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*Article originally published on the portal O Eco

The climate emergency is undeniable. The planet is undergoing climate changes that are already affecting all life on Earth, including human life. There is also no doubt that human action is the predominant, if not the only, factor triggering drastic changes to the planet's climate.

The emission of billions of tons of carbon monoxide into the atmosphere, wars, increasing deforestation and degradation of native vegetation in all biomes, the growth of extensive monocultures of agricultural commodities, pollution and overuse of river water, large-scale mining and the unbridled use of pesticides, among others, are human actions that degrade the environment and put our existence at risk.

The most effective way to address this problem is to profoundly change the way the hegemonic society reproduces its way of life. In other words, it is necessary to rethink how food and agricultural products are produced, change individual and mass transportation modes, drastically reduce the quantity and change the forms of energy distribution and consumption, among many other actions already mapped out by studies. 

In other words, if humanity really wants to continue living, it needs to overcome capitalism. The climate crisis is, at its core, a crisis of the capitalist system. But this task is not at all simple.

Penal populism

Among the actions that are not difficult to adopt, precisely because they do not challenge the capitalist way of life, are crimes and punishments. Criminal law exists in capitalism to be used in an ostentatious, extensive and profound way to guarantee the freedom of some to exchange products, exploit nature and labor. 

Now, imprisoning, for a long time, those who degrade the environment without authorization from the State, would fulfill the essential and undeclared tasks of criminal law in capitalism, and at the same time, would generate a sense of combating the causes of the climate emergency. 

But, unfortunately, reality, the Arts, Biological Sciences and Law have already demonstrated that the penal populism of establishing new criminal types and increasing sentences is absolutely ineffective for the declared purposes for which it is intended.

On the one hand, because a large part of the problem of the climate crisis does not lie in illegal actions. Pesticides, mining, deforestation, overuse and pollution of water, extensive monocultures and large-scale mining, among others, are activities that can and are legally developed. 

However, despite these activities being carried out legally, based on environmental licensing procedures, the law is not capable of preventing or significantly limiting the impacts of these activities on the environment. All of these activities, among many others, are legal under the law and degrading to the planet.

But it is clear that curbing illegal actions that degrade the environment is necessary, as residual and punctual support for strategic actions. Illegally degrading the environment causes damage, as does the mass degradation promoted by humanity under the blessing of the Law.

However, the question that arises is to assess the negative impacts, and possible positive ones, of increasing penalties in the environmental crimes law to help curb the abuses that increase the climate emergency.

At the outset, especially from the perspective of critical criminology, it is possible to say that the intention of PL 3339 / 24 – which increases the penalties for those who commit environmental crimes – is good on the surface, but not very effective on the ground in police stations and courts. It will have little and residual impact on situations that affect those who hold political power and capital. But it will have a significant impact on quilombolas and traditional peoples and communities.

Unequal weight of the law

Increasing penalties for environmental crimes may seem like a quick, fair and effective solution. But it is necessary to question how these measures will be applied. Major environmental degraders, such as farmers, land grabbers, miners and all transnational corporations, have the means and resources to avoid severe punishments. 

Those responsible for the crimes against the environment, such as the collapse of the dams in Brumadinho and Mariana, were not held criminally liable due to the lack of criminal charges or the meager sentence imposed for the crimes provided for by law. The same can be said about the oil spill in the Campo basin in 2011 and the massive fires that occurred in Brazil in 2024.

Criminal types, such as organized crime, and legal grounds for keeping in preventive detention those who ordered or carried out criminal acts of arson, with a major impact in 2024, are available to the police, the Public Prosecutor's Office and the Judiciary. 

And there is always the possibility of improving mechanisms, especially investigation mechanisms, to obtain robust evidence of the crimes committed and of the people and institutions involved in the actions. It would be possible, and desirable, to carry out intelligence actions that prevent crimes and provide robust evidence for criminal proceedings. It would also be desirable for the imposition of embargoes in degraded areas to be effectively monitored when they are not complied with. 

But even if the ineffectiveness of criminal prosecution is disregarded, the legislator could make more effective changes, such as establishing aggravating factors that were related to actions that have significant potential for harm due to their characteristics, such as in cases of crimes committed through material competition, with the use of explosives or pesticides, through the promise of payment, for a futile or vile reason or due to the extent of environmental damage.

However, simply increasing penalties, as provided for in Bill 3339/24, will end up severely penalizing traditional peoples and communities, while those responsible for major environmental degradation will continue to use selective criminal methods to continue degrading the environment without being punished with even the slightest severity. The few cases in which a major environmental degrader is penalized will be just one example of the limits and contradictions of criminal law.

Traditional communities, such as quilombolas, who manage biodiversity sustainably will end up being criminalized for practices that, although beneficial to the environment, are stigmatized, misunderstood and criminalized. Practices that science and traditional knowledge indicate are important for environmental conservation are viewed by the state, especially by the police forces, as degrading activities.

In other words, the indiscriminate increase in penalties could lead to the criminalization of vulnerable populations that depend on natural resources to survive, such as quilombolas and indigenous peoples. Instead of solving the environmental problem, this measure could deepen socio-environmental injustices and increase environmental racism.

Law enforcement must consider the differences between large-scale degraders and sustainable activities of traditional communities. This may seem obvious, but this is not what happens in police stations and courts. In these spaces, the law that affects quilombolas does not usually affect farmers. 

In the not-too-distant future, we will see quilombolas being arrested for building a wooden canoe or for creating a small slash-and-burn crop. Their sentences will be more severe, since many of these communities have their territories overlapped by Conservation Units.

What about the big polluters? They will continue to make money, but some of that money will go to excellent law firms.