claimant a specific proposal for how it pro-
poses to address their complaint.
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
The Office of the Compliance Advi-
sor/Ombudsman's proposal may include
anything from convening informal consulta-
tions with International Finance Corpora-
tion/Multilateral Investment Guarantee
Agency or the project sponsor to organizing
a more formal mediation process. One of
the options outlined will also be a compli-
ance audit in complaints that raise any
issue of compliance with the International
Finance Corporation/Multilateral Invest-
ment Guarantee Agency policies. Overall,
the ombudsman's office seeks to take a
proactive and flexible approach where the
"aim is to identify problems, recommend
practical remedial action and address sys-
temic issues that have contributed to the
problems, rather than to find fault."24
The Office of the Compliance Advi-
sor/Ombudsman has broad investigatory
powers, including authority to review Inter-
national Finance Corporation or Multilateral
Investment Guarantee Agency files; meet
with the affected people, International
Finance Corporation or Multilateral Invest-
ment Guarantee Agency staff, project
sponsors, and host country government
officials; conduct project site visits,; hold
public meetings in the project area; request
written submissions from any source; and
engage expert consultants to research or
address specific issues.25 The Office of the
Compliance Advisor/Ombudsman con-
cludes the complaint process either when a
settlement agreement has been reached or
when further investigation or problem-solv-
ing e fforts are unlikely to be productive. At
that point, the Office of the Compliance
Advisor/ Ombudsman informs the com-
plainant of its decision and provides a report
to the President of the World Bank Group,
which may include specific recommenda-
tions regarding issues raised by the com-
plaint. The Office of the Compliance Advi-
sor/Ombudsman may also conduct a com-
pliance audit to address non-compliance
issues identified in the course of responding
to the complaint or may refer any policy
issues to the advisory role of Office of the
Compliance Advisor/Ombudsman.
As of January 2005, the Office of
the Compliance Advisor/Ombudsmans
function has received approximately 40
claims, 20 of which had come from one
project - the Baku-Tbilisi-Ceyhan pipeline.
Some of these claims have resulted in long
and complex involvements by the Office of
the Compliance Advisor/ Ombudsman's, for
example complaints relating to the New-
mont Corporation's Yanacocha gold mine
in Peru, and others have involved relatively
short interventions, for example a case
involving one family's inadequate compen-
sation for land lost to the construction of
Chile's Pangue Dam. The Office of the
Compliance Advisor/ Ombudsman is still
too new to evaluate its ultimate effective-
ness in meeting the aspirations of the
claimants, but it is pioneering the use of
alternative dispute resolution methodolo-
gies for civil society complaints in the inter-
national context. The compliance side of
the Office of the Compliance Advisor/
Ombudsman has had less experience thus
far (with only its first two compliance
reviews in process), but may yet provide
citizen-based compliance oversight similar
to that of the Inspection Panel.
4 ASIA DEVELOPMENT BANK
In theory at least, the two approaches - of
an ombudsman and a compliance mecha-
nism - can coexist in one accountability
system. That theory is now being tested by
the Asian Development Bank's new mech-
anism created in 2004.26 The Asian Devel-
opment Bank accountability mechanism
requires complainants to go first to a "spe-
cial project facilitator," which despite the
name is intended to raise the affected per-
sons' concerns with the project to the proj-
ect sponsor and Asian Development Bank
staff and seek a mutually acceptable solu-
tion through flexible dispute resolution
processes. If the claimant is unsatisfied
with the process, the claimant can at any
time request a compliance review from an
independent "compliance review panel"
patterned closely after the World Bank
Inspection Panel. The Asian Development
Bank mechanism has already received
several complaints in just its first year of
operation.
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HUNTER 233
5 CONCLUDING REFLECTIONS
Innovations like the Inspection
Panel, the International Finance Corpora-
tion's Office of the Compliance
Advisor/Ombudsman and the other citizen-
based enforcement mechanisms reflect
major shifts in the paradigm of how envi-
ronmental and social policies are enforced,
and who enforces them, at the internation-
al level. This shift reflects civil society's
demands for a greater and more direct role
in decisions that profoundly affect the qual-
ity of their lives and environment. It extends
to the international sphere the important
role citizen enforcement played in securing
environmental protection at the national
level. It also reflects the increasingly out-
ward orientation of international organiza-
tions in their efforts to interact directly with
civil society.
Less clear yet is whether these cit-
izen enforcement mechanisms will ulti-
mately be sufficiently robust to provide pos-
itive results for the affected people who
bring the claims. An evaluation of the
Inspection Panel showed that about half of
the claimants who brought cases felt that
the process resulted in some important
benefits for them.27 Others saw initial
advantages from the press and pressure
that was created by filing the claims, but
those advantages disappeared as the spot-
light from the Panel process faded. These
findings argue for more monitoring authori-
ty and for more commitment from the under-
lying institutions to implement the findings
of these enforcement mechanisms.
6 REFERENCES
1 IBRD/IDA Operational Policy 4.01: Envi-
ronmental Assessment (1999).
2 IBRD/IDA Operational Policy 4.12: Invol-
untary Resettlement (2001).
3 IBRD/IDA Operational Directive 4.20:
Indigenous Peoples (1991).
4 International Finance Corporation Safe-
guard Policies, last viewed at
http://ifcln1.ifc.org/ifcext/enviro.nsf/Con-
tent/ Safeguardpolicies on February 22,
2005; The World Bank, Pollution Preven-
tion and Abatement Handbook: Toward
Cleaner Production (1998).
5 OECD Recommendation on Common
Approaches on Environment and Official-
ly Supported Export Credits, Dec. 18,
2003. The OECD Common Approaches
allow export credit agencies to bench-
mark their standards against regional
development banks as well as the Inter-
national Finance Corporation.
6 The Equator Principles: An industry
approach forfinancial institutions in deter-
mining, assessing and managing environ-
mental & social risk in project financing
(June 4, 2003), available at http://www.
equator-principles.com/principles.shtm.
7 The five citizen enforcement mechanisms
include: (1) the World Bank Inspection
Panel; (2) the International Finance Cor-
poration's Compliance Advisor and
Ombudsman; (3) the Asian Development
Bank's Accountability Mechanism; (4) the
InterAmerican Development Bank's Inde-
pendent Investigation Mechanism; and
(5) the European Bank for Reconstruction
and Development's Compliance Office.
8 The three bilateral financial institutions
are (1) the Japan Bank for Investment
Cooperation's Compliance Examiners; (2)
the Environment Development Canada's
Compliance Officer; and (3) the US
Overseas Private Investment Corpora-
tion's ombudsman.
9 See e.g., Wold & Zaelke, Establishing an
Independent Review Board at the Euro -
pean Bank for Reconstruction and Devel -
opment: A Model for Improving MDB
Decision-making, 2 DUKE ENVT'L LAW &
POLICY FORUM 59 (1992); The World
Bank's New Inspection Panel and the
Need to Create an International Frame -
work Agreement for Administrative Proce -
dures, Testimony of Durwood Zaelke,
President, and David Hunter, Senior Staff
Attorney, Center for International Environ-
mental Law, in WORLD BANK DIS-
CLOSURE POLICY AND INSPECTION
PANEL: HEARING BEFORE THE SUB-
COMMITTEE ON INTERNATIONAL DE-
VELOPMENT, FINANCE, TRADE AND
MONETARY POLICY OF THE COMMIT-
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234
SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
TEE ON BANKING, FINANCE AND
URBAN AFFAIRS, HOUSE OF REP,
103RD CONGRESS, 2ND SESSION
152-63 (June 21, 1994).
1° This summary of the Panel's operations
was adopted from D. Hunter, Using the
World Bank Inspection Panel to Defend
the Interests of Project-Affected People,
4 CHI. J. INT'L 1.201(2003).
11 Inspection Panel, The Inspection Panel
for the International Bank for Recon -
struction and Development and Interna -
tional Development Association: Operat -
ing Procedures, 34 ILM 510, 511 (1995)
[hereinafter Inspection Panel Proce-
dures]. For a general discussion of how
the Panel operates, see Dana L. Clark, A
Citizen's Guide to the World Bank
Inspection Panel (CIEL 2d ed 1999),
available online at http://www.ciel.org/
Publications/citizensguide.pdf (visited
Jan 27, 2003).
12 For more information, see Inspection
Panel website, available online at http://
worldbank.org/ipn/ipnweb.nsf (visited
Jan 27, 2003).
13 Inspection Panel Procedures, supra note
11.
14 Id.
15 Id.
16 Several types of complaints are explicitly
beyond the Panel's jurisdiction, including
complaints (i) addressing actions that
are the responsibility of parties other
than the Bank, (ii) relating to procure-
ment decisions, (iii) filed after a loan's
closing date or after 95 percent of the
loan has been disbursed, or (iv) matters
already heard by the Panel unless justi-
fied by new evidence.
17 Id at 522.
is Id.
19 See World Bank, Conclusions of the
Second Review of the World Bank
Inspection Panel, 39 ILM 249, 250
(2000). Prior to the 1999 clarification, the
Executive Directors frequently rejected
the Panel's recommendations for an
investigation, typically deciding instead
to adopt 'action plans' that Bank Man-
agement had prepared in response to
the claims. Although in some cases
these action plans were responsive to
the claimants' concerns, the Board's pre-
emptive approval of the action plans
meant that the claims were never fully
evaluated nor was implementation of the
action plans adequately monitored. The
claimants also never received their 'day
in court' to have their allegations formal-
ly validated.
20 See Inspection Panel, Summary of
Requests for Inspection, available online
at http:// wbln0018.worldbank.org/IPN/
SummaryofRequests (visited Feb. 17,
2005).
2i Id. Although the Summary of Requests
for Inspection indicates that only nine of
the recommended investigations were
approved, the World Bank Board has
approved an additional investigation
since the document was updated. See
Press Release, Inspection Panel, World
Bank Board Approves the Inspection
Panel's Recommendation: The Panel to
Investigate whether the Bank has
Observed its Policies and Procedures in
the Cameroon Pipeline Project (Dec 18,
2002), available online at
http://wbln0018.worldbank.org/ipn/ipn-
web.nsf//pressrelease12182002/$FILE/p
ress+release+12+18+2002.pdf (visited
Jan 27, 2003).
22 Office of the Compliance Advisor/
Ombudsman's Operational Guidelines,
April 2000, at p. 7.
23|d. at p. 17.
24|d. at p. 13.
25 Id., at p. 22-23.
26 Asian Development Bank, Review of the
Inspection Function: Establishment of a
New Asian Development Bank Account-
ability Mechanism (May, 2003).
27 D. Clark, J. Fox & K. Treakle, Demand-
ing Accountability: Civil-Society Claims
and the World Bank Inspection Panel
(2003).
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KlLLMER 235
DESIGNING MANDATORY DISCLOSURE TO PROMOTE SYNERGIES
BETWEEN PUBLIC AND PRIVATE ENFORCEMENT
KlLLMER, ANNETTE B.
Environment and Natural Resource Specialist, Inter-American Development Bank
1300 New York Avenue, N.W., Washington, DC 20577, United States, akillmer@mac.com
SUMMARY
This article describes the role of mandatory information disclosure approaches as
a remedy to limitations of traditional command-and-control regulation.
1 INTRODUCTION
The task of reducing process pollu-
tion in a community setting, where emis-
sions from the manufacture of products
negatively affect the larger community,
presents a particular challenge to environ-
mental practitioners, since there tends to
be a lack of formal relationships between
the polluter and those affected by the pollu-
tion (Tietenberg & Wheeler, 1998). This is
especially true when industrial activity
affects larger segments of society or even
the global environment, as is, for example,
the case with the emissions of greenhouse
gases. Yet, even under a 'sustainable
development scenario' of the future, it is
likely that the global level of industrial pro-
duction will increase relative to current lev-
els. As the World Development Report
2003 points out, improving the quality of life
for current and future generations in devel-
oping countries will require a "substantial
growth in income and productivity" (World
Bank, 2003, p. xiii). This growth is desir-
able, because industrial production has a
valuable, positive impact on society
through the manufacture of consumable
goods and the provision of employment.
However, pollution intensity has to decline
at a rate commensurate with the growth of
industrial output to prevent a net increase
in pollution (World Bank, 2000). Thus, envi-
ronmental practitioners are faced with the
challenge of reducing the negative impacts
of industrial production - to the point of
altogether preventing the most harmful
emissions and wastes - so that they do not
entirely offset the positive impacts.
The traditional approach to control-
ling pollution is through command-and-con-
trol regulation that stipulates a fixed, uni-
formly applicable environmental target, as
well as rules for monitoring and, if neces-
sary, enforcing1 compliance with this
requirement (U.S. Congress, 1995). Com-
mand-and-control regulation can be very
powerful and is often employed when strict
adherence to a standard is required to pre-
vent deleterious consequences to human
health. Yet, as several scholars have point-
ed out, in both developed and developing
countries, regulatory agencies charged
with monitoring and enforcing these poli-
cies frequently operate under the con-
straints of limited budgets and restricted
maximum financial penalties, which limits
the effectiveness of command-and-control
regulation (Dasgupta, Laplante, & Mamin-
gi, 2001; Foulon, Lanoie, & Laplante, 2002;
Gunningham, Philipson, & Grabosky, 1999;
Harrington, 1988; Hentschel & Randall,
2000; Heyes, 2000; Laplante & Rilstone,
1996; World Bank, 2000). Moreover, from
an economic development perspective,
uniform standards are considered ineffi-
cient if abatement cost functions differ
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
between the regulated firms (Liibbe-Wolff,
2001; Office of Technology Assessment,
1995). To remedy these limitations, envi-
ronmental practitioners and scholars have
explored a variety of court-based and mar-
ket-based instruments, as well as - more
recently - information-disclosure approach-
es.2 This last type of approach, as a sup-
plement to traditional command-and-con-
trol regulation, is the focus of the current
paper.
Mandatory information disclosure
approaches to pollution prevention have
acquired the reputation of a promising poli-
cy instrument in developed and developing
countries (Stephan, 2002; Tietenberg,
1998; World Bank, 2000, and references
therein). In contrast to other environmental
policy instruments, information disclosure
approaches are not designed to influence
pollution levels directly, but rather require
firms to regularly disclose certain environ-
mentally relevant information about their
processes or products to the general public
(Anderson & Lohof, 1997). This disclosure
can have considerable negative or positive
consequences for the disclosing firms,
because civil society may choose against
or in favor of a firm's products based on the
information provided. Similarly, the disclo-
sure may change a firm's market valuation
if it gives rise to concerns over future liabil-
ities or indicates precautions against such
liabilities through good environmental man-
agement (Anderson & Lohof, 1997; Barth &
McNichols, 1994; Blacconiere & Northcut,
1997; Garber & Hammitt, 1998; Konar &
Cohen, 1997, 2001; World Bank, 2000).
Empirical evidence from the U.S. Toxic
Release Inventory (TRI), Indonesia's Pro-
gram for Pollution Control, Evaluation and
Rating (PROPER) and other disclosure
programs reveals significant improvements
in the participating firms' environmental
performances, in some cases beyond com-
pliance requirements, and the U.S. Toxic
Release Inventory has even resulted in
proactive initiatives by heavily polluting
industries (Afsah & Vincent, 1997; Arora &
Cason, 1995; Kappas, 1998; Khanna &
Damon, 1999; Konar & Cohen, 1997;
Tietenberg & Wheeler, 1998; World Bank,
2000). Judging by these examples, manda-
tory information disclosures, or more
specifically the private efforts to enforce
pollution reductions that result from this dis-
closure, hold the promise of reducing the
need for costly regulatory enforcement -
which is clearly an appealing prospect
given the aforementioned restricted regula-
tory budgets.
The challenge at this point, though,
is that the empirical evidence on mandato-
ry information disclosure in the reduction of
process pollution comes primarily from two
cases (the U.S. Toxic Release Inventory
and Indonesia's PROPER), and the
dynamics introduced by the involvement of
civil society have received only limited ana-
lytic attention (Cunningham et al., 1999;
Heyes, 2000; Stephan, 2002). As such, our
understanding of the circumstances in
which public and private efforts to reduce
pollution are indeed complementary, or
"additive" (Heyes, 1998, p. 59), is insuffi-
cient to confidently generalize from the
experiences of Toxic Release Inventory
and PROPER. To improve our understand-
ing of these dynamics, a recent research
study considers the conditions under which ,
the regulator's and civil society's efforts to
enforce pollution reductions are comple-
mentary, and how the regulator can foster
this positive interplay (Killmer, 2004). The
present paper draws on the key arguments
and findings from this larger study to derive
a set of recommendations that are pivotal
to designing mandatory disclosure
approaches in ways that promote syner-
gies between public and private enforce-
ment.
Specifically, a systematic analysis
of the dynamics introduced by the involve-
ment of civil society in pollution prevention
enforcement suggests that the design and
implementation of a mandatory disclosure
policy should:
— Involve careful consideration of (a) what
information is presented, (b) how it is
presented and distributed, (c) how civil
society can be assisted in its use of the
information through capacity building
and other education initiatives, and (d)
whether the existing legal and institu-
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KlLLMER 237
tional context permits the level of civil
society involvement that the disclosure
policy is supposed to encourage.
— Take into account that the effectiveness
of different avenues for civil society
involvement varies with the regulatory
context as well as with the nature and
number of polluting firms.
— Make provisions to allow for a greater
flexibility in the regulator's behavior than
is generally accommodated by tradition-
al command-and-control regulations.
The next section introduces the
analytical model that was developed by
Killmer (2004) to investigate the dynamics
of interest here. Section 3 presents the key
insights provided by the model with respect
to conditions that promote or hinder the
effective involvement of civil society in the
enforcement process. The final section of
this paper discusses the policy implications
that follow from these insights - particular-
ly those that reveal counter-productive
dynamics - and thereby arrives at the rec-
ommendations listed above.
2 AN ANALYTICAL MODEL OF
CIVIL SOCIETY INVOLVEMENT'
The standard theory with respect
to imperfectly enforceable regulations is
one of choice under uncertainty (Heyes,
1998). Much of the literature in environ-
mental enforcement traces its roots to the
classic economic analysis of crime by
Becker (1968), which suggests that an indi-
vidual or entity will weigh the certain cost of
compliance against the expected penalty
for non-compliance (Cohen, 1998; Heyes,
1998, 2000). A corollary of this theory is the
principle of marginal deterrence (Shavell,
1992; Stigler, 1970), according to which the
decision to comply or not depends on the
absolute expected penalty, whereas the
decision about the extent of non-compli-
ance depends on the marginal expected
penalty. In the context of reducing process
pollution, these two theories predict that a
rational firm will comply with a performance
standard if and only if its cost of reducing
emissions to the level of the standard is
equal to or less than the expected penalty.
The theories further predict that
non-compliant firms will emit at the level
where the increase in the expected penalty
associated with emitting one more unit of
pollution equals the abatement costs fore-
gone by emitting that extra unit. Under this
traditional economic model of compliance
and enforcement, the firm's objective with
respect to a particular pollutant can be
minxTotal=Abatement+p(monitot) * p(enforce) * Penalty[x-s]
Cost Cost[x] (Eq.1)
generically expressed as shown in Eq. 1,
where Abatement Cost[x] is the expense
incurred to achieve pollution level x, the
Penalty is a function of the difference
between actual emissions, x, and the legal
pollution standard, s, and the likelihood of
having to pay the penalty is dependent on
the probabilities of monitoring and enforce-
ment (which, in more complex models, are
often specified to depend on x and/or s).
The theories do not specify the
source of the penalty, but the theoretic
models in the pollution control literature
have largely focused on regulatory fines
associated with command-and-control reg-
ulation and on taxes or permit costs asso-
ciated with economic incentive instruments
(see overview by Cohen, 1998 and refer-
ence cited therein). In these models, the
regulator chooses certain parameters (e.g.
the amount of the fine or tax), and these
choices influence the level of compliance
and hence the level of system-wide pollu-
tion abatement.
However, over the past decade,
civil society has noticeably entered into the
picture - though by and large not into the
equation of analytical enforcement models
- as a second source of pressure toward
pollution reductions. The systematic publi-
cation of environmental data in a readily
accessible format (such as the internet-
accessible Toxic Release Inventory data-
base in the U.S.) has greatly assisted pub-
lic participation in the enforcement process
by virtually eliminating the direct cost to civil
society of collecting the necessary informa-
tion. As such, public disclosure provides
the victims of process pollution with the
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
minxTotal=Abatement + p(monitoi){ p(enforce) •
Cost Cost[x]
+ {1 - p(monitor)} * Penalty[d-s] + p(target) * CivilFinefd]
Penalty[x-s] + p(levyfine) * Fine[x-d]}
(Eq.2)
data needed to create incentives for pol-
luters to control their emissions (Tietenberg
& Wheeler, 1998), and hence considerably
lowers the transaction costs of achieving a
more efficient outcome (Coase, 1960). In
short, mandatory information disclosure
introduces civil society as a third party into
the traditional firm-regulator dyad - a
change that alters the firm's cost function in
several important ways, as shown in the
generic objective function for firms given by
Eq.2.
The first alteration compared to Eq.
1 is that the regulator is now monitoring two
aspects of a firm's performance, namely
compliance with the pollution standard (as
before) and accurate disclosure. If, during
monitoring, the regulator finds that dis-
closed emissions, d, are below actual emis-
sions, x, the firm would be fined for under-
disclosure with a certain probability3, which
translates into an additional expected cost
of p(monitor)*p(levyfine)*Fir\e[x-d] for the
firm. Second, a firm can choose to self-dis-
close a violation of magnitude [d-s] and
incur the associated penalty for non-com-
pliance. This behavior has an expected
cost of {1 - p(A77on/tor)}*Penalty[d-s]. The
third additional cost is any financial pres-
sure brought directly by civil society
(CivilFine) against polluting firms. The
expected cost from such pressure is a func-
tion of disclosed emissions, d, since that is
the information civil society acts on, and of
p(target), the probability of civil society
being successful in targeting a certain firm
and bringing direct financial pressure to
bear. Thus, combining a traditional pollu-
tion standard with a mandatory disclosure
requirement can result in three additional
sources for increasing costs of non-compli-
ance to firms and hence for inducing them
to abate their levels of pollution.
In making their decision, it is also
crucial that firms take into account the
behavioral flexibility of civil society. Unlike
the regulator, whose actions are circum-
scribed by statutes and rules, civil society
can exert pressure toward
pollution reductions through
various behaviors. For the
purpose of this discussion,
six common types of inter-
vention are considered:
i. No Action: Civil society receives infor-
mation, but does not act on it.
ii. Market Pressure: Civil society exerts
direct pressure on firms through markets.
iii. Suits Against Firms: Civil society brings
suits against certain non-compliant
firms.
iv. Suit Against Agency: Civil society brings
legal actions against the regulator to
increase the agency's monitoring and
enforcement efforts.
v. Suit Against Agency & Market Pressure:
A combination of interventions (i) and (iv).
vi. Suits Against Agency & Firms: A combi-
nation of interventions (ii) and (iv).
The No Action case is included
here not only because it provides the com-
parison case to traditional models that do
not include civil society, but also because it
serves as a reminder that the mere wide-
spread publication of data does not auto-
matically translate into private actions. For
the other intervention behaviors, it is
assumed that they are carried out with the
intention to have an overall positive effect
on pollution reductions.
Depending on which intervention
behavior civil society chooses, the firm will
face a slightly different objective function.
For example, the CivilFine term is likely to
be significant when civil society exerts mar-
ket pressure or brings suits against firms
(either alone or in combination with a judi-
cial action against the regulator), but is
equal to zero in the 'No Action' case and in
the pure 'Suit Against Agency' case. The
latter case differs from the No Action case,
in that civil society can influence the firm
indirectly through a successful judicial
action by inducing the regulator to increase
p(monitor), p(enforce) or p(levyfine). Thus,
firms face different objective functions
depending on the behavior of civil society.
Moreover, firms have only limited ability to
-------
KlLLMER 239
foretell how civil society will intervene in the
process, unless civil society is a priori
restricted in its choices (for example, a
country's legislation may not give its citi-
zens the necessary legal standing to bring
judiciary actions). In this way, private
involvement in the enforcement process
reduces the predictability of interactions
within the system compared to the tradi-
tional, highly codified interactions between
firms and the enforcement agency.
An important question from the
perspective of environmental decision
makers is whether - despite or because of
this reduced predictability - civil society's
involvement in the enforcement process is
ultimately effective4 in achieving pollution
reductions beyond those that could be
achieved by the regulator alone. This ques-
tion has been addressed in some detail by
Killmer (2004) through analytically solving
the particular objective functions firms
would face under various sets of enforce-
ment conditions, whereby the sets of condi-
tions differ from each other in the type of
intervention chosen by civil society, the reg-
ulator's enforcement strategy, and the
financial constraints imposed on the regu-
lator and/or civil society. Comparing the
solutions across the various sets of condi-
tions reveals a number of important dynam-
ics that policy makers should take into con-
sideration when designing mandatory dis-
closure policies.
3 KEY FINDINGS REVEAL POTENTIAL
CONFLICTS AND SYNERGIES
With regard to the effectiveness of
civil society involvement in enforcing pollu-
tion prevention policies, the comparison of
environmental outcomes under various
enforcement conditions offers four key
insights.
Finding 1: Under certain conditions,
excluding civil society from the enforce-
ment process through enforcing solely
the performance standard (and expend-
ing no resources on enforcing the disclo-
sure policy) leads to the most effective
environmental outcome.
The dynamic described by Finding
1 can be observed when civil society exerts
pressure directly on firms, through the mar-
ket or legal suits, but has only limited
resources at its disposal to do so. The find-
ing is even more clearly illustrated in the No
Action case, where an exclusive enforce-
ment of the performance standard is the
most effective and cost-effective5 strategy
for a budget-constrained regulator. Thus, if
civil society does not have or chooses not
to expend the resources to participate
meaningfully in the enforcement process,
excluding civil society by not enforcing the
disclosure requirement allows the regulator
to focus all its resources on achieving lower
pollution levels.
It is important to note, however,
that Finding 1 refers to reducing pollution in
an effective manner. Foregoing the moni-
toring and enforcement of an existing dis-
closure requirement is clearly not the most
desirable strategy from a public access
perspective. Thus, Finding 1 also serves to
illustrate that achieving the most effective
pollution reduction and the best public
access to information are not invariably
compatible objectives, even though both
are generally considered socially desirable.
The dynamics just described indi-
cate that the effectiveness of civil society's
involvement depends on its resources for
such an involvement. In addition, civil soci-
ety's effectiveness depends either directly
or indirectly on the regulator's resources.
The direct link is apparent in the dynamics
associated with legal actions against the
regulatory agency:
Finding 2: Suits brought by civil society
against a social-cost-minimizing regula-
tor, either solely or in combination with
direct pressure on polluting firms, will
increase the effectiveness of enforce-
ment if and only if the regulator is not
bound by a budget constraint.
Finding 2 emphasizes that civil
society actions against a social-cost-mini-
mizing regulator do not have a positive
effect unless the regulator is able to
increase enforcement efforts in response to
those actions6. In this latter case, civil soci-
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
ety intervention can lead to more effective
pollution control because judicial actions
can induce the regulator to enforce pollu-
tion abatement beyond the social-cost min-
imizing level. (It is worth noting that, while
abating pollution beyond the social-cost
minimizing level may be effective, it is not,
economically speaking, efficient.) On the
other hand, if the regulator is unable to
increase its enforcement effort due to a
binding budget constraint, judicial actions
that prescribe a change in regulatory
behavior invariably mean that the available
resources have to be reallocated, for exam-
ple to an increase in enforcement at the
expense of monitoring. Yet, a social-cost-
minimizing regulator would be expected to
choose the highest level of pollution control
feasible within the binding budget con-
straint, and hence a reallocation of
resources would not lead to a more effec-
tive outcome. Moreover, bringing legal
actions against a budget-constraint regula-
tor is likely to reduce overall cost-effective-
ness compared to the No Action alterna-
tive, since the same amount or less pollu-
tion is reduced but at a higher cost, due to
the cost incurred by civil,society.
An indirect link between civil soci-
ety's effectiveness and the regulator's
budget resources is illustrated by the third
finding:
Finding 3: Private enforcement through
market pressure creates a disincentive
for firms to disclose, particularly for firms
with high levels of emissions.
Under a combined performance
standard/disclosure policy, the firm is faced
not only with penalties from the regulator
for non-compliance with the policy require-
ments, but also with the possibility that civil
society will penalize it for any disclosed
emissions. Firms can evade the pressure
from civil society to some extent by under-
reporting their emissions.7 As modeled for
the purposes of the present analysis, the
mandatory disclosure policy anticipates
this behavior and includes a regulatory fine
on under-reporting, but (consistent with
reality) this fine is not levied with certainty.
Thus, in making their disclosure decision,
firms have to weigh the expected cost of
inaccurate disclosure against the cost of
revealing their true emissions, which con-
sist of the regulatory fine for non-compli-
ance with the standard and the penalty
from civil society. Since this combined
penalty from regulator and civil society
tends to increase with a greater extent of
non-compliance, firms that know them-
selves to emit above the standard have an
increasing incentive to under-report the
higher their levels of emissions.
At the same time, civil society's
interventions are based on the disclosed
information, and it is reasonable to assume
that civil society is particularly interested in
reducing pollution from firms that are emit-
ting considerably above the standard.
Hence, by creating incentives for firms to
under-disclose, civil society inadvertently
limits its own involvement in the enforce-
ment process - unless the regulator coun-
teracts the deterioration in data quality
through more stringent enforcement of the
disclosure requirement8. This in turn
requires the availability of regulatory
resources and hence establishes an indi-
rect link between civil society's effective-
ness and the regulator's budget.
It is important to note that an
increasing demand on regulatory
resources as a result of civil society
involvement is diametrically opposed to
one of the commonly cited benefits of
involving civil society in the enforcement
process, namely that it reduces the need
for costly regulatory enforcement. Finding 3
illustrates that mandatory disclosure
requires some form of enforcement to
ensure that the requested information is
disclosed - and disclosed accurately. Yet, it
is in large part the paucity of good informa-
tion about actual emissions that limits the
regulator's ability to enforce pollution stan-
dards and other traditional command-and-
control regulations that demand continuous
compliance. Moreover, it is similarly difficult
for the regulator to gain access to complete
and accurate pollution data, regardless of
whether the data are used to satisfy a per-
-------
KlLLMER 241
formance standard or a disclosure require-
ment. Thus, mandatory information disclo-
sure does not circumvent the acquisition of
reliable information on which to act - and
hence does not resolve one of the funda-
mental problems the regulator faces in
enforcing pollution control.
Yet, despite the countervailing
dynamics mentioned in conjunction with
the first three findings, the regulator's and
civil society's enforcement efforts can work
synergistically under certain conditions and
lead to more effective pollution control than
could be achieved by the regulator alone.
Finding 4: Public and private enforce-
ment is most likely to be complementary
when the regulatory budget is binding
and civil society exerts a reasonable
level of direct pressure on firms, either
through markets or through citizen suits.
Given a binding regulatory budget,
the enforcement agency by itself is not in a
position to induce firms to reduce pollution
to the social-cost-minimizing level. Howev-
er, if civil society has the necessary
resources to create incentives for firms to
reduce pollution (see also Finding 1), the
regulator's best strategy is to focus on
enforcing the disclosure requirement and
hence provide civil society with good-quali-
ty information about actual emissions,
which are then best used to exert direct
pressure on firms through the market or
through citizen suits (see also Finding 2).
The regulator's task of obtaining reliable
information will be slightly complicated by
the fact that civil society levies a penalty on
disclosing information about pollution,
rather than on the pollution itself, when it
exerts pressure on the disclosing firms (see
also Finding 3). Nevertheless, under these
conditions, the positive effects of civil soci-
ety's involvement can be sufficiently large
to outweigh any counter-productive
changes in firms' behaviors as well as the
constraints imposed on the regulator
through its budget. Judging by the empiri-
cal evidence available, this situation is in
fact given in the context of both the U.S.
Toxic Release Inventory and Indonesia's
PROPER, and it is presumably the situa-
tion envisioned for similar programs, such
as the ones in Canada, Mexico, the Euro-
pean Union, and the Philippines (Environ-
ment Canada, 2005; European Commis-
sion, 2004; Nauman, 2003; Presencia Ciu-
dadana, 2004; World Bank, 2000).
4 RECOMMENDATIONS FOR
EFFECTIVE DISCLOSURE
POLICIES REVISITED
The analysis of the economic
model reveals three countervailing dynam-
ics that suggest, at least in theory, that the
success of the Toxic Release Inventory and
Indonesia's Program for Pollution Control,
Evaulation and Rating may be the excep-
tion rather than the rule. However, as
revealed by the fourth finding, these coun-
tervailing dynamics do not occur invariably
- indeed, they can be largely avoided by
paying due attention to their possible
occurrence during policy design and imple-
mentation.
As such, the findings presented
here have three major policy implications.
First, it is important to establish that there is
a demand from civil society for the informa-
tion provided, and that civil society has the
ability to become meaningfully involved in
the enforcement process. (Establishing
demand accurately is unlikely to be feasi-
ble, but already active participation by the
intended target audience in the design and
implementation of the policy will be very
helpful in gauging demand.) While non-
governmental organizations, shareholders
and competing firms in various countries
are adept at leveraging funds and taking
advantage of legal provisions that grant
them access to the environmental policy
process, neither the demand for informa-
tion, nor the skills or legal provisions neces-
sary to act on it can be taken for granted.
Therefore, the design and implementation
of a mandatory disclosure policy should
involve careful consideration of (a) what
information is presented, (b) how it is pre-
sented and distributed, (c) how civil society
can be assisted in its use of the information
through capacity building and other educa-
tion initiatives, and (d) whether the existing
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
legal and institutional context permits the
level of civil society involvement that the
disclosure policy is supposed to encour-
age.
Second, not all avenues for civil
society involvement are equally effective in
a given context. For example, while judicial
actions against the regulatory can certainly
be effective to achieve certain goals, Find-
ing 2 illustrates that they can also be inef-
fective or even counter-productive in some
contexts. Similarly, citizen suits against
firms tend to be limited by the existing pol-
lution standard, since they usually require
evidence that a firm is out of compliance
with an existing regulation. Nor can it be
presumed that it is always feasible for
shareholders, consumers or competitors to
exert effective market pressure; a small
number of polluters, publicly-traded firms,
and those that produce products or servic-
es which are directly traded to consumers
are more easily targeted effectively through
stock markets or consumer boycotts then
large numbers of polluters, privately-held
firms, or those that produce raw materials
or intermediate goods. Therefore, the
design and implementation of a mandatory
disclosure policy should take into account
that the effectiveness of different avenues
for civil society involvement varies with the
regulatory context as well as with the
nature and number of polluting firms.
Third, introducing a mandatory dis-
closure approach (and hence civil society
as a third party to the traditional regulator-
firm dyad) fundamentally changes the role
of the regulator. In this new context, the
regulator is not only charged with maximiz-
ing compliance by the polluting firms within
the usual budget and maximum-penalty
constraints. The regulator also has to
strategically respond to changes in firms'
behaviors arising from civil society's
involvement (which itself may vary in type
and intensity), as well as operate under any
constraints imposed through legal actions
against the enforcement agency. There-
fore, the design and implementation of a
mandatory disclosure policy should make
provisions to allow for a certain flexibility in
the regulator's behavior. Given such flexi-
bility, the regulator will be in a better posi-
tion to effectively adapt its behavior to
these new demands.
Thus, systematic analysis of the
dynamics introduced by civil society
involvement in the enforcement of pollution
prevention polices reveals important coun-
tervailing dynamics. Yet, these dynamics
can be forestalled through circumspect pol-
icy design and implementation, and envi-
ronmental practitioners can thereby foster
a positive interplay between the regulator's
and civil society's efforts to enforce pollu-
tion reductions.
5 REFERENCES
1 Monitoring is here defined as the process
of verifying a firm's emission data and
compliance with the standard, and
enforcement as the undertaking of
actions (e.g. imposing a penalty) to com-
pel a non-compliant firm into reducing its
emissions. Both public and private actors
can enforce compliance, yet governmen-
tal regulatory agencies are bound by any
enforcement rules specified in the associ-
ated regulations for the standard.
2 As used in this paper, court-based instru -
merits include tort law cases, citizen suits
and statutory liability claims, market-
based instruments include pollution
charges and taxes, as well as tradable
permits and pollution credits, and infor -
mation disclosure approaches refer to
policies that require the systematic disclo-
sure of information by firms. Thus, the lat-
ter term does not include voluntary or ad
hoc publications of information, such as
may occur through participation in volun-
tary eco-labeling schemes, corporate
reports, court cases or 'leaks' to the
press.
3 Small infractions are unlikely to be pur-
sued, but, for example, the U.S. EPA can
levy up to US$27,500 per violation for fail-
ure to report the mandated information for
the Toxic Release Inventory on time.
4 Effectiveness in the current context refers
-------
KlLLMER 243
to the amount of pollution reduced,
specifically the difference between the
total amount of pollution in the absence of
the policy (counter-factual case) and the
total amount of pollution actually emitted
by the firms in the system under a certain
set of enforcement conditions.
5 Cost-effectiveness is here defined as the
amount of financial resources expended
per unit of pollution reduced.
6 This finding applies in the short- to medi-
um-term. In the medium- to long-term,
successful judiciary actions may be used
by the regulator to make its enforcement
processes more efficient, to lobby for an
increase in its budget or to leverage the
pressure from civil society into obtaining
other additional resources.
7 Incidentally, the model used in this analy-
sis assumes that civil society can exert
some market pressure on targeted firms
even in the absence of information, mir-
roring, for example, reputational effects
on firms in 'dirty industries'.
s In the United States, the regulator often
has access to self-reporting or monitor-
ing-based data through other sources, but
this situation is atypical, particularly in
developing countries.
6 BIBLIOGRAPHY
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EE-0216A). Washington, D.C.: Environ-
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Barth, M. E., & McNichols, M. R (1994).
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Becker, G. (1968). Crime and punishment:
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Blacconiere, W. G., & Northcut, W. D.
(1997). Environmental information and
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Finance, 12(2), 149-178.
Coase, R. H. (1960). The problem of social
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Cohen, M. A. (1998). Monitoring and
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Dasgupta, S., Laplante, B., & Mamingi, N.
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European Commission. (2004). The Euro -
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Foulon, J., Lanoie, P., & Laplante, B.
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Garber, S., & Hammitt, J. K. (1998). Risk
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Cunningham, N., Philipson, M., & Gra-
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Business Strategy and the Environment, 8,
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Harrington, W. (1988). Enforcement lever-
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Khanna, M., & Damon, L (1999). EPA's
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Killmer, A. B. (2004). The Effect of Civil
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[Web publication]. Retrieved on 18.02.05,
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13.02.04, from http://www.presenciaciu-
dadana.org.mx/medio/medio.htm
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Tietenberg, T. (1998). Disclosure strategies
for pollution control. Environmental and
Resource Economics, 11(3-4), 587-602.
Tietenberg, T, & Wheeler, D. (1998).
Empowering the Community: Information
Strategies for Pollution Control (Paper
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EN V-634). Washington, D.C.: U.S. Govern-
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New Roles for Communities, Markets, and
Governments. New York: Oxford University
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World Bank. (2003). World Development
Report 2003: Sustainable Development in
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and Oxford University Press.
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KLEIN 245
MEASURABLE TARGETS FOR ENFORCEMENT PERFORMANCE
KLEIN, WOUT
Project Manager, Inspectorate of Housing, Spatial Planning and the Environment
P.O. Box 16191, 2500 BD The Hague, The Netherlands, wout.klein@minvrom.nl
SUMMARY
One of the minimum criteria for a professional environmental enforcement process
in the Netherlands1 is having a set of measurable targets for enforcement performance. It
is a subject of continuous, but useless, debate whether these targets should be in terms of
input (time, money), throughput (projects, procedures), output (inspections, enforcement
actions) or outcome (compliance, environmental results). All these types of target have
their own field of application. Quite what is the best type of target depends on the sort of
activity and on the stakeholder, so in practice an inspectorate will combine all (four) types
of target. Whatever target is set, it should be monitored in the performance phase, and it
should be evaluated and improved so that new actions, priorities and targets can be set in
the next planning phase.
1 INTRODUCTION
The minimum criteria for a profes-
sional enforcement process that have been
agreed in the Netherlands require,
amongst other things, that measurable tar-
gets be set for enforcement performance.
There are several different types of
target and they are generally classified as
either input, throughput, output or outcome
targets. Often there is discussion about
which type of target is best. Whilst politi-
cians and the public are often only interest-
ed in the outcome, inspectorate managers
feel they can only influence their own input
and performance and so believe they
should be judged on these criteria alone.
How should this discussion be handled?
This paper sketches a general approach to
this issue. It is based on the report (avail-
able in Dutch only) "Meetbare doelstellin-
gen" (Measurable targets) (L. Rings and M.
Scholten).
2 THE FUNCTION OF TARGETS
Targets do not exist in isolation.
They are part of the management process
or management cycle of a professional
organisation. That process of professional
environmental enforcement is described in
detail and set out in terms of minimum cri-
teria in the Dutch project bearing the same
name. See W. Klein, "Minimum criteria for a
professional environmental enforcement
process". This control process is also
described in clear terms in the sub-report
entitled "Besturen met kengetallen" (Man-
agement by indicators) (J. Tholen and J.
Wijnker).
Before an enforcement target can
be formulated, the problem must first be
defined (on the basis of an environmental
analysis and risk analysis). Next, the corre-
sponding enforcement task and activity
should be identified. Depending on the type
of enforcement task and the preciseness
with which it is defined, an input, output,
compliance or environmental target can
then be formulated. Generally speaking,
the more precisely the problem that is the
subject of enforcement has been defined,
the more precisely the enforcement task
can be formulated and, consequently, the
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246
SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Figure 1: Location of targets in the management process
Other
influences
'' Ito,
* IJTOCiBSS ,-
Efficiency
Number of
hours spent on
enforcement
* ,„,! til
(Quality criteria
promoting
professionalism)
nil
put
; .. " ^wjifc
$''
Effect
Number of inspections
carried out
Number of sanctions
imposed
set, -".
Compliance
behavior
Environmental
effect
K V
Indicators
more precise the target.
3 TYPES OF TARGET
The general classification of tar-
gets ranging from input to outcome can be
specified as follows in relation to environ-
mental enforcement:
— input targets;
— performance targets;
— compliance targets;
— environmental targets.
The first two types of target tell us
something about the organisation itself: the
effort made (number of hours) and the per-
formance delivered (number of inspections
carried out or number of sanctions
imposed) by an enforcement organisation.
With the aid of these targets, it is possible
to measure an enforcement organisation's
efficiency. These targets fit in perfectly with
the existing planning and control practice of
the government.
The last two types of target tell us
something about the effect of the enforce-
ment actions on the target group (compli-
ance behaviour) and on the environment
(environmental effect). These targets are
an indicator of the effectiveness of the
enforcement actions (see Figure 2).
4 TARGET, ENFORCEMENT TASK
AND STAKEHOLDER
No single type of target is either
more or less important than any other.
What is important is that a particular type of
target is applied to a particular type of
enforcement task and the manner of
accountability (most) appropriate to that
type of target. It is also important to know
for which actor the target is formulated.
— The enforcement body wants to be able
to do its work without interference and to
a high level of accuracy and quality. This
is best achieved by means of an input
target specifying how much time and
other resources are available.
-------
KLEIN 247
Figure 2: Types of target and their interrelationship
K V
— The manager wants to manage his
responsibilities well and as fully as pos-
sible with the resources available. This
is best achieved with a performance tar-
get indicating what needs to be done.
— The inspector, the judicial authorities
and the minister responsible want to
see conformity with standards and do
not wish to be confronted with unexpect-
ed disasters or breaches of standards.
This is best achieved with a compliance
target indicating the risk in the event of
non-compliance.
— The citizens and government want the
highest possible quality of living environ-
ment. This is best achieved with an
effect target indicating the type and level
of quality to be achieved.
5 SMART FORMULATION
In order to be effective, every form
of (enforcement) target must be formulated
in unambiguous terms and only capable of
a single interpretation. In order to achieve
this, enforcement targets should formulat-
ed in "SMART" terms. This means that the
targets must be:
— Specific: The target must relate to a spe-
cific enforcement task, target group
and/or regulation or (selection of) regu-
lations.
— Measurable: The target must be meas-
urable. This means that the target must
be formulated in quantitative terms and
that it is clear which elements are to be
measured.
— Acceptable: The result set out in the tar-
get should be sufficiently acceptable to
the organisation.
— Realistic: The organisation must be real-
istically able to meet the target.
— Timed: The target should have a set
period within which the effort or perform-
ance is to be delivered, or within which
the effect (compliance behaviour or
environmental effect) is to be achieved.
6 CHOICE OF ENFORCEMENT TARGET
The choice of a particular enforce-
ment target depends on the type of
enforcement task and the preciseness with
which that task is described. Generally
speaking, the more precisely the problem
that is the subject of enforcement is
described, the more precisely the enforce-
ment task can be formulated and, as a con-
sequence, the more precise the target.
Enforcement tasks include, for
instance:
— exploratory survey of current compli-
ance behaviour, or of ways of influenc-
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248
SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Figure 3: Overview of choice of target type
I will do
something
about this.
I will do
this,
Performance
Problem
If V
I would like
to see this
behavior.
Compliance
I would like
to achieve
this quality
(tevel),;
in ironment:
ing that behaviour or performing inspec-
tions;
— enforcement of specific laws and regula-
tions, possibly further specified for cer-
tain target groups and topics;
— implementation of enforcement projects
focusing on sectors, target groups,
areas, topics or collaborative projects;
— comprehensive enforcement.
Each task may have a different
object, and that object also determines the
character of the measurable target. See
Figure 3.
The tasks can be identified and
specified according to the particular context
in each country. In the case of the Nether-
lands, for example, a card entitled "Measur-
able enforcement targets" is used. This
card provides the following details for each
type of target:
— definition of the target;
— practical examples of the target;
— possibilities for use;
— parameters (user requirements) that
apply to the definition of that target;
— examples of how the type of target in
question can be formulated;
— overview of possible indicators used
with the target.
7 REFERENCES
1 See Klein, Minimum Criteria For a Profes-
sional Environmental Enforcement Pro-
cess, 7th INECE Conference Proceed-
-------
KLEIN 249
ings Vol. 1. Available online at http://www.
inece.org/conference/7/vol1 /.
8 BIBLIOGRAPHY
Klein, W., "Minimum Criteria For A Profes-
sional Environmental Enforcement Pro-
cess" (in English), 2002. Available at
http://www.lim-info.nl/professionalisering.
Rings, L. and Scholten, M., "Meetbare
doelstellingen" (Measurable targets), sub-
report (in Dutch) of the Dutch project
towards a more professional environmental
enforcement process. Available at http://
www.lim-info.nl/professionalisering.
Tholen, J. and Wijnker, J., "Besturen met
kengetallen" (Management by indicators),
sub-report (in Dutch) of the Dutch project
towards a more professional environmental
enforcement process. Available at http://
www.lim-info.nl/professionalisering.
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250 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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KLEIN 251
MINIMUM CRITERIA FOR A PROFESSIONAL
ENVIRONMENTAL ENFORCEMENT PROCESS, PART II
KLEIN, WOUT
Project Manager, Inspectorate of Housing, Spatial Planning and the Environment,
P.O. Box 16191, 2500 BD The Hague, The Netherlands, wout.klein@minvrom.nl
SUMMARY
Environmental enforcement agencies (inspectorates) in the Netherlands have
adopted a set of minimum criteria or quality standards that should be met by any Inspec-
torate in order to ensure a professional enforcement process. In an orchestrated campaign
from 2002 through 2005, the Inspectorates made an enormous leap forward to accomplish
this objective.
1 INTRODUCTION
From 2002 through 2005, a nation-
al project was carried out in the Nether-
lands by all Inspectorates of the local,
provincial, and national governments to
improve, or rather ensure, a "professional
environmental enforcement process" within
all these agencies.
This project started by designating
the minimum criteria for such a profession-
al process. Consequently, all agencies in
the Netherlands went through a self-evalu-
ation process to determine the extent to
which they satisfied these criteria on 1 Jan-
uary 2003. As was to be expected, not one
of the approximately 550 agencies was
completely professional. On the contrary,
the vast majority of the Inspectorates could
not satisfy more than half of the minimum
criteria. This was no surprise, but it was a
perfect starting point for a collective
improvement activity.
All agencies committed them-
selves to fulfillment of the criteria by 1 Jan-
uary 2005. Again they conducted a self-
evaluation; its results are presented in this
paper.
2 THE PROJECT
The project aiming at a "profes-
sional environmental enforcement process"
in the Netherlands was initiated in 2001 by
the then Minister of Housing, Spatial Plan-
ning and the Environment, Mr. Jan Pronk.
Mr. Pronk proposed a rearrangement of
inspecting authorities, in particular to
reduce the number of inspecting bodies
from 500 to no more than 50.
The competent authorities respon-
sible for the existing Inspectorates suc-
cessfully opposed this policy by arguing
that the main focus should not be the
organization of the Inspectorates but rather
the quality of their performance. They pro-
posed the development of a set of mini-
mum criteria for a professional environ-
mental enforcement process, thereby
ensuring:
— Professional people.
— Professional policies.
— Professional procedures.
— Professional performance.
— Professional products.
The Minister agreed that if the
existing Inspectorates could prove that they
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
satisfied the elaborated set of minimum cri-
teria by January 2005, then the reduction of
the number of Inspectorates would become
unnecessary. The elaborated set of mini-
mum criteria was developed during the
spring and summer of 2002 and was finally
adopted on 1 November 2002. To establish
a reference for improvements, all Inspec-
torates conducted a self-evaluation on how
they fulfilled the minimum criteria on 1 Jan-
uary 2003. An independent consultant veri-
fied all of these self-evaluations. A report
was published with the national results of
this "zero measurement" and all Inspec-
torates and authorities had a clear insight
into what had to be improved.
The years 2003 and 2004 were
used for improvement activities. In the
Inspectorates, teams were appointed to
develop strategies or protocols. Inspec-
torates from neighboring municipalities or
with similar tasks, such as the 10 bodies of
"Rijkswaterstaat" (the Department of
Waterways and Public Works), came
together to develop methods and policies.
On the national level, a group of partici-
pants from all kinds of authorities organized
the communication on these initiatives,
facilitated the dissemination of good prac-
tices, conducted several studies, and pro-
posed several good practices of general
use.
The "final measurement" of the sit-
uation on 1 January 2005 was conducted in
exactly the same way as the zero measure-
ment.
3 RESULTS
The results can be seen from the
percentage of criteria that were fulfilled by
the Inspectorates. As there are roughly 50
minimum criteria, each criterion that is not
fulfilled reduces the score by 2%. This
means that an Inspectorate that scores 90%
did not satisfy 5 of the minimum criteria.
3.1 A Great Leap Forward, But...
Given the results of the final meas-
urement, it can be concluded that the
enforcement agencies have made a great
leap forward in professionalizing their envi-
ronmental enforcement.
The following table shows the
degree to which all enforcement agencies
satisfy the minimum criteria in 2005, and
the extent to which they satisfied those cri-
teria in 2003. The table shows that in 2003
no single agency or organization fulfilled
more than 90% of the minimum criteria. In
2005, 32.9% of the agencies satisfied
100% of the minimum criteria and 40.6%
fulfill 90% to 100% of the criteria. This
means that in 2005, 73.5% of all enforce-
ment agencies satisfy more than 90% of all
minimum criteria. This great majority of the
Table 1: Extent to which the enforcement agencies satisfied the minimum criteria during
the zero measurement in 2003 and the final measurement in 2005
% minimum criteria
100
90-100
80-90
60-80
40-60
20-40
<20
Absolute numbers and (%)
Enforcement agencies
Zero measurement 2003
(Out of 542 agencies)
-
-
8 (2%)
122 (22%)
145 (27%)
212 (39%)
55(10%)
Absolute numbers and (%)
Enforcement agencies
Final measurement 2005
(Out of 517 agencies)
170(32,9%)
210 (40,6%)
56(10,8%)
65(12,6%)
8(1,5%)
6(1,2%)
2 (0,4%)
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KLEIN 253
Table 2: Number of enforcement agencies that satisfy all minimum elements
Enforcement Agencies
Local government
Provincial government
VenW Inspectorate
Rijkswaterstaat-diensten (Agencies of the
Ministry of Waterways and Public Works)
VROM-lnspectie (Inspectorate for
Housing, Spatial Planning and the
Environment)
Waterschappen (District Water Boards)
Total
Number meeting all
(Out of 51 7
minimum elements
agencies)
141 (30%)
7 (58%)
1 (100%)
10(100%)
11 (42%)
170 (32.9%)
agencies have turned in a tremendous per-
formance during this time, mainly thanks to
the hard work and dedication of the civil
servants and managers.
3.2 Final Target Not Achieved
The objective and the administra-
tive commitment at the start of the project
were aimed at getting all enforcement
agencies in the Netherlands to satisfy all
the minimum elements of the quality crite-
ria by 1 January 2005. This would mean
that 100% of the agencies would satisfy
100% of the minimum quality criteria.
That target was not achieved. Of
the 517 agencies, 170 now satisfy 100% of
the minimum elements and 210 satisfy
between 90% and 100% of those elements.
Together, this is over 73% of all agencies.
The other 27% therefore satisfy less than
90% of the quality criteria and have thus
professionally organized their enforcement
process in an unsatisfactory way. For 16
agencies, in the two years or more that
were available to them, they could not sat-
isfy more than a maximum of 60% of the
agreed quality criteria. Furthermore, during
the verification process, it was noticeable
that the attention of the enforcement agen-
cies was mainly directed at the elements
and criteria and to a lesser extent on their
mutual relationship.
At present, almost 33% of all
enforcement agencies satisfy all the mini-
mum criteria. Compared to the original
objective, this result is quite disappointing.
It should be noted here, however,
that cases where criteria are "not satisfied"
sometimes involve minimal deviations. For
example, the VROM Inspectorate does not
score 100% but 98% because it does not
satisfy the criterion "Supervision strategy".
The VROM Inspectorate does indeed have
supervision strategies for all of its varied
and different tasks, but it has no compre-
hensive supervision strategy.
In practice, the main focus is on the
137 (26.5%) agencies that satisfy less than
90% of the minimum criteria.
3.3 Use of the Statutory Instruments
While making the agreements in
2002, a statutory regulation was designed
for those cases in which the criteria would
not be satisfied after 1 January 2005. The
Provincial Governments are playing an
important role in this area as directors and
prime movers. If considered necessary, the
State can also take on its responsibility -
for example, by reducing the overall num-
ber of Inspectorates. These statutory
instruments, which have since been imple-
mented, will now be used to nonetheless
bring stragglers to a professional enforce-
ment level. That can have far-reaching con-
sequences for those stragglers.
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
It basically means the following:
— Agencies which satisfy 100% of the cri-
teria in the final measurement. These
will receive the compliments of the
Provincial director and will be urged to
vigorously continue with the implemen-
tation of further professionalization.
These agencies will also be highlighted
as best practice and in that way will help
to achieve a further dissemination of
professional enforcement in the
Province.
— Agencies which do not satisfy 100% of
the criteria in the final measurement but
which the Provincial director believes
can still satisfy those criteria under their
own steam and in the short term (in any
case before 1 October 2005). These
agencies will receive notification from
the Provincial director about which miss-
ing elements they will be expected to
have within which period of time, includ-
ing notification that if they do not satisfy
the criteria on time the provincial gov-
ernment will issue an instruction ('pre-
announcement' instruction).
— Agencies which do not satisfy 100% of
the criteria in the final measurement and
which the Provincial director believes
still cannot satisfy them under their own
steam or in the short term, a strict
timetable will apply. In those cases, the
Provincial Executive should instigate the
instruction procedure on or shortly after
1 October 2005 at the latest. That also
applies to those situations for which it is
clear on 1 October 2005 that the identi-
fied deficiencies have not been
resolved.
This further handling of the
process will still be coordinated and moni-
tored nationally. In 2007, there will be an
evaluation of how the statutory system and
the quality criteria are functioning.
4 REFERENCES
1 See Klein, W. "Minimum Criteria For A
Professional Environmental Enforcement
Process, " INECE 7t Conference Pro-
ceedings, Vol 1. Available at http://www.
inece.org/conference/7/voh/.
2 Id.
3 Klein, W. "Minimum Criteria for a Profes-
sional Environmental Enforcement Pro-
cess" (in English), 2002, available at
http://www.lim-info.nl/professionalisation
4 More material (in Dutch) on the Dutch
project is available at http://www.lim-
info.nl/professionalisation
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KRAVCHENKO 255
STRENGTHENING IMPLEMENTATION OF MEAS:
THE INNOVATIVE AARHUS COMPLIANCE MECHANISM
KRAVCHENKO, SVITLANA
Vice-Chair of the Compliance Committee under the Aarhus Convention; Professor of
Law, J.D., Ph.D., LL.D., University of Oregon School of Law, 1515 Agate St., Eugene,
OR, slana@icmp.lviv.ua
SUMMARY
International compliance mechanisms vary greatly from one multilateral environ-
mental agreement (MEA) to another. The compliance mechanism established under the
Aarhus Public Participation Convention1 is unique in some respects. This article will pro-
vide a brief look at its innovations.
1 INTRODUCTION
The United States made an
appearance at the First Meeting of the
Parties under the Convention in Lucca,
Italy, in 2002, apparently for the primary
purpose of criticizing the compliance mech-
anism. In a prepared statement, delivered
forcefully, it noted a 'Variety of unusual pro-
cedural roles that may be performed by
non-State, non-Party actors, including the
nomination of members of the Committee
and the ability to trigger certain communi-
cation requirements by Parties under these
provisions." The United States stated fur-
ther that "the United States will not recog-
nize this regime as precedent."2 The
Western European nations participating in
the Meeting of the Partiess responded with
vigor from the floor4 and proceeded to
adopt the compliance mechanism by a
unanimous vote.5
What sparked such debate? What
were the innovations adopted in this com-
pliance mechanism? How is the mecha-
nism actually being implemented? And is it
likely that this mechanism will be success-
ful in improving compliance by Parties, as
compared to compliance mechanisms
used under other MEAs?
2 AARHUS AND PUBLIC
PARTICIPATION: LAYING
THE GROUNDWORK FOR
DEMOCRATIC "REVOLUTIONS"
After the fall of the Berlin Wall in
1989 and the breakup of the Soviet Union
in 1991, Western Europeans were deter-
mined to bring democracy and wisdom
from the West to the East. The Aarhus Con-
vention became a key part of the democra-
tization process of Central Europe, Eastern
Europe, the Caucasus region, and Central
Asia.e
Democratization - both in the vot-
ing booth and in the halls of bureaucratic
decisionmaking - is surely succeeding.
After several years of debilitating civil war
in former Yugoslavia, we all witnessed the
inspiring protest against government vote
fraud that became a democratic revolution
in Serbia in 2000. Then, 12 years after the
fall of the Soviet Union, we marveled at the
seemingly swift "Rose Revolution" in the
Republic of Georgia in 2003, as citizens
again took to the streets to demand that
those who had falsified the election resign.
Finally, the cliff hanging weeks of demon-
strations and legal actions of the Ukraine's
Orange Revolution, after yet another exam-
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
pie of massive vote fraud on the part of the
authorities, resulted in the January 2005
inauguration of the first President of
Ukraine after a re-run of the election that
became truly free and fair.
These events did not "drop from
the Moon," as we say in Ukraine. Rather,
they grew from the soil of local grassroots
democratic activism, watered by interna-
tional efforts to broaden public participation
in government decisionmaking, and fertil-
ized by both local and international support
for the steady growth of civil society.
Two particular international efforts
to broaden public participation between
election days deserve special recognition.
The Regional Environmental Center for
Central and Eastern Europe (REC) in Hun-
gary provided funding, guidance, and inspi-
ration for a whole generation of local advo-
cates for environmental democracy (public
participation in environmental decisionmak-
ing) through projects including the seminal
publication of a four-volume series of books
titled Doors to Democracy.7
The second event combined inter-
national diplomacy with grassroots
activism. Negotiations throughout .the
1990s culminated in the signing of the
Aarhus Public Participation Convention in
Denmark in 1998 by 35 countries. Efforts to
obtain the required minimum number of 16
ratifications of the Convention resulted in
its entry into force just three years later in
October 2001.s
During the negotiation of the Con-
vention between 1996 and 1998, the gov-
ernments of Western, Central, and Eastern
Europe and the Caucasus and Central Asia
broke new ground in the involvement of
civil society in international diplomatic
negotiations. Early on, the participants
decided that because the goal of this Con-
vention was to provide new avenues for
transparency and public participation in
government decisionmaking, it made
sense to apply those principles in the very
process being used to create the Conven-
tion. As a consequence, nongovernmental
organizations were invited to form an NGO
coalition and take seats at the negotiating
table. To an extent apparently unprece-
dented in the negotiations of MEAs, the
NGO "observers" were given their own
"flag" of identification at the table and the
right to request the floor and offer the views
of civil society at each stage of the negoti-
ating process. They were able to lobby gov-
ernmental delegates in the corridors and
coffee shops, and they offered specific lan-
guage for the Convention, some of which
was accepted by the delegates from partic-
ipating countries.9
In the period between signing the
Convention in 1998, entry into force in
2001, and the first Meeting of the Parties in
2002, a great deal of preparatory work had
to take place. Under the auspices of the
United Nations Economic Commission for
Europe (UNECE) in Geneva, the countries
that negotiated the Convention worked in
task forces and intergovernmental working
groups to design various measures neces-
sary for the smooth functioning of a new
MEA. These included holding Meetings of
the Signatories in Moldova and Croatia,
drafting proposed Rules of Procedure,
preparing proposals for a Bureau of the
Convention and Working Groups of the
Parties to function between Meetings of the
Parties, and designing a Compliance
Mechanism required by the Convention. As
before, NGO representatives were con-
stant participant-observers in all these
processes.10
3 INNOVATIVE NATURE OF THE
AARHUS COMPLIANCE COMMITTEE
One of the most significant and
interesting innovations for MEAs is the
compliance mechanism that was created to
help ensure that countries comply with the
commitments that they have made to one
another in the Aarhus Convention. The
compliance mechanism is now working.
Ten cases have been brought to the Com-
pliance Committee by NGOs and, in one
case, by a government. The Aarhus compli-
ance mechanism has several innovative
features.
First, pursuant to Decision I/7 of
the Meeting of the Parties (2002)" the
Compliance Committee consists of eight
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KRAVCHENKO 257
independent experts who have recognized
competence in the field and who serve in
their personal capacity. In comparison with
other conventions, which have compliance
mechanisms consisting of representatives
of governments,12 this structure is more
dynamic and flexible because members
can express their own opinions and do not
have obligations to check with their govern-
ments. One example of the effect of a com-
pliance committee consisting of Parties
instead of independent experts occurred at
a conference where a member of the
Espoo Convention's Implementation Com-
mittee encountered an NGO representative
who had filed a complaint with the Commit-
tee. She said to him, "How can you oppose
your own government? Shame on you!"13
Furthermore, while serving as
independent experts, they are expected to
give their best professional judgment in the
matters brought before them, and not com-
promise that judgment in order to achieve
diplomatic or political goals. The commit-
tee's recommendations go to the Meetings
of the Parties, where governments have
the opportunity to bring diplomatic and
political concerns to bear in reaching a,
decision.
Second, members of the Commit-
tee were nominated not only by Parties and
Signatories (which is the general rule), but
also by non-governmental organizations
promoting environmental protection and
falling within the scope of article 10, para-
graph 5, of the Convention. This was one of
the features that drew the ire of the repre-
sentative of the United States at the first
Meeting of the Parties in Lucca, Italy, in
2002.
Third, the Compliance Committee
accepts not only the submissions of Parties
and referrals from the Secretariat about
non-compliance with the Convention
(which is a rule in other conventions)14 but
also communications from the public. Arti-
cle 15 of the Convention provides:
The Meeting of the Parties shall estab-
lish, on a consensus basis, optional
arrangements of a non-confrontational,
non-judicial and consultative nature for
reviewing compliance with the provi-
sions of this Convention. These arrange-
ments shall allow for appropriate public
involvement and may include the option
of considering communications from
members of the public on matters relat-
ed to this Convention.15 This was fol-
lowed by adoption of the compliance
mechanism, which provides that "com-
munications may be brought before the
Committee by one or more members of
the public concerning that Party's com-
pliance with the Convention."16
This openness to public participa-
tion by civil society has already produced
remarkable results in the functioning of the
committee. Eleven cases have been initiat-
ed by communications from NGOs.17
4 TRANSPARENCY OF THE
COMPLIANCE COMMITTEE
PROCEDURE
According to the Committee's
Modus Operand!, in order to facilitate pub-
lic access to information related to compli-
ance issues, the Committee agreed that
communications that had, on a preliminary
basis, been determined to be admissible
should be posted on the UNECE website
after they had been forwarded to the Par-
ties concerned.18
Almost all information in the Com-
pliance Committee is open. No information
held by the Committee is to be kept confi-
dential unless it falls under the narrow
grounds for exemption in Article 4, para-
graphs 3 and 4 of the Convention. In addi-
tion, information is to be kept confidential if
the person who submitted information to
the Committee has asked to keep it confi-
dential because of concern that she or he
may be penalized, persecuted or harassed.
The Committee requested the Sec-
retariat to publicize all official documenta-
tion and new aspects of modus operand!
through the website to enable the public to
track the processing of submissions, refer-
rals and communications.
The Compliance Committee meet-
ings are open for the public, except for the
deliberations and decision-making. Non-
governmental organizations such as
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Earthjustice and the Center of International
Environmental Law participate regularly in
the Committee meetings as observers,
offering their comments on each case. The
Committee invites parties to a dispute - the
Party (state) concerned or the Party mak-
ing a submission, and the member of the
public making a communication to the
Committee - to Committee meetings in
order to participate in the discussion. They
can participate in the entire meeting except
during closed deliberations involving adop-
tion of findings, and measures and recom-
mendations of the Meeting of the Parties.
5 THE POWER OF THE COMMITTEE
The Compliance Committee began
to address the merits of the communica-
tions at its sixth meeting, in December
2004 in Geneva. The Committee's Chair-
man, Prof. Veit Koester (Denmark), a dis-
tinguished veteran of negotiations on many
international environmental treaties, has
stated that: "If and when the Committee
does reach some conclusions, these will be
referred to the Meeting of the Parties,
which will be the final arbiter as to whether
or not there is a case of non-compliance."19
The Committee makes recommen-
dations to the Meeting of the Parties. In
addition, the compliance mechanism
adopted by the First Meeting of the Parties
provides that, with a goal of addressing
compliance issues without delay prior to a
Meeting of the Parties, the Compliance
Committee may, in consultation with the
Party concerned, "provide advice and facil-
itate assistance to individual Parties
regarding the implementation of the Con-
vention.'^
Furthermore, with the agreement
of the Party concerned, the Committee can
(prior to a Meeting of the Parties) take the
measures listed in paragraph 37(b), (c) and
(d) of the compliance mechanism, namely:
[M]ake recommendations to the Party
concerned; request the Party concerned
to submit a strategy, including a time
schedule, to the Compliance Committee
regarding the achievement of compli-
ance with the Convention and to report
on the implementation of this strategy; in
cases of communications from the pub-
lic, make recommendations to the Party
concerned on specific measures to
address the matter raised by the mem-
ber of the public.21
6 NATIONAL REPORTS
In addition to the complaint proce-
dure, the required submission of a National
Report by each Party has the potential to
become an important tool, especially if
NGOs are allowed to participate. The Com-
pliance Committee will make a report and
the Secretariat will make a synthesis report
to the 2005 Meeting of the Parties based
on the National Reports. On the invitation
of the Secretariat the Compliance Commit-
tee plays a consultative role in preparation
of a synthesis report. However, it is already
obvious that some Parties do not treat this
duty to report seriously.22 Only 16 out of 33
Parties sent their National Reports on time,
plus another 4 submitted them with a small
delay. In addition, the quality of National
Reports differed greatly. For example, Turk-
menistan wrote a report just two pages long
and did not provide any information, and it
was of low quality. Ukraine's report was too
long and repetitive. The Reports of Norway
and Belarus, on the other hand, were
excellent.
Almost all National Reports were
made in a transparent and participatory
process. Governments sent draft reports to
NGOs or put them on a website, and held
consultations or public hearings. The public
had a chance to submit comments. In some
National Reports public comments were
taken into account or even included in the
addendum (Armenia, Kyrgystan). Many
other countries, however, provided no indi-
cation in their National Reports of whether
the public participation made any differ-
ence or whether public comments were
taken into account.
The 2005 National Reports show
that many countries changed their legisla-
tion to comply with the Aarhus Convention.
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KRAVCHENKO 259
Western European countries, according to
their legal traditions, made legislative
changes before ratification. EECCA coun-
tries, on the other hand, continue to change
their domestic laws after ratification. The
Constitutions in several countries declare
that international treaties and conventions
have direct effect on the legal system, but
without clear transposition of Convention
provisions into national legislation there is
little hope that real change will occur as a
mere result of ratification.
The National Reports do show that
a great deal of progress has been made by
EECCA countries in terms of making envi-
ronmental information available on the
Internet, which was only a dream a few
years ago. Furthermore, Aarhus Conven-
tion information centers have been created
in many countries. Trainings have been
organized for NGOs and decision makers.
Still, problems exist. Countries in transition
identified obstacles in their 2005 National
Reports such as lack of capacity to imple-
ment the Aarhus Convention, financial diffi-
culties, and a low level of public aware-
ness.
7 FIRST CASES BEFORE THE
AARHUS COMPLIANCE COMMITTEE
All EECCA countries (except Rus-
sia and Uzbekistan) signed the Convention
and ratified it, but this does not necessarily
mean that they will comply with it. There is
a longstanding tradition to have internation-
al conventions and domestic laws on paper
but with inadequate enforcement. Of the
eleven cases under consideration by the
Committee, eight are about alleged non-
compliance of EECCA countries. Three
cases of alleged non-compliance by Par-
ties, which were considered by the Compli-
ance Committee at its 7th meeting on
February 16-18, 2005, will illustrate the
range of issues that face the Parties and
the public.
Kazakhstan ratified the Convention
in 2001, which as an international treaty
ratified by Kazakhstan, has direct applica-
bility in the Kazakh legal system. Kaza-
khstan's Law on Ecological Expertise
(adopted in 1997) contains general provi-
sions on public participation, but it was not
implemented in the case of construction of
the Gornyi Gigant power line23 because
regulations for public participation were not
adopted until 2004.
Turkmenistan deposited its instru-
ment of accession to the Convention on
June 21, 1999. The Convention entered
into force for Turkmenistan on October 30,
2001. On October 21, 2003, a new law "On
Public Associations" was adopted. This
Law does not comply with the Convention,
according to the decision of the Compli-
ance Committee at its 7th meeting. The
Law introduced a new regime for registra-
tion, operation, and liquidation of non-gov-
ernmental organizations. This appears to
be in breach of the provisions of article 3,
paragraph 4, of the Convention, which
require a country to provide for appropriate
recognition of and support to associations,
organizations or groups promoting environ-
mental protection and to ensure that its
national legal system incorporates this obli-
gation. It also does not comply with article
3, paragraph 9, which requires countries to
provide the possibility for the public to exer-
cise their rights under the Convention with-
out discrimination as to citizenship, nation-
ality, domicile, or location of an entity's reg-
istered seat.24
The Committee received a submis-
sion by the Government of Romania con-
cerning compliance by the Government of
Ukraine with the treaty.
The submission, made on June 7,
2004, alleged a violation by Ukraine of the
provision that ensures that the public
affected or likely to be affected by the Bys-
troe deep-water navigation canal project in
the Danube Delta was informed early in the
decision-making procedure about the fact
that the project was subject to a national
and transboundary environmental impact
assessment procedure. The Committee
agreed to consider the issues side-by-side
with a communication on the Bystroe canal
made by the Ukrainian NGO Ecopravo-Lviv
on May 5, 2004.
The Committee determined that
Ukraine failed to provide for proper notifica-
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
tion and participation of civil society in its
decision-making, in particular, the organi-
zations that indicated their interest in the
procedure, as required under article 6.
Ukraine also failed to allow the public to
study the information on the project and
prepare and submit its comments. The
Party did not allow the public officials
responsible for making the decision suffi-
cient time to take any comments into
account in a meaningful way, as required
under article 6, paragraph 8.
The Committee found that the lack
of clarity with regard to the public participa-
tion requirement in EIA and environmental
decision-making procedure on projects,
such as time frames and modalities of a
public consultation process, requirements
to take its outcome into account, and obli-
gations with regard to making information
available in the context of article 6, indi-
cates the absence of a transparent and
consistent framework for implementation of
the Convention and constitutes non-com-
pliance with article 3, paragraph 1 of the
Convention.25
8 PROSPECTS FOR SUCCESS
The first attempts to evaluate
implementation of the Aarhus Convention
show both difficulties and successes in
building an environmental democracy,
improving transparency, and enhancing the
quality of decision-making. The Convention
gives citizens the possibility to control their
governments and to make an increased
contribution to the protection of the environ-
ment. The Convention is an important inter-
national instrument for the protection of the
right to a healthy environment. Most impor-
tantly, the Convention's novel compliance
mechanism is an ambitious effort to bring
democracy and participation to the very
heart of compliance itself. Whether this will
be successful will depend on the Commit-
tee itself, the Meeting of the Parties, and
whether citizens will continue to be vigilant
in demanding compliance with their Con-
vention.
9 REFERENCES
1 Convention on Access to Information,
Public Participation in Decision Making
and Access to Justice in Environmental
Matters, signed in Aarhus, Denmark, on
June 25, 1998 (in force from October 30,
2001).
2 Statement By The Delegation Of The
United States With Respect To The
Establishment Of The Compliance Mech-
anism, Annex to REPORT OF THE
FIRST MEETING OF THE PARTIES,
page 19, available at http://www.unece.
org/env/documents/2002/pp/
ece.mp.pp.2.e.pdf.
3 The vast majority of Western European
nations had not ratified the Aarhus Con-
vention by the time of the First Meeting of
the Parties, but participated fully as Sig-
natories.
4 REPORT OF THE FIRST MEETING OF
THE PARTIES, paragraph 46, page 8,
available at http://www.unece.org/env/
documents/2002/pp/ece. mp.pp.2.e.pdf.
s Id. at paragraph 47, page 9.
6 I use "Central Europe" for the Visigrad
states of the Czech Republic, Hungary,
Poland, and Slovakia. As for those states
further east, "Eastern Europe, Caucasus,
and Central Asia" (EECCA) is the term
now widely used in international meetings
to replace the former appellations "former
Soviet Union" and the "Newly Indepen-
dent States of the former Soviet Union"
(NIS).
7 The present author was project leader
and editor for the volume covering sever-
al states of the former Soviet Union. S.
Kravchenko, DOORS TO DEMOCRACY:
CURRENT TRENDS AND PRACTICES
IN PUBLIC PARTICIPATION IN
ENVIRONMENTAL DECISIONMAKING
IN THE NEWLY INDEPENDENT STATES
(Regional Environmental Center,
Budapest, Hungary, 1998) (with co-
authors) (English), available at http://
www. rec.org/REC/Publications/
PPDoors/NIS/PPDoorsNIS.pdf.
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KRAVCHENKO 261
8 Two-thirds of the countries providing
these early ratifications came from the
EECCA, (the former Soviet Union). The
author was hired by the European Union
to organize "open parliamentary meet-
ings" in the countries of the EECCA in
order to promote ratification by their par-
liaments. Her title was Director, Parlia-
mentary Component, EU-TACIS Envi-
ronmental Awareness Raising Program
for Newly Independent States and Mon-
golia (1998-1999). See
http://www.hcg.helsinki.fi/projects/TEAP
2.html.
9 Tne most thorough study of NGO involve-
ment in the negotiation of the Aarhus
Convention, by Magdi Toth-Nagy of
REC, has not been published but is in
the present author's files. The present
author participated in most of the negoti-
ations.
10 The present author served as a non-
governmental expert on the Task Force
for Rules of Procedure and Compliance
Mechanism, and as a nongovernmental
representative on the subsequent Inter-
governmental Working Group on the
same matters.
10 See http://www.unece.org/env/pp/docu-
ments/1/ece. mp.pp.2.add.8.e.pdf.
12 For example, the Espoo Convention on
Environmental Impact Assessment in
Transboundary Context provides that the
Implementation Committee consists of
eight Parties to the Convention, each of
which appoints a member of the Commit-
tee. See http://www.unece.org/env/eia.
13 Incident relayed to the author by the
NGO representative.
14 For example, see http://www.unece.org/
env/eia.
is See http://www.unece.org/env/pp/treaty-
text.htm.
is Decision I/7, Review of Compliance, VI,
Communications from the Public, para-
graph 18, available at http://www.
unece.org/env/pp/documents/1/ece.mp.
pp.2.add.8.e.pdf.
i7 An additional complaint was lodged by
the Government of Romania against the
Government of Ukraine.
18 Guidance Document on Aarhus Conven-
tion Compliance Mechanism, "Modus
Operandi," page 8, available at
http://www.unece.org/env/pp/compli-
ance/manualv2.doc.
19 UNECE press release, May 14, 2004,
available at http://www.unece.org/press/
pr2004/ 04env_p08e.htm.
20 Decision I/7, Review of Compliance, VI,
Consideration By The Compliance Com-
mittee, paragraph 36, available at
http://www.unece.org/env/pp/docu-
ments/1 / ece.mp.pp.2.add.8.e.pdf.
21 Id.
22 National Reports will be available on the
UNECE website prior to the Second
Meeting of the Parties in May 2005.
23 ACCC/C/2004/02.
24 AACC/C/2004/05.
25 ACCC/S/2004/1; ACCC/C/2004/04.
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262 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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KREMLIS, DusiK 263
THE CHALLENGE OF THE IMPLEMENTATION
OF THE ENVIRONMENTAL ACQUIS COMMUNAUTAIRE
IN THE NEW MEMBER STATES
KREMLIS, GEORGES1 and DUSIK, JAN2
1 Head of the Legal Implementation and Enforcement Unit, Environment Directorate
General, European Commission, Georges.Kremlis@cec.eu.int
2 Director of the EU Department, Ministry of Environment, Czech Republic
SUMMARY
The greatest ever enlargement of the European Union has taken place on 1 May
2004, with the accession of ten new Member States, the extension of the EU territory by
twenty-three percent and the increase of population by twenty per cent. Moreover, the
accession of eight of the new Member States consolidated the fall of the iron curtain
between Eastern and Western Europe which lasted for over 40 years after the Second
World War. This article describes the possible difficulties that the new Member States will
very likely face to comply with their obligations under EC environmental legislation.
1 INTRODUCTION
A strong emphasis has been put on
compliance by the applicants for EU mem-
bership with the acquis communautaire...
As a result, all new Member States
are now presumed to have harmonized
their legislation to the EU standards and to
comply with the membership obligations.
Of course, similarly to previous EU enlarge-
ments, a number of unilateral transitional
periods have been granted to the new
Members (including in the field of environ-
ment), and the EU has also "benefited"
from a number of multilateral transitional
periods (e.g. in free movement of workers
or concerning the Schengen acquis); and it
will take several years before the new
countries meet the Maastricht criteria
allowing them to participate in the Monetary
Union. Another unique feature was the pro-
vision of pre-accession financing through
ISPA, Phare and SAPARD; indeed around
R3.5 billion are expected to be spent in the
new Member States, Bulgaria and Roma-
nia for environment during 2000-6. Howev-
er, all in all, this biggest ever EU enlarge-
ment is also believed to be the most care-
fully and timely prepared one...
2 THE DEFICIT OF IMPLEMENTATION
OF THE ENVIRONMENTAL ACQUIS
INTHEEU-15
The EU environmental policy and
legislation has been gradually adopted
since the 1970s and is traditionally fighting
"for the place in the sun" with the econom-
ic policies, in particular with the single mar-
ket ("growth and competitiveness versus
environmental protection"). A number of
important judgments of the European Court
of Justice helped to identify the mutual
position of the two streams of the EU poli-
cy: the most recent examples include the
Commission v. United Kingdom case C-
30/01 (judgment of 23 September 2003) on
the application of single market legislation
with environmental components for Gibral-
tar or the ongoing litigation in the case
Commission v. Austria (C-320/03) concern-
ing environmentally driven restrictions of
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
transport over the Alps. Nevertheless, the
environmental acquis1 at present counts for
561 pieces of binding legislation, most
importantly Directives, which the Member
States are obliged to transpose, implement
and enforce. And the field of environmental
legislation is a dynamic one, with few new
pieces of legislation adopted every year to
review existing legislation or to cover new
areas (e.g. the "Arhus package")....
2.1 Specificity of EC
Environmental Legislation
There are some peculiarities
embodied in environmental directives
which distinguish these from other areas of
Community law and which are important for
realising the causes of the implementation
deficit in the Member States.
First of all, EC environmental direc-
tives are characterised by a number of sec-
ondary obligations (i.e. obligations that
have to be complied with at a later stage
after the entry into application of a direc-
tive). Therefore, ensuring compliance is not
limited to a straightforward exercise of
transposition, as might be the case in some
areas, but it is necessary to ensure at a
later stage, e.g. adoption of plans and pro-
grammes, designations or establishment of
protected zones and areas etc. Some of
the secondary obligations also imply estab-
lishment of infrastructure and major invest-
ments (urban wastewater treatment, drink-
ing water, landfills etc.).
Secondly, compliance with EC
environmental law is often related to the
use of EC funding (namely LIFE, Structural
Funds, Cohesion Fund, TENs and the pre-
accession funds) or to funding from loans
of the European Investment Bank. When it
is required to be informed of projects, the
Commission carries out a scrutiny of the
utilisation of EC funds to ensure that proj-
ects conform with Community legislation
especially for environment, competition
and public procurement - see Article 12 of
Council Regulation (EC) No. 1260/99 lay-
ing down general provisions on Structural
Funds3, Article 8.1 of Council Regulation
(EC) No 1164/94 establishing a Cohesion
Fund4, as amended, and for the TENs Arti-
cle 7 on Compatibility of Council Regulation
2236/95 as amendeds).
However, the cohesion policy is
implemented in a decentralised way, and
therefore the Commission is only made
aware of the largest projects (Cohesion
Fund and Large European Regional Devel-
opment Fund (ERDF) projects).
Finally, many pieces of EC environ-
mental legislation have a strong public par-
ticipation component. This is now empha-
sized by the forthcoming ratification by the
EC of the so-called Arhus Convention
(Convention on Access to Information,
Public Participation in Decision-making and
Access to Justice_ in Environmental Mat-
ters, adopted in Arhus, Denmark, on 25
June 1998), whose three pillars require not
only access of public to environmental
information and public participation in deci-
sion-making involving environmental mat-
ters, but also access of the public to justice
in this domain. Directives corresponding to
the three pillars have been adopted or are
expected to be adopted to implement the
Arhus Convention within the European
Union legal order.
2.2 The Extent and Types of
Problems in Application of
EC Environmental Legislation
There are a number of sectors of
the environmental legislation which cause
more implementation problems than oth-
erss: nature protection, water and air quali-
ty, waste management and environmental
impact assessment. In nature protection,
the main problems include non conformity
of transposing legislation, insufficient des-
ignation of Natura 2000 sites, incorrect
assessment of plans and projects affecting
the protected sites and breaches of
requirements for strict protection of
species. The water quality issues mainly
relate to secondary obligations, such as
designations of protected zones, adoption
of pollution reduction programmes or con-
struction of sewerage and wastewater
treatment systems, while drinking water
problems occur in few areas of the EU.
Most problems with the air quality, on the
contrary, concern lack of transposition or
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KREMLIS, DusiK 265
reporting to the Commission. Non-conform-
ity of legislation and lack of adoption of
management plans are the most typical
issues in the waste sector, together with the
operation of illegal landfills in several Mem-
ber States. Finally, concerns about environ-
mental impact assessment stem mainly
from complaints and are largely procedural,
since Directive 85/337/EEC9 is a procedur-
al one; the material aspects would refer to
obligations from the legislation in other sec-
tors, such as the two major nature protec-
tion Directives^...
The available statistics demon-
strate that compliance with EC environ-
mental legislation still proves to be difficult
in the EU-15 and the number of infringe-
ments per year does not seem to diminish.
The Commission tries to take proactive
measures to avoid starting full-bloodied
infringement procedures, such as: package
meetings, during which complaints or
infringement cases are discussed with the
authorities of the Member States; bilateral
or multilateral proactive meetings to explain
how Member States should comply with
their obligations; various guidance docu-
ments; or reminder letters on adoption of
new directives and deadlines for their
transposition. The work of IMPEL, the infor-
mal network of Member States and the
Commission for the implementation and
enforcement of environmental law, has
been also beneficial for ensuring consistent
implementation and enforcement of the
acquis throughout the Community, mainly
through exchange of information, training
of inspectors and development of best
practice. Of course, the different breaches
vary in gravity - and the aim of the Com-
mission is to focus its attention in pursuing
the infringements on serious breaches of a
systematic character rather than on individ-
ual procedural omissions or isolated indi-
vidual cases of bad application, which are
often at centre of complaints from the citi-
zens. An upstream approach which identi-
fies the systemic shortcomings is preferred
to a downstream one which tackles the
symptoms. But in any case the deficit of
implementation of the environmental
acquis already in the EU of 15 Members is
obvious and has to be tackled through a
combination of both proactive and enforce-
ment means.
3 CHALLENGES OF IMPLEMENTATION
OF THE ENVIRONMENTAL ACQUIS
IN THE NEW MEMBERM STATES
We mentioned in the beginning of
this article that this enlargement is argued
to be the best prepared one ever, since the
preparation for membership was monitored
by the Commission some seven years prior
to accession (starting with the Opinions on
Application for Membership of the Euro-
pean Union of the candidate countries on
July 1997). Publication of annual reports of
the Commission on progress of individual
applicant countries in harmonising legisla-
tion and practice with the EU was always
high on the political agenda and criticisms
of slow progress appeared on front pages
of newspapers. The monitoring continued
even after the signature of the Accession
Treaty, with the possibility for the EU to
impose safeguard measures should the
pace of harmonisation not be maintained.
However, given the rather unsatis-
factory record of compliance with EC envi-
ronmental law by the EU-15, it can be
expected that the new Member States will
face similar problems. A number of factors,
specific for these new countries, confirm
such forecasts.
Even more than in the old EU
Members, environment is low on the politi-
cal agenda. This was apparent already in
the pre-accession period when various
political and economic lobbies were trying
to bypass or at least delay adoption of leg-
islation transposing EC environmental
directives and budgetary allocations for
environmental protection were decreasing.
A major challenge is obviously the financ-
ing of approximation. The costs of imple-
menting the environmental acquis in the
ten new Member States were estimated at
€ 50-80 billion and investments required
from these countries were estimated at 2 to
3 per cent of GDP, higher than what is at
present being allocated.11
The EU will significantly contribute
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
to financing implementation by provision of
resources from EU funds. € 21.7 billion will
be made available to the new Member
States from the Structural Funds and the
Cohesion Fund until the end of the current
budgetary period (31.12.2006), out of
which € 3 billion in the Cohesion Fund is
earmarked for the environment, while other
environmental projects can be supported
from the main Structural Funds. These con-
tributions, together with the pre-accession
funding from Phare, ISPA and SAPARD
instruments, should significantly contribute
to financing implementation measures. The
experience in the EU15 also shows that
national budgets must also be set aside,
and indeed should be more substantial.
Apart from finding sufficient finan-
cial resources to cover remaining invest-
ment needs and co-financing of EC-funded
projects, two other challenges emerge in
relation to EC funding. The first is the so-
called conditionality, i.e. compliance of co-
financed projects with EC environmental
legislation and policy. Another issue, which
is specific for the new Member States, is
the establishment of adequate administra-
tive capacity to prepare 'pipelines' of proj-
ects of sufficient quality and to properly
manage the use of EC funds12. High atten-
tion to these issues has proven essential
for maximising the utilisation of the EC
funds by the beneficiary Member States
and should be seen as a priority also by the
new Members.
Well performing administrative
structures will be necessary not only for
administering EC funding, but also in
ensuring correct implementation of the EC
environmental law in general. Many envi-
ronmental Directives require issuing of per-
mits, monitoring of pollution and fulfilment
of secondary obligations. A number of insti-
tutions, both horizontally and vertically, are
typically involved in implementing these
obligations and they need to be adequately
staffed and well coordinated. A number of
twinning projects under Phare have been
carried out in the Central and Eastern
Europe candidate countries prior to acces-
sion to strengthen their administrative
capacity and to provide relevant training.
Preparedness of administration to cope
with obligations arising from EU member-
ship has also been checked through peer
reviews in 2002 and 2003, as part of the
monitoring of accession preparations.
Other possible drawbacks are defi-
ciencies in law enforcement and a lack of
legal culture in the countries in transition.
The disobedience of legislation is not pri-
marily seen by the society as a negative
feature, especially when it does not affect
private individuals or property. Harm to the
state property or to a public interest is gen-
erally better accepted by the people. This
may be particularly relevant for compliance
with nature protection obligations, since it is
more difficult to carry out monetary valua-
tion of the damage caused to natural fea-
tures. It is however fair to say that there are
positive trends in these countries, and peo-
ple start to discover the importance of non-
material assets, such as clean rivers or bio-
logical wealth.
Finally, only slow progress is being
made by the new Member States towards
ensuring effective public participation in
environmental decision-making. Of course
the EC legislation (such as on the environ-
mental impact assessment or access to
information) directly related to participative
democracy has been transposed into
national legislation, but experience shows
that practical application lags behind.
Assaults on the basic principles of public
participation were experienced when trans-
posing legislation containing such provi-
sions in the legislative process (such as the
transposition of the nature directives in the
Czech Republic's parliament). We may
therefore expect a number of complaints by
the citizens of the new Member States con-
cerning access to environmental informa-
tion and public participation in decision
making.
4 MEASURES TO FACE THE
CHALLENGES POSED BY
ENLARGEMENT
From 1 May 2004, the ten new
Member States are subject to the same
obligations as the EU-15. They have to
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KREMLIS, DusiK 267
comply with EC legislation, the national leg-
islation transposing directives in force must
be notified by that date and practical com-
pliance must be ensured as well. Specific
arrangements apply only in accordance
with the transitional periods as agreed dur-
ing the accession negotiations and spelled
out in the Act of Accession^. Should the
new Member States fail to comply with their
obligations, the Commission may initiate
the infringement procedure pursuant to
Article 226 of the EC Treaty. Similarly, the
Commission has a duty to investigate com-
plaints lodged by EU citizens or NGOs
against the new Member States.
The Act of Accession of the ten
new Member States also foresees a num-
ber of intermediate targets within the
agreed transitional periods. This is the first
enlargement where such an arrangement
has been made with the new Member
States, with the aim to gradually fulfil the
EC legal obligations rather than waiting
until the (sometimes extensive) transitional
periods elapse. The fulfilment of intermedi-
ate targets will be monitored as a matter of
priority; non-compliance with these targets
may trigger an infringement procedure.
A number of measures to eliminate
possible opening of infringements immedi-
ately after accession have been undertak-
en both generally and in the environmental
field. As concerns transposing legislation,
the acceding countries were invited to use
the pre-notification database for gradual
storage of transposing legislation in an
electronic version, aimed at avoiding a
backlog of notifications on the date of
accession. Most of the transposing legisla-
tion has been notified in this way and is
now considered officially notified to the
Commission.
Two systematic approaches have
been undertaken as concerns ensuring
compliance with environmental legislation
by the Directorate-General for the Environ-
ment of the Commission. Shortly before the
accession a series of environmental proac-
tive meetings have been carried out in the
new Member States, with the aim to explain
to their national authorities responsible for
compliance and enforcement how com-
plaint and infringement procedures work in
practice, how to prevent escalation of
infringements and how to communicate
effectively on these matters with the rele-
vant Commission services. Those meet-
ings have been highly appreciated by all
new Member States, as they provided first-
hand practical information and enabled
contact with the Commission counterpart in
the matters of compliance with EC environ-
mental law. Such meetings can provide a
solid basis not only for bringing infringe-
ments to an end in the most effective way,
but can also be followed by package meet-
ings and other specific meetings as cur-
rently organised with the existing Member
States.
DG Environment of the Commis-
sion has also launched a systematic con-
formity check for the ten new Member
States, building on a similar experience
with the EU-15. The objective is to analyse,
within the next two years, transposing leg-
islation for the main Directives and remove
any non-compliance in an early stage, in
close collaboration between the Commis-
sion and the Member States concerned.
Concerning complaint and infringe-
ment procedures, the same priorities as the
ones for the EU-15 will apply, in line with
the White Paper on European
Governancei4 and the Commission Com-
munication on Better Monitoring of Com-
munity Law1s. The first priority will be the
non-communication cases (in the absence
of notification of transposing measures),
followed by the cases of non-conformity
(based on the conformity checking exer-
cise) and horizontal bad application cases
(secondary obligations, transitional periods
contained in the Act of Accession including
intermediate targets to be met and condi-
tionally of EC funding). Of course this will
not exclude handling of all received com-
plaints, as required by the EC Treaty and
by the Commission Communication to the
European Parliament and the European
Ombudsman on the Relations with the
complainant in respect of infringements of
Community law^. Such non-priority com-
plaints can be handled through alternative
means (e.g. package meetings) and the
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
complainants should be encouraged to use
the available national means of redress.
5 CONCLUSIONS
In this article, the possible difficul-
ties that the new Member States will very
likely face to comply with their obligations
under EC environmental legislation were
tentatively addressed. The key messages
could be summarized as follows.
1. During the period prior to accession, the
maximum possible was done, under
close surveillance of the Commission.
Therefore all obligations should in theory
have been formally fulfilled by 1 May
2004. However, we can however expect
that there will be failures, gaps and omis-
sions.
2. It is natural that there will be infringe-
ments and that the Commission will
receive complaints from citizens from the
new Member States; this has been the
case for all previous EU enlargements. It
is also likely that the number of cases
will be growing gradually rather than in a
single step. Experience with the EU-15
shows that the more public awareness
you raise the more complaints are trig-
gered by the citizens who know better
their rights.
3. The spectrum of problems, complaints
and infringement cases against the new
Member States is not expected to signif-
icantly differ from the situation in EU-15.
It is also likely that they will concern sim-
ilar issues, although there may be some
specific aspects, such as the require-
ments to implement the investment
heavy environmental acquis, inadequate
administrative capacity or the lack of
legal culture, which might cause some
variations compared to the business-as-
usual in the EU-15.
4. Limiting escalation of infringements will
require effective use of proactive meas-
ures as described above, including bilat-
eral meetings with the national authori-
ties to discuss complaints, infringement
cases or difficulties in implementation.
The same is of course valid for the exist-
ing Member States.
5. The EC funding should be to the maxi-
mum possible extent prioritised for co-
financing of measures bringing about
compliance with obligations of the envi-
ronmental acquis. Good project prepara-
tion will have to be ensured. In turn the
acquis itself must also be respected for
the construction and financing of infra-
structure projects.
6.Finally, the performance of countries
which just acceded to the European
Union will be under strong scrutiny, since
this is the biggest ever enlargement and
the new Members are less developed
compared to the EU-15 average. The
success or failure of this enlargement
will be crucial for deciding about poten-
tial future enlargements of the EU and it
would also be the most suitable
response to the recent escalation of anti-
European trends both in the old and the
new Member States.
6 REFERENCES
1 Based mainly on Article 175 of the EC
Treaty, but also on Articles 95 and 308 of
the EC Treaty
2 Data from CELEX database, 19 May
2004; including all amendments and
technical adaptations.
3QJ 1161,26/06/1999, p. 1.
4QJ 1130,25/05/1994, p. 1.
5QJ L 228, 23/09/1995, p. 1.
8 For details, see Fourth Annual Survey on
the implementation and enforcement of
Community environmental law - 2002;
Commission Staff Working Paper
SEC(2003)804.
9 OJ L 175, 05/07/1985, p. 40.
10 Directive 79/409/EEC, OJ L 103, 25/04/
1979, p. 1, and Directive 92/43/EEC, OJ
1206,22/07/1992, p. 7.
11 Communication from the Commission to
the Council and the European Parlia-
ment on 2003 Environment Policy
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KREMLIS, DusiK 269
Review, COM(2003)745 final, page 38.
12 Communication from the Commission on
the Challenge of environmental financing
in the candidate countries, COM
(2001)304 final, p. 3.
13 Act concerning the conditions of acces-
sion of the Czech Republic, the Republic
of Estonia, the Republic of Cyprus, the
Republic of Latvia, the Republic of
Lithuania, the Republic of Hungary, the
Republic of Malta, the Republic of
Poland, the Republic of Slovenia and the
Slovak Republic and the adjustments to
the Treaties on which the European
Union is founded, OJ L 236, 23/09/2003,
p. 33.
14 COM(2001)428 final, p. 25.
is COM (2002)725 final, p. 11.
16COM(2002)141 final.
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270 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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LEINSTER, GRAY, HOWES, CLARK 271
COMPLIANCE PROMOTION IN THE UNITED KINGDOM
LEINSTER, PAUL,1 GRAY, JIM,2 HOWES, CHRIS,3 and CLARK, ROSIE4
1 Director of Operations, Environment Agency (England and Wales),
paul.leinster@environment-agency.gov.uk
2 Head of Regulatory Development, Environment Agency (England and Wales),
jim.gray@environment-agency.gov.uk
3 Enforcement Policy Manager, Environment Agency (England and Wales),
chris.howes@environment-agency.gov.uk
4 Policy Adviser, Modern Regulation, Environment Agency (England and Wales),
rosie.clark@environment-agency.gov.uk
SUMMARY
Society demands high environmental standards and expects companies, and indi-
viduals, to behave responsibly. The Environment Agency is the leading public body protect-
ing and improving the environment in England and Wales.
Traditional regulatory approaches have achieved much to reduce environmental
impacts. However, the nature of regulation has to change to keep pace with changes in the
economy and society. The Environment Agency has responded to this challenge through
its "Modernising Regulation Change Programme".
This article describes some of the approaches adopted by the Environment Agency
to promote compliance with legal requirements and to encourage the environment to be at
the centre of business thinking.
1 PRINCIPLES OF MODERN
REGULATION
The Agency believes modern regu-
lation focuses on outcomes and is risk
based. Modern regulatory systems should
encourage businesses and individuals to
improve, rewarding good performers, while
remaining tough on those who do not meet
acceptable standards. In order to achieve
this, modern regulation must be:
— proportionate, allocating resources and
implementing systems according to the
risks involved;
— transparent, with clear rules and
processes for industry and local commu-
nities;
— consistent, within and between sectors,
and over time;
— targeted on the environmental outcome
to be achieved, taking into account envi-
ronmental needs, best practice, sector
specific and geographical circum-
stances;
— cost effective.
This means that we will concen-
trate our resources where the risks to the
environment are highest, including the
highest hazards or the poorest performing
operators. We will focus on systems to
improve environmental quality. Consistent
with this principle, we will adopt a propor-
tionate approach where we see good per-
formance. We have developed a screening
method to assess risks to the environment
in a quantitative fashion.
Transparency and trust are also
vital aspects of our relationship with com-
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
munities and society as a whole, and we
must at all times be seen to maintain a neu-
tral, open and fair stance. Accordingly, we
make information on the environmental
performance of business and our perform-
ance as a regulator widely available.
2 TOOLS FOR
MODERN REGULATION
Adopting a risk-based approach to
regulation, matching intervention measures
to environmental performance, has implica-
tions for all involved in the regulatory
process. ...
Direct regulation is the traditional
approach to controlling emissions or
abstractions, with permits specifying what a
company can and cannot do at a particular
site. As a modern regulator we are also
developing risk based assessment meth-
ods and actively promote voluntary
schemes. A number of these approaches
are described below. ...
3 OPERATOR POLLUTION AND
RISK APPRAISAL
The Agency aims to target its
resources on those companies that pose
the greatest risks to the environment. Two
schemes for Operator and Pollution Risk
Appraisal (OPRA) have been developed to
assist the Agency in its regulation of the
Integrated Pollution Control (IPC) regimes
for major process industry and the Waste
Management Licensing regime. With the
implementation of two new European Com-
munity Directives in England and Wales,1
elements of the waste industry and the
large manufacturing sectors are brought
under one regulatory regime for the first
time.
In keeping with our aim to intro-
duce common approaches to regulation
across a range of regulatory regimes, the
new Environmental Protection Operator
and Pollution Risk Appraisal (EP OPRA)
methodology has been developed as an
important step in developing a unified
approach to risk assessment across our
regulatory regimes. The EP OPRA scheme
fits within a recognised national framework
for environmental risk assessment and
management.2 It incorporates an element
of professional judgement, but the method
itself is simple to apply and objective in
nature and a public consultation on the
scheme was held in 2002. Details of
responses are on the Agency's web site.3
EP OPRA will help the Agency tar-
get its regulatory effort on those activities
that present the greatest risk to the environ-
ment. Outputs from this scheme are being
built into the proposed charging scheme for
the PPC regulatory regime. As noted previ-
ously, charges for regulation are set to
reflect the level of regulatory action
required. EP OPRA has four attributes.
Three reflect the environmental hazard of
the operation and the fourth measures
Operator performance. In general, the
higher the score, the greater the regulatory
level of activity required. ...
4 HOW THE AGENCY
PROMOTES COMPLIANCE
Companies need to accept respon-
sibility for their actions and this should be
reflected in business culture as well as in
their operational targets. The principle of
'polluter pays' is now well accepted, where-
by businesses should be held to be account-
able for their actions. As noted previously,
the Agency's Operator and Pollution Risk
Appraisal system supports the polluter pays
principle through a cost recovery charging
framework which can provide a financial
incentive to operators to reduce their envi-
ronmental risks and impacts. By identifying,
managing and reducing key risk areas,
businesses can reduce their Operator and
Pollution Risk Appraisal (risk) profile, which
will then be reflected in lower compliance
activities and, consequently, charges. In
addition, businesses can benefit, in some
circumstances, from cost savings in
reduced waste and minimisation of
resource use, and avoid costs associated
with pollution incidents. Promoting corpo-
rate responsibility can improve corporate
image with an associated positive impact
on shareholder value, as well as impacting
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LEINSTER, GRAY, HOWES, CLARK 273
for example on a Company's credit rating
or insurance premium.
4.1 Optimising environmental
improvement
The Environment Agency is devel-
oping sector plans and guidance, which
address the specific issues associated with
particular sectors. Sector plans relate to a
coherent, recognisable, target group and
define the national and local outcomes and
risks that we believe should be addressed
for that group. The sector may be a partic-
ular industry (such as nuclear or agricul-
ture), or a recreational area (such as
angling). This approach allows us to priori-
tise the regulatory workload between and
within sectors. The overall objective is to
optimise achieving environmental improve-
ments.
Key to optimising environmental
performance is to identify current good
practice relevant to the sector, to educate
and advise businesses and individuals and
to communicate information to the public.
4.2 Identifying Good Practice
Good Practice includes reviewing
techniques and experience from within the
sector and across other sectors where sim-
ilar environmental problems and processes
may be encountered. Such reviews are not
restricted to England and Wales and the
Environment Agency is keen to learn from
the experience of other countries. Good
practice also includes the reduction of
unnecessary bureaucracy which may inhib-
it the introduction of innovative solutions to
poor environmental performance. In addi-
tion, we encourage full life cycle ('cradle to
grave') analysis of processes to promote
good environmental management through-
out the whole supply chain.
4.3 Education
Businesses and individuals need to
be more aware of how their actions impact
on the environment and human health.
Education and advice can help raise
awareness of the issues by providing clear
information relevant to specific audiences,
demonstrating potential improvements
(including cost savings) through case stud-
ies, and highlighting national, regional or
sector initiatives. We also seek to raise
awareness of regulatory requirements, so
that businesses and individuals understand
fully their responsibilities.
Education campaigns can be more
resource effective than traditional regula-
tion in situations of high volume low envi-
ronmental risk. For example, the Agency
runs targeted educational initiatives such
as the "national tyres campaign" to promote
recycling and minimise illegal tipping.
4.4
Information
We regularly publish environmen-
tal performance information for England
and Wales, making use of communication
tools such as our Pollution Inventory,
What's in Your Backyard and Spotlight on
business environmental performance to
provide information about environmental
performance to a wide audience. These
publications are updated annually and are
available on our website.4 "Spotlight" both
publicly praises good performers and
names and shames poor performers. This
we believe helps companies internalise
their environmental performance. What's in
Your Backyard publishes details of Inte-
grated Pollution Control OPRA and Waste
OPRA scores for local facilities.
We also encourage individual busi-
nesses to make information on their envi-
ronmental performance accessible to
stakeholders, including local communities
and investors, and we know that this infor-
mation is used to guide investment deci-
sions.
4.5 Compliance assessment
The Environment Agency has
developed a range of tools which are being
progressively implemented to help to
assess risks. These include Compliance
Assessment Plans (CAPs) and the Compli-
ance Classification Scheme (CCS).
Compliance Assessment Plans are
used to ensure that compliance against all
requirements of permits and other regulato-
ry instruments are checked within a defined
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period. The Compliance Classification
Scheme assesses the performance of a
site against the conditions set in Agency
issued permits. It is recognised that some
non-compliances will present a greater
environmental risk than others. The Com-
pliance Classification Scheme is used to
classify non-compliance with permit condi-
tions according to potential impact on the
environment and provides information to
support consistent and proportionate
responses to non-compliances. This also
allows national profiling of sectors and
companies. The potential risk categories
used within the Compliance Classification
Scheme are ranked from 1 (the highest
potential risk arising from a non-compli-
ance) to category 4 (where no immediate
risk of harm to the environment is likely).
These categories are then used to inform
our enforcement activities, and are linked
clearly to our Enforcement and Prosecution
Policy.
4.6 Stakeholder involvement
Stakeholder involvement can take
many forms, and embraces many types of
stakeholders. Consultation at the outset of
introducing new regulatory tools is perhaps
the most obvious form of stakeholder
involvement. Typically, we seek to identify
affected businesses and local communities
and other interested parties (industry or
sector representative groups, non-govern-
mental organisations, local liaison bodies,
etc) and approach each of these individual-
ly. We also publish an invitation to provide
comment on our web-site, with provision of
a clear route to seek further information.
For more broad ranging consultations we
publish documents for national distribution.
The use of environmental informa-
tion to guide investment decisions is also a
form of stakeholder involvement and feed-
back suggests that companies, as well as
environmental groups, respond positively
to the opportunity to discuss issues with the
regulators.
4.7 Performance review
Activities which potentially impact
on the environment require monitoring so
that the risk of adverse effects can be eval-
uated and appropriate action taken. The
development of minimum criteria for envi-
ronmental inspection is a Recommendation
from the European Parliament which the
UK has agreed to implement. This requires
environmental inspections to be planned in
advance and the Agency sees its policy of
developing Compliance Assessment Plans
as a means of fulfilling this obligation.
The role of the operator is to:
— carry out monitoring and analysis to suit-
able standards;
— assess and act upon the results within
their own EMS;
— make information available.
The role of the regulator is to:
— specify the standards for monitoring and
analysis;
— ensure the operator complies with
monitoring requirements;
— act upon the results in a proportionate
manner;
— publish information on performance and
response.
Through internal review, business-
es should be encouraged to take responsi-
bility for ensuring that they are not having
an adverse impact on the environment, or
on people.
4.8 Enforcement
Regulatory regimes need to be
backed up by penalties or disincentives to
non-compliance. Where businesses do not
comply with legislation, the Environment
Agency will use its enforcement powers
firmly and fairly to prevent pollution or envi-
ronmental damage, or to require remedial
action.
5 REFERENCES
1 Integrated Pollution Prevention and Con-
trol (IPPC) and the Landfill Directive
(LFD), introduced in England and Wales
through regulations made under the Pol-
lution Prevention and Control Act 1999
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LEINSTER, GRAY, HOWES, CLARK 275
2 Department for Environment Transport
and the Regions, Environment Agency
and the Institute of Environment and
Health. Guidelines for Environmental
Risk Assessment and Management. Sta-
tionary Office, 2000
3 http://www.environment-agency.gov.uk/
yourenv/consultations
4 http://www.environment-agency.gov.uk
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276 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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MREMA, BRUCH 277
UNEP GUIDELINES, MANUAL, AND PILOT ACTIVITIES ON
COMPLIANCE WITH AND ENFORCEMENT OF MULTILATERAL
ENVIRONMENTAL AGREEMENTS
MREMA, ELIZABETH1 and BRUCH, CARL2
1 Senior Legal Officer, United Nations Environment Programme, Division of Environmen-
tal Policy Implementation, Elizabeth.Mrema@unep.org
2 Legal Officer, United Nations Environment Programme, Division of Environmental Policy
Implementation, Carl.Bruch@unep.org
P.O. Box 47074, Nairobi 00100, Kenya
SUMMARY
After decades of developing international environmental agreements, norms, and
institutions, there is a paradigm shift from normative development toward implementation.
The United Nations Environment Programme (UNEP) has undertaken many measures to
assist countries and other stakeholders in improving compliance with and enforcement of
multilateral environmental agreements (MEAs). In 2002, the UNEP Governing Council
adopted Guidelines on Compliance with and Enforcement of Multilateral Environmental
Agreements. Since then, UNEP has promoted the use of the Guidelines to improve imple-
mentation of MEAs around the world. UNEP has developed a Manual that expands upon
the Guidelines and provides practical examples of how governments, NGOs, MEA Secre-
tariats, and others have applied the approaches set forth in the Guidelines to implement
MEAs. This Manual has been refined iteratively through a series of regional capacity build-
ing workshops convened by UNEP. Building upon the Guidelines, Manual, and lessons
learned from the regional workshops, UNEP has also launched a series of pilot projects on
compliance and enforcement, including a project with INECE to develop and test indicators
of compliance with and enforcement of MEAs. This chapter provides an overview of the
Guidelines, Manual and regional workshops, and pilot projects that UNEP has undertaken
to improve compliance with and enforcement of MEAs.
1 INTRODUCTION
1.1 Background to the Guidelines
UNEP developed the Guidelines
through an evolving and participatory
process. Recognizing the growing interest
in compliance and enforcement of environ-
mental law including MEAs, UNEP devel-
oped elements of draft Guidelines in 1999
and convened a Working Group of Experts
on Compliance and Enforcement of Envi-
ronmental Conventions. The experts rec-
ommended that the Guidelines be divided
into two sections, one that addressed com-
pliance issues and the other that
addressed enforcement and environmental
crimes. UNEP submitted the draft Guide-
lines to Governments for their review and
comment. In 2000 and 2001, UNEP con-
vened two advisory group meetings (one in
Nairobi and one in Geneva), in which MEA
Secretariats also participated. Based on
the feedback from these meetings, UNEP
refined the Guidelines.
On 22-26 October 2001, UNEP
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
convened an intergovernmental meeting of
experts. All governments were invited, and
ultimately 78 governments participated in
finalizing the Guidelines at this meeting.
The UNEP Governing Council ultimately
reviewed, considered, and adopted the
Guidelines in February 2002.1
1.2
Nature of the Guidelines
The Guidelines seek to promote
implementation of a broad range of MEAs,
present and future. This includes agree-
ments on everything from hazardous
wastes and chemicals, to desertification
and land degradation, to biodiversity and
wildlife, to climate change and depletion of
the ozone layer.
The Guidelines are necessarily
non-binding and advisory, and they do not
affect MEA obligations in any way. In order
to be relevant to a broad range of MEAs,
the Guidelines set forth a "tool box" of
actions, approaches, and measures to
strengthen the international and national
implementation of MEAs. As such, the
Guidelines seek to inform and improve the
manner in which Parties implement their
MEA commitments. Thus, the selection and
application of specific tools in the Guide-
lines to the specific context of a particular
MEA will depend on the characteristics of
that MEA, as well as the context of the
country, countries, or organization seeking
to apply the tools.
1.3 Scope and Content of
the Guidelines
The Guidelines include an intro-
duction and two chapters, one on compli-
ance and the other on enforcement. The
substantive division of the Guidelines into
compliance and enforcement reflects the
conceptual framework articulated by the
experts and refined by the Government
representatives participating in the devel-
opment of the Guidelines. The experts
divided implementation measures into two
broad categories: those actions that relate
to whether a Party (i.e., a nation) is in com-
pliance with an MEA, and those on-the-
ground actions that a Party takes to imple-
ment an MEA. Consequently, the former
set of actions relates primarily to the inter-
national context and whether a nation is in
good standing with the other Parties (i.e.,
the Compliance chapter), and the latter set
of actions relates primarily to the national
context and the actual application of the
agreement at the national level (i.e., the
Enforcement chapter). As will become
readily apparent, though, while these gen-
eralities hold, there is some overlap.
The compliance guidance address-
es the entire process of developing and
implementing MEAs. Accordingly, these
Guidelines promote effective preparation
for and participation in negotiations through
a variety of tools such as exchange of infor-
mation, consultations, intra- and inter-gov-
ernmental coordination, assessment of
domestic capacities, and the need to pro-
mote synergies and avoid overlaps. The
Compliance Guidelines also set forth a
range of institutional mechanisms and
approaches to promote compliance. Some
of these may be included in the text of an
MEA, while others may be adopted by the
MEA Conference of the Parties, Secretari-
at, or other competent body. Such mecha-
nisms include: reviews of implementation
and effectiveness; national implementation
plans; reporting, monitoring, and verifica-
tion; non-compliance mechanisms and pro-
cedures; and dispute settlement. There are
also some relatively brief Guidelines
addressing national measures to imple-
ment MEAs, and most of these measures
are expanded upon in the following chap-
ter, dealing with enforcement. The Compli-
ance chapter concludes with a discussion
of measures to promote capacity building,
technology transfer, and international coop-
eration.
In contrast to the Compliance
chapter, which emphasizes the internation-
al context, the Enforcement chapter focus-
es on specific measures to implement
MEAs at the national level. In this context,
"enforcement" encompasses a broad range
of actions, starting with effective laws, reg-
ulations, and institutional frameworks, but
also entailing concerted capacity building,
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MREMA, BRUCH 279
public awareness and education, and inter-
national cooperation and coordination.
While the specific legal, social, economic,
and cultural contexts of a nation affect com-
pliance, the Enforcement chapter recog-
nizes that national implementation and
enforcement measures are most effective
when they take into account the particular
national context. The Enforcement chapter
provides a variety of considerations (e.g.,
clarity, feasibility, coordination, and authori-
ty) and a long list of approaches, tools, and
arrangements.
The measures enumerated in the
Guidelines have proven to be relatively
comprehensive: in more than three years
of intense review and discussion following
the adoption of the Guidelines, few (if any)
practices or considerations have been
raised that are not already provided for in
the Guidelines. This is due in large part to
the broad range of experts, countries, and
perspectives involved in elaborating the
Guidelines. It is also due to the general
nature of the Guidelines. In short, the
Guidelines adopt a "tool box" approach, but
they do not provide much guidance on how
to use these tools, individually or in concert
with other tools.
2 THE UNEP MANUAL AND
REGIONAL WORKSHOPS
When it adopted the Guidelines,
the UNEP Governing Council (GC) sought
to disseminate them widely to Govern-
ments, MEA Secretariats, international
organizations, and other institutions
involved in implementing MEAs. The GC
also sought to promote use of the Guide-
lines through the UNEP work program, in
collaboration with States and international
organizations. Thus, GC asked UNEP to
strengthen capacity of developing coun-
tries, particularly the least developed coun-
tries and countries with economies in tran-
sition, to implement and enforce MEAs
using, inter alia, the Guidelines.2 In
strengthening capacity of countries to
implement and enforce MEAs, UNEP has
pursued a three-pronged approach, pur-
suant to its work plan, that involves (1)
developing and refining a Manual, (2) con-
vening regional workshops to disseminate
the Guidelines and test the Manual, and (3)
conducting pilot activities.
UNEP has developed a Manual
that expands upon the tools set forth in the
Guidelines. If the Guidelines are a "tool
box," then the Manual is a sort of "user's
guide" for those tools. Structured as an
annotated commentary on the Guidelines
and using clear simple language, the Man-
ual provides explanatory text, case studies,
checklists, references to additional
resources, and annexes with supplemen-
tary information. UNEP initially developed
the Manual as a desk study, and UNEP has
revised the Manual following each regional
workshop to take into account substantive,
editorial, and formatting comments, as well
as new case studies of national, regional,
and international experiences highlighted
in the workshops. UNEP has also updated
the Manual on a rolling basis to incorporate
feedback from other events and reviewers.
UNEP also has convened a series
of regional workshops on compliance with
and enforcement of MEAs. At the time of
writing, six regional workshops had been
concluded for Asia and the Pacific, English-
Speaking Caribbean, South East Europe,
English-Speaking Africa, the EECCA
(Eastern Europe, Caucasus, and Central
Asia) Region, and Spanish-speaking Latin
American and Caribbean countries. In
addition, UNEP has disseminated the
Guidelines and Manual to developed coun-
tries around the world and sought their
feedback through a number of meetings
organized by them, such as the North
American Commission for Environmental
Cooperation and IMPEL. The final two
workshops - for Francophone Africa and
Arabic-speaking West Asia - will be held in
the first half of 2005. Following these two
workshops, UNEP will finalize the Manual,
translate it into the UN languages, and dis-
seminate it widely for use by Governments,
MEA Secretariats, and other stakeholders.3
These workshops have two pri-
mary goals. The workshops seek to build
capacity of developing countries and coun-
tries with economies in transition to use the
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
resources in the Guidelines and the Manu-
al to improve compliance with and enforce-
ment of MEAs. In this capacity, UNEP
familiarizes participants with use of the
Guidelines and Manual. In addition, MEA
Secretariats play a key role in educating
participants about best practices in imple-
menting and enforcing their respective
agreements. The workshops also facilitate
an exchange of experiences within a region
regarding how to develop, comply with,
implement, and enforce MEAs, as well as
challenges faced. In this context, partici-
pants are able to learn from the experi-
ences of countries with similar legal, social,
cultural, and economic contexts. Through
this exchange of experiences as well as
specific discussions regarding the Manual,
UNEP identifies new case studies,
explanatory text, and other ways to
improve the Manual. As such, the work-
shops have facilitated the iterative revision
and refinement of the Manual and helped to
ensure regional balance and relevance.
3 PILOT ACTIVITIES
The regional workshops have also
provided a sustained dialogue regarding
the challenges that countries face in com-
plying with and enforcing MEAs, as well as
ways that countries can (and do) meet
those challenges. It is not surprising that
limited technical, financial, and personnel
resources are a significant concern for
many countries. Nevertheless, the vast
majority of countries participating in the
workshops have had at least a few - and in
some cases, many - innovative experi-
ences in developing, implementing, and
enforcing MEAs. While resources remain a
chronic and sometimes severe challenge,
countries are developing a variety of cre-
ative mechanisms and institutions for the
implementation and enforcement of MEAs.
Due to the limited resources that
many developing countries face, the work-
shops have seen recurrent, widespread
interest in a few general themes and
approaches. These areas of priority include
strengthening the skills of their MEA nego-
tiators, development of legislation imple-
menting MEAs, and strengthening capacity
of institutions to implement and enforce
MEAs. The countries have also expressed
the importance of a few cross-cutting
themes, including synergies, cost-benefit
analysis, and public participation. For
example, there is particular interest in tak-
ing advantage of synergies among related
MEAs as a means to more efficiently imple-
ment MEA commitments.
UNEP is undertaking a suite of
pilot projects that respond to the needs and
priorities that countries have expressed in
complying with and enforcing MEAs. These
pilot projects utilize the Guidelines and
Manual in various ways, but they generally
seek to build capacity and develop innova-
tive approaches in three areas: the negoti-
ation of MEAs, the implementation of MEAs
through national legislation and regula-
tions, and the practical implementation and
enforcement of MEAs. Many of these activ-
ities emphasize synergies, particularly in
developing laws and training customs offi-
cers and judges, but also in developing
indicators of MEA implementation. A num-
ber of activities also highlight the impor-
tance of public participation in implementa-
tion of MEAs, for example in MEA negotia-
tions, in the development of national
reports, and in conducting transboundary
environmental impact assessments. The
current activities are scheduled to be com-
pleted by the end of 2005, with subsequent
activities building upon the experiences of
the pilot activities.
As noted above, there is particular
interest in implementing related MEAs
through synergistic approaches. These
synergies may be thematic, so that a coun-
try may implement a cluster of related
MEAs through a single, holistic law. For
example, UNEP is working with the Organi-
zation of Eastern Caribbean States to
develop frame harmonized legislation to
implement the Convention on Biological
Diversity (CBD), the Convention on Inter-
national Trade in Endangered Species
(CITES), the Ramsar Convention on Wet-
lands, the World Heritage Convention, and
other regional and international agree-
ments relating to biological diversity.
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MREMA, BRUCH 281
Rather than undertake five (or more) sepa-
rate legislative reforms that could yield a
patchwork of overlapping legislation, a
country can pursue a single process that
yields a more effective law that addresses
potential synergies and overlaps in a delib-
erate fashion. Moreover, the length of time
necessary to produce the larger law is gen-
erally perceived to be less than that neces-
sary to develop a series of separate imple-
menting legislation. Similar thematic clus-
ters may occur in the context of hazardous
substances and wastes, regional seas, and
atmosphere, and other UNEP pilot projects
seek to provide innovative models for syn-
ergistic implementation of MEAs in national
legislation. For example, UNEP is collabo-
rating with INECE to develop and pilot test
national compliance and enforcement indi-
cators for two clusters of MEAs: biodiversi-
ty and hazardous waste/chemicals MEAs.
Operational synergies are also
possible, particularly in capacity building.
For example, customs officers are at the
front lines in regulating trade in endangered
species, ozone-depleting substances, haz-
ardous waste, and certain chemicals. While
expert knowledge and comprehensive
training are often necessary to discern
legal from illegal trade, basic training and
awareness raising of customs officers can
go a long way in helping to identify poten-
tially illegal trade. Accordingly, UNEP,
INTERPOL, the World Customs Organiza-
tion, and the Secretariats of five (and per-
haps six) MEAs have launched the Green
Customs Initiative to build capacity of cus-
toms officers on trade-related MEAs. Other
operational synergies may be seen in
capacity building of the prosecutors and
judges, who are charged with prosecuting
and deciding cases dealing with potential
violations of national laws implementing
MEAs. As such, a general awareness of
and sensitivity to MEAs can be essential to
effective enforcement; and general training
on MEAs may be more appropriate and
cost-effective than MEA-specific training.
Ongoing UNEP pilot projects address all of
these operational synergies.
4 CONCLUSIONS
The UNEP Guidelines have proven
to be an important and timely set of tools to
assist in the implementation of MEAs. The
Guidelines have inspired initiatives to
develop other international and regional
guidelines on MEA compliance, implemen-
tation, and enforcement. Moreover, MEA
Secretariats, international and regional
institutions, NGOs, and other organizations
have undertaken a variety of measures to
promote compliance and enforcement in
recent years. For example, MEA Secretari-
ats are developing and strengthening com-
pliance mechanisms, as well as other
approaches to promote effective implemen-
tation. Countries are developing new and
innovative approaches to implementation.
The Manual captures many of these expe-
riences, within the broader framework of
the UNEP Guidelines.
There is still much work to be done
in building capacity and in developing the
specific modalities for implementing MEAs
more efficiently. Nevertheless, there are
grounds for optimism. As UNEP's regional
workshops have highlighted, developing
countries around the world have been cre-
atively meeting the challenges with innova-
tive approaches. These innovations need
to be cultivated and supported, and the les-
sons of these experiences need to be
examined for their potential relevance in
other countries and contexts.
5 REFERENCES
1 UNEP GC Special Session (SS) Decision
VII/4 (2002). The Guidelines are avail-
able in the six UN languages at
http://www.unep.Org/DEPI/programmes/l
aw_implementation.html.
2 UNEP Governing Council Special Ses-
sion Decision VII/4 (2002).
3 The draft Manual is available at
http://www.unep.Org/DEPI/programmes/l
aw_implementation.html.
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PlCOLOTTI 283
ARGENTINE CASE STUDY: USING HUMAN
RIGHTS AS AN ENFORCEMENT TOOL TO ENSURE
THE RIGHTS TO SAFE DRINKING WATER
PlCOLOTTI, ROMINA
Executive Director, Center for Human Rights and Environment, Argentina,
romina@cedha.org.ar
SUMMARY
This article exemplifies with a real case how linking environment and human rights
can be used to promote enforcement of environmental law. We start from the basis that
human rights law provides substantive and procedural elements as well as institutional
mechanisms that can be incorporated by environmental law with a view to achieving effec-
tive environmental protection.
1 INTRODUCTION
Even though the protection of the
environment has been consecrated in a
number of international instruments and
universal recognition has been achieved
concerning the need to act in certain areas
to prevent the destruction of the Earth, this
protection has been based more on rheto-
ric and good will rather than on enforceabil-
ity. International environmental law has not
provided the mechanisms necessary for
individuals to legally claim the fulfillment of
the obligations assumed by States in envi-
ronmental treaties. We understand by envi-
ronmental enforcement, the ability to claim
before a judge the fulfillment of obligations
and the realization of rights that concern
the protection of the environment.
For its part, international human
rights law has been able to advance signif-
icantly with respect to enforcement. Inter-
national justice forums have been created
to which individuals can resort in order to
demand that States fulfill their obligations
and achieve the realization of rights that
are included in human rights treaties. Like-
wise, international human rights law has
succeeded in penetrating into the States'
domestic legislation through legislative
reforms that recognize and promote its
application by local tribunals.
Environmental and human rights
law have essential points in common that
enable the creation of a field of cooperation
between the twoi:
— Both disciplines have deep social roots;
even though human rights law is more
rooted within the collective conscious-
ness, the accelerated process of envi-
ronmental degradation is generating a
new "environmental consciousness".
— Both are purposeful legal systems with
objectives of universal consent and of
variable content, open to reality and
social changes. The contents of both
disciplines need be adapted to dynamic
social processes, their normative corpus
must meet the needs of each social era,
with the objective of fulfilling its protec-
tive ends.2
— Internationalization. The international
community has assumed the commit-
ment to observe the realization of
human rights and respect for the envi-
ronment. From the Second World Wars
onwards, the relationship State-individ-
ual is of pertinence to the international
community. On the other hand, the phe-
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
nomena brought on by environmental
degradation transcend political bound-
aries and is of critical importance to the
preservation of world peace and securi-
ty. The protection of the environment is
internationalized, while the State-Planet
Earth relationship becomes a concern of
the international community.
— Universalization. Both areas of law tend
to universalize their object of protec-
tion. Human Rights are presented as
universal and the protection of the envi-
ronment appears as everyone's
responsibility.
The advancement of the relation-
ship between human rights and the envi-
ronment would enable the incorporation of
human rights principles within an environ-
mental scope, such as anti-discrimination
standards, the need for social participation,
protection of vulnerable groups, etc. At the
same time, the human rights system would
be strengthened by the incorporation of
environmental concerns, enabling the
expansion of the scope of human rights
protection and generation of concrete solu-
tions for cases of abuses.4 Finally, one of
the most important consequences, is to
provide victims of environmental degrada-
tion the possibility to access to justice.
Given the present situation of absolute
helplessness suffered by victims of envi-
ronmental degradation, linking human
rights and the environment brings such vic-
tims closer to the mechanisms of protection
that are provided for by human rights law.
The linkage between human rights
and the environment reveals itself clearly
and irrefutably. Environmental degradation
severely affects the use and enjoyment of
most internationally recognized human
rights. Thus, for example, the right to life
and to health, are critically affected by
problems of environmental degradation^
the right to equality before the law is affect-
ed by the disproportionate way in which
certain sectors of the population bear envi-
ronmental burden (environmental discrimi-
nation), the right to work is affected by envi-
ronmental conditions in the work place, the
right to property is affected by environmen-
tal degradation, etc.e
Experience in the human rights
arena has shown that the way to make
rights effective is to promote their enforce-
ment. It is timely to consider which are the
elements that made possible advances on
the enforcement of human rights and
whether these can be applied to environ-
mental law.
The first element stems from the
recognition that human rights are funda-
mental rights: the possibility of social
cohabitation is given by the existence of
norms and principles that imply the concep-
tion of immutable values, of limits that can-
not be transgressed, of norms that are
internalized within the collective conscious-
ness as unyielding pillars not subject to
controversies. Human rights are the
trustees of this solid normative nucleus.
The second is the general consent
as regards these rights, which implies their
legal crystallization at an international scale
through treaties and declarations with uni-
versal vocation and their hierarchical con-
stitutional incorporation into the domestic
judicial systems of States.
The third element resides in the
possibility given to individuals to access
justice in order to claim for the enforceabil-
jty of these norms and the application of
specific substantive and procedural human
rights principles in concrete cases. This
access to justice is in itself a human right,
of which people cannot be deprived.
When these elements of enforce-
ment are applied to the scope of environ-
mental law, it is possible to sustain, as
regards the first of these elements, that the
environmental crisis threatens the viability
and quality of life on the planet. The funda-
mental nature of this problem is irrefutable.
This has generated the universal consent
necessary to elevate the protection of the
environment before international public
law. Hence, the right to a healthy environ-
ment is beginning to be recognized as a
human right.7
The second element pertaining to
enforcement in human rights appears in
environmental law in the sense that, most
constitutions that have been recently
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PlCOLOTTI 285
reformed incorporate the protection of the
environment, hence, assigning this protec-
tion constitutional hierarchy. 8
It is the third element, dealing with
access to justice that has not yet been
completed in the area of environmental
law; it prevents its enforcement, and thus,
the full force and effectiveness of environ-
mental law. In the case that follows we
used a human rights strategy to strengthen
the access to justice of environmental vic-
tims and to ensure environmental law
enforcement.
In a research program studying the
dimensions of poverty, human rights and
environment, [Center for Human Rights
and Environment] (CEDHA) [identified] the
lack of access to safe drinking water in out-
lying poor neighborhoods as a critical prob-
lem of the city of Cordoba, Argentina. Local
research took place over a two year period,
targeting specific geographical areas
around Cordoba, characterized by high lev-
els of poverty. The study disclosed that the
lack of access to safe drinking water is. a
common and recurring problem in the poor-
est communities of the local population.
The problem has four principal
dimensions:
1. The lack of access to the local water dis-
tribution gridmap;
2. The contamination of water distributed
by the existing local network, principally
due to lacking state control over the con-
tracted cooperative providers who are
charged with providing water to poor
communities;
3. The contamination of subterranean
waters, principally due to lacking sanita-
tion infrastructure, and contaminated
water spillover from homemade sanita-
tion systems (household water pits);
4. Contamination of home water storage
tanks, principally caused by inadequate
covers, poor maintenance and hygiene,
lacking regular controls, atmospheric
contamination due to the nearby use of
agro-pesticides and chemicals in high
population density areas, the presence
and use of nearby incinerators of patho-
genic waste, crematories, or other indus-
trial pollution.
Considering that we have a favor-
able judicial system and framework that
recognizes human rights as having consti-
tutional hierarchy on health, an adequate
standard of living, the right to food, and the
right to a healthy environment^ and the
great need for the State to perceive the
problem of access to safe drinking water as
a human rights problem, Center for Human
Rights and Environment, Argentina decid-
ed to begin to litigate leading cases
addressing the various dimensions of the
problem in the city of Cordoba.
The criteria Center for Human
Rights and Environment, Argentina uses to
select cases are: population density, the
degree of poverty; existing lack of access
to safe drinking water; proximity to the dis-
tribution public water gridmap; social
organization of the affected community;
judicial viability of the case.
The principal obstacles encoun-
tered were: the lack of tradition in the court
system to enforce these rights, the limited
capacity of the judicial sector to believe in,
or feel they can influence public policy deci-
sions, the economic crisis of the country, as
well as of the provincial and municipal gov-
ernment.
2 FACTS OF THE CASE
The present case addresses the
lack of access to safe drinking water in
three poor neighborhoods in the city of Cor-
doba, which are not included in the public
water gridmap, and whose subterranean
home water pits are highly contaminated
with fecal matter, nitrates and nitrites.
The affected neighborhoods are:
Chacras de la Merced, Villa la Merced, and
Cooperativa Unidos with a population of
approximately 4,500. Of these, 49% are
women, and 51% men. Average female
age is 27, male, 25. Approximately 43% are
minors of less then 17, and nearly 5% are
persons above the age of 64. Approximate-
ly 30% of the neighborhoods population is
actively employed, while unemployment
surpasses 23%. The average household
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
monthly income (in families with at least
one employed member) is US$175. The
level of illiteracy is nearly 3%.1°
Towards the end of the 1960s, the
city built a Sewer-Water Treatment Facili-
ty11 (called the EDAR Bajo Grande) on the
coasts of the Suquia River, two kilometers
upstream from Chacras de la Merced com -
munity, which predates construction of the
facility some 30 years. Chacras de la
Merced borders with Villa la Merced and
Cooperativa Unidos communities. The
EDAR facility was inaugurated in 1987,
under municipal control, with the capacity
to treat 120 thousand cubic meters/hour of
sewer water.
Due to the continued growth of the
city of Cordoba, the municipality continued
authorizing new sewage connections,
increasing the volume of sewer water going
into the plant. As a consequence, the plant
today, has two extremely urgent problems:
the first has to do with the lack of basic
product supplies to treat the sewer water
and the lack of maintenance. The plant is
currently operating at 70% of capacity, due
to these limitations; the second problem,
has to do with the quantity of flow of sewer
water into the plant. Assuming the plant
were functioning at 100% capacity, it can
only treat 120,000 m3/hr, and at present,
the plant receives on average between
140,000 andl50,000 m3/hr. This suggests
that the plant is receiving between 600,000
and 800,000 liters of sewage water that it
cannot treat, not even if it were to operate
at 100% capacity.
The large gap between the quanti-
ty of incoming liquid and the ability of the
facility to treat it, results in direct daily spills
of untreated sewerage water into the
Suqufa River.
In July of 2003, a representative
from CEQUIMAP laboratory^, arrived at
Chacras de la Merced, by invitation of Cen-
ter for Human Rights and Environment,
Argentina, to take five water samples from
the community. The fecal bacterial content
(coliformes fecales) of the river down-
stream from the plant, shows a 40-fold
increase with respect to the river water
sample taken upstream from the plant.
The tests taken from homes in the
community are also testimony of severe
contamination with fecal mater, with
increasing contamination directly propor-
tional to the proximity of the home to the
plant. Some of the tests show up to 2000
fecal coliformes. The World Health Organi-
zaiton (WHO) establishes that there should
be no presence of fecal coliformes in water
destined for human consumption.
3 LEGAL STRATEGY
The legal strategy chosen in the
case parallels Center for Human Rights
and Environment, Argentina's general legal
strategy, grounded in the objective of
enforcing Economic, Social and Cultural
Rights (ESCRs). Center for Human Rights
and Environment, Argentina is working to
create the relevant favorable environmen-
tal jurisprudence that would permit the con-
tinuous advancement towards the com-
plete enforcement of all ESCRs. In this
manner, we distinguish violated rights from
rights chosen for their enforcement. At
present, while the contamination of the
water source resulted in the violation of
multiple human rights, we chose only cer-
tain rights upon which to claim for judicial
enforcement, including, the right to safe
drinking water, the right to a healthy envi-
ronment, the right to health, and the right to
an adequate standard of living.
Center for Human Rights and Envi-
ronment, Argentina chose to present an
injunction (in Spanish, amparo) based on
two main criteria and with a view to expe-
dite the process as much as possible.13
The case was limited mainly to secure safe
drinking water for the affected parties, as
well as to immediately cease contamination
of the Suquia River.
The action was filed against the
Provincial State, as well as against the
Municipality of Cordoba. The action against
the State was based on its obligation to
ensure that the water of the River Suquia
be suitable for human and industrial con-
sumption, and for its obligation to provide
direct or indirect access to safe drinking
water to the public and in conformity with
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PlCOLOTTI 287
internal legislation. The action against the
municipality centered on the injurious and
treacherous nature of the environmental
degradation and its consequences on peo-
ple. This strategy permitted us to broaden
the range of potentially responsible parties
for the violation of rights, holding these
accountable in differentiated but collective
terms. The State, we argued, is the guaran-
tor of human rights, irrespective of the inter-
nal structure it might chose to adopt.
Likewise, this approach permitted
us to capitalize on existing and ongoing
internal conflict between the municipality
and the province. Instead of the two politi-
cal levels claming innocence in the matter,
they proceeded to fingerpoint responsibili-
ties at one another. Nevertheless, this dual-
ity and conflict between political levels
which at one state of the case was favor-
able, became problematic at the moment of
executing the court order, as the political
differences created significant barriers to
carrying out the sentence.
As part of the judicial strategy,
Center for Human Rights and Environment,
Argentina requested the presence of the
affected communities at multiple stages of
the process, an unusual practice in injunc-
tion filings which exerted strong political
pressure on all of the parties involved. The
filing was made by Center for Human
Rights and Environment, Argentina jointly
with four community residents, which also
lent their homes for the mentioned water
sampling.i*
The strategy involved utilizing the action as
a political pressure mechanism, with the
objective of opening a Pandora's box of
subsequent thousand+ filings from other
affected community members, in the case
that the first action did not result in a per-
manent solution to the access to safe drink-
ing water problem.
In the end, the case was sustained
with evidence coming primarily from the
State's own reports on the functioning of
the Treatment Facility and the levels of con-
tamination of the Suquia River.
The following international human
rights legislation were evoked in the case
filing: The Universal Declaration of Human
Rights, the International Covenant on Eco-
nomic, Social and Cultural Rights^, and
the Convention of the Rights of the Child.
3.1
The Sentence
The case was resolved in the first
instance. The judge decided: to accept the
standing of the NGO (CEDHA) and the 4
affected residents; that the State was
responsible in violating the rights to a
healthy environment, to an adequate living
standard, to access safe drinking water,
and the right to health. It also recognized
the human right to safe drinking water,
implied by the right to health. The judge
explicitly cited the Universal Declaration of
Human Rights, the International Covenant
on Economic, Social and Cultural Rights,
and General Observation Number 15. He
also recognized the immediacy with which
the State must address the environmental
situation, and that this requires the utmost
diligence with a view to avoid irreversible
damage to the ecosystem and as a conse-
quence, to those individuals who inhabit
the mentioned environment. He also recog-
nize[d] that "the environment is not only a
collective good, without requisite sine qua
non for [the existence of people], due to
which it is an individual patrimony and at
the same time, a collective one, with impli-
cations for present and future generations,
for which not only must we act in defense of
present values, but in the name of future
persons and environmental values".
With respect to the judicial enforce-
ment of these rights, he stated that "while it
is good that in a State of rule of law...that a
Judicial entity not conduct activities of the
responsibility of the Parliament or Presi-
dency, the discretionary and privative com-
petence of an organ of the State have lim-
its, and that the action of the Judiciary
power, faced with the degeneration of
those responsibilities, does not imply an
invasion of one power over another, but
rather the framing of public authority to
uphold the Constitution and the law.
Finally, the sentence order[ed]:
"that the municipality of Cordoba adopt all
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
of the measures necessary relative to the
functioning of the EDAR Bajo Grande, in
order to minimize the environmental impact
caused by it, until a permanent solution can
be attained with respect to its functioning;
and that the Provincial State assure the
injunction filers a provision of 200 daily
liters of safe drinking water, until the appro-
priate public works be carried out to ensure
the full access to the public water service,
as per decree 529/94." Case costs are
awarded to the plaintiff.
3.2
Execution of the Sentence
We achieved, within the process,
that the municipality present an "integral
sewage plan" in which US$1.75 million
shall be invested for rehabilitation of the
existing infrastructure, and US$6 million to
increase plant capacity. We requested for-
mal clarification of the sentence so that the
Judge precisely orders the measures nec-
essary relative to the functioning of the
plant, in order to minimize the environmen-
tal impact produced by it, until a permanent
solution is reached, specifying activities
and their implementation timeframe.
In December 2004, the Province of
Cordoba commenced public works on the
perforation of new water pits, construction
of new water storage facilities, the installa-
tion of a new hydro-powered tank, as well
as the necessary piping to channel water to
the neighborhoods, which will eventually
provide permanent access to safe drinking
water to Chacras de la Merced, Cooperati -
vas Unidos, and Villa la Merced. The
municipality has promised to provide the
necessary pipes for home connections.^
Construction work is expected to end in
March 2005.
4 CONCLUSION
The request for the provision of
permanent access to safe drinking water is
not merely the simple request of the provi-
sion of a public service. It is rather, found-
ed in the will to assure the full realization of
human rights to health, food, an adequate
standard of living, and a healthy environ-
ment. The judge of the case, wisely, poised
himself as the guarantor of the human
rights of the residents of these neighbor-
hoods. We believe that this sentence
makes an important step towards the judi-
cial enforcement of these rights.
5 REFERENCES
1 See A.A. Cancado Trindade, "The Paral-
lel Evolutions of International Human
Rights Protection and Environmental
Protection and the Absence of Restric-
tions upon the Exercise of Recognized
Human Rights", in the Inter-American
Institute of Human Rights Magazine, No.
13, January-June 1991.
2 Alexandra Kiss, Definition et nature
juridique d'un droit de I'homme 3 I'envi -
ronnement, en Environnement et droits
de I'homme, Pascal Kromarek, directrice
de publication, 1987
s Michael J. Kane, Promoting Political
Rights to protect the Environment, THE
YALE JOURNAL OF INTERNATIONAL
LAW, Volume 18, Number 1, pgs.389-
390
4 Michael R. Anderson, Human Rights
Approaches to Environmental Protection:
An Overview in Alan E. Boyle & Michael
R. Anderson, Eds., HUMAN RIGHTS
APPROACHES TO ENVIRONMENTAL
PROTECTION 1-4, 21-23 (1996).
s It has been estimated that roughly 60 per
cent of the global burden of disease from
acute respiratory infections, 90 per cent
from diarrhea disease, 50 per cent from
chronic respiratory conditions and 90 per
cent from malaria could be avoided by
simple environmental interventions.
World Health Organization. 1997. Health
and Environment in Sustainable Devel -
opment: Five Years after the Earth Sum -
mil Geneva: World Health Organization
6 Judge Weeremantry from the Internation-
al Court of Justice makes a reflection in
this vein: The protection of the environ-
ment is ... a vital part of contemporary
human rights doctrine, for it is a sine qua
non for numerous human rights such as
the right to health and the right to life
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PlCOLOTTI 289
itself. It is scarcely necessary to elabo-
rate on this, as damage to the environ-
ment can impair and undermine all the
human rights spoken of in the Universal
Declaration and other human rights
instruments. Gabcikovo-Nagymaros
Case (Hungary-Slovakia), ICJ, Judgment
of Sept. 25,1997 (Sep. Op. Judge Weer-
mantry) at 4.
7 The Additional Protocol to the American
Convention on the matter of Economic,
Social, and Cultural Rights "Protocol of
San Salvador "in force since December
16th of 1999, in its article 11 recognizes:
"1. Every person has the right to live
in a healthy environment and to be
provided with basic public services.
2. The State parties will promote the
protection, preservation, and
improvement of the environment."
The African Charter of Human Rights, in
force since 1986, in its article 24 recog-
nizes: "every person has the right to a
satisfactory and favourable environment
for his development" la traduccion nos
pertenece]
8 This is reflected in most of the constitu-
tions in the region that recognize the
importance of the environment: constitu-
tion of Bolivia of 1967 (article 137), con-
stitution of Brazil of 1988 (article 225),
constitution of Chile of 1980 (article 19),
constitution of Colombia of 1991 (articles
8,49, 79,80,86, and 88), constitution of
Cuba of 1992 (articles 11 and 27), consti-
tution of El Salvador of 1983 (article 69),
constitution of Ecuador of 1983 (article
19), constitution of Guatemala of 1985
(article 97), constitution of Guyana of
1980 ( articles 25 and 36), constitution of
Haiti of 1987 (articles 253 and 258), con-
stitution of Honduras of 1982 (article
145), constitution of Mexico of 19178
(article 25), constitution of Nicaragua of
1987 (articles 60 and 102), constitution of
Panama of 1980 (article 110), constitu-
tion of Paraguay of 1967 (article 132),
constitution of Peru of 1993 (article 2 inc.
22), constitution of Uruguay of 1997 (arti-
cle 47), constitution of Costa Rica (arti-
cles 468 and 508).
s The National Constitution incorporates 11
human rights treaties with Constitutional
hierarchy, including: the Covenant on
Economic, Social and Cultural Rights,
the Universal Declaration on Human
Rights, and The Convention on the
Rights of the Child.
10 Stats from "Perfil de la Pobreza en Cor-
doba", SEHAS.
11 Henceforth "plant" or "facility".
12 A laboratory of the National University of
Cordoba.
13 No more expedient judicial remedy
exists.
i4 We carefully chose those sites where we
could clearly construct solid evidence of
the contamination of the Suqula River by
the plant and the high degree of contam-
ination of the home water pits. For exam-
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290 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
pie, we took samples from the River
before and after the plant, and in one of
the local schools of one of the neighbor-
hoods, where approximately 300 chil-
dren attend school, eat and drink water
daily from a local water pit.
15 Henceforth the ESCR Covenant
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PRATT, MAURI 291
ENVIRONMENTAL ENFORCEMENT AND COMPLIANCE
AND ITS ROLE IN ENHANCING COMPETITIVENESS
IN DEVELOPING COUNTRIES
PRATT, LAWRENCE1 and MAURI, CAROLINA2
1 Associate Director, Latin American Center for Competitiveness and Sustainable
Development, INCAE, Costa Rica, Lawrence.Pratt@incae.edu
2 President, EcoConsulta, Costa Rica, caromauri@racsa.co.cr
SUMMARY
There is strong evidence that improved environmental performance is positively
correlated with increased competitiveness. The article explores the implications of this rela-
tionship to emerging policy frameworks in developing countries and describes the role of
enforcement and compliance in promoting competitiveness. The article concludes by pre-
senting a "laundry list" of attributes of an environmental regime capable of enhancing com-
petitiveness.
1 PERCEPTIONS OF ENVIRONMENT
AND COMPETITIVENESS
Historically, in developing regions
such as Latin America, many in the private
sector (as well as in government) have
believed that improving environmental per-
formance has only negative effects on the
countries' ability to improve competitive-
ness. The traditional view argues that:
increased costs to firms to upgrade tech-
nology and treat externalities hurt firm level
cost-competitiveness in the international
marketplace, stringent national environ-
mental standards encourage companies to
invest in countries with less stringent stan-
dards, the costs to governments of enforc-
ing environmental legislation could be bet-
ter used elsewhere, and, improved environ-
mental performance is a "luxury" for wealth-
ier countries that poor countries cannot
afford.
While there is a certain logic to the
arguments, and in certain cases all can be
true, the experience of firms and countries
over the past decade has led to deeper
understanding of how environmental per-
formance relates to the more traditional
economic policy goals of nations - such as
furthering trade relationships and improv-
ing firm competitiveness. This new experi-
ence has shown that the issues are much
more complex than we had imagined, and
that the traditional view is, at a minimum,
overly simplistic, and at the limit largely
incorrect in the context of most developing
countries.
We now know that there are strong
positive relationships between good envi-
ronmental performance and increased
country and firm competitiveness. These
newly understood relations have important
implications for integrating environmental
policy (and its effective implementation and
enforcement) across many aspects of
national policy-making and programs. The
following three sections of the paper attempt
to articulate the arguments for the positive
relationships. The two following sections
examine in more detail the potential role of
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
E&C [enforcement and compliance] strate-
gies and programs and considerations for
developing country policy-makers.
2 FIRM LEVEL COMPETITIVENESS
At the firm level, there are clear
links between higher levels of environmen-
tal performance and improved competitive-
ness. Many are well known and well-docu-
mented, others are anecdotal or simply
believed by business peopje and
researchers to be relevant, pending more
empirical research.
First, the cost differential between
environmentally "sound" and environmen-
tally "unsound" products is a relatively
small component of the cost structure for
most companies. In the United States,
arguably the country with the most expen-
sive environmental regulatory system with
which to comply, the average costs of com-
pliance with all environmental regulation
has been estimated at less than one per-
cent of total costs.
Second, producing with less waste
is usually more profitable. Waste products
are, by definition, raw materials that enter
into a process which are not used in the
final product. Eliminating the waste
streams by incorporating them into the
product, reusing them or recycling them are
always more profitable alternatives to treat-
ing the product for disposal (and usually
more profitable than throwing the product
away untreated)....
2.1 New Understanding
of Opportunities
The other manner in which the tra-
ditional view of environmental costs is
being challenged is through increasing
opportunities for realizing market value
from improved environmental performance.
Globalization, increased connectivity, and
changes in stakeholder expectations of
firm's behavior are creating opportunities
for firms to increase value for consumers,
business customers and investors. (Pratt
2000, SustainAbility 2002).
2.1.1 Relating to Firm Business
Opportunities
2.1.1.1 Efficiency
As discussed above, there are very
good opportunities for firms to invest in
making their production processes more
efficient, and their products more valuable
per unit of energy and raw materials usage.
Investments in energy and material effi-
ciency can be highly profitable and can
increase long-term competitiveness for
many firms. In developing countries, partic-
ularly those of Latin America, there are out-
standing opportunities for investment. High
costs of capital (due to macroeconomic fac-
tors), a historic scarcity of investment capi-
tal and a tradition of relatively closed
economies (limiting much cost competition)
have led to underinvestment in new tech-
nology and allowed processes to be con-
siderably less efficient than global competi-
tors. As these economies open there will be
increasing need to improve efficiency and
ample opportunities to move to cleaner,
more-efficient production technology. For-
tunately, greater macroeconomic stability
should allow investment costs to be more
manageable permitting increased invest-
ment.
Enforcement and Compliance pro-
grams can play an important role in improv-
ing efficiency in a number of circum-
stances. Where regulatory systems push
firms toward higher levels of performance
(such as more stringent effluent stan-
dards), Enforcement and Compliance pro-
grams can be structured to allow compa-
nies to pursue a variety of options for
achieving the regulatory goals. For exam-
ple, gains in process efficiency are almost
always competitiveness enhancing while
investments in pollution control technology
rarely are. Another important area is in
advancing environmental goals in sectors
that are highly competitive locally. There
are many cases where many actors in a
given industry all want to pursue more envi-
ronmentally-sound production paths, but
no single actor is willing to go first for fear
of the others gaining an advantage by not
following the same path.1
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PRATT, MAURI 293
2.1.1.2 Adapting to trends toward more
environmentally sound products
Trends in consumer markets and
"business to business" markets are reward-
ing firms with environmentally superior
products and services and increasingly
rejecting products that are lacking in certain
attributes. For example, in markets for
foodstuffs, organic and other "sustainable"
agricultural products are growing rapidly as
market segments. Organic sales alone rep-
resent over $20 billion of sales in each'the
US and Europe, and now account for about
2% of the total food market. While still rela-
tively small, historic growth rates of around
20% per year (versus less than 2% for con-
ventional foodstuffs) make it a very inter-
esting market. Developing countries have
outstanding potential to take advantage of
these opportunities (due to lower labor
costs, and frequently favorable climatic
conditions).
In business to business relations,
entire industries are moving to ensure that
their products incorporate environmental
aspects. The ISO14001 environmental
management systems standard has proven
to be the preferred vehicle for "B to B" envi-
ronmental relationships. ISO14001 is now
a "de facto" requirement for most of the
value chains supplying the electronics and
automobile industries and will likely take on
similar importance in other industries.
Trends in forestry products (for
sustainably managed timber sources) and
fisheries (for more responsible capturing
practices) and a number of other industries
are indicative of the strength of these
trends.
2.1.1.3 Innovation
There is strong evidence from a
number of industries of increased product
and process innovation emerging as a
result of stringent environmental standards.
There is little doubt that the suc-
cess of industries such as the air emissions
reduction industry that emerged in Califor-
nia was a direct result of a "home-grown"
response to that state's stringent air emis-
sions standards. Similarly, it is clear that
Sweden's domination of the cellulose pulp
processing industry is due to the extremely
efficient production machinery developed in
Sweden to meet that country's demanding
air, water and waste standards.
The relevant point for Enforcement
and Compliance programs in this area is
that compliance, per se, does not stifle
innovation. However, it is clear that regula-
tory regimes can either stifle [or] encourage
innovation depending on a number of char-
acteristics discussed later in the paper.
2.1.2 Relating to Stakeholder Issues
Perhaps the greatest change in the
environment-competitiveness relationship
has been the increasing number of different
stakeholders taking an interest in firm-level
performance. Increased awareness of the
negative consequences of poor environ-
mental performance, increased speed of
communications, and increased empower-
ment of communities and civil society in
general have led to greater interest and
involvement, and have increased the risks
of weak environmental performance. Much
of the risk is tied to the effectiveness of a
country's regulatory system and its
Enforcement and Compliance mecha-
nisms.
Social license to operate/
Avoidance of direct action
Enforcement and Compliance play
a critical role in this sphere. Fair and con-
scientious application of environmental
standards strengthens the legitimacy of a
regulatory regime. If rules are unclear or
not clearly understood, Enforcement and
Compliance can "save the day" by stepping
in to clarify the conflict. Conversely, where
rules are clear failure of an Enforcement
and Compliance effort to lead to a just out-
come (or a perceived just outcome) can
undermine confidence and negate the
effectiveness of the regulatory system.
2.1.2.2 Regulatory risk
Without clear and clearly enforced
standards (particularly regarding emissions
parameters), firms face a great deal of risk.
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Citizen complaints or arbitrary or capricious
action by officials can lead to sanctions (in
Latin America temporary closure is the
most common sanction). A more sophisti-
cated and stable system increases pre-
dictability and transparency and greatly
reduces the risk of regulatory action.
Enforcement and Compliance is the inter-
face between the rules themselves and the
firms that are obliged to implement them. If
this function is fulfilled in a consistent and
transparent way, firms benefit from lower
costs (they understand what is expected of
them and focus on that) and lower risk (of
misunderstandings or arbitrary actions).
2.1.2.3 Risk for financiers
Enforcement and Compliance pro-
fessionals should consider strategies for
working with the financial sector to help
finance practitioners understand the obliga-
tions their clients face and determine
strategies for ensuring that risks to the
company (and by extension their finan-
ciers) are managed effectively.
2.1.3 Evidence
The most compelling support for
positive links between environmental per-
formance and firm level competitiveness
come from changes evident in the financial
markets. Today, roughly one seventh of all
globally invested funds include specific
exclusions (called "filters" or "screens") for
a number of sectors seen as objectionable
or "unethical" (such as arms, nuclear ener-
gy, tobacco, gambling). This is in response
to demand from individual and institutional
investors (such as pension funds) who pre-
fer not to have their savings and invest-
ments used to finance those industries.
From 1996 to 1999 total assets in
"screened" funds grew 80% during the past
three years, compared to just over 40% for
the rest of the market. (Social Investment
Forum 1999)
A number of financial organizations
are testing the theory that sound environ-
mental performers are also superior finan-
cial performers by building mutual funds
that include only companies that pass rela-
tively high "filters" for environmental and
social performance. Because these funds
are new and relatively small (total market
capitalization of all the funds is only US$1
to US$2 billion), it is too early to draw con-
clusions, but results thus far are encourag-
ing. A1998 comprehensive review of these
funds showed that they were performing
well against established benchmark index-
es. (Ganzi 1998) Most of the funds also
showed a much faster rebound from the
stock market crash of 2000 and 2001
(author's review). A detailed study by
ABN/AMRO, a leading Dutch financial insti-
tution concluded that while the case cannot
yet be made for superior performance of
sustainability-based investment funds, per-
formance is at a minimum as good for eth-
ically oriented portfolios including environ-
mental ones. (ABN/AMRO 2001)
As noted previously, most of the
data to support links between superior
environmental performance and improved
competitiveness are based on industry
observations and case studies. However,
empirical research on environmental per-
formance and capital markets shows that
the most successful and valuable multina-
tional firms are those that adhere to the
highest environmental standards.(Dowell
and Hart 1998) The authors researched the
relationship between firm value creation
and the stringency of internal company
environmental standards for over 500 pub-
licly traded, U.S.-based multinationals in
non service sectors. The study found that
multinationals that have internal worldwide
standards higher than any individual coun-
tries' standards are those with the highest
levels of value creation. In contrast, firms
that adhere to the lowest standards in the
countries in which they operate are those
with the lowest value.
3 TRADE AND ENVIRONMENT
Nearly every developing country in
the world is pursuing economic strategies
that feature export-led economic growth.
Environmental performance is critical in at
least two dimensions of these economic
strategies.
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PRATT, MAURI 295
3.1 Import Requirements and
restrictions
Most industrialized countries
already have in place stringent rules
regarding the environmental attributes of
products entering their borders (limitations
on chemical residues, types of plastics
used, even packaging materials). In addi-
tion, international trade rules allow coun-
tries to restrict imports of products that are
produced using certain processes that are
deemed harmful (such as those that harm
endangered species). To realize the poten-
tial from export-led growth, countries (and
companies operating in them) must ensure
that their products meet both the standards
required by the destination market as well
as those conditions established by export-
ing country. In addition, they must pay
increasing attention to the manner in which
export products are harvested and pro-
duced to ensure adherence to more strin-
gent process-based requirements.
For the natural resource-based
economies of most developing countries,
this issue underlines the importance of reg-
ulatory programs and sound Enforcement
and Compliance initiatives in areas such as
agricultural chemicals and pesticides,
marine and coastal resources (particularly
marine mammals, turtles, wetlands and
mangroves), and endangered species pro-
tection. A limited number of "problems"
identified in industrialized countries can
ruin an entire industry, even if the failures
are from only one firm. For example,
Guatemala's berry industry has been
destroyed twice in the past ten years due to
an embargo on exports to the United States
(imposed by the U.S. due to Guatemala's
failure to adequately manage chemical and
biological risks affecting the berries' quali-
ty). In both cases, more serious attention to
chemical use and biological contamination
would have eliminated the problem. A small
number of containers of Chilean grapes
found to have unacceptably high levels of
pesticide for the U.S. market led to an
embargo of all Chilean grapes for a lengthy
period.
Other cases can be found, and
trade rules at an international level are
moving toward allowing countries greater
latitude to restrict imports based on unde-
sirable environmental criteria. (USD 2002)
Tropical timber is an interesting example.
Due to an agreement of the International
Tropical Timber Organization, international
trade rules now allow any WTO member
country to prohibit the importation of wood
or wood products that are not certified as
coming from sustainable sources. While it
is not yet in any country's interest to exer-
cise this right, WTO rules allow the restric-
tion to be implemented at any time. The key
for developing countries to protect their tim-
ber exports is to put in place programs
(with appropriate compliance assurance
mechanisms) that promote sustainable for-
est management and reduce the likelihood
of any of their exports being rejected for
lack of certification.
3.2 Trade Policy and Strategy
Most developing countries are pur-
suing closer trading relationships with the
U.S. and Europe, primarily in the form of
free trade agreements. In the case of the
United States in particular it is clear that
environmental issues are a critical compo-
nent of reaching the agreement. Concerns
in the United States regarding trading part-
ners' environmental and labor performance
are considered to be the most serious polit-
ical obstacles to furthering trade agree-
ments.
The North American Free Trade
Agreement (NAFTA, between the U.S.,
Canada and Mexico) included an entire
parallel agreement obliging the countries to
undertake a wide variety of activities to
strengthen environmental performance,
resource management, and cooperation.
This agreement is largely responsible for a
wholesale change in Mexico's environmen-
tal laws, regulations and approach toward
more sound environmental management.
Both the obligations of the agreement and
a sophisticated understanding of the com-
petitive implications of environmental per-
formance for Mexican exporters have led to
dramatic improvements in many areas.
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Responsible environmental stan-
dards and the ability and will to enforce
them are part of the "price of admission" to
closer trading ties with the U.S. It is clear in
all of the post-NAFTA trade agreement
processes (with Chile, Singapore, Jordan
and the Central American nations) that the
U.S. expects all of its trading partners to
have in place laws, rules, administrative
structure and Enforcement and Compli-
ance programs necessary to ensure
responsible environmental performance,
and that it will sanction its trading partners
if their enforcement and compliance sys-
tems do not ensure that the rules are fol-
lowed.
Enforcement and Compliance's
role is critical. The United States in particu-
lar looks frequently to Enforcement and
Compliance indicators to assess whether
or not countries are taking appropriate
action to ensure compliance with the envi-
ronmental laws and regulations. For this
reason, Latin American countries' Enforce-
ment and Compliance programs will likely
be in the "spotlight" of any potential dis-
agreements or disputes.
4 BUSINESS CLIMATE
Each year since 1992, the World
Economic Forum has published annual
assessments of countries' competitiveness
including rankings. In 1997, the WEF
began including a number of environmental
variables in recognition of an emerging
understanding of the relationship between
environmental performance and the devel-
opment path of countries.
Today, the WEF environmental
determinants of business climate and the
subsequent rankings comprise one of the
11 "chapters" of the analysis and rankings.
The issues assessed, analyzed and ranked
are:
— Stringency of air, water, waste disposal,
chemical and overall environmental reg-
ulation.
— Speed of adoption and enacting of envi-
ronmental rules.
— Level of government priority to enacting
international environmental regulations.
— Flexibility offered by system and author-
ities to meet required obligations.
— Consistency and fairness of environ-
mental enforcement.
— Perceptions of effect of compliance on
firm competitiveness.
— Extent of public-private cooperation to
reach environmental gains.
— Prevalence of environmental manage-
ment systems.
The critical issue for policy-makers
is that a very "mainstream" business policy
organization is completely convinced of the
positive linkages between environmental
performance and a healthy competitive
business climate. Countries seeking to
improve their ranking (which is seen inter-
nationally as an important barometer of
economic development potential) will need
to take these criteria into account when
working to strengthen their business cli-
mate.
A 2001 analysis of the results of
the indicators reached an important conclu-
sion:
"the quality of a nation's environ-
mental regulatory regime is strongly and
positively correlated with its competitive-
ness.." (page 95) and continues:
"The analysis provides consider-
able empirical evidence that cross-country
differences in environmental performance
are associated with the quality of the envi-
ronmental regime in place. We find that the
rigor and structure of the environmental
regulations have particular impact, as does
emphasis on enforcement."
For developing countries, this pro-
vides a very strong competitiveness and
business-climate case for advancing more
stringent regulatory structures, and for
developing much greater capacity to
ensure compliance with established laws
and regulations.
It is important to note that Enforce-
ment and Compliance plays a direct or indi-
rect role in nearly every one of the key envi-
ronmental business climate factors. Some
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PRATT, MAURI 297
are direct - such as perceived consistency
and fairness, and the level of public and pri-
vate cooperation. Others are indirect - for
example, the stringency of regimes (in par-
ticular in developing countries stringency is
very much related to actions taken by
Enforcement and Compliance programs),
flexibility, and perceived benefits on com-
petitiveness.
5 THE ROLE OF ENFORCEMENT
AND COMPLIANCE IN
PROMOTING COMPETITIVENESS
There is strong evidence that
improved environmental performance is
positively correlated with increased com-
petitiveness. Further, we understand from
experience in both rich countries and
developing countries that environmental
performance in the economy in general is
largely a function of stringency of the envi-
ronmental regulatory regime and of the
seriousness of Enforcement and Compli-
ance efforts and programs. At the firm level,
companies are frequently rewarded in the
market place by improved environmental
performance.
Experience in developing countries
has shown that without effective Enforce-
ment and Compliance, progress toward
national environmental goals will be limited.
There is evidence that effective environ-
mental Enforcement and Compliance sys-
tems (based on fundamentally sound regu-
latory structures) can play an important role
in encouraging firms to improve environ-
mental performance, which can strengthen
broader competitiveness-related goals at
the national level.
One of the challenges in using
Enforcement and Compliance as a tool to
strengthen competitiveness is that Enforce-
ment and Compliance, by virtue of its role
in an overall environmental regime, is a
function of the policies and rules set out by
the country. It is hard for Enforcement and
Compliance efforts alone to compensate
for deficiencies in the laws and regulations.
If the overall regulatory regime is misguid-
ed in this regard, then Enforcement and
Compliance will likely have little or no posi-
tive competitive impact.
Compliance and enforcement can
also have neutral or even negative effects
on competitiveness. Enforcement of rules
that do not assist local companies in realiz-
ing environmental benefits will not improve
competitiveness (though it may not harm it
either). In some cases, countries must
enforce rules to achieve social and environ-
mental goals that may harm the competi-
tiveness of companies. Also, uneven,
unpredictable or inconsistent compliance
and enforcement sends mixed signals,
allowing firms to gain short term advan-
tages over local competitors through non-
compliance.
6 CONSIDERATIONS FOR
DEVELOPING COUNTRIES
As in many areas of environmental
policy, implementation in developing coun-
tries implies a great number of challenges.
Among the most relevant ones to be con-
sidered include:
— Relatively immature regulatory systems
— Limited national budgets leading to
weak (underfunded, understaffed) insti-
tutions.
— Lack of understanding of how environ-
mental performance relates to competi-
tiveness.
— Predominance of traditional views
among private sector and government
officials emphasizing "costs" of environ-
mental performance.
— Unique natural resource bases that
present different challenges and reduce
the possibility of "cut and paste" strate-
gies from the U.S. and E.U.
A consensus "laundry list" of attrib-
utes of an overall environmental regime
capable of enhancing competitiveness
would include:
— Clear and stable rules based on a sound
legislative mandate.
— Clear and clearly delineated obligations
for regulated community and other soci-
etal actors.
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
— Clear performance parameters for regu-
lated community (numeric, unequivocal).
— Mechanisms that drive and support the
development of related industries and
infrastructure (this allows for cost-effec-
tive waste management, a deep market
for production equipment and control
technologies, and other items).
— Rules designed to force companies to
internalize the costs of low levels of
environmental performance and which
reward companies that reduce their
externalities on the society.
— Long-term goals that avoid technologi-
cal "lock-in" (permitting technological
revolution, rather than just evolution to
meet increasingly stringent standards).
— That allow the regulated community cer-
tain flexibility in choice of solution to
reach regulatory goals.
— Emphasis on solutions that reduce
waste (materials, water and energy)
rather than seek to treat it.
— Goals that push firms toward global
product and process standards and the
expectations of international trading
partners.
— Structures that permit cost-effective
Enforcement and Compliance (burdens
of proof, standards).
— Clear and simple legal procedures for
the regulated community which reduce
paperwork and time and effort interact-
ing with authorities.
One particular advantage in most
developing countries at this time is that
their regulatory systems are still relatively
immature. The immature systems may per-
mit greater latitude to improve them
through regulation or decree, and more
specifically they may allow Enforcement
and Compliance professionals to "simulate"
more ideal attributes through their policies,
strategies and programs.
The most pressing question for
Enforcement and Compliance planners in a
given country is to what extent the current
systems and rules grant the degrees of
freedom necessary to engage in competi-
tiveness-enhancing activities? Only
detailed country-by-country analysis can
answer this question and develop recom-
mendations for expanding the space in
which Enforcement and Compliance pro-
grams can engage in these issues.
7 REFERENCES
1 A well known case is the Costa Rican cof-
fee processing sector. A voluntary agree-
ment among all firms and the Environ-
ment Ministry permitted all companies to
simultaneously pursue very large reduc-
tions in biological oxygen demand without
risk.
8 BIBLIOGRAPHY
ABN/Amro, "Title", ABN/AMRO, Amster-
dam, 2001.
Dowell, Glenn, Stuart Hart and Bernard
Yeung. "Do Corporate Global Environmen-
tal Standards Create or Destroy Market
Value?" Management Science, June 1998.
Environmental Law Institute, "Innovation,
Cost and Environmental Regulation: Per-
spectives on Business, Policy and Legal
Factors Affecting The Cost of Environmen-
tal Compliance," Environmental Law Insti-
tute, Washington, DC 1999.
Esty, Daniel C. and Michael E. Porter,
"Chapter 2.1 Ranking National Environ-
mental Regulation and Performance: A
Leading Indicator of Future Competitive-
ness?" in The Global Competitiveness
Report 2001 -2002. World Economic Forum
and Harvard University. Oxford University
Press. 2001.
Ganzi, John, S. Buffet and R. Dunn, "A
Review of Publicly Available Funds that
Focus on Financial and Environmental Per-
formance." A report by the Environment
and Finance Enterprise for the U.S. Envi-
ronmental Protection Agency, November
1998.
Jaffe, Adam et al. (1995). "Environmental
Regulation and the Competitiveness of US
Manufacturing: What Does the Evidence
Tell Us?" Journal of Environmental Litera-
ture, Vol. XXXIII March 1995.
-------
N 299
USD, "Name", Bridges, No. XX, Geneva,
2002.
Panayotou, Theodore, editor, The Environ -
ment for Central American Competitive -
ness, Harvard University Press, Boston,
2000.
Porter, Michael E. The Competitive Advan -
tage of Nations, Free Press, New York,
1998. Porter, M.E. and C. van der Linde
(1995), "Toward a new conception of the
environment competitiveness relationship,"
Journal of Economic Perspectives 9(4), 97-
118.
Pratt, Lawrence P., "Rethinking the Private
Sector-Environment Relationship in Latin
America," Background Paper for the Semi-
nar on the "New Vision for Sustainability:
Private Sector and the Environment"
IDB/IIC Annual Meeting of the Board of
Governors New Orleans, Louisiana, March
25, 2000.
Social Investment Forum, 1999 Report on
Socially Responsible Investing Trends in
the United States, November 4, 1999.
SustainAbility, "Developing Value: The
Business Case for Sustainability in Emerg-
ing Markets," SustainAbility and Interna-
tional Finance Corporation, London, 2002.
UBS, general information on investment
funds at http://www.ubs.com/ e/globalam/
emea/switzerland/funds/ecoperformance.h
tml, January 23, 2004.
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SARMA 301
COMPLIANCE WITH THE MONTREAL PROTOCOL
SARMA, K. MADHAVA
Former Executive Secretary, Ozone Secretariat, United Nations Environment Programme
SUMMARY
This article presents an overview of the compliance provisions of the Montreal Pro-
tocol on Substances that Deplete the Ozone Layer framers of the Montreal Protocol. The
article describes experience with the non-compliance procedure and details the impact of
compliance activities on consumption of ozone depleting substances.
1 VIENNA CONVENTION FOR THE
PROTECTION OF THE OZONE
LAYER AND THE MONTREAL
PROTOCOL ON SUBSTANCES THAT
DEPLETE THE OZONE LAYER
Scientists first postulated, in the
early 1970s, that emissions of nitrogen
oxides, from fertilizers or from large fleets
of supersonic airplanes like the European
Concorde, for example, could reach the
stratosphere, 10 to 15 kilometers above the
earth's surface, and damage the thin layer
of stratospheric ozone. This layer protects
the earth from excessive UV-B radiation
that could damage human health, plant
productivity and materials. Mario Molina
and Sherwood Roland demonstrated in
1974 that the emissions of human made
halocarbons would reach the stratosphere
and deplete the ozone layer. These halo-
carbons, first invented and commercialized
in 1928, were considered "wonder chemi-
cals" because of their long life, and were
used in many industries and processes
such as refrigeration, air conditioning,
metal cleaning, and fire fighting.
The United Nations Environment
Programme established, in 1977, a Coordi-
nating Committee on the Ozone layer, con-
sisting of the world's leading experts, to
study the issue and suggest scientific solu-
tions to the problem. At the same time, the
UNEP initiated international diplomatic dis-
cussions to take steps to solve the prob-
lem. The continuing scientific studies iden-
tified halocarbons as the main cause of
ozone depletion.2 Prolonged diplomatic
discussions over the next eight years
resulted in the Vienna Convention for the
Protection of the Ozone Layer in 1985. It
was only a framework convention, provid-
ing for the Parties to the Convention to
study, research, and report on various
aspects of the ozone depletion. The Con-
vention provided for further Protocols as
needed to deal with the ozone depletion.
In 1985, British and Japanese sci-
entists discovered complete destruction of
ozone over the Antarctic in the spring sea-
son (an "ozone hole") and further experi-
ments confirmed the role of halocarbons in
ozone depletion. Continuing diplomatic
negotiations piloted by UNEP resulted, in
1987, in the Montreal Protocol on Sub-
stances that Deplete the Ozone Layer
under the Convention. The Protocol listed
eight ozone-depleting substances (ODS)
but prescribed only mild control measures
for each Party to the Protocol to
freeze/reduce its production and consump-
tion of these ozone-depleting substances.
The Protocol, however, provided for adjust-
ing or amending the Protocol after periodi-
cal scientific and technological assess-
ments at least once every four years. Since
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
then, following such assessments, the Pro-
tocol was strengthened by the Govern-
ments five times through adjustments and
amendments (in 1990, 1992, 1995, 1997
and 1999). The Protocol now mandates
total phase out of production and consump-
tion of 96 listed ozone-depleting sub-
stances by all the Parties in a specified
time frame.s The list of controlled sub-
stances was annexed to the Protocol in
four Annexes (A, B, C and E), and within
these Annexes, in nine groups. The control
measures were applicable group-wise.
Five groups of substances were to be grad-
ually phased out by 1996, one by 1994,
one by 2002. one by 2005. and one group
by 2030 {of HCFCs. which are ozone
depleting but with a low Ozone Depletion
Potential and used as substitutes for CFC).
The developing countries were given a
grace period to implement the control
measures. The Protocol established,
through Article 12, a Secretariat with duties
as defined in that Article. UNEP provides
the Secretariat ("the Ozone Secretariat").
2 LEGAL PROVISIONS IN THE
, CONVENTION AND THE PROTOCOL
ON COMPLIANCE
The Vienna Convention, in Article
11 and in Decision 7 of the First Confer-
ence of the Parties (COP) in 1989,4 provid-
ed for an elaborate procedure for settle-
ment of disputes between Parties. This pro-
cedure applies to any Protocol unless the
Protocol provides otherwise. The Conven-
tion prescribed reporting on many sub-
stances but these reporting obligations
were waived by the Decision VCIII/4 of the
third COP5 as reporting on ozone-depleting
substances under the Montreal Protocol
was considered sufficient.
Article 8 of the Protocol specified
that the Parties should approve procedures
and institutions for determining non-compli-
ance by Parties and for treatment of Parties
found to be in non-compliance. An interim
procedure was first approved by Decision
II/5 of the second Meeting of the Parties in
1990 and annexed to the report of the
meeting as Annex III. It was finalized by
Decision IV/5 of the fourth Meeting of the
Parties in 1992 and annexed to the report
of the meeting as Annex IV. It was reviewed
with minor changes by Decision X/10 of the
tenth Meeting of the Parties in 1998 and
annexed to the report of the meeting. The
procedure will apply without prejudice to
the operation of the settlement of disputes
procedure laid down in Article 11 of the
Vienna Convention. It is reproduced below.
Non-Compliance Procedure of the
Montreal Protocol
"1. If one or more Parties have reservations
regarding another Party's implementa-
tion of its obligations under the Protocol,
those concerns may be addressed in
writing to the Secretariat. Such a sub-
mission shall be supported by corrobo-
rating information.
2. The Secretariat shall, within two weeks
of its receiving a submission, send a
copy of that submission to the Party
whose implementation of a particular
provision of the Protocol is at issue. Any
reply and information in support thereof
are to be submitted to the Secretariat
and to the Parties involved within three
months of the date of the dispatch or
such longer period as the circumstances
of any particular case may require. If the
Secretariat has not received a reply from
the Party three months after sending it
the original submission, the Secretariat
shall send a reminder to the Party that it
has yet to provide its reply. The Secre-
tariat shall, as soon as the reply and
information from the Party are available,
but not later than six months after receiv-
ing the submission, transmit the submis-
sion, the reply and the information, if
any, provided by the Parties to the Imple-
mentation Committee referred to in para-
graph 5, which shall consider the matter
as soon as practicable.
3. Where the Secretariat, during the course
of preparing its report, becomes aware
of possible non-compliance by any Party
with its obligations under the Protocol, it
may request the Party concerned to fur-
nish necessary information about the
matter. If there is no response from the
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SARMA 303
Party concerned within three months or
such longer period as the circumstances
of the matter may require or the matter is
not resolved through administrative
action or through diplomatic contacts,
the Secretariat shall include the matter in
its report to the Meeting of the Parties
pursuant to Article 12 (c) of the Protocol
and inform the Implementation Commit-
tee, which shall consider the matter as
soon as practicable.
4. Where a Party concludes that, despite
having made its best, bona fide efforts, it
is unable to comply fully with its obliga-
tions under the Protocol, it may address
to the Secretariat a submission in writ-
ing, explaining, in particular, the specific
circumstances that it considers to be the
cause of its non-compliance. The Secre-
tariat shall transmit such submission to
the Implementation Committee, which
shall consider it as soon as practicable.
5. An Implementation Committee is hereby
established. It shall consist of 10 Parties
elected by the Meeting of the Parties for
two years, based on equitable geograph-
ical distribution. Each Party so elected to
the Committee shall be requested to
notify the Secretariat, within two months
of its election, of who is to represent it
and shall endeavour to ensure that such
representation remains throughout the
entire term of office. Outgoing Parties
may be re-elected for one immediate
consecutive term. A Party that has com-
pleted a second consecutive two-year
term as a Committee member shall be
eligible for election again only after an
absence of one year from the Commit-
tee. The Committee shall elect its own
President and Vice-President. Each
shall serve for one year at a time. The
Vice-President shall, in addition, serve
as the rapporteur of the Committee.
6. The Implementation Committee shall,
unless it decides otherwise, meet twice a
year. The Secretariat shall arrange for
and service its meetings.
7. The functions of the Implementation
Committee shall be:
(a) To receive, consider and report on
any submission in accordance with
paragraphs 1, 2 and 4;
(b) To receive, consider and report on
any information or observations for-
warded by the Secretariat in connec-
tion with the preparation of the
reports referred to in Article 12(c) of
the Protocol and on any other infor-
mation received and forwarded by
the Secretariat concerning compli-
ance with the provisions of the Proto-
col;
(c) To request, where it considers neces-
sary, through the Secretariat, further
information on matters under its con-
sideration;
(d) To identify the facts and possible
causes relating to individual cases of
noncompliance referred to the Com-
mittee, as best it can, and make
appropriate recommendations to the
Meeting of the Parties;
(e) To undertake, upon the invitation of
the Party concerned, information-
gathering in the territory of that Party
for fulfilling the functions of the Com-
mittee;
(f) To maintain, in particular for the pur-
poses of drawing up its recommenda-
tions, an exchange of information with
the Executive Committee of the Multi-
lateral Fund related to the provision of
financial and technical co-operation,
including the transfer of technologies
to Parties operating under Article 5,
paragraph 1, of the Protocol.
8. The Implementation Committee shall
consider the submissions, information
and observations referred to in para-
graph 7 with a view to securing an ami-
cable solution of the matter on the basis
of respect for the provisions of the Proto-
col.
9. The Implementation Committee shall
report to the Meeting of the Parties,
including any recommendations it con-
siders appropriate. The report shall be
made available to the Parties not later
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than six weeks before their meeting.
After receiving a report by the Commit-
tee the Parties may, taking into consider-
ation the circumstances of the matter,
decide upon and call for steps to bring
about full compliance with the Protocol,
including measures to assist the Parties'
compliance with the Protocol, and to fur-
ther the Protocol's objectives.
10. Where a Party that is not a member of
the Implementation Committee is iden-
tified in a submission under paragraph
1, or itself makes such a submission, it
shall be entitled to participate in the
consideration by the Committee of that
submission.
11. No Party, whether or not a member of
the Implementation Committee,
involved in a matter under considera-
tion by the Implementation Committee,
shall take part in the elaboration and
adoption of recommendations on that
matter to be included in the report of the
Committee.
12. The Parties involved in a matter
referred to in paragraphs 1, 3 or 4
shall inform, through the Secretariat,
the Meeting of the Parties of the
results of proceedings taken under
Article 11 of the Convention regard-
ing possible non-compliance, about
implementation of those results and
about implementation of any deci-
sion of the Parties pursuant to para-
graph 9.
13. The Meeting of the Parties may,
pending completion of proceedings
initiated under Article 11 of the Con-
vention, issue an interim call and/or
recommendations.
14. The Meeting of the Parties may
request the Implementation Commit-
tee to make recommendations to
assist the Meeting's consideration of
matters of possible non-compliance.
15. The members of the Implementation
Committee and any Party involved in
its deliberations shall protect the
confidentiality of information they
receive in confidence.
16. The report, which shall not contain
any information received in confi-
dence, shall be made available to
any person upon request. All infor-
mation exchanged by or with the
Committee that is related to any rec-
ommendation by the Committee to
the Meeting of the Parties shall be
made available by the Secretariat to
any Party upon its request; that
Party shall ensure the confidentiality
of the information it has received in
confidence."
2.1 Responses to Non-compliance:
The fourth Meeting of the Parties in
1992, by Decision IV/18, finalized, in Annex
V of its report, the "Indicative list of meas-
ures that might be taken by a Meeting of
the Parties in respect of non-compliance
with the Protocol:"
A. Appropriate assistance, including assis-
tance for the collection and reporting of
data, technical assistance, technology
transfer and financial assistance, infor-
mation transfer and training.
B. Issuing warnings.
C. Suspension, in accordance with the
applicable rules of international law con-
cerning the suspension of the operation
of a treaty, of specific rights and privi-
leges under the Protocol, whether or not
subject to time limits, including those
concerned with industrial rationalization,
production, consumption, trade, transfer
of technology, financial mechanism, and
institutional arrangements.
2.2 Implications of the Responses
and Circumstances Giving Rise to
Their Application
Response A:
The Protocol established a Finan-
cial Mechanism, including a Multilateral
Fund, under Article 10, to meet all the
agreed incremental costs for Article 5 Par-
ties. Decision IV/18, in Annex VIII to the
report of the fourth Meeting of the Parties,
finalized a list of incremental costs and per-
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SARMA 305
mitted the Executive Committee of the MF
to interpret the costs and to add to the list,
if appropriate. The permissible costs cover
all the facets of assistance mentioned in A
of Paragraph 14 above. The Global Envi-
ronment Facility (GEF), established in
1991, has the mandate of assisting all eligi-
ble countries to implement measures to
solve the global environmental problems of
ozone depletion, climate change, bio-diver-
sity and pollution of international waters.
The list of Parties recognized by GEF as
eligible for assistance includes many in the
list of Article 5 Parties that are eligible for
assistance by MF. It also includes many
countries of Eastern Europe and of the for-
mer USSR (Countries with their Economies
in Transition ())e that have not been classi-
fied as developing countries (and hence
not eligible for assistance by the Multilater-
al Fund). By the time GEF came into exis-
tence the Protocol had already established
the Multilateral Fund, and the GEF assis-
tance for the protection of the ozone layer
is only for the Parties not eligible for assis-
tance by the MF.
Response B:
Warnings have been administered
by Meeting of the Parties to non-compliant
Parties in some cases, as elaborated later
in this Article, when the Implementation
Committee noted that the Parties in non-
compliance have not put in adequate
efforts. The warnings contained a threat
that the Parties will be deprived of assis-
tance or that response C would be applied
if they do not return to the path of compli-
ance.
Response C:
Suspension of rights and privi-
leges. The rights and privileges could
include:
— Industrial rationalization: Non-Article 5
Parties have the right to transfer their
production rights for ozone-depleting
substances to each other and consump-
tion rights for HCFCs (Article 2, Para-
graphs 5 and 5bis).
— Trade: If a party's rights under Article 4
are suspended, other Parties cannot
trade in ozone-depleting substances
with that Party (Article 4, Paragraphs 1 -
1 sex. Paragraphs. 2-2 sex). That Party
cannot export products containing CFCs
(air conditioners, etc.) to Parties (Article
4, Paragraph 3, read with Decision III/5
of the Third ).
— Assistance from MF or GEF (Articles 10
and 10 A).
3 REPORTING AND VERIFICATION
All the Parties have to send
detailed reports to the Secretariat under
Articles 4B, 7, and 9. Under Article 7, each
Party ratifying the Protocol shall report,
within three months of becoming a Party, its
data of production, imports and exports of
each of the ozone-depleting substances for
the base year of that ozone-depleting sub-
stances and, thereafter, every year, before
September 30th of the succeeding year.
Each Party shall also submit data on
ozone-depleting substances destroyed,
used as feed stock, exported to or imported
from Parties and non-Parties, and imports
and exports of recycled substances.
Regional economic integration organiza-
tions are allowed to report consumption fig-
ures for all of their members together, and
the members of such organizations need
not report the consumption figures, though
they have to report their production figures
individually. Currently, the European Union
is the only organization recognized as a
Regional Economic Integration Organiza-
tion for this purpose. Article 9 mandates
that each Party cooperate in research,
development, public awareness and
exchange of information regarding tech-
nologies to reduce emissions, alternatives
to ozone-depleting substances, and costs
and benefits of control strategies. In addi-
tion, Article 9 requires that each Party sub-
mit a biannual report with a summary of its
activities. Article 4B prescribes that each
Party to the Montreal Amendment to the
Montreal Protocol implement licensing sys-
tems for import and export of ozone-deplet-
ing substances within the time prescribed
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and report after implementation.
In addition to the data to be report-
ed under Article 7, the s have made many
decisions requesting Parties to submit
more data to enable the s to verify compli-
ance with the control measures and the
decisions of the Protocol. Those applying
for essential use exemptions have to report
in the format approved by Decision Vlll/ 9
of the Eighth . Decision VI/19 of the sixth
mandated an annual report from the Par-
ties on their list of reclamation facilities for
ozone-depleting substances. Other deci-
sions include Decision VIII/32, Decision
IV/17a, Decision X/7, Decision X/11, and
Decision V/15.
The Parties send their reports to
the Ozone Secretariat. The Ozone Secre-
tariat analyses the data received and iden-
tifies those parties that have not reported
fully and those who have not fulfilled the
control measures applicable to them. The
Implementation committee considers the
report of the Secretariat at its meetings,
usually held in conjunction with s and the
meetings of the Working Groups of Parties.
The Secretariat checks the data
reported by the Parties for internal consis-
tency and requests clarification from the
Parties when necessary. However, the
Secretariat has no right to reject the data
submitted. Based on a recommendation by
the Implementation committee, the
Seventh decided in DecisionVII/20 that
while the Secretariat could seek clarifica-
tions from a Party regarding its data, the
data provided by a Party should be used.
The Non-Compliance Procedure,
in paragraph 7(e) (please see paragraph 6
above) provided that the committee can
undertake, upon the invitation of the Party
concerned, information-gathering in the ter-
ritory of that Party to carry out the functions
of the Committee. However, such informa-
tion-gathering has not been carried out
anywhere at this time, and the committee
relies solely on the data supplied by a
Party.
The highly detailed data to be
reported for all of the 96 controlled ozone-
depleting substances has proved to be very
difficult for all the countries, particularly for
developing countries. The chemicals have
uses in thousands of industries and were
not controlled in any way prior to the Proto-
col. Hence every Party had to introduce
new regulations and train many profession-
als, including customs officers, to report on
the imports and exports of the ozone-
depleting substances.^ Where a party has
many points of entry into its country, the
data collection was delayed and, at times,
incomplete. The Parties also relied on data
given by traders, which is inherently biased
to some extent. Occasionally, doubts have
been expressed regarding the reliability of
data, most recently by the Technology and
Economic Assessment Panel,s which found
some inconsistencies when it tried to use
the data for calculating the projected future
demand for ozone-depleting substances by
Article 5 Parties. The data, however, gives
a good idea of the degree of compliance by
individual Parties.
Status of Reporting: Initially, the
number of Parties reporting was low, but it
has improved over the years. Decision
VII/14 of the Seventh held in 1995, for
example, lamented that only 82 of the 126
Parties reported the 1993 data and only 60
reported the 1994 data by December 1995.
The report of the Secretariat on data for the
Sixteenth in November 2004 noted the
steady improvement in reporting under Arti-
cle 7 over time. By October 2004, all of the
Parties have reported for 2002 and more
than eighty percent have reported for 2003.
While the reporting under Article 9 was reg-
ular in the initial years, it was sporadic in
later years, probably due to the repetitive
nature of the reports and because the activ-
ities of the Multilateral Fund have fulfilled
the needs of the Article 5 Parties for infor-
mation. Sporadic decisionsa up to the 12th
, until the year 2000, reminded the Parties
for reports.
4 EXPERIENCE WITH THE
NON-COMPLIANCE PROCEDURE
4.1 Identifying Non-compliance:
To date, no Party has submitted,
under paragraph 1 of the Non-compliance
Procedure, any representation regarding
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non-compliance by another Party. The non-
compliance cases noted so far, with a sin-
gle exception, are all under paragraph 3 of
the Procedure from the Secretariat reports
on annual data submitted under Article 7.
An exception was when, in 1994, the Russ-
ian Federation and some Parties of Eastern
Europe and the former USSR, which are
classified as non-Article 5 Parties, submit-
ted a statement to the , to the effect that
they might not meet compliance require-
ments for the phase out of halons by 1994,
and CFCs by 1996, due in part to their
domestic conditions. This submission was
treated by the Secretariat as a submission
under Paragraph 4 of the Non-compliance
procedure and referred to the Implementa-
tion Committee.
4.2 Decisions by s on Reporting and
Non-complianceio
4.2.1 Non-compliance with Reporting
As noted in Paragraph 15 above, many
Parties, in the initial years, found it difficult
to report all of the details required annual-
ly under Article 7 of the Protocol, particu-
larly in the initial years after ratification.
The situation improved gradually The Arti-
cle 5 Parties and Countries with their
Economies in Transition improved their
performance on reporting after receiving
technical assistance from MF or GEF. The
Implementation Committees and s took a
sympathetic view of this problem, with
respect to the Article 5 Parties in the initial
years, because compliance with the con-
trol measures only started in 1999 for
these Parties. On the recommendation of
the Committee, the s made decisions urg-
ing the Parties to report expeditiously and
giving advise on how to improve reporting.
With regard to non-reporting under Articles
4B and 9, the Parties, in their decisions,
merely urged the Parties to report.
4.2.2 Procedure for Dealing
with Non-compliance with the
Control Measures
In cases of non-compliance with the con-
trol measures, the Implementation Com-
mittee and adopted the procedure of
requesting that the concerned Parties sub-
mit benchmarks and annual targets for a
return to compliance. The performance of
the Party was reviewed every year with
reference to these benchmarks. The deci-
sions of the s, based on a close scrutiny
and recommendation by the implementa-
tion committee, were based on the circum-
stances of each situation.
Article 5 Parties: From 2001 (13th )
onwards, thirty Article 5 Parties were iden-
tified as in non-compliance status based on
the data submitted. The s noted their non-
compliance, asked them to submit their
plan of action and benchmarks to return to
compliance, and decided that to the degree
that a Party "is working towards and meet-
ing specific Protocol control measures, it
should continue to be treated in the same
manner as a Party in good standing and
should continue to receive international
assistance." They were also cautioned, in
accordance with item B of the indicative
measures approved by the Procedure, that
"in the event it fails to return to compliance
in a timely manner, the Parties shall consid-
er measures, consistent with item C of the
indicative list of measures," including
actions available under Article 4, such as
ensuring that the supply of the ozone-
depleting substances, the subject of non-
compliance, is ceased and the trading Par-
ties are not contributing to a continuing sit-
uation of non-compliance.11 13 Article 5
Parties were considered to be in "potential
non-compliance" since they offered no
explanation for exceeding the levels of con-
sumption mandated under the control
measures and were cautioned under the
same terms as (a) above.12 The s noted the
benchmarks submitted by eighteen Parties
and issued the warning as described in (a)
above.1 s
To date, no Article 5 Party, has
been deprived of assistance or had rights
and privileges suspended, as provided by
item C of the indicative measures.
Non-compliance by the Countries
with their Economies in Transition Parties:
As mentioned already, the Russian Feder-
ation and three other Parties made a state-
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
ment to the sixth in 1994 about their inabil-
ity to comply with the control measures
within the prescribed time. In the seventh 's
meeting in 1995, its Decisions VII/14-19
noted the potential non-compliance men-
tioned by the Parties. It recommended
international assistance to the Parties.
Through Decision VII/18, it "allowed" the
Russian Federation to export to the non-
Article 5 Parties of the former USSR, which
traditionally depended on Russia for all of
its supply of ozone-depleting substances.
This implicitly suspended the right of the
Russian Federation to export to other non-
Article 5 Parties, or to Article 5 Parties, to
meet their basic domestic needs as provid-
ed in Articles 2A-2F and 2H. The Countries
with their Economies in Transition Parties
that came to notice as non-compliant were
Azerbaijan, Bulgaria, Estonia, Czech
Republic, Estonia, Kazakhstan, Latvia,
Lithuania, Poland, Russian Federation,
Ukraine, Tajikistan, Turkmenistan, Uzbek-
istan, and Armenia (subsequently reclassi-
fied as operating under Article 5).
For each of these Parties, the
implementation Committee pursued its
course of obtaining data, identifying actual
or potential non-compliance, obtained
plans of action and benchmarks to return to
compliance, and monitored their perform-
ance in relation to the benchmarks every
year. The s recommended assistance by
the GEF in each case.14 Furthermore, they
called for explanations when the bench-
marks were not met.15 Almost all the Par-
ties returned to a state of compliance with
the control measures. The only Party
noticed for non-compliance by the 16th in
2004 was Azerbaijan. The 15th in the year
2003 recognized and appreciated the
return to full compliance by the Russian
Federation in the year 2002, the largest
Party (XIV/35).
4.2.3 Non-compliance by the
Industrialized Countries
There were no instances of non-
compliance by the industrialized countries.
Decision XV/24 noticed potential non-com-
pliance by Israel due to excess consump-
tion of Methyl Bromide in 2002, and
requested an explanation. The representa-
tive of Israel explained16 the figures show-
ing compliance to the 32nd meeting of the
implementation Committee, resolving the
matter.
5 RESULTS OF COMPLIANCE
Of the 188 Parties to the Montreal
Protocol, 143 are classified as operating
under Article 5. The average of consump-
tion (and production) in the years 1995,
1996, and 1997, was treated as their base
figure for their control measures for CFCs,
the most consumed ozone-depleting sub-
stances. Their base figure for CFCs was
about 162,500 tonnes in 1995-97. This
consumption came down to 90,800 tonnes
in 2002, a forty-five percent decrease,
while only a freeze is mandated until 2005.
While about 35 Article 5 Parties came to
notice for non-compliance, some of them
more than once, their excess consumption
of CFCs noticed for the year 200117 by the
Secretariat was.only about 1200 tonnes,
while for the year 2003,18 it was about 410
tonnes. Most of the non-complying states
are low volume consuming countries.
Some of the non-complying Parties ratified
the Protocol very late and the MF assis-
tance to survey their ozone-depleting sub-
stances consumption and implement solu-
tions to shift to alternatives is taking time.
Some use ozone-depleting substances
only for maintenance of the existing equip-
ment, and drop-in substitutes or CFCs from
recycling, are not available. Many were tiny
countries yet to establish the capacity to
implement.
The consumption of the was
146,000 tonnes of CFCs in 1986 (about fif-
teen percent of world consumption). The
non-compliance noticed in 1996 was for 9
Parties with a consumption of CFCs of
18,000 tonnes, while a total phase out is
mandated for them. Their consumption
came down to about 500 tonnes in 2002.
The overall consumption of CFCs
in the world came down from about 1.1 mil-
lion tonnes in 1986 to 92,000 tonnes in
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SARMA 309
2002, a reduction of more than ninety per-
cent and is continuously declining. The per-
formance of the Protocol is now hailed as
one of outstanding success.
Scientific Assessment has verified
the success. The Scientific Assessment
Panel Report of 2002, as reflected in the
Synthesis Report of all the Assessment
Panels, noted:
The Montreal Protocol is working,
and the ozone-layer depletion from the Pro-
tocol's controlled substances is expected to
begin to ameliorate within the next decade
or so. The total combined effective abun-
dances of anthropogenic chlorine contain-
ing and bromine-containing ozone-deplet-
ing gases in the lower atmosphere (tropo-
sphere) peaked in the 1992-1994 time peri-
od and are continuing to decline. Further-
more, the stratospheric abundances of
ozone-depleting gases are now at or near a
peak. Thereafter, the level of stratospheric
ozone should increase, all other influences
assumed constant, but ozone variability will
make detection of the onset of the long-
term recovery difficult. Future ozone levels
will also be influenced by other changes in
atmospheric composition and by climate
change. Based on assumed compliance
with the amended and adjusted Protocol by
all Parties, the Antarctic ozone "hole" is
expected to disappear by the middle of this
century-again, with all other influences
assumed constant.19
6 FACTORS FOR
PROMOTING COMPLIANCE
6.1 Protocol Designed for
Universal Ratification
The framers of the Protocol recog-
nized that over eighty-five percent of the
world's consumption of ozone-depleting
substances is by industrialized countries
and the large number of developing coun-
tries bore only a small part of the responsi-
bility for the ozone depletion. The limited
capacity of the developing countries to
phase out ozone-depleting substances
expeditiously through alternative technolo-
gies was acknowledged. The Governments
also quickly realized that the cooperation of
all of the countries in the world is essential
to repair the ozone layer, as countries stay-
ing out of the Protocol and increasing their
consumption of ozone-depleting sub-
stances could counteract the reduction by
the Parties to the Protocol. The principle of
"common but differentiated responsibility"
for global environmental problems was
given a practical shape in the Protocol. It
was also felt that no punitive measures
would succeed in forcing countries to ratify
and implement the Protocol. Hence, many
important features of the Protocol are
designed to encourage universal ratifica-
tion.
— The Protocol provided for periodic
assessment of the control measures
based on available scientific, environ-
mental, technical, and economic infor-
mation by panels of experts (Article 6).
— Parties may decide on adjustments and
amendments to the Protocol based on
such assessments (Article 2, Para-
graphs 9 and 10).
— To assuage worries about lack of alter-
natives to particular uses of ozone-
depleting substances, it was provided in
the Articles 2A-2I relating to control
measures on the ozone-depleting sub-
stances, that a can periodically exempt
"essential" or "critical" uses of ozone-
depleting substances from a total phase
out.
— Developing countries20 satisfying the
conditions in Article 5 were allowed to
implement the control measures some
years after other countries implemented
those measures, under a "grace period"
(Article 5).
— Article 9 mandated that the Parties shall
cooperate in promoting research, devel-
opment, and exchange of information on
technologies to reduce emissions of
ozone-depleting substances, alterna-
tives to ozone-depleting substances and
products using ozone-depleting sub-
stances, and costs and benefits of con-
trol strategies, and in promoting public
awareness of environmental effects of
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the ozone-depleting substances.
— A Financial Mechanism, including the
Multilateral Fund, subscribed to by Par-
ties that are not Article 5 Parties (non-
Article 5 Parties), was established to
meet all the agreed incremental costs of
the Article 5 Parties (Article 10). The
Multilateral Fund has the United Nations
Development Programme, The United
Nations Environment Programme, the
United Nations Industrial Development
Organization and the World Bank as its
implementing agencies.
— Every Party is mandated to take every
practicable step to transfer the best
available substitutes and technologies
to Article 5 Parties (Article 10A).
— The Protocol recognizes that the capac-
ity of Article 5 Parties to implement the
control measures will depend on the
effective implementation of Articles 10
and 10A (Article 5, Paragraph 5).
— Any Article 5 Party may at any time noti-
fy that it is unable to implement its con:
trol measures due to inadequate imple-
mentation of Articles 10 and 10A and the
non-compliance procedure shall not be
invoked against it till a Meeting of Par-
ties () decides on an appropriate action
(Article 5, Paragraph 6).
Whenever there was a strong dif-
ference of opinion between countries dur-
ing Meetings of Parties, a compromise was
arrived at rather than a majority imposing
its will. As a result of these inclusive meas-
ures and attitude, almost all the govern-
ments of the world, 188 so far, have ratified
the Convention and the Protocol. The only
seven countries that did not ratify the Pro-
tocol so far are very small countries- Andor-
ra, Equatorial Guinea, Eritrea, East Timor,
Iraq, San Marino, and the Vatican.
6.2 Flexible Responses to
Non-compliance
The Non-Compliance procedure
does not define non-compliance with the
Protocol. An Ad-hoc Working Group of legal
experts discussed the issues in 1991 but
there was no consensus.21 We have to
infer, from the provisions of the Protocol,
situations of non-compliance.
The crux of the Protocol is reduc-
tion and phase out of production and con-
sumption of ozone-depleting substances
according to the prescribed time sched-
ules. Non-observance of the control meas-
ures is, obviously, non-compliance. Report-
ing under Articles 4B, 7, and 9, is mandato-
ry and enables the Meetings of the Parties
to verify compliance. Non-reporting will be
non-compliance.
Article 10 establishes a Financial
Mechanism including a Multilateral Fund
(MF) to assist Article 5 Parties. The MF
shall be financed by contributions from Par-
ties not operating under Article 5. If a non-
Article 5 Party does not contribute, is it non-
compliance? Discussions in the legal work-
ing group of the Parties in 199122 revealed
totally different interpretations by the mem-
bers. Some argued that non-payment is
obviously non-compliance. Others felt that
it is not non-compliance since the Protocol
does not mention that the contributions are
"assessed" as in the United Nations. Until
now, no Party cared to test the interpreta-
tion by complaining about non-payment,
even though a number of Parties, including
the Russian Federation and countries of
the former USSR, never paid any contribu-
tion to the Multilateral Fund. Perhaps all of
the Parties realized, without formally recog-
nizing it, that these Parties were unable to
pay. The dues from these Parties are still in
the books of the MF as arrears to be col-
lected.
6.3 Capacity Building and
Technology Transfer
The Multilateral Fund is assisting
the 143 Parties classified as Article 5 Par-
ties, and the Global Environmental Facility
is assisting the 19 Parties, in implementing
control measures. The assistance is very
comprehensive and includes institutional
strengthening in the Governments of the
Parties, training, information exchange,
and meeting the incremental costs of tech-
nology transfer and conversion of indus-
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tries and processes to ozone-friendly tech-
nologies. During the years 1991-2004, the
non-Article 5 Parties have pledged nearly
US$1.89 billion and paid nearly US$1.63
billion to the Multilateral Fund. The arrears
of US$257 million are almost wholly from
the Parties that were a part of the former
USSR, which expressed their inability to
pay the Fund. In fact, they themselves are
receiving funds from the GEF. The Fund
has, during 1991-2004, financed nearly
4,600 projects for Article 5 Parties, to assist
them in implementing the control meas-
ures.23 The GEF has spent nearly US$150
million in the for the same purpose.24
7 A NON-CONFRONTATIONIST
PROCESS
The Parties to the Protocol realized
that non-compliance with the control meas-
ures of the Protocol by a Party might not
only lead to disputes between Parties but
also, will more importantly, delay the recov-
ery of the ozone layer and affect the global
environment. Also, it decreases the con-
sumption of alternatives to ozone-depleting
substances and thus has an economic
impact on the alternatives' industry. The
Parties also realized that non-compliance
may be mostly due to lack of capacity of
that Party to create awareness of the ozone
depletion problem and to inform and edu-
cate their citizenry and industry on the need
and methozone-depleting substances for
adopting alternatives. Occasionally, there is
a lack of political will, particularly when the
country is facing other severe problems,
such as civil strife, and the Montreal Proto-
col is of a very low priority in comparison.
No country benefits from non-compliance.
In fact, it loses the advantages of new tech-
nologies. Hence s concentrated on assis-
tance and on warnings to promote political
will, rather than on the suspension of rights.
The Parties also decided early on
that a punitive approach would have to be
applied with discrimination in order to pro-
mote compliance. Every country needs
ozone-depleting substances for mainte-
nance and trade measures, and to deprive
them of ozone-depleting substances may
lead to illegal trade. Declaring a Party to be
in non-compliance, and taking harsh meas-
ures, may drive it away and increase
ozone-depleting substances consumption,
undermining the Protocol. The Parties real-
ized, that while all Parties are to be treated
equally, each Party has a different capacity
to implement measures. The Implementa-
tion Committee and the Meetings of the
Parties studied each case proactively and
implemented different solutions depending
on the causes for failure to implement.
The framers of the Montreal Proto-
col realized that the objective of the Proto-
col may be defeated if any significant num-
ber of countries, particularly those with
capacity to produce ozone-depleting sub-
stances, refrains from joining the Protocol,
and that there are no punitive measures
available to force a country to join the glob-
al effort to protect the ozone layer.
8 REFERENCES
1 The Decisions of the Meetings of the Par-
ties () quoted in this paper are numbered
as Roman numerals in capitals, slash,
Arabic numbers. X/21, for example,
means decision 21 of the tenth . The Con-
vention, the Protocol, and all the deci-
sions of meetings of the Parties up to the
end of the year 2002 (Sixth Conference of
the Parties to the Convention (COP) and
14th Meeting Of the Parties to the Mon-
treal Protocol ()) are contained in the
Handbook for the International Treaties
for the Protection of the Ozone Layer,
2003 edition, Ozone Secretariat. The
decisions of the 15th and 16th s are con-
tained in UNEP/ OZLPRO/15/9 of
November 11, 2003 and
UNEP/OZL.PRO/1/17 of November 2004
respectively. No notes are given in this
paper, except for the decision number,
when quoting decisions of the s. Where
other documents are quoted, notes have
been given as footnotes giving the num-
ber or name of the document.
2 Paragraphs 1 and 2 based on Chapter 1
of S. O. Andersen and K. Madhava
Sarma, "Protecting the Ozone Layer: The
United Nations History," 2002.
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
3 Paragraphs 3 and 4 based on Andersen
and Madhava Sarma, supra note 2.
4UNEP/OZLCONV/1/5 Dated 28 April
1989.
5 UNEP/OZL.CONV/3/6 Dated 23 Novem-
ber 1993.
e Evaluation Report #1-00 of the Global
Environment Facility, Study of Impacts of
GEF Activities on Phase-out of Ozone
Depleting Substances, 2003.
7 See Andersen and Madhava Sarma,
Chapter 7, pgs. 274-278, supra note 2.
8 Report of the TEAP Basic Domestic
Needs Task Force (October 2004) avail-
able from the Ozone Secretariat.
9|/4, 11/14, VI/2, IX/1,X/2,XII/6.
1o Handbook on the International Treaties
to Protect the Ozone Layer, 2003,
11 Decisions XIII/21-25, XIV/18-25, 29, 32,
XV/24, 25, 33, 41, 42, 45, XVI/22,26.
12 Decisions XIII/16, XV/21,22.
13 XIV/26-44.
14VII/25, IX/29, 31, X/27, XI11/17, 18,
XIV/31.
is XIV/28, XV/28, XVI/21.
16 UNEP/OzLPro/lmpCom/32/6 dated
August 11, 2004.
17UNEP/OZL.PRO/15/4, dated October
14,2003.
18UNEP/OZL.PRO.16/4, dated October
18, 2004.
19 UNEP/OZL.PRO/WG1/23/3, dated Feb-
ruary 25, 2003.
20 Decision 1/12E of the first decided on the
list of developing countries. Later s
added Turkey (Ml/8), Georgia (VII/29),
Moldova (IX/6), South Africa (IX/27), Kir-
gyzstan (XI1/11), Armenia (XIV/2) and
Turkmenistan (XVI/39). Slovenia, a
break-away country of former
Yugoslavia, recognized as a developing
country and Malta were taken out of the
list at their own request (XI1/12
21 UNEP/OZL.PRO/WG3/3 Dated 9 Nov-
ember 1991
22 Id.
23 UNEP/OZL.PRO/16/10,Report of the
Executive Committee to the 16th .
24 Supra note 6.
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SHKALIM 313
FIXING A CRITICAL PROBLEM: USED OIL FILTERS
SHKALIM, ZOHAR
Director of the Enforcement Coordination Division, Ministry of the Environment,
PO Box 34033 Jerusalem, Israel, 95464, zoharsh@sviva.gov.il
SUMMARY
This paper presents a brief overview of the environmental problem solving
approach that helped Israel address the problem of water and soil contamination from used
oil.
1 INTRODUCTION
In 2002, the Ministry of the Envi-
ronment of Israel (in cooperation with the
Israel Garage Association) initiated a
unique pioneer project for the collection of
used oil from the country's garages. Today,
there is no question that the project
worked.
The project is a product of cooper-
ation - among divisions within the Ministry
of the Environment and relevant stakehold-
ers outside the ministry, including the Israel
Garage Association, the country's major
bus companies, the Israel Police and vehi-
cle import companies. Utilizing the Environ-
mental Problem Solving model, which was
developed in the United States by Dr. Mal-
colm Sparrow, all of the stakeholders came
together to "fix" a critical problem - the con-
tamination of water sources and soil from
used oil originating in garages throughout
the country.
2 PROJECT OVERVIEW
2.1 Collection of Used Oil Filters
for Recycling
While the project included three
components - collection of used oil filters
for recycling, collection of used oil for
reuse, and installation of oil/fuel separators
- the greatest progress was achieved in the
collection of used oil filters.
It is estimated that used oil filters
include up to 0.5 liters of used oil each. Yet
until recently, most of this oil made its way
to the municipal waste system. Of some
2000 garages that produce about 3 million
used oil filters per year, only a few dozen
collected about 14,000 used filters on a vol-
untary basis prior to the initiation of the
project. Today, as a result of increased
enforcement, education and cooperation
with the Israel Garage Association, the
number of garages which have contractual-
ly committed to collect used oil filters has
increased to 1,300 - some 65% of the total.
And even more impressive - the number of
filters collected from these garages has
skyrocketed, reaching 1.26 million in 2003.
And finally, the market forces which
helped catalyze this revolution also brought
about the purchase and operation of an oil
filter recycling machine in Ramat Hovav
which separates the used filters into their
components: the metal and used oil are
transferred for recycling and the oil-saturat-
ed paper is transferred for incineration.
2.2 Collection of Used Oil for Reuse
In 2003, some 15,922 tons of used
oil were collected, nearly a quarter of the
total quantity of mineral oil sold per year
and 56% of the quantity of used oil avail-
able for collection from garages. This rep-
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
resents a 12% increase in comparison to
2002. Moreover, the establishment of an
additional plant for used oil recycling led to
a doubling in the quantity recycled and a
two-thirds reduction in the quantity export-
ed for recycling in comparison to 2002.
2.3 Installation of Oil/Fuel Separators
At the beginning of the used oil col-
lection project, nearly no garages in Israel
had installed oil/fuel separators. Today,
some 210 oil separators have been
installed and enforcement measures have
been stepped up. Dozens of warnings have
been issued to garages concerning
requirements for oil/fuel separators.
3 CONCLUSION: A WIN-WIN
APPROACH
The Environmental Problem Solv-
ing approach calls for picking important
problems and fixing them. This is exactly
what Israel did. Utilizing a well-structured
procedure, the Ministry of the Environment
set about to clearly define a critical prob-
lem, establish a steering committee with
the participation of relevant stakeholders,
determine indicators for problem solving,
and formulate a detailed action plan. The
initial goal called for the collection of
350,000 used oil filters per year. The
results far exceeded expectations. Using
carrot and stick methozone-depleting sub-
stances, the method worked so well that
used filter collection companies were set
up, contracts were signed, a recycling
machine was purchased - and most impor-
tant of all -1.5 million filters were collected.
The initiators of the project in the
Ministry of the Environment, Dr. Motti Sela,
director of the Industry and Business
Licensing Division, and Adv. Zohar
Shkalim, director of the Enforcement Coor-
dination Division, are more than pleased
with the results. Yet both are determined to
keep fingers on pulse. Both are convinced
that market forces, education, and stringent
enforcement have made a difference.
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STAHL 315
USING INDICATORS TO LEAD ENVIRONMENTAL
COMPLIANCE AND ENFORCEMENT PROGRAMS
STAHL, MICHAEL M.
Director, Office of Enforcement and Compliance Assurance, United States Environmental
Protection Agency, stahl.michael@epa.gov
SUMMARY
Many environmental compliance and enforcement (ECE) programs around the world are
making good progress in identifying and implementing performance indicators. But at pres-
ent, very few countries have moved into the next stage of actually using performance indi-
cators to: 1) monitor and manage operations; 2) improve program effectiveness; and 3)
enhance accountability to political overseers and the public. This article explains why ECE
programs need to develop and use performance indicators, describes patterns emerging
from the progress being made by many countries toward identifying and implementing ECE
indicators, discusses how indicators can be used to manage and improve ECE programs,
and suggests ways to ensure continued progress for ECE indicators and programs.
1 WHY DO ECE PROGRAMS NEED
PERFORMANCE INDICATORS
For many years, international
organizations, environmental protection
agencies of national and provincial govern-
ments, and various non-governmental
organizations (NGOs) interested in envi-
ronmental matters have used indicators to
characterize environmental conditions.
These indicators provide a sense of the
current condition of the air, land, and water
and help identify whether their quality is
improving or deteriorating.!
Many forces contribute to the state
of environmental conditions. In the "pres-
sure/state/response" model used by the
Organization for Economic Cooperation
and Development (OECD), various human
activities (often involving energy, transport,
industry, agriculture, and others) put direct
and indirect pressure on the air, water,
land, and other living resources, and these
pressures are mitigated by various societal
responses, including economic forces and
actions by government agencies and pro-
grams.2
Among the responses of govern-
ment are programs designed specifically to
protect the environment by setting stan-
dards and regulating behavior and industri-
al practices that have an adverse impact on
the environment. A fundamental element of
environmental protection programs at the
local, provincial, national, and international
level is to ensure compliance with environ-
mental laws and regulations.
1.1 The Special Mission and
Obligation of ECE Programs
A premise of this article is that pro-
grams to ensure compliance with environ-
mental laws deserve and need their own
distinct effort to develop and use perform-
ance indicators. There are three arguments
in support of this premise. The first argu-
ment is that environmental protection sys-
tems cannot be effective in improving envi-
ronmental conditions if the laws and regu-
lations designed to protect the environment
are not known, respected, and obeyed.
ECE programs play a crucial role in ensur-
ing compliance with environmental laws, it
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
FIGURE 1. Three-Stage Model for Developing and Using Indicators
ibgel
IfliiiitSfyfeBff
ftaie$ftKl In&Usi&Hft
Bat Practice*
Determine scope I
1
Consult with stakeholder
and staff
1
Apply logic model
I
Develop guiding principles
|
Select criteria for
evaluating indicators
1
Develop common definitions
for key terms
i
Inventory existing -
:3"
[ Consult with experts j
^ * ""
:..:;:•: O:-;>;;. i,.;^-
Monitor implementation 1
J"
• " \ :
- " :": .-:":""" •'.!•
i' Develop and distribulc
•f implementation plan
;:::
Ensure timely and accurate
reporting
i;t: '
-'"'
"X ••'"
, • '. sugn .
> Witot::
Btstfrmctictt
Monitor performance with
regular reports
Analyze perform ana; of
organizational units
Review effectiveness trf
specific programs
Report to external
audiences
Analyze behind
the numbers
' O ;
is their primary mission to bring about such
compliance. Second, the absence of a
credible environmental compliance pro-
gram will mean that a major incentive for
voluntary efforts to go beyond compliance
will also be absent if no one is even bother-
ing to comply, why even consider going
beyond compliance? Thus, programs
designed to ensure compliance are not just
a building block in an environmental protec-
tion system, they provide the foundation on
which the system is built. The third and less
recognized argument is that ECE programs
often use tools (e.g., enforcement actions)
that impose penalties and/or obligations.
These programs are, in turn, obligated to
use these authorities fairly and wisely. Per-
formance indicators, especially when
shared with the public, can help determine
whether authorities and resources are
being used appropriately.
For all of the above reasons, it is
crucial for environmental ministers, staff
and managers of ECE programs, regulated
industries and facilities, legislative over-
seers, and the public to know if environ-
mental compliance efforts are succeeding,
and if they are not, how they can be
improved. ECE indicators can help provide
this knowledge.
A well-designed set or system of
performance indicators can be a powerful
tool to direct ECE programs toward the
most important results. Indicators can be
used to:
1. Monitor and manage day-to-day opera-
tions of ECE programs;
2. Identify and correct performance issues
and problems in ECE programs;
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STAHL 317
3. Adjust strategies and resource allocation
to improve the effectiveness of ECE pro-
grams;
4. Provide an account of program perform-
ance to political overseers and the pub-
lic.
Each of these uses will be
described further in this article under Sec-
tion 3, "Using Indicators to Manage and
Improve ECE Programs."
2 PROGRESS TOWARDS
IDENTIFYING AND IMPLEMENTING
ECE INDICATORS
Under the auspices of organiza-
tions such as the International Network for
Environmental Compliance and Enforce-
ment (INECE), the World Bank Institute,
and the OECD, good progress is being
made by many countries in developing per-
formance indicators for their ECE pro-
grams. While one uniform set of indicators
is not emerging from these efforts, some of
these countries are being guided by a
three-stage framework which suggests: 1)
identifying indicators; 2) designing and
implementing indicators; and 3) using indi-
cators as three steps on a path to follow for
developing ECE indicators.3 For each of
these three stages a set of best practices
has begun to emerge to help countries
manage their ECE indicators projects. Fig-
ure 1 lists the best practices for each of the
three stages of the indicators framework.4
2.1 Emerging Patterns
As more countries make progress
along the path of developing ECE indica-
tors, there are some patterns that can now
be identified:
1. Most Participating Countries in Identifi-
cation and Implementation Stages. In
addition to providing a path for countries
to follow, the framework also serves as a
set of basic milestones for assessing the
progress of countries currently develop-
ing ECE indicators. Many countries are
now on this path and have progressed to
the first milestone (i.e., they are identify-
ing indicators) or even to the second
(i.e., they are designing and implement-
ing indicators). Projects in Brazil, Mexi-
co, Argentina, and Costa Rica, among
others, are currently involved in identify-
ing and implementing indicators. Only a
few countries have taken the path all the
way to the point of using indicators to
manage their programs, and these coun-
tries are only in the early stages of using
indicators as a management tool. Pro-
jects in the United States and Canada
are beginning to use indicators to man-
age all or part of their ECE programs.5
2. Indicators Tailored to Unique Circum-
stances. Most countries in the identifica-
tion and implementation stage are devel-
oping indicators that are tailored for their
unique circumstances. While many ECE
programs are learning from examples
used by other countries, indicators are
being selected for implementation based
on institutional needs and conditions of
individual agencies or programs. This
means that there is not one universal set
of ECE indicators being adopted, but
varying sets with some common indica-
tors or characteristics.
3. Four Types of Indicators Projects. The
ECE indicators projects going on around
the world fit into one of four categories,
depending on whether they are compre-
hensive or focused with respect to the
laws and requirements they include, and
whether they are national or sub-nation-
al in terms of the jurisdiction they cover.
The four categories are:
a) Comprehensive national indicators -
These are used to assess effective-
ness of national ECE programs'
efforts to ensure compliance with all
national statutes and regulations.
Developing a set of comprehensive
national indicators is very complex,
since it involves many persons, multi-
ple agencies, collection of data from
many sources, and may necessitate
development of a national data sys-
tem.
b) Comprehensive sub-national indica-
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
tors - These are used to assess
effectiveness of an ECE program of a
regional or district office of a national
agency, a state/provincial environ-
mental agency, or a local or municipal
agency. This type of effort has the
advantage of being a more manage-
able size than a comprehensive
national effort, and can often provide
a means of testing a system of indica-
tors that can later be applied to the
national program.
c) Focused national indicators - These
are used when a national environ-
mental agency wants to assess the
effectiveness of a focused national
initiative to address a specific non-
compliance pattern or environmental
risk. For example, focused national
indicators might be developed for an
inspection and enforcement initiative
to improve compliance among the
petroleum refining industry, a targeted
enforcement initiative to improve
compliance with all air pollution
requirements, or a strategy that inte-
grates incentives and enforcement to
reduce emissions of a specific pollu-
tant into water bodies.
d) Focused sub-national indicators -
These are used when a regional,
provincial/state, or local/municipal
agency wants to assess the effective-
ness of a focused initiative to address
a specific non-compliance pattern or
environmental risk. For example, this
type of indicator system might be
developed for a regional or state effort
to use inspections and enforcement
to control deforestation, or a munici-
pal initiative to combine assistance
followed by enforcement actions to
limit illegal dumping of waste on the
land.
4. Common Set of Barriers. Another pattern
that can be identified from the indicators
projects going on around the world is a
set of barriers that many ECE programs
confront as they try to develop indica-
tors. Those barriers are:
a) Compliance culture in formative
stages - In some countries, the obli-
gation to comply with environmental
(and other) laws is not yet ingrained
deeply and the rule of law is not yet
embraced fully by citizens, business-
es and institutions of government.
b) Environmental laws not fully imple-
mented - Environmental laws may be
relatively new, they may have been
changed significantly, and there may
be impediments to implementation of
specific sections of a law.
c) Environmental agencies not mature -
The operation of environmental agen-
cies may not be very sophisticated,
they may possess limited capabilities,
or they may have resource shortages.
d) Systematic data collection lacking -
Some countries may lack data sys-
tems or may be only beginning to
develop them.
e) Duration of implementation - Identify-
ing and implementing a useful set of
performance indicators takes a signif-
icant amount of time and commitment
of personnel, and the effort required
may sometimes seem disproportion-
ate to the value to be gained from
developing and using performance
indicators.
f) Lack of analytical skills - Agencies
often lack the ability to interpret the
meaning of indicators, i.e., to deter-
mine what's behind the numbers, as
this requires a sophisticated under-
standing of program operations and a
skill for diagnosing problems.
g) Misuse by external audiences - The
prospect of performance indicators
being inadvertently or knowingly mis-
used by advocacy groups or legisla-
tive overseers sometimes discour-
ages program managers from devel-
oping and using indicators.
3 USING INDICATORS TO MANAGE
AND IMPROVE ECE PROGRAMS
Public management literature sug-
-------
STAHL 319
gests that performance indicators can be
used for a wide range of purposes in public
sector programs and organizations. In his
article entitled, "Why Measure Perfor-
mance? Different Purposes Require Differ-
ent Measures," Robert Behn of Harvard
Universitye identifies eight specific mana-
gerial purposes that can be served by per-
formance indicators. According to Behn,
the eight purposes are to evaluate, control,
budget, motivate, promote, celebrate,
learn, and improve. Behn asserts that no
single indicator is appropriate for all eight
purposes, and that each purpose address-
es a different management question and
requires specific input, output, or outcome
indicators. A very similar list of uses of per-
formance indicators was previously offered
by Harry Hatry of the Urban Institute.?
3.1 Four Uses of ECE Indicators
These purposes are relevant (in
varying degrees) to any public program or
organization, not just ECE programs. Build-
ing on these eight broad purposes, it would
be useful to adapt them to describe the
specific uses that ECE practitioners are
making of performance indicators. For ECE
practitioners, four distinct but related uses
seem appropriate.
The first use of performance indi-
cators for ECE practitioners is to monitor
and manage program operations. Monthly
or quarterly reports to program managers
and staff about key outputs and outcomes
can be a very useful management tool to
ensure that resources are being used
appropriately to produce specific activities
or results. Such reports can be organized
to break out data for a program as a whole
(e.g., the national enforcement program),
for specific program components (e.g., the
enforcement of air pollution laws), and for
particular organizational units (e.g., a
regional or provincial office of a national
program).
The second use of performance
indicators for ECE practitioners is to identi-
fy and correct performance issues and
problems. Data from input, output, and out-
come indicators can be organized to com-
pare the current year to the previous year,
illustrate a trend over a longer period of
years, compare the performance of one
program component or organizational unit
to another during the same period, and to
assess performance in achieving a particu-
lar goal or target. Indicators can highlight
deficiencies and anomalies, allowing staff
and managers to further analyze the cause
of performance which deviates from past
trends or current targets.
A third use of indicators by ECE
practitioners is to evaluate and adjust pro-
gram strategies and resource allocation to
improve effectiveness. By analyzing pat-
terns between inputs, outputs, and out-
comes, ECE practitioners can learn more
about what combination of activities pro-
duces the most important results. Such
analysis can build a chain that improves the
effectiveness of the ECE program B
resources are shifted to produce more of
the right combination of activities, which
increases the contribution of the ECE pro-
gram to important outcomes that protect
the environment.
A fourth use of indicators by ECE
practitioners is to report to~ political over-
seers and the public about program per-
formance. ECE programs can be well-
served by providing to external audiences
an annual (or more frequent) account of
activities performed and results achieved.
Reports that emphasize results and out-
comes achieved through activities and out-
puts of the program can enhance support
for the compliance and enforcement mis-
sion. By describing accomplishments in
terms that emphasize results - pounds of
pollution reduced through enforcement
actions, improved environmental manage-
ment practices at facilities from compliance
assistance, improved rates of compliance
in an industry sector - an account of per-
formance is provided that is meaningful to
multiple audiences.
3.2 Lessons that Inform Use
of ECE Indicators
As ECE practitioners use perform-
ance indicators for these purposes, they
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
should be informed by two lessons from the
experience of countries that have begun
using indicators to manage their ECE pro-
grams. The first lesson is that the limita-
tions of indicators need to be understood.
Indicators that show the amount of an out-
put or outcome produced do not tell pro-
gram personnel all they need to know
about that output or outcome. For example,
an indicator can tell ECE program man-
agers that the number of inspections con-
ducted in 2004 is fifteen percent lower than
the number conducted in 2003, but it can-
not explain why the number is lower. To
learn that, more analysis is needed of pro-
gram operations, sometimes using qualita-
tive information to understand the reasons
for the reduction in inspections. Thus, indi-
cators provide a kind of warning light that
signals a need for deeper analysis or fur-
ther investigation of the forces and influ-
ences that shape program performance.
A second lesson learned from the
use of ECE indicators is that intermediate
outcomes provide very valuable manage-
ment information. Efforts to develop indica-
tors often attempt to leap from measuring
basic outputs (e.g., the number of enforce-
ment actions taken) to measuring complex
end outcomes (e.g., improvements in ambi-
ent air quality), ignoring many valuable
results that are produced between activities
and ultimate outcomes. Hatry defines inter-
mediate outcomes as events, occurrences,
or changes in conditions, behavior, or atti-
tudes "expected to lead to the ends desired
but are not the ends themselves."8 Thus, in
the context of ECE programs, examples of
intermediate outcomes might be invest-
ment in pollution control equipment or
implementation of improved environmental
management practices resulting from
enforcement actions taken at facilities.
These outcomes will contribute to the end
outcome (e.g., an improvement in ambient
air quality) but they are not the end them-
selves.
Hatry points out two advantages of
intermediate outcomes that are relevant
and important for ECE practitioners and
programs.9 Intermediate outcomes, by def-
inition, occur before B and are expected to
help lead to B the end outcomes. As a
result, intermediate outcomes usually pro-
vide more timely information than end out-
comes. A second advantage is that pro-
grams almost always have more influence
over intermediate outcomes than they do
over end outcomes. Stated another way,
there is often a direct causal link between a
program activity (e.g., an enforcement
action) and an intermediate outcome (e.g.,
an investment in pollution control equip-
ment required as a condition of the enforce-
ment settlement). This direct causal link
allows ECE programs to make a clear and
credible claim that they have produced out-
comes that would not have occurred in the
absence of the program.
3.3 Benefits of Using ECE Indicators
When used appropriately, indica-
tors have been able to provide a variety of
benefits to ECE practitioners.
1. Improved Control of Program Opera-
tions. Even a very basic set of outcome
indicators will increase understanding
about what is being accomplished, and
when combined with data about inputs,
judgments can be made about whether
resources are being used efficiently. At a
minimum, basic output indicators can
help determine whether program staff
are performing fundamental program
activities.
2. Improved Goal-setting and Strategy
Development. By using indicators as a
management tool, goals can be set
regarding the amount of activities or
results that should be produced over a
period of time. Indicators can also be
used to identify needed adjustments in
the mix of activities or results the pro-
gram is producing.
3. Improved Resource Allocation Deci-
sions. Output and outcome indicators
can be analyzed to determine whether
resources need to be increased, shifted,
or altered in some way to meet goals
and achieve desired results. Indicators
provide an understanding of the relation-
ship between outputs and outcomes,
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STAHL 321
thereby enhancing the ability of program
managers to increase resource invest-
ments in preferred outcomes.
4. Improved Identification and Correction of
Performance Problems. Indicators that
can be organized by type of output or
outcome, by organizational unit, and by
program area increase program man-
agers' ability to identify performance
problems and investigate them further to
design solutions.
5. Improved Ability to Motivate Employees.
There is much truth to the oft-repeated
statement, "What gets measured gets
done." Performance indicators send a
clear signal to program personnel about
what needs to be accomplished. Setting
a goal to achieve a certain amount of a
specific output tends to organize and
focus some portion of resources on
achieving the goal.
6. Improved Ability to Communicate with
the Public. Performance indicators help
external audiences understand and sup-
port program activities. Output indicators
can convey to the public that funds are
producing some amount of inspections,
enforcement actions, or other activities.
Outcome indicators can convey that
these activities are resulting in important
outcomes such as reduced pollution,
increased compliance, and improved
environmental management at facilities.
Although the challenges and barri-
ers associated with identifying and imple-
menting ECE indicators are formidable, the
benefits derived from using the indicators
to manage and improve programs are sig-
nificant. Countries that have made it to the
third milestone on the path - i.e., using indi-
cators - have recognized that the benefits
of using indicators outweigh the costs of
implementing.
4 ENSURING FURTHER
PROGRESS FOR ECE INDICATORS
AND PROGRAMS
ECE practitioners using indicators
as a management tool need to form a com-
munity of practice to learn from each oth-
ers' experience and to show the way for
other practitioners who are on the path of
identifying, implementing, and using indica-
tors. Such a community is necessary if
ECE programs want to receive the maxi-
mum benefit from performance indicators.
4.1 The Need for a Community
of Practice
While the creation of sets or sys-
tems of indicators is an important step
toward making ECE programs more effec-
tive, systems of indicators by themselves
cannot bring about improved performance
in ECE programs. Setting up a system of
indicators can be seen as acquiring a tool,
but the tool needs to be used continuously
by program managers and staff. Over time,
program personnel gain more experience
and skill in using the tool, they hone and
sharpen the tool to make it more useful,
and ultimately the program to which they
apply the tool becomes more effective.
There is not much accumulated
experience in using ECE indicators for pro-
gram management and improvement,
since most countries are still in the identifi-
cation and implementation stages of their
ECE indicators projects. But a community
of practice for ECE indicators could make a
significant contribution to creating a cadre
of experienced, thoughtful program leaders
who document their knowledge, report it to
interested colleagues around the world,
and advance the collective learning of ECE
practitioners. This community of practice
should encourage its members to report
periodically to a central repository about
the progress or challenges associated with
their indicators projects. Members should
also be encouraged to post "indicator bul-
letins" to provide examples of how indica-
tors are being used to manage and improve
ECE programs, and e-dialogues about spe-
cific topics can be used to promote more
frequent communication among members
about ideas and developments in perform-
ance measurement.10
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SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
4.2 Toward Performance-Based
Management for ECE Programs
Ultimately, if ECE programs are to
make their maximum contribution to envi-
ronmental protection, they will need to join
other government programs in moving
toward performance-based management.
This movement toward performance-based
management is global, as described in var-
ious books and articles about global trends
in public management reform.11 In his arti-
cle entitled "Performance-Based Manage-
ment: Responding to the Challenges,"
Joseph Wholey defines performance-
based management as "the purposeful use
of resources and information to achieve
and demonstrate measurable progress
toward agency and program goals."12 The
United States Government Accountability
Office (GAO) describes three key steps in
performance-based management: (a)
developing a reasonable level of agree-
ment on mission, goals, and strategies for
achieving the goals; (b) implementing per-
formance measurement systems of suffi-
cient quality to document performance and
support decision making; and (c) using per-
• formance information as a basis for deci-
sion making at various organizational lev-
els.13 Wholey suggests that in coming
years there will be a premium on managers
and staff with the knowledge, skills, and
abilities to apply performance-based man-
agement to their programs. This will require
training on how to use performance infor-
mation: in agency and program manage-
ment systems; to provide accountability to
key stakeholders and the public; to demon-
strate effective or improved performance;
and to support resource allocation and
other policy decision making. 14
ECE practitioners, through their
work on indicators, have established a
steady pace of progress toward "imple-
menting performance measurement sys-
tems of sufficient quality" and applying per-
formance-based management to their pro-
grams. Managers and staff of ECE pro-
grams can determine whether they have
succeeded in becoming performance-
based programs by watching for specific
changes. (Perhaps these are best viewed
as five indicators of program improvement.)
ECE programs have reached the threshold
for high performance when they are:
addressing significant environmental, pub-
lic health, and compliance problems; using
data to make strategic decisions for better
utilization of resources; using the most
appropriate tool to achieve the best out-
come; assessing the effectiveness of pro-
gram activities to ensure desired program
performance; and effectively communicat-
ing the environmental, public health and
compliance outcomes to the public. When
this threshold is reached, the hard work of
identifying, implementing, and using per-
formance indicators will have paid off and
the effectiveness of ECE programs can be
fully realized.
5 REFERENCES
1 A relatively recent example of indicators
pertaining to environmental conditions
can be found in, EPA, "Draft Report on
the Environment 2003,"EPA-260-R-02-
006, June 2003, also available at
http://www.epa.gov/indicators/.
2 Linster, Myriam, "OECD Work on Environ-
mental Indicators," in Measuring What
Matters, Proceedings from the INECE-
OECD Workshop on Environmental Com-
pliance and Enforcement Indicators,
November 3-4, 2003, pg. 168.
3 Stahl, Michael, "Performance Indicators
for Environmental Compliance and
Enforcement Programs: The U.S. EPA
Experience," in Measuring What Matters,
Proceedings from the INECE-OECD
Workshop on Environmental Compliance
and Enforcement Indicators, November 3
-4,2003, pg. 150- 157.
4 These best practices are described in an
upcoming INECE publication entitled,
"Performance Measurement Guidance for
Compliance and Enforcement Practition-
ers," written by Michael Stahl in consulta-
tion with the INECE Indicators Expert
Working Group.
5 Descriptions of many of these projects
-------
STAHL 323
can be found at the INECE web site,
http://www.inece.org/forumsindicators.
html.
e Behn, Robert D., "Why Measure Perfor-
mance? Different Purposes Require Dif-
ferent Measures," Public Administration
Review, Vol. 63, No.5., September/Octo-
ber 2003, pg. 586 - 606.
7 Hatry, Harry, Performance Measurement:
Getting Results, The Urban Institute
Press, Washington, D.C., 1999, p.158
s Hatry, Harry, IBID, p. 16.
9 Hatry, Harry, IBID, p.19.
10 The INECE web site currently provides
many useful features for practitioners
interested in ECE indicators, and could
easily be adapted to provide a visible
forum for "indicators bulletins." INECE
has also conducted e-dialogues on indi-
cators topics on their web site.
11 See, for example, Kettl, Donald R, The
Global Public Management Revolution,
Brookings Institution Press, Washington,
D.C., 2000, pg. 2. Kettl describes
"accountability for results," and a "focus
on outputs and outcomes instead of
processes and structures "as a core
characteristic of the global movemen tto-
ward reform of public management.
12 Wholey, Joseph S., "Performance-Based
Management: Responding to the Chal-
lenges," Public Productivity and Man -
agement Review, Vol. 22, No. 3., pg.
288.
13 Wholey, Joseph S., IBID, pg. 289.
14 Wholey, Joseph S., IBID, pg. 303.
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324 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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LIST OF PARTICIPANTS 325
LIST OF PARTICIPANTS
Dr. Sheila Abed
Chair
IUCN Commission on
Environmental Law
Bonn
Paraguay
sheila.abed@idea.org.py;
sheila.abed@iucn.org
Ms. Anita Akella
Consultant
Flora International Environmental
Consulting
2667 Chateau Way
Livermore, CA 94550
United States
1-323-868-2762
anita@flora-consulting.com
Ms. Ada Alegre Chang
Ministry of Energy and Mines
Peru
aalegre@minem.gob.pe
Ms. Nawzat AH
Member
IUCN Commission on
Environmental Law
Jordan
nawzat@hotmail.com
Mr. Ebrahim AH
Environmental Specialist, Director
Environmental Assessment and Planning
Directorate
PO Box 32657
Salmabad 32657
Kingdom of Bahrain
973-17-875154
973-17-874615
alLebrahim72@hotmail.com
Mr. Jonathan Allotey
Acting Executive Director
Environmental Protection Agency
P.O. Box M-326
91 Sralets Road
Accra, Ghana
23-32-166-2693
23-32-166-2690
JAIIotey@epaghana.org, epaed®
africaonline.com.gh
Mr. Mohammed Altoraif
National Comission for Wildlife
Conservation and Development
P.O. Box61681
Riyadh
Saudi Arabia
966-1-4415590
Mr. Yousef Al-Wetaid
General Manager
National Comission for Wildlife
Conservation and Development
P.O. Box61681
Riyadh
Saudi Arabia
966-1-4415590
yousef@conserv-train.org.sa
Dr. Media Baccar
Consultant
International Fund for Animal Welfare
9 rue Mohamid All Tahir
1082 Mutuelleville
Tunis, Tunisia
216-22-302959
216-71 -282929
hbaccar2000 @ yahoo .fr
Dr. Gilbert Bankobeza
Legal Officer
United Nations Environment Programme
Ozone Secretariat
P.O. Box 30552
Nairobi, Kenya
254-2-623854
254-2-623913
gilly.bankobeza@unep.org
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326
SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Mr. Abdelkader Baouendi
Expert en Environment
L'Audit Environmental
130 Avenue Habib Bougatfa
La Bardo 200
Tunisia
216-71 586.217
216-71 504.176
baouendi@planet.tn
Mr. Mohamed Ben Hassine
Chief of Service
Ministere de I'Environnement et du
Developpement Durable
12 Rue Cameroun
Belvedere 1002
Tunisia
bhassinegr@yahoo.fr
Mr. Hassane Bendahmane
National Coordinator
L'autoevaluation Nationale des
Capacites a Renforcer en
Matiere de I'Environnement
Morocco
212-37-77-21-66-
212-37-77-21-66
bendahmane@ancre.ma
Mr. Antonio Benjamin
Public Prosecutor for Sao Paulo
Law for a Green Planet Institute
R. Cons. Rodrigues Alves 948/92
Rua Bage, 139/194
Sao Paulo 04012-140
Brazil
55-11-3119-9700
planetaverde @ planetaverde.org
Mr Renzo Benocci
Director
Pollution Enforcement
Environment Canada
351 St-Joseph
17th Floor PVM
Gatineau ON K1A OH3
Canada
1-819-953-1523
1-819-953-3459
Renzo. Benocci ©ec.gc.ca
Mr. Hocine Benyahia
Treasurer and Project Manager
National Federation for the Protection of
the Environment
Algeria
fnpe_algerie@yahoo.fr; benhoc@caramail.com
Mrs. Mihaela Beu
Regional Chief Commissar
National Environmental Guard
str. Dorobantilor, 99
Cluj-Napoca 400609
Romania
40-264-410719
40-264-410719
gmcj@cluj.astral.ro
Dr. Adriana Bianchi
Senior Policy and Development Specialist
The World Bank Institute
1818 H Street, NW
Room J4-085
Washington DC 20433
United States
1-202-473-6371
1-202-676-0977
abianchi@worldbank.org
9
Mr. Cees Jan Bloemendaal
Province of Overijssel
PO Box 10078
Zwolle 8000GB
The Netherlands
31-38-4252135
31-38-4254855
CJP.Bloemendaal@prv-overijssel.nl
Ms. Anna Bobo-Remijn
Legal Coordinator
European Commission
Belgium
32-2-799-0334
32-2-299-4123
anna.bobo-remijn@cec.eu.int
Mr. El Walid Boulekroune
213-70-51-35-90
walid@djazair-connect.com
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LIST OF PARTICIPANTS 327
Ms. Brenda Brito Carmo
Vice Executive Director and Researcher
IMAZON -Amazon Institute of People and
Environment
Rd Mario Covas km 01, Pass Pau D'arco, Conj
Village Pau D'arco, n 09
Ananindeua Para
Brazil
55-91-235-4214
brendabrito@imazon.org.br
Ms. Susan Bromm
Director
Office of Site Remediation Enforcement
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, NW
MC2271A
Washington DC 20460
United States
1-202-564-5110
1-202-564-0094
bromm.susan@epa.gov
Mr. Carl Bruch
Legal Officer
United Nations Environment Programme
1707 H Street, NW, Suite 300
Washington DC 20006
United States
1-202-974-1303
1-202-785-2096
carl.bruch@rona.unep.org
Ms. Angela Bularga
Coordinator
NIS Environmental Compliance and Enforce-
ment Network
Organization for Economic Cooperation and
Development
2, rue Andre Pascal
Paris, Cedex 16 75775
France
33-14-524-9863
33-14-524-9671
Angela.Bularga@oecd.org
Mr. Poul Byskov
Senior Engineer
Norwegian Pollution Control Authority
PO Box 8100 Dep.
Olso NO-0032
Norway
poul.byskov@sft.no
Ms. Paula Caldwell St-Onge
Director General
Environment Canada
351 St. Joseph Boulevard
17th Floor, Place Vincent Massey
Gatineau Quebec K1AOH3
Canada
1-819-997-2019
1-819-997-0086
paula.caldwell ©ec.gc.ca
Ms. Deb Callahan
President
League of Conservation Voters
1920 L Street NW
Washington DC
deb_callahan @ lcv.org
Ms. Donna Campbell
Executive Director
Legal Services
New South Wales Department of Environment
and Conservation
59-61 Goulbourn Street
Sydney South NSW 1232 2000
Australia
61-29-99-56103
61-29-99-55951
donna.campbell@environment.nsw.gov.au
Mr. Hassan Chouaouta
Conseiller
Deutsche Gesellschaft fur Technische
Zusammenarbeit (GTZ)
B.P. 433
10000
Rabat
Morocco
212-37-680710
212-37-680711
chouaouta@gtz-pgpe.ma
Mr. John Chouinard
Director
Conservation & Protection
Department of Fisheries and Oceans
104 Dalhousie Street
Quebec G1K7Y7
Canada
ChouinardJo@dfo-mpo.gc.ca
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328
SEVENTH INTERNATIONAL CONFERENCE ON EMVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Dr. Bill Clark
International Liasion Officer
Nature and National Parks Protection Authority
3 Rehov Am Veolamo
Givat Shaul
Jerusalem 95463
Israel
97-22-566-5214
97-22-561-1871
clarkb@netvision.net.il
Ms. Maria Comino
Team Leader - Reforms
Department of Infrastructure, Planning and
Natural Resources
GPO Box 3927
Sydney 2002
Australia
61-2-9762-8392
61-2-9762-8716
maria.comino@dipnr.nsw.gov.au
Mr. Kenneth Cook
President
Environmental Working Group
1436 U Street NW
Suite 100
Washington QC 20009
United Staters
ken@ewg.org
Mr. Matthew Cooper
Environmental Media Consultant
3001 4th Street
Santa Monica CA 90405
United States
1-310-612-6844
1-310-450-2350
arda@earthlink.net; arda@paradise.net.nz
Mr. Yves Corriveau
Legal Counsel
Environment Canada
351 St. Joseph Blvd.
17th Floor
Hull Quebec
Canada
1-514-861-4022
1-514-861-8949
Yves.Corriveau@ec.gc.ca
Mr. Victor Cotruta
Executive Director
Regional Environmental Centre (REC) -
Moldova
57/1, B. Bodoni Street
Office 107-111
Chisinau MD 2005
Moldova
373-2-23-86-85
373-2-23-86-86
vcotruta@moldova.md, victor.cotruta@rec.md
Mr. John Cruden
Deputy Assistant Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Room 2718
Washington DC 20530-0001
United States
1-202-514-2718
1-202-514-0557
john.cruden@usdoj.gov
Mr. Jim Curlin
Information Manager
United Nations Environment Programme
Tour Mirabeau
39-43 quai Andre CitroDn
Paris Cedex 15 75739
France
33-1-44-37-1455
33-1-4437-1474
jcurlin@unep.fr
Mr. Neil Davies
Environment Agency (England and Wales)
Rio House, Waterside Drive, Aztec West
Almondsbury Bristol BS32 4UD
United Kingdom
neil.davies@environment-agency.gov.uk
Mohamed Rida Derder
Special Consultant
INECE Secretariat
2141 Wisconsin Avenue, Suite D2
Washington, DC 20007
1-202-338-1300
ridaderder@juno.com
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LIST OF PARTICIPANTS 329
Ms. Franceses DiCosmo
U.S. Environmental Protection Agency
1650 Arch St.
Philadelphia PA 19103-2029
United States
dicosmo.francesca@epa.gov
Mr. Mihail Dimovski
Programme Manager
Regional Environment Center for Central and
Eastern Europe & BERGEN
Ady Endre 9-11
Szentendre 2000
Hungary
36-26-504-052
36-26-311-294
mdimovski@rec.org
Mr. Zoran Dimovski
State Environmental Inspector
Ministry of Environment and Phisycal Planning
ul.Drezdenska 52
Skopje 1000
Republic of Macedonia
38-92-306-6930
38-92-36-6931
zdimovski61 ©mt.net.mk
Ms. Maria Di Paola
Director on Research and Training
Fundacion Ambiente y Recursos Naturales
Buenos Aires 1428
Argentina
54-11-4783-7032
+54-11-4783-7032*223
medipaola@farn.org.ar
Mr. Azzedine Downes
Vice President
International Fund for Animal Welfare
POBox 193
Yarmouth Port MA 02675
United States
adownes@ifaw.org
Mr. Rene Drolet
Director
Compliance Assurance
Environment Canada
351 St Joseph Boulevard
17th Floor PVM
Gatineau Quebec K1A OH3
Canada
1-819-994-0738
1-819-997-0086
Rene.Drolet@ec.gc.ca
Mr. Ofir Drori
Director
The Last Great Ape Organization (LAGA)
Valley Nlongkak
POB4916
Yaounde
Cameroon
lastgreatape@yahoo.com
Ms. Linda Duncan
Consultant on Environmental Law & Policy
9816-90 Avenue
Edmonton AB T6E 2T1
Canada
1-780-433-8806
1-780-433-6099
Mr. Driss El Harrhouri
Gendarmerie Royale
Marrakech
Morocco
212-061-954-480
Mr. El Hassan El Izary
Ministry of the Interior
Morocco
212-044-308-439
Mr. Nor El Yakine
Gendarmerie Royale
Marrakech
Morocco
212-061-954-480
Mr. Abdallah Elyacoubi
Ministry of the Environment
Morocco
elyabdou@yahoo.fr
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330
SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Mr. Mohamed Elyazghi
Minister
Ministry of Territory Planning, Environment and
Water
Rabat
Morocco
Mr. Mohamed Fdrissi
Ministry of the Interior
Morocco
212-044-308-439
Ms. Melissa Fourie
Project Manager
Department of Environmental Affairs & Tourism
Pretoria
South Africa
27-012-310-3583
27-0123204431
mfourie@deat.gov.za
Ms. Dadouch Fouzia
Ministere de I'lnterieur
36, Angle Avenue EI-Abtal et Rue Oum Errabia
Agdal - Rabat
Morocco
212-7-766-658
dadouchf@yahoo.fr; dadouch.f@menara.ma
Mr. Joe Freedman
Office of General Counsel
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, N. W.
Mail Code: 2313A
Washington DC 20460
United States
1-202-564-5406
freedman.joseph@epa.gov
Mr. Mike Frizzel
2141 Wisconsin Ave, NW, Suite D2
Washington DC 20007
United States
1-202-338-1300
1-202-338-1810
inece@inece.org
Mr. Sibusiso Gamede
Consultant on Legal Issues
Basel Convention Regional Centre
c/o CSIR, Meiring Naude Road Block 4, Room
130
P.O. BOX 109
Silverton Pretoria 0127
South Africa
27-12-349-1130
27-12-349-1043
gamede@sjp.co.za
Mr. Paul Gavrel
Office of Enforcement
Environment Canada
351 St. Joseph Boulevard
Place Vincent Massey - 17th Floor
Hull Quebec
Canada
1-819-953-0762
Paul.Gavrel@ec.gc.ca
Mr. Daniel Geisbacher
Head Inspector and National IMPEL
Coordinator
Slovak Inspectorate of the Environment
Karloveska 2
Bratislava 84222
Slovak Republic
42-126-542-6950
42-126-542-3181
geisbacher@sizp.sk
Mr. Jo Gerardu
Inspector for International Affairs
Inspectorate of Housing, Spatial Planning and
the Environment (VROM-lnspectorate)
VI/AL I PC 500
PO Box 16191
The Hague 2500 BD
The Netherlands
31-70-339-2536
31-70-339-1985
Jo.Gerardu@minvrom.nl
Mr. Theo de Gelder
Senior Inspector
Netherlands Emission Authority
The Netherlands
tdgelder@zeelandnet.nl
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LIST OF PARTICIPANTS 331
Mr. Jose Pablo Gonzalez
Adjunct Attorney General
Chief Environmental Prosecutor
P.O. Box 586-2070
San Jose
Costa Rica
506-295-3401
506-295-3541
jpgonzalez@poder-judicial.go.cr
Mr. Dave Gorman
Better Regulation Manager
Scottish Environment Protection Agency
Erskine Court
Castle Business Park
Stirling Scotland FK9 4TR
United Kingdom
44-1786-457-700
44-1786-446885
dave.gorman@sepa.org.uk
Mr. Jim Gray
Head of Regulatory Development
Environment Agency (England and Wales)
Rio House
Aztec West, Almondsbury
Bristol South Gloucestershire BS32 4UD
United Kingdom
44-1454-624400
44-1454-624032
jim.gray@environment-agency.gov.uk
Mr. David Grossman
Staff Attorney
INECE Secretariat
2141 Wisconsin Avenue, NW
Washington DC 20007
United States
dgrossman @ inece.org
Ms. Violeta Gustale
Communication Specialist
Institute de Derecho y Economfa Ambiental
(IDEA)
Nicanor Torales 150
Asuncion 1851
Paraguay
595-21-614620
595-21-662543
violeta.gustale@idea.org.py
Ms. Christine Hanson
General Counsel, Legal Services Branch
Department of Infrastructure Planning and
Natural Resources
GPO Box 3927
Sydney NSW 2001
Australia
61-2-9762-8010
61-2-9762-8716
christine.hanson@dipnr.nsw.gov.au
Sir John Harman
Chairman
Environment Agency (England and Wales)
Millbank Tower 25th Floor
21/24 Millbank
London SW1P4XL
United Kingdom
john.harman@environment-agency.gov.uk
Ms. Phyllis Harris
Principal Deputy Assistant Administrator
U.S. Environmental Protection Agency
1200 Pennsylvania Ave, NW, MC 2201A
Washington DC 20460
United States
1-202-564-2450
1-202501 3842
harris.phyllis@epa.gov
Mr. Robert Heiss
Director
International Compliance Assurance Division
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue NW
Ariel Rios Building, Mail Code #2222A
Washington DC 20460
United States
heiss.robert@epa.gov
Mr. Markku Hietamaki
Environmental Counsellor
Ministry of the Environment
P.O. Box 35 GOVERNMENT
Helsinki FIN-00023
Finland
358-9-1603-9703
358-9-1603-9453
markku.hietamaki@ymparisto.fi, Markku.
Hietamaki@vyh.fi
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332
SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Mr. Barry Hill
Director
Office of Environmental Justice
U.S. Environmental Protection Agency
1200 Pennsylvania Ave, NW
Washington DC 20460
United States
hill.barry@epa.gov
Mr. Harvey Himberg
Sr. Environmental Specialist
Environmentally and Socially Sustainable
Development Network
The World Bank
MC5-128
Washington, DC
1-202-458-9099
hhimberg@worldbank.org
Mr. Antero Honkasalo
Director
Department for Environmental Proection in
Trade and Industry
Ministry of the Environment
P.O. Box 380
Helsinki 00131
Finland
358-9-1991-9345
358-9-1991-9453
antero.honkasalo@ymparisto.fi
Mrs. Dorine Hornung
Inspectorate of Housing, Spatial Planning and
the Environment (VROM-lnspectorate)
P.O. Box 850
Eindhoven 5600 AW
The Netherlands
dorine.hornung@minvrom.nl
Mr. Chris Howes
Enforcement Policy Manager
Environment Agency (England and Wales)
Rio House Waterside Drive
Aztec West
Almondsbury Bristol BS32 4UD
United Kingdom
44-14-5462-4029
chris.howes@environment-agency.gov.uk
Mrs. Zahia Ibersienne
ANPE
Algeria
213-72-33-43-80
iber-zahia@ hotmail .com
Ms. Aesah Javier
Administrative Assistant
INECE Secretariat
United States
1-202-338-1300
1-202-338-1810
ajavier@inece.org
Mr. Davis Jones
Environmental Scientist
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, NW
Mail Code 2254A
Washington DC 20460
United States
1-202-564-6035
1-202-564-0073
Jones.Davis@epa.gov
Dr. Palamagamba Kabudi
Institutional and Legal Framework for
Environmental Management Project, Vice
President's Office
PO Box 75335
Dar es Salaam
Tanzania
255-22-211-8416
255-22-211-9355
pjkabudi@udsm.ac.tz
Mr. Donald Kaniaru
Kaniaru & Kaniaru Advocates
ABC Bank House, 1st Floor, Woodvale Groove,
Westlands
P.O. Box 1038
Sarit Centre Nairobi 00606
Kenya
254-20-4455-1275
254-20-445-1276
wkaniaru@africaonline.co.ke
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LIST OF PARTICIPANTS 333
Mr. Bakary Kante
Director
Division of Policy Development & Law
United Nations Environment Programme
PO Box 30552
Nairobi
Kenya
bakary.kante@unep.org
Ms. Ayse Karadeniz
Asst. Environmental Expert Turkish
Ministry of Env. and Forestry
Turkey
90-312-2879963
90-312-2855875
ozgekaradeniz@hotmail.com
Mr. Nikolay Kenanov
Director
Ministry of Environment and Water
67 William Gladstone Str
Sofia 1000
Bulgaria
359-2-9406387
359-2-9813384
Mr. Wout Klein
Project Manager
Inspectorate of Housing, Spatial Planning and
the Environment (VROM-lnspectorate)
PO Box 16191 IPC500
The Hague 2500 BD
The Netherlands
31-573-401756
31-573-401675
wout.klein@minvrom.nl
Mr. Albert Koehl
Lawyer
Sierra Legal Defence Fund
30 St. Patrick St.
Suite 900
Toronto ON M5T 3A3
Canada
1-416-368-7533
1-416-363-2746
akoehl @ sierralegal .org
Mr. Fred Kok
Secretary
Landelijk Overleg Milieuhandhaving
Koningskade 40-2596 AA
The Hague
The Netherlands
31-703-519701
31-705-3519707
fkok@lomsecretariaat.nl
Mr. George Kremlis
Head of Unit
European Commission
200 Rue de la Loi
BU9 1/185
Brussels B-1049
Belgium
32-22-966-526
32-22-991-070
Georges.Kremlis@cec.eu.int
Mr. Joe Kruger
Visiting Scholar
Resources for the Future
1616 P St. NW
Washington DC 20036
United States
1-202-328-5052
1-202-328-5137
Kruger@rff.org
Mr. Mohammed Lididi
Secretary General
Ministry of Justice
Ministere de la Justice
Place de la Mamounia
Rabat 10000
Morocco
212-37-73-22-74
212-37-73-47-25
lididi@justice.gov.ma
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334
SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Mr. Yvan Lafleur
Director
Wildlife Enforcement
Environment Canada
351 St. Joseph Blvd.
16th Floor PVM
Gatineau Quebec K1AOH3
Canada
1-819-953-4383
1-819-994-5836
Yvan.Lafleur@ec.gc.ca
Mr. Sheng Shuo Lang
Deputy Chief Officer
Multilateral Fund for the Montreal Protocol Sec-
retariat
1800 McGill College Avenue
27 Floor
Montreal Quebec H3A 3J6
Canada
1-514-282-1122
slang@unmfs.org
Mr. Andrew Lauterback
Senior Criminal Enforcement Counsel
U.S. Environmental Protection Agency
One Congress Street
Boston MA 02114
United States
1-617-918-1724
1-617-918-0724
lauterback.andrew@epa.gov
Mr. Kenneth Ledgerwood
Environment and Heritage Service
Calvert House, Castle Place Belfast BTI IFY
Northern Ireland BT1 1FY
United Kingdom
44-28-254-716
44-28-254-700
ken.ledgerwood@doeni.gov.uk
Ms. Ghizlane Legsai
Ministry of the Territory Planning, Water and
Environment
Rabat
Morocco
legsaighizlane@yahoo.fr
Mr. Peter Lehner
Chief
Environmental Protection Bureau
New York Attorney General
120 Broadway
26th Floor
New York NY 10028
United States
1-212-416-8450
1-212-416-6007
peter.lehner@oag.state.ny.us
Mr. Pierre Lemieux
Director
Conservation and Protection - Enforcement
Department of Fisheries and Oceans
200 Kent Street
OttawaONK1AOE6
Canada
lemieuxpie@dfo-mpo.gc.ca
Mr. Michael LeRoy-Dyson
Senior Operator
Ministry for the Environment
45 Tower Center
Auckland City
New Zealand
649-366-2000x7184
649-366-2155
Michael.LeRoy-Dyson@MfE.govt.nz
Mr. Ryan Levitt
Enforcement Officer, EPB, Prairies and
Northern Region
Environment Canada
#200,4999-98
Edmonton AB T6B2X3
Canada
780-951-8631
ryan.levitt@ec.gc.ca
Ms. Myriam Linster
Principal Administrator
Organisation for Economic Co-operation and
Development (OECD)
2, rue Andre Pascal
Paris Cedex 16 75775
France
33-1-45-24-97-44
33-1 -45-24-78-76
myriam.linster@oecd.org
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LIST OF PARTICIPANTS 335
Ms. Tamara Malkova
Director
Charity Information Center, Green Dossier
Kiev
Ukraine
tamara@bg.net.ua
Mr. Himot Maran
IMPEL Coordinator
Estonian Environmental Inspectorate
Kopli76, EE-10416 Tallinn
Estonia
himot.maran@kki.ee
Mr. Kenneth Markowitz
President, Earthpace LLC
Consultant to IGSD/INECE Secretariat
2141 Wisconsin Ave, NW, Suite D2
Washington DC 20007
United States
1-202-338-1300
1-202-338-1810
kjm@earthpace.com; ken@inece.org
Mr. Thomas Maslany
U.S. Environmental Protection Agency
(Retired)
1405 Perkiomenville Road
Perkiomenville PA 18074
United States
tmaslany@nni.com
Ms. Linda Massopust
2141 Wisconsin Ave, NW, Suite D2
Washington DC 20007
United States
1-202-338-1300
1-202-338-1810
inece@inece.org
Mr. Bharat Mathur
Acting Regional Administrator
U.S. Environmental Protection Agency
77 West Jackson Blvd.
Chicago IL 60604-3507
United States
mathur.bharat@epa.gov
Mr. George Matovu
Natural Resources Management Specialist
(Aquatics)
National Environment Management Authority
(NEMA)
P.O. Box 22255
Kampala
Uganda
256-77-615222
256-41-257521
glubega@nemaug.org
Ms. Marti ne Meerburg
Inspector
Ministry of Housing, Spatial Planning
Environment (VROM)
PO Box 20061
2500 EB Den Haag
The Netherlands
martine.meerburg @ minvrom.nl
Mr. Mohamed Mehdi
Administrator
Department of Environment
Ministry of Territory Planning, Water,
and Environment
Morocco
037681500
mehdi.env@caramail.com
Ms. Oiya Melen
Attorney
Ecopravo-Lviv
Krushelnytska str. 2
Lviv 79000
Ukraine
380-322-72-2746
380-322-97-1446
molya@darkwing.uoregon.edu;
epac@mail.lviv.ua
Mr. Krzysztof Michalak
Administrator
Organisation for Economic Co-operation and
Development (OECD)
2, rue Andre Pascal
Paris, Cedex 16 75775
France
33-14-524-9600
33-14-430-6399
krzysztof.michalak@oecd.org
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336
SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Dr. Ladislav Miko
Director
Directorate DG.ENV.B: Protecting the Natural
Environment
European Commission
Brussels
Belgium
32-2-2987237
32-2-2953892
Ladislav.Miko@cec.eu.int
Ms. Sladana Miocic
Advisor
Management Board
Koturaska 43
Zagreb 10000
Croatia
385-1-6304-892
385-1-6128-089
sladana.miocic@fina.hr
Mr. Jassim Moh'd AM Nasser
Environmental Inspector
Environmental Assessment and Planning
Directorate
PO Box 32657
Kingdom of Bahrain
973-17-875154
973-17-874615
Mr. Wolfgang Morbach
Chef de Programme
Deutsche Gesellschaft fur Technische
Zusammenarbeit (GTZ)
B.P. 753
Tunis 1080
Tunisia
216-71 233677
216-71 234722
wolfgang.morbach@gtz.de
Ms. Elizabeth Mamma Mrema
Senior Legal Officer & Acting Chief
United Nations Environment Programme
P.O. Box 30552
Nairobi Kenya
Kenya
25-42-624-252
25-42-623-859
Elizabeth.Mrema@unep.org
Ms. Marcia Mulkey
Visiting Professor of Law
Temple University
1719N. Broad Street
Philadelphia PA 19122-6098
United States
1-215-204-8006
Marcia.mulkey@temple.edu
Mr. Martin Murray
Policy Manager
Environment Agency (England and Wales)
Rio House Waterside Drive
Aztec West
Bristol
United Kingdom
44-14-54205501
44-14-54624032
martin.murray@environment-agency.gov.uk
Mr. Peter Murtha
Director
Office of Criminal Enforcement, Forensics,
and Training
U.S. Environmental Protection Agency
1200 Pennsylvania Ave. NW
Mail Code 2231-A
Washington DC 20460
United States ->
murtha.peter@epa.gov
Ms. Melanie Nakagawa
INECE Secretariat
2141 Wisconsin Ave, NW
Suite D2
Washington DC 20007
United States
1-202-338-1300
1-202-338-1810
inece@inece.org
Dr. Felix Nascher
Director General
Ministry of Environment
Dr. Grass-Strasse 10
FL-9490
Vaduz
Liechtenstein
423-236-6400
423-236-6411
felix.nascher@awnl.liv.li
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LIST OF PARTICIPANTS 337
Mr. Ceazar Natividad
Engineer IV
Laguna Lake Development Authority, DENR
Capitol Compound
Shaw Blvd.
Pasig City Metro Manila 1100
Philippines
632-631-4157
632-635-6683
czar_natividad ©yahoo.com
Mr. Ike Ndlovu
Compliance Monitoring
Department of Environmental Affairs and
Tourism (DEAT)
South Africa
27-012-310-3710
indlovu@deat.gov.za
Mr. Georgi Nedev
Expert
Ministry of Environment and Water
67 William Gladstone Str
Sofia
Sofia City 1000
Bulgaria
359-2-980-60-23
359-2-981-33-84
nedev@moew.government.bg
Mr. Alberto Ninio
Senior Counsel
The World Bank
1818 H Street, NW
Washington DC 20433
United States
1-202-458-1750
aninio@worldbank.org
Ms. Cristina Nogues
Public Relations Specialist
Institute de Derecho y Economia Ambiental
(IDEA)
Nicanor Torales 150
Asuncion
Paraguay
595-21-614620
595-21-662543
cristina.nogues@idea.org.py
Mr. Axel Olearius
Junior Expert
Deutsche Gesellschaft fur Technische
Zusammenarbeit (GTZ)
Rabat
Morocco
212-023-303791
axel.olearius@gtz.de
Ms. Katia Opalka
Legal Officer
Commission for Environmental Cooperation
393 St-Jacques Street West
Suite 200
Montreal QCH2Y1N9
Canada
kopalka@cec.org
Mr. Antonio Oposa Jr.
Lawyer
Suite 6-J Westgate Tower
Investment Drive
1780 Alabang
Muntinlupa City
Philippines
632-809-6122
632-809-3176
tonyoposajr@yahoo.com
Ms. Naima Oumoussa
Ministry of Territory Planning, Water and
Environment
Morocco
212-62-517330
dpcc@minenv.gov.ma
Mr. Lee Paddock
Director of Environmental Law Programs
Pace University
78 North Broadway
White Plains NY 10603
United States
1-914-422-4209
lpaddock@law.pace.edu
Ms. Krystyna Panek-Gondek
Director
Chief Inspectorate for Environmental Protection
Wawelska ul. 52/54
Warsaw 00922
Poland
k.panek@gios.gov.pl
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338
SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Mr. Bradley Parks
Development Policy Officer
Millenium Challenge Corporation
1000 Wilson Blvd. 14th Floor
Arlington VA
United States
1-202-521-3613
1-202-521-3700
parksbc @ mcc.gov
Mr. Dave Pascoe
Manager
Emergencies and Enforcement Division
Environment Canada
4905 Dufferin Street
Downsview Ontario M3H 5T4
Canada
1-416-739-5897
1-416-739-4903
dave.pascoe@ec.gc.ca
Judge Vladimir Passos de Freitas
Chief Justice
Tribunal Regional Federal - 4a. Regico
R. Otavio Francisco Caruso da Rocha, 300
Porto Alegre
Brazil
55-51-3213-3003
55-51-3330-4762
vladimir.freitas@terra.com.br
Ms. Anita Patekar
Head Inspector for Environmental Protection
Ministry of Environmental Protection and
Physical Planning
Gajeva 30a
Zagreb 10000
Croatia
385-1-37-12797
385-1-37-12713
anita.pokrovac.patekar@mzopu.hr
Ms. Catherine Pearce
Climate Change Campaign Coordinator
Friends of the Earth International
26-28 Underwood Street
London N1 7JQ
United Kingdom
44-20-7566-1723
44-20-7490-0881
catp@foe.co.uk
Ms. Waltraud Petek
Head of Department
Federal Ministry of Environment
Austria
43-1-51522-2123
43-1-51522-7122
waltraud.petek@bmlfuw.gv.at
Ms. Romina Picolotti
Directora Del Programa De Acce
Fundacion Centra de Derechos Humanos y
Ambiente (CEDHA)
General Paz 186 101'A
Cordoba CORDOBA 5000
Argentina
54-0351-4256278
romina@cedha.org.ar
Dr. Peter Pluschke
Program Director
Deutsche Gesellschaft fur Technische
Zusammenarbeit (GTZ)
Rabat
Morocco
peter.pluschke@gtz.de
Justice Amadeo Postiglione
President
International Court of the Environment
Foundation (ICEF)
Corte Suprema di Cassazione
Piazza Cavour
Rome 00193
Italy
39-06-663-2490
39-06-688-3403
icef.postiglione@tiscali.it
Mr. Dariusz Prasek
Head, Operation Supoort
European Bank for Reconstruction and
Development (EBRD)
One Exchange Square
London EC2A2JN
United Kingdom
44-207-338-6873
44-207-338-6848
prasekd@ebrd.com
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LIST OF PARTICIPANTS 339
Mr. Peter Pueschel
Head
Wildlife Trade Program
International Fund for Animal Welfare
Yarmouth Port MA
United States
ppueschel@ifaw.org
Ms. Gloria Ramos
Lawyer
National Environmental Action Team
2/F S. Estenzo Bldng., M.L. Quezon Avenue
Cabancalan
Mandaue City Cebu
Philippines
63-32-343-9464
63-32-420-7400
gollyramos@yahoo.com
Dr. Moshibudi Rampedi
General Manager
Department of Finance and Economic
Development, Limpopo Province South Africa
46 Hans van Rensburg Street
Polokwane 0700
South Africa
27-015-298-7073
27-015-291-5480
rampedimp@finptb.norprov.gov.za
Mr. G.H.J Ranter
Gedeputeerde Staten van Overijssel
Postbus 10078
8000GB Zwolle
The Netherlands
pj.v.zanten@prv-overijssel.nl
Dr. Rosalind Reeve
Consultant
International Fund for Animal Welfare
P.O. Box 47074
Nairobi
Kenya
254-733-616869
254-20-375-0943
ros@africaonline.co.ke
Ms. Meredith Reeves
Senior Reseacher, Earthpace LLC
Consultant to IGSD/INECE Secretariat
2141 Wisconsin Ave NW, Suite D-2
Washington DC 20007
United States
1-202-338-4400
1-202-338-4401
mreeves@earthpace.com
Mr. Jan Rinzema
Trade Secretarty
Royal Netherlands Embassy
40 Rue de Tunis
Rabat
Morocco
212-64-163208
212-37-705085
jan.rinzema@minbuza.nl
Mr. Arthur Roborgh
Ministry of Housing, Spatial Planning and the
Environment
Postbus 30945
2500 GX The Hague
The Netherlands
31-70-3395375
31-70-3391306
arthur.roborgh@minvrom.nl
Dr. Roberto Rodriguez Rojas
Director
Environmental Law Program
Comision Centroamericana de Ambiente y
Desarrollo (CCAD)
rrodriguez@ccad.ws
Ms. Sandy Rowden
Environment Agency (England & Wales)
Rio House, Waterside Drive
Aztec West
Almondsbury Bristol BS32 4UD
United Kingdom
sandy.rowden@environment-agency.gov.uk
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340
SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Mr. Mladen Rudez
Head of Department
Federal Ministry of Physical Planning and
Environment
Titova 9a
Sarajevo 71000
Bosnia-Herzegowina
387-33-445-031
387-33-445-031
m.rudez@bih.net.ba
Dr. Henk Ruessink
Head of Department
Inspectorate of Housing, Spatial Planning and
the Environment (VROM-lnspectorate)
PO Box 30020
9700 RM Groningen
The Netherlands
31-50-599-2700
31-50-599-2699
henk.ruessink@minvrom.nl
Mr. Kenneth Ruffing
Deputy Director
Organisation for Economic Co-operation and
Development (OECD)
rue 2 Andre Pascal
Cedex 16 Paris 75775
France
33-14-524-9310
33-14-524-7876
kenneth.ruffing@oecd.org
Dr. Iwona Rummel-Bulska
Senior Legal Advisor
World Meteorological Organization
7 bis, avenue de la Paix
Case postale No. 2300
Geneva CH 1211
Switzerland
41-22-730-8111
41-22-730-8181
irummel-bulska@wmo.int; rummel_l@
gateway.wmo.ch
Dr. Ketevan Samadashvili
Regional Environment Center — Caucasus
74, Chavchavadze Ave., office 901
Tbilisi 0162
Georgia
995-32-253649
995-32-253648
keti .samadashvili @ rec-caucasus.org
Mr. V.D. Sapronov
Division Chief
Federal Environmental, Industrial and Nuclear
Supervision Service of Russia
Taganskaya St., 34
Moscow
Russia
platonov@gan.ru
Mr. Terence Shears
EU and International Relations Adviser
Environment Agency for England and Wales
Rio House
Waterside Drive, Aztec West
Almondsbury Bristol BS32 4UD
United Kingdom
44-14-54-205743
44-14-54-205533
terence .shears® environment-agency.gov. u k
Justice Adel Omar Sherif
Deputy Chief Justice
The Supreme Constitutional Court
Cornish el-Nile, Maadi
Cairo
Egypt
20-2526-7080
20-2525-6979
sccourt@idsc.net.eg
Adv. (Mrs.) Zohar Shkalim
Director
Ministry of the Environment
POB 34033
Jerusalem 95464
Israel
972-2-655-3808
972-2-655-3823
zoharsh@sviva.gov.il
Ms. Walker Smith
Director
Office of Civil Enforcement
U.S. Environmental Protection Agency
1200 Pennsylvania Ave. NW
Mail Code 2241-A
Washington DC 20406
United States
smith.walker@epa.gov
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LIST OF PARTICIPANTS 341
Mr. Noah Smith
Editor
BNA's International Environment Reporter
1231 25th St. N.W.
Washington DC 20037
United States
1-202-452-6366
1-202-452-5331
nsmith@bna.com
Mr. Dmitri Smyslov
Deputy Director
Federal Environmental, Industrial and Nuclear
Supervision Service of Russia
Taganskayast., 34
Moscow
Russia
platonov@gan.ru
Ms. Sabine Sommer
Desk Officer
Ministry for the Environment - Lower Saxony
32-22-994-383
32-22-991-070
sab.som@gmx.net
Mr. Pavel Sremer
Deputy Director
Czech Environmental Inspectorate
267 Na brehu, Prague 9
Prague
Czech Republic
42-28-389-1564
42-28-389-2662
sremer@cizp.cz
Mr. Michael Stahl
Director
Office of Compliance
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue NW (2221 A)
Washington DC 20460
United States
1-202-564-2280
1-202-564-0027
stahl.michael@epa.gov
Ms. Ljiljana Stanojevic
Chief
Ministry for Science and Environmental
Protection of Serbia
Gospodar Jevremova 6/3
Sabac 15 000
Serbia and Montenegro
381-153-46912
381-153-46912
ekosabac@ptt.yu
Mr. Matthew Stilwell
Institute for Governance and Sustainable
Development (Geneva)
Geneva
Switzerland
41-22-917-8695
41-22-917-8076
stilwell@bluewin.ch
Mr. Scott Stone
Staff Attorney
INECE Secretariat
2141 Wisconsin Avenue NW
Washington DC 20007
United States
sstone@inece.org
Mr. Ahmed Tarawneh
Police Officer
Jordan
Ms. Makhiba Tjela
Principal Environment Officer (Legal)
Ministry of Tourism, Environment, and Culture
PO Box 10993
Maseru 100
Lesotho
266-2231-1767
266-22-310194
mtjela@ananzi.co.za, lea@lea.org.Is
Dr. Warapong Tungittiplakorn
Environmental Official
Pollution Control Department
Paholyothin Road
Sam Sen Nai
Payathahi Bangkok 10400
Thailand
662-298-2623
662-298-2596
warapong.t@pcd.go.th
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342
SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Ms. Clare Twelvetrees
International Relations Advisor
Environment Agency
Millbank Tower
25th Floor, 21-24 Millbank
London SW1P4XL
United Kingdom
44-020-78 63 8670
44-020 7863 8753
clare.twelvetrees@environment-agency.gov.uk
Mr. David Uhlmann
Chief
Environmental Crimes Section
U.S. Department of Justice
P.O. Box 23985
Washington DC
United States
1-202-305-0337
1-202-305-0396
david.uhlmann@usdoj.gov
Mr. Pieter Van Geel
State Secretary for the Environment
PO Box 20951
2500 EZ Den Haag
The Netherlands
publiekvoorlichting@minvrom.nl *
Mr. Doug Varchol
Environmental Film Maker
dvarchol@bren.ucsb.edu
Mr. Thomas Voltaggio
Deputy Regional Administrator
U.S. Environmental Protection Agency
1650 Arch St.
Philadelphia PA 19103-2029
United States
voltaggio.tom@epa.gov
Mr. Gerard Wolters
Inspector General
Inspectorate for Housing, Spatial Planning and
the Environment (VROM)
VI/AL I PC 500
P.O. Box 16191
The Hague 2500 BD
The Netherlands
31-70-339-4620
31-70-339-1905
gerard.wolters@minvrom.nl
Ms. Maryna Yanush
Vice Director
Ministry of Natural Resources and
Environmental Protection
10, Kollektornaya str.
Minsk
Belarus
375-17-2209473
375-17-2204571
yanush-marina@tut.by
Mr. Durwood Zaelke
Director, INECE Secretariat
President, Intitule for Governance &
Sustainable Development (IGSD)
2141 Wisconsin Avenue NW, Suite D2
Washington DC 20007
United States
1-202-338-1300
1-202-338-1810
zaelke@inece.org
Mr. Zehar Athmane
Advisor
Ministry of Land Management and Environment
Algeria
213-21-432889
zehar_althmane@hotmail.com
Ms. Maria Christina Zucca
Associate Legal Officer
United Nations Environment Programme
PO Box 30552
Room T-313
Nairobi
Kenya
254-20-624573
254-20-624324
cristina.zucca@unep.org
Mr. Fouad Zyadi
Head
Monitoring and Conflict Division
Ministry of Territory Planning, Water and
Environment
36, Avenue Al Abtal
Agdal, Rabat
Morocco
212-37-77-26-44
dcont@minenv.gov.ma
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LIST OF PARTICIPANTS 343
Mr. Brahim Zyani
Director
Regulation and Control Division
Ministry of Territory Planning, Water and
Environment
36, Avenue Al Abtal
Agdal, Rabat
Morocco
212-37-77-25-73
drc@minenv.gov.ma
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344 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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LIST OF PARTICIPANTS BY REGION 345
COUNTRY
AFRICA
NAME
TITLE
ORGANIZATION
Cameroon
Egypt
Ghana
Kenya
South Africa
South Africa
South Africa
South Africa
Tanzania
Uganda
Mr. Ofir Drori
Justice Adel Omar
Sherif
Mr. Jonathan Allotey
Mrs. Elizabeth
Maruma Mrema
Ms. Melissa Fourie
Mr. Ike Ndlovu
Dr. Moshibudi
Rampedi
Mr. Sibusiso Gamede
Dr. Palamagamba
Kabudi
Mr. George Matovu
Director
Deputy Chief Justice
Acting Executive Director
Senior Legal Officer & Acting
Chief, Implementation of
Environmental Law Branch,
Division of Environmental Policy
Implementation
Project Manager
Compliance Monitoring
General Manager, Regulatory
and Environmental Impact
Management
Lawyer
Vice President's Office
Natural Resources Management
Specialist (Aquatics)
The Last Great Ape Organization
The Supreme Constitutional Court
Environmental Protection Agency
United Nations Environment
Programme
Department of Environmental Affairs
and Tourism
Department of Environmental Affairs
and Tourism
Department of Finance and Economic
Development, Limpopo Province
Smit, Jones & Pratt
Institutional and Legal Framework for
Environmental Management Project of
the Vice President's Office
National Environment Management
Authority (NEMA)
ASIA & THE PACIFIC
Australia
Australia
Australia
New Zealand
Philippines
Philippines
Philippines
Thailand
Ms. Christine Hanson
Ms. Donna Campbell
Ms. Maria Comino
Mr. Michael LeRoy-
Dyson
Mr. Antonio Oposa Jr.
Mr. Ceazar Natividad
Ms. Gloria Ramos
Dr. Warapong
Tungittiplakorn
General Counsel, Legal
Services Branch
Executive Director, Legal
Services
Team Leader - Reforms
Senior Operator, Sustainable
Industries and Climate Change
Group
Lawyer
Engineer IV
Lawyer
Environmental Official
Department of Infrastructure Planning
and Natural Resources
New South Wales Department of
Environment and Conservation
Department of Infrastructure, Planning
and Natural Resources
Ministry for the Environment
Philippines
Laguna Lake Development Authority,
Department of Environment and
Natural Resources
National Environmental Action Team
Pollution Control Department
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346
SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
CENTRAL & EASTERN EUROPE
Bosnia and
Herzegovina
Bulgaria
Bulgaria
Croatia
Croatia
Czech
Republic
Estonia
Georgia
Hungary
Macedonia
Moldova
Poland
Romania
Russia
Russia
Serbia
Slovak
Republic
Ukraine
Ukraine
Mr. Mladen Rudez
Mr. Georgi Nedev
Mr. Nikolay Kenanov
Ms. Sladana Miocic
Ms. Anita Patekar
Mr. Pavel Sremer
Mr. Himot Maran
Dr. Ketevan
Samadashvili
Mr. Mihail Dimovski
Mr. Zoran Dimovski
Mr. Victor Cotruta
Ms. Krystyna Panek-
Gondek
Mrs. Mihaela Beu
Mr. V.D. Sapronov
Mr. Dmitri Smyslov
Ms. Ljiljana Stanojevic
Mr. Daniel Geisbacher
Mrs. Tamara Malkova
Ms. Olya Melen
Head of Department
Expert
Director
Advisor
Head Inspector for
Environmental Protection
Deputy Director
Coordinator, EU Implementation
and Enforcement of
Environmental Law (IMPEL)
Network
Programme Manager
State Environmental Inspector
Executive Director
Director
Regional Chief Commissar
Division Chief
Deputy Director
Chief
Head Inspector and National
Coordinator for the EU
Implementation and
Enforcement of Environmental
Law (IMPEL) Network
Director
Attourney
Federal Ministry of Physical Planning
and Environment
Ministry of Environment and Water
Ministry of Environment and Water
Management Board
Ministry of Environmental Protection
and Physical Planning
International Co-operation
Estonian Environmental Inspectorate
Regional Environment Center -
Caucasus
Regional Environment Center for
Central and Eastern Europe; Balkan
Environmental Regulatory Compliance
and Enforcement Network (BERCEN)
Ministry of Environment and Physical
Planning
Regional Environmental Centre -
Moldova
Chief Inspectorate for Environmental
Protection
National Environmental Guard
Federal Environmental, Industrial and
Nuclear Supervision Service of Russia
Federal Environmental, Industrial and
Nuclear Supervision Service of Russia
Ministry for Science and Environmental
Protection of Serbia
Slovak Inspectorate of the
Environment
Charity Information Center, Green
Dossier
Ecopravo-Lviv
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LIST OF PARTICIPANTS BY REGION 347
CENTRAL AMERICA
Costa Rica
El Salvador
Mr. Jose Pablo
Gonzalez
Dr. Roberto Rodriguez
Rojas
Adjunct Attorney General
Director, Environmental Law
Program
Chief Environmental Prosecutor
Comisibn Centroamericana de
Ambiente y Desarrollo (CCAD)
SOUTH AMERICA
Argentina
Argentina
Brazil
Brazil
Brazil
Paraguay
Paraguay
Peru
Ms. Romina Picolotti
Ms. Maria Oi Paola
Judge Vladimir Passos
de Freitas
Mr. Antonio Benjamin
Ms. Brenda Brito
Carmo
Ms. Christina Nogues
Ms. Violeta Gustale
Ms. Ada Alegre Chang
President and Founder
Director on Research and
Training
Chief Justice
Public Prosecutor for Sao Paulo
Vice Executive Director and
Researcher
Public Relations Specialist
Communication Specialist
Centra de Derechos Humanos y
Ambiente (CEDHA)
Fundacion Ambiente y Recursos
Maturates (FARM)
Tribunal Regional Federal - 4a. RegiSo
Law for a Green Planet Institute
IMAZON - Amazon Institute of People
and Environment
Institute de Derecho y Economia
Ambiental (IDEA)
Institute de Derecho y Economia
Ambiental (IDEA)
Ministry of Energy and Mining
INTERNATIONAL
Ms. Katia Opalka
Mr. Harvey Himberg
Mr. Dariusz Prasek
Ms. Sabine Sommer
Dr. Ladislav Miko
Mr. George Kremlis
Legal Officer
Sr. Environmental Specialist
-5*
Head, Operation Support
Desk Officer
Director, Directorate DG.ENV.B:
Protecting the Natural
Environment
EU Implementation and
Enforcement of Environmental
Law (IMPEL) Network
Coordinator
Commission for Environmental
Cooperation
Environmentally and Socially
Sustainable Development Network
European Bank for Reconstruction &
Development
European Commission
European Commission
European Commission
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348
SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Ms. Ana Bobo-Remijn
Mr. Durwood Zaelke
Mr. Kenneth
Markowitz
Mr. David Grossman
Ms. Melanie
Nakagawa
Ms. Meredith Reeves
Mr. Scott Stone
Ms. Aesah Javier
Ms. Linda Massapouts
Mr. Mike Frizzel
Mr. Matthew Stilwell
Mr. Azzedine Downes
Mr. Peter Pueschel
Dr. Rosalind Reeve
Dr. Sheila Abed
Ms. Nawzat Alt
Mr. Donald Kaniaru
Mr. Sheng Shou Lang
Mr. Kenneth Ruffing
Ms. Angela Bularga
Mr. Krzysztof Michalak
Legal Coordinator
Director
President, Earthpace LLC
Consultant, IGSD/INECE
Staff Attorney
Senior Researcher, Earthpace
LLC
Constant, IGSD/INECE
Staff Attorney
Administrative Assistant
Vice President
Head, Wildlife Trade Program
Consultant
Chair
Member
Deputy Chief Officer
Deputy Director, Environment
Directorate
Coordinator, NIS Environmental
Compliance and Enforcement
Network
Administrator, Eastern
Europe/Central Asia and China
Programmes Non-Member
Countries Division
European Commission
INECE Secretariat
INECE Secretariat
INECE Secretariat
INECE Secretariat
INECE Secretariat
INECE Secretariat
INECE Secretariat
INECE Secretariat
INECE Secretariat
Institute for Governance & Sustainable
Development (Geneva)
International Fund for Animal Welfare
International Fund for Animal Welfare
International Fund for Animal Welfare
IUCN Commission on Environmental
Law
IUCN Commission on Environmental
Law
Kaniaru & Kaniaru Advocates
Multilateral Fund for the Montreal
Protocol Secretariat
Organisation for Economic Co-
operation and Development
Organisation for Economic Co-
operation and Development
Organisation for Economic Co-
operation and Development
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LIST OF PARTICIPANTS BY REGION 349
Ms. Myriam Linster
Mr. Bakary Kante
Dr. Gilbert Bankobeza
Mr. Carl Bruch
Ms. Maria Christina
Zucca
Mr. JimCurlin
Mr, Alberto Ninio
Dr. Adriana Bianchi
Principal Administrator,
Environment Directorate
Director, Division of Policy
Development and Law
Legal Officer
Legal Officer
Associate Legal Officer
Information Manager, Division of
Technology, Industry, and
Economics
Senior Counsel
Senior Policy and Development
Specialist
Organisation for Economic Co-
operation and Development
United Nations Environment
Programme
United Nations Environment
Programme
Ozone Secretarial
United Nations Environment
Programme
United Nations Environment
Programme
United Nations Environment
Programme
World Bank
World Bank Institute
MIDDLE EAST & NORTH AFRICA
Algeria
Algeria
Algeria
Algeria
Bahrain
Bahrain
Israel
Israel
Jordan
Morocco
Morocco
Ms. Zahia Ibersienne
Mr. El Walid
Boulekroune
Mr. Athmane Zehar
Mr. Hocine Benyahia
Mr. Jassim AH Nasser
Mr. Ebrahim Ali
Mrs. Zohar Shkalim
Dr. Bill Clark
Mr. Ahmed Tarawneh
Mr. Hassan
Chouaouta
Mr. Axel Olearius
Advisor
Treasurer and Project Manager
Environmental inspector
Environmental Specialist,
Director
Director
International Liasion Officer
Police Officer
Conseiller
Junior Expert
Agence National Pour la Protection de
('Environment (ANPE)
Ministere de I'Amenagement du
Territoire et de I'Environrtement
Ministery of Land Management and
Environment
National Federation for the Protection
of the Environment
Director, Environmental Assessment
and Planning Directorate
Environmental Assessment and
Planning Directorate
Ministry of the Environment
Nature and National Parks Protection
Authority
Jordan
Deutsche Gesellschaft fur Technische
Zusammenarbeit (GTZ)
Deutsche Gesellschaft fur Technische
Zusammenarbeit (GTZ)
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350
SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Morocco
Morocco
Morocco
Morocco
Morocco
Morocco
Morocco
Morocco
Morocco
Morocco
Morocco
Morocco
Morocco
Morocco
Morocco
Morocco
Morocco
Morocco
Saudi Arabia
Saudi Arabia
Tunisia
Tunisia
Dr. Peter Pluschke Program Director
Mr. Wolfgang Morbach
Mr. Nor El Yakine
Mr. Driss El Harrhouri
Mr. Mohamed Rida
Derder
Mr. Hassane
Bendahmane
Ms. Dadouch Fouzia
Mr. Mohamed Lididi
Ms. Naima Oumoussa
Mr. Mohamed Mehdi
Mr. Brahim Zyani
Mr. Fouad Zyadi
Mr. Mohamed EL
Yazghi
Mr. Abdallah
Elyacoubi
Mr. Mohamed Fdrissi
Mr. El Hassan El Izary
Ms. Ghizlane Legsai
Mr. Jan Rinzema
Mr. Yousef Al-Wetaid
Mr. Mohammed
Altoraif
Dr. Media Baccar
Mr. Abdelkader
Baouendi
Program Director
Special Consultant
National Coordinator
Secretary General
Director, Regulation and Control
Division
Head, Monitoring and Conflict
Division
Minister
Trade Secretary, Economic
Section
General Manager
Consultant
Expert on Environment
Deutsche Gesellschaft fur Technische
Zusammenarbeit (GTZ)
Deutsche Gesellschaft filr Technische
Zusammenarbeit (GTZ)
Gendarmerie Royale
Gendarmerie Royale
INECE Secretariat
L'Autoevaluation Nationale des
Capacites a Renforcer en Matiere de
I'Environnement (ANCRE)
Ministere de I'lnterieur
Ministry of Justice
Ministry of Territory Planning, Water
and Environment
Ministry of Territory Planning, Water
and Environment
Ministry of Territory Planning, Water
and Environment
Ministry of Territory Planning, Water
and Environment
Ministry of Territory Planning, Water,
and the Environment
Ministry of the Environment
Ministry of the Interior
Ministry of the Interior
Ministry of the Territory Planning,
Water and Environment
Royal Netherlands Embassy
National Comission for Wildlife
Conservation and Development
National Comission for Wildlife
Conservation and Development
International Fund for Animal Welfare
L'Audit Environmental
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LIST OF PARTICIPANTS BY REGION 351
Tunisia
Turkey
Mr. Mohamed Ben
Hassine
Ms. Ayse Karadeniz
Chief of Service
Assistant Environmental Expert
Ministers de I'Environnement et du
Developpement Durable
Ministry of Environment and Forestry
NORTH AMERICA
Canada
Canada
Canada
Canada
Canada
Canada
Canada
Canada
Canada
Canada
Canada
Canada
United States
United States
United States
United States
United States
United States
United States
United States
United States
United States
Ms. Linda Duncan
Mr. Pierre Lemieux
Mr. John Chouinard
Ms. Paula Caldwell
St-Onge
Mr. Ryan Levitt
Mr. Rene Drolet
Mr. Dave Pascoe
Mr Renzo Benocci
Mr. Yvan Lafleur
Mr. Paul Gavrel
Mr. Yves Corriveau
Mr. Albert Koehl
Mr. Doug Varchol
Mr. Noah Smith
Mr. Kenneth Cook
Ms. Anita Akella
Ms. Deb Callahan
Mr. Bradley Parks
Mr. Peter Lehner
Mr. Lee Paddock
Mr. Joe Kruger
Ms. Marcia Mulkey
Consultant on Environmental
Law & Policy
Director, Conservation and
Protection - Enforcement
Director, Conservation &
Protection
Director General, National
Programs Directorate
Enforcement Officer
Director, Compliance Assurance
Manager, Emergencies and
Enforcement Division
Director, Pollution Enforcement
Director, Wildlife Enforcement
Office of Enforcement
Legal Counsel
Lawyer
Environmental Film Maker
Editor
President
Consultant
President
Development Policy Officer
Chief, Environmental Protection
Bureau
Director of Environmental Law
Programs
Visiting Scholar
Visiting Professor of Law
Department of Fisheries and Oceans
Department of Fisheries and Oceans
Environment Canada
Environment Canada
Environment Canada
Environment Canada
Environment Canada
Environment Canada
Environment Canada
Environment Canada
Sierra Legal Defence Fund
BNA's International Environment
Reporter
Environmental Working Group
Flora International Environmental
Consulting
League of Conservation Voters
Millenium Challenge Corporation
New York Attorney General's Office
Pace University
Resources for the Future
Temple University
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352
SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
United States
United States
United States
United States
United States
United States
United States
United States
United States
United States
United States
United States
United States
United States
United States
United States
United States
Mr. John Cruden
Mr. David Uhlmann
Ms. Susan Bromm
Mr, Bharat Mathur
Ms. Francesca
DiCosmo
Ms. Walker Smith
Mr. Michael Stahl
Mr. Peter Murtha
Ms. Phyllis Harris
Mr. Davis Jones
Mr. Andrew
Lauterback
Mr. Barry Hill
Mr. Thomas Maslany
Mr. Robert Heiss
Mr. Joe Freedman
Mr. Thomas Voltaggio
Mr. Matthew Cooper
Deputy Assistant Attorney
General, Environment and
Natural Resources Division
Chief, Environmental Crimes
Section
Director, Office of Site
Remediation Enforcement
Acting Regional Administrator,
Region 5
US EPA Region 3
Director, Office of Civil
Enforcement
Director, Office of Compliance
Director, Office of Criminal
Enforcement, Forensics, and
Training
Principal Deputy Assistant
Administrator, Office of
Enforcement and Compliance
Office of Enforcement &
Compliance Assurance
Senior Criminal Enforcement
Counsel
Director, Office of Environmental
Justice
Director, International
Compliance Assurance Division
Office of General Counsel
Deputy Regional Administrator,
Region 3
U.S. Department of Justice
U.S. Department of Justice
U.S. Environmental Protection Agency
U.S. Environmental Protection Agency
U.S. Environmental Protection Agency
U.S. Environmental Protection Agency
U.S. Environmental Protection Agency
U.S. Environmental Protection Agency
U.S. Environmental Protection Agency
U.S. Environmental Protection Agency
U.S. Environmental Protection Agency
U.S. Environmental Protection Agency
U.S. Environmental Protection Agency
(Retired)
U.S. Environmental Protection Agency
U.S. Environmental Protection Agency
U.S. Environmental Protection Agency
Environmental Media Consultant
WESTERN EUROPE
Austria
Cyprus
Ms. Waltraud Petek
Ms. Maryna Yanush
Head of Department
Vice Director
Federal Ministry of Environment
Ministry of Natural Resources and
Environmental Protection of the
Republic of Belarus
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LIST OF PARTICIPANTS BY REGION 353
Finland
Finland
Italy
Liechtenstein
Malta
Norway
Switzerland
The
Netherlands
The
Netherlands
The
Netherlands
The
Netherlands
The
Netherlands
The
Netherlands
The
Netherlands
The
Netherlands
The
Netherlands
The
Netherlands
Mr. Markku Hietamaki
Mr. Antero Honkasalo
Justice Amadeo
Postiglione
Dr. Felix Nascher
Ms. 'Makhiba Tjela
Mr. Poul Byskov
Dr. Iwona Rummel-
Bulska
Mr. G. H, J. Ranter
Ms. Marline Meerburg
Mr. Gerard Wolters
Dr. Henk Ruessink
Mr. Jo Gerardu
Mrs. Dorine Hornung
Mr. Wout Klein
Mr. Fred Kok
Mr. Arthur Roborgh
Mr. Theo de Geider
Environmental Counsellor,
Department for Environmental
Protection
Director, Department for
Environmental Protection in
Trade and Industry
President
Director General, National Office
of Forests, Nature and
Landscape
Principal Environment Officer
(Legal)
Senior Engineer
Senior Legal Advisor
Inspector
Inspector General
Head of Department
Inspector for International Affairs
Project Manager
Secretary
Senior Inspector.
Ministry of the Environment
Ministry of the Environment
International Court of the Environment
Foundation (ICEF)
Ministry of Environment
Ministry of Tourism, Environment, and
Culture
Norwegian Pollution Control Authority
World Meteorological Organization
Gedeputeerde Staten van Overijssel
Inspectorate of Housing, Spatial
Planning and the Environment of the
Ministry
Inspectorate of Housing, Spatial
Planning and the Environment of the
Ministry
Inspectorate of Housing, Spatial
Planning and the Environment of the
Ministry
Inspectorate of Housing, Spatial
Planning and the Environment of the
Ministry
Inspectorate of Housing, Spatial
Planning and the Environment of the
Ministry
Inspectorate of Housing, Spatial
Planning and the Environment of the
Ministry
Landelijk Overleg Milieuhandhaving
Ministry of Housing, Spatial Planning
and the Environment (VROM)
Netherlands Emission Authority
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354
SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
The
Netherlands
The
Netherlands
United
Kingdom
United
Kingdom
United
Kingdom
United
Kingdom
United
Kingdom
United
Kingdom
United
Kingdom
United
Kingdom
United
Kingdom
United
Kingdom
United
Kingdom
Mr. Gees Jan
Bloemendaal
Mr. Pieter Van Geel
Sir John Harman
Mr. Martin Murray
Mr. Neil Davies
Ms. Clare Twelvetrees
Mr. Terence Shears
Mr. Jim Gray
Ms. Sandy Rowden
Mr. Chris Howes
Mr. Kenneth
Ledgerwood
Ms. Catherine Pearce
Mr. Dave Gorman
State Secretary, Environnment
Chairman
Policy Manager
International Relations Advisor
EU and Int'l Relations Adviser
Head of Regulatory
Development
Enforcement Policy Manager
Coordinator, International
Climate Change Programme
Better Regulation Manager
Province of Overijssel
The Netherlands
Environment Agency (England and
Wales)
Environment Agency (England and
Wales)
Environment Agency (England and
Wales)
Environment Agency (England and
Wales)
Environment Agency (England and
Wales)
Environment Agency (England and
Wales)
Environment Agency (England and
Wales)
Environment Agency (England and
Wales)
Environment and Heritage Service
Friends of the Earth
Scottish Environment Protection
Agency
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PROJECT MANAGEMENT AND CONFERENCE SUPPORT 355
PROJECT MANAGEMENT AND CONFERENCE SUPPORT
Durwood Zaelke
Director
INECE Secretariat
2141 Wisconsin Ave NW Suite D2
Washington DC 20007
phone: 202.338.1300
fax: 202.338.1810
email: dzaelke@inece.org
Jo Gerardu
Inspectorate of Housing, Spatial
Planning and the Environment
VI/AL IPC 500, P.O. Box 16191
2500 BD The Hague, Netherlands
phone:+31-70-3392536
fax:+31-70-3391985
email: jo.gerardu@minvrom.nl
Dave Grossman
Staff Attorney
INECE Secretariat
email: dgrossman@inece.org
Aesah Javier
Administrative Assistant
INECE Secretariat
email: aiavier@inece.org
Davis Jones
US Environmental Protection Agency
Mail Code: 2254A
1200 Pennsylvania Ave NW
Washington DC 20460
phone: 202.564.6035
fax: 202.564.0073
email: iones.davis@epa.gov
Scott Stone
Staff Attorney
INECE Secretariat
email: sstone@inece.org
CONSULTANTS
Kenneth Markowitz
President
Earthpace LLC
2141 Wisconsin Ave NW Suite D2
Washington DC 20007
phone: 202.338.4400
fax: 202.338.4401
email: kim@earthpace.com
Marcy Markowitz
Chief Executive Officer
Earthpace LLC
email: mim@earthpace.com
Meredith Reeves
Senior Research Associate
Earthpace LLC
email: mreeves@earthpace.com
Mohamed Rida Derder
Special Consultant for North Africa
INECE Secretariat
email: ridaderder@juno.com
Linda Massopust
INECE Secretariat
email: inece@inece.org
Mike Frizzell
INECE Secretariat
email: inece@inece.org
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356 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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ACKNOWLEDGEMENTS 357
ACKNOWLEDGEMENTS
The Seventh International Confer-
ence on Environmental Compliance and
Enforcement in Marrakech, Morocco, was
a huge success, and it could not have hap-
pened without the dedicated work and con-
tributions of many people and organiza-
tions.
First, we express a special note of
thanks to the conference moderators,
speakers, experts, facilitators, rapporteurs,
and those who prepared papers. These
colleagues all made a special effort to
share their experiences and facilitate
informed exchanges at the Conference.
Thanks also to those who contributed
materials for the Conference exhibits.
The Executive Planning Commit-
tee (EPC) of INECE, whose membership is
listed on page i of the Proceedings, provid-
ed leadership and guidance in the design of
the program, selection of the speakers and
topic experts, and identification of individu-
als from a range of nations who were in the
best position to share practical experience
in environmental compliance and enforce-
ment, to improve or develop domestic com-
pliance and enforcement programs, and to
engage in ongoing networking, capacity
building, and enforcement cooperation.
Special thanks must go to our distinguished
colleagues, EPC Co-Chairs Gerard Wolters
and Phyllis Harris, who chaired our interac-
tive plenary discussions throughout the
week.
Mohamed Rida Derder, INECE
special counsel to the North African region,
and the Moroccan Ministry of Territory
Planning, Water, and the Environment -
under the leadership of Minister Mohamed
El Yazghi and with invaluable efforts from
Fouad Zyadi, Naima Oumoussa, Abdallah
Elyacoubi, and Brahim Ziyani - provided
essential logistical support and guidance
on integrating key regional elements into
the program.
Funding of the Conference logis-
tics, planning, and workshop development
was provided by the conference sponsors:
the United States Environmental Protection
Agency; the Netherlands Ministry of Hous-
ing, Spatial Planning and the Environ-
ment's International Environmental Affairs
Department; the Organisation for Econom-
ic Co-operation and Development; the
European Commission; Environment
Agency, England and Wales; Environment
Canada; the Ministry of Territory Planning,
Water, and Environment, Morocco; the Min-
istry of Justice, Morocco; United Nations
Environment Programme; the World Bank
Institute; United States Department of
State; the International Fund for Animal
Welfare; Institute for Governance & Sus-
tainable Development; Ministry of the Envi-
ronment, Finland; Deutsche Gesellschaft
fur Technische Zusammenarbeit (GTZ);
Royal Air Maroc; Centre de Developpe-
ment des Energies Renouvelables
(CDER); Ciments du Maroc (CIMAR); and
Ceske Svyacarsko (National Park Bohemi-
an Switzerland of the Czech Republic) and
Appian Group.
The Editors wish to give special
recognition to the United States Environ-
mental Protection Agency for funding the
development and publication of the Confer-
ence Proceedings.
Funding of many participants was
graciously offered by The Netherlands Min-
istry of Housing, Spatial Planning and the
Environment's Department of International
Environmental Affairs; the United States
Environmental Protection Agency; the
World Bank Institute; the government of
Finland; the European Commission; the
International Fund for Animal Walfare;
Environment Agency, England and Wales;
the United States Department of State; and
the North American Commission on Envi-
ronmental Cooperation.
A special note of thanks is offered
to our distinguished colleagues from Envi-
ronment Canada for their translation assis-
tance throughout the conference, and in
particular their translation of the Marrakech
Statement.
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358 SEVENTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
A note of thanks must also go to
the American Embassy and the Dutch
Embassy in Rabat, in particular Jan Rinze-
ma and Caroline Weijers.
Finally, we would like to thank
Dave Grossman, Meredith Reeves, Marcy
Markowitz, Scott Stone, Aesah Javier,
Taleen Khoury, Anne Snyder, Nancy Chen,
Daniel Hall, Gia Skoumbis, Cari Shiftman,
Nina Bafundo, John Cossa, Corianne
lacovelli, Mike Frizzell, and Linda Masso-
pust for their invaluable assistance in
preparing this volume of the Proceedings.
With great appreciation,
THE EDITORS
Cover design and graphics,
Kenneth Markowitz & Earthpace LLC
Layout and design,
The Bluemont Company
Printing, Spectrum Printing
For more information, please visit the
INECE website at http://www.inece.org
-------
Sustainable
Development
Good Governance
Rule of Law
Compliance & Enforcement
http://www.inece.org
-------
I N E C E
International Network for Environmental Compliance and Enforcement
VROM 5055
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