Analysis of two decades worth of Environment Agency prosecution data, carried out by ENDS, has shown that following the introduction of enforcement undertakings in 2011 for certain sectors, there has been a 76.4% drop in prosecutions carried out by the regulator.
The data shows that on average there were 710.6 prosecutions a year between 2000 and 2010, but only 167.6 a year between 2011 and 2021 – a fall of 76.4%.
Enforcement undertakings, which allow firms to make a contribution to an environmental charity instead of being prosecuted, were introduced for certain sectors in 2011 before being rolled out more widely later in the decade.
The Environment Agency does not report enforcement undertakings as comprehensively as it does prosecutions, which makes assessing the breadth of their use difficult to compare directly, but experts have told ENDS that their introduction goes some way to explaining the decline in prosecutions, along with better industry practice in certain sectors, Covid court backlogs, and a resource-poor regulator.
The analysis shows that industries classed under the ‘waste water and sewage management’ sector saw one of the lowest drop-offs, at 15.4%. ‘Wholesale and retail’, on the other hand, recorded a fall of 95.1%, with the average decreasing from 162 prosecutions a year to just eight.
According to Simon Tilling, partner at law firm Steptoe, this can be best explained by the introduction of enforcement undertakings coming in.
“Enforcement undertakings are more suitable for less culpable environmental non-compliance and breaches,” he told ENDS. “Larger operations and high turnover businesses may well have compliance programmes and due diligence processes to try and prevent these things, but you can nevertheless end up having an accident.”
Tilling added that he was not surprised that prosecutions in the wholesale and retail sector appear to have fallen so dramatically, arguing the companies involved are likely to be bigger and have effective regimes in place, and that as the potential environmental risk from their activities is relatively low, for those that do occur enforcement undertakings represent a sensible route to take.
Simon Colvin, a partner at law firm Weightmans added that improved practice has played its part, with considerations around environmental, social and governance (ESG) credentials having much more weight in the last decade than previously.
“The public sector, for example, can award up to 15% of the marks for a procurement exercise to ESG environmental compliance considerations,” Colvin said. “So, if you're a business and you've got non-compliance, you can lose significant marks in the procurement exercise and that could count against you. It's become very important.”
ENDS’ analysis of EA data also shows that virtually no environmental crimes were prosecuted in 2020, when the Covid-19 pandemic broke out, with rates only marginally ticking up in 2021.
Colvin said: “There was somebody at the Department of Justice who basically said ‘if there's a way of disposing of these things without resorting to the courts, then please do so’. A number of prosecutions were just terminated and dealt with in other ways because the courts could not cope. They still can't cope with the number of prosecutions that are coming through and more serious criminal matters are getting held up for years. So, some of the environmental stuff has fallen by the wayside.”
However, the data does show a relatively less dramatic drop-off in prosecutions in the waste industry. Anna Willetts, a partner at Gunnercooke, who specialises in defending waste firms, said that the EA can be reluctant to use enforcement undertakings in the sector.
Read the full data analysis here.