Fish Legal Still Concerned About Environment Agency's Failure To Prosecute "Tsunami Of Slurry" Case
On 2nd February 2013, a farmer polluted the Wellow Brook in Somerset causing a major fish kill which the Environment Agency described as a “tsunami of slurry” and reported as one of the worst pollutions in years. Anglers affected were seriously disappointed by the Environment Agency’s decision not to prosecute this serious offence, a decision they only discovered after reading about it in the news. Not only was there a long delay in confirming its decision not to prosecute, but the Agency totally failed to consult with anglers worst affected by the pollution in making its enforcement decision (or lack of it).
Fish Legal, representing the anglers, sent a freedom of information request under the Environmental Information Regulations 2004. It asked about the EA’s consultation with victims before an ‘Enforcement Undertaking’ (essentially a type of promise) was accepted - instead of prosecuting the polluter in the criminal court. In this case, the polluter promised to pay a mere £5000 to an environmental charity to avoid criminal proceedings and potentially higher fines.
to consult victims or make any effort to understand their experience before
making a decision like this is contrary to the Regulator’s own guidance which
“We will have regard to the interests of victims and third parties whose interests have been adversely impacted by an environmental incident. We will attempt to ensure that, in accordance with the ‘polluter pays’ principle, third parties are compensated appropriately when a civil sanction is imposed or an Enforcement Undertaking accepted. We will encourage offenders to engage with the local community and to assess and remediate fully the impacts of an environmental incident.”
Fish Legal asked if the Regulator complied with this and other guidance, in nine specific questions, but these were ignored in the Regulator’s reply. The Regulator has also, controversially, sought to withhold information from Fish Legal that the anglers have a legal right to see under freedom of information laws. Fish Legal has sent a complaint seeking a review of the Agency’s decision to withhold the information and awaits a further response. A complaint to the Information Commissioner is likely if the EA (wrongly) maintains its right to withhold information.
Fish Legal is monitoring the EA’s increasing acceptance of civil sanctions, which were extended in April 2015 to include Environmental Permitting offences. Some commentators are concerned that civil sanctions are a soft option for offenders, but an option the Regulator may prefer as it could save them time and costs associated with full prosecution of offenders.
Cameron Hogg, Solicitor said:
“Our members were disappointed by the failure to prosecute and we are further disappointed that the EA ignored specific questions about whether it complied with its own guidance or made its decision correctly. All indications are that the EA completely failed to consult with victims and that acceptance of the Enforcement Undertaking was a foregone conclusion long before the EA confirmed it. The limited information disclosed shows that the EU was under consideration for over 12 months before it was confirmed. We have asked why it took so long to investigate and confirm the outcome and it now seems like they may be trying to cover up their mistakes.”
Mark Lloyd Chief Executive of the Angling Trust & Fish Legal said:
“Enforcement Undertakings look likely to be more commonly used instead of criminal prosecutions and it’s vital that the Environment Agency consults properly with anglers who are most directly affected by environmental offences affecting rivers and lakes. We are very concerned about the lack of information we have received on this case and will keep pressing until we get to the truth.”