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Enforcement of  Research Review

Environmental Law Published in print: 02 Sep 2016

Elgar Research Reviews ISBN: 9781783479931

eISBN: 9781784718350
in Law DOI: https://doi.org/10.4337/9781784718350

Ludwig Krämer
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It is becoming ever more apparent that the
enforcement of environmental law is a key problem
facing environmental law and policy. While the
number of legal instruments at international,
European and national level continues to increase,
the actual enforcement of the relevant law remains
insufficient, seriously impairing the effectiveness of
environmental law. Based on the assumption that
nothing undermines the credibility of public
authorities more than law that is not applied, this
research review assembles the most important
articles on the enforcement of international, EU and
national environmental law that approach the issue
from multiple angles and endeavour to provide
solutions for improvement. It also provides acute
insight into existing concerns and intends to
stimulate discussion on possible ways to reform
and bolster environmental law enforcement.

Review Article  Research Review

 Published in print: 02 Sep 2016
Ludwig Krämer Category: Research Review
DOI: https://doi.org/10.4337/9781784718350
Collection: Law 2016

Subjects: Law - Academic, Environment, Environmental Law

Why Enforcement?
The collection of articles which are assembled in this book address the enforcement of environmental legal provisions, probably the most important problem which environmental lawyers are confront-
1
ed with. Indeed, environmental legislation, when it is adopted, is not more than a piece of paper, good enough to fill the statute books. It does not change the environmental reality, the pollution of
air, soil or water, the disappearance of species, the use of land or the contamination of oceans. The legislative rule only changes the reality when it is complied with by public authorities, companies, in-
dividuals and groups.

The raison d’être of a legal rule is that it is complied with. This is particularly true for environmental legal provisions which are set by public authorities – at local, regional, national or international level –
in order to preserve, protect or improve the environment. From the point of view of the environment, it matters that the provisions are respected, that is, complied with; when this is done voluntarily,
without any constraint needed to have the provisions applied, all the better.

Experience shows, though, that individuals or companies, natural or legal persons or public authorities do not always respect the rules of environmental law which apply in a given society. For this rea-
son, enforcement instruments are set up which have the objective to oblige persons, bodies or companies to respect the existing rules of law: enforcement may be thus be defined “as the act of com-
2
pelling compliance with a law”. Enforcement necessarily contains an element of constraint, of force (en“force”ment). Enforcement provisions constitute legal tools to ensure that the environmental
provisions are complied with and provide for sanctions in cases of non-compliance.

Compliance with environmental rules that were fixed by a given society – a local authority or a State, an international organisation or several States acting together – is in the general interest of that so-
ciety, as nothing discredits more the authority of the decision-maker than rules of law which are not applied. In the vast majority of cases the enforcement of environmental provisions is laid into the
hands of public authorities, which have different means of administrative or criminal law at their disposal to ensure enforcement. However, parts of environmental law also serve to protect the health,
3 individual citizens or environmental organisations to take action before the
the safety or other interests of individual persons. In these cases, general law also allows with greater or lesser generosity
courts, in order to enforce compliance with the environmental law.

Details of the power of public authorities, of citizens’ suits and of the right of environmental organisations to accede to the courts vary from one legal system to the other. These legal systems have
themselves evolved and grown over decades, if not centuries. The enforcement systems for environmental law therefore vary considerably, and there is not one model that could be declared the best.
For example, whether administrative or criminal law sanctions should prevail depends on the history of law in the legal system in question, but also on the credit which is given to the respect of the rule
of law, the organisation, structure, resources of the police and of public prosecutors, the court system, the degree of mental or economic corruption which exists, the transparency of public activities,
the severity and deterrent effect of the sanctions, the trust of the public in the whole system, and numerous other factors.

Wasserman quotes the consideration that in a given society 5 per cent of the population will never follow the law, 20 per cent will always follow it and 75 per cent will comply if the rule of law is per-
4
ceived to be fair, not arbitrary, and applicable to all and if the violators are sanctioned. If this concept is roughly correct, it means that a good government is able to have the vast majority of the popu-
lation – and this means citizens and environmental polluters – on its side in the attempt to ensure an adequate protection of the environment. Enforcement strategies are therefore vital for ensuring
that the environmental protection which the legislator had decided on is actually achieved.

Principles Underlying Environmental Enforcement

The different sections in which the articles of this book were grouped will be discussed in a moment. Before that, however, three general comments have to be made.

First, it should never be forgotten that the objective of enforcement action is compliance. The different enforcement tools serve to reach the protection objectives that were fixed in the environmental
standard. This appears to be a commonplace, but it is not: numerous instruments – criminal law sanctions, reporting obligations, possibilities to carry out inspections and others – exist on paper and
are being sold to the public as efficient means to protect the environment. The reality, though, is all too often that the environment continues to degrade (species disappear, ecosystems and habitats
are destroyed, air and waters are polluted and greenhouse gas emissions increase), one of the reasons being that the existing enforcement tools are either not effective or are not effectively used.

Second, the environment has no voice. It cannot protest against the lack of application, the disregard of existing legal provisions, the collusion between polluters and public authorities. Flatt and
5
Collins draws quite rightly the attention on the need for transparency, of the availability of data that inform public authorities and civil society of the evolution of the legal instruments that intend to
protect the environment. Openness and transparency is the best ally of the environment, but all too often data on the implementation and application of specific legislative acts are not published or
published with delay, allowing cases of non-compliance to remain without sanctions. In most countries, the principles of an open society – transparency of data, accountability of public authorities, pub-
lic discussions of the efficiency of this or that instrument and so on – are desperately lacking in the environmental sector. To a very large extent, the task of enforcing environmental provisions has been
laid into the hands of public authorities. As the environment is a general interest and not an interest of public authorities, this requires that the monitoring of environmental legislation is publicly ac-
counted for and that the enforcement does not remain at the discretion of the authorities.

Third, the discussion on enforcement of environmental law is poor, perhaps with the exception of the discussion in the United States. It is amazing how little discussion there is on the actual application
6
of environmental standards, in particular at the level of States. Lawyers appear to frequently satisfy themselves with the existence of a legal instrument or a provision and do not ask to what extent it
actually reached its objective. This indifference leads, in turn, to environmental lawmaking which is vague, because the standard-setting body does not really care about compliance. Examples are the
legal notions of “sustainable development”, “common, but differentiated responsibility”, or “the polluter shall pay”. No serious attempt is made to enforce these or other, similar notions.

Fourth, this state of law is influenced by the extraordinary importance which international and – for the European countries – EU environmental legal provisions play in the development of environmen-
tal law generally. As international and EU legal acts are the result of compromise decisions and almost all adopted unanimously, the terms which are used are often general, the rights and obligations
vague and the objectives not very precise. This has as a consequence that enforcement authorities do not even try to enforce compliance with such terms; and when non-governmental organisations
(NGOs) try to make such terms effective, they all too often meet the reluctance of courts to give a meaningful interpretation of the general terms.

General Aspects of Enforcement

Legal literature on the enforcement of environmental law is scarce. One of the main reasons is that, generally, the enforcement of environmental law is placed under the responsibility of public authori-
ties – and police officers, prosecutors, inspectors and even judges do not frequently publish legal articles. Moreover, only few States have set up a specific enforcement body (agency); normally the en-
forcement is decentralised: local authorities, provinces, regions or other sub-national entities are charged with ensuring compliance with existing environmental standards. While everybody agrees that
compliance with existing legal rules is desirable and even necessary, the development of an enforcement philosophy and strategy normally occurs in States which employ an enforcement body
7 while Macrory’s paper8 reflects on the tools for en-
(agency), such as the United States (Environmental Protection Agency, EPA) or the United Kingdom. The US strategy is described by Wasserman,
9 10 examines
suring effective regulatory enforcement in a country which largely relies on criminal law sanctions. Lübbe-Wolff compares different approaches to pollution control in Europe, Mulkey
11
the role of judges and McAllister et al., address enforcement problems in industrialising countries; these different papers illustrate well the numerous facets of enforcement approaches. It should
be borne in mind, though, that pollution control is one aspect of environmental protection only. Broader enforcement problems such as the fight against air pollution in urban agglomerations which is
caused by multiple sources, the halting of the slow degradation of biodiversity or the prevention of soil erosion are not addressed in enforcement strategies or general approaches.

Enforcement and Public Authorities

Few authors address the fact that normally numerous public authorities, at local, provincial, regional or national level, have the task of ensuring compliance with environmental law. The problem is of
particular actuality in federal or regionalised States: how can the Central State ensure that its legislation is more or less evenly enforced and complied with in the different regions? The contributions of
12 and the US-EPA13 address this question for the United States; Mazur14 looks at it from the point of view of different European countries. However, there is little discussion of the possi-
Konisky
15 Data on such situations are rarely made public, though the
bility for the Central State to compel a region, a province or a municipality which does not properly enforce environmental provisions.
phenomenon of different enforcement intensity in regional States at least in Europe is well known; in Europe, Spain and Italy, Belgium, Austria and Germany have regionalised structures in environmen-
tal lawmaking and law enforcement, and also other countries – such as the United Kingdom, France, Netherlands, Denmark – have given large responsibilities for monitoring compliance to municipali-
ties, provinces or regions. Mazur in particular underlines the fact that the sub-national entities often consider any attempt from the Central State to obtain information on compliance – through reports,
inspections or other means – as an interference into their internal affairs, which makes the development of solid structures a difficult task. The EPA report illuminates the political difficulties linked to
enforcement actions against sub-national entities. Certainly in Europe, enforcement action of a Central State against a municipality, a province or a region is extremely rare.

16
De Graaf and Jans discuss the possibility of taking legal action against public authorities which do not comply with their obligation to enforce environmental standards. Legislation in most countries
excludes the possibility of holding (criminally) responsible an individual official, who does not enforce environmental standards, for example, by not measuring water quality, not inspecting industrial
plants or tolerating the existence of a non-authorised landfill. Also, the liability of the public authority is only exceptionally established, as de Graaf and Jans conclude. Question of proof, of causation,
the reluctance of courts to condemn an authority and other legal or social obstacles contribute to this tool being only seldomly used with success.

Hüper, a public prosecutor, discusses the practice of interdependency between criminal and administrative law enforcement.
17 His observation that normally the administrative sanction prevails over
a criminal sanction, might be generalised for continental Europe countries. This is due to the greater flexibility of administrative law, difficulties of proving (serious) negligence or even intention, the
greater formalities of criminal procedures and the lesser publicity given to administrative sanctions – which is of interest to professional polluters. Criminal law as an enforcement tool in environmental
law seems to be reserved for very serious cases of pollution and serious negligence or intention from the side of the polluter. Hüper’s findings are supported by Watson’s conclusions of a comparative
study.
18

Enforcement of International Agreements

Environmental law mainly developed during the last 50 years. It owes a lot to the adoption of international environmental agreements which were developed during the same period; at present, there
exist some 1500 bilateral and 700 multilateral environmental agreements.
19 The problem of their enforcement remains of actuality. Brunnée’s categoric statement that “the common assumptions
20
that international law is not enforceable or that international environment (law) lacks enforcement mechanisms are actually wrong” appears optimistic and is hardly supported by her arguments.
Nuclear energy conventions, which are neither enforced nor enforceable, are only the tip of the iceberg; the Basel Convention on the shipment of hazardous waste did not stop the export of such waste
from developed to developing countries; nor did the Biodiversity Convention stop the loss of biodiversity, or the Climate Convention, together with the Kyoto Protocol, prevent the increase of green-
house gas emissions. Information gathering and reporting mechanisms, voluntary compliance means, meetings of the parties to an agreement, capacity-building, co-operation and financial and techni-
cal assistance, quoted by her as enforcement tools have, overall, a rather limited effect and sanctions in environmental agreements are rare and almost never used.

In 1996, Rüdiger Wolfrum, who later became President of the International Tribunal for the Law of the Sea, wrote: “International environmental law cannot effectively protect biodiversity as long as the
respective resources are under the jurisdiction of States which neither can be forced to accept international standards nor to implement them. Therefore the only alternative is rather than attempting
21
to enforce such standards to induce States to accept and to comply with them”. This statement might well apply to most international environmental agreements.

The other contributions on international environmental agreements look at more specific aspects. Bothe
22 evaluates the different enforcement mechanisms and Lang,23 Kirchgässner and
Mohr
24 and González-Calatayud and Marceau
25 discuss from different perspectives trade restrictions as a tool for enforcing compliance. Sand
26 gives, for the CITES Convention,27 concrete de-
scription of the trade restriction tool during the 40 years of existence of that Convention, while Ebbesson
28 examines the contribution of the European Union to the enforcement of the Baltic Sea
Convention. Koester’s
29 contribution deals with the innovative Compliance Committee under the (regional) Aarhus Convention30 which widely accepts individual complaints against breaches of the
Convention, discusses them publicly and delivers quasi-judicial assessments which find particular attention in the concerned States and beyond.

Enforcing EU Environmental Law

EU law is also international law, as it was adopted not by States for their internal jurisdiction, but by an international organisation, the European Union. As, however, the European Union is a suprana-
tional organisation, the enforcement of EU environmental law has a number of specific features which contrast markedly with classic international law. First, EU environmental legislation, even when it
is adopted by majority voting, is binding on all 28 EU Member States. Second, the European Commission, one of the EU institutions, is explicitly mandated to ensure the application of EU law by the
31
Member States. Third, cases of non-compliance can be brought before the EU Court of Justice which delivered about 700 judgments where it found individual EU Member States not being in com-
pliance with EU law. Fourth, when a Member State does not comply with such a judgment, the Court may pronounce a financial penalty. And fifth, the Court may also be asked by the court of a Member
State whether national law complies with the requirements of EU environmental law.

Overall, this mechanism ensures that EU environmental legislation, which covers practically all areas of environmental law, is properly transposed into the national legal order of each of the 28 EU
Member States. Effective application is, though, much more problematic. The Commission does not have inspectors or other means to find out about breaches of environmental law. It does not accept
media information and only reluctantly follows up environmental complaints from civil society. Its main source of information are thus implementation reports from Member States which are necessar-
ily general and omit the discussion of details. Experience from EU law and from international agreements show, though, that Member States try to present themselves in a favourable way, are not really
self-critical and have a tendency not to report on practical cases of non-compliance.

32 33 34
Lenaerts, a judge at the EU Court of Justice, Collins, a former prominent member of the European Parliament,
and Cashman, an official of the European Commission, present the EU en-
35 36
forcement system from different points of view. Jack and Hedemann-Robinson look at specific aspects of the enforcement mechanism, while Kingston critically examines the system from the
37
point of view of an environmental law researcher.

Enforcement by Civil Society

The enforcement of national, EU and international law is mainly placed into the hands of public authorities, and the question, “who protects the environment against administrative inertia, passivity,
omissions to act due to political or economic pressure (including corruption)?” remains relevant for all levels of environmental standard-setting. At international level, individual persons and environ-
mental organisations only have very limited possibilities to contribute to the enforcement of environmental standards. They mainly have to try to influence public opinion and, via that channel, the act-
ing States, though this path is limited to very spectacular cases of non-compliance. The notable exception is the above-mentioned compliance mechanism of the Aarhus Convention, where individuals
and NGOs can trigger an examination by the Compliance Committee.

Until now, all attempts failed to adopt a global or even another regional multilateral Aarhus-type agreement. At the level of the European Union, the restrictive jurisprudence of the EU Court of justice
bars, in practice, access to justice for environmental organisations and very largely also for individuals; and the Commission deploys a lot of effort to discourage environmental complaints.

Darpö
38 resumes the numerous legal and practical obstacles which exist in 17 EU Member States for access to justice in environmental matters, illustrating the practical obstacles to the fullimple-
mentation of an apparently quite progressive provision of the Aarhus Convention.
39

Krämer
40 describes the day-to-day practice at EU level. Jans and Marseille41 report on the relatively successful strategy of Dutch environmental NGOs to use courts for enforcing the application of
environmental protection provisions. Finally, Cassel
42 and Schall43 point at the use of human rights for ensuring environmental protection, a tendency which has a considerable potential, especially
in Europe.

Enforcement in Specific Countries

Environmental legislation has to be complied with at local, regional or national level and despite the existence of international and EU environmental standards, the enforcement is mainly the task of
national public authorities and civil society representatives. The European Union offers a particularly good demonstration for this statement: there are numerous legislative acts on the protection of the
environment which are equally binding in all 28 Member States. Yet, legal cultures, the practice of compliance monitoring and enforcement of these more or less uniform provisions differ widely –
which explains the considerable discrepancy of the degree of environmental protection between the different States.

44
The limited space available only allowed the selection of some contributions on enforcement experience in different States. Mintz reports on lessons learnt from enforcement in the United States,
45 46
Behre on Mexico. The pressing environmental problems in China led to the inclusion of two contributions on enforcement problems in China. Finally, Cashman describes 20 years of the EU
47 48
Commission enforcement action in Ireland, while Faure and Svatikova illustrate what a region can do to enforce regional, national and EU environmental legislation, when it has the will to do
so.

Specific Enforcement Instruments

Only some of the tools which are used for ensuring compliance could be presented. Reporting obligations,
49 inspection and external monitoring,50 the use of empirical data51 and the use of
criminal law
52 are some of the instruments which authorities use or may use. Others, such as satellite observatory technologies53 or, more generally, remote sensing, could not be included for lack
of space. Peeters,
54 finally, describes the enforcement mechanisms used under the EU system of greenhouse gas emissions trading. It must be noted, though, that in practice, in this very important
area, where the impact is global, the EU Commission does not enforce compliance with existing EU climate change legislation, but prefers diplomatic steps, persuasion and other soft means – unfortu-
nately, always acting in a non-transparent way.

What Lessons Can be Learnt?

A look at the enforcement efforts in the environmental field during the last 50 years allows a number of conclusions. The lessons which can be learnt could possibly be applied everywhere, at local, re-
gional, national, EU or international level.

The Political Will Is Decisive

It is a question of the political will of the enforcement body – an administration in a municipality, an agency, a national administration, the EU Commission, compliance or enforcement bodies set up by
international agreements – whether compliance shall be achieved by 50, 70, 80 or more per cent. As we are dealing with the protection of the environment, this issue raises the problem of the political
will to protect the environment. Some municipalities introduced, for litter or for graffiti, a policy of “zero tolerance”. Of course, this did not make litter or graffiti disappear altogether; however, it demon-
strates the positive determination of the authorities to see the rule of law respected, and had, undeniably, effects. In the same way, it is a question for each enforcement authority what kind of policy it
will apply in order to ensure compliance with the rule of environmental law. And it should not be forgotten that the omission of the enforcement body to ensure compliance is also a sort of “policy”: the
failure to enforce existing legal rules is much more frequent than the existence of a defective enforcement policy.

Whether a State, a region or a municipality sets up an enforcement body or whether enforcement is ensured by the public authorities in the context of their general activities will have to decided by the
politically responsible persons and bodies. Generally, it appears that a separate body – such as the US or the UK Environment Agency, or an Ombudsman office – is preferable, as it appears to be ex-
posed to a bit less pressure from political and vested interests than when the enforcement activity is exercised as part of the general administrative tasks.
55
Of course, complete independence does
not exist, and even when a separate body is set up, the influence comes via appointments and dismissal of the leading officers, the attribution of financial means, political party influence and other
means. However, the mission of an autonomous body is normally clearer, more transparent and more accountable.

Any specific enforcement body (agency) which is set up has difficulties in enforcing environmental provisions all over a country. It needs decentralised assistance, in whatever form this is ensured. The
US EPA has therefore regional offices which look at local and regional compliance issues and allow the EPA to learn about the need for enforcement action. The Commission of the European Union –
where some 500 million people live – does not dispose of decentralised assistance, and has thus to rely on what it learns accidentally or from official reports by the EU Member States. When a country
such as China intends to install an efficient compliance and enforcement mechanism, it will have to ensure that there is a connection between the central and the regional level, so that there is a flow of
objective and reliable information on compliance and enforcement.

An alternative would be to leave the enforcement of the central (and regional) environmental standards entirely to regional or local authorities. However, this creates the difficulty for the Central State
to be sure that its environmental standards are indeed enforced. An example might illustrate that difficulty: in 2005, a Spanish developer obtained the authorisation to build, in an area of 134 hectares,
250 bungalows, 310 buildings, two hotels, a golf course, a marina and several other sport and leisure installations. The authorisation was granted in the form of a regulation by a Spanish regional gov-
ernment. The affected ground, however, was protected by legislation adopted by the Spanish Central Government, which had based itself on EU legislation. A regional Spanish court annulled the autho-
risation and, on appeal, the Spanish Supreme Court confirmed in 2014 that the authorisation was void, as it infringed Spanish national legislation.
56
However, in the meantime, all the installations
and buildings had been constructed. It is more than unlikely that, following this judgment, the constructions will be demolished again, as too many economic values would be destroyed (and too many
vested interests of owners etc. impaired), quite apart from the impossibility to restore the environment to its earlier state.

In this case, only injunctive measures taken in 2005 would have constituted a remedy. As Spain does not have an enforcement agency or body, this would have meant the Central Government having to
take action against the regional government; politically, this is practically excluded. For the same reason, taking criminal action now – nine years after the criminal act in question – against the regional
prime minister or responsible regional Secretary of State is politically not realistic.

Environmental Standards and Enforcement

Effective enforcement also depends on the quality of the environmental standards. Loose standards are more difficult to enforce than precise rules. Where, for example, the legislation provides that the
polluter shall pay, without going into further detail, the enforcement authority is regularly overburdened to fill this gap. Neither is it clear what “pollution” is, nor who the polluter is or what he shall pay
for and so on. The courts cannot normally come in and give an authoritative interpretation, as often their decisions do not have that authority; furthermore, out of the hundreds of cases with which an
enforcement authority has to deal with day by day, only a small fraction ends in court. And the next case might be slightly different, so that the application of an earlier court judgment is doubtful.

The standard-setting bodies – regularly parliaments at local, regional or national level – bear thus some responsibility for enforceable environmental standards. However, their obligation does not end
there: it is submitted that parliaments have the political responsibility to check whether the laws which they adopt are really effective. This implies that they look at the practical application of the envi-
ronmental standards, check compliance and examine enforcement. In many areas, they might receive information in this regard from vested interest groups – farmers, fishermen, professional associa-
tions, trade unions. This does not work, though, in the environmental sector, as the environment is an interest without a social group behind it. The chronically understaffed and under-resourced envi-
ronmental organisations cannot be considered as being such a group, as they are too diverse, overall too unprofessional, and insufficiently linked to each other; rightly, they are called groups which
represent a “diffuse” interest, even though this interest is general.

The environment faces the problem that while there are numerous standards at international, European, national, regional and local level, these standards are to a large extent not complied with. Politi-
cally, then, either the standard may be changed, or the standard is enforced. The present situation, where all too often neither of these options is taken, is difficult to accept in a society which claims to
be governed by the rule of law. It discredits the standard-setting body and the executive authorities, and decreases the general citizens’ confidence in the rule of law.
57

To give aconcreteexample, according to official figures, air pollution in the European Union causes some 400 000 premature deaths and economic damage of between 330 and 940 billion euros (some
58
400 to 1050 billion dollars) per year. Existing binding pollution levels
59
are exceeded in the majority of the EU Member States.
60
Yet, there is no concerted action by the European Commission –
the EU enforcement body – to enforce compliance with the existing standards. And the Commission’s proposal to review the EU standards for air pollution aims at halving the number of premature
deaths per year by 2030, with only half-hearted measures to stop air pollution from traffic – the main source of air pollution.
61 This can only mean that citizens, including polluters, municipalities and
other public authorities, do not take the existing air pollution standards seriously.
At European level, the European Commission claims a monopoly on monitoring and ensuring the application of EU (environmental) law, and the European Parliament more or less accepts this. Accord-
ing to the understanding of a parliament as being the elected representative of people, the European Parliament has an obligation of its own to see whether its environmental legislation is effective or
not, and eventually undertake steps to improve effectiveness.
62 And the same obligation lies on any other standard-setting body in the environmental field, including bodies set up by international
environmental agreements. It is high time that standard-setting bodies look more systematically into the effects of their standards and check whether they constitute lip service to environmental pro-
tection or whether they really change the environmental reality.

The enforcement of international environmental agreements and also of EU environmental legislation suffers from the fact that the main information on the application of the standards comes from
the Contracting Parties or the Member States themselves.
63 From the point of view of the environment, this is not the most objective information. At both levels, information from other sources
should systematically be gathered.

Transparency and Accountability

It was mentioned above that the environment is an interest without a social group behind it. Thus, where in other sectors of law, such social groups undertake to collect data which serve as the basis of
policy discussions on the effectiveness of existing legislation and the need for review, such a mechanism does not exist in the environmental law sector. Here, it is the public authorities which collect
data, such as on the quality of drinking water, air pollution in urban agglomerations or noise levels. In many countries, such data are not made public, so that the individual citizen is not able to find out
about his or her environment and undertake steps to protect or improve it.

When environmental data are published, they are often so general that they are of very limited use for citizens. It is not helpful to learn that this or that plant emitted, some three years ago, this or that
amount of pollutants
64 or that, on average, the legal standards for air quality in a country were exceeded on 35 days in a given year. And when legal standards are exceeded, it would be necessary to
learn what steps the responsible enforcement bodies undertook to repair that deficiency, so that the public obtains an impression of the effectiveness of the enforcing body.

The practice of the enforcement bodies in numerous regions and States is far from such a situation. Enforcement authorities either do not systematically collect data on compliance or keep such data
confidential or publish them in a form which does not show with clarity what the cases of non-compliance are, who is responsible for this situation and what is done to ensure the respect of environ-
mental standards. Everywhere, the accountability of enforcement authorities is capable of considerable improvement.

This also applies to international environmental agreements. Reports which Contracting Parties submit are full of diplomatic language, carefully omitting or downplaying omissions, cases of non-compli-
ance or breaches of the international commitments. A good illustration is the reports made under the Convention on Biological Diversity. The resolutions which the Conference of the Parties might
adopt at the end remain, normally, general, use diplomatic language and omit to denounce even clear cases of non-compliance. In this way, no “name and shame” practice is exercised, though this is
one of the few enforcement means which international environmental law has at its disposal.

Civil Society
Allowing individual citizens and environmental organisations to take judicial action in favour of the impaired environment may be a very efficient instrument to enforce compliance. Environmental or-
ganisations normally pursue a general interest and might bring cases before the courts where environmental interests are confronted with specific, vested interests. This is particularly important where
the public authorities, for reasons of policy, economic or social, or even for reasons of corruption, do not take action. Courts as arbiters have the task to balance diverging interests which are fixed in
65 66
law and might take the environmental commitments in environmental standards more seriously than public authorities sometimes might do. The contributions of Schall and Jans demonstrate
how relevant NGO court actions may be. At European level, the European Court of Justice confirmed at the request of an individual citizen that EU air pollution provisions had the objective to protect
human health; thus, an individual was entitled to address the courts in order to see the air pollution provisions complied with.
67 This judgment opens opportunities for actions in the case of air or
water pollution in all 28 EU Member States.

Leaving the enforcement of environmental standards to court actions by NGOs and individuals alone is not a realistic solution. First, as mentioned above, environmental NGOs are too short in staff and
financial resources to assume such a task. Second, there are numerous procedural, financial and technical barriers to access to justice in environmental matters in practically all countries,
68 including
at EU and international level. Third, environmental organisations all too often – and individual citizens always – lack the general overview where a court action is strategically opportune, necessary or ur-
gent. As long as data on emissions into the environment, compliance with standards, and other impairments of the environment are only very selectively published by enforcement authorities, already
the superior knowledge of public authorities and the numerous enforcement tools at their disposal makes their enforcement action much more systematic and efficient than actions by NGOs or
individuals.

However, access to courts by civil society representatives in environmental matters remains an important tool to get an objective interpretation of vague or equivocal environmental standards. Also,
such actions might contribute to protecting the environment against a negligent or passive administration, creating public awareness on misuses, and bringing new arguments into the discussion on
the protection of the environment. Due to the structures of environmental organisations and the existing barriers for access to justice, there is no risk of courts being inundated with less or more friv-
olous cases. Perhaps the best example in this regard is Portugal, which introduced in its national legislation an actio popularis.
69 In fact, that action continues to exist in Portugal.70

Criminal Law

Whether administrative or criminal law is primarily used in order to enforce compliance with environmental standards is a choice of each State or sub-national entity and will also depend on the legal
culture, the history, the importance which is attached to the protection of the environment and other factors; criminal law enforcement measures at European or at international level are excluded any-
way, as no substantive criminal rules have been established up to now at that level. Experience in enforcement procedures appears to show that criminal law sanctions are indispensable for serious
cases of environmental impairment, but that, normally, administrative sanctions are more flexible and less formalistic, adaptable to cover specific situations, quicker to apply and better to monitor.
Criminal law is not able to deal with cases such as air or water pollution, where several legally allowed emissions contribute to an environmental problem; similar examples would concern the loss of
biodiversity due to the legal use of pesticides by numerous farmers, or the greenhouse gas emissions from publicly authorised plants or vehicles.

The disadvantage of administrative procedures is that they are not necessarily public (and therefore are open to pressure from political or vested interests), that the enforcement officer has the almost
exclusive power over the facts of the case, that he or she is under little control from outside the administration – parliament, media, public opinion – and that repeated pollution or other environmental
impairment are not necessarily made public. Enforcement authorities might also be inclined to be indulgent with polluters, because they are considering economic and employment aspects. Finally, it is
the task of (criminal) prosecutors to identify crimes, whereas public authorities which have enforcement only as one of their tasks, might not necessarily have the same prosecuting zeal.

Trends in environmental enforcement go towards administrative law measures, with criminal sanctions remaining the fall-back for serious or very serious environmental impairment.

Is Strict Enforcement Counter-Productive?

The argument is frequently heard that strict environmental enforcement will lead to environmental legislation that is limited to general, almost unenforceable obligations, or will prevent the adoption of
environmental protection legislation altogether. Such arguments are often voiced in international environmental law discussions, where it is argued that the existing agreements are much better than
nothing as they also bring on board countries which otherwise would not be ready to make any commitment for improving the protection of the environment. However, the argument is also raised in
the context of European environmental law.

To begin with, it gives a wrong picture when the problem of enforcement of environmental standards is considered under international or EU law auspices. Generally, international or EU environmental
standards address States
71and require a transposition into the national legal order, in order then to be applied and enforced. States have the responsibility of adequately protecting the environ-
ment. Where they do not assume this obligation, international or EU environmental law will hardly be able to re-orient that policy.

Thus, it is up to each State to decide whether the environmental standards which are fixed are properly applied, complied with and enforced. Furthermore, general environmental standards can more
easily be adopted and find consensus in a society: everybody agrees that economic development should be sustainable, drinking water should be wholesome, the air should be clean, cars should not
pollute the environment and waste should properly be disposed of. The devil, though, is in the detail: as long as it has not been determined what wholesome drinking water means in precise terms –
how many nitrates may a litre of drinking water contain, how much lead, how many pesticides? – everybody will understand something different under the term of wholesome. Similar examples can be
made for all other environmental problems.

Detailed environmental provisions are much more difficult to be agreed on. Whether a car should be allowed to emit 95 or 130 grams of carbon dioxide, a greenhouse gas, per kilometer or whether
there should be no limitation of emissions at all, will raise controversies between car industry representatives, persons who are concerned about climate change and trade unions which fear loss of
jobs. Where no limitation is fixed, there is not an enforcement problem; and a general rule that car emissions should not be excessive or should respect environmental concerns is of no help: the mar-
ket – competition among car producers – is not able to bring about a lowering of the emissions.

From the point of view of the environment, detailed, precise standards are thus largely preferable. Their adoption needs to be preceded by the greatest transparency possible: when – to stick to the
previous example – emission standards are negotiated between the standard-setting body and the car industry, the environment is inevitably the loser. When such a discussion is public, the pro-envi-
ronment arguments may be brought into the discussion and give at least the chance that environmental interests also influence the final result. This final result is, as was mentioned before, an emi-
nently political, not a legal decision.

It is thus rather a sign of mental confusion when the enforcement of the rules of environmental law is objected to with the argument that the fixing of precise and detailed standards would be impossi-
ble or would meet too much resistance. The credibility of a government – a standard-setting body – can never be increased by legal rules which are not enforced.
As regards environmental standards which are set in multilateral international agreements, Wolfrum’s remark on the Biodiversity Convention, quoted above, is of more general application. Present in-
ternational law is not able to force, for example, countries such as the United States or Russia to limit their greenhouse gas emissions according to internationally agreed quantities. The long and pa-
tient diplomatic efforts in the Conferences of the Parties of international environmental agreements might therefore be the only way forward. The environmental benefits of the numerous meetings,
conferences, reports and studies appear limited, and if the environment itself were asked what it thinks of the results in the fight against climate change, loss of biodiversity, ocean pollution, desertifica-
tion and soil erosion, the answer would most probably be that there is not enough protection and that there is too little and too slow progress. It goes beyond the objective of this contribution to dis-
cuss in detail the global efforts of protecting the environment and consider other options.

Ten Theses in the Guise of a Conclusion

Enforcement of environmental standards is necessary, as humans are not willing to voluntarily ensure compliance with the environmental standards which a given society has adopted for itself.

The most important element in an enforcement policy is the will of the politically responsible persons or body to ensure compliance with environmental standards.

Paying lip service to the protection of the environment by either adopting general standards which are not meaningful or not enforcing environmental standards which were democratically agreed,
is not only detrimental for the environment, but also has repercussions on the general respect by citizens vis-à-vis the rule of law.

Nothing discredits a government more than legal rules which are not applied.

It depends on the legal culture, the history, and numerous other factors of a given State, whether the compliance with environmental standards is ensured mainly with administrative or mainly with
criminal law sanctions. Both tools are necessary.

If the enforcement of environmental standards is taken seriously, there must be transparency, openness and accountability with regard to the whole compliance and enforcement process. Public
authorities might not always be the best guardian of the environment.

An effective system for the enforcement of environmental standards needs to include the possibility of individuals and environmental organisations having access to the courts under a system
which is fair, equitable, timely and not prohibitively expensive. Civil society must be able to take court action in cases where the public authorities which are charged with enforcement do not act for
reasons of inertia, negligence, political pressure, corruption, vested interests’ pressure or other reasons.

The enforcement of environmental standards is not a task of the executive alone. The standard-setting bodies – parliament, elected local councils and others – have the democratic obligation to
ensure that the legislation and standards which they adopted are effectively applied, infringements of the legal provisions are sanctioned, and the standards are reviewed when it turns out that they
do not protect the environment.

Countries with strict environmental standards and which enforce these standards do not fare worse economically than countries with no or few such standards or where standards are not
72
enforced. It is a myth to believe that it is possible, in the 21st century, to ignore the protection of the environment.

Implementation research – compliance with agreed standards and their enforcement – is an underdeveloped legal research topic in almost all industrialised and industrialising countries.
Environmental lawyers who do not consider the impact of agreed standards, but satisfy themselves with interpreting them, miss their role.

Notes

1.

For practical reasons, the collection is limited to articles that were published in the English language. There are, of
course, numerous publications on the topic that were published in other languages, but could not be included
here. The observations and criticisms found in the present contribution, though, are meant to cover the legal
problems of environmental standards’ enforcement independently of a specific country or language.

2.

Brunnée, Chapter 11, p.221, quoting Black’s Law Dictionary.

3.

See Part V of the articles collected.

4.

Wasserman, Chapter 1, p.5.

5.

Flatt and Collins, Chapter 36.

6.

There appears to be more discussion on the enforcement of international or EU environmental law that on na-
tional environmental law – again leaving aside the discussions in the United States.

7.

Wasserman, Chapter 1.

8.

Macrory, Chapter 3.

9.

Lübbe-Wolff, Chapter 2.
10.

Mulkey, Chapter 4.

11.

McAllister et al., Chapter 5.

12.

Konisky, Chapter 6.

13.

EPA (USA), Chapter 9.

14.

Mazur, Chapter 10.

15.

The best-known cases in Europe concern the Italian region of Campania, where the EU Court of Justice found in
two judgments that the region had not complied with existing Italian and EU waste law, see Court of Justice, cases
C-33/90, Commission v. Italy, ECR 1991, p.5897; C-297/08, Commission v. Italy, ECR 2010, p.I-1749; and the French
region of Bretagne, where the Court held in several judgments that the waters in that region did not comply with
French and EU provisions on the nitrate content of waters, Court of Justice, cases C-266/99, Commission v. France,
ECR 2001, p.I-1981; C-258/00, Commission v. France, ECR 2002, p.I-5959; C-505/03, Commission v. France, judg-
ment of 28 October 2004, not published; C-193/12, Commission v. France, judgment of 13 June 2013. In all these
cases, the European Commission brought the case; one might well ask, why neither the Italian nor the French
Governments enforced the national law against the respective region.

The jurisprudence of the EU Court of Justice offers numerous other examples where the European Commission
took judicial action, because a region or a municipality was in breach of existing national and EU environmental
law, without the responsible Member State having taken enforcement actions.

16.

De Graaf and Jans, Chapter 8.

17.

Hüper, Chapter 7.

18.

Watson, Chapter 40.

19.

R. Mitchell, Compliance theory, in: D. Bodansky, J. Brunnée and E. Hey (eds): Oxford Handbook of International
Environmental Law, Oxford 2007, p.894.

20.

Brunnée, Chapter 11, p.230.

21.

R.Wolfrum, The Convention on biological diversity: using State jurisdiction as a means of ensuring compliance, in:
R.Wolfrum (ed.): Enforcing environmental standards: economic instruments as viable means? Berlin 1996, p.192.
22.

Bothe, Chapter 12.

23.

Lang, Chapter 13.

24.

Kirchgässner and Mohr, Chapter 15.

25.

González-Calatayud and Marceau, Chapter 14.

26.

Sand, Chapter 18.

27.

Convention on International Trade in Endangered Species of Wild Fauna and Flora, Washington 1972.

28.

Ebbesson, Chapter 17.

29.

Koester, Chapter 16.

30.

Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environ-
mental Matters, Aarhus 1998.

31.

See Article 17 of the Treaty on European Union: “The Commission … shall ensure the application of the Treaties,
and of measures adopted by the institutions pursuant to them. It shall oversee the application of Union law un-
der the control of the Court of Justice of the European Union”.

32.

Lenaerts and Gutiérrez-Fons, Chapter 19.

33.

Collins and Earnshaw, Chapter 20.

34.

Cashman, Chapter 21

35.

Jack, Chapter 22.

36.

Hedemann-Robinson, Chapter 23.

37.
Kingston, Chapter 24.

38.

Darpö, Chapter 25.

39.

See Aarhus Convention, Article 9(3) and (4): “each Party shall ensure that, where they meet the criteria, if any, laid
down in its national law, members of the public have access to administrative or judicial procedures to challenge
acts or omissions by private persons and public authorities which contravene provisions of its national law relat-
ing to the environment … the procedures … shall provide adequate and effective remedies including injunctive re-
lief as appropriate, and be fair, equitable, timely and not prohibitively expensive.”

40.

Krämer, Chapter 28.

41.

Jans and Marseille, Chapter 26.

42.

Cassel, Chapter 27.

43.

Schall, Chapter 29

44.

Mintz, Chapter 30.

45.

Behre, Chapter 31.

46.

Lo et al., Chapter 32; van Rooij and Lo, Chapter 33.

47.

Cashman, Chapter 34.

48.

Faure and Svatikova, Chapter 35.

49.

Flatt and Collins, Chapter 36.

50.

Bothe, Chapter 37.

51.

Gray and Shimshack, Chapter 38.

52.
Watson, Chapter 40.

53.

See R. Purdy, Using earth observatory technologies for better regulatory compliance and enforcement. Journal of
Environmental Law 2010, p.59.

54.

Peeters, Chapter 39.

55.

At EU level, structural and procedural measures were taken to ensure the autonomy of the enforcement adminis-
tration in competition law matters. Such measures could also be taken with regard to environmental law, if the
political will existed, though the “targets” of such enforcement activities are the EU Member States, not private
companies.

56.

Tribunal Supremo de Espana, case 2940/2011, Diputación de Cáceres et al., judgment of 21 January 2014.

57.

An illustration of this might be that there is a proverb in one of the EU Member States which states that “once leg-
islation is made, there is a way to bypass it”. The fact that such a statement reached the status of a proverb,
demonstrates the limited confidence of citizens in the rule of law in that country.

58.

Commission, COM (2013) 918, p.5.

59.

These levels are fixed in Directive 2008/50 EU Official Journal 2008, L 152 p.1. The levels are binding for all 28
Member States.

60.

See, in particular, European Environment Agency: Air quality in Europe., 2013 Report, EEA Report 9/2013, Luxem-
bourg 2013.

61.

Commission, COM (2013) 918, p.6.

62.

This observation does not overlook the fact that the European Commission has the exclusive right to take legisla-
tive initiatives in the field of the environment. See Article 192 of the Treaty on the Functioning of the Union (TFEU).

63.

The European Commission often contracts out studies on the transposition – not the practical application,
though! – of EU environmental law into the law of the Member States. However, it keeps these studies confiden-
tial; see General Court of the European Union, case T-111/11, ClientEarth v. Commission, judgment of 13 Sep-
tember 2013 (on appeal).

64.
The data of the European pollution register, set up under Regulation (EC) No 166/2006, OJ 2006, L 33 p.1, concern-
ing releases between 2007 and 2009, were published in 2013.

65.

Schall, Chapter 29

66.

Jans and Marseille, Chapter 26.

67.

EU Court of Justice, case C-237/07 Janecek, ECR 2008, p.I-6221.

68.

See Darpö, Chapter 25.

69.

Portuguese Constitution of 1976, Article 52(3).

70.

See N. de Sadeleer, G. Roller and M. Dross (eds): Access to justice in environmental matters and the role of NGOs.
Empirical findings and legal appraisal. Groningen 2005.

71.

Questions of self-executing provisions or provisions with direct effect are left aside here, as they constitute the
(rare) exception, not the rule.

72.

This wisdom is more than 2000 years of age, see Horatius Flaccus (65 to 8 BC): “Naturam expellas per furcam,
tamen usque recurrit”.

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