In February 2024 the European Parliament approved legislation outlawing “ecocide” and providing sanctions for environmental crimes. Member states now have two years to enshrine its provisions in national law.
The new rules update the list of environmental crimes adopted in 2008 and enhance the sanctions. The goal is to ensure more effective enforcement. Listed among the offenses are:
- the import and use of mercury and fluorinated greenhouse gases,
- the import of invasive species,
- the illegal depletion of water resources, and
- pollution caused by ships.
This action followed an in-depth analysis of the failures of the previous EU environmental directive, first adopted in 2008 (Directive 2008/99/EC). The review found that:
- The Directive had little effect on the ground.
- Over the 10 years since its adoption few environmental crime cases were successfully investigated and sentenced.
- Sanction levels were too low to dissuade violations.
- There had been little systematic cross-border cooperation.
EU Member states were not enforcing the Directive’s provisions. They had provided insufficient resources to the task. They had not developed the needed specialized knowledge and public awareness. They were not sharing information or coordinating either among individual governments’ several agencies or with neighboring countries.
The review found that poor data hampered attempts by both the EU body and national policy-makers to evaluate the Directive’s efficacy.
The new Directive attempts to address these weaknesses. To me, the most important change is that complying with a permit no longer frees a company or its leadership from criminal liability. These individuals now have a “duty of care”. According to Antonius Manders, Dutch MEP from the Group of the European People’s Party (Christian Democrats), if new information shows that actions conducted under the permit are “causing irreversible damage to health and nature – you will have to stop.” This action reverses the previous EU environmental crime directive – and most member state laws. Until now, environmental crime could be punished only if it is unlawful; as long as an enterprise was complying with a permit, its actions would not be considered unlawful. Michael Faure, a professor of comparative and international environmental law at Maastricht University, calls this change revolutionary.
Another step was to make corporate leadership personally liable to penalties, including imprisonment. If a company’s actions cause substantial environmental harm, the CEOs and board members can face prison sentences of up to eight years. If the environmental harm results in the death of any person, the penalty can be increased to ten years.
Financial penalties were also raised. Each Member state sets the fines within certain parameters. Fines may be based on either a proportion of annual worldwide turnover (3 to 5%) or set at a fixed fine (up to 40 million euros). Companies might also be obliged to reinstate the damaged environment or compensate for the damage caused. Companies might also lose their licenses or access to public funding, or even be forced to close.
Proponents of making ecocide the fifth international crime at the International Criminal Court argue that the updated directive effectively criminalizes “ecocide” — defined as “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.”
Individual member states also decide whether the directive will apply to offences committed outside EU borders by EU companies.
Some members of the European Parliament advocate for an even stronger stance: creation of a public prosecutor at the European Union level. They hope that the Council of Europe will incorporate this idea during its ongoing revision of the Convention on the Protection of the Environment through Criminal Law. To me, this seems unlikely since the current text of the Convention, adopted by the Council in 1998, has never been ratified so it has not come into force.
The Council of Europe covers a wider geographic area than the European Union – 46 member states compared to 27. Members of the Council of Europe which are not in the EU include the United Kingdom, Norway, Switzerland, Bosnia-Hercegovina, Serbia, Kosovo, Albania; several mini-states, e.g., Monaco and San Remo; and countries in arguably neighboring regions, e.g., Armenia, Azerbaijan, Georgia, and Turkey.
While I rejoice that invasive species are included in the new Directive, I confess that I am uncertain about the extent to which this inclusion will advance efforts to prevent spread. The species under consideration would apparently have to be identified by some European body as “invasive” and its importation restricted. As we know, many of the most damaging species are not recognized as invasive before their introduction to a naïve environment. On the other side, the requirement that companies recognize new information and halt damaging actions – even when complying with a permit! – provides for needed flexibility.
Posted by Faith Campbell
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For a detailed discussion of the policies and practices that have allowed these pests to enter and spread – and that do not promote effective restoration strategies – review the Fading Forests report at http://treeimprovement.utk.edu/FadingForests.htm
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