Sepa Is environmental regulation in Scotland failing?

Polluters let off as Sepa cuts legal action threefold

The Scottish Government’s environment watchdog has slashed its legal enforcement actions almost threefold over the last seven years, prompting accusations that it has turned a “blind eye” to pollution.

Official figures obtained by The Ferret reveal that the number of prosecutions, statutory notices, warning letters and other penalties initiated or issued by the Scottish Environment Protection Agency (Sepa) for pollution breaches has plummeted by over 100 a year since 2019.

One former Sepa chief executive described the figures as “very worrying” and accused the agency of “a failure of leadership and strategy”. Another suggested that Sepa was failing to make environmental offenders pay.

Campaigners regarded the figures as “alarming” and warned that companies were “getting away” with breaking environmental rules. “The statistics suggest that Sepa has gone into semi-retirement,” said one.

Sepa stressed that it worked hard to prevent environmental breaches before they occurred. A “significant” proportion of enforcement effort was designed to “disrupt illegal activities in the first place,” it said.

Sepa has a wide range of legal powers it can use against companies that contaminate the air, water or ground, or otherwise breach environmental regulations. These include referrals to the procurator fiscal for prosecution, issuing statutory notices requiring action, final warning letters and fines.

Until 2019 Sepa published comprehensive statistics detailing all its enforcement activities. The Ferret submitted a request under freedom of information law for updated figures for 2020, 2021 and 2022.

A table released by Sepa in response revealed that the number of all enforcement actions has fallen sharply in the last three years. They averaged 76 a year from 2020 to 2022, compared to 215 a year between 2016 and 2019.

Just two incidents were referred to the procurator fiscal in 2022, one in 2021 and three were referred in 2020. This contrasted with eight in 2019, 12 in 2016-17 and 36 in 2014-15.

The number of statutory notices issued by Sepa has also fallen from 120 in 2016-17 to 23 in 2022, with a similar drop in the number of final warning letters. Newly acquired powers to impose fines and civil penalties fell from 41 in 2019 to 18 in 2022.

The only measure that Sepa has stepped up using are “enforcement undertakings” – improvement promises from companies regarded as a soft option by campaigners. They rose from one in 2018 to six in 2022.

Enforcement actions by the Scottish Environment Protection Agency

YearReferrals to procurator fiscalStatutory noticesFinal warning lettersFines, civil penalties and enforcement undertakingsTotals
20222 23372486
Source: Scottish Environment Protection Agency

Professor Campbell Gemmell, an environmental consultant who was Sepa’s chief executive between 2003 and 2012, said the figures looked “really worrying”. The dramatic fall was not because companies were causing less pollution, he argued.

“The drop in procurator fiscal referrals and in fine levels and numbers is especially concerning and suggests a real weakness in basic performance and an active choice by management,” he told The Ferret.

“It suggests that the regulator has chosen to do this, to not to use the tools at its disposal, and that it is failing to act in the ‘firm but fair’ way intended by its mission and powers to police environmental breaches.”

Gemmell added: “It’s hard not to see this as a failure of leadership and strategy – turning a blind eye to polluters and pollution – and I would be surprised if staff were happy about it. The regulator has teeth for a reason.”

When Professor James Curran retired as Sepa’s chief executive in 2015, he was pleased that the agency was getting a new range of powers making it easier to bring polluters to book. “We were determined to hunt down offenders more effectively and to make them pay for threatening the environment and communities,” he said.

“It seems that hasn’t happened – maybe, in part at least, to continued public-sector austerity.”

Sepa ‘gone into semi-retirement’

The Environmental Rights Centre for Scotland, which campaigns for environmental justice, described the enforcement figures as “alarming”. It was “difficult to believe” that the steep drop in enforcement activity since 2018 could be explained by any benign reason,” it said.

The centre’s solicitor, Dr Ben Christman, pointed out that communities often had difficulties getting Sepa to take effective action against clear violations of environmental law. “Without enforcement, environmental laws exist on paper only and serve no practical purpose,” he told The Ferret.

“Sepa’s main job is to enforce environmental laws to protect the environment. The statistics suggest Sepa has gone into semi-retirement.”

Dr Richard Dixon, a veteran environmental campaigner who was a member of Sepa’s board for eight years, argued that fines could make a bigger difference than the “uncertain route” of trying to get a prosecution. “The legal system needs to be much better at dealing with environmental cases,” he said.

“The drop in the overall numbers and particularly the huge decline in cases being put forward for court suggests many companies are getting away with polluting the environment.”

He added: “Sepa needs to make sure that measures like enforcement undertakings are not undermining justice by turning a pollution incident into a bit of positive public relations for the polluter.”

The Scottish Greens emphasised the importance of “transparent and rigorous” enforcement in protecting the environment. “Sepa must ensure it is doing everything it can to hold those who fall short to account,” said a party spokesperson.

Two factors that might have played a part in the decline of enforcement actions were the Covid-19 lockdowns in 2020-21 and the debilitating cyber attack on Sepa in December 2020. But neither were cited by Sepa.

The agency instead highlighted the measures it was taking to ensure compliance with the law, to support business adaptation and to foster changes in behaviour. “Identifying and preventing potential non-compliances before they occur is a fundamental aspect of our work,” said a Sepa spokesperson.

“A significant proportion of our enforcement effort is spent on designing and implementing intervention strategies to disrupt the illegal activities in the first place, with the aim of making it difficult for those carrying out the activity to continue operating.”

Sepa accepted that there would “always be circumstances where enforcement action is required” and pointed to the Lord Advocate’s guidance on the subject. “The form of enforcement action used, alone or in combination, will differ depending on the nature and impacts of any breach,” the agency’s spokesperson continued.

“Approaches have to be ever changing and evolving to keep in step with the complex and adaptable nature of environmental criminality. It is only through a combination of both interventions and traditional enforcement tools that we can have a sustained positive impact on non-compliances and illegality in Scotland.”

Sepa maintained that its “risk-based approach” ensured that resources were correctly targeted. “We’ll continue our firm focus on tackling both the most serious non-compliances and illegal activity impacting Scotland’s environment, economy and communities,” the spokesperson concluded.

Freedom of information response from the Scottish Environment Protection Agency

Cover image thanks to the Scottish Environment Protection Agency. This story was published in tandem with the Sunday Post.

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