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How criminal law is seeping into the climate debate

Scales of justice
While criminal law has been used to convict climate activists, legal frameworks have also been put forward in the UK parliament to make environmental degradation a criminal offence (Photo: Chris Dorney/Dreamstime)

While several climate activists have been sent to prison for their involvement in disruptive protests, legislation is now also being strengthened to impose criminal sanctions on individuals found responsible for large-scale environmental damage

Courts globally have seen a steep rise in climate-related lawsuits as the negative impacts of a warming planet are becoming more severe and more deadly. This type of litigation is predominantly filed under civil law, meaning the underlying claim is aimed at challenging an existing corporate or government policy or at seeking financial compensation for damages incurred.

However, the use of criminal proceedings has also entered the climate arena, not least with the increased criminalisation of climate protests, which in some instances have led to multi-year prison sentences.

For instance, the Public Order Act passed by the UK government last year has introduced harsher penalties for activists that lock themselves on or obstruct highways. Campaign groups have denounced the new law as restricting people’s right to protest.

A substantial number of new offences — such as public nuisance — carrying the potential for prison sentences have been introduced, as well as old offences amended to provide for imprisonment where they used to be limited to fines and less serious penalties, notes Garden Court Chambers barrister Jacob Bindman, who has experience defending climate activists in court.

While criminal law has increasingly been used to convict climate activists, legal frameworks — such as ecocide bills — have also been put forward in the UK parliament to make environmental degradation a criminal offence.

Louise Hodges, head of the criminal law team at law firm Kingsley Napley, says: “There is certainly a tension in the UK between environmental policy on the one hand, and the current government’s focus on law and order on the other.”

She argues that one use of criminal law may be seen as part of a wider policy to set stricter boundaries around activism, a large part of which currently focuses on climate change. The other, aimed at potentially criminalising environmental pollution, could be read as a sign that the government recognises the ever-increasing urgency with which climate challenges must be met.

Bindman agrees that there is always a perceived tension between maintenance of law and order in the face of mass movements or campaigns, but that the near universal scientific acceptance of the impacts of climate change, and the pace at which they occur, is clearly at odds with the speed and severity with which climate activists are being criminalised.

Proposed legislation

The EU recently agreed revisions to its Environmental Crime Directive of 2008, which will see certain environmental breaches be treated as criminal offences across the bloc.

Despite the updated legislation not mentioning the crime of “ecocide” specifically, the revision was welcomed as a hugely significant moment by campaign group Stop Ecocide International, which advocates to include ecocide as one of the crimes prosecutable in the International Criminal Court in The Hague.

In November last year, a member of the Scottish parliament put forward proposals for an ecocide bill and a similar bill was read in the House of Lords last December.

However, in the case of the bill read in Westminster, which would apply to England and Wales, it is far from clear whether it will progress to become law, says Hodges. Given the bill is not sponsored by ministers, it is less likely to receive royal assent. Even if it does become law, there is likely to be further hurdles to overcome — potentially through litigation in the courts — in proving the elements of the crime, she says.

Hodges points out that certain language in the bill, such as “substantial likelihood of severe and either widespread or long-term damage” might be contested as it is unclear how this damage would be calculated. She also notes it is not clear how it might be established that an individual knew or ought to have known about this damage.

Bindman suggests legislation on environmental crimes could mimic the recent Economic Crime and Corporate Transparency Act of 2023, whereby prosecutors can claim criminal liability on large organisations when they can prove they failed in preventing acts of fraud or bribery committed by employees, without the need to identify the main individuals behind the offence.

Stop Ecocide International chief executive and co-founder Jojo Mehta says the power of ecocide bills lies largely in being a preventative, rather than a punitive, measure. “It will be the threat of prosecution that will result in economy-wide behaviour change,” she says, adding that ecocide legislation also has the potential to “turbocharge” green innovation and redirect finance and investment away from the most harmful practices and towards those that prioritise sustainable practices.

Hodges agrees that the prospect of being held personally liable may have a useful deterrent effect on individuals within corporations.

Despite ecocide legislation already existing in more than a dozen countries globally, and now expanding further, ecocide-related litigation is indeed rare.

Mehta refers to an ongoing chemical pollution case in southern France as the first ecocide trial to date, under the country’s Climate and Resilience law, but expects Ukraine to file ecocide cases for prosecution following the environmental damage inflicted by Russia since the war started in 2022.

Criminal investigations tend to take a lot of time, says Hodges, adding that in the UK, there has recently been a shift towards the use of civil penalties and other tools against companies that bypass the need for lengthy, resource-intensive criminal investigations and prosecutions on an already overloaded criminal justice system.

Impact on climate policy

Even though Bindman considers the current focus of the UK government heavily biased towards expanding criminal law to go after protestors and activists rather than corporates, he notes that if new legislation aimed clearly at protecting the environment and reforms to corporate criminal liability are passed, then a much greater use of criminal law to enforce climate objectives against polluting multinationals could follow.

“The issue is getting environmental crimes on the statute book and getting the state to enforce them through prosecution,” he says.

Hodges agrees that if an expansion of corporate criminal liability in the proposed criminal justice bill passes, companies could be held accountable for any criminal offences — including environmental ones — committed by associated individuals, and this could be seen as a valuable tool to enforce climate policy.

“There is clearly a need for rigorous policing of environmental objectives if they are to be met, and often the realistic threat of criminal sanction has a powerful preventative effect,” Bindman says. Much will depend on the will of the government in question and the resources allocated to it, he adds.

Any criminal enforcement of environmental objectives tied to climate change would naturally come at a cost for government. Enforcement agencies will need to be sufficiently resourced in order to conduct effective investigations and bring prosecutions, Hodges says.

She expects enforcement agencies in the UK to be considering soon whether false green claims and misleading statements, if linked to underlying fraud and economic criminal conduct, should be used as a means of bringing criminal actions in this area. This follows the publication of an updated economic crime plan by the government last year, in which financial crimes related to environmental, social and governance issues are mentioned. She says these can include, in addition to greenwashing, illegal trafficking in waste, timber and wildlife as well.

While criminal liability for environmental pollution and damage might become more prominent, we are likely quite some way off to making climate change contributions a criminal offence, argues John Buttanshaw, senior counsel in law firm Travers Smith’s environmental practice.

“The goals and obligations of the Paris Agreement generally remain with nation states under international law, with a reluctance by many to impose a general regulatory responsibility, criminal or otherwise, on private actors,” he says.

However, Buttanshaw notes the intentional misrepresentation of carbon emissions in corporate reports as an example of where regulatory and criminal liability may intertwine. He says that in some jurisdictions, criminal liability applies to the use of certain climate change-contributing gases, such as fluorinated gases.

Even if criminal law will not target private actors’ contribution to climate change in a direct sense, the stigma of criminal liability is meaningful and taken very seriously by companies as it also carries serious commercial implications for the recoverability of any fines or sanctions under insurance or other means, Buttanshaw adds.

A service from the Financial Times