SBN Environmental Legal Update Feb 2010
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The document discusses several legal updates related to environmental regulations in the UK: 1) DEFRA plans to allow civil sanctions like fines and compliance orders to be imposed by regulators like the Environment Agency and Natural England, rather than requiring criminal prosecution. 2) New sentencing guidelines have been published to help determine penalties for environmental crimes, though some argue the case studies do not properly account for business size. 3) Clarifications have been issued for regulations on environmental damage, following various delays and court cases.
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SBN Environmental Legal Update Feb 2010
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Editor's Notes
- This arises out of the Hampton Review on better regulation. It’s the most significant development in Environmental Law in the last 6 months. Some bright spark decided that one way of making regulation more efficient was to cut out the courts, which take time and trouble to pilot a case through. Cynics would say, it’s a bit like “If you go to court you might lose, so let’s find a way of avoiding court” This sort of idea – fixed penalty notices – has been adopted in all sorts of areas of the criminal law and “civil sanctions” could be seen as riding the crest of the wave. However, some observers think that they may be slipping down the front of it, as several luminaries, including the DPP, are questioning quite where it is taking us in terms of civil liberties. [explain the proposal ] There was a consultation several months ago, which received a lukewarm reception and some stinging criticism. Last week, to a great fanfare, the government announced its response to the consultation and surprise surprise, the introduction of new regulations before Parliament to enable the new scheme to get off the ground with effect from 6 th April 2010. They have made some tweaks to the original proposal.
- The point about incompatibility with human rights (and companies have human rights as much as humans) lay in the fact that although the legislation provides that all these sanctions can be appealed against, the one ground of appeal which was missing was that the defendant was not guilty of the offence for which the notice had been served. This minor technicality has, according to the Government, been remedied by adding a further ground of appeal called “for any other reason”. Sounds a bit like “oh well if you must”. I can’t give you the rest of the detail as the Government has not yet published the draft regulations. Overlapping regulators – NE said it was “dismayed” that the Government had not thought about this. The Government response was to take areas where high hazard was involved out of the regime (e.g. COMAH) but to leave all else in and to be dealt with by individually negotiated MOUs The calculation of VMPs has been simplified. The Government has added a limit to VMPs of £250,000. The intention therefore is that anything which would merit a fine of less than £250,000 (i.e. virtually all but catastrophic environmental offences) will be dealt with by means of civil sanctions.
- One might ask, “why bother?” in view of the previous slide. However… I was in court on just before Christmas representing a company which was pleading guilty to two environmental offences. This guide was published last week. I mentioned it to the magistrates during my plea in mitigation…
- The EDR were the most significant development in Environmental Law in the first six months of this year. Those of you who were at the may meeting will recall that I did a whole session on them. For those who were not there, this is a summary: They complement the contaminated land regime – whereby the polluter pays for environmental clean up: slow contamination under the contaminated land regime, catastrophic contamination under these regs Anyone who causes damage or thinks they are about to cause it has to report it to the regulator The regulator can then control and direct what is to be cleaned up, how it is to be cleaned up and the standard to which it is to be cleaned up. The directions and notices can be appealed against and co-authors of the damage can seek redress from each other. The remediation to be applied goes much further than under the contaminated land regime, as these regulations can require in effect that the public be compensated for the loss of environmental amenity, such as drinking water sources The regulations are complex, particularly in relation to: Identifying what is and what is not environmental damage Identifying what is and what is not regulated damage Identifying the correct regulator to give notice to – the potential regulators are listed on this slide The latter point has been picked up under this MOU. Obviously even the regulators were not entirely clear (despite the 150 page guidance issued by DEFRA). So this will have helped them to understand who should do what. But it won’t help the business on the street. 13 more pages of guidance in addition to the 150 pages produced by DEFRA and the 43 clauses and schedules of the regulations themselves. The regs are the government’s implementation in UK law of the Environmental Liability Directive. They were late in being implemented and the UK government was found guilty in the European Court a couple of months ago of failing to implement it within the timescale allowed by the EU. The “exemptions” are effectively environmental damage permitted in the public interest for oil
- This has been bubbling around for years but has come into sharp relief in the last 12 months with these two cases. They typify the tension between regulatory law and the common law. Regulatory law is… The common law is… One aspect of the common law is the law of nuisance. Under the law of nuisance, an occupier of land who is affected by an act of nuisance (noise, smell, dust etc) from another piece of land can get an injunction. A codified version of that allows a local authority to issue an abatement notice instead of the occupier getting an injunction, but they have the same effect. Regulatory law forbids certain acts unless they are done in accordance with a permission issued by the regulator, so planning consent by the planning authority, environmental permit by the EA etc. What these cases say very clearly is that even if what you are doing is being done in accordance with the terms of some regulatory permission, if it is a nuisance it continues to be a nuisance and you can be stopped from doing it. This makes business planning in connection with any industry which can be associated with nuisance very difficult, especially as whether or not something is a nuisance can only be judged retrospectively – you have to go ahead and do it and run the risk that someone will stop you. It matters not also that you have been doing it for years and those who complain about it bought the affected land knowing that it was affected. I think that we will see more litigation like this in the future.