Applying Environment Act 2021 Civil Sanctions

Overview

The Environment Act 2021 introduced a new form of civil sanction for use in various new or amended regulatory regimes being addressed by the Act. These include regimes for which the Environment Agency is or will be the regulator, including:  

• Extended producer responsibility   
• The deposit return scheme  
• Digital waste tracking  
• Hazardous waste 
• International waste shipments.  

The new form of civil sanction is described in the Environment Act 2021 as being ‘a sanction of a kind for which provision may be made under Part 3 of the Regulatory Enforcement and Sanctions Act 2008’ (RES Act). In contrast to RES Act civil sanctions, these new civil sanctions can be imposed in relation to a breach whether or not it is an offence, and the detailed requirements of the RES Act, such as the standard of proof, can be changed.

Packaging extended producer responsibility has been the subject of four public consultations, in 2019, 2021, 2022 and 2023, the last of these being a consultation on the draft regulations themselves, which include the new form of civil sanctions. Subsequently the Producer Responsibility Obligations (Packaging and Packaging Waste) Regulations 2024 were laid in Parliament on 24 October and came into force on 1 January 2025. We will need to be able to use these Environment Act 2021 civil sanctions and therefore need to amend our Enforcement and Sanctions Policy (ESP) to cover the new form of civil sanction for this purpose. 

We are aware that draft regulations which include the new form of civil sanction are also under development in relation to the deposit return scheme and digital waste tracking. Defra consultations on these schemes took place in 2021 and 2022 respectively. We anticipate it will be necessary to revise the ESP again in relation to the use of civil sanctions in these other regimes as the new regulations are introduced.  

In respect of introducing the new civil sanctions, a Defra spokesperson said: 

“Through the Environment Act 2021, we introduced a range of new civil sanctions that will give the Environment Agency a greater range of options to help ensure maximum compliance with incoming environmental regulations, including extended producer responsibility for packaging. The new civil sanctions will aid the Environment Agency’s ability to secure compliance with environmental regulations and will enable it to take swift and proportionate enforcement action in response to non-compliance with regulatory requirements.” 

About this consultation  

The consultation describes how the Environment Agency proposes to apply Environment Act 2021 civil sanctions when they become available in future waste regimes for example the Producer Responsibility Obligations (Packaging and Packaging Waste) Regulations 2024.   

The new civil sanction powers introduced through the Environment Act 2021 are separate to the civil sanctions we impose and enforcement undertakings we accept or reject under the RES Act. 

We will update our Offence Response Options documents to give clarity on all powers available for use following the introduction of new regulations enabling us to impose or accept Environment Act 2021 civil sanctions.   

To implement these changes, we need to revise our published ESP. We previously consulted on amendments to the ESP in May 2024.  

Our ESP details how we use our enforcement and sanctioning powers to secure compliance with laws that protect the environment. It covers the range of actions we can take when we identify that a breach or an offence has occurred.  

These actions include: 

• Use of notices to stop illegal activity and restore and remediate any damage to the environment 
• Provision of advice and guidance  
• Use of warning letters  
• Provision of simple cautions   
• Civil penalties  
• Civil sanctions  
• Criminal prosecutions 

We undertake outcome focused enforcement to achieve 4 outcomes: 

1. Stop illegal activity from occurring or continuing 
2. Put right environmental harm or damage, also known as restoration or remediation 
3. Bring illegal activity under regulatory control, and so in compliance with the law 
4. Punish an offender and deter future offending by the offender and others 

What we are consulting on 

This consultation focuses on the amendments we need to make to our ESP in relation to new civil sanction powers available to us following their introduction through the Environment Act 2021.  

We want to add a new Annex (Annex 4) to explain our approach to using these new civil sanction powers, particularly in relation to the Producer Responsibility Obligations (Packaging and Packaging Waste) Regulations 2024, which came into force on 1 January 2025. We will outline the new powers available and our proposed approach to using these powers. This includes an explanation of how we determine the most appropriate enforcement response where the breach is also a criminal offence; as well as our methodology for calculating Environment Act 2021 variable monetary penalties where applicable, and our approach to accepting or rejecting Environment Act 2021 enforcement undertakings. We will also outline the appeal process.  

We have made minor amendments to our main enforcement and sanctions policy to enable the new Annex 4 to fit within it. We’re consulting to seek your views on our proposals. We will consider your feedback and use this to refine our proposals.

We will then publish the consultation response document on the consultation page on GOV.UK. We will also publish the revised enforcement and sanctions documents on GOV.UK.  

What we are not consulting on 

This consultation does not include any matters relating to Annex 1, Annex 2 or Annex 3 of the ESP.  

We are not consulting on the principles of the main ESP itself which remain unchanged.