Enforcement Network Research Articles

Imbricated Geographies of Conservation and Consumption in the Stikine Plateau

Abstract This paper interrogates the role of animals and hunting, conservation and consumption in the making of the Stikine, a vast though nebulously defined plateau that covers much of the northwest corner of British Columbia. In 1905, Arthur Bryan Williams, the newly appointed Provincial Game Warden enacted a new regime of control over landscape, animals and ecology. New laws on closed seasons, kill limits, an enforcement network and a careful system of accounting re-scripted what animals meant in the province and fundamentally changed the interactions between people, nature and the state. I show how hunting, conservation and the changes to consumption worked to shift understandings of nature in the Stikine. The geographies of conservation and consumption, operating across multiple scales, were a fundamental component of place-making in the Stikine in the first decades of the twentieth century.

Governmental Coordination to Enforce Environmental Laws: The Experiences of an Australian Federal Environmental Regulator

The fact that environmental crimes, and those entities that perpetrate them, do not respect borders has been well-documented. Given that these borders are local, provincial and national, it is no surprise that recent decades have seen a proliferation of Environmental Enforcement Networks (‘networks’).Additionally; there are expectations and requirements on governments to operate in a more connected, seamless and joined-up way. In fact, operating in such a way is referred to in the public administration lexicon as ‘the whole of government approach’. The combination of these factors has resulted in government regulators becomingly increasingly reliant upon the greater ‘regulatory reach’ and the collective capacity provided by networks.This paper details the use made by the Australian Government’s Department of the Environment, Water, Heritage and the Arts (DEWHA) of networks as a part of governmental coordination in its overall environmental enforcement effort. It focuses also on the systems and coordination mechanisms which are in place presently and that will need to be enhanced or developed to combat environmental crime more effectively into the future.

Public Participation in Environmental Enforcement . . . with Chinese Characteristics?: A Comparative Assessment of China’s Environmental Complaint Mechanism

In recent years, it has become increasingly clear that China’s rapid economic development has come at a significant environmental cost. Pollution problems are now a source of serious public concern, at times even social unrest. The government has responded with an ambitious reform program that has produced a multitude of major environmental laws and significantly increased resources spent on addressing environmental problems. While environmental activism has risen with the growth in public awareness about environmental issues, the government continues to view such activity, like other organized civil society activity, with suspicion. Within this context, the increasing visibility of China’s environmental complaint mechanism is an intriguing development in the government’s efforts to enhance environmental governance. China’s environmental complaint mechanism allows citizens to report violations by pollution sources and petition the government for appropriate action. It can be likened to an accountability mechanism for polluters and government officials, with some interesting similarities to U.S. environmental citizen suits. Outside of China, this mechanism is not well known, though it has increasingly become the subject of research. In 2008, the top enforcement officer of the Chongqing Environmental Protection Bureau was honored by the Asian Environmental Compliance and Enforcement Network for work in implementingthe complaint mechanism. This article introduces China’s environmental complaint mechanism and seeks to provide an assessment of its effectiveness. Drawing on Chinese and English language research, including newly available statistical data on complaint numbers and the authors’ own practical experiences, the study shows that the mechanism has been heavily used by the general public to voice its concerns and frustrations with environmental problems and has largely been successful in promoting environmental awareness and engaging the public. At the same time, its effectiveness in protecting public health and the environment, strengthening environmental enforcement and compliance, and promoting the rule of law and good governance is much more questionable. More generally, the study also suggests that the role of public participation is greatly dependent on the broader governance framework within which it is embedded and that channeling environmental activism into key governance areas can significantly influence its effectiveness.

Evolution of a Regional Environmental Enforcement Network: The Australasian Environmental Law Enforcement and Regulators Network (AELERT)

This paper documents the evolution of the Australasian Environmental Law Enforcement and Regulators neTwork (AELERT), through several phases, focussing on both the accomplishments and challenges encountered along the way. Commencing as a national network with five Australian foundation member agencies in November 2004, by November 2010 membership of AELERT has grown to incorporate over 75 member agencies. Significantly, membership is truly representative as it includes members drawn from all three levels of government and each of the eight Australian jurisdictions and both levels of government in New Zealand. AELERT has evolved organically, rising from a ‘bottom-up’ practitioner base in the early years to being recognised by a ‘top-down’ Ministerial level body as a professional network of similarly aligned member agencies with an increasing regional and international profile.

Environmental Enforcement Networks: A Qualitative Analysis

This study discusses the utility of environmental enforcement networks (networks). It considers the viewpoints of eight senior managers, from environmental enforcement agencies (EEAs), who represent seven countries and collectively are involved in fourteen networks.Using a predominantly qualitative approach the study examined questionnaire and interview data relating to; the utility of sub-national, national, regional and global networks, and the strategies used by EEAs in order to increase the benefits derived from networks.The study established that there is utility in networks across the countries and networks studied. It also identified that there are a range of strategies and activities used by EEAs to maximise the benefits of network engagement. The study concludes with a number of recommendations that network members and their respective governing bodies may consider in an effort to maximise network benefits.

Moving forward together

As 2010 wore to a close, major reports on privacy were released almost simultaneously in the European Union and USA. The first, published on 4 November, came from the European Commission, ‘A Comprehensive Approach on Personal Data in the European Union’. The following month two US agencies released privacy reports. The Federal Trade Commission’s report, ‘Protecting Consumer Privacy in an Era of Rapid Change: A Proposed Framework for Businesses and Policymakers’, appeared on 1 December, and two weeks later the US Department of Commerce released its green paper on ‘Commercial Data Privacy and Innovation in the Internet Economy: A Dynamic Policy Framework’. These three significant and long-awaited government reports provide new insights into how regulators on both sides of the Atlantic view privacy challenges and the extent to which those views may be converging. In fact, many observers were surprised by the extent to which the three reports overlap. For example, all three reports are prompted by similar issues and address similar problems—mainly, that current approaches to data protection have become ineffective in response to the rapid expansion in information technologies and applications. All three reports explicitly recognize the tension between innovation and intrusion and acknowledge both the value and risks of information flows. Notice and choice, particular hallmarks of US privacy protection, but also found in European laws, come in for special (and well-deserved) criticism, especially in the EU and FTC reports. All three reports stress the importance of not over-focusing on notice and choice and ensuring that, when presented, notices are clear, concise, and simple to use. The reports also recognize the importance of industry responsibility, self-regulation, and international cooperation in enforcement. All three focus new attention on accountability, rather than mere compliance, as a principled basis for data protection. And all three reports were issued in draft form and specifically invited public comment, reflecting the fundamental importance of individual and industry participation in formulating workable privacy policies. These and other similarities appear to reflect growing convergence in transatlantic thinking about data protection issues. In fact, elements of each report sound themes historically associated with regulators on the other side of the Atlantic. The EU report reflects concerns about the burden of complying with data protection laws, the tension between protecting privacy and not stifling innovation, inconsistency among member state laws, and the practicality of current restrictions on international transfers of data—concerns that seasoned privacy observers might find more reminiscent of US regulators. Meanwhile, the FTC and Commerce reports expand the range of privacy principles to which companies might be held accountable, the data that might raise privacy issues (even if no unique identifiers are involved), and interests that should be protected—all points traditionally associated with European regulators. The reports are, of course, not the only sign of convergence. The FTC joined with twelve European and other regulators in March 2010 to launch the Global Privacy Enforcement Network to facilitate multinational cooperation in enforcing privacy laws. In October, the FTC was officially admitted to the annual conference of data protection and privacy commissioners. Department of Commerce officials have been

Diagnostics of white‐collar crime prevention

Nguyen and Pontell’s (2010, this issue) article makes a strong case that white-collar crime played an important role in the origins of the global financial crisis; specifically, in waves of mortgage origination fraud. Particularly telling is the 2006 Federal Financial Crimes Enforcement Network (FinCEN) report of a 1,411% increase in mortgage-related suspicious activity reports between 1997 and 2005, 66% of which involved material misrepresentation or false documents. Then another 44% increase was reported between 2005 and 2006. The BasePoint Analytics (2007) analysis of 3 million loans, which indicated that 70% of early payment defaults had fraudulent misrepresentations on their original loan applications, was another early warning signal that the mortgage issue was a crime problem. These data also demonstrated that it was a consequential problem, as the loans with fraudulent misrepresentations were five times as likely to go into default. The Federal Bureau of Investigation began issuing public warnings in 2004, claiming that it was seeing a spike in mortgage fraud cases in the mid-2000s (Black, 2009). Even earlier than that, a more abstract early warning drew on the lessons of the history of the savings and loans debacle from Nguyen and Pontell and fellow scholars such as Bill Black (Black, 2005; Black, Calavita and Pontell, 1995; Calavita, Tillman, and Pontell, 1997; Tillman and Pontell, 1995). Of course, other layers of causation were found in the structures of the derivatives market, the bonus culture on Wall Street, the captured ratings agencies that failed to do their job, the structural imbalances of American indebtedness to China to pay for Chinese exports to the United States, and the defective quantitative risk models applied by the financial industry (Braithwaite, 2009; Johnson, 2009; Krugman, 2008; O’Brien, 2009; Partnoy, 2003). Yet Nguyen and Pontell’s (2010) emphasis on the proximate causes in mortgage fraud is well placed for two reasons. First, many other layers of causation are extremely hard to fix and

The Essential Role of State Enforcement in the Brave New World of Greenhouse Gas Emission Limits

I. INTRODUCTION II. THE NATURE AND EXTENT OF THE GREENHOUSE GAS EMISSION REDUCTION EFFORT REQUIRES THE FULL PANOPLY OF ENFORCEMENT TOOLS III. THE CAP-AND-TRADE MARKET POSES SIGNIFICANT ENFORCEMENT CHALLENGES IV. CALIFORNIA'S EXPERIENCE WITH ENERGY MARKETS PROVIDES IMPORTANT LESSONS V. FEDERAL PREEMPTION OF STATE ENFORCEMENT POSES SIGNIFICANT RISKS VI. THE FILED RATE DOCTRINE HAS NO PLACE IN A CAP-AND-TRADE MARKET VII. OTHER LESSONS LEARNED FROM THE ENERGY CRISIS VIII. CONCLUSION I. INTRODUCTION In June 2005, Governor Schwarzenegger addressed the United Nations on the topic of global warming and famously declared, I say the debate is over. We know the science. We see the threat, and we know that the time for action is now. (1) Convinced by overwhelming scientific evidence, the California Legislature passed, and the Governor signed, a landmark law, referred to as 32, which requires the State to reduce greenhouse gas emissions to 1990 levels by 2020. (2) AB 32 poses significant, even daunting, requirements. By 2012, the California Air Resources Board will have issued extensive regulations for virtually every sector of the State's economy across all geographic regions that set forth specific actions for the reduction of greenhouse gas emissions. (3) The new regulations will use multiple mechanisms to achieve the reduction requirements, including the traditional command and control approach, market mechanisms, and regional targeting. (4) While the potential regulations and mechanisms have received a great deal of attention, much less attention has been given to an essential element of achieving the reductions: enforcement. We know from extensive experience that enforcement must be integrated into the process of creating regulations. Further, we must have enough regulators and prosecutors to ensure that enforcement is viable, appropriate and effective. The Air Resources Board's Scoping Plan for AB 32 identifies as a key mechanism for reduction of greenhouse gases the creation and implementation of a cap-and-trade market, in which electricity generators and other significant sources of greenhouse gas emissions will be allowed to buy and sell emission units to meet an ever-diminishing cap on overall emissions. (5) This market may involve hundreds of millions of dollars worth of trades, which will create significant incentives for fraud, manipulation and other misconduct. We know from California's energy crisis and the recent national mortgage meltdown that market abuse combined with insufficient market oversight is a recipe for disaster. (6) Thus, when creating the rules for a cap-and-trade market, we must apply the lessons learned from these experiences and integrate market monitoring and enforcement into the market itself. By requiring market participants to sufficiently fund monitoring and enforcement efforts, the few participants tempted to try to manipulate the market will understand from the outset that market misconduct will not be tolerated. While ensuring market fairness in a market of this expected size and complexity is a tall task, it will be far more manageable if we heed the painful lesson from the California energy crisis and the recent mortgage meltdown: relying exclusively on federal market enforcement can lead to disaster. Significant reduction of greenhouse gas emissions is a massive undertaking and a tremendous challenge. California's multi-layered and often decentralized enforcement network needs to be allowed to continue its historic enforcement role if we are to meet the challenge. In the new world of carbon constraint, California's experience with environmental enforcement provides a useful road map for effective measures, while malfunctioning energy markets and the difficulties posed by federal preemption are significant roadblocks to avoid. For our greenhouse gas reduction efforts to be successful, we must intelligently apply the lessons California has learned to ensure effective monitoring and enforcement approaches. …

Towards a Constructive Public-Private Partnership to Enforce Competition Law

Finding the right balance between public and private competition enforcement is a critical issue for almost all jurisdictions. This article surveys the forces that are producing an apparent contraction in private rights of actions in the United States, an expansion of such actions in the European Union, and the need for some form of private actions including aggregate claims and indirect purchaser actions for any jurisdiction seeking a system of viable private enforcement. The article concludes that some form of private enforcement is a necessary complement to public competition law enforcement and that public-private enforcement networks geared to local needs should be encouraged to create stable and effective competition law regimes.

Models of Local Security Networks: On the Diversity of Local Security Networks in the Netherlands

Local security networks are highly diverse in their goals, structure, participants, size and methods of intervention. This diversity is analysed by looking at the underlying network models. Four of these models are distinguished: participatory networks; mixed enforcement networks; preventive institutional networks; and re-active institutional networks. These models differ not only in their main orientation (preventive or reactive) and participants (only institutional or also citizens), but also in their style of co-operation, structure and technology. The problems local security networks are confronted with depend to a large degree on the underlying network models. Each model has its specific problems. Moreover, some problems of local security networks result from the tensions between the logic or demands of one or more underlying models.

European Union Network for the Implementation and Enforcement of Environmental Law (IMPEL)

IMPEL was set up in 1992 in Chester, UK, and its original name was the Chester Network. At the time it was established, a concern had been expressed that the growth of environmental legislation was not being matched by improvements in the quality of the environment. The conclusion was that all the links in the environmental chain needed to be strong with an implication that implementation and enforcement were two of the weaker links. Furthermore, disparities in enforcement systems were seen as likely to impose unequal burdens on industry across the Community. There was a proposal that an environmental enforcement network should be created within Member States and that subsequently attention might be focused on developing common enforcement standards and approaches. The greatest achievement is probably the creation of the network itself. As a result, there is now an EU-wide forum that allows environmental regulators, policy makers and Commission officials to come together for informal exchange of information about the practical implementation of environmental law. There is little doubt as to its value as a contribution to “levelling of the playing field” on enforcement of environmental legislation across the EU, and to development of operational systems within the Member State enforcement agencies as well as assisting in the process of capacity building.

The Importance of International Environmental Enforcement Networks - INECE as an example

There is a need for improved enforcement of environmental laws on a global scale. This is a fundamental component of promoting the rule of law and good governance to achieve sustainable development. The International Network for Environmental Compliance and Enforcement (INECE) is a trans-governmental network that fosters capacity building, education, and enforcement co-operation in furtherance of these goals. This article presents some of the results of more than 15 years of INECE activities.

Does the punishment fit the crime?

Describes anti‐money laundering statutes within the US federal criminal code. Introduces the USA’s Bank Secrecy Act (BSA), a record‐keeping and reporting statute that also requires financial institutions to implement comprehensive anti‐money laundering programmes; its enforcement authority is generally exercised through the Financial Crime Enforcement Network (FinCEN). Outlines the bank regulatory authority, administrative sanctions, civil money penalties, and the “death penalty”, which is termination of a national bank’s franchise. Discusses recent enforcement actions by FinCEN, the Department of Justice, and Federal banking agencies. Concludes that the apparent trend towards more substantial fines and other sanctions for BSA violations will probably accelerate for various reasons.

Riggs order articulates bank secrecy act compliance requirements

Riggs Bank N.A. of Washington, DC entered into a consent order with the Office of the Comptroller of the Currency in July 2003, received a cease and desist order from the Federal Reserve Board later that year, and was assessed a $25 million penalty by the Financial Crimes Enforcement Network (FinCEN) in May 2004, all for Bank Secrecy Act violations. In general, Riggs was deficient (i) in designing a program tailored to the risks of its business that would ensure appropriate reporting, (ii) in implementing the procedures it did have, and (iii) in responding to classic “red flags” of suspicious conduct. As a result, Riggs failed to file a number of timely and complete suspicious activity reports (SARs) and late and complete currency transaction reports (CTRs) for high‐risk accounts. In discussing the violations that occurred, FinCEN articulated internal control, customer due diligence, compliance monitoring, and independent testing standards that Riggs did not meet, and that other institutions should regard as rules of general applicability.

Compliance issues in the wake of the USA PATRIOT Act

Reviews the scope of money laundering crimes, the new requirements for anti‐money laundering compliance programmes, and the Office of Foreign Assets Control (OFAC) requirements; the latter, which restricts dealings with foreign entities, was operating since World War 2 but had little impact before Executive Order 13224 on 23 September 2001. Shows how the PATRIOT Act has amended some provisions in the federal Bank Secrecy Act (BSA) by adding terrorism and other predicate offences, and defines the wide range of companies covered. Explains how the Financial Crimes Enforcement Network determines violations of the BSA. Concludes that OFAC and anti‐money laundering compliance law have powerful sanctions in the form of civil and criminal penalties, plus possible loss of charter or federal deposit insurance coverage.

Part 3: The law in context (Sub‐group 2: Impact of the initiatives against terrorist property on banks and financial institutions)

Considers how much terrorist financing is done through banks; information is scarce. Outlines the typologies of terrorist funding issued by the Joint Money Laundering Steering Group (JMLSG) and the Financial Action Task force (FATF): donations based on the zakat, and criminality in the forms of smuggling, extortion, fraud and robbery, legitimate accounts, dormant accounts, telegraphic transfers, and money service businesses. Continues with the Financial Crimes Enforcement network (FinCEN), the provision of information, domestic and international, regulatory questions, the possible conflict between the Data Protection Act 1998 and money laundering legislation, and the role of financial intermediaries like solicitors and accountants. Moves on to the Wolfsberg Principles over financial institutions, individual rights, know your customer, high risk sectors and activities, monitoring, and the need for enhanced global cooperation.

Legal Institutions and the Structure of Informal Networks

The relationship between government-provided contract enforcement and informal trade networks raises important sociological, political, and economic questions. When economic activity is embedded in complex social structures, what are the implications of governmental contract enforcement for the scope and nature of economic relations? What determines whether individuals rely on formal legal institutions or informal networks to sustain trade relationships? Do effective legal institutions erode informal networks? To address these questions, we develop a model in which a trade-off exists between size and sustainability of networks. By adding the possibility of enforceable contracts, we provide a theoretical explanation for the coexistence of legal contract enforcement and an informal economy. We find that legal enforcement has little effect on networks unless the cost of law drops below a certain threshold, at which point small decreases in the cost of law have dramatic effects on network size and the frequency of use of the legal system.

Organizing the War on Terrorism

The network of public agencies, private firms, nonprofit organizations, ad hoc groups, and individual volunteers that deals with natural and technological hazards and disasters did a remarkable job of responding to and helping us recover from the September 11th attacks. That national emergency management network, along with the national security and law enforcement networks, provides a foundation for our war on terrorism, helps us mitigate the hazard of terrorism, and improves our preparedness for future violence. However, coordinating the efforts of the networks will be a real challenge for the director of homeland security and his or her state and local counterparts. Coordination will necessitate using legal authority to assure compliance, economic and other incentives to encourage compliance, formal partnerships to encourage collaboration, informal understandings to encourage cooperation, and personal encouragement to influence appropriate action. A top–down, command–and–control approach to the war on terrorism, such as the proposed Department of Homeland Security is intended to provide, may be counterproductive.

United States Department of the Treasury, Financial Crimes Enforcement Network, Strategic Plan, 1997–2002, Washington, DC

United States Department of the Treasury, Financial Crimes Enforcement Network, Strategic Plan, 1997–2002, Washington, DC

Crime and prevention: a Treasury viewpoint

New technologies have emerged that have the potential to change many fundamental principles associated with a cash oriented society-indeed, the whole way we conduct all kinds of financial transactions and operate all payment systems. As things stand, law enforcement agencies around the world recognize that "following the money" leads to the top of criminal organizations. Criminals have to move funds through the financial system to hide and use the proceeds of their crimes. Currency is anonymous, but it is difficult to hide and transport in large amounts. New electronic payment systems may well alter this. The speed that makes these systems efficient and the anonymity that makes them secure are desirable characteristics to both the public and law enforcement agencies. Yet the same characteristics make these systems equally attractive to those who seek to use them for illicit purpose. Because of these potential vulnerabilities, the Financial Crimes Enforcement Network (FinCEN), a branch of the US Department of the Treasury, has been meeting with developers of advanced electronic payment systems, our law enforcement and regulatory partners in the United States and abroad, and representatives of the financial services industry to examine how criminals might use these new systems to move and launder the proceeds of their illegal activities.