Revisiting the Role of Negotiation and Trivialization in Environmental Law Enforcement

Published date01 March 2019
DOIhttp://doi.org/10.1111/jols.12141
Date01 March 2019
JOURNAL OF LAW AND SOCIETY
VOLUME 46, NUMBER 1, MARCH 2019
ISSN: 0263-323X, pp. 29±54
Revisiting the Role of Negotiation and Trivialization in
Environmental Law Enforcement
Ole W. Pedersen*
Using an empirical assessment of the use of enforcement undertakings
by the Environment Agency and the engagement of the courts with the
recently enacted sentencing guidelines for environmental offences, this
article argues that the enforcement of environmental law is undergoing
significant change. This change manifests itself in an increased
reliance on written negotiated agreements in the form of enforcement
undertakings by the Enivironment Agency and the willingness of the
courts to hand down significant fines in cases against certain types of
polluters. These new dynamics suggest that negotiation continues to
play an important role in the enforcement of environmental law, albeit
in a contractualized form. The application of the sentencing guidelines
conversely suggests that environmental offences are no longer
trivialized by the courts. Taken together, these emerging dynamics
not only create specific incentives between agencies and offenders but
also call into question established understandings and perceptions of
regulatory enforcement.
INTRODUCTION
This article revisits and seeks to inject some nuance into deep-held and
dominant understandings of regulatory enforcement. Utilizing the enforce-
ment of environmental law as a case study, the article argues that recent
changes to the enforcement landscape have significantly changed the under-
lying dynamics of enforcement and the ways in which the courts respond to
environmental prosecutions. Traditionally, our understanding of the way in
29
*Newcastle Law School, University of Newcastle, Newcastle upon Tyne
NE1 7RU, England
ole.pedersen@ncl.ac.uk
The comments received from Ciara Brennan, Emma Lees, Chris Rodgers, Elen Stokes,
and the anonymous referees are gratefully acknowledged, as is the assistance received
from Caroline Nauth-Misir of the Sentencing Council. The usual caveats apply.
ß2019 The Author. Journal of Law and Society ß2019 Cardiff University Law School
which enforcement of environmental law works in practice has been
significantly shaped by a series of dominant assumptions. Thanks to highly
influential work on the ways in which enforcement officers secure regulatory
compliance, it has become evident that the enforcement of strict liability
offences is highly contingent on the enforcement agents' actions, their
perceptions of themselves and their role, and their relationship with alleged
offenders.
1
A central theme to emerge from the seminal socio-legal studies is
thus that regulatory enforcement is to a significant degree based on negotia-
tion, persuasion, and bargaining rather than formal legal responses which are
generally considered a `last resort'. Alongside this, a second, enduring
impression emerging from the empirical work undertaken on enforcement of
environmental law relates to the ways in which environmental prosecutions
are engaged with in the courts. Evidence suggest that once regulatory
agencies resort to formal legal responses in the form of prosecutions, this
often takes place against a background of an in-court trivialization of the
offenc es.
2
Notwit hstand ing the si gnific ant vari ation in e nforce ment
responses and strategies between environmental media and regulatory agen-
cies, together these works have informed assumptions that the enforcement
of environmental law is often informal, unofficial even, and at times treated
lightly by the courts.
Against this, this article examines the introduction of and the dynamics
between two separate changes to the enforcement landscape by dissecting
the introduction of civil sanctions for specific regulatory offences ±
specifically that of enforcement undertakings introduced by the Regulatory
Sanctions and Enforcement Act 2008,
3
and the introduction of sentencing
guidelines for environmental offences issued in 2014.
4
The analysis of these
changes is relevant beyond the discrete area of environmental law, con-
sidering that the regulatory sphere of environmental law often serves as a test
tube for regulatory innovations which are subsequently rolled out in other
areas of regulation.
5
By focusing on a subset of regulatory enforcement such
as the enforcement of environmental law, important nuances and details of
wider relevance can be brought to light.
In order to gain a comprehensive picture of the practical implications of
these two new regimes, the article relies on empirical and quantitative
assessments of the 276 enforcement undertakings accepted to date by the
Environment Agency (set out in part I) and an assessment of a series of cases
30
1 K. Hawkins, Environment and Enforcement (1984) and A. Ogus and P. Burrows,
Policing Pollution (1982).
2 P. de Prez, `Excuses, Excus es: The Ritual T rivialisa tion of Enviro nmental
Prosecutions' (2000) 12 J. of Environmental Law 65.
3 Regulatory Enforcement and Sanctions Act 2008, Part 3, and Environmental Civil
Sanctions (England) Order 2010, S.I. no. 1157.
4 Sentencing Council, Environmental Offences Definitive Guideline (2014).
5 R. Macrory, Regulation, Enforcement and Governance in Environmental Law (2014,
2nd edn.).
ß2019 The Author. Journal of Law and Society ß2019 Cardiff University Law School

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT