Recommended
More Related Content
Similar to Penalties and benefit recapture
Similar to Penalties and benefit recapture (20)
Recently uploaded
Recently uploaded (20)
Penalties and benefit recapture
- 1. Jonathan D. Libber Jlibber Consulting December 7, 2011 1
- 2. Revocation of an environmental permit Temporary or permanent closure Fines and Penalties ◦ Note that only with fines can you adjust the sanction to fit the violation. The rest are all or nothing
- 3. Twobasic approaches to assessing fines and penalties ◦ Gestalt approach: “It feels like a $10,000 case” ◦ Penalty policy approach: uses guidance to more objectively determine the penalty Enforcement Sensitive and Confidential 3
- 4. Based on intuitive sense of what the case is worth No standards or guidance No documentation Hard to explain to violator or management Hard to explain to a judge Hard to maintain consistency from one enforcement person to another Hard to train new enforcement personnel Enforcement Sensitive and Confidential 4
- 5. Penalty calculation can be documented and reviewed ◦ Review function particularly important to monitor how policy is working in practice Easier to train new employees Easier to maintain consistency Easier to explain to violator Easier to explain to a judge Transparancy Avoids Creating „Secret Law‟ 5
- 6. Positional Bargaining ◦ Gestalt approach supports positional bargaining ◦ Arbitrary positions ◦ Hard to reach agreement Enforcement Sensitive and Confidential 6
- 7. Principled negotiations supported by penalty guidance ◦ You can show defendant why you think the penalty should be $500,000. ◦ Focus on the reasons, not the numbers ◦ If you can agree on the reasons, it much easier to come up with a number both sides can agree to. 7
- 8. Totally objective component of the penalty. ◦ Anyone using the data you have will come to the same answer ◦ Even a good penalty policy will have some flexibility such there will be variations from one person to another. 8
Editor's Notes
- Judges still use this approach.
- Judges still use this approach.
- Fairness argument very strongly engrained in Western society. Big companies complained when President Ronald Reagan’s EPA leaders starting gutting the enforcement program.Judges very supportive.