1

Principles of Environmental Principles of Environmental EnforcementEnforcement

Jim Rubin, Assistant Chief, Law and Policy Section

Robert Maher, Assistant Chief, Environmental Enforcement Section

Environment and Natural Resources Division

United States Department of Justice

2

3

OverviewOverview

Environmental ChallengesEnvironmental Challenges International Network for International Network for

Environmental Compliance and Environmental Compliance and Enforcement (INECE)Enforcement (INECE)

Principles of Environmental Principles of Environmental EnforcementEnforcement

Role of Courts and Relationship with Role of Courts and Relationship with Enforcement OfficialsEnforcement Officials

Questions and Answers Questions and Answers

4

Environmental ChallengesEnvironmental Challenges

What are the greatest What are the greatest environmental challenges facing environmental challenges facing you and your region?you and your region?

What are the major What are the major enforcement/judicial challenges enforcement/judicial challenges you face?you face?

5

International Network for International Network for Environmental Compliance and Environmental Compliance and

EnforcementEnforcement

http://www.inece.org

6

What is INECE?What is INECE? Global network dedicated to improving Global network dedicated to improving

compliance with environmental laws at compliance with environmental laws at national, regional and int’l levels.national, regional and int’l levels.

Government officials, IGO (e.g., World Bank, Government officials, IGO (e.g., World Bank, UNEP, OECD) and NGO partners.UNEP, OECD) and NGO partners.

Hazardous Waste, Enforcement Indicators, Hazardous Waste, Enforcement Indicators, Inspectors, Public Access to Information, Inspectors, Public Access to Information, Ozone, Pesticides, Wildlife, and Water. Ozone, Pesticides, Wildlife, and Water.

7

Mission of INECEMission of INECE

To contribute to a To contribute to a healthy and clean healthy and clean environmentenvironment, , sustainable use of sustainable use of

natural resourcesnatural resources, and the , and the protection protection of ecosystem integrityof ecosystem integrity through through

effective compliance and enforcement effective compliance and enforcement of environmental laws using regulatory of environmental laws using regulatory

and non-regulatory approaches.and non-regulatory approaches.

8

Goals of INECEGoals of INECE

1. Raising awareness1. Raising awareness of the importance of the importance of environmental compliance and of environmental compliance and enforcementenforcement

2. Strengthening capacity2. Strengthening capacity for for compliance and enforcement through compliance and enforcement through training and issue analysistraining and issue analysis

3. Developing regional and topic-specific 3. Developing regional and topic-specific networksnetworks for enforcement cooperation for enforcement cooperation

9

INECE StructureINECE Structure

Executive Planning CommitteeExecutive Planning Committee INECE Secretariat (Established in INECE Secretariat (Established in

2001)2001) Regional NetworksRegional Networks

– New:New: Africa, Asia, Central America, South Africa, Asia, Central America, South AmericaAmerica

– Existing:Existing: BERCEN, REPIN, IMPEL, CEC BERCEN, REPIN, IMPEL, CEC Topic-specific NetworksTopic-specific Networks

– Logging, Wildlife, Water, ProsecutorsLogging, Wildlife, Water, Prosecutors Over 3000 participants from over 130 Over 3000 participants from over 130

countriescountries

10

Other Key PartnershipsOther Key Partnerships United Nations Environment ProgrammeUnited Nations Environment Programme Organization for Economic Co-operation Organization for Economic Co-operation

and Developmentand Development European Commission/IMPELEuropean Commission/IMPEL World Bank InstituteWorld Bank Institute REPIN, BERCEN, CEC, AEINREPIN, BERCEN, CEC, AEIN Environment Agencies (Canada, Environment Agencies (Canada,

England and Wales)England and Wales)

11

Major Program Activities • Compliance and Enforcement IndicatorsCompliance and Enforcement Indicators• International ConferencesInternational Conferences• Principles of Enforcement TrainingPrinciples of Enforcement Training• Information Sharing via www.inece.orgInformation Sharing via www.inece.org• Topical Enforcement Cooperation ProjectsTopical Enforcement Cooperation Projects• Enforcement Mechanisms to Support Emissions Enforcement Mechanisms to Support Emissions

TradingTrading• Best of Compliance and Enforcement BookBest of Compliance and Enforcement Book• Building Successful NetworksBuilding Successful Networks

12

Contact InformationContact Information

INECE SecretariatINECE SecretariatKenneth MarkowitzKenneth Markowitz

2141 Wisconsin Ave, NW, Suite D22141 Wisconsin Ave, NW, Suite D2Washington, DC 20007 Washington, DC 20007

Phone: 202-338-1300Phone: 202-338-1300 Email: ken@inece.orgEmail: ken@inece.org

Web: Web: http://www.inece.orghttp://www.inece.org

13

Principles of Environmental Principles of Environmental EnforcementEnforcement

DefinitionsDefinitions Elements of Compliance and Elements of Compliance and

Enforcement Program – Who, Enforcement Program – Who, What, How, WhyWhat, How, Why

Penalties and Other RemediesPenalties and Other Remedies Trial and Settlement IssuesTrial and Settlement Issues

14

Environmental ComplianceEnvironmental Compliance

RequirementsRequirements met met Desired Desired behaviorbehavior achieved achieved Compliance only a concern where Compliance only a concern where

there are enforceable requirementsthere are enforceable requirements Voluntary approaches to Voluntary approaches to

environmental management have environmental management have no compliance componentno compliance component

15

Enforcement:Enforcement:Tool to Achieve Tool to Achieve

ComplianceCompliance

Enforcement is set of actions Enforcement is set of actions governments or others take to governments or others take to compel or encourage compliancecompel or encourage compliance

Enforcement is not an end, but the Enforcement is not an end, but the means to an endmeans to an end

16

Why EnforceWhy Enforce

Enforcement is Essential To:Enforcement is Essential To:– Environmental Protection/ResultsEnvironmental Protection/Results– Equitable Treatment of Regulated Equitable Treatment of Regulated

Community – Level Playing FieldCommunity – Level Playing Field– Credibility of Laws and InstitutionsCredibility of Laws and Institutions– Long Term Economic AdvantagesLong Term Economic Advantages– Protecting Government and Public Protecting Government and Public

ResourcesResources

17

Enforcement As Enforcement As DeterrenceDeterrence

Creation of atmosphere where Creation of atmosphere where people chose to comply rather than people chose to comply rather than violate.violate.– Credible likelihood that violation will be Credible likelihood that violation will be

detecteddetected– Swift and certain response to violationSwift and certain response to violation– Consequence: Sanction or PenaltyConsequence: Sanction or Penalty– Perception that first three will happen to Perception that first three will happen to

you if violation occurs.you if violation occurs.

18

Components of a Components of a Compliance and Compliance and

Enforcement ProgramEnforcement Program

Creating enforceable requirementsCreating enforceable requirements Establishing Program PrioritiesEstablishing Program Priorities Promoting compliance in regulated Promoting compliance in regulated

communitycommunity Monitoring complianceMonitoring compliance Equitable response to violationsEquitable response to violations Clarifying Roles and ResponsibilitiesClarifying Roles and Responsibilities Evaluating success and being accountableEvaluating success and being accountable

19

Enforceability of Enforceability of RequirementsRequirements

Clear expectations of regulated Clear expectations of regulated entityentity

Measurable limits, in regulation or Measurable limits, in regulation or permitpermit

Record keeping to show compliance Record keeping to show compliance historyhistory

Regulation based clearly on Regulation based clearly on enforceable lawenforceable law

20

Compliance PromotionCompliance Promotion

Creating awareness of Creating awareness of requirements and expectationsrequirements and expectations

Regulatory or technical assistanceRegulatory or technical assistance Compliance/Enforcement enhanced Compliance/Enforcement enhanced

by publicity - greater deterrenceby publicity - greater deterrence Rewards for going “Beyond Rewards for going “Beyond

Compliance”Compliance”

21

Compliance Monitoring Compliance Monitoring ToolsTools

Self monitoringSelf monitoring Government inspectionsGovernment inspections Self-disclosure and self-correctionSelf-disclosure and self-correction Citizen oversight/whistleblowersCitizen oversight/whistleblowers Database/record reviewDatabase/record review

22

Compliance and Compliance and Enforcement StrategiesEnforcement Strategies

Laws, regulations, or policies that Laws, regulations, or policies that standardize responsestandardize response

Includes enforcement response Includes enforcement response policies and compliance monitoring policies and compliance monitoring plansplans

Ensures consistency and fairnessEnsures consistency and fairness Outlines priorities and focuses effortsOutlines priorities and focuses efforts Integrity and transparencyIntegrity and transparency

23

Range of Enforcement Range of Enforcement ResponsesResponses

Remedial ActionsRemedial Actions

Information GatheringInformation Gathering

Penalties and ConsequencesPenalties and Consequences

24

Enforcement Principles and Enforcement Principles and PoliciesPolicies

First Response, Escalation and Follow First Response, Escalation and Follow ThroughThrough

Timely and Appropriate ResponsesTimely and Appropriate Responses Fair, Consistent ApplicationFair, Consistent Application Administrative vs. judicial Administrative vs. judicial Civil vs. Criminal Civil vs. Criminal Protecting Basic RightsProtecting Basic Rights Supporting Enforcement CaseSupporting Enforcement Case Public NoticePublic Notice

25

Enforcement Team:Enforcement Team:

InspectorInspector Program managersProgram managers Technical expertsTechnical experts Law enforcementLaw enforcement

– PolicePolice– ProsecutorsProsecutors– Customs officialsCustoms officials

AttorneysAttorneys Judicial OfficialsJudicial Officials

26

Reporting and Evaluating Reporting and Evaluating ResultsResults

Data needed to evaluate Data needed to evaluate effectiveness of programeffectiveness of program

Support oversight by citizens and Support oversight by citizens and governmentgovernment

Continual improvementContinual improvement

27

Why Proceed With Why Proceed With Enforcement?Enforcement?

Recalcitrant violatorRecalcitrant violator Require remedial actionsRequire remedial actions Apply sanctionsApply sanctions

– Monetary penaltyMonetary penalty– ImprisonmentImprisonment

Equity among industryEquity among industry Encourage others to complyEncourage others to comply

28

PenaltiesPenalties

Deters future violationsDeters future violations Ensures no economic benefit Ensures no economic benefit

derived from violating lawderived from violating law Specific to violation and Specific to violation and

circumstancescircumstances Ability to payAbility to pay Other considerationsOther considerations

29

PenaltiesPenalties

Calculations must be equitableCalculations must be equitable– Consistency is important, try to be Consistency is important, try to be

typical/normal across industrytypical/normal across industry Length of violationLength of violation

– The duration can add to the penaltyThe duration can add to the penalty Penalty typesPenalty types

– Cash, purchase of equipment, other Cash, purchase of equipment, other environmental expendituresenvironmental expenditures

Worksheet to Calculate a Monetary Penalty

Potential for Harm

Amount of deviation from the Requirement(s)

High Low

High $100 – $500 $25 – $100

Low $25 – $100 $5 – $25

Facility Name:

Severity or Significance of Violation

Penalty required based on the potential for harm and amount of deviation from the requirement (from the matrix below and judgment to determine the appropriate amount):

Example

Penalty per Day (a) $100/day

Duration of Violation

Days of Noncompliance (b) 60

Penalty adjusted for duration

= a X b (c) $6,000

Money the Facility Saved by Not Complying with the Requirements

Money Saved (d) $2,000

Subtotal = (c) + (d) (e) $8,000

Penalty Adjustment Factors (+/-) *

1. Degree of Cooperation (f) +10%

2. History of Compliance (g) -10%

3. Ability to Pay (h) -10%

Total = [(f) + (g) + (h)] x (e) (i) -800

TOTAL PENALTY

Total Penalty = (e) + (I) (j) $7,200

* Adjustments may range from -20% to +20% for factors 1 and 2, and from -100% to 0% for factor 3. Selections of appropriate percentages is based on subjective judgments and should be consistent with adjustments made when calculating penalties for other similar violations.See Handout W2.G

SLIDE 19

31

Alternative Dispute Alternative Dispute ResolutionResolution

Alternatives to Judicial ActionAlternatives to Judicial Action– Party to Party NegotiationsParty to Party Negotiations– Mediation by court order or Mediation by court order or

agreementagreement– Binding ArbitrationBinding Arbitration

ADR Policies for EnforcersADR Policies for Enforcers Court ProgramsCourt Programs

32

SettlementsSettlements

Much less resources required than Much less resources required than courtcourt

Must be responsive to both side’s Must be responsive to both side’s needsneeds

May be able to achieve benefits May be able to achieve benefits beyond just a cash penaltybeyond just a cash penalty

Should consider financial position of Should consider financial position of company and other concernscompany and other concerns

33

Biggest Obstacles to Biggest Obstacles to SettlementSettlement

Weak evidenceWeak evidence Weak law/regulationWeak law/regulation Lack of flexibilityLack of flexibility Trying to get too muchTrying to get too much PersonalitiesPersonalities

34

Taking Case to CourtTaking Case to Court

Much longer processMuch longer process Requires additional documentationRequires additional documentation Exchange of informationExchange of information Judge/jury decidesJudge/jury decides

– Prosecutor loses controlProsecutor loses control– May not get desired outcomeMay not get desired outcome

Higher riskHigher risk

35

Post Settlement Follow-upPost Settlement Follow-up

Is the company doing what they agreed to Is the company doing what they agreed to do in the settlementdo in the settlement

Verify that schedule/timetable being Verify that schedule/timetable being followedfollowed

Follow-up often required to ensure required Follow-up often required to ensure required activities performedactivities performed

Chronic violators need long-term scrutinyChronic violators need long-term scrutiny May require continuing jurisdiction of courtMay require continuing jurisdiction of court

36

Relationship Between Relationship Between Prosecutors and JudgesProsecutors and Judges

Prosecutors bring all evidence Prosecutors bring all evidence before the courtsbefore the courts

Higher StandardsHigher Standards Educative Role/Allowing courts to Educative Role/Allowing courts to

make informed decisions, eg. make informed decisions, eg. Scientific testimony; economic Scientific testimony; economic benefit; damages and appropriate benefit; damages and appropriate remedies remedies

Formulation of judicial rulesFormulation of judicial rules

37

Role of the Courts in Role of the Courts in EnforcementEnforcement

Courts as the final arbiters of Courts as the final arbiters of disputesdisputes– Disputed facts Disputed facts – Interpreting lawInterpreting law– Applying facts to lawApplying facts to law

Determining ViolationsDetermining Violations Protecting Private RightsProtecting Private Rights

38

Role of the Courts in Role of the Courts in EnforcementEnforcement

cont. cont.

Sanctions and Remedies – fair and Sanctions and Remedies – fair and consistentconsistent

Imposing Liability on GovernmentImposing Liability on Government Orders and Enforcing ConsequencesOrders and Enforcing Consequences Upholding Integrity of the SystemUpholding Integrity of the System Public Awareness and TransparencyPublic Awareness and Transparency

39

Capacity Building/TrainingCapacity Building/Training

ENRD: ENRD: http://www.usdoj.gov/enrdhttp://www.usdoj.gov/enrd EPA: EPA: http://www.usepa.govhttp://www.usepa.gov

– Principles of Environmental Enforcement Principles of Environmental Enforcement TrainingTraining

INECE: http://inece.orgINECE: http://inece.org Administrative Office of the US Courts: Administrative Office of the US Courts:

http://www.uscourts.govhttp://www.uscourts.gov Federal Judicial Center: Federal Judicial Center:

http://www.fjc.govhttp://www.fjc.gov

40

Contact InformationContact Information Jim RubinJim Rubin, Assistant Chief, Law and Policy , Assistant Chief, Law and Policy

Section, Environment and Natural Resources Section, Environment and Natural Resources Division, USDOJ, PO Box 4390, Ben Franklin Division, USDOJ, PO Box 4390, Ben Franklin Station, Washington, DC 20044-4390; Station, Washington, DC 20044-4390; (202)514-9050(202)514-9050– Jim.Rubin@usdoj.govJim.Rubin@usdoj.gov

Robert Maher,Robert Maher, Assistant Chief, Environmental Assistant Chief, Environmental Enforcement Section, Environment and Natural Enforcement Section, Environment and Natural Resources Division, USDOJ, PO Box 7611, Ben Resources Division, USDOJ, PO Box 7611, Ben Franklin Station, Washington, DC 20004-7611; Franklin Station, Washington, DC 20004-7611; (202)514-4241(202)514-4241– Robert.Maher@usdoj.govRobert.Maher@usdoj.gov