Elements of Effective Environmental Laws ^sr-% i O % i jfts ^4 PrO^ Facilitator's Manual ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 FONT INDICATES DIRECTION TO FACILITATOR Italics - indicative script for facilitators Normal - guidance to facilitators CAPS - instructions to facilitators 1.1 WELCOME TO THE WORKSHOP Slide 1 Principles of Effective Environmental Laws and Enforcement Workshop Conducted by U.S. Environmental Protection Agency Hello! Welcome to Principles of Effective Environmental Laws and Enforcement. I am of the Office of General Counsel of the U.S. Environmental Protection Agency. I would like to thank for hosting this event and would also like to thank all of you and the organizations you represent for being here. This course is designed to be more of a dialogue than a lecture. It will work best if you participate actively. The course has a number of discussions and exercises where we ask that each of you bring forward your own ideas. Our purpose here is not to suggest any particular approach. The existing national context and legal structure will play a large role in determining the legal basis of em'ironmental protection in a particular country. We will ask you to fill out a form evaluating this course at the end of the course. We would like your input so that, we can make improvements. 2 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 1.2 OVERVIEW OF THE WORKSHOP Slide 2 Overview of Environmental Laws and Enforcement Worksho ^Effective Environmental Laws - Context and foundation - Implementation - Legal tools for implementation ' s Effective Enforcement - Components of systems to motivate compliance - Methods to respond to violations This workshop has two sections. The first section covers Environmental Laws, the second section covers Enforcement. During the Environmental Laws section of the workshop, we will discuss: 1. Context and Foundation for environmental law. 2. Implementation of environmental law 3. The range of policy tools to implement environmental law. During the Enforcement section of the workshop we will discuss: 1. Components of Systems to Motivate Compliance 2. Methods to Respond to Violations We are discussing both environmental laws and environmental enforcement in the same workshop because they are closely linked - environmental laws must be implemented in order to be enforced, and the laws cannot be effective unless people comply with them. 3 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 1.3 EXERCISE - INTRODUCTIONS AND IDENTIFICATION OF SIGNIFICANT ENVIRONMENTAL ISSUES Slide 3 Discussion: What are some Major Environmental Problems? 3 I would like to start by asking each of you to introduce yourself, tell us your name and organization, and your role there. I would also like you to tell lis what you consider to be an important environmental problem facing your community, region, or country. Please tell us a little bit about what is being done or what you think can be done about it, and why you feel the way you do. By environmental problems, I mean threats to public health or physical damage to the environment. Later in the workshop we will return to this list and apply what we have learned to try to come up with some solutions. DISCUSSION 20 minutes RECORD LIST OF PROBLEMS ON FLIP CFIART Try to ensure that everyone participates. Try to clarify why a participant believes something is an important environmental problem if this is not clear. Note legal or institutional aspects of these problems which participants mention.-- are some of the problems listed due to laws that are unclear or are not implemented, laws that are not enforced, or are some problems not addressed by the laws, or even fall in gaps where it is unclear which institution has authority to address the problem? It is important to get a list of specific problems because you will refer back to the list periodically during the course. This list is used again in the Environmental Requirements exercise and in the final wrap up. WRAP UP We have identified many different types of environmental problems and I'm sure we could list many others. We will not always have the resources to address them all, nor will we necessarily agree on which are the most important ones to address. We will use this list in our discussions over the next few days. Solving problems like these is the objective of developing effective environmental laws and compliance and enforcement programs. 4 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 1.4 EXERCISE - ENVIRONMENTAL PROTECTION OBJECTIVES We said the first part of this workshop focuses on the context and foundations for environmental law. To start, I would like to ask you to take a step back now and look at the larger picture: What are the reasons for protecting the environment? DISCUSSION 5 minutes REFER TO LIST OF PROBLEMS ON FLIP CHART FROM 1.3 Some potential questions to ask: Is it all about nature? What about people? (Human health) Are there economic reasons for protecting the environment? (Sustainable Development) Are some people more vulnerable than others to environmental degradation - e.g. dependent on available drinking water sources? (Addressing Poverty). You have generated a good list of reasons for environmental protection. Here is the list we developed when we considered this question: Protect Human Health Protect Nature Conserve Natural Resources Address Poverty Sustainable Development Optional: Do the problems listed earlier fall into these categories? Slide 4 Discussion: Why do we Protect the Environment? ^Protect Human Health ^Protect Nature ^Conserve Natural Resources ^Address Poverty f- <38 i ^Sustainable Development < \M r ¦ .< 5 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 1.5 POVERTY, DEVELOPMENT AND PROTECTING THE ENVIRONMENT Some participants might view protecting the environment as a luxury that can wait until more economic development has occurred. DISCUSSION: ASK: What is the relationship between poverty and environmental protection? Is environmental protection a luxury that must wait until a country is highly developed? Does protecting the environment hurt the economy? Canyon think of some ways protecting the environment might help the economy? Here are some thoughts on the relationship between poverty, development, and protecting the environment: Slide 5 Poverty, Development and Environment S Pay now vs. pay later - - Retrofits and clean-ups can be expensive - Planning ahead and Pollution Prevention can save $ ^ Social and economic impacts of environmental harm 6 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 1.6 GOOD GOVERNANCE FOR ENVIRONMENTAL PROTECTION Slide 6 Good Governance for Environmental Protection SThe Rule of Law ^Public Participation ^ Fair and Effective Laws ^Enforcement to Ensure Compliance ^Ensuring Integrity We started our discussion of environmental law by talking about the reasons why we protect the environment. Another aspect of the context for environmental law is the underlying foundation of good governance. The Johannesburg (WSSD) Plan of Implementation links sustainable development to "good governance " - in fact it says good governance is essential for sustainable development. " What do we mean by "good governance " in terms of environmental protection? What are the key elements? DISCUSSION RECORD LIST OF ELEMENTS OF GOOD GOVERNANCE ON FLIP CHART Some of the categories, and questions to elicit them (if necessary): Rule of Law What if there are basic problems in the functioning of the legal system ? Public Participation / Transparency/ Access to Information / Access to Justice Do stakeholders have a means of participating in the process? Sound Legal Instruments such as Laws, Regulations, etc. JP 01 says "countries should promote sustainable development at the national level by, inter alia, enacting and enforcing clear and effective laws that support sustainable development'' para. 163 Laws should be clear and effective. 7 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 200§ Implementation is important too. First step is to ensure there is an adequate institutional basis for implementing the laws. This includes having a clear distribution of authority between different agencies. What if its not clear who has responsibility to address a problem? Effective enforcement What if the laws are not enforced? Mechanisms to ensure integrity W hat if inspectors who find violations can be bribed? Some would say public participation, culture of compliance, and integrity of the system items mentioned above are all part of the Rule of Law. Whatever we call them, they are part of the equation when we talk about good governance and sustainable development. 8 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 1.7 INTEGRITY OF THE SYSTEM Corruption can flourish where accountability and oversight mechanisms are weak. So we will talk about some legal mechanisms for addressing corruption. First, a little about its impacts: Corr uption undermines the rule of law and interferes with development Corruption correlates strongly with poor environmental performance. [Global Environment and Trade Study - Yale University]. Recognize that corruption is not limited to environmental context; as a systemic problem, with economic roots, it may require a macro-level response. However, these big picture efforts can be complemented with sector-specific efforts, including through laws, institutional and program design. Fortunately, there are a number of legal mechanisms to ensure the integrity of the system: Slide 7 Legal Mechanisms to Ensure Integrity of the System ^Institutional Restraints - Auditing structure - Anticorruption legislation - Independent judiciary - Monitoring and oversight: legislature, jr' media, public V Accountability - Ethics codes to address conflicts of interest f * - Laws on freedom of information - Protection from retaliation for reporting corrupt activities Civil society has an important role to play as well. In some places citizen monitoring has played an important role in combating corruption. Without media attention to corruption, little change occurs. 9 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 200§ 1.8 EXERCISE - SOURCES OF ENVIRONMENTAL REQUIREMENTS ASK- Where does environmental law come from? In your country, who makes environmental law? DISCUSSION It is useful to draw out the roles of different branches of government in creating environmental law. Some potential questions to ask: Legislative Branch: What role does the legislature play in environmental law ? What is the process for developing laws? Executive Branch Are there agencies which have a role in creating environmental law ? Does the environment agency have a role in drafting environmental laws? Do other agencies? How specific is environmental legislation? Is an agency responsible for developing regulations to implement the legislation? Judicial Branch Do the courts have a role? Do courts review actions by the environmental agency? Do courts ever spur action by agencies? Do courts have a role in enforcement of the law against polluters? International Instruments Are there international instruments that are relevant? It can be useful to encourage discussion of the role international instruments can play in environmental law, including the importance of domestic law to implement international instruments. Do treaties address all the environmental issues we identified earlier? For example, do treaties address water quality issues? Solid waste issues? Issues concerning locally-generated hazardous waste? With respect to the issues that are covered in treaties, In your legal system, do treaties, once ratified, automatically become law ? In the areas they cover, do treaties provide specific direction as to what is allowed and what is not allowed? Are treaty provisions specific enough to be the basis for bringing an enforcement action in a court? If not, is legislation required in order to provide a legal basis for enforcement? Sub-national Level Authorities It can also be useful to draw out the role of different levels of government in creating and implementing environmental law. 10 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 Do entities below the national level at the provincial or municipal level - have a role in environmental law? Are there standards or actions that are designed to meet national mandates but that are determined at the sub-national level? We sometimes hear about federalism or shared authority between national and sub-national levels of government. There is also a trend of handling issues at the lowest level of government at which they can be effectively handled. How does this play out in your country? WRAP UP You have come up with a good list of sources of environmental law. Here is the chart showing what we came up with when we considered this question - you will see a lot of similarities. Slide 8 Sources of Environmental Requirements International Treaties, Conventions, Bi-Laterai Agreements 11 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 1.9 WHO IMPLEMENTS ENVIRONMENTAL LAW? Slide 9 Who Implements Environmental Laws? S Environment Agency ^Other National-Level Agencies ^Other Levels of Government sOther Branches of Government S Role of the Public and NGOs(?) We've talked about, the context andfoundation of environmental law. Now let's turn to the implementation of environmental law. There are a number of different institutions involved in implementation of environmental law. Of course there is the environment agency. There may be some environmental tasks that are left to other agencies. For example, in some countries sectoral agencies have responsibility for certain environmental issues, such as forestry, agriculture, marine conservation or impacts from mining. This brings up the need for coordination among agencies. It can help if the law is drafted in such a way that it provides mechanisms to manage the interaction of different agencies. It also brings up the issue of the mandate of these agencies - is environment a priority for these agencies? There are many potential sources of friction in this process. One clear lesson is that it is important that the laws make clear who has the authority for a particular action. Some authority might reside in other levels of government. In some countries, provincial authorities and municipal authorities might have responsibility for implementing some environmental matters. Is there a role in implementation for the public? What about for NGOs? One example is Citizen suits provisions which allow the public to go to court to require government to take an action that is required by statute but has not been taken; these provisions can also allow the public to take enforcement action in court against violators where the government has not acted. 12 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 200§ Before we get deeper into implementation, I want to emphasize that the solutions to the kinds of problems we are talking about are not formulas - you cannot look up "the answer" in a textbook - finding the right solution will depend very much on your own context and circumstances in your country, l/l/e do not try to give "answers" but rather way of thinking about how to and strengthen legal means to address issues face and achieve your environmental protection goals. In terms of working within your own context and circumstances, some steps in the process can include: o Identifying Needs and Priorities to Focus Efforts l/l/e all know we cannot do everything at once, so there is the need to prioritize. This will depend on what the greatest needs are, as well as the availability of suitable funding o Planning and Public Outreach In planning what to address, and how to address it, its important to keep in mind who we are trying to protect - the public - and provide mechanisms for their participation, l/l/e will talk more about the role of the public a little later. o National and International Law and Commitments National law will provide basic foundation for legal actions to protect environment: mandates and in some cases deadlines. You will need to determine how you can fit the types of efforts we are talking about into your own legal system, buiding on existing legal structure. There is also a need to take into consideration other types of commitments, which can include legally binding international law obligations, such as those in treaties, as well as commitments included in non-binding Declarations, such as the Rio Declaration on Environment and Development. In both cases, it will be important to consider how to adapt these to national circumstances. 1.10 HOW IS ENVIRONMENTAL LAW IMPLEMENTED? Slide 10 13 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 How is Environmental Law Implemented? ^Planning, Priorities, Information Gathering s Legal Instruments to Implement Legislation - Regulations, permits, administrative orders ^Specific - Must provide notice as to what is required ^Compliance Assurance How is an environmental requirement implemented? How do we get from a line in a statute to a specific requirement that applies to a particular facility and can be enforced? Its important that there be an adequate institutional basis for implementing environmental legislation and policy. This includes providing a clear mandate for the environment agency as well as establishing means of coordinating with other agencies. It also includes providing adequate resources - this is always an issue - and also appropriate expertise for dealing with environmental problems. Finally, it also includes providing legal authority to address environmental problems. The implementing authority may have a variety of tools available to it. These can include issuing regulations that provide more detail than the statute; they might have authority to decide whether to issue permits to allow certain activities - if the law requires a permit. They might have authority to issue administrative orders, and might have enforcement powers as well. We will discuss a range of tools or mechanisms for implementation in the next section of the course. In using any of these tools, it will be important to be specific: important to put those who are regulated on notice as to what is required: who must do what timeframe - by when, how often, etc. any exceptions or waivers The process for developing environmental standards and policy is important as well We will talk soon about the role of the public in this process. Scientfic information also plays a big role in environmental decisions - we will talk about the role risk assessment and risk management play in the process. m 14 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 200§ Finally, there are a variety of tools for assuring compliance. These include Compliance assistance to those who are regulated and making sure requirements understood Reporting requirements Monitoring Enforcement What about information gathering? How does scientific information enter into the process? NEW SLIDE 1.11 - SCIENTIFIC AND TECHNICAL UNDERPINNINGS Scientific and technical information plays a critical role in supporting environmental decision-making. It is important to incorporate these considerations in laws and regulations as they are developed. For example, certain types of regulatory action might depend on whether a particular scientific findings can be made. Laws and regulations might might also take into account limitations on the information currently available, as well as including mechanisms for obtaining additional information. The authority to require that data be submitted to the government can be a critical component of an effective decision- making process. There are several types of scientific and technical information critical to implementing environmental law and policy, including: health and environmental conditions best technologies and best practices risks and costs ecological information - habitat, conservation, protected areas Next we will talk about the role risk assessment plays in many types of decisions, particularly with respect to particular contaminants. Its important to keep in mind that science also plays a big role in other types of decisions, such as conservation of species and habitat, wetlands, protected areas. 15 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 200§ 16 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 1.11 RISK ASSESSMENT AND RISK MANAGEMENT Often policy-makers will use what is called risk management decision-making. The starting point is often a risk assessment. During any given week there may be scientific reports about risks of certain chemicals, smoking cigarettes, breathing polluted air. Risk assessment is the process of collecting and analyzing scientific data to describe the risk. Risk assessment can help inform our choices in making and implementing environmental laws and standards. A risk assessment often involves many uncertainties, and thus involves making a number of assumptions. We often use cautious assumptions to avoid understating the risk. However, risk assessment can give us a handle on the likelihood or extent of risk under a given set of circumstances, and also a sense of the uncertainties. Risk Management Decision-Making Slide u ^Risk Assessment - Risk identification: is it hazardous? - How hazardous is it? - Exposure: how much exposure is there? - Risk characterizationcombines all this information to describe risk ^ Risk Management - Consider risks and other factors: legal standards, risk mitigation options, costs Risk assessment has four basic stem: 1. Identifyins Hazards "Could this stuff be hazardous? " Scientists try to decide whether scientific data show a cause and effect relationship between a substance and an injury to human health or the environment. Scientists often rely on laboratory studies, although sometimes they have measurements in the workplace or another part of the environment available for use. 2. How hazardous is it9 " If a potential hazard has been identified.[ we then try to determine what level of dose causes the observed effect. Scientists often have results of laboratory studies of the effects from high doses and need to use those to estimate the potential effect at lower doses. This is because it 17 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 200§ is difficult to collect good data for low doses because the effects of lower doses often are very difficult to see or very slow to be expressed. Sometimes this is described as the dose- response relationship. 3. Exposure "Who is exposed to this stuff? How much are they exposed to? " If the estimated exposure is significantly smaller than the lowest dose producing a response in the study population, the likelihood of injury is smaller; if the estimated exposure is significantly greater than the lowest dose causing harm, then the likelihood of injury is greater. 4. Risk Characterization The last step in risk assessment is to describe the risk. Risk is often expressed as a number. However, it is important to remember that the risk assessment involves substantially more information, thought, andjudgment than the numbers express. Risk assessment is subject to the uncertainties involved in scientific research, which include limitations in the data which is available. But risk assessment is only part of the story: it tells the decision-maker what the risk is, but does not tell the decision-maker what to do about the risk. This is the area of risk management. The next step: Risk Management What kinds of other things, besides the degree of risk, might be relevant in deciding what action to take? Legal standards Risk mitigation options - there may be several alternatives Costs might also be a factor to consider - Cost-benefit balancing is used in many areas of environmental policy Distribution of the risks and the costs - what if risks are disproportionately concentrated in a particular community? 18 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 1.12 PUBLIC PARTICIPATION ASK What is the role of the public in the development of environmental standards? What are the purposes of transparency and public participation? DISCUSSION The importance ofpublic participation in environmental law and policymaking is widely recognized in instruments at both the national and international levels, including in the Rio Declaration and Agenda 21. Why is the public role important? What does the public contribute? Potential prompts: Provide Information Does the public sometimes have information that can be important to the decision- maker? Example: Industry might have information about feasibility of one approach or another. Public Voice What about the public having a voice in policies that affect them? Might there be greater acceptance? How do we put this principle into action? Some examples drawn fi om the U.S. experience are in the next slide: Slide 12 Role of the Public 12 ^Transparency - Public access to government information - Right-to-Know - Opportunity for public to provide comments ^Public Input - Notify public of proposal 19 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 200§ Transparency 1. Public access to government information (FOIA) 2. Right to Know One of the newer legal tools for environmental protection is Right to Know. It is also known internationally as Pollutant Transfer and Release Registry, or PRTR. This is a requirement that industry publicly report releases of specified pollutants. By providing communities with knowledge of what pollutants are released in there area, right to know empowers communities to act to protect themselves. This data can also be useful to government enforcement officials in determining where to focus their efforts. Public Input 1. Notify public of proposal 2. Public can provide comments 3. Agency responds to comments in final version 4. Used widely for example, in regulations, permits, environmental impact assessments Let's shift gears and take a look at another element of the process. How do we know what is safe and what is not safe? How do we know how much is too much? Questions like these bring up the role of science in the development of environmental standards. 20 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 1.13 LEGAL TOOLS Now we '11 turn to the variety of legal tools for protecting the environment. Let's think back to the environmental problems we listed at the beginning of this course. Canyon think of some legal tools that are used or that could be used - through appropriate legislation or regulations, to address those problems? Review items on the list of environmental issues and ask what legal and other tools are or could be used to address them. Highlight any mention of comparative advantages or disadvantages between different tools, relationships between different tools, and institutional prerequisites for certain tools. Clarifying details on specific tools can wait until the appropriate slide. DISCUSSION RECORD LIST OF LEGAL TOOLS WRAP UP You have identified a variety of legal tools to address environmental problems and I'm sure we could list many others. We will be coming back to this list during the exercise we will do later today. The next set of slides lists a variety of legal tools for addressing environmental problems - you will notice a lot of overlap with the list you have just developed. On these slides we have divided them into categories - but what really matters is not the categories, it is the context. The best choice for a particular situation will depend on the geographic and social context and many other factors. We do not have a formula for choosing the legal tool that best fits a particular situation - we can only suggest some factors to factor into your decisions and remind you to consider the context. Slide 13 Legal Tools 1. Information Tools * 2. Standard Based Tools 3. Permits 4. Liability-Based Tools 5. Market-Based Tools t6. Emissions Trading 7. Incentive Tools for Voluntary Action 21 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 200§ Environmental laws employ a range of tools to help implement environmental policy. We can group these tools into seven categories according to what method is used to drive behavior: 1. Information tools such as requiring environmental impact assessment 2. Legally-binding standard-based tools 3. Permits 4. Establishing liability for pollution - liability-based tools 5. Using market-based tools 6. Emission-trading as a separate market-based tool 7. Providing incentive tools to motivate voluntary action. Let's go through each of these categories one by one. 22 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 1.14 INFORMATION TOOLS Slide 14 Information Tools ^Environmental Impact Assessment - Objective: informed decision-making - Consideration of alternatives - Public participation plays a critical role sCommunity Right-to-Know - Industry required to publicly report releases of pollutants - Empowers communities - Assists targeting of enforcement actions There are at least two types of information tools: 1. Environmental Impact Assessment and 2. Community Right to Know. Environmental Impact Assessment. Many countries require analysis of environmental impact ofproposed actions. The objective is to promote informed decisions. One important aspect is consideration of alternatives to the proposed action Public participation is a critical element. One issue that can come up is what impact the assessment has. In some countries the assessment requirement is purely procedural. In others, the assessment can contain conditions and approval might be required before the action can take place. Community Right to Know In the U.S. we have a tool called the Toxics Release Inventory. It requires facilities to make public their emissions of toxic substances. Citizen groups can use this information to monitor the emissions in their communities. Many firms have voluntarily reduced their emissions since this law took effect. So it has had the result of promoting pollution prevention at the facility level. Internationally, this kind of approach is often referred to as a "Pollutant Release and Transfer Registry. " 23 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 1.15 ENVIRONMENTAL NORMS AND STANDARD-BASED TOOLS Slide 15 Standard-Based Tools sAmbient Standards \ ^Technology Standards gglpfemSr ^Performance Standards ^Economic Standards ^Voluntary Standards IS There are different types of standards: goals are often set in terms of ambient standards. For example, the concentration of a pollutant in the air. Sometimes these ambient standards are objectives that are set based on health; in these cases they can also be referred to as health-based standards. Sometimes standards are set in terms of performance, in other words, no more than x emissions of a particular pollutant from a facility. Sometimes a specific technology is required (technology-based standard); other times the choice of technology is left to the facility, and the standard is simply set in terms ofperformance. An example of a technology standard is the requirement at landfills that there be a liner; these standards usually specify the thicbiess [and material?] to be used. 24 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 1.16 PERMITS Slide 16 ~ It is worth talking a bit more about how standards can be applied to a specific facility. Permits are one means of doing this. A permit can be an important means for applying a general standard to a specific source. The permit should include specific limits on emissions/discharges, describe any conditions or exceptions, and include applicable monitoring and reporting requirements. Typically a permit is used to apply a legally binding environmental standard to a particular facility. The permit can also include related reporting and monitoring requirements to help ensure compliance. This approach often focuses most on reducing pollution at the point of release. Over the years regulatory approaches such as this have brought enormous benefits. Regulatory measures on industrial discharge and local wastewater treatment facilities, for example, were crucial in restoring the health of many of our rivers and lakes A permit can address one type of pollutant such as air pollutants but there are also examples of multi-media permitting approaches - where a permit addresses a number of different environmental issues. For example, one permit can be used to address both air emissions and water discharges from a facility. Another recent trend- which applies to permits and to other tools as well - is to use place - based approaches - which focus on dealing with a range of environmental problems in a specific area. Another trend is community-based approaches which place special emphasis on direct community involvement in designing solutions to an environmental problem (or problems) in their community. 25 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 200§ 26 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 1.17 LIABILITY-BASED TOOLS Slide 17 Imposing legal liability can also be a means to discourage environmental harm. It can be one way of applying the polluter pays principle. There are several questions to be addressed in the development of a liability regime: Who is liable: generators, transporters, arrangers, consumers, disposers, exporters, others? What is the standardfor determining liability? For example, some jurisdictions impose strict liability for certain activities. Others apply a balancing test. What is the measure of liability: some that might be included are personal injury, property damage, environmental cleanup, natural resource restoration? Liability-Based Tools s Who is Liable? ^Standard of Liability vTypes of Damages v' Cleanup of Contaminated Sites 27 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 1.18 MARKET-BASED TOOLS (LEGAL INSTRUMENTS) What are market-based legal instruments? Any legal instrument that uses market forces to advance environmental protection. Some examples are: Pollution Fees - e.g., charge per ton of pollutant discharged) User fees - e.g. grazing fees, park admission fees Deposit/refund e.g., batteries, bottles Market-based tools - e.g., emissions trading Emissions Trading - some statutes allow trading of emissions credits. We will look at this a bit more very shortly. What do all these Market Based Approaches have in common? They recognize that markets are very powerful forces affecting behavior, so they use markets to achieve desired changes in behavior. What are the reasons why market-based legal instruments might be used? RECORD SUGGESTED REASONS ON FLIP-CHART OR POWERPOINT You have come up with some good reasons. Here are the reasons we came up with: Slide 18 Markets-Based Tools s Why do some Systems use Market Instruments? - Internalizes costs - Provides continual incentive to reduce pollution KjjSr,iC ^ - Can stimulate development of new ^ technologies S NOTE: - Underlying need for monitoring and enforcement Internalizes costs Provides continual incentive to reduce pollution Can stimulate development of new technologies For these approaches to work, some underlying requirement is usually needed. Also need to establish inventories, monitoring, reporting requirements. To see what we mean by that, let's take a closer look at emissions trading programs. 28 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 1.19 EMISSIONS TRADING Slide 19 Market-Based Tools: Emissions Tradin ^Market-Based Mechanism for Pollution Control; Market Forces Determine Allocation of Pollution sSources may Buy and Sell Rights to Emit. s Firms with Lower Control Costs Reduce Pollution More and are able to sell Emission Credits If there is sufficient time, interest, and applicability, Handout 3 addresses emissions trading in more detail. 29 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 1.20 INCENTIVES FOR VOLUNTARY ACTIONS Slide 20 Incentive Tools for Voluntary Action ^Pollution Prevention ^Environmental Management Standards ^ Voluntary Industry Standards sGreen Procurement ^Standards and Incentives for Green Technologies - ^Recognition for Meeting Higher Standards There is a growing trend towards voluntary actions to address pollution. This takes a variety of forms. At the level of the firm, many efforts have been made in recent years in the area ofpollution prevention. Pollution prevention requires a deliberate focus on front end of the manufacturing process. In operational terms, it emphasizes the reduction of pollution at the source and the minimization of waste, rather than attempting to control pollution at its point of discharge or mitigating its post generation impacts. Examples include: Concerted efforts by companies to reduce toxic emissions (in the U.S. 1,300 corporations have reduced their toxic emissions by 50% since 1991) Many firms have adopted environmental management standards to get a more systematic handle on their environmental impacts Some industries have adopted standards to improve environmental performance of their industries Sometimes government plays an important role in providing incentives for voluntary efforts or in leading the way. Examples include: adopting standards for green government procurement setting standards such as energy efficiency standards for lighting and appliances Tax credits for use/development of green technologies Giving special recognition to firms that exceed standards Providing regulatory flexibility for firms that exceed standards (such as streamlining reporting requirements) 30 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 1.21 DISCUSSION: CHOOSING THE LEGAL TOOL THAT BEST FITS A PARTICULAR SITUATION Slide 21 DISCUSSION We continue to rely extensively on regulatory appraochs - standards, permits under U.S. law. In recent years other approaches - in some cases more market-based, and in some cases voluntary - are being iincreasingly used. These include tools such as economic instruments, public right-to-know, voluntary approaches including environmental management systems, and community-based approaches. Its important to consider the wide range of options and choose the tool - or combination of tools which makes the most sense in a given situation. These choices will depend a great deal on the specific environmental, cultural, and institutional context of the problem you are trying to address. I'd like to ask you to once again take a step back from the specifics and think about, the big picture. What have we learned today about things to consider in choosing the legal tool that best fits a particular environmental problem in a particular context? 31 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 200§ RECORD LIST OF LESSONS ON CHOOSING LEGAL TOOL THAT BEST FITS A PARTICULAR PROBLEM ON FLIP CHART OR POWERPOINT Some potential questions to ask: Are legal tools which you did not consider in developing your management plan which you think should be considered? You have generated a good list of lessons on choosing legal tool that best fits a particular problem. Wrap Up We have seen that there are a variety of legal tools to address different environmental problems. Some of these legal tools have a history that goes back decades, at least in some countries. Others are newer innovations. And sometimes the traditional approaches and the newer methods work together in a complementary fashion. My experience suggests the value of maintaining a mix of legal tools to promote environmental objectives, as some may be more useful than others in addressing a particular problem, in a particular context. What works best in a particular situation will depend not just on the features of the different legal tools, but also will depend on the nature and context of the problem. 32 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 1.22 EXERCISE: ROLE PLAY EXERCISE - DEVELOPING AN EFFECTIVE REGULATORY PROGRAM FOR WATER POLLUTION REDUCTION Slide 22 Role Play Elements of Effective Environmental Laws: Role-Play Exercise Developing an Effective Regulatory Program for Water Pollution Reduction on the Rapid River Slide 23 33 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 200§ ROLE-PLAYING EXERCISE1: Developing an Effective Regulatory Program For Water Pollution Reduction SCHEDULE Introduction Negotiate policy tools and Implementation mechanisms Break & Distribution of 'Secret Facts' Negotiate policy tools and implementation mechanisms in light of new facts Report back to Group: Discuss outcomes TIME 20 minutes 50 minutes 5 minutes 35 minutes 10 minutes Total activity time: 2 hrs 1 Note to trainer: This role play exercise is designed for negotiation groups of 6 to 8 participants. Larger trainee groups should be split into negotiation groups of this size. 34 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 TRAINER'S GUIDE I DO NOT SHOW TO PARTICIPANTS NEGOTIATION ROLES : Roles 1 through 6 are essential to the exercise. Role numbers 7 and 8 are optional. Participant Interest/Role Leverage Incentive 1. Hilland National Ministry of Environment, Office of Regulatory Policy Representative (s) Environmental regulator of Hilland, in charge of: issuing regulations to control pollution; monitoring compliance using limited human and funding resources; establishing transparency requirement for compliance; fining the violators for every day of noncompliance. Has authority to fine/ impose economic sanctions on polluters. Interested in an environmental management system that complies with law but, because of resource restraints, does not require additional action or funding by the regulator to determine whether compliance is being achieved. 2. "Save Our Earth" Representative (s) Independent, national, environmental science organization that researches: which pollutants and fertilizers have a negative impact on human health, animal health, and fish health. Has scientific knowledge regarding the amounts of pollutants that are harmful to health. Interested in a pollution control system that: results in measurable reductions in pollution, provides scientific community and public with information on polluters' compliance 3. Future "Bullion, Inc." Meat- processing Plant Owner (s) Future polluter that will discharge organic substances into the river. Wants to operate at the lowest cost possible to maximize profit. Its options include: do nothing and "pay to pollute" via fines or fee program use best available technology stop development in this location Has potential to become a powerful local employer, important to the future of the local economy. Interested in a system that: imposes the least amount of restrictions and provides the company with the flexibility to decide cheapest means of complying. do not want to be forced to install new equipment or subject to fines. 35 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 ROLE-PLAYING EXERCISE: NEGOTIATION ROLES (continued) 4. Town of SOUTHVILLE Mayor Government official, concerned about addressing concerns of constituents (local people's health, quality of potable water) Concerned about keeping local industry happy to maintain local economy. Supports the growing ecotourism business in the area. Local town leader, must promote economic development and protect existing industry, while pleasing voters. Wants to address concerns of constituents (local people) in a manner that increases chance of being re-elected. 5. Local Farmers Cooperative Representative (s) Polluters, cause erosion, build-up of excess nutrients in river, fertilizer run-off. Wants to produce as much as possible at lowest cost possible. Important to economy and local food supply Thinks because farming is necessary, it should not be regulated. 6. "Mineral Mining Company" Representative(s) Polluter, discharges metals and other pollutants into the river as byproduct of mining process. Wants to operate at the lowest cost possible to maximize profit. Its options include: shut down the operation move the operation use best available technology reallocate discharges to meet limits do nothing and "pay to pollute" via fines or economic program Major employer, important to the economy, not likely to be shut down. Interested in a system that: imposes the least amount of restrictions and provides the company with the flexibility to decide cheapest means of complying. do not want to be forced to install new equipment or subject to fines. 36 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 ROLE-PLAYING EXERCISE: NEGOTIATION ROLES (continued) T 7. Local Eco- tourism Lodge Owner (Optional) Business that sells clean environment. Has great interest in cleaning river to pristine levels. Sees great potential for ecotourism as an element of economic development in the municipality and the country as a whole, and therefore is supported by the municipality. Interested in reducing pollution as much as possible, regardless of cost to polluters. 8. "Hope for Southville's Future" Representative (s) (Optional) Consumers, use the river water for consumption, food, laundry, (via water treatment plant). Concerned about health problems and economy (i.e., not interested in shutting the plant down because it would threaten their jobs) Collectively, have influence over elected government officials. Want to have a system of pollution prevention and elimination that will protect health without affecting jobs. 37 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 TRAINER'S GUIDE II DO NOT SHOW TO PARTICIPANTS Negotiation Session: The likely outcome of the negotiation session will be imposition of some standards or restrictions on Bullion, Inc. Meat-processing plant, or/and Mineral Mining Company, or/and Local Farmers Cooperative. Negotiation Session with 'Secret Facts': The likely outcome following distribution of the secret facts will require some pollution control by the farmers and an agreement by Bullion, Inc., to construct in five months (one month before the EIA requirement takes effect). Suggested Questions to Prompt Discussion: Voluntary program What pollution control actions are you encouraging? Who pays for incentives? What prevents a polluter from lying about having taken the voluntary actions? Standards-based program Who monitors compliance? How does the entity monitoring compliance get funding? Liability-based program What does the claimant have to show to prove his or her case? What is the form of redress (compensation or pollution reduction)? How much does the polluter have to pay? Public information/participation measures Does the public have a way of finding out who is polluting what, and how much? Does the public have a say in whether companies can take future actions that will cause pollution? 38 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 ROLE-PLAYING EXERCISE: Introduction MATERIALS: Slides (Map slide, role assignment slide) Handouts: Fact pattern [Attachment 1] Map [Attachment 2] Role cards [Attachment 3] 'Legal Tools' information sheet [Attachment 4] TIME: 20 minutes PURPOSE: Introduce participants to the role play concept Provide role play fact pattern and map Encourage participants to think about the options for establishing an effective regulatory regime when the many issues and players must be considered Provide role cards Encourage participants to delve into their assigned roles TIME BREAKDOWN: Introduce problem/fact pattern (10 minutes) Discuss negotiation guidelines and assign roles (10 minutes) 39 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 Slide 24 Role Play: Negotiation Roles J Hilland National Ministry of Environment, Office of Regulatory Policy, Representative v "Save Our Earth", NGO, Representative v Future "Bullion. Inc." Meat-processing Company. Owner (s) S Town of Southville, Mayor v Local Farmers Cooperative, Representative (s) v 'Mineral Mining Company", Representative (s) ^ Local Eco-tourism Lodge. Owner (Optional) v "Hope for Southville's Future", NGO, Representative (s) (Optional) 40 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 ROLE-PLAYING EXERCISE: Negotiation Session MATERIALS: Handouts: Fact pattern [Attachment 1] Map [Attachment 2] Role cards [Attachment 3] 'Legal Tools' Information Sheet [Attachment 5] (all distributed during introduction) TIME: 50 minutes PURPOSE: This exercise will: Introduce participants to the complexity of selecting a legal tool from the range of tools available to help implement an environmental program Introduce participants to the many parties involved in and affected by environmental law decisions TIME BREAKDOWN: Participants will negotiate* with each other (based on the fact pattern and role cards) to decide what legal tools to use to address the river's pollution problems (50 minutes) *Mediator assists as needed Legal Tools under consideration: 1. Information Tools 2. Standards-based Tools 3. Permits 4. Liability-based Tools 5. Market-based Tools 6. Emission Trading 7. Incentive Tools for Voluntary Action 41 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 ROLE-PLAYING EXERCISE: BREAK MATERIALS: 'Secret Facts' role cards [Attachment 5] TIME: 5 minutes (at a minimum) PURPOSE: Break Distribution of 'Secret Facts' role cards NOTE: TIME BREAKDOWN: Break (optional) Trainers provide the appropriate participants with their 'Secret Facts' (without alerting the other group members if possible). 'Secret Facts' role cards are available for: (1) the representative(s) of the Ministry of the Environment; (2) the representative(s) of "Save Our Earth"; (3) the owner(s) of the Meat-processing Plant; and (4) the Mayor of the Town of Southville. (5 minutes) 42 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 ROLE-PLAYING EXERCISE AFTER DISTRIBUTION OF 'SECRET FACTS' MATERIALS: 'Secret Facts' role cards [Attachment 5] (distributed at break) TIME: 35 minutes PURPOSE: Introduce participants to the complexity of selecting a policy tool to help implement an environmental program when various facts are changed. TIME BREAKDOWN: Trainers will announce that some participants have been provided with secret facts and that they may reveal or withhold in their discretion. (5 minutes) Participants will negotiate with each other (based on the additional role cards) to decide how to best implement the pollution control approach that is selected for their group. (30 minutes) 43 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 ROLE-PLAYING EXERCISE: Report Back to Group Outcomes MATERIALS: Brief presentations/summaries from the negotiating session prepared by representative from each group. TIME: 10 minutes PURPOSE: Allows participants to reconvene as a larger group and review/discuss the different outcomes of the negotiations TIME BREAKDOWN: Selected representative from each group gives an overview of the negotiations and outcomes. (5 minutes) Trainer leads a round-table discussion about Participants' reactions to the negotiating sessions and the various outcomes from different groups (5 minutes) 44 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 ATTACHMENT 1 ROLE-PLAYING EXERCISE: FACT PATTERN Developing an Effective Regulatory Program for Water Pollution Reduction on the Rapid River Industrial, mining and agricultural activity around the Rapid River, a major waterway running north to south in the country of Hilland, has been increasing for the past 10 years. Recently, the pollution has become so acute that the river water has developed a terrible odor, fish and other river animals have begun to die and people living in towns and municipalities along the river have become suspicious that the water has contributed to several outbreaks of illness in their communities. Due to this suspicion, more and more people who live near the river have begun to seek out other sources of water from farther away, often walking several miles a day to retrieve clean water for drinking and household uses. Southville is a small, beautiful municipality located along the river in the south of the country of Hilland. Southville is known throughout the region for its scenic landscape of rolling hills, deep gorges, and large waterfalls. There is a small tourism industry growing in Southville, which is the economic hope for many living in this poor area. Not long ago, after an outbreak of an unexplained illness among many children in Southville, a group of mothers and community leaders began to raise the issue of the polluted river water and how it was negatively impacting their health. Civic leaders also expressed concern about its impact on the potential for tourism in the area. The community group called a town meeting and demanded action by the municipal government to deal with the problem. The activism in the community prompted the involvement of "Save Our Earth" a national environmental non-governmental organization (NGO) that has a scientific expertise and has been conducting research on increased pollution. It also supports ecotourism as a progressive direction of the country's economy. Educated by the NGO, several of Southville's community members decided to take a more active role in addressing issues that affect people's health and environment - and they organized a local NGO called "Hope for Southville's Future," which is made up of both mothers concerned about the health of their children and civic leaders concerned about potential for tourism. Not long after the meeting, "Hope for Southville's Future" joined forces with "Save Our Earth," to file a petition in the Supreme Court of Hilland on the 45 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 grounds that the Constitution of the country guarantees all citizens a right to a healthy environment. In particular, the NGO's claim charged that the government of the country was failing to protect the country's water resources. Last week, the Supreme Court of Hilland, which has been increasingly faced with cases raising environmental concerns, issued an order in favor of Southville. The Court ordered the Ministry of Environment to develop and implement a new water pollution control program (under Article 4 of the 1995 Water Act2), to significantly decrease water pollution in the Rapid River within 2 years. Just north of Southville, however, there are several large, powerful Mineral Mining operations and agricultural businesses that are important to the economy of the country as well as the local communities (as a source of jobs and tax income). These plants and businesses will be directly affected by any efforts to decrease discharges into the river. Also, a new Meat-processing Plant has recently been approved for construction in an area along the Rapid River north of Southville. The local communities' feelings about the new plant are mixed. Some in the community are excited about the prospect of additional jobs generated by the plant, and thus support the plant. Others feel that they have suffered enough from the existing sources of pollution and thus oppose the new industry. The Ministry of Environment is now faced with the challenge of developing a program under the Water Act that will implement the Supreme Court's ruling while minimizing adverse impact on the economy of the region. To assist in meeting that challenge, the Ministry of Environment has convened a group of stakeholders and charged them with developing a recommendation. 2 Article 4 of the 1995 Water Act sets forth in general terms that the government must "protect water bodies and provide for the rational use of water resources with due regard to the interests of the present and future generations and the principles of sustainable development." 46 ------- HILL AND Proposed Meat- processing plant Mineral \ fining Operation Soutln i 11 l 47 Elements of Effective Environmental Laws US Environmental Protection Agency 2005 ATTACHMENT 2 Agricultural Zone Scenic Area ------- ATTACHMENT 3 ROLE CARDS* *NOTE: The role cards are attached below as individual sheets, which can be printed and directly distributed to participants. ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 ROLE CARD 1 Hilland National Ministry of Environment, Office of Regulatory Policy Representative You are the representative(s) of the Hilland Ministry of Environment. As required by the Supreme Court decision, you have organized this multi-stakeholder meeting in order to explore public, industrial and governmental opinions on what legal tools should be incorporated into the program to meet the Supreme Court mandate to reduce pollution in the Rapid River over the next two years. You are interested in having the public involved in pollution control for the following reasons: (1) The Ministry of Environment must be able to justify its actions to the public. By including a wide group of stakeholders in developing the water pollution control program, you believe the program effectively address stakeholder interests. (2) You are required to engage the public in environmental decision-making under requirements recently incorporated into Hilland's legislation, based on the 1998 Aarhus Convention. (3) You are currently sitting on a panel that is negotiating with the Global Bank (an international financing institution) to procure funding for the Ministry of Environment for some key water projects. The Global Bank has indicated that public participation in the development of environmental programs will be a criterion in their decision to grant or withhold the funds. Therefore, to obtain the credits for new equipment and grants for technology development, you must meet their requirement for public involvement. You want to make public involvement and comment on the methods for reducing pollution an essential part of the water pollution control program. You believe this can be done in two ways: An Environmental Impact Assessment program that allows the public access to and the opportunity to comment on information on new businesses that will affect the environment. A Pollution Transfer and Release Registry (PRTR) that allows the public access to an inventory of the quantities and types of pollution being emitted and transported off site.3 The Ministry has long wanted to create PRTR, and you see this as a good opportunity to undertake this effort (and potentially apply for international donor funding for assistance with this program). 3 A PRTR is an environmental database or inventory of potentially harmful releases to the air, water, and soil, as well as wastes transported off site for treatment and disposal. Facilities releasing substances listed on a PRTR are to periodically report what pollutants are released, the quantity of pollutants released, and the type of environmental media into which they are released. This information is then made available to the public. 49 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 You also want to ensure that the water pollution control program will not use excessive agency resources (financial or human). A program that requires the agency to conduct a lot of monitoring will be unsuccessful, because the agency will not be able to monitor as much as it should, and once polluters realize this, they will commit more violations. You believe that the companies should have to monitor themselves and make reports to you, then the agency can use its resources to selectively inspect facilities. You would support a system that imposes limits on pollution levels, with high fines for noncompliance. That way, the fines may be used to create an "Environmental Fund" to fund other environmental programs and supplement agency income. . If the stakeholder group recommends a voluntary program with incentives, you believe that all entities that produce water pollution, including both agriculture and industry, should develop plans and employ practices to reduce pollution in exchange for economic incentives. You may support a voluntary program, but you doubt the effectiveness of such a program and would rather have the ability to fine companies, especially because fines are an extra source of income for the agency. You would support including liability in the program, but not making liability the sole means of reducing pollution. Any liability component should allow people to easily obtain compensation for being exposed to pollution. Ultimately, polluters will figure out that it is more cost effective for them to find ways to reduce or eliminate their pollution than to pay compensation. However, the liability program will take a while to have this effect. Your goal is to develop a program that meets the Supreme Court's mandate and encourages public participation, without overly straining agency resources. You are willing to cooperate with all interested stakeholders to get an idea of their concerns and find out whether any particular approach will satisfy all interests. 50 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 ROLE CARD 2 "Save Our Earth" (National Environmental NGO) Representative You are the representative(s) of "Save Our Earth", a national environmental non- governmental organization (NGO). Using international grants and donor technical assistance, "Save Our Earth" has developed a significant membership throughout Hilland and has struggled with the industrial and agricultural sectors for several years, trying to get them to reduce their pollution. You understand their importance to the economy, but believe eco-tourism is the wave of the future. The organization has also struggled with environmental authorities, urging them to adopt a system of more effective environmental standards and to develop programs and policies to increase enforcement. You are proud that "Save Our Earth" won its suit in the Supreme Court to protect the people's Constitutional right to a healthy environment, and you are determined to make the most of this opportunityby advocating development of a water pollution control program that sets very strict standards for the industrial and agricultural sectors. You believe that the scientific community and public in general, should have a larger role in environmental programs, and not be forced to resort to the Supreme Court to make the Ministry take action. Among other reasons, you were identified to help develop a recommended pollution control program because of your scientific knowledge. "Save Our Earth"'s monitors international scientific and environmental studies and keeps a database of scientific information. The organization can contribute its expertise and data about possible environmental impact into the discussion. For example, "Save Our Earth" studies from similar, nearby countries have found that: Meat-processing plants release organic pollutants that have devastating impacts on river ecosystems when they do not employ any environmental technology Mining operations release toxic substances that have negative impacts on human health (in the form of unknown illnesses) when they do not employ the best environmental technology available You would like to see a standards-based system adopted because such a system implements the "polluter pays principle" and forces industries to pay for the pollution they cause. The program should require polluters to install technology that will reduce the amounts of pollutants discharged to levels below those that have an effect on human health. However, even using this best technology available (which is also very expensive), enough pollutants may be discharged to harm animal and fish health. For this reason, you believe the program should also impose limits on the amount of pollution that may be discharged, and fine the polluter whenever these limits are exceeded. You would like to see those fines paid into an Environmental Fund, to provide funding to research and address other environmental issues. 51 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 You oppose a voluntary system. You do not trust industry and the farmers in their attempt to implement their own environmental management standards. You believe that the only way a voluntary system can meet the Supreme Court's mandate is if the economic incentives are large, and offered in exchange for reducing pollution at the output. You also oppose a liability system, because it does not prevent pollution, but only addresses pollution after someone has been injured. Also, you are concerned that it may be difficult for people to prove their injuries. 52 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 ROLE CAP "Bullion, Inc." Meat-processing Company Owner You are the owner(s) of "Bullion, Inc.," a medium-sized meat-processing business in Hilland. Your father began the company 30 years ago and now your family owns several meat-processing plants throughout the country. Recently, you purchased land and made a deal with the Mayor of Southville to begin construction of a new meat- processing plant on the banks of the Rapid River. You were attracted to this area by the comparatively healthy environment and the local tax incentives that the Mayor has recently introduced for newly opened operations. You have invested a lot of funding (both your own and borrowed) in selecting this site and preparing for construction and operations of the new meat-processing plant within the Rapid River basin. You believe it will be profitable and, once it gets running, you plan to develop programs to improve the surrounding community through training programs and tutoring. You are aware of negative public opinion about the planned meat-processing plant. You are aware of the public's desire to have access to your environmental information, including the amount of pollutants you will discharge, and any steps you will take to reduce the pollution. You have not yet started operating, but you want the leeway to run your business as you see fit, without having the public question your methods. You do not think the public has a right to information on how you run your plant, although you would be willing to share information from Bullion, Inc.'s Corporate Program for Environmental Law Compliance, to demonstrate to the public that you have considered environmental issues. You plan to oppose any limits that environmental regulators attempt to impose. You believe the meat-processing plant operations will not produce as much pollution as other industries (such as mining). You want the flexibility to run the plant in the most cost-effective manner. As an entrepreneur, you are interested in making a profit and, when choosing to locate in the area, you did not account for additional start-up costs or any increased costs of complying with new regulations. You are disturbed about how limits will affect your operations and ability to make a profit. You do not want a performance-based standard, because your pollution control technology is not very high quality. If the group decides on performance-based standards however, you think it is only fair that the program waits until you start operation to establish a baseline, and then require you to reduce your pollution by a certain percentage. That way, you could start operation without any of the pollution control mechanisms you had already planned on using, and get credit for later using those mechanisms. Otherwise, they may require you to use expensive technology that you have to buy, or reduce your pollution to a degree that costs more money than it is worth to locate here. 53 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 You may support a voluntary system because you have not yet started operating, and this will give you time to gather information on operating costs. You want the flexibility to decide whether conducting the voluntary activities is worth the economic incentives that are offered. Also, by conducting voluntary activities in the future, you may be able convince the public that you are environmentally conscious. You are opposed to imposition of any liability for causing pollution. The potential to have to pay for pollution damage is a financial risk that is hard to quantify. If others insist on liability, you will argue for a system that makes it very difficult for the Courts to rule against industry. Persons should only be allowed to obtain compensation where they have been made physically ill by being exposed to pollution, and where they prove that the pollution came from a specific company. In addition, you are very concerned that the government is considering imposing requirements to conduct and review an environmental impact assessment (EIA) of the proposed facility prior to construction. This bothers you because a recent studies conducted on similar meat-processing plants located along rivers in other countries have shown an adverse impact of the organic by-products of the facility to river ecosystems and human health. You know that such an EIA, with public involvement, will likely cause you big problems and significant cost increases and schedule delays. You will argue strongly that your previous agreement and approval from the Mayor of Southville 'grandfathers' your right to construct without an EIA. You will threaten to oppose all other suggestions of the Mayor, unless he/she supports you in this claim. If possible, you would like to recommend a water pollution control plan that will not make it too expensive for "Bullion, Inc." to locate upriver of Southville. 54 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 ROLE CAP Town of Southville Mayor You are the Mayor of the town of Southville, elected by the local people. This is your first term and if you do well, there is a possibility for you to be re-elected for a second term in the coming year. As Mayor, you are interested in the economic development of the municipality and attracting investors. In this position, you must protect the well- being of existing industry, while pleasing the people who will re-elect you. In developing this water pollution control program, you want to demonstrate to the community that you are trying to address concerns about their health and environment, while maintaining economic stability in the area. You support the idea of ecotourism as a future money-maker in the area, but think that currently, the economy needs the mining plant and agricultural industry to survive. You would like to attract additional investors to the region by showing that the economy and the environment are healthybut attracting investors has become more difficult with the current public outcry against the pollution of the river. Also, you have recently agreed with "Bullion, Inc.," to allow for construction of a new meat-processing plant just upstream of Southville. You do not want to impose any restrictions on this new endeavor, because you think it will bring significant economic benefits to Southville and the region. You would support a standards-based or performance-based system, as long as they do not harm the local economy. You believe that the Ministry of the Environment should be required to monitor the amount of pollution being generated and impose fines for noncompliance, in order to satisfy the community that action is being taken. You support a voluntary system, but you are concerned that the municipality may not be able to afford to offer large tax breaks, and you do not want the wrath of the public focused on you for not offering any incentives. Ideally, you would like the program to offer the bulk of economic incentives from elsewhere, so the economy of the municipality is not affected. You do not want a liability system if it financially burdens businesses too much, because you are concerned they will relocate or go bankrupt. However, you want the public to feel that they have some redress for their concerns about and injuries from pollution. You are considering suggesting liability that requires the business to reduce pollution, rather than just pay compensation. You believe that allowing the public the right to know about activities that affect their health and the environment and allowing the public the right to participate in environmental mechanisms are easy ways to satisfy their desires. You understand the public's desire to identify for itself the cause of the decreased water quality they have witnessed. As Mayor you want to meet public concerns and thus support the idea. 55 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 However, you do not want to alienate the businesses that are important to the area's economy. You realize that, if the requirement for conducting an EIA is passed, it could significantly impact the development of the new meat processing-plant. You already gave development rights to the meat-processing plant. You believe that the new plant will give the local economy a boost. However, you are not willing to risk your political capital by arguing, against your constituents, that this EIA should not be conducted for the plant. 56 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 ROLE CAP Local Farmers' Cooperative Representative You represent a group of farmers who operate in the Rapid River basin, north of the town of Southville. The group is made up of both small farmers (like you) and large industrial farming operations. Your business is important to the livelihood of your family (and the families of your colleagues), but also to the economy and local food supply. You understand that you cause pollution in the water through runoff, soil erosion, and pesticide use, and that farming is the primary cause of the excess nutrients currently in the river. However, you believe that these are facts of life that must be accepted. Farming is necessary to the community. To stay in business, farmers must be able to produce as much food as possible at the lowest cost possible. Technology has been developed to control pollution from industrial plants, so you believe that the water pollution control program should just require the industrial plants to install that technology. You agreed to participate in this stakeholder group to make sure that people understand how important farming is and do not impose any restrictions on farming. You would like the stakeholders to focus on controlling the industries, and leave farming alone. You recognize that regulators may want you to take extra actions on your farms - such as establishing 'buffer zones' along the river, adopting horizontal crop methods, or using less toxic pesticides - but you know that these measures are nearly impossible for small farmers, like yourself, who are struggling to make ends meet. The large farming operations do have the resources to pay for these measures, so - if you have to - you may be able to persuade the big farms to pay for clean up for the whole cooperative, but this may require some additional incentives from the local government. You believe a standards-based system is a good option, because there is no way to impose limits on agricultural discharges, as you do not have distinct points where you discharge pollutants. Industries should be forced to reduce their pollution as much as possible through technology and other standards that measure the amount of pollution coming out at the discharge point. You may also agree to a voluntary system, as long as there is no penalty for deciding not to participate in the program. You are concerned that any liability program may allow people to require farmers to pay for exposure to pollution. Because farming is a necessity, you do not believe that people are entitled to compensation for exposure to pollution where it comes from farming. The amount of liability imposed on a company should be balanced against the importance of that company to the local economy. 57 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 You are aware of the public's desire to have access to your environmental information, including the amount of pesticides farmers use, and any steps you are taking to reduce the pollution. You are not in favor of providing the public with any information. People understand that farming is a necessity, although they may not know that pesticides and chemicals are part of farming. Disclosing this information to the public would unnecessarily alarm them. Without the scientific knowledge and basic understanding that not all chemicals at all amounts are harmful, people may panic. You have heard that the Ministry is considering a requirement for all new developments along the Rapid River to conduct an EIA. Because existing operations would not be subject to this requirement, you do not oppose it. In fact, it may prevent additional farm competition from locating in the area. 58 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 ROLE CAP "Mineral Mining Company" Representative You are the representative(s) of the Environmental Monitoring Service of "Mineral Mining Company" Mining Operations. You have been working in this position for the last five years, trying to integrate economic and environmental interests into the corporation's activities, while operating within the corporation's goal to "operate at the lowest cost possible to maximize profit." "Mineral Mining Company" has recently increased its mining activities due to newly found mineral deposits, and thereby has also increased its adverse impact on the environment (emissions, effluents and discharges). You know that "Mineral Mining Company" is not likely to make significant changes in output due to its status as a major employer and its importance to the Hilland's (and Southville's) economy, and you are not interested in making many compromises (or raising your costs) for pollution control. In the discussions regarding developing the water pollution control program, you plan to advocate for and convince environmental regulators to implement the most cost- effective system of pollution prevention. Ideally, such a system would: Be voluntary Allow you to take advantage of incentives, such as a reduction in taxes Impose minimal restrictions on your operations Allow Mineral Mining Company the flexibility to voluntarily choose the cheapest means of complying with any restrictions Impose restrictions on the agricultural activities that are conducted along the riverit disturbs you that people blame pollution on Mineral Mining Company, but ignore massive agricultural operations. You will oppose any program that: Forces you to install expensive technology to control pollution. You already have the best technology installed, compared to other businesses polluting the river. Imposes liability on you for operating. You are extremely disturbed at the prospect that you may be forced to compensate people who claim to have been harmed by your pollution. You are also concerned that you will have to pay for pollution that other entities cause. You want to ensure that any liability limits the amount of compensation available and requires a lot of evidence showing (1) that the person's injury is caused by a specific type of pollution; and (2) that the specific type of pollution was generated by Mineral Mining Company, and (3) that the person was exposed to the specific type of pollution that was generated by Mineral Mining Company, and not generated by another entity. 59 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 You are aware of the public's desire to have access to your environmental information, including the amount of pollutants you discharge, and any steps you are taking to reduce the pollution. You are not in favor of providing the public with any information, as it involves how you run your business. In your opinion, disclosing this information to the public will not serve any useful purpose because the public does not have expertise and cannot provide any input of substantive value. Besides, public awareness campaign involves additional expenses, and there is no incentive for you to do it. Finally, you are aware that the Ministry is considering a directive requiring all new developments on the river to conduct an EIA. You are not opposed to this idea, because it would not apply to Mineral Mining Company and it may limit your competition by preventing other mining companies from locating in the area. 60 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 ROLE CARD 7 Eco-tourism Lodge Owner Five years ago you quit your career as a government worker in the Capital of Hilland and moved to Southville to "live simply" and take advantage of the region's new tourism opportunities. You opened an eco-tourism lodge that you and your wife built by hand near the scenic waterfalls north of town. Since you opened for business, the eco-tourism lodge has attracted many groups of international tourists (through your internet website and through word-of-mouth) - and though the business has not been very profitable to date, you expect a big upturn of business in the next year. You strongly believe that eco-tourism is the answer for the economy of Southville's (as well as Hilland). You would like to see very strict environmental regulations imposed on the existing industries on the Rapid River, and you are adamantly opposed to any new development in the region. The beauty and pristine conditions of Hilland are essential to your business. You think that a standards-based program would be best, because it seems like the most stringent program. You would like the program to set strict limits on pollution and require industry to use best available technologies and environment management systems. You oppose a voluntary system and will argue installation of the best available pollution control technology should be a requirement in order for industry (or agriculture) to receive any financial benefits from the government. If a liability system is chosen, you would like it to be strict and easy to prove, so that polluters are forced to reduce pollution or shut down. The liability system should allow any person who uses the river for any purpose to obtain a set amount of money for each day from any entity that discharges pollution into the river. Ideally, polluters would be held strictly liability (meaning if they pollute, they are liable), and making the proof of causation at an early stage. You also would like to know what the industries' pollution levels are and strongly support a pollution release and transfer registry (PRTR). A Pollution Transfer and Release Registry (PRTR) is a database or inventory of the types and amounts of pollutants businesses are discharging, as well as what wastes they transport off site. The PRTR is available to the public. In addition to collecting from factories, and other stationary sources, PRTR's can be designed to include estimates of releases from additional sectors such as agriculture and transportation. 61 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 You are encouraged by the Court's order to significantly decrease water pollution in the Rapid River and would like to see the Ministry of the Environment success in its effort to clean up the river. You are willing to do anything you can to help the Ministry reach a compromise with other stakeholders involved in the decision-making process. 62 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 ROLE CAP "Hope for Southville's Future" (Local NGO) Representative You are the representative(s) of the local community non-governmental organization (NGO) "Hope for Southville's Future," which filed the claim in the Supreme Court. You have been living in Southville for more than 40 years and it has been a pristine oasis of nature until about 10 years ago. The environmental situation started changing for the worse when mining and industrial facilities and large-scale agricultural operations began locating along the banks of Rapid River upstream of Southville. Recently, the river pollution has become a serious problem, causing decreased water quality, river animal and plant deaths, odors, and outbreaks of unknown illnesses in your community. You are also concerned by a new threat - a meat processing plant that is about to be built along the Rapid River upstream of Southville. Its activities will contribute to existing environmental problems. As a representative of families, whose health and surroundings are being harmed by the deteriorating quality of the river, you vehemently oppose this new plant. You are excited about the chance to participate in developing a water pollution control program that will help improve the lives and health of people you know. You are cautiously hopeful that, with the influence of the Supreme Court on the Ministry of Environment, a program will be established that can really improve the river quality. In your opinion, the local people should have an active role in the pollution control program. You will insist that the new program include mechanisms for "transparency"i.e., mechanisms that allow the public to: Know what the government is doing to address pollution issues; Monitor how well regulated entities are complying with laws; Participate in the development of any rules; and Review files to determine whether someone has complied with environmental standards. You understand that most of the businesses causing the water pollution are the same businesses that employ your neighbors. For this reason, you are not interested in shutting any industry down. At the same time, you want the businesses to stop polluting, and you will support any program that stops these businesses from harming your community and its beautiful landscape. You would like the program to: Require polluters to install the best available technology to control pollution; Impose strict limits on the amount of pollution that is generated; 63 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 Require the Ministry of the Environment to monitor the amount of pollution being generated and impose large fines whenever the limits are exceeded; and Limit any new developments on the river that could increase pollution. All you really care about is that the amount of pollution in the river actually gets reduced. You oppose a voluntary system because you do not trust industry and the farmers to implement their own environmental management standards. If the system must be voluntary, you would like it to take a form where the polluter must establish a program where it imposes limits on itself, based on limits recommended by the Ministry of the Environment. Incentives should only be available if the polluter subjects the program to public review and addresses public comments on the program. You also like the idea of holding polluters responsible for the sustained health injuries of community members. But, you are concerned that a simple liability regime will not be enough to persuade industry and farmers to abate their pollution. You believe that polluters will be willing to accept the risk, because they don't believe the Courts will be able to impose penalties soon enough to affect their decision-making today. In addition, you hope that requirements are imposed to conduct an EIA for all new development along the river. You are looking forward to the opportunity to lodge a public complaint against the new meat-processing plant through the EIA process, and will never agree to allow for an exemption from EIA for the plant. 64 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 ATTACHMENT 4 LEGAL TOOLS - information sheet for negotiation session *NOTE: The 'Legal Tools' information sheet is attached below, to be printed and directly distributed to participants. 65 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 LEGAL TOOLS S Information Tools ¦ Environmental Impact Assessment ¦ Community Right-to Know S Standards-based Tools ¦ Types of Standards: > Ambient Standards > Technology Standards > Performance Standards > Economic Standards > Voluntary Standards S Permits ¦ Permit should specify > Discharge/emission limits > Any conditions > Any waivers or exceptions > Reporting and monitoring requirements S Liability-based Tools ¦ Who should be liable ¦ Standard of liability ¦ Types of damages ¦ Cleanup of contaminated sites S Market-based Tools: ¦ Internalize costs ¦ Provide continual incentive to reduce pollution ¦ Can stimulate development of new technologies S Emissions Trading ¦ Market-based mechanism for pollution control ¦ Market forces determine allocation of pollution ¦ Sources may buy and sell rights to emit ¦ Firms with lower control costs reduce pollution more and are able to sell emission credits S Incentive Tools for Voluntary Action ¦ Pollution prevention ¦ Environmental management standards ¦ Voluntary industry standards ¦ Green procurement ¦ Standards and incentives for green technologies ¦ Recognition for meeting higher standards 66 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 ATTACHMENT 5 'SECRET FACTS' ROLE CARDS *NOTE: The role cards are attached below as individual sheets, which can be printed and directly distributed to participants. 67 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 ,E CARD 1 Hilland National Ministry of Environment, Office of Regulatory Policy Representative(s) The Minister has told you that the Ministry will impose strict requirements to conduct an Environmental Impact Assessment (EIA) for all new developments located near the Rapid River. The requirement for an EIA will essentially prevent all new developments along the river, once it is made official. The requirement will become official in approximately six months. This is not yet public knowledge. 68 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 SECRET FACT ROLE CARD 2 Save-Our-Earth (National Environmental NGO) Representative(s) The findings of a draft report your environmental scientist members have just compiled indicate that controlling pollution from farming has the most direct and significant effect on improving the quality of rivers. Specifically, establishing 'buffer zones' along the river, adopting horizontal crop methods, or using less toxic pesticides will improve water quality 40% within just six months. 69 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 SECRET FACT ROLE CARD 3 "Bullion, Inc." Meat-processing Company Owner(s) Due to financial constraints, you cannot construct the plant any sooner than five months from today. But, a recent market study shows that, once the plant operates, it will be extremely profitable and will boost the local economy. 70 ------- Elements of Effective Environmental Laws US Environmental Protection Agency 2005 SECRET FACT ROLE CARD 4 Town of Southville Mayor The town is almost bankrupt. Additional income is needed in the next 12 months or 20% of the Southville's workers will become unemployed. The meat-processing plant would provide a significant boost to the economy directly, through taxes paid to the town, and indirectly, by providing people with jobs. 71 ------- |