Fuelled partly by increasing awareness of the precarious state of the planet’s natural life support systems, environmental protection has been rising rapidly up national and international policy agendas in recent years. The moral and coercive power of the criminal law is being harnessed (albeit hesitantly) to punish certain forms of environmental harms, and to send out the public message that they breach basic standards of behaviour required of individuals, corporate entities and States in a civilised society.
In 2008, the EU broke new ground with the adoption of Directive 2008/99/EC on the protection of the environment through criminal law. It requires each Member State to criminalise certain activities affecting the environment when done unlawfully and with intention or serious negligence. These activities include the discharge of certain polluting material into the air, soil or water where that causes or is likely to cause death or serious injury to any person, or substantial damage to plants or animals or to the quality of air, soil or water. Similar, but separate, provision is made for the management etc of waste, and the storage etc of dangerous substances. Such offences must be punished by criminal penalties that are “effective, proportionate and dissuasive”. There is also provision for corporate criminal liability.
The Directive represented a milestone in overcoming stiff political and legal opposition to the injection of criminalisation into the fabric of EU environmental law. The costs, however, were reflected in compromises which diluted the potential impact of the original initiative which was launched in 2001. The effort also seemed to exhaust the policy commitment of the Commission’s Directorate-General for the Environment. There was no internal provision for follow up, and the Directive itself did not require subsequent implementation monitoring or reporting by Member States.
Significantly, it was the Directorate-General for Justice and Home Affairs (rather than the Environment) which eventually took the initiative to embark on mutual evaluations of the national implementation of EU policies on preventing and combating environmental crime. Moreover, the objective was to assess national compliance with undertakings on combating organised crime, rather than environmental protection per se.
The mutual evaluations commenced in 2016. Due to the broad range of offences covered, it was agreed to focus primarily on those offences which Member States felt warranted particular attention; namely illegal trafficking in waste and the illegal production and handling of dangerous materials. Others major areas, such as illicit wildlife trafficking, the illicit timber trade, the illicit fish trade and air pollution were not covered, although most of the broader issues raised are common to them too.
The results were tabled at the recent December meeting of the EU Council of Justice and Home Affairs Ministers (https://data.consilium.europa.eu/doc/document/ST-14852-2019-INIT/en/pdf). The draft final report presents a mixed picture in which there is much room for improvement in the performance of most Member States. It would be a mistake, however, to attribute this solely to a lack of commitment and endeavour at national level. At least part of the explanation can be found in the distinct challenges presented by adopting the criminal law as a tool to protect the environment. These are further complicated by the continued existence of conceptual, substantive and procedural differences across the criminal law regimes of EU Member States.
Challenges in using criminal law to protect the environment
Deploying the criminal law as a tool for environmental protection is not as straightforward as might initially be assumed. It must overcome obstacles that are less problematic in the traditional criminal law categories of offences against the person, property, public order and the State.
The first obstacle concerns the basic need to prescribe the offending behaviour in the form of conventional criminal offences; each of which is expressed as a specified act or omission which occurs in specified circumstances and produces a specified consequence. Given the huge range and diversity of environmental harms, it is not really feasible to express all of them with the clarity and precision traditionally demanded of mainstream criminal offences.
Resorting to loosely defined environmental offences with a very broad sweep is equally problematic, as they will leave the executive and judicial authorities with too much discretion to determine which environmentally harmful acts should or should not be punished. Not only does that conflict with basic ‘rule of law’ values in a liberal democracy, but it also fails to depict publicly and clearly those particular forms of environmental harm that need to be singled out as worthy of criminal condemnation and punishment.
The limitations of the traditional criminal law method might be overcome, at least partially, by resort to what are frequently referred to as regulatory criminal offences. This entails the imposition of an administrative licensing regime on the pursuit of defined economic, social or domestic activities carrying a high risk of significant harm to the environment. Failure to comply with the terms and conditions of the applicable licensing regime can then be punished as a criminal offence.
While the licensing approach undoubtedly has immense value and makes a major contribution to environmental protection, it can be criticised as diminishing or masking the criminal character of the most serious incidents of environmental harm. Under it, the criminal offence is seen and treated as a mere breach of an administrative licensing condition, rather than an inherently criminal act. As such, it avoids much of the public condemnation and moral opprobrium generally associated with the latter.
The enforcement of criminal (or administrative) offences against the environment presents challenges that are not normally associated with traditional offences against the person, property etc. Unlike them, environmental crime usually lacks an identifiable victim who will lodge a complaint to trigger the reactive investigation, detection, prosecution and punishment processes. Indeed, this type of crime is rarely self-evident and may even be invisible or intangible. Much of the emphasis in law enforcement, therefore, must be proactive. Typically, this reduces to little more than occasional checks on compliance with applicable environmental standards and licensing conditions; essentially an exercise in administrative oversight.
Where a criminal offence involving serious tangible environmental harm is suspected, effective investigation will usually require the deployment of specialist expertise that will not be available in mainstream policing. Accordingly, it tends to be led by specialist agencies and usually requires a multi-agency approach. The prospects of criminal charges being brought and leading to a successful prosecution can depend heavily on the manner in which they gather evidence and the form which that evidence takes. Even if the evidence satisfies the technical admissibility requirements, it can present the jury with issues of scientific complexity that do not often feature in the trial of mainstream criminal offences.
Further complications can arise from the fact that some types of serious environmental harm do not respect jurisdictional borders. Accordingly, investigating and prosecuting them through the criminal law can be dependant on complex processes of cross-border cooperation among criminal law regimes which differ, sometimes very substantially, from each other.
Clearly, the prevention and punishment of environmental crimes is a complex task which requires a sophisticated legal and policy framework, the adoption of a multi-agency approach guided by defined political and strategic priorities and the allocation of adequate human and financial resources. As will be seen below, the report on the national evaluations finds that most, if not all, Member States have struggled to deliver on all of these fronts. The net effect would appear to be that deploying the familiar criminal process as a mainstream tool in combating serious environmental harms is still a work in progress.
The report reveals that the majority of Member States lack a coherent national strategy on tackling environmental crime, and only a few have bodies or entities with a coordinating function for the implementation of such a strategy. This generates a lack of uniformity in tackling environmental crime and undermines the prevention and detection of such crime at national level and across the EU. Accordingly, the report recommends, among other things, the adoption of a national strategy on environmental crime. This should outline the objectives and priorities, together with the roles and responsibilities of the competent authorities and their modes of cooperation.
Criminal or administrative enforcement
All Member States have established a legal framework to tackle environmental crime, including the prescription of offences and penalties. In some, however, the full potential of criminal law enforcement is not being realised, as administrative enforcement is often preferred as an easier and more effective option. This is reflected in a failure to distinguish clearly between the administrative and criminal penalty regimes in the legal definitions of offences. There is also excessive reliance on vague terms such as “substantial damage” which leave too much scope for divergent interpretations in individual cases. The true character of environmental crime tends to get obscured in the process.
Similarly, the report finds that corporate liability for environmental crime is not always treated with the seriousness it deserves. In some States, it is dealt with through administrative sanctions only, while corporate fines imposed are considered generally too light.
Inadequate crime data
Criminal law enforcement strategy in most Member States suffers from poor environmental crime data. The national evaluations criticise them as being insufficient, fragmented, incomplete and based on multiple individual statistical sources. They are collected by each individual responsible authority, with no interlinking or integration among them. Without a comprehensive consolidated database of reported environmental crimes, it is difficult for law enforcement authorities to formulate and implement coherent prevention, detection and prosecution policies. The absence of comprehensive data in many Member States has also meant that the evaluation teams frequently were not able to carry out a thorough examination of the actual extent and seriousness of these forms of crime and assess trends in the States concerned.
The report encourages each Member State to develop a centralised and integrated approach to the collection of systematic, reliable and up-to-date statistics on environmental crime. The data should cover all reported environmental offences, and each stage of the related criminal and administrative proceedings.
Specialist enforcement agencies
Most Member States are considered to have adequate levels of executive enforcement specialisation, at least among their environmental authorities. Not all, however, have dedicated specialist police units for the investigation and detection of environmental crime. In some of those States that do, they are located in the economic and financial sections of the national police. Since environmental crime is chiefly motivated by financial gain, this is presented as best practice in the report. Nevertheless, the overall number of inspectors and physical inspections are considered insufficient to counteract environmental crime adequately. This is reflected in a detection rate that is too low and a prosecution rate that, in some cases, is statistically irrelevant.
Most Member States lack specialist prosecutors and judges to deal with environmental crime. Some even consider that environmental crime is not of sufficient importance in their jurisdictions to warrant the establishment of specialised structures to tackle it. The evaluation report recommends that Member States should enhance the level of specialisation of prosecutors and judges dealing with environmental crime. This should encompass regular and extensive training, and the establishment of networks and specialist structures or units, for the prosecutors and judges.
Cooperation among agencies
The report emphasises the importance of close cooperation among enforcement (including judicial) authorities within States, in order to create synergies and strengthen the resilience of the overall environmental protection and enforcement system. It finds, however, that the degree of institutional cooperation within Member States is patchy, with some relying on informal ad hoc practices that prove too fragile in certain unexpected circumstances. The report encourages Member States to establish formal structures for strategic and operational cooperation among the players. This could be complemented by a central coordinating body and facilities for systematically exchanging information.
The report considers that the private sector and NGOs can play an important role in environmental law enforcement. It finds that there is room to place cooperation with the private sector on a more formal and structured basis in some Member States, and to enhance the participation rights of NGOs in criminal proceedings. The report also acknowledges that effective prevention is the best way to avoid environmental infringements. With that in mind, it encourages Member States to prioritise prevention, harnessing the resources of both the public and private sectors.
While some Member States have developed forms of international cooperation, the report finds that there is generally a need for greater engagement with the supports offered at EU level through, for example, Europol, Eurojust and the European Judicial Network. Cross-border joint investigation teams (JITs) are also considered a useful tool in this context (for more on JITs see, https://blogs.kent.ac.uk/criminaljusticenotes/2019/11/24/garda-psni-joint-investigation-team/).
Criminal investigation methods
In some Member States, the report finds that investigative techniques, such as observation, infiltration and telephone tapping, which are generally available for serious crime, cannot be used for environmental crime unless there is a link with economic and financial offences. Once again, this has the effect of diluting the seriousness and classification of environmental crime as ‘real’ crime.
Problems can also arise from the manner in which evidence of environmental offences is gathered. Evidence acquired by administrative authorities may not be admissible in criminal judicial proceedings if the manner of its acquisition does not satisfy the prescribed requirements of criminal process. This can result in the enforcement authorities opting to proceed through the administrative process, thereby concealing the true criminal character of the offence.
The evaluations focused specifically on the illegal trafficking of waste and the production and handling of dangerous substances, as these are two major sources of serious environmental crime. With respect to the former, the report is of the view that there is significant room for improvement in enforcement. It encourages all Member States to see this form of environmental crime as part of economic crime frequently committed by organised crime groups. Accordingly, they should take into consideration its economic aspects and its financial implications for the natural environment and society when formulating and implementing their enforcement policies.
On the production and handling of dangerous substances, the report emphasises the importance of adequate controls and the use of intelligence and risk assessment, as well as structured forms of cooperation. These are considered essential to strengthen Member States’ detection and enforcement systems in the field.
More than ten years after the adoption of the EU Directive on the subject, there is still considerable room for improvement in protecting the environment through the criminal law across the Member States. The capacity to accomplish this complex and multi-agency task varies considerably among Member States. While there are examples of best practice, overall there is a need for it to be given a higher level of prioritisation at a political and strategic level. The evaluation report concludes that States need to make a greater effort in using the potential of their own law enforcement and criminal law systems to their full extent in combating environmental crime. They must also strive to involve all their stakeholders, use all available tools efficiently, and foster international cooperation, to achieve better management of environmental protection within their own jurisdictions and across borders.
It remains to be seen whether the Commission’s Directorate-General for the Environment will use this Justice and Home Affairs report to re-invigorate its policy actions and leadership in the field. As noted by Dr. Hedemann-Robinson, the new Commission President, Ursula von der Leyen, appears to have pushed environmental issues much higher up the political agenda than her predecessor. We will have to wait, however, for the adoption of the new Environmental Action Programme to get a clearer picture of possible future developments.
 I am indebted to Dr. Martin Hedemann-Robinson, Kent Law School, for the insights in this paragraph, and for valuable comments more generally on an earlier draft of this note.
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