When environmental liability becomes personal: What ecocide means for directors
Corporate fines are painful. Criminal charges against individual executives are career-ending. Boards need to understand where personal liability begins and what it takes to demonstrate genuine due diligence.
The shift from organisational to personal
There is a particular quality of attention that corporate governance issues attract when they become personal. Climate risk, biodiversity loss and environmental liability have been discussed in boardrooms for years – but largely as organisational risks. As long as the exposure was framed in terms of fines, regulatory sanctions and reputational damage to the company, it was possible to treat them as management issues to be delegated downward. Ecocide law changes that entirely. The criminal frameworks being enacted across Europe and proposed at the International Criminal Court are designed to reach the individuals who make decisions – not just the legal entities that bear the consequences of them.
This shift is not accidental. The architects of ecocide law have been explicit about why individual criminal liability is essential to the framework's purpose. Administrative fines, however large, are absorbed into corporate cost structures. They are provisioned for, insured against and in some circumstances passed on to customers. Criminal liability for individuals cannot be provisioned for or insured against. It cannot be delegated to a subsidiary. It attaches to the person who made the decision and its consequences are personal and permanent.
The legal architecture of personal liability
The EU Environmental Crime Directive requires that criminal liability attach to persons in leading positions within organisations. The legal test in most of these frameworks centres on knowledge. The phrase that appears consistently in ecocide legislation is 'committed with knowledge that there is a substantial likelihood of severe and widespread or long-term damage.' This is not a test of intent to cause harm. It is a test of informed decision-making in the presence of documented risk.[1]
A non-executive director who sat on an audit or risk committee when environmental management systems were discussed and who failed to probe the adequacy of those systems, is not necessarily protected by the corporate veil. The Ecocide Law Alliance has confirmed in published guidance that the law is aimed at 'those most powerful players in industry and government, where a lack of responsibility and failure to adhere to existing regulation or rights frameworks can result in entire ecosystems being threatened or destroyed.'[2]
The role of non-executive directors
Non-executive directors occupy a particularly exposed position in this new legal environment. Their traditional defence – that they rely on management representations and are not responsible for operational decisions – is inadequate when the risk in question is well-documented, legally prescribed and the subject of explicit regulatory guidance. A non-executive director's duty of care requires them to bring independent judgement to bear on material risks facing the organisation. Environmental liability under ecocide-comparable standards is now a material risk in any jurisdiction subject to the EU Directive or to comparable national law.
This does not mean that every non-executive director needs to be an environmental lawyer or an ecosystem scientist. It means that they need to be able to ask the right questions: Is our environmental management system independently certified? What is the scope and quality of our third-party assurance? Has the board received independent advice on our ecocide exposure, not just a management briefing? Are there activities in our operations or supply chain that a prosecutor or regulator could characterise as causing widespread or long-term environmental damage? If the answer to any of these questions is unclear, that is itself a governance failure.
D&O insurance and its limits
Directors and officers insurance provides important protection for civil claims, but its relevance to criminal liability is limited. Most D&O policies explicitly exclude coverage for criminal acts or deliberate wrongdoing. As environmental criminal liability expands through the EU Directive and national implementing legislation, the assumption that D&O insurance provides a safety net for environmental governance failures needs to be revisited. Boards that have not reviewed their D&O coverage in the context of the emerging ecocide framework – specifically in relation to what is and is not covered under criminal proceedings – are operating with a risk management blind spot.
What documented due diligence looks like
The defence that is available – and it is a real one – is documented due diligence. A director who can demonstrate that they ensured appropriate environmental management systems were in place, that those systems were independently verified against recognised standards such as ISO 14001, that they received credible third-party assurance over the organisation's environmental performance and that they acted on what the evidence showed, is in a fundamentally different position to one who relied on self-reported management assurances and never looked behind them.
The documentation of that due diligence matters as much as the diligence itself. Board minutes that record the questions asked, the assurance reports reviewed and the actions taken in response to identified risks are the contemporaneous evidence of governance quality. Directors who take environmental governance seriously but do not document that they have done so are in a weaker position than their conduct warrants. In any legal proceeding, the record of what the board did is as important as what it decided.
Personal liability in environmental law is not new. What is new is the criminal standard, the expanding definition of what constitutes serious environmental harm and the increasingly sophisticated legal and scientific infrastructure for attributing that harm to named decision-makers. Boards that are not actively reviewing their environmental governance against this new standard are accumulating personal risk they may not yet be able to see.
References
[1] Pohlmann & Company, 'Bill to Amend Environmental Criminal Law by Implementing the Ecocide Directive' (6 November 2025). https://www.pohlmann-company.com/en/bill-to-amend-environmental-criminal-law-by-implementing-the-ecocide-directive/
[2] Ecocide Law Alliance, 'Questions and Answers on Ecocide Law' (March 2025). https://www.ecocidelawalliance.org/wp-content/uploads/2025/03/QA-on-Ecocide-Law_March_2025.pdf