In a significant yet under publicised policy shift, the Environment Agency (EA) has removed the right to appeal a decision to reject an Enforcement Undertaking (EU) offer. This change, quietly implemented on 13 June 2025, marks a departure from the EA’s previous approach, which allowed such decisions to be challenged under its regulatory appeals procedure or, historically, through its complaints process.
Background: The Suez Case and the EA’s revised appeals framework
The EA’s regulatory appeals process was revised following the High Court’s decision in R (Suez Recycling and Recovery UK Ltd) v Environment Agency [2023] EWHC 3012 (Admin). The court found that the EA had misinterpreted the Regulators’ Code by treating Compliance Assessment Reports (CARs) as complaints rather than regulatory decisions subject to appeal. In response, the EA committed to a full review of its appeals procedure, culminating in a new two-stage process introduced in December 2024.
This revised framework initially included the rejection of EU offers as a regulatory decision eligible for appeal. However, the June 2025 update reversed this position, stating:
“The decision to reject an enforcement undertaking offer is a regulatory decision. However, the Environment Agency will not accept an appeal of the decision to reject an enforcement undertaking offer. This is because when the Environment Agency rejects an offer they have decided to prosecute or issue a monetary penalty, which has a statutory right of appeal.”
Where does this leave the regulated party?
The removal of the appeal right raises serious concerns particularly surrounding the lack of transparency and accountability. The EA’s decision to quietly remove this right without public consultation or announcement undermines the principles of transparency and fairness embedded in the Regulators’ Code.
Worryingly, there is now no internal review mechanism. Once an EU offer is rejected, the regulated party is left with no recourse to challenge the decision within the EA. This is particularly troubling given that EU offers are voluntary, non-adversarial alternatives to prosecution, often involving environmental restoration and charitable donations.
While the EA argues that rejection leads to prosecution or monetary penalties, both of which carry statutory appeal rights, this assumes that the regulated party will be formally charged or fined. In reality, rejected EU offers may never result in prosecution, leaving the party in a regulatory limbo.
Many feel that the complaints procedure is a hollow alternative. The EA’s complaints procedure remains available, but it is not designed to overturn regulatory decisions. It focuses on service standards rather than substantive review of enforcement actions. Thus, it offers little comfort to those seeking redress for what they perceive as an unfair rejection.
Legal and Ethical Considerations
The EA’s position appears to conflict with the spirit of the Regulators’ Code, which mandates an “impartial and clearly explained route to appeal against a regulatory decision.” The High Court in Suez explicitly rejected the EA’s narrow interpretation of “regulatory decision,” affirming that any adverse decision made in the exercise of a regulatory function should be appealable.
By removing the appeal route for EU rejections, the EA risks reverting to the very practices the court deemed unlawful. This could expose the agency to further legal challenges and erode trust among regulated entities.
Now is the time to reconsider
The EA’s June 2025 policy change represents a troubling erosion of procedural fairness. While the agency may argue that statutory appeal rights suffice, this fails to account for the unique nature of EU offers and the need for a transparent, accessible mechanism to challenge their rejection.
At minimum, the EA should clarify whether the complaints procedure can be used to review EU rejections substantively. Ideally, it should reinstate the right to appeal such decisions or establish a dedicated review pathway that aligns with the principles of the Regulators’ Code.
At Dyne Solicitors we specialise in Environmental Disputes. We offer advice and representation for regulatory, commercial and property litigation in the environmental and waste sectors. For more information, please contact John Dynes.