Environmental regulation will be high on many business agendas in 2020; so what is the approach to enforcement likely to be?
The Environment Agency (EA) recently released a report titled ‘Regulating for People, the Environment and Growth 2018’ which details how it sought to tackle various environmental issues during 2018. With the Chief Executive stressing the need to make greater strides in tackling environmental crime and the climate emergency, this article details some of the EA’s enforcement powers and sets out what look to be some of the EA’s priorities for 2020 based on that report.
The EA’s Enforcement Powers
Although prosecution powers exist for all environmental offences, the EA has said it will work to support businesses trying to do the right thing by using criminal penalties as a last resort. This is positive news for operators of legitimate businesses doing their best to comply with environmental regulation. More serious offences are still likely to result in criminal prosecution, with significant fines and imprisonment for the worst offences. In some instances, the EA has sought director disqualification and financial recovery under the Proceeds of Crime Act.
For some offences, the EA can accept legally binding Enforcement Undertakings (EUs). EUs involve the offender accepting responsibility and paying to rectify the wrongdoing, making sure it doesn’t reoccur, and usually donating money to charity or an environmental improvement group. EUs are now available for a far greater number of offences and are therefore becoming more common. The most recent figures published by the EA for the period between 23 May 2019 and 30 November 2019 show that there were 25 EUs accepted by the EA, resulting in total donations of a little over £1.3 million.
Operators with Environmental Permits
The EA monitors compliance with permits granted for waste and water activities and installations by both routine inspection and responding to incident reports. While most operators were rated in the highest compliance bands in 2018, a noticeable proportion were ranked in the lower compliance bands, with a greater proportionate number of those in the lower bands being from the waste sector. Though the EA always seeks to reduce permit non-compliance, we anticipate that particular attention will be paid to the waste sector in 2020, as this area currently stands out as being most represented in the lower compliance bands.
The EA says it will initially seek to work with operators to improve compliance levels. Where this fails though, we expect the use of formal enforcement powers such as Enforcement Notices, permit revocations and/or criminal prosecution. Where operators find that permit conditions have not been complied with, they would be well advised to consider making a pro-active offer of an Enforcement Undertaking to avoid more formal action.
Serious pollution incidents
Following an increase in serious pollution incidents in 2018, contrasting with the trend of decline over the last decade, the EA has committed to work to ensure that we see a reduction in the number of incidents. Such a number of areas are singled out for particular attention in the report.
For example, the EA has identified a strong, and unsurprising, correlation between the operation of wholly illegal waste sites and serious pollution incidents. It remains an EA priority to close down illegal waste sites before such incidents occur. We anticipate that we will continue to see prosecutions being used to deter wholly illegal operators, and significant publicity around outcomes.
Furthermore, a number of serious pollution incidents which occurred in 2018 were attributed to exceptionally dry weather. Water conservation is increasingly important in these times of climate emergency, and the EA plans to make further changes to the ways in which water abstraction is regulated. We anticipate that any water abstraction made without authorisation will be a target for quick and decisive action, and that penalties are likely to be severe.
The EA’s attention is on both businesses who operate with environmental permits, and businesses who do not. Any business may find itself the subject of an Environment Agency investigation where an environmental incident has occurred, and many offences do not require proof of intention or even negligence (strict liability offences). We advise any business that has suffered an environmental incident to take immediate legal advice. Establishing good lines of communication with the regulator, and undertaking quick and effective remediation, can make the difference between being prosecuted and persuading the regulator to take a lesser form of enforcement action.