environmental enforcement trends and other hot topics - rielaâ„¢

© 2009

Environmental Enforcement Trends and Other Hot Topics

Criminalization of Environmental Violations in ColombiaXimena Camacho, Macías Gómez & Asociados - Colombia

Other Developments in Latin AmericaGloria Park - Santamarina y Steta, S.C. - México

Pamela Ferro - Estudio Grau Abogados - PeruCarlos Romo - Baker Botts, L.L.P. - Austin

(Updates from Ecuador and Chile RIELA members)

HOT TOPICSHOT TOPICSBYBY

XIMENA CAMACHO ROMEROXIMENA CAMACHO ROMEROMACMACÍÍAS GAS GÓÓMEZ & ASOCIADOS MEZ & ASOCIADOS

ABOGADOSABOGADOSBogotBogotáá, Colombia , Colombia

20102010

NEW ENVIRONMENTAL NEW ENVIRONMENTAL LIABILITY REGIMELIABILITY REGIME

Law 1333 of 2009Law 1333 of 2009

The new regulation establishes a complete sanctioning system for all environmental legal transgressions, the resources of theenforcing authority, the severity and certainty of the imposed sanction, the duty to notify the administrative measure to the Attorney General’s Office for the investigation of the Environmental Crime, if any, among other issues.


Law 1333 of 2009Law 1333 of 2009

ENVIRONMENTAL LAW VIOLATIONS:ENVIRONMENTAL LAW VIOLATIONS:

Environmental law violations are defined as illegal acts or omissions, which breach the rules of the Renewable Natural Resources National Code, and all other regulations intended to protect the environment and all natural resources.


Law 1333 of 2009Law 1333 of 2009

PRESUMPTION OF INNOCENCE:PRESUMPTION OF INNOCENCE:

ARTICLE 29 NC: ARTICLE 29 NC: Everyone is presumed innocent until declared guilty. Anyone who is accused has the right to a defense and to be assisted by a private counsel or a public defender, during the investigation and trial. Also to a fair public trial without undue delay, as well as to submit evidence and to controvert those against him, to appeal if judged guilty, and not to be judged twice for the same act.


Law 1333 of 2009Law 1333 of 2009

PRESUMPTION OF GUILT AND PRESUMPTION OF PRESUMPTION OF GUILT AND PRESUMPTION OF FRAUDFRAUD

The New Regime presumes both guilt and fraud on those charged with violations of the Environmental Law, which completely shifts the Colombian traditional sanctioning system. Would this imply the declination of the presumption of innocence?


Law 1333 of 2009Law 1333 of 2009

DECLARATION OF ENVIRONMENTAL DAMAGE:DECLARATION OF ENVIRONMENTAL DAMAGE:

The environmental authority practices its own evidence, evaluates the evidence submitted by the defendant, declares environmental damage, and punishes. Would this be a disadvantage for the due process?


Law 1333 of 2009Law 1333 of 2009

If the environmental authority declares the damage, and if guilt and fraud are presumed, what is the status of the offender in respect to the criminal process that must be initiated against him or her?


Law 1333 of 2009Law 1333 of 2009

STATUTORY ENVIRONMENTAL OFFENCES: Criminal CodeSTATUTORY ENVIRONMENTAL OFFENCES: Criminal Code

• Illegal use of renewable natural resources• Violation of boundaries for the exploitation of natural resources• Illegal management of harmful microorganisms• Damage of natural resources• Environmental pollution• Environmental pollution by negligent operation of mineral or

hydrocarbon deposits• Illegal experimentation of wildlife species• Illegal fishing• Illegal hunting• Invasion of areas of special ecological importance• Illegal exploitation of mineral deposits and other materials


Law 1333 of 2009Law 1333 of 2009

PENALTIES UNDER THE CRIMINAL CODE:PENALTIES UNDER THE CRIMINAL CODE:

Range from 10 to 50,000 legal minimum wages, and from 1 to 10 years of prison, depending on the crime. However, environmental crimes have no custody.


Law 1333 of 2009Law 1333 of 2009

SANCTIONS AND PREVENTIVE MEASURES:

Sanctions for environmental violations have a preventive, remedial and compensatory function. This means that the environmental sanction becomes a compensatory mechanism, rather than just punitive. The greater the damage, the higher the sanction.

Preventive measures have the function to prevent and avoid the occurrence of an event, the realization of an activity or the existence of a situation that harms the environment, the naturalresources, the landscape or human health.


Law 1333 of 2009Law 1333 of 2009

PREVENTIVE MEASURES:PREVENTIVE MEASURES:

• Written warning.• Preventive seizure of products, components, means or tools used to commit the infraction.• Preventive detention of specimens and products of wildlife.• Suspension of the work or activity that may cause damage to the environment, natural resources, landscape or human health.


Law 1333 of 2009Law 1333 of 2009

SANCTIONSSANCTIONS

1. Daily fines up to five thousand (5,000) monthly minimum legal wages.2. Temporary or permanent closure of the establishment, construction or activity.3. Revocation of environmental license, authorization, permit or registration.4. Demolition of the infrastructure work at the violator's expense.5. Definitive confiscation of wildlife exotic specimens, as well as the products, components, means or tools used to break the rules.6. Return fauna and flora.7. Community work under the conditions set by environmental authorities.


Law 1333 of 2009Law 1333 of 2009

AGGRAVATING CIRCUMSTANCES:AGGRAVATING CIRCUMSTANCES:

• The generation of an irreversible damage to the environment, natural resources, landscape or human health.• The commission of the infraction by hiding another one.• The attribution of responsibility to others.• The violation of several regulations with the same behavior.• The damage of natural resources located in protected areas, or reported as threatened or endangered, or on which there is a closure, restriction or prohibition.• To perform the illegal act or omission in areas of special ecological significance.• To obtain financial benefit, among others.


Law 1333 of 2009Law 1333 of 2009

ATTENUATION OF RESPONSIBILITY:ATTENUATION OF RESPONSIBILITY:

1. To confess the environmental law violation to the authority prior the initiation of any procedure that may result in the imposition of a penalty against the offender, except in case of flagrancy.

2. To compensate, mitigate or correct the damage by his/her own initiative prior the initiation of any procedure that may result in the imposition of a penalty against the offender.

3. That the environmental law violation doesn't cause any damage to the environment, natural resources, landscape, or human health.


Law 1333 of 2009Law 1333 of 2009

EXEMPTION OF RESPONSIBILITY:EXEMPTION OF RESPONSIBILITY:

1. Act of God2. An act of a third person, sabotage or a terrorist act.


Law 1333 of 2009Law 1333 of 2009

LIMITATION FOR THE IMPOSITION OF LIMITATION FOR THE IMPOSITION OF ENVIRONMENTAL SANCTIONS:ENVIRONMENTAL SANCTIONS:

The limitation of the environmental authority for the imposition of sanctions, is 20 years after the offense is committed. Under the last regime, there was a 3 year limitation.


Law 1333 of 2009Law 1333 of 2009

RUIA:RUIA:

Law 1333 created the public registry of environmental violators –RUIA - under the supervision of the Ministry of the Environment, which must contain at least the type of offense forwhich the offender was punished, the place where the events occurred, the imposed punishment, the full name and identification of the offender, and in the case of being a legalentity, the name of the company, the Tax ID Number, the name and ID number of the legal representative, among others.

THANK YOU !!THANK YOU !!

WATER MANAGEMENT IN MEXICOPROBLEMS AND OPPORTUNITIES

Current situation

Total population and coverage percentages

Population 103’263,388 inhabitants

Drinkable water supply 89.6%Sewerage 86%

10’739,392 No water supply

14’456,874 No sewerage service(INEGI)

Comparison NAFTA - partners

Water availability per capita/year•Mexico 4,312 m3•United States 10,293 m3•Canada 93,549 m3*Official information available for 2007.

Consumption of aquifers annual recharge volume•Mexico 94.28%•United States 34.43%•Canada 12.18%

WATER MANAGEMENT

Municipal Efficiency - operating official suppliers 36%

Municipal wastewater treatment30.80%

Non-municipal wastewater treatment (including industrial wastewater)15.07%

Infrastructure

• Current municipal wastewater treatment plants operating1,593

• Deficit – 4,779

• Current non-municipal wastewater treatment plants operating1,974

• Deficit 12,831

Problems/Niches

• Deficit coverage in water supply and related services.

• Deficit in wastewater treatment, which generated overexploitation of aquifers and high levels of contamination

• Deficient management, including collection.

Investment opportunities regarding water supply, sewerage and sanitation services in Mexico

In order to improve the water supply, sewerage and sanitation services in Mexico, involving the private sector, the National Water Commission and the Public Works and Services National Bank had created the Water Operating Organisms Modernization Program (PROMAGUA), in order to finance the coverage expansion and improve the quality and efficiency of the municipal water system operating organisms through: (i) Integral management improvement projects, (ii) Water supply and sewerage service projects, and (iii) Megaprojects.

PROMAGUA

•Services Supply Agreement.

•Joint Venture.

•Concession Title

Thank you!!!

Gloria Park T.SANTAMARINA Y STETA

Campos Elíseos 345, Pisos 2, 3 y 11Col. Chapultepec Polanco

11560 México, D.F.

Tel: +5255-5279-5446Fax: +5255-5281-3955

www.s-s.mx

ESTUDIO GRAUabogados

HOT TOPIC

ENVIRONMENTAL PUBLIC PARTICIPATION

Pamela Ferro

Most of the social conflicts developed in Peru, are environmental-social conflicts.

Public Participation

Community´s interests

Social License

Legal Requirements

Company´s interests

Social LicenseSocial Licence is the approval investors must obtain from local communities in areas where they operate (as compared to the legal license obtainedfrom governments).

The concept has emerged in particular with regard to the extractiveindustries, which often directly impact local communities when using orexploiting lands, water and other resources.

“You don’t get your social license by going to a government ministry and making an

application or simply paying a fee… It requiresfar more than money to truly become part of

the communities in which you operate.”

Pierre Lassonde, President of Newmont Mining Corporation.

Peru and Latin America represent a multicultural territory with different languages, religions, cultures and livelihoods.

Accomplishing the formal requirements is not enough to obtain the social license.

The investors will have to merge the formal and non formal needs of the local communities. This is a difficult but not an impossible task. The key is the appropriate use of the environmental and social instruments in a preventive and non corrective way.

Legal Requirements for Public ParticipationProcesses in Peru

Local communities have the right to consultation prior to the implementation of projects that exploit natural resources in their territories, as well as the right to participate in the decision-making processes involving such projects. (Political Constitution, General Env. Law, ILO).

Public Participation is a legal requirement for projects taking place in different sectors such as:

• Mining

• Oil, Gas

• Energy

• Manufacturing Industry

• Transport

In this context, the General Environmental Law in Peru establishes the right of all citizens to participate in the national environmental management.

SUSTANTABLE DEVELOPMENT

ENVIRONMENTINVESTMENT

Public Participation

ESTUDIO GRAUabogados

THANK YOU

Pamela Ferro

Ecuador - New Constitution

Constitution of Ecuador (2008) Art. 396:The State shall adopt appropriate policies and measures to prevent negative environmental impacts when there is certainty of harm. If in doubt about the environmental impact of any action or omission, although there is no scientific evidence of harm, the State shall take effective and appropriate protective measures. The liability for environmental damage is strict. Any damage to the environment, in addition to the penalties, will also imply an obligation to fully restore the ecosystem and compensate the affected individuals and communities. Each of the actors in the processes of production, distribution, marketing and use of goods or services will assume direct responsibility to prevent any environmental impact, mitigate and repair the damage he has caused, and to maintain a permanent environmental control system. Legal actions to pursue and punish environmental damages will not be barred by statute of limitations.

Ecuador - Prior Consultation

Constitution of Ecuador (2008) Art. 57:Prior consultation, free and informed within a reasonable time, on plans and programs of exploration, development and commercialization of non-renewable resources found within their lands, which might affect environment or culture, so that the community may participate in the benefits from such projects and receive compensation for the negative social, cultural and environmental factors causing them. The consultation to be conducted by competent authorities is mandatory and timely. If the consent of the community consulted is not obtained, the community may proceed as provided under the Constitution and the law.

Chile - Institutional Changes

Ley Nº 20.417 Creates A new, cabinet level, Minister of the Environment A Commission (" Superintendencia") to coordinate

regulations, and An Agency to evaluate environmental impact

statements

Changes motivated in part by admission to OECD How will new president Sebastián Piñera implement

changes First Test: HydroAysén dams project in Patagonia

Chile - Recent Supreme Court Decision

AES Gener Environmental permit revoked because of local zoning

regulations in "green zone" Supreme Court of Chile decision (June 2009)

"The Constitution of Chile guarantees all citizens the right to live in an environment free from contamination. The State is obligated to protect this right, and only with an uncontaminated environment guaranteed can the state permit development....The decision plays a preventive role....The Intercommunal Regulatory Plan of Valparaiso, which regulates the territory on which the thermoelectric center was to be built, set aside the land for green and recreational development only."

RIELA Members in Ecuador and Chile EcuadorJaime Zaldumbide

Perez Bustamante & Ponce Abogados

Ave. República de El Salvador No.1082

Edif. Mansión Blanca

Quito Ecuador

Tel:(5932) 2260666 ext 434

Fax: (5932) 2258038

Email: [email protected]

Web: www.pbplaw.com

ChileJuan Carlos Urquidi FellUrquidi & Asociados Abogados S.A.Augusto Leguia 100 of. 209 Las CondesTeléfono: (56-2) 233 3323 Fax: (56-2) 334 4230Email: [email protected]: www.urquidiabogados.cl

environmental enforcement trends and other hot topics - rielaâ„¢

Documents