Environmental news round up - 25 August 2023

This week’s environmental news round up is diving into environmental crime, and the powers of the Environment Agency to enforce against it.

The sky’s the limit for variable money penalties 

The Environment Agency are consulting on the lifting of the cap for variable monetary penalties (VMPs). VMPs can be used by the EA as an alternative to criminal sanctions for a number of offences, and can provide a quicker resolution without the stigma of a criminal conviction for the offender.

The current cap on VMPs is £250,000. However, the UK government held a consultation between 4 April and 15 May 2023 on proposals to increase the VMP cap and broaden the potential of using them for a broader range of environmental crimes. The outcome of this consultation was the complete removal of the cap, which is intended to take effect from 1 December 2023, and the ability to use VMPs for offences committed under the Environmental Permitting (England and Wales) Regulations 2016.

The EA’s current consultation focuses on how these changes will impact their enforcement action. They are seeking views on whether it is clear when the EA can use VMPs, whether the current policy on appeals is clear enough, and if the calculation method is understandable.

The calculation methodology is based on the Sentencing Guidelines for Environmental Offences which takes into consideration a number of factors, including the turnover or equivalent of the offender. The Sentencing Guidelines allow for penalties of up to £1,000,000 for ‘large organisations’. This calculation had historically been divided by four to ensure VMPs did not exceed the £250,000 cap. However, this step will now be removed from the calculation. Other factors considered include the environmental harm caused and the removal of any economic benefit derived from the offence.

The EA have said, despite these changes, the most serious cases will still be taken through criminal proceedings.

The EAs consultation remains open until 8 October.

How often does the Environment Agency need to assess UK’s water bodies?

Recently, The Guardian released an article criticising the Environment Agency’s decision to delay their mandatory assessment of the ecological and chemical condition of rivers, lakes, groundwater, and transitional and coastal waters, which is required under the Environment (Water Framework Directive) (England and Wales) Regulations 2017 (“WFD 2017”).

It was reported that the Environment Agency used to carry out this assessment on a yearly basis, but now it has decided to carry out the assessment every 6 years. The media article considering this highlighted the fact that the last assessment carried out in 2019 concerningly showed that only 14% of the rivers were in good ecological health and none met standards for good chemical health.

The Guardian also reported that clean water advocates were against this delay.

The Environment Agency released a response providing that “It is completely untrue to suggest that the water body data required to be published has been delayed.” The response provides that, according to WFD 2017, these assessments should be carried out every 6 years, therefore their new approach is in line with these regulations. Furthermore, the Environment Agency provided that a limited dataset of sampling results was published in August 2023, which targeted water bodies with suspected environmental problems.

While the Environment Agency is correct about the law, we also understand the concerns referred in the media publication as the usual annual assessment will now be carried out in a much wider period.

The Cost of Environmental Negligence for Two UK Companies

Two further water pollution cases have been reported with Warrington Magistrates issuing an £800,000 fine against United Utilities on 15^th August for illegal abstraction of water and the Environment Agency publishing details in relation to construction and engineering company Costain Limited who agreed to donate the sum of £55,000 to a local wildlife charity after it breached its environmental permit and polluted the River Don with silt.

United Utilities it was found by the Environment Agency had illegally abstracted some 22 billion litres of water during an exceptionally dry period in 2018 causing damage to an important aquifer namely the Fylde, that the court was told will take years to recover. Aquifers feed rivers to keep their flows at a healthy level and are important sources of water when reservoirs or other sources run low.

The Environment Agency spokesperson speaking about the case after sentence said that “while water companies are allowed to abstract water from the environment, over-abstraction especially during prolonged periods of dry weather has damaging impacts to our environment”.

In addition to the fine of £800,000 United Utilities also paid £3million by way of a contribution to environmental initiatives and told the court that it was committed to a number of local river trust schemes and had made internal changes to its systems to ensure that this type of incident does not happen again.

In relation to the case of Costain the Environment Agency had found that the company had breached its environmental permit that allowed it to discharge water treated by a sediment facility into the River Don during work to the A19 by allowing silt to enter the river in quantities that far exceeded the limit contained within its permit causing discolouration for at least 500 metres.

Despite the level of discolouration in the river there was no long term ecological impact and the Environment Agency as opposed to prosecuting in this case accepted an Enforcement Undertaking which is a voluntary offer made by an offender to the Environment Agency. If the offer of an Enforcement Undertaking is accepted and an offender fully complies with agreed upon actions then typically it avoids the offender being prosecuted although the Environment Agency retains the right to prosecute if the terms are not met.

In this case Costain agreed to make a financial donation to the Tyne River Trust and had also satisfied the Environment Agency that it had improved its internal procedures to avoid repeat incidents.

The use of Enforcement Undertakings can in some cases be more cost effective to both the Environment Agency and the offender in comparison to prosecution proceedings and can often result in quicker remedies in dealing with environmental crime with the emphasis of them being on rectifying harm and benefitting the environment directly rather than just penalising the offender.

The Agriculture (Wales) Act 2023 has received Royal Assent

The Agriculture (Wales) Act received Royal Assent on 17 August 2023 and makes provision for a new income support scheme for farmers, the Sustainable Farming Scheme, which will fill the funding gap left by Brexit.

The Sustainable Farming Scheme will commence in 2025 and will promote environmental benefits by linking payments to production levels as well as water and soil conservation and restoration, nature creation and restoration, and carbon storage.

Aside from this new payment scheme, the Act includes new obligations for farmers. Welsh Rural Affairs Minister Lesley Griffiths has described snare and glue traps as “inhumane”, and Wales will become the first UK nation to introduce a complete ban on their use.

Also, farmers will be required to have at least 10% tree cover on their farms. £32 million in subsidies has been made available to help cover the cost of tree planting for this purpose.

Additionally, there are changes in relation to tree felling. The limit on fines that may be imposed for felling without a licence is to be removed. Natural Resources Wales (NRW) will be able to impose conditions on the grant of a tree felling licence:

• to conserve or enhance natural beauty;
• to conserve flora, fauna, geological and physiographical features or natural habitats; or
• if felling would contradict other environmental legislation.

NRW will also have the power to amend, suspend or revoke a felling licence. There will no longer be a limit on fines that may be imposed for felling trees without a licence.

If you wish to review the full Act, it can be found here. The accompanying explanatory memorandum can be read here. 

What powers does the Environment Agency have to investigate environmental crime?

The Environment Agency describes itself as an executive non-departmental public body sponsored by DEFRA. In England, it is responsible for a range of activities including:

• regulating major industry and waste;
• the treatment of contaminated land;
• water quality and resources; and
• managing the risk of flooding from rivers, reservoirs, estuaries and the sea.

The Environment Agency has a range of powers available to it to investigate environmental crime set out in legislation. The Environment Act 1995 provides the Environment Agency with powers to:

• enter premises;
• make examination and/or investigation;
• compel the provision of information required during investigation and/or examination;
• seize articles or substances found on a premises that are (reasonably believed to be) the cause of imminent or serious environmental pollution; and
• issue restriction notices and restriction orders.

Further powers are afforded to the Environment Agency under the Environment Protection Act 1990. These powers include that the Environment Agency may:

• require the removal of waste; and
• search and seize vehicles.