The law of August 22, 2021 on combating climate change and strengthening resilience to its effects (known as the "Climate and Resilience" law) translates some of the 146 proposals made by the Citizens' Climate Convention (or CCC), in order to reduce greenhouse gas emissions by at least 40% by 2030, in line with the European objective.

This multi-faceted law includes a criminal component to strengthen the repressive structure of environmental law. The law has been designed to strengthen the scale of existing penalties and to complete the legal arsenal in order to prevent and punish environmental violations more firmly and effectively.

First, the law modifies article L. 173-3 of the Environmental Code and increases the penalties applicable to the acts provided for in articles L. 173-1 and L. 173-2 of the same code when these acts cause serious and lasting damage to health, flora, fauna or the quality of the air, soil or water (articles 279 et seq. of the present law).

In addition, the law creates an office for the investigation and analysis of industrial risks, similar to the one that exists for aeronautical matters. This office will make it possible to investigate the causes and consequences of the most important accidents, similar to the Lubrizol affair (art. 288 et seq. of the present law).

At the same time, an offence of endangering the environment is created in article L. 173-3-1 of the Environmental Code. As a result of this provision, persons having exposed the environment to a risk of lasting degradation of the fauna, flora or water will be liable to a fine of €250,000 and three years' imprisonment. The amount of the incurred fine can be raised to the triple of the advantage drawn from the commission of the offence. This obstacle offence thus comes to penalize the persons adopting a dangerous behavior although the pollution did not take place.

Among the main innovations that deserve particular attention, the legislator has created a general offence of pollution of the environment and ecocide, the consecration of ecocide in the judicial arsenal has caused much ink to flow. A key measure of the CCC, which wished to establish an offence to punish the most serious environmental violations, proposed to integrate the concept of the crime of ecocide into the law under the following definition: "constitutes a crime, any action that has caused serious damage by participating in the obvious and significant overstepping of planetary limits, committed with the knowledge of the consequences that would result and that could not be ignored" (Citizens' Climate Convention, Legislating on the crime of ecocide). However, such an adoption was criticized by the Conseil d'Etat, which considered that such an addition concerned facts that had already been sanctioned and consequently ran the risk of unconstitutionality
In the end, the National Assembly preferred to opt for a general offence of pollution, with penalties modulated according to the intentionality of the perpetrator, and an "ecocide" offence, the definition of which has been revised.

Thus, article L. 231-1 of the Environmental Code punishes the fact, in clear violation of a particular obligation of prudence or safety, provided for by law or regulation, to emit into the air, to throw, to spill or to let flow into surface or underground waters or into the waters of the sea within the limits of territorial waters, directly or indirectly, one or more substances whose action or reactions lead to serious and lasting harmful effects on health, flora or fauna is punishable by five years' imprisonment and a fine of one million euros, which may be increased to five times the benefit derived from the commission of the offence.
However, two exceptions are provided for, this article does not apply:

- with regard to emissions into the air, only in the case of exceeding the emission limit values set by decision of the competent administrative authority;

- with regard to authorized discharge operations and the use of authorized substances, only in the event of non-compliance with the requirements set by the competent administrative authority.

Article L. 231
-2 of the Environmental Code punishes the fact of abandoning, depositing or causing to be deposited waste without complying with the prescriptions concerning the characteristics, quantities, technical conditions of taking charge of the waste and the treatment processes implemented, when they cause a substantial degradation of the fauna and flora or the quality of the air, soil or water, are punishable by three years of imprisonment and a fine of 150,000 €.

Article L. 231-3 of the Environmental Code defines ecocide.
Thus, the offence provided for in article L. 231-1 of the environmental code constitutes ecocide when the facts are committed intentionally. The offences provided for in article L. 231-2 committed intentionally, when they lead to serious and lasting damage to health, flora, fauna or the quality of the air, soil or water, also constitute ecocide.

The penalties are increased to ten years imprisonment and a fine of 4.5 million euros, which can be increased up to ten times the benefit derived from the commission of the offence.
At the same time, the legislator has clarified the contours of the offence by specifying the concept of lasting effect. Thus, "harmful effects on health or damage to flora or fauna lasting at least seven years" are considered to be lasting.

Finally, the starting point of the prescription period for public action runs from the discovery of the damage. This staggered starting point makes it possible to postpone the date of prescription in order to ensure the effectiveness of the proceedings.

Although the new law does not enshrine the crime of ecocide, it should be noted that article 296 specifies that within one year of the promulgation of this law, the government will submit to Parliament a report on its efforts to have ecocide recognized as a crime that can be tried by international criminal courts.

In terms of environmental criminal law, the search for immediate restoration measures and rapid and dissuasive sanctions must be taken into consideration in the context of this debate, in order to effectively prevent and punish any environmental damage. Our national jurisdictions have an essential role to play in this matter. The recent adoption of the Judicial Convention of Environmental Public Interest with the law of December 24, 2020 will play a driving role in punishing these offences.