Legislative Overreach, Adaptation and Administrative Re-regulation in Environmental Law

Abstract

This article interrogates the use of regulatory position statements (RPSs) by the Environment Agency. Through an RPS, the Environment Agency undertakes to take no enforcement action against an operator in circumstances that ordinarily constitutes a breach of the law. The article argues that RPSs serve several important functions, chief among which is to respond to regulatory overreach, which arises when legislators enact comprehensive statutory instruments to deal with complex and technical matters such as environmental protection. Beyond responding to regulatory overreach, the RPSs also serve to provide regulators with a regulatory tool that allows flexible and swift changes to the regulatory regime when faced with unforeseen challenges. Although their informal enactment suggests otherwise, the RPSs have significant ‘law-like’ implications, giving rise to a regulatory hybrid instrument, which is neither law or policy nor a rule or a discretionary power. Moreover, even if RPSs serve to disapply important statutory controls, they impose a range of additional and vague regulatory conditions and requirements. RPSs therefore contribute to a regulatory system which fluctuates between regulation, deregulation and re-regulation.