Revisiting the Role of Negotiation and Trivialisation in Environmental Law Enforcement

Abstract

Using an empirical assessment of the use of enforcement undertakings by the Environment Agency and the engagement of the courts with the recently enacted sentencing guidelines for environmental offences, this article argues that the enforcement of environmental law is undergoing significant change. This change manifests itself in an increased reliance on written negotiated agreements in the form of enforcement undertakings by the Environment Agency and a willingness of the courts to hand down significant fines to certain types of polluters. These new dynamics suggest that negotiation continues to play an important role in the enforcement of environmental albeit in a contractualised form. The application of the courts by the sentencing guidelines conversely suggests that environmental offences are no longer trivialised by the courts. Taken together these emerging dynamics not only create specific incentives between agencies and offenders but they also call into question established understandings and perceptions of regulatory enforcement.

Keywords: Regulation, environmental law, enforcement, civil sanctions, criminal law