Press release: 28 November 2022
Environment Agency “missing in action” when it comes to enforcing key regulation on nitrogen pollution
- ClientEarth and WWF have launched a legal complaint to the Office for Environmental Protection, as they reveal that the Environment Agency issued sanctions for just one in a thousand breaches of pollution laws by farmers in England in 2020/21.
- The conservation organisations say the Environment Agency has “no idea of the scale of criminal breaches” of environmental regulations.
- The official complaint also alleges the Department of Environment, Food and Rural Affairs (DEFRA) is interfering with the Environment Agency’s ability to regulate
ClientEarth and WWF have launched a legal complaint to the Office for Environmental Protection against the Environment Agency for its failure to monitor and enforce key environmental laws critical to addressing nitrogen pollution from farms across England.
Freedom of Information (FOI) requests submitted by ClientEarth and WWF have revealed that between January 2020 to December 2021 the Environment Agency conducted 2,213 inspections of three key agricultural regulations, identifying breaches in almost half of farms.
Based on the level of checks undertaken – less than 2% of farms per year – the conservation organisations suggest the Environment Agency can have “no idea of the scale of breaches” or the harms to nature.
The complaint alleges that the Agency is not taking robust action to deter pollution, with only one civil sanction applied between January 2020 and December 2021.
Nitrogen pollution is a little-known driver of climate change and nature loss, with nitrous oxide emissions having almost 300 times the warming potential of carbon dioxide, while nitrates are responsible for degradation of almost 70% of sensitive habitats across the UK.
Information requests to Natural England also revealed the Environment Agency is failing to properly assess the environmental impacts on our most protected nature sites when granting derogation applications, which allow farmers to use more than the usual limit of fertiliser on their land.
Given the high levels of nitrogen pollution in England, ClientEarth and WWF have accused the Environment Agency of “an unlawful abdication of its statutory responsibilities”.
As well as failing to adequately monitor and enforce the law, the case alleges DEFRA officials are interfering with the Environment Agency’s ability to regulate farms properly.
ClientEarth and WWF have filed a complaint with the recently created Office for Environmental Protection (OEP), the Government’s environmental watchdog.
The complaint has been accompanied by a letter of support from eight organisations, including Plantlife International, Soil Association, Woodland Trust, Sustain, The Rivers Trust, River Action, Fish Legal, and Angling Trust.
Through the complaint, the organisations are seeking to ensure that the Agency increases the number of inspection visits carried out on farms in England and make full use of civil sanctions and prosecutions, noting that enforcing the law is key to levelling the playing field for many farmers who are doing the right thing. They say government should be empowering our regulators to do their work effectively, as this is critical for the new Environmental Land Management scheme to deliver genuine public goods over and above baseline standards.
Kyle Lischak, Head of UK at ClientEarth said:
“There is absolutely no doubt about the damage nitrogen pollution is doing to England’s freshwaters. While many farmers are putting more sustainable practices in place, unfettered agricultural run-off from other farms is turning many of our rivers, streams and lakes into toxic soup.
“Regulations that protect our natural environment and our communities are there for a reason. But it’s not enough for regulations to simply exist. We need the watchdog charged with enforcing environmental laws to be awake and willing to take action when breaches occur.
“The Environment Agency has repeatedly failed to enforce the law on nitrogen pollution. Despite widespread damage to our waterways, inspections and sanctions remain pitifully low. We argue this failure is unlawful.”
“The buck stops with the UK Government, which is failing to meet its own environmental commitments – only recently it missed the required deadline to set new targets for improving our air, water and natural environment under the Environment Act. These failures effectively render useless some of the most important tools we have to address the planetary crises.”
Kate Norgrove, Executive Director of Advocacy and Campaigns at WWF, said:
“Rampant nitrate pollution is doing untold damage to our rivers, while excess fertiliser and manure are harming soil health, driving air pollution and releasing greenhouse gases into the atmosphere.
“Meanwhile, the Environment Agency is missing in action, and UK nature is paying the price of their abysmal failure to hold those who pollute to account. The Office for Environmental Protection must step in to ensure the UK Government acts.
“The UK Government, elected on their greenest ever manifesto, must not row back on its promises to protect nature and climate now. We need action in order to futureproof UK food production, and support farmers in bringing nature back to life by upholding their commitments to the Environmental Land Management scheme and slashing nitrogen waste across the board.”
According to a recent report from WWF, nearly half (around 45%) of nitrogen fertilisers are lost into the environment each year, washing into rivers and streams and costing farmers around £397 million per annum.
To remedy these failings, and properly protect the environment, ClientEarth and WWF are calling on the government to immediately address the poor enforcement of existing environmental regulations, at the same time as tackling the root cause of the issue, by bringing forward a cross-cutting chapter in the revised 25 Year Environment Plan that commits to more integrated policy on nitrogen pollution, including a target to halve nitrogen waste by 2030 and underpinned by a set of nitrogen budgets.
Notes to editors:
- In June 2022 ClientEarth, WWF, Soil Association, Plantlife International, the Woodland Trust and RSPB contacted the OEP, notifying them of concerns regarding the impacts of nitrogen pollution on water, soil, air quality, climate change and nature, and requesting that the OEP reviews and reports on the systemic failings of the current regulatory framework to address rampant nitrogen pollution in England.
- WWF estimates that the planetary boundary for nitrogen - the earth system’s limits within which humanity can safely operate - has been exceeded by a factor of at least two.
- To meet planetary boundaries, WWF has said that the UK’s per capita nitrogen footprint must be slashed by more than 80% by 2030.
- Excess nitrogen is driven by a large number of factors including, but not limited to:
- the use of large quantities of synthetic, nitrogen-based fertilisers
- the import of nitrogen in soy based animal feed
- fossil fuel combustion
- wastewater treatment
- In the 25 Year Environment Plan, the government committed to achieving clean and plentiful water, and restoring 75% of terrestrial and freshwater protected sites to favourable condition as soon as possible. The EU Water Framework Directive sets objectives to achieve ‘good ecological status’ and ‘good chemical status’ for all waterbodies by 2027. As of 2019, only 16% of water bodies in England meet good ecological status (and 0% meet good chemical status).
- Nitrates are the top cause of groundwaters failing to achieve good status, and more than half (55%) of English lakes failed to meet good status with respect to nitrogen levels.
- In England, agriculture and rural land management is the most common reason for individual watercourses not achieving good ecological status.
- Some 45% of synthetic fertilisers are lost each year, mainly as runoff into rivers and streams, costing farmers around £397 million per annum.
- As a greenhouse gas, nitrous oxide is around 300 times more powerful than carbon dioxide over a 100 year timeframe.
- The three regulations that are intended to prevent nitrogen pollution (which are the focus of the complaint) are the Water Resources (Control of Pollution) (Silage, Slurry and Agricultural Fuel Oil) (England) Regulations 2010 (SSAFO); the Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018 (known as the Farming Rules for Water); and the Nitrate Pollution Prevention Regulations 2015 (Nitrate Regulations) (together, the “Agricultural SI’s).
- WWF-UK and ClientEarth have identified through an FOI request that in the 2020-2021 period, the Agency
- conducted 2,213 inspection visits in total (1475 in relation to the SSAFO; 550 in relation to the Farming Rules for Water; 188 visits in relation to the Nitrate Regulations.
- identified 96 breaches of the Nitrate Regulations, 291 breaches of the FRfW, and 634 breaches of SSAFO (1,021 breaches in total). The Agency later clarified that 531 farms were non-compliant and 57 farms received warning letters (in relation to multiple breaches).
- Of the 1,021 breaches of the law identified, only a single (1) civil sanction or penalty was applied by the Agency in 2020-2021. That means that in relation to each criminal offence identified by the Agency under the three regulations, it will impose a sanction 0.1% of the time.
- The Agency clarified by email that there are generally multiple inspections on a single farm, noting that in 2021 – 2022, they conducted 1805 inspections on 1695 farms. There are approximately 105,000 farms in England. This means that the Environment Agency inspected approximately 1.6% of farms in 2021 - 2022, and even fewer the previous year.
- In their response to the summary complaint, the Environment Agency noted that it concluded 18 prosecutions in 2021-2022 for offences on agricultural premises, but of these offences only two were for offences under the Nitrate Regulations and only one for a SSAFO breach.
- 229 grassland derogations were applied for in 2020 and 233 in 2021. However, in response to a freedom of information request, Natural England confirmed that it has never provided site-specific advice on grassland derogations to the Agency between the entire period 2016-2021, despite the Agency falling under a specific duty to compile information “enabling it to form an opinion of the general state of pollution of the environment” under section 5(2) of the Environment Act 1995.
- FOI requests revealed Natural England advised the Agency that site-specific assessments should be conducted for all derogations within areas that are already in unfavourable condition or could become so as a result of the derogation.
- The Agency is not carrying out enough farm inspections to equip itself with the information needed to carry out its statutory responsibilities under the regulations concerning nitrate pollution. It appears that the majority of Agency inspections result in a finding of unlawful failure to comply with the law, suggesting systemic non-compliance (non-compliance being a criminal offence under the Agricultural SIs). However, despite this, the Agency is only inspecting a fraction of farms in England every year.
- It is contrary to the protective purpose of the Agricultural SIs not to adequately police the offences created by them. This approach entirely undermines the Agricultural SIs, leading to rampant non-compliance and nitrogen pollution.
ClientEarth is a non-profit organisation that uses the law to create systemic change that protects the Earth for – and with – its inhabitants. We are tackling climate change, protecting nature and stopping pollution, with partners and citizens around the globe. We hold industry and governments to account, and defend everyone’s right to a healthy world. From our offices in Europe, Asia and the USA we shape, implement and enforce the law, to build a future for our planet in which people and nature can thrive together.
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