Article United Kingdom: Environment Agency May Use Unlimited Financial Penalties Against Polluters

On December 1, 2023, an amendment to the Environmental Civil Sanctions (England) Order 2010 entered into force in the United Kingdom, removing the 250,000 pound sterling (approximately US$315,000) cap to the variable monetary penalties the Environment Agency can impose for certain environmental offenses. This means that an unlimited variable monetary penalty may now be imposed for the offenses specified in Schedule 5 of the 2010 Regulations.

An amendment to the Environmental Permitting (England and Wales) Regulations 2016 also extends the scope of the penalties under the regulations to enable the Environment Agency to impose variable monetary penalties for offenses committed by any company that has an environmental permit, such as water, waste, and agricultural companies. The new range of offenses that a variable financial penalty may be imposed for includes illegal discharges into water without a permit; illegal waste offenses, such as illegal scrapyards; and permit breaches from sites that discharge into rivers and seas or that contribute to air pollution.

The variable monetary penalty is a civil sanction that the Environment Agency can impose when it is satisfied beyond a reasonable doubt that an offense has been committed. A variable monetary penalty may not be imposed if one has already been imposed for the same act or omission that caused the offense, or if the Environment Agency has accepted an enforcement undertaking for the same act or omission that caused the offense, provided that the undertaking is being complied with.

The variable monetary penalty is designed to “deter organisations from polluting and increase their incentive to comply with environmental regulations.” The Environment Agency has stated:

There are clear provisions in the Sentencing Council guidelines that will ensure the level of penalties levied are proportionate to the degree of environmental harm and culpability. These include safeguards to ensure the operator’s ability to pay, the size of the operator, and the degree of responsibility and harm, amongst others – all of which are taken into account when imposing a penalty.

The move comes following a public consultation, which found broad support for the measures, and aims to make it faster for the Environment Agency to punish these offenses using the variable monetary penalties to avoid long and expensive criminal prosecutions, although it has noted that serious offenses will continue to be prosecuted in the courts.