The Crime of Ecocide in Action

In my previous posts on the crime of ecocide — Post 1, Post 2 — I argued the theoretical/normative case against the IEP’s decision to subject lawful acts to anthropocentric cost-benefit analysis via the “wantonness” requirement. In this post, I want to bracket the issue of whether the definition of ecocide should distinguish between lawful and unlawful acts and question whether the wantonness requirement could actually work — ie, whether it would be likely to produce outcomes (ecocide/not ecocide) that comport with our intuitions about what kinds of environmentally damaging acts should be criminalized.

To do so, we need a hypothetical. The IEP’s definition does not include a list of acts that should be considered ecocide, and the commentary does not provide examples. Fortunately, in a recent press conference, Philippe Sands did the work for us:

“I’m loath to mention any particular examples, but the authorization, for example, in an industrialized country of a massive new coal field and a massive new coal fired power plant without properly taking into account impacts on the climate system, I think, could arguably come within this definition,” Sands said.

I think this is a perfect hypothetical, because I imagine most environmentally-aware people are horrified by the prospect of more coal production. So would authorizing “a massive new coal field and a massive new coal fired power plant” in “an industrialized country” qualify as ecocide under the IEP definition?

For sake of argument, let’s imagine that the industrialized country is Australia, where I’m currently living. Australia is the fifth leading country in the world for coal production and the second leading country for coal exports. So the hypothetical isn’t that hypothetical. Let’s also stipulate, in order to hone in on the unlawful/lawful distinction, that operating the proposed coal field and coal-fired power plant would involve a substantial likelihood of causing either widespread or long-term severe damage to the environment (it’s almost certainly both) and that the perpetrator — the CEO of the coal company — was aware of that substantial likelihood when he authorized the project.

Is the CEO guilty of ecocide? I don’t know of any binding rule of international law, conventional or customary, that would prohibit building a new coal field and coal-fired plant in Australia. And it’s obvious that Australian law does not prohibit new coal projects, given that — as the Financial Times has reported — a massive expansion of the notorious Glencore mine in New South Wales was recently approved, at least “23 applications for new developments with the potential to produce 98m tonnes a year of coal” are currently under consideration, and authorities recently commissioned a feasibility study for a new coal plant in Queensland.

Our hypothetical coal project, then, is entirely lawful. So the CEO’s decision to approve the project is not ecocide simply because he approved it even though he knew it was substantially likely to cause widespread or long-term severe environmental damage. His decision must also have been “wanton.” The criminality of his decision thus turns on whether he acted with “reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated.”

There are two important issue here. The first is whether the likely environmentally damage from the coal project would be “clearly excessive” in relation to its anthropocentric benefits. The answer is more complicated than it might appear. On the one hand, the Minerals Council of Australia loves to tout the supposedly vast economic benefits of coal production:

The industry employed around 50,000 workers in 2019 with another 120,000 indirect jobs supported by the coal industry.

In 2018-19 Australia exported 210 Mt of thermal (energy) coal worth $25.9 billion and 184 Mt of metallurgical (steel-making) coal worth $43.6 billion.

The Australian coal industry paid over $6 billion in royalties in 2018-19, including:

• Queensland – $4.4 billion
• New South Wales – $1.9 billion
• Victoria – $69 million

The Australian economy continues to rely on coal as a source of affordable, reliable electricity. For example, coal supplied 68.6 per cent of electricity to the National Electricity Market in 2019, gas 9.1 per cent, hydro 6.7 per cent and variable renewable energy (wind, solar farms and solar PV) 15.9 per cent.

On the other hand, those economic benefits obviously have to be compared to the damage caused by coal. That coal power is terrible for the environment is beyond doubt (see, for one of hundreds of examples, this Explainer from the Union of Concerned Scientists), and it’s particularly damaging here in Australia, as this article from The Guardian indicates:

Australian coal-fired power stations are allowed to produce levels of toxic air pollution that would be illegal in the US, Europe and China, and may exceed even the lax limits imposed on them with few or no consequences, according to an investigation by Environmental Justice Australia.

The report reveals evidence that operators of coal power plants in Australia have been gaming the systems that monitor the deadly pollution, while others have reported figures the federal government says are not reliable.

EJA’s investigation reveals further cases of allegedly misleading behaviour. In Victoria, regulators are investigating one case in which a representative of a coal power plant allegedly said it regularly “simplifies” reporting during periods of excessive pollution by just reporting the figure allowed by its licence, rather than the actual amount.

[snip]

Researchers at EJA collected the individual pollution limits allowed for 10 of Australia’s 17 commercially operating coal-fired power stations, chosen for their high levels of pollution and proximity to populated areas.

Standardising the limits for comparison and collating them with regulations in the US, Europe and China, they found that in almost all cases Australian coal power plants were allowed to emit more toxic pollution.

Mercury emissions compared particularly badly. Coal-fired power is the second biggest Australian source of mercury, which accumulates in the environment, causing significant harm to people.

Some coal-fired power plants in New South Wales were allowed to emit 666 times what would be allowed in the US, and 33 times what is allowed in the EU and China.

It’s also important to note that coal power also has serious anthropocentric costs that have to be factored into the proportionality analysis. Here, for example, is Environmental Justice Australia discussing coal-fired plants:

Coal-fired power stations’ failure to install life-saving pollution controls costs Australians around $2.4 billion in health costs annually, warn actuaries, economists and lawyers.  

In a new report released today, a team of volunteer actuaries modelled the economic cost of the health impacts of air pollution from coal-fired power, finding that the health bill last year alone amounted to $2.4 billion on conservative estimates, or more than two-thirds of federal government spending on the COVID healthcare package. 

The actuaries’ analysis, prepared for Environmental Justice Australia, follows last week’s release of peer-reviewed research, finding that poor regulation of toxic pollution from Australia’s coal-fired power stations is causing approximately 800 premature deaths, 14,500 asthma attacks and 850 babies to be born with low birthweight. Supporting other studies, the report finds 2.1 million Australians are exposed to toxic pollutants from coal-fired power plants.  

Coal-fired power stations are among Australia’s biggest sources of air pollution and our ambient air pollution exceeds the World Health Organization’s recommended thresholds. Our regulatory standards lag significantly behind most other countries, including China, the United States and the European Union.  

Coal–fired power station emissions can cause or worsen heart disease, stroke, lung cancer, low birthweight babies, and Type 2 diabetes. 

The environmental damage caused by coal power would seem to indicate that the economic and social benefits of coal are nowhere near significant enough to justify our hypothetical coal field and coal-fired power plant. But that conclusion comes with an important caveat: namely, that the proportionality analysis would focus on the costs and benefits of the specific hypothetical coal project, not on the costs and benefits of coal generally. That is a very different analysis, and one that is far from straightforward. The prosecution would have the burden to prove that the the project was disproportionate, and I think it would struggle both to rebut the inevitable defense claims concerning the expected economic and social benefits of the project and to prove that the anticipated environmental damage was large enough to be clearly excessive in relation to those benefits. (The latter, of course, will be a challenge in all ecocide prosecutions, because the lawful/unlawful distinction only matters when the act in question involves a substantial likelihood of causing widespread or long-term severe environmental damage.)

To be sure, developing the requisite proof would not be impossible. But it would clearly require the prosecution to present significant expert testimony about both the costs and the benefits of the coal project — testimony that would be countered by the defendant’s own experts. So the case would almost certainly devolve into a battle of experts, with the verdict being left in the hands of judges with little economic or scientific training.

For sake of argument, let’s assume that the prosecution could establish that the environmental damage expected from the hypothetical coal project would be clearly excessive to the anticipated economic and social benefits. That still doesn’t mean the coal CEO committed ecocide by approving the project. We must still address the second — and even more important — issue that is inherent in the wantonness requirement: namely, whether the CEO “recklessly disregarded” the project’s clear excessiveness. As I noted in my first post, recklessness is a subjective test. Because it is subjective, the CEO had to be consciously aware that the environmental damage expected from the coal project would be clearly excessive to the anticipated economic and social benefits when he approved the project. If he did not have such awareness — whether because he didn’t think about the issue, because he underestimated the environmental damage, or because he overestimated the economic and social benefits — he would have to be acquitted. And he would have to be acquitted no matter how grossly negligent his assessment (or failure to assess) might have been. That is why I suggested in my first post that if the definition of ecocide does need to apply an anthropocentric cost-benefit analysis to lawful acts, the test should be objective — a reasonableness standard — instead of subjective. An objective test would not only require perpetrators like the CEO to contemplate the possible excessiveness of their development projects, it would also prohibit them from assessing the costs and benefits in an unreasonable way. (Which seems highly likely, given that ecocide defendants like the CEOs of coal companies are almost certainly inclined, as a result of their backgrounds and work cultures, to understate the costs of development and overstate the benefits.)

To be sure, judges would not have to simply accept the coal CEO’s claims (“I had no idea the coal field and coal-fired plant would be so destructive; I just focused on bringing 2,000 high-paying jobs to an impoverished part of Australia”). They could and would examine the circumstantial evidence — environmental-impact assessments; internal communications between corporate officers; etc. — and decide for themselves whether the CEO did indeed consciously disregard the  likelihood that the project’s costs would clearly exceed its benefits. But the judges would still have to reach a conclusion about the CEO’s mental state; it is Criminal Law 101 that a finder of fact cannot infer subjective awareness from negligence. In other words, the judges could not simply say to themselves,”no reasonable person could think this project was justified, so the defendant must have known that it wasn’t.” They would have to be convinced on the basis of the relevant evidence that, in fact, the CEO did know that the project was unjustified. A fine difference, but an absolutely critical one in the context of a criminal prosecution.

I genuinely have no idea whether judges would convict the hypothetical coal CEO of ecocide for approving the hypothetical Australian “massive new coal field and a massive new coal fired power plant.” I’d like to think they would, because I fall squarely on the “coal is evil” side of the debate. But it would hardly be absurd for them to acquit, given the complexity and uncertainties of the IEP’s definition of ecocide. And that is the point of this post. I don’t believe that ecocide should treat lawful and unlawful acts differently, nor do I believe that lawful acts should be subjected to an anthropocentric cost-benefit analysis. But even if you accept both aspects of the IEP’s definition, you should be concerned that the wantonness requirement will simply not work in practice. Given the problems of proof that inhere in the cost-benefit analysis and the subjective nature of “reckless disregard,” that requirement is likely to acquit at least some ecocide defendants who deserve conviction — defendants who, like our hypothetical CEO, approved a development project despite knowing that it involved a substantial likelihood of severe environmental damage that is either widespread or long-term.