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Hanging Judge or Fair Play? The judicious use of environmental enforcement

To prosecute or not to prosecute?

How do we balance “fair” with “fast” when business needs to lift its environmental game?

Consider a cost-benefit analysis: the cost of developing a council environmental training program would be paid off if it avoided the cost of just one prosecution.

Does this mean that all prosecutions can be avoided by governments delivering good industry training? Not necessarily.

Good operators support enforcement because they hate being undercut on bids by less scrupulous firms skimping on the costs of their environmental controls. And they hate having their sector brought into disrepute when environmental incidents hit the media, as they inevitably do.

Doctoral researcher Mark Wright says that there are thousands, if not hundreds of thousands, of environmental offences a year in New Zealand, yet under 100 prosecutions.

I believe that enforcement – the use of legal sanctions (including prosecutions) for breaches of environmental law – is a vital part of the environmental management toolbox. But it’s much more effective when it’s part of a supportive framework that includes research, policy, training and, most importantly, partnership.

So what would happen if there were a supportive framework but no prosecution? Or prosecutions without any support for industry to improve its performance?

Read on  to discover the perverse outcomes of poor enforcement choices:

  • The Hanging Judge
  • The Wild West
  • Hands Off

– and find out how to set up a Level Playing Field that supports the good operators and lifts the game of the other players.

Not surprisingly, people feel strongly about enforcement: they either love it or hate it.

While enforcement is an essential tool, it’s not a tool of first resort. It needs to be part of a multi-pronged approach to promote rapid improvements in environmental practice, an approach that must also be transparent and in line with natural fairness and justice.

For example, it would clearly be a breach of natural justice if an environmental agency lacked clear standards, but used punitive enforcement in the event of breaches of the law, especially where there are no clear guidelines as to what measures would have enabled them to avoid it. Industry would understandably lose confidence in environmental laws and processes.

But what if enforcement was not used at all, but good guidelines and industry training were available? In that case, we’d probably see better environmental performance emerge – but it might take a very long time, with valuable environmental resources being damaged along the way, and a loss of community confidence in the law.

So on balance, I think that having a good regulatory framework (ideally accompanied by a good guideline and industry training in how to use it) and the appropriate use of sanctions and incentives offers a faster track to environmental protection. These days, in New Zealand at least, councils can choose from various levels of legal enforcement, from small “instant fines” up to full prosecution in a court of law before a specialist judge.

All the evidence tells me that taking a partnership approach to this issue is highly cost-effective and produces a better overall results for participating businesses and the environment in a shorter time.

By “supportive framework”, I mean the elements shown in my success framework shown below. This version is for government bodies (I have a different one for businesses) and includes:

  • a partnership-based approach to an environmental issue
  • a strong research base to justify its management of the issue
  • a clear policy framework
  • an appropriate level of environmental permitting and regulation, including enforcement
  • an effective and well-resourced training program
  • good outcome monitoring to measure the effectiveness of the elements in the framework.

The success framework sets up a process that is fair to all parties, including communities affected by the environmental issue of concern. Enforcement provisions are ideally supported by a transparent and consistent approach to making decisions about when and how to use enforcement, such as the excellent example given by Environment Canterbury.

There are two times when not to invest in the stock market: one when you don’t have money, and two, when you do have money. Mark Twain

So… when is it a good time for a company to invest in good environmental controls? One, when you are heavily regulated, and two, when you’re not.

Why? Because hard-nosed business experience shows that taking sensible precautions to protect the environment can save significant contractual and other financial losses caused by storm damage to works, as well as generally being good – and profitable – business practice.

Check out the table below for more detail about the four options for government bodies to consider when deciding what approach they will take to using enforcement – it shows how good regulation and enforcement in the context of the supportive success framework promotes sustainable changes in practice – faster and more cost-effectively.


  • Find out more about Mark Wright’s research into breaches of environmental law in New Zealand in this excellent article by Jamie Morton of the New Zealand Herald here
  • Read my blog on the ROI of environmental training here
  • Find out more about my ROI Workshop here and my other workshops here