Accountability and offsetting in environmental law enforcement
| Published date | 01 March 2022 |
| Author | MARINA NEHME,OLE W. PEDERSEN |
| Date | 01 March 2022 |
| DOI | http://doi.org/10.1111/jols.12346 |
DOI: ./j ols.
ORIGINAL ARTICLE
Accountability and offsetting in environmental
law enforcement
MARINA NEHME1OLE W. PEDERSEN2
UNSW Law School, University of New
South Wales, High Street, Kensington,
NSW , Australia
Department of Law, Aarhus University,
Bartholins Allè , Aarhus C,
Denmark
Correspondence
OleW. Pedersen, Department of Law,
AarhusUniversity, Bartholins Allè ,
Aarhus C, Denmark
Email:owp@law.au.dk
Abstract
Since , the Environment Agency of England has
had a range of flexible tools at its disposal to deal with
misconduct. One such sanction, enforcement undertak-
ing, is akin to a settlement where the regulator and
the offender agree to deal with the breach through a
range of promises that may restore and remedythe envi-
ronmental harm caused by the offence. The majority
of these undertakings further require the offender to
make donations to charitable environmental causes to
improve the environment. However,there is little trans-
parency around the latter promise. Consequently, this
article details the findings of a pilot study interrogat-
ing the specific implementation of a subset of enforce-
ment undertakings in the North East of England. The
article argues that a more transparent enforcement pro-
cess would address some of the accountability problems
arising from the findings, which show that ‘community
benefits’ operate as an offset mechanism instead of as a
restorative enforcement mechanism.
INTRODUCTION
In recent years, the regime for the enforcement of environmental law in England and Wales
has undergone a series of reforms. These changes include the introduction of a bespoke
civil sanctions regime aimed at complementing the use of criminal sanctions and the intro-
duction of guidelines designed to provide structure on judicial sentencing of environmental
© The Author.Journal of Law and Society © Cardiff University Law School
J. Law Soc. ;:–. wileyonlinelibrary.com/journal/jols
J L S
offenders.One trend emerging from these reforms is the Environment Agency’sincreased use of
civil sanctions instead of criminal prosecutions as a flexible and responsive way of enforcing the
law.Enforcementundertakings in particular have proved popular with the Environment Agency
and environmental offenders alike.
An enforcement undertaking is a written agreement between the offender and the regulator
in which the offender undertakes to perform or not to perform certain actions. These promises
may include restoring and remedying the environmental harm caused by the offence, covering
the Environment Agency’s costs arising from the Agency havingto take enforcement procedures,
and often also making donations to charitable environmental causes to improve the environment.
In instances where the offender does not comply with the terms of the undertaking, the regulator
may enforce the undertaking in court. The EnvironmentAgency indicates that it will enter into an
enforcement undertaking in instances where the undertaking rectifies the effects of the offence,
stops the conduct from occurring in the future, and compensates for harm caused to thirdparties.
One of the appeals of enforcement undertakings, then, is the restorative nature of the sanction,
which is directly emphasized in the underlying legislation.One way in which the undertakings
have gone beyond reparation is through their frequent inclusion of a promise to donate a certain
amount of money to a charitable environmental cause. Such payments, which we will refer to
in this article as ‘community benefits’, are designed to protect, restore, and enhance ‘the natural
capital of England’.To date, the Environment Agency has accepted more than enforcement
undertakings for environmental offences since they became available, providing nearly £ mil-
lion in community benefits.In reality,therefore, community benefits form an integral part of the
enforcement regime.
Against the backdrop of this widespread use and perceivedsuccess of the civil sanctions regime
– and the use of enforcement undertakings in particular– this article examines a previously
underexplored element of the enforcement process: the accountability attached to community
benefits paid to the charitable environmental organizations. Todate, this part of the enforcement
process has received little attention despitethe fact that the majority of undertakings include such
Regulatory Enforcementand Sanctions Act , Part ; Environmental Civil Sanctions (England) Order , SI no. ;
Sentencing Council, Environmental Offences: Definitive Guideline (), at <https://www.sentencingcouncil.org.uk/wp-
content/uploads/Environmental-offences-definitive- guideline-Web.pdf>.
For analysis of the dynamics playing out in the relationship between these reforms, see O.W. Pedersen, ‘Revisiting the
Role of Negotiations and Trivialization in Environmental LawEnforcement’ () J. of Law and Society .
Environment Agency, Enforcement Undertakings Accepted by Environment Agency: 1 June to 30 September 2020
(), at <https://www.gov.uk/government/publications/environment-agencys-use-of- civil-sanctions/enforcement-
undertakings-accepted-by- the-environment-agency-- june-to-- september->.
Environmental Civil Sanctions (England) Order , SI no. , sch. . We define ‘restorative’ here by drawing on
Marshall’s widely used definition according to which ‘restoration’ refers to the ‘processwhereby parties with a stake in a
specific offence collectively resolve how to deal with the aftermath of the offence and its implications for the future’.T. F.
Marshall, Restorative Justice: An Overview () , at <http://www.antoniocasella.eu/restorative/Marshall_-b.pdf>.
Environment Agency,Annex 1: Res Act – The Environment Agency’s Approach to Applying Civil Sanctions and Accepting
Enforcement Undertakings (), at <https://www.gov.uk/government/publications/environment-agency-enforcement-
and-sanctions-policy/annex-- res-act-the- environment-agencys-approach-to- applying-civil-sanctions- and-accepting-
enforcement-undertakings>.
ENDS Report, ‘The ENDS Report Enforcement Undertaking Database’ ENDS Report,at<https://www.endsreport.com/
article//new-ends-report-enforcement-undertakings-database>.
For example, Kellettdescribes the use of undertakings as a success. P. Kellett, ‘Securing High Levels of Business Compli-
ance with Environmental Laws: What Worksand What to Avoid’ () J. of Environmental Law .
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