• ENVIRONMENTAL ACCOUNTABILITY UNDER ECUADORIAN LEGISLATION
  • January 9, 2004
  • Law Firm: Pérez Bustamante & Ponce - Quito Office
  • ENVIRONMENTAL ACCOUNTABILITY UNDER ECUADORIAN LEGISLATION Environmental liability under Ecuadorian legislation is contemplated by several legal and regulatory provisions ranging from the Political Constitution of the Republic of Ecuador to specific laws such as the Law on Environmental Pollution Prevention and Control (repealed in almost its entirety), the Environmental Management Law and its Regulations (issued in 1999), the Law on Forestry and Conservation of Natural Areas, the Health Code, the Mining Law, the Law on Hydrocarbons, the Electricity Law, the Environmental Secondary Regulations Text and several Municipal Environmental Ordinances, and other specific regulatory norms for certain types of activities such as the Environmental Regulations for Hydrocarbon, Mining and Electrification Operations. According to the above mentioned legal framework, environmental liability may involve three types: administrative, civil and criminal. This is so stipulated in Article 87 of the Constitution: "Article 87.- The law shall specify the infringements and shall determine procedures to establish administrative, civil and criminal liability corresponding to national or foreign individuals or corporations for actions or inactions against the environmental protection rules." Administrative liability: We must distinguish two kinds of liabilities in this case: The Administrative liability for public officials and the Administrative liability to private individuals or corporations: In the first case the administrative liability is applicable to such public officials in charge of environmental control, mostly centralized at present under the Ministry for the Environment, although there are other specialized agencies on environmental control at the various ministries (i.e., Energy and Mines, Public Health, Agriculture and Livestock, Public Works, etc.) or municipal or provincial departments to whom administrative sanctions would apply. The possibility of suffering sanctions is contemplated in the Environmental Management Law that states the following: "Article 44.- When public officials, due to an action or inaction, fail to observe the environmental protection norms, any individual, corporation or human group may ask the hierarchical superior, in writing and together with sufficient evidence, to impose the corresponding administrative sanctions, without prejudice to applicable civil and criminal sanctions. The hierarchical superior shall resolve the petition or complaint within fifteen days, after which, due to the administrative silence, it shall be understood that the request has been approved or that the complaint has been resolved in favor of the petitioner." Additionally, compliance by public officials of their obligations to control as set forth in the law is subject to special examinations or audits by the Office of the Comptroller General of the State. In the second case, the administrative sanction is applied to private persons also. In this regard, Article 46 of the Environmental Management Law reads as follows: "Article 46.- If private persons, due to an action or inaction, fail to comply with the environmental protection rules, the competent authority shall adopt the following administrative measures, without prejudice to the sanctions set forth in this law: a) Confiscation of any illegally obtained flora and fauna species as well as of any implements used to perpetrate the infringement; and b) The authority shall demand to regularize any authorizations, permits, studies and assessments, and shall verify the compliance within a thirty-day term of any measures adopted to mitigate and offset environmental damages." Complementarily, the Regulations contained in the Environmental Secondary Regulations Text, includes additional provisions to implement the principles established in the law. Civil Liability: The general principle is established in the Constitution of the Republic (in the aforementioned Article 87). However, the Environmental Management Law and its Regulations contain basic norms regarding civil liability from those that infringe the law and other regulatory norms. Articles 41, 42 and 43 of the Environmental Management Law provide the following: "Article 41.- In order to protect individual or collective environmental rights, public action instituted by individuals, corporations or human groups is allowed for purposes of denouncing a violation of environmental rules, without prejudice to a constitutional protection appeal filed pursuant to the Political Constitution of the Republic. Article 42.- Any individual, corporation or human group can be heard in criminal, civil or administrative processes, after having deposited a bond for slander protection, brought on grounds of environmental infringements, even if their own rights have not been injured. The President of the Superior Court at the location where an environmental impairment has occurred shall be the competent authority to hear any actions resulting there from. If the damages comprise several jurisdictions, any of the Presidents of the Superior Courts at those jurisdictions shall be competent. Article 43.- Individuals, corporations or human groups linked by common interests and directly affected by the detrimental action or inaction may file lawsuits before the competent judge for damages and for the harm caused to the health or the environment, including the bio diversity and its components. Without prejudice to other applicable legal actions, the judge shall assess indemnifications to be paid by the responsible party to the directly affected persons, and to redress the damages caused. Furthermore, the judge shall assess a payment by the plaintiff equal to ten percent (10%) of the amount of the indemnification. Without prejudice to such payments ¿ and in the event that the directly affected community is not identifiable or if the matter involves the entire community ¿ the judge shall order that the amount corresponding to civil redress should be paid to the entity that is to perform the repair in accordance with this law. At all events, the judge shall determine in his ruling, in accordance with an expert's appraisal ordered, the amount required to repair the damages caused and the amount to be delivered to the members of the community directly affected. He shall determine, besides, who shall be the individual or corporation that is to receive the payment and perform repair works. Any claims for damages deriving from an environmental impairment shall be processed through a summary verbal proceeding." Furthermore, there are provisions of an adjective nature that specify procedures to be followed by the controlling authorities and that are contemplated in the Regulations to the Environmental Secondary Regulations Text as well as in the case of secondary Municipal Ordinances. Criminal liability: Lastly, Ecuadorian legislation also contemplates criminal actions against such persons that perpetrate certain environmental infringements. The sanctions depend on the type and conditions under which the purported criminal infringement was committed. Ecuador's Criminal Code includes a chapter specifically involving environmental offenses recently introduced in the year 2000 which is transcribed below: "CHAPTER X CRIMINAL OFFENSES AGAINST THE ENVIRONMENT Article 437A.- A person that, apart from the cases allowed by law, produces, introduces, deposits, markets, possesses or uses toxic or hazardous wastes, radioactive substances or similar substances that on account of their characteristics pose a danger to human health or degrade and pollute the environment, shall be penalized with two to four years imprisonment. The same penalty shall be applied to those who produce, possess, market or introduce chemical or biological weapons. Article 437B.- A person who infringes the rules on environmental protection by dumping wastes of any kind beyond the limits established by the law shall be penalized with one to three years imprisonment if such action causes or could cause damages or alterations to the flora, fauna, genetic potential, hydro-biological resources or the bio diversity, if the act does not constitute a criminal offense liable to more severe penalties. Article 437C.- The penalty shall be three to five years imprisonment when: a) the acts specified in the preceding article cause damages to the health of persons or damages to their property; b) the damage or alteration is of an irreversible character; c) the act is a part of clandestine activities carried out by the perpetrator; or d) the pollution acts seriously affect the natural resources required for an economic activity. Article 437D.- If, as a consequence of the polluting activity, there occurs the death of a person, the penalty established for unintentional homicide shall be applied, if the act does not constitute a more serious crime. If injuries result as a consequence of the polluting activity, the penalties established in Article 463 to 467 of the Criminal Code shall be imposed. Article 437E.- If the act does not constitute a more severely penalized criminal offense, a penalty of one to three years imprisonment shall be imposed upon any public official or employee acting by himself or as a member of an organization that authorizes or allows, against the law, to pour polluting waste of any kind beyond the limits set forth by the law, and upon any official or employee whose report or opinion has led to that result. Article 437F.- A person who hunts, captures, collects, extracts or sells any legally protected flora or fauna species by infringing the applicable legal and regulatory provisions shall be penalized with one to three years' imprisonment. The penalty shall be two to four years imprisonment when: a) the act is perpetrated during a seed production period or species breeding or growing period; b) the act is perpetrated against endangered species; or c) the act is perpetrated with the use of explosive materials or toxic, flammable or radioactive substances. Article 437G.- A person who extracts aquatic flora or fauna species during closed seasons or in prohibited quantities or areas, or uses banned hunting or fishing procedures, shall be penalized with one to three years' imprisonment. Article 437H.- A person who destroys, burns, damages or cuts down, in whole or in part, any forests or other legally protected vegetal, natural or cultivated formations shall be penalized with one to three years imprisonment, provided that the act does not constitute a more serious criminal offense. The penalty shall be two to four years imprisonment when: a) the offense results in a decrease of natural waters, soil erosion or modification of the weather system; or b) the offense is perpetrated in locations where there exist springs that supply water to an inhabited area or to an irrigation system. Article 437I.- A penalty of one to three years shall be imposed if the act does not constitute a more serious action if, without authorization or without abiding by the procedures established by applicable norms, a person uses any land reserved for ecological protection or exclusively for agricultural utilization in order to transform it into an urban expansion area or for extraction or manufacture of construction materials. Article 437J.- If the action does not constitute a more seriously penalized offense, the same penalty established in the preceding articles shall be applied to a public official or employee acting by himself or as a member of an organization that authorizes or allows, against the law, to unduly use land reserved for ecologic protection or for exclusively agricultural utilization for purposes other than those legally corresponding to it. The same penalty shall be applied to any official or employee whose report or opinion has led to that result. Article 437K.- A criminal judge may order, as a precautionary measure, the immediate suspension of the polluting activity as well as the definitive or temporary closing of the establishment involved, without prejudice to the orders issued by the competent authority on environmental matters." Conclusion: We can state, to conclude, that Ecuador finally has environmental norms ¿ with which one may or may not agree - but that exist in order to be complied with. Since this is a relatively new legislation, its principles have not yet been observed by the majority of private persons nor have they been strictly applied by the controlling entities. An exception to this rule, for instance, is the private hydrocarbon industry that has adapted its operations to international standards, and, as regards the control of the activity, the Ministry of Energy and Mines through the Office of the under Secretary for Environmental Protection. One must expect and trust that with the passing of time and with more awareness by the Ecuadorian peoples and industries, environmental control rules will be fully complied with so that the environment can be protected to live in it in accordance with what is provided in Article 23 of the Constitution of the Republic of Ecuador, that reads as follows: "Article 23.- Without prejudice to the rights set forth in the Constitution and in the international instruments in force, the State shall recognize and guarantee to the people the following: ¿ (6) The right to live in a healthy, ecologically balanced and pollution-free environment. The law shall establish restrictions to the exercise of certain rights and freedoms for environmental protection." Jaime P. Zaldumbide