Traditionally, environmental offences in the UK have been dealt with by way of criminal sanctions, like cautions and prosecutions, with ensuing fines and even imprisonment in certain cases.  With the introduction of the Regulatory Enforcement and Sanctions Act 2008, a new range of civil sanctions were opened up for use by regulators choosing to adopt them.  These new sanctions include fixed and variable monetary penalties (like criminal fines but without the need for a prosecution) and enforcement undertakings (where the company concerned agrees to take restorative actions and/or make charitable donations relevant to the offence in question).   

The Environment Agency was a relatively early adopter of civil sanctions and started to use them for a defined range of environmental offences from January 2011.  The vast majority of civil sanctions employed by the Environment Agency to date have been in the form of enforcement undertakings with companies who have failed to register with compliance schemes under the packaging waste regime.  However there have also been a handful of undertakings agreed in relation to water pollution matters, most recently the first one to be entered into by a water utility.   

Notably, the civil sanction powers do not currently apply to offences under the Environmental Permitting (England & Wales) Regulations 2010, which account for a relatively large amount of prosecution activity by the Environment Agency.  The extension of civil sanction powers to this and other regimes has been under review for some time, but there has been political resistance to it.  In November 2012 the government confirmed that it was restricting the use of some civil sanctions to larger companies only, and has generally made it known that it was not considering any further extensions to the civil sanctions scheme. 

But it seems that the door is not completely closed on this issue, and a recent letter sent by the UK Environmental Law Association (UKELA) to the Department for Food and Rural Affairs (DEFRA) indicates that DEFRA is considering making enforcement undertakings available in relation to environmental permitting offences (but not the other types of civil sanctions).  UKELA’s letter supports this proposal on the basis that their experience of the use of enforcement undertakings to date offers a number of benefits to all involved, including environmental improvements and cost savings.   

This is certainly an issue to keep under review.  The availability of these undertakings for permitting offences could offer more efficient resolution of these matters for affected companies and avoid the costs and, perhaps more importantly, reputational damage which a prosecution can entail.