The Environment Agency (‘EA’) can obtain an enforcement undertaking (EU) as an alternative to prosecution or monetary penalty for handling particular environmental offences.
It is a legally binding voluntary agreement proposed by a business or an individual when the EA has reasonable grounds to suspect that an environmental offence has occurred.
Enforcement undertakings for environmental offences were introduced under the Environmental Civil Sanctions (England) Order 2010 and the Environmental Civil Sanctions (Miscellaneous Amendments) (England) Regulations 2010.
Accepting an enforcement undertaking is always at the discretion of the EA. However, if accepted, it allows firms and individuals who have harmed the environment or operated non-compliantly to offer to take actions which will address the cause and effect of their offending, including making a payment to an appropriate environmental project.
Once submitted, the EA considers whether the terms and proposed actions detailed in the offer are acceptable.
Why use enforcement undertakings?
The offeror will voluntarily ensure compliance both in the present and in the future, without being tarred with a criminal record.
The environment, local community and those directly affected by the offending can benefit from actions offered in the EU.
EUs enable the EA to manage less intentional and polluting offending in a more proportionate way than via prosecution.
The EA retains the right to prosecute where offenders fail to comply with the terms of an EU offer.
What offences can be dealt with by way of an EU?
EUs are only available for certain offences and there are differences between England and Wales.
The Environmental Civil Sanctions (England) Order 2010, applies in England and the Environmental Civil Sanctions (Wales) Order 2010, applies in Wales.
Schedule 5 of both regulations specifies which sanctions are available for each offence, including specifying which offences an EU is available as a civil sanction.
Natural Resources Wales (NRW) is responsible for enforcing environmental civil sanctions in Wales.
The EA also has the power to accept EUs for non-compliance with certain offences under the Environmental Permitting Regulations 2016.
The specific rules as to which offences an EU is available as an alternative to a prosecution demonstrates the importance of checking the availability of EUs at an early stage.
The EA’s approach to enforcement undertakings
The EA make clear in guidance that they will only consider accepting an enforcement undertaking offer for cases where:
- It is not in the public interest to prosecute
- The offer itself addresses the cause and effect of the offending
- The offer protects, restores or enhances the natural capital of England
The EA also sets out in detailed guidance when they will/will not accept an EU offer.
Actions for individuals/businesses
If the EA is prosecuting you and/or your business for an offence for which an EU offer can be made to the EA, we urge you to seek legal advice from a solicitor.
They will be able to advise you on this option, the process, and help you in preparing the offer.
EU offers can also be made proactively before a prosecution has commenced.
At Dyne Solicitors, we have extensive experience in preparing EU offers which are acceptable to the EA.
An important element of preparing the EU offer is in framing the offer to ensure all the factors the EA will expect to be addressed are addressed. Otherwise, there is a risk the EA will reject the offer and the prosecution will continue. Contact James Edes for support.