The public audit with environmental focus and the Environmental Tribute. Application and implementation in Cuba
Summary :The environmental audit, an evaluation tool for environmental management in companies, has insufficient legal regulations in the state sector, an incident in its purpose of environmental control in favor of an environmentally friendly company. Legal assumptions are argued from their historical, doctrinal and exegetical assessment, in order to perfect their legal order. The methods used were theoretical-legal, historical-logical, exegetical-legal, comparative law, and analysis and synthesis. As a result, legal budgets are formulated for its improvement in the state sector and other forms of management in the national economic context. Its purpose is to achieve sustainable development with the creation of environmentally friendly companies,that allow the balance between progress and nature.
Key words: environmental control, forms of management, sustainable development, environmental tax.
Summary :The environmental auditing, appraising tool of the environmental step at the companies, possess insufficiencies in the juridical sorting in the public sector, incident in your purpose of environmental control on behalf of the friendly company with the environment. They argument juridical budgets as from his historic, doctrinal and exegetic assessment, at the end of the perfecting of his juridical sorting. The utilized methods were the juridical theoretician, the historic logician, the exegetic juridical, the by right compared, and the one belonging to analysis and synthesis. As a result they formulate juridical budgets for his perfecting in the public sector and the other forms of step in the cost-reducing homeland context. His purpose is to achieve the sustainable development with friendly companies' creation with the environment,that they enable the equilibrium between progress and the nature.
Key words: environmental control, forms of step, sustainable development, environmental tribute.
By way of introduction
The appearance of the environmental audit within the control mechanisms meant a higher step in the order of comprehensiveness, aimed not only at economic efficiency but at the formation of the environmentally friendly company. Every time it represented promoting and verifying the proper optimization-legitimacy-rationality-competitiveness gear. Thus, this type of control is inserted among the stimulating factors of business formulas corresponding to the resolution of the contradiction at the core of economic models: unlimited individual and collective needs and limited material resources available to satisfy them, from a development sustainable.
It is true that the countries with the greatest industrial development were the standard bearers when implementing environmental auditing through methodologies and techniques in its execution within their legal systems. Its conformation is appreciated linked to historical, theoretical, doctrinal, legislative and cultural elements with the practice of the activity of auditing and social accounting, linked to social responsibility from 1953, from its epistemological search. Where the 70s of the 20th century point to the American business community as the first to apply it voluntarily in industries.
From the Environmental Law for its multidimensionality, it is appreciated how this audit is recognized as a management tool, since it minimizes the negative environmental impacts generated by human activity and is a strategy of the Public Administration to protect the environmental legal good, considered as a public good since the 80s, as a continuity of a process of institutional legal formation of the past century analyzed. (GORDILLO, 2006)
It is a reality that the Supreme Audit Institutions granted it the function of publicizing the pollution rates generated as a result of the industrial production of goods and services and thus stimulating the implementation of clean technologies, environmental management systems, and others. instruments in accounting matters, necessary to obtain environmental certification from the 90s of the last century. It is in itself a strategic response to the modification of consumption habits and lifestyles contrary to sustainable development, as negative effects of technological development and the economic-social transformations that have been implemented since the last century. We appreciate, as revealed then,the challenge of creating instruments and other tools that would make their application viable and allow a balance between advances in technology and the environment -progress-nature-
It is valued, as from 1990 studies began to be published from the legal sciences by authors of the stature of Caferrata, Carmona Lara, Martín Mateo and De Bessa Antunes, which reflect the analysis of environmental public policy, with the application of management tools to determine pollution levels, the requirement of environmental responsibility, the application of strategic environmental assessment, the quantification of environmental damage, environmental public services, environmental auditing, clean technologies, Environmental Management Systems and obtaining environmental certification to achieve benefits in domestic and foreign trade in more demanding trade barriers.
However, there are no studies from the legal-historical-doctrinal point of view on environmental auditing for the Cuban state sector, authors such as Viamontes Guilbeaux, Caraballo Maqueira, Rey Santos and Cánovas González have valued the audit within the tools of environmental management, but despite this, it has not yet been applied in most of the Cuban state sector by the supreme control body in the nation.
In Cuba, we also verify that some aspects of the environmental audit were applied factually through the environmental inspection, supported by the current administrative norms and the norms of the International Organization for Standardization 14000 and 19011 by the Ministry of Science, Technology and Environment, protected by Law No. 81 of 1997. But this is expressly recognized as a control activity in Law No. 107 of 2009 and its Regulations of 2011, being the latter who granted the letter of introduction in the ordinance Cuban legal. Its relevance is appreciated linked to the support of the systematic and accelerated introduction of the results of science,innovation and technology in production and service processes, taking into account the standards of social and environmental responsibility by companies in the Cuban state sector. It weighs on the performance and purpose of the audit, with the permanence of an aging industrial sector in its generality with more than 55 years of exploitation, obsolete and heterogeneous.
All of the above led the author to the scientific approach based on the insufficiencies in the legal order of the environmental audit for the Cuban state sector, an incident in its purpose of environmental control in favor of the environmentally friendly company for sustainable development. Consequently, legal assumptions on environmental auditing are proposed for the Cuban state sector based on its historical, doctrinal and exegetical assessment, in order to perfect its legal system.
History of environmental auditing in forms of management
At a global level, it is a reality that concern for the protection of the environment has grown in importance and magnitude in recent years as it has become a topic of interest to entrepreneurs, encompassing three dimensions: economic, social and environmental. It appears linked to industrial development, as an essential factor for the generation of resources that allow creating jobs and promoting environmental education as the basis of social welfare and quality of life, to achieve sustainable development as a goal of the Public Administration.
It has been developed in different countries, through a legislative construction initiated from Administrative to Environmental Law, conforming to Environmental Administrative Law; as the audit is recognized as one of the tools of environmental management (LOZANO CUTANDA, 2004). It is also a reality that man, with the use of technologies, has managed to industrialize and with it has brought environmental pollution for the adequate development of the human being. These factors will allow the evaluation of the effects produced by the contamination when distinguishing the natural from the industrial; accelerated from the Industrial Revolution in the European Union in the last century.
Thus, studies from the accounting doctrine and the ius environmentalist doctrine carried out in Ibero-America recognize environmental auditing as the management tool capable of evaluating and laying the foundations for environmental policies in companies and industries. of the environmental risks generated and evaluates their impact with the complement of other tools such as the Environmental Impact Assessment (ARISTAZABAL OSSA, 2010); It is practiced voluntarily or compulsory and its execution merges the priority objective of the company -get economic benefits linked to environmental protection-
Paccioli, with the well-known “double entry” method, shows us the evidence that since 254 BC the accounts were inspected and verified, a factor that allowed the parallel evolution of the activity of the Audit as a result of the practice of Accounting.
Already in the 20th century, when included within the legal regulations by the Public Administration, it is appreciated how the trinomial Accounting, Auditing and Law is strengthened, which allowed it to take on new dimensions as regulations to protect assets, typified the protection of the legal asset environmental, reflected in direct or indirect accounting. This legal institution has a causal link, the requirement of environmental responsibility and the quantification of environmental damages, with corporate social responsibility linked to the economy and environmental accounting within the forms of management. It has evolved over time in relation to the country that applies it and its technological development that it owns. Your connection,appears linked to the origins of ius environmentalism as part of the International Public Agenda; for this reason, the Supreme Audit Institutions point to 1969 as the beginning of its execution by the States that have practiced it.
The same, originated in the United States of America in the late 70s of the last century XX, appeared in order to assess the health of chemical companies in order to serve as a management tool for environmental management, before the increase and complexity of State and Federal legal regulations in the Nixon presidency. In the 1980s, it spread to the European Union through US subsidiaries based there. (MURAD ROBLES, 2009). In support of the Brundtland Commission's commitment in 1987, in formulating: "sustainable development that meets the needs of present generations without compromising the possibilities of future generations to meet theirs."
Its historical value, after being recognized by the Supreme Audit Institutions in 1995, justifies its relationship with Corporate Social Responsibility -environmental component-. In this decade, other new technological elements linked to International Trade are added, making it more complex, complete and dynamic on the part of the economic subjects that implement it; therefore, the techniques, methods and objectives of the audit as a control activity have evolved in a symmetrical way in order to meet and respond to new customer requirements from the 20th century to the present day in the goods market. and services, where the environment-friendly company appears in this scenario.
Its modern expression, coupled with its historical nature and contrasted evolution, is considered to be the evaluating tool of the Environmental Management System, as the key mechanism to obtain information on the effectiveness of the company's environmental management, by identifying the problems associated with Its work in the field of safety and work environment, new environmental challenges, propose prevention and mitigation measures, and is complemented by the environmental accounting review in the audited organization. The same, it is valued that it appears linked to the environmental problems of the 21st century, arisen as effects of the ecological crisis, before the increase in temperatures, the hole in the ozone layer, desertification, the accumulation of radioactive waste, the extension from diseases like cancer, malaria,the insalubrity of fresh water, food insecurity, urban pollution and the depletion of renewable and non-renewable resources, in relation to the mega environmental problems that are happening today in this century (ARNER GUERRE, 2013)
For this, the Supreme Audit Institutions, as the international subject that regulate it, identify it as the technical management tool to carry out the systematic, documented, periodic and objective evaluation of the effectiveness of the audited organization; management and environmental teams to protect the environment with better monitoring of environmental practices and evaluation. (ANTÚNEZ SÁNCHEZ, 2014)
The ISO 14001 and 19011 Voluntary Standards define it as:… “a systematic, autonomous and documented process to obtain audit evidence, it evaluates objectively in order to determine the extent to which the audit criteria are met.”…
Now, its regulation in the Cuban legal system appears when the Comptroller General of the Republic is created as the supreme control body, through Law No. 107, of the Comptroller in 2009 and this typology is regulated in its Regulations in 2010, this standard being your letter of introduction in public law.
It is corroborated that in the European Union, Latin America and the Caribbean, in relation to their legal systems, language, culture and economic-social reality, they indicate that this environmental assessment is capable of evaluating and laying the foundations for an environmental policy aimed at Entrepreneurs have the purpose of executing analysis of the environmental risks that could be generated in the performance of their activity and evaluating the environmental impacts generated. It is also appreciated by this author in the epistemological analysis, which appears linked to the concepts of Green Economy and Environmental Accounting, established by UNEP necessary to execute this type of audit by the auditors of the Supreme Audit Institutions and the Commercial Companies;It is also related to other management tools in its execution, to corporate social management and to environmental responsibility as it evolves in this 21st century.
The same, as a control tool is conceived in the legal systems that regulate it as an activity of control, public service, promotion and economic management. Since the concept of public service is a controversial concept, understood in different ways and changing depending on the political, economic and social circumstances of the States, in the case of this environmental assessment we appreciate how it is practiced by commercial companies to request from private entrepreneurs for their company to be valued and thereby obtain environmental certification. As a control activity - Police Administration - its recipients would be the organs, agencies, organizations and entities subject to the control actions provided by the Law,obliged to maintain internal control systems in accordance with their characteristics, powers and institutional powers. Its purpose is to maintain, control and evaluate the effectiveness of the system in the management instances. Its importance is to verify the application of State policies in the preservation of public finances and administrative economic control, in this case those aimed at protecting the environment (GORDILLO, 2006).
In the field of environmental protection, this type of control has continued to mutate over time, thereby evaluating the application of other incorporated control mechanisms, known as environmental protection techniques, carried out through internal control in the forms of management, the inspection, inspection, audit, environmental regulation, information and environmental education. In particular, those of environmental control are established through the environmental audit, the environmental police and the environmental supervision. As an economic management activity in this scenario, environmental tax appears as the mechanism used by the States to obtain clean development -Kyoto Protocol-, allows the polluter to pay, linked to the environmental discharge of the forms of management. Also appreciated,like environmental promotion, it is the stimulus for companies to be less polluting, it is regulated in Development Laws in legal systems. Also known as "green taxes or green tax reforms", used as market tools, which are applied to hybrid or electric transport, in the recycling of plastic bottles, in the control of forest deforestation, in the treatment of drinking water and waste. solid, to conserve biodiversity and the use of fossil fuels -modify the energy matrix-those that are applied to hybrid or electric transport, in the recycling of plastic bottles, to the control of forest deforestation, to the treatment of drinking water and solid waste, to conserve biodiversity and the use of fossil fuels -modify the energy matrix-those that are applied to hybrid or electric transport, in the recycling of plastic bottles, to the control of forest deforestation, to the treatment of drinking water and solid waste, to conserve biodiversity and the use of fossil fuels -modify the energy matrix-
Auditing, as a control activity for environmental public goods, allows entrepreneurs to establish an environmentally friendly company and is the counterpart to environmental inspection as it is more comprehensive. Since it reviews the implementation within the organization of the environmental accounting system through processes and procedures by the audit team and the observance of legality in relation to the established accounting and auditing standards. It is executed in accordance with the annual plan that forms the Supreme Audit Institution that regulates and controls it.
Its regulation appears as a legal institution after being recognized in the signing of International Conventions and Agreements with the Supreme Audit Institutions and International Organizations, integrating into the Constitutions of the States, in internal rights through legal regulations such as the Environmental Code, in the Organic Environmental Law, the Environmental Audit Law and in the Comptroller's Law. It is linked in its application by other legal regulations, in matters related to the Environmental Public Administration, Organic Administration, Environmental Management, Environmental Responsibility, Control of Environmental Pollution, Health, Water, and Wildlife, of the National Parks, of the Marine Corridors, in Agrarian dispositions and Municipal Ordinances, of Climate Change,among other.
It is complemented by the voluntary ISO standards, the EMAS and the provisions of the Supreme Audit Institutions in their execution. By demanding the responsibility of the audited subjects, their processing in criminal proceedings is carried out before Environmental Prosecutors, and the final solution of these conflicts is carried out in Environmental Courts (BURDYSHAW, 2011). As a management tool, it is linked in its execution with the principles of Environmental Law that are reported by the audit team, as it is a preventive, precautionary, cooperative action, of the polluter pays, of environmental impact assessment, of responsibility, citizen participation, intergenerational equity, progressivity and sustainability. It has continued to evolve with the application of other instruments that have been incorporated into it,with other regulations and tools, among which financial coverage through environmental insurance, tax incentives, environmental taxation, clean technologies and strict liability stand out. It is in turn interdisciplinary, transdisciplinary and multidisciplinary, as various science professionals - jurists, technicians and scientists - intervene in its execution, hence its multidimensionality is described.hence its multidimensionality is described.hence its multidimensionality is described.
In all this analysis, the guidelines that the regional trade blocs have been drawing up -UNASUR, MERCOSUR, ALBA, GATT, EUROPEAN UNION, Agenda 21, the Montreal Protocol, the Convention on Biological Diversity- are justified, these indicate the impact on the business decisions and their economic repercussion when environmental accounting is not implemented in most countries, which will allow to go from competitiveness to cooperation in these blocks. Where within the execution of this control activity, the concepts of environmental economics, the social persecution of the environment, the universal principles of Environmental Law and from the point of view of the generation of pollution must also be defined,they must define which are the responsibility of Nature and which for the activities of Man; These analyzes will allow acting in accordance with the law to pay for the damage in the evaluation carried out by the auditors to the audited forms of management.
The questions to be asked within the company to the businessmen, will allow obtaining the appropriate answers by the audit team regarding: Should the environmental protection legislation be obeyed by conviction or obligation? Why do the businessmen do it? Everybody does? Why does Environmental Law have to intervene? Regarding occupational health and safety, companies located in the country adequately comply with the legislation, contrary to what happens when they are sold to foreign entrepreneurs. That is why, we consider the accounting theme within this control action to be of great relevance, by allowing the entrepreneur to know the costs assigned to environmental protection in his company,to evaluate them through internal control and when an internal evaluation is requested through the environmental control activity with the -public audit-
The Elements of Environmental Auditing in their execution in forms of management
The subjective elements that are recognized in this administrative relationship are identified with the Auditor: certified auditors who belong to the Supreme Audit Institutions and to the Commercial Audit Companies - Enabling Title in the Register of Auditors - assisted by other institutions. Audited: forms of state and non-state management -technicians, jurists and scientists- Its objective elements would be the formalization of the audit through a public service contract, on a voluntary or mandatory basis, in its practice various audit teams will be integrated into the audit team professions of science and knowledge -Transversality-, is carried out to know the contamination rates, for its execution it will use an audit program, which concludes by delivering the report and the environmental certificate with the -ecolabel-.Its formal elements would lie in the initial notification of environmental control and the service contract, where the implementation of clean technologies -parameters-, voluntary ISO and EMAS standards, the guidelines and procedures of the Supreme Audit Institutions, the Environmental Management, Environmental Impact Assessment, and auditing standards and accounting principles.
The friendly company with the environment in the national mercantile scene
The United Nations Environment Program has considered the need to implement the environmental economy to achieve sustainability. What will contribute to the economic increase with sustainability patterns by allowing greater social inclusion, better human well-being and more opportunities for employment and decent work for all, with this, ecosystems will be kept healthy by using Environmental Management Systems; it is both an instrument and a tool for the Public Administration in making legal decisions -Environmental Paradigms-, aimed at the citizen in the protection of the environment and its natural resources in the construction of the environmentally friendly company -forms of management-
In Cuba, the studies carried out in 2013 by UNEP show that there has been no adequate legal construction of the concepts of economics and environmental accounting within the National Accounting System, which would allow the application in the state sector with the Environmental Audit to to form an environmentally friendly company and move from quality certification to environmental certification - sustainable development - which has been pondering over the past century. It is also a reality that, due to the crosscutting nature of the environmental issue and the influence within the legal systems analyzed in Latin America, the Caribbean and the European Union, the authors show that within the new constitutionalism, as an important number of provisions appear,referring to the concern for environmental protection and the promotion of sustainable development, by inserting environmental issues that start from the fundamental Laws from the last century to the present day with an interdisciplinary dimension, such as a human right to nature. These facts confirm the existence of participatory democracy by the citizen in environmental protection to promote environmentally friendly business. They allow us to point out the need to update Cuban legislation based on the constitutional norm, the environmental framework law and the substantive law linked to the country's environmental policy. At the same time, the work carried out by environmental NGOs is recognized.Those who demonstrate the conjuncture of participatory democracy from the new constitutionalism in Latin America, discernible in the Constitutions of Ecuador, Venezuela and Bolivia. (CAFFERATA, 2008)
These factors will play a role in achieving a balance between technological advances and the construction of an environmentally friendly company. With distinguished advantages in the application of effective and efficient Environmental Management Systems, the implementation of clean technologies to obtain less polluting productions to the environment, access to financial coverage through the environmental policy, the implementation of environmental accounting, compliance with environmental legislation and environmental policy, access to demanding markets by having more competitive products or the provision of services, improving the image and credibility of companies. (CONESA FERNÁNDEZ, 2003)
With limitations that would be the technological obsolescence of forms of management, industrial heterogeneity, the high costs of clean technologies and forms of organization. Hence, we declare that their importance lies in being non-polluting companies to the environment, which will obtain the environmental certification -ecolabel- according to sustainable development-competitiveness and the satisfaction of socio-economic needs with a minimum of environmental cost. (MARTÍN MATEO, 1994). However, the first dawn of environmental control in the Cuban nation is confirmed by the execution of the coordinated management audit of the water resources of the Vento and Almendares basins in 2014,in response to OLACEFS regulations regarding the new modalities of public audits aimed at environmental control of water resources, biodiversity and monitoring of climate change as a legal expression of public policies. (ANTUNEZ SANCHEZ, 2015) Today we see a new change of scenery which is valued as necessary in the second decade of the XXI of the company towards nature in order to preserve the human species and with it the biodiversity on the planet.2015) Today we see a new change of scenery which is valued as necessary in the second decade of the XXI of the company towards nature in order to preserve the human species and with it the biodiversity on the planet.2015) Today we see a new change of scenery which is valued as necessary in the second decade of the XXI of the company towards nature in order to preserve the human species and with it the biodiversity on the planet.
Public auditing with an environmental focus and environmental taxation. Application in Cuba in the forms of state sector management
Before going to analyze the Cuban tax regulation and in particular the environmental one, it is necessary to lay foundations on the reality of the 21st century which shows us the deterioration of the environment, recently generated a great debate on the need to adopt certain policies prosecutors that help to modify behaviors of the forms of management increased to levels not permissible or adequate, where through the recognized environmental taxation this as the set of taxes whose tax base has a significant environmental relevance, which finds its constitutional basis in the duty of public powers to protect the environment and discourage actions that contribute to its deterioration.
Faced with this reality, humanity is increasingly aware of the scarcity of natural resources and the fragility of ecosystems, and has decided to act in consequence of the preservation of the species. Therefore, this awareness is perhaps a product of the consequences derived from ignoring the physical limits of our planet in economic decisions at the micro and macro levels. With the increase in the average temperature of the Earth it has brought deadly consequences for the inhabitants of some parts of the planet: the heat wave in Europe in 2003, the precipitation in the form of snow in Hawaii, the melting of the poles, the loss 14% of the world's reefs in the last 19 years, etc. as evidence of said phenomenon. These,among other events of greater or lesser scale have been observed over the past three decades and have led to rethinking the relationship between humans and nature.
For the Latin American and Caribbean region the situation is very particular. This region has great natural wealth, which unfortunately has been under significant pressure due to the strategies used to overcome the situation of poverty and inequality in which its population lives. Some figures indicated in the Report of the United Nations Environment Program. Therefore, climate change, loss of biodiversity, environmental deterioration, emergencies caused by natural disasters, water scarcity and rapid urbanization make urgent firm and decisive changes in environmental management, but in particular in the integration of the same in the development programs of the countries. (UNEP, 2010b: 5)
This author appreciates that with environmental taxation applied as the instrument that will contribute to the rest of the environmental and energy policy measures, and that it should not only allow compliance with the principle of who pollutes pays from Environmental Law, but should encourage the realization of behaviors that reduce pollution, or discourage polluting activities, departing from figures that exclusively obey a collection purpose. With the Second World War, many States began to put on their agendas the problems derived from environmental degradation and deterioration. Thus, the increasing concern for nature and its conservation made it necessary to move from a defense based on ethics and aesthetics to the more pragmatic field of economic reflection (NAREDO, 2006).
To do this, in an effort to respond to this demand from society, and in the face of the indisputable void left in almost a century of predominance of marginal economic thought, two paths were drawn from which to return to the theme of nature and its resources: the First, it consisted of extending to the elements of the physical environment, the same economic logic based on valuation in terms of costs, prices and monetary benefits, using traditional methodology and instruments; The second consisted of applying the knowledge of the natural sciences to the management of the environment of human beings, which implied circumscribing economic processes and considering them as a subsystem within the biosphere, subject to its laws and restrictions (NAREDO, 2006).
The first of these approaches is that of environmental economics, which is nothing more than the response of the current neoclassical paradigm to the need to incorporate the services provided by ecosystems to economic decisions and policy design. From this point of view, natural resources continue to be a source of materials but require particular management because they have different characteristics from the goods produced by industry: their use produces externalities that must be considered within economic processes. Therefore, an optimal rate is sought, either extraction or insertion in the physical environment. All this is done from the same principles and with the same methodology of traditional economic analysis, that is, through market mechanisms.Its main objective is to assign a monetary value to the impact of production and consumption processes on nature, as well as to the goods and services that it provides in such a way that economic agents can incorporate this information into their decisions. Such corrections in the markets make it possible to carry out the traditional cost-benefit analysis –among other evaluation methodologies– and thus avoid several of the problems of pollution and excessive exploitation of the environment. In other words, the environmental economy “(…) channels all its efforts to put prices on 'externalities' in order to reduce problems to a single monetary dimension and, finally, apply cost-benefit analysis to arrive at supposedly objective solutions. ”(NAREDO, 2006).as well as the goods and services that it provides in such a way that economic agents can incorporate this information in their decisions. Such corrections in the markets make it possible to carry out the traditional cost-benefit analysis –among other evaluation methodologies– and thus avoid several of the problems of pollution and excessive exploitation of the environment. In other words, the environmental economy “(…) channels all its efforts to put prices on 'externalities' in order to reduce problems to a single monetary dimension and, finally, apply cost-benefit analysis to arrive at supposedly objective solutions. ”(NAREDO, 2006).as well as the goods and services that it provides in such a way that economic agents can incorporate this information in their decisions. Such corrections in the markets make it possible to carry out the traditional cost-benefit analysis –among other evaluation methodologies– and thus avoid several of the problems of pollution and excessive exploitation of the environment. In other words, the environmental economy “(…) channels all its efforts to put prices on 'externalities' in order to reduce problems to a single monetary dimension and, finally, apply cost-benefit analysis to arrive at supposedly objective solutions. ”(NAREDO, 2006).Such corrections in the markets make it possible to carry out the traditional cost-benefit analysis –among other evaluation methodologies– and thus avoid several of the problems of pollution and excessive exploitation of the environment. In other words, the environmental economy “(…) channels all its efforts to put prices on 'externalities' in order to reduce problems to a single monetary dimension and, finally, apply cost-benefit analysis to arrive at supposedly objective solutions. ”(NAREDO, 2006).Such corrections in the markets make it possible to carry out the traditional cost-benefit analysis –among other evaluation methodologies– and thus avoid several of the problems of pollution and excessive exploitation of the environment. In other words, the environmental economy “(…) channels all its efforts to put prices on 'externalities' in order to reduce problems to a single monetary dimension and, finally, apply cost-benefit analysis to arrive at supposedly objective solutions. ”(NAREDO, 2006).environmental economics “(…) channels all its efforts to put prices on 'externalities' in order to reduce problems to a single monetary dimension and finally apply cost-benefit analysis to arrive at supposedly objective solutions” (NAREDO, 2006).environmental economics “(…) channels all its efforts to put prices on 'externalities' in order to reduce problems to a single monetary dimension and finally apply cost-benefit analysis to arrive at supposedly objective solutions” (NAREDO, 2006).
The second approach, the ecological economy emerges as a response to all the criticism towards the environmental trend. It is characterized by being transdisciplinary, since it was founded on the idea of uniting two groups of academics: the ecologists, trained in the falsificationist methodology of the natural sciences, and the neo-classical economists trained in logical positivism (SPASH, 1999). In Kuhn's terms, ecological economics could be considered a scientific revolution or a paradigm shift. One of the points of greatest disagreement between environmental economics and ecological economics is the origin of the value of the elements that make up nature. In this regard, several questions arise: what is it that can be valued? Who and how are these values assigned? For it,Due to the lack of consideration of the physical limits in the economic system, as mentioned above, consumption and production decisions do not take into account the consequences that they may have on third parties that had nothing to do with making those decisions; such effects are known as externalities (GRIFFITHS and WALL, 2004) and can be positive or negative. The analysis of the environment and natural resources from the economy also goes on the side of public goods. In the case of environmental problems, the negative externalities generated affect public goods or services such as the atmosphere, water sources, forests, etc. As they are non-exclusive goods or services, by definition,Free riding problems are generated because there is no direct incentive for individuals to contribute to their maintenance. This means that, without state intervention, the market will provide a lower quantity (lower quality) of said goods than would be socially desirable. Here it is important to mention that this condition does not yet include other ethical or ecological principles.
Thus, the State can make use of various environmental policy instruments. On the one hand, there are the command and control measures, which refer to regulations through legal regulations (limits, prohibitions, operating licenses, specification of product requirements, etc.). On the other hand, there are market mechanisms or economic instruments, so called because they seek to “correct” the prices of goods and services so that they incorporate the social cost, in addition to the private cost, incurred in their production or consumption; Examples of these are environmental taxes and negotiable emission permits. This classification does not imply in any way that environmental policy opts for one type of instrument or another; both generally complement each other.
Faced with this problem, we appreciate that within economic instruments, fiscal policy can play an important role in achieving certain environmental objectives, through two channels: the collection of taxes and the use of public funds. The first of these, taxes, acts through the change in the incentive structure of households and companies, which affects consumption, investment and production decisions. The second, government spending, influences not only through recurring costs but also through investment in infrastructure, support for technological development, the promotion of sectors aimed at protecting or improving the quality of the environment, or reducing the negative impacts of activities economic (UNEP, 2010a).
That is why fiscal policy traditionally has three roles: allocation, distribution and stabilization. Environmental taxation adds one more objective to these: the penalization (motivation) of certain behaviors in order to contribute to environmental policy. This new objective is “extra fiscal” since it does not focus on State financing, although this is an advantage that is achieved with the application of certain measures such as green taxes or the auction of negotiable emission permits. Before moving on to the specific topic of environmental taxes, it is worth mentioning that the concept of environmental taxation takes into account the environmental impacts of the current tax system and possible reforms. In that line,Any attempt to "green" fiscal policy must necessarily go through an evaluation of the effect of existing structures on the environment.
Thus, among the fiscal instruments that could be applied in environmental policy are: taxes, which can be created for environmental or collection purposes but which fall on the substance harmful to the environment or on goods whose use is directly related to the polluting substance; charges and fees for the use of natural resources or the environmental services they provide, which are intended to cover the operating costs of the services (such as the provision of water or waste management) or some program that controls the abuse and pollution generated; tax incentives such as tax spending (reduced fees, exemptions, accelerated depreciation), subsidies or grants. Usually,Such incentives are aimed at promoting activities with positive environmental externalities (ACQUATELLA, 2005). Of all these policy tools, due to the scope of this study, the following section analyzes the tax issue in more depth.
From a legal point of view, environmental taxes in general are forced payments from the private sector to the State, for which there is no consideration by the latter. Environmental taxes, or green taxes, are those that fall on polluting goods or services. More generally, the Organization for Economic Cooperation and Development notes that an environmental tax is one whose tax base is a physical unit, or an approximation that has a proven specific negative impact on the environment. However, there are other definitions that take into account the objectives of the taxes as well as their effects, rather than the taxable base.
It is also recognized that environmental taxes, from a theoretical point of view, arise with the proposal of the economist Arthur Pigou (1920), who raised the need for state intervention in the presence of discrepancies in the marginal social and private benefits. Although Pigou did not speak specifically about environmental externalities, his analysis allowed subsequent application to this topic. Thus, a tax that collects the monetary value of environmental damages would correct this failure since it internalizes the external costs caused by polluting activities; the optimal rate would be that which makes the private marginal cost coincide with the social marginal cost. Thus, the "corrected" prices would allow an "optimal" level of contamination, other than zero, to be reached, of course.Pigouvian taxes are the basis of the traditional vision of environmental economics and, therefore, their only desire is to seek economic efficiency by correcting externalities.
From this formulation the “polluter pays” principle was born, which has governed the environmental policy of OECD countries since 1972, and, later, that of the entire international community in line with the doctrine of Environmental Law. Although they are market tools, environmental taxes are accepted by the ecological economy, although with more reservations about their benefits. For a tax to be ecological, it must have a close relationship between what it seeks to correct and the tax base; Its objective should not be to collect but to encourage behavioral changes (“extra fiscal” purpose), for this reason an ecological tax falls within the class of regulatory taxes (ROCA, 1998). Since an exact monetary valuation of the environmental impacts of a given activity cannot be made,taxes are considered only a complementary tool to other types of measures (regulation and information), all aimed at meeting the environmental objectives defined by society. This makes coordination between the different areas of government, especially environmental and financial, essential, and the construction of administrative capacity and a strong institutional framework (UNEP, 2010a).
In addition, it is important that the tax considers a criterion of the health of the ecosystem, which allows setting an objective with respect to evaluating its environmental effectiveness. One of the limits may be the critical load - the maximum concentration of a polluting substance that an ecosystem can support without suffering significant damage or changes in its functioning (European Environment Agency, 2011), or other physical indicators that will have to be carefully chosen. and measured; and in the case of ignorance of what the limits to contamination should be, it is preferable to keep the precautionary principle (MARTÍN, 2010).
The use of environmental taxes (and other market instruments) has certain advantages compared to the implementation of command and control measures such as: static efficiency: the implementation of taxes allows the same level of pollution reduction to be achieved at a lower total cost since these are flexible enough for each agent to choose how much to reduce according to their particular marginal costs; Added to the above is the fact that the adoption of a tax saves the government the need for individualized information on the costs of reducing emissions (although the problems of asymmetric information also appear when determining the optimal tax rate). Dynamic efficiency:It arises from the permanent incentive that environmental taxes generate - since they are taxed from the first pollution unit - to adopt clean technologies and innovate in production processes so that emissions are reduced and, consequently, the tax obligation; With a regulatory limit, for example, there is no incentive for individuals or companies to reduce their emissions below what is allowed. And the general treatment: the introduction of taxes makes all polluters face the same rate, regardless of their individual technological and economic characteristics, and yet they can adjust the level of reduction according to these particularities;The important thing is that the need for the regulatory entity to negotiate individually with each agent disappears and, consequently, reduces the risk of manipulation that polluters can exert for their benefit, as usually happens in the case of regulations (this is a factor that reduces the environmental effectiveness of this type of tool). The Collection Potential: Although the generation of income is not, in principle, the objective of this type of tax, it generates income for the Treasury, although the idea is that it will be less and less if the tax is to be “environmental- mind ”successful. The question of how these resources are used or channeled is an important issue that is still under debate. On the one hand,It is believed that the collection generated by green taxes should be destined to finance environmental policy programs, either prevention or remediation (affected or final taxes). On the other hand, although it is recognized that this may be a strategy that facilitates the introduction of the tax in terms of acceptance by society, the taxes involved introduce excessive rigidities in public finances (GAGO and LABANDEIRA, 1997; UNEP, 2010a).
At the same time, the application of green taxes has certain difficulties and disadvantages that require a prior analysis that considers the specificities of the different scenarios. As mentioned before, taxes are not the only one and, in certain cases, they are not the best instrument of environmental policy either. There are times when it is more feasible and effective when there are consequences that put people's health at risk or when mitigation processes are prohibitively expensive, among others. Furthermore, the efficiency of a green tax may be reduced in situations where the damage caused depends on the source of the emission; Although this problem could be solved by applying differentiated types, a regulation may be more feasible if a different treatment is required for each source.
The use of taxes as a complement to the other environmental policy measures was expanding towards the use of other fiscal tools. Thus, during the 1990s, developed countries attended tax reforms that sought to shift tax burdens from traditional taxes to taxes on pollution and environmental degradation. This type of reform of the tax systems took the name of “green tax reform”. The introduction of environmental taxes is accompanied by two complementary and controversial basic concepts: the existence of a double profit or "double dividend" and the need to maintain income neutrality.
The countries of Latin America and the Caribbean, in their current state of institutional development, rather than replacing traditional taxes with others whose lower social cost, as in the case of the aforementioned reforms, are seeking to consolidate and strengthen their fiscal regimes. In this sense, the analysis presented again highlights the advantages that environmental taxes can offer as options to expand the tax base through taxes that imply a lower social cost and, at the same time, create incentives to improve the environmental quality of countries.
As for the punctual introduction of environmental taxes, it is recommended to make a balance between the proximity of the tax base to the “evil” that it is trying to control and the management capacity of the agency that would be in charge of managing the tax. Setting the rate is also a controversial issue since, even if one wanted to implement a Pigouvian tax (theoretical optimum), the social marginal costs of the different types of pollution are difficult to estimate in practice. The issue is even more complex, if what is intended is to put a rate that takes into account the uncertainties to which we are exposed due to not having a full knowledge of everything that the alteration of an ecosystem entails (given the impossibility of transferring it to monetary values this and other subjective damages, as the ecological economy points out).Added to this is the need to consider the carrying capacity or the level of critical load of the socio-ecosystem that is intended to be protected when designing the tax. Another alternative is to choose a tax rate high enough to induce the required behavioral changes. Likewise, the design of the tax should include a planning of how it will evolve over time, since the effects will be different in the short and long terms due to investments in clean technology or process reengineering, and even consumption patterns. It is recommended that at least the rates adjust to the evolution of prices so that they maintain the same incentive or that they are even increasing in the future,such that there is a greater penalty for those who refuse to change their polluting behavior (UNEP, 2010a).
From everything seen so far, it can be concluded that it is the introduction of a specific environmental tax or the proposal for a green tax reform, there are several factors to take into account. From vested interests against these types of measures, the political cost of opting for new taxes, the definition of a clear environmental policy that delimits the use of fiscal tools, the prior evaluation of the effects, to the need to build capacities and Raising awareness in institutions and in the general population requires a great effort that will only be possible if it responds to the priorities and desires of society.
For Gago (2004), the introduction of green taxes was part of the normal evolution of the reform that the European tax systems had begun in the mid-1980s; These reforms made the principles of efficiency, horizontal equity and simplicity a priority, which inspired the compensatory schemes and the inclination towards indirect taxes (for this reason, the reduction of maximum marginal rates and the single rates of income from individuals and companies, respectively, combined with the extension of tax bases, the elimination of preferential treatments, the increase in the minimum rates of personal income tax and VAT, etc.). In this sense,The next step - the Green Tax Reform - was to strengthen the trend towards lowering maximum rates and other taxes that made employment more expensive (such as social security contributions) with the implementation of green taxes (which complied with priority principles. and they generated additional benefits –environmental benefits–). Precisely, the way in which environmental taxation was introduced (as the counterpart of a reduction in direct taxes to maintain the level of income) gave rise to the idea that the Green Tax Reform would allow countries to obtain a "double dividend" to implement it.the way in which environmental taxation was introduced (as the counterpart of a reduction in direct taxes to maintain the level of income) gave rise to the idea that the Green Tax Reform would allow obtaining a "double dividend" to the countries that the will implement.the way in which environmental taxation was introduced (as the counterpart of a reduction in direct taxes to maintain the level of income) gave rise to the idea that the Green Tax Reform would allow obtaining a "double dividend" to the countries that the will implement.
In 1994 (5-6 years after the European Union emphasized economic instruments in environmental policy), the use of market instruments had spread to member countries, especially Scandinavia and Belgium, the Netherlands and Luxembourg, although countries such as the United Kingdom, France, Italy and Germany had already started to apply them. Likewise, despite certain obstacles to implementation, Poland, Hungary and Estonia had also started using environmental taxes and fees, and in Asian countries, such as Taiwan, Korea, Malaysia, Thailand and Singapore, market instruments were already complementary of regulations and standards.
The European Union recognizes four subgroups of environmental taxes, according to the tax base: Energy taxes that include energy goods, transportation (diesel, gasoline) and for stationary uses (natural gas, electricity); Carbon or CO 2 taxes are also included in this group, for the purpose of estimating statistics, although they fall into the third category. Transportation taxes levied on the ownership or use of motor vehicles. Pollution taxes on air and water emissions, as well as on waste and noise management. Taxes on resources that refer more to their use or to the extraction of materials.
Thus, in Latin America, a criterion of solidarity or subsidiarity should be included in the design of an environmental tax. The polluter pays principle requires that payment be made by the same activities or people causing the problem; On the other hand, the ability to pay requires that those who have more resources have to pay a higher proportion of the tax. The conjunction of both principles would require a tax in which all those who generate pollution pay but do it differently: that those who have the possibility cover part of what would correspond to those who cannot, as far as possible.
In the event of insurmountable incompatibilities, there are always alternatives to mitigate the negative effects that certain green taxes could generate on the distribution of income: compensation, programs focused on the neediest population, etc. This important consideration has to do with the structures prevailing in the economies of Latin America, in which certain artisanal sectors or where micro and small businesses prevail are highly polluting; likewise, certain practices that respond to the poverty situation of many households (the use of firewood for fuel, for example) can cause harmful impacts on nature.
Therefore, when analyzing the evolution and development of Environmental Law in Latin America and the Caribbean by Brañes Ballesteros, Rinaldi and Caferrata in their application value the entire historical process for their formation within the period between the United Nations conference on the human environment and the United Nations conference on environment and development, conclaves where issues related to environmental conservation were addressed, pending to be solved by statesmen, a position to which I join. The political history of Latin America and the Caribbean confirms that of the 22 countries that comprise it, with the renewal of their institutions they reflect the constitutional changes between 1972 and 1999 of the last century,16 countries modified their political constitutions by incorporating the concerns of society. The result obtained has allowed us to recognize that there are a significant number of provisions that endorse environmental protection and the promotion of a model to follow to achieve the goal of sustainable development.
As a continuation, UNEP in the XXI century carried out another new analysis called “green economy” to find out how the regulatory framework in the countries that make up Latin America and the Caribbean has been maintained, behaved and evolved in terms of environmental protection within the goals of the sustainable development and the eradication of poverty established by this international organization, allowed this author to know in his conclusions from how the regulation of environmental protection is appreciated, it showed: (… “almost all the countries of Latin America and the Caribbean present a similar legal structure: leading environmental constitutional clauses, then a general law, a framework or organic law on the environment and sectoral environmental laws "…)
UNEP has considered in environmental protection the need to implement the environmental economy to achieve sustainability with orderly execution within companies, a goal not adequately achieved in all the countries sampled at the author's discretion. All the scientific material analyzed considers environmental economics within sustainable development and the eradication of poverty as one of the most important instruments to achieve this, by offering entrepreneurs new alternatives for achieving environmentally friendly companies. This environmental economy contributes to economic growth with sustainability patterns by allowing greater social inclusion,better human well-being and more opportunities for employment and decent work for all to keep ecosystems healthy by using management systems; it is both an instrument and a tool of environmental control for the Public Administration in decision-making, it is interdisciplinary in nature, aimed at citizens in the protection of the environment and their natural resources for the construction of companies responsible for policies and environmental regulations, where the management tool -environmental audit- appears.aimed at citizens in the protection of the environment and their natural resources for the construction of companies responsible with environmental policies and regulations, where the management tool - environmental audit - appears.aimed at citizens in the protection of the environment and their natural resources for the construction of companies responsible with environmental policies and regulations, where the management tool - environmental audit - appears.
Legislative studies carried out in 2013 by UNEP led by Caferrata and Rinaldi with environmental jurists in Latin America and the Caribbean, show that there has been no appropriate legal construction of the concepts of economics and environmental accounting within accounting systems in the forms of management, which is why it is considered by this author that it would have allowed entrepreneurs to successfully transition to the application of management tools through the environmental audit process. In this same sense, it is appropriate to underline what UNEP has pointed out and I quote: (… “environmental economy policies in the context of sustainable development and poverty eradication must be compatible with international law; respect the national sovereignty of each country about its natural resources,taking into account their circumstances, objectives, responsibilities, priorities and margin of action with respect to the three dimensions of sustainable development ”…).
However, this author values that the introduction of environmental economic instruments in business accounting seek to improve human well-being and social equity, respect for nature and the resources it provides, protection of its ecosystems and cultural diversity., where the practice of auditing has an influence in modifying patterns of behavior contrary to sustainable development, most of which are not applied by entrepreneurs within the forms of management analyzed as already indicated.
These analyzed results will allow the development of policies to promote the use of natural resources effectively, with low carbon emissions, energy efficiency, replace fossil fuels with less polluting renewable energies by modifying the energy matrix, protect biodiversity, genetic resources and environmental services of ecosystems, the promotion of investments and innovations of an environmental nature, investments in capacity building and strengthening environmental governance and institutionality. All this implementation, execution, control and respect for legal regulations in administrative-environmental matters will be the powers of the Public Administration when executing the environmental control carried out through the SAIs after the signing of Conventions and Agreements,in the analyzed region, the contracted countries belong to OLACEFS and EUROSAI.
The results of the study developed in Latin America and the Caribbean from the legal sciences by researchers in this 21st century by Caferrata, Rinaldi and Villavella Armengol, related to the technique of introducing environmental policies from the constitutional text, environmental responsibility, implementation of the EMS, the environmental audit, the concepts of economics and environmental accounting, the financial coverage with the environmental policy against damages caused by nature or by man, the reduction of costs and environmental pollution, the use of clean technologies and other management tools and climate change;They allow this author to confirm that for the company to be responsible for environmental protection, it is obliged to comply with environmental policies and regulations as a goal towards sustainable development; Its evaluation is carried out with the environmental audit by the SAI with the public commission.
From the legal perspective, the implementation of environmental protection policies by the Public Administration, the methods of applied environmental control, the relationship of Environmental Law with other branches of Law, especially with the Administrative, are corroborated. transversal and the link with other knowledge due to its interdisciplinarity and multidisciplinarity. However, Caferrata pointed out about other developments in Environmental Law in Latin America, meaning that they are distinguished by being recognized in domestic legal systems, in Mexico with a Federal Law on Environmental Responsibility and a General Law on Climate Change, a Law on the Rights of Mother Earth in Bolivia and a Law of Environmental Courts in Chile.
Thus, this author, when comparing the legal systems of the Latin American and Caribbean region with that of the European Union, verifies that they differ with the approval of a new Law on liability for serious pollution episodes in this continent, which has demanded new liability systems from the Public Administration linked to environmental control. Regulations developed through a process of public participation, to form a new system of strict liability, focused on the recovery of the degraded, based on the principles of prevention and on the polluter pays for Environmental Law as indicated by Gomez Orea.
Before all this introductory analysis, in the Cuban nation it was not until 1976 that the need for the creation of an organ of attention to the Cuban environment is reflected in the Constitution of the Republic and in the programmatic documents of economic development. Said body was the National Commission for the Protection of the Environment and the Rational Use of Natural Resources in which, with a small executive secretariat, representations of all the Organisms of the Central Administration of the Cuban State were gathered and where all actions were coordinated environmental court of the country.
In 1995, it was decided to create within the framework of the national Public Administration the Ministry of Sciences, Technology and Environment, and with this, Law No. 81 of 1997 was promulgated, replacing the previous Law No. 33 of 1980, which supports legally the policy outlined by the National Environmental Strategy and develops the general legal framework for its application. This law includes in the articles of Chapter IX, Economic Regulation, the aforementioned legal basis for the policy outlined in article 61, establishes the use of economic regulation as an instrument of environmental policy and management and conceives it on the basis of employment, among others of tax, tariff or differentiated price policies, for actions that affect the environment.
As can be seen in matters of environmental taxation in our country, progress has been made in recent years, thanks in the first place to the political will of the State to achieve sustainable development, without putting current and future generations at risk and the need to create the necessary awareness for the care and protection of the environment and secondly the implementation of a fiscal policy that pays tribute to the State's finances, achieving a better redistribution of national income. For this, in the National Environmental Strategy approved in 1997, the policy bases for the application of economic measures aimed at the protection of the environment are found; these constitute, in fact,a set of measures that promote the gradual internalization of environmental externalities and therefore influence environmental costs, and through them indirectly and in conjunction with other instruments, influence the environmental decision-making of producers, consumers and policy-makers of decisions.
Under the direction of the Ministry of Science, Technology and Environment, the National Environmental Strategy was approved in 1997, after successive versions that began in 1995. In this sense, the Strategy, as its own text indicates, is the expression of the Cuban environmental policy in which its main projections and guidelines are reflected. As can be seen, among the economic mechanisms recognized in the Strategy are taxes. The exact reference is to tax policies, which in the author's opinion constitutes a correct assessment of the instrumental nature of the environment towards which the tax systems must be outlined, and not in the closed conception of the individually considered tax figures.
It is then assumed that environmental taxation, in short, is not exhausted in its own taxes, but transcends the entire tax system, or should have been carried out in Law No. 73 of the Tax System of 1994, which was conceived in its articles. on the use of taxes for the purposes of environmental protection and the rational use of natural resources, in its article 50, establishes the aforementioned tax, in addition to dedicating other articles to naming the subjects that are obliged to pay it, as well how to grant powers to the Ministry of Finance and Prices to establish, among other things, the procedures to demand their payment
In 1994, in the middle of the Tax Reform stage, the echoes of the environmental claim of the Earth Summit in Rio resonated in the legislative will, in that same year, when Law No. 73 was approved, it was established in Title II, Chapter XI, Article 50 the Tax on the Use or Exploitation of Natural Resources and for the Protection of the Environment, by which natural and legal persons, Cuban or foreign, are taxed who use or are related in any way to the use or exploitation of a natural resource in the national territory.
In attention to the serious state of deterioration of the Cuban forests, determined by the indiscriminate use to which from the time of the colony, and encouraged in the neocolonial period, they were subjected in the context of the restructuring of the income to the State budget from the state sector and political, social and mass organizations, this process that legally regulated in Decree Law No. 44 of 1981, which established the forest tax. In this way, in chapter II, section 1, the forest tax was regulated by establishing it as a partial compensation for the expenses incurred by the State in reforestation and conservation of the environment. This legal provision also indicates that the state companies dedicated to logging are subject to this tax,as well as other state companies, budgeted units, political, social and mass organizations, and companies subordinate to any of said organizations, that carry out extractions of forest products, authorized by the Ministry of Agriculture and with their own means. In this context, it is the responsibility of the Ministry of Agriculture, as established by Decree Law No. 136, On Forest Heritage and Wild Fauna of 1993, article 5, paragraph a), to adopt the measures aimed at the protection, conservation, management, rational use and sustainable development of forest heritage and wildlife resources.authorized by the Ministry of Agriculture and with its own means. In this context, it is the responsibility of the Ministry of Agriculture, as established by Decree Law No. 136, On Forest Heritage and Wild Fauna of 1993, article 5, paragraph a), to adopt the measures aimed at the protection, conservation, management, rational use and sustainable development of forest heritage and wildlife resources.authorized by the Ministry of Agriculture and with its own means. In this context, it is the responsibility of the Ministry of Agriculture, as established by Decree Law No. 136, On Forest Heritage and Wild Fauna of 1993, article 5, paragraph a), to adopt the measures aimed at the protection, conservation, management, rational use and sustainable development of forest heritage and wildlife resources.rational use and sustainable development of forest heritage and wildlife resources.rational use and sustainable development of forest heritage and wildlife resources.
With the approval within the national legal system, the Mining Law No. 76 of 1994 supports the purposes of preserving national sovereignty over mineral resources, reorganizes mining activity, based on the recognition of the legal figure of the concession, and offer greater trust in foreign investment as a way to obtain capital. The aforementioned law fills the gap with an indispensable legal basis for mining operations in the country, at the time when they multiply rapidly.
The Cuban mining activity basically covers the exploitation and extraction of copper, chromium, zinc, nickel, cobalt, gold and silver, and is nourished by the geological survey of 45% of the national territory. To execute the provisions of this regulation, the National Office of Mineral Resources was created as an institution with legal personality, attached to the Ministry of Basic Industry, to supervise and control mining activity and the rational use of resources of this nature. In Chapter II of Law No. 76, the constitutional precept is reiterated, which establishes that the State has the inalienable and imprescriptible domain of the subsoil, mines and all mineral resources, wherever they are within the constitutional regulations.. Therefore, natural or legal persons,duly authorized by the corresponding Title of the Concession, for the exercise of one or several phases of mining activity, they are obliged in accordance with what is legally established to pay the fees for the execution of a mining activity, pay the surface right for the area destined to the construction of the processing facilities and to pay the royalties for the exploitation of mineral resources.
On the other hand, the contamination of the Cuban bays due to the spill is largely explained by their shallowness and large industrial centers are located near them, which contributes to the deterioration of natural conditions. A significant part of coastal pollution from land-based sources is caused by industrial, agricultural and domestic residual substances, which reach the coast without adequate treatment. The existing damages have a limited location, as is the case of the Bay of Havana, which presents a large degree of contamination as a product, among other factors, of the constant accumulation of discharges from nearby industries and of maritime traffic itself. The Use Tax of the Bay of Havana,It should be borne in mind that Law No. 81 of 1997 when establishing in its article 2 that: "The environment is the heritage and fundamental interest of the nation", hence it is configured as a public good over which the State has an exclusive ownership based on the responsibility of its protection and conservation.
The “polluter pays” principle in relation to environmental taxes requires that they configure their de facto budgets for acts of environmental degradation. In this regard, it is difficult to understand that the mere location of a facility in the bay area constitutes a polluting act. Nor do we deny that as a result of this act, acts of degradation of this maritime resource may take place, such as the dumping of industrial waste or other tourist facilities into the waters of the bay, or the contamination that represents the fuel that the ships spill. (LUCAS MAS, C. 2002)
Likewise, Law No. 77 of 1995 on Foreign Investment, in its article 39 established tax surcharges for the use and exploitation of natural resources, as another of the legal norms in the national order that protected nature. Question is maintained in the new Foreign Investment Law, Law No. 118 of 2014, which ratifies the protection of the environment as a public good, in its articles 54, 55, 56, 57 and 58 (ANTUNEZ SANCHEZ, A. 2015)
Given all this reality, it is recognized that the nineties of the last century was very difficult for the Cuban economy, however, despite all the economic measures that were adopted at that time, the economy is currently going through a crisis, exacerbated by the international economic and financial crisis and due to its dependence on external economic relations, all that is evident in the limitations to face the budget deficit, social services, and the rest of the activities that had been assumed by the State.
In this context, the Communist Party of Cuba, with the aim of updating the Cuban economic model and guaranteeing the irreversibility of Socialism, the economic development of the country and the elevation of the population's standard of living, issued a document called Guidelines for Economic Policy and social of the Party and the Revolution, approved in the VI Congress of the Party of 2011 and in the Seventh Ordinary Period of Sessions of the VII Legislature of the National Assembly of the Popular Power of 2011. (LIMONTA MONTERO, R. 2014)
It is in this new economic context, and as part of this new national fiscal policy aimed at increasing economic efficiency and income to the State budget, a new tax law was published, Law No. 113 of 2012 and its regulations, Decree No 308, Regulation of the General Standards and tax procedures.
It must be noted that the circumstances in which the new tax law is enacted respond to a different legal moment, the norm instead of being approved after a constitutional reform as occurred in 1994, is promulgated in the midst of a legislative maelstrom that must have as a corollary a new constitutional reform, but a new Magna Carta. In correspondence, the Law in its terms refers, in addition to the necessary formal basis –article 75 subsection b) of the constitutional text– to the duty to contribute 24 as necessary material support, which evidences a certain corrective vocation with respect to the previous regulations, and that a future constitutionalization of the duty to contribute by the forms of management and the citizen could be considered to be advancing. (SIMON OTERO, L. 2014)
Thus, this legal norm regulating the tax, as the center of the tax system, in article 5, paragraph x) when conceiving the tax as “the pecuniary benefits that the State requires, by rule of law, with the objective of obtain the necessary resources to satisfy public expenses and fulfill other purposes of general interest ”. For this, among the types of taxes regulated in this new tax norm is the recognition of the environmental tax, which is applied to the forms of state management in the nation, in relation to the environmental discharge in correspondence with the administrative regulations established by the Ministry of Finance and Prices and the action that will correspond to exercise the Comptroller General of the Republic before the commission of environmental damages for its accounting quantification,which will be practiced through public auditing with an environmental focus. (ANTUNEZ SANCHEZ, A. 2015)
In relation to all the aforementioned, this author appreciates the link of the tax regulations with Law No. 114 of 2012, the State Budget Law, which in its chapter VI of the Tax System, regulates in the sixth section the taxation by the use or exploitation of natural resources and for the protection of the environment. This allows us to consider that in the national legal system there is adequate protection for nature in the tax legislation, which in the future may continue to be modernized and updated.
By way of Conclusions:
The environmental audit emerged due to business pollution and its confrontation by the State, its genesis was the social audit. It is subsequently consolidated as a control action practiced by the Supreme Audit Institutions and Commercial Companies, it has a legal construction based on being recognized in International Agreements, as it is introduced into internal rights through constitutional texts, environmental and comptroller's laws, they provide solidity and support for the development of environmental policies as the environmental management tool. It can be voluntary or compulsory and manifest as a police activity, a public service or promotional activity according to its execution and consequences.
The systematization of environmental auditing, as a legal institution aimed at protecting the environmental legal asset, is recognized from the doctrine of administrative jus and environmental jus. The theoretical and normative criteria evaluated allowed establishing that the performance of the audit involves an environmental legal relationship and delimiting its elements: subjective (auditors and auditees), objectives (content, institutions and categories to be evaluated) and formal (documents accrediting their validity)..
The environmental audit has a multidimensional, comprehensive and transdisciplinary nature, its purpose is the evaluation of the company's environmental management and the certification of clean productions. To be carried out, the audited entities must implement environmental accounting and the treatment of waste from the company production. It constitutes a process integrated by phases (preparation-execution-conclusion) whose fundamental procedure is regulated in ISO and EMAS standards.
T his type of audit appears regulated within legal systems as a control or public service activity directed at forms of state or non-state management; It is carried out through environmental legal regulations and administrative procedures established by the Supreme Audit Institution to be specified as formal elements, by allowing the evidence of the control practiced to be corroborated.
LTheoretical postulates, the historical and comparative law trend and the analysis of the Cuban order, allowed the formulation of legal assumptions to develop and update the environmental doctrine ius linked to the activity of environmental control through the audit, update the legal order Cuban in relation to the recognition of environmental auditing as an instrument of environmental management and control, develop within the Cuban legal system the recognition of environmental accounting within the National Accounting System, and update the legal system in relation to the recognition of clean and the environmentally friendly industry in environmental regulations, with interdisciplinary and inter-institutional approaches in creation,interpretation and application of the legal norms related to the activity of environmental control.
The Cuban state company is in need of moving from quality certification that has been pondering since the 20th century, towards environmental certification in updating the economic model to achieve sustainable development in the forms of state and non-state management. For this, it is necessary to modify the organizational forms that allow influencing the achievement of an environmental culture and with it the appropriate balance between progress and environmental protection, with the insertion of the Environmental Manager. Hence, it changes from its traditional manufacturing scenario towards the control of nature.
L a friendly business environment for its relationship with environmental audit and environmental taxation allow ways of managing the state sector complete the tax policy regarding environmental tax, thereby directing actions conducive to protecting nature will be promoted and mitigate the adverse effects caused by the phenomena of industrial pollution, in this case by the spill.
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Assistant Professor of Environmental and Commercial Law. Law career. Faculty of economics and social sciences. Granma University. Republic of Cuba. Email: [email protected], [email protected]
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