The Environment Agency was supposed
to have gained the power to use civil sanctions for environmental
permitting offences this month but in February this year, Defra
withdrew these powers, announcing at the same time that the
Government wanted to agree a cross-government position on civil
sanctions more generally before they were rolled out any
further.
Amendments to the civil sanctions regime are due to be made later
this year; the Agency still has the power to issue civil sanctions
for some offences – such as packaging waste offences and
fly-tipping – but the Government's track record in
environmental regulation so far suggests that any amendments could
be radical. Indeed, there are rumours that civil sanctions could be
scrapped altogether. The Government's waste policy review is
due to be published next month.
Those advocating civil sanctions claim that they are a useful
addition to a regulator's armoury. In the case of environmental
offences it is claimed that civil sanctions will put the focus more
firmly on cleaning up environmental damage or perhaps acting as a
more effective deterrent against the creation of such damage;
rather than the fines, costs and stigma which accompany criminal
trial. Critics of civil sanctions, including those in the
Government, feel that they expose business to the risk of sloppy
regulation without proper oversight.
Those operating in the complex waste sector will be familiar with
the difficulties that can arise when an Agency Officer decides that
their site is being operated in contravention of the conditions of
its environmental permit. We have been involved in enough cases to
know that Officers are very often wrong; and it is only when these
matters go to trial, and defendants are acquitted, that clear
guidance arises for the waste sector as a whole. The risk in civil
sanctions is that if faced with a small penalty rather than a
criminal record, operators are more likely to accept a civil
sanction and a quieter life, even if they know they have done
nothing wrong.
On a related subject, an Environmental Tribunal has been
established to handle appeals arising out the Civil Sanctions
regime. This has been mothballed and, if civil sanctions are
scrapped, may be mothballed permanently. This would be a pity, as
it has been suggested that the Tribunal could be used to hear other
environmental law appeals, such as appeals against abatement
notices. At present so much environmental law is consigned to the
criminal justice and magistates' court system that is, frankly,
ill-equipped to deal with it. An environmental tribunal would
enable operators to challenge the decisions of the Environment
Agency and other regulators before a a specialist judicial panel
experienced in environmental law.
If the baby is thrown out with the bathwater then the current
deficiencies in the justice system will remain. At DMH Stallard,
whilst we would welcome the transfer of environmental law cases to
a specialist tribunal, we have a great deal of experience in
providing, against the backdrop of the current system, regulatory
advice in the waste industry sector and to those engaged upon other
commercial activity giving rise to environmental law problems,
regulation and/or complaints. If you want to discuss or seek advice
on any environmental regulatory issue or problem please contact
Michael Krantz or
Nick Walker.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.