Two Doctrinal Moves
Although this characterization of the environmental criminal law may constitute too rough a generalization, two features were typical for the period (irrespective of the specific form of environmental crime in the legislation): (1) the dependence of environmental criminal law upon administrative law and (2) a tendency towards criminalization of any violation of environmental law, hence the absence of administrative fines.
From different angles, responses have been formulated in legal doctrine against those two approaches. The first originates from German legal doctrine and acts against the absolute dependence of environmental criminal law upon administrative law (Sect. 3.1). The second stems from administrative law as well as from law and economics that argue in favour of administrative fines and for a more limited role of the criminal law (Sect. 3.2).
Environmental Protection through Criminal Law?
A project that was launched by the Max Planck Institute for Foreign and International Criminal Law in Freiburg im Breisgau played an important role in the analysis of environmental criminal law in Europe (and in other continents). Begun in 1985, it was a broad project entitled Umweltschutz durch Strafrecht? in which criminal law in numerous countries was analysed with respect to environmental protection, with special attention to the relationship between environmental criminal law, administrative and civil law. The project was coordinated by Gunter Heine, who himself has published widely on environmental criminal law in Germany but also internationally (Heine 1986, 1989, 1991). The general tenet of the project was to examine the limits of criminal law in protecting the environment as to see how its effectiveness could be improved, especially in relation to administrative law. Heine and the other scholars who were inspired by his work developed a model of environmental criminal law with a reduced dependence upon administrative law, at least with a more nuanced approach to administrative law.
This model centres on the idea that the narrow relationship between administrative and criminal law should be abandoned. However, this does not necessarily mean that one should immediately forsake any link between environmental criminal law and administrative law. Indeed, such a link may even have certain advantages. First, administrative dependence has the advantage that it respects the lex certa principle, which follows from the principle of legality in criminal law. This holds that the legislator should describe the criminalized behaviour as precisely as possible. In case the legislator punishes violation of administrative norms (e.g. conditions in a permit), the criminalized behaviour will usually be relatively clear before the event (De Nauw 1994, p. 85). However, one should also realize that referring to a permit might not always be the ideal way of criminalizing pollution since permit conditions can be vague and ambiguous.
One can also argue that a link with administrative law is in some cases indispensable since ‘pollution’ would otherwise be a broad and vague category to criminalize. If such a broad terminology were to be applied, it would no longer be clear ex ante which behaviour is criminalized and which is not. That would be the case if the legislator were, for example, to criminalize the person who has contributed to climate change. The impossibility of proving a causal link between certain behaviour and the criminalized result would render such a provision inapplicable in practice (Robert 1994, pp. 954-955).
Moreover, the formulation of obligation in administrative law may also contribute to making more precise the concept of unlawfulness in environmental criminal law. Indeed, one can hope that it is probably the administrative authority that is best situated to determine whether a specific form of pollution is lawful or not. Indeed, administrative authorities may be far better qualified (given their expertise and thus their information advantage) than the judge in a criminal court to determine which type of pollution should be considered unlawful or not. This information advantage of administrative authorities is a strong argument in favour of some link between administrative and environmental criminal law.
A consequence of the previous ideas is that probably some link between environmental criminal law and administrative law should be retained. The primary decision on the admissibility of certain polluting acts should remain with administrative authorities, of course, within the limits set by law and respecting general principles of administrative law.
As a result, different types of criminal provisions are necessary to protect the environment, all with a different goal and all with a different relationship to administrative law (Heine 1994, pp. 731-759). An effective environmental criminal law, according to Heine and MPI scholarship, needs to be able to penalize violations of administrative obligations, and unlawful emissions, and should equally contain an independent pollution crime in case serious consequences occur.