Enforcement: Why Is It Difficult?

The economic literature on enforcement has focused on a number of topics, including the role of enforcement considerations in the choice of policy instruments (Harford, 1978; Viscusi and Zeckhauser, 1979; Lee, 1984; Martin, 1984), the effectiveness of current enforcement techniques (Russell, Harrington, and Vaughan, 1986; Harrington, 1988; Russell, 1990), and suggestions for improving the enforcement process (Russell, Harrington, and Vaughan, 1986; Harrington, 1988; Russell, 1990). One theme that emerges from these works is that a considerable amount of noncompliance is occurring everywhere. Furthermore, limited public enforcement budgets and judicial limits on public enforcement powers (Russell, Harrington, and Vaughan, 1986; Harrington, 1988; Russell, 1990) suggest that traditional enforcement agencies are not likely to mount a completely adequate response to the environmental degradation resulting from noncompliance.

The countries of Latin America and the Caribbean fit this general image. Studies published by Brañes (1991) and the Inter-American Development Bank (1996) on the institutional and legal aspects of the environment in its borrowing countries concluded that lack of compliance with environmental legislation is due to shortages of human, material and financial resources for appropriate environmental management. The 1996 study, on the Southern Cone, concluded that enforcement is the greatest constraint faced by all six countries in the study, mainly because enforcement problems have traditionally received little attention from legislators, a negative trend that persists today.

The common problems related to monitoring, compliance, and enforcement are insufficient public appreciation of the social value; understaffing of the institutions responsible for enforcement; shortcomings in judicial enforcement, with only a small number of judges and attorneys qualified in the field of environmental law; and a lack of program funding. Setting up reliable databases, control, and monitoring is extremely expensive. Moreover, the cost of maintaining a database can be much higher than the cost of starting one. Some countries have put institutions in place but have not yet succeeded in giving them the power to operate effectively. Other countries still lack an institutional infrastructure (Tietenberg, 1996).

An important factor is related to inadequate monitoring and control. The IDB study on the Southern Cone concluded that in Argentina, for example, most of the environmental agencies examined are ill equipped, limited in their number of inspectors and other supporting staff, poorly budgeted, and politically weak. It noted, however, that in some cases environmental monitoring was more advanced at the provincial level. For example, Mendoza has adopted a very sophisticated environmental monitoring system in which data become part of a policy-making process.

Mendoza, however, may very well be an exception to the general rule that in Latin America the lower levels of government lack sufficient resources to deal adequately with their new responsibilities. The responsibility for the enforcement of environmental regulations is increasingly being transferred to departmental and local agencies without a transfer of the necessary resources (World Bank, 1997). In Bolivia, for example, the new decentralization law transfers both enforcement and the environmental impact assessment system to local governments, but most of them still lack the appropriate institutional organization and human resources needed to carry out their functions (IDB, 1996).

But noncompliance with regulations is also caused by defects in the regulations themselves. The existing regulatory schemes are not always cost-effective compared to other possible approaches. Regulations often set environmental requirements (ambient standards, performance standards, and/or technology standards) that need to be monitored and enforced.¹ Moreover, the standards themselves should be set in accordance with local circumstances and requirements. Copying international standards may be counterproductive, because they may be impossible to enforce (Tietenberg, 1996). In Venezuela, for example, the Ministry of Environment and Renewable Natural Resources (MARNR) acknowledged a few years ago that the country’s Environmental Penal Law was ineffective because many technical standards “came out in a rush and many of them are confusing” (EWLA, 1995).

Yet there is some evidence that monitoring and enforcement are being given increasing consideration in Latin America and the Caribbean. In February 1994, the Colombian government launched a new pollution control and monitoring program that, for the first time, will allow the government to supervise the generation, treatment, and management of industrial liquid waste. The system will be supported by a computerized database to store information about the discharges, permits, and licenses of industrial sources (Tietenberg, 1996). The emphasis in the North American Free Trade Agreement (NAFTA) on enforcement has put great pressure on the Mexican Government to further increase enforcement (Gresham and Bloomfield, 1995). The NAFTA provisions (see box 1) have resulted in an increased awareness and emergence of private enforcement in Mexico, and probably also in other countries of the region—certainly in those that wish to join NAFTA.

The government of Mexico has taken several steps to improve its monitoring and enforcement record, including passage of the General Ecology Law (1988) and the establishment (1992) of the Federal Office of the Attorney General for Environmental Protection (PROFEPA), currently under the Secretariat of Environment, Natural Resources, and Fisheries (SEMARNAP). Mexico has adopted an Environmental Program for 1995-2000 to improve compliance with environmental legislation. The program also includes a set of innovative preventive measures, such as voluntary environmental audits (see below), and the establishment of a Web page to encourage compliance with environmental regulations. These actions have apparently been reflected in an increase in the level of enforcement effort, as reported in the Annual Report of the NAFTA Commission for Environmental Cooperation (CEC, 1997).

Unlike Mexico, certain countries of the region still confer the responsibility for environmental enforcement on the sectoral ministries. In Chile, for example, the most important enforcement agency is the Ministry of Health owing to a large number of violations related to human health legislation (IDB, 1996). In other countries, the regulatory authorities, such as the forestry service, must initiate any administrative enforcement action, without which the attorney general has no authority to act (Lawyers Committee for Human Rights, 1998).