The Office for Environmental Protection (“OEP”) has recently published its first Strategy and Enforcement Policy. In her foreword, the OEP’s chair, Dame Glynis Stacey, states that its aim will always be to make the best possible difference to the natural environment and to best protect people from the effects of environmental harm. Despite this ambition, it is clear that the realities of financing and resourcing the organisation will restrict what it is able to achieve in practice.
- What is the OEP?
- Strategic objectives
- Investigations and notices
- Environmental Review/Review Application
- Judicial Review/Statutory Review
- Interventions
- Implications for Public Authorities and Businesses
- Conclusions
What is the OEP?
The OEP was formally established on 17 November 2021, under the auspices of the Environment Act 2021, as an independent body to hold the government and other public authorities (which may include private companies fulfilling public functions, such as water companies, harbour authorities, etc.) to account on environmental law. In this respect, it fulfils the role of “environmental watchdog” that had been assumed by the European Commission prior to Brexit (which had brought numerous infringement proceedings against the UK in the past, including in relation to air pollution). Its other functions are to:
- monitor and report on progress on environmental improvement plans and targets;
- monitor and report on the implementation of environmental law; and
- advise the government on environmental law, including any changes.
Its remit extends to England, Northern Ireland and UK-wide reserved matters (i.e. environmental law which has not been devolved to the Scottish or Welsh parliaments). The functions of other environmental regulators (such as the Environment Agency and Natural England) continue as before and their roles are not supplanted by the OEP.
Strategic Objectives
The OEP has four strategic objectives:
- sustained environmental improvement;
- better environmental law, better implemented;
- improved compliance with environmental law; and
- organisational excellence and influence.
Despite these aspirations, there is also an acceptance that there are limits as to what the OEP may realistically achieve. The strategy makes clear that the OEP is not an ombudsman, will not investigate every case and will not seek individual redress for complainants. Instead, it will focus on the most serious breaches where it can make the most difference. In addition, as a publicly-funded organisation, there is an acknowledgement that it must spend money wisely, and that it will need to make hard choices about how and when to act in order to make the most difference.
Investigations and Notices
The OEP has the power to investigate a public authority’s alleged or suspected failure to comply with environmental law. An investigation may be initiated by the OEP of its own initiative or triggered by a complaint by a third party (and the OEP has published the procedure under which complaints may be made).
The OEP can serve an Information Notice requiring that the public authority provide certain information if it has reasonable grounds for suspecting that the public authority has failed to comply with environmental law (and where the failure, if it occurred, would be serious).
Following an investigation (save where it brings court proceedings), the OEP must prepare a report setting out its conclusions on whether the public authority has failed to comply with environmental law. The report may also contain recommendations (for example, steps to rectify the effects of the non-compliance or prevent recurrence of the non-compliance, or to revisit the decision by the public authority in question).
The need to make effective use of its finite resources means that the OEP will normally aim to resolve non-compliance through co-operation, dialogue and agreement with public authorities. However, in appropriate cases, and where it has previously issued an information notice, the OEP may issue a formal Decision Notice setting out:
- the OEP’s conclusion that the public authority has failed to comply with environmental law;
- why it considers that the failure is serious; and
- the steps it considers should be taken by the public authority.
Environmental Review/Review Application
Where a Decision Notice has been served, the OEP may bring court proceedings where, for example, a public authority:
- contests the conclusion in the Decision Notice that it failed to comply with environmental law;
- does not implement the recommendations from a Decision Notice, or does not do so in a timely manner;
- cannot revisit its decision in the absence of a court quashing order; or
- accepts its breach but disputes the remedial steps suggested.
In these circumstances, the OEP can launch proceedings for an environmental review (or, in Northern Ireland, a review application). If the court agrees that a public authority has failed to comply with environmental law, it will publish a statement of non-compliance (“SONC”) and may also grant any remedy that would be available via judicial review (for example, a quashing order to overturn an unlawful decision or a mandatory order requiring the public authority to take certain steps, but damages are not available). A public authority must publish a response to a SONC within two months of the conclusion of the proceedings (including any appeal) setting out the steps it intends to take in light of the SONC. Although courts are not required to publish SONCs under review applications in Northern Ireland, the public authority must still publish a statement setting out the steps it intends to take following a court finding that it has failed to comply with environmental law.
Judicial Review/Statutory Review
The OEP may apply for judicial review or (in relation to certain planning matters) a statutory review where it considers there is, or may be, a serious failure to comply with environmental law. This is only available where the ‘urgency condition’ has been satisfied (i.e. judicial review or statutory review is necessary to prevent, or mitigate, serious damage to the natural environment or to human health). In these cases, there is no requirement to have first served an Information Notice or a Decision Notice. If the court finds that a public authority has failed to comply with environmental law, the public authority must publish a statement setting out the steps it intends to take in the light of that finding within two months of the end of the proceedings.
Interventions
The OEP may apply to intervene in judicial reviews or statutory reviews brought by others that relate to an alleged failure by a public authority to comply with environmental law.
Implications for Public Authorities and Businesses
The introduction of the OEP is a reminder to public authorities of the need, notwithstanding Brexit, to abide by environmental law and give proper weight to environmental issues.
Whilst governmental bodies and agencies will clearly fall within the scope of a “public authority”, many organisations outside of government may be unclear whether they will be treated as fulfilling the necessary public function to qualify as well (although cases heard by the Information Commissioner under the Environmental Information Regulations 2004 may provide some guidance in this respect).
Although most private businesses will not be directly subject to the OEP’s enforcement powers, it is likely to shape the environmental decision-making of public authorities (including Defra, the Environment Agency and local authorities) that regulate the sectors in which such businesses operate. For example, developers should be aware that the policies and decisions of local planning authorities may be investigated by the OEP if they are suspected or alleged to be breaching environmental law. On the other hand, it may also potentially offer a route to redress for those businesses affected by a policy or decision which they consider breaches environmental law.
Conclusions
The OEP’s recently-published corporate plan notes that the OEP has total financial resources of £12.104m and up to 71 full-time staff, although these levels are due to reduce to between £7m and £8m and just over 50 employees for the next 4 financial years. Therefore, the OEP will certainly have to pick its battles in deciding when to investigate and take enforcement action. Also, as a newly-established and small organisation, the OEP will need to develop the authority, relationships, expertise, and voice to perform its role properly.
Nevertheless, it has recently announced its first investigation following a complaint made by Salmon & Trout Conservation UK alleging that the Environment Agency, Ofwat and Defra have seriously breached environmental law in not adequately performing their regulatory duties with regard to the operation of combined sewage overflows by sewerage network operators. Public authorities, environmental NGOs and charities, and others with an interest in environmental governance will keenly await the outcome as a demonstration of the OEP’s mettle.
DAC Beachcroft’s National Regulatory team has expertise in advising on all environmental matters. If you have any queries, please telephone or e-mail one of the contacts below
