Issues of Liability for Air Pollution Under the Criminal and Administrative Laws of Russia

Provisions of the criminal and administrative laws of the Russian Federation on liability for air pollution are analyzed in the article using the formal-legal method. It is noted that these provisions contain shortcomings of both sectoral (related to criminal or administrative law separately) and intersectoral (affecting the two mentioned branches of law) nature. Among the sectoral shortcomings, the authors single out, above all, the excessive generalization of the wording of the disposition of Article 251 of the Criminal Code of the Russian Federation, in accordance with which criminal liability should follow any air pollution in violation of the pollutants emission rules, regardless of the amount of such pollution and the scale of damage. In addition, the authors stress that only the actual infliction of harm is criminal in accordance with Article 251 of the RF Criminal Code (the accomplished fact of air pollution). At the same time, Article 247 of Chapter 26 of the RF Criminal Code (Violation of the Rules for Dealing with Environmentally Hazardous Substances and Waste) shows a different, more appropriate (in the authors' opinion) approach to establishing responsibility for an environmental crime: liability is provided for both real harm and the threat of causing harm. The authors state that fixing liability for creating the threat of harm in Article 251 of the RF Criminal Code would strengthen the precautionary significance of this provision. At the intersectoral level, the authors note that the dispositions of articles that establish liability for air pollution (Article 251 of the RF Criminal Code and Article 8.21 of the Code of Administrative Offenses of the Russian Federation) are confusingly similar: there are no clear criteria in the laws to classify an environmental offense that caused harm to atmospheric air as an administrative or a criminal offense, unless an offense is associated with harm to human health or life. The consequence of this confusion is the inconsistency of judicial practice, the analysis of which showed that actions that resemble in composition can be classified both as criminal and administrative offenses; the former in practice are of an insignificant number (1-2 sentences under Article 251 of the RF Criminal Code per year). Attention is drawn to the measures of punishments imposed for the commission of such offenses - the fine under Article 8.21 of the RF Code of Administrative Offenses may be multiple times more than the fine under Article 251 of the RF Criminal Code. At the same time, the authors note that fines under the RF Code of Administrative Offenses are imposed, first of all, on legal entities, while fines imposed on individuals are generally consistent with "criminal" ones. Based on the conducted research, the authors propose to clarify at the legislative level the quality of atmospheric air indicators, which are necessary for assessing the conditions of the environment, disclosing the harm fact and determining its characteristics. Taking into account such indicators, it is advisable to form a methodology for assessing real harm (including social harm) from air pollution using an ecosystem approach, and it is this methodology that should underlie the differentiation of liability for the commission of any environmental offense.

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