Enforcement Undertakings for Environmental Permitting Offences – A ‘Win-Win’ Scenario?
On 6 April 2015, the Environmental Permitting (England and Wales) (Amendment) (England) Regulations 2015/324 came into force and conferred upon the Environment Agency the power to accept enforcement undertakings in respect of certain offences under the Environmental Permitting (England and Wales) Regulations 2010/675 (“EPR”).
This development, which had been long anticipated, means that an offender (or alleged offender) will be able to voluntarily offer to do or pay for some act of environmental restoration and, if the offer is accepted by the Agency, they will avoid prosecution for the offence. If the terms of the Enforcement Undertaking are not fulfilled, however, the Agency may proceed with the prosecution. Although, for now, enforcement undertakings only apply to a very limited number of offences under the EPR, they will be available for a breach of regulation 38(1) (i.e. operating a regulated facility or causing or knowingly permitting a water or groundwater discharge activity except as authorised under an environmental permit), one of the most frequently prosecuted offences under the EPR.
Enforcement Undertakings have been available to the Agency as part of its enforcement toolbox since January 2011 for a range of other offences, and have already been used widely for breaches of the Producer Waste Obligations (Producer Responsibility) Regulations 2007. Guidance available from the Agency provides a useful indication as to how it will exercise its extended powers in relation to the EPR. For example, the Agency has stated that it will only accept Enforcement Undertakings where it has sufficient confidence that the conditions will be delivered and that it is more likely to accept them where they are offered early. The Agency concedes that it would welcome and look more favourably upon an Enforcement Undertaking offer containing a contribution towards the Agency’s costs incurred up to the time that it may accept the offer and for any subsequent compliance monitoring and discharge activities. Importantly, the fact that an Enforcement Undertaking is accepted does not impact on the right of a third party to bring a civil action in respect of the incident to which the Enforcement Undertaking relates.
In practice, over the last four and half years, offenders (or alleged offenders) have tended to embrace Enforcement Undertakings as an alternative to prosecution. Paradoxically, businesses that have committed (or are alleged to have committed) environmental offences have often taken the opportunity to publicise the steps that they have taken to comply with the terms of Enforcement Undertakings, for example contributions towards local environmental charities. The proliferation of Enforcement Undertakings will, therefore, be welcomed both by regulators and industry as an alternative to traditional prosecution.