I recently revisited Regulation 37 of the Environmental Permitting Regulations 2016 and was struck by a point that is often overlooked in environmental regulation.
It seems to me that many people misunderstand the legislation around permit breaches and are unclear of how a Suspension Notice works.
A Suspension Notice is one of the most powerful tools available to a regulator as it can stop a business from operating immediately. Understandably, it can have significant commercial consequences.
There is an assumption that a permit breach automatically justifies suspension. In reality, the legislation is more nuanced.
Under Regulation 37 there are broadly two routes:
- A permit breach that involves a risk of pollution
- A risk of serious pollution, whether or not a permit condition has been breached
This means that the question of whether a serious incident occurred in the past is not likely to be the most relevant. Instead, the focus is on whether, at the date the notice is served, suspension remains necessary and proportionate.
In many environmental incidents, operators and regulators are working simultaneously towards remediation. This is demonstrated through:
- Action plans
- Corrective works
- Improving compliance
- Reductions in risks
It becomes necessary to ask at what point does cooperative remediation become a more appropriate regulatory response than suspension?
The answer will always depend on the situation. However, it is a useful reminder that enforcement decisions should be judged on the circumstances that exist at the time they are made, not solely on the seriousness of the situation that existed days or weeks earlier.
Good regulation requires firmness when necessary.
It also requires regulators to continually reassess whether the intervention they are using remains justified as circumstances change.
Understanding this is as vital as the underlying environmental protection objective.
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