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Vol. 39, Nº 70 (2021), 446-464
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Administrative Liability
for Environmental Oences:
A Comparative Study
DOI: https://doi.org/10.46398/cuestpol.3970.27
Olga M. Merdova *
Demian V. Smernytskyi **
Kostiantyn V. Zaichko ***
Valerii M. Podoinitsyn ****
Serhii M. Onyshchenko *****
Abstract
The article addresses the basic concepts of administrative
liability for environmental crimes based on international
experience and practice through the investigative method of
sociological analysis. Administrative sanctions that have a
positive eect on the existing legislation of countries and those
that have a positive eect only in certain regions were identied. It is
argued that there are administrative and legal norms that do not have
much inuence and eectiveness in addressing environmental problems
based on the structural and comparative research methods of the
system. The issue of the consciousness of man and society in violation of
environmental law is emphasized as a kind of administrative responsibility
due to logical-semantic and formal-logical research methods. The key
elements of the eectiveness of administrative responsibility in the eld of
environmental crimes are highlighted. It is concluded that the analysis of
the implementation of environmental policy and its relationship with the
practice of administrative responsibility for environmental crimes through
the use of a dialectical research method ensures maximum eciency in the
identication of the topics of this study.
* PhD in Law, Associate Professor, Head of Department of Administrative and Legal Disciplines. Donetsk Law
Institute of the Ministry of Internal Aairs of Ukraine, Donetsk, Ukraine. ORCID ID: https://orcid.org/0000-
0003-0769-2364. Email: olga.merdova64@ukr.net
** Doctor of Juridical Sciences, Senior Researcher in State Research Institute of the Ministry of Internal Aairs of
Ukraine, Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-0001-6066-0324. Email: sdv246@ukr.net
*** PhD in Law, Нead of research department in State Research Institute of the Ministry of Internal Aairs of
Ukraine, Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-0001-5987-3197. Email: dndi53@ukr.net
**** PhD in Law, Leading researcher of the certication department in State Research Institute of the Ministry
of Internal Aairs of Ukraine, Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-0001-8874-1222. Email:
podoynitsynval@ukr.net
***** PhD in Law, Leading researcher in Scientic Organizational Department of the State Research Institute of
the Ministry of Internal Aairs of Ukraine, Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-0002-9944-5995.
Email: seo2016_k@ukr.net
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Vol. 39 Nº 70 (2021): 446-464
Keywords: Administrative liability; administrative oence; ecology;
environmental oences; environmental protection.
Responsabilidad administrativa por delitos
ambientales: un estudio comparative
Resumen
El artículo aborda los conceptos básicos de responsabilidad
administrativa por delitos ambientales basados en la experiencia y práctica
internacional a través del método de investigación del análisis sociológico.
Se identicaron las sanciones administrativas que tienen un efecto positivo
en la legislación vigente de los países y las que tienen un efecto positivo solo
en determinadas regiones. Se sostiene que existen normas administrativas
y legales que no tienen mucha inuencia y efectividad en el abordaje de
los problemas ambientales basándose en los métodos de investigación
estructural y comparativa del sistema. Se enfatiza el tema de la conciencia
del hombre y la sociedad en su conjunto en violación de la ley ambiental
como una especie de responsabilidad administrativa debido a los métodos
de investigación lógico-semántica y formal-lógica. Se destacan los elementos
clave de la ecacia de la responsabilidad administrativa en el ámbito de
los delitos ambientales. Se concluye que el análisis de la implementación
de la política ambiental y su relación con la práctica de la responsabilidad
administrativa por delitos ambientales mediante el uso de un método de
investigación dialéctica asegura la máxima eciencia en la identicación de
los temas del presente estudio.
Palabras clave: Responsabilidad administrative; infracción
administrative; ecología; delitos ambientales;
protección del medio ambiente.
Introduction
Relevance of the research topic
Among the current issues worldwide there is a problem of rational use
of natural resources and their reproduction, environmental protection,
and environmental safety. Since future generations rely heavily on the
solution of issues regarding the environmentally and anthropogenic living
conditions of human beings and society, the conservation of the natural
environment is important and multifarious.
448
Olga M. Merdova, Demian V. Smernytskyi, Kostiantyn V. Zaichko, Valerii M. Podoinitsyn y
Serhii M. Onyshchenko
Administrative Liability for Environmental Oences: A Comparative Study
The urgent need to address the problems of environmental protection,
rational use of natural resources and environmental security calls for
the eective measures, including legal ones. One of them can be the
introduction of administrative liability for environmental oences. In fact,
one of the underlying causes of environmental problems in Ukraine is the
unsatisfactory control over compliance with environmental legislation
and failure to ensure the inevitable liability for its violation. Therefore, the
administrative leverage for violations of environmental legislation should
be considered one of the legal factors aimed at ensuring the environmentally
sustainable nature management and compliance with environmental law
enforcement.
Environmental damage has been a major problem for decades. Legal
systems have implemented a variety of legal instruments to prevent
environmental damage, one of which is environmental liability. The
accountability mechanism was likely to be rst developed in the United
States (Revesz and Stewart, 1995) but was increasingly used in EU member
states in the 1980s, especially after contamination locations were identied
in quite a few member states, predominantly soil contamination with
orphaned sites, which often entails to huge expenditures for governments
(and therefore puts a strain on taxpayers).
Currently, Ukraine is at the stage of developing the relevant regulations
that would clearly impose liability, including administrative, for
environmental safety violations. The driving mechanism of such changes is
the European integration processes, the implementation of which requires
revising and updating of Ukraine’s environmental legislation, considering
EU environmental standards for sustainable development, and preserving
the environment for future generations.
Having ratied the Association Agreement with the European Union,
at the present stage of development Ukraine worked out the strategic ways
of economic, political, and legal development all the way through to a full
membership in the EU. The radical reforms to follow and the positive results
of their implementation are of particular importance for the successful
solution of the of environmental protection issue, in the framework of which
the state, national, regional, and global aspects are closely intertwined.
The object of the study is the public relations that developed in the
process of enforcing the administrative liability for environmental oences.
The subject of the study is the environment and human health, for
the violation of which liability may be imposed, administrative liability
included.
The purpose of this study is a comprehensive analysis of the
administrative leverage for environmental oences as exemplied by the
best international practices. Having identied the main legal provisions
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regulating the oences committed in the environmental sphere and for
which administrative liability is applied, it will be possible to determine
whether the dynamics of the environmental situation in these countries
is improving with specic regulation of administrative liability for
environmental oences.
In view of the above, the main tasks include:
• the scope of a person’s and society’s awareness of an environmental
law violation as a kind of administrative liability.
• the analysis of the implementation scope of environmental policy
and its interaction with the practice of administrative liability for
environmental oences.
• determination of eectiveness level of laws and regulations on
the implementation of administrative liability for environmental
oences in foreign countries.
• the eectiveness of regulations on the application of administrative
liability in the eld of environmental oences.
1. Literature review
In the national legislation of the EU member states, the legal mechanisms
of environmental liability were scattered. As such, those were concerned
with certain categories of damage, however not properly specied.
Consequently, the categories were not eective enough in protecting the
environment and preventing damage to the environment.
As stipulated in the national legislation, preservation, protection and
sustainable use of the environment are seen as a dening vector of European
environmental policy. One of the instruments aimed at ensuring the above
is environmental liability, the legal framework of which is dened by
Directive 2004/35/EC of the European Parliament and of the Council “On
environmental liability for the prevention and remedying of environmental
damage” dated April 24, 2004 (hereinafter – Directive 2004/35/EC on
environmental liability or Directive 2004/35/EC) (Verkhovna Rada of
Ukraine, 2004).
The Association Agreement outlines Ukraine’s commitment in the
environmental eld, in particular on enhancing cooperation between
Ukraine and the EU on environmental issues with a view to its preservation,
protection, improvement and reproduction. Ukraine has committed itself
to gradual approximation of the national legislation to the requirements of
directives and regulations (Verkhovna Rada of Ukraine, 2014).
450
Olga M. Merdova, Demian V. Smernytskyi, Kostiantyn V. Zaichko, Valerii M. Podoinitsyn y
Serhii M. Onyshchenko
Administrative Liability for Environmental Oences: A Comparative Study
At the international level, the issue of administrative liability is much
spoken about. For example, the sources of French environmental law are
quite diverse: international law (bilateral and multilateral agreements);
European Union law (directives and regulations); Constitution (the
Constitution of 1958) (Constitute., 2021), Environmental Charter) (Conseil
Constititionnel, n.d.); laws (mostly codied in the Environmental Code);
regulations; decrees; and decisions (Martinet and Savin, 2021).
It is noteworthy that in the United States there is no general regime of
environmental damage. Statutes, regulations, and common law can impose
dierent types of liability, including administrative, civil and criminal. In
their turn, courts set a precedent for liability in cases arising under various
environmental laws. Presumed violators may be involved in administrative
lawsuits, civil lawsuits or civil lawsuits. Moreover, only the government can
initiate and prosecute a case in the court of law (Beveridge & Diamond PC,
2018).
Despite these starting points, it is not uncommon in many countries
that the environmental responsibility has diculty in achieving its goals.
This is, on the one hand, partly due to the general diculties for victims in
using the accountability mechanism. In fact, the barriers to justice access
can be high; damage to the environment can sometimes be widespread (as
a result of which there cannot be a single victim who can sue); uncertainties
over causation and delays may also contribute to diculties in applying the
accountability mechanism in addition to general diculties in accessing
justice (such as the high cost of the legal system). On the other hand,
to crown it all turns out that especially when companies do harm to the
environment, the liability mechanism often remains ineective for the sole
reason that companies do not de facto have to pay for the damage they have
caused by their activity (European Parliament, 2020).
2. Methods and Materials
For a comprehensive analysis of examining the administrative liability
for environmental oences, the activities of several countries in this area
were analysed, namely: Britain, Australia, USA, Germany, and Ireland.
These countries regulate administrative liability for environmental oences
in quite dierent ways, which makes it possible to take a more specic
approach to this issue.
However, despite the specic considerations of this study from the
standpoint of these ve countries, the experience of other countries was
also scrutinized.
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From this perspective, the legal framework of Canada on this issue was
analysed, namely the Environmental Violations Administrative Monetary
Penalties Act (EVAMPA) (Government of Canada, 2017), which denes
the concept of a fair and ecient regime of administrative monetary
penalties. AMP is a penalty intended to create a nancial deterrent for
non-compliance of certain legal requirements and to supplement existing
enforcement measures that may be ineective or available in any situation.
The Regulations on Administrative Penalties for Environmental Violations
(AMP Regulations) complement the AMP regime by establishing key details
of this regime (Justice Law Website, 2017).
Further, particular attention should be paid to administrative liability
for environmental oences in Latvia. A number of environmental issues
and conformity to the current legislation were investigated (European
Commission, 2019).
The present analysis was performed on the basis of ocial analytical
data, so they fully correspond to the state of administrative enforcement in
the eld of environmental oences.
The study used the methods of sociological analysis, which contributed
to the generalization of international practice of administrative sanctions
for environmental oences, as well as the analysis of empirical information.
System-structural and comparative methods allowed to examine the
administrative and legal principles of supervising the compliance with
environmental legislation, issues of administrative and jurisdictional
activity in the eld of environmental protection, information, and analytical
support as well as planning.
Logical-semantic and formal-logical methods were used in the study
of the conceptual apparatus. Drawing on these methods, denitions are
formulated within the research topic. The dialectical method was used in
considering the studied problems and determining the main directions of
developing the mechanism of environmental protection.
The study draws heavily on the scientic works of domestic and foreign
scientists as a theoretical basis, relying on analytical data, statistics on
administrative liability in general and in the eld of ecology in particular.
3. Results
Administrative enforcement for environmental oences has become
increasingly relevant. To understand the reasons, it is expedient to consider
in more detail the international experience.
452
Olga M. Merdova, Demian V. Smernytskyi, Kostiantyn V. Zaichko, Valerii M. Podoinitsyn y
Serhii M. Onyshchenko
Administrative Liability for Environmental Oences: A Comparative Study
To compare the eectiveness of administrative liability for environmental
oences and a detailed analysis of the application of certain sanctions in
dierent countries, we present Table 1 for consideration of the sanctions.
Table 1: Comparative analysis of some types of administrative
enforcement for environmental oences
Sanction Description
Britain
Australia
USA
Germany
Ireland
Mandatory
environmental
audit
The regulator forces the
company to audit its activities
+ + + + +
Fixed
administrative
monetary penalties
Payment of the specied
amount of money for the
oender or compensation for
the violation
+ + + + –
Variable &
discretionary
administrative
penalties
Payment of a variable amount
should be determined at the
discretion of the regulator for
the discharge or compensate
the oence.
– – – – –
Source: designed by the author, according to current legislation
The rst sanction, namely mandatory environmental audit, applies in all
the countries, but operates dierently.
In particular, in the UK there is no general status for this condition,
but it is a frequent condition for the issuance of various permits. Thus, this
sanction is applied, although not a direct legal requirement (Coxall and
Hardacre, 2020). The United States exercises this sanction instead of other
nes or nes in general (GovInfo, 2018).
To that end, this sanction is most coordinated in Australia, Ireland, and
Germany. However, it is in Germany, which is not only applied to the most
extent, but also the most eective.
To get an insight which countries apply the rst sanction to a greater
extent, it is expedient to study Figure 1.
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Figure 1.: Leverage of mandatory environmental audit
The second sanction, namely a xed administrative monetary penalty is
not enforced in all countries, which will further allow us to determine both
the benets and downsides of this sanction.
Drawing on the example of the UK, this sanction is used but normally
only for an agreement with minor oences, i.e., it is not widely enforced. An
unlimited ne may be imposed in the UK for an administrative oence of
environmental legislation.
It is also worth noting that Australia, which also does not widely use
this sanction, but rather enforces it in relation to exceeding the permissible
limits set by law (Australian Federal Police, n.d.).
In the United States, this sanction is used only in permits that may
provide for surcharges for exceeding the permissible. That said, only in
occasional cases an administrative sanction in the form of a ne can be
imposed.
This sanction works best in Germany, where it is successfully used
in accordance with current legislation. An administrative ne for an
environmental oence can amount EUR 50,000 (Elspaß and Feldmann,
2020).
When it comes to Ireland, there is no similar sanction in this country.
Thus, if we create a diagram for the application of the second sanction
exemplied above, it is expedient to consider Figure 2.
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Olga M. Merdova, Demian V. Smernytskyi, Kostiantyn V. Zaichko, Valerii M. Podoinitsyn y
Serhii M. Onyshchenko
Administrative Liability for Environmental Oences: A Comparative Study
Figure 2: Leverage of a xed administrative monetary penalties
However, there are sanctions that are applied very rarely, as exemplied
by our third sanction, namely the variable administrative sanctions. It is
not applied in the studied countries and there are no similar ones, but it is
quite interesting because it provides for a variable payment, the amount of
which must be determined at the discretion of the regulator for the category
or to fully compensate for violations.
It is noteworthy that there are many administrative oences in the eld
of ecology, but the rst two sanctions exemplify how countries can regulate
their current legislation and how seriously they address administrative
liability. To do this, we move to consider Figure 3.
Figure 3: Comparative analysis of sanctions leverage
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It is clear from the comparative analysis in the above diagram that
Germany has the most regulation regarding administrative liability for
environmental oences, while in Ireland and Australia it is not addressed
to the fullest degree. Nevertheless, there are countries that are consistently
straining after the development of administrative liability for environmental
oences. Those include the United Kingdom and the United States.
Given the above, some particular studies on administrative liability
for environmental oences should be summarized. With this in mind,
some potential administrative sanctions are currently in place in Ireland
for environmental violations, which include mandatory inspections,
enforcement notices and environmental safety orders.
Apparently, Ireland’s position on administrative sanctions is similar to
that of the United Kingdom, i.e., non-compliance with the regulatory sector
has led to signicant reliance on strict liability oences. Moreover, Ireland
(similar to the United Kingdom) has not yet developed and implemented
a comprehensive administrative regime. However, the introduction of any
new regime of administrative sanctions must take into account and address
certain potential problems of the state in the eld of ecology.
Environmental regulators in England rely heavily on administrative
sanctions, especially those that are more informal. However, a key issue
in the UK is the lack of a diversied administrative regime to achieve
optimal regulation of administrative liability in accordance with the scope
of delimitation of environmental aspects.
In Germany, administrative sanctions are widely used, which is
why prosecutions and criminal proceedings play only a minor role in
environmental protection. It should be noted that administrative sanctions
were introduced to ensure consistency between large organizations and
companies, as other types of liability rested only with the individual and
not with the company. Administrative sanctions have been very eective
in complying with environmental standards, mainly due to their exibility
and large-scale approach.
There is a common law system in Australia, and the Stevenson Harwood
Report identied New South Wales (Stephenson Harwood, 2020) as the
main study, as there is a well-established enforcement regime in that
state. The report conrms that there is a very wide range of administrative
sanctions in New South Wales. These sanctions were introduced in 1999, as
it became clear that criminal law failed to adequately address the diverse
nature of environmental violations and that exibility required a wide
range of sentencing options. In Australia, administrative sanctions have
been proved to be highly eective.
In the United States there is a system of federal and state law. Various
types of liability, including administrative, are established for violations of
456
Olga M. Merdova, Demian V. Smernytskyi, Kostiantyn V. Zaichko, Valerii M. Podoinitsyn y
Serhii M. Onyshchenko
Administrative Liability for Environmental Oences: A Comparative Study
environmental legislation. It should be noted that administrative sanctions
are widely applied in the United States, but their eectiveness is ambivalent
(Environmental Protection Agency, 2009).
Latvia should get into the limelight, where the public, in particular
individuals and non-governmental organizations, are provided with very
wide access to justice in environmental matters, ie the right to protect
common interests. Everyone has the right to apply to the responsible
administrative institution or to appeal to the administrative court for
the environment without any other specic conditions. In other words, a
complaint can be led if a person believes that an administrative decision,
actual action, or omission violates the law protecting the environment and
nature or threatens to harm the environment. The right to le complaints
and appeals solely for environmental reasons is the only exception allowed
in administrative institutions or before the courts. In any other legal
dispute, applicants must prove that their personal rights have been violated
to be entitled to appeal or appeal to a court (Valsts valodas centrs, 2004).
In Canada, the policy framework for implementing the Environmental
Monetary Sanctions Act, namely Chapter 4, clearly denes who may
be subject to the AMP, what are the types of violations and what are the
aggravating factors. It should be noted at once that the law not only denes
the main criteria of the violated right, but also additional ones. For example,
the type of violation, the basic level of violation and aggravating factors are
considered to determine the punishment, and only then the amount of
environmental damage is determined (Government of Canada, 2018).
In the Republic of Tatarstan, administrative liability in the eld of
environmental protection is regulated by the Code of administrative
divisions of the Republic of Tatarstan, which in fact contains only one
denition of an oence in this domain – destruction of rare and endangered
animals or plants (Article 3.1 of the Administrative Violations Code of the
Republic of Tatarstan) (Pravo Tech, 2006).
Thus, the conservation, protection and sustainable use of natural
resources is a dening vector of European environmental policy. One of
the tools aimed at ensuring it is environmental responsibility, and the
legal framework thereof is dened by law. The purpose of regulations is to
establish a framework of environmental liability to prevent and eliminate
the consequences of environmental damage.
The principles on which the EU’s environmental policy is based are
enshrined in Article 191 of the Treaty on the Functioning of the European
Union (EUR-Lex, 2012). In particular, part 2 states that the policy is
based on the precautionary principle and the principles of the need to take
precautionary measures, eliminate the consequences of environmental
damage and the principle “the polluter pays”. The legal mechanisms of
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environmental liability were fragmented in the national legislation of
the EU member states, also were related to certain categories of damage,
were not properly specied, as a result they were not eective enough in
protecting the environment and preventing environmental damage.
Thus, summarizing the international practice of applying administrative
sanctions for environmental oences, we can identify the main directions of
development of this type of liability in Ukraine.
The system of administrative enforcement for environmental oences
in Ukraine comprises penalties determined by the Code of Ukraine on
Administrative Oences, as well as those enshrined in other legislative
documents. It should be noted that the most common type of administrative
penalties for violating environmental legislation in Ukraine is a ne. The
amount of the ne is determined within the sanctions of a specic article of
the Code of Ukraine on Administrative Oences, taking into consideration
the gravity of the oence, the identity of the oender, the degree of their
guilt, property status, as well as the mitigating or aggravating circumstances.
According to Art. 24 of the Code of Administrative Oences of Ukraine,
the following administrative penalties may be applied for committing
administrative oences: 1) warnings, 2) nes, 2) penalty points; 4) paid
sequestration of an object that has become an instrument of commission or a
direct object of an administrative oence; 5) conscation: an object that has
become an instrument of commission or a direct object of an administrative
oence; money received as a result of committing an administrative
oence; 6) deprivation of a special right granted to a given citizen (right to
drive vehicles, right to hunt); 7) community works; 8) corrective works; 9)
administrative arrest; 10) arrest with detention on guard duty (Verkhovna
Rada of Ukraine, 1984).
It is worth noting that administrative liability is an eective means
of protecting the environment, its facilities and resources, as well as the
citizens’ lives and well-being. The advantages of this type of legal liability
are primarily the focus on preventing and non-admissiom of signicant
damage to the environment and human life and health, as well as the
prompt response to violations, which is especially important in the eld of
environmental protection.
That is why, in the case of an administrative oence in the eld of
environmental law, nes should be imposed, as they are the most eective
way to sensibly address the problem. However, it should be emphasized
that this issue should be clearly monitored by the authorized bodies and
ocials, who should, in accordance with their ocial duties, promptly
respond to environmental oences. This will make it possible in the future
to reduce the overall number of environmental violations.
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Serhii M. Onyshchenko
Administrative Liability for Environmental Oences: A Comparative Study
4. Discussion
Having conducted research in the eld of administrative liability
for environmental oences, it should be noted that it is far from being
unambiguous. Some countries prefer to apply administrative sanctions for
this type of violation to a greater extent, and some countries consider them
ineective and, as a result, do not leverage comprehensive regulation of
administrative oences, including in the eld of environmental oences.
Examining the standpoints of foreign scholars, we can agree with the
statement that the development of administrative liability for environmental
oences constantly calls for changes in legislation, as the environmental
situation worldwide is constantly changing.
Sharing the standpoint of the British scholars Michael Coxall and
Elizabeth Gardakre, it should be noted that the legislation needs constant
change, which greatly complicates the work of the legislator as a whole.
However, this minimizes all negative processes and actions, including
issues related to environmental safety, with regard to administrative
responsibility and the environment.
Furthermore, the same position is held by German scientists Matthias
Elschpas and Felix Feldman. Therefore, taking a closer look at the Ukrainian
legislation, it is necessary to draw an analogy between the studied countries
and develop only the most eective reforms of administrative legislation, in
particular concerning environmental aspects.
To that end, Germany, the Netherlands, and a number of other countries
where administrative sanctions are applied are the main enforcement tools
for dealing with environmental violations.
Administrative sanctions are easier to impose than other types of
liability, such as criminal (and therefore they are cheaper).
Overall, the administrative enforcement is the most eective one.
According to the researchers, they need administrative sanctions for crimes
that do not deserve an expensive criminal procedure, but still require
some form of punishment. Without administrative options, a number of
moderately serious cases may not be prosecuted.
It should be noted that the researchers did not examine the eectiveness
of the dierent approaches in terms of whether companies improved
environmental compliance or achieved better environmental protection.
Besides, the researchers identify limitations eected by the lack of
data. There were no reliable data on the number of violations and their
consequences in many cases. Therefore, they recommend a harmonized
system for collecting data on inspections, breaches, measures and sanctions
across Europe (European Commission, 2016).
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It is worth noting the scal year (FY) 2020 of the Environmental
Protection Program (EPA), which achieved tremendous results for the public
and the environment, increasing the environmental benets of its cases
despite the COVID-19 public health emergency. The Oce of Enforcement
(OECA) obtained these results by rapidly adapting and focusing resources
on priority issues during a global pandemic.
“In scal year 2020, EPA of Enforcement and Compliance Assurance
sta demonstrated extraordinary resilience, creativity, and perseverance
as they continued to assure compliance with environmental laws,” stated
Susan Bodin, Assistant Administrator for Enforcement and Compliance
Assurance. “I am very proud of the work we accomplished this year”
(Environmental Protection Agency, 2020).
This indicates that the issue of environmental safety is changing
every year, and this is reected in the changes that are taking place at the
legislative level in each country as a whole.
Thus, administrative liability for environmental oences will pursue its
growth in some countries to a larger and in some to a lesser extent. This is
what serves as an exchange of international experience and the formation of
so-called “supporters” of administrative responsibility, or its “opponents”.
The positive aspect of the situation lies in the fact that almost no
environmental oence will go unpunished, even if the legislation on
environmental protection changes and the legislation on administrative
liability will not be able to make appropriate changes in due time.
However, there is a negative impact of general norms in the legislation:
very often the executor of the law prefers to use general standards and does
not try to prove that certain environmental oences are specic, which
reduces the eectiveness of administrative responsibilities in the eld of
environmental protection (Selivanovskaya and Gilmutdinova, 2018).
In light of the above, it should be noted that currently the liability for
environmental oences attracts a lot of attention, largely owing to inuential
people who are really trying to help resolve certain environmental issues.
Youth climate activist Greta Thunberg, making recently accusations of
environmental negligence, has urged almost all countries to pay attention
to the legal regulation of environmental oences, including administrative
(Kids Rights, 2019).
Conclusion
Currently, there is little doubt that administrative liability for
environmental oences is important for each country and the entire society.
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Olga M. Merdova, Demian V. Smernytskyi, Kostiantyn V. Zaichko, Valerii M. Podoinitsyn y
Serhii M. Onyshchenko
Administrative Liability for Environmental Oences: A Comparative Study
For that reason, this issue has always been attracting the scientic interest
and the scholars are ready to probe deeper theoretically into this topic, as
well as to provide their suggestions for improving legal regulations.
Drawing on the study of international experience, including countries
such as the United Kingdom, Australia, USA, Germany and Australia, the
functioning and operation of the administrative and delict jurisdiction
provisions to hold individuals accountable for environmental oences.
Thus, having conducted a comprehensive analysis of administrative
liability for environmental oences on the example of foreign countries, it
should be noted that a serious approach to administrative norms, specically
their explicit consolidation in current legislation, allows to address certain
issues in a more timely and ecient manner. Since civil and criminal liability
involve the solution of a problem in a court of law, which most commonly
is a fairly long process, the application of administrative sanctions to the
forefront is the delivery of oence settlement with ultimate convenience for
each party (i.e. just as for man or society, so for the environment and the
state taken as a whole).
The ndings obtained can be used in research, lawmaking, law
enforcement and educational process. For example, research provides a
basis for further theoretical research in the development of these problems,
in the preparation of draft laws and other regulations aimed at enhancing
administrative liability for environmental oences. Moreover, the results
obtained in lawmaking are worth taking into account because as a result
of the study, real insights were articulated to improve the legislation
regarding the enforcement of administrative liability for environmental
oences. Application in law enforcement activities is bound to provide an
opportunity to enhance practices, increase the eectiveness of control and
supervision measures for environmental protection. It should be noted that
equally important is the use of the present study in the educational process,
since the ndings of the study can be used in law classes at educational
institutions to master disciplines that involve the study of administrative
liability for environmental oences.
Recommendations
Having conducted the study on the application of administrative
liability for environmental oences, it is feasible to identify specic limits
of the violated right or category of a misconduct, where the application of
administrative sanctions could be relevent. One example is the assessment
of certain types of oences where administrative sanctions are held
appropriate (to which the ERM included: enforcement undertaking,
warning letter, xed penalties, variable and discretionary penalties, civil
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penalties, monetary benets penalty order, environmental services order,
compensation order, the “name and shame” process, verbal warnings, etc.).
Limitations
The European Convention of Human Rights has several issues that
can be raised by an individual or a corporation where civil administrative
sanctions are imposed for violating the environmental law.
For instance, in terms of the monetary sanctions, smaller rms may not
have the funds to pay a xed penalty or ne. In his report, Professor Macrory
refers to the “spill over” eect, which makes it possible for the company to
pass on nancial costs to third parties, such as shareholders, customers,
employees and creditors, and to direct responsibility from the company’s
management. Shareholders who subsequently experience losses caused by
monetary penalties due to the devaluation of shares and the reduction of
dividends, may potentially claim that their right to earn a livelihood has
been enfringed.
Fines can potentially be considered discriminatory and have an unequal
impact on small businesses, which tend to be more vulnerable to monetary
penalties.
The sheer possibility of relying on sanctions imposed on businesses can
also be perceived as a representation of discriminatory and unfair practices
against individual oenders, who apparently may have to face a far more
severe punishment (e.g., imprisonment).
Finally, although a number of administrative sanctions are eective at
deterrence, there are certain administrative sanctions, such as a publicity
order, that may have consequences for a corporation’s reputation, for
instance, if it has been imposed without good reason. In such case it can be
challenged on the basis of the individual’s right to a good name.
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