Environmental regulation is complex, often involving the interplay between domestic legislation, common law and EU law.
Matters are further complicated with regulators operating under a dual civil and criminal regime. Penalties for breaching environmental legislation can be heavy with large fines, custodial sentences and confiscation proceedings all being available to the courts.
Prevention is better than cure
We recognise that relationships with environmental regulators are critical to the ongoing success of your business. We act in accordance with this principle when advising clients on environmental issues, and in doing so we help you maintain your business relationships.
Compliance is critical to avoid enforcement action and potentially damaging publicity. This is particularly important where, increasingly, businesses are using their environmental credentials to differentiate themselves from competitors. The first step in this process is to identify your business’s environmental risks and exposure and then to implement processes and policies to ensure effective compliance.
We can help manage your environmental risk, ongoing compliance and other engagement with regulators, including:
- pollution incidents;
- waste management requirements;
- the need for and compliance with environmental permits, licences, registrations and exemptions;
- appeals against refusals of permits or conditions imposed on permits by regulators;
- challenging regulators’ decisions by judicial review;
- producer responsibility legislation relating to WEEE, batteries and packaging waste;
- contaminated land management;
- energy efficiency and climate change legislation (including emissions trading);
- chemicals legislation, including REACH and CLP;
- statutory nuisances including noise, smoke and fumes;
- ecology and protection of habitats and species;
- environmental taxes, such as landfill tax.
Transactional due diligence and project risk management
When undertaking corporate or real estate transactions, all businesses should consider whether there are any significant environmental issues for which they may be responsible. As part of your due diligence, we offer sensible and practical advice on how environmental risks can be minimised or avoided, including:
- advice on the potential impacts of new environmental legislation for target businesses;
- appointing environmental consultants to do technical due diligence or manage remediation works and procuring letters of reliance and collateral warranties;
- drafting and negotiating environmental warranties and indemnities;
- managing transfers of environmental permits and licences;
- obtaining environmental insurance;
- managing lender liabilities and risks.
On infrastructure projects and real estate development projects we offer advice on structuring the project to minimise environmental risks.
Investigations and defending enforcement action
Should there be non-compliance with environmental legislation, our team has a successful track record in working with the client, regulators and other stakeholders to prevent enforcement action being taken. The earlier we are involved in an investigation, the better the prospects of this happening are. We would always recommend taking legal advice before any engagement with a regulator following a breach of environmental legislation.
The civil sanctions regime allows for many types of regulatory breach to be dealt with by way of a civil penalty, so avoiding the need for a court appearance and any subsequent adverse media attention. We have significant experience of drafting successful Enforcement Undertakings for and with our clients.
Where formal enforcement action cannot be prevented, we advise on all aspects of defending environmental investigations and prosecutions, including:
- engaging with regulators during their investigations, which might include:
- advising on their powers and challenging the unlawful use of powers;
- liaising with regulators and other enforcement bodies (including the police) over their investigation including letters of representation, with a view to diverting investigations away from prosecution;
- advising on arrest;
- advising on interviews under caution;
- advice in respect of enforcement notices, including appeals against them;
- providing representation at the Magistrates’ Court and Crown Court and advising on all aspects of defence preparation.
Recent experience includes:
- Advising AVX Corporation on compliance with RoHS and REACH, including the impact of the Recast RoHS Directive and requirements relating to Substances of Very High Concern (SVHCs) under REACH
- Advising a major real estate developer on the environmental aspects of the sale of a portfolio of 34 properties for £57 million
- Providing urgent advice on potential liability and co-operation with the Environment Agency following an oil spillage at premises owned by our client
- Advising a major real estate developer on the insolvency of one of its tenants, a waste recycling company
- Advising a client in relation to a severe odour pollution incident and breach of environmental permit; no criminal proceedings were brought against the company
- Advising a nationwide facilities management company in relation to an extensive fly tipping incident involving the illegal dumping of hazardous chemicals on residential premises
- Advising private equity funds, real estate investment funds and other businesses on compliance with the Energy Savings Opportunity Scheme, including enforcement action by the Environment Agency
- Advising a chemicals recycling plant in respect of an Environment Agency investigation into alleged waste management offences; no action was taken against our client
- Advising a waste collection contractor on disputes with, and enforcement action by, local authorities
Environmental is part of Shoosmiths’ wider regulation, business crime & compliance offering. If you would like help finding the right team or lawyer please contact us on +44 (0)3700 863 000 or contact us by email to [email protected].