Your career uniquely spans environmental consultancy and criminal law. How has your scientific background shaped your approach to environmental litigation and advising clients on compliance?
I find my background in science extremely helpful. A lot of environmental law is scientific in nature, so having the technical knowledge is beneficial. Cases often involve matters such as water pollution where having a chemistry background is very useful, quarries where my geology degree is particularly helpful, and landfill sites where my PhD in clay and geochemistry and landfill engineering is unique.
How have enforcement actions and prosecutions evolved over the last decade and what emerging trends should operators in the waste sectors be particularly aware of?
I have found that enforcement action appears to be happening more frequently and for less serious matters. I act for regulated industry, i.e. businesses which have permits or exemptions but for a variety of reasons sometimes fall into non-compliance. They appear to be easy targets for regulators – it’s very easy to find something not quite right on a waste site – it’s a difficult and fast moving industry with many moving parts (literally on some sites with heavy machinery in place) and things do not always follow the nice black and white requirements of legislation drafted in a nice warm room in the halls of Parliament. The industry has many issues which affect working sites – weather, staff illness, equipment breakdown and so on, and sometimes these conspire to mean that issues of non-compliance arise. It is these issues which we find are being enforced against more and more, rather than the ‘actual’ waste crime of large scale waste dumping, illegal burning, and the now infamous Hoads Wood site in Kent where no enforcement took place for months leading into years. This is a trend which I have seen over the last decade and which many of my colleagues have also seen.
Beyond fines and prosecutions, what are some of the less obvious consequences of environmental breaches for businesses and how can companies mitigate these risks?
As well as fines and prosecution, I also sometimes see ancillary orders such as director disqualification, seizure of equipment, and restraint orders. The latter mean that parties are prevented from accessing bank accounts and accounts may be subject to freezing orders. The Proceeds of Crime Act looms large in environmental criminal cases where the prosecutors have the ability to apply for all turnover from a business during the time of non-compliance. These can be eye-watering figures and complex to deal with.
More recently I have seen Restriction Notices and Orders being utilised, which prevent access to land by the regulator.
And finally HMRC has powers to order payment of tax for sites where it believes waste has been deposited which ought to have been subject to landfill tax. These figures can be as eye-watering as POCA, as it is a flat rate of £100 a tonne. If you place 10,000 tonnes of material to create a noise bund, and HMRC says it’s waste, that’s a large amount of tax they will be wanting…
Where do you see the greatest opportunities for leaders with expertise in other highly regulated industries to make a strategic impact in the waste, recycling and environmental sectors?
Many leadership roles have transferable skills which are valuable in other sectors. For example leaders in the finance sector would have a lot to offer waste and recycling business, which, whilst they are primarily waste and recycling in nature, are still businesses aiming to make money and have a bottom line. Health and safety is also an important sector – the waste industry unfortunately does not have a good track record with injuries and fatalities, so there is real scope for leaders in those areas to make an impact. I have already seen some of my clients engage health and safety compliance managers alongside traditional environmental compliance managers, as the two often go hand in hand.
With growing legal and societal expectations for environmental responsibility, how do you see businesses’ legal obligations evolving in the next 5-10 years and how should companies prepare?
I am already seeing businesses have to account for environmental responsibility, particularly in tendering for work and wanting to see evidence of ‘green’ credentials. I know of some businesses who will only review tenders from e.g. businesses which have environmental accreditation. In terms of legal obligations, evolving legislation such as the Emissions Trading Scheme and Extended Producer Responsibility will likely have an impact of many commercial businesses, not just traditional waste companies. For example, businesses which are involved with packaging production and use. To prepare for these, seek legal advice!
Given your own journey bridging environmental science, law and sustainability, what advice would you give young professionals who want to make an impact in this space? How can we make this career path more visible and accessible?
Law is still quite a traditional profession in terms of entry requirements and academic background, but there are other routes into the profession which is encouraging. In terms of the waste industry, this was discussed at the Leaders in Resource Panel session at the ESS Expo last month. All 5 leaders of the waste and resource businesses on my panel agreed that they are seeing the same CVs circulating and would like to see new and different people entering the industry. Many people ‘fall’ into the industry, unlike me who chose it as a career path when I was still a teenager. They, and I, feel that we may need to do some work to make the waste industry a more attractive proposition for career-seekers. It is not clear how we would achieve this yet! But we are all keen to see it happen.