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Antonio Vercher (Tavernes de la Valldigna, Valencia, 1953) has been in charge of the Prosecutor’s Office specializing in the environment and urban planning for almost two decades, from where he leads the actions of the Public Ministry in matters of ecological crimes. He has just published the book Environmental Crime and Companies (Marcial Pons, 2022), in which he collects his extensive experience investigating the different forms of aggression against nature. In the volume, he takes a tour of the progress of this legal discipline and warns of the risks of new phenomena such as the green washing of image promoted by some companies, the so-called greenwashing, or the challenge of waste treatment.
Vercher receives elDiario.es in his office on Calle Ortega y Gasset in Madrid, a spacious room with a large window overlooking the wealthy area of the capital. From there he coordinates the work of the more than two hundred prosecutors specialized in the fight against damage to the environment and wild urbanism. Currently, more than a thousand convictions are handed down each year for crimes against the environment, urban planning, forest fires and mistreatment of domestic animals.
He affirms in his book that if environmental issues are characterized by something, it is not only because of its breadth, but also because of the speed with which it evolves. You have been in charge of this Prosecutor’s Office since it was created in 2006. What evolution have you seen in this time?
Since 1922 —which is when the first Penal Code dates— until now there has not been any criminal figure where so much progress has been made. The first reference that we have to the environment conceptually speaking is in the Regulation of Annoying, Unhealthy, Harmful and Dangerous Activities, of 1961. In 1978 an environmental regulation appeared in the Constitution and in 1983, with the law of Urgent and Partial Reform of the Code Criminal, article 347 bis appears [que regula el delito ecológico]. Since then she has gone from practically nothing to forty articles.
Pressure from community institutions has caused companies to be criminally prosecuted for crimes against the environment since 2010. More than a decade later, what is your assessment of this penal change? How has it influenced?
There is not enough jurisprudence to be able to present an evident or clear perspective regarding the evolutionary process. In addition, the casuistry is brutal. Sometimes it gives the impression that the judges, in order not to complicate their existence, condemn the legal person and leave the natural person alone, sometimes it happens the other way around. But the important thing is that the judiciary is responding. In the first phase, from 1983, the first ruling issued by the Supreme Court is in 1990. That is, seven years later. From that moment we went to sentence per year. And now every year the trend is 1,200 annual convictions and barely 300 acquittals.
Do you see more awareness in this regard by companies? It is the companies that have the greatest influence on everything environmental, according to what he says in his book.
In one way or another, most companies have activities that affect. My impression is that, at first, there was a certain impact, we had a fairly powerful approach with the first sentence that was a conviction of a large multinational company that at that time was state-owned [Endesa]. But then we have been seeing that the business context has been tempering.
What is it referring to?
For example, in the Pavlov case [un procedimiento sobre contaminación en una zona en Rusia] It is the Administration that has not exercised its authority when it comes to bringing order. If it had done so, it would not have degenerated and we are seeing that a lot too. The first thing that worries me is establishing a contrast between the right to business activity and the right to the environment, which also in Spain is not among the fundamental rights. I lean towards the perspective of pre-eminence because the jurisprudence of the Court of Justice of the European Union in many cases leans towards the environmental perspective over the strictly economic one. And the European Court of Human Rights (ECtHR), from the case Fredin v. Sweden [de 1991] it also clearly favors the environment over corporate interest.
Would it change much if the environment was considered a fundamental right?
Hierarchically, it would acquire greater importance and be taken into account more. For example, the Ecuadorian Constitution, even more than considering it a fundamental right, grants legitimacy to nature. In the Advisory Council of European Prosecutors we prepared a report last year in which we established rules of conduct to be followed for all prosecutors in the field of the environment and incorporated principles such as the possibility of granting legitimacy to nature.
In his book he says that “with more than certain frequency” the complicated organizational schemes of the companies allow them to escape their responsibility and avoid possible sanctions. Is there still impunity for companies?
That doesn’t have to surprise you. Anyone who may be criminally liable tries to evade. In addition, in this country we have an unwritten principle that is the defendant’s right to lie. In other words, what they are doing is exercising a right, although it is one thing for an individual to make use of that right and another thing for an entire company to do so. First, because the capacity for environmental damage that a company can produce, theoretically, is greater than the damage that an individual can cause.
In recent years, products or consumer goods that are defined as green, non-polluting have proliferated. It is what is defined as greenwashing. Is a more demanding regulation needed to avoid confusing the public? In the end, sometimes, a shadow of doubt is cast on all green products as a whole.
It is not well regulated, evidently. I imagine it will end up happening. With this type of initiative, confusion is introduced to the public by offering as environmental something that may even be the antithesis of environmental.
Was the law on financial information and diversity, passed in 2018, a missed opportunity for it?
Don’t know. I don’t have a formed opinion. But the body asks me not to legislate much more in the environment. There are some 20,000 environmental administrative regulations in Spain.
In the previous decade we experienced a wave of illegal construction that ended with more than a million convictions. But the memory of the Prosecutor’s Office highlights the difficulties in executing the demolitions of illegal buildings. Why is so complicated?
We are trying to do our bit in the sense that the prosecutors also assume the issue of execution [de las sentencias en los casos de demoliciones]. We have the problem that when this Prosecutor’s Office was designed, everything seemed logical, correct, sensible and coherent. But with the passage of time, we have realized that we have fallen totally short. Because, for example, I cannot order the provincial prosecutor’s offices that the environmental prosecutors assume the execution of environmental sentences. We have functional capacity with respect to prosecutors, but not organic.
One of the most paradigmatic examples is that of El Algarrobico. The works stopped in 2006, 17 years ago, but it is still there on the beach. Doesn’t that create a certain sense of impunity?
Obviously, it would be much better if that had been demolished and we are recognizing that day in and day out. Now, the defeat would be if that was working, which it has not. What’s more, there is a form of sanction because there is a brutal economic investment that is paralyzed. It’s not that I’m being optimistic or pessimistic, I try to remain completely objective. But one has to be aware of what a matter as extraordinarily novel as this gives of itself. We have to be realist.
He has said in other interviews that waste treatment is one of the “main concerns” of the Prosecutor’s Office. Because?
Historically it is a subject that has not been given much importance. But there has been a time when this has begun to be regulated with very harsh legislation. And, as a consequence of that legislation, many countries have stopped accepting waste, which is returned. That is, we have the problem that they can no longer be sent [los residuos], that they are returned and that you have to manage that, which is expensive. And there are many companies that see this from a strictly business perspective.
Dealing with this is complicated because landfill fires start to break out and the legislation remains as it is. At the time, we were even asked to draw up a brief draft regulation for this type of fire that was processed, but that was left in the water of borage. These are approaches that have an important business component and that surely the passage of time and the evolution of events will introduce harsher elements in terms of treatment.
Last summer he sent a decree to prosecutors in the face of the ‘boom’ of prefabricated houses. What problem had he detected?
It’s crazy. We put out a press release in which we deny the existence of a legal vacuum. There is no legal loophole, everything is crystal clear: prefabricated homes are subject to planning permission and subsequent control. Since the beginning of this millennium, offenders have been sentenced and there are more and more convictions, but [algunas empresas que ofertan estos productos ] they don’t want to understand it.
How are the low emission zones working? Is it useful to use criminal proceedings in the most serious cases of non-compliance?
We had to close that because the Supreme Court said that that ordinance [del Ayuntamiento de Madrid, uno de los primeros consistorios en regular esas zonas] was void due to certain formal defects. Nothing can be done anymore because the administrative base had failed. There is a legal basis again [la Zona de Bajas Emisiones, que entró en vigor en diciembre de 2021] and what was done was to train the local police, because in illegal entries to these areas their competence should prevail. There are 149 cities that, in anticipation of European regulations, must comply with obligations on low emissions.
So we control 40 million vehicles. It can be done and we check it. Obviously, from the moment it becomes clear that it is possible to go through criminal proceedings, the attitude of the people will foreseeably be more controlled and more cautious in this regard and, foreseeably, there will also be fewer entries in areas where they are not can be entered, where entry constitutes an illegality.
