On 28 November 2017, the Environment Agency (EA) published a consultation on updating its enforcement and sanctions policy documents. The consultation closed on 15 January 2018.
What are the proposed changes?
The EA has proposed to combine the current enforcement and sanctions guidance (ESG) and enforcement and sanctions statement (ESS) into a single shorter document called the enforcement and sanctions policy (ESP). The draft revised guidance also includes the following key changes:
- Use of the definitive guidelines for the sentencing of environmental offences (issued in July 2014) to calculate variable monetary penalties (VMP).
- Further guidance on using enforcement undertakings (EUs), including guidance on when EUs may be accepted, and amended guidance on using the natural capital methodology to help quantify long term damage to water environments.
- Guidance on the victim’s right to review (VRR) scheme implemented in November 2015 which allows a victim to request a review of decisions by the EA not to prosecute, to discontinue all charges involving the victim or to offer no evidence in proceedings relating to the victim.
- Details of how decisions made under the ESP are linked to the EA’s duty to promote economic growth under the Deregulation Act 2015.
- Inclusion of the EA’s revised climate change enforcement policy.
Why are these changes being made?
The ESG and ESS were first published in 2011 and the ESG was last updated in March 2015. This guidance is now being combined into a single shorter document (the ESP) to avoid duplication and make it more accessible. The detailed descriptions of the procedural steps for each sanction in the old guidance are being replaced with the principles used by the EA in deciding what action to take.
The guidance also needs to take account of the following recent developments in law and policy:
- New government policies since the last review, including the definitive guidelines for the sentencing of environmental offences, the code for crown prosecutors, the victims’ rights to review and government guidance on the economic growth duty.
- In April 2015, the EA’s powers were extended to enable them to accept enforcement undertakings (EUs) for many environmental permitting regulations (EPR) offences. The EA always intended to take into account learning from using EUs in practice and these amendments reflect that.
- The EA’s 2014 climate change enforcement policy has been updated.
What will be the impact of the key proposals in practice?
The proposed revisions do not fundamentally change the previous enforcement and sanction guidance. Instead, the revisions to the guidance are intended to clarify and simply the existing approach and make it more accessible to offenders.
The clarification in the guidance on calculating VMPs is helpful as this is an area that has previously presented difficulties (only one variable monetary penalty has been made in the 6 years it has been available). However, the extent of this change may be limited as VMPs are still not available for offences committed under the Environmental Permitting (England and Wales) Regulations that represent the vast majority of environmental offences.
Further, as the statutory cap for VMPs is £250,000, there may be a class of offences, which will suit the variable monetary penalties. However,, as the potential fines increase (particularly for large organisations), it may be that these sanctions again are not used extensively.
Similarly, the updated guidance on EUs will make it easier for offenders and defence lawyers to understand what is likely to be accepted as an EU. There has been uncertainty around this issue in the past, particularly in cases where the environmental damage cannot be put right, and feedback from the industry has indicated that there was scope to make this clearer. This has also been our experience in advising clients on putting forward an EU.
What impact has the introduction of EUs had?
Since EUs were first introduced in April 2015, a growing number have been offered (and accepted) for EPR offences. In line with this trend, it is likely that the use of EUs will continue to grow. They are a useful enforcement tool for people and businesses that are normally compliant and want to avoid the cost and time of a defence to a prosecution.
The new VRR scheme will mean that the EA will be under closer scrutiny over any of its decisions not to prosecute. It means that a decision by the EA not to prosecute will not necessarily be the final word on the matter if a review concludes that the EA should have proceeded with prosecution.
The proposed changes to the guidance are broadly in line with recent trends and developments in both environmental law and criminal law. Civil sanctions have been used as an alternative to prosecution for some time now and are, in many cases, a useful and cost effective way of dealing with less serious environmental offences. The guidance is intended to reinforce and encourage the use of civil sanctions where applicable.
The guidance in relation to VMPs also reflects the changes to the sentencing of environmental offences. It also echoes the attempts made both to provide a framework to establish an appropriate penalty and to ensure that the penalty reflects the culpability and means of the offender, as well as the seriousness of the offence.
How can Burges Salmon help?
Advising clients on how to respond to the investigation or prosecution for a criminal offence continues to be an increasingly specialised exercise. There are opportunities for those being investigated or prosecuted to take advantage of the changing regime. We have extensive experience of advising clients in this area and, for example, have successfully negotiated a number of EUs on behalf of our clients.