Summary
Environmental responsibility is assumed through a cultural concept, it is a position of man with himself, with others as a social group and with nature, as a means that is transformed by him. It is both a practical experience and a knowledge process that builds awareness of being in nature and of being for oneself. Responsibility is an ethical and legal concept, its objectivity is awareness for action. It is individual and collective, its effects are particular and general, and its consequences are moral and political.
Due to the public nature of these assets, their protection corresponds, generally, to the public powers.
But the peculiar nature of the environmental good and the risk of an immediate and irreparable deterioration of the same due to disturbing actions of individuals or groups, makes the intervention of the State assume the initiative of this matter, to ensure that these are not deteriorated. property, but punish those who violate it, if it aspires to effective protection of the environment.
Interaction of Administrative Law and Environmental Law in the disciplinary sphere.
The Administration is in charge in each case of imposing what is referred to as administrative sanctions regarding environmental protection in relation to the issue that arises.
It is entrusted with this power through administrative acts such as a declaration of will, judgment, knowledge or desire made by it, in the exercise of an administrative authority.
Precisely here we see the close and intertwined relationship that exists between Environmental Law and Administrative Law, since the environmental legal norm has the double meaning of the administrative norm: it is a norm of behavior regarding the performance or conduct of the subjects in the protection of the environment and is an organizational norm when establishing the hierarchies or levels of actions and the relationships between said levels, together with the role of the State and the government of the country in fulfilling the purposes of Environmental Law.
In fact, the legal-environmental norm manifests its link with the legal-administrative norm in its structure and in the subordination and coordination relationships that it necessarily establishes, in its form and subjects. Administrative Law establishes the principles and norms that regulate the functions, attributions and activities that are conferred on the state organs and agencies; the relations between those and the other organs of the State, other organizations and institutions and the citizens, as well as fixes the distribution of administrative powers, depending on the matter and territorial action. Hence, its action determines, through the application of the organizational principles of the State administration, that they adopt their own formulations for Environmental Law,the different systems for structuring the organizational frameworks for environmental management and protection.
From what we can say that environmental legislation is preferably administrative legislation, understood as that which regulates the activity of the State that is carried out in the form of an administrative function and that is expressed, with regard to the protection of the environment, in mandates to the Administration to carry out a set of material acts aimed at preventing and controlling environmental deterioration, as well as mandates that imply duties of all persons who ensure the protection of the environment and whose compliance the Administration itself must ensure.
Environmental administrative responsibility.
Environmental administrative responsibility is constituted by those legal consequences that fall on natural and legal persons for the violation of the rules or legal provisions on environmental matters, so it works as a posteriori instrument, once the environmental aggression has been consummated and that is, Apart from its typically repressive connotation, it fulfills an important role of control and guarantee of individuals, at the same time that it boosts the effectiveness of the administrative framework, as it offers an iter for future action to correct behaviors of the Public Administration that do not respond adequately to the functions entrusted to them.
Based on the purpose of Administrative Law to meet needs of a general nature and reflect the State's environmental policy, its directives and purposes, in addition to being nourished with concepts, data, technical means, we can say that this environmental administrative responsibility: It is that which is derived from the infraction of the administrative environmental regulations, its complementary norms and its regulations, is specified in the application of an administrative sanction for the offending action or omission, and from it arises the obligation to repair the aggression caused, apply prevention and mitigation measures, and assume the corresponding costs.
So it could be said that our Public Administration is responsible for the general protection of the environment, defending its own heritage. The Public Administration has at its disposal multiple mechanisms to coercively impose measures on citizens in the face of certain behaviors against the environment, the non-compliance of which will carry the corresponding sanction.
The administrative sanction for infringement of environmental mandates or regulations is subject to the general sanctioning regime in which the classic principles of legality, typicality, culpability, proportionality, etc. govern. In addition to some peculiarities of the matter.
This leads us to reflect on the importance of this institution in the legal system, the need for its effective functioning not only in the repressive but also educational order, making people aware of how to care for and preserve the only environment we have.
Environmental administrative responsibility as part of the environmental responsibility system.
Environmental responsibility, as a concept, can be defined in a succinct way, as the obligation to compensate, as far as possible, the damage caused or the damages caused by the consequences of acts or omissions that cause environmental damage.
This concept of environmental liability includes civil, administrative and criminal liability, and provides that these may occur as a result of a single act or omission that violates environmental legislation and other legal regulations in force, as the case may be.
Environmental Civil Liability is one that derives from damage or harm caused by conduct that injures or endangers the environment, however it is specified in the Environmental Damage suffered by a specific person, in his own person as a consequence of the contamination of an environmental element.
Environmental administrative responsibility is that which is derived from the violation of the administrative environmental norm, its complementary norms and its regulations, is specified in the application of an administrative sanction for the offending action or omission, and from it arises the obligation to repair the aggression caused, apply prevention and mitigation measures, and assume the corresponding costs.
Environmental criminal liability is that which derives from a conduct classified as a crime, and is specified in the application of a penalty for the willful or culpable action or omission of the perpetrator of one or the other, it is strictly personal, of restricted interpretation, of non-retroactivity prohibited, of presumed voluntary nature (once the causal relationship between the executor or inducer and the result has been demonstrated), and it is of public order.
Elements of environmental administrative responsibility.
The existence, at least didactic, of the State's environmental responsibility should not fail to be recognized in a right that tends to replace the old interpretation of civil liability, placing its focus on the victim, instead of on the offender. Environmental responsibility must appear in an environmental law because the repair of environmental aggressions (which primarily consists of reconstitution) must be inserted in a policy of conservation, defense and improvement of the environment, which includes prevention, environmental management or environmental management. and the repair, in addition, A liability system must establish not only the obligation to repair damage (detached from fault and fault), but also from the obligations of prevention and assistance and assistance in the eventual case.
Therefore, an environmental responsibility system should contain the following elements:
a) the protection of the victim,
b) the protection of the environment,
c) the correct allocation of the costs of repairing the damage,
d) guaranteeing the solvency of the person responsible and
e) compelling the operator (user of the environment) to adequate self-regulation.
On the other hand, the responsibility of individuals for environmental damage that does not cause harm to a specific person, but to the community, also deserves special regulation. The system of civil and administrative liability drawn up so far by doctrine and jurisprudence, which refers to injuries caused by individuals or between the state and them, is insufficient to address the multiple issues of liability for environmental damage, which without doubt, they exceed that field.
In the field of responsibility, they go from establishing a legal concept of the environment and environmental damage, to problems of causality between the agent's conduct and the damage caused, the unlawfulness or illegality as an indispensable requirement of administrative responsibility, legitimation active and passive in compensation claims, the role that public responsibility must fulfill in this matter, the limitation periods for actions derived from them, the possibility of actions before the damage actually occurs, jurisdictional competence, restoration of the damaged environment, the criteria for attribution of responsibility, the responsibility of the administration when authorized to exploit dangerous industrial activities and its legal legitimacy,the right to redress for so-called diffuse or collective interests, so-called collective actions, compensation or insurance funds.
All this without prejudice to the responsibility of the direct polluter, and it should be noted that the administrative authorization for the exercise of the activity does not exempt the polluter from his obligation to repair, but only in the event of an extreme fortuitous event.
Individuals must have a real right:
- On the one hand, to a judicial control of acts such as deficiencies or inactivities, (control that in the matter is of legality - including the reestablishment of infringed legal situations -, although sometimes there may be a certain restriction attentive to the dose of possible discretion on the matter) and, on the other hand, to obtain reparation through in natura recomposition or through compensation for damages in cases of damage produced, when reparation in kind is not possible. This right is based on the full submission of the administration to the law and the individual's right to effective judicial protection.
In cases in which the Administration - as well as any individual - is a direct polluter due to pollution or environmental aggressions from accidents (dangerous things or facilities, for example, a nuclear power plant) or non-accidental situations (entering the theory of permanent damage or abnormal inconveniences or neighborhood disturbances) administrative responsibility arises regardless of any fault, from the verification of the damage, that is, under the responsibility without fault, objective or by risk or by private sacrifice.
When we refer to this administrative activity we must bear in mind that it is developed in two orders: environmental protection and prevention. It should be noted that the immediate aim of protecting the environment is not only to care for nature itself, but also to care for man and her quality of life, by satisfying her vital needs.
We would say that one of the primary occupations of the State is to fulfill its obligation to take the necessary and timely measures for the preservation of the environment, to protect the environment and living species from any type of harmful alteration to the environment.
Hence, the inhabitants have the right to demand positive behavior from the State in this regard (inspection, administrative supervision and binding of the Administration to the laws). When this does not occur and the damage is specified in an injury suffered by the owners in their protected legal assets, individuals, faced with the duty of the administration to act and the obligation to compensate the polluting individuals, have the right to be compensated financially by abnormal operations materialized in ineffective actions or, especially, omissions by the administration.
In environmental administrative responsibility, the elements are the common ones of responsibility, so it is easy to deduce that they are:
a) The act, fact or omission attributable to the State,
b) The injury to a legally protected interest or a subjective right of an individual or other public person,
c) The appropriate causal relationship,
d) The concurrence of some attribution factor.
Martín Rebollo, L. Responsibility of the Public Administrations in Spain, Madrid, 1997, Page 17-18.
