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.

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