Businesses should understand and actively consider the role that enforcement undertakings can play in resolving an environmental incident or non-compliance. Figures from the Environment Agency demonstrate an increasing use of civil sanctions for a wider variety of environmental issues, with 26 companies or individuals making use of the mechanism over the last six months resulting in payments of around £1.5 million to environmental charities.

What is an enforcement undertaking?

An enforcement undertaking is a unique class of civil sanction because it enables businesses to take control of a post-incident investigation or non-compliance and propose the steps they are prepared to take to make amends. Enforcement undertakings are a novel form of enforcement action because, rather than waiting for the regulator to impose sanctions, the business comes forward with an offer, undertaking to put in place the measures the business considers are the ones required.

The scope of the offer is prescribed in some detail and must:

  • address the conduct causing the breach – for example, putting in place control mechanisms to ensure such failures do not occur again
  • rectify the consequences of any breach – such as through restoration works
  • offer reparations to those impacted by the incident.

Importantly, once the enforcement undertaking is accepted, the regulator can no longer prosecute for the breach in question.

Not only does this provide the possibility of better outcomes for both the business and the environment, it has the potential to encourage more open relationships between the Environment Agency and those it regulates. Furthermore, the ability for the business to have a degree of control over the agenda should not be underestimated. The process of being investigated for non-compliance and waiting for your fate to be decreed by the Environment Agency (or another environmental regulator) can be not only time-consuming and costly but also stressful for the staff involved.

What do the latest statistics tell us?

Enforcement undertakings have been around for a few years and have already been used by the Environment Agency, Natural Resources Wales and Natural England for certain non-compliances with environmental law. For example, Burges Salmon negotiated the first enforcement undertaking for a pollution event in Wales following an accidental discharge into a fish spawning watercourse. However, for the first few years, the majority of enforcement undertakings were agreed for technical offences for non-compliance with regulations governing producer responsibility for waste packaging, with enforcement undertakings for pollution offences being rare.

In 2015, enforcement undertakings were extended in England to the environment permitting regime, meaning that enforcement undertakings are now available for a far greater number of offences. Our recent experience in negotiating civil sanctions for permitting offences for a number of clients suggests that the Environment Agency is still on a learning curve on how best to utilise enforcement undertakings in the permitting context and is giving careful consideration to the circumstances in which they will be accepted.

However, the latest statistics, published for the period 1 August 2016 to 27 January 2017, show there is some real traction in the use of enforcement undertakings for permitting offences. The largest single donation was £375,000 for polluting a watercourse. The total donations to charitable causes promoting environment projects reached around £1.5 million with around one-third of that sum relating to permitting offences.

View a full breakdown of the latest enforcement undertaking offers accepted by the Environment Agency.

How can Burges Salmon help?

We have built up extensive experience of enforcement undertakings and regularly support businesses in:

  • developing a post-incident strategy
  • considering enforcement undertakings and other sanctions
  • drafting and negotiating enforcement undertakings
  • working with technical consultants to assess the impact of the alleged offending on the environment and propose a suite of suitable compensatory measures.

Our overarching advice is to engage early and take control of investigations following non-compliance or a pollution incident.