How are environmental civil sanctions being strengthened?

Summary

Environmental civil sanctions are intended to provide a proportionate alternative to criminal prosecution for businesses and individuals who fail to comply with environmental regulation. On 12 July 2023, secondary legislation was laid before Parliament proposing to strengthen environmental civil sanctions to deter organisations from causing pollution and increase their incentive to comply with environmental regulations (the Draft Legislation). The Draft Legislation is due to come into force on 1 December 2023.

The draft Environmental Civil Sanctions (England) (Amendment) Order 2023 (the Draft Order)

At present, there are a range of civil sanctions available to the Environment Agency (EA) under the Environmental Civil Sanctions (England) Order 2010. These include restoration notices, enforcement undertakings and variable monetary penalties (VMPs). VMPs are issued by the EA for more serious environmental offences, including: 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; and where it is not in the public interest to prosecute. The current limit for VMPs is £250,000 for each individual offence.

The Draft Order will remove the current cap of £250,000 for VMPs so that unlimited fines can be imposed, making VMPs a greater deterrent in respect of environmental offending.

The draft Environmental Permitting (England and Wales) (Amendment) (England) (No 2) Regulations 2023 (the Draft Regulations)

The Environmental Permitting (England and Wales) Regulations 2016 address waste management and pollution prevention by regulating emissions to air, water and land through environmental permits. It sets out various enforcement options for offences, such as enforcement notices, suspension notices, prosecutions and enforcement undertakings.

The Draft Regulations will introduce VMPs as a penalty for moderate-to-serious civil offences, therefore bridging the gap that exists between current enforcement powers available to the EA which are considered appropriate only for minor or serious offences. The Draft Regulations also require the EA to publish guidance in relation to its use of VMPs and the factors it will consider in determining the amount of a VMP. No VMPs will be imposed by the EA or Natural England under these new powers until the public enforcement guidance has been updated. 

Practical implications

It is hoped that by increasing the extent and range of enforcement options available to the EA and Natural England, they will be able to hold polluters to account, reduce pollution and protect biodiversity. Whilst these changes are primarily aimed at addressing the increased pollution caused by water companies, in practice the impact is likely to be broader as it will be easier for the regulatory authorities to impose significant civil penalties for environmental breaches across all industries.

At Norton Rose Fulbright we have extensive experience of compliance with the environmental permitting regime and will continue to monitor these developments over the coming months. If you have any questions or would like any further information about the Draft Legislation, please contact us. 

With thanks to Dani Bass for her contributions.