ENVIRONMENTAL CRIMES

Crimes against the environment and natural resources are regulated in arts. 325 to 331 of the Penal Code, which regulate different criminal modalities that we will see below.

Environmental pollution crime

In the first place, art. 325 of the Penal Code punishes the person who, in breach of environmental protection regulations, causes emissions, discharges, radiations, excavations, noise, vibrations or deposits in the atmosphere, soil, subsoil or water, as well as water catchments, provided that they may cause substantial damage to the quality of the air, soil or water, or to animals or plants.

The penalty associated with this crime is imprisonment of 6 months to 2 years, a fine of 10 to 14 months and special disqualification for a profession or trade for a period of 1 to 2 years. However, if these acts may seriously damage the balance of natural systems, a prison sentence of 2 to 5 years, a fine of 8 to 24 months and special disqualification for a profession or trade for a period of 1 to 3 years is imposed. In addition, if a serious risk to people’s health has been generated, the prison sentence is imposed in the upper half of the sentence, and may even be increased to the highest degree.

We are dealing with a blank criminal law, which requires, in order to determine whether or not a behavior is a crime, knowledge of the administrative regulations applicable to the specific case. According to the Courts, we are dealing with a crime of hypothetical danger or abstract-concrete danger, which does not punish a concrete result of danger, but a behavior suitable to produce danger for the protected legal good (in this case, the environment) (STS no. 610/2021 of July 7).

One of the most common cases of application of this offense is noise pollution. The Courts have condemned, for example, the owner of a nightclub that, for years, caused noise that exceeded the legally established limits, damaging the health of several neighbors.

Dangerous waste management crime

The offense of hazardous waste management punishes persons who, in violation of the law, collect, transport, transform or dispose of waste, or fail to adequately control these activities, and who may cause substantial damage to the quality of the air, soil or water, or to animals, plants or people, or may seriously damage the balance of natural systems. The applicable penalty is imprisonment of 6 months to 2 years, a fine of 10 to 14 months and special disqualification for profession or trade for 1 to 2 years (art. 326 of the Penal Code).

On the other hand, the shipment of a non-negligible amount of waste, in the cases provided for in European Union law on waste shipments, is punishable by a prison sentence of 3 months to 1 year, or a fine of 6 to 18 months and special disqualification for a profession or trade for a period of 3 months to 1 year.

Operation of hazardous facilities

Article 326 bis of the Penal Code punishes anyone who, in breach of regulations, operates facilities in which a hazardous activity is carried out or in which hazardous substances are stored or used, in such a way as to cause substantial damage to the quality of the air, soil or water, animals, plants or people, or to seriously damage the balance of natural systems. The penalty associated with this crime is imprisonment of 6 months to 2 years, a fine of 10 to 14 months and special disqualification for a profession or trade for a period of 1 to 2 years.

Aggravated modalities

When in the facts described above, any of the circumstances described below concur, the judge must impose the higher penalty in degree:

1. If the industry or activity operates clandestinely, without having obtained the required administrative authorization.
2. When the orders of the administrative authority to correct or suspend activities have been disobeyed.
3. Whether information on environmental aspects of the activity has been misrepresented or concealed.
4. When the inspection activity of the Administration has been obstructed.
5. If a risk of irreversible or catastrophic deterioration has been generated.
6. If illegal water abstraction occurs during a period of restrictions.

Criminal liability of legal persons

Crimes against the environment may generate criminal liability of legal entities. In that case, the penalty to be imposed on the responsible legal person shall be:

1. A fine of 1 to 3 years or double to quadruple the damage caused, if the crime committed by the natural person is punishable by more than 2 years of imprisonment.
2. Fine of 6 months to 2 years or double to triple the damage caused, in other cases.

Likewise, the judge may impose penalties of dissolution, suspension of activities, closure of premises, prohibition of future activities, special disqualification from obtaining public subsidies and aid and judicial intervention (art. 328 of the Penal Code).

Environmental malfeasance

The authority or public official who knowingly engages in any of the following conducts commits a crime of environmental malfeasance:

1. It reports favorably on the granting of manifestly illegal licenses authorizing the operation of polluting industries or activities.
2. In the course of its inspections, it silences violations of regulations or omits to carry out mandatory inspections.
3. By himself or as a member of a collegiate body, vote in favor of such concessions, knowing their injustice.

The penalty to be imposed is imprisonment of 6 months to 3 years, a fine of 8 to 24 months and special disqualification from public employment or office and from the exercise of the right to passive suffrage for a period of 9 to 15 years.

Damage to protected natural areas

In all crimes against the environment, the facts are punished with a higher penalty (imprisonment of 1 to 4 years and a fine of 12 to 24 months) if they occur in a protected natural area and any of its elements are seriously damaged (art. 330 of the Penal Code).

Reckless commission of environmental crimes

Finally, we must bear in mind that the crimes described so far are intentional crimes, i.e., they are punishable when committed intentionally (with knowledge and will to commit the offense). However, Art. 331 of the Penal Code also allows for the punishment of gross negligence or, in other words, when the perpetrator commits the crime by violating the most basic rules of diligence applicable to his field of activity. In this case, the lesser penalty is imposed.