Improving Environmental Enforcement
The Department for Environment, Food and Rural Affairs has issued a consultation paper entitled “Fairer and Better Environmental Enforcement” seeking views on its proposals for changes to the enforcement procedures to try to create a more proportionate, fair and more effective approach to enforcing environmental criminal offences in England and Wales. The consultation period is open until 14 October 2009.
The current system
Many aspects of our environment are protected by law and these laws are enforced by regulators. The proposed changes cover a wide range of existing legislation including protection of water and wildlife, requirements for handling waste and control of environmental risk through permits. At present regulators have discretion whether to take enforcement action or not when a person or business breaches environmental law. In some instances they issue warning letters or cautions, however if that does not work then for many environmental offences the only other possible action is a criminal prosecution. Prosecution may not be appropriate depending on the nature and extent of the breach, the record that person or business has for compliance to date, whether there is a realistic prospect of conviction and whether prosecution is in the public interest.
Introduction of civil sanctions
The Government is proposing that the Environment Agency, Natural England and the Countryside Council for Wales will be able to use the civil sanctions enabled by the Regulatory Enforcement and Sanctions (RES) Act 2008. The powers will be introduced by two Statutory Instruments which are contained in Annex 2 and 3 of the consultation document. It is anticipated that these will come into force on 6 April 2010. Each SI sets out in detail which offences it covers and the civil sanctions to be applied to each offence.
Civil sanctions are sanctions that are imposed by the environmental regulator in accordance with their published enforcement policy and more detailed guidance. In appropriate cases, the regulator then has an effective alternative route to criminal prosecution.
What can civil sanctions include?
Regulators will continue to try to raise awareness of what people need to do in order to comply with environmental law and the first step in most cases of non-compliance will continue to be the provision of advice and guidance to help people to achieve compliance. In reality sanctions will only be applied in a small number of non-compliance cases but it is important for regulators to be able to have a range of sanctions available to them depending on the seriousness of the breach and the risk to the environment that it poses.
Responsible businesses will be able to volunteer to make amends for non-compliance with environmental law by means of an Enforcement Undertaking setting out the measures which they propose to take to put matters right. In many cases this may make it unnecessary to impose further sanctions whether civil or criminal. Regulators can decide whether to accept this rather than prosecuting the business for a criminal offence or imposing civil sanctions on it.
A regulator must issue a Notice of Intent to impose a civil sanction before doing so. The regulator then has to consider any representations that a party wishes to make in respect of the alleged breach of environmental law before imposing a sanction on them (other than a Stop Notice which can be imposed straight away).
Stop Notices will be introduced and can be issued where a regulator is reasonably satisfied that an offence is being, or is likely to be committed but only where there is serious harm or a significant risk of serious harm. The recipient would then have to stop the activity identified in the Stop Notice.
Compliance Notices can be issued which require an operator to take actions to comply with the law or to return to compliance within a specified period.
Restoration Notices will be introduced by the proposed scheme which require an operator to take steps within a stated period to restore harm caused by non-compliance so far as possible.
Fixed Monetary Penalties can also be imposed which are relatively low level fines fixed by legislation for specified minor offences. Alternatively Variable Monetary Penalties can be imposed which are proportionate monetary penalties for more serious offences where the regulator decides that prosecution is not in the public interest.
Benefits of the new regime
The proposals should benefit businesses as the imposition of fines for non-compliant businesses will mean that there is no competitive advantage for companies that do not comply with environmental law as they will end up paying just as much as those companies that do comply with the legislation.
Businesses that do take a responsible attitude to compliance with environmental law but occasionally breach environmental regulations when, for example, environmental protection measures fail despite a good approach to compliance, will find it easier to preserve their reputation for compliance through the matter being dealt with as a civil rather than a criminal matter.
Regulators will benefit from being given more flexibility in the way in which they enforce against breaches of environmental law so that they can match their response to the seriousness of the non-compliance in order that the actions they take are proportionate.
Other regulators
At the moment the proposals do not cover local authority enforcement which is a significant gap. Defra are currently working on addressing this and it is to be hoped that the same approach can be applied so that all regulators have the full range of enforcement tools at their disposal.
Criminal sanctions
Regulators exercise discretion on whether to prosecute or not for non-compliance with environmental law. Criminal prosecutions will still continue to play a vital role in punishing the worst cases of non-compliance and in acting as a deterrent for non-compliance. The consultation paper also proposes measures to strengthen the powers of the criminal courts to help them when sentencing the most serious cases of breach of environmental law. This is to address concerns that too often offenders are still left with a financial benefit from non-compliance with environmental law even after a criminal prosecution and this does not help to deter non-compliance and undermines the competiveness of compliant companies. There is also often no requirement on offenders to restore any damage caused by their actions. There will be a further consultation on the new proposed sentencing powers.
This article was first published in the Property Law Journal on 25 September 2009.
