France New Ecocide Legislation: A Step Forward or a Missed Opportunity?

Ecocide refers to the destruction of the natural environment by deliberate or negligent human action.^[1] In recent years, there has been growing concern about the need to address ecocide by holding corporations and individuals accountable for environmental harm caused by their activities. This article provides an updated overview of the legal situation in France regarding ecocide which has been, in its recent developments, praised as much as criticized. 

LEGAL FRAMEWORK 

While the French Environmental Charter, incorporated into the French Constitution, recognizes the right to a healthy environment and imposes a duty on the State to protect it^[2], no concrete legal means were in place, until recently, to prosecute ecocide perpetrators.  

On August 22^nd, 2021, the law n° 2021-1104 known as the “Resilience and Climate Law” has provided a new “ecocide offence” codified in Article L. 231-3 of the Environmental Code and integrated into the French Criminal Code. This provision, in vigor since August 25^th of the same year, provides that an ecocide offence is characterized when committed “intentionally”^[3] and when it leads to “serious and lasting damage to health, flora, fauna or the quality of the air, soil or water.”^[4] The article defines “serious and lasting damage” as “likely to last for at least seven years”.^[5]  

This offense is punishable by a prison sentence of 10 years^[6] and a fine of 4.5 million euros which can be increased up to ten times the benefit derived from the commission of the offense.^[7] 

FIRST ECOCIDE CASE IN EUROPE

Three months following the introduction of ecocide within the French legal framework, the first complaint was filed by ten civil parties residing in Grézieu-la-Varenne, a small town near Lyon. The residents discovered that their homes had been built on the site of a former industrial laundry highly contaminated by trichloroethylene (TCE), a highly carcinogenic volatile solvent. TCE was found in the groundwater and in the houses of the residents, exceeding the tolerated level by hundreds of times.^[8] As a result, the prefecture prohibited the consumption of tap water and urgently rehoused some residents.^[9] 

The complaint was filed “against X” which enables the victims to uphold their rights even if perpetrator’s identity is unknown. This also triggers an investigation phase which has been assigned to the health division of the Marseille judicial court in order to uncover the authors of the facts.^[10]  Although these have not yet been identified, the company under indictment is the Mercier company also known as “the laundry of Lyon”, created in 1959. The company's use of TCE had already been flagged in reports during the 1980s.

The legal issue at stake in this case is whether the requirements for the newly created offense of ecocide have been fulfilled, including the criteria of intentionality and durability. Although the 1980 reports provide support for the fulfillment of both criteria, it remains to be seen what the outcome of the court's decision will be, which will set an important precedent for future cases involving ecocide.

The Grézieu-la-Varenne ecocide case holds great significance as it is among the earliest examples of the ecocide offense being enforced in both France and Europe. It also showcases the impact that community-led initiatives can have in advocating for environmental action.

SHORTCOMINGS 

The initial critique of the new legislation is that it is not as protective as the original proposal. In fact, on June 19, 2020, the Citizens' Climate Convention submitted a report recommending the inclusion of the crime of ecocide in the Constitution.^[11] This was the second request, as the first attempt in 2019 failed to pass through Parliament. The Convention proposed that "any action that causes serious ecological damage by exceeding planetary limits, committed knowingly and which could not be ignored, constitutes a crime of ecocide."^[12] However, the new legislation disregarded the reference to the nine planetary limits within the definition. The National Assembly's report stated that the concept of planetary limits was too general to be compatible with the precision requirements of criminal law.

The second criticism is directed towards the narrow definition of ecocide, which could create challenges in providing evidence. The legislation stipulates that there must be proof of significant and long-lasting environmental damage, which could be be highly complicated to prove in reality.

The third criticism is that the introduction of the ecocide offense in French law can be perceived as a deceptively ambitious step forward especially when viewed from an international standpoint.  Indeed, the notion of ecocide as a crime has been under discussion at the global level for the past decade.^[13]Although the offense provides the benefit of augmenting existing penalties, it falls short of the more comprehensive measures that are being debated at the European level.^[14]. Indeed, the European Parliament voted in favor of a resolution that recommended adding it to the International Criminal Court's list of four most serious crimes, including genocide, crimes against humanity, war crimes, and aggression.^[15] In contrast, by treating ecocide as an offense or misdemeanor, rather than a crime, France appears to be significantly reducing the gravity of the offense.

* * *

The introduction of the ecocide offense in French law is undoubtedly a positive development in the fight against environmental crimes. However, it falls short of the ambitious standards set by international bodies and environmental organizations. While it is commendable that France has taken a step forward by recognizing ecocide as an offense, it is imperative that France, along with other nations, continues to work towards implementing robust legal frameworks to safeguard the environment and hold accountable those who cause severe ecological damage.

ASR

^[1] Ecocide, Oxford Languages Dictionary, https://www.oed.com/ecocide, (last visited, Mar. 20, 2023).

^[2] 1958 Const. (Environmental Charter), art. 1 (Fr.), https://www.legifrance.gouv.fr/contenu/menu/droit-national-en-vigueur/constitution/charte-de-l-environnement 

^[3] Code de l’Environnement [C. Envir] (Environmental Code) art. L231-3 §1 (Fr.), https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000043961215 

^[4] See id. §2. 

^[5] See id. §5.

^[6] See id. §3.

^[7] See id. §4.

^[8] Richard Shittly, Houses built on the polluted soil of a former laundry: the first case of ecocide comes to court, Le Monde, Oct. 14, 2022. 

^[9] Id. 

^[10] Soil pollution in Grézieu-la-Varenne: whose fault is it? (BFM Lyon television broadcast Oct. 28, 2022). 

^[11] Convention Citoyenne pour le Climat (Citizens' Climate Convention), Legiferer sur le crime d’ecocide (Legislation Proposal on the crime of ecocide), https://propositions.conventioncitoyennepourleclimat.fr/pdf/pr/ccc-senourrir-legiferer-sur-le-crime-d-ecocide.pdf 

^[12] Id. at 5.

^[13] The first country to criminalize ecocide in its law was Vietnam in 1990, following the use of the herbicide "Agent Orange" as a weapon of war by the US. Since then, a dozen others have followed although having never used it, such as Russia, Armenia and Georgia. Debates are currently underway in other countries, such as Brazil, Argentina or Bolivia, to criminalize environmental offences.

^[14] e.g., Belgium is introducing the crime ecocide into Belgian criminal law and with the principle of universal jurisdiction, the Belgian tribunal will be able to judge a crime of ecocide committed anywhere in the world. 

^[15] Report on the proposal for a directive of the European Parliament and of the Council on the protection of the environment through criminal law and replacing Directive 2008/99/EC (Mar. 28, 2023), https://www.europarl.europa.eu/doceo/document/A-9-2023-0087_EN.html#_section1