The OEP: objectives, strategy, and implementation
Our Guide to the Environment Act 2021 (the Act) discussed the legal framework for the establishment of the Office of Environmental Protection (OEP). In accordance with that framework, the OEP is currently consulting on its draft Strategy and its draft Enforcement Policy.
There has been debate around how effective the OEP will be in achieving its aims: certainly, its advisory role to government will be just as important, if not more so, as its enforcement function in achieving a more robust framework of environmental law and ensuring compliance of that by public bodies.
The consultation seeks views on the four proposed strategic objectives together with any comments on the proposed approaches to prioritisation, assessment of seriousness of an environmental failure or damage/harm, and scrutinising environmental improvement plans (EIPs) and environmental laws. The consultation also provides for any general comments on enforcement, the OEP’s interaction with other agencies, its strategy relating to objectivity, impartiality, proportionality and transparency, and its approach to advice to the government.
We have reviewed the draft policy documents and summarised the key points below.
The draft Strategy sets out four strategic objectives:
- Sustained environmental improvement
- Better environmental law, better implemented
- Improved compliance with environmental law
- Organisational excellence and influence
Broadly, the OEP seeks to achieve these objectives by closely scrutinising EIPs, targets and environmental law to assess what is working and identify issues that need addressing and making recommendations as necessary. The initial EIP monitoring report anticipated for “early 2022” has not yet been published by the OEP.
The draft Strategy considers the OEP’s proposal for prioritising work and the allocation of resources. It confirms that any decision to act in respect of environmental issues will be taken on a case by case basis.
A complaints procedure has been established on the OEP website which sets out the scope of complaints that can be made and what the public can expect the OEP to do with those. The OEP is not an ombudsman and therefore action will not be taken against each and every complaint; rather, broad assessment will be carried out to ensure the most serious breaches and cases are focused on. The scope of any OEP investigation is to determine if the public authority has complied with the law and, if it has not, to establish what it should do to correct the failure.
The draft Strategy sets out the proposed approach to enforcement, further considered in the draft Enforcement Policy, confirming that the focus will be strategic and on the most significant matters, such as failures to comply with environmental law that are systemic, recurrent or may cause serious harm. Resolution will be sought in the first instance without recourse to formal court processes. Where this cannot be achieved, the OEP has recourse to further enforcement powers including commencing Environmental Review proceedings in the High Court in England as well as utilising judicial review (JR) in matters where urgent action is needed to prevent or mitigate serious damage to the natural environment or to human health.
Any decision to take enforcement action must be made on the basis that certain legal tests have been met, including whether a public body’s conduct amounts to a serious failure to comply with environmental law. This is expanded on more fully in the draft Enforcement Policy.
Draft Enforcement Policy
The draft Enforcement Policy sets out the nature of the OEP’s enforcement powers and how they will be used to achieve the OEP’s principal objective; the decision-making framework to ensure a consistent approach to enforcement; safeguards to ensure objectivity and impartiality; and the requirement, as with any enforcing body, to act proportionately and transparently. It also establishes how the OEP will meet its requirements under the Act to (among other things) determine whether breaches of environmental law and harm to the natural environment or human health are serious and avoid any overlap with other similar functions taken by the relevant ombudsmen services.
The OEP has proposed three general principals to underpin its enforcement approach:
- public authorities must comply with the law
- enforcement activity should be targeted to where it is most needed
- enforcement activity should take account of all the relevant circumstances
The OEP’s enforcement powers apply to alleged or suspected failures of public authorities to comply (including omissions as well as actions) with environmental law (as defined by the Act). It has bespoke functions to deal specifically with environmental law including gathering information and carrying out investigations, reporting and making recommendations, issuing decision notices, taking court action, and informing and involving the government in enforcement action.
The OEP’s usual approach to prioritisation under its Strategy will apply to decisions to take enforcement action.
Upon receipt of a complaint or other information with a view to possible investigation, the OEP must first determine whether the matter falls within its remit. Once this initial hurdle is cleared, the remainder of the decision-making framework is applied:
- Is there a possible environmental law failure?
- Is the failure serious?
- Is it a priority for enforcement?
Where the answer to all three of the above questions is yes, the OEP will then determine whether the case is urgent or non-urgent.
A decision notice may be issued setting out the OEP’s conclusions on a public authority's failure to comply with environmental law, reasons for finding that failure serious, and steps required to remedy, mitigate, or prevent reoccurrence of that failure.
In assessing seriousness of the failure, the OEP will consider:
- whether a public authority's conduct raises any points of law of general public importance (and whether the conduct involves compounding or mitigating factors);
- the frequency of the conduct over time (including historically and whether by the same public authority or others), including cumulative impact;
- the harm or potential harm to the natural environment or to human health; and
- any other relevant factors.
In assessing seriousness of harm or potential harm to the natural environment or human health, the OEP will consider:
- the likelihood of harm;
- the nature, degree, duration of, and scope for recovery from the actual or potential harm;
- any compounding or mitigating factors; and
- any other relevant factors (e.g. wider issues such as any indication of more widespread or systemic issues, or the application of any legal protections to the relevant environmental features).
Environmental Review proceedings can be commenced in the High Court in England. Circumstances giving rise to this could be where a public body contests a conclusion of the OEP in relation to a failure to comply with environmental law, does not implement OEP recommendations (or fails to do so in a timely manner), or accepts its breach but disputes the remedial steps suggested.
To commence proceedings, the OEP must be satisfied, on the balance of probabilities, that the public authority has failed to comply with environmental law and that failure is serious. This is the same as the test for issuing a decision notice. Proceedings for Environmental Review may only be commenced where the OEP has previously served an information notice and a decision notice in relation to the case.
If the Environmental Review is successful (i.e. the Court agrees that a public authority has failed to comply with environmental law) it will publish a statement of non-compliance (SONC). Subject to certain conditions specified in the Act, the Court may also grant any remedy available via a JR (but it may not award damages).
A public authority must publish a response to a SONC within two months which sets out the steps it intends to take in light of the SONC. There is an expectation that the response presents a “meaningful and substantive approach to tackling the findings”.
Urgent court proceedings
JR or statutory review may be applied for in appropriate cases, without having issued an information notice or decision notice, where the OEP considers there is or may be a failure to comply with environmental law which is serious, subject to an “urgency condition” being met. This requires the OEP be satisfied that the JR or statutory review is necessary to prevent, or mitigate, serious damage to the natural environment or to human health, rather than its usual route of Environmental Review.
If the JR or statutory review is upheld, the public authority must publish a statement setting out the steps it intends within two months of the end of the proceedings.
The Court may also grant any remedies available through JR or statutory review and the OEP may take further action to enforce compliance with court judgments where needed, including, where appropriate, by returning to Court.
The OEP may apply to intervene in JRs or statutory reviews brought by others that relate to an alleged failure by a public authority to comply with environmental law. Decisions to intervene will hinge on the OEP’s assessment of seriousness and the usual prioritisation criteria, or whether it would be of assistance to the Court. It will be for the Court to permit any intervention.
The consultation runs until 22 March and the draft documents together with a link to provide comments can be accessed here.
For more information on the above please contact Rachael Davidson or your usual Charles Russell Speechlys contact.