General Principles of Environmental Enforcement

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2 General Principles of Environmental Enforcement Objective: Protection of public health & environmental quality Definition: Set of actions taken by govt. to ensure compliance within a regulated community Reason: Ensure fairness (level playing field ) for regulated community Ensure the credibility of the statute being enforced Relationship Between Enforcement and Statute-Tools for Success technical assistance to achieve compliance inspection and monitoring negotiations to achieve compliance administrative, civil, or criminal action to compel compliance

3 The Enforcement Pendulum Deterrence Cooperation Deterrence Optimum Compliance achieved when within the regulated entity s economic self-interest. Intensified enforcement & high probability of detection Cooperation Entity s reliance on civic/social motivation ensures compliance Rewards, incentives, and advice from agencies elicits model behavior and ensures compliance.

4 State Authority To Enforce Federal Environmental Laws Power Delegated by Federal Government States (Tribes) must adopt the minimum federal standard State must demonstrate fiscal ability to enforce the standard States May Enact Stricter Standards Absent Preemption State issues may require greater enforcement needs Environmental interests of the states not uniform Protection of public health tailored to each individual state

5 California Environmental Enforcement Infrastructure

6 Additional Enforcement Participants Agencies Cal OSHA-Workplace Safety California Department of Fish & Wildlife Resource Protection Oil Spills California Highway Patrol Transportation of Hazardous Materials & Waste Prosecutors California Attorney General District Attorneys-Consumer/Environmental Protection NGOs Citizen suits within specified statutes-civil remedy

7 Compliance Remedies Administrative hearings Use of regulations formulated by executive branch delegated with the authority to compel compliance. Civil litigation A judicial process used to resolve disputes resulting in the issuance of injunctive relief and/or monetary penalties Criminal enforcement A judicial process where evidence is used to prosecute criminal conduct threatening to public health or the environment resulting in monetary penalties/incarceration

8 Administrative Enforcement Process by which enforcement tools are used to compel compliance and collect penalties from violators without prior court approval. Notice of violation (N.O.V.) Admin. compliance, abatement, cease/desist orders Admin. Penalty assessment orders Effectiveness of administrative enforcement and the ability to attain compliance w/o resort to civil/criminal process is the subject of much debate.

9 Administrative Enforcement Objectives & Benefits Objectives Dissuade unlawful conduct Penalty serves as example Remove economic benefit and add penalty for misconduct Fair & consistent enforcement Consistent & Flexible application of penalties Penalty analyzed in terms of gravity +economic benefit Benefits Swift, responsive, and flexible method of enforcement for use in non-egregious cases Provides compliance timetable Cost effective method of enforcement/negotiation Reduces protracted litigation & provides incentive to settle Cons-perception of program & repetitive violations

10 Civil Enforcement Advantages Preponderance evidence std. Jury trials-no unanimous verdict needed Injunctive relief awards include cleanup and remediation of environmental harm Monetary damage awards which divest violator of economic benefit Disadvantages Protracted litigation No incentive to settle cases Costly process for government Damage award-dischargeable in bankruptcy Tedious discovery process

11 Criminal Enforcement Advantages Highest level of deterrence Jail & Severe $$$ Penalties Procedural Efficiency Right to Speedy Trial Resp. Corp. Officer (RCO) Criminal penalties not subject to bankruptcy laws Full timely discovery (Brady) Corporations-No 5 th Amendment Use of Grand Jury to Indict Disadvantages Beyond a reasonable doubt No monetary damages Restitution but no injunction Requires unanimous verdict Use of prosecutorial discretion Politics v. Policy Nature of conduct Harm to the Public

12 Standard of Criminal Liability Criminal Intent-The mens rea debate Strict Liability- most wildlife statutes Negligence-Criminal/Civil (reckless disregard/ordinary care) General Intent-intended conduct w/o knowledge of illegality Specific Intent-acting in manner contrary to law (awareness) California Standard-People v. Martin (1989) 211 Cal App. 3d 699 We conclude that section , although not a strict liability offense, is part of a regulatory scheme where it is permissible to find criminal liability based on the violation of a standard of ordinary care.

13 California Environmental Statutes Hazardous Waste & Materials California Health & Safety Code Disposal, Leaks, Abandonment, Spills Section (b) Transportation, Storage, Treatment Section (c, d) Recordkeeping, Planning, False reps Section 25191, Section Storage Tanks (Above/underground) Section 25199, Section Reporting Haz Mat Releases Section 25507, VC Water Pollution Water Code, F/G Code, H/S Code, Govt. Code, Penal Code, H & N Code Petroleum/Oil Spills/Discharge Fuel F&G 5650 (F&G), F&G Substance, Waste, Litter, Commercial PC 374, WC Oil Spills (Marine)- GC Drinking Water- H/S Hazardous Substance viol permit WC 13385, WC False reports-wc Failure to notify-wc Discharge into injection well-wc 13265

14 California Environmental Statutes Air Pollution Health & Safety Code Stationary Source H/S Mobile Sources H/S False Reps-Smog Certs H/S Violation of Air Board R/Rs HS Solid Waste Dumping/Littering PC 374, VC Grease Waste PC Solid Waste Permits PRC Waste Tires PRC Lead Acid Batteries- H/S Used Motor Oil-H/S Wildlife/Habitat Statutes F&G Code, Penal Code, Take/possession F/G 2000, 2002 T/P protected bird F/G 3511 T/P protected reptile F/G 5050 Selling sport-caught fish F/G 7121 Stream diversion permit F/G 1602 Obstruct navigation F/G 5901, PC 372 Burning forest land PC 451 Trespass to land PC 602, PRC 4601

15 California Environmental Statutes Threats to Human Health H& S Code, F& A Code Medical waste H/S Pesticide usage F/A 11891, Proposition 65 H/S Radioactive Materials H/S General Enforcement Statutes Penal Code, CCP, Business/Professions, Government Code, Public Resources Code Public Nuisance Penal Code 372 (criminal) CCP 731 (civil) Unfair Competition B/P Nat. Resources Protection GC CEQA-Env. Impact Reports (E.I.R.) PRC 21000

16 The Impact of Proposition 64 Upon California Environmental Enforcement Proposition 64 a. Passed in 2004 by 59-41% margin b. Limited private lawsuits against companies who engaged in fraudulent and/or deceptive business practices to victims who could prove actual loss/damage resulting from said practices. c. Private attorney general actions severely limited due to abuse of practice d. Authorizes only the California Attorney General or local government prosecutors to sue on behalf of general public to enforce unfair business competition laws. e. Limits use of monetary penalties recovered by Attorney General or local government prosecutors to enforcement of consumer protection laws. f. Gave rise to the practice of filing statewide civil consumer protection suits for unfair business practices stemming from environmental violations

17 The Impact of Proposition 64 Upon California Environmental Enforcement Advantages Places responsibility for consumer and environmental protection squarely in the hands of the public prosecutor Uniform/consistent multi-jurisdictional enforcement of environmental violations Settlements ensure resources for consumer/environmental protection Prevents abuse of private AG actions Disadvantages Prevents NGOs from using private attorney general actions to address environmental harms. Discourages the use of the criminal remedy to address environmental violations Diminishes resources available to address local environmental issues Protracted litigation due to reliance upon the civil remedy-delays in compliance-no incentive by defendant to settle timely

18 Measuring Environmental Compliance Traditional Methods of Measurement Number of Inspections Timeliness of Response Proportion of Remedies Used (Admin, Civil, Criminal) Nature and Size of Penalties (Admin, Civil, Criminal) Amount of Incarceration Exacted Shortcomings of Traditional Measures Inability to quantify improvement in air, water, H-W, Can t measure specific compliance level w/statute Lack of consistency/uniformity w/repeat offenders Lack of communication between enforcement entities Lack of understanding jurisdictional authority

19 California Environmental Enforcement Questions? John M. Fentis CDAA Environmental Project Director Adjunct Professor Of Law-Whittier College School of Law