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Comparative Perspectives on the Enforcement of Environmental Law

Comparative Perspectives on the Enforcement of Environmental Law. Shanghai University of Finance and Economics Law School 29 October 2013 Professor Mark Poustie. Outline. Aims of enforcement Features of enforcement regimes Approaches to enforcement in practice

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Comparative Perspectives on the Enforcement of Environmental Law

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  1. Comparative Perspectives on the Enforcement of Environmental Law Shanghai University of Finance and Economics Law School 29 October 2013 Professor Mark Poustie

  2. Outline • Aims of enforcement • Features of enforcement regimes • Approaches to enforcement in practice • Trends in enforcement activity and penalties • Alternative or complementary approaches • Comparative perspectives

  3. Importance of environmental law

  4. Aims of enforcement • Securing compliance with applicable standards, requirements • Hence securing particular environmental objectives • Maintaining credibility of regulatory system

  5. Features of enforcement regimes- formal • Administrative • Notices, penalties • Civil • Judicial remedies (most used in US) • Criminal • Differing range of sentencing powers (eg Australia) • Specialist courts (eg Australia, China) • Explicitly tiered approach (eg US, UK, Australia)

  6. Enforcement Pyramid Formal – criminal penalties, permit revocations Formal – civil judicial remedies Formal– administrative/civil penalties Formal – administrative notices, formal inspections Informal – informal visits,warning letters etc

  7. Approaches to Enforcement in Practice • Compliance (co-operative/persuasive) • Deterrence (confrontational/sanctioning) • Responsive

  8. Factors influencing approaches toand effectiveness of enforcement • Quality and scope of laws • Views of regulatory crime • Capacity and independence of regulatory institutions • Relationships between regulators and regulated • Expertise and capacity of prosecutors • Knowledge and expertise of judges

  9. Trends in enforcement activity • What does data on enforcement activity tell us? • Do we need to supplement it with other data?

  10. Comparative Successful UK Prosecutions 1996/97 – 2001/02

  11. Comparative Successful UK Prosecutions 2006/07 – 2011/12

  12. Water Pollution Incidents - Scotland

  13. Prosecutions Per Water Pollution Incident – Scotland

  14. Chinese Enforcement Cases 1998-2006

  15. What does the data tell us? • More enforcement activity may indicate a tougher approach but it might also indicate regulatory failure • Need to link enforcement activity to environmental outcomes • Scottish data indicates numbers of prosecutions remaining similar against background of falling incidents – this suggests both that environmental outcomes are being secured and that a tougher approach is being taken

  16. Trends in size of penalties imposed • What does data on penalties tell us? • Do we need to supplement it with other data?

  17. Comparative UK Average Fines (Criminal) 1996/97 – 2001/02 (in CNY)

  18. Comparative UK Average Fines (Criminal) 2006/07-2011/12 (in CNY)

  19. Chinese Average Penalties (Civil)2001-2006 (in CNY)

  20. What does the data on penalties tell us? • Indicates increasingly higher penalties being imposed by the courts (criminal) and regulators (civil) • This could reflect • Higher maximum penalties available • Inflation • Greater judicial awareness of environmental issues • Greater regulator confidence in imposing higher penalties • Again need to link this to environmental outcomes data to establish if there is a deterrent effect • More contextual data needed

  21. Alternative or Complementary Approaches • NGO/private citizen enforcement • Participation measures • Private prosecution • Judicial review • Use of economic instruments

  22. Comparative perspectives - I • Shift from criminal to civil penalties underway in UK • Shift from civil to criminal penalties underway in China • Context vitally important • Mixed evidence of ‘success’ of specialist courts from Australia • Tiered and proportionate approach to enforcement seems more effective (US, UK, Australia)

  23. Comparative perspectives - II Key issues: • Clarity in legal framework • Relatively independent regulators • Reasonable level of enforcement activity in relation to pollution incidents – more research needed on this • Appropriate range of penalties which will punish and deter • More research into impact of enforcement activity and penalties on the regulated • Proportionate well-publicised penalties • Supplementary measures to ensure accountability • To what extent are comparisons valid?

  24. Any questions?

  25. Further Reading • Abbot, “The Regulatory Enforcement of Pollution Control Laws: The Australian Experience” (2005) 17 Journal of Environmental Law (JEL) 161 • Gunningham, “Enforcing Environmental Regulation” (2011) 23 JEL 169 • Mushal, “Reflections Upon American Environmental Enforcement Experience As It May Relate to Post-Hampton Developments in England & Wales” (2007) 19 JEL 201 • Poustie, ‘Environment’ (107-116) in Stair Memorial Encyclopaedia of the Laws of Scotland (Lexis Nexis, 2007) • Van Rooij & Lo, “Fragile Convergence – Understanding Variation in the Enforcement of China’s Industrial Pollution Law” (2010) 32 Law & Policy 14

  26. Professor Mark Poustiemark.poustie@strath.ac.uk

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