Environmental law expert: Detecting environmental crime is quite a problem

Water pollution is among the most common environmantal crimes. However, identifying the culprits ist not always an easy task. [ksmo111/ Shutterstock]

Water pollution, illegally dumped waste – crimes against the environment cost us billions but they are difficult to trace back and prosecute properly. A recent report by the European Environmental Bureau shows the magnitude of this problem.

EURACTIV Germany’s Florence Schulz interviewed Francesca Carlsson, one of the authors of the ‘Crime and Punishment’ report on the challenges in fighting environmental crime.

Carlsson is a legal officer at the European Environmental Bureau working on the environmental implementation review and broader horizontal legal issues, such as participatory rights and access to justice.

What counts as an environmental crime and who commits them?

We’re talking about a very wide range of things: First, there is organised crime that harms the environment, This could be wildlife trafficking, waste dumping, or money laundering under the European emissions trading system. Then there are relatively smaller crimes in terms of economic gain, as illegal hunting, but that may be systematic.

Other acts are not considered a crime unless they affect a protected site, illegal water extraction for example as we often see it in Spain.

This can obviously cause huge environmental repercussions even when it happens in a non-protected area, especially in times of drought. And businesses operating without valid permits can also commit environmental crimes.

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In your report, you calculate the cost of these crimes to be $258 billion per year globally. What does that mean?

This estimation is the amount of illegal profits that environmental crimes generate and was made by Interpol and UNEP in 2016. In this sense, states are making indirect financial losses, money they could otherwise have earned and lost to criminals, for example, due to illegal fishing. The calculation also includes indirect impacts on the environment however, as well as the costs to society or our health care systems.

The European Commission is currently running a fitness check on its Environmental Crime Directive. Where are its loopholes?

The focus of this evaluation lies mostly on wildlife and waste crime. We think that the Commission should take a broader look at what environmental crime is. The roadmap for the evaluation of the Directive didn’t contain the production and smuggling of illegal chemicals, just to name one example. Another problem is that some notions of the direction are quite vague. For example, it says that sanctions for environmental harm need to be effective, proportionate and dissuasive. That leaves a lot of room for interpretation to every judge.

Also the definition of “unlawful conduct” remains unclear. Member states interpret this quite differently. Some criminalise certain acts that others classify as administrative misconduct for which they merely impose fines. This basically means we don’t apply the same level of punishment and therefore environmental protection across the EU.

Does that mean our judicial systems cannot properly prosecute environmental crimes?

It means that member states need a lot more guidance on how to handle these cases. We don’t know to what extend judges make use of the national laws that are supposed to implement the environmental crime directive.

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What about the detection of crimes against the environment?

Detecting environmental crime is quite a problem, too. Some member states have specialised enforcement bodies that are more aware of types of criminal misconduct. The Netherlands is a good example of how to ramp up the detection of environmental crimes. It coordinates and shares information between local authorities, port authorities, customs and the police.

This creates quite aneffective network because local police often aren’t aware of the issue or don’t have adequate resources to investigate organised environmental crime.

One of the most prominent environmental scandals of recent years was “Dieselgate” in Germany. What can we learn from this?

I think we learned how regulators can, in a way, be complicit in environmental crimes. A lot of them can be prevented if compliance with environmental laws is implemented properly and if regulators are checked, too. Another aspect is that companies must be criminally liable, not just their top officials. This is possible in the US, where Volkswagen had to pay high fines, but not yet everywhere the EU.

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Environmental protection and sustainable business have become new buzz words. Do you see a trend among companies in that direction?

Yes, there’s definitely greater awareness of the need to do so. But of course, it depends on the company. Some might use it as a means for advertising without taking true measures. But some companies take their social responsibility and due diligence quite seriously.

The EU has also been looking into this issue: There are discussions about a new directive on due diligence for companies which would have a more preventive function. This concern much more than just environmental crimes of course – but it could really improve transparency in businesses.

[Edited by Daniel Eck/ Zoran Radosavljevic]

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