New Environmental Enforcement Framework
As Scotland’s principal environmental regulator, SEPA’s role is to protect and improve Scotland’s environment. Where a person causes, or risks causing, harm or fails to obtain or comply with an authorisation or other requirements, SEPA needs to be able to take action to rectify this through enforcement action. Historically, however, the options for dealing with environmental offences have been limited and inconsistent and focus more on the offence rather than changing the behaviour.
The new environmental enforcement framework under the BER programme will deter and punish actions which damage the environment, adversely impact communities and undermine legitimate businesses. It consists of two parts:
i) New SEPA enforcement measures – The Environmental Regulation (Enforcement Measures) (Scotland) Order 2015 delivers a range of new enforcement measures for SEPA. These new measures are:
Fixed Monetary Penalties;
Variable Monetary Penalties and related undertakings;
Enforcement Undertakings; and
Non-Compliance Penalties and Costs Recovery Notices.
These measures will enable SEPA to take more proportionate and flexible enforcement action that is focussed on changing behaviours and will play a key role in helping SEPA to take a preventative approach. They will help to deter non-compliance in the first place and will enable SEPA to intervene much earlier, which will prevent cases of non-compliance escalating or dragging on for months or years.
SEPA will, however, continue to refer significant, persistent and deliberate offending to the Crown Office and Procurator Fiscal Service for consideration of prosecution.
The measures will be supported by a revised enforcement policy and new enforcement guidance issued by SEPA. They will also be underpinned by guidelines from the Lord Advocate, will ensure that the new enforcement measures will be applied consistently and proportionately as part of the whole range of sanctions that are available (including prosecution).
ii) New Court Powers - The Regulatory Reform (Scotland) Act 2014 gives criminal courts a greater range of sentencing options to use against those who blatantly disregard their responsibilities.
These options include compensation orders, which enable the courts to require an offender to remediate or mitigate any harm caused to the environment, and publicity orders, which enable courts to require publication of the details of an offence, and any associated sentence.
The Regulatory Reform (Scotland) Act 2014 also creates a new offence of causing significant environmental harm.