By María Laura Lapalma
Environmental Law is a new discipline, born decades ago when the first ecological alerts began to be noticed. It has a marked symbiosis with the right to development and health, and also stands as a conciliator of conflicting interests that dispute over the same environmental good.
The definition is not a matter of consensus within the doctrine. This is due, among other reasons, to the fact that there is also no consensus around the concept of the environment. In general terms, and without intending to enter into such a debate, it can simply be mentioned that there are broad positions and restricted positions of the concept of Environmental Law. The former propose to include within their scope not only matters relating to the protection of the environment itself, but also other related issues, such as energy sources, food law and the preservation of cultural heritage. The latter, on the contrary, restrict the scope only to regulation on the use and exploitation of natural resources and the fight against pollution.
However, without entering into such polarizations, certain conceptualizations proposed by notable jurists are remarkable. These are the cases of Mario Valls, who understands that "Environmental Law regulates the creation, modification, transformation and extinction of legal relationships that condition the enjoyment, preservation and improvement of the environment" (Valls, 2001). Or, the proposal by Brañes Ballesteros, who points out it as “that sector of the legal system that regulates human behaviors that can influence, with effects on people's quality of life, in the interaction processes that take place between the human system and its environmental system ”(Brañes Ballesteros, 2000).
Its content is equipped with elements of Private Law (rules of Civil Law, Insurance, etc.) and Public Law (Constitutional Law, Criminal Law, Administrative Law, etc.) and also rules of public order. In addition, it is eminently supportive, such is the case of the postulate of intergenerationality - reaching the planet in favorable conditions for future generations -, an outstanding feature of Environmental Law, and that differentiates it from other legal branches.
The environment is a legal asset –understood as that which characterizes people, things or institutions that serve for free development in a social and democratic State of Law (Kindäuser, 2009) -. Within the protected legal assets are individual those that serve the interests of a person or a certain group of people; collectives are called those that serve the interests of many people, the generality. The environment is inserted within the latter. In other words, the environment is a collective legal asset, the sense that it belongs to a generality of individuals -as such it is also indivisible -in the sense that it is conceptually, factually or legally impossible to divide it and attribute it personally as portions -and it is unavailable- the use and exploitation correspond to all equally-.
Now, if the environment is a collective good, it is necessary to determine what type of rights fall on it. In other words, what is the nature of Environmental Law.
To do this, the classification of interests on collective property proposed by Lorenzetti (2008) must first be staked:
a) homogeneous pluriindividuals;
b) collective transindividuals and
c) fuzzy transindividuals.
In the former, it is a set of subjective individual rights with the particularity that they derive from a common origin, whether in fact or in law, and give rise to a collective action for individual damages. They consist of a sum of individual conflicts that accumulate procedurally. These are the cases of taxpayer lawsuits for the unconstitutionality of tax regulations, retirees, beneficiaries of social benefits, etc. They are called homogeneous rights because they have the same cause, which makes possible their protection in a collective process and the issuance of a single sentence for all.
The latter, on the other hand, are about a determined or determinable number of people linked to each other and / or to the counterpart, by a prior legal relationship. For this type of rights, the satisfaction of the claim of some implies the same result for all; just as one's injury actually extends to the entire community, making them indivisible and supra-individual. Examples of these are cases related to problems due to the lack of hygiene and sanitation in a factory or non-compliance with the conditions of the prison regime, among others.
Finally, third parties are those that belong to the entire community and at the same time to no one in particular, they frequently occur in the field of environmental and consumer protection. They belong to indeterminate or difficult to determine people, united by factual circumstances, such as living in the same city. In other words, this indeterminate or difficult-to-determine generality of subjects with the same right to the same legal asset, does not recognize a prior legal link, but is identified by factual and variable circumstances. And this is the case of environmental law.
Then, it can be affirmed that there is a diffuse transindividual right or interest on the environment, and in this lies the foundation of the broad legitimacy to access justice for violation of environmental rights (generally the affected person, the State, the associations protective of the environment, to all individuals, etc.).
Birth and evolution
Juste Ruiz (1999) identifies three stages in the history of the conformation of Environmental Law.
The first that started at the beginning of the 20th century until the First World War, called "environmental utilitarianism", where legal - environmental actions were aimed at protecting spaces whose ecological elements had a utility for production or that had an economic value because they were object of commercial use.
The second stage is situated in the period between wars, and the author calls it "era of virgin nature", whose actions were aimed at preserving certain areas of unique ecological endowment and areas of spectacular scenic beauty, especially the virgin territories that they had been subjected to colonization. Legally, it translated into the creation of parks and protected natural areas, as a way of keeping certain areas "isolated" from the interventions of civilization.
And the third stage begins after the end of the Second World War, which is when the specific environmental concern starts. The first regulations at that time were on specific elements of the environment or on certain natural resources. That is, they did not take the environment as a whole, but only specific objects (certain rivers, certain species of fauna or flora, etc.) were identified and they were subjected to a differentiated regulation.
It is only in the sixties, when global ecological concern begins, motivated by a series of diverse factors: the appearance of the first scientific reports that warned of the first global ecological crisis alerts; first civil society movements for environmental reasons and the voices of philosophical movements.
Among the former, stands out "Silents Sprint" by Rachel Carson, which sets a challenge to the "arrogance of taking for granted that nature exists for human convenience" (Carson, 1961); the "Tragedy of the Commons"; The Club of Rome's "Limits to Growth" and the Ecologist's "Blueprint for Survival" -which perceived the environmental crisis as a threat to human survival- were the most influential scientific documents of the time that introduced the debate around the need for conservation of the Earth.
As for the latter, there is a rise in civil society that begins to rise up against the adverse effects of "progress", paradoxically they were middle-class sectors of the countries - at that time - archetypes of a market economy: USA; England; RF from Germany. They understood the ecological crisis as a crisis of participation, feeling excluded from decisions with strong socio-environmental impact: use of pesticides, degradation of urban neighborhoods, dumping of toxic waste, construction of nuclear plants.
Third, philosophical thought begins to echo the theme, and it is in this way that the debate is inserted, proposing various models (some more extreme, others more moderate) of social organization in tune with the environment, which it became known as "the Green Movement."
It is in this context that, in 1972, the United Nations decided to convene the First United Nations Conference on the environment, which was held in Stockholm, Sweden. It was attended by the representatives of the States and what would also be the first legal instrument on Environmental Law with universal scope was adopted: the United Nations Declaration on Human Environment.
This document generated a first wave of insertion of Environmental Law in national legal regimes. In many cases, such an introduction was made in the first instance through the reform of the supreme norm of a legal system: the Constitutional Charter. Such were the cases of: Spain (1978) Panama (1972); Peru (1979, later replaced in 1993); Ecuador (1979, replaced in 1998) Chile (1980); Brazil (1988); Colombia (1991), to name just a few of them. Other countries, such as Venezuela, Mexico and Bolivia, without reforming their constitutions, have enacted general environmental laws. In addition, state agencies with competence in environmental management and control began to proliferate.
Nor in the context of International Law the Stockholm Declaration was a dead letter. After it, at the institutional level, the United Nations Environment Program (UNEP) was created, with the mission of providing executive guidance and acting as a catalyst for the development of international cooperation in environmental matters. This was the organization that promoted the adoption of many international legal instruments on environmental matters, both binding and non-binding, in matters such as air pollution, international waste control, fight against pollution of the seas and oceans, among others.
On the other hand, in the strictly political realm, towards the end of the 1970s, a new generation of "eco-politicians" understood the potential for emancipation and freedom underlying the ecological critique of industrialism.
In the 1980s, another scientific document would totally change the perspective on the environmental crisis: “Our Common Future”, from 1987, also known as the Brundland Report. This raises the need for a radical change in the production and growth model, by identifying in these the root of the environmental problem. The document understands that the question lies in moving from a quantitative growth model to a qualitative one, and for this it proposes the model and the term "sustainable development" is coined for the first time. Differentiate growth from development, and the latter understands the model that includes growth in the economy, but not at any cost, but rather combined with social policies of inclusion, poverty eradication, respect for cultural diversity, etc .; with political and institutional quality: strengthening of the democratic system; and with ecological preservation. In other words, development is one that combines economic growth with social well-being and environmental preservation. Sustainability refers to proposing an extractive, productive and consumption model that takes into account the satisfaction of current needs, without compromising those of future generations.
This paradigm is reflected for the first time in a legal text of universal scope with the Declaration of Rio de Janeiro of 1992, adopted in the framework of what was the Second United Nations Conference (after Stockholm) where the approach to the issue was located in the Environment and Development.
In the legal field, this Conference urged the States to enact environmental laws, recognizing Environmental Law as an effective instrument to promote the environmental changes that needed to be targeted. In addition to the Declaration, the Conference adopted Agenda 21, a comprehensive and well-developed program of environmental management on the road to sustainable development into the 21st century.
In Chapter 8, the guidelines for the integration of the environment with development were expressed in a general way, which includes the establishment of "an effective legal framework and regulations" and a special importance to International Environmental Law for implementation is recognized. of the Agenda. But, in addition, it emphasizes the difficulty of developing countries to put into practice this engine that generates effective environmental norms and regulations, and in this sense expresses that it is essential that these are based on rational economic, social, ecological and scientific principles ; and that the promulgated provisions are not fragmentary, but rather have solid support from institutional mechanisms and strong authorities in order to make Environmental Law effective.
After Rio, the wave of insertion of Environmental Law into national legal regimes continued, which had already started with the Stockholm Declaration. In the constitutional sphere, other reforms followed, such as the Peruvian (which replaces the 79), the Argentina of 1994, the Ecuadorian of 1998 (which replaces the 1979) and then reformed again in 2008, the Venezuelan of 1999, among other.
And the impulses for effective protection of the environment were not ignored either: the proliferation of environmental regulations did not stop only with the recognition of a right, but also judicial and administrative procedures were instituted to make them effective, to settle disputes that arise over environmental assets. and ensure compliance with the norm, in some cases inserting itself into the fundamental norm, such as the cases of Argentina (Article 43); Venezuela (article 26); Costa Rica (article 50). Others inserted it in infra-constitutional norms.
The Principles of Environmental Law
Now, going through the different edges and manifestations that Environmental Law makes both in the international context and in national legal systems, would be a tedious task and foreign to the purposes of this publication.
However, it is possible to trace those principles that inspire the different legal forms that protect the environment, and that were arrived at in the scope of the two United Nations Conferences (Stockholm and Rio de Janeiro) by general consensus of different sectors (scientists, States, non-governmental organizations, etc.) on what the environmental standard should illuminate.
Cafferatta (2004) defines the principles as “guiding ideas, which serve as a rational justification for the entire legal system; They are, therefore, general guidelines for legal assessment. Fundamental and informative lines of the organization ”. "The guidelines that inform some standards and directly or indirectly inspire a series of solutions so they can serve to promote and channel the approval of new standards, guide the interpretation of existing ones and solve unforeseen cases."
In other words, the principles are at the service of solving problems of interpretation of laws, ordering the legislative chaos, filling the gaps in those cases not foreseen by the norm and providing the platform to create new legal formulas.
The doctrine mentions many, we highlight only some of them:
Principle of intergenerational equity: enshrined in the Stockholm Declaration of 1972, whose principle No. 1 stipulates: “Man has a fundamental right (…) to the enjoyment of adequate living conditions in a quality environment that allows him to lead a dignified life and enjoy well-being, and has the solemn obligation to protect and improve the environment for present and future generations.
Also in the Rio de Janeiro Declaration of 1992 on environment and development, whose principle 3 says: "The right to development must be exercised in such a way that it responds equitably to the development and environmental needs of present and future generations."
Principle of prevention: it is one of the central axes of Environmental Law, tending to avoid the production of environmental damages, considering that, frequently, the occurrence of these are irreversible. Then, this principle proposes to anticipate the damage, with legal and political strategies and management instruments in order not to regret the negative consequences after the occurrence of these.
Based on this, a purely preventive system of liability for environmental damage was built, given that a subsequent sanctioning system becomes ineffective.
At the international level, it translates into the obligation to avoid transboundary environmental damage, stipulated in the Stockholm Declaration in principle 21 and reaffirmed in the Rio Declaration, whose principle 2 states: “(…) States have (…) the responsibility to ensure that activities carried out within its jurisdiction or under its control do not cause damage to the environment of other States or areas that are outside the limits of national jurisdiction.
In practice, this principle materializes with the creation of Environmental Impact Assessment systems, as a mandatory preliminary stage for the authorization of works and undertakings that could have repercussions on the environment. Territorial planning is also another instrument used to determine which human interventions are safe in certain areas and which are not.
Principle of Precaution: although it can be confused with the principle of prevention, they differ substantially. The precautionary principle orders to take the pertinent measures or not to act, in those cases in which there is a potential risk of the occurrence of damage, but there is no scientific certainty regarding this.
In other words, it orders to act by taking measures to anticipate the damage, in cases where it is unknown whether or not it may occur.
This principle was born towards the end of the 80s, when thinking on the matter began to change towards a more cautious and also more severe attitude, which took into account scientific uncertainties and the sometimes irreversible damages that could derive from actions based on scientific premises that could later turn out to be wrong (Juste Ruiz, 1999).
In international legal documents, as early as the 1980s, several were issued regarding sectoral regulations that prescribed this principle - such as the 1985 Vienna Convention and its 1987 Montreal Protocol on air pollution - but It is only in the 1992 Rio de Janeiro Declaration (principle 15) that it acquires a more general scope: “In order to protect the environment, the States must apply the precautionary approach widely according to their capacities. Where there is danger of serious or irreversible damage, the lack of absolute scientific certainty should not be used as a reason to delay the adoption of cost-effective measures to prevent environmental degradation ”.
Principle of unrestricted access to public environmental information; of citizen participation and access to justice:
To define them, there is nothing better than what is expressed in principle 10 of the Rio de Janeiro declaration: “The best way to deal with environmental issues is with the participation of all interested citizens, at the appropriate level. At the national level, everyone should have adequate access to information on the environment available to public authorities, including information on materials and activities that pose danger in their communities, as well as the opportunity to participate in the processes decision-making. States should facilitate and promote awareness and participation of the population by making information available to all. Effective access must be provided to judicial and administrative procedures, including compensation for damages and pertinent remedies ”.
There are three different but intertwined principles: the right to environmental information imposes the right to unrestricted access to it and, in contrast, the obligation to make it available to the public and private agents that possess it; The right to participate in decision-making processes is inspired by the need to combine environmental issues with a more participatory democracy, which translates into creating institutional mechanisms that house the possibility of hearing the voices of citizens ( such as public hearings, in many cases mandatory in Environmental Impact Assessments); and access to justice is the guarantee of effective protection and control of environmental rights.
Principle of cooperation: with a strong international imprint, both the Declaration of Stockholm (principle n ° 24), as well as that of Rio de Janeiro (principle n ° 7 and n ° 27), call for the cooperation of the States to jointly promote the conservation of the Earth. This invocation of a spirit of solidarity is due to the global nature of many environmental problems, which without the joint action of the international community would lack efficient actions in the fight against planetary degradation.
Legally, this translates into the obligation to promote and conclude international treaties and other instruments for this purpose; the obligation to transfer technology to developing countries; the duty to exchange relevant information; promptly notify and assist other states in environmental emergency situations; technical and financial assistance to countries in need; scientific and technological research; establish environmental monitoring and evaluation programs, among others.
Polluter-payer principle: It is one of the principles closest to the field of economics. The term is often confusing, in the sense that it is confused with the possibility of paying in exchange for polluting. On the contrary, what is sought is that the cause of pollution assumes the cost of prevention measures and combats it, without receiving in principle any type of compensatory financial aid (Juste Ruiz, 1999). What is sought is to reverse the trend of "externalization" of pollution, avoiding the transfer to third parties that, without being the cause, carry it through their health and the deterioration of the environment.
Although somewhat fearful, it was embodied in Principle 16 in the Rio Declaration: “National authorities should endeavor to promote the internalization of environmental costs and the use of economic instruments, taking into account the criterion that the polluter should, in In principle, charge the costs of pollution, taking due account of the public interest and without distorting international trade or investment ”.
Maria Laura Lapalma
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