Allowing illegal logging defendants to purchase carbon credits needs prudence, clarity: experts

When someone is found guilty of illegal logging, the perpetrator may serve jail time and pay a fine for breaking the law. But what about the trees that could serve as carbon sinks that capture and store carbon dioxide?

Since 2020, Chinese courts have been exploring a new method: making purchasing carbon credits an option for the defendant in an illegal logging case to cover the loss in carbon sinks.

The topic has been brought up again at China's annual Two Sessions, a major political event in the country.

In March 2022, a resident surnamed Luo in Leishan County, southwest China's Guizhou Province, was charged with illegal tree felling after he cut down over 460 fir trees with an expired permit.

The court sentenced him to three years in prison, four years probation and a fine of 4,000 yuan (about $593). But that's not the end of the story.

In an experimental legal endeavor, the county's court proposed letting the defendant compensate for the loss of the trees as a carbon sink by buying carbon credits. Luo soon jumped at the opportunity and paid over 20,600 yuan (about $2,902) after the forestry department calculated the loss and converted it into financial payment.

The case became Guizhou's first to include carbon credits in the sentencing of an illegal logging case. Places in China have been testing the practice in similar cases since 2020.

As early as January 2015, the People's Supreme Court, China's highest court, issued a document allowing exploring alternative measures to make up for the irreparable damage to the ecological system and environment.

In June 2022, the court issued another legal interpretation document allowing the purchase of carbon credits as a way to remedy ecological damage starting June 15 that year.

However, the method, having been put into legal practice on multiple occasions across the country, is not without controversy.

The topic was discussed again at this year's Two Sessions, the annual meetings of China's national legislature and top political advisory body.

Li Shenglong, a member of the 14th National Committee of the Chinese People's Political Consultative Conference (CPPCC) – China's top political advisory body – submitted a proposal calling for a clearer definition of where the purchase of carbon credits should be applied.

In his proposal, Li acknowledged the importance of the method as a creative legal endeavor in restoring the ecological system and achieving the country's carbon neutrality goal by 2060 but pointed out that the current implementation mechanism is flawed and its application should not be expanded to other cases without discretion.

'Paying for leniency'

Yu Wei, director of the Research Center for Carbon Neutrality and Green Development at China Jiliang University, shared a similar concern in an interview with CGTN.

"Currently, the law only allows the purchase of carbon credits in principle, but the conditions for its application remain to be clarified," Yu told CGTN.

Yu believes that the method should not replace planting trees after an illegal tree felling and should only be used when planting trees is not an option either in the original location where the case occurred or other alternative locations. Otherwise, the defendant could take advantage of the method in exchange for more lenient punishment.

Li Shenglong's proposal also includes similar views.

"People are starting to see the problems," Yang Zhaoxia, director of the Ecological Law Research Center at Beijing Forestry University, told CGTN. 

"The practice of letting the defendant voluntarily buy carbon credits in exchange for less penalties to offset the ecological damage has some merit, but the standards are very hard to handle and could easily lead to allegations of 'paying for leniency,'" Yang said.

Practice outstripping theoretical and institutional foundation

"On the whole, the legal practice in purchasing carbon credits has been preceding its theoretical and institutional development, and there is a lot of catching up to do," Yu said.

Different places have used different calculations in cases that have included carbon credits in their sentencing. Experts say the lack of a nationally unified standard undermines the validity of the practice.

"There is no unified standard as to how to quantify carbon sink. The lack of it leads to chaos in practice," Yu said.

There have been discussions on whether the method should be expanded to other cases in ecological conservation, such as illegal poaching cases.

Both Yu and Yang objected to the idea in their respective interviews with CGTN.

"Illegal poaching and illegal fishing cases directly damage biodiversity, instead of the forests. Under such circumstances, how to restore the ecological system to remedy the damage is a question that needs caution," Yu said. "The application of carbon credit purchase should not be expanded blindly. Otherwise, it may lead to confusion in the public awareness of the matter."

Yang also believes the method should only be applied to cases directly related to damage caused to the forests as carbon sinks, not other legal violations.

"The practice of purchasing carbon credits should not be expanded to other cases, such as illegal poaching and illegal fishing cases, which have little relevance to the carbon sinks provided by forests. Buying carbon credits won't directly help restore the damage to biological diversity," said Yang.

Li, Yu and Yang all agree that the adoption of carbon credit purchase in handling illegal felling cases needs more consideration and more clarity in legislation, technicality and public participation.

The goal is to ensure that such measures could lead to the ecological restoration efforts needed and help achieve the country's carbon neutrality goal as part of the global effort to combat climate change.

(Cover image via CFP)