48_INECE SECRETARIAT STAFF

48_INECE SECRETARIAT STAFF - INECE SECRETARIAT STAFF 299...

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INECE S ECRETARIAT S TAFF 299 1 INTRODUCTION The article begins by surveying variations on the traditional remedy of money damages. It then discusses the appropriateness of alternatives such as restitution, injunction and declaratory reme- dies. This discussion is followed by an overview of the penalty options available to policy makers for harms to the environment and/or persons and for non-compliance with environmental laws and regulations. The article provides a background analysis of the critical formulation of civil penalties, with the aim of ensuring that the economic benefit of non-compliance is outweighed by the punishment facing regulated entities for non-compliance. Mitigating and aggravat- ing factors in individual cases are also con- sidered. This analysis is followed by a dis- cussion of the differences between criminal and civil penalties and the appropriateness and underlying bases of each form of penalty. Finally, the article offers a brief dis- cussion of alternative penalties available to policy makers, in addition to the traditional criminal and civil penalties available, by surveying environmental enforcement alternatives in use by environmental administrators in the United States and Canada. 2 TYPES OF REMEDIES 2.1 Damages Damages are a financial remedy administered with the aim of providing the plaintiff with monetary compensation equiv- alent to his or her losses resulting from the actions of the defendant. 1 Types of dam- ages include: —General Damages: The market value of the damage to the plaintiff caused by the defendant (e.g., the difference between the market value of a property immediately before a harm and its market value after the harm 2 ). —Consequential Damages: Those damages incurred after the initial loss as a direct consequence of the initial harm. These damages are usually used when the full value of the loss cannot be calculated by market mechanisms or when the full value of the loss is not represented in the calculation of market loss. 3 —Substitution Cost: Used when there is a large difference between the replacement value and market value of a property to the plaintiff (e.g., when a particular piece of property has an unquantifiable sentimental value to its owner 4 ). —Punitive or Exemplary Damages: Intended to punish the defendant, in PENALTIES AND OTHER REMEDIES FOR ENVIRONMENTAL VIOLATIONS: AN OVERVIEW INECE SECRETARIAT STAFF 2141 Wisconsin Ave. NW, Suite D2 Washington, DC 20007, inece@inece.org SUMMARY This article provides an overview of the functions and unique features of penalties and other remedies available to legislators, administrators and judges who seek to enforce existing environmental laws and regulations and/or to deter, both generally and specifical- ly, future non-compliance.
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addition to compensating the plaintiff, and deter future wrongs by the defendant and others. —Standardized Damages: Damages
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This note was uploaded on 07/25/2011 for the course ACCT 200 taught by Professor Minliu during the Spring '11 term at Universidad Europea de Madrid.

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48_INECE SECRETARIAT STAFF - INECE SECRETARIAT STAFF 299...

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