22 Jun Enviromental Law
- The Constitution.
Pursuant to the Constitution, the environmental protection is a right as well as a duty. The natural environment, its flora and fauna, national parks, natural monuments and any other areas of special ecological importance are within the scope of the Constitutional protection. It is a fundamental obligation of the State to guarantee a pollution-free environment for Venezuela including air, water, soil, coastline, climate, ozone layer, flora and fauna. The State shall develop a policy of territorial organization oriented towards the goal of sustainable development.
The Constitution provides that any activity likely to cause damage to the environment must be subject to a prior study on its possible environmental impact. It also provides that whenever the State enters into agreements which may affect natural resources, a clause requiring restoring the environment to its original conditions is deemed to be included. Furthermore, the Constitution states that it is forbidden to import toxic and hazardous waste, as well as to produce and use any nuclear, chemical and biological weapons within the country.
- The Environmental Organic Act.
The Environmental Organic Act (the «EOA»), in force since December 22, 2006, is the main law governing environmental matters. The EOA sets the provisions and basic principles regarding environmental protection, sustainable development and public health. It also develops constitutional rights for a clean, safe and ecologically balanced environment.
Prevention, precaution, effective protection, social participation, and environmental education are of the outmost importance within the nation’s environmental policy. As an example, anyone interested in executing projects that require the use of natural resources, shall develop permanent educational campaigns that emphasize the importance of preserving the ecosystems and sustainable development.
The EOA authorizes activities that may cause reparable damage to the environment provided that these activities produce verifiable socio-economic benefits for the country and comply with the procedures and provisions established therein. Any activity likely to cause environmental damage must obtain prior authorization from the government before being carried out. This official authorization must set forth the conditions and restrictions pertaining to the activity in question, as well as guaranties, procedures and rules for repairing the damage that might be caused to the environment.
The Ministry of Environment (Ministerio para el Ecosocialismo, hereinafter “MOE”) can authorize the execution of activities that might adversely affect the environment. The MOE has powers to supervise and audit the compliance with environmental regulations, including powers to impose penalties in case of violation of such regulations.
Violation of the rules of environmental protection, failure to comply with the conditions attached to any particular authorization granted by the MOE, or any potentially pollutant activity is subject to civil and criminal sanctions for environmental damage.
- The Environmental Criminal Act (“ECA”).
The ECA enacted on May 2, 2012, establishes felonies against the environment which are to be punished by criminal sanctions accompanied by fines.
Under the ECA, a corporation could find itself subject to criminal sanctions if the environmental felony is proven to be the result of a management decision within the corporation’s scope of activity, provided that the felony is committed for the benefit of the corporation and with its own funds. The penalties applicable to legal entities include fines, a temporary or permanent prohibition of performing the activity generating the contamination, the closing of the corporation, the suspension of the authorizations previously granted, or an order to destroy or neutralize substances, materials or instruments adversely affecting the environment or public health. Moreover, managers or directors who commit a felony while acting in the name of or on behalf of the legal entity may also be liable for their actions, to the extent of their participation. According to the ECA, they could also be liable if the felony is committed by personnel under their supervision.
The ECA establishes two types of felonies against the environment. The first type deals with express acts or omissions that cause or may cause damage to the environment. The second type deals with the compliance of the environmental ancillary regulations enacted either by National Assembly or by the President, including the regulations covering the basic principles, limits of tolerance, requirements and procedures applicable to specific activities that threaten the environment. An infringement of the ancillary regulations constitutes a crime against the environment under the ECA.
- Express Crimes against the Environment.
The following felonies are expressly punished by ECA: (i) any quality reduction, poisoning, contamination or other action or activities causing damage to waters, lakes and beaches; the soil, topography and landscape; (ii) poisoning, contamination and other actions that pollute the atmosphere or the air; (iii) destruction, contamination and other actions damaging the flora, fauna, habitat or areas specifically protected by the law; and (iv) the misuse and mismanagement of solid residues (hazardous or not).
- The Water and Air Quality Act (“WAQA”).
The WAQA, which was enacted on December 28, 2015, regulates the quality of water and air, and grants the National Executive the power to establish the new parameters.
Similarly as in the EOA, activities that may damage the environment must be the subject of an environmental impact plan. Additional plans are to be made if new regulations are issued establishing new parameters. A two months term is stipulated for adjusting to any new parameters set. The plans to adjust to the new parameters shall include a chronogram.
Credits corresponding to environmental liabilities, fines and damages originating from the breach of any obligations under the WAQA, will have priority in case of the bankruptcy of the offender.
The WAQA contemplates the possibility of tax incentives to adjust to the new parameters set and the cooperation of local financial institutions to finance any such adjustment. The WAQA establishes special fines for the violation of the obligations arising therefrom.
- Ancillary Environmental Regulations.
Decree 638 of April 26, 1995, regulates air pollution. Individuals or corporations responsible for activities that may contaminate the air must be registered at the MOE. Authorities may request from time to time, evidence of the registration at MOE and copy of the certificate of compliance with environmental regulations. Decree 638 also provides the air-quality parameters for atmospheric pollutants.
Decree 2216 of April 23, 1992, regulates the handling solid waste, from domestic, commercial, industrial or any other non-hazardous nature, with the sole purpose of avoiding risks to society’s health and environment. Decree 2216 applies to activities related to: (i) solid waste management, including storage, recollection, urban cleaning, waste’s transfer, transportation and recycling; and (ii) final disposal.
Decree 1257 of March 13, 1996, regulates the procedures for the evaluation of activities likely to cause damage to the environment. It establishes three kinds of procedures aimed to obtain the authorizations necessary for territory occupancy and for affecting natural renewable resources. The requirements to file and the procedures to follow vary depending on the activity to be performed. These authorizations must be requested to MOE by individuals or corporations interested in the development of projects and programs.
Decree 069 of April 23, 1999, issued by the Federal District (nowadays Capital District) Government, regulates the cleaning of solid waste in public places. In particular the Decree sets rules for the owners of construction sites, domestic animals, owners or occupants of residential buildings and dwellings, to avoid the placement of solid waste in public places.
The Integral Waste Management Act, enacted on December 30, 2010, establishes the rules for waste management.
Decree 2635 of July 22, 1998 and the Substances, Materials and Hazardous Waste Act of 2001, establish, among others, that any explosive, ignitable, corrosive, reactive or toxic waste is considered hazardous waste. Any person that generates or handles hazardous waste must be registered with the MOE. On February 14, 2012, the MOE issued Resolution 003, in which it established the requirements for the registration of handlers of hazardous substances, materials and waste.
The generator of hazardous waste is responsible for its elimination or final treatment. Decree 2635 provides certain requirements for the storage, transportation and treatment of hazardous waste. It also provides specific rules for recycling hazardous materials. International commerce, imports and exports are regulated by Decree 2635. Infringements of its provisions mainly consist of fines and imprisonment.
Decree 883 of October 11, 1995, regulates the classification and control of liquid effluents. Corporations or individuals responsible for activities that discharge liquid effluents into bodies of water, lakes and/or into sewage networks must dispose of contaminant fluids according to the parameters set up under this Decree and by the MOE. Pursuant to the ECA, the uncontrolled disposal of liquid effluents could be a criminal act, even if the disposal does not produce damage to the environment. Under Decree 883, fluid effluents must be measured every three months and the results of said measures must be filed at the MOE. Individuals or corporations responsible for activities that may contaminate the water bodies must be registered at the MOE. Authorities may request from time to time, evidence of the registration at MOE and copy of the certificate of compliance with environmental regulations.
Decree 2217 of April 23, 1992, regulates noise pollution. Activities that produce noise must meet the noise control limits established by this Decree. The MOE may perform inspections to check that the limits are being observed. However, the noise control exercised by the MOE is not applicable to noise generated by commercial or domestic activities, land transportation vehicles or aircrafts.
- Environmental Permits.
Any individual or corporation involved in developing a project that may affect the environment must submit a proposal (Document of Intent) to the MOE, including information as to the purpose, location and description of the proposed project, and indicating which factors might impact the environment at each stage of the development, the project’s proposed time-frame and investment. Within thirty (30) consecutive days after receipt of the Document of Intent, the MOE should establish a plan for an environmental evaluation, likely consisting of an Environmental Impact Study.
An authorization to occupy the territory, issued by the MOE and the regional executive head (if in the territory of more than one state, by the President), must be obtained before developing a project. An Environmental Impact Study and a Social Impact Study must be done prior to seeking authorization.
The Environmental Impact Study would normally include the following information: (i) a preliminary description of the project’s environment, design, location and foreseeable development; (ii) a definition of the area to be affected by the project; (iii) a description of the project’s possible ecological impact; (iv) information as to the scope and methodology of the study, given the information at its disposal, adding a description of preventive and corrective measures, an analysis of the different designs, sites and technological options, programs, an environmental supervision plan and a summary of the study; (v) a working plan; and (vi) and identification of the working team, naming the consultant performing the study.
The proposal in question must be approved or rejected by the MOE within forty-five (45) consecutive days following filing. If the project is approved, it must adhere at every stage of its development to the parameters and conditions established by the MOE.
The filing of an Environmental Impact Study will be required by the MOE for activities such as mining, hydrocarbon exploration and production, forestry, agro-industry, aquiculture, electricity, industry, transportation, waste disposal, development of tourism infrastructure, urban development and construction, development of other infrastructure projects, among others.
May 7, 2020