Out-Law News 3 min. read

New guidance sets out SEPA's approach to civil sanctions for Scottish environmental offences


New civil enforcement powers against those that have breached environmental permits are now available to the Scottish Environment Protection Agency (SEPA), including new fining powers.

SEPA has now published statutory guidance on how it will use its powers (57-page / 1MB PDF), meaning it has now fulfilled the legal requirements which give effect to the new enforcement regime. The 2014 Regulatory Reform Act gave SEPA the power to issue fines of up to £40,000 in relation to environmental crimes without having to take offenders to court, as well as the power to accept voluntary 'enforcement undertakings' from offenders committed to changing their behaviour in a wider range of circumstances.

"At last we find ourselves in the new world of 'SEPA sanctions'," said environmental law expert Gordon McCreath of Pinsent Masons, the law firm behind Out-Law.com. "SEPA will begin with a softly-softly approach to implementation of the new powers, but make no mistake, these new measures have the potential to transform the landscape of environmental enforcement in Scotland."

Under the Regulatory Reform Act, SEPA must publish guidance on how environmental offences are enforced, the different civil and criminal sanctions that an individual or business that commits an offence may be liable to and the circumstances in which SEPA is likely to take any particular enforcement action. The new guidance fulfils these requirements, as well as providing guidance on the circumstances in which SEPA is likely to accept voluntary enforcement undertakings from an offender.

The guidance confirms that SEPA must have regard to the framework set by the Lord Advocate when it considers using fixed or variable monetary penalties, or accepting an enforcement undertaking. The Lord Advocate's guidelines are designed as "the safeguard that prevents us from imposing our own penalties, or accepting undertakings, in cases which should go through the courts", according to SEPA's guidance. The regulator also has "robust internal governance arrangements" to ensure that any enforcement decisions are appropriate.

"Just how many cases will fall out of the courts and into SEPA sanctions remains to be seen," said McCreath. "We don’t have a draft of the Lord Advocate's guidelines yet. And a further consultation is yet to come on how SEPA will set variable monetary penalties, the most significant new sanction available to SEPA."

According to the guidance, SEPA's first priority when it becomes aware of any breaches of the law is to take "immediate action to protect the environment or human health". It will then review the facts and evidence about the offence before making its decision on the most appropriate form of enforcement action. This will depend on a non-exhaustive list of 'enforcement factors' set out in the guidance, including intent, foreseeability, impact, financial implications, deterrent effect and the offender's previous history.

Any enforcement action to be taken by SEPA must be "supported by sufficient evidence", and designed to achieve one or more enforcement outcomes including ending the offending behaviour and restoring compliance, stopping or reducing the risk of harm and removing the financial benefits of illegal activity. Sanctions may also be issued as a deterrent against future non-compliance and re-offending. In general, SEPA said that its intention was to "achieve restoration of any harm caused and to change behaviour to prevent future offending or harm".

"Deciding on the right enforcement action is not simply about applying a set of prescriptive rules that determine the type of enforcement action depending on the combination of factors involved," SEPA said. "Using the facts and/or evidence we will decide how important each factor is in the circumstances of each case. In general terms the more significant the impact, the greater the scale of the offending and/or the more deliberate the behaviour, the more likely it is that the appropriate form of enforcement action is a referral to [the Crown Office and Procurator Fiscal Service] for consideration of prosecution."

Because of the wide range of circumstances in which offences occur, there is "significant overlap" between the lists of offences for which fixed and variable monetary penalties and enforcement undertakings will be available. However, SEPA is not permitted to combine fixed and variable monetary penalties, or monetary penalties with criminal proceedings, in relation to the same offence. If enforcement undertakings are accepted by SEPA, it cannot then proceed with criminal proceedings or monetary penalties unless those undertakings have been breached.

According to the guidance, enforcement undertakings are designed to give "otherwise compliant people or businesses" the opportunity to remedy their non-compliance. Undertakings must be offered voluntarily, and must restore and remediate the environmental harm caused as well as removing any financial benefit as a result of the non-compliance and contain steps to prevent recurrence. Any environmental benefits provided for by the undertaking must "go beyond the minimum needed to restore the position", according to the guidance.

Enforcement undertakings will not be available in every case, and need not be accepted by the regulator, according to the guidance. But environmental law expert Gordon McCreath said that they would "almost always be the most preferable response to an environmental incident for businesses concerned about their environmental reputation, because they let you propose - and so potentially control - the remedy, the sanction and, crucially, the public message".

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