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Publication #1
THE HANGING CHADS OF INTERNATIONAL ENVIRONMENTAL LAW: TOWARDS THE BETTER USE OF TECHNOLOGY AND INFORMATION MANAGEMENT TO DETECT VIOLATIONS OF INTERNATIONAL AGREEMENTS, COMBAT TRANSNATIONAL CRIME, AND REFORM ENVIRONMENTAL
LAW AND TRADE
By
Michael Penders and David Ronald*
On November 15 and 16, 2000, New York University School of Law and the Environmental Crime Prevention Program (ECPP) sponsored a Symposium titled "Combating International Eco-Crime in a Global Economy: The Use of Technologies and Information Management to Monitor Compliance with International Agreements, Prosecute Environmental Crime, and Reform Environmental Law and Trade." To address these topics, the NYU Law School brought together prominent professors, researchers, and lawyers along with representatives from U.S. EPA, the National Aeronautics and Space Administration (NASA), the U.S. Department of Justice (DOJ), Mexican Customs, and leading non-governmental and intergovernmental organizations, as well as the G-8 Nations' Law Enforcement Project on Environmental Crime.1
A principal focus of the Symposium was to review recent developments in the areas of remote sensing, electronic reporting, and data integration, exploring their current uses for monitoring the environment and potential applications for ascertaining compliance with law and international agreements. A second focus was to examine how these technologies could be used more comprehensively and strategically to provide meaningful access to information and facilitate more effective environmental enforcement and security.
A third line of inquiry was how the next generation of environmental laws and international agreements should be structured to make full use of these technologies and the lessons learned from over a decade's experience in enforcing domestic laws that implement existing international agreements, such as the Montreal Protocol, the Basel Convention, MARPOL, and the London Convention.2
Low Hanging Chad
When NYU planned the Symposium for November 15, organizers anticipated that panelists might offer predictions on the newly-elected president's policy in areas of environmental technology, enforcement, and international law. Instead, the outcome of the election was weeks away, and the nation was grappling with the prospect of dimpled, pregnant, and hanging chads deciding the first Presidential election of the twenty-first century.
While the courts considered how best to evaluate the results of this sixty year old technology, the Florida recounts provided a compelling illustration of how government can lag behind the private sector in deploying new technologies for even its most fundamental functions. Moreover, press accounts revealed that local officials had called for the upgrade of election equipment for years without success, demonstrating the frustrations of obtaining resources for such improvements in government, absent a crisis.
Much of domestic and international environmental law developed in response to past crises as well. Those laws often were premised on technologies in place at the time of initial implementation. For example, the current processes that nations use for notification and consent for transnational shipments of hazardous wastes, ozone depleting substances, and other dangerous substances involve paper being sent back and forth to national environmental agencies - the designated competent authorities - with no direct link to the Customs services, who are the front line enforcers of these laws at the borders. These processes were all mandated before the common use of the Internet, electronic reporting, customs and trade automation, and Globally Positioned Satellite tracking.
In this information age, there are technologies that can be used to bring together information housed in different agencies and governments that would allow Customs officials to detect violations of environmental laws before imported goods are cleared. These same technologies can be used by state and local law enforcement to track the source of illegal dumping, even when the waste or chemical was produced in another nation.
Emerging environmental and trade agreements can now make full use of these new communications systems and specify methods for electronic reporting which facilitate real time comparison of trade and environmental compliance data. This would allow for faster trade as well as enable the detection of illegal traffic, recently estimated by the Royal Canadian Mounted Police to amount to $200 billion a year internationally.
While securing scarce public resources for new technologies or better integration of existing information will always be difficult, government officials cannot begin to make the case with their agencies, departments, legislatures, and, ultimately, with the public unless new methods are analyzed, along with their costs and effectiveness in achieving improved environmental performance and compliance with laws that protect human health and the environment.
The NYU Symposium was designed to explore practical applications of new technologies within the context of international treaties and domestic environmental laws. The Symposium also explored innovative ways of moving forward with implementing some of these technologies across agencies and nations, before the next crisis compels governments to act.
The International Legal Frameworks and Obstacles to Enforcement
"The most oppressive national governments often have the best laws protecting human rights," according to Michael Herz, Visiting Professor of Law at NYU Law School and moderator of the Symposium's panel on International Environmental Law. Professor Herz used this statement as an illustration to emphasize the gap which exists between written domestic laws and international treaty provisions and the enforcement of those laws and treaty provisions. Similarly, he gave examples of the chasm which often exists between the legal "environmental standards" and the actual enforcement by regulatory regimes.
Donald A. Carr, a partner with Pillsbury Winthrop LLP and a former assistant attorney general with U.S. DOJ, discussed national and international definitions of what constitutes an environmental crime and the importance of understanding and respecting national laws. He also reviewed methods of addressing international environmental problems without resort to the criminal law. Mr. Carr concluded that environmental laws and rules that are not enforced should be replaced by laws that governments are willing and able to enforce and that criminal prosecution should be reserved for the clearest violations, involving the most egregious and deliberate conduct.
Hilary F. French, Vice-President for Research, Worldwatch Institute, noted that some 240 international environmental treaties have been signed to date; two-thirds of these have been signed since 1970. Unfortunately, according to French, ambient environmental and ecosystem measures do not present an optimistic picture regarding the effectiveness of these treaties. French explained that countries generally meet their international environmental treaty obligations by translating the treaty's provisions into implementing domestic legislation.
French echoed Professor Herz's observation that the failure to enforce the implementing domestic legislation results in the failure to achieve the treaties' goals.
The difficulties of enforcing domestic environmental legislation are compounded greatly when extraterritorial aspects of those laws require proof of acts that take place in other countries. Often the illegal acts took place long ago and across vast distances and may not constitute a violation of law in an exporting nation, leaving little recourse to traditional international mechanisms, such as mutual legal assistance treaties.
Accordingly, the prospects for meaningful enforcement of those laws which implement international environmental agreements are all the more daunting, especially considering the limited resources most nations devote to enforcing basic domestic environmental laws with impacts close to home. As international trade expands, and with it the opportunities for illegal trafficking, compelling reasons exist to examine how governments can make better use of technology and information management to detect, investigate, and prevent environmental crime.
The Promise of New Technology
Alan D. Hecht, EPA's Deputy Assistant Administrator for International Activities, introduced the panels devoted to the current uses and emerging applications of new technologies for environmental monitoring, information management, and remediation. The first panel examined remote sensing capabilities at NASA as well as the electronic reporting system developed by the NASA White Sands Test Facility. The panel featured Eric Stern of EPA's Region 2, who presented information on the use of advanced technologies for the remediation of soil and dredge contamination in the Hudson and Passaic Rivers, as well as in the canals of Venice.
Dr. Marc L. Imhoff, from NASA's Goddard Space Center in Maryland, gave a demonstration of the capabilities of Landsat 7 and other NASA remote sensing assets for observing environmental conditions and with the potential for monitoring compliance with laws including interstate and international agreements. A video presentation developed from satellite images showed air pollutants from Mexico and western states drifting to eastern states. Dr. Imhoff explored the satellites' abilities to monitor a wide variety of emissions, including greenhouse gases, and showed models of how such technology could be used to monitor compliance with agreements like the Kyoto Protocol. He also demonstrated the satellites' proven capabilities to detect spills at sea, other forms of water pollution, clear cutting of forests, and degradation of the land, all of which could be evidence of violations of a nation's laws.
Next, David Amidei, Environmental Program Manager, NASA White Sands Test Facility, made a presentation on the electronic reporting system developed at White Sands, which is the subject of an XL Agreement between NASA, New Mexico, and EPA, announced in September 2000. The White Sands Facility has been involved in the testing of rocket engines and other equipment for the space program, from the Apollo Program through the era of the space shuttle. As a result, this complex facility manages many extremely hazardous substances, wastes, and processes and is required to report to New Mexico under many different statutes and programs.
The XL Project allows White Sands to send all of its monitoring reports to the state environmental agency in electronic form, saving the facility thousands of dollars in paperwork every reporting cycle. At the same time, reporting electronically has resulted in this information being more readily accessible to the state, EPA, and others.
Currently, few states have the resources to review all the paper reports they receive from facilities in a comprehensive way and may miss evidence of significant violations unless it is brought to their attention by other means. Electronic data interchange will enable agencies and citizens to monitor compliance reporting in an integrated way and develop systems for detecting and responding to violations more readily.
Having worked through issues concerning the security of the reporting and the nature of the electronic signatures, the White Sands XL Project presents a model for the next generation of integrated, facility- wide electronic reporting. The White Sands Project is moving towards web site and internet posting of the environmental reports, facilitating even greater access by regulators and the public alike, including using three dimensional, digital mapping of the facility and its sources.
Others at the Symposium noted that, while standards for electronic reporting continue to evolve under domestic environmental regulations and national legislation, efforts to move forward with bar-coded electronic manifests and with rendering as much environmental compliance data in secure and harmonized electronic form as soon as possible can only improve the ability of investigators to detect and track illegal shipments and other violations of environmental laws Many of these technologies are already deployed in the private sector to track shipments by trucking firms, shipping lines, and even grocery stores. Should not governments be in a position to track shipments of the most hazardous chemicals, or monitor compliance with international agreements, as well as grocery stores track their inventory?
The Symposium participants agreed that, at a minimum, governments need to take account of these new methods for monitoring and reporting compliance with an international agreement before deciding whether and how to enter into these agreements. A review of new technology is critical, therefore, before negotiating the mechanisms for compliance and enforcement that should be required of all signatories to new treaties or to amendments to existing agreements. Otherwise, the promise of these environmental agreements may be illusory.
Global Trade and the Environment
William Nitze, EPA's Assistant Administrator for International Activities, delivered the keynote luncheon address. Mr. Nitze emphasized the importance of building capacity to enforce environmental laws internationally and the critical role that new technologies can play in developing that capacity. He noted that many nations have environmental laws, some of which are strong and protective of human health and the environment, but few nations have developed the capacity to enforce these laws in practice.
Mr. Nitze stressed that more needs to be done to level the international playing field to assure that freer and faster trade does not come at the expense of the environment and health of those in developing nations. Free trade should not put businesses that pay the costs associated with environmental compliance at a competitive disadvantage. Rather, it is in the United States' interest, and that of the international community, to assure that the fair and effective enforcement of environmental laws apply around the world.
Recent Developments in Electronic Reporting, Internet Access to Integrated Compliance Information, and Import/Export Data Exchange Models for Investigating International Environmental Crime
Richard B. Stewart, an Emily Kempin Professor of Law at NYU and former U.S. Assistant Attorney General, moderated the panel on how EPA and DOJ are reorganizing their information management resources to facilitate a more strategic approach to understanding compliance problems in industrial sectors, in regions, and in eco-systems. These same technologies offer the opportunity to develop more effective efforts to target the most egregious violators and international traffickers, using more integrated and focused analysis of existing data.
David Schwartz, of EPA's newly-created Office of Environmental Information, discussed recent developments related to electronic reporting in the United States and emerging international standards for electronic reporting for environmental programs. Mr. Schwarz described the development of EPA's Central Receiving Facility for electronic reporting under all statutes and programs, which establishes a central system and harmonized standards for receiving all data sent to EPA.
Centralizing the intake processes for information and harmonizing the formats by which EPA receives data will allow EPA to use of a variety of information to analyze multi-media environmental compliance data at a facility. EPA will also be able to ascertain environmental risks in a neighborhood, the condition of an eco-system, or to target high priority pollutants, including those that are imported or exported. Currently, EPA collects data using dozens of separate systems developed to receive data under different statutes. These systems are difficult to reconcile within EPA, let alone with other agencies' data. EPA's Central Receiving Facility is a first step to consolidating EPA information in such a way that it may be used more effectively with other agencies and governments' data to detect illegal activity.
Next, Michael Barrette, of EPA's Office of Compliance, unveiled the next generation of the Integrated Data for Enforcement Analysis (IDEA) database. The new system, known as OTIS (Online Targeting Information System) 3 provides online access to compliance data, organized around zip codes and maps, detailing environmental compliance, toxic release, and other information about facilities in a particular zip code. This system is currently available to EPA and certain state agencies. A version of this system is intended for public access in the near future.
Finally, Fred Burnside, representing EPA's Office of Criminal Enforcement's Center for Strategic Environmental Enforcement, described the center's import/export data system. This system, which was developed to support the G-8 Nations' Law Enforcement Project on Environmental Crime, is designed to provide participating nations with access to environmental compliance data and law enforcement information about a suspect shipment, exporter, importer, facility, or other person involved in an import or export, over secure Internet channels.
This import/export data may also be compared to other information to identify suspect shipments in the first place. This system has been used to compare environmental compliance, customs, and trade data between the United States and Canada in the last year and has identified illegal shipments of ozone-depleting substances, resulting in several international investigations. In February 2000, in Naples, Italy, the G-8 Nations agreed to move forward with this system to detect international environmental crime, as well as with other efforts to use new technologies to compare environmental compliance data, trade, and customs information with law enforcement intelligence in a more systematic way, consistent with national laws and international agreements.
The Utilization of Remote Sensing and Other Technologies by Non-Governmental and Intergovernmental Organizations
Kenneth McCallion, partner with Goodkin, Labotkin, Rudkin and Kind and Chairman of the North American Committee of the International Court for the Environment Foundation, moderated this panel. Mr. McCallion's opening statement stressed the fundamental importance of access to information and the use of these technologies, not just by governments, but by citizens as well, and particularly by populations affected by illegal pollution. These people require not only access to information, but should have meaningful access to the courts with jurisdiction over the polluters.
Dr. Mario Scaramella, a professor at the University of Naples in Italy and Secretary General of the ECPP, described the mission of the ECPP as providing environmental protection and security through technology on a global basis, particularly for developing nations. ECPP has offices at the Fucino Space Center in Italy, the largest civilian space center in the world. ECPP has used aerial surveillance and the remote sensing capabilities of satellites to detect environmental crimes in Eastern and Southern Europe and eco-terrorism in Central Africa and South America.
In one case, the ECPP, using historical satellite images, detected that a small lake outside of Naples had disappeared over time. Subsequent investigation revealed that it had been illegally filled in with construction and other wastes, including hazardous wastes from other nations, by individuals involved in organized crime. In other cases, the ECPP has detected illegal construction in national parks, illegal deforestation, and the illegal use of chemicals in South America. Dr. Scaramella believes that the ECPP has only scratched the surface of what the collaborative use of technology can accomplish.
Ben Smith, with Environmental Defense Scorecard and Action Network, showed how this on-line database keeps track of environmental conditions and violations by using advanced communication tools and publicizing this information to foster accountability and public action. This new technology, coupled with tools such as the Toxic Release Inventory, expands the power to access information, thereby creating public awareness of the amount and nature of pollution from specific facilities and corporations and incentives to reduce pollution.
Wynet Smith, Project Manager, Global Forest Watch, World Resources Institute, demonstrated their projects' usees of satellites and advanced imaging to keep track of forests around the world. Ms. Smith discussed the impact that these pictures have on policy makers and the public alike.
Steven D. Jamar, Professor of Law, Howard University, demonstrated the Environmental Legal Information Systems (ELIS), a collaboration of NASA, the Center for International Environmental Law (CIEL), the Library of Congress, and the University of Maryland. ELIS integrates satellite images, digital earth data, and other information for policy, legal work, and other purposes.
Russel Barsh, Adjunct Professor of Law, New York University, reminded the Symposium that, despite the promise of new technologies such as remote sensing, environmental advocates should not forget that the most important resource for understanding environmental impacts is the people on the ground who are affected by the pollution. Gathering information about the impact of pollution on people's lives, combined with new methods for managing and using this information, remains, perhaps, the most powerful tool of all.
New Approaches to International Crime, Law, and Diplomacy in an Era of Global Commerce
Jonathan M. Winer, of counsel, Alston and Bird, and former Deputy Assistant Secretary of State for Law Enforcement and Crime at the United States Department of State, opened the second day of the Symposium. He summed up the importance of the topics being discussed at the NYU Symposium when he reminded the attendees that "if the world does not have environmental security, it has no security at all."
Mr. Winer explained that the U.S. National Security Strategy has come to formally include environmental security as a component. He listed some of the international organizations that play a role in global environmental protection. These organizations include Interpol, Europol, the World Customs Organization (WCO), the United National Crime Commission, the Council of Europe, the World Trade Organization (WTO), the OECD, the United Nations Environment Program, the North American Commission for Environmental Cooperation, the G-7, and the G-8 Lyon Group.
These organizations are all part of the effort to establish and enforce international environmental standards. Still, enormous challenges remain in effectively cooperating to enforce environmental laws internationally. As Mr. Winer stated, "there is no domestic law if people can simply move outside a country's borders to evade the law."
He noted that economic globalization is compressing reaction time and blurring national borders. International criminal and terrorist threats change constantly and adapt to law enforcement capabilities. Most import crimes go undetected at ports because less than two per cent of cargo is inspected. This includes illegal transport of ozone-depleting substances, pre-cursor chemicals, hazardous materials and wastes, pesticides, tainted or prohibited food, and endangered species. Less than one percent of export cargo is inspected.
Mr. Winer alluded to the "stovepiping" of traditional law enforcement agencies and the obstacles to working together to combat newer crimes that cut across law enforcement jurisdictions and involve regulatory agencies. Mr. Winer emphasized that more needs to be done to improve law enforcement information collection, integration with regulatory agencies, and dissemination of information. In an era when organized crime uses advanced communications around the world, national law enforcement agencies can no longer afford "not to know what we know."
The Use of New Technologies in the Next Generation of Environmental Laws and International Agreements
Most of the speakers at the Symposium agreed that obstacles to the success of international environmental treaties include: 1) Failure to implement adequate domestic legislation; 2) the lack of an effective independent monitoring and detection system; and 3) the lack of adequate enforcement capabilities. The final panel of the Symposium brought together speakers to address what the next generation of laws and agreements should include to overcome these obstacles, based on experience in enforcing existing laws that implement international agreements over the last decade.
Steven P. Solow, Professor of Law, University of Maryland, and former Chief of the Environmental Crime Section at U.S. DOJ, discussed what it took to launch the National CFC Initiative to combat the illegal smuggling of ozone depleting substances into the United States in the 1990s. 4 This initiative involved bringing together U.S. Customs agents with their Customs and trade data, EPA agents and data from EPA's Office of Air and Radiation regarding the lawful import of CFCs, IRS agents and their tax information on CFCs, U.S. Attorneys Offices, the FBI, other U.S. agencies, foreign governments, and international organizations, like the World Bank, that had relevant information or expertise. Dozens of prosecutions of CFC smugglers around the country resulted from the comparison of data from various agencies and the strategic use of Customs, EPA, and commercial data.
The National CFC Initiative offers a model for integrating regulatory data with law enforcement information to allow Customs and other agents to detect violations of environmental laws. New agreements should develop frameworks, through electronic data interchange or other technologies, that facilitate the systematic comparison of regulatory and trade data in real time, perhaps in trade agreements, or in the mechanisms for notification and consent that are found in most multilateral environmental agreements.
Professor Solow also described working with the U.S. Coast Guard and their remote sensing capabilities to prosecute cruise lines for illegally dumping waste and oil in international waters. The London Convention is currently considering additional compliance measures to improve detection of violations in international waters and should consider the methods used by the Coast Guard in a series of investigations of cruise lines.
Those negotiating the convention amendments should also consider the use of satellites currently focused on heavily trafficked sea lanes in the Mediterranean. When oil or other spills are detected trailing ships, that information and the coordinates are faxed to the French and Italian Coast Guard within hours. There may be ways to incorporate or facilitate more systematic uses of remote sensing, and transmission of that information to Coast Guards, on a regular basis.
Professor Solow also stressed the importance of personal accountability and criminal liability, in addition to corporate liability, in any international legal framework. Without these, there is insufficient deterrence for even the most well intended international agreement.
William L. Thomas, an environmental attorney at the law firm of Pillsbury Winthrop LLP and Co-Chair of the ABA Section of Environment, Energy, and Resources International Environmental Law Committee, drew upon the works of author Simon Schama and painter Rene Magritte in explaining why remote sensing and other "high" technologies are critical to the effective design, implementation, and enforcement of international agreements. Such methods are valuable, he observed, mainly because they allow us to discern our impact on the environment with increasing precision. This can be helpful in identifying and selecting among targets that will focus the efforts of institutions going forward as, for example, in the context of the negotiation of a global forest regime.
Remote sensing and other techniques, such as geographic information systems, can also be a valuable aid in monitoring compliance with, and progress under, existing agreements, such as the Convention on the Conservation of Antarctic Marine Living Resources.5
Mr. Thomas, who, along with Donald Carr, represented one of the cruise lines prosecuted by the government in a matter adverted to by Professor Solow, commented on the importance of international cooperation and collaboration in enforcement of multilateral environmental accords, particularly when the enforcement roles of nations have been expressly delimited as, for example, under MARPOL and the Law of the Sea Convention. With regard to the application of technology in addressing pollution at sea, he described how Norway, the Netherlands, and other European authorities have used synthetic Aperture Radar data from the European Space Agency and Canadian RADARSAT satellites to detect oil spills from vessels.
Finally, Ms. Allison Gardner, Co-Editor in Chief of the NYU Environmental Law Journal, summarized a paper she recently published on the use of remote sensing to monitor compliance with the Kyoto Protocol 6 and its emissions trading system.7
Implementation Across Agencies and Governments - the Hard Part
It is one thing to identify technologies and processes that can improve international or local capacity to enforce environmental laws. Of course, it is quite another to have these technologies incorporated into programs and laws. It is more difficult still to implement processes across government agencies and national borders, an approach that is required for meaningful enforcement of environmental laws in a global economy.
Bruce Pasfield, Assistant Chief, Environmental Crimes Section of the Environment and Natural Resources Division at U.S. DOJ and Chair of the North American and G-8 Nations' CFC Working Group, described working through the processes of bringing together data from EPA, Customs, Canada, and places like China and Russia to detect illegal shipments of ozone depleting substances. Even when systems have been developed for link analysis to other sets of data for international environmental enforcement purposes, as they have been at EPA's Center for Strategic Environmental Enforcement, these systems are only as good as the data that is entered.
Until systems for these purposes are fully implemented across agencies and governments and regularly updated, there is no substitute for manually bringing together data from a variety of government and other sources to detect illegal traffic. The CFC Working Group continues to perform this function with personnel from several different agencies to detect smugglers of ozone depleting substances.
Carlos Aguilar, a senior Mexican Customs official, described his efforts in the last year to reform Mexican customs and develop capacity to enforce environmental laws at the border with the United States. In order to effect management and organizational change at customs, Mr. Aguilar has mandated that Mexican Customs houses be certified under the ISO 9000 process and that all inspectors be trained in environmental laws.
Symposium participants generally agreed that improvements in the international capacity to enforce environmental laws will be incremental at best, unless additional resources are devoted to developing new systems for integrating data and communications and developing the capacity to enforce these laws around the world. Perhaps the best hope for dramatically improving international capacity for environmental enforcement lies in how the laws are amended and how new international agreements are structured to incorporate new technologies and integrated systems to determine whether trade comports with environmental requirements.
Efforts are underway in many forums to write the "next generation" of environmental laws. Research institutes, such as the Aspen Institute and the National Academy of Public Administration, have already issued reports and made recommendations about revising this nation's environmental laws.
The President's Council on Sustainable Development, issued its own report in 1998. The Multistate Working Group on Environmental Management Systems, an association of environmental groups, businesses, academics, and state and federal regulators, has established working relationships with international organizations including the North American Commission on Environmental Cooperation and the European Union to discuss new approaches to environmental protection.
A common theme appearing in the work being conducted by the groups listed above, and captured by most speakers at the NYU symposium, was the need for the "next generation" of environmental laws, whether local, national, or international, to take into account the new scientific, engineering, and management developments, including remote sensing technologies, information technology, and environmental management systems. Jonathan Winer recommended that multilateral public-private partnerships were needed to assist in the coordination of efforts to implement new technology into effective national and global environmental protection. The current international organizations addressing these issues are multilateral and are not public-private partnership efforts. CERES and its progeny, the Global Reporting Initiative, are examples of how public-private partnerships can be productive.
The consensus at the NYU Symposium was that the cooperation of regulated entities, governments, academic institutions and non-governmental organizations on a local, national and global scale was needed to develop strategies and programs for using technology to assure compliance with laws and treaty obligations, and for monitoring of environmental conditions. The "next generation" of environmental laws and international treaties must incorporate the use of these technologies to make this a reality.
Conclusion: International Cooperation in the Enforcement of Environmental Laws
Steven A. Herman, EPA Assistant Administrator for Enforcement and Compliance Assurance, was the concluding speaker of the Symposium. Mr. Herman also co-chairs the International Network for Environmental Compliance and Enforcement (INECE).
Mr. Herman described how illegal traffickers in hazardous wastes and ozone-depleting substances have benefited from a lack of coordination among environmental regulators, customs services, and the different levels of law enforcement within nations. They have profited further from even less coordination among nations.
Mr. Herman described the work of EPA with INTERPOL, INECE, the NAFTA, and the G-8 Nations to facilitate international cooperation in the enforcement of environmental laws. This cooperation should include more systematic and strategic exchange of relevant information, using electronic reporting, remote sensing, and access to integrated compliance data. Otherwise, there is little hope of detecting illegal traffic as trade expands, while inspection and enforcement resources stay constant or decline.
Unless environmental enforcers keep up with the times, specifically with the pace and methods of automated trade, and with the technologies available to those who would commit environmental crimes, nations cannot realistically expect to achieve widespread compliance with international agreements. Nations should make full use of new methods for communication and integrated compliance monitoring to inform the public and better enforce these laws.
It is common sense that nations should draw on the experience of those actually enforcing the import and export laws governing hazardous wastes and ozone depleting substances, in reforming these laws and in structuring new international agreements, such as those currently being negotiated for Persistent Organic Pollutants (POPs) and Prior Informed Consent (PIC). They should begin to incorporate these new technologies for electronic reporting and integrated compliance monitoring into the agreements themselves.
To the extent that new technologies, including remote sensing and information management regimes, can assure credible compliance monitoring internationally, they will allow governments to decide on agreements on the merits of the environmental policy, rather than on the potential trade imbalances and unfairness when the compliance of other parties is uncertain.
Incorporation of appropriate technologies for compliance monitoring will also assure that these agreements actually deliver the environmental protections they promise. The experience of the United States has demonstrated that the protection of these laws and agreements will be illusory unless compliance can be meaningfully monitored, the laws are enforced in practice, and the sanctions serve as credible deterrent and outweigh the economic benefits of noncompliance.
*Michael Penders is the president of Environmental Security International (ESI), a new company with offices in Washington, D.C., New York, Phoenix, and Rome. ESI conducts investigations, implements environmental management and security systems, and offers consulting services involving the application of new technologies, policies, legislation, and training to improve environmental performance.
Previously, Mr. Penders was the Director of Legal Counsel with EPA's Office of Criminal Enforcement.
Readers interested in further details on technological advancements that can be utilized in connection with environmental enforcement can contact the authors by mail at ESI Headquarters, 1225 I Street, Washington, D.C. 20005; by telephone at (202) 349-4046 and (602) 508-1700; or by e-mail at
ENDNOTES
1. See Jennifer Reid, Rome 1999: The G-8 Nations' Environmental Crime Project, NAT'L ENVTL. ENFORCEMENT J., Nov. 1999, at 3.
2. Respectively, see generally: the Montreal Protocol on Substances that Deplete the Ozone Layer, Sept. 16, 1987, 1522 U.N.T.S. 29; the Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and Their Disposal. May 5, 1992; the International Convention for the Prevention of Pollution from Ships (MARPOL), Nov. 2, 1973, 12 I.L.M. 1319; and the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Dumping Convention or LC '72), Dec. 29, 1972.
3. More information about OTIS may be found at http://www.epa.gov/oeca/idea/otis.
4. See Steven P. Solow, The Big Chill: How Federal Agencies Are Working Together to Stop CFC Smuggling, NAT'L ENVTL. ENFORCEMENT J., June 1997, at 9.
5. See generally S. EARSEL, REMOTE SENSING IN THE 21ST CENTURY: ECONOMIC AND ENVIRONMENTAL APPLICATIONS (Balkema 2000); Charles Davies et al., Moving Pictures: How Satellites, the Internet, and International Environmental Law Can Help Promote Sustainable Development, 28 STETSON L. REV. 1091 (1999); and ERIC C. BARRETT & LEONARD F. CURTIS, INTRODUCTION TO ENVIRONMENTAL REMOTE SENSING (4th ed. Stanley Thornes 1999).
6. See generally Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 11, 1997.
7. Allison Gardner, Environmental Monitoring's Undiscovered Country: Developing a Satelite Remote Monitoring System to Implement the Kyoto Protocol's Global Emissions Trading Program, 9 N.Y.U. ENVTL. L.J. 152 (2000).
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