Article

Enforcement of Environmental Law in the Flemish Region

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Abstract

This paper provides an empirical assessment of enforcement of environmental law in the Flemish Region. Data are used from the environmental inspectorate over a period of 20 years showing how many violations took place, how these violations were handled by the environmental inspectorate and how many cases were prosecuted. Attention is also paid to theoretical literature explaining why a low number of environmental crimes will be prosecuted. Data are also provided on sanctions which have been imposed. The question is addressed whether the enforcement approach found in the Flemish Region fits into a deterrence or rather a compliance approach. Recent changes towards the introduction of administrative fines for environmental violations are also discussed.

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... In response, the Chinese government has attempted to regulate pollution, but the effectiveness of these policies has been limited (Hao et al. [1]; Zhu et al. [2]; Xie et al. [3]). Studies on the effectiveness of environmental regulations have primarily focused on the content of regulations (Faure and Svatikova [4]; Faure and Zhang [5]) or firms' responses to different types of regulations (Gao et al. [6]; El-Bassiouny and Letmathe, [7]; and Zhou and Shen [8]). The impact of coordination among administrative and local government agencies on environmental performance is underexplored. ...
... The critical element is holding government officials accountable. Thus, our findings echo and complement those related to specific elements in environmental regulations (Faure and Svatikova [4]; Faure and Zhang [5]) or different types of regulations (Gao et al. [6]; El-Bassiouny and Letmathe, [7]; and Zhou and Shen [8]). We show that it is not just the regulations themselves but the implementation of the regulations that encourages success. ...
Article
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In February 2017 China began to require the regional coordination of four ministries and 28 cities surrounding Beijing to manage air pollution. The Coordination attempts to unify air pollution standards and implements various new methods to monitor air pollution. Leveraging the natural experiment and using a difference-in-differences research design, we note that firms located in the treatment cities invest more in the environment than those in the control cities. In addition, we find that non-state-owned firms (non-SOEs) respond more strongly than SOEs. The findings remain qualitatively the same after accounting for selection bias in the cities included in the Coordination. Most importantly, air quality improves for treatment cities after the implementation of the Coordination. Our findings offer lessons to other emerging markets for implementing their air pollution management programs. Specifically, we sharpen our knowledge of the administrative management needed to improve coordination among government agencies and local officials in the management of air pollution and suggest that the government can play an active role in enhancing air pollution management.
... 7 A few others resulted in transactions imposed by the prosecutor. 8 For a further discussion of these data on the Flemish Region, see Faure and Svatikova (2010). 9 The numbers follow from a more detailed study executed by the criminologist Meinberg (1988). ...
... On the one hand, the high degree of dismissals resulted in the low probability of being detected and prosecuted. With respect to the Flemish Region and the data provided by the Environmental Inspectorate, there was a probability of 0.2 that on average a company would be inspected on a yearly basis (Faure and Svatikova 2010). The (conditional) probability of being prosecuted based on the number of prosecutions out of the number of notices of violations dealt with by the public prosecutor was even lower, 0.07 (7%). ...
Book
This book brings together the findings of a multi-disciplinary and international research project on environmental crime in Europe, funded by the European Union (EU). “European Union Action to Fight Environmental Crime" (EFFACE) was a 40-month research project that included eleven European research institutions and think tanks and was led by Ecologic Institute Berlin. EFFACE assessed the impacts of environmental crime as well as effective and feasible policy options for combating it from a multidisciplinary perspective, with a focus on the EU. As part of this project, numerous instances of environmental crime within and outside of the EU were studied and are now presented in this volume. This edited collection is highly innovative in showing not only the many facets of environmental crime, but also how it should be conceptualised and the consequences. An original and rigorous study, this book will be of particular interest to policy makers and scholars of green criminology and environmental studies.
... In the Flemish region, the prosecutor dismissed sixty-two percent of violations established by the environmental inspectorate. 168 Similar data comes from the United Kingdom where on average the prosecution rate for pollution incidents is less than five percent. 169 However, serious incidents have a much higher prosecution rate. ...
Article
A lot of literature has paid attention to ways in which the performance of environmental law could theoretically be improved. Less attention is, however, paid to the question which environmental policy instruments have actually led to a reduction of environmental harm. The problem is not that this material is not available. Since the early use of environmental policy instruments in the 1960s and 1970s various environmental and social scientists have analyzed the effects of particular environmental policy instruments. However, since these results are often published in environmental economics journals, they have to a large extent not led to a large influence in the environmental legal community. Moreover, to the extent the empirical literature is known, it often focuses on one particular aspect, e.g. the effects of an emission trading programme.The enclosed paper tries to fill that gap by looking at the empirical literature with respect to environmental policy instruments in an integrated manner. A large amount of these empirical studies are discussed in a critical manner whereby the various environmental policy instruments (liability rules, regulation, but also market-based instruments such as taxation and emission trading) are discussed in an integrated way. This overview does shed some light on the circumstances under which particular policy instruments (or a combination of instruments) may be effective in reducing environmental pollution. Attention is also specifically paid to the crucial issue of the enforcement of environmental law, thus discussing sanctioning policy and various enforcement strategies.The paper on the one hand brings together a lot of the widely-spread empirical literature with respect to the effectiveness of environmental law; on the other hand it also calls on environmental lawyers to increasingly use this type of empirical literature in environmental policy evaluations. The relevance of the paper is thus both theoretical as well as practical. From a theoretical perspective the paper tests particular assumptions made in environmental policy literature on how environmental law would work, by showing that the results in practice may often be different than what is assumed in theoretical literature. Theoretical literature for example points at the advantage of strict liability in deterring environmental pollution; empirical evidence, however, shows that increasing (strict) liabilities upon polluters also lead to liability avoidance behavior e.g. by organizing hazardous activities within smaller legal entities. This also shows the practical relevance of the paper. By showing under what circumstances particular policy instruments may work, important lessons are provided to the policy maker who e.g. would wish to move to the introduction of an emission trading scheme. The empirical evidence sheds important light on the conditions under which such a scheme can be able to reach the environmental goals desired by the legislator. The empirical evidence which is critically reviewed in this paper moreover relates to the application of environmental law in the US, Europe and developing countries and should therefore be of interest to a broad audience interested in the effectiveness of environmental law.
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The Chinese government’s recent Environmental Inspection Program (EIP) eliminates a layer of regulatory actions and holds local government officials accountable for enforcement of environmental laws. We examine two aspects of the impact of the EIP on financial reporting quality. First, we derive a simple analytical model to show that the level of earnings management (EM) depends on the cost and probability of EM detection. This increase in environmental law enforcement (due to the EIP) raises the cost of environmental violation to a firm and managers. To respond to the increased costs, a firm engages in less EM. Second, consistent with the model prediction, we find firms subject to the EIP engage in less EM than otherwise equivalent firms located in non-EIP jurisdictions. The effect of the EIP on EM is more pronounced for firms with adverse agency problems and poor internal controls. Additional analysis suggests that air quality level is a moderating factor for the impact of the EIP on EM. Collectively, using the natural experiment of the EIP, we find a new determinant of EM. Environmental law enforcement deters EM and enhances financial reporting quality.
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Chapter
This chapter provides an overview of how environmentally harmful behaviour has become the subject of an intense debate about the pros and cons of criminalizing such behaviour. In general, criminalization of environmental harm generally is a relatively recent phenomenon not only at the EU level, but also in domestic law. Originally, the legal protection of the environment usually took place via administrative law, whereby criminal provisions were added at the end of specific legislation of an administrative nature. The goal of the criminalization in those cases was merely to back up administrative obligations (e.g. to obtain a permit). In the 1980s, an increasing awareness emerged especially in legal doctrine that this was not an appropriate way to protect the environment since environmental criminal law was in fact dependent upon administrative law and no direct or independent protection was accorded to the environment. In some national member states (Germany, the Netherlands, Spain and France) autonomous environmental crimes were created which were, moreover, in some cases incorporated into national penal codes in order to express the importance of environmental crime. This tendency could also be found in a convention of the Council of Europe of 1990 on the protection of the environment through criminal law which, however, never entered into force. Through this convention serious infringements against the environment were directly criminalized. Moreover, an initiative was taken at the EU level to harmonize environmental criminal law. Originally, the justification for this harmonization was (like in the case of the Council of Europe) to provide a minimum level of environmental criminal law. However, at the EU level, a different justification for criminalization emerged: criminalization was rather seen as an important tool in the fight against the implementation deficit within member states. With that goal, the EU tried to force member states towards criminalization of national legislation implementing European environmental law. However, a problem arose since it was debated whether directives could impose such a duty towards criminalization. In a milestone decision of 13 September 2005, the (then) European Court of Justice decided that this is possible, although in a subsequent decision the ECJ equally decided that directives could not impose a specific type or size of penalties. As a result of the opening provided by the decision of 13 September 2005, Council Directive 2008/99 on environmental criminal law was promulgated, forcing member states to impose effective, dissuasive and proportional criminal penalties on the violation of national legislation implementing the European environmental acquis. Moreover, since the entry into force of the treaty on the functioning of the European Union (TFEU), also referred to as the Lisbon Treaty, the European institutions can even force member states to criminalize with a particular size and level of penalties.
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Hawkins is engaged in ''interpretative sociology'' based on a 30 month field study of enforcement by water pollution control officers in Britain. He isolates two polar styles, a ''compliance strategy'' which is ''conciliatory and relies upon bargaining'' with polluters to achieve compliance with standards, and a ''sanctioning strategy'' which is ''accusatory and adversarial'' and focuses primarily on ''whether a law has been broken and whether an offender can be detected.'' Although the formal law calls for strict liability and criminal penalties for violations, in fact prosecutions are a ''last resort'' and brought only when a polluter's actions are judged ''normally deviant.''
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The main purpose of this paper is the identification of criteria that justify the choice of (costly) criminal law enforcement over administrative or tort law to address harmful activities. Specifically, using a Law and Economics approach, this paper demonstrates when and why criminal law should be used and what the comparative advantages of criminal law are over other legal alternatives. By not exclusively focusing on the distinction between tort and crime, but also on the use of criminal law vis-à-vis administrative law, this paper will provide some contributing remarks to existing literature. Based on the analysis in this paper, it is argued that criminalization of an act should occur in areas where: (1) harm (or benefit to the criminal) is large and/or immaterial and/or diffuse and/or remote; (2) prosecution of a violation creates stigma; (3) the probability of detection is low; and/or (4) criminalization carries an educative role. Under these circumstances, ceteris paribus, criminal law is justified as the most efficient instrument to internalize the social cost of harms.
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Despite the fact that (i) when the EPA observes regulatory violations it rarely pursues the violator and, (ii) the expected penalty faced by a violator who is pursued is small compared to the cost of compliance, it is still the case that, (iii), firms comply a significant portion of the time. Winston Harrington (Harrington, W., 1988. Enforcement leverage when penalties are restricted. Journal of Public Economics 37, 29–53) provides a dynamic model consistent with this apparent paradox. We offer an alternative rationalisation in a model of “regulatory dealing” in which the agency uses tolerance in some contexts to induce increased compliance in others. The observed tolerance of the EPA to non-compliance may be a strategic response by the agency to a difficult enforcement environment rather than evidence that it has “gone soft” on pollution or been captured by industry interests. We use the model to consider the impact of the growing trend towards citizen suits and NGO enforcement of regulation, arriving at some unconventional conclusions. We argue that the model is consistent with existing empirical analyses.
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Auteursnaam op omslag: Wouter H.F.M. Cortenraad. Proefschrift Universiteit Maastricht. Met index, lit. opg. - Met samenvatting in het Nederlands.
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I. Introduction Since the turn of the century, legislation in Western countries has expanded rapidly to reverse the brief dominance of laissez faire during the nineteenth century. The state no longer merely protects against violations of person and property through murder, rape, or burglary but also restricts "dis­ crimination" against certain minorities, collusive business arrangements, "jaywalking," travel, the materials used in construction, and thousands of other activities. The activities restricted not only are numerous but also range widely, affecting persons in very different pursuits and of diverse social backgrounds, education levels, ages, races, etc. Moreover, the likeli­ hood that an offender will be discovered and convicted and the nature and extent of punishments differ greatly from person to person and activity to activity. Yet, in spite of such diversity, some common properties are shared by practically all legislation, and these properties form the subject matter of this essay. In the first place, obedience to law is not taken for granted, and public and private resources are generally spent in order both to prevent offenses and to apprehend offenders. In the second place, conviction is not generally considered sufficient punishment in itself; additional and sometimes severe punishments are meted out to those convicted. What determines the amount and type of resources and punishments used to enforce a piece of legislation? In particular, why does enforcement differ so greatly among different kinds of legislation?
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To address controversies in the applications of cost-effectiveness analysis, we investigate the principles underlying the technique and discuss the implications for the evaluation of medical interventions. Using a standard von Neumann-Morgenstern utility framework, we show how a cost-effectiveness criterion can be derived to guide resource allocation decisions, and how it varies with age, gender, income level, and risk aversion. Although cost-effectiveness analysis can be a useful and powerful tool for resource allocation decisions, a uniform cost-effectiveness criterion that is applied to a heterogeneous population level is unlikely to yield Pareto-optimal resource allocations.
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This paper considers why some harm-generating activities are controlled by criminal law and criminal sanctions while others are subject to some other mechanism such as civil law, administrative law, regulation or the tax system. It looks at the question from the perspective of the law and economics approach. We seek to identify the comparative benefits of using the criminal law relative to other enforcement mechanisms and – more broadly – why certain specific behaviours are criminalized. The paper argues that an economic approach emphasizing the relative merits of alternative legal instruments for bringing about harm reduction can provide an explanation for a number of recent legal developments. It argues also that the willingness of legislators to combine the use of sanctions traditionally used in one area of the law with sanctions from other areas is more readily explicable in economic terms than in other terms.
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Firms’ compliance decisions are expected to be strongly influenced by the expected fine for non-compliance with environmental regulations. In this paper we measure the effect of the probability of inspection and the size of the fine – jointly and separately – on the compliance decisions made by textile firms in Flanders. The results confirm the deterrence effect of increasing inspections, but they do not support a similar finding for monetary sanctions. The low levels of the sanctions that courts levy and the rapidly increasing marginal abatement costs imply that firms’ compliance decisions are not positively affected by the imposed penalties. However, we do find that it might be welfare enhancing to occasionally scan a selection of firms or sectors more deeply since the number of detected violations raises significantly as a consequence.
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This article analyzes the effect of corruption on the use of nonmonetary sanctions such as imprisonment. It is a well-known result in the law enforcement literature that in the absence of corruption, social welfare maximization requires that nonmonetary sanctions should be imposed infrequently. We show that, in the presence of corruption, it is optimal to use (or at least threaten to use) nonmonetary sanctions more often. In addition, optimal nonmonetary penalties will usually be higher in a corrupt environment. Corruption transforms the socially costly nonmonetary sanction into a monetary bribe. Although corruption thus reduces deterrence, nonmonetary sanctions are still useful, because they allow officials to extract higher bribes, thus restoring some deterrence.
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The economic literature on optimal law enforcement is very recent. Becker's seminal paper on crime and law enforcement dates from 1968 and most papers which are the focus of this survey have been published in the last ten years. The core result presented by Becker is the following: the probability and the severity of punishment deter crime. Therefore, the fine should be maximal since it is a costless transfer whereas the probability of detection and conviction is costly. Much of the recent work has attempted to show why Becker's result may not hold. Copyright 1997 by Blackwell Publishers Ltd
Article
An important result in the economic theory of enforcement is that, under certain circumstances, it is optimal for a fine to be as high as possible - to equal the entire wealth of individuals. Such a fine allows the probability of detection to be as low as possible, thereby saving enforcement costs. This note shows that when the level of wealth varies among individuals, the optimal fine generally is less than the wealth of the highest wealth individuals, and may well be less than the wealth of most individuals.
Article
A positive economic model of regulatory enforcement is developed th at allows the agency to use both legal and informal methods to gain compliance with the law. The paper fills a gap in the economic literature on regulation by developing and testing a model of enforcement. It also provides a theoretical framework for the recent empirical work of political scientists and sociologists on enforcement practices. Copyright 1988 by Royal Economic Society.
Article
This paper examines the use of fines and imprisonment to deter individuals from engaging in harmful activities. These sanctions are analyzed separately as well as together, first for identical risk-neutral individuals and then for two groups of risk-neutral individuals who differ by wealth. When fines are used alone and individuals are identical, the optimal fine and probability of apprehension are such that there is some "underdeterrence." If individuals differ by wealth, then the optimal fine for the high wealth group exceeds the fine for the low wealth group. When imprisonment is used alone and individuals are identical, the optimal imprisonment term and probability may be such that there is either underdeterrence or overdeterrence. If individuals differ by wealth, the optimal imprisonment term for the high wealth group may be longer or shorter than the term for the low wealth group. When fines and imprisonment are used together, it is desirable to use the fine to its maximum feasible extent before possibly supplementing it with an imprisonment term. The effects of risk aversion on these results are also discussed.
Public environmental law in the European Union and the United States. A comparative analysis
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Administrative law of the European Union, its Member States and the United States. A comparative analysis
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The use of warnings in the presence of errorsCriminal Law and the Optimal use of Non-Monetary Sanctions as a Deterrent
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Optimal Sentences for White Collar Criminals
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Best Practices for Consumer Policy: Report on the Effectiveness of the Enforcement Regimes
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Enforcement of Environmental Law in the Flemish Region Ehrlich, I., ``Participation in Illegitimate Activities: A Theoretical and Empirical Investigation'', Journal of Political Economy, Vol. 81, No. 3, 1973, 521±552.