The enforcement of environmental law, policy and sanction

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Overview of environmental enforcement in Ireland.

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  • Ref THE BENEFITS OF COMPLIANCE WITH THE ENVIRONMENTAL ACQUIS FOR THE CANDIDATE COUNTRIES DGENV CONTRACT: B7-8110 / 2000 / 159960 / MAR / H1 ECOTEC Research & Consulting Limited Birmingham B4 7UD United Kingdom
  • Strategy . Pursue a strategic, rather than piecemeal, approach to law-making for broad environmental policy sectors. Definitions . Provide clear and unambiguous definitions for key terms. Make definitions consistent between laws unless there is good reason for difference. Requirements . Ensure that the requirements of the law are clear, and appropriate to deliver the aims of the legislation. Timeframes . Ensure that timeframes for implementation are clear and practical. Check that the timeframes of different laws fit realistically. Proportionality . Ensure that the requirements of legislation are proportionate to the risks and hazards they address. Reporting . Only require reporting that will support implementation of the law or give useful feedback on its effectiveness. Harmonise reporting requirements across different laws. Revision . Make provision in the law for a simplified process (where the Treaties allow this) to quickly review and revise parts of the law if initial implementation reveals problems of practicability and enforceability.
  • Strategy . Pursue a strategic, rather than piecemeal, approach to law-making for broad environmental policy sectors. Definitions . Provide clear and unambiguous definitions for key terms. Make definitions consistent between laws unless there is good reason for difference. Requirements . Ensure that the requirements of the law are clear, and appropriate to deliver the aims of the legislation. Timeframes . Ensure that timeframes for implementation are clear and practical. Check that the timeframes of different laws fit realistically. Proportionality . Ensure that the requirements of legislation are proportionate to the risks and hazards they address. Reporting . Only require reporting that will support implementation of the law or give useful feedback on its effectiveness. Harmonise reporting requirements across different laws. Revision . Make provision in the law for a simplified process (where the Treaties allow this) to quickly review and revise parts of the law if initial implementation reveals problems of practicability and enforceability.
  • The enforcement of environmental law, policy and sanction

    1. 1. The enforcement of environmental law; policy and sanction Mr. Dara Lynott BE, MSc, PE, Ceng, FEI Director Office of Environmental Enforcement Environmental Protection Agency All or part of this publication may be reproduced without further permission, provided the source is acknowledged.
    2. 2. Outline of Talk <ul><li>Introduction to the EPA </li></ul><ul><li>Overview of European law </li></ul><ul><li>Enforcement of European law </li></ul><ul><li>Enforcement Policy </li></ul><ul><li>Effective Sanction </li></ul><ul><li>Conclusions </li></ul>
    3. 3. Environmental Protection Agency <ul><li>Established in 1993 </li></ul><ul><li>EPA Sponsor in Government is the Department of Environment Heritage and Local Government </li></ul><ul><li>EPA is an independent public body - Freedom to act on own initiative </li></ul><ul><li>Powers to act derived primarily from EPA Acts, 1992 to 2007 </li></ul><ul><li>Statutory obligations in Acts and National Regulations </li></ul>
    4. 4. EPA Organisational Structure <ul><li>Office of Climate change, Licensing and Regulation (OCLR) </li></ul><ul><li>Office of Environmental Enforcement (OEE) </li></ul><ul><li>Office of Environmental Assessment (OEA) </li></ul><ul><li>Office of Communications and Corporate Services (OCCS) </li></ul>
    5. 5. EPA Work <ul><li>OCLR </li></ul><ul><ul><li>implementing the Emissions Trading Directive in Ireland </li></ul></ul><ul><ul><li>Calculation and projection of Ireland’s carbon and acid gas emissions </li></ul></ul><ul><ul><li>Licensing of large-scale Industrial (550+/-) and waste facilities (180+/-) </li></ul></ul><ul><ul><li>Granting of consents for genetically modified organisms </li></ul></ul><ul><ul><li>Producer Responsibility R egulation WEEE/ODS/RoHS/Batteries </li></ul></ul><ul><ul><li>National Waste database and Waste Prevention Programme </li></ul></ul><ul><li>OEA </li></ul><ul><ul><li>National monitoring programmes for air and water </li></ul></ul><ul><ul><li>Monitoring and analysing of emissions from licensed sites </li></ul></ul><ul><ul><li>Co-ordinating a €15m/yr Environmental Research Programme </li></ul></ul><ul><ul><li>The State of the Environment Report </li></ul></ul><ul><ul><li>Strategic Environmental Assessment Directive </li></ul></ul>
    6. 6. Office of Environmental Enforcement OEE <ul><li>Established in 2003 within EPA </li></ul><ul><li>Identified need for increased focus on enforcement </li></ul><ul><li>Sole remit is enforcement of environmental legislation </li></ul><ul><ul><li>Industrial and waste licence enforcement (780+/- facilities) </li></ul></ul><ul><ul><li>Legal unit provides advice, preparation of legal actions (15-20 cases per year), coordination of investigations for indictable offences </li></ul></ul><ul><ul><li>Enforcement of LA functions (not planning) waste and water quality since 2003, drinking water since March 2007, urban wastewater discharges from 2008 onwards. </li></ul></ul><ul><li>Structured approach to enforcement </li></ul>
    7. 7. Environmental Regulation – The Environmental Acquis <ul><li>The Environmental Acquis - “ acquis communautaire ´ </li></ul><ul><li>comprises around 300 Directives and Regulations, including daughter directives and amendments. </li></ul><ul><li>estimated to require an investment of around 80 to 120 billion EUR for the ten accession countries alone. </li></ul>
    8. 8. Types of environmental Regulation <ul><li>REGULATIONS - directly applicable in law in Member States </li></ul><ul><li>DIRECTIVES - binding as to the results to be achieved, up to Member States as to implementation methodology. Member States must notify Commission within a given time with a statement of measures that give formal effect to the Directive. </li></ul><ul><li>DECISIONS - binding in its entirety with reference to Member States, enterprises. Mainly used for adoption of international conventions </li></ul><ul><li>RECOMMENDATIONS & OPINIONS - not legally binding, but used to exert moral & legal pressures </li></ul>
    9. 9. Scope of Environmental Regulation <ul><li>Products - noise / emissions etc </li></ul><ul><li>Activities & Production Processes - construction / industrial operations etc </li></ul><ul><li>Environmental Quality Protection - emissions / nature protection etc </li></ul><ul><li>Procedures & Procedural Rights - EIA/ access to information etc </li></ul>
    10. 10. Compliance With Environmental Regulation - TIE <ul><li>TRANSPOSITION - ensure requirements of EU law fully incorporated into national law </li></ul><ul><li>IMPLEMENTATION - fiscal & technical resources available to implement laws </li></ul><ul><li>ENFORCEMENT - controls & penalties in place to ensure laws are being complied with fully </li></ul>
    11. 11. Effective Enforcement Needs a Good Legal Base - <ul><li>Piecemeal legislation leading to a lack of consistency </li></ul><ul><li>legal requirements are not in line with the benefit derived or outcome desired </li></ul><ul><li>Timeframes and definitions do not match across legislation leading to duplication of effort </li></ul><ul><li>Excessive reporting with no analysis of reporting coming back to the member states </li></ul><ul><li>Cumbersome process to revise laws when they need revision in light of the experience gained in implementation </li></ul><ul><li>Confusion over what is politically required versus what is scientifically possible </li></ul>  Problems identified with the implementation of European Legislation  
    12. 12. Effective Enforcement Needs a Good Legal Base - <ul><li>Strategy - strategic, rather than piecemeal, </li></ul><ul><li>Definitions - clear and unambiguous consistent between laws </li></ul><ul><li>Requirements - requirements of the law are clear, and achieve aims </li></ul><ul><li>Timeframes – practical, fit realistically across different laws. </li></ul><ul><li>Proportionality - proportionate to the risks </li></ul><ul><li>Reporting - Only essential reporting, harmonise across different laws </li></ul><ul><li>Revision - Allow for quick revision if enforcement issues arise </li></ul>  IMPEL Principles for Better Legislation  
    13. 13. ECJ Judgements against Ireland in Environmental law <ul><li>Ireland has eight European Court Judgements against it for breach of European Directives these include: </li></ul><ul><ul><li>Waste Framework Directive, </li></ul></ul><ul><ul><li>Drinking Water Directive, </li></ul></ul><ul><ul><li>Dangerous Substances Directive, </li></ul></ul><ul><ul><li>Habitats (and Bird) Directives, </li></ul></ul><ul><ul><li>Shellfish Directive, </li></ul></ul><ul><ul><li>Ozone Depleting substances regulation, </li></ul></ul><ul><ul><li>Nitrates Directive, </li></ul></ul><ul><ul><li>Groundwater Directive </li></ul></ul><ul><li>Significant amount of these cases as a result of late transposition of EU Law </li></ul><ul><li>For three of these Court Judgements the Commission has signalled its intent to return to the court to seek fines and penalties against Ireland for failing to come into compliance with the Court Judgement. </li></ul>
    14. 14. General themes of non-compliance <ul><li>Two themes that run through communications between Ireland and the Commission have been the need for: </li></ul><ul><ul><li>a national Enforcement policy </li></ul></ul><ul><ul><ul><li>A national enforcement or prosecutorial policy for Environmental Regulators and </li></ul></ul></ul><ul><ul><li>appropriate Sanction and Deterrence </li></ul></ul><ul><ul><ul><li> A sanctions policy for the Judiciary to outline  Fines and penalties that encourage compliance and deter non-compliant activity. </li></ul></ul></ul><ul><li>The remainder of this talk sketches out what this would mean in an Irish Context </li></ul>
    15. 15. What is the Purpose of an Enforcement Policy? <ul><li>Inform the regulated community of the factors that will be taken into account in determining appropriate enforcement responses to contraventions of environmental legislation including whether prosecutions will be pursued. </li></ul><ul><li>Set out the sanctions available to the regulator and their use. </li></ul><ul><li>Set out a statement of intent as to the priorities for the Regulator in tackling environmental crime. </li></ul><ul><li>Set out the broad range of enforcement activities that will be undertaken by the Regulator that do not involve criminal sanction such as education, information exchange and integration with other stakeholders and regulators. </li></ul>
    16. 16. The Components of an Enforcement Policy <ul><li>The requirement of an enforcement plan . </li></ul><ul><li>The inspection activities that detect compliance or non-compliance. </li></ul><ul><li>The priority areas to be inspected and the expected outcomes </li></ul><ul><li>The principal s that will be used in compliance checking </li></ul><ul><li>The types of enforcement response to non-compliant activity </li></ul><ul><li>The sanctions available to the regulator should be set out clearly </li></ul><ul><li>The alternative s to enforcement that increase levels of compliance and engage with the regulated community. </li></ul>
    17. 17. The Enforcement plan <ul><li>The EU Recommendation for minimum inspection criteria for environmental inspections in EU Member States requires that regulators undertake their inspection duties in accordance with the Recommendation. </li></ul><ul><li>The key requirements of the Recommendation are that the Authority; </li></ul><ul><ul><li>potential risk that the licensed site poses to the environment and/or its compliance history. </li></ul></ul><ul><ul><li>the number and types of installations that exist within their area; </li></ul></ul><ul><ul><li>the resources available to undertake the inspections; and </li></ul></ul><ul><ul><li>the outcomes that the Council wishes to achieve through the implementation of the plan (e.g. stop the serious pollution of a specific stream or resolve the issues behind odour complaints in relation to installation X). </li></ul></ul><ul><li>The OEE has produced guidance on the development of a risk based approach to enforcement of facilities licensed by the EPA and is available for download [1 </li></ul>
    18. 18. Inspection Activities <ul><li> </li></ul><ul><ul><li>Inspecting </li></ul></ul><ul><ul><li>Monitoring </li></ul></ul><ul><ul><li>Gathering information on illegal activity </li></ul></ul><ul><ul><li>Assessing data </li></ul></ul><ul><ul><li>Verifying data generated by the regulated community </li></ul></ul><ul><ul><li>Assessing activities being carried out </li></ul></ul><ul><ul><li>Responding to complaints and incidents </li></ul></ul><ul><ul><li>Engaging with the public and the regulated community on compliance issues </li></ul></ul><ul><ul><li>Collating and reporting enforcement data. </li></ul></ul>
    19. 19. Compliance checking <ul><li> </li></ul>         
    20. 20. Compliance checking <ul><li> </li></ul><ul><ul><li>compliant situations - confirm and accept a satisfactory performance, </li></ul></ul><ul><ul><li>  adequate evidence not there - seeking improvements in the monitoring arrangements </li></ul></ul><ul><ul><li>borderline situations - precautionary advice and negotiation of voluntary improvements </li></ul></ul><ul><ul><li>self-correction arrangements - checking that an operator has carried out appropriate actions non-compliance - imposing mandatory corrective actions e.g. a formal warning, </li></ul></ul><ul><ul><li>Significant non-compliance - prosecution/court action </li></ul></ul>
    21. 21. Enforcement response – General Principles <ul><li> </li></ul>          <ul><li>The five principles are summarised as follows: </li></ul><ul><li>proportionality in the application of environmental law and in securing compliance; </li></ul><ul><li>consistency of approach; </li></ul><ul><li>transparency about how an Environmental Regulator operates; </li></ul><ul><li>targeting of enforcement action and </li></ul><ul><li>implementation of the polluter pays principle . </li></ul>
    22. 22. Administrative, Civil or Criminal? <ul><li> </li></ul>Refusal of surrender of a licence Bond Retention Revocation of a licence Refusal of Licence Revision of licence Directions Statutory Notices Warning letters Directed Environmental Audits penalty orders Compliance meetings Circuit Court court orders for repair and mitigation of damage Notification of Non-compliance District Court injunctions, Verbal communication Criminal Civil Administrative
    23. 23. Are there any alternatives? <ul><li> </li></ul>          PRTR (irish and european emissions) Sectoral guidance (Risk based methodologies) eDMS (licensing) Local and National Radio Ads Batteries Sectoral (Green schools, hotels, homes) GIS (envision) Free phone number (i.e I890365121) Packaging Researchers (Cleaner Greener initiatives) Internet (Prosecutions published) Booklets (i.e. See Something, Say Something) WEEE Regulators (EEN) National reports (State of the Environment) Print Ads (man in the van,backyard burning) Producer Responsibility Networks Reporting outcomes Informing the regulated community
    24. 24. Sanction – current view <ul><li>“ there are no minimum penalties which a judge cannot reduce in Environmental statutes” </li></ul><ul><li>“ Interfering with the discretion of the judiciary as to the fines, which they may impose, could be viewed as interference by the legislature with judicial powers”(1) </li></ul><ul><li>DPP guidance is explicit that the Prosecutor must not seek to persuade the Court to impose an improper sentence or advocate a sentence of a particular magnitude. (2) </li></ul>Note 1 page 199 Criminal Penalties in EU Member States’ Environmental Law coordinated by Prof. Dr. Michael G. Faure Note 2 Sections 8.17, 18; Guidelines for Prosecutors; Office of the Director of Public Prosecutions 2006.
    25. 25. Sanction - external view <ul><li>The Hampton Review (1) </li></ul><ul><ul><li>the few businesses that persistently break regulations should be identified quickly and face proportionate and meaningful sanctions. </li></ul></ul><ul><ul><li>Penalties handed down by courts are not seen as an adequate deterrent to regulatory non-compliance as the level of financial penalty can often fail to reflect the financial gain of non-compliance with regulatory obligations; and </li></ul></ul><ul><ul><li>The range of enforcement tools available to many regulators is limited, giving rise to disproportionate use of criminal sanctions, which can be a costly, time-consuming and slow process. </li></ul></ul><ul><li>The UK Government appointed Professor Richard B. Macrory to conduct a review of regulators’ penalty regimes and make recommendations; these were subsequently published in 2006. (2) </li></ul>Note 1 Reducing administrative burdens: Effective inspection and enforcement, Hampton, P., HM Treasury, March 2005, Recommendation 8. Note 2 Regulatory Justice Making Sanctions effective, November 2006, Professor Richard B. Macrory.
    26. 26. Sanction - Macrory view <ul><li>A sanction should: </li></ul><ul><ul><li>Aim to change the behaviour of the offender </li></ul></ul><ul><ul><li>Aim to eliminate any financial gain or benefit from non-compliance </li></ul></ul><ul><ul><li>Be responsive and consider what is appropriate for the particular offender and regulatory issue, </li></ul></ul><ul><ul><li>Be proportionate to the nature of the offence and the harm caused </li></ul></ul><ul><ul><li>Aim to restore the harm caused by regulatory non-compliance, where appropriate; and </li></ul></ul><ul><ul><li>Aim to deter future non-compliance </li></ul></ul>
    27. 27. Sanction - Macrory Recommendations <ul><li>Examine how criminal offences are formulated relating to regulatory non-compliance; </li></ul><ul><li>Increase the effectiveness of the Criminal Courts by: </li></ul><ul><ul><li>Preparing general sentencing guidelines </li></ul></ul><ul><ul><li>Instructing prosecutors to make clear to the Court any financial benefits resulting from the non-compliance </li></ul></ul><ul><ul><li>Establishing designated Courts for regulatory offences </li></ul></ul><ul><ul><li>Regulators providing specialist training to prosecutors and discuss with the Judicial Studies Board contributing to the training of the judiciary and Justices Clerks.       </li></ul></ul>
    28. 28. Mr. Justice Scott Baker and Mr. Justice Hughes (1) <ul><li>The Court supported the view expressed in several quarters that fines were too low in the health and safety area, but accepted that the circumstances of individual cases will vary almost infinitely and that very few cases have reached the courts. As a result it would be difficult for judges, who only rarely deal with these cases, to have an instinctive feel for the appropriate level of penalty. The court then went on to outline fifteen relevant factors that can be taken into account when setting an appropriate level of penalty. </li></ul>Note 1 Mr. Justice Scott Baker and Mr. Justice Hughes in the 1998 Court of Appeal case of R v F Howe & Son (Engineers) Ltd.
    29. 29. Mr. Justice Scott Baker and Mr. Justice Hughes (cont.) <ul><li>General Factors </li></ul><ul><li>The size of a company and its financial strength or weakness cannot affect the degree of care that is required in matters of safety. </li></ul><ul><li>The standard of care imposed by the legislation is the same regardless of the size of company. </li></ul><ul><li>Mitigating factors </li></ul><ul><li>        Prompt admission of responsibility and a timely plea of guilty </li></ul><ul><li>        deficiencies remedied after they are drawn to the defendant’s attention </li></ul><ul><li>         A good safety record. </li></ul><ul><li>Aggravating factors </li></ul><ul><li>Death as a consequence of a criminal act is regarded as an aggravating feature of the offence </li></ul><ul><li>       Failure to heed warnings </li></ul><ul><li>Where the defendant has deliberately profited financially </li></ul>
    30. 30. Interpol Environmental Crimes committee Advocacy Memorandum (3) <ul><li>Economic Benefit Derived </li></ul><ul><li>Environmental Harm </li></ul><ul><li>Human Harm </li></ul><ul><li>Economic Harm </li></ul><ul><li>Public Harm </li></ul><ul><li>Threat of Harm </li></ul><ul><li>The characteristics of the Defendant </li></ul><ul><li>The characteristics of the Organisation </li></ul><ul><li>The conduct of the Defendant </li></ul>In June of 2007, the Interpol Environmental Crimes Committee prepared an advocacy memorandum that set out arguments for prosecutors of environmental crime. The memorandum sets out a possible format for preparing the financial information referred to in the R v. Howe judgement and builds on the recommendations for sanction set out in the Macrory Report. (3) Interpol Environmental Crimes committee Advocacy Memorandum, Arguments for prosecutors of Environmental Crimes - Interpol Pollution Crimes Working Group, June 2007.
    31. 31. Judicial Studies <ul><li>The European Forum of Judges for the Environment was created in 2003, and aims to promote, from the perspective of sustainable development, the implementation and enforcement of national, European and international environmental law by contributing to a better knowledge by judges of environmental law, by exchanging judicial decisions and by sharing experience </li></ul><ul><li>in the area of training in environmental case law. These aims are similar to the Judicial Studies Institute (JSI), a body established pursuant to section 19 of the Court and Court Officers Act, 1995 to organise the ongoing training and education of judges in Ireland. The mission statement for the JSI Journal states: </li></ul><ul><li>  </li></ul><ul><li>“ It recognises that judges work not simply in a context of black-letter law but in a wider human, social and economic milieu. It also recognises that judges of different courts, or even of the same court, may have different experiences, interests and needs.” </li></ul><ul><li>  </li></ul>
    32. 32. Conclusions - Sanctions <ul><li>Organisations representative of the judiciary have a vital role to play in addressing the concerns of the EU Commission and building capacity the wider theory and practice of environmental law and enforcement </li></ul><ul><li>They may also have a role to play in formulating a framework for the judiciary to use in imposing sanctions and deterrents appropriate for environmental crime. </li></ul><ul><li>The challenge for regulators charged with implementing EU Law is to determine how can this be done when access to representative organisations is restrictive and where dialogue is limited to sporadic occasions such as today’s conference? </li></ul>
    33. 33. Conclusions - Policy <ul><li>The Current Programme for Government commits to enhanced Environmental enforcement by completing: </li></ul><ul><ul><li>A review the level of fines and custodial sentences which can be applied by the lower Courts (where the majority of prosecutions are taken) in cases of pollution, dumping, illegal developments and other environmental crimes, so that the punishment fits the crime. </li></ul></ul><ul><ul><li>initiate a study of all legislation relating to environmental fines. </li></ul></ul><ul><li>Such a Governmental review may inject the impetus necessary for a National Enforcement policy. </li></ul><ul><li>Such a policy will , I contend, have to include many of the components that I have laid out before you to-day. </li></ul>

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