Enforcement of Environmental Law in United States and European Law: Realities and Expectations

Article excerpt

I. Introduction

In the last twenty years, the world has witnessed various major environmental accidents, ranging from Seveso, Italy(1) to Bhopal, India(2) to Chernobyl(3) to Basel.(4) The discharge of toxic chemicals and the fallout of nuclear radiation due to the negligence of major chemical firms and nuclear plants have had transboundary effects. These accidents have had devastating consequences for the lives and ecosystems of present and future generations.

Technology and industrial processes impose involuntary or public risks on society. Recent environmental tragedies illustrate the failure of states and private bodies in monitoring or controlling the regulatory processes, the necessary equipment, and the individuals responsible for their care and maintenance. When seeking solutions to these issues, the first question that arises is whether our society's methods of control, particularly in the legal field, are adequate to deal with such incidents. Second, despite political and legal progress and increased environmental awareness at national and international levels, is there a deficiency of implementation and enforcement in the existing legal and policy approaches in this field? Third, what other effective methods or control mechanisms should be applied to overcome the practical deficiencies of such instruments?

The aim of this Article is to suggest solutions to these questions.(5) This Article also intends to provide basic principles and ideas for developing frameworks for improvement of implementation methods.

Three international conferences on environmental enforcement have focused on finding effective national and international means of enforcing environmental legislation and regulations. Sponsored by the United States Environmental Protection Agency (EPA) and other relevant U.S. authorities, together with the Environmental Ministries of the host countries and the Dutch Ministry of Housing, Physical Planning and Environment, these conferences took place in Utrecht, Netherlands in May of 1990;(6) in Budapest, Hungary in September of 1992; and Oaxaca, Mexico in April of 1994. These proceedings benefitted from case studies on enforcement prepared for the Organization for Economic Cooperation and Development (OECD), from comments by national, regional, and local environmental participants responsible for legal and technical aspects of environmental enforcement, and from comments made by nongovernmental organization (NGOs) and industry representatives.

The conference reports contained detailed proposals and case studies on enforcement. However, since the problems concerning enforcement strategies cover a wide range of issues, this Article focuses on introducing innovative means of environmental enforcement that various countries have implemented. The first three sections of Part I will lay the foundations of this Article by providing an overview of our current enforcement system. Sections D and E, respectively, describe the effectiveness of promoting environmental awareness, and of extending standing to individuals and environmental organizations as a method of enforcement. Section F analyzes specific developments in environmental enforcement means implemented by various countries.

H. Enforcement Methods at the National Law Level

A. Generalities

To effectively protect public health and the environment, governments must first implement legal requirements (including administrative, civil, and penal provisions) at national and international levels. Implementation of legal requirements starts with effective compliance measures and improved administrative control and participation. These procedures should be followed by better participation, information, and judiciary control measures, culminating in effective enforcement.

In order to achieve effective compliance and enforcement of national and international environmental law, it is important to define "compliance" and "enforcement" at the outset. …