Alternative Approaches to Enforcement: Private Enforcement

In order to circumvent some of the constraints faced by public enforcement agencies, in particular resource and staff constraints, private enforcement could be an alternative approach. Private enforcement can complement, or even substitute for, public enforcement. Although many efforts at privatization ultimately turn a public responsibility (such as fire protection) completely over to the private sector, enforcement does not lend itself to that strategy. In general, even in countries with strong private enforcement regimes, public enforcers retain a prominent role. When authorizing private enforcement, most legislatures have been cautious not to afford the private enforcers too much power. Nevertheless, private enforcement is increasingly being used to enforce environmental laws and regulations (Tietenberg, 1996). Much like public enforcement, it can constitute a source of funds by earmarking penalties for environmental purposes and, more indirectly, by making noncompliance more expensive for polluters (Pearce, Ozdemiroglu, and Dobson, 1997).

Private enforcement actions differ from more conventional liability actions in that the initiator of the action is not primarily seeking to be compensated for pollution-related damages (except in cases of civil liability actions), but rather to bring a polluter into compliance or to force a public official to carry out his or her legal responsibilities.

In Latin America and the Caribbean, the complaint is frequently triggered by a perceived violation of a procedural requirement or of a fundamental right to a clean environment that is not necessarily related to specific legal discharge standards. Under the complaint form of private enforcement the public authority may be designated as the recipient of any complaint with full powers to investigate and dispose of it, as is the case in El Salvador (Navarrete Lopez, 1994). In the United States and Europe the action is more likely to be exclusively focused on a violation of a specific discharge standard.

The right of citizens to participate directly in the enforcement of environmental laws and regulations varies from one country to another. Unlike the United States, most of the civil-law countries of the region do not have citizen suit provisions in specific environmental laws.

In most countries, citizen suits, if they exist, are generally derived from the constitution or the civil codes. For instance, civil codes provide citizens with the general right to bring legal action against any person for failure to comply with the law (not specifically environmental laws). In other countries, citizens’ rights are limited to complaint actions.

In Mexico, citizens have the right to complain to PROFEPA under the General Law on Ecological Balance and Environmental Protection. El Salvador’s National System of Environmental Complaints offers similar opportunities to its citizens (Navarrete Lopez, 1994).

More recently, Mexico published a decree amending the law (December 13, 1996) that includes a right to demand review of government decisions and file suit against environmental crimes (CEC, 1996). However, the provisions have not been used so far, almost two years after the decree entered into effect, which may reflect a certain lack of awareness in society about available legal instruments (IER, 1998).

In Argentina, new clauses in the most recently amended National Constitution have extended legal standing to people other than those directly affected in their property or personal health. Private parties interested in community goals of environmental quality are now able to file legal actions against other private parties or the government (IDB, 1996).

The most liberal regime seems to exist in Brazil, where every citizen can bring a claim before the courts, including for their environmental rights granted by Article 225 of the Constitution. Concerned citizens may also challenge administrative decisions that they consider not to be in accordance with the law. Two proceedings are particularly important: (1) Popular Action (Art. 5, LXXIII of the Federal Constitution) under which every citizen has the right to challenge an administrative act because of alleged harm to the environment (public wealth); and (2) Public Civil Actions (Art. 129, III of the Federal Constitution), under which the Public Ministry and NGOs have legal standing.

It is said that the Brazilian Public Ministry is an institution unique in Latin America. It operates completely independently of the government and has evolved as the main plaintiff for environmental protection in Brazil. In other countries, civil actions may also be brought by other actors, such as an ombudsman (defensor del pueblo).

The Interaction of Public and Private Enforcement

Low levels of public enforcement might be expected to increase the private benefits from private litigation activity. Violations could be expected to be more frequent and more serious in periods of lax enforcement. It follows that the optimal level of private enforcement is inversely related to the amount of public enforcement. All other things being equal, we would expect more citizen enforcement activity in countries with diminished government enforcement activity. Similarly, within countries, we would expect more private enforcement activity during periods of reduced public enforcement.

However, private enforcement obviously also has potential disadvantages to society. A public enforcement agency that has a clearly articulated and effective strategy for allocating its resources to enforcement activities could find its priorities completely subverted by private enforcement activity. Responding to complaints and court challenges of its decisions consumes time and resources. Some balance is needed to assure that legitimate, but not excessive, pressure can be applied by private enforcers (Tietenberg, 1996). In his report, Tietenberg identifies two specific problems with private enforcement: (1) its priorities in choosing which claims to pursue will not necessarily coincide with social priorities; and (2) its actions may not support the socially desirable intensity of control. This, however, is not a fatal blow to private enforcement, according to Tietenberg. One area where private enforcement may have the edge is in pursuing public polluters and the other is corruption (see box 5).

Even though public facilities represent a substantial proportion of the pollution problem, the enforcement of pollution-control laws presents special problems for public enforcers in most countries. The evidence seems very clear that public enforcement of violations by public polluters has been quite ineffective, and that the problem is not the inadequate availability of remedies, but rather the reluctance of public enforcers to use those that exist (Gelpe, 1989).

Public and private enforcement can also complement each other. Private enforcement, particularly citizen suits, can take on some of the routine tasks, leaving the more serious problems to the public sector. Focusing public enforcement activity on the most significant problems makes a great deal of sense because of the ease of transferring information and expertise from one case to another. If enforcement were the exclusive responsibility of the public sector, however, focusing on priority areas could open the possibility for polluters operating in non-targeted areas to exploit that decision. They would respond to a perceived decline in public scrutiny with reduced compliance. Since private enforcers are not operating on the same set of priorities as public enforcers, the likelihood of private enforcement in a non-targeted area is not diminished. With a continuing threat from private enforcers, polluters have a continuing reason for compliance, even when the public sector has its focus elsewhere. The very existence of the private enforcement alternative allows public enforcers more flexibility in targeting their resources, a flexibility that offers the opportunity to use their limited resources more efficiently.

The Sustainability of Private Enforcement Actions

By their very nature, completely successful private enforcers undermine the reason for their existence. Once complete compliance has been obtained no more opportunities for claims exist regardless of the underlying incentives. Yet no private enforcement process currently in existence is presently facing that prospect. The level of noncompliance is simply too great.

How, then, are private enforcers likely to sustain their contributions to the enforcement process? The achievement of a sustainable process requires a self-sustaining source of revenue in order to cover the costs of bringing claims. The “loser pays” principle of allocating legal costs, which is already part of the legal system in Latin America, provides a perfectly reasonable vehicle for covering these costs. The reimbursement from each previous successful action provides a fund to be used in pursuing the next action. As long as the claims brought are meritorious, the fund keeps being replenished.

It would be possible to carry this even further by authorizing that penalties be paid directly to private enforcers rather than dedicated to environmental improvement. In this case private enforcement would be a profitable activity and bounty hunters could be expected to join. But while this high level of incentive might well be merited in specific circumstances, its dangers should be recognized. Bounty hunters certainly accelerate the movement toward complete compliance. Whenever that may not be socially desirable, this acceleration may prove to introduce significant problems. Since the U.S. experience indicates that the reimbursement of attorneys’ fees may be sufficient to make the process sustainable, it may not be necessary to introduce bounty-hunter provisions.