Civil and Criminal Enforcement and Penalties

• Author: Peter J. Murtha
• Pages: 269-281

CHAPTER 15

Civil and Criminal Enforcement

and Penalties

PETER J. MURTHA

I. Introduction

In assessing the topic of civil and criminal environmental enforcement and

penalties across the globe, it is fair to say that there is considerable variabil-

ity in nearly every respect. There is variability in available enforcement tools,

potential severity of penalties, and robustness of the institutions undertaking

enforcement efforts. This means that specific, localized knowledge will be

the key to an attorney’s success. Nonetheless, for broad advisory purposes

there are clearly ways of minimizing risk. As a general matter, environmen-

tal enforcement tends to be strongest and most consistent in countries with a

mature rule of law, a well-established environmental statutory and regula-

tory framework, and the economic resources to provide essential environ-

mental oversight by government regulators and prosecutors.

Based on a review of official government environmental websites and

news sites, it appears that dating back to at least the 1970s the United States

has had the most comprehensive system of environmental enforcement of

any country. It continues to be the leader in terms of the breadth of its

enforcement tools and the severity of penalties associated with findings of

environmental noncompliance. Thus, if one were to conduct business activi-

ties in foreign countries as if under the watchful eye of U.S. environmental

regulators—though, naturally, with regard to the particular environmental

standards and procedures required by that country—one would expect to

generally avoid precipitating a vigorous enforcement action or more extreme

penalties. While the United States may not necessarily have in place the

most stringent environmental standard of any nation with respect to the reg-

ulation of a particular activity, it is much more likely to compel a business to

comply with the requirements that it has in place and apply sanctions if they

have not.

It is not remotely possible within the confines of this chapter to provide

a detailed roadmap to this subject that will permit one to navigate across the

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