The Environmental Damage (Prevention and Remediation) (England) Regulations 2015:  post-implementation review (PIR) – RPC opinion (red-rated)
Source: gov.uk (2025-04-29)

Regulatory Policy Committee opinion of The Department for the Environment, Food and Rural Affairs’ PIR of the regulations

The regulations consolidate The Environmental Damage (Prevention and Remediation) Regulations 2009, as amended, which transposed the Environmental Liability Directive (ELD) (2004/35/EC). The directive has the objective of making operators of activities which cause environmental damage financially liable for that damage (the ‘polluter pays’ principle). The environmental damage regulations apply to serious environmental damage to land, water and to species and habitats.

The regulations have been amended by 11 other statutory instruments. The 2015 regulations consolidated all of those amendments, revoking two of them. They also contain additional provisions to transpose Article 38 of the Offshore Safety Directive (2013/30/EU). The directive is intended to reduce the potential for major accidents relating to offshore oil and gas activities and limit their impacts on the environment and coastal economies and improve safety standards for offshore workers.

The 2015 regulations came into force on 19 July 2015, and were required to be reviewed by 18 April 2020 and, subsequently, at intervals not exceeding five years. The first PIR was submitted late on 12/12/2023 for RPC scrutiny. The RPC, having considered the PIR to be not fit for purpose (red-rated), issued its opinion on 1 May 2024.

The RPC has concerns about a lack of evidence and analysis supporting the PIR’s recommendation to retain the regulations. In particular, whether the Department has given sufficient consideration to whether the regulations, in their current form, remain necessary to deliver the objectives or whether amendments might be justified.

While evidence has been gathered through engagement with regulators, local authorities and industry, the Department appears not to have considered all of the information received when making the recommendation, nor has sufficient consideration been given to potential refinements to improve the regulations.

The information relied upon to support the recommendation appears narrow and limited. The PIR should review what evidence, from a wider range of sources, should be considered. The PIR includes, however, a section noting the limitations of the evidence that is available.

The Department has now published the PIR (https://www.legislation.gov.uk/ukia/2024/221/pdfs/ukia_20240221_en.pdf) stating the Government’s intention to leave the regulations in place for the present. The RPC notes this intention given that the Department has found no evidence of the regulations creating a burden on businesses. The RPC understands that the Department has, nevertheless, undertaken further work since the RPC issued its opinion and has updated the PIR to reflect this, and to commit to undertake a further review earlier than required - within three years. At that point, it is hoped that it will be possible to gather better evidence to enable a decision to be taken to retain, amend or revoke the regulations.