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Data & Facts - Gaps: The Law Makers & Breakers

The Law: Makers and Breakers

  • Environmental Protection Act Part II is almost unenforceable and unfit for conservation and restoration purposes, which explains some of the campaigns now happening to strengthen regulatory powers against the polluters. The Environment Agency (England) can downgrade pollution events from Category 2 or 3 to Cat. 4’s, which involve no enforcement actions. Minimising the significance of a pollution incident is a disturbingly commonplace practice and often happens without the public understanding how the benchmarking process works (or doesn't).

  • The Water Resources Act, 1991 may mean that your local river has been designated as a Water Protection Zone. It is worth checking this out with your local authority, because this legislation obliges companies in the locality to apply for consent where certain substances are used or stored at specific sites anywhere within the designated area, such as local industrial estates. Water regulators will also have responsibilities here. However, sadly, such protective designations do not guarantee business best practices in pollution prevention. It is down to the public knowing these protections exist, being the eyes and nose on the ground and knowing where to take their concerns.

  • Is it enough for people to have to go online when they witness potentially serious pollution incidents, or to form 'river watch' groups? Do you have any idea about any legal protections for your local watercourses? Chances are you do not know, because the regulators do not see it as their role to pro-actively engage the very people who are likely to blow the whistle when businesses systems fail, resulting in catastrophes. In the words of one regulatory officer, Elizabeth Felton, NRW Environment Team Leader for Wrexham: “Pollution incidents from industrial estates can happen every day because of spills, accidents, negligence, or vandalism....Such incidents can then put human health at risk and devastate wildlife habitats on rivers..."

  • In terms of the Freedom of Information Act, letters from the public, seeking information from local authorities responsible for remediation of pollution sources can result in only partial information sharing, buck passing, legal loopholes or downright misrepresentation. Being aware of what the organisational pitfalls you might face can all feel demotivating, but it's helpful to know what holes in the system you are navigating to keep records for any subsequent legal proceedings your campaign group might take up. Forewarned is forearmed. Here are some of the common pitfalls:

    • Lack of funding for thorough investigation by NGOs, local authorities or regulators.
    • deprioritisation of environmental obligations,
    • limits to Environmental Information Regulations 2004 (EIR)
    • poor oversight of engineering contractors,
    • lack of adequate staff training and incompetence,
    • scientific illiteracy,
    • lost records,
    • historical memory loss as staff retire and leave.

  • Environmental Information Regulations 2004 (EIR) contain exemptions to the public's rights to access information held by some public bodies, including local authorities. For example: [1]Exception 12(5)(d) of the Environmental Information Regulations states: “Confidentiality of proceedings where confidentiality is provided by law”. One particular FoI rejection the Dirty Water team were made aware of went on to elaborate on the legal constraints as follows: Regulation 12(5)(d) states:

    "(5) a public authority may refuse to disclose information to the extent that its disclosure would adversely affect –

    (d) the confidentiality of the proceedings of that or any other public authority where such confidentiality is provided by law;" This legalese was deployed by Spelthorne Council in response to a 2024 FoI request. In this case, the confidentiality obligation cited here was outcomes of a Coroner's Court, which by law can impose confidentiality instructions on a local authority impacted by their proceedings.

  • A further constraint imposed by local authorities on sharing information to the public comes under another set of regulations. A local authority may say that information shared with you under your FoI request is "for your personal use". It is important, therefore when asking for information from a local authority that you also seek permission to share with interested parties. The following response has been seen by one person making a FoI request: "Any re-use of this information will be subject to the Re-Use of Public Sector Information Regulations (2015) and authorisation from the Council will be required. In the event of any re-use, the information must be reproduced accurately and not used in a misleading manner. This is a difficult pill to swallow if someone dies through contamination. If anyone can share effective rebuttals the Dirty Water team would love to hear from you.

  • Regulatory bodies can be toothless. For example, data suggests the Environment Agency is failing to monitor water firms in England. Similar criticisms are made of Natural Resources Wales and other regulatory bodies and departments of government.

  • Scotland's water is not privatised, but pollution management, accountability and transparency still persist. Find out more at Scotland Sewage Dumps 2023

  • Defra's designated 'bathing water' status is an opaque application process. While the designation does require closer monitoring by the authorities when achieved, the idea is deeply flawed. See:

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