Overview (September 2000)

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 educational system;

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

• to guarantee a pollution-free environment where the 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 of the country 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 Organic Law

The Environmental Organic 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, and principles contained in international treaties such as the Stockholm Declaration.

Land Use Organic Law

Enacted in August 1983, the Land Use Organic Law includes provisions that govern the process of territorial division, taking into consideration the nation's long-term economic and social development strategy. The law regulates land use with the goal of obtaining the harmonious well-being of the population, the optimization of the 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 Organic 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 they 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 and landscape;

• illegal discharge of waste water;

• discharge of hydrocarbons into bodies of water;

• engaging in forbidden activities in protected areas;

• waste disposal or abandonment in violation of standards;

• illegal extraction of non-metallic minerals; and

• deforestation of hydrographic basins used for water supply.

The penalties range from prison and confinement to fines and community work. Accessory penalties are established for both natural persons and legal entities. Companies are guilty of environmental offences when actions are committed by decision of their executive bodies. Legal actions in relation to these types of offences are heard by the criminal courts.

When offences are punishable by prison with terms of more than three years, they are statute-barred five years after the offence. Offences subject to prison for less than three years or confinement for over six months are barred under the statute 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 (i) to control the activities that affect renewable natural resources and (ii) to provide guidelines for defining the limits of allowable pollution.

Decree 2635
Decree 2635 provides standards for controlling recovery of hazardous materials and handling of hazardous waste and was last amended in August 1998. It regulates the recovery of hazardous materials and handling of waste when both show characteristics that endanger health and 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 on the control of transboundary movements of hazardous wastes and their disposal regulates the transportation of hazardous waste across national borders. Better control will hopefully act as an incentive to reduce the volume of transportation. Countries have the sovereign right to prohibit the entry of, or eliminate hazardous waste (and other types of waste not related to their territory). Venezuela has reserved the right to prohibit importation of hazardous waste. One country can receive another country's waste when 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 agreement and a country that is not, both countries must arrange an agreement.

Decree 883
Decree 883 provides rules for classifying and controlling quality of bodies of water and liquid discharges and effluents. The main purpose of this decree, enacted in October 1995, is to control the quality of bodies of water. Discharges are limited. Limits are divided in two groups; the first group's limits may not be amended (involving toxic or hazardous materials) and the second group's limits may be amended upon completion of certain requirements regarding the recipient body of water.

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

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

All parties interested in carrying out programmes and projects involving occupation of land must give prior notice to the environmental ministry by submitting a document of intent, specifying the actions liable to produce 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;

• development of petrochemical or cryogenic complexes; and

• any other activities that require studies according to the document of intent.

Companies must obtain approval for occupation of land from the environmental ministry before entering into any concessions and agreements. They must complete an environmental questionnaire which is the basis for determining the measures needed to reduce the impact on the environment.

Decree 2216
Decree 2216 provides rules for handling non-hazardous solid waste of domestic, commercial or industrial origin or of any other nature. The aim of this decree of April 1992 is to avoid risks to health and environment by:

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

• granting competent jurisdiction to municipalities;

• establishing conditions for selecting the place for disposal; and

• establishing the requirements for the operation of sanitary landfills.

Liability

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

Environmental damage is understood to be any action which may damage the interaction between man and nature. This definition is based on precedents 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 it does specify that civil, contractual, intentional and strict liability may occur.

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

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

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

• the restoration of previous environmental conditions;

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

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

• the restoration of forestry, water, fauna or soil products;

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

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

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

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

• temporary shutdown of the factories or establishments;

• temporary interruption or prohibition of the activity;

• modification of the infringing constructions;

• withholding of suspicious substances, materials or objects; and

• withholding of materials, machinery or objects that are harmful or 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 called 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."

Another type of liability is the strict liability for 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 and artisans, 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 such animals;

• 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 issue of having to prove guilt.

Jurisdiction

The assignment of jurisdiction at national, state and municipal levels was provided by the national Constitution when environmental law did not exist. That is why today 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;

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

• performance of public works in the national interest;

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

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

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

Article three of the Organic Environmental law lists the matters that the national council grants to the government. It provides for the preparation of a National Environmental Plan whereby the three levels of government (national, state, 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 control of the National Executive. An environment police force must be created (Decree 3015, Official Gazette 35.321, October 20 1993), as well as an environmental protection force (Decree 1221, Official Gazette 34.678, March 19 1991).

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

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

• the Organic Law on Municipalities;

• the Penal Environmental Law;

• the Forestry Law of Soils and Waters;

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

• Decrees 2210, 2289, 638 and 1257.

Work is underway to draft an Environmental Organic Code. This would completely change the current environmental laws.

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 e-mail ([email protected]).
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