INTRODUCTION

Writing about environmental protection policy entails referring to the relationship between human beings and the environment, as well as the implications of the market-based anthropocentric model of decision-making. The legal texts of many international and national organisations reflect this perspective, trying to protect the environment while exclusively keeping human beings at the centre and disregarding the role and relevance of our environment.

Damage to the environment (well exemplified by the dramatic consequences of climate change: droughts, floods, desertification, etc.) is embedded in the age of globalisation, a context not only of new risks but also of commodification, privatisation and massive manipulation of natural resources. In this sense, it is necessary to remember that the main environmental damage has its origin in legal commercial and/or industrial activities and that the most serious environmental damage is not illegal.

Moreover, the doctrine has affirmed that a large number of environmental crimes are committed as a result of enterprises and managers not having enough knowledge of the multiple regulations that protect the environment; people also do not consider environmental crimes to be the most serious crimes.

In the same way, it could be said that the Lisbon Treaty does not establish legal direct competencies in criminal law such the European Union has influence over Member States legislation via the European criminal policy. This European criminal policy is reflected in Directives 2008/99/EC and 2009/123/EC and it is worthwhile to point out some features of these two legal texts: on the one hand, they do not contain a definition of environmental crime, although all the criminal codes of the Member States have as an element of the environmental crime illegal behaviour under administrative law; on the other hand, the two Directives use vague terms such as “substantial damage” and “negligible quantity”, among others, and this may lead to less protection in Member States that have a low level of protection.

In this chapter, an effective, Spanish environmental policy for enterprises will be presented. This effective environmental policy consists in two main points: on the one hand, the consistency and cohesion between Articles 339 and 340 of the Spanish Criminal Code (SCC) and Legislative Act 26/2007 regarding environmental restoration and protection; and on the other hand, access to environmental justice for environmental non-governmental organisations (ENGOs) and the participation of these organisations in the development and monitoring of environmental criminal compliance programmes.