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.

Outline of Talk

Introduction to the EPA Overview of European law Enforcement of European law Enforcement Policy Effective Sanction Conclusions

Environmental Protection Agency

Established in 1993 EPA Sponsor in Government is the Department of

Environment Heritage and Local Government EPA is an independent public body - Freedom to act on

own initiative Powers to act derived primarily from EPA Acts, 1992 to

2007 Statutory obligations in Acts and National Regulations

EPA Organisational Structure

Office of Climate change, Licensing and Regulation (OCLR)

Office of Environmental Enforcement (OEE)Office of Environmental Enforcement (OEE)

Office of Environmental Assessment (OEA)

Office of Communications and Corporate Services (OCCS)

EPA Work

OCLR implementing the Emissions Trading Directive in Ireland Calculation and projection of Ireland’s carbon and acid gas emissions Licensing of large-scale Industrial (550+/-) and waste facilities (180+/-) Granting of consents for genetically modified organisms Producer Responsibility R egulation WEEE/ODS/RoHS/Batteries National Waste database and Waste Prevention Programme

OEA National monitoring programmes for air and water

Monitoring and analysing of emissions from licensed sites

Co-ordinating a €15m/yr Environmental Research Programme

The State of the Environment Report Strategic Environmental Assessment Directive

Office of Environmental Enforcement OEE

Established in 2003 within EPA

Identified need for increased focus on enforcement

Sole remit is enforcement of environmental legislation Industrial and waste licence enforcement (780+/- facilities)

Legal unit provides advice, preparation of legal actions (15-20 cases

per year), coordination of investigations for indictable offences

Enforcement of LA functions (not planning) waste and water quality

since 2003, drinking water since March 2007, urban wastewater

discharges from 2008 onwards.

Structured approach to enforcement

Environmental Regulation – The Environmental Acquis

The Environmental Acquis - “acquis communautaire ´

comprises around 300 Directives and Regulations, including

daughter directives and amendments.

estimated to require an investment of around 80 to 120 billion

EUR for the ten accession countries alone.

Types of environmental Regulation

REGULATIONS- directly applicable in law in Member States

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.

DECISIONS - binding in its entirety with reference to Member States, enterprises. Mainly used for adoption of international conventions

RECOMMENDATIONS & OPINIONS - not legally binding, but used to exert moral & legal pressures

Scope of Environmental Regulation

Products - noise / emissions etc

Activities & Production Processes - construction / industrial operations etc

Environmental Quality Protection - emissions / nature protection etc

Procedures & Procedural Rights - EIA/ access to information etc

Compliance With Environmental Regulation - TIE

TRANSPOSITION - ensure requirements of EU law fully incorporated into national law

IMPLEMENTATION - fiscal & technical resources available to implement laws

ENFORCEMENT - controls & penalties in place to ensure laws are being complied with fully

Effective Enforcement Needs a Good Legal Base -

 Problems identified with the implementation of European Legislation 

•Piecemeal legislation leading to a lack of consistency •legal requirements are not in line with the benefit derived or outcome desired•Timeframes and definitions do not match across legislation leading to duplication of effort•Excessive reporting with no analysis of reporting coming back to the member states•Cumbersome process to revise laws when they need revision in light of the experience gained in implementation•Confusion over what is politically required versus what is scientifically possible

Effective Enforcement Needs a Good Legal Base -

 IMPEL Principles for Better Legislation 

•Strategy - strategic, rather than piecemeal,

•Definitions - clear and unambiguous consistent between laws

•Requirements - requirements of the law are clear, and achieve aims •Timeframes – practical, fit realistically across different laws.

•Proportionality - proportionate to the risks

•Reporting - Only essential reporting, harmonise across different laws

•Revision - Allow for quick revision if enforcement issues arise

ECJ Judgements against Ireland in Environmental law

Ireland has eight European Court Judgements against it for breach of European Directives these include:

Waste Framework Directive, Drinking Water Directive, Dangerous Substances Directive, Habitats (and Bird) Directives, Shellfish Directive, Ozone Depleting substances regulation, Nitrates Directive, Groundwater Directive

Significant amount of these cases as a result of late transposition of EU Law 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.

General themes of non-compliance

Two themes that run through communications between Ireland and the Commission have been the need for:

a national Enforcement policy A national enforcement or prosecutorial policy for Environmental Regulators and

appropriate Sanction and Deterrence A sanctions policy for the Judiciary to outlineFines and penalties that encourage compliance and deter non-compliant activity.

The remainder of this talk sketches out what this would mean in

an Irish Context

What is the Purpose of an Enforcement Policy?

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.

Set out the sanctions available to the regulator and their use.

Set out a statement of intent as to the priorities for the Regulator in tackling environmental crime.

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.

The Components of an Enforcement Policy

1. The requirement of an enforcement plan.

2. The inspection activities that detect compliance or non-compliance.

3. The priority areas to be inspected and the expected outcomes

4. The principals that will be used in compliance checking

5. The types of enforcement response to non-compliant activity

6. The sanctions available to the regulator should be set out clearly

7. The alternatives to enforcement that increase levels of compliance and engage with the regulated community.

The Enforcement plan

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.

The key requirements of the Recommendation are that the Authority; potential risk that the licensed site poses to the environment and/or its

compliance history. the number and types of installations that exist within their area; the resources available to undertake the inspections; and 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).

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

Inspection Activities

Inspecting

Monitoring

Gathering information on illegal activity

Assessing data

Verifying data generated by the regulated community

Assessing activities being carried out

Responding to complaints and incidents

Engaging with the public and the regulated community on compliance issues

Collating and reporting enforcement data.

Compliance checking

        

Compliance checking

• compliant situations - confirm and accept a satisfactory performance,

•  adequate evidence not there - seeking improvements in the monitoring arrangements

•borderline situations - precautionary advice and negotiation of voluntary improvements

•self-correction arrangements - checking that an operator has carried out appropriate actions non-compliance - imposing mandatory corrective actions e.g. a formal warning,

•Significant non-compliance - prosecution/court action

Enforcement response – General Principles

        

The five principles are summarised as follows:

1. proportionality in the application of environmental law and in securing compliance;

2. consistency of approach;

3. transparency about how an Environmental Regulator operates;

4. targeting of enforcement action and

5. implementation of the polluter pays principle.

Administrative, Civil or Criminal?

Administrative Civil Criminal

Verbal communication injunctions, District Court

Notification of Non-compliance court orders for repair and mitigation of damage

Circuit Court

Compliance meetings penalty orders

Directed Environmental Audits

Warning letters

Statutory Notices

Directions

Revision of licence

Refusal of Licence

Revocation of a licence

Bond Retention

Refusal of surrender of a licence

Are there any alternatives?

        

Informing the regulated community

Reporting outcomes

Networks Producer Responsibility

Print Ads (man in the van,backyard burning)

National reports

(State of the Environment)

Regulators

(EEN)

WEEE

Booklets (i.e. See Something, Say Something)

Internet (Prosecutions published)

Researchers (Cleaner Greener initiatives)

Packaging

Free phone number (i.e I890365121)

GIS (envision) Sectoral

(Green schools, hotels, homes)

Batteries

Local and National Radio Ads

eDMS (licensing)

Sectoral guidance (Risk based methodologies)

PRTR (irish and european emissions)

Sanction – current view

“there are no minimum penalties which a judge cannot reduce in Environmental statutes”

“ 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)

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)

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.

Sanction - external view

The Hampton Review (1) the few businesses that persistently break regulations should be identified

quickly and face proportionate and meaningful sanctions. 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

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.

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) 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.

Sanction - Macrory view

A sanction should: Aim to change the behaviour of the offender

Aim to eliminate any financial gain or benefit from non-compliance

Be responsive and consider what is appropriate for the particular offender and regulatory issue,

Be proportionate to the nature of the offence and the harm caused

Aim to restore the harm caused by regulatory non-compliance, where appropriate; and

Aim to deter future non-compliance

Sanction - Macrory Recommendations

Examine how criminal offences are formulated relating to regulatory non-compliance;

Increase the effectiveness of the Criminal Courts by:

Preparing general sentencing guidelinesInstructing prosecutors to make clear to the Court any financial benefits resulting from the non-complianceEstablishing designated Courts for regulatory offencesRegulators providing specialist training to prosecutors and discuss with the Judicial

Studies Board contributing to the training of the judiciary and Justices Clerks.     

Mr. Justice Scott Baker and Mr. Justice Hughes (1)

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.

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.

Mr. Justice Scott Baker and Mr. Justice Hughes (cont.)

General FactorsThe size of a company and its financial strength or weakness

cannot affect the degree of care that is required in matters of safety. The standard of care imposed by the legislation is the same

regardless of the size of company.Mitigating factors        Prompt admission of responsibility and a timely plea of guilty        deficiencies remedied after they are drawn to the defendant’s

attention         A good safety record.Aggravating factors

Death as a consequence of a criminal act is regarded as an aggravating feature of the offence

       Failure to heed warningsWhere the defendant has deliberately profited financially

Interpol Environmental Crimes committee Advocacy Memorandum (3)

Economic Benefit Derived Environmental Harm Human Harm Economic Harm Public Harm Threat of Harm The characteristics of the Defendant The characteristics of the Organisation The conduct of the Defendant

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.

Judicial Studies

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

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:

 “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.”

 

Conclusions - Sanctions

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

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.

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?

Conclusions - Policy

The Current Programme for Government commits to enhanced Environmental enforcement by completing:

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.

initiate a study of all legislation relating to environmental fines.

Such a Governmental review may inject the impetus necessary for a National Enforcement policy.

Such a policy will , I contend, have to include many of the components that I have laid out before you to-day.