Enforcement of environmental law in United States and European law: realities and expectations.

I. Introduction

In the last twenty years, the world has witnessed various major environmental accidents, ranging from Seveso, Italy(1) to Bhopal, India(2) to Chernobyl(3) to Basel.(4) The discharge of toxic chemicals and the fallout of nuclear radiation due to the negligence of major chemical firms and nuclear plants have had transboundary effects. These accidents have had devastating consequences for the lives and ecosystems of present and future generations.

Technology and industrial processes impose involuntary or public risks on society. Recent environmental tragedies illustrate the failure of states and private bodies in monitoring or controlling the regulatory processes, the necessary equipment, and the individuals responsible for their care and maintenance. When seeking solutions to these issues, the first question that arises is whether our society's methods of control, particularly in the legal field, are adequate to deal with such incidents. Second, despite political and legal progress and increased environmental awareness at national and international levels, is there a deficiency of implementation and enforcement in the existing legal and policy approaches in this field? Third, what other effective methods or control mechanisms should be applied to overcome the practical deficiencies of such instruments?

The aim of this Article is to suggest solutions to these questions.(5) This Article also intends to provide basic principles and ideas for developing frameworks for improvement of implementation methods.

Three international conferences on environmental enforcement have focused on finding effective national and international means of enforcing environmental legislation and regulations. Sponsored by the United States Environmental Protection Agency (EPA) and other relevant U.S. authorities, together with the Environmental Ministries of the host countries and the Dutch Ministry of Housing, Physical Planning and Environment, these conferences took place in Utrecht, Netherlands in May of 1990;(6) in Budapest, Hungary in September of 1992; and Oaxaca, Mexico in April of 1994. These proceedings benefitted from case studies on enforcement prepared for the Organization for Economic Cooperation and Development (OECD), from comments by national, regional, and local environmental participants responsible for legal and technical aspects of environmental enforcement, and from comments made by nongovernmental organization (NGOs) and industry representatives.

The conference reports contained detailed proposals and case studies on enforcement. However, since the problems concerning enforcement strategies cover a wide range of issues, this Article focuses on introducing innovative means of environmental enforcement that various countries have implemented. The first three sections of Part I will lay the foundations of this Article by providing an overview of our current enforcement system. Sections D and E, respectively, describe the effectiveness of promoting environmental awareness, and of extending standing to individuals and environmental organizations as a method of enforcement. Section F analyzes specific developments in environmental enforcement means implemented by various countries.

H. Enforcement Methods at the National Law Level

A. Generalities

To effectively protect public health and the environment, governments must first implement legal requirements (including administrative, civil, and penal provisions) at national and international levels. Implementation of legal requirements starts with effective compliance measures and improved administrative control and participation. These procedures should be followed by better participation, information, and judiciary control measures, culminating in effective enforcement.

In order to achieve effective compliance and enforcement of national and international environmental law, it is important to define "compliance" and "enforcement" at the outset. The First Conference on Environmental Enforcement defined these terms as follows:

Compliance is the full implementation of environmental requirements.

Compliance occurs when requirements are met and desired changes are achieved,

e.g.,

processes or raw materials are changed, work practices are changed so that,

for example, hazardous waste is disposed of at approved sites, tests are

performed on new products or chemicals before they are marketed, etc. The

design of requirements affect the success of an environmental management

program. If requirements are well-designed, then compliance will achieve the

desired environmental results. If the requirements are poorly designed, then

achieving compliance and/or the desired results will likely be difficult....

Enforcement is the set of actions that governments or others take to achieve

compliance within the regulated community and to correct or halt situations

that

endanger the environment or public health.(7)

Enforcement usually includes a range of activities such as monitoring, inspecting, reporting, gathering evidence to detect violations, and negotiating with individuals(8) and industrial operators to develop mutually acceptable methods for achieving compliance. As a last step to compel compliance, enforcement includes recourse to legal action or dispute settlement.(9)

The success of each enforcement program depends on how the state exercises its discretion in determining its particular needs and environmental priorities and on choosing the appropriate enforcement method. Effective compliance might require reorganizing existing administrative structures, implementing environmental legislation, using administrative instruments such as circulars, drafting legally binding instruments that are precise and comprehensive, and making short-term economic sacrifices.

B. Means of Enforcement

Enforcement is essential in establishing the credibility of environmental requirements.(10) Once credibility is established, continued enforcement is essential to maintain credibility.(11) Credibility encourages compliance by facilities that would be unlikely to comply if environment requirements and agencies were perceived as weak.(12) The more credible the law, the greater the likelihood that national and international efforts to protect the environment will be taken seriously.(13)

The first step in achieving enforceable environmental measures is to draft laws and other instruments that would provide the necessary authority for enforcement.(14) Effective grants of authority may be prescribed through decrees, regulations, and authorization through licenses. The legal provisions need to be stated clearly, precisely, and practically. Ultimately, this requires broad statutory, regulatory, and administrative authority, especially with respect to environmental standards.

The most important means of enforcement is legal action. This powerful tool is an effective method of compelling compliance and imposing consequences for violating the law. Legal action may be pursued through administrative measures, civil law application of liability rules, or by imposing criminal sanctions. The improvement of judicial control measures is important to overcome inefficient application of legislation.

Civil law may be an effective enforcement measure, enabling an agency to prohibit plant operators from continuing illegal activities that endanger the environment, or to seek reimbursement of costs incurred for cleanup. In addition, strict liability may also encourage voluntary compliance.(15) Any instrument that is incapable of providing compliance and that cannot be enforced reduces the credibility of the instruments goals. This applies at both the national and international levels.

Other enforcement measures include inspection, reporting, evidence gathering, record keeping, negotiation, and dispute settlement. Inspection is a primary element of most of the enforcement methods, and may be carried out regularly or randomly. Normally, it does not require a concrete suspicion, and it may be supplemented by reporting and record-keeping obligations. Inspection is a significant element of most enforcement methods used by international instruments.(16) Gathering of information consists of recording, sampling, and analysis for the verification of compliance with established standards and technical methods. Gathering evidence at the national level is particularly important with regard to administrative and penal law infractions. With international environmental law, it takes the form of factfinding.(17)

Enforcement can also be achieved by negotiations with individuals or establishments that do not comply with administrative or legislative measures. The Commission of the European Communities now uses negotiations as a method to develop mutually acceptable compliance schedules.(18) The Commission meets regularly with the relevant authorities of the Member States to negotiate the provisions of new directives or to facilitate the interpretation and the implementation of old ones. This method has so far proved to be highly successful.(19) But while negotiations may be useful to promote compliance, there is a risk that negotiations may lead to compromised environmental values or standards.

Other enforcement means, including area monitoring and remote sensing, concern the ability of agencies to carry out their enforcement duties. New technologies permit automated and consistent monitoring of industrial emissions and discharges, thereby assisting enforcement agencies in their work.

A new trend for implementing or enforcing national and international environmental measures is emerging, offering a mix of economic incentives on the one hand, and economic sanctions on the other. For example, in the United States, EPA is using more consultative procedures to develop regulations to implement the Clean Air Act.(20) Under the threats of government regulation and toxic tort litigation, companies are "voluntarily' meeting EPA's suggested goals for reducing toxic emissions.(21) In Eastern Europe, negotiations for the privatization of state assets include agreements to clean up waste disposal sites.(22)

C. Enforcement Authorities

1. Powers

In order to establish the credibility of an enforcement program, the laws should clearly specify the power and functions of the authorities responsible for enforcement. Generally, enforcement authorities are responsible for authorizations, permits, monitoring, and reporting. They might have emergency powers to enter and correct immediate dangers to the local population or environment or to take remedial actions. All these activities concern civil or administrative law. When applying administrative and eventually penal sanctions, the authorities should have powers to 1) seize property; 2) bar a facility or company from government loans, guarantees, or contracts; 3) require service or community work to benefit the environment; 4) impose restrictions on financial assistance; 5) seek reimbursement for public authorities' cleanup expenses; 6) impose fines with specified amounts per unit; and 7) seek imprisonment.

2. Sanctions

Administrative, civil, and even criminal sanctions may be used to enforce environmental laws. In the majority of Western European countries, both penal and administrative actions can be brought for violations of environmental laws.(23) Criminal actions can also be used to ensure compliance with regulatory requirements.(24) For instance, in the United States, criminal sanctions could apply to facilities that operate without a permit, although in Europe such measures might fall more within administrative sanctions.

One of the factors improving compliance with environmental laws may be the deterrence effect of criminal sanctions.(25) Enforcement can affect people's behavior by encouraging them to avoid sanctions, thus deterring future violations.(26) This effect makes criminal enforcement a powerful tool for achieving widespread compliance. In order to maximize the leverage of deterrence, violations must be detected at a high rate, to which swift and appropriate sanctions must follow.

Possible types of sanctions include 1) denial or revocation of permits, requiring an establishment to cease operations or even close (this may apply both in the administrative and penal contexts); 2) shutdown of operations (administrative or penal); 3) adverse publicity (administrative or penal); 4) economic sanctions, such as denial of government funding;(27) 5) fines; or 6) imprisonment.

D. Promoting Compliance Through Public Awareness

Other methods for obtaining compliance with environmental requirements include motivating the community and creating public awareness through education and incentives. The success of this approach depends on the cultural, regulatory, and economic priorities of the state at issue. However, the experience of many countries shows that education or increased public awareness has led to successful implementation of regulations pertaining to health and the environment, even when such implementation was adverse to their economic interest. Italy's experience in the Val Bormida area, Cengio, Savona is a good example.(28) The Val Bormida inhabitants were economically dependent on ACNA, an organic chemical plant that had caused serious pollution of the soil, the ground and surface waters, and the air in that region. Despite their prevailing economic interests, the local population, through negotiations, obtained concessions from ACNA favorable to the environment. This involved a combination of two systems of environmental regulation: (a) economic regulation by the ACNA Group and trade unions; and (b) public regulation through legislative action by setting limits on emissions. This case also illustrates the possibility that employers and employees together can take action to protect the environment without state intervention. This example illustrates the importance of public awareness, education, dissemination of information, and participation in order to achieve enforcement.(29) Furthermore, it constitutes an example of a successful personal relationship between enforcement program staff and managers to provide an incentive towards attaining compliance.

E. Roles and Responsibilities of NGOs, Individuals, and

Enforcement Authorities

Two other elements that play a significant role in any strategy involving the enforcement of environmental laws are the roles of citizens and nongovernmental organizations (NGOs), and the specialization of environmental enforcement. Citizens and NGOs can help detect violations and notify the authorities, apply public pressure, and bring suits to enforce the law. In the context of community pressure, the role played by NGOs merits particular attention. NGOs have been very successful in enforcing compliance through community pressure. A good example of including NGOs in an enforcement system would be the European Union (EU) implementation of Environmental Impact Assessment (EIA) procedures in national laws, once it is completely integrated.(30)

Another element of efficient enforcement is specialized training. This entails training specialized officials and police dealing with environmental issues to detect environmental infractions and to support other enforcement authorities in the detection of environmental offenses. Strengthening the involvement and the specialization of public prosecutors in enforcing environmental laws also warrants particular attention.

With respect to the roles and responsibilities of environmental enforcement authorities, the key issues to be determined concern the following two queries. First, how should responsibilities for enforcement be divided among the various levels of government (national, region, provincial, and local)? This question addresses the vertical allocation of powers between the different levels of environmental authorities, which in the continental law system might implicate constitutional amendments. In this context, two factors should be taken into account: 1) the technical complexity of the problem to be regulated and enforced; and 2) the geographical areas where ecological impact is likely to result from the activity to be regulated and enforced.

Second, which governmental authorities should be involved (specifically created authorities or different sectorial authorities such as health or agriculture)? This query concerns the horizontal division of power between authorities involved in enforcement, particularly whether specific regulatory authorities should be involved and, when specific enforcement authorities do not exist, whether such authorities should be created. In allocating enforcement authority, conflicts of interest should be avoided between management and enforcement functions vested in the same authority.

Forcing public authorities to comply with environmental requirements is usually not an easy task, even if pursued by governmental agencies. The reasons for this are manifold: fines for publicly owned and operated facilities are normally paid out of the state's budget; there are problems involved in making managers and operators of public facilities liable for failing to comply with environmental requirements; and politics might also interfere with enforcement by one governmental body against another.

On the issue of enforcing environmental requirements against public authorities, the United States has had much experience.(31) With a few exceptions, the U.S. federal government has waived its immunity from fines and monetary penalties and has given both state governments and citizens the right to take the federal government and its agencies to court if the governmental authorities do not comply with federal, state, or local environmental requirements.(32) EPA can pursue enforcement against other government agencies,(33) but it generally does not seek penalties nor does it take civil judicial action against state agencies. EPA can develop bilateral administrative compliance orders and agreements with other agencies, can issue some unilateral administrative orders if these orders are not disputed,(34) and can also hold government officials criminally responsible for their actions. To resolve disputes, EPA uses an internal appeals system within the Executive Branch of the government.(35) The enforcement process is useful to force agencies to budget for environmental problems.

F. Other Developments

1. NGO and Citizen Standing

It is necessary grant citizens, and interested citizen associations in particular, standing (locus standi) to secure judicial review. These rights ensure the proper administration of environmental laws and influence agencies to comply with the laws.

Standing rights involve citizens and interested associations in the enforcement of environmental laws and regulations. While enforcement often lies within an agency's discretion, citizen suits have an undeniable effect of raising awareness and activating politicians.

Standing rights not only secure judicial review, but can also directly involve the individuals and associations in enforcement. The divergent provisions of certain EU Member States concerning the right of interested individuals and associations to bring actions before the national courts for noncompliance with EU environmental legislation affect the ability of the Commission to monitor the effective implementation of environmental legislation.(36) In fact, the denial of an individual's standing to challenge a Member State's failure to fulfill an EU requirement might bring into question the doctrine of direct effect.(37)

A series of cases concerned with the application of the direct effect doctrine determined that even if no procedural rules provide a remedy under national law, the doctrine would allow enforcement of Community rules.(38) The direct effect doctrine provides an individual having sufficient interest with standing rights only where or when the protection of his health and the improvement in his life or his welfare is affected.(39) In such cases, the individual affected by an authority's failure to enforce such rights is entitled to bring a case before the national courts by which the EU rights must be upheld.(40)

Although the cases stress the importance of the direct effect doctrine in ensuring that the Member States comply with EU regulations, they also indicate that standing rights are restricted in nature as the standing rights apply only under certain conditions. The Commission, aware of this vacuum, considered an access to justice' directive, but decided not to pursue this activity. Two private research institutes -- Oko-Institut of Darmstadt, Germany and the Foundation for International Environmental Law and Development (Field) -- nonetheless carried out a study on this topic and issued a Draft Proposal for an EC Directive on Access to Justice providing standing in environmental matters for environmental associations.(41) The objective of the proposed directive is to ensure practicable access to the courts and to administrative complaints facilities for public interest groups in environmental matters.(42)

Contrary to the more liberal standing rules in the United States,(43) the proposed directive attempts to recognize access to courts only for environmental associations but not individuals. This is a compromise solution based on the legal traditions of many Member States that disapprove citizen suits as such, yet recognize specific rights of action to environmental associations. Associations usually are more effective in developing the issues in court, have more funds for litigation, and have more expertise (scientific, technological, and legal) required for promoting public interests in court.(44)

In addition, many European states recognize public standing in environmental cases. The United Kingdom is increasing standing rights accorded to environmental associations. In a 1993 case addressing the authorization granted for the construction of a spent nuclear fuel reprocessing plant in Sellafield, Cambria (THORP I), Greenpeace challenged the authorization decision of the governmental authorities, namely, Her Majesty's Inspectorate of Pollution (HMIP) and Ministry of Agriculture, Fisheries and Food (MAFF). The court took into account Greenpeace's international reputation as an environmental association in ultimately granting standing. The court identified the intrinsic difficulty in denying standing to pressure groups, stating

It seems to me that if I were to deny standing to Greenpeace, those it

represents

might not have an effective way to bring the issues before the court. ...

[W]ith its particular experience in environmental matters, its access to

experts

in the relevant realms of science and technology (not to mention the law),

[Greenpeace] is able to mount a carefully selected focused, relevant and

well-argued

challenge.(45)

Other examples include the Netherlands, where a new Act gave rights of action to representative groups in civil lawsuits.(46) In addition, the recent French Act on the Reenforcement of Environmental Protection, the so-called Barnier Act,(47) devotes a section to public participation by an association in the protection of the environment.(48) Belgium's 1993 Right of Action Relating to the Protection of the Environment Act recognizes a restricted right in associations: they must be registered as environmental protection associations for at least three years, can challenge specific elements in environmental statutes, and may request either injunctive relief or imposition of preventive measures.(49)

2. Environmental Managers

Another enforcement mechanism is the requirement that major commercial enterprises and plants designate environmental officers or managers. This requirement targets companies that are likely to contribute considerably to pollution or other kinds of environmental degradation. This approach has been successful in Germany.(50) The appropriate governmental authorities could issue guidelines on the qualifications required of environmental managers and officers.

The rights and duties of environmental managers should include 1) implementing legal regulations; 2) implementing measures and conditions of specific environmental media aimed at the protection and economic use of the media concerned; 3) keeping records of the results of environmental check-ups or audits; 4) informing the public of any shortcomings and suggesting measures to the plant's operator regarding their remediation; 5) proposing the application of suitable technologies; 6) effecting the development and implementation of measures within the plant aimed at environmental restrictions and preventing or decreasing waste production; and 7) educating the staff working in the plant on the measures associated with the use of environmental methods. Finally, companies should not discriminate against environmental managers for fulfilling these various duties and tasks.

3. Covenants and Voluntary Regulation

Three European countries, Denmark, the Netherlands, and Spain, are involved in the application of eco-contract or covenants that supplement the traditional command-and-control approach for implementing environmental objectives. The United States has adopted the negotiation process of covenants into its rulemaking procedure by incorporating the opinions of the industry and other concerned parties in the formulation of its environmental regulations.

a. Denmark(51)

Article 10 of the Danish Environmental Protection Act of May 28, 1991 contains framework legislation on contractual arrangements between the government and industry to enforce the principle of clean technology.(52) The basic idea behind this quasi-regulatory approach is to prevent pollution through close cooperation between public institutions and industry. Article 10 empowers the Minister for the Environment to establish binding objectives for reducing the use and emission discharge of specified products and materials.(53) These objectives may be regarded as policy targets leading to the issuance of either orders or guidelines addressed to individual industries (for example, setting emission limits), or contractual agreements between the government and enterprises implementing measures to attain the Ministry's objectives.

The Act empowers the Minister to determine the contents of an eco-contract.(54) The Minister lays down rules concerning the framework and general conditions for contracts. This may include designation of the responsible party and its power to implement the contract; provisions on the implementation of the contracts and access to information (except for trade secrets); and measures for monitoring implementation, comprised of administrative inspections to be carried out by the responsible industry. The Act also officially recognizes NGOs that are not a party to the contract and grants them the right to be heard before the conclusion of the contract.(55) The Minister can change the existing permits in accordance with the provisions of the contract or legislation supplementing the contract.(56) Permits in Denmark are considered as carrying quasi-rights, so the possibility of supplementing or amending contracts through this system is a novel, but important, development. The change of permit conditions would otherwise be considered an expropriation of a right. Although it is still early, this semi-legislative, regulatory system appears to be more successful than voluntary agreements or covenants in the Netherlands.

b. The Netherlands(57)

The Dutch program, which started in the 1980s, is based on loose agreements between the competent ministries and different industry branches or individual compares. The first Dutch National Environmental Policy Plan (NEPP) was published in 1989. It noted that covenants are significant instruments for the efficient and effective implementation and enforcement of environmental policy.

A Dutch covenant is an agreement between national, provincial, and local authorities and industry sectors or companies for the purpose of reducing the adverse environmental consequences from production processes, energy use, or products.(58) The NEPP identified target groups that were then divided into five broad categories -- Agriculture, Traffic and Transport, Building, Consumers, and Industry.(59) The NEPP's goal was to raise the target groups' awareness of their responsibility for the reduction of emissions and assist them in formulating their own environmental plans for attaining the required goals through self-regulation.(60) While the earlier covenants were loose agreements, later covenants were better designed.(61) The later covenants incorporated the government's overall strategy on legislation, subsidies, and education, and attempted to solve the more rigid environmental problems.(62) While some covenants Were not so successful,(63) the Dutch experienced great success in other sectors of the industry.(64)

Covenants give companies the freedom to attain their own environmental objectives, which embody precise intermediate or end targets within fixed periods for emissions with regard to water, air, waste disposal, soil, cleanup, noise, odor, and energy use. The covenants also include procedures for amending or canceling a covenant, monitoring a company's environmental plans, and publishing the monitoring results. On the other hand, because they are private agreements, covenants do not provide control mechanisms accessible to the public. Negotiations for a covenant can be lengthy, thereby delaying implementation of environmental policy. Furthermore, opposing clauses included in covenants may hinder the promotion of new tools for the enforcement of environmental policy. For example, in 1992, as industry fought an energy tax, several companies negotiated a clause in their covenants that stated that the introduction of an energy tax may lead to the termination of the covenant.(65)

If covenants can be formulated as a mix of regulations and agreements, they may lead to more effective enforcement tools while taking into consideration the access or legal review rights of third parties. Several other EU Member states -- including France, Finland, and Germany(66)-as well as the EU itself(67) are looking at covenants to promote their environmental policies. The Chairman of the European Parliament's Committee on the Environment, Public Health, and Consumer Protection required the establishment of standards for voluntary agreements by directives or regulations at the EU level.(68) This review recommends using covenants as long as they are considered complementary, but not an alternative, to, enforcement and policy-promoting tools.

c. Spain

The Autonomous Communities created under the Common Procedure Act No. 30 of 1992 are empowered to enter into certain agreements or "conventions" with the central government. For example, on June 26, 1995, the Autonomous Community of Cataluna concluded three conventions with the central government.(69) The first convention deals with activities derived from the National Plan on Hazardous Waste. The project should be completed between 1995 and 2000. The second convention deals with issues derived from the National Plan on the Treatment of Urban Waste Water, which is to be completed from 1995 to 2005. The Spanish Ministry of Public Works Transport and the Environment (MOPTMA) subsidized twenty-five percent of the total investments of the projects. The last convention concerns activities to be undertaken in accordance with the State Plan 1995-2005 for the clean-up of contaminated sites. MOPTMA will subsidize fifty percent of this project.

The Autonomous Community of Cataluna prepared a list of hazardous wastes produced in its territory and began to enforce its own applicable plans simultaneously with the State's plans.70 The Central Ministry undertakes to carry out the projects, subject to the restrictions of the National Plan on Environmental Protection and the EU regulation regarding the creation of a Cohesion Fund.(71)

d. United States

In 1983, EPA initiated the negotiated rulemaking process, which may be considered an alternative method of environmental enforcement. A proposed regulation becomes effective following negotiation and agreement between the agency, industry, and other concerned parties. After the agency has complied with the normal notice and public comment protection provisions of the Administrative Procedure Act,(72) the proposed regulation becomes enforceable. So far, EPA has initiated formal mediated negotiations on sixteen regulations relating to various aspects of environment law.(73)

Although the end product of the negotiated regulation process is a public rule, the process has its parallels in the philosophy of European covenants. The U.S. Negotiated Rule Making Act,(74) Signed in 1990 by President Bush, set a model for Hungary, Poland, and the Czech and Slovak Republics as yet another enforcement tool. On September 30, 1993, President Clinton issued an Executive Order requiring all federal agencies to follow the Act and other methods of public consultation when developing new regulations.(75)

4. Environmental Auditing

In order to attain full compliance with environmental law, a system of environmental auditing should be set up, and the major polluters should participate in this system. This section describes the EU and the U.S. auditing schemes as additional tools for ensuring compliance with environmental legislation and policies.

a. European Union

Based on EU's Article 130s and subsequent work, the EU adopted a regulation(76) allowing Voluntary participation by industrial companies in an eco-management and audit scheme (EMAS). The objective of the EMAS is to "promote continuous improvements in the environmental performance of industrial activities."(77) The regulation pursues U& objective in three ways. First, it establishes and implements environmental policies, programs, and management systems for companies.(78) EMAS then provides for the "systematic, objective and periodic evaluation" of these elements.(79) Finally, the EU scheme requires public disclosure of environmental performance.(80) Environmental audits are one of the suggested management tools to be used in the systematic, objective, and periodic evaluation of the performance of the organization.(81)

Like its American counterpart, the EU scheme is voluntary.(82) The principle is open to an industrial activity at one or more sites but, as in the United States, it can also apply to other sectors such as public services and transportation.

In order to achieve its aims, the regulation requires a company 1) to establish and implement environmental policies, programs, and management systems; 2) to provide public information in the form of periodic reports on the company's environmental performance, programs, objectives, and management systems;(83) 3) to ensure awareness and training of workers in the establishment and implementation of the scheme; 4) to conduct periodic assessments of the scheme; and 5) to record data to ensure the company's compliance with regulations.

In order to participate in the scheme, a company's site must be registered under article 3 of the Directive. The registration must fulfill the following conditions: 1) the company must adopt an environmental policy, in accordance with the requirements listed in Annex I, and commit to the continuous improvement of environmental performance, with a view to reducing environmental impacts to levels not exceeding those corresponding to economically viable application of best available technology; 2) the company must conduct an environmental review of the site;(84) 3) in accordance with Annex I, the company must introduce an environmental program for the site together with an environmental management system applicable to all activities at the site; 4) the company must carry out audits by either internal company staff or by external auditors, at intervals of no more than three years;(85) 5) the company must set objectives on the basis of the audit findings to improve the environmental performance in order to achieve the previously established commitments;(86) 6) the company must prepare an environmental statement (ES) on each audited site, consisting of the information required in Annex V; 7) as described by Article 5, the ES shall be designed for the public and written in a concise, comprehensive form;(87) and 8) the company must have the audit and ES processes verified and validated by external verifiers.(88)

Compliance with all these requirements entitles a company to have its name published annually in the EU Official Journal and to use the statement of participation on its documents.(89) In validating company compliance, the regulation requires that the system for accreditation and supervision for the environmental verifier be independent and neutral.(90) The European Parliament supports this requirement, which should provide flexibility in applying the scheme in accordance with the principle of subsidiarity.(91) One scholar reports that the United Kingdom (U.K) plans to take the lead in setting standards for an environmental management and a quality management system.(92) For example, the U.K. government proposed that the National Accreditation Council for Certification Bodies (NACCB) "should establish a single unified accreditation [system]" for auditors.(93)

In contrast to the EPA Policy on Environmental Audits that in principle tries to avoid any public disclosure requirement, the EMAS's Regulation endeavors to be "a true and fair [disclosure] of the environmental issues of relevance to activities at the site."(94) Nevertheless, the regulation requires external auditors and accredited environmental verifiers not to disclose any auditing information without company authorization.(95)

b. Germany

On December 7, 1995, Germany adopted the Federal Eco-Audit Act, which was issued to implement the EMAS regulation by allowing the voluntary participation of companies in the industrial sector in a Community eco-management and audit scheme.96 Although the Act has been in effect since December 15, 1995, Germany is still in the process of implementing the EMAS regulation.(97) In February 1995, the Federal Ministries of Economy and Environment and various business and trade associations reached a compromise in the implementation of the process.(98) The business and trade associations will establish a competent authority, in the form of a private limited company, to accredit independent environmental verifiers.(99) An expert committee composed of twenty-five experts will be created to determine the criteria for the accreditation of environmental verifiers.(100) The compromise also establishes an Appeals Committee to address decisions relating to accreditation and supervision of environmental verifiers.(101) The registration of sites will fall within the jurisdiction of local or regional Chambers of Industry, Commerce, and Crafts.(102)

c. Italy

Italy has also had considerable experience in implementing EMAS regulations through a series of pilot projects promoted and financed by the European Commission. The most significant of these pilot projects is overseen by Studio Baldin Euroquality, Milano. The Studio is assisting four small and medium-sized enterprises (SMEs), operating in Italy, France, and the United Kingdom, with environmental concerns. The project aims to influence private institutions operating in industrial sectors such as chemical production, pulp and paper industry, and electronic component manufacturing, where environmental problems are of a serious nature.

A second pilot project is conducted by ERVET (Enterprise Development), which concerns the Emilia-Romagna region.(103) The project, which is co-funded by the EU, assists companies subject to EMAS regulation by raising their environmental awareness of SMEs and trains companies in the preparation of audits on environmental issues and demonstration actions.(104)

The third pilot project, entitled A.P.I. ECO Project, concerns the Lazio Region.(105) The target of this project is to investigate the implementation of EMAS carried out in eight SMEs in the Lazio Region.(106) In addition to conducting a thorough environmental review in order to implement the EMAS in the eight SMEs in accordance with the EU EMAS regulation, the project offers practical training experience in environmental analysis and auditing to a large group of technician.(107) Furthermore, the project collects information used to study, evaluate, and develop topics relating to EMAS, such as direct and indirect costs of EMAS implementation and related benefits.(108) The sectors chosen for this project are industries involved in producing wood products, nonmetallic mineral products, rubber and plastics products, machinery equipment, laundry services, and chemicals and chemical products.(109) The project should be completed by the beginning of July 1996. Each SME should draft an environmental statement and schedule a final conference for disseminating the results.(110)

Another pilot project, which started in February 1994, concerned the implementation of EMAS principles in the Italian chemical industry.(111) The project was conducted by the Institute for Economics and Politics of Energy, Environment and Technology (IEFE) of Bocconi University in Milan, in collaboration with the Chemical Industry Association and the Institute for Quality Certification in the Chemical Industry.(112) The principal objectives of the project were to provide information on EMAS and its implications to the chemical industry, establish guidelines for implementing EMAS, and train professionals who will be responsible for the implementation of EMAS. The scheme was applied to sites that were already familiar with acute environmental and pollution problems.

Several important conclusions were drawn from this project. First, environmental management values should be shared not only at the top management level, but also by all staff levels including lower staff members. (113) Second, substantial difficulties were encountered in the initial phase of environmental review and in the W phase of drafting an environmental statement.(114) Among the reasons for these difficulties, the inability of small companies to clearly communicate in drafting the environmental statement posed the greatest problem.(115) It was particularly important to make clear that there is a difference between the general environmental reports at the corporate level, which some of the multinational companies already had, and the statement regarding a single site requested by EMAS.(116)

SMEs faced further problems when they incurred the additional financial burden of having to hire outside experts to implement EMAS, since they themselves lacked the expertise. Moreover, due to a lack of education, SMEs were not sufficiently motivated to use the certification advantage of EMAS that provided a competitive benefit. However, the lack of in-house environmental management experts may be overcome by introducing a system similar to the Environmental Manager or Officer that was instituted by the German legislature.(117)

The conclusions of the study drawn from the implementation of EMAS by the chemical industry indicated that 1) the objective to improve the internal efficiency would lead to continuous improvement; and 2) the importance given to environmental issues would result in social acceptability, namely by facing problems through more transparency and credibility.(118)

The results obtained through this particular project, as well as the other projects mentioned above, demonstrate that the implementation of EMAS principles in Italy was comparable to other large western countries. However, as was the case in Italy, the existence of inexperienced and underfunded SMEs in environmental management complicated the implementation of EMAS principles.(119)

d. United States

In the United States, EPA published an Environmental Auditing Policy Statement encouraging regulated entities to perform self audits.(120) EPA defines environmental audits as a "systematic, documented, periodic and objective review by regulated entities of facility operations and practices related to meeting environmental requirements."(121)

Despite their numerous and undisputed advantages, environmental audits, as practiced in the United States, have a marked and intensely debated disadvantage. Namely, environmental audits are subject to the threat of civil or c&" liability due to shortcomings in the current privileges system caused by possible disclosure and adverse use of environment its.(122) On the other hand, granting total secrecy or privilege to audits would surely undermine environmental interests and the public's right to know. New legislation on privileged audits adopted by several states and EPA's efforts to change its policy in that direction(123) have allowed NGOs and citizen groups to participate directly in environmental and safety auditing.

American NGOs have developed a new approach on how to implement environmental audits in industry. Citizens groups and trade unions ask firms to disclose all details of their operations and request the right to conduct on-site audits of the firm's industrial environmental and safety practices. This new approach provides transparency in business performance. By establishing technical assistance funds, corporations may avail stakeholders to obtain expertise for evaluating major industries' pollution problems and control measures.

e. Environmental Auditing at the International Level

To improve the worldwide environmental performance of companies that have relied on auditing, nations felt a need for international cooperation and coordination. Following the adoption of a business charter for sustainable development by the International Chamber of Commerce (ICC),(124) the second World Industry Conference on Environmental Management (WICEM 2) took place in Rotterdam in April 1991. The Conference publicized the sixteen principles adopted by the ICC task force, the last of which concerns auditing performances.(125) Entitled "Compliance and Reporting," this principle includes the following compliance elements:

To measure environmental performance; to conduct regular environmental

audits and assessments of compliances with company requirements, legal

requirements and these principles; and periodically to provide appropriate

information to the Board of Directors, shareholders, employees, the authorities

and the public.(126)

The Bergen Conference provides another international effort at environmental enforcement through audits. At the conference, thirty-four countries, members of the UN Economic Commission for Europe (ECE) including Canada, the United States, and the former Soviet republics; and various NGOs endorsed the principles of the ICC task force charter. The charter includes a definition of environmental auditing and some principles for environmental codes of conduct.(127) This developing trend favors internationalization of standards regarding effective auditing. The new standards take the best features of the European schemes (specifically, the EU Regulation on EMAS), as well as those of the United Kingdom and United States practices.

The EMAS method is comprehensive, integrated, and standardized. It provides a more liberal view of public disclosure of information relating to A company's environmental performance. Thus, it respects the principles of transparency and credibility of a company's activities. Another significant feature of the EMAS regulation is the importance it places on small- and medium-sized company participation in the Community's eco-management and audit scheme. It promotes this by creating technical assistance measures and structures aimed at providing each firm with the necessary expertise and support.(128) Despite its drawbacks, the experienced United States audit scheme may provide guidance to its European counterpart, particularly with respect to means for compelling an environmental audit.

III. Conclusion

Much has been said about improving the enforcement deficit in environmental law. In this Article, I have tried to list several elements for protecting environmental interests by introducing measures that should lead to better application and enforcement of laws, regulations, and other measures covering both substantive and procedural law. These elements fit together like mosaic tiles, each representing a particular piece that complements the others to create the final picture. Some authors recommend using these tiles as options or alternatives, but such a proposal might impede effective implementation. Each of these elements fulfills important functions in an effective environmental control system, and therefore should be considered as complementary elements establishing and developing an enforcement scheme.

Furthermore, I would like to offer some implementation strategies discussed in October 1992(129) when I was organizing the Council of Europe's Second Colloquy on Environmental Law in East and West, which took place in St. Petersburg. The contours of the discussion were deliberately left general in order to serve as a remedy to national, European, and global needs, but the discussion was based on long-time experience. Hopefully, it will provide a constructive implementation path.

1) The need for establishing implementation paths. When drafting laws it is absolutely necessary that they should not have far-reaching objectives without also having provisions prescribing means to attain the objectives. One way or another, the law or regulation must lay down implementation paths or at least provide implementation instruments suitable for formulating implementation provisions and enforcement paths. In other words, a good environmental legal system must provide rules that are applicable under different implementation stages; include orders or other relevant binding measures that follow up the implementation of the overall objectives that have not yet been attained; and provide a good basis for creating or establishing judicial and administrative responsibilities for the implementation processes at all stages.

2) The need for a systematic -- integrated and comprehensive -- legislation approach. A first and more topical approach would be to adopt an integrated pollution prevention and control approach. As the EC Draft Council Directive on Integrated Pollution Control (IPPC) proposed,(130) an overall Community-wide objective should be to prevent or minimize emissions from industrial plants to the air, water, and land by establishing a general licensing framework. This should avoid the drafting of piecemeal and multimedia legislation embodying contradictory standards, procedures, and so forth.

A second possibility is emphasizing the importance of compatible rules within the pertinent law. It is common for nations to have specific laws on water, air, waste, public health, urban planning, and nature conservation. The lack of harmonized standards poses several problems. These problems may be minimized if the standards and procedures prescribed by such laws are basically the same, at least as far as environment protection and the administrative and judiciary systems are concerned. This should lead to a harmonized interpretation and application of standards and procedures. Therefore, the remedy for a fractionate legal system would not necessarily mean reconstructing the entire system but at least introducing comprehensive environmental standards and procedures, or amending the existing procedures and standards in such a way that they will express or reflect the same environmental policy.

3) Striking a balance between the needs for flexible legislation and precise guidelines. Many countries use either detailed legislation or framework legislation. Detailed legislation tends to be obsolete, while framework legislation tends to open itself to arbitrary implementation. Therefore, general principles or guidelines are necessary to interpret and implement a flexible environmental law. These principles include the precautionary principle, the cooperation principle, the substitution principle, maintenance of biodiversity, nondegradation of natural resources, the polluter-pays principle, access to information and the participation principle, the principle on the burden of proof, and the principle of best available technology.(131) These principles should orient the decision makers when they take decisions interpreting or enforcing certain issues under different circumstances.

National and global environmental deterioration has gone too far, and confidence and patience in experimenting with new tools of enforcement are diminishing. However, if we can make use of the above mosaic tiles wisely in a complementary and well-balanced way, we might still achieve the objectives required for an effective implementation and enforcement mechanism.

(1) On July 10, 1976, a cloud of dioxin gas escaped from a Swiss chemical plant in Seveso, Italy. Thomas Whiteside, The Pendulum and the Toxic Cloud: The Course of Dioxin Contamination 133 (1979). The accidental leak caused 193 injuries, and 730 people were evacuated. Mohan A. Prabhu, Toxic Chemicals and Hazardous Wastes: An Overview of National and International Regulatory Programs, 11 Int'l Env't Rep. (BNA) 687, 689 n.31 (Dec. 14, 1988).

(2) The Union Carbide pesticide plant in Bhopal leaked toxic gases into a heavily populated area in the early morning of December 3, 1984. See Robert D. McFadden, India Disaster: Chronicle of a Nightmare, N.Y. Times, Dec. 10, 1984, at A1, for a detailed account of the tragedy. The leakage caused the worst environmental disaster in history, resulting in approximately 2,800 deaths and 50,000 injuries. Prabhu, supra note 1, at 689 n.31.

(3) During a test of a turbine generator system at the nuclear power plant in Chernobyl on April 26, 1986, a nuclear meltdown caused a massive radiation leak. U.S. Nuclear Regulatory Comm'n, Report on the Accident at the Chernobyl Nuclear Power Station 4-1 to 4-2 (1987). The scope of the radiation contamination extended to Eastern and Western Europe. Id. at 8-1 to 8-18.

(4) On November 1, 1986, a fire at a warehouse of Sandoz A.G., one of Switzerland's three largest chemical companies, caused 30 tons of herbicides, fungicides, pesticides, and dyes to spill into the nearby Rhine river. Thomas W. Netter, Spill's Effect on Rhine May Be Less Than Feared, N.Y. Times, Jan. 11, 1987, [sections] 1, at 4. The chemical spill killed hundreds of thousands of fish and left tens of thousands of people living downstream in West Germany and the Netherlands without drinking or bathing water for days. Id.

(5) See also Sevine Ercmann, Introduction to Transatlantic Colloquy on Cross-Border Relations: European & North American Perspectives 9-13 (Sevine Ercmann ed., 1987).

(6) The Conference was held in response to a request by Poland's Ministry of Environmental Protection, Natural Resources and Forestry.

(7) Principles of Environmental Enforcement, [sections] 1-2 (5th draft, Oct. 25, 1991) (on file with author). These notions were first defined at the First Conference on Environmental Enforcement, which took place in Utrecht, Netherlands, in May 1990. For a more detailed definition, see 1 Third International Conference on Enforcement, April 25-28, 1994, Oaxaca, Mexico 15-16 (Jo Gerardu & Cheryl Wassermann eds., 1994) [hereinafter Third International Conference].

(8) In the case of the European Union (EU), negotiations are also conducted with relevant authorities of the Member States.

(9) Eric G. Hostetler, Promoting the Effective Implementation of Multilateral Environmental Treaties: The Role of Non-Government Organizations, in Strategies for Environmental Enforcement 279, 290-97 (Stanford Environmental Law Society ed., 1995).

(10) Alan E. Boyle, Saving the World? Implementation and Enforcement of International Environmental Law Through International Institutions, 3 J. Envtl. L. 229, 229 (1991).

(11) Christen C. White, Regulation of Leaking Underground Fuel Tanks: An Anatomy of Regulatory Failure, 14 UCLA J. Envtl. L. & Pol'y 105, 176 (1996).

(12) Id.

(13) Id.; Bernard H. Oxman, The Relevance of the International Order to the Internal Allocation of Powers to Use Force, 50 U. Miami L. Rev. 129, 140 (1995).

(14) Susan E. Leckrone, Turning Back the Clock: The Unfunded Mandates Reform Act of 1995 and Its Effective Repeal of Environmental Litigation, 71 Ind. L.J. 1029, 1044 (1996). (15) Susan L. Pilcher, Ignorance Discretion, and the Fairness of Notice: Confronting "Apparent Innocence" in the Criminal Law, 33 Am. Crim. L. Rev. 1, 35 (1995).

(16) E.g., Paris Convention for the Prevention of Marine Pollution from Land-Based Sources, opened for signature June 4, 1974, art. XI, 13 I.L.M. 352; Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Mar. 22, 1989, art. X, para. 2(b), S. Treaty Doc. No. 5, 102d Cong., 1st Sess. (1991), 28 I.L.M. 649 (entered into force May 5, 1994); Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, art. VIII, paras. 6-7, 27 U.S.T. 1087, 993 U.N.T.S. 243 (requiring parties to maintain records of trade in listed species and to report on the types of permits granted); Protocol on Environmental Protection to the Antarctic Treaty, Oct. 4, 1991, art. III, para. 2(c)-(e), 30 I.L.M. 1455; International Convention for the Prevention of Pollution from Ships, Nov. 2, 1973, art. VI, 12 I.L.M. 1319 (requiring reports on action taken upon infractions and on incidents caused by harmful substances). See Boyle, supra note 10, at 237.

(17) Boyle, supra note 10, at 236-37.

(18) See infra Part II.F.3.

(19) Id.

(20) E. Donald Elliot, Environmental Enforcement and Economic Realities, in Transnational Environmental Law and Its Impact on Corporate Behavior 107, 109 (Eric J. Urbani et al. eds., 1994).

(21) Id. at 110.

(22) Id. at 111.

(23) See Marcel M.T.A. Brus et al., Balancing National and European Competence in Environmental Law, 9 Conn. J. Int'l L. 633, 665 (1994).

(24) In the United States, criminal charges require a "culpable mental state." For instance, the Model Penal Code drafted by the American Law Institute lists four such mental states: purposely, knowingly, recklessly, and negligently. Model Penal Code [sections] 2.02(2)(a)-(d) (Official Draft 1962).

(25) David E. Filippi, Note, Unleashing the Rule of Lenity: Environmental Enforcers Beware!, 26 Envtl. L. 923, 948 (1996); Gregory A. Zafiris, Comment, Limiting Prosecutorial Discretion Under the Oregon Environmental Crimes Act: A New Solution to an Old Problem, 24 Envtl. L. 1673, 1674 (1994).

(26) Filippi, supra note 25, at 948.

(27) This is a sanction mainly used in the United States. The EU could make use of this sanction too by withholding funding from structural funds.

(28) See Sevine Ercmann, Pollution Control in the European Community: Guide to the EC Texts and Their Implementation by the Member States 549 (1996).

(29) The association working for the revival of the Val Bormida region published a newspaper, La Voce della Val Bormida, disseminating environmental information locally and demanding the closure of the plant. See id.

(30) See Council Directive 85/337, art. 6, 1985 O.J. (L 175) 40; see also Report from the Commission of the Implementation of the Directive, COM (93)28 (reflecting the inefficiencies of implementation in 12 Member States and making proposals for improvements). After the UN-ECE Convention on Environmental Impact Assessment in a Transboundary Context (ESPOO Convention) of 25 February 1991, the Commission made a proposal to amend Directive 85/337 in order to ensure its harmonious implementation. COM(93)575 final. See also Robert J. Cerny & William R. Sheate, Strategic Environmental Assessment: Amending the EA Directive, 22 Envtl. Pol'y & L. 154, 154-55 (1992).

(31) See Utrecht Conference on Environmental Enforcement, Items 7-22 (May 1990) (on file with author). In this context particular reference should be made to the enforcement of environmental laws at government-owned facilities. In 1992, Congress amended the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. [subsections]6901-6992k (1994), to include a sovereign immunity ban. Federal Facilities Compliance Act of 1992 (FFCA), Pub. L No. 102-386, 106 Stat. 1505 (amending RCRA at 42 U.S.C. [subsection]6961). See also Edwin F. Lowry, Enforcement of Environmental Laws at Government-owned Facilities: Some Theoretical and Practical Considerations, in 1 Third International Conference, supra note 7, at 475, 475-76.

(32) 42 U.S.C. [sections]6961. See also Lowry, supra note 31, at 475.

(33) 42 U.S.C. [sections]6961(b)(1).

(34) Id. [sections]6961(b)(2). See generally 1 Law of Environmental Protection 8-36 to 844 (Shelton M. Norick et al. eds., 1996).

(35) See Law of Environmental Protection, supra note 34, at 4-19 to 4-20.

(36) Fiona Gaskin, The Implementation of EC Environmental Law, 2 Rev. Eur. Community & Int'l Envtl. L. 335, 339 (1993).

(37) Ludwig Kramer, The Implementation of Community Environmental Directives Within Member States: Some Implications of the Direct Effect Doctrine, 3 J. Envtl. L. 39, 56 (1991); Han Samsen & Chris Bovis, Enforcement of EC Environmental Law an4d the Implications of the Francovich Judgement Water Law, Nov. 1992, at 184-88; see also Joined Cases C-6/90 & C-9/90, Francovich, Bonifaci v. Italian Republic, 1991 E.C.R. I-5357, [1993] 2 C.M.L.R. 66 (1991). With respect to the role played by Article 5 of the EC Treaty, applying the principle of cooperation between the Community and the national courts and the direct effect doctrine, reference should be made to the Simmentahal and Factortame cases. Case 106/77, Amministrazione delle Finanze dello Stato v. Simmenthal S.p.A., 1978 E.C.R. 629, [1978] 3 C.M.L.R. 263 (1978); Case C-213/89 The Queen v. Secretary of State for Transport ex parte Factortame Ltd., 1990 E.C.R. I-2433, [1990] 3 C.M.L.R. 1 (1990).

In the Simmenthal case, the European Court of Justice as a consequence of the direct effect of Community rules, stated:

[E]very national court must ... apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it, whether prior or subsequent to the Community rule. This extends to any provision of a national legal system and any legislative, administrative or judicial practice which might impair the effectiveness of Community law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions which impair prevent Community rules from having full force and effect are incompatible with those requirements which are the very essence of Community law. Simmenthal, 1978 E.C.R. at 644.

Factortame further developed the direct effect principle by stressing that "it is for national courts, in application of the principle of cooperation laid down in Article 5 of the EEC Treaty, to ensure the legal protection which persons derive from the direct effect provisions of Community law." Fractortame, 1990 E.C.R. at 2473 (emphasis added) citations omitted).

The Court of Justice in a recent judgment has further developed the individual's right to reparation by holding a Member State liable to an individual for breaching EU Community law. Joined Cases C-46/93 & C-4&(93, Brasserie du Pecheur v. Germany and The Queen v. Secretary of State for Transport ex parte Factortame, [1996] 1 C.M.LR. 889 (1996).

(38) Andrew Geddes, Locus Standi and EEC Environmental Measures, 4 J. Envtl. L. 29, 29 (1992); see also Case 811/79, Amministrazione delle Finanze dello Stato v. Ariete S.p.A., 1980 E.C.R. 2545, 2554-55, [1980] 1 C.M.LR. 316 (1980); Case 826/79, Amministrazione delle Finanze dello Stato v. Mediterranea Importazione Rappresentanze, Esportazione, Commercio, 1980 E.C.R. 2559, 2574-75 (1980).

(39) See, e.g., Judgment of the Court of Justice in Case C-339/87, Commission v. Netherlands, 1990 E.C.R. I-851; Case C-64/40, Commission v. France, 1991 E.C.R. I-1335 (1991). This constitutes a principle developed by the ECI judgments.

(40) See Kramer, supra note 37, at 39. Kramer lists various types of Community environmental directives which have a direct effect. The first lays down limit values, maximum levels, or concentration of substances in an environment medium or in another substance or product. Id. at 42-44. See, e.g., Council Directive 80/778, 1980 O.J. (L 229) 11 (quality of potable water); Council Directive 76/160, 1976 O.J. (L 31) 1 (quality of bathing water); Council Directive 80/779, 1980 O.J. L 229) 23 (air quality limit values and guide values for sulphur dioxide and suspended particulates); Council Directive 82/884, 1982 O.J. L 378) 15 (limit value for lead in the air).

The second type of directives prohibit certain activities or the use of certain substances. Kramer, supra note 37, at 44-46. See, e.g., Council Directive 78(319, art. 5, 1978 O.J. (L 84) 43 (disposal of hazardous waste). The third type concerns the right of an individual to be consulted in a procedure such as in the case of making an environmental impact assessment for a project. Kramer, supra note 37, at 47. See, eg., Council Directive 85/337, art. 6, 1985 O.J. (L 195) 40.

The fourth provides the right to information. Kramer, supra note 37, at 48. See, e.g., Council Directive 82/501, art. 8, 1982 O.J. (L 230) 1 (requiring that employees and residents be informed of safety measures in the event of an environmental accident); Council Directive 84/360, art 9, 1984 O.J. (L 188) 20 (requiring that the public be informed of applications of plants likely to cause pollution).

The last type of directives deal with the right to enforce compliance with other directives. Kramer, supra note 37, at 46-47. See, e.g., Council Directive 75/442, art. 6, 1975 O.J. (L 194) 47 (waste); Council Directive 78/319, art 12, 1978 OJ. (L 84) 43 (toxic and dangerous waste). See also Geddes, supra note 38, at 29.

(41) Fuhr et al., Access to Justice. Legal Standing for Environmental Associations in the European Community, Envtl. L. Network Int'l (ELNI) Newsletter, No. 1, 1994, at 3. The No. 1, 1994, at 3. The Proposal considered two relevant earlier Directives, Council Directive 90/313, 1990 O.J. (L 158) 56 (on the freedom of access to information on the environment) and Council Directive 85/337, 1985 O.J. (L 175) 40 (on the assessment of environmental effects of certain public and private projects). The former Directive grants an individual the right of access to information held by public authorities, and by bodies with public responsibilities relating to the environment Council Directive 90/313 at art 3. Additionally, the Directive provides that "a person who considers that his request for information has been unreasonably refused or ignored, or has been inadequately answered by a public authority, may seek a judicial or administrative review of the decision, in accordance with the relevant internal legal system" Id. art 4. On the other hand, the main objective of the EIA Directive is to promote the involvement of the public in decision-making processes. Council Directive 85/337 at art 1.

(42) See Fuhr et al., supra note 41, at 4-5.

(43) Based on the U.S. Constitution's Article III "case or controversy" requirement, standing in the United States focuses on the plaintiffs alleged injury in fact, causation, and redressability. Lujan v. Defenders of Wildlife 504 U.S. 555, 561-62 (1992) (holding that the plaintiffs did not have standing because they did not satisfy the injury-in-fact or redressability requirements). Proving these three requirements can be difficult, if not problematic. See, e.g., Lujan v. National Wildlife Fed'n, 497 U.S. 871 (1990); Conservation Law Found v. Reilly, 950 F.2d 38, 41 (1st Cir. 1991).

In addition to constitutional standing requirements, there are prudential standing requirements. For instance, the complainant must be within the "zone of interest" protected by the Constitution or by agency regulations. Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464, 475 (1982). A plaintiff cannot base her claim on a third party's interests, and she must prove her own interests. Warth v. Seldin, 422 U.S. 490, 508 (1975). However, once a plaintiff asserts her own injury and establishes standing, she may "argue the public interest in support of [her] claim that the agency has failed to comply with its statutory mandate." Sierra Club v. Mortor 405 U.S. 727, 737 (1972).

In a third group of cases, standing is based on statutes the confer a legal right on a plaintiff to enforce a statutorily created duty. See, eg., Havens Realty Corp. v. Coleman, 455 U.S. 353 (1982); United States Parole Comm'n v. Geraghty, 445 U.S. 388 (1980). A fourth group of cases confer standing based on section 10(a) of the Administrative Procedure Act, 5 U.S.C. [subsections]551-706, providing that "a person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. [subsections]702 (1994); see also United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 688-89 (1973).

Recent environmental statutes include "citizen suit" provisions allowing individuals to enforce statutory requirements against private parties and public authorities. Eg., Clean Water Act, 33 U.S.C. [sections]1365 (1994); Clean Air Act, 42 U.S.C. [sections]7604 1994); Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. [sections]9659 (1994). For limitations on citizen suits, see Defenders of Wildlife, 504 U.S. 555. Defenders of Wildlife requires members of the plaintiff organizations to give more detailed testimony to support their standing. Id. at 562-71. Eg., Seattle Audubon Soc'y v. Moseley, 798 F. Supp. 1473,1487-88 (W.D. Wash. 1992); NAACP v. American Family Mut. Ins. Co., 978 F.2d 287,293 (7th Cir. Lujan: Access to the Courts for U.S. Environmental Organizations, Envtl. L. Network Int'l (ELNI) Newsletter, No. 1, 1994, at 12-17; William A. Fletcher, The Structure of Standing, 98 Yale L.J. 221 (1988).

(44) See Fuhr et al., supra note 41, at 5.

(45) The Queen v. Inspectorate of Pollution, ex parte Greenpeace, [1994] 4 All E.R. 329,350 (Q.B. 1993). See also Joan Upson & David Hughes, Locus Standi: An Essential Hurdle in Judicial Review of Environmental Action, Envtl. L. & Mgmt., Aug. 1994, at 141; Paul Bowden & Jon Lawrence, Challenging State Decisions, 3 Eur. Envtl. L. Rev. 251, 251-56 (1994).

(46) P. Klik, Group Actions in Civil Law Suits: The New Law in the Netherlands, 4 Eur. Envtl. L Rev. 14 (1995) (analyzing Articles 3:305a, 305b of the Dutch Civil Code).

(47) Law No. 94-101 of Feb. 2, 1995, J.O., Feb. 3, 1995.

(48) Id., pt. I. Article 5-IV of the Act enables the association to take action jointly.

(49) See Gerrit Betlem, Standing for Ecosystems -- Going Dutch, 54 Cambridge L.J. 153, 160-70 (1995).

(50) See Wasserhaushaltsgesetz [The German Water Resources Management Act], v. 26.8.1992 (BGBI. I S. 1564). For its English translation, see German Environmental Law: Basic Texts and Introduction 251-89 (Gerd Winter ed., 1994). Article 21a of the Act obliges water users having permits to discharge more than 750 cubic meters of waste water in one day to appoint water pollution control officers. The environmental manager concept has also been introduced in the Slovak and Slovene Water Acts by the author, in cooperation with experts from the Federal Republic of Germany (Water Management Law Institute in Bonn), the Netherlands (University of Tilburg), and the United Kingdom (Montfort University, Leicester), under the Council of Europe's Demosthene Program for providing legislative assistance to central and eastern European environmental laws.

(51) For the operation of eco-contracts in Denmark, see Jesper Jorgensen, Legislation on `Eco-Contracts' in Denmark, in Environmental Contracts and Covenants: New Instruments For A Realistic Environmental Policy? 73 (Jan M. Van Dunne ed., 1993); Alfred Rest, New Legal Instruments for Environmental Prevention, Control and Restoration in Public International Law, 23 Envtl. Pol'y & L. 260, 263-64 (1993).

(52) Rest, supra note 51, at 264.

(53) Id.

(54) Danish Environmental Protection Act, art. 10, [sections] 2, paras. 1-3 (May 28, 1991).

(55) Id. art. 10, [sections] 3.

(56) Id. art. 10, [sections] 5.

(57) See generally Jan W. Biekart, Environmental Covenants Between Government and Industry in the Netherlands, 4 Rev. Eur. Community & Int'l Envtl. L. 141 (1995); see also Rest, supra note 51, at 264-66.

(58) See Biekart supra note 57, at 142; Niels S.J. Koeman, Bilateral Agreements Between Government and Industry in Dutch Environmental Law, 2 Eur. Envtl. L. Rev. 174 (1993).

(59) Biekart, supra note 57, at 142.

(60) Id.

(61) Id.

(62) Id. at 145-46.

(63) The packaging covenant of 1991 has hardly made progress and is burdening environmental NGOs in obtaining information on its progress. Id. at 143. The surface water covenant between the District Water Board of Delfland and a regional organization of greenhouse gardeners merely tolerated existing pollution generated by the gardeners themselves, and was eventually nullified by the court. Id.

(64) The covenant with petrol stations in 1991 resulted in successful cleanup of soil and groundwater pollution created by filling stations. Id. at 145. Also, the covenant with the electricity sector signed in 1990 successfully reduced toxic emissions from power plants. Id.

(65) Id. at 144; See generally, Koeman, supra note 58, at 174.

(66) See, e.g., Voluntary Accords Seen as Way to Protect Environment While Remaining Competitive, 18 Int'l Env't Rep. (BNA) 585, 587 (July 26, 1995). The Finnish government concluded a packaging waste agreement with Finnish industries to dispose of packaging in order to comply with the requirements of EC Directive 94/62 on Packaging and Packaging Waste. The content of the agreement must be approved by the EC Commission to ensure compliance with the directive. See Government Hopes Voluntary Agreement on Packaging Will Satisfy EU Requirements, 18 Int'l Env't Rep. (BNA) 339 (May 3, 1995). In Germany, the cooperation agreement is entitled "Self-Obligatory Agreement." See Drucksache [Fed. Parliament Printed Matter] 11/8166, Annex 6, 7.

(67) See, e.g., Commission Proposal for a Council Decision 81/971 Establishing a Community Information System for the Control and Reduction of Pollution Caused by Hydro-Carbons Discharged at Sea, 1985 O.J. (C 85) 123.

(68) Interview, Head of Parliament's Environmental Panel to Push for Carbon Tax, Green Accounting, 18 Int'l Env't Rep. (BNA) 436 (May 31, 1995).

(69) Agustin G. Ureta, Current Survey: Spain, 3 Envt'l Liability 98, 98 (1995).

(70) Id.

(71) Id. See Council Regulation 1164/94, 1994 O.J. (L 130) 1, cf. Council Regulation 792/93, 1993 O.J. (L 130) 74. Council Regulation 792/93 was adopted to establish an interim financial instrument to provide financial aid for environmental and transportation infrastructure construction projects in Member States that have a per capita gross national production (GNP) that is less than 90% of the EU average, such as Greece, Ireland, Portugal, and Spain. The Regulation also laid down the criteria and indicative allocation of the total resources among the beneficiary states for such financial aid. Council Regulation 1164/94 of 16 May 1994 replaced the interim Council Regulation 792/93.

(72) 5 U.S.C. [subsections] 551-559 (1994). The notice and comment procedure required by the Act is 1) development and publication of a draft rule; 2) solicitation, evaluation, and response to public comment; and 3) revision and publishing of the final regulation. Id. [sections] 553.

(73) Deborah S. Dalton, The Negotiated Rulemaking Process -- creating a New Legitimacy in Regulation, 2 Rev. Eur. Community & Int'l Envtl. L. 354, 354 (1993). One of these regulations withstood a challenge in court. Id. at 360 n.1 (citing Safe Buildings Alliance v. Environmental Protection Agency, 846 F.2d 79 (D.C. Cir. 1988), cert. denied, 488 U.S. 942 (1988)).

(74) Pub. L. No. 101-648, 104 Stat. 4969 (1990) (codified at 5 U.S.C. [subsections] 561-570, 581-590 (1994)).

(75) Exec. Order No. 12,866, 58 Fed. Reg. 51,735-51,751 (1993); see Dalton, supra note 73, at 355.

(76) Commission Regulation 1836/93, 1993 O.J. (L 168). This regulation was adopted at the EC Environment Minister's Meeting of March 23, 1993. The regulation includes 21 Articles and 5 Annexes. Annex I is on requirements covering environmental policies, programs, and management systems; Annex II provides the requirements concerning environmental auditing; Annex III specifies the requirements concerning the accreditation of environmental verifiers and the function of the verifier, Annex IV requires that the public be informed of the site's environmental performance; and Annex V requires information to be provided to the authorities at the time of application for registration or submission of a subsequent validated environmental statement.

(77) Id. art. 1, para. 2.

(78) Id. art. 1, para. 2(a).

(79) Id. art. 1, para. 2(b).

(80) Id. art. 1, para. 2(c).

(81) Id. art. 2(f).

(82) The scheme is to be revised in 1997-98, and it may subsequently be made compulsory. See Juan Xiberta, The Eco-Management and Audit Scheme, 3 Eur. Envtl. L. Rev. 85 (1994); Linda Spedding, Environmental Auditing and International Standards, 4 Rev. Eur. Community & Int'l Envtl. L. 15 (1994).

(83) The preamble to the regulation refers to the right of the public to access to information on environmental matters. See Council Resolution, 1987 O.J. (C 328) 7; Council Directive 90/313, 1990 O.J. (L 158) 56.

(84) Commission Regulation 1836/93, art. 3(b), annex I(C), 1993 O.J. (L 168).

(85) Id. art. 3(d), 4.

(86) Id. art. 3(e).

(87) Id. art. 5 (describing the elements to be included in an ES). Normally an ES is to be formulated annually, unless under certain specified conditions. Id. art. 5(b).

(88) The use of external verifiers is not practiced in the United States.

(89) Commission Regulation 1836/93, art. 9, 1993 O.J. (L 168).

(90) Id. art. 6(1). The independence and neutrality requirements of verifiers may be fulfilled either by complying with Articles 4 and 5 of the European Standard set by the European Committee for Standardization in EN 45012, or by another means. Id. Annex III(A)(1). For an alternative approach, see Xiberta, supra note 82, at 85.

(91) Xiberta, supra note 82, at 88.

(92) Spedding, supra note 82, at 17.

(93) Id. See also Linda Spedding et al., Eco-Management and Eco-Auditing: Environmental Issues in Business 32-34 (1993) (noting that the Institute for Environmental Assessment (IEA) issued proposals for an accreditation scheme for environmental auditors in the U.K.).

(94) Spedding, supra note 93, at 64 (quoting British Standards Inst., Specification for Environmental Management Systems (1993)).

(95) See Xiberta, supra note 82, at 88. See also Council Directive 90/313, art. 3, 1990 O.J. (L 158) 56, 57 (noting that member states may refuse requests for information where they affect "commercial and industrial confidentiality"); Council Directive 85/337, art. 10, 1985 O.J. (L 175) 40, 43 (noting that the directive shall not affect obligation to respect the limitations imposed by the accepted legal practices regarding "industrial and commercial secrecy).

(96) Three Ordinances of December 18, 1995 were adopted for the implementation of this Act. The first Ordinance established the German Accrediting and Environmental Auditing Society (DAU), headquartered in Bonn. The states have to transfer their competencies to this independent body, which is to work closely with the Chambers of Commerce and Industry, as well as craftsmen guilds. Verordnung uber das Verfahren zur Zulassung von Umweltgutachtem und Umweltgutachterorganisationen sowie zur Erteilung von Fachkenntnisbescheinigungen nach dem Umweltauditgesetz (UAG-Zulassungsverfahrensverordnung-UAGZW), v. 18.12.1995 (BGBl. I S.1841). The second Ordinance was adopted to determine the most significant expenses and fee tariffs for implementing DAU's official activities. Verordnung uber Gebuhren und Auslagen fur Amtshandlungen der Zulassungsstelle und des Widerspruchsausschusses bei der Durchfuhrung des Umweltauditgesetzes (UAG-Gebuhrenverordnung-UAGGebV), v. 18.12.1995 (BGBI. I S.2014). The last Ordinance establishes the procedure for accreditation of the auditing verifiers. Verordnung uber die Beleihung der Zulassungsstelle nach dem Umweltauditgesetz (UAG-Beleihungsverordnung-UAGBV), v. 18.12.1995 (BGBI. I S.2013).

(97) Jorn Schnutenhaus, Country Reports -- Germany, 4 Eur. Envtl. L. Rev. 162, 163-64 (1995).

(98) Id. at 163.

(99) Id.

(100) Id. at 163-64.

(101) Id. at 164.

(102) Id. at 163.

(103) The formal name of the project is the Coordinated Action Program for the Promotion of an Environmental Management and Audit System in SMEs Active in Important Sectors of Emilia-Romaga.

(104) Paola Amadei, The How, What, Why: EMAS Pilots Projects in Italy, 7 Eur. Envtl. Mgmt. Ass'n Rev., May 1996, at 13.

(105) Id. at 15.

(106) Id.

(107) Id.

(108) Id.

(109) Id.

(110) Id.

(111) Id. at 13.

(112) Id.

(113) Id. at 14.

(114) Id.

(115) See id.

(116) Id.

(117) Id.

(118) Id.

(119) Id.

(120) Environmental Auditing Policy Statement, 51 Fed. Reg. 25,004 (July 9, 1986) [hereinafter EPA Auditing Policy].

(121) Terrel E. Hunt & Timothy A. Wilkins, Environmental Audits and Enforcement Policy, 16 Harv. Envtl. L. Rev. 365, 366 (1992) (quoting EPA Auditing Policy, supra note 119, at 25,006). According to EPA, an effective environmental auditing program should consist of 1) explicit top management support for such auditing and the commmitment to follow up auditing findings; 2) an environmental auditing function independent of auditing activities; 3) adequate team staffing and auditor training; 4) explicit audit program objectives, scope, resources, and frequency, 5) a process that collects, analyzes, interprets, and documents information sufficient to achieve audit objectives; 6) a process that includes specific procedures to promptly prepare candid, clear, and appropriate written reports on audit findings, corrective actions, and schedules for implementation; and 7) a process that includes quality assurance procedures to assure the accuracy and thoroughness of such audits. EPA Auditing Policy, supra note 120, at 25,009.

(122) Hunt & Wilkins, supra note 121, at 367. See also Craig N. Johnston, An Essay on Environmental Audit Privileges: The Right Problem, the Wrong Solution, 25 Envtl 335 (1995). Professor Johnston underlines the fact that EPA's and Department of Justice's policies, particularly when taken together with other aspects of EPA's existing rules, actually tend to discourage efforts to develop comprehensive compliance-assurance programs." Id. In 1993, the Oregon Legislature created an evidentiary privilege for documents associated with environmental audits. Or Rev. Stat. [sections] 468.963 (1995). Six states have followed Oregon's approach: Arkansas (Ark Code Ann. [subsections] 8-1-301 to 8-1-312 (Michie 1995)); Colorado (Colo. Rev. Stat. Ann. [subsections] 13-25-126.5, 13-90-107(j)(I)(A), 25-7-114.5 (West Supp. 1994)); Illinois (415 Ill. Comp. Stat. Ann. 5/52.2 (West Supp. 1995)); Indiana (Ind. Code Ann. [subsections] 13-28-4-1 to 13-284-10 (Michie 1996)); Kentucky (Ky. Rev. Stat. Ann. [sections] 224.01-040 (Michie 1995)); Wyoming (Wyo. Stat. Ann. [subsections] 35-11-1105, 35-11-1106 (Michie 1995)). Johnston further reports on the mitigating solution found by EPA (draft policy on voluntary environmental self-policing and self-disclosure) that should provide for penalty mitigation only when the regulated entity voluntarily discloses any identified violations. Johnston, supra, at 335-37. However, Johnston argues that EPA should take a balancing approach -- balancing vigorous enforcement on one side and encouraging compliance-assurance activities on the other. Id. He proposes that regulated entities performing voluntary audits should receive credit in the enforcement process regardless of whether there is a mandatory reporting obligation. Id. at 345.

(123) Sanford Lewis, Stakeholder Audits: An Alternative Approach to Environmental Auditing, 4 Rev. Eur. Community & Int'l Envtl L 123, 128 n.2 (1995).

(124) See Spedding, Supra note 93, at 16.

(125) Id.

(126) Id.

(127) Id. at 19. See International chambers of Commerce, Environmental Auditing 6 (1989); International Chambers of Commerce, ICC Guide to Effective Environment Auditing 3 (1991).

(128) See supra Part II.F.4.c for examples given on Italy.

(129) Interview with Professor Staffan Westerlund, UPPSALA, in Sweden (Oct. 1992).

(130) COM(93)423 final, 165/70, 1995 O.J. (C 165) 7, 9-14. The proposal was based on the experience gleaned by the United Kingdom through its Environmental Protection Act of 1990, which is based on the Integrated Pollution Control principle.

(131) The above principles are embodied in the Council of Europe's Model Act on the Protection of the Environment, designed as a model for the revision of the existing legislation or the adoption of new legislation, in particular by central and eastern European countries. The principles were initially proposed by Professor Westerlund, whose cooperation in the drafting Committee was requested by the author. They were slightly redrafted by the other independent experts, the Director of the DELA and the author in charge for drafting the Model act.