On Environmental Enforcement and Compliance: A Reply to Professor Crawford's Review of Making Law Matter: Environmental Protection and Legal Institutions in Brazil

By McAllister, Lesley K. | The George Washington International Law Review, May 30, 2008 | Go to article overview

On Environmental Enforcement and Compliance: A Reply to Professor Crawford's Review of Making Law Matter: Environmental Protection and Legal Institutions in Brazil


McAllister, Lesley K., The George Washington International Law Review


INTRODUCTION

Over the past three decades, laws and institutions dedicated to environmental protection have been established in most countries throughout the world. Over one hundred countries, for example, have environmental impact assessment laws, requiring that some study of environmental impacts be conducted before proposed projects receive governmental approval.1 Most countries have environmental laws that restrict air and water pollution as well as natural resource degradation. Almost all countries have created environmental regulatory agencies, and often subnational jurisdictions also have environmental laws and agencies.2

In the context of industrialized countries, particularly the United States and several European countries, a rigorous body of scholarship on regulatory compliance and enforcement of environmental laws has been produced.3 However, we know very little about how environmental laws and ipstitutions interact with society in most developing countries. What are the politics of environmental lawmaking? What are the characteristics of die institutions charged with implementing environmental laws? How do these laws and institutions affect environmentally relevant behavior? Such basic questions have been litde explored in countries as significant to the world's environment as Indonesia, Kenya, and Brazil.4

My book, Making Law Matter: Environmental Protection and Legal Institutions in Brazil, was written to contribute to our knowledge of environmental laws and institutions in developing countries.5 It takes as its subject of inquiry the environmental enforcement work of Brazilian prosecutors, with a focus on how this work affects the relevant behavior of polluters, environmental agencies, and citizen groups. It sketches die characteristics of what I call "prosecutorial enforcement," a mode of enforcement that emerged in the Brazilian context in which legal actors play a central role. My book finds that prosecutorial enforcement is in many ways a success story - it has enhanced die effectiveness of environmental law in Brazil, and a similar approach may be useful in other national jurisdictions.6

I am complimented and honored that Professor Colin Crawford saw fit to carefully read and comment on my book.7 In this reply, I first situate my book's focus on the effectiveness of environmental enforcement within the sociolegal literature on regulatory enforcement and compliance. In doing so, I discuss my empirical findings regarding both how prosecutorial enforcement succeeds and how prosecutorial enforcement fails. In the second part of the Article, I address other aspects of Professor Crawford's book review by suggesting a research agenda for the study of environmental law and legal institutions in developing countries. I call for further research on the effectiveness of enforcement, which is the central concern of my book, as well as on environmental justice, environmental movement organizations, and comparative law, areas of inquiry usefully highlighted in Professor Crawford's remarks.

PROSECUTORIAL ENFORCEMENT IN BRAZIL

Among Latin American countries, Brazil has been the most innovative in building environmental enforcement capacity. In the mid-1980s, Brazilian law empowered public prosecutors to file civil and criminal enforcement lawsuits for environmental harm, and prosecutors throughout the country became active in this area. As I describe in my book, this represents a unique experiment in supplementing the enforcement work of environmental agencies that have often been weak in terms of their resources and their power to coerce compliance.8

A. The Effectiveness Question

My book analyzes the effectiveness of prosecutorial enforcement in Brazil. Where enforcement is effective, it contributes towards behavior changes that increase compliance.9 While prosecutors in the United States and other countries may play an important role in environmental enforcement, they are not usually the primary actors. …

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