The Polluter Pays - Part 2

by Beatriz Peralta Quesada

RESOLUTION 2

Docket: 99-005688-0007-CO
Res: 2000-01669

CONSTITUTIONAL COURT OF THE SUPREME COURT OF JUSTICE San José, at fourteen hundred hours and fifty one minutes on February eighteen two thousand and two.-

Remedy of relief filed by Rafael Angel Zamora Fernández, holder of identification card number 1-563-370, against the Environmental Administrative Tribunal of the Ministry of Environment and Energy.

Resulting that:

1. Received in writing in the Secretariat of the Court at 14:09 hours on August 11, 1999 (folio 1), the petitioner files a remedy of relief against the Environmental Administrative Tribunal of the Ministry of Environment and Energy and manifests that through resolution number 246-99-TAA, at eight o’clock the morning of August 3 of this year, the Environmental Administrative Tribunal imposed a sanction with joint and several liability, in his capacity as representative of the company named “Constructora Zurquí, Company Limited", without having been part of the process and without being granted any prior opportunity to exercise his right to defence. The arbitrary conduct is invoked by the Tribunal as set forth in article 101 of the Organic Environmental Law, however, that norm does not allow for the imposition of a joint and several liability, without citing and giving the corresponding audiences to those that the law regards as having civil co-responsibility. He considers that the contested facts violate the contents of article 39 and 41 of the Political Constitution and, therefore, requests that the remedy be declared without merit.

2. Mario Leiva Vega, Hugo Quesada Rivas and Andrés Barrantes Rodríguez, in their capacity as President, Vice-president and Secretary respectively, of the Environmental Administrative Tribunal, submitted their brief under oath in the following terms (folio 8): the Organic Environmental Law, in its article 101, orders that the officers of the company who cause damage to the environment, by action or inaction, will be joint and severally liable. Through resolution R-121-99-TA, the company Constructora Zurquí was cited, in the person of the defendant, who is its legal representative, so that there is no need for the double imputation of charges, neither is it necessary to instruct two independent administrative proceedings. The defendant, being the representative of the accused company, had full knowledge of the facts attributed to him and the actions and damages that his company was causing the environment. They consider that the resolution 246-99-TAA does not violate the principle of due process and, furthermore, in the proceedings, the company was granted audience and the ordinary remedies contemplated in article 111 of the Organic Environmental Law and 346 of the General Public Administration Law. They add that the defendant can not claim tacit ignorance of the law because he participated in each phase of the administrative proceeding instructed by that office. They add that the sanction of joint and several liability imposed on the defendant is not arbitrary as it is expressly authorized by the Organic Environmental Law. Based on the foregoing, they request that the remedy be declared without merit.

3. In the proceedings that followed, the legal prescriptions were observed.

   Magistrate Calzada Miranda writes; and,

   Considering:

   1. Proven facts. Of importance for the decision on this matter, the following facts are considered as duly demonstrated (be it because they have been so accredited or well because the petitioner has omitted to refer to them as foreseen in the original writ.):
      1. That docket number 30-98-TAA of the Environmental Administrative Tribunal of the Ministry of Environment and Energy followed an administrative proceeding against the company Constructora Zurquí S.A. for infraction of the Organic Environmental Law.

      2. That through resolution N° 121-98 of the Environmental Administrative Tribunal, an ordinary administrative proceeding was initiated against the company called Constructora Zurquí Company Limited (folio 459 of the administrative docket), communicating to Rafael Angel Zamora Fernández, in his capacity as the Attorney of the company, the commencement of the proceedings.

      3. That in resolution 246-99-TAA of the Environmental Administrative Tribunal, Constructora Zurquí S.A. and its legal representative were condemned for the environmental damage caused by the exploitation of the quarry and the alteration of the riverbed of Río Virilla (folio 522, Volume II of the administrative docket).

   2. Prior to the analysis of the substance of this present remedy, it must be pointed out that, within the problem of the destruction of the environment, the topic of liability for environmental damage must be highlighted as a point of special relevance, which has been given a different treatment, taking into consideration the inherent characteristics of the subject matter. The State, to ensure in some way the indemnification for the damages to the environment, has created a series of norms which regulate that which refers to environmental liability, without losing sight of the fact of the necessary equilibrium that must exist between the protection of the environment and the development of the activities of particulars. In Environmental Law, a distinct establishment of liability has been given so that it has evolved from a system of liability by guilt to liability by risk, which means greater coverage as this liability will arise even without the existence of guilt of the transgressor, provided that the activity he develops is deemed to be risky and, regardless, he assumes that risk with damaging consequences for the environment. It is a new concept of liability wherein what is discounted is the objective criteria of the subject, since for it to occur, it is irrelevant if he acted with guilt or not; it is sufficient that the damage occurred for there to be consequent immediate liability. In this way, on many occasions, it is not possible to determine who is guilty, or which legal norm has been infringed upon, because in the majority of cases, the damage is the product of inaction, but, certainly, it is detrimental to third parties or the State who and which are necessarily the object of indemnification. Liability for environmental damage is similar to risk liability, which allows greater coverage so as to establish liability against specific subjects, for the purpose of remedying the damages caused by their industrial exploitations or other kind. This objective liability does not take into consideration the conduct of the subject because what is important is the damage sustained and, as such, the individual will always be liable, regardless of what was his wilful participation in the fact. The point originates more so in the creation of a risk, from which it is understood that, the individual who, through his activity or inactivity, produces some damage or puts at risk the integrity of the ecology of the environment, has to be accountable for it. The responsibility for environmental damage is fundamentally more indemnifiable than restitutive because, in the majority of the cases, the damage produced is irreparable and the only course of action is to demand from the polluter economic indemnification. Within this context, one has to understand the context of article 101 of the Organic Environmental Law, which states:

      "Article 101.- Liabilities of the offenders

      Without prejudice to the liabilities of another nature in which they may result as participants in any of its forms, the perpetrators of the infractions of the present law or those that regulate the protection of the environment and biological diversity, be they physical or legal persons, will be joint and severally liable for the damages and harm caused. Jointly, the officers of the company will also be accountable for the activities which cause damages, whether through their action or inaction (...)"

      The Organic Environmental Law further confers full authority to the Environmental Administrative Tribunal to impose sanctions for the infractions of said Law, before the interposition of the corresponding administrative proceeding. This is the competent organ for directing the proceeding whose ultimate objective will be to attribute specific liability for the damage caused to the environment. Evidently, as in any sanction proceedings, it is necessary that broad application of the informing principles of the right to defence and due process be given so that the company accused of occasioning the damage may prove that it is not liable.

   3. The Substance. In the case under examination, it is observed that the essential requisites for the compliance with due process were met and, as such, in resolution number 121-98-TA at 14:00 hours on June 2, 1998 (visible in folio 459 of the administrative docket, Volume II), audience was granted to the company Constructora Zurquí S.A., through its legal representative, who is also the defendant, in order that he be present in the process, indicating to him also the expressed facts of the claim and citing him to an oral and private appearance, so that he appears in person and not by proxy, for the purpose of receiving the allegations and evidence of the parts. So it is therefore, that the Court considers that there has been no violation of the right to defence and due process as protected by the Political Constitution, therefore, as previously indicated in consideration II, with reference to the type of liability which the case in question is about, "… said liability will arise even when there is no existence of guilt of the transgressor, provided that the activity he carries out is deemed to be dangerous and, regardless, he assumes the risk with damaging consequence for the environment.…", which means that, having determined that liability exists on the part of the company being sued, as occurred in the longstanding case, process in which, as indicated, this company was represented by the defendant and had opportunity of defence, the related liability, which is that established in article 101 already cited, -that it corresponds to the officers of the company sued-, is an objective liability that does not require the demonstration of guilt or negligence of the officer of the company to be demanded, solely that which is derived from the action of the company. Therefore, taking into consideration that the defendant was the legal representative of the company and, at the same time, an officer of the same, he can not allege ignorance of the process or of the application of the law as the person responsible for it, and so he can not be absolved. It is important to point out, moreover, that in this matter, in all stages of the proceedings, the defendant was present, with the legal support of his lawyer, and the capability even of appealing the resolutions dictated. That is to say, at every moment, his right to defence was assured in a proceeding in which all the informing principles of due process were respected, to the extent that it is not acceptable to the Court the argument that for having been condemned as joint and severally liable, it placed him in a state of being defenceless. In light of the foregoing, the Court considers that the remedy must be declared without merit.

As such:

The remedy is declared WITHOUT MERIT.

R. E. Piza E.
President.
Luis Fernando Solano C. Luis Paulino Mora M.
Carlos Ml. Arguedas R. Ana Virginia Calzada M.
Adrián Vargas B. Alejandro Batalla B.
Project: calzada
Routing: \\\\salas\\sys\\salacons\\comun\\scij\\enviado\\00-01669.doc
Prepared: 1/2/01 11:54 hrs – Final edition: 1/2/01 11:55 hrs
Sala.dot version: 5.1

RESOLUTION 3

This Court, having resolved the action of unconstitutionality N° 2886-01, promoted by those taking actions against the Executive Decree N° 2628 MINAE which repealed dispositions 19 and 20 of Decree N° 25705 MINAE, for the purpose of exempting from the study of the environmental impact those works carried out in the zones of the country in which the local Municipality has a regulatory plan, the Court indicated:

"V.- Examination of articles 1 and 2 of Executive Decree 26.228-MINAE, which reformed articles 19 and 20 of the "Rules of Procedures of Setena":

Article 19, paragraphs 1 and 2 of section a) in its current text disposes:

".....The projects, works or activities that are not subject to the process of environmental impact evaluation and the presentation of the FEAP before SETENA, will be those that are located in geographic areas possessing the following characteristics:

1. That are located in territories where there exists regional planning, on a scale no greater than 1:50 000, and

2. That, in addition, there is a Regulatory Plan in effect, of a provincial nature, provided that they are not located in the following special areas: (....)"

In the case of article 20 of the same normative body, section a) is contested in so far as it shows for which activities, works or projects a Preliminary Environmental Evaluation Form must be presented, therefore:

"Urban projects and communal residences that are not classified as being of social interest, at the preliminary stage of the project, the total area of the ranch being greater than ten thousand square meters”.

As can be appreciated from simply reading the transcribed norms, the Regulation text being debated, excludes environmental obligations for cases that determine, in a generic manner and without technical justification, (vgr. that there is a regulatory plan, a regional plan having to do with urban projects with an area greater than ten thousand square meters), which puts into evidence an excess of Executive Power in the exercise of its regulatory authority. Constitutional article 50 is a direct source of the right of “every person” to a healthy and ecologically balanced environment, which relates the protection of the environment, considered in the broadest sense possible, to the Public Powers, in the application of the protective norm. Repeatedly, this Court has shown that the development of the fundamental rights and public liberties is the reserve of law; it is for this reason that, in this field, the regulatory powers that the same Political Constitution reserves for the Executive Power, is inconceivable without the existence of a law. It has already been said that the Organic Environmental Law establishes in article 17, as a development of what is disposed in constitutional article 50, the obligation of having an environmental impact study done in order to carry out activities or projects that, by their very nature, may alter or contaminate the environment. As the District Attorney’s Office successfully indicates in its report, the environmental impact study is conceived by the legislator as a technical procedure that allows for the control of possible alterations to the environment with consequent affect on the ecosystems. Without a doubt, it is a technical subject matter whose regulation in detail escapes the logic of the legislative procedure and may, as a thesis of principle and within the existing legal framework, be regulated by the Executive Power. The Organic Environmental Law indicates with clarity that "...Human activities that alter or destroy elements of the environment or generate residues, toxic or dangerous materials, will require an evaluation of the environmental impact as created in this law...", which allows for the affirmation, correctly read, that no human activity that may alter or contaminate the environment can disregard the referenced environmental impact study. The formula that the Executive Power has created to enable it to determine, "prima facie", if the human activity carried out may alter or destroy the environment, is the submission of the form called “Preliminary Environmental Evaluation”. It is not, therefore, as maintains the Environmental Administrative Tribunal in its brief, that the Executive Power has absolute discretion in the indication of the projects that must conduct an environmental impact study, because, by disposition of the very Political Constitution (art. 50) and the Organic Environmental Law, as a general principle, all human activity that modifies the environment “will require” the referenced study. It is, therefore, the condition of the project or the work that will determine, in each case, whether the environmental impact study is required, and not the establishment of arbitrary conditions by way of regulations. The regulation must only establish the form in which the conditions of the project will be known and that is what will determine the propriety or impropriety of the environmental impact study. This means that the defence and the preservation of the right to a healthy and ecologically balanced environment, considered in constitutional article 50, is the fundamental right of every person and functions as an inescapable general principle, such that, in this matter it is not possible to make generic exceptions (in urban matters and other topics which articles 19 and 20 address) in order to exonerate the compliance with environmental obligations for the simple reason that, by so doing, one runs the risk of deconstitutionalizing the guarantee of state response in defence of the environment. So then, the mechanism used by the Executive Decree of determining "a priori" the activities or works that are exempt from the environmental study, in view of the size of the work, the existence of regulatory plans, the number of persons involved in the operation or activity, the number of rooms, the classification of the project, (social interest) or the use of the land, puts into evidence an excess in the exercise of its regulatory powers which surpasses the reference to article 17 of the Organic Environmental Law and makes irrelevant the right of the inhabitants that the Public Powers exercise direct environmental control –not by delegation to directors- in the application of the protective legislation. This does not mean that the Executive Power, through regulations, can not determine based on precise technical studies that a specific activity or project does not require the environmental impact studies; but it supposes that such a determination is duly motivated and justified. Bear in mind that in the case of exempting a superior level of control (constitutional), the reasonableness and the proportionality of the exceptional circumstance will be reviewable by the judge, whether through ordinary legal means or by constitutionality control. But to the general regime established by the derived Constituent, a generalized exception is inadmissible if it has no other motivation or basis other than the existence of the norm that so declares it. The indicated situation is more serious if, as maintained by the Minister of the Environment in her brief, the norms contested were not object of a detailed analysis on the part of the Executive Power, by which it is affirmed that the reform is unconstitutional due to defects in the proceedings of the consideration, study and promulgation of the Decree. On the other hand, it is the criteria of the Court, numeral 20, -in its original text-, that even when it establishes lesser parameters of exclusion for the environmental impact study, it must also be declared unconstitutional by relation and consequence, in so far as it reiterates generic assumptions of exclusion from the environmental impact study and, as already indicated, it is the nature of the project and NOT the regulatory description that must establish if the referenced study must or must not be complied with; consider that, by legal disposition “all" human activities that transform the environment must be subjected to the preliminary assessment study. On the other hand, the District Attorney’s Office maintains that, in view of urban projects, the reformed norm damages the principle of reasonableness and the Court must conclude, in application of its own jurisprudence on this matter, that it is so, in so far as there has not been presented before this Tribunal one technical justification for the “precautionary” exclusion in a “generic manner” of certain urban projects from the technical studies, whereby, in addition, we are in the presence of an irrationality, which is evident and manifest, and which must be declared by this Court. The Court must insist that it is the specific situation of the project or human activity which may cause it to be unnecessary to submit an environmental study, not the regulatory norm. In effect, a very small area of land may be biologically important and, therefore, require all kinds of environmental control; and another large area may not be of importance; furthermore, the existence of a regional plan or provincial regulator that establishes the use of the land does not exclude the obligation of the study, as seems to be the understanding of the urbanizing company, because the specific environmental control established by numeral 17 of the Organic Environmental Law is upheld in article 50 of the Political Charter and can not be understood as non-applicable by local norms, on the contrary, they must integrate themselves with a view to that mandate of protection. For a better understanding of the analysis, one may take similar exercise in the matter of sanitation control; so, for example, the obtainment of a commercial patent in a zone of restricted use – commercial linchpin - does not automatically imply the sanitary authorization for its functioning; what has to be considered in each specific case and in an independent manner are the requirements which the local development establishes for that activity. In the first assumption, there is in the local planning and, in the second, public health. The fact that the use of local land establishes that the zone in which it they intend to develop the sixth stage of the Urbanization Buenos Aires is a "residential zone", does suppose the non-application of the protective environmental normative, so that the urban developer must also comply and it will be the specific condition of the land and its location that will ultimately determine the environmental viability of the project.

VI.- Municipal authority and environmental control.- The Court has repeatedly acknowledged the authority of the local governments to have their own territorial organization by way of regulatory plans; but the existence of these –which in the majority lack accessories of organization, from the point of view of a healthy and ecologically balanced environment- does not result in the non-application of the protective environmental legislation as, unfortunately, is understood by the Environmental Administrative Tribunal. To the contrary, the Court considers that it must be a fundamental requirement that, obviously, the fact that every regulatory plan for urban development must have at hand, before being approved and developed, an examination of the environmental impact from the perspective given in the constitutional article 50, does not attack the constitutional principle of municipal autonomy so, therefore, the organization of the land and its diverse regimes, is compatible with the scope of the superior norm, above all, if one takes into consideration that this disposition establishes the right of all inhabitants to obtain an environmental response form all public authorities and it includes, without a doubt, the Municipalities which are not exempt from the application of the constitutional norm and from its legislation of development. It is evident that in this case the national and local interests coincide totally and, in light of this, the local governments can and should demand compliance with the environmental requirements of their territory and, in the case of a conflict, with the principal authorities of environmental matters; the controversies may be submitted to the jurisdictional control, depending on the nature of the infraction. It is for this very reason the protective environmental norms are not compatible, from a constitutional point of view, with the powers and competencies of the municipalities which are obligated, by imperative of article 50 of the Political Constitution, to be generous in the protection of the environment. Based on the foregoing, in the considerations presented, it is necessary to declare as unconstitutional the modification of articles 19 and 20 of the Rules of Procedures of the National Technical Environmental Secretariat, SETENA, in Spanish) introduced by Executive Decree 26.228-MINAE and, by relation and consequence, it is declared as unconstitutional numeral 20 of the original text of the referenced Rules of Procedures of the National Technical Environmental Secretariat, SETENA, in Spanish) Executive Decree 25.705-MINAE." (RSC 01220-02).

As indicated in the previous transcription, this Court declared unconstitutional articles 19 and 20 of the Rules of Procedures of the National Technical Environmental Secretariat and numeral 20 of the original text of that same normative body and because these norms serve as the basis for the resolutions dictated by the Municipality of Montes de Oca and the Ministry of Environment and Energy, for allowing the sixth stage of the project urbanization Buenos Aires without the corresponding environmental studies, be it resolved that:

The Resolution of the Minister of Environment and Energy N° R 799-99-MINAE of June 11, 1999 and the resolution of the Environmental Administrative Tribunal N° 93-98-TAA at thirteen hundred hours on April 29, 1998, are annulled and is the reason for which the resolution by SETENA, which provided for the environmental impact study N° 326-98 and N° 106-97-TAA which redirects the matter to the Administrative Environmental Tribunal for action, regains effect. The construction permit N° 6168 granted to the company ACASUSO S.A. by the Municipality of Montes de Oca on May 25, 2000, without an analysis of the environmental damage of the work to the Province, is annulled; this is without prejudice to the responsibility of the State and the Municipality of Montes de Oca before the company Acasuso S.A. for the works carried out under the protection of the authorizations which were granted unconstitutionally. The permits granted to that private company do not suppose, under any term, a license to cause damage to the environment and the company and its persons, as corresponds, will be accountable for the environmental damage done, in the terms established by the Organic Environmental Law, which will be determined administratively. The project will not be continued as long as the environmental requirements of the law are not complied with. Within the corresponding administrative process, the participation of the residents and interested parties must be allowed, in the terms admitted by the Organic Environmental Law. With regard to the company Acasuso S.A., the remedy must be declared without merit, solely in so far as it acted within the terms of the permits granted and annulled by the Court.

BIBLIOGRAPHY

Web:

www.europa.eu.ins/
www.epa.gov
www.anam.gob.pa/
www.rebelion.org/ecologia/

Constitutional Court:

• Res: 2886-01
  SALA CONSTITUCIONAL DE LA CORTE SUPREMA DE JUSTICIA
  
• Res: 2002-01645
  SALA CONSTITUCIONAL DE LA CORTE SUPREMA DE JUSTICIA
  
• Res: 2000-01669
  SALA CONSTITUCIONAL DE LA CORTE SUPREMA DE JUSTICIA

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