Civil sanctions for environmental offences: are they working?
Civil sanctions are aimed at businesses and provide the Environment Agency with new ways to enforce the protection of the environment.
But are they working?
They came into force in January 2011, and according to the Environment Agency, are aimed at businesses that are “trying to do the right thing”, rather than serious offenders. They are focused on investment in environmental clean-up rather than paying fines and are aimed at minor offences.
There are six types of civil sanctions:
• Compliance Notice – a regulator’s written notice requiring actions to comply with the law, or to return to compliance, within a specified period
• Restoration Notice – a regulator’s written notice requiring steps to be taken, within a stated period, to restore harm caused by non-compliance, so far as possible
• Fixed Monetary Penalty - a low-level fine, fixed by legislation, that the regulator may impose for a specified minor offence
• Enforcement Undertaking - an offer, formally accepted by the regulator, to take steps that would make amends for non-compliance and its effects
• Variable Monetary Penalty – a proportionate monetary penalty, which the regulator may impose for a more serious offence
• Stop Notice – a written notice, which requires an immediate stop to an activity that is causing serious harm or presents a significant risk of causing serious harm.
Flexible range of tools
According to the Environment Agency, civil sanctions do not replace any of its current enforcement tools, but provide it with a “more flexible range” of tools.
“We will still prosecute serious offenders, but we will be able to use alternative sanctions with legitimate businesses that are trying to do the right thing. They will be able to put right the damage they have done and local communities will see a direct improvement in the environment as a result,” it says.
To date the Environment Agency has focussed mainly on persuasion, rather than enforcement. It wants the measures to encourage businesses to put the environment first.
The fixed penalty is only £100 for an individual and £300 for a company. This amount is not punitive. However, the negative publicity would have a detrimental effect on many businesses.
But is this approach effective?
I would argue that it is likely to be wholly ineffective. I suggest that many companies do not take environmental compliance seriously and these measures are unlikely to change that position.
The reality is that very few people know about the sanctions, and those that do are not particularly concerned as they do not believe they will be enforced.
As Oliver Letwin MP, Minister for Government Policy, has said, regulators imposing sanctions directly without recourse to the courts is “intolerable”. He views the current approach as leading to “sloppy legislation”.*
Will this lead to action or more prevarication?
The Environment Agency has given its new civil sanctions little publicity, and there have been few if any ‘prosecutions’.
If the environment is to be protected the legislation has to have teeth, and Government bodies need to be seen to bite.
(* Source: ‘The Ends Report’, 7 April 2011)
I take the view that if the civil penalties were actually enforced, especially the financial one, then business would take their environmental responsibilities more seriously.
I have lost count in relation to the number of times business owners and directors have told me that “it doesn’t affect me” .
I am based in Scotland, and I know one council up here, Highland, have already come out and said that we should adopt the same penalties system.
Perhaps the enforcement should be outsourced to those of us at the sharp end, ok that’s self serving, but having recently been threatened by a director for suggesting that illegal dumping of waste was no different to someone stealing from your house, in that both are criminal offences, it made me realise how ignorant business owners are of the laws and that in fact breaking environmental laws was a criminal offence.
I Say enforce them more, the tougher the better.
The penalties do appear small, and I question whether they will be enforced. The current Coalition Government wants to be the “greenest” ever. However, that would not take much to achieve, and they will still fall far short of what is required.
Even with the risk of sanctions, south of the border I have had similar feedback from many business leaders.