Summary
In this paper we propose to carry out a detailed assessment of the treatment given by different National Legislations of various countries on environmental administrative responsibility.
Environmental administrative responsibility in Comparative Law.
The need to protect the Human Environment as a matter of political interest is of recent date, at the end of the 60s of the last century some ideas arise, the International Community itself awakens, but little continues to be said about the subject, it is not until 1972, when the UN Conference is held from June 5 to 16, in Stockholm, Sweden, which is considered the International Constitution of the Environment, then in 1982, the Extraordinary Meeting of the The United Nations Environment Program (UNEP), which meets in Nairobi, Kenya, is known from that date as "Nairobi Declaration", but it was not really until 1992, in Rio de Janeiro, Brazil, where the "Earth Summit" takes place, when global concern reaches a significant height,then in 2002, the global Summit on Environment and Sustainable Development takes place in Johannesburg, South Africa.
When the different Administrations take preventive and punitive measures around the Environment, it is because they have deeply penetrated that the neoliberal development model existing in the vast majority of the countries of the World leaves as a consequence a poisoning of the air, water and land, is not desirable. Development must be sought that takes into account the preservation of vital natural resources for the human being, not only as self-protection of the current generation, but as a duty of this towards future generations, in this sense, on June 14, 1992, In Rio de Janeiro, a series of principles are established, which must be defined by the different States, they are conferred in the '' Earth Charter or in the '' Declaration of Rio, ´´ among others they are the following:
1- Recommends to the States:
- That they develop the National Legislation regarding liability and compensation for environmental damage. Cooperate to develop new international laws on the subject.
2- Privilege of prevention: each State must apply measures to take care of the Environment according to its capabilities.
3- It assumes a criterion of economic reality: that the authorities of each nation ensure the internationalization of the environmental damage they cause.
The need to protect the Environment has generated the validity of action models:
a) Interventionist.
b) Neoliberal.
- The interventionist model:
- Adopts preventive measures Reward regime, specifying in granting subsidies in favor of entrepreneurs that do not pollute the Environment and punishments, through Taxes that tax the polluter Possibility of applying Criminal sanctions (in the particular case of our country, is extremely concise on this point, since our Penal Code does not have the Environment as a Legal Good, object of specific protection, only 5 Articles related to Human Health are collected, it is left, in my view, an excess of powers to the Administration for it to impose fines for the commission of a violation, when it could actually be the realization of a crime, which in that case would be punished with deprivation of liberty).
- The neoliberal model:
- It attends to the responsibility of the company. The company acts according to what is demanded by public opinion, when there is a generalized claim from the community, the employer avoids contamination.
In my opinion, the last statement deserves an analysis since the case can be presented and in fact it is presented in that to produce cleanly, (as it should be), costs necessarily have to rise and therefore the sale price, this makes That the public itself, the same public opinion that before generally demanded the employer not to pollute, now what they prefer are lower prices, leaving aside the pollution that occurs.
As a consequence of the action models discussed above, various approaches have emerged, including the following:
a) Economist approach, which raises:
Reduce the commercial cost to the maximum, ignoring the social cost. Technically this approach conveys a clear message: "Pollute and don't pay."
b) It dispenses with prevention, although it requires assuming a social cost.
What would be the message ?, "Contaminate and pay."
c) Ethical solution model, it prevents by demanding respect for the quality of life, with a very clear message: "Do not pollute", now there is a problem and that is that the law is usually unsatisfactory when it does not provide sufficient incentives for effective behavior.
Let us now turn to the treatment given by different laws on the issue of environmental administrative responsibility in Latin America.
1. Panama.
The Political Constitution of the Republic of Panama conceives environmental responsibility as the obligation to compensate the damage caused or the damages caused to the Environment.
The Panamanian Constitution, which contains the fundamental rules that organize the political society and, consequently, the set of duties established in a general and particular way for all the inhabitants of the State, provides in Article 115, “the duty for all the inhabitants of the territory National, to promote social and economic development that prevents environmental pollution, maintains ecological balance and avoids the destruction of ecosystems ”.
This constitutional precept contains the basic principle on which rests the concept of environmental responsibility developed in Title 8 of Law 41 of 1998, General Environment of the Republic of Panama, called "Environmental Responsibility."
The aforementioned Title, made up of III Chapters, regulates what is related to the obligations that correspond to the inhabitants of the country in environmental matters and the responsibility derived from non-compliance.
The General Environmental Law, in effect, establishes a plural number of duties and obligations in environmental matters for all the inhabitants of the Republic of Panama, which without exception must attend, and states that non-compliance with these duties implies environmental responsibility, which which translates into the obligation to repair the loss caused, the evil inferred or the damage caused by virtue of actions or omissions that violate environmental regulations.
On the other hand, it is important to point out, the way in which the General Law of the Environment of Panama conceives administrative responsibility, framing it within the Objective Theory of Responsibility, that is, it does not take into account the elements of intention and voluntary nature of the actor. of the action or omission that resulted in damage or harm, but only the causal link of the action or omission of the subject and the harmful result, that is, that the violation of the established legal order or the damage to the assets of the The rights of others to point out the actor responsible for the conduct that violates the Environment. Administrative responsibility, conceived in the light of Law 41 of 1998, is specified with the application of an administrative sanction, creating the obligation to repair the damage caused.
2. Argentina.
The Argentine National Constitution, in its Article 41, according to the Reform suffered in 1994, states:
“All inhabitants have the right to a healthy, balanced environment, suitable for human development and for productive activities to satisfy present needs without compromising those of future generations, and they have the duty to preserve it. Environmental Damage will generate the obligation to repair, as established by Law ”.
The authorities will provide for the protection of this Right, the rational use of natural resources, the preservation of natural and cultural heritage and Biological Diversity, and environmental information and education.
It corresponds to the Nation to dictate the norms that contain the minimum protection budgets and to the provinces the necessary ones to complement them, without those altering the local jurisdictions.
Potentially dangerous waste and radioactive waste are prohibited from entering the National territory.
Article 41 refers mainly to the so-called "Right to a better quality of life". Other rights are included in this Article, such as: to the defense of the ecosystem, the right of peoples to development, progress, and exploitation of the own resources, peace, self-determination, territorial integrity.
As we can see, the obligation of polluting industries to compensate for ecological damage is established, leaving its fixation and effects defined in the Law.
The Administration must issue regulations to protect the environment, where each province will be obliged to comply with these regulations.
Now, in the final paragraph of article 41 of the Argentine Constitution that prohibits the entry into the National Territory of toxic and radioactive waste, we think that it is directly operative, although a specific Law is not dictated, since it implies an obligation direct not to do.
For its part, the National Administration has established that: "the annoyances caused by smoke, heat, odors, luminosity, noise, vibrations or similar damage due to the exercise of degrading activities to the environment, should not exceed the normal tolerance, taking into account Taking into account the conditions of the place, depending on the circumstances of the case, the Administration may order compensation for damages and cessation of the inconvenience caused.
The Argentine doctrine is framed within the group of nations affiliated with Objective Responsibility, as a type of responsibility added by the administration for the commission of certain attacks on the Environment, for its part, in a very interesting point, it bravely assigns a degree of responsibility shared between the subjects responsible for the damage and the State, only when the latter has authorized or consented to the degrading activity.
Jurists address the issue of "normal tolerance", however, it is good to clarify that it will not have legal validity when environmental damage affects Health.
Finally, in an environmental educational act, it is stated that "any member of the community may demand the preservation of the Environment."
3. Colombia.
The basic legal framework, which directly addresses administrative responsibility regarding environmental aggressions is Law 19,300 on "Bases of the Environment" in Colombia, this Law establishes a special regulation on Environmental Damage, strictly addresses the following rules that characterize environmental administrative responsibility, posing them as follows:
a) The responsibility for Environmental Damage is due to fraud or fault.
b) The presumption of responsibility of the perpetrator of the Environmental Damage is established if there is a violation of environmental quality standards, emission standards, prevention or decontamination plans, special regulations for environmental emergencies or the norms on environmental protection, preservation or conservation, established in legal or complementary provisions.
c) It is established that compensation will only be applicable if a cause-effect relationship between the offense and the damage produced is proven.
d) Once the Environmental Damage is produced, ordinary compensation action is granted to natural or legal persons, public or private, who have suffered the damage or prejudice, to the municipalities, for the events that occurred in their respective communes, and the State, represented through its Defense Council.
e) When those responsible for emission sources subject to prevention or decontamination plans or special regulations for emergency situations as appropriate, prove that they are fully and fully complying with the obligations established in such plans or regulations, only the ordinary compensation action deducted will fit. by him personally affected unless the damage comes from causes not contemplated in the aforementioned Plan.
f) In all cases, the acting Administration may, depending on the seriousness of the infringement, order the immediate supervision of the issuing activities and grant the infringers a period to comply with the rules.
4. Peru.
The jurisconsult Rubén Marcelo Stefani, in his text: "Damage and Environmental Control, Environmental Protection of Law", establishes that the Legal Property protected in the legal relationship of environmental responsibility is in a broad sense: "any object of satisfaction", and the legal interest is an interest to act (recognized by law) towards the object of satisfaction, which is a legitimate interest that is part of the substrate of subjective law.
Considering that there is no legal relationship between people and things, the legal relationship is only established between people, whether natural or legal, in the same way, goods, natural resources and elements of the environment (except people) are the object of the legal relationship.
We find, on the one hand, in the subjects in the legal relationship, the subjects of Law, which are:
a) The person responsible who assumes the obligation to compensate the damage incurred by fraud or fault (active subject).
The person or persons affected in a Right to a Healthy and Ecologically balanced Environment (taxpayer).
The Peruvian Political Constitution of 1993, in its Article 2 paragraph 13, states that the legal relationship arises from the factual assumption in which the person responsible causes Environmental Damage with consequences on the person or persons affected. The taxpayer is affected in his Right to live and develop in a Healthy and Ecologically balanced Environment.
We can define that the Subjective Right subject to guardianship is the Right that every person can demand, among others: regarding their physical and psychological integrity, their Health against risks against it, and the appropriate biological development. This Right is individual, but it can be defended both individually and collectively.
It is extremely important to internalize and raise awareness that the Right to a Healthy Environment content will also be reflected within the World context, in which the use of resources and use of technology must guarantee Sustainable Development.
There is currently a global mega trend regarding the protection of the Environment in the defense of the person as a biological being against the aggression of the irresponsible industrial culture of the XXI century, and the depredation of resources.
The National Legislation of Peru has not been very deep about the role played by the Administration regarding acts corrosive to the Environment, the Environment Code, Legislative Decree 613, has considered the following regulations on the subject:
a) It recognizes the inalienable Right of the person to enjoy a healthy environment, ecologically balanced and adequate for the development of life, likewise, it recognizes the Right to the preservation of Landscape and Nature.
b) It establishes the obligation of the State to prevent and control environmental pollution and any process of deterioration or depredation of natural resources that may lead to the normal development of all forms of life and society.
c) It recognizes the right that every person has to demand rapid and effective action before the courts in defense of the Environment and natural and cultural resources.
d) Recognizes the legitimation of diffuse interests in the protection of the environment, indicating that actions can be brought, even in cases where the economic interest of the plaintiff or complainant is not affected. The moral interest authorizes the action even when it does not refer directly to the agent or his family.
e) It is established that the norms related to the protection and conservation of the Environment are of public order.
f) It is established that the Environmental Code prevails over any other legal norm contrary to the defense of the Environment and natural resources.
When it comes to analyzing the Environmental Code in Peru, it is striking that no standard regarding Environmental Damage can be observed, but if we find in a very practical way in Articles 113 and 114, the Administrative Faculty of Sanction, That is, environmental administrative responsibility is regulated, let's analyze the sanctioning powers granted by the aforementioned articles:
1- Fine not less than half a tax unit nor more than 600 tax units in force on the date the payment is made. In case of not being determined the Toxic or Hazardous Waste, the fine will not be less than the total amount of the undetermined, unless there is a special rule that imposes a higher fine.
2- Prohibition or restriction of the activity causing the offense.
3- Partial or total, temporary or permanent closure of the premises or establishment where the activity that generated the offense is carried out.
4- Confiscation of the objects, instruments or devices used for the commission of the offense.
5- Imposition of compensatory obligations related to the environmental development of the area, taking into account the National, Regional and Local plans on the matter, in order to comply with the environmental control regulations indicated by the competent authority.
6- Suspension or cancellation of the operating license, permit, concession or any other authorization as the case may be.
In Article 117, of the Environmental Code in Peru, it is established that "the administrative responsibility established within the corresponding procedure is totally independent of the Civil or Criminal responsibility that could derive from the same facts."
For its part, Article 118 of the aforementioned Code states that "there is joint and several liability between the owners of the activities causing the infringement and the professionals who sign the environmental impact studies on the projects and works that caused the Environmental Damage."
We can assess from these regulations that it is the State that is obliged to establish immediate actions and the conditions for compensation in administrative proceedings and there is Joint and Solidarity Responsibility in professionals who have not complied with the administrative requirements to materialize the protection of the Environment, especially in the development of economic activities subject to administrative authorization.
The worrying thing about the case, in my opinion, is that the results of the sanction have been directed towards a “competent authority”, without clearly establishing which one it is.
By understanding the seriousness of the Environmental Damage, we consider that a rupture of the Causal Nexus could not be accused due to situations of Fortuitous Event, Force Majeure or recklessness of the affected, while justifying the contamination by the absence of a subjective link, does not eliminate the possibility of repair or revert to the state before the environment, and in any case the assignment of environmental administrative responsibility should additionally imply activities restored to the environmental balance at the time before the damage occurred.
We consider that part of the compensation constitutes the obligation of preventive, restorative and decontaminating activities of the environment.
We must comply with the criteria followed by the Environmental Code, when it is inferred that Objective Responsibility considers the joint form followed by the agents participating in a polluting activity, essentially seeing Administrative Law as a regulator of economic activities that generate polluting activities..
In this way, the rules of responsibility for subordinate damage caused and Joint Responsibility, explicitly contain a section where it is established that the damage caused by non-compliance with security measures, environmental regulations, environmental audit regulations, imply the Joint Responsibility of the legal person who carry out the activity with or without the corresponding administrative authorization, likewise, the legal regulations contained in the aforementioned Code establish a degree of responsibility not only for those who materially participate in the generation and materialization of Environmental Risk, but also for the Legal or natural persons for whom these services are provided or have the risky activity.
We must consider that compensation for Environmental Damage should be governed by very clear principles.
Finally, we must remember the current adage, "who pollutes, pays", to which we already need to add "the one who pollutes, decontaminates", to achieve an effective unity in the compensatory activity towards the people affected by the aggression that occurred to the Environment. Ambient.
5. Cuba.
The Constitution of the Republic of Cuba, when promulgated in 1976, reflected in its Article 27, the will of the Cuban people regarding the Environment, stating that “to ensure the well-being of citizens, the State and society protect nature It is incumbent on the competent bodies and also on each citizen to ensure that the Waters and Atmosphere are kept clean, and that the Soil, Flora and Fauna are protected ”.
In this way the environmental issue is introduced for the first time in our country, over the years it was shown that the aforementioned article suffered from concepts that in the public light of today are extremely important, call them: Sustainable Development, Environmental Education or others.
On January 10, 1981, Law 33 "On the protection of the Environment and the rational use of Natural Resources" was enacted, which lays the normative bases of Cuban environmental policy on the subject.
It is precisely in the year 1992, when the clamor of the "Rio Summit" or "Earth Summit", a true revolution takes place around the World regarding the Environment, the main leaders of the Earth Globe become aware of the protection, care and prevention around Natural Resources, which as expressed there are "finite", this is how in our Country, as a result of the issue, significantly profound changes are produced, and they have their highest expression in the The Constitution of the Republic itself, which is modified, and Article 27 is drawn up as follows:
“The State protects the Environment and the natural resources of the country. It recognizes its close link with sustainable economic and social development to make human life more rational and ensure the survival, well-being and security of current and future generations. It is the responsibility of the competent bodies to apply this policy.
It is the duty of citizens to contribute to the protection of Water, Atmosphere, Soil Conservation, Flora, Fauna, and all the rich potential of Nature ”.
In 1994, the Ministry of Science, Technology and Environment was created, which "regulates, supervises and controls all the guidelines, objectives and plans for prevention, protection and conservation around the environmental sphere".
With the creation of the aforementioned Ministry, the Cuban State implemented a management body for environmental policy; Prior to this moment, when the Administration detected an environmental violation that caused damage to the environment, the procedure was in the hands of the Public Prosecutor's Office, which processed the process, ensuring the restoration of the violated legality, there was also a deeply accentuated legislative dispersion where each government agency had its own mechanism to demand the corresponding degree of responsibility, although, in 1994, the situation began to change, gradually but surely, the work that awaited the young Ministry newly created was arduous and had to be effective,It had to begin by implementing an Environmental Education work at the level of the whole society, which would allow much deeper steps to be taken over time, above all, a National Environmental Strategy had to be elaborated, in which all the instruments of an integrated system, whose components are mutually interrelated, part of which could be: Environmental Legislation, Environmental License, Scientific Research and Technological Innovation, Education and Environmental Disclosure among others, which should function as a whole, this strategy followed by CITMA, yielded its first results in the realization of Law 81 "On the Environment", practical and effective, (shortcomings aside), which came to light on July 11, 1997, it states in its Third As:that would allow taking much deeper steps over time, above all else, a National Environmental Strategy had to be elaborated, in which all the instruments of an integrated system were part, whose components were mutually interrelated, part of which could be: Environmental Legislation, Environmental License, Scientific Research and Technological Innovation, Environmental Education and Disclosure among others, which should function as a whole, this strategy followed by CITMA, yielded its first results in the realization of Law 81 "On the Environment ”, Practical and effective, (insufficiencies aside), which came to light on July 11, 1997, it states in its Third Because:that would allow taking much deeper steps over time, above all else, a National Environmental Strategy had to be elaborated, in which all the instruments of an integrated system were part, whose components were mutually interrelated, part of which could be: Environmental Legislation, Environmental License, Scientific Research and Technological Innovation, Environmental Education and Disclosure among others, which should function as a whole, this strategy followed by CITMA, yielded its first results in the realization of Law 81 "On the Environment ”, Practical and effective, (insufficiencies aside), which came to light on July 11, 1997, it states in its Third Because:A National Environmental Strategy had to be developed, in which all the instruments of an integrated system were part, whose components were mutually interrelated, part of which could be: Environmental Legislation, Environmental License, Scientific Research and Technological Innovation, Environmental Education and Disclosure Among others, which should function as a whole, this strategy followed by CITMA, yielded its first results in the realization of Law 81 "On the Environment", practical and effective, (shortcomings aside), which sees the public light on July 11, 1997, it states in its Third Because:A National Environmental Strategy had to be developed, in which all the instruments of an integrated system were part, whose components were mutually interrelated, part of which could be: Environmental Legislation, Environmental License, Scientific Research and Technological Innovation, Environmental Education and Disclosure Among others, which should function as a whole, this strategy followed by CITMA, yielded its first results in the realization of Law 81 "On the Environment", practical and effective, (shortcomings aside), which sees the public light on July 11, 1997, it states in its Third Because:Environmental License, Scientific Research and Technological Innovation, Environmental Education and Disclosure among others, which should function as a whole, this strategy followed by CITMA, yielded its first results in the realization of Law 81 "On the Environment", practice and effective, (insufficiencies apart), which came to light on July 11, 1997, it states in its Third Because:Environmental License, Scientific Research and Technological Innovation, Environmental Education and Disclosure among others, which should function as a whole, this strategy followed by CITMA, yielded its first results in the realization of Law 81 "On the Environment", practice and effective, (insufficiencies apart), which came to light on July 11, 1997, it states in its Third Because:
"It is necessary to establish, as an elementary right of society and citizens, the Right to a Healthy Environment and to enjoy a healthy and productive life in harmony with Nature, as human beings constitute the essential objective of" Sustainable Development ”.
In this way, the clear will of the Cuban State towards the Environment is synthesized, following the Nature-Man relationship wielded by our Apostle in the course of his prolific life.
Our Law 81 very briefly addresses the administrative sanctions regime, in its Chapter XI, in Articles 67, 68, and 69, which textually state:
Article 67: "The regime of administrative sanctions regarding the protection of the Environment includes natural and legal persons who incur in the violations established in the complementary legislation to this Law."
Article 68: "Violations will be sanctioned with fines, the amounts of which are set for each case, without prejudice to the other accessory sanctions applicable in accordance with current legislation."
Article 69: “Anyone who knows of the commission of any of the violations established in the complementary legislation to this Law will inform the competent authority, which will be obliged to inform them about the measures provided and their compliance, when even if that person interests him ”.
In this Law 81 of 1997, in its Second Transitory Provision, it is stated that: "within 180 days following the promulgation of this Law, CITMA will present to the Council of Ministers the corresponding proposal in the matter of administrative contraventions", it was just that, incredibly, it took 2 years for Decree-Law 200 of 1999 to be promulgated on December 22, 1999, "on Contraventions in Environmental Matters", which constituted an important step, since it required of an agile, effective, practical legal instrument that will contribute to the work of eliminating the existing legislative dispersion around the environmental issue in our country.
Undoubtedly, with the promulgation and entry into force of the aforementioned Decree-Law, the existing norms regarding environmental violations are partially reunified but unfortunately the problems of legislative dispersion are not solved as it was at the time of the promulgation of the mentioned decree one of the objectives of the same, since some sectors establish their own contraventional norms, which are among others: Fauna, Soils, Hydraulic Resources, Fishing, Mines, Biological Safety, Nuclear Energy.
Article 1 states that it is the objective of the Decree-Law, to establish applicable violations in the field of the Environment.
Article 2 clearly regulates that the regime of administrative measures in the field of environmental protection includes natural and legal persons, national or foreign. Regarding foreign legal entities, in Law 77 of 1995, "Foreign Investment Law", it is stated that CITMA will be in charge of solving situations that cause dangerous damage or risks to the Environment or the Rational Use of natural resources.
Article 4 states that punishable offenses will be subject to fines, and that there may be behaviors where the following measures may be taken jointly or independently:
- Reprimand Community provision, understood as activities related to the Environment Obligation to do, which prevents the continuity of the offending conduct Prohibition of carrying out certain activities Dismissal or reassignment of the means used to commit the violation Temporary suspension or definitive licenses, permits and authorizations. Temporary or definitive closure.
In Resolution 19 of the year 2000, in operative paragraphs 10 and 11, regarding the last 2 measures, it states that they will be temporary as long as the term to eliminate the infraction does not exceed 1 year.
In Article 8, the decree-law states that contraventions with respect to the coastal zone and its protection zone are considered when species of special significance are damaged or destroyed.
Article 11 states that it is considered contraventions with respect to noise and vibrations when the rules relating to the permissible levels of sounds and noise are violated.
Article 12 states that it is considered a violation with respect to the protection of the Atmosphere when the technical standards related to air quality are violated.
Article 15.2 states that the application of the measures that are imposed under the Administrative Regime does not exempt from Civil and Criminal responsibility when appropriate.
For its part, Decree-Law 199 of 1995, regulates violations of the regulations for the protection and Rational Use of Hydraulic Resources, this legal instrument is an example of how certain sectors administratively address the contravention regime, other examples are the Resolution 111 of 1996 "Regulations on Biological Diversity", Decree No. 1993 "Contraventions of the regulations on Forest Heritage and Wild Fauna", Decree No. 179/1993 on "Protection, use and conservation of soils and its violations ”, as well as Decree No. 268/1999, which exclusively addresses the“ Contraventions of Forest Regulations ”.
In our country, the clear and specific objective of achieving a healthy environment is a task for which we fight directly and concisely, however, on the legal level the fight is “extremely complex”, due to the prevailing legal diversity despite the efforts made.
Rey Santos, Orlando. Responsibility for Environmental Damage.
