On 15 December 2014, the Government laid draft Regulations before Parliament which introduce enforcement undertakings in respect of environmental permitting offences. Subject to Parliamentary approval, the draft Environmental Permitting (England and Wales) (Amendment) (England) Regulations 2015 are due to come into force on 6 April 2015. If implemented, the Regulations will only apply to England.
Originally introduced in 2008, enforcement undertakings give regulators greater flexibility in how they secure compliance, reserving criminal prosecution for the most serious offences. The Environment Agency started to use enforcement undertakings, as well as other civil sanctions, for some of its regulatory activity in January 2011. Civil sanctions for breaches of the environmental permitting regulations were first due to be introduced in April 2011, but were delayed by Policy Minister Oliver Letwin who said that imposing sanctions directly without recourse to the courts was "intolerable".
Some 4 years on the implementation of these draft Regulations will give the Environment Agency the power to impose enforcement undertakings in respect of environmental permitting offences, but not any of the other civil sanctions, such as fixed monetary penalties. The protracted delay in enacting legislation for the use of civil sanctions in respect of environmental permitting offences may be down to the fact that a high proportion of offences for environmental crime fall under the environmental permitting regime, thus making the policy decision more challenging.
What does an enforcement undertaking involve
Enforcement undertakings are voluntary offers made by offenders to restore and remediate any damage they have caused, in agreement with the regulator, without attracting a criminal record. Where an enforcement undertaking is not complied with, the regulator will be able to prosecute for the original offence. An enforcement undertaking can require action to:
- Ensure that non-compliant conduct is not continued or repeated;
- Restore the position, so far as possible, to that before the offence was committed (for example, by cleaning up contamination); or
- Benefit any person affected by an act or omission (including paying money to other persons affected by an incident).
What does this mean in practice
The draft Regulations introduce no new regulatory requirements, make no changes to existing offences or existing enforcement mechanisms beyond allowing the Environment Agency to accept enforcement undertakings from those that voluntarily offer them. If implemented, the Regulations will allow enforcement undertakings to be used for all of the main environmental permitting offences, apart from breaches of enforcement notices and those involving deception or fraudulent mis-reporting.
The Explanatory Memorandum which accompanies the draft Regulations states that for the Environment Agency to accept an enforcement undertaking there must be clear recognition of any failings or harm caused by the relevant person. Where relevant, the regulator will look for director or board level commitment to restoration and future compliance. This could initially be set out in a letter and developed into a formal action plan by the relevant person in consultation with the regulator. The enforcement undertaking should set out the actions to be taken and the timetable agreed with the regulator.
If the draft Regulations receive Parliamentary approval, businesses should consider this a positive step, which provides a more cost and time efficient way to deal with environmental permitting offences. Enforcement undertakings also offer an offending company a way to avoid the potential damage to reputation associated with a criminal prosecution.