“Polluters must pay”

The government has announced new legislative changes to scrap the current £250,000 cap on civil penalties for those operators that commit environmental offences. Under the proposed changes there will be no limit to the variable monetary penalties that the Environment Agency and Natural England can impose on companies.

‘Polluters must pay’ is the clear message being given by the government as it seeks to crack down on environmental breaches which have increased in previous years. The changes cover a wide range of environmental offences and will potentially impact a wide range of sectors from the energy sector, water companies, through to waste operators. With new powers also allowing these higher penalties to be levied under the Environmental Permitting (England and Wales) Regulations 2016, this will be a major change for some industries. As the majority of the Environment Agency’s investigations are in relation to breaches of these Environmental Permitting Regulations, there is no doubt we will see an increase in their use against breaches to try and drive compliance.

The changes are in their infancy. The Environment Agency has launched an eight week consultation process which is due to end in October: Extending civil sanction variable monetary penalty powers - Environment Agency - Citizen Space (environment-agency.gov.uk). The aim of the consultation is to gather information on the penalties, how they are calculated and what the appeals process will be. The Environmental Sentencing Guidelines are now well established. It is proposed the guidelines will be utilised to assist determining penalties, with degree of environmental harm and culpability being accounted for alongside the size of the business and ability to pay.

For businesses, environmental compliance is as important as ever. The changes provide the Environment Agency and Natural England with extended tools to hold those to account for environmental breaches. The changes will no doubt allow the Environment Agency and Natural England a quicker and easier route to deal with these matters, even in the case where large penalties are needed, as opposed to dealing with matters through criminal proceedings. Notwithstanding this, the government is clear that the most serious of cases will still be dealt with by the criminal courts.