Pedro Sáragga Leal March 8 1999 Overview (March 1999) PLMJ | Environment & Climate Change - Portugal Pedro Sáragga Leal Environment & Climate Change In General The Basic Law on Environment Environmental Components Human Environmental Components Instruments of Protection Penalties and Remedies In GeneralThe Portuguese legal regime governing environmental issues starts by being set out in the constitution itself.The latest version, dated 1998, reinforces the relevance of environmental rights and legal interests. The most important statement regarding the environment can be found in article 66, which states that citizens have the right to a clean, sound and balanced environment, as well as a duty to defend such environment. This article governs environmental guidelines in close relation with the aim of 'quality of life', urban development and planning, natural resources policy, pollution and erosion prevention measures and promotion of natural parks, wildlife reserves, historical zones and landscapes. Flanked by provisions concerning housing and urban planning on one side and family values on the other, the environment is presently seen as a boundary to numerous economic activities bound to affect the environmental balance. The Portuguese legal regime on the environment is also composed of legislation originating from or influenced by EU legislation, specifically on aspects such as environmental impact assessments. At a 'sub-constitutional level', the provisions both directly and indirectly linked to the environment are countless. Nevertheless it is worth considering the role played by the 'Lei de Bases do Ambiente', i.e. the Portuguese basic law on environment, contained in Law nº 11/87, April 7. The Basic Law on Environment Generally speaking it is not improper to say such an act should develop the guidelines set out in the constitution. In accordance with article 66 of the constitution, article 2 of 'Lei de Bases do Ambiente' (LBA) restates every citizen's right to a safe, humain and ecologically balanced environment, along with a duty to defend it. Although article 2 adopts the contents of article 66, it goes further, stating a state incumbency to increase levels of life quality, both for individuals, as well as for the community as a whole.It is expressly stated that an environmental policy shall ensure and promote the continuous use of natural resources in maintaining an essential element for self-sustained development. This is, in fact, a key concept in the Portuguese legal regime. Self-sustained development is the aim and balancing point between environmental concerns and the need for economic development. In order to ensure the purpose of self-sustained development, a complete set of principles have been established in article 3. As an example, it lays down the principle of prevention, according to which all acts with repercussions on the environment should be reviewed for elimination or reduction of its causes. The polluter is thus obliged to eradicate the source of pollution, reconstitute the previous situation and put a stop to any subsequent act likely to cause pollution. Another important specific principle is the principle of balance. This principle is in accordance with what has been said above. One should try to adopt the most suitable means to achieve a compromise between nature preservation and social and economical growth policies, bearing in mind a self-sustained development.It is proper to consider in these examples the principle of participation. This principle provides for an intervention of different social groups in the setting out and performance of an environmental policy, through representation methods, that is, through legal entities at all levels, both of a private and public nature. Three other principles are noteworthy. The first of those is the principle of the most adequate level of intervention. It requires the level of action to be implemented, to be the most suitable for the situation. Such levels are comprised of international, national, regional or local actions. Secondly, it is only fair to mention the principle of recovery. The principle of recovery obliges one to take all urgent measures deemed necessary for the limitation of any act or fact able to degrade any zones and protection of the surrounding environment. Finally, one should refer to the principle of liability. This principle sets out the need for all polluters to reconstitute or at least indemnify, any third party for damages caused by both direct or indirect action on natural resources. Environmental Components In accordance with article 7 for, the defence of the quality of environmental components, such as air, light, water, living and non living soil, flora and fauna, the state is permitted to prohibit or restrain any activities, as well as implement any necessary measures. In relation to the air, the emission of any form of pollution that may affect the quality of air is conditioned, alongside with the obligation of any pollution industries to adopt suitable devices to prevent or diminish pollution levels. Light is, under article 9, a right linked to health and well-being, both in the home and in the office. An individual should be able to have suitable light conditions, but artificial lights, namely those used for advertising purposes should not constitute a problem for adequate rest. Water resources are another sector of environmental components requiring legal protection. Article 10 responds to that need, requesting a rational use of water, along with the development of actions bound to increment the optimal levels of water use, the setting of a coastal protection strip and the adoption of agricultural and industrial techniques and proceedings aimed at water consumption optimization. The LBA also reflects the general demand towards industries for use of water treatment before discharging its residue into open water ways. Nevertheless, water resources are subject to many legislative acts, which govern certain aspects in detail. Such specific legislation is unchanged by the LBA as the latter interpretes those acts, notwithstanding what they state. One other environmental component is soil. Article 13 deals with this component, demanding a prevention against degradation and improvement of fertility and regeneration cycles, in order to achieve an ecological balance. All use of chemical products is subject to specific legislation. Nevertheless, the proprietors and in general all occupants of land may be subject to a compulsory adoption of technical works, for soil protection purposes. Special note must be made of the use and soil occupancy for urban and industrial purposes, which must be put in the context of the nature, topography and fertility of the said soil. Underground resources is another source of concern for the LBA. Article 14 provides for its preservation stating that the exploitation of said resources should bear in mind, among other aspects, the preservation of nature overall, the regeneration of resources, the recovery of the landscape, the rational exploitation of water sources, etc. Finally, the LBA highlights as environmental components both flora and fauna . It is easy to understand the relevance of both vegetal and animal species as part of an ecologically balanced environment.Human Environmental Components The LBA also takes into consideration human components, such as the landscape, the natural and built patrimony and pollution, article 17. Landscape is subject to various instruments in order to have it protected and enhanced. Furthermore it will be subject to criteria to enable the definition of priorities for intervention purposes and to inventories and classifications (article 19). The patrimony, natural and built, cultural or historical is subject to planned actions to permit its adequate use, along with a recreational use (article 20). The law also considers as factors of pollution all actions and activities able to cause a negative effect on health, well-being, life forms, etc. According to the law, the causes of pollution can range from substances and radiations emitted to air, water, soil or underground, which alter its quality or interfere in its normal preservation or evolution on a temporary or irreversible basis (article 21).The LBA gives examples of the types of pollution, such as noise (article 22), chemical substances (article 23), residues (article 24) and radioactive substances (article 25).Instruments of Protection The LBA sets a general prohibition on pollution in article 26, with the emphasis being given to radioactive substances and micro-organisms able to alter the characteristics of environmental components. Nowadays similar provisions are set out in the Portuguese Penal Code. Understanding the relevance of a complete protection programme, the Portuguese legislator has developed a series of instruments for environmental policy, such as a national strategy for nature preservation, a national plan, a national agricultural and ecological reserve, environmental impact assessments, previous licensing of works, etc (article 27). One other initiative contributing to absolute protection lays in the classification of areas, places, and objects, such as architectural elements, natural habitats, etc. A mention should be made of the environmental impact assessments. All actions and activities which are able to have an effect on the environment should revert to the provisions in the LBA and be subject to an environmental impact assessment (article 30), being the environmental impact assessment a condition for the licensing of any construction, works or any other activity (see article 33). Article 31, without prejudice to any more detailed legislation governing environmental impact assessments, states that its contents will be composed of an analysis of the site and environment, the changes which will be provoked by the project and all measures to diminish or suppress the negative effects. In extreme cases the competent authorities may declare a certain zone as a critical zone or an emergency zone, according to article 34, imposing the necessary, convenient or suitable measures or actions in order to re-establish the previous condition of the environment. It is also possible to order the reduction or complete end to any industrial unit jeopardizing the environment and health or any components. In less dramatic situations it specially prescribes the execution of contract programmes, in which the parties (state and private sector) set several measures to assure an increasingly satisfactory level of environmental rules compliance or reduction on pollution levels (article 35). Penalties and RemediesAs mentioned above, Portuguese legislation covers crimes against environment. The LBA provides a reference to such possibility in article 46. Notwithstanding the existence of certain conduct described as crimes, article 47 of the LBA also calls the attention to the existence of misdemeanours, which can be applied alongside ancillary sanctions such as the prohibition of exercise of certain activities or even the compulsory close-down of any production units. It is self evident that any act against the environment, being the cause of damages will render the responsible party liable to reconstitute the previous situation and suppress the source of environmental damage, in accordance with what is stated in article 45 and 42. Even in the circumstance where damage is produced but the polluter has fully complied with all governing rules, such polluter will be held (objectively) responsible for such damage, if such damage emerges from an especially dangerous or damaging activity (article 41). In order to assure a certain degree of responsibility when it comes down to civil liability, article 43 obliges any moral or physical person carrying out potentially harmful activities to the environment to have insurance policies for the effect. One last reference must be made to the fact that articles 45 and 42 try to ensure a specific degree of protection to any person who considers that his right to a sound and ecologically balanced environment has been put at risk, through the mechanism of 'embargos' (urgent measures) and individual law suits as well as class actions. That is the way the LBA has seen as most appropriate to defend someone's right to a sound environment. One should not forget that the Portuguese system also provides for other forms of defence of environmental rights and interests, namely through administrative instruments, the rights and procedures of associations of environmental protection and new instruments set out in the Civil Procedure Code, whose interaction with the urgent measure previously set out in article 42 of the LBA is still to be completely understood. Notwithstanding the need for a somewhat more profound analysis of this matter, which was not the intention as set from the start, it is the author's belief that a reader can define the main aspects and features of Portuguese Legal Regime concerning the basis of environmental protection from the laws mentioned above.For further information on this topic please contact Paulo de Moura Marques or Pedro Sáragga Leal at A.M.Pereira, Sáragga Leal, Oliveira Martins, Júdice e Associados, by telephone (+3512 1 319 7300) or by fax (+3512 1 3197400) or by e-mail ([email protected])The materials contained on this web site are for general information purposes only and are subject to the disclaimer.