Enforcement of the air emission standards
A number of elements distinguish air emission violations from other forms of pollution. Firstly, detecting and establishing a violation of the air emission standards differs from other types of discharges. A ship that violates the SECA sulphur in fuel requirements is unlikely to be caught 'red-handed' in a sense that merely visual observations or photographs would suffice to detect the violation. Instead, more sophisticated technical methods are needed. Those methods all entail their own weaknesses and they all place significant strains on governments' resources, but are insufficient for verifying the violation. For verification, more comprehensive investigations, involving both on-board inspections and subsequent shore-based analyses are usually required. Moreover, since the illegal air pollution is typically continuous in nature in that it takes place over a period of time, rather than as an instant event, proof of violation at a given moment does not necessarily say much about the duration of the violation.
Secondly, proving the subjective element of the violation is generally quite demanding. In criminal proceedings in particular, which still represent the main form of sanctions in the SECA states, it has to be shown that the violation is caused intentionally or resulting from (serious) negligence on behalf of the liable person. Even identifying the person responsible for the violation can be challenging, let alone to prove their negligence in view of the common availability of documentary evidence that compliant fuel has been purchased in good faith etc. Administrative penalties normally provide for more flexibility in this respect, but they are not widely in use for air emission violations and, even where applied, may face issues in relation to dissuasiveness .
Thirdly, in view of the large financial gains involved in non-compliance with the air emission s standards, the sanctions imposed on violations call for monetary penalties of a significant level in order to be effective and dissuasive, as required by both MARPOL and the Sulphur Directive. Yet the level of the penalty may be held down by the circumstance that air emissions represent environmental and health hazards at aggregated level rather than in the individual instance. Common principles for addressing the size of the penalty for environmental infractions, based on the environmental harm or the level of danger for humans or the environment, are therefore not suitable for this kind of violations. The absence of significant environmental damage in the individual case also means that other liability mechanisms, such as civil liability, is not available for use as a complementary deterrent in the case of air emissions. To meet their objectives, sanctions should therefore be linked to the economic benefits of non-compliance, which suggests that liable persons should be the corporations in charge of the decisions on fuel usage rather than crew members.
Such differences place special demands on the legal mechanisms for enforcing the rules. As of now, however, most Northern European SECA states have not introduced separate enforcement mechanisms to deal with violations of the air emission standards. They commonly rely on the 'regular' MARPOL enforcement procedures for dealing with these matters which, in turn, is reflected in the relative absence of successful application of penalties in practice.
If the enforcement fails to generate the required dissuasion, other efforts to promote compliance with the requirements will also be fruitless. Over time this risks to weaken implementation, which would not only undermine the international and EU fuel quality rules, but would also be at odds with their requirements that non-compliance shall be met by effective and dissuasive sanctions. Apart from such legal considerations, incomplete application of the rules would also result in important competitive disadvantages for the operators who comply with the rules.