Defra and the Welsh Assembly Government have issued a consultation on proposed changes to environmental enforcement. The consultation paper proposes that the Environment Agency (the EA), Natural England and the Countryside Council for Wales be able to utilise civil sanctions provided by the Regulatory Enforcement and Sanctions Act 2008 (RESA).

The proposed civil sanctions will be brought into effect by secondary legislation, which Defra hopes will come into force on 6 April 2010. Civil sanctions are viewed by Defra as a proportionate alternative to prosecution when dealing with less acute cases. The consultation also outlines proposals to strengthen the criminal courts’ powers when facing the most serious cases. The consultation closes on 14 October and interested parties should submit their responses to Defra before then. For details click here:

www.defra.gov.uk/corporate/consult/env-enforcement

RESA gave environmental regulators the potential power to impose civil sanctions on businesses for breaches of environmental legislation. The proposed sanctions include:

  • Fixed Monetary Penalties - a fixed lower-value fine that the regulator may impose for minor offences
  • Variable Monetary Penalty (VMP) - a monetary penalty which the regulator may impose for more serious offences where prosecutions are not pursued. Most importantly from a business perspective, a proposed upper limit for VMPs is 10% of business turnover
  • Compliance Notice - a regulator notice requiring an operator to take actions to comply with the law, or to return to compliance
  • Restoration Notice - a regulator notice requiring an operator to take steps to restore harm caused by non-compliance
  • Enforcement Undertaking - a voluntary agreement by an operator to make amends for non-compliance and its effects
  • Stop Notice - notice requiring an operator to cease an activity that is causing harm or presenting a significant risk

The aim of these sanctions is to provide the regulators with further options in addition to criminal prosecutions. The consultation reports that sanctions are likely to be used in cases where a person has a good record of operating within regulatory requirements.

Changes proposed to strengthen the criminal courts include powers to order the offender to publicise his offence and the sanctions imposed, to order the offender to pay the regulator’s costs or estimated costs of restoration and for magistrates to order an offender to pay compensation up to £50k.

The suggested provisions potentially provide the EA and other regulators with substantial new powers. In particular, the VMP would be a significant warning to business of the importance of environmental compliance.