EA staff advised not to respond to reports of low impact pollution events

On 10th January, The Guardian reported that along with Ends Report, it had viewed a leaked Environment Agency (EA) briefing document issued to its staff in November advising them that there is leadership support for “no response to unfunded low- and no-impact environmental incidents”.

The document appears to confirm that officers ought to ignore any reports of category 3 or 4 pollution incidents on the grounds that these are lower impact and the EA does not have the resources to investigate them. The Guardian reported that the document “also hints at the agency’s frustration at ministers and the money set aside for its work” with the briefing note stating that the EA’s leadership team has “made it clear to government that you get the environment that you pay for.”

The issue of resources and funding and its impact on the EA’s ability to regulate is not new. Last February we wrote about the formal meeting of the Environment, Food and Rural Affairs Committee (EFRA) held that January to hear oral evidence on the work of the EA in which Sir James Bevan indicated that the Agency’s enforcement activity had declined “largely because the resources” that the EA need “have been dropping.” (you can read our blog on this here).

The reported contents of the leaked briefing note appears to confirm that it is the EA’s position that it is having to prioritise certain aspects of its regulation activity. In the circumstances, that approach is arguably not unreasonable. What is concerning, however, is the basis on which that prioritisation takes place.

Increased effort on “charge funded regulation”

The article in The Guardian indicates that whilst the briefing document stipulates that low impact environmental incidents will not merit a response, the exception to this will be where an incident is caused by a regulated site or a water company. Such an approach eschews the creation of a level playing field in favour of targeting permitted operators. A low-level incident is not worth investigating unless it is committed by a regulated operator, then it becomes worthy of attention.

As to why the EA has chosen to employ this strategy, this is perhaps explained in the briefing document which sets out the benefits of ignoring low impact incidents, including increased effort on “charge-funded regulation.” It appears, then, that there is a concerted effort by the EA to concentrate the majority of its enforcement response on permitted operators, the regulation of whom arguably generates funds. This may come in the form of escalated subsistence fees or the use of enforcement undertakings (EU) as an alternative to prosecution. EUs are a particularly attractive prospect because they allow the EA to recoup its costs for the investigation of the offence as well as the costs involved in processing the EU.

Viewed in this way, there is an undeniable logic behind the EA’s strategy; it is better to concentrate its regulation effort in a way which limits the financial impact on it and provides the best opportunity of allowing it to recover its investigation costs. From an objective perspective, however, this approach is inherently problematic. Firstly, as set out above, it creates a situation where incidents having the same level of impact are treated differently according to who the EA suspects is responsible for their occurrence. The unfairness of this strategy is self-evident.

If it is the EA’s policy that low impact pollution incidents are not prioritised, this should apply equally across the board. It is difficult to see how the position taken by the EA accords with its policy that a risk-based approach to incidents is to be adopted and its efforts ought to be concentrated on those incidents which pose the greatest risk to the environment. If that were indeed the case, it would not be advising its officers to ignore low impact incidents except for those caused by regulated sites.

It could perhaps be argued that the EA’s approach is one which prioritises prevention over cure. It is, after all, more cost effective to prevent an incident from occurring in the first place and the EA is in a position to prevent pollution incidents at the sites it regulates. Despite this, it is difficult to get away from the fact that the EA’s approach is inconsistent. It may well be true that you get the environment that you pay for, but it’s entirely unreasonable that it should fall to the industry that opt in to regulation to foot the majority of the bill.