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the rise of the Enforcement Undertaking for environmental crime – a force for good?

17 December 2018

This article is taken from December's public matters newsletter. Click here to view more articles from this issue.

On 23 November 2018, the Environment Agency (EA) published a list of Enforcement Undertakings that had been accepted by regulators. This list included Enforcement Undertakings that had been entered into between 1 June 2018 and 19 October 2018, as well as unpublished Enforcement Undertakings that had previously been entered into between 1 February 2018 and 31 May 2018.

An Enforcement Undertaking is a type of civil sanction which is available to certain regulators (including the EA, Natural England and Natural Resources Wales) in relation to environmental offences as set out in the Regulatory Enforcement and Sanctions Act 2008. An Enforcement Undertaking takes the form of a legally-binding agreement, which is entered into voluntarily, and is offered to the regulator where there are reasonable grounds to expect that an offence has been committed. In order for an Enforcement Undertaking to become an option for a regulator as an alternative to a prosecution, the regulator must have investigated the offence and have a realistic prospect of a successful prosecution to the criminal standard of proof, which is beyond reasonable doubt.

The EA’s published list of Enforcement Undertakings sets out that 15 charities and projects will receive £2,223,121.54 from companies and individuals as a result of various environmental offences. This money will be spent on initiatives that will benefit the environment. As well as making payments under the Enforcement Undertaking, the companies responsible have to accept liability for the harm that they have caused, demonstrate restoration of the harm and make improvements to avoid future offences.

The published list includes the largest ever financial contribution required by the EA as a result of an Enforcement Undertaking. In this case, a contribution of £975,000 was offered by Wessex Water Services Limited in relation to an environmental offence which involved a sewage spill at Swanage, Dorset. More than 142,000 cubic metres of sewage was discharged into the sea as a result of illegal spills in 2016 and 2017.

This contribution will go towards:

  • the Waste Partnership where £400,000 will be used to fund the development of a doorstep recycling scheme for domestic fat, oil and grease
  • the Dorset Litter Free Coast and Sea Project, who will receive £100,000
  • a local flood defence scheme in Swanage, where £400,000 will be received by Purbeck District Council and Swanage Town Council
  • the Durlston Country Park and Nature Reserve, who will receive £75,000.

At the time of the spillage, a RNLI lifeboat crew were affected as they had to sail through raw sewage. As a result of this, the company involved also offered Swanage RNLI Lifeboat Station £25,000 compensation, which took the total pay out to over £1 million.

The other payments required under the Enforcement Undertakings in the recently published list range from £5,000 to £232,000, and are as a result of various environmental offences. These include polluting rivers and streams, discharging diesel into watercourses and ponds, discharging sewage into brooks and not taking reasonable steps to recover and recycle waste.

Use of enforcement undertakings since their introduction

Time Period (may include previously unpublished amounts from earlier months) Total Funds received by the EA from Enforcement Undertakings
4 January 2011 – 31 January 2012 £256,024.58
1 January 2012 – 31 July 2012 £459,693.55
1 May 2012 – 30 October 2012 £63,351.52
1 November 2012 – 30 April 2013 £143,284.57
1 February 2013 – 31 July 2013 £112,952.07
1 August 2013 – 31 January 2014 £1,100,366.26
1 February 2014 – 28 May 2014 £317,108.36
29 May 2014 – 31 August 2014 £84,656.10
1 September 2014 – 5 April 2015 £239,968.25
6 April 2015 – 31 July 2015 £118,913.27
1 August 2015 – 31 December 2015 £75,930.50
1 January 2016 – 31 July 2016 £485,531.75
1 August 2016 – 27 January 2017 £1,579,761.09
28 January 2017 – 31 August 2017 £1,820,514.30
1 September 2017 – 31 January 2018 £1,081,877.22
1 February 2018 – 31 May 2018 £961,048.81
1 June 2018 – 19 October 2018 £2,223,184.54

If the amount received from Enforcement Undertakings is considered in calendar years (albeit the way that the figures have been reported make an exact calculation of the yearly amounts received impossible), approximately the funds received for each calendar year are as follows:

  • 2011 and 2012 - £779,069.65
  • 2013 - £1.357 million
  • 2014 - £521,748.59
  • 2015 - £314,827.90
  • 2016 - £2.065 million
  • 2017 - £2.902 million
  • 2018 - £3.184 million.

Why is the use Enforcement Undertakings increasing?

The funds being obtained from Enforcement Undertakings are steadily increasing. There are a number of reasons as to why this is the case.

Firstly, over the years the ability to use Enforcement Undertakings has been extended. This means that Enforcement Undertakings have become available for a far greater number of offences. Enforcement Undertakings are also still relatively new, so arguably regulators are still getting to grips with how best to use and utilise Enforcement Undertakings.

Additionally, with environmental protection becoming a hot topic both among politicians and members of the public alike, companies and individuals have become more aware of the negative publicity that environmental crime can attract. Enforcement Undertakings provide polluters with the opportunity to repair the reputational damage that can arise as a result of environmental crime.

Enforcement Undertakings are also attractive to companies as they avoid the expense that is associated with a lengthy trial and criminal prosecution, as well as the steep fines (and associated legal fees) that companies can receive as a result of being found guilty of an environmental crime. It should be noted that payments under an Enforcement Undertaking can be as large as those under a prosecution, however the key difference is that the company does not have to pay for the significant legal costs associated with taking a case to court.

Directors of companies may also prefer an Enforcement Undertaking because it avoids them of being held criminally responsible. Accordingly it avoids the risk of imprisonment and orders such as disqualification orders. Enforcement Undertakings also create opportunities for the regulator to focus on restoring the damage that has been caused, without the expense and uncertainty of taking a matter to court. They allow regulators to focus on remediation and restoration, and payments required under an Enforcement Undertaking usually benefit local charities and projects that will be able to improve the environment in the area where the offence took place. They also provide opportunities for businesses to improve their practices and to ensure they are compliant with their environmental responsibilities and requirements.

Despite the positive aspects of Enforcement Undertakings, there are reasons why regulators should exercise caution when accepting an Enforcement Undertaking. Firstly, once an Enforcement Undertaking has been entered into, no further civil or criminal sanction can be pursued. This means that if the full effects of the environmental damage do not become clear until a later date, and an Enforcement Undertaking has been entered into, the regulator will have no further remedy to pursue in order to deal with the offence.

Secondly, they may not dissuade companies from damaging the environment in the future as the payments required under an Enforcement Undertaking may be relatively small compared to their available funds. In addition, the payments made under an Enforcement Undertaking are used to repair the environmental damage, which is something that the company may have decided to do in any event.

A force for good?

As discussed above, there are a number of advantages to using Enforcement Undertakings. In my opinion the careful use of Enforcement Undertakings is a positive and proportionate method of ensuring environmental harm is remedied, whilst avoiding unnecessary court cases.

However, regulators need to be mindful of individuals or companies that may seek to agree Enforcement Undertakings as a way of escaping the potentially more damaging effects of a prosecution. Those that have the financial strength to pay the large payments associated with of an Enforcement Undertaking may not be incentivised to comply with their environmental obligations in the future. The purpose of environmental legislation, such as the Environmental Protection Act 1990, is to protect the environment by stopping businesses allowing damaging activities such as unauthorised discharges to take place. It is not to simply place a cost on doing environmental harm. It is important that the number of environmentally damaging events reduces not increases.

By prosecuting environmental offences courts can in certain situations impose custodial sentences on individuals such as directors responsible for causing the environmental harm. They can also disqualify responsible individuals from being directors. These actions are more likely to encourage businesses to take steps to avoid environmental harm, even when financially it would be more cost efficient to pay the fine than resolve underlying issues which result in the environmental damage.

In recent years significant budget cuts for public bodies, including the EA, may have encouraged the use of Enforcement Undertakings. Whilst the use of Enforcement Undertakings by environmental regulators is generally positive, sometimes a successful prosecution is the only way to force a business or encourage other businesses to invest sufficiently to stop environmentally damaging events occurring. Accordingly, although there are many positive aspects to the use of Enforcement Undertakings, I hope that regulators are not discouraged from prosecuting when in the public interest to do so.

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