A key element for the effective management of legal risk in the field of environmental law is to have a robust compliance programme in place. However issues can still arise which leave business and landowners open to the risk of prosecution or other enforcement action by regulators.

This article explores some recent outcomes of prosecutions of environmental offences and considers one alternative to prosecution: enforcement undertakings. 

Environmental offences

Prosecution for an environmental offence can have significant financial consequences, both directly in terms of having to pay a fine and prosecution costs and indirectly in terms of damage to the company’s reputation and its future relationship with the regulator.The most serious cases bring the risk of imprisonment of company directors.

In our experience, the courts have begun to impose much heavier sanctions – no doubt driven by hardening attitudes to those causing environmental damage and, to a large degree, by the official Sentencing Guidelines for environmental offences published in July 2014. We discussed those guidelines, and the main case arising from them, in our September 2015 bulletin. As we explain in that bulletin, the guidelines provide ranges and “starting points” for fines based on the degree of culpability of the offender, the level of environmental damage caused and the size (turnover) of the commercial organisation concerned.

Some recent examples below demonstrate the courts serious attitude towards environmental offences:

  • A water company and its contractor has been fined a total of £933,000 following a conviction of polluting a waterway and ordered to pay the prosecutions costs. The offence occurred due to highly toxic chemicals being discharged into a brook which was a trout spawning ground which resulted in fish kill.
  • A waste operator has been sentenced to 16 weeks’ imprisonment for operating a waste facility without a permit.
  • Another waste operator has been sentenced to seven and a half years imprisonment following conviction for breaching an environmental permitting condition, conspiracy to defraud and acting as a company director while disqualified. This is the longest term of imprisonment imposed for an environmental offence to date.

It is open to the Environment Agency, as regulator, to make use of certain civil sanctions instead of prosecuting those guilty of environmental offences. We discuss one type of such sanction, the enforcement undertaking, in our Spring 2015 bulletin. An enforcement undertaking is a voluntary agreement made by the offender with the aim of remedying any environmental impact of the offence and other effects, such as financial impact on others, within agreed timescales. Importantly,the undertaking must be offered by the offender and should be offered before the regulator decides to prosecute.

While the Environment Agency has been accepting enforcement undertakings for some types of offence for some time, it has only recently begun to accept undertakings for offences under the Environmental Permitting (England and Wales) Regulations 2010. The Environment Agency’s recently published a list of civil sanctions it has used as an alternative to prosecution reveal two undertakings for environmental permitting offences, the terms of which included financial contributions and commitments to improve infrastructure and procedures to avoid a breach occurring again. The first undertaking accepted by the Environment Agency included afinancial contribution of £8,500 to the West Country Rivers Trust and the second included a financial contribution of £12,000 split between the National Trust and the Marine Conservation Society. We are also working with a number of clients to agree appropriate undertakings with the Environment Agency.

Other civil penalties the Regulator could impose include a fixed monetary penalty (usually for minor offences), a restoration notice (requiring the offender to remedy any damage caused by their non compliance) or a stop notice (used to stop any damaging activity immediately).

Should you find that you are facing prosecution, or if you are at risk of being prosecuted for an environmental offence, our experienced team here at Freeths will be happy to assist. As a general rule, the earlier you get us involved, the more options we are likely to have available to us to help you manage the potential consequences for your business.