The new watchdog: the Office for Environmental Protection

The fledgling Office for Environmental Protection (OEP), which essentially plugs the gap left by the European Commission after Brexit and is tasked with holding the UK Government and public authorities to account in respect of their environmental duties and responsibilities, came into being in November 2021. On 24 January 2022, the OEP was granted its existence in law by virtue of the Environment Act 2021. Only a day after, it released its draft strategy and enforcement policy and a period of consultation commenced in respect of them both.

In this article, we set out the duties of the OEP, its proposed enforcement strategy and policy, and our initial thoughts on how effective the OEP may indeed be in its role.

The new watchdog

Whilst the OEP’s function is not one of a traditional regulator (and its role is quite different to that of the Environment Agency), it will have enforcement powers in its own right and will be able to exercise these in circumstances where there has been a failure to comply with environmental law.

The draft enforcement policy

The draft enforcement policy (the draft policy) sets out the nature and intended use of the OEP’s enforcement powers, as well as providing a decision making framework that should be used to ensure that the OEP takes a consistent approach to enforcement action. It also acknowledges the need for proportionality and transparency to be at the centre of everything the OEP does.

The draft policy identifies three general principles that will underpin the OEP’s enforcement approach, namely:

1. Public authorities must comply with the law.
2. Enforcement activity should be targeted to where it is most needed.
3. Enforcement activity should take account of all the relevant circumstances.

In short, the first principle recognises that the success of environmental protections and improvements, is reliant on public authorities leading by example. The second principle highlights that the OEP’s resources in terms of enforcement should be targeted in accordance with need. No doubt the prioritisation of enforcement activity will be an important part of the OEP’s day-to-day function.

OEP’s functions and enforcement powers

For the majority of the OEP’s enforcement powers to be applicable to a suspected breach of environmental law, the OEP must first consider whether the breach is ‘serious’, and as such, should take into account the following factors:

1. Whether points of law of general public importance are raised (such as where precedent or clarification would be helpful more widely).
2. Frequency of the conduct.
3. Behaviour of the public authority (either in compounding or mitigating the breach).
4. The harm or potential harm to natural environment or human health caused.
5. Any other relevant factors.

The draft policy goes on to identify the bespoke enforcement functions given under law to the OEP. They are as follows: Gathering information before a formal investigation has begun - public authorities will be required to cooperate. Investigations – to establish whether a public authority has complied with environmental law. The OEP has the power to issue an enforcement notice, requiring public authorities to provide information where it is suspected that there has been a failure to comply with environmental law and that breach is considered to be serious. Reporting and recommendations – a report must be prepared and issued by the OEP following all investigations (save where the matter is taken to court) which may include recommendations. The OEP will take steps to monitor compliance with these recommendations. Decision notices – where an information notice has been issued previously, a decision notice may also be issued, setting out the OEP’s conclusions on a public authority’s failure to comply with environmental law and why such a failure is serious. The notice will set out certain steps the authority should take to remedy, mitigate and/or prevent recurrence of the identified failure. Taking public authorities to court – a new form of court proceedings known as an ‘Environmental Review’ will be created to enable the OEP to commence court proceedings against a public authority. The OEP may issue proceedings where, for example, a public authority contests the OEP’s conclusion, does not implement recommendations from a decision notice, or disputes the suggested remedial steps. If the OEP is successful, the court will issue a statement of non-compliance to which the public authority will have to respond within two months. Informing and involving government in enforcement action - The OEP will also have the ability to issue judicial review or statutory review proceedings where there is a serious failure of a public authority that meets the ‘urgency condition’. That is to say, it must be necessary to prevent, or mitigate, serious damaged to the natural environment or to human health. The OEP will also have the ability to intervene in judicial or statutory reviews brought by other parties that relate to an alleged failure of a public authority to comply with environmental law.

Comment

The draft policy sets out a framework which provides the OEP with powers of enforcement that could have a real impact on the compliance of public authorities with environmental law. It has the potential to be at the very front of the nation’s efforts for improving the environmental and human health of the nation. However, issues relating to the resources available to the OEP, the concept of seriousness and the need to prioritise may mean that the full bite of the enforcement options available to it take quite some time to be realised, if at all.

With the publication of the UN report on 4 April 2022 stressing that the world will only avoid the worst consequences of climate change by making an immediate and deep emission reduction, this new watchdog will have a pivotal role in ensuring that our public authorities lead on delivering and improving environmental protections.

Related item: The Environment Bill – post-Brexit Landscape for environmental regulation and enforcement

Read other items in Crime and Regulatory Brief - July 2022