Criminal liability in environmental law

Abstract

Respect for legal standards geared towards the protection of the environment depends upon the existence of criminal penalties at law, which ought to be sufficiently dissuasive as well as able to be adapted to environmental issues. Environmental crime encompasses activities that range from careless behaviours to deliberate actions causing environmental harm. The risk of giving rise to criminal liability, rather than or together with the other types of liability, has the benefit of ensuring more effective environmental compliance. The main reason being, that the cost of civil or administrative penalties can be internalised by the non-compliant juridical persons, without ever actually effecting changes so as to eliminate unlawful impact on the environment. On the other hand, criminal sanctions can play a significant role in deterring environmental crime, in such a way that the fear of criminal prosecution and imprisonment may more likely deter the violation of environmental law. Criminal punishments often target the natural persons, who, in turn, would suffer detrimental social and professional impacts. Thus, the availability of criminal liability in environmental law has the potential of preventing environmental harm and not merely redressing it. Traditional criminal liability requires the illegal act to be intentional as well as committed with mens rea. However, such requirements interfere with the enforcement of offences that have the purpose of protecting the environment. It is crucial that, the courts reflect such concept of an environmental crime. This is not an easy matter at hand, particularly due to the nature of the environmental crime itself. In fact, the environmental crime is often not jurisdiction specific, it relates to damage done to common property and may be committed simultaneously with other crimes. Furthermore, such features of the environmental crime have been made to be balanced out with the legal consequences as deriving from the concepts of the polluter pays principle, the precautionary principle, the protection of biodiversity and the preservation of intergenerational equity. For all this and more, the incorporation of criminal liability in environmental law is a challenge at the international, the European Union as well as the national level. It follows that, the Thesis aims at dealing with the subject on the three levels, in such a way that it analyses the existing status of criminal liability of environmental offences on each respective level, while suggesting a way forward towards a more effective environmental criminal law. Chapter 1 of the Thesis continues by discussing the scope of criminal liability in environmental law as well as the intrinsic characteristics of an environmental crime. Chapter 2 follows up by treating criminal liability from the international environmental law point of view, by analysing the existing legal instruments, if any, as to the prosecution of environmental damages by the International Courts, as well as by discussing the challenges bound to be encountered by the International Criminal Law of the Environment. Chapter 3, then, treats the title from the European Union Law point of view, by discussing the existing legal instruments that criminalise environmental wrong-doings at the European Union level. Chapter 4 takes up the examples of the People’s Republic of China and the United States of America as the backdrop for a comparative legal analysis of environmental crime. Finally, Chapter 5 concludes by drawing upon the main points of the Thesis and recommends ways forward.