Kevin Jon Heller, The Crime of Ecocide in Action, OPINIOJURIS (June 26, 2021)

In this blog, Heller evaluates whether the wantonness requirement of the definition of ecocide “would be likely to produce outcomes (ecocide/not ecocide) that comport with our intuitions about what kinds of environmentally damaging acts should be criminalized.” In order to illustrate his point, Heller uses an hypothetical and evaluates whether “authorizing ‘a massive new coal field and a massive new coal fired power plant’ in ‘an industrialized country’ qualify as ecocide under the IEP definition.” Heller argues that the definition of ecocide should use an objective test (“a reasonableness standard”) rather than a subjective one when applying a “anthropocentric cost-benefit analysis to lawful acts.” As such, judges would have to examine circumstantial evidence to determine whether a CEO “consciously disregard[ed] the likelihood that the project’s costs would clearly exceed its benefits.” Moreover, the judges would have to be convinced that a CEO “did know that the project was unjustified.” Lastly, Heller argues that ecocide should not treat lawful and unlawful acts in a different manner.