The EA warns that budget cuts are impeding its ability to enforce

The Chair of the Environment Agency, Emma Howard Boyd, has issued a stark warning that the Agency has been forced to “stop or cut significant activities” due to budget cuts. The claim was made by Ms Howard Boyd in a letter to the Environment Secretary, George Eustace, on the 26th August 2020, which has come to light after it was disclosed as part of a Freedom of Information request.

The letter, which addresses the subject of the 2020 spending review, makes it clear that without investment, the EA will not be able to deliver the Government’s goals as set out in the 25 Year Environment Plan.

Significant activities

In the letter, Ms Howard Boyd indicates that the EA can no longer afford to carry out vital activities. As a result of reduced funding, the EA has had no option but to “stop or cut” some of its most important work. This includes responding to environmental incidents and stopping pollution and other environmental harm. The letter claims that the EA “only have the resources to attend the most serious” environmental incidents. It further notes that the number of such incidents has increased and was 27% higher according to recent figures as compared with those from 2017.

Ms Howard Boyd intimated that a lack of sufficient funding has had a negative impact on the EA’s ability to undertake its regulatory duties. She stated that the “EA’s capacity to visit and tackle polluting business is now significantly reduced” and the number of prosecutions has “dropped from over 500 in 2009 to just over 100 in 2019”.

The need to cut back on vital services, she suggests, is “allowing more people and businesses to break the environmental rules”. In addition, the letter asserts that the EA is finding new illegal waste sites as fast as it is closing them down. The EA’s environmental permitting work is also under pressure, with the regulator struggling to manage the growing demand.

The use of current resources

Whilst the EA may not be receiving adequate funding, arguably the resources that they do have are not being directed where they are most needed. In her letter, Ms Howard Boyd states that the EA is only able to respond to the ‘most serious’ environmental incidents and that the number of prosecutions it has been able to pursue has reduced. In our experience, this point is not borne out by the EA’s actions on the ground. In August we addressed Sir James Bevan’s speech on good regulation and observed that the EA often adopts a disproportionately heavy handed approach in relation to its regulation of legitimate businesses. In many instances, unfortunately, it is becoming increasingly common in our experience that the EA does not work with legitimate businesses, but against them.

Further, whilst the EA does rely upon adequate funding from the government in order to carry out its functions, it does also generate revenue through, amongst other things, charging for time and materials, subsistence fees and the escalator which applies to “poorly performing” sites. The latter charge, in our view, is highly problematic. The allocation of the uplift (or decrease) in subsistence fees goes directly to the EA team which is regulating the site. This has given rise to real concerns that there is a financial incentive to record non-compliances and maximise scoring at permitted sites. A legitimate operator next door to an illegal site finds that the EA’s efforts are concentrated on their legal operation whilst ignoring the obviously unlawful activities taking place next door, which are having a far greater environmental impact. This imbalance must be addressed.

Lack of training is also an issue. As we have seen with Fire Prevention Plans (FPP) and the new proposal that waste activities should be contained within enclosed buildings, the Environment Agency pledges that alternative measures will be considered where these achieve the desired outcomes. However, it has become abundantly clear that officers on the ground who are regulating sites where alternative measures are in place often are not given the tools or do not have sufficient expertise to make judgements on suitability and will instead insist upon the default position being followed. Whilst individual officers cannot be blamed for a lack of training, it is not the fault of legitimate operators either and, unfortunately, it is the latter who pay the price.

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