Overview (October 2001)

Constitutional Provisions

The new Constitution contains a number of provisions on environmental rights and duties. The government's duties include:

• to provide mandatory environmental education at all levels in the education system;

• to protect the environment, biological and genetic diversity, ecological processes, national parks, natural monuments and other ecologically important resources;

• to guarantee a pollution-free environment where air, water, soil, climate, ozone layer and living species are awarded special protection under the law;

• to develop a territorial management policy;

• to present environmental impact and social and cultural studies in the case of any activities that could cause damage to ecosystems;

• to prevent toxic and hazardous waste from entering the country and to prevent the manufacture of nuclear, chemical or biological weapons;

• to regulate the use, handling, transportation and storage of toxic or hazardous waste; and

• to ensure that all agreements and permits involving natural resources include (even if not expressly stated) the obligation to maintain ecological balance, allow access to and the transfer of technology under terms agreed by the parties, and return the environment to its natural state when it has been altered.

Environmental Law

The Environmental Law, enacted in June 1976, was the first law that protected the environment. Any activities that may cause damage to the environment are controlled by the Ministry for the Environment. Control over energy, mining and hydrocarbon production is also exercised by the Ministry of Energy and Mines. General principles for the conservation, defence and enhancement of the environment are listed, as are activities that may cause damage to the environment.

The law is divided into three broad areas:

• guidelines for the administration and handling of activities liable to harm the environment;

• provisions creating and regulating national environmental protection agencies; and

• provisions setting out violations and their penalties.

The law provides for cases of strict liability. Persons having caused damage to public (or private) lands will be forced to indemnify this damage to the government (or owner). The only defences for responsible parties are the existence of force majeure or damage being caused by third parties. If several persons have contributed to damage, they will be jointly and severally liable.

The law follows several principles to achieve its objective, including sustainable development (as a means of obtaining a balance between the right to develop and the preservation of the environment for future generations), conservation, protection and improvement of the environment considered as public interest, as well as principles contained in international treaties such as the Stockholm Declaration.

Land Use Law

Enacted in August 1983, the Land Use Law includes provisions that govern the process of territorial zoning, taking into consideration the nation's long-term economic and social development strategy. The law regulates land use with the goal of ensuring the well-being of the population, optimum exploitation and use of natural resources, and the protection of the environment, in order to achieve comprehensive development.

Environmental Penal Law

The Environmental Penal Law (enacted in January 1992) supplements the Environmental Law. It defines environmental offences (ie, actions that violate the provisions concerning the conservation, defence and improvement of the environment). Crimes due to negligent or imprudent conduct are punishable (although penalties shall be reduced by one-third to one-half of the normal penalties applicable to crimes committed with criminal intent). A system of precautionary measures aimed at minimizing environmental damage is also created.

The main offences under the law are:

• damage to soil, vegetation or landscape;

• illegal discharge of waste water;

• discharge of hydrocarbons into bodies of water;

• engaging in forbidden activities in protected areas;

• waste disposal or dumping in violation of established standards;

• illegal extraction of non-metallic minerals; and

• deforestation of basins used for water supplies.

The penalties range from imprisonment to fines and community service. Accessory penalties are established for both individuals and legal entities. Companies are guilty of environmental offences when actions are committed by decisions of their executive bodies. Lawsuits in relation to these types of offence are heard by the criminal courts.

Offences that are punishable by imprisonment for terms of more than three years become statute-barred five years after the offence. Offences that are subject to imprisonment for less than three years or confinement for more than six months are barred after three years. When the penalty is confinement for less than six months, offences lapse after one year. Civil actions are statute-barred after 10 years.

Major Decrees

The objective of any decree relating to the environment is to (i) control activities that affect renewable natural resources and (ii) provide guidelines for defining the limits of allowable pollution.

Decree 2635
Decree 2635 regulates the recovery of hazardous materials and handling of waste when these exhibit characteristics that may endanger human health or the environment. The decree was amended to advise on how to manage the generation, handling and disposal of hazardous waste. The standards aim to develop the best use of recoverable hazardous materials, and govern their treatment and final disposal.

Basel Convention
The Basel Convention regulates the transportation of hazardous waste across national borders. Hopefully, better control will act as an incentive to reduce the volume of waste that is exported. Countries have the sovereign right to prohibit the entry of, or to eliminate, hazardous waste (and other types of waste not related to their territory). Venezuela has reserved the right to prohibit the importation of hazardous waste. One country can receive another country's waste if it has the necessary technology for recycling, reusing, treating or disposing of such waste. Developed countries may not export their hazardous waste to developing countries. When hazardous waste is being transported between a country that is party to the convention and a country that is not, both countries must come to an agreement.

Decree 883
Decree 883 classifes and controls water quality. The disbursement of harmful (or potentially harmful) effluents into bodies of water is strictly limited.

Decree 638
Decree 638 provides rules for air quality and air pollution control. The primary objective of this decree, enacted in April 1995, is the control of air quality; it establishes air quality standards and emission limits, and classifies air zones.

Decree 1257
Decree 1257 of March 1996 governs the evaluation of industrial and commercial activities that are liable to degrade the environment, determining technical methods of evaluation. Compliance with these procedures and methods gives investors legal security when authorization for the proposed activity is subject to strict technical criteria.

All parties interested in carrying out programmes and projects involving the occupation of land must give prior notice to the Environmental Ministry by submitting a document of intent, specifying those actions which are liable to have an environmental impact.

Companies involved in the exploration and production of hydrocarbons must submit an environmental impact statement for the following activities:

• exploratory drilling programmes for hydrocarbons;

• hydrocarbon production programmes;

• oil refineries and crude upgrading plants;

• the development of petrochemical or cryogenic complexes; and

• any other activities listed in the document of intent.

Companies must obtain approval for the occupation of land from the Environmental Ministry before entering into any concessions or agreements. They must complete an environmental questionnaire, which is the basis for determining the measures needed to reduce environmental impact.

Decree 2216
Decree 2216 provides rules for handling non-hazardous solid waste of domestic, commercial or industrial origin. The aim of the decree is to avoid risks to health and the environment by:

• regulating the handling, transportation, disposal, treatment, recycling and reutilization of waste;

• granting competent jurisdiction to municipalities;

• establishing conditions for selecting the place of disposal; and

• establishing requirements for the operation of landfills.

Liability

Principle 13 of the Declaration of Rio de Janeiro (June 1992) reads: "States must prepare national laws concerning liability for damage caused by pollution and other damage to the environment, as well as the indemnification of victims".

'Environmental damage' is understood to be any action which may damage the interaction between individuals and nature. This definition is based on precedent and the opinions of scholars and judges, as there is no specific legal provision to define the term.

Venezuelan environmental laws do not specify who should be liable when environmental damage occurs, but they do specify that civil, contractual, intentional and strict liability may occur.

Article 1196 of the Civil Code applies, requiring the redress of any physical or moral damage caused by an illicit act. The Environmental Law (Article 27) recognizes the civil liability of whoever carries out such activities.

The main purpose of civil environmental law is the redress of damage or harm caused to the environment. However, the law must also seek to prevent environmental damage, since prevention and precaution are two of the main principles governing environmental conservation.

The Environmental Penal Law states that the judge should rule on the defendant's civil liability, determining the amount of indemnification for the damage caused. The judge may also order a number of precautionary measures, such as:

• the restoration of previous environmental conditions;

• a change in (or the demolition of) infringing constructions;

• the return of elements to the natural environment from which they were taken;

• the restoration of forests, water, fauna or soil;

• the repatriation of toxic or hazardous residues or wastes; and

• the installation of devices needed to avoid pollution or degeneration of the environment.

Articles 25 and 26 of the Environmental Law and Article 24 of the Environmental Penal Law provide for:

• the temporary occupation, in full or in part, of the contaminating sources;

• the temporary shutdown of the factories or establishments;

• the temporary supervision or prohibition of the offending activity;

• modification of the infringing constructions;

• the withholding of suspicious substances, materials or objects; and

• the withholding of materials, machinery or objects that are harmful to, or which endanger, the environment.

The second type of liability is contractual liability, which involves ecological damage arising from breach of a contract. In the absence of special provisions, general contract law rules apply.

The third type of liability established in general civil law is intentional liability (or liability for a violation of a duty imposed by law). Article 1185 of the Civil Code states: "Whosoever has caused damage to another intentionally, negligently or imprudently is under the obligation to remedy it."

The fourth type of liability is strict liability for the acts of others (Civil Code, Articles 1190 and 1194), traditionally the liability of the following persons:

• representatives of minors as their guardian, for any illegal act committed by them;

• tutors, for any legal act committed by pupils while under their care;

• owners and principals or directors, for any illegal act committed by their servants or subordinates in the performance of duties;

• owners of animals, or persons having the animals under their care, for any damage caused by them;

• owners of buildings or constructions fixed to the ground, for any damaged caused by the ruins of the property; and

• whosoever has things under their custody, for any damage caused by such things.

Strict liability eliminates the burden of proving guilt.

Jurisdiction

The assignment of jurisdiction at national, state and municipal level was provided by the national Constitution when environmental law did not exist. This is why some aspects deemed to belong to environmental law have been assigned to the national authorities, and others to municipal authorities.

The national government has jurisdiction over:

• the defence, conservation and improvement of the territory's natural resources;

• the development and use of mountains, waters and the country's other natural riches;

• the performance of public works in the national interest;

• the residential public utilities (ie, electricity, potable water and gas);

• the preservation and development of agriculture, livestock, fishery and forestry production; and

• the establishment, coordination and unification of technical rules and procedures for engineering, architecture and city planning works.

Local governments have jurisdiction over matters belonging to local life, such as the provision of electricity, drinking water and gas.

The Law on Municipal Government (Article 36) grants competent jurisdiction over environmental matters to the municipalities.

Article 3 of the Environmental Law lists the powers that the national council grants to the government. It provides for the preparation of a National Environmental Plan according to which the three levels of government (national, state and municipal) will schedule their activities, and attempts to determine how environmental issues are to be distributed between them. Article 19 declares that all activities liable to cause damage to the environment are subject to the National Executive's control. An environmental police force has been created (Decree 3015, Official Gazette 35.321 of October 20 1993), as well as an environmental protection force (Decree 1221, Official Gazette 34.678 of March 19 1991).

The following laws and decrees grant environmental jurisdiction over specific matters to the three levels of government:

• the Law on Decentralization, Delimitation and Transfer of Powers of the Government;

• the Law on Municipalities;

• the Environmental Penal Law;

• the Law on Forests, Soil and Water;

• the Law on Prevention, Conditions and Environment of the Workplace; and

• Decrees 2210, 2289, 638 and 1257.

The Environmental Committee of the National Assembly will not approve a draft Environment Code. Instead it will work on amending the Environmental Law and the Environmental Penal Law. No bills relating to these amendments have been open to public participation.

For further information on this topic please contact Maria Isabel Ponce or Angela C Antakly Heredia at Benson, Perez Matos, Antakly & Watts by telephone (+58 212 265 3801) or by fax (+58 212 265 9252) or by email ([email protected]).