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Some applause for administrative penalties

February 2, 2014

Before your eyes glaze over, let me explain why a current BC Ministry of Environment public consultation on Administrative Penalties under the Environmental Management Act and the Integrated Pest Management Act (IPMA) matters – and is a good thing for environmental enforcement in BC.  However, we will also touch on ways to strengthen the environmental protection offered by these flexible tools.  The government consultation continues until February 21st, 2014.

What are administrative penalties?

Right now under both of these important environmental statutes, the BC government has a few options when someone breaks the law – say discharging waste without a permit under the Environmental Management Act.  Two that are actually intended to inflict a penalty are:

For most offences the government could choose to either issue a ticket or lay charges, depending on the severity of the offence.  There are other powers that can be used – orders to clean up environmental problems, to provide information, or to take action to protect the environment, for example – but charges and tickets are currently the main tools for actually inflicting a penalty. 

However, charges cost tens of thousands of tax-payers dollars, use scarce court time and are being used much less frequently in recent years.  They are increasingly reserved for high profile or particularly egregious offences. 

But tickets, which run in the $500 range under these two statutes, may not be enough to provide a deterrent to businesses or land owners who stand to gain significant benefits from ignoring a little thing called environmental law. 

Administrative penalties fill the gap between charges and tickets.  They give officials within the Ministry of Environment the authority to decide on and impose penalties in the course of their own “administration” of the Act – without needing to turn to courts.  Unlike tickets, the penalties can be significant, but can also be tailored to the individual circumstance.  Since they don’t need to involve complicated, expensive and scarce court resources, they are more likely to be used by the Ministry of Environment. 

Administrative penalties have been used in BC’s forest laws since the mid-1990s (although their use, unfortunately, is dropping), and the provisions of the Environmental Management Act and the Integrated Pest Management Act have both been around since those statutes were passed by the Legislature – but this public consultation is the first indication that they will be implemented.

Administrative penalties, as proposed in the Ministry’s discussion paper are:

  • “calculated and imposed by designated Ministry officials instead of a court of law.”  They are not issued in the field by Conservation Officers, but do require an investigation and consideration by higher-up government officials.
  • “designed to remove the financial benefit, advantage or gain achieved by breaking the rules or to ‘make the Crown whole’ when non-compliance results in damage to the environment. In other words, the penalties are significant enough to provide a real deterrent and to avoid low fines that could become another cost of doing business.  
  • “an administratively efficient and flexible tool” that will “provide the Ministry with an appropriate response to a  range of contraventions for which suitable remedies are not currently available.”  Administrative penalties allow Ministry officials to fashion penalties that are appropriate to the circumstances (much as judges could, but without the hassle of court). 

The discussion paper sets out a process by which alleged violators will:

  • Be notified that an administrative penalty is being considered;
  • Be given an opportunity to provide their side of the story;
  • Receive a final decision on whether a penalty is being imposed; and
  • Allow violators who maintain their innocence or object to the amount of their penalty to appeal the administrative penalty to the Environmental Appeal Board

What’s good, how it could be better

There is no doubt that the Ministry of Environment needs to have some option between tickets and charges.  With fewer and fewer charges being laid under environmental statutes (there has never been a charge laid under the Integrated Pest Management Act since it became law in 2006), environmental offenders face little in the way of deterrence. 

This is not to say that administrative penalties should replace charges in serious cases – court prosecutions play an important role in providing a deterrent and addressing serious non-compliance (a fact that the discussion paper acknowledges).  More efforts are needed to reverse the long-term decline in convictions under environmental statutes in BC.  Nor do they replace the need for strong and funded environmental enforcement programs.  In this regard, we are disturbed to read that a reason for the penalties is so that the Ministry can “[increase] its reliance on self monitoring and reporting by regulated parties.”

But we entirely agree that administrative penalties are an important tool, and we are very glad that the Ministry is planning to implement them.  We’ve been advocating for them for over 20 years

We think that a central focus of the administrative penalties should be making the polluter pay and “making the Crown whole” – that is, compensating the public for the environmental loss.  In this context, we like that the discussion paper gives an assessment of the harm that occurred, or could have occurred, from the violation a central role in the process:

The decision maker would also consider the adverse effect the contravention has on the environment or human health and safety, taking into account not only the actual environmental or human health effect, but also, what could have resulted from the contravention. This assessment would be specific to the circumstances of the contravention in question, and would consider not only the level of harm, but also factors such as how localized or persistent (short vs. long term) the impacts are, or could be.

However, although the discussion paper touches on the relevant factors to be considered in setting a fine, it seems to leave a lot to the individual government official.  OK – the decision-maker is to consider whether the offender “exercised due diligence” – meaning that they took reasonable steps to avoid a consequence – but it seems to be up to the decision-maker whether that’s just one factor to be considered, or whether an offender can avoid all consequences by demonstrating that the offence occurred despite his or her best efforts.

In our view, environmental offences need to have consequences, even if there are arguably extenuating circumstances.  Over two decades ago we proposed a less discretionary structure for administrative penalties where (to paraphrase):

  • For serious offences a minimum penalty should be automatic – recognizing that it is the responsibility of the polluter to avoid pollution and that “absolute liability” provides a strong incentive to get things right, and greatly simplifies enforcement.  For these offences, and to that amount, the “fault” of the polluter is irrelevant (a concept known in law as absolute liability). 
  • Where the environment or the public have suffered actual harm, or the polluter is at fault, the government official can then increase penalties to reflect that harm, and to avoid unjust enrichment. 
  • Fines collected from administrative penalties should be used for the environment; and
  • In some cases it should be possible to pursue both charges (aimed at punishment) and administrative penalties (aimed at compensating the public for the environmental loss).  (This is not currently possible under the Administrative penalty provisions of the Environmental Management Act or the IPMA.) 

The evidence that absolute liability is the best way to hold polluters responsible, and to give them incentives to take all reasonable steps to protect the environment, is as compelling as ever.  The broad factors outlined in the discussion paper should not be viewed as excusing pollution, and should not be allowed to undermine the simplicity of administrative penalties and the certainty that illegal pollution will be met with a penalty. 

Conclusion

Implementing the administrative penalties provisions of the Environmental Management Act and Integrated Pest Management is long overdue, and kudos to the Ministry of Environment for recognizing that these tools will complement the existing ticketing, charges and other tools in the government’s environmental enforcement toolbox.  

By Andrew Gage, Staff Lawyer

The photo is the Conservation Officer Service crest.