On Friday (June 16), I led a workshop on environmental criminal enforcement at the Kaohsiung City/County Environmental Protection Bureau in South Taiwan (where I was for a conference at the National University of Kaohsiung). It was a really fascinating discussion with the local regulators about the issues presented by the choice of administrative vs. criminal enforcement and how the US approach differs. (In Taiwan, environmental enforcement proceeds through an administrative court system that is the mark of a number of civil law systems.) While there is close cooperation by the environmental agencies with prosecutors in investigating and bringing criminal cases, there is still a learning curve on these issues.
More importantly, like in the United States, the applicable burden of proof on these issues is controversial. This also came up in an interesting meeting I had with the Taiwan Environmental Protection Administration Minister Dr. Ying-Yuan Lee (whom I had the honor to spend a little bit of time with a few days ago). A notable prosecution in recent years against a semiconductor company had resulted in a criminal conviction for pollution violations. Unfortunately, the subsequent appeal led to a reversal of the conviction, primarily because the appeals court thought that a higher standard of proof should have been applied by the trial court.
One take-away for me from these meetings and workshops is that criminal environmental enforcement issues are clearly being thought about very carefully. They are important as a tool for supplementing traditional environmental enforcement penalties, especially when those non-criminal penalties are not providing a sufficient inducement to polluting industries to comply with the law. Another take-away was that the effect of China’s continuing efforts to isolate Taiwan internationally has also impeded cooperation on environmental matters. Too bad, given Taiwan is doing a lot of work in this area. But also because Taiwan is heavily industrialized in some parts of country, including Kaohsiung, and so has much experience to share.