The Environment Agency – the power to act but without sufficient resources to do so effectively?

Hot off the heels of the Environment Act 2021, which came into force in November 2021, the UK Government unveiled its plans to crack down on waste criminals in a bid to reform the waste industry. In particular, it will be corporates who will reportedly find themselves in the spotlight, with increased background checks for firms who move or trade waste to ensure the use of authorised personnel at all stages and adequate permits are in place. Mandatory waste tracking will also be introduced, designed to enable regulators to better detect illegal activity and tackle waste crime, including fly-tipping, illegal waste sites, and illegal waste exports.

However, leaked reports have called into question the Environment Agency’s ability to enforce the Government’s plan and prosecute. It has been claimed that the Environmental Agency is significantly under-resourced, resulting in it downgrading 93% of prosecutions for serious pollution over four years. Those prosecutions not taken forward were dealt with via a lower sanction such as a warning letter, or dropped all together and marked for 'no further action. There is therefore likely to be a tension between what is planned and what can be delivered in terms of holding companies to account under the threat of criminal prosecutions for non-compliance. By reforming the licensing system it is hoped this will clamp down on abuse of the system and new mandatory digital waste tracking will greatly improve transparency in the sector, allowing for increased prosecutions. However, this remains to be seen. 

This growing uncertainty should not however be seen as a signal for companies dealing with waste to rest on their laurels. Leaving aside the Environment Agency’s ability to prosecute, we are likely to see an upward trend in civil sanctions being sought. These are likely to extend to claims under the Environmental Permitting (England and Wales) Regulations 2016, waste codes of practice and claims for breaches of duty in respect of a waste duty of care, as aggrieved landowners take matters into their own hands when faced with waste management issues on their land.

It will be interesting to see how the role of the new Environment Act, coupled with the Government’s pledges, plays out over time in terms of the enforcement of waste issues. However, what is clear is that waste management will remain in the spotlight for some time and companies are going to have to continue to keep on top of their waste management and reporting obligations, or risk possible criminal and civil sanctions.