Environmental Enforcement Undertakings and Possible Implications: Responsive, Smarter or Rent Seeking?

AuthorOle W. Pedersen
DOIhttp://doi.org/10.1111/1468-2230.12014
Publication Date01 Mar 2013
LEGISLATION
Environmental Enforcement Undertakings and Possible
Implications: Responsive, Smarter or Rent Seeking?
Ole W. Pedersen*
Enforcement undertakings have recently been added to the Environment Agency’s list of
mechanisms available for the enforcement of certain environmental offences. An enforcement
undertaking is a written agreement between the regulator and the offender in which the offender
proposes to undertake particular actions in relation to the relevant non-compliant activity. This
article examines the use of enforcement undertakings by the Environment Agency, arguing that the
undertakings have significant regulatory implications and give rise to a series of possible problems.
Notwithstanding this, the article concludes that enforcement undertakings possess a number of
potentially positive features, making them a useful alternative to existing enforcement mechanisms.
INTRODUCTION
Ordinarily we think of the enforcement of the law as operating in a space defined
by well-established public law principles and norms that are objectively applied
by regulatory agencies.1However, the recent introduction of enforcement
undertakings, alongside a number of other civil sanctions, in the Regulatory
Enforcement and Sanctions Act 2008, challenges this assumption – for it creates
the opportunity for addressees of the law to privilege their own interests in a
sphere of regulatory activity where the public interest is a central concern. An
enforcement undertaking is an offer or promise to carry out certain activities,
made by the regulated entity to the regulator in charge of enforcement as an
alternative to a criminal charge or other administrative sanctions. In an enforce-
ment undertaking ‘the business itself . . . in effect design[s] its own self-imposed
sanction which [is] then . . . accepted by the regulator’.2To their proponents,
enforcement undertakings are a flexible, effective and responsive instrument
which allow regulators to tailor enforcement activities to the individual needs
of the operator they seek to regulate. To their critics, however, enforcement
undertakings are yet another outcome-focused example of lax regulation allow-
ing offenders the chance to ‘buy’ their way to compliance.3
*Newcastle Law School and Academic Associate New Park Court Chambers. This essay has benefitted
from the insightful comments offered by a number of people. The anonymous reviewers, Kathryn
Hollingsworth, Donald McGillivray, Richard Mullender, Marina Nehme and Chris Rodgers all
offered helpful assistance. Omissions and mistakes are attributable to the author only.
1 See eg H. L. A. Hart, The Concept of Law (Oxford: OUP, 2nd ed, 1997) ch IV et seq.
2 R. Macrory, ‘Environmental Regulation as an Instrument of Constitutional Change’ in J. Jowell
and D. Oliver, The Changing Constitution (Oxford: OUP, 2011) 291, 304.
3 For a recent exposé on the relationship between money and public goods see M. Sandel, What
Money Can’t Buy (London: Allen Lane, 2012). In the context of out-come focused approaches,
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© 2013 The Author. The Modern Law Review © 2013 The Modern Law Review Limited. (2013) 76(2) MLR 319–345
Published by Blackwell Publishing, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
In England, enforcement undertakings were specifically provided for in
the area of environmental regulation by the Environmental Civil Sanctions
(England) Order 2010. This move represents a novelty in UK environmental
law, and possibly follows from general shifts in the ‘post-regulatory’ landscape
towards higher levels of involvement of and input from the regulated entities.4
The introduction of enforcement undertakings likewise fits with current
governance trends towards a qualified decentralisation of enforcement, a move
which, in the environmental field, is exemplified in the importance afforded
a variety of stakeholders (including citizens, environmental organisations and
industry alike).5We find a further explanation for enforcement undertakings in
the argument that as full compliance is hardly tenable, the aim becomes one of
optimal compliance.6
The analysis offered here restricts itself to the area of environmental regulation
because ‘environmental protection is a field that appears to have yielded more
than its fair share of innovative regulatory instruments’, thereby forming a
background against which regulation and enforcement in other areas may be
assessed.7The essay therefore does not undertake a full programmatic exposition
of the new enforcement regime but instead it has three broad aims, seeking to
bring a number of specific issues to the reader’s attention. Firstly, before exam-
ining in detail some of the implications of the enforcement undertakings, we set
out an overview of the development of the civil sanctions regime in England,
while contextualising this against a background of enforcement of environmental
law more generally. Secondly, we discuss the wider regulatory implications of
enforcement undertakings, arguing that enforcement undertakings play a central
role in a continuing move away from top-down command and control mecha-
nisms. In this discussion, we identify the issue of knowledge as forming a central
aspect of this move. Thirdly, we go on to examine the undertakings so far
accepted by the Environment Agency, in relation to oversight of implementa-
tion, and to effectiveness and efficiency. In doing so, it is accepted that we are
dealing with a novel instrument which represents an innovative development
in the enforcement of environmental law in England. Nevertheless, the essay
identifies a series of specific difficulties and concerns. These relate to the heavy
Mann identifies the increased role of utilitarianism in law as a reason for increased use of civil
sanctions, see K. Mann, ‘Punitive Civil Sanctions: The Middleground between Criminal and
Civil Law’ (1992) 1901 Yale LJ 1795.
4 See J. Black, ‘Decentring Regulation: Understanding the Role of Regulation and Self-Regulation
in a “Post-Regulatory” World’ (2001) 54 Current Legal Problems 103. The Water Resource Act
1991, s 178 and Sch 22 already allow for undertakings in connection with the carrying out of
works.
5 See in particular Y. Feldman and O. Lobel, ‘Decentralized Enforcement in Organizations: An
Experimental Approach’ (2008) Regulation & Governance 165 and N. Gunningham, ‘Regulatory
Reform and Reflexive Regulation: Beyond Command and Control’ (2009) REFGOV Working
Paper Series GPS-9, Centre for Philosophy of Law, Universite Catholique de Louvain.
6 Some research indicates that in the area of environmental pollution the most effective enforce-
ment regime is (in environmental protection terms) one which makes use of less than maximal
penalties. See A. G. Hayes, ‘Cutting Environmental Penalties to Protect the Environment’ (1996)
60 Journal of Public Economics 251.
7 C. Brown and C. Scott, ‘Regulation, Public Law and Better Regulation’ (2011) 17 European
Public Law 467, 480.
Environmental Enforcement Undertakings and Possible Implications
© 2013 The Author. The Modern Law Review © 2013 The Modern Law Review Limited.
320 (2013) 76(2) MLR 319–345

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