The Office of Environmental Protection (OEP) has taken significant steps by issuing its first decision notices to key UK public authorities. This action follows their enforcement powers under the Environment Act 2021. The notices target the Department for Environment, Food and Rural Affairs (Defra), the Environment Agency (EA), and the Water Services Regulation Authority (Ofwat). These documents raise important questions about public law, specifically regarding enforcement actions and the roles of various regulatory bodies.
These notices are particularly focused on an ongoing investigation concerning the discharge of untreated sewage by water companies. This issue has sparked considerable public concern over the last decade. Notably, a recent Supreme Court ruling determined that water companies could face private law consequences for these discharges. The OEP now asserts its authority to hold public authorities accountable for serious breaches of environmental laws, signaling a robust approach to compliance in the UK following its departure from the European Union.
These decision notices also create opportunities for local groups, NGOs, and charities. They can gather evidence of non-compliance and present it to the OEP for review, especially if they lack the resources to pursue judicial action themselves.
The investigations began in June 2022, responding to a complaint from Salmon & Trout Conservation UK, now known as WildFish. The OEP aims to clarify the responsibilities of these public authorities and determine whether they have neglected their regulatory duties, which is crucial for long-term improvements in water quality.
For a decision notice to be issued, the OEP must be convinced that an authority has seriously failed to uphold environmental laws. If these parties do not take corrective action, the OEP may initiate an environmental review against them. Helen Venn, the OEP’s Chief Regulatory Officer, noted that they would assess responses to the decision notices before deciding on further action, which could include legal proceedings.
Here’s a brief summary of the findings from each decision notice:
- Defra: The OEP identified three areas where Defra fell short:
- Incomplete guidance for water companies that did not fully reflect legal duties.
- Failure to modify this guidance following a crucial court ruling in 2012.
- Misinterpretation of its duty to issue enforcement orders.
- Ofwat: Ofwat was found to have:
- Not properly considered environmental law regarding sewerage companies’ duties.
- Failed to issue necessary enforcement orders.
- EA: The Environment Agency faced three failures:
- Insufficient guidance about permit conditions.
- Allowing permit conditions that did not meet legal standards.
- Neglecting to review permits related to sewage discharges.
To address these failures, the OEP has made several recommendations, such as updating guidance documents, coordinating responsibilities, and setting clear permit conditions for combined sewer overflows (CSOs).
It’s noteworthy that these decision notices highlight overlapping obligations between different regulators. For effective management and enforcement of environmental laws, clear communication and delineation of roles among Defra, the EA, and Ofwat are imperative. Memoranda of understanding may be essential to clarify responsibilities and improve coordination among these agencies, ensuring that everyone is on the same page regarding compliance and enforcement actions.
In summary, these developments showcase the OEP’s heightened role in ensuring that UK public authorities uphold environmental laws. As the landscape of environmental regulation continues to evolve, the implications of these decision notices will be crucial for the future of public environmental law in the UK.
About the Author
Jeremy Ogilvie-Harris is a public law and human rights barrister with experience in planning, environment, and climate issues. He has worked with various local authorities and campaign groups, helping them navigate the planning process and advocate for their rights.
