1. Introduction
Countries worldwide face stark inequalities in environmental burdens and risks.Footnote 1 This issue arises in a wide range of cases, from the siting of polluting industries in close proximity to minority or vulnerable populationsFootnote 2 and the health effects of pesticide use on farmworkers,Footnote 3 to the outsized impact of climate change on disadvantaged countries and communities.Footnote 4 The growing recognition that contemporary society intensely and universally experiences environmental injustice has boosted the use of the environmental justice approach to scrutinize and make environmental decisions.Footnote 5 Grounded on this premise, legal mechanisms and instruments are being formulated to address environmental justice issues in every dimension. The United States (US) has pioneered this effort, starting with Federal Actions to Address Environmental Justice in Minority and Low-Income Populations, an executive order issued by the Clinton administration in 1994.Footnote 6 Since the 1990s, the US Environmental Protection Agency (EPA) has adopted various environmental justice strategies, among which the most recent was for the years between 2016 and 2020.Footnote 7 Notably, the Biden administration prioritized ‘equity, environmental justice and civil rights’ as central to its missionFootnote 8 with ‘decisive action to advance environmental justice and civil rights’ as a strategic goal for 2022–26.Footnote 9 Environmental justice was a priority in the previous US administration, reflected in its 2023 executive order on environmental justice ‘Revitalizing our Nation’s Commitment to Environmental Justice for All’Footnote 10 and the Justice40 Initiative.Footnote 11 Particularly relevant for this article, EPA strategies emphasize enforcement as a crucial area for advancing environmental justice.Footnote 12
This article argues that, as a legal framework, environmental justice is about rulemaking, planning, and decision-making, and also about enforcing the law. The enforcement pillar has frequently been under-emphasized in both scholarly debates and policy implementation regarding environmental justice as it is often viewed merely as a technical or administrative function, rather than as a site where justice claims are actively shaped and contested. We contend that environmental justice objectives can be achieved through a flexible enforcement approach. By ‘flexible enforcement’ we refer to a regulatory strategy that combines deterrence-based tools (such as sanctions and penalties) with cooperative mechanisms (such as negotiated compliance or corrective action programmes), applied in a manner that is sensitive to contextual variables – such as the vulnerability of affected communities, the structural capacity of regulated entities, and the environmental significance of the harm. This study examines three country case studies to identify environmental justice guidelines in enforcement:Footnote 13 firstly, the US, where environmental justice is an explicit goal of the federal EPA’s enforcement policy and strategy; secondly, the United Kingdom (UK) enforcement framework, which features new regulatory instruments and a flexible approach to sanctions;Footnote 14 thirdly, Chile, a country whose environmental sanctions system, while not part of the same legal tradition, has been influenced by the US and the UK. In Chilean law, environmental justice guidelines are a relatively new addition to the supervisory, sanctioning, and compliance functions.Footnote 15
Through a review of policy documents, legal doctrine, cases, and rules, we examined the legal systems in these three countries in order to identify similarities, differences, opportunities, challenges, and insights that can help to support environmental justice through law enforcement. As such, rather than a strictly comparative legal analysis, this is a case review intended to identify guidelines. The purpose of this analysis is twofold: firstly, to fill a gap in the environmental justice literature by integrating enforcement as a core component within the legal framework of environmental justice; secondly, to critically assess flexible enforcement tools according to their potential to promote environmental justice outcomes. This ‘thin’ comparative analysis aims to address the uneven distribution of environmental burdens, risks, and impacts from non-compliance.Footnote 16
The article begins by referring to environmental justice as a framework for the analysis of environmental law and policy (Section 2). It then examines the regulatory and institutional design of environmental enforcement arrangements in the three countries (Section 3). For each case study, it then reviews the enforcement tool that, in our judgement, can best help to attain environmental justice objectives (Section 4). Environmental justice guidelines are identified, with an emphasis on similarities across countries (Section 5). The article ends with some conclusions (Section 6).
2. Environmental Justice as a Legal Framework
Environmental justice emerged in the 1970s and 1980s from US grassroots movements concerned about the disproportionate burdens caused by environmental impacts and risks to vulnerable groups. Since then, various disciplines – including philosophy, sociology, economics, and environmental law – have expanded the concept.Footnote 17 Scholars identify two key dimensions of environmental justice: distributive and political/participatory. These include, on the one hand, equity in the distribution of environmental burdens and benefits, which is tied directly to the notion of distributive justice; on the other, meaningful participation, tied to the notion of procedural or political justice.Footnote 18 Further dimensions identified as part of the concept are recognition, understood as acknowledging the value of the vulnerable communities and groups that bear most of the environmental burdens;Footnote 19 corrective justice, which consists of ensuring that any party liable for harm caused to the rights and interests of another makes reparation to the victim;Footnote 20 and restorative justice, which heals parties affected by crimes and seeks to restore them to the positions in which they were before they were committed.Footnote 21
Scholarly analysis has shaped environmental justice into a framework for evaluating environmental law and policy.Footnote 22 Some even argue that, as a legal principle, environmental justice functions not merely as a political or ethical aspiration but as a normative standard with legal relevance and interpretative weight within legal systems.Footnote 23 Indeed, certain international and national legal norms include one or more dimensions of environmental justice.Footnote 24 Environmental justice appears in legal systems both explicitly – through rules that are explicitly incorporated into positive law, such as norms that regulate citizen participation in environmental issuesFootnote 25 – and implicitly, shaping environmental legal reasoning applied to the interpretation of the meaning and scope of regulations. These implicit rules influence judicial decisionsFootnote 26 and regulatory discretion in environmental matters.Footnote 27 A key feature of the development of the environmental justice legal framework is its link to urban environmental risks, which disproportionately affect vulnerable populationsFootnote 28 as a result of race-based and class-based land-use patterns.Footnote 29 As such, the literature on environmental justice has focused primarily on land-use planning and environmental decision-making.Footnote 30 However, we argue here that the notion of environmental justice can also be applied to a number of other issues. As Lazarus notes:
Environmental justice is not just about siting. It is not a code for ‘Not in My Backyard’. It is symptomatic of a much broader issue. Environmental justice is about distribution. It is about distribution in the first instance, and it is about distribution over time.Footnote 31
One of these issues is effective law enforcement, which is key to achieving environmental law objectives. ‘Enforcement is the cornerstone of effective environmental regulation’Footnote 32 and it ‘helps ensure fairness and a level playing field among regulated entities’.Footnote 33 This assertion becomes urgent for vulnerable communities unduly affected by pollution and the environmental impacts and risks arising from non-compliance. The need to incorporate an environmental justice approach into law enforcement has been raised in national legal systems, particularly in the US, where, as noted, environmental justice is a stated EPA policy goal. A 1992 empirical study conducted by the National Law Journal concluded that EPA penalties for violations of federal environmental regulations were substantially lower in minority communities than in white communities.Footnote 34 In as early as 1994, Kuehn argued that:
The causes of unequal enforcement are likely to be the same structural causes that have been blamed for the general unequal distribution of environmental hazards among minorities and low-income communities. Racist attitudes, lack of economic and political clout, and lack of participation in government decision-making all play a causal role.Footnote 35
Environmental justice thus depends heavily on robust enforcement policies and regulations. A key enforcement tool is the determination of fines and allocation of collected funds to address environmental justice concerns. With regard to sanctions, proposals include increasing fines in highly polluted areas inhabited by vulnerable populationsFootnote 36 or directing funds to affected communities.Footnote 37 These proposals show the relevance, from the standpoint of environmental justice, of the decisions and instruments at play in the use of environmental enforcement discretion. These encompass the whole spectrum of the exercise of such powers, such as the determination of what and how often to inspect, how to allocate enforcement and sanctioning resources, the available instruments to use, and the sanctions to impose. The next section analyzes enforcement approaches in the three countries to assess their integration of environmental justice principles.
3. Environmental Enforcement Approaches in the Case Studies
Approaches to environmental enforcement range from being based primarily on deterrence to those that strongly encourage collaboration between regulators and offenders.Footnote 38 The cases reviewed here follow a variety of approaches.Footnote 39
3.1. Environmental Enforcement in the US
To Gunningham, the EPA represents a paradigmatic example of a deterrence-based approach to environmental enforcement,Footnote 40 noted for applying rules and standards across the board. Rechtschaffen further notes that the EPA strategy relies on penalties as the primary enforcement tool.Footnote 41 The emphasis is on detecting non-compliance and gathering evidence to prove it. The EPA primarily enforces environmental laws retrospectively, responding to violations and imposing penalties to deter future breaches.Footnote 42 While deterrence remains its hallmark, regulators and policymakers encourage the EPA to work more collaboratively with violators.Footnote 43 The ‘collaborative’ approach emphasizes securing compliance before resorting to sanctions and promotes the withdrawal of penalties in exchange; levying fines is seen as a mark of failure. Based on incentives and primarily prospective enforcement, this approach, which focuses more on the underlying conditions or violations than on the violator,Footnote 44 emphasizes cooperation over confrontation and conciliation over sanctions.Footnote 45 The intent is to prevent harm, best achieved through persuasion and negotiation. Unlike deterrence, this method assumes that most entities will comply voluntarily.Footnote 46
Rechtschaffen criticizes the trend to promote radical changes to the EPA approach to sanctions (promote compliance over enforcement), arguing that it should remain deterrence-based, and perhaps embrace relevant aspects of the cooperative model.Footnote 47 He advocates a hybrid approach that incorporates flexibility. In response, the EPA has put forward tools that pursue additional objectives and embrace socially valuable objectives. While maintaining transparent regulations and deterrence, the EPA assesses enforcement tools case by case to determine the most effective approach for environmental protection.Footnote 48 As such, deterrence-based enforcement does not preclude flexibility in achieving environmental objectives. The EPA uses a regulatory and enforcement design based on inspection, gathering data, building a case, and taking legal action only if the case cannot be settled.Footnote 49 The process is essentially discretionary, as the EPA alone decides what, when, and how to inspect, and whether to apply sanctions. The process includes formally negotiating with offenders in order to avoid legal or administrative proceedings. Negotiations can include the mandatory adoption of environmentally beneficial measures defined in consent agreements. Tellingly, most EPA enforcement cases do not go to trial.Footnote 50 The most common sanction is the financial penalty, which stands to reason if the objective is to prevent gain and penalize offenders. The EPA has wide latitude to determine the amount of the fine, based on ceilings set by applicable statutes. The EPA can also resort to alternative arrangements, notably the Supplemental Environmental Projects (SEPs), reviewed below.
3.2. Environmental Enforcement in the UK
The UKFootnote 51 traditionally channels environmental enforcement through criminal courts,Footnote 52 though critics argue that not all violations involve negligence or criminal intent.Footnote 53 As such, the British government, in 2005, asked Richard Macrory to review the administrative sanctions system and to propose options for more efficient, fair, and proportionate penalties.Footnote 54 Macrory’s report of November 2006, ‘Regulatory Justice: Making Sanctions Effective’,Footnote 55 noted the importance for ‘government to ensure that regulators have a flexible and proportionate sanctioning toolkit which also ensures the protection of workers, consumers and the environment. That toolkit should provide appropriate options to handle the regulatory needs’.Footnote 56 Macrory advised grounding the toolkit on certain key principlesFootnote 57 and characteristics,Footnote 58 such as the use of innovative options to encourage compliance and introducing enforceable undertakings and ‘undertakings plus’ as more flexible and proportionate alternatives to criminal prosecution.Footnote 59 He also recommended introducing pilot schemes involving restorative justice techniques.Footnote 60 Most of his recommendations were incorporated into the Regulatory Enforcement and Sanctions Act 2008,Footnote 61 which controls enforcement in the UK in general, with specific sections for England, Wales, Scotland, and Northern Ireland.Footnote 62 Brexit has not substantially altered environmental enforcement rules in the UK.Footnote 63
Two bodies established under the Environmental Protection Act 1995Footnote 64 stand out: England’s Environment Agency (EA) and the Scottish Environment Protection Agency (SEPA).Footnote 65 These particular regulators have explicit pollution responsibilities, just as the EPA in the US and the Superintendencia del Medio Ambiente (SMA) in Chile have. Both the EA and SEPA base their enforcement policies on achieving certain objectives,Footnote 66 notably stopping unlawful activities with an impact on the environment; restoring or remediating environmental damage; returning offenders to compliance; eliminating financial gain obtained from unlawful activities; sanctioning offenders and deterring others. In taking enforcement action, these agencies uphold the principles of proportionality, need, consistency, transparency, and accountability.Footnote 67
Overall, UK environmental enforcement has shifted from a punitive to a more nuanced, objective-driven approach. Civil (administrative) sanctions are prioritized over criminal penalties, with consideration of public interest factors such as intent and impact. Scotland’s Environmental Regulation Order 2015 provides multiple enforcement options. Enforcement aims to stop and prevent non-compliance, with penalties reflecting the severity of the offence. Regulators notify offenders of sanctions, allow appeals, and enforcement details become public.
When addressing non-compliance, the EA determines firstly if there is sufficient evidence to impose criminal or civil (administrative) sanctions; while the current preference is for the latter, some can be harsher than criminal penalties.Footnote 68 If the EA decides to impose a criminal penalty, it must consider a suitable option – generally fines or community service; prison terms are the exception – and its implications and consequences. Strict liability, the rule for criminal breach of environmental regulations, carries low penalties, which has led to criticism of its deterrent value.Footnote 69 If civil sanctions are deemed appropriate, several options are available.Footnote 70 The Environmental Regulation (Enforcement Measures) (Scotland) Order 2015 also provides for a range of alternatives.Footnote 71 Due consideration is given to the public interest involved based on intent, predictability, environmental impact, nature of the offence, financial gain, deterrent effect, prior offender conduct, cooperation, and personal circumstances. Other factors may be considered, depending on the nature and severity of the non-compliance. The choice is aligned with the overall objective of halting the offending behaviour. This can be achieved through specific penalties or a combination thereof. The goal is to remediate the damage caused, stop the offending behaviour, and prevent recurrence.
Once regulators have imposed a specific measure (except for a stop notice), they notify the offender, provide an opportunity to answer the charges, consider the response, and finally notify the sanction imposed and the grounds thereof.Footnote 72 Violators may appeal through the courts or through administrative venues set up for this purpose. Enforcement details become part of the public record.Footnote 73 In sum, UK environmental enforcement has shifted from a punitive model to a more flexible, objective-driven approach.
3.3. Environmental Enforcement in Chile
Chile’s environmental enforcement framework was established under the 2010 Law 20.417 (LOSMA),Footnote 74 which created the Environmental Enforcement Authority or Superintendencia del Medio Ambiente (SMA). According to the legislative history of this law, prior to this reform oversight was fragmented, disorganized, and costly’,Footnote 75 while the token fines levied failed to deter.Footnote 76 A key reason for the 2010 legislation was the need to set up an adequate oversight and enforcement system. The 2005 Organisation for Economic Co-operation and Development (OECD) Environmental Performance Review of Chile highlighted the urgent need for reform in sanctioning and oversight functions.Footnote 77 A new environmental inspection agency was recommended. LOSMA granted the SMA exclusive authority over compliance monitoring and sanctions. The roles and powers of the SMA are extensive, from overseeing environmental management instruments and providing compliance assistance, to imposing fines and setting technical guidelines for oversight agencies. The enforcement process begins with the laying of chargesFootnote 78 and concludes with sanctions.Footnote 79 The SMA’s sanctioning role requires a finding that an incident is an offence under Article 35 LOSMA, then classifying it as minor, serious, or very serious (Article 36). The SMA then assesses the circumstances outlined in Article 40 in order to determine the appropriate sanction.Footnote 80 LOSMA provides incentives such as voluntary disclosure,Footnote 81 remediation plans,Footnote 82 and the compliance programmes (CP)Footnote 83 discussed below. Chile’s enforcement model combines deterrence with incentives and collaboration.Footnote 84
4. Enforcement Instruments Helping to Attain Environmental Justice Goals
As previously mentioned, the three countries under review employ distinct approaches to environmental enforcement; yet all provide flexibility in selecting the most suitable option for each case. This flexibility enables the integration of environmental justice objectives into enforcement practices. The section below examines one enforcement instrument from each country under review. All share features designed to encourage compliance and, as we argue, flexibly incorporate environmental justice guidelines.
4.1. US: Supplemental Environmental Projects (SEPs)
SEPs are projects that benefit the environment, derive from a settlement, and are independent from any other legal obligation.Footnote 85 Dating back to a 1991 policy statement, supplemental projects may be considered if:
(i) Violations are corrected through actions to ensure future compliance; (ii) Deterrence objectives are served by payment of a substantial monetary penalty; and (iii) There is an appropriate ‘nexus’ or relationship between the nature of the violation and the environmental benefits to be derived from the supplemental project.Footnote 86
This approach has helped to promote and strengthen SEPs: some 700, worth an estimated US$189 million, were approved in 1992 to 1994 alone.Footnote 87 In 1995, the EPA issued a new policy statement expressly noting that SEPs were part of its deterrence-based strategy. In 1998, the EPA expanded requirements to include community participation. The most recent update to the EPA SEP policy,Footnote 88 which consolidated the provisions in previous policies and memoranda, was published in 2015.
The EPA has significant policies in place for the formulation and approval of SEPs. A key provision is that SEPs are to improve, protect, or reduce risk to public health or the environment. Even if the project benefits an offender, the primary beneficiaries should clearly be public health and the environment. In addition, offender commitments must be based on a legal agreement on which the EPA has commented and reviewed in advance. SEPs cannot be initiated before the EPA finds an offence and legally notifies the offender; moreover, SEPs cannot be linked to a legal obligation – for example, they cannot be enforceable under other statutes. The EPA notes seven categories and an eighth residual class that can be approved as an SEP. These include public health, pollution prevention, pollution reduction, environmental remediation and protection, environmental compliance assessments and audits, environmental compliance promotion, and emergency planning and preparedness, plus other projects that meet EPA conditions and can yield environmental or public health benefits. The policy also lists projects that do not qualify.Footnote 89
For deterrence purposes, the EPA requires SEPs to clearly indicate their settlement status;Footnote 90 SEPs are not sanctions and cannot replace penalties. While the deterrence approach of the EPA requires levying a fine even when a case ends in agreement, violators can have up to 80% of SEP costs deducted from the amount of the fine. Exceptionally, the full amount can be deducted if the project provides especially significant environmental justice benefits. Deductions are set at discretion and there is no hard-and-fast figure, but if overseeing and monitoring implementation should require a significant outlay of public funds, this will be factored in when calculating deductions. That said, deducting only a percentage of costs is cited among the reasons for under-use of SEPs.Footnote 91 Indeed, in what amounts to a clear disincentive, offenders implementing an SEP pay more than those who pay a fine. SEP approval requires:
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A sufficient nexus: The SEP must relate directly to the offence, aiming to prevent future violations and mitigate environmental or public health risks.Footnote 92 EPA rules note that the nexus is easier to establish if the primary impact of the project occurs at the site of the violation, in a different location within the same ecosystem, or within the same immediate geographic area. Projects can have a nexus even if they address a different pollutant in a different medium, as long as the project is related to the offence in question. While this distinction is not part of policy, the essence of the nexus requirement is its direct relation to the EPA goal of protecting the environment and public health. It also refers to financial conditions imposed by US legislation.Footnote 93
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Community input:Footnote 94 The EPA encourages SEP proposals to obtain early feedback from affected communities. Ideally, offenders and the EPA should collaborate in soliciting community input, but the EPA may do so on its own (for example, where environmental justice issues are involved). The EPA holds that such input helps to address the needs of affected communities, promote environmental justice, foster better understanding of EPA enforcement efforts, and improve community relations. Community feedback helps in focusing on their particular environmental priorities and concerns, which is especially important when a range of SEPs are considered. In addition, communities can be a source of innovative ideas that might not otherwise be considered. Communities are not party to SEP negotiations.
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Assessment criteria:Footnote 95 The EPA evaluates proposals for SEPs based on several critical factors that affect deductions from fines. Higher scores in each category lead to greater deductions. Key factors include: (a) significant, quantifiable public health or environmental benefits; (b) environmental justice, focusing on reducing harm or exposure in at-risk communities; (c) community input; (d) innovative processes, technologies, or methods that effectively reduce pollutants, conserve resources, or enhance ecosystem protection and climate resilience; (e) projects that reduce emissions at multiple sites without shifting pollutants; and (f) pollution prevention.
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Third-party execution: Violators implementing an SEP are fully liable for it, even if third parties are retained to execute it. This obligation is not transferable.
That said, SEPs are not in wide use. As reported on the EPA website, 951 SEPs, worth some US$299 million, were settled between 2012 and 2022.Footnote 96 Most were approved in 2012 and 2015, then decreased drastically in 2020 as a result of restrictions imposed by the first Trump administration. The EPA fully restored SEPs in May 2022, after settling two enforcement cases that included agreements by the violator to perform SEPs with a total estimated value of over US$800,000. With the return of SEPs, in 2023 EPA expected ‘an increase of SEPs to help communities impacted by environmental violations’.Footnote 97
Though under-used, SEPs receive extensive scrutiny from legal scholars and practitioners, reflecting their established advantages and limitations.Footnote 98 Key among the opportunities that SEPs provide for communities affected by non-compliance are environmental justice benefits such as pollution reduction, environmental restoration, and promotion of public health. For violators, SEPs offer a reduction in fines of up to 80%. SEPs afford affected communities an opportunity to voice their views in enforcement cases and offenders a chance to collaborate in the remediation process. This promotes greater equality between the parties involved, fosters constructive engagement between victims and offenders, encourages mutual respect, and ensures that all perspectives receive equal consideration. Furthermore, recognizing the specific harm experienced by individuals and communities enhances their social acknowledgement and visibility.
4.2. UK: Environmental Enforcement Undertakings (EEUs)
Originating in Australian legislation,Footnote 99 environmental enforcement undertakings (EEUs) are:
a flexible sanction that enable regulators to tailor their enforcement response to individual circumstances taking industry considerations and resources, such as management capacity and willingness to restore harm, into account. They represent a valuable alternative to traditional regulatory enforcement action because they can address the needs of several parties involved in or affected by the wrongdoing as well as connecting and preventing breaches and their underlying causes.Footnote 100
EEUs are legally binding agreements between the regulator and business, requiring the latter to rectify non-compliance within a specified time frame.Footnote 101 Regulators must establish reasonable grounds for an infringement and ensure that the proposed actions prevent recurrence. To the extent possible, EEUs are to restore the affected environment to its former state and result in benefits, including financial compensation,Footnote 102 for affected individuals. EEUs specify the actions that offenders agree to carry out, which should aim to (i) stop the breach, (ii) restore the environment, (iii) compensate affected individuals, and (iv) provide equivalent environmental benefits or improvements if restoration is not possible. EEUs also set deadlines and compliance indicators.Footnote 103 In England, EEU application is limited to the statutes listed in Schedule 5 of the Environmental Civil Sanctions (England) Order 2010.Footnote 104 In Scotland, as noted in Schedule 4 of the Environmental Regulation (Enforcement Measures) (Scotland) Order 2015, EEUs apply to a wider range of statutes.Footnote 105
Especially relevant to this article are the EA and SEPA approval guidelines. The EA advises early and proactive submission of EEUs to improve approval prospects.Footnote 106 Once a proposal is submitted, the EA assesses the regulatory response by examining the nature and impact of the offence and potential mitigation actions. It then determines the feasibility of compliance, requiring good faith and a high compliance standard. Offenders must commit to stopping the offending behaviour, maintaining compliance, and proposing actions to mitigate violation impacts while engaging with affected stakeholders. Transparency is mandatory; offenders cannot restrict the publication of EEU approval if environmental or health harm is involved, or their proposals will be declined. Offenders must also show evidence of damage remediation or plans to commence promptly.
Before approving a proposal,Footnote 107 the SEPA weighs the nature of the offence, the extent of the damage, and the prospects for compliance based on prior conduct. Offender undertakings must include preventive and long-term measures to ensure a better environmental outcome, as well as mechanisms providing for a timely result. Both countries require repayment of agency costs, notably for the time and resources spent on assessing the offence and evaluating EEUs, plus gifts to charitable or non-profit organizations designed to help in remediating the environmental damage caused. The EA and SEPA guidelines consider the nature of the offence to be a decisive factor. In England and Wales, EEUs apply only to minor infringements; serious offences do not qualify.Footnote 108 In Scotland, EEUs do not apply if the SEPA finds that criminal prosecution is in order instead. EEUs are also refused if the environmental damage is significant, if they contain disclaimers or exceptions to non-compliance, or if regulators doubt the violator’s ability to complete the actions. Both agencies can refuse an EEU if the public interest so demands. Upon completion of an EEU, offenders must provide evidence of compliance. If completed effectively, a certificate of compliance is issued, revoking monetary penalties. In cases of non-compliance, the EA/SEPA can issue a penalty notice, initiate criminal proceedings, or reschedule compliance, highlighting their discretionary powers.
EEUs are widely used in environmental enforcement in both EnglandFootnote 109 and Scotland. The EA report ‘Regulating for People, the Environment, and Growth’ notes that 80 EEUs were approved in 2020, resulting in donations of GBP£3.1 million to environmental groups.Footnote 110 EEUs are typically used by admitted violators willing to remediate the damage caused. The EA approved over 729 EEUs from 2011 to 2022,Footnote 111 showing them to be a significant tool in addressing non-compliance. This shows, once again, the discretionary powersFootnote 112 of environmental agencies in determining the most appropriate enforcement approach for specific violations. EEUs are in active use for a variety of reasons, including significant cutbacks to the authority’s enforcement, investigation, and sanctioning budget, and the provisions that allow agencies to recover costs. EEUs also offer violators a chance to restore the environment to its former state and carry out compensatory actions. Yet, other than the studies cited here, EEUs do not seem to have attracted much scholarly or research interest, which explains the paucity of comprehensive or more recent publications on the subject.
4.3. Chile: Compliance Programmes (CP)
CPs are incentive mechanisms administered by the SMA. CP regulation in LOSMA is sparse, focusing mainly on procedural matters. As noted in the law, review procedures are contained in the Regulations on Compliance Programmes, self-disclosure, and remediation plans.Footnote 113 The LOSMA and the Regulations define CPs as a set of goals and plans of action assisting businesses in meeting applicable environmental standards. These regulatory definitions, however, omit key aspects and considerations of the scope of CPs. Firstly, CPs are agreements that offenders propose to the SMA, which approves or declines them. Secondly, CP actions and goals aim to rectify infringements and address the environmental impact of non-compliance. In other words, more than helping to implement plans of action, CPs seek to return to compliance and remediate adverse impacts,Footnote 114 making them a highly relevant environmental protection tool.
CPs have been defined as ‘a commitment to effectively perform certain actions and achieve certain goals aimed at rectifying unlawful behaviour and addressing the environmental impact of non-compliance, as applicable’.Footnote 115 As the Second Environment Court has noted:
CPs are incentives that include actions allowing offenders to return to a state of compliance … It can therefore be inferred that lawgivers expressly created CPs in order to underline the relevance of compliance and offer an exemption from sanctions in exchange for the satisfactory completion of a robust environmental compliance plan. As such, CPs are corrective in nature.Footnote 116
Case law shows that CPs have a dual purpose: promptly to return to regulatory compliance and protect the environment.Footnote 117 CP components include four key elements: (i) contents, (ii) offender identification, (iii) submission time frame, and (iv) purpose. The contents, as outlined in Article 7 of the Regulations, encompass (a) a description of the relevant facts, actions, or omissions and their effects; (b) goals and plans to meet environmental standards, including measures to mitigate or rectify impacts of non-compliance; (c) a monitoring plan with a schedule of actions, compliance indicators, and implementation reports; and (d) technical data and estimated compliance costs to demonstrate effectiveness and credibility. In July 2018, the SMA published a guide providing assistance and support for the CP submission process.Footnote 118 Under LOSMA and the Regulations, the SMA will not consider proposals from violators who have previously opted for a programme of gradual compliance, who have been penalized for serious offences, or who have proposed a prior CP unless it involves minor infringements.Footnote 119 Approval is contingent on the proposal meeting the following three requirements noted in Article 9 of the Regulations:
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Completeness: The CP should address every violation and its environmental impacts comprehensively.Footnote 120
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Effectiveness: Actions and goals must ensure compliance with the relevant statutes and effectively check, mitigate or remove the impact of the offence,Footnote 121 a condition that poses a major challenge for offenders.
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Verifiability: CPs must include mechanisms to verify completion of action plans and attainment of goals.Footnote 122
Article 9 of the Regulations further notes: ‘Under no circumstances will the authority approve Compliance Programmes through which an offender attempts to evade liability or benefit from the offence, or which are openly dilatory’. Once an enforcement action starts, offenders have 10 days in which to propose a CP, which the SMA reviews and either approves or rejects. If approved, enforcement is paused and the SMA oversees implementation of the CP. The enforcement action concludes once the CP is certified as complete. If the CP is declined, the opportunity to respond to charges reopens. Successful CP implementation results in the SMA certifying completion and ending the enforcement without sanctions. However, failure to meet the CP requirements may lead to resumed enforcement and the potential doubling of fines.
CPs are the most widely used compliance incentive tool in Chile. Over 1,000 have been submitted to the SMA to dateFootnote 123 – significantly more than the other compliance incentive mechanisms, such as self-disclosureFootnote 124 and remediation plans.Footnote 125 This is primarily the result of the LOSMA regulatory design, which benefits offenders who successfully implement a CP. As noted elsewhere, ‘CP incentives can be represented as a scale holding the public interest on one arm and the interest of offenders in avoiding a fine on the other. To violators, CPs offer direct financial benefits, and above all, reputational benefits’.Footnote 126 That said, the thin regulatory densityFootnote 127 of Chilean law gives the SMA significant latitude in using CPs, provided it stays within the law and the Regulations.Footnote 128 For instance, the Regulations note the purpose of CPs but do not state explicitly that their primary goal is to protect the environment.
5. Environmental Justice Guidelines
This section examines whether SEPs, EEUs, and CPs incorporate environmental justice rules and guidelines, both in their formal regulatory frameworks and in their practical implementation. All three countries have adopted the environmental justice approach in different ways. The US has a well-established theoretical framework for environmental justice within its laws, policies, and regulations.Footnote 129 While the UK has debated environmental justice and its potential legal recognition, its use as a theoretical focus has been driven primarily by civil society, non-profits, and academia.Footnote 130 Although the British government does have environmental justice strategies and policies in place,Footnote 131 these are rather abstract initiatives short on implementation specifics. As Mitchell notes, ‘[t]he UK has developed credible evidence of environmental inequality, but no comparable [to the US] response has been made, and progress towards environmental justice has been slower than many hoped for given the political support of the early 2000s’.Footnote 132 On 18 February 2002, Scottish First Minister Jack McConnell stated that social and environmental justice were fundamental for his administration, noting that:
The reality is that the people who have the most urgent environmental concerns in Scotland are those who daily cope with the consequences of a poor quality of life and live in a rotten environment – close to industrial pollution, plagued by vehicle emissions, streets filled by litter and walls covered in graffiti. This is true for Scotland and also true elsewhere in the world. These are circumstances which would not be acceptable to better off communities in our society, and those who have to endure such environments in which to bring up a family or grow old themselves are being denied environmental justice.Footnote 133
In 2018, the British government published ‘A Green Future: Our 25 Year Plan to Improve the Environment’, a blueprintFootnote 134 that explicitly sought to advance social and environmental justice and the equal distribution of environmental benefits, resources, and opportunities. The Plan noted that ‘a healthier environment also helps deliver social justice and a country that works for everyone. … Through this Plan we want to ensure an equal distribution of environmental benefits, resources and opportunities’.Footnote 135 The Plan cited environmental justice as a goal of British policy.Footnote 136
Chile is progressively incorporating environmental justice into its legal and policy frameworkFootnote 137 and various interpretations of its value as a legal principle have been made.Footnote 138 In the recent constitutional debates, environmental justice was embraced in the drafts prepared by both the Constitutional Convention of 2022Footnote 139 and the Expert Commission of 2023.Footnote 140
Therefore, the enforcement tools we have analyzed operate within legal frameworks that incorporate environmental justice to varying extents. While SEPs remain the only enforcement tool with express environmental justice objectives, EEUs and CPs share with them certain features that offer the potential for applying in practice some or all of the components of environmental justice. That said, no research was found that explicitly ties the contents and application of EEUs and CPs to environmental justice objectives.Footnote 141 The standards set forth in this section are derived primarily from interpretive connections that are more implicit than explicitly articulated within the enforcement frameworks. This analysis explores whether the regulatory instruments adopted by the EPA (SEPs), the EA/SEPA (EEUs), and the SMA (CPs) reflect environmental justice rules or guidelines. The following sections identify and examine elements of environmental justice embedded within these enforcement mechanisms. For the purposes of this analysis, we must recall that environmental justice is understood to encompass several key dimensions: the equitable distribution of environmental harm and benefits; meaningful participation in environmental decision-making; the recognition of vulnerable communities disproportionately exposed to environmental risks; the reparation of harm caused to others; and the restoration or healing of those affected by environmental wrongdoing.
5.1. Remediation of Environmental Damage
Remediation, traditionally not an enforcement priority, is now increasingly integrated into policy.Footnote 142 To ensure that environmental impacts are rectified, remediation is built into the EPA regulatory design.Footnote 143 In the UK,Footnote 144 offenders must propose measures to address environmental damage or public health impact.Footnote 145 In Chile, CP approval is contingent on rectifying violation impacts.Footnote 146 A key reason for the extensive use of these tools is that, under certain circumstances, remediation is a better option than a fine.Footnote 147 Requiring violators to propose tailored remediation enhances environmental justice by addressing community impacts more efficiently than regulatory intervention. Moreover, when these processes incorporate public participation in the selection and design of remedial measures – as is the case with SEPS, analyzed below – they enhance environmental justice by ensuring that the responses reflect local priorities, restore community trust, and provide a degree of recognition and procedural inclusion often absent from traditional sanctioning approaches.
5.2. Additionality
Environmental additionality, a key SEP feature, aligns with environmental justice by generating otherwise unattainable benefits.Footnote 148 As analyzed above, the EPA policies on SEPs require that such projects serve to improve, protect, or reduce risks to public health or the environment. Importantly, SEPs must not be actions that the regulated entity is already legally obligated to perform; as a result, they are intended to generate additional environmental or public health benefits beyond those required by law. As has been noted,Footnote 149 these benefits help to address both the specific violations targeted by enforcement and historical pollution burdens. EEUs, for example, can require offenders to provide long-term environmental and community benefits and adopt more sustainable business practices.Footnote 150 Offenders are expressly expected to go beyond the minimum required to restore the environment or, failing that, to provide compensation.Footnote 151 These conditions are part of the requirements for approval of EEU components.Footnote 152 Similar to SEPs, EEUs keep the focus on deterrence but generate additional benefits, including the option of donating to charitable or non-profit groups for the specific purpose of remediating damage caused. Violators must contribute to organizations that are directly involved in environmental restoration, ideally related to the specific infraction. Although CP regulations do not mandate additionality,Footnote 153 at least two cases have been identified in which the SMA used its prerogatives to do so.Footnote 154 In both cases, the violators agreed to actions that went beyond merely returning to compliance. These criteria enhance the tools’ potential to support distributive environmental justice by addressing both immediate harm and historical pollution burdens. It also helps to target activities affecting the communities that bear the largest environmental burdens and risks.
5.3. Community Involvement
Public participation has been integral to SEPs since 1998, but EEUs lack formal inclusion, drawing legal criticism. Pedersen notes that non-transparent EEU negotiations may undermine legitimacy:Footnote 155
One problem is that the information which the Environment Agency makes available in relation to the undertakings it has accepted is sparse and allows for little public engagement. There is no information indicating what the specific negotiations prior to the undertaking being accepted might have been and what the terms for the specific undertaking might be, nor is there any information indicating what type of harm the offence has resulted in.Footnote 156
The absence of explicit community involvement or participatory environmental justice requirements can impair EEUs as a tool. To date, no rules or practices exist that suggest that EEU design and implementation could involve affected groups in approval decisions. Moreover, questions of transparency can extend to donation recipients. As EEUs are not binding on them, regulators are powerless to ensure that donations are actually used to remediate environmental damage – an issue of some concern considering that during the period 2011 to 2019 the average gift rose from GBP£7,600 to £18,000.Footnote 157 While Chilean law is also not explicit on issues of community involvement, the SMA has been known to allow some room for stakeholders to provide input on proposals.Footnote 158 This weakest of enforcement links should be toughened if EEUs and CPs are to effectively achieve environmental justice goals.
6. Conclusions
This article has argued that law enforcement is crucial for the achievement of environmental justice objectives. It plays a determining role in addressing the unequal distribution of environmental burdens and in challenging entrenched power asymmetries. Moreover, it has shown that using environmental justice as a framework for analyzing enforcement tools offers concrete guidance for the design of enforcement systems that are not only legally effective but are also responsive to justice dimensions such as equity, participation, and recognition. By linking enforcement practices with environmental justice-oriented criteria, the article contributes to strengthening environmental justice as a normative standard within legal systems.
Our review of SEPs, EEUs, and CPs as comparable tools created under dissimilar environmental enforcement legislation aimed to ascertain whether environmental enforcement agencies in the countries in question use environmental justice guidelines. While these tools being added to the regulator toolkit are relatively new and have different origins, they all seek to streamline the punitive system and improve regulatory outcomes.
This article shows that, while SEPs have explicit links to the elements and goals of environmental justice, EEU and CP connections are more implicit than explicit. Still, the characteristics and requirements of all three appear to be compatible with the elements and goals of environmental justice. In particular, the presence of the guideline to remediate environmental impacts across all three tools shows that all have the potential to achieve environmental justice goals, especially in their distributive dimensions. This is further strengthened by the environmental additionality requirements that define SEPs, also present in EEUs and, to some extent, in CPs. These requirements can certainly allow for measures that further a more equal distribution of environmental burdens. Save for SEPs, which include it as an essential element, least represented in these tools is the participatory dimension of environmental justice. The recognition and restorative justice dimensions, on the other hand, can be found in SEPs (and eventually in EEUs and CPs) that promote constructive engagement by offenders and affected communities with a view to redressing the burdens the latter disproportionately bear. These enforcement mechanisms go beyond the traditional punitive approach, which simply imposes a fine but provides no reparation for affected stakeholders.
In order to enhance the efficacy of these tools in addressing environmental justice issues, specific recommendations can be made. Firstly, the participatory dimension should be more robustly integrated across all enforcement mechanisms. This could involve mandating stakeholder consultations and community involvement in the development and implementation of EEUs and CPs. Secondly, there should be a standardized framework for assessing the environmental additionality of these tools to ensure consistency and transparency in their application. Thirdly, it is crucial to establish clear guidelines for the recognition and restorative dimensions, emphasizing the need for offender accountability and community empowerment in the enforcement process.
In conclusion, while the capacity of each instrument to address the challenges of disproportionate and historical pollution burdens must be assessed on a case-by-case basis, it is evident that all three tools have the potential to incorporate environmental justice guidelines effectively. By adopting these guidelines, environmental enforcement agencies can enhance the alignment of these mechanisms with environmental justice objectives, thereby contributing to a more equitable and sustainable regulatory landscape.
Acknowledgements
We wish to thank Elizabeth Fisher and Amy Porter for their valuable and helpful comments. We are grateful as well to the two anonymous TEL reviewers for their thoughtful suggestions.
Funding statement
The authors acknowledge funding by the Research Agency of Chile (Agencia Nacional de Investigación y Desarrollo) for the Fondecyt project Nº 11190464, Millenium Nucleus NCS2022_009 and FONDAP 1523A0002.
Competing interests
The authors declare none.
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