What are environmental civil sanctions?
In 2008 an Act of Parliament was brought in paving the way for a more flexible approach to enforcement for the Environment Agency and Natural England. This Regulatory Enforcement and Sanctions Act was followed up in 2010 by Regulations introducing environmental civil sanctions.
Largely seen as a good (or less bad) thing for businesses, environmental civil sanctions provide the regulators with extra strings to their bow when it comes to enforcement of certain environmental legislation, which avoid the need to take a business to court for an environmental offence.
What form do civil sanctions take?
Civil sanctions can include Fixed Monetary Penalties, Variable Monetary Penalties, Compliance Notices, Restoration Notices, Stop Notices, Enforcement Undertakings and Third Party Undertakings. They are designed to remove any financial benefit the business gained in not complying with the regulations.
When are civil sanctions applied and how are they met?
Where there has been a breach in regulation or damage to the environment arising from the offence, the ‘Enforcement Undertaking’ civil sanction could be used. This can include the funding of a complimentary scheme, restoration of an equivalent piece of the environment or undertaking of other environmental works.
Where the business cannot undertake this itself, payments to a third party (where those affected by the offence cannot be identified and compensated) can be used, which can include local charities identified that have clear links to environmental improvement.
Such funding offers must clearly state that the payment is an unrestricted donation from which the offender derives no benefit e.g. offset against a carbon scheme, tax offset etc.
Also, donations cannot be made to an organisation with whom the donor has a personal or family relationship, or with the trustees or management of that organisation.
Examples of recent enforcement undertakings through the Environment Agency have all been from businesses failing to comply with the Producer Responsibility Obligations (Packaging Waste) Regulations 2007.
Businesses have come into compliance by registering with appropriate packaging compliance schemes, but also have donated to a charity local to that business, an amount that will secure equivalent benefit or improvement to the environment, cancelling out any financial benefit gained by not complying.