Environmental liability of executives in business context
By Tim Bleeker
Published on January 31, 2023
Corporate environmental crime is a structural problem with serious consequences. If an environmental violation occurs in a corporate context, usually only the legal entity is held liable. Natural persons within the company are then kept out of harm's way.
However, the legal entity does not write its own environmental policy and does not itself carry out environmentally harmful activities: the environmental violations are actually committed by people within the company. Ultimately, it is up to executive officers to supervise compliance with environmental regulations. Therefore, it may be reasonable to hold executives personally liable for environmental violations in addition to or instead of legal persons.
In his PHD thesis "Environmental liability of executives", available (in Dutch) in open access, defended at Utrecht University in 2021, Tim Bleeker examines the criminal, administrative and private law options for sanctioning an executive for an environmental violation in a corporate context. From each jurisdiction, it examines what types of rules exist for environmentally harmful activities of companies, and to whom these rules are addressed. Furthermore, the thesis provides insight into the application of criminal, administrative and private law culpability requirements in the context of corporate environmental violations. It also considers the sanctions that can be attached to a director's culpability. In addition, it considers for each jurisdiction whether there is reason to provide additional protection against environmental liability for persons in an executive position, for example in the form of a qualified intent requirement or an additional culpability test.
The doctoral research shows that executives themselves have environmental obligations. If an executive violates such an obligation, a preventive, remedial or even punitive sanction can be imposed on him under circumstances. The research studied both the grounds for environmental liability and the defences against it. The thesis thus contributes to a balanced and structured assessment of the personal liability of executives for environmental violations in a corporate context.