French Climate And Resilience Law: What Impact On Environmental Criminal Law? – Environment

Emily Parkin


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Law No. 2021-1104 of August 22, 2021 on combating climate
change and strengthening resilience to its effects (the
“Climate and Resilience Law”), adopted on July 20, 2021,
was promulgated on August 24, 2021. Its provisions are inspired by
the proposals of the Citizens’ Climate Convention. The final
text includes 305 Articles in 8 Titles. Some provisions came into
force as soon as the Climate and Resilience Law was promulgated,
while other measures will apply in 2022, 2023, 2025, up to
2034.

This article provides a focus on the new developments in
environmental criminal law.

The Climate and Resilience Law mainly toughens the scale of
existing penalties in environmental matters (for example, marine
pollution : Article L. 218-11; Article L. 218-34; Article L.
218-48; Article L. 218-64; Article L. 218-73 of the French
Environmental Code) or illegal activities on protected sites
(Article L. 331-26 and L. 331-27 of the French Environmental Code),
and creates an offense of endangering the environment and an
offense of damaging the environment.

Offense of endangering the environment

Article 279 of the Climate and Resilience Law created an offense
of endangering the environment in situations of non-compliance with
applicable requirements under special environmental
policies. 

It should be recalled that the French Environmental Code already
includes an article that punishes serious harm to the health or
safety of people or serious harm that has caused a substantial
degradation of the fauna and flora or the quality of the air, soil
or water.

Specifically, Article L. 173-3 of the French Environmental Code
provides that:

When they have seriously harmed the health or safety
of people or caused a substantial degradation of the fauna and
flora or the quality of the air, soil or water:

1° The fact of building a structure, operating a
facility, carrying out works or conducting an activity subject to
an authorization, registration or declaration regime, without
satisfying the requirements set by the administrative authority, is
punishable by two years’ imprisonment and a fine of 75,000
euros;

2° The actions provided for in Article L. 173-1 and
Article L. 173-2-I are punishable by three years’ imprisonment
and a fine of 150,000 euros;

3° The actions provided for in Article L. 173-2-II are
punishable by five years’ imprisonment and a fine of 300,000
euros
“.

This concerns the offenses of operating a “classified
facility for the protection of the environment”
(Installation Classée pour la Protection de
l’Environnement
 or “ICPE” in French) or
“facilities, structures, works and activities”
(Installations, Ouvrages, Travaux et
Activités
 or “IOTA” in French) without
authorization or in violation of a requirement (refusal, withdrawal
of authorization, closure, etc.) or in the absence of remediation
following the discontinuation of an activity (Article L. 173-1 of
the French Environmental Code) or the offenses of continuing an
operation or activity, operation of a facility or structure without
complying with a formal notice (Article L. 173-2 of the French
Environmental Code).

The Climate and Resilience Law includes three provisions
allowing to impose criminal sanctions not for environmental damage
but for the risk of environmental damage.

As such, it creates a new Article L. 173-3-1 in the French
Environmental Code according to which:

When they directly expose fauna, flora or water
quality to an immediate risk of serious and lasting harm, the
actions provided for in Articles L. 173-1 and L. 173-2 are
punishable by three years’ imprisonment and a fine of 250,000
euros, this amount may be increased to three times the benefit
derived from the perpetration of the offense.

Is considered lasting, within the meaning of this Article,
any harm likely to last at least seven years.

The first paragraph of Article 131-38 of the French Criminal
Code applies only to fines expressed in terms of absolute
value.

An identical provision is included in the criminal penalties for
non-compliance with waste regulations (Article L. 541-46, X of the
French Environmental Code) and for the transport of hazardous
materials (Article L. 1252-5, II of the French Transport Code).

It is to be feared that this time-line requirement will make any
attempts to characterize the offense useless, as it is likely to
give rise to endless debates on the potential duration of the harm,
whereas Article L. 173-3 only requires a substantial
degradation.

Offense of damaging the environment

Article 280 of the Climate and Resilience Law created in Book II
of the French Environmental Code devoted to aquatic environments a
new Title III dealing with general damage to physical
environments.

It should be noted that the insertion of this new Title III
within the Book devoted to water is perplexing since it contains
offenses that are not specific to this environment. Indeed, air,
waste and even species – which are not physical environments
– are also concerned.

The three new offenses defined under Title III concern the
pollution of physical and biological environments, the abandonment
of waste, and ecocide (where there is an element of intent).

General offense of polluting physical and biological
environments

The Climate and Resilience Law creates a new general offense
polluting of the environment (Article L. 231-1 of the French
Environmental Code), which can lead to the qualification of ecocide
if there is an element of intent (Article L. 231-3 of the French
Environmental Code).

As such, Article L. 231-1 of the French Environmental Code
targets:

“The fact, in manifestly deliberate violation of a
particular prudential or safety obligation provided for by law or
regulation, of emitting into the air, throwing, spilling or letting
flow into surface or underground waters or into seawaters within
the limits of territorial waters, directly or indirectly, one or
more substances whose action or reactions result in serious and
lasting harmful effects on health, flora, fauna, with the exception
of the damage mentioned in Articles L. 218-73 and L. 432-2, or
serious modifications of the normal water supply
system”.

The applicable penalties are “five years’
imprisonment and a fine of one million euros, which may be
increased up to five times the benefit derived from the
perpetration of the offense
“.

Some restrictions are provided for:

  • With regard to discharges into water: It does not apply to the
    damage mentioned in Articles L. 218-73 and L. 432-2, i.e.,
    respectively, aquatic pollution having an impact on aquatic fauna
    and flora or fish fauna;

  • With regard to air emissions: It applies only if the emission
    limit values set by decision of the competent administrative
    authority are exceeded;

  • With regard to authorized discharge operations and the use of
    authorized substances: It applies only in the event of
    non-compliance with the requirements set by the competent
    administrative authority.

Finally, it is specified that “harmful effects on
health or damage to flora or fauna that are likely to last at least
seven years are considered to be lasting
“. And that the
limitation period for prosecuting this offense “starts
running from the discovery of the damage
“.

Offense of abandoning waste

In the same way, a new offense specific to the abandonment of
waste is created (Article L. 231-2 of the French Environmental
Code), which can also lead to the qualification of ecocide if there
is an element of intent (Article L. 231-3 of the French
Environmental Code).

This offense targets:

The fact of abandoning, depositing or causing to be
deposited waste, under conditions contrary to Chapter I of Title IV
of Book V, and the fact of managing waste, as defined in Article L.
541-1-1, without complying with the requirements concerning the
characteristics, quantities, technical conditions for taking charge
of the waste and the treatment processes implemented, as set out in
application of Articles L. 541-2, L. 541-2-1, L. 541-7-2, L.
541-21-1 and L. 541-22, when they cause a substantial degradation
of the fauna and flora or the quality of the air, soil or
water.”

The applicable penalties are three years’ imprisonment and a
fine of 150,000 euros.

The limitation period for prosecuting this offense
starts running from the discovery of the
damage
“.

Offense of ecocide

These two offenses – general pollution of physical and
biological environments on the one hand and abandonment of waste on
the other hand – are qualified as ecocide when they have been
committed intentionally (Article L. 231-3 of the French
Environmental Code).

It should be noted that the discussions on ecocide have been
very lively.

The inclusion of ecocide into French law was initially defended
by a bill presented in 2019. Ecocide, defined as “any
concerted and deliberate action tending to directly cause
widespread, irreversible and irreparable damage to an ecosystem,
committed with knowledge of the consequences
“, would have
been punishable inter alia by a fine of 20% of
the total annual worldwide turnover of the previous financial
year.

This idea was taken up by the proposals of the Citizens’
Climate Convention, which had defined ecocide as “any
action having caused serious ecological damage by participating in
the manifest and non-negligible overstepping of planetary limits,
committed with knowledge of the consequences that were to result
therefrom and which could not be ignored.
“.

In the end, the definition was significantly reworked.

As such, Article L. 231-3 of the French Environmental Code
provides as follows:

The offense provided for in Article L. 231-1
constitutes ecocide when the actions are committed
intentionally
“.

The offenses provided for in Article L. 231-2,
committed intentionally, also constitute ecocide when they lead to
serious and lasting damage to health, flora, fauna or the quality
of the air, soil or water
“.

The penalties are “increased to ten years’
imprisonment
” and “4.5 million euros, this
amount can be increased to ten times the benefit derived from the
perpetration of the offense
“.

Harmful effects on health or damage to flora, fauna or
the quality of soil or surface or ground water that are likely to
last for at least seven years
” are considered
lasting.

Finally, the statute of limitations “starts runnig from
the time the damage is discovered.

Lastly, the limitation period for prosecuting this offense
starts running from the discovery of the
damage
“.

Conclusion

In the end, the scope of the offenses partially overlaps with
that of certain existing offenses: For example, the offenses of
water pollution and abandonment of waste in aquatic environments
(Article L. 216-6 of the French Environmental Code) or the offense
of abandonment of waste (Article L. 541-46, 4° of the French
Environmental Code).

Regarding the general time limit for pollution of physical and
biological environments, it is more a question of aggravating the
previous offense of pollution of aquatic environments and extending
it to air pollution, soil pollution being excluded.

The recognition of ecocide is mostly symbolic. Given the
required duration of the effects (7 years) and the intentionality
requirement (which will be hard to characterize), one can imagine
that this offense will be difficult to establish.

It should be noted that for the offenses described above
(provided for in Articles L. 173-3 and L. 231-1 to L. 231-3 of the
French Environmental Code mentioned above), the court may, in
addition to fine and imprisonment, also require the convicted
person to proceed with the restoration of the natural environment
within the framework of the procedure under Article L. 173-9 of the
said Code (Article L. 231-4 of the French Environmental Code).

It should finally be added that Article 288 of the Climate and
Resilience Law established a legal framework for the Bureau of
Investigation and Analysis of Industrial Risks (Bureau
d’Enquêtes et d’Analyses sur les Risques
Industriels
 or “BEA-RI” in French) which had
been created following the Lubrizol accident in September 2019.


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