Workshop Session 2: INECE Compliance and Enforcement
Indicators and Other Current Topics
2A1 - ECE Indicators: Getting
Facilitators: Dave Pascoe, Environment Canada and Angela
Bularga, Regulatory Environmental Programme Implementation Network
Draft Summary: This workshop emphasized that the difficulties
with result-oriented measures should not dissuade programs from
beginning in more limited ways. Output indicators with measures
such as inspection numbers or the number of regulated entities are
a necessary component of indicator systems, despite their limits
in showing the environmental results. However, even though the data
may be difficult to collect and manage, limited outcomes measures
should be sought. Care must be taken not to create measures that
create perverse incentives such as increasing the number of insignificant
inspections or cases to show greater activity, or indicating the
lack of violations as a success rather than as an indication that
compliance status is unknown. Indicators must be developed early
in the management process and be used to guide resource dedication
and strategies. Indicators should be examined in light of the expectations
of the programs and may help explain to the public and other stakeholders
(who may have other expectations) why regulators act as they do.
INECE could (1) work with Regional Networks to promote global
use of ECE indicators and continue to promote the issue to help
the networks connect with funders; (2) share information between
countries and standardize definitions and terminology to
develop a common language on the subject; (3) develop training
and guidance on the development and use of basic components,
including some specific indicators with which to begin.
2A2 - ECE Indicators: Getting
Facilitators: Waltraud Petek, Austrian Ministry of Agriculture
and Forestry and Michael
Stahl, U.S. Environmental Protection Agency
Draft Summary: Several countries have a history of "State
of the Environment" indicators. The challenge is to develop
a whole spectrum of indicators from input to outcome and on several
intermediate stages. One should not try to make this link by one
big leap. An incremental approach is the only way to do so and focus
should be given to intermediate outcome indicators. There is not
one ideal set of indicators that can be used by every country. There
only seems to be a general approach or process of identifying, developing,
and implementing ECE Indicators.
INECE could assist countries in the process of identifying, developing,
and implementing performance indicators on environmental compliance
and enforcement in several ways: (1) by building capacity,
e.g., by building these notions on the ECE Indicators process into
a training course; (2) by presenting a library of examples of
basic indicators, used by different countries, preferably categorized
by type or use, so as to give direction to new schemes and to provide
a possible benchmark for existing schemes; (3) by encouraging
the exchange of information through INECE's website, not only
about successes, but also about burdens and failures; (4) by investigating
the use of ECE Indicators in situations of cross-compliance,
e.g., where the granting of agricultural subsidies is dependent
on compliance with environmental regulations; and (5) by continuing
the e-dialogue on ECE Indicators with an exchange of experiences
with intermediate outcome indicators.
2A3/2A4 - ECE Indicators:
Di Paola, FARN, Argentina; Myriam
Linster, OECD; Jose Pablo Gonzalez, Costa Rica; and Ken
Markowitz, INECE Secretariat
Draft Summary: The lessons learned from this workshop were
four-fold. First, while long-term outcomes are attractive goals,
they can also be discouraging, since they are difficult to meet
and are not immediate. One suggestion was to focus on intermediate
outcomes. The second lesson learned stemmed from a concern about
whether a minimum standard or requirement could be articulated when
trying to start a pilot program, especially since funding can be
problematic. Workshop participants agreed that INECE should encourage
creativity to account for the different outcomes possible for
different countries with different issues. Participants discussed
the need to provide inspectors and enforcers of environmental
regulations with training and a methodology for ensuring good
information management and sharing.
The final two lessons learned addressed the issue of information
sharing. The workshop participants' third recommendation was for
INECE to continue ECE indicator training, a dynamic process,
and to serve as a mechanism encouraging partnerships with institutions
critical to creativity and stewardship. This could be done through
using the INECE website for countries to share their experiences.
The final recommendation to INECE and lesson learned was the need
for regional, national, and domestic movement and cooperation
as the primary means for INECE to achieve its goals. Without this
domestic support system, INECE would be only able to frame an agenda,
but not enforce it.
2E - Criminal Law and Environment:
Prosecutors, Inspectors, Police and Nongovernmental Organizations
Benjamin, Brazil and David
Uhlmann, U.S. Department of Justice
Draft Summary: The first part of the session focused on
key foundation issues that must be addressed in establishing an
environmental criminal enforcement program. Those issues include:
- The nature of the criminal offense - Is the relevant statute
aimed at protecting human health, or does it also include the
- Issues of scienter - What is the mental state standard; e.g.,
knowing, negligence, strict liability?
- Who is liable? - Does this include corporations, responsible
corporate officers, etc.?
- Standing to prosecute - Role of victims and NGOs.
- Penalties - Imprisonment, fines, restitution, compliance orders,
- Statute of limitations - Should there be one? If so, should
it start from the point of discovery?
The second part of the workshop generated a lively discussion concerning
the key components of an effective environmental criminal enforcement
program. Those components include:
- Will - Underlying all of the components, there must be the will
on the part of the political establishment and the executors to
provide the energy and resources to do the job.
- Statutory framework - There should be a clearly articulated
statutory base complemented by an effective regulatory program.
- Capacity building - Regulators, investigators, prosecutors,
and judges all need training to perform their duties.
- Effective communication - There needs to be trust and open communication
among all members of the team; e.g., among investigators, regulators,
prosecutors, and other stakeholders.
- Case selection criteria - Investigative and prosecutorial decisions
should be based on clearly articulated criteria and priorities.
- Outreach and publicity - There needs to be outreach in order
to inform the public of case accomplishments and initiatives.
This is the only way to accomplish the objective of general deterrence.
- International cooperation - There needs to be open communication
with international organizations and counterparts. This could
assist domestic programs in creating the necessary political will.
- Truly integrated system - A goal to attain is an environmental
criminal enforcement program that is truly integrated with all
levels of government (i.e., federal, state or provincial, and
local). Also, the criminal program should be integrated with administrative
and civil enforcement programs, if they exist.
2F - Role of the Courts, Nongovernmental
Organizations, and the Press: Climate Litigation Case Study
Facilitators: Peter Lehner, New York Attorney General's Office
and Catherine Pearce, Friends of the Earth, UK
Draft Summary: The facilitators began the workshop by describing
some of the prominent climate change litigation cases and discussing
how these cases may be used to spur action. Participants contributed
other ideas for action in response to climate change including:
1) human rights actions based on the right to a clean and healthy
environment; 2) cases and communication campaigns highlighting government-backed
projects that contribute to climate change; 3) tort actions based
in nuisance or trespass based on property damage caused by climate
change (such as rising seas levels leading to loss or destruction
of coastal property); and 4) legal actions concerning countries
or institutions unfairly subsidizing industries that are accelerating
"Framing" a responsive, engaging message on climate change
was also discussed. The general consensus was that media messages
about climate change needed to be communicated in a simple, straightforward,
and interesting manner in order to grab the attention of a skeptical
and/or uninformed public and to answer concerted efforts to dispute
the fact that climate change is really occurring. Participants agreed
that any message of the dramatic effects of climate change should
be combined with a message of hope, including solutions for the
future. This "message of hope" could involve telling the
story of climate change as it relates to human values and the effects
on local communities. A values-based message could be built around
the right to clean air, clean water, and a clean environment, in
order to preserve the health of future generations. Part of this
message would also be that addressing climate change will lead to
substantial economic benefits, as entire new areas of industry built
on renewable and greener energy sources will create new technology,
business development, and job opportunities.
It was suggested that INECE could investigate areas of cooperation
in capacity building, networking, and creating of awareness, not
only in the form of exchanging ideas and sharing experiences, but
by generating material which helps educate the media, the judiciary,
and the public and counters the current media "spin" on
climate change issues. INECE could also develop concise abstracts
in many languages on the science of global warming to be distributed
through the web and other media.
2G - Compliance with and Enforcement
of Multilateral Environmental Agreements
Mrema, UNEP and Carl
Draft Summary: Workshop facilitators presented an introduction
to the United Nations Environment Programme's Guidelines on Compliance
with and Enforcement of Multilateral Environmental Agreements (MEAs),
which is designed to guide the implementation of existing MEAs,
MEAs under negotiation, and MEAs to be negotiated. As follow-up
to the Guidelines, UNEP is developing a Manual which is intended
to provide options to choose from in promoting compliance with and
enforcement of MEAs, as well as further clarification on how the
tools described in the Guidelines can be used. The draft Manual
has been tested through a series of regional workshops. UNEP is
also trying to test/implement the Manual by initiating pilot projects
at regional and national levels.
The facilitators concluded the meeting by soliciting comments on
the Manual. More case studies are welcomed, as well as suggestions
for pilot projects. UNEP is also looking for suggestions for follow-up
activities to promote compliance with and enforcement of MEAs. Suggestions
were made to use the Manual in university-level courses as well
as to make it available to environmental institutes, NGOs, and other
training institutions. Suggestions are also sought on improving
the indexing to the Manual, in order to increase its value as a
2H - Wildlife Enforcement
Facilitators: Azzedine Downes, International Fund for Animal
Lafleur, Environment Canada; and Ladislav
Miko, Czech Republic (European Commission DG Environment Directorate
Although the schedule said that this group would develop tools
for use in a wildlife enforcement network, the group felt unable
to do this until there was a clearer concept of what kind of structure
"wildlife enforcement network" meant. To this end, The
workshop began with a discussion to define the concept of a "wildlife
enforcement network." The group then examined and defined certain
key aspects of the network like: what its membership would be, what
its functions would be, and how to ensure its effectiveness across
development, cultural and language barriers. Overall, there was
absolute agreement that such a network is both necessary and useful.
On the issue of membership, the group discussed the fact that although
some wildlife enforcement networks currently exist (for instance,
within CITES, Interpol, and Europol), these are limited in their
participation to officials from agencies with actual enforcement/police
powers. The group felt that any new network should not include only
those groups, but should also include nongovernmental organizations
with a clear involvement and expertise in wildlife enforcement and
compliance. While these nongovernmental organizations would be members,
only specific individuals within these nongovernmental organizations
would have access to sensitive data). The group felt that the network
should not just link people with the same functions to one another
(i.e. investigators to investigators), but should reflect a more
holistic vision of enforcement by engaging representatives of agencies
across the enforcement chain (officials, on-the-ground investigators
and rangers, prosecutors and judges) in this integrated forum.
2I - Negotiated Compliance
Ndlovu, Department of Environmental Affairs and Tourism, South
Africa and Susan Bromm, U.S. Environmental Protection Agency
Draft Summary: The group first established a common definition
of a negotiated agreement as a formal document negotiated between
two or more parties to resolve a dispute and that meets the needs
and some of the desires of each party. Four categories of negotiated
agreement were then defined:
- agreement for a party to make improvement to the environment
beyond what is formally required.
- agreement for a party to meet a future compliance date for an
- agreement for a party to go beyond a future compliance date
for an established requirement
- agreement for a party to comply with a past compliance date
where there is an established violation
The last three can be called Negotiated Compliance Agreements since
they relate to an established requirement. The following four questions
relating to negotiated compliance agreements were then discussed.
- What motivations exist to enter into negotiations for compliance
agreements for industry? for government?
- Are there situations in which governments should not use the
- What are elements of a good compliance agreement? Should some
elements be non-negotiable?
- Are there examples of creative elements that your country has
included in compliance agreements?
Finally, the group felt it would be useful for INECE to develop
guideline documents on negotiated compliance agreements that would
help practitioners understand the usefulness of this mechanism and
what/why certain elements should be included in the agreement.