Our guide to environmental civil sanctions
WHAT ARE ENVIRONMENTAL CIVIL SANCTIONS?
An environmental civil sanction is a non-criminal penalty given to an individual or company for committing an environmental offence. It is an alternative enforcement response to prosecution or to being given a formal caution. Environmental regulators enforce the requirements of environmental laws, permits, licences and consents, and civil sanctions provide a wider range of enforcement options as well as provide the ability to enforce against environmental offences without going to court. Civil sanctions are only available for specific environmental offences in England, Scotland and Wales.
WHO ARE THE ENFORCEMENT BODIES?
The environmental regulators that can enforce civil sanctions for each jurisdiction are:
- the Environment Agency (EA) in England;
- Scottish Environment Protection Agency (SEPA) in Scotland; and
- Natural Resources Wales (NRW) in Wales.
WHAT TYPES OF ENVIRONMENTAL CIVIL SANCTIONS ARE THERE?
There are several environmental civil sanctions as outlined below.
- Fixed Monetary Penalties (FMPs) impose a fine of a fixed amount depending upon the type of offence committed.
- Variable Monetary Penalties (VMPs) require the payment of a monetary penalty set by the regulator according to the severity of the offence.
- Compliance Notices (CNs) require steps to be taken to come back into compliance with the relevant legal requirements, and to ensure the offence does not continue or recur. The steps to be undertaken are set within a specified time period.
- Restoration Notices (RNs) require steps to be taken to restore any damage that may occur as a result of environmental offences. Restoration must be to a standard which matches or exceeds the state prior to the damage occurring.
- Stop Notices (SNs) require an immediate stop to an activity that is causing significant environmental harm, or has the potential to do so. They prohibit a person or company from carrying out an activity specified in the notice until the relevant steps have been taken, as stated in the notice.
- Enforcement Undertakings are where the offender proposes, to the regulator, steps that they will take to rectify a non-compliance. The proposal must rectify the cause of the non-compliance, remediate any damage caused, and offer compensation to those impacted by it. The regulator can accept or reject the offer.
N.B. Not all the civil sanctions listed are available for every environmental offence.
WHEN ARE THEY USED?
Civil sanctions are used when it is deemed by the regulator that it would not be in the public interest to prosecute for the offence committed, and where it is decided that a civil sanction is an adequate enforcement response to the nature of the offence, and is an appropriate deterrent to the offender and others. They are available for specific offences under a number of pieces of legislation, most notably:
- The Producer Responsibility Obligations (Packaging Waste) Regulations 2007;
- The Hazardous Waste (England and Wales) Regulations 2005;
- The Hazardous Waste (Wales) Regulations 2005; and
- The Environmental Permitting (England and Wales) Regulations 2016.
Each environmental regulator has issued guidance detailing the enforcement responses it has available for each kind of offence.
- The EA have issued their Offence Response Options (ORO) policy papers.
- SEPA have produced guidance on their use of enforcement action.
- NRW have a webpage detailing their regulatory responsibilities, where they have included the document ‘Guidance on Enforcement and Sanctions, Appendix 4, Examples of Offences and Options for Enforcement Response’.
WHICH LEGISLATION APPLIES?
The Regulatory Enforcement and Sanctions Act 2008 gave regulators a range of new powers to impose civil sanctions.
In England, The Environmental Civil Sanctions (England) Order 2010 sets out in Schedule 5 the offences to which civil sanctions may be imposed by the EA and Natural England (NE).
The Welsh Government introduced The Environmental Civil Sanctions (Wales) Order 2010 which gave the Environment Agency Wales (the former environmental regulator) the power to impose civil sanctions for a range of environmental offences. These functions now sit with NRW following the creation of the new body in 2013.