Reports

The Role of Enforcement in Effective Environmental Protection

1 July 2004


The European Policy Centre (EPC) welcomed the Assistant Attorney General for Environment and Natural Resources Division, US Department of Justice, Thomas L Sansonetti, to an EPC Breakfast Policy Briefing to discuss “The Role of Enforcement in Effective Environmental Protection.” The meeting was chaired by EPC Founding Chairman Stanley Crossick. A question and answer session followed the Assistant Attorney General’s presentation. This is not an official record of the proceedings and specific remarks are not necessarily attributable.

Summary

Outlining the work of the US government's Environment and Natural Resources Division in enforcing environmental legislation, Assistant Attorney General Thomas Sansonetti highlighted the successes and failures of his department's actions so far. He stressed America's cooperation with global partners to enforce international treaties, including the combating of dangerous chemicals and the illegal trade in exotic animals, and defended the US decision not to sign up to the Kyoto Treaty on Climate Change.

Event Report

Thomas L Sansonetti opened his presentation by explaining the role of the US Justice Department and US Federal Agencies in the effective enforcement of environmental protection. Mr Sansonetti outlined the US government structures in place to promote compliance with US domestic laws and to enforce international obligations, including environmental aspects of trade agreements.

US Department of Justice

He explained that the US Department of Justice had six Assistant Attorney Generals with an annual budget of $100 million each and 650 staff, 420 of whom were lawyers. These six departments were charged with enforcing laws and defending the administration’s policies in criminal and civil cases, taxation, anti-trust, civil rights and environment.

Environment and Natural Resources Division

Mr Sansonetti said his responsibility included federal agencies for the protection of land, air and water and the departments of the interior, agriculture, energy, commerce, transportation, defence and homeland security. He oversaw around 20% of deals on borders, customs officials and port security. A core element of the work of his 420 attorneys was to defend all lawsuits against the federal government. This amounted to 50% of all cases, or just over 7 000. These numbers made the US unique worldwide in that it had such a large unit dedicated to environmental litigation. It allowed expertise and coordination of environmental institutions and consistent enforcement standards and penalties throughout the country. He pointed out that America had a very strong civil and criminal enforcement programme. “Compared with our European counterparts, we have less laws and regulations, in fact approximately 10-12 environmental laws, but those that we have we enforce very stringently.” Examples of these laws included the clean air and clean water acts and the endangered species acts.

A crucial aspect of environmental law, he added, was that not only individuals or companies but US federal agencies could be prosecuted for failing to uphold environmental protection.

Institutional factors

The success of environmental protection was built upon crucial institutional factors, said the assistant attorney general. The first important principle was a strong legal basis and, more importantly, meaningful penalties. “You have got to have an effective penalty system and enforcement system attached to the law.” Secondly, the necessary resources had to be available. “It’s only sometimes when the enforcement occurs that the child behaves.” Lastly, judicial authority was a central element, he said. Mr Sansonetti stressed it was important to note that lawyers were kept strictly separate from investigators. There were around 250 investigators from the Environmental Protection Agency who report back to his department. Regular meetings would define priorities and develop common initiatives. Rather than adopt a scattergun approach, there was a focus on programmes to make effective use of the attorneys and concentrate on entire areas, defined, for example, by industry or geography.

Effective deterrents

Mr Sansonetti centred on a specific successful initiative to combat pollution from cruise ships. There was a growing problem off the American coast of cruise ships that threw bilge and oil into the sea to cut the costs of buying a proper filter to separate oil and water. By dumping the substances, cruise companies could save up to $10 000 per trip. Not only was this unfair to companies complying with the law but it had obvious environmental consequences.

The environment division was working closely with coastguards, providing them with infrared cameras at night to search for oil sheen in the water around cruise ships. Cooperation was also extended to foreign ports, particularly in the UK, where these ships had come from or were heading to.

The fines imposed on guilty companies would filter through the industry, providing an important deterrence factor to other ships that may be tempted to cut costs. “It is very important that once you have a success in environmental enforcement that the word gets out through publicity to the entire business community of those who deal with the same industry.” News of a prosecution was automatically transmitted to all major newspapers, the media in that region and trade publications.

The “carrot and stick” principle

In dealing with lawbreakers, Mr Sansonetti said his department was guided by the “carrot and stick” principle. The first carrot was “stop the bad thing you are doing and fix what you broke.” Failing this, a civil lawsuit would be filed requiring the guilty party to stop the illegal activity. The second carrot was asking the offender for the money to fix what they spoiled. The third requirement was a compliance programme to set out plans to rectify the problem. If this was the second time a violation had occurred a monetary penalty would be demanded. In the US, the fines collected went into a fund to clean up sites where there was no clear responsible party, he explained.

In criminal cases, or where the action is so outrageous that it deserves to be treated criminally, then Mr Sansonetti was adamant about asking for “jail time.” “In too many countries, criminal prosecution really means a fine. Nobody goes to jail,” he said, mentioning Scotland as an example, which had an impressive 90% record of criminal convictions for environmental crimes but where nobody so far had spent time behind bars. He stressed that the penalties had to be in relation to who you were dealing with.

The effect of stinging penalties would be that “when the stick comes, word goes through the community very quickly.” This would provoke a policy of “self-policing,” where companies themselves would put pressure on the federal government to take effective action against offenders.

Dangerous chemicals

Mr Sansonetti outlined the international agreements the US was currently striving to implement. This included the Montreal protocol against dangerous chemicals, such as chlorofluorocarbons (CFCs) which were destroying the ozone layer. The smuggling of such chemicals on the black market was burgeoning into a lucrative industry and the US was actively trying to crack down on these smuggling rings. An international taskforce had been created to deal specifically with CFCs and these law enforcers focused on the geographical areas at the heart of the problem. US criminal investigators were working with the authorities in Canada, Mexico and South America to root out the smugglers.

Exotic animals

Another worrying trend was the increase in the trade of exotic animals. The US was a signatory of the international CITES agreement for the protection of endangered species and was working around the world to prevent illegal trafficking, said Mr Sansonetti. “There is unfortunately still a very serious problem.” One source of the phenomenon was the growing trend among Hollywood actors to illegally purchase exotic animals. The going rate for a snake from Malaysia was currently $135 000, he noted. Investigators were playing the role of fictitious actors to trap poachers into capturing animals. Often the animals were smuggled through Amsterdam to US airports such as New York. Once money changed hands, arrests would be made. So far, three different wildlife smuggling rings had been cracked but a high demand still existed.

International agreements

Overall, when speaking about international agreements, there must be effective implementation by all parties, stressed Mr Sansonetti. There were obligations on both sides to ensure the best compliance. He said his lawyers were undergoing frequent training on how to interplay domestic laws with international obligations. Part of this training was trips abroad for an exchange of best practice with other countries. US officials were actively training other nationals, for example in Eastern Europe and the new EU countries, but America also had a lot to learn, he noted.

Closing the meeting, Chairman Stanley Crossick referred to the benefits of close transatlantic cooperation. He said that unfortunately too much time was spent on arguing over different positions and that more effort should be made to understand why these differences existed.