Evolving Environmental Enforcement: What the Environment Agency's Latest Consultation Means for Businesses

The Environment Agency ("EA") has launched a consultation on proposed changes to its Enforcement and Sanctions Policy.

The key themes emerging from the consultation proposals include:

• increased flexibility in the use of enforcement undertakings;

• greater consideration of the impact of environmental offending on victims;

• simplified public interest factors and a more transparent approach to enforcement decision-making;

• new civil sanctions for water company offences; and
• greater clarity around the EA's approach to enforcing developing waste and environmental regulatory frameworks.

Why should businesses take note?

The consultation provides valuable insight into how the EA intends to approach enforcement where non-compliance is identified.

This is significant because environmental enforcement does not begin and end with prosecution. The EA has a range of enforcement options available to it, including enforcement undertakings, civil sanctions, enforcement notices and criminal proceedings. The consultation therefore provides businesses with a clearer understanding of the factors that may influence enforcement decisions and the circumstances in which different enforcement tools may be deployed moving forwards.

For businesses operating within regulated sectors, the consultation is also a reminder of the importance of effective governance, compliance management and incident response arrangements should an environmental issue arise.

The proposals

1. One of the more significant proposals concerns enforcement undertakings.

The consultation acknowledges that the EA's current consistency guidelines have led to a degree of inflexibility and proposes a broader, fairer and more proportionate approach to assessing enforcement undertakings. Whilst the legal framework itself is unchanged, the proposals may increase the circumstances in which enforcement undertakings are considered an appropriate enforcement response.

2. Civil sanctions and the Water (Special Measures) Act 2025

The consultation proposes how the EA intends to apply civil sanctions introduced under the Water (Special Measures) Act 2025. These proposals are relevant specifically to water companies.

The proposed sanctions include Variable Monetary Penalties, Automatic Penalties and Fixed Monetary Penalties. The consultation proposes that Variable Monetary Penalties and Automatic Penalties would be imposed to the civil standard of proof, namely the balance of probabilities, rather than the criminal standard.

The consultation explains that the proposed powers are intended to support earlier and more proportionate intervention, whilst reserving prosecution and other higher-end sanctions for the most serious offending.

Although these proposals apply only to the water sector, they provide useful insight into the EA's broader enforcement approach, particularly its focus on expanding the range of proportionate enforcement responses available to it.

3. Waste sector developments

The consultation also proposes updates to the EA's enforcement approach under:

• the Producer Responsibility Obligations (Packaging and Packaging Waste) Regulations 2024;
• the first phase of Digital Waste Tracking; and
• the Deposit Return Scheme.

The proposals establish or clarify the EA's enforcement approach and use of sanctions in relation to these developing regulatory frameworks.

4. Simplifying public interest factors

A further aspect of the consultation that may be of interest to businesses is the EA’s proposal to simplify the public interest factors that inform its enforcement decision-making. The consultation explains that the current factors have evolved over time and can be complex to apply in practice. The proposed changes seek to make the decision-making framework clearer and more transparent whilst maintaining consistency in enforcement outcomes.

The consultation also proposes an additional enforcement penalty principle intended to better protect the interests of victims, reflecting a greater emphasis on the impacts of environmental offending when enforcement decisions are made.

Whilst these proposals do not alter the underlying legal tests or enforcement powers available to the regulator, they may provide businesses with greater visibility as to the considerations that influence the EA’s choice of enforcement response. Together with the proposed changes to enforcement undertakings and the introduction of an additional enforcement penalty principle focused on protecting the interests of victims, the proposals indicate an emphasis on transparency, proportionality and consistency in regulatory decision-making.

What does the consultation tell us about enforcement priorities?

Taken together, the proposals suggest a continued focus on:

• proportionate and effective enforcement responses;
• greater flexibility in the use of enforcement undertakings;
• wider use of civil sanctions where appropriate;
• increased recognition of the interests of victims; and
• ensuring the Enforcement and Sanctions Policy reflects recent legislative developments.

The overarching theme is one of greater flexibility and transparency in enforcement decision-making, alongside a broader range of regulatory responses.

Looking ahead for businesses

The consultation provides a useful opportunity for businesses to assess their approach to environmental risk management and to consider how they would engage with the regulator should an environmental incident occur.

At this stage, it is important to remember that these remain proposals. The consultation closes on 4 October 2026, after which the EA will consider responses before publishing its response to the consultation and finalising any amendments to the Enforcement and Sanctions Policy.

If adopted in their current form, the proposals would indicate a continued move towards greater flexibility and transparency in enforcement decision-making, alongside a broader range of proportionate enforcement responses.

For businesses operating in regulated sectors, the consultation provides a valuable opportunity to understand the direction of travel of environmental enforcement and consider whether the proposed changes may affect their compliance arrangements, enforcement risk profile or approach to regulatory engagement.

More broadly, the proposals serve as a reminder that the EA has a wide range of enforcement options available to it. As such, businesses that can demonstrate strong compliance arrangements, effective governance, accurate record keeping and a proactive approach to environmental risk management are likely to be better placed when engaging with the regulator following an incident, particularly where the regulator is considering which enforcement response is most appropriate.

The consultation can be found at: Consultation on changes to the enforcement and sanctions policy - including implementing new water and waste enforcement powers - Environment Agency - Citizen Space