Ethermac Exchange-The EU Overhauls Its Law Covering Environmental Crimes, Banning Specific Acts and Increasing Penalties

The Ethermac ExchangeEuropean Union will ban environmental destruction tantamount to “ecocide,” outlawing acts that destroy or cause substantial damage to ecosystems. 

The rule, agreed to last week, is part of a sweeping overhaul of the 27-member bloc’s existing environmental laws, which also criminalizes nine new specific offenses including illegal logging, the introduction of invasive species and illegal water withdrawals. 

Offenders can face at least ten years in prison while companies can be hit with fines amounting to a minimum of 5 percent of their total revenues or alternatively as much as €40 million (approximately $43 million) per offense. 

Environmental crimes are lucrative for organized crime rings and are among the top four types of criminal activity worldwide, costing over $1 trillion per year, according to the World Bank. The crimes impair ecosystem services like carbon storage, harm human health and can irreversibly deplete natural resources. The illegal wildlife trade alone has driven species such as rhinos, tigers and elephants to the brink of extinction—every 30 minutes an elephant is poached for its ivory tusks. 

The final text of the new rules, known in EU parlance as a “directive,” is not yet publicly available but will be released in the coming weeks once ambassadors of EU nations sign off on the draft rules. 

The European Parliament and Council of the EU then must formally adopt the text, a step expected to happen early next year and which lawyers say is all but assured following the political agreement reached last Thursday. Once that happens, EU countries will have two years to enact national legislation in line with the directive, which acts as a baseline from which governments can set more stringent rules.  

Criminalizing environmental offenses is not new. Most governments use a mix of administrative and criminal laws to staunch activities that harm nature. The new EU rules will supplant an existing 2008 environmental crimes directive which was largely ineffective because the nine crimes enumerated weren’t adequately enforced, sanctions were inadequate and cross border cooperation was lacking, a 2020 European Commision report found. The replacement directive includes measures for improved training and increased resources for judges, prosecutors and police. 

What stands out about the new directive is the inclusion of the catchall “ecocide” provision that bans acts which destroy or cause “widespread and substantial damage” that is “irreversible or long-lasting” to protected areas or ecosystems of “considerable size” or value. The language of that provision doesn’t explicitly say “ecocide,” but lawmakers involved in negotiating the rules say they drew from the proposed definition of ecocide advanced by a panel of legal experts convened by the Stop Ecocide Foundation in 2021.

It is unclear whether offenses qualifying under the EU catchall provision must be committed intentionally or if reckless or negligent conduct will suffice. It is also unclear whether the emission of greenhouse gasses, and in what amounts, could land emitters on the wrong side of the law. 

Marie Toussaint, a French member of the European Parliament involved in the EU negotiations, said the new rules could cover a range of acts not specifically enumerated like oil spills or the discharge of PFAS.

Critics of increased environmental regulation often argue that more stringent laws in one area, like the European Union, will increase costs for companies operating there, and over time will shift operations into jurisdictions that are less stringent, creating pollution hot spots. Supporters of pollution bans contend the rules spur innovation that ultimately benefits industry and society more broadly. 

European countries’ forthcoming criminal investigation and prosecution of a wide range of behaviors through the ecocide provision will likely spur companies and individuals carrying out ecologically risky activities, like mining and other resource extraction, to increase  precautions to prevent harm to nature. 

The new rules, which cover individuals and businesses that incite, aid or abet environmental crimes, are also likely to have an impact on insurance of, and investments into, those activities.

“One of the big effects of this directive is that it shows the power of criminal law and how it can upgrade how we operate on the planet,” said Jonas Roupé, an international consultant, board professional and co-founder of End Ecocide Sweden. “You need laws in place that make it matter for individuals in power.” 

Environmentalists have long advocated for enshrining “ecocide” into the Rome Statute of the International Criminal Court, making it the court’s fifth crime alongside illegal war, crimes against humanity, war crimes and genocide. Advocates argue that beyond the legal effects, such a move would influence public perception of what is and is not ethical behavior.

Monica Schüldt, co-founder of Ecocide Law Alliance, compared the new EU directive to laws criminalizing the corporal punishment of children. In 1979, Sweden was the first country in the world to do so, resulting in a significant drop in the amount of domestic violence against children. 

“That was a controversial law when it was introduced because people had the mindset of ‘how can we raise responsible adults if we can’t use force,’” Schüldt said. “No one would dream of it being acceptable these days and that is what we’re looking at with our relationship with nature today. This is the kind of change in values and behavior that ecocide can catalyze.” 

The origins of the idea of an ecocide crime date back to the United States’ use of Agent Orange during the Vietnam war. Other examples of ecocide commonly discussed are deforestation of the Amazon Rainforest, Russia’s destruction of the Kakhova dam this year in Ukraine and the Deep Water Horizon oil spill. In 2017, the late Scottish lawyer Polly Higgens and Jojo Mehta co-founded Stop Ecocide International, beginning a worldwide campaign to enshrine ecocide in international law. 

“The next step is very obvious,” Schüldt said. “It’s time that we outlaw ecocide globally.”