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A Paradigm Shift in Environmental Criminal Law

Michael G. Faure

Introduction

In many European Union (EU) countries, during the last 30 years, the way in which environmental crime is described in legislation has undergone important shifts during the last 30 years. Environmental law itself, in fact, only emerged in most EU countries in the 1970s. A first feature of environmental criminal law at that time was that the role that criminal law played in most of this legislation was relatively modest. Initially, environmental laws were primarily administrative in nature, for example, requiring operators to apply for permits and run operations as stipulated in the permits. Criminal provisions would be added only at the end of a particular law, stating that those who act in disobedience of this particular administrative law will be subject to criminal sanctions.

M.G. Faure (*)

Maastricht University, METRO, Faculty of Law,

Maastricht, The Netherlands

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© The Author(s) 2016 17

R. Sollund et al. (eds.), Fighting Environmental Crime in Europe and Beyond, Palgrave Studies in Green Criminology,

DOI 10.1057/978-1-349-95085-0_2

This phenomenon has been characterized as the administrative dependence of environmental criminal law. Environmental crime in domestic legislation was not defined in an independent manner, for example, taking into account the nature of the danger caused by a particular behaviour to the environment.

Second, the fact that environmental crime was simply placed by the legislator as a kind of appendix to administrative laws gave it a low priority in enforcement policy. Most enforcement authorities, particularly prosecutors, would view the crimes incorporated in the penal code as the most important offences; as a result, the prosecution of crimes embedded in special administrative laws could receive lower priority.

A third feature of this traditional environmental criminal law, as it emerged in the 1980s, was that in most European countries, criminal law was basically the only instrument available to enforce these administrative environmental laws.1 Other penalties that aimed at deterrence, such as administrative fines, were not available in most legal systems. Prosecutors did—as mentioned above—not prioritize crimes included in laws that were otherwise oriented towards administrative stipulations. As a result, in many countries environmental crimes were never prosecuted, and many violations were dismissed.

This account of environmental criminal law may initially seem to be a generalization (Conceivably, there may have been individual countries who incorporated environmental crimes into the penal code and prosecuted them more frequently.). However, when considering environmental crime as a system that is dependent on administrative environmental law, it is an accurate portrayal for the majority of European legal systems at the time.

In this chapter, I argue that the way in which legislators have viewed environmental crime, that is, the way environmental crime has been defined in legislation, has dramatically changed in the past 30 years. I explore two key examples in which this development was largely influenced by various crucial doctrinal moves. The first involves a German legal doctrine that emerged in the 1980s which addressed the legal dogmatic [1]

1

foundations of environmental criminal law. A more recent instance is found in the UK where scholars (and increasingly policymakers) argue that in addition to the criminal law, administrative fine systems should be added to the available enforcement tools. Such doctrinal moves have had a marked, albeit implicit, effect on policy change that can be observed in the way environmental crime is now articulated in legislation, particularly as it relates to other enforcement systems.

  • [1] Germany with its Ordnungswidrigkeitengesetz constitutes an important exception.
 
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