The Environment Agency (EA) has released new advice and guidance on securing legal compliance through enforcement, civil sanctions and prosecutions. The EA says its preferred approach is to engage with businesses it regulated to enable compliance and to provide advice on ways to avoid bureaucracy and excessive cost. John Barwise outlines the EA’s new approach to sanctions and enforcement.
Prevention is better than cure, according to the EA. The revised guidance is designed to encourage individuals and businesses to put the environment first and to integrate good environmental practices into normal working methods, to avoid unnecessary enforcement and sanctions. The EA has released three new documents on how it intends to work with businesses to achieve this.
The first document, Enforcement and Sanctions Statement outlines the general principles of environmental regulations and the approach the EA follows in relation to enforcement and sanctioning.
Enforcement means taking action where the EA suspects an offence has occurred, or in some cases is about to occur. This may range from providing advice and guidance, serving notices through to prosecution, or any combination that best achieves the desired outcome.
Where an offence has been committed and the delivery of advice and guidance doesn’t achieve the necessary outcome, the EA will consider issuing some form of sanction as well as taking any other preventive or remedial action necessary to protect the environment and people.
The formal options process that the agency has available include:
issuing a warning
statutory enforcement notices and works notices
suspension or revocation of environmental permits
variation of permit conditions
carrying out remedial works
other civil and financial sanctions including Fixed Penalty Notices (FPNs)
issuing a formal caution
prosecution and orders ancillary to prosecution
sanctions used in combination.
An activity that leads to “environmental damage” may constitute an offence under the Environmental Damage (Prevention and Remediation) (England) Regulations 2015 and some form of enforcement action may be required. In these cases, the EA will always seek to recover the costs of investigation and enforcement proceedings, where the law allows.
The EA will also publish press releases and other information on its enforcement activities, where appropriate, which it says raises awareness of the need to comply.
The EA’s regulation and enforcement activities are based on the principle of being “firm but fair”, taking account of:
proportionality in the application of the law and in securing compliance
consistency of approach
transparency about how we operate and what those we regulate may expect from us
targeting of enforcement action
accountability for the enforcement action we have taken.
The EA’s supplementary document, Enforcement and Sanctions — Guidance document explains how it makes enforcement decisions, the types of tools available and the processes involved in its decision-making. Its primary aim is to achieve the best outcomes for the environment and people which can range from providing advice and guidance through to prosecution.
Where there is a case for prosecution, the EA will refer first to the Code for Crown Prosecutors to assess whether there is a realistic prospect of prosecution. For most sanctions, the Regulatory Enforcement and Sanctions Act 2008 (RES Act) requires that the agency must be satisfied beyond reasonable doubt that an offence has been committed before issuing a sanction.
The EA will always seek to recover the costs of investigation and enforcement proceedings, where the law allows, and to recover the full costs of any remedial works, in accordance with the “polluter pays” principle.
The EA outlines four options, or tools, it can apply to ensure the best outcomes from enforcement and sanctions.
Tools to stop offending include the following.
Injunctions — an order of a court directing an individual (or company) to either:
stop a particular activity (a prohibitory injunction)
carry out a particular activity (a mandatory injunction).
Notices — this can involve a stop or suspension notice, including groundwater prohibition and anti-pollution works notices. It can also include restoration notices to carry out remedial works, enforcement notices and notices to remove waste.
Regulatory control — notices available to the EA include compliance and enforcement notices, suspension an anti-pollution works notices. Regulatory control can also lead to revocation of an environmental permit or variation of permit conditions.
Deterrence and punishment — tools available can include criminal sanctions, variable monetary penalties and fixed monetary penalties. Failure to comply with an injunction is treated as a contempt of court and is punishable by an unlimited fine and/or up to two years’ imprisonment.
The EA’s guidance document explains more fully how it intends to respond to enforcement and how each of the four options will work in practice. As a first point of reference, the EA aims to provide advice and guidance to assist an operator or individual to come back into compliance. This is in line with the general principle of outcomes-focused regulation and to achieve a lasting solution to the problem that caused offences to be committed.
In the context of enforcement, the EA will provide advice and guidance after an offence is committed or where it considers that an offence is likely to be committed. This compliance assistance may be either verbal or written but will be recorded. In the event of continued or further non-compliance(s) this may influence the subsequent choice of response.
In terms of criminal sanctions, the EA outlines a number of possible courses of action which include the following.
FPNs — this is a financial penalty for an offence, imposed by the regulator, which if unpaid can be dealt with by way of prosecution in the criminal courts. FPNs are available for a limited number of offences.
Formal caution — this is the written acceptance by an offender that he or she has committed an offence and may only be used where a prosecution could properly have been brought. It differs from a warning as described above, which is simply a record and warning about an offence that has been or may be committed.
Prosecution — this sanction is available for all criminal offences by law. The legislation which establishes the penalty provisions gives the courts considerable scope to punish offenders and to deter others, including unlimited fines and possible imprisonment in serious cases. The EA recognises that prosecution is a serious matter and will only embark on this course of action after full consideration of the implications and consequences. The EA will use the Code for Crown Prosecutors to determine whether there is sufficient evidence that a prosecution is in the public interest. It will also consider whether an alternative to prosecution may be more appropriate. Section 3 of the Defra/WAG Civil Sanctions for Environmental Offences guidance document sets out the details for this assessment.
Orders imposed by the court require the EA to apply for compensation and ancillary orders, such as anti-social behaviour orders and confiscation orders, in all appropriate cases. It may also include other ancillary orders such as forfeiture of equipment, disqualification from driving, vehicle seizure, compensation and remediation.
The EA may also consider a person’s competence to be the holder of some Environmental Permitting Regulation permits or be a registered waste carrier or broker.
Section 4 of the guidance provides a comprehensive list of the methods used by the EA to determine its appropriate response to environmental offences. This includes public interest factors, the intent of the offender, the environmental effect, financial implications, deterrence and other considerations.
Section 6 explains the appeals options available. Enforcement action, specifically the imposition of a sanction, can normally be appealed either through the criminal court process or as a result of specific appeal provisions. Details of how the appeals procedure works, including possible compensation claims are also explained.
There are four Annexes included in the guidance document. These include the following.
Variable monetary penalty methodology — which may be used for specific offences especially where the imposition of a financial penalty may change offender behaviour and deter others.
Enforcement undertakings — the EA says it will look more favourably upon offers where it can be demonstrated that any necessary remediation or restoration work will commence at the earliest opportunity.
Grounds of Appeal — provides a comprehensive list of the grounds for appeal for the individual RES Act sanctions.
Climate change regimes — this Annex covers the civil sanctions and penalties relating to the EU Emissions Trading System, CRC Energy Efficiency Scheme, Climate Change Agreements and Energy Savings Opportunity Scheme (ESOS).
The EA’s third guidance document provides options available to every offence the EA regulates. It incorporates the provisions of the Regulators’ Code which is reviewed on a regular basis to reflect changes in legislation, government policy or ways of working. The document should be read in conjunction with the Enforcement and Sanctions Statement and the Enforcement and Sanctions — Guidance.
The EA also provides specific, externally available statements that outline where it stands on important environmental issues. These include details of waterways, flooding, waste, environmental permits, environmental data and maps, public registers and reporting environmental incidents. Full details are available on its website.