Environmental Crime: Legal Framework

Introduction

“Environmental crimes” cover a wide range of misconduct, often perpetrated by or through corporate actors. They include corporate misconduct that:

• damages the environment directly, in breach of domestic laws or regulations, or applicable international standards; and
• adversely impacts the rights of individuals or communities (such as the rights to life and health, or the rights of Indigenous peoples) as a result of its effects on the environment, even if the environmental damage itself is not unlawful.

1. Environmental crimes
   Environmental crimes can impact the health or way of life of entire communities. They can destroy ecosystems that may never recover and are frequently linked with other serious criminal activity that often has transnational elements. Environmental crimes include:
   • fraud and corruption that enable illegal resource extraction and deforestation;¹ 
   • forced labour in illegal fishing and industrial agriculture that fuel deforestation;²
   • illegal mining that drives deforestation and poisons rivers with heavy metals;³ and
   • smuggling of drugs and weapons, which is increasingly linked to wildlife trafficking.⁴

   Environmental crimes are also a major vector for money laundering and conflict finance.⁵

   Finally, environmental crimes are intimately linked with the twin crises that threaten the planet – climate change and loss of biodiversity – which the UN Secretary-General described as constituting “code red for humanity”.⁶

2. Range of activities
   The range of activities that can constitute environmental crimes is significantly more diverse than other categories of corporate crime addressed in this Hub, which focus on crimes such as killing, sexual violence, torture and forced labour. Some industries are particularly exposed to environmental crimes. These include industrial processes that generate pollution or toxic waste and involve the transport or disposal of hazardous substances, as well as forestry, mining, agribusiness and fisheries. The wide range of business activities and industries is reflected in the diverse approaches of national jurisdictions to regulating and prosecuting environmental crimes, which often extend beyond the legal framework applicable to most other crimes. Yet, compared with other activities covered in this Hub, fewer and less prescriptive international standards regulate environmental crimes. Nevertheless, the impact of international standards tackling environmental crimes should not be underestimated. 

International Criminal Law

International criminal law criminalizes most abuses covered by this Hub if they take place in circumstances that attract international jurisdiction. It can be used to pursue accountability when, for example, crimes of sexual violence, enforced disappearance, killing, torture or forced labour are committed:

• in the context of and associated with an armed conflict; or 
• as part of a widespread or systematic attack on a civilian population, pursuant to a state or organizational policy; or 
• with the intent to destroy a designated group, in whole or in part.

Environmental crimes are different. International criminal law is not designed, or particularly well suited, to regulate and provide accountability for environmental crimes. In fact, international humanitarian and criminal law provide limited protection for the environment.

1. Rome Statute of the International Criminal Court
   The Rome Statute of the International Criminal Court (ICC) does offer some opportunities to pursue justice for corporate environmental crimes, although civil society should not over-estimate it as a forum for accountability for such crimes.

   Article 8(2)(b)(iv): Damage to the natural environment

   Only one offence in the Rome Statute explicitly criminalizes damage to or destruction of the natural environment, and this solely applies in the context of an international armed conflict. Article 8(2)(b)(iv) criminalizes:

   “Intentionally launching an attack in the knowledge that such attack will cause… widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.”

   The elements of this offence (which is not specific to damage to the natural environment) are:

   1. The perpetrator launched an attack.
   2. The attack would cause incidental death or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment and that such harm would be clearly excessive in relation to the overall military advantage anticipated.
   3. The perpetrator knew that the attack would cause civilian deaths and injuries or severe damage to the natural environment and would be clearly excessive in relation to the overall military advantage anticipated.
   4. The conduct took place in the context of and was associated with an international armed conflict. 
   5. The perpetrator was aware of the circumstances that established the existence of an armed conflict.

   This protection of the natural environment reflects provisions of Additional Protocol I to the Geneva Conventions. Article 35(3) provides in the Basic Rules that:

   “It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.”

   Article 55 of Additional Protocol I elaborates additional protections for the natural environment.⁷ 

   The Rome Statute makes explicit that individual criminal responsibility applies to attacks that cause “widespread, long-term and severe damage” to the natural environment in those circumstances,⁸ setting a high standard for damage caused to the environment. The phrase “widespread, long-term and severe damage” reflects the language of the 1976 Convention on the Prohibition of Military or any Hostile Use of Environmental Modification Techniques, whose Guidelines define these terms: 

   (a) “widespread”: encompassing an area on the scale of several hundred square kilometres;

   (b) “long-lasting”: lasting for months or approximately a season; and 

   (c) “severe”: serious or significant disruption or harm to human life, natural and economic resources or other assets.⁹

   The practical application of this single offence, in the context of damage to the natural environment, is therefore limited, and to date there has been no prosecution of such misconduct by the ICC or national authorities on the basis of universal jurisdiction. 

   The practical limitation is amplified when considering its application to corporate conduct, given that the crime relates to “launching an attack” that will cause damage that is excessive compared with the “military [rather than commercial] advantage anticipated”. 

   Finally, as this crime falls under the Rome Statute, it applies only to international armed conflicts, not to non-international armed conflicts.¹⁰
   

2. Other Rome Statute provisions
   Other crimes proscribed by the Rome Statute could come into play depending on the circumstances. For example:
   • Where illegal mining or logging, which is often linked to substantial environmental damage, takes place in the context of an armed conflict, this may constitute the war crime of pillage under Article 8(2)(b)(v) or 8(2)(e)(xvi) (see Seizure of Natural Resources).¹¹ 
   • When the impact of significant environmental crimes, such as pollution of air or water supplies, or the degradation of agricultural or other lands necessary for sustenance – could lead to mass displacement that might constitute “forcible transfer of population”, this could amount to a crime against humanity, under Article 7(1)(d).

   However, even taking these examples into account, environmental crimes that constitute international crimes per se will be the exception, not the rule. 

   More frequent will be armed conflicts or campaigns of mass violence that involve the commission of other international crimes such as attacks on civilian populations, and that are driven or fuelled by the exploitation of natural resources and thus involve environmental exploitation and damage. The ICC Office of the Prosecutor recognized this in its 2016 Policy Paper on Case Selection and Prioritisation: 

   “[T]he Office will give particular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land.”¹²

   It is helpful that the Office of the Prosecutor has recognized that environmental factors or resource extraction can amplify the gravity of other international crimes, and that it may prioritize those crimes in its investigations. This does not mean, however, that it will be able to prosecute the underlying environmental crimes themselves. 

   Moreover, the ICC will usually only prosecute a small number of cases in any given situation that it investigates, and only when national authorities have failed to investigate and pursue cases in a genuine manner. The ICC also does not have jurisdiction over corporations (though it may over individual corporate officers). 

   Many states that have ratified the Rome Statute have enacted war crimes, crimes against humanity and genocide in their domestic criminal law; these offences often attract universal jurisdiction. Further, many of those national systems do allow prosecution of corporations as well as individual corporate officers.

   The difficulty of fitting environmental offences within the framework of international criminal law is exemplified by the repeated and unsuccessful communications to the Office of the Prosecutor alleging that Brazilian President Jair Bolsonaro is responsible for various crimes under the Rome Statute as a result of his policies that have led to accelerating deforestation in the Brazilian Amazon and serious impacts on Indigenous peoples.¹³

3. Filling the Gap: An International Crime of Ecocide
   The effective silence of international criminal law, which purports to address “the most serious crimes of concern to the international community as a whole”,¹⁴ in the face of environmental crises that pose existential threats such as climate change and biodiversity loss, has prompted some environmental and international accountability advocates to call for new crimes to be recognized. The most prominent campaign is for recognition of an international crime of “ecocide”. This has involved extensive discussion and debate about the term,¹⁵ how to define the harm of “ecocide”, how to define the circumstances in which a court should exercise jurisdiction, and any person should be held criminally responsible. The campaign has accelerated in recent years. In 2019, Vanuatu and the Maldives formally called on the ICC Assembly of States Parties to consider adding the crime of “ecocide” to the Rome Statute.¹⁶ In March 2021, the European Parliament’s Foreign Affairs Committee encouraged “negotiations… with a view to recognising ‘ecocide’ as an international crime under the Rome Statute”.¹⁷ In June 2021, the Independent Expert Panel for the Legal Definition of Ecocide¹⁸ issued a report that defined “ecocide” 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”.¹⁹ In July 2021, the UN Secretary-General endorsed the ICC having jurisdiction over “ecocide”.²⁰In addition, at least two countries (Chile and Mexico)²¹ have introduced bills proposing crimes of “ecocide” under national law, although no offences based on this new definition have yet to be passed.²² Despite this progress, the process for adding the crime of “ecocide” to the Rome Statute will be long, and the new offence would only apply to conduct that occurs after the entry into force of the new crime.

International Human Rights Law

Traditionally, human rights have not directly protected the environment. Their perceived anthropocentrism is a large part of what drives advocacy for recognition of the “rights of nature”.²³ 

Nowadays, there is growing recognition of the relationship between the environment and human rights – that it is a human right to live in a healthy environment; and that conduct which adversely affects the environment may impact other human rights. 

Consequently, human rights may be relevant in holding corporations to account for environmental crimes, where the results of those environmental crimes affect the rights of a relevant population.  Some impacts of such crimes may be local, such as air pollution affecting a community or the impact of a mine or agribusiness plantation on the rights of frontline communities, including Indigenous peoples. But it is increasingly clear that global environmental concerns such as climate change impact human rights, especially of marginalized populations that can be distant from the corporate conduct or decision-making centres that have contributed to the damage.

1. Right to a healthy environment
   Recognition of the impact of environmental harm on human rights, and the human right to a healthy environment, has been growing at the national, regional and international levels. The constitutions of over 100 states recognize some form of constitutional right to a healthy environment.²⁴ Examples include: 
   • “Everyone shall have the right to a healthy, ecologically balanced environment” (Cape Verde) 
   • “All persons have the right to a clean and healthy environment” (Ethiopia).²⁵

   A constitutional right to a healthy environment has also been developed through case law in other states, including India.²⁶

   Where such protections exist, they may be used as the basis for litigation – particularly where special judicial procedures for writs of protection of constitutional rights (such as amparo proceedings) are available. Indeed, these rights have formed the basis for litigation in a number of countries, notably Colombia²⁷ and the Philippines,²⁸ though primarily against state rather than corporate actors. 

   A number of regional human rights conventions and bodies also recognize the right to a healthy environment. For example:

   • In Africa, the African Charter on Human and Peoples’ Rights provides in Article 24 that, “All peoples shall have the right to a general satisfactory environment favourable to their development.” In terms of exploitation of natural resources (relevant to industries often implicated in environmental crimes), Article 21 reinforces that, “All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people.” 
   • In the Americas, the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights provides that, “Everyone shall have the right to live in a healthy environment” (Article 11). The Inter-American Court of Human Rights expanded on both the positive and negative obligations of states to the right to a healthy environment in a 2018 Advisory Opinion on the Environment and Human Rights,²⁹ and in a subsequent contentious case.³⁰
   • At the international level, the UN has recognized the right to a healthy environment, notably in an October 2021 Human Rights Council resolution that, “Recognizes the right to a clean, healthy and sustainable environment as a human right”.³¹ This builds on long-standing UN recognition of the environment’s impact on human rights, from the 1972 Stockholm Declaration on the Human Environment, which recognized the fundamental right to “an environment of a quality that permits a life of dignity and well-being”;³² to the appointment in 1995 of a Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes;³³ and the creation in 2021 of a Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment.³⁴
2. Environmental crimes and other human rights
   The declarations on the right to a healthy environment have typically built on the recognition (including in case law) of the way that environmental offences and issues affect a range of other human rights. From the outset, the Stockholm Declaration on the Human Environment presented the right to “an environment of a quality that permits a life of dignity and well-being” as a foundation for the “fundamental right to freedom, equality and adequate conditions of life”. The impact of environmental crimes on human rights may be most obvious when it affects the right to health.³⁵ But it can also implicate the right to life,³⁶ for example in the context of air pollution or toxic wastes disposal, as well as the rights to dignity, to family and private life,³⁷ to food and to water.³⁸ The rights of children may also be impacted, especially by pollution that affects their cognitive development, such as lead poisoning.³⁹ Environmental crimes can constitute discrimination. For instance, pollution often disproportionately affects the health, well-being and lifespan of people in marginalized communities.⁴⁰ The impacts of corporate activities that are environmentally destructive thus remain a concern for these universal and long-established rights, even if a particular jurisdiction does not (yet) recognize the right to a healthy environment per se.

   Useful international standards

   Several important human rights principles and standards protect certain populations that are disproportionately affected by environmentally destructive activities. These include:

   • UN Declaration on the Rights of Indigenous Persons 
   • UN Declaration on the Rights of Peasants and Other People Working in Rural Areas.

   These two groups of people are often disproportionately impacted by environmental crimes associated with deforestation, extractive industries, industrial agriculture or infrastructure projects. Both Declarations explicitly include the right of these groups to “the conservation and protection of the environment and the productive capacity of their lands”.⁴¹ 

   Indigenous peoples also have the right to maintain their connection (including spiritual and cultural) to their lands, and any activities that exploit or impact their lands should take place only with their free, prior and informed consent.⁴²

   Such rights and protections do not address environmental crimes directly. However, the populations and communities that enjoy these rights are frequently the same as those that rely on and have historically preserved areas that are of high environmental value and are vulnerable to environmental crimes. 

   Protecting these rights, especially against intrusive corporate or state developments to exploit resources in ways that would damage Indigenous peoples and frontline communities’ lands (and the values that they provide in economic, cultural and often spiritual terms) is one path to tackle environmental crimes. 

   These standards are therefore important frameworks to establish corporate responsibility when lands or waters have been damaged (especially when this was done without consent or consultation), or to challenge activities that would cause such damage.

   Environmental defenders

   Environmental defenders⁴³ often face the greatest risk of reprisals, including acts of intimidation, violence and killing. 

   In 2020, Global Witness recorded 227 lethal attacks on them, an average of more than four people killed a week, “making it once again the most dangerous year on record for people defending their homes, land and livelihoods, and ecosystems vital for biodiversity and the climate.”⁴⁴

   John Knox, former UN Special Rapporteur on human rights and the environment, noted:

   “Murder is not the only way environmental defenders are persecuted; for every 1 killed, there are 20 to 100 others harassed, unlawfully and lawfully arrested, and sued for defamation, amongst other intimidations.”⁴⁵ 

   Where environmental defenders have been harassed,⁴⁶ harmed or killed in retaliation for their efforts to prevent, investigate or seek accountability for corporate environmental crimes, then this may also implicate corporate wrongdoers. 

3. Impact of climate change on human rights
   Environmental crimes often fuel the climate crisis, for example through deforestation and destruction of other carbon-rich ecosystems such as peatlands and mangroves,⁴⁷ and failure to dispose properly of chemicals such as fluorinated gases.⁴⁸ Recognition of the impact of climate change on human rights is being increasingly recognized in the UN system and through strategic litigation.
   
4. UN system
   In 2019, Phillip Alston, then-Special Rapporteur on extreme poverty and human rights, published a searing report on Climate Change and Poverty. Later that year, nine Special Rapporteurs and Working Groups declaring that:“[T]he global climate emergency… endangers human rights in every region of the planet… Among the human rights being threatened and violated by climate change are the rights to life, health, food, water and sanitation, a healthy environment, an adequate standard of living, housing, property, self-determination, development and culture.”⁴⁹ Five UN treaty bodies subsequently issued a rare joint statement on human rights and climate change.⁵⁰ In 2021, the Human Rights Council created a Special Rapporteur on the promotion and protection of human rights in the context of climate change.⁵¹

   Strategic Litigation

   The impact of climate change on human rights has also been reflected in litigation and national systems. For example, 

   • The successful Urgenda case against the Dutch government, which partly relied on the impact of climate change on human rights,⁵² encouraged climate litigators to increasingly draw on human rights principles and claims – leading some to identify a “rights turn in climate litigation”.⁵³ 

   Many such cases are against governments (before national courts, regional human rights tribunals and UN treaty bodies) because the normative basis for enforcing human rights standards against corporations directly is less firmly established in many systems, and the procedural framework is less well developed. 

   However, actions have been brought against corporations, using both traditional litigation before courts and quasi-judicial mechanisms. These include:

   • Extensive hearings before the Philippines Commission on the responsibility of major oil, gas and cement companies for the impact of climate change on the human rights of the Filipino people.⁵⁴ 
   • A landmark judgment against Shell in the Netherlands, setting legally binding (and more extensive) standards for its emissions reductions targets.⁵⁵
   • The Organisation for Economic Co-operation and Development (OECD) National Contact Point in the Netherlands demanding that ING Bank set concrete climate goals for its financial services that are in line with the Paris Climate Agreement.⁵⁶

Other International Standards

In addition to human rights provisions, other international treaties, declarations and public international law principles may be relevant to defining, deterring and punishing environmental misconduct, including by corporations. These notably include the 1992 Rio Declaration on Environment and Development and the obligation to avoid transboundary harm.⁵⁷ Most of these fall within the ambit of what is commonly referred to as international environmental law.⁵⁸

These treaties cover a range of topics. While coverage is not universal (although specific regional conventions may also be relevant in particular areas),⁵⁹ most of the main conventions are widely ratified. Some may be of limited relevance to corporate environmental crimes,⁶⁰ but many others address topics where corporate environmental crimes may well be a concern, including:

• Protection of biodiversity (the 1992 Convention on Biological Diversity and its 2000 Cartagena Protocol on Biosafety), particular categories of vulnerable habitats or ecosystems (Ramsar Convention on Wetlands of International Importance; Convention to Combat Desertification) and areas of particularly high cultural or environmental value (UNESCO World Heritage Convention).
• Protection of endangered or migratory species (Convention on International Trade in Endangered Species; Convention on Migratory Species).
• Protection of the marine environment (UN Convention on the Law of the Sea),⁶¹ for the conservation or management of specific fisheries,⁶² and for the protection of other waterways (UN Convention on the Law of the Non-navigational Uses of International Watercourses).
• Prevention of pollution (Stockholm Convention on Persistent Organic Pollutants; Minamata Convention on Mercury), including conventions on marine pollution from land⁶³ and maritime⁶⁴ sources.
• Transboundary transfer of hazardous wastes (notably the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal; and its 1995 Amendment and 1999 Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes) and hazardous chemicals (1998 Rotterdam Prior Informed Consent Convention).
• Climate change (in particular, the UN Framework Convention on Climate Change and key agreements and protocols concluded under that Convention, notably the Kyoto Protocol and Paris Agreement), and protection of the ozone layer (in particular the 1985 Vienna Convention for the Protection of the Ozone Layer and its 1987 Montreal Protocol on Substances that Deplete the Ozone Layer).

While these treaties typically impose obligations on states, frequently those obligations include regulating or prohibiting specified conduct domestically. Many of these have been transposed into national law (notably in the conventions regarding trafficking in protected species, or the transfer of hazardous substances). However, even when they have not, at a minimum these principles in widely ratified treaties embody standards that corporations should abide by.⁶⁵ 

1. Standards for corporations
   Several sets of standards and guidelines are directed at corporations. The principles establishing the relationship between corporations (especially multinational corporations) and human rights, and the frameworks requiring corporations to conduct human rights due diligence,⁶⁶ are complemented by principles regarding impact on the environment. These environmental guidelines are not as extensive or well developed as those on human rights. For instance, there is no environmental equivalent to the UN Guiding Principles on Business and Human Rights, and it is still far more frequent to hear of “mandatory human rights due diligence” than “human rights and environmental due diligence”.⁶⁷ However, as noted above, many environmental crimes will also impact human rights, and the systems for addressing the human rights impacts and obligations of corporations can thus be used to address environmental crimes by corporations.⁶⁸ 
2. OECD Guidelines
   One set of international standards does speak directly to the standards for corporations in respect of their impact on the environment. The OECD Guidelines for Multinational Enterprises on responsible business conduct are most frequently invoked for their provisions on human rights (Chapter IV), but they also contain provisions regarding the environment (Chapter VI). Most of the requirements in the Guidelines are about process rather than results. They establish a system of environmental management involving:
   • collecting and evaluating information on environmental impact, and providing this information to workers and the public; 
   • establishing measurable objectives for environmental progress and monitoring progress towards these; 
   • addressing foreseeable environmental impacts in decision-making; and 
   • seeking to improve corporate environmental performance. 

   Options for direct enforcement of the Guidelines are limited, focusing on mediation through the relevant OECD National Contact Points, which in practice exercise varying degrees of engagement.⁶⁹

   However, the Commentary on the Environment section of the Guidelines reinforces a number of important principles, including that: 

   • “Sound environmental management is… increasingly being seen as both a business responsibility and a business opportunity” (para. 61);
   • “‘Sound environmental management’ should be interpreted in its broadest sense, embodying activities aimed at controlling both direct and indirect environmental impacts of enterprise activities over the long-term, and involving both pollution control and resource management elements” (para. 63); and

   “The basic premise of the Guidelines is that enterprises should act as soon as possible, and in a proactive way, to avoid, for instance, serious or irreversible environmental damages resulting from their activities” (para. 69).

Domestic Law

Typically, environmental crimes are not expressly criminalized in international criminal law or covered systematically by human rights law. While those standards may be useful in some contexts, the regulation and enforcement of environmental crimes is likely to lean more heavily on domestic law. Yet the range of conduct that may be covered by environmental crimes, and the industries involved, means that the approach to domestic regulation and enforcement will be more varied and decentralized than for crimes involving killing, sexual violence or enforced disappearances.⁷⁰

Many environmental crimes fall into one of four categories:

1. Illegal taking or killing of flora, fauna or other natural resources, such as illegal, unregulated or unreported fishing; illegal logging or mining; trafficking in protected plant or animal species; and illegal trade in charcoal.
2. Destruction of or direct damage to natural resources or systems, such as illegal deforestation, and crimes connected with wildfires.
3. Emission of toxic or other prohibited substances, such as air pollution and dumping of toxic wastes.
4. Failure to comply with obligations to report emissions or decommission sites or prevent escape of hazardous substances into the environment, such as failure to plug spent oil and gas wells, or clean up toxic industrial or extractive sites.

Within each of these categories, there may be a wide range of misconduct. This is not surprising given that the range of industries most frequently associated with environmental crimes includes agribusiness, mining, oil and gas, infrastructure, fishing, heavy industry, forestry and waste disposal. 

The reality is that within any given state, the government may well take very different approaches to regulating the conduct of different industries. The legal obligations that play an important part in delineating which misconduct constitutes an environmental crime⁷¹ are likely to be dispersed across a range of legislative and regulatory instruments (and potentially different levels of government, especially in federal systems); and the responsibility for supervision and enforcement of their operations is almost certainly dispersed across multiple agencies. 

Moreover, each state is likely to take a different approach – both in the extent of the legal obligations that it places on different industries and where it locates the regulation and authority for enforcement. For example, home states of multinational enterprises, often in the Global North, may impose greater obligations or higher environmental standards than some states in which the same corporations operate abroad.

Criminal law and prosecution remain important means of addressing environmental crimes, including to demonstrate their serious impacts. The European Union (EU) recognizes this through its Directive 2008/99/EC on the protection of the environment through criminal law. The Directive calls on EU member states to ensure that they have criminal offences to cover nine categories of environmental offences, including adequate penalties and liability of legal persons (corporations).⁷² 

In practice, however, environmental offences will often be dealt with in domestic systems by administrative or regulatory actions and agencies, rather than through criminal prosecution. When dealing with environmental crimes, therefore, a wide range of legislation and other legal instruments should be looked at. For example:

• The EU Directive on protecting the environment through criminal law lists 72 separate EU Directives relevant to unlawful conduct that compromises the environment.⁷³ Each of these will have been transposed into national legislation in different ways in the various member states. 
• Many states will have Environment Acts or Environmental Protection Acts, or chapters relating to environmental protection in their Criminal Codes, which will be important sources of legal obligations and offences relating to environmental crimes. These include:

• In the UK, the Environmental Protection Act 1990 imposes substantive duties including on waste (Sections 33, 38, 44 and 62-63); the duty to monitor landfill sites, including after closure (Section 61); and the use of Genetically Modified Organisms (Part V). It also includes substantive offences regarding contaminated land (Section 57) and abandoned mines (Section 58); collateral offences relating to obstructing authorities from carrying out inspections (Article 110) and making false or misleading statements; and explicitly recognizes corporate liability (Section 157). 
• In India, the Environment (Protection) Act of 1986 contains a list of offences and also addresses companies’ liability directly in Section 16.⁷⁴ 
• In Brazil, the National Environmental Act sets a number of important legal standards and obligations.⁷⁵ However, for enforcement purposes, most of the offences are detailed in the Environmental Criminal and Administrative Offences Decree.⁷⁶

• In many states, there are specific laws and regulations that apply to environmental crimes by corporate wrongdoers, based on the nature of the misconduct and/or the industry involved. 

• There may be specific legislation covering air pollution (such as the US Clean Air Act), but different legislation for water pollution (such as the US Clean Water Act or the UK Water Resources Act of 1991),⁷⁷ and separate regulation of marine pollution versus pollution of inland waterways. 
• The operation and decommissioning of mines or oil and gas wells is almost certain to be governed by its own set of legislation and regulations, but leaks or pollution from those facilities may involve violation both of the laws governing the site and the laws relevant to pollution.
• Many states have dedicated legislation to govern fishing and forestry as industries, and may also have separate legislation to protect the ecosystems in which those industries operate. 

Brazil has a dedicated Forestry Law,⁷⁸ which sets different regulations for the clearing of any forests inside and outside the legal perimeter of the Amazon, and on private and public lands.⁷⁹ Illegal deforestation could lead to administrative action by the federal environmental agency, resulting in a fine or an embargo on the further use of that land; a public civil action; or criminal prosecution by the federal prosecutors’ offices.
However, Brazil also has a detailed regulatory framework governing its logging industry, which requires approval of a Forest Management Plan with associated timber credits before any logging takes place. Also, any timber sold or transported must be accompanied by a permit that also records the transfer of the timber credit, to make it more difficult to launder illegally logged timber into the system. In addition to the federal environment agency and the federal prosecutors’ office, these laws can also be enforced by state prosecutors’ offices and environmental agencies.

Many states have also granted special protection to defined areas – whether for environmental or cultural grounds – and where an environmental crime impacts such areas there will often be additional legislation that applies. For instance, if deforestation or another environmental crime is committed in or affects an Indigenous territory, then the Decree on Policy for Territorial and Environmental Protection of Indigenous Lands⁸⁰ would likely also apply, and the government’s National Indian Foundation⁸¹ may also be involved in enforcement actions. 

In addition, some national laws address environmental crimes committed abroad where there is a connection to the domestic market. Certain international standards regulate the transfer of toxic wastes or the trade in endangered species.⁸² Some states have adopted laws that prevent the import of products that are the result of environmental crimes, such as illegally logged timber under the US Lacey Act and the EU Timber Regulation. 

1. Accountability for the human cost of environmental crimes
   The impact of serious environmental offences is often in human lives. Where environmental crimes have caused deaths or are otherwise linked with killings, then criminal accountability for those deaths can be pursued through domestic court proceedings.In some cases, a corporation or its officers may be prosecuted for deaths that were caused by the environmental damage resulting from its business operations, often under domestic criminal law offences such as manslaughter (or its equivalent in a given legal system) or civil “wrongful death” statutes. This is in addition to using other proceedings for more specific environmental offences.  Securing legal accountability for such human costs can set important legal precedents, although it can be challenging. One example relates to the 1984 gas leak at Union Carbide’s plant in Bhopal, India, that is estimated to have killed and maimed tens of thousands of people.⁸³ Shortly after the leak, the Indian authorities brought criminal charges against Union Carbide India Limited (UCIL), its US parent company Union Carbide Corporation (UCC), UCC’s then Chief Executive Officer Warren Anderson, and eight Indian UCIL employees.⁸⁴ When Warren Anderson travelled to Bhopal in December 1984, he was arrested on arrival and released a few hours later on condition that he return to face charges of culpable homicide in an Indian court. He never returned and died a fugitive in the USA in September 2014.⁸⁵ Eventually, a civil settlement on the disaster was reached. However, the criminal proceedings were not finalized until over 25 years after the disaster. The charges had been downgraded from culpable homicide to criminal negligence causing death (which carries a maximum two-year prison sentence) and the only individuals convicted were seven employees who worked at the plant. Union Carbide Corporation itself and its former chairman, who were charged but were based abroad, refused to face the court. Despite such challenges, prosecution of corporations and their officers (including foreign corporations) remains a powerful tool where environmental damage causes deaths. For example, Brazilian police and prosecutors are pursuing a range of criminal charges, including homicide, against the Brazilian multinational mining company Vale and the German engineering company TUV SUD and a number of their employees and officers arising from a 2019 dam collapse in Brazil that killed 270 people in addition to causing extensive environmental damage.⁸⁶ Environmental damage, especially deforestation or other damage linked with the exploitation of land and resources, can also be facilitated by or linked with other human rights abuses, including killings and enforced disappearances. As noted above, environmental defenders and others opposing large-scale resource, development or infrastructure projects that are frequently linked with environmental crimes are at heightened risk of reprisals, including acts of intimidation, violence and killing. Where crimes and serious human rights abuses such as killings or enforced disappearances are linked with actors that are also involved in the commission of environmental crimes, this may constitute a separate basis for criminal action or for sanctions under the US Global Magnitsky Act, the UK Global Human Rights Sanctions Regulations (which include the possibility of imposing sanctions on corporations or individuals that “profit from” the human rights abuses), or other analogous legal regimes (to learn more on sanctions, see supply section).⁸⁷
2. Other collateral offences
   The range of legislation and regulation that may apply directly to environmental crimes is broad, and requires close examination of the applicable national legal frameworks. There are also many collateral offences that may be relevant when seeking accountability for environmental crimes. Where the regulation in the host country is weak, these collateral offences may provide an alternative worth exploring. For example:
   • The Financial Action Task Force has highlighted the connections between environmental crimes and money laundering,⁸⁸ which may be used to pursue accountability for environmental crimes committed abroad where the proceeds of those crimes are moved into or through the financial system of a second state.
   • Where corruption is involved in the approval of a project that led to environmental crimes, or in the non-enforcement of domestic environmental standards, there may be enforcement options that can be pursued in foreign states – including through the US Foreign Corrupt Practices Act or sanctions under the US Global Magnitsky Act or the UK Global Anti-Corruption Sanctions Regulations.
   • Some industries that are frequently implicated in environmental crimes are sometimes linked with significant allegations of forced labour. In these cases, enforcement of laws prohibiting the import of products produced by forced or child labour, such as section 307 of the US Tariff Act or the Netherlands’ Child Labor Due Diligence Act,⁸⁹ may be applicable.