Where civil or criminal enforcement may lead to penalties, imposition of such penalties should be based on well-established criteria and guidelines (such as sentencing guidelines). These mechanisms bolster public confidence in enforcement procedures and preserve their integrity. Criteria and guidelines that determine penalties should reflect:
- 1. The relative severity of the harm;
- 2. History of non-compliance or environmental law violations; and
- 3. Remedial costs or illegal profits.
Each State has its own unique legal system, laws, and culture, but common to most democratic institutions are processes to balance the rights of individuals with the government’s need to act swiftly to protect the public’s interest in an overall safe and healthy environment. Some States have put in place sentencing guidelines to secure this “fairness and consistency” in enforcement process for violations of environmental laws and regulations. Canada, for instance, has developed creative sentencing provisions to introduce other remedies and sanctions (such as community service and required environmental audits).
Inadequate regulatory framework and low rates of statutory prescribed penalties can greatly interfere with effective enforcement. Moreover, statutorily prescribed penalties that were once adequate may have been rendered far less effective as a result of inflation or an increase in the value of any illegal markets. Ensuring consistent and adequate financial penalties for environmental violations (and making sure they are adjusted for such factors as fluctuations in currency) can greatly improve the strength of a State’s enforcement.
Guidelines and Manuals to Promote Fair and Effective Enforcement
Enforcement programmes involve a variety of underlying policies and approaches to address the numerous types of violations and contexts for violation. For example, in the Netherlands, all environmental inspectorates responsible for enforcing environmental regulations at the national, provisional, and local levels have committed to following “Minimum Criteria for a Professional Environmental Enforcement Process in the Netherlands.” Such policies are important to ensure fairness, a particularly important factor in assessing monetary penalties. The perception and fact of fairness can be critical to the credibility of an enforcement program. Written, publicly available policies can help enforcement staff to act with integrity and proportionality to make what are often difficult decisions to demonstrate government will and resolve to enforce environmental laws. Key issues to consider when drafting an enforcement policy are discussed below.
In addition to the case studies below, see the case studies on “Self-Monitoring Required by U.S. Environmental Laws” following Guideline 41(a)
(iii) (describing U.S. enforcement response policies) and on “Federal Sentencing Guidelines in the United States” and “Specialised Environmental Administrative Tribunals and Prosecutors in the United States” following Guideline 41(a)(v). In addition, the case study on “Setting Appropriate Administrative and Civil Monetary Penalties in the United States” following Guideline 40(c) is worth reviewing because having written penalty policies and an effective decisionmaking process to implement them is essential to achieving fairness and consistency in the enforcement process. Guideline 40(c) and the accompanying text also set forth a range of penalties that may be considered.