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:
- 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.
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:
- Whether points of law of general public importance are raised (such as where precedent or clarification would be helpful more widely).
- Frequency of the conduct.
- Behaviour of the public authority (either in compounding or mitigating the breach).
- The harm or potential harm to natural environment or human health caused.
- 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:
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.