Fine points on how the forthcoming civil sanctions regime will operate were revealed at the UK Environmental Law Association (UKELA) annual conference in Exeter at the end of June.
An important clarification concerned enforcement undertakings. These will allow the Environment Agency to accept a polluter’s plan to remediate harm and return to compliance with the law. But they would prevent the pursuit of criminal prosecution.
Angling organisation Fish Legal feared the agency would accept the deals behind closed doors without third-party involvement or publicity. But Anne Brosnan, head of serious casework at the agency, said this would not be the case. The regulator will require evidence that affected parties, such as angling clubs or local residents, have been consulted before it agrees that an undertaking has been completed.
She also confirmed that civil claims can still be lodged against polluters making undertakings. Undertakings must also be submitted in writing and will be published on the agency’s website.
“This is not just a positive outcome for angling but also for the members of the public who want to keep all deals with polluters out in the open and available for scrutiny,” said Justin Neal, head solicitor at Fish Legal. The environment department (DEFRA) had “completely ignored our warnings” and failed to make appropriate amendments to the legislation.
Ms Brosnan told the conference the agency would be happy to provide “a small amount of guidance” on the content of the undertakings, “but it is not for us to write them”. A fast-track appeals process for stop and perhaps for restoration and compliance notices is being set up. Appeals could be heard within seven days of being lodged. Consultation on extending civil sanctions to the environmental permitting regulations is imminent, she added.
Ms Brosnan said the regime should enter force in September, but could be delayed.
In July, another senior source at the agency confirmed the delay. Its guidance on civil sanctions is likely to be considered at its next board meeting on 7 September, with a view to using the powers 12 weeks later.
The agency’s website stated that the guidance and a response to consultation on it were due to be published by 21 June.
The conference heard concerns about how variable monetary penalties (VMPs) will be calculated (ENDS Report, 421, pp 43-44). A VMP will consist of the estimated illegal profit, plus a deterrent amount, reduced by the costs of restoring compliance. For example, the cost of repairing or replacing emissions abatement equipment or upgrading a sewage treatment plant could be deducted.
But the methodology could result in no penalty being applied for breaches when such costs are high, which provides little incentive to keep on the right side of the law.
However, such offences may be more likely to result in prosecution as they would indicate premeditated action. The courts are under no obligation to consider the expense of restoring compliance when assessing fines.
ENDS’ legal commentator Professor Richard Macrory told the delegates that the US Environmental Protection Agency was “gobsmacked” by the idea of allowing costs to reduce penalties. The American enforcement regime partly inspired the civil sanctions package that he developed.
Ms Brosnan acknowledged the problem, stating that the use of VMPs “does not make sense” if they come out as negative. She added that their calculation will be included in penalty notices.
UKELA president Lord Justice Carnwath, who heads the Tribunals Service that will rule on civil sanctions appeals, said he has asked Professor Macrory to revisit his 2003 report on modernising environmental justice (ENDS Report, 341, pp 3-4). The new report, due in the autumn, is likely to recommend expanding the remit of the First-tier Tribunal (Environment), which the judge described as “the seeds of an environmental court”.
ENDS heard that the environment department (DEFRA) is preparing a consultation on strengthening court powers to punish environmental offences, aimed at providing a better balance with sanctions. Initial proposals were published last year (ENDS Report, 415, pp 46-47).
However, it is not known if the proposed shake-up, which could force offenders to publicise their offences and pay to restore damaged habitats, has won the approval of ministers. It could fall to the government’s drive to cut costs, although giving magistrates powers to confiscate illegal profits would doubtless raise income for the Treasury. Only crown courts may do this presently.
The powers will mostly apply to fly-tipping, refusing to allow entry or provide information to authorities, and for water pollution offences. In England they could be used for a range of offences, including those connected to transfrontier waste shipment, environmental impact assessment, and even deer management.