Written by James Claughton, 15th September 2023
Environmental issues are never too far from the news headlines nowadays whether it be flooding, drought, air or some other form of pollution, accidental or otherwise. Indeed, just in the last few weeks we have seen reports which showed that three major water companies illegally discharged sewage hundreds of times during 2022 on days when it was not raining, a practice which is banned due to the risk of higher concentrations of sewage in our waterways. Only this week, the Office for Environmental Protection (OEP) issued a notice in which it identified possible failures to comply with environmental law by the Department for Environment, Food and Rural Affairs (DEFRA), Ofwat and the Environment Agency in relation to the regulation of sewage releases.
Whilst the three public authorities named in the OEP Information Notices will have two months to respond and put forward their own views on the situation and any proposed remedial action to address the issues, it is still a rather embarrassing situation for them to find themselves in.
Given the recent headlines, it is perhaps timely to take a closer look at the Environment Agency and their role in regulatory enforcement, particularly as the potential failures and criticism of them by OEP is directly relevant to how they devise guidance, set, review and enforce conditions.
Creating a better environment
Environmental issues are part and parcel of everyday life, and in 2020, The Environment Agency (EA) set out its action plan ‘EA2025 – Creating a Better Place’.
The plan sets out 3 long term goals:
- A nation resilient to climate change
- Healthy air, land and water
- Green growth and a sustainable future
In light of recent news reports, the aim of “healthy air, land and water”, is the focus of this piece. As such we will explore the methods of enforcement available to the EA so that businesses and their employees are aware of what action can be taken in the event of non-compliance.
The EA aim that “by 2025 rivers, lakes, groundwater and coasts will have better water quality and will be better places for people and wildlife”. Releasing sewage into rivers and seas is allowed in the UK to prevent pipe systems becoming overwhelmed – but only when it has been raining However, as noted above, recent reports confirmed that Thames, Wessex and Southern Water discharged sewage for a collective 3,500 hours last year on days when it was not raining in breach of their permits.
Whilst It remains to be seen what, if any action the EA will take against these water companies, below we explore some of the options available to them in the cases they deal with.
Intervention and Enforcement
Like all regulators, the EA ought to provide advice and support to those businesses they are charged with regulating. For those who have or are suspected of committing an offence, the EA can still provide advice and guidance (verbal or written) with a view to securing a return to and future compliance.
The EA are able to issue written warnings to those who they believe have committed an offence. Such warnings will detail the offences that have been committed and the action that needs to be taken including the timescales for the same. Importantly, the warning will also set out what will happen if the action is not taken and given that warning letters are kept on record, they may be taken into account in the event of continued or further breaches.
Fixed monetary penalties
The EA may issue such penalties:
- where we have given advice and guidance, it has not been followed and improvements have not been made
- for minor offences or where there is no direct environmental impact, such as paperwork and administrative offences
Variable monetary penalties
The EA can directly impose financial penalties via Variable Monetary Penalties (VMPs).
VMPs can be issued:
- when there is evidence of negligence or mismanagement
- when there is an environmental impact
- to remove an identifiable financial gain or saving as a result of the breach
- where it is not in the public interest to prosecute
The limit at present on VMPs is £250,000. Last year, proposals were announced to increase this to £250 million per individual breach. However, following the government’s, ‘Consultation on strengthening environmental civil sanctions’ the EA has since unveiled plans for unlimited penalties. It is hoped that raising/removing the cap on VMPs will act as a deterrent.
The EA can require an activity to stop immediately by way of a stop notice which will remain in force until specific action has been taken to remove or reduce the harm or risk of it. Such notices are most common in circumstances where the activity is causing or presents a significant risk of serious harm to human health or the environment.
The EA also have the option to issue a compliance notice which requires the offender to take specific action to return to compliance, the objective being to bring about a change in behaviour.
In order to put right any environmental harm or damage, the EA may also issue a formal restoration notice which requires the offender to take specific steps set out therein to restore the situation, so far as possible, to what it would have been but for the offence having been committed.
An enforcement undertaking is a voluntary offer made by an offender to do the following:
- put right the effects of their offending
- put right the impact on third parties
- make sure the offence cannot happen again
If an enforcement undertaking is accepted, then it becomes binding between the EA and the offender. Voluntary offers will only be considered if the EA are assured of the following:
- It is not in the public interest to prosecute.
- The offer itself addresses the cause and effect of the offending.
- The offer protects, restores or enhances the natural capital of England.
Short of prosecution, the EA may issue an offender with a formal caution but this will only occur where the offence is admitted and the offender accepts the caution.
Also as an alternative to prosecution, the EA can issue a fixed penalty notice for certain offences which effectively gives the offender the opportunity to pay a fixed amount by a set date and if paid no further action will be taken.
The options above may be argued to provide the EA with a more efficient method of dealing with breaches, than drawn-out and expensive criminal prosecutions and as such are likely to be favoured by the EA where feasible. However, prosecutions will still take place for the most serious cases.
The sentencing council guidelines outline the level of penalties proportionate to the harm and culpability. There is no limit to the size of the fine that the Courts impose. A prosecution can take place either in the Magistrates Court or the Crown Court. It is worth noting that a prosecution may lead to ancillary orders including confiscation of assets under the Proceeds of Crime Act 2002 which could have significant and far-reaching consequences for the individuals or business involved.
What should you do if the EA get in touch?
If you or your business do come under investigation, it is important to seek legal advice and assistance as soon as possible. The team at Olliers will help you navigate the process and ensure that everything that can be done is done to secure the best possible outcome.
Whether the EA decides to prosecute or not, the team at Olliers have a wealth of experience in providing advice and assistance to employers, employees and companies facing investigation and prosecution, so get in touch with our experts.