Taking the Environment Agency to Court: Holding the Regulators to Account for Failing to Regulate

February 23, 2024

People fearful for the ecological collapse of the River Wye, including river campaigner Feargal Sharkey, gathered outside Cardiff’s Civil Justice Centre supporting a landmark legal case pursued by River Action against the Environment Agency and DEFRA. February 2024
Source: RiverActionUK.com

Previous blogs have shown that environmental regulation in the UK has been in steady decline since 2010. For instance, the Environment Agency (EA) has seen an 88% decline in enforcement actions since 2010, resulting in fewer prosecutions of grave regulatory breaches. In the context of this decline, it is unsurprising that there is increasing frustration among various campaign groups with the EA’s record.

Last summer, multiple instances of untreated sewage being released into waterways in the UK made the news headlines in ways that they had not previously. This increased public awareness and attention of sewage and water pollution from water companies created public anger directed at both the regulator and the perpetrators. However, this issue with increased water pollution does not solely lie with water companies. Agricultural activity near waterways has also become an increasing problem, with even less regulatory action.

This month, in the first case of its kind, the EA and the Department for Environment, Food and Rural Affairs (DEFRA) are being taken to court by the environmental campaign group River Action for failing to protect the river Wye from pollution. Let’s take a look at how this transpired.

Intensive chicken farming and the river Wye

The Rver Wye River, located at the English/Welsh border. Source: James Dale / Getty Images

Water pollution from agricultural farming has become an increasing problem, but is less acknowledged both by the EA and in the public eye than pollution by water companies. To help stop this form of pollution and protect the waterways near agricultural land, in 2018 the government introduced new farming rules specifically for the protection of waterways. The Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018 state that manufactured fertiliser cannot be applied within 2 metres of inland freshwaters or coastal waters, while organic fertiliser cannot be applied within 10 metres of waterways. Furthermore, this regulation also specifies any land within 5 metres of waterways must be protected from significant soil erosion by livestock.

The regulations make it clear that waterways must be protected by those farming land near water sources. However, it has been found that during the financial year 2021-22, 391 breaches of these regulations occurred, over double what had been recorded the previous year. While these breaches have been recorded, there are no records of them on Violation Tracker UK, because the EA has yet to issue any warnings or penalties under this legislation.

The river Wye has been at the sharp end of water pollution from agricultural activity. The Wye is situated on the English/Welsh border and is both a Site of Specific Scientific Interest (SSSI) and a Special Area of Conservation (SAC). Due to its SSSI and SAC status, it would be thought that the river would be specifically protected from pollution, and that if pollution did occur, the EA would act. This has not been the case.

In recent years the Wye has been suffering from increasing pollution from the intensive chicken farming in the area, with the river being described as “a wildlife death trap”. Waste from the chicken farms run off into the river, causing devastation to its ecosystem due to the increased phosphate levels.

Many of the intensive chicken farms responsible for the water pollution in the river Wye supply food giants Avara Foods, who are owned by industrial farming giant Cargill, and Noble Foods. Interestingly, neither the food giants nor farms in their supply chains have faced any regulatory action specific to their activities round the Wye. On Violation Tracker UK, Cargill only has three environmental violations, with only one monetary fine of £8,188. Noble Foods has one environmental violation with a monetary fine of £50,000 for releasing untreated waste water from their chicken slaughtering and processing plant in Lincolnshire into a local stream in January 2020. However, Cargill’s U.S. environmental record makes for woeful reading, including being involved in a very similar water pollution incident of the Illinois River in Oklahoma in 2005.

Water pollution and the Environment Agency: Moving forward

The regulations to protect waterways near agricultural farmland exist, yet so far, they have not been enforced by the EA. Within this context, it is worth acknowledging that the EA are working with half the budget they had 10 years ago. However, a lack of regulatory action only works to enable the continued pollution of the river Wye.

Given the blatant and continued pollution of the river and the lack of enforcement action against those involved, it is unsurprising that the EA and DEFRA are being taken to court by River Action UK. It would also be unsurprising if this is not the only case to be brought against the agencies if there are not any real changes in environmental regulation in the UK.