The Government has published a Consultation which aims to strengthen the abilities of the Environment Agency to issue monetary penalties for environmental offences in England, and to raise the cap for such penalties.
The Consultation specifically refers to variable monetary penalties, which can be issued by the Environment Agency for serious environmental offences:
What are the plans?
The Government plans to:
What are variable monetary penalties?
Variable monetary penalties require the payment of a monetary penalty set by the regulator according to the severity of the offence.
They are part of environmental civil sanctions, which are non-criminal penalties imposed by the regulator on an individual or company for committing an environmental offence. They are an alternative to prosecution or a formal caution, and essentially provide a wider range of enforcement options without having to go to court. They are often used for businesses and others who fail to comply with environmental regulations despite generally having a good approach to compliance.
As well as variable monetary penalties, civil sanctions can also include:
How will this affect Environmental Permitting?
Environmental Permitting is a core legal framework for the Environment Agency to enforce compliance with key legislation where industries have the potential to pollute the environment.
Variable monetary penalties are currently available under the Environmental Civil Sanctions (England) Order SI 2010/1157, but not under the Environmental Permitting (England and Wales) Regulations SI 2016/1154. This means that monetary penalties cannot be imposed for the majority of Agency investigations.
Introducing variable monetary penalties in Environmental Permitting would therefore allow the Agency to impose such penalties for a wider range of regulation breaches, where they are the most appropriate enforcement action. Doing so means regulators can respond to different levels of offending across all sectors in a more proportionate way. It fills the "justice gap" between prosecution and warning.
The level of penalty will take into account the environmental impact, culpability and the offender’s ability to pay, and will be calculated using the Sentencing Council Guidelines. The size and financial circumstances of
the organisation, the type and seriousness of the offence and the specifics of the case are all taken into account. The penalty can also cover any obvious financial benefit unlawfully gained by the offender.
Who will this affect?
These proposed changes will affect the following broad sectors:
What happens next?
The Consultation closes on Monday 15 May 2023.
As it requires changes to the Environmental Civil Sanctions (England) Order SI 2010/1157 and the Environmental Permitting (England and Wales) Regulations SI 2016/1154 which will need Parliamentary approval, the next steps are:
For more information see the:
