Climate and Energy

How Latin America is using the law to fight environmental crime

Several countries are expanding laws and penal codes to target illegal activities that degrade nature, but many gaps remain
<p>Brazilian environmental agents identify deforested areas in the Pirititi Indigenous territory, in Roraima state, in 2018. Illegal deforestation is one of the biggest threats to the Amazon. (Image: <a href="https://flic.kr/p/27BCeuo">Felipe Werneck</a> / <a href="https://www.flickr.com/photos/ibamagov/">Ibama</a>, <a href="https://creativecommons.org/licenses/by-sa/2.0/">CC BY-SA</a>)</p>

Brazilian environmental agents identify deforested areas in the Pirititi Indigenous territory, in Roraima state, in 2018. Illegal deforestation is one of the biggest threats to the Amazon. (Image: Felipe Werneck / Ibama, CC BY-SA)

Environmental crime is said to be the fourth most lucrative criminal activity in the world. Data from Interpol shows that its most common forms – illegal deforestation, mining, fishing and wildlife trading – have become a huge global financial engine, which was estimated in 2018 to generate US$110-281 billion in illicit revenue each year.

Countries such as France and Belgium have made great strides in creating legal frameworks to curb these low-risk, high-profit environmental crimes, while the global Nature Crime Alliance was launched last year.

Latin America is particularly susceptible to crimes against nature because of its rich biodiversity and abundance of mineral resources. The region is now beginning to take important steps in disrupting the associated transnational criminal networks: Latin American governments are drafting laws that allow for harsher economic sanctions and even establish criminal liability.

Progress in the region

In recent years, Latin American countries have implemented a number of strong environmental laws and policies. Several countries, such as Venezuela and Brazil, have established a range of targeted regulations in the past two decades. Bolivia granted legal rights to nature in 2010, following the pioneering example of Ecuador in recognising constitutional environmental rights in 2008. The latter added specific environmental crimes to its penal code in 2020. In addition, about half of the countries in the region have created specialised environmental units to improve enforcement in the sector.

Despite this, most countries in Latin America still face difficulties in enforcing environmental laws and policies due to high levels of corruption, according to a report by the Chr. Michelsen Institute for Science and Intellectual Freedom (CMI). The report explains that in countries such as Bolivia, Mexico and Honduras, for example, bribes from illegal timber traffickers to police are common. It warns such corruption can lead to “selective or biased” enforcement of environmental laws, such as targeting small-scale offenders rather than the most powerful. Political interference or suppression of judicial or police work are other risks.

Where effective law enforcement is lacking, Latin American countries are seeking to change and strengthen environmental protection and its accompanying legal framework.

Daniel Barragán observing forest fires below from aircraft
Daniel Barragán, Peru’s former defence minister, surveys an area affected by forest fires in the Apurímac region in 2022 (Image: Ministério de Defensa del Perú / FlickrCC BY)

Uruguay provides an example of this change happening. Environmental crime does not currently appear in its penal code, which is why penalties for illegal conduct in this area are limited to fines or administrative mechanisms, such as the decommissioning of businesses. But after years of discussion, in 2023 the Uruguayan senate finally approved a bill incorporating such crimes into the country’s penal code. Currently pending approval in the lower chamber of the parliament, the bill criminalises air, water and soil pollution, contamination by toxic waste, and crimes against biodiversity and environmental management. Prospective prison sentences range from three months to 12 years.

According to Gerardo Amarilla, the undersecretary of Uruguay’s environment ministry, this bill will be a turning point for environmental defence: “In recent times, people have been asking us [to formalise] the concept of environmental crime, because it has to be a dissuasive or even punitive measure, in the case of very serious matters.”

Chile is another country updating its regulatory framework in the face of growing environmental crime, making significant progress. To provide a sufficient response to social and political demands, in mid-2023 the government approved a reform of its penal code that includes environmental crime for the first time. It also widens the scope of criminal responsibility to include, for example, state companies, and has made elements of ecocide – any kind of activity that knowingly causes significant environmental harm – a criminal offence.

Diálogo Chino spoke to Ezio Costa, executive director of the Chilean environmental justice NGO Fima. Costa says “there is currently concern” about the new law among many companies that are suddenly facing severe fines, but adds that such measures are necessary to enforce environmental compliance.

While welcoming the reforms, Costa acknowledges prosecution of environmental crime is “still difficult” for several reasons: it requires training of prosecutors who will specialise in these crimes; the presentation of evidence “is always very complex in environmental matters”; and the standard of proof in criminal trials is much more demanding, as fines under Chile’s penal code tend to be more severe than those of administrative sanctions.

Colombia has also sought to change its environmental regulations, passing the Environmental Crimes Law in 2021. In addition to criminalising deforestation, it also creates five other environmental crimes – including wildlife trafficking, illegal appropriation of wastelands and the financing of such activities – and applies stricter criminal penalties.

In 2008, Peru implemented a law that modified its penal code to punish crimes against the environment and natural resources with up to 10 years in prison. Similar debates are also taking place in Mexico, which is currently developing its first protocol on environmental justice. In Brazil, President Lula’s government aims to reverse the critical environmental situation in the Amazon rainforest through policies such as the PPCDAm, an action plan to counter deforestation with powers including firm enforcement measures.

At the regional level, the Amazonian governments – Bolivia, Brazil, Colombia, Ecuador, Guyana, Peru, Suriname and Venezuela – have highlighted the need for greater regulation of environmental crimes at various international summits. The Amazon region is actively affected by the illegal activities of transnational criminal organisations, including drug trafficking, logging, mining and cattle ranching in the rainforest. A report last year found that crime groups are active in 70% of municipalities in the borderlands of Brazil, Peru, Colombia, Ecuador, Bolivia and Venezuela.

group of people handling manatee
Brazilian authorities return a manatee to its natural habitat in Pará state. The Amazon region is affected by various illegal activities, including wildlife trafficking. (Image: Vinícius Mendonça / Ibama, CC BY-SA)

An outlier?

One of the countries in Latin America lagging furthest behind in terms of environmental regulations is Argentina. It currently has no specific legislation on environmental offences in the criminal sphere, and no courts to judge them. This is particularly relevant, for example, to Argentina’s high levels of deforestation. In 2023, 126,000 hectares of land (approximately 176,470 football pitches) were cleared in the country’s north, which is the most affected area according to a Greenpeace report.

Argentina’s penal code, sanctioned in 1921, makes no direct reference to the environment. The code only punishes the degradation of nature through property law. For example, if a person causes a forest fire that damages property or causes deaths, they can receive up to 10 years in prison. There is nothing in Argentine law that addresses ecosystem damage.

For Facundo Ríos, a lawyer and professor of natural resources law and environmental protection at the University of Buenos Aires, Argentina is a country of rhetoric rather than action when it comes to environmental law: “There are very good bills, several under discussion in Congress, but there is little political consensus for them to move forward.”

Challenges ahead

Year after year, environmental crimes in Latin America – particularly illegal logging – represent a severe problem. As cited in the CMI study, in 2017 it was estimated that 50-90% of the timber exported from Latin America had illegal origins. Furthermore, a 2020 report by The Global Initiative Against Transnational Organized Crime established links between illegal logging in Mexico and international drug-trafficking groups.

Due to the region’s rich biodiversity, wildlife crime – the illegal capture, trading, smuggling, poaching, or collecting of endangered species – is another major problem. Costa Rica, for example, recorded “about 354” confiscations of animals in the first six months of 2019. In the same year, 20 Latin American countries adopted the Lima Declaration on Illegal Wildlife Trade and committed to measures aimed at curtailing wildlife crime.

The illegal dumping and transport of hazardous waste also plagues this part of the world – the CMI report describes Latin America as a destination for toxic waste from developed countries. As for illegal mining, the Amazon is considered a hotspot: over 2,300 sites across six Amazonian countries were documented as of 2020. The CMI report warns of a “strong link” between illegal mining and organised crime groups in Latin America.

While fresh environmental regulation is welcome news, the scale of the problems it must address suggests the region will face many challenges in implementing new legal frameworks. Enacting and prosecuting these laws will require, for example, securing adequate finances and navigating resistance from the business world.

Chile’s Ezio Costa says there has been “a certain resentment” from some economic stakeholders as the country’s legislative agenda progresses – they worry what it could mean for their activities. Similar reactions have emerged in Uruguay, says Marcelo Cousillas, who directs the environment ministry’s legal department.

Undaunted, Cousillas says improving environmental regulations is increasingly essential for countries participating in the global economy: “Exporters and investors look for places that also offer environmental guarantees.”