What can public bodies expect in the new era of the Office for Environmental Protection?

The newly created Office for Environmental Protection (OEP) has issued a draft strategy and enforcement policy to set out its role and remit. The consultation documents offer an insight into what government departments and public authorities can expect from the new body. But how will its responsibilities differ from the pre-Brexit world of environmental law and how far-reaching will its enforcement powers be?

The OEP came into existence in November 2021, filling the gap left by the European Commission post-Brexit in relation to the investigation and enforcement of breaches of environmental law. Complementing the work of the Environment Agency in regulating environmental compliance in the private sector in England, the OEP focuses on the responsibilities of government departments and public authorities. And while the new body’s operational framework is yet to be laid out, it’s primary objective is clarified as contributing to environmental protection and the improvement of the natural environment.

The draft strategy outlined in the consultation gives us a first glimpse into how the OEP envisages its role taking shape.  Here, we can see it recognises the need to act strategically and selectively – given its newness, size and available resources – as to how it approaches the matters brought to its attention. We also understand it will publish an annual corporate plan, setting out what funding there is available and how this will be utilised to meet the OEP’s overall strategic objectives.

More than just a reporting and advisory body, the OEP’s role also extends to ensuring accountability for any breaches. Its draft enforcement policy sets out how it will determine what enforcement action to take and its approach to using discretion in how its enforcement powers are applied. A couple of interesting points I noted, in particular, in the draft policy are:

1. It has previously been unclear whether the OEP could only carry out an investigation if they have received a complaint pursuant to s.32 of the Act. However, the enforcement policy makes certain that the OEP may utilise its powers of investigation following receipt of a complaint “or on our own initiative”.
2. As stated earlier, the OEP must be selective in carrying out investigations and issuing enforcement due to the limited resources that they have. The test for carrying out an investigation and issuing enforcement is whether a failure to comply with environmental law is serious. Factors assisting this assessment include whether the failure raises any points of law of general importance, the frequency of the conduct, the behaviours of the public authority and whether the harm (or potential harm) to the natural environment or human health amount to serious damage.

With the consultation now closed, we await to see what final form the OEP’s strategy and enforcement policy takes based on the views gathered. Either way, it is reassuring to see in this initial draft that the OEP may investigate potential failures of its own accord – albeit resources might limit how often this is the case. It will be interesting to observe whether the consultation gives rise to more power for the OEP in areas such as enforcing breaches of its own recommendations in decision notices, or compliance with steps set out in court-issued statements of non-compliance. Doing so would certainly give greater weight to the OEP’s enforcement measures.

Whether you are reading this as a public or private body, if you would like to understand more about the changing regulatory environment in this area, please contact a member of our Environmental law team.