Principle 10: Rule of law in environmental enforcement.
Environmental Agencies should demonstrate commitment to the rule of law by developing timely enforcement responses that deter noncompliance and accomplish a range of objectives, including correcting violations and rectifying or compensating environmental harm.
An EA should demonstrate commitment to upholding the rule of law by acting to correct detected non-compliance through carefully designed response mechanisms. Enforcement of environmental requirements is a fundamental element of any compliance assurance program, and provides the basis for all command-and-control and incentives-based efforts by deterring non-compliance and correcting or redressing harm.
In designing its enforcement responses, an EA should adopt the full range of response mechanisms that include informal approaches (site visits, warnings and notices of violation), and formal approaches that include civil, administrative or judicial enforcement (revocation of permits, facilities closure, liens, monetary penalties), or criminal enforcement (fines, imprisonment). Responses should achieve a range of objectives: obtain information on violator conduct, return violators to compliance, impose sanctions, eliminate economic benefits of non-compliance, correct or redress environmental harm, and publicize results.
Given the emphasis in some countries in Asia on criminal sanctions for environmental violations and the procedural challenges posed by criminal enforcement, EAs should develop strategies for pursuing administrative and judicial enforcement as more effective and efficient response mechanisms. In addition, EAs should build on the preference in Asia for negotiation and settlement and identify improved methods for alternative dispute resolution.
Principle 11: Fair, consistent and proportionate responses.
Environmental Agencies should develop procedures that clearly define enforcement responses and associated remedies that are timely, fair, consistent, and proportionate to the conduct.
Enforcement actions should not be arbitrary. Environmental laws and regulations must define standards of compliance, penalties for violations, and enforcement procedures that include minimum requirements of due process: legal notice, opportunity to be heard, right to an objective and timely process of adjudication, and right to an appeal.
In accordance with the law, an EA should pursue enforcement responses that are timely, fair, and proportionate to the conduct. Where possible, an EA should develop clear guidelines and procedures that define selection criteria in applying informal or formal response mechanisms and related remedies. Guidance should cover such activities as issuance of field citations, terms and conditions of permit revocation or facility closure, and calculation of penalties, and should clearly define the discretion of implementing authorities.
In responding to violations, an EA should act in a timely manner to reduce adverse environmental impacts and to ensure an atmosphere of deterrence. To guarantee fairness, an EA should also employ a consistent and transparent approach that makes clear what enforcement actions may be taken, in which situations, and for what reasons. Transparency helps the regulated community, other agencies, and the public understand the enforcement process and promotes confidence in an EA.
Acting with a solid legal and factual justification, an EA should select an appropriate response from the full range of available remedies that is commensurate with the risks to the environment and severity of the violation, taking into account any mitigating factors.