Uruguay: An Outlook on the New General Law on Environmental Protection

Gerardo Caffera
Posadas, Posadas, & Vecino
Montevideo, Uruguay

Introduction
The last days of the year 2000 were important ones for Uruguayan environmental law. The new General Law on Environmental Protection ("LGPA"), No. 17,283, enacted on November 15, 2000, established a series of "basic general provisions" that are essential to systematize a subject-matter in which the specific legislative and regulatory experiences of the past (especially those of the 1990s) undoubtedly required coordination. The LGPA, according to its objective stated in Section 5, stands out firstly by the generic character of its provisions and secondly, by its continuous reference to other regulatory texts. This article will examine the structure of the LGPA, and its significance for the current state of Uruguayan Environmental Law.

The Constitutional Mandate and the "Gradual" Model
The Constitution of the Republic of Uruguay contains a specific provision concerning the environment since its latest amendment. Section 47 states: "environmental protection is of general interest" and "all persons shall abstain from any action that causes serious depredation, destruction or pollution..." The same constitutional provision establishes that "the Law shall regulate said provision and may establish sanctions for those who infringe it." The LGPA has come to comply with said mandate.

Like the constitutional provision, the LGPA has chosen a gradual model. In the same manner as Section 47 of the Constitution, which establishes the duty to abstain from causing "serious" damage to the environment, Section 3 of the LGPA, when defining the concept of "environmental damage," restricts it to "any kind of significant loss, diminishing or detriment that may be inflicted to the environment." This option for a model of gradual integration of environmental aspects finally becomes explicit in Section 6 of the LGPA, which states that "the gradual and progressive incorporation of new demands constitutes an assumption for the effective integration of the environmental dimension to the economic and social development..."

Authority for Environmental Matters
In the institutional field, the LGPA reinforces the main role in this area that the Ministry of Accommodation, Territorial Order and Environment ("MVOTMA") has played since 1990. Since the enactment of the Law that created it, the MVOTMA is in charge of formulating environmental protection plans and of the implementation of the national policy concerning such matters. The new LGPA strengthens the MVOTMA's position even further. On the one hand, Section 8 of the LGPA grants the MVOTMA the "exclusive co-ordination of the integrated environmental management of the State and the public entities in general." Moreover, it grants the agency subsidiary jurisdiction in any environmental matter "which is not legally assigned to any other public entity." On the other hand, the MVOTMA is now assigned new and powerful punitive and fiscal incentive powers.

Fiscal Benefits and New Punitive Mechanisms
With regard to incentives, Section 13 of the LGPA brings along presumably one of the most interesting novelties. It indicates that "personal property destined to the elimination or mitigation of the negative environmental impacts" and the "fixed improvements affected by the treatment of the environmental effects of the industrial, agricultural and farming activities" could be included by the Executive Branch within a regime of fiscal benefits that may include exemptions from the Ownership Tax up to regimes of fast depreciation to the effects of Income Tax and exemptions from the Value Added Tax for imports, among others. On the other hand, the LGPA introduces new punitive mechanisms within the jurisdiction of the MVOTMA. To fines ranging between 10 and 5,000 "Unidades Reajustables" (Index-tied Units) have been added the possibility of preventive suspension of presumably dangerous activities, the confiscation of items or of the produce of an illegal environmental activity "regardless of who the owner of such property is," and the possibility to impose penalties ex officio, without the need for a court order whatsoever. The possibility that the LGPA grants the MVOTMA to establish the public spreading of the punitive resolutions is also related to the main role assigned by the LGPA to environmental information and to awareness and training as management instruments.

Other Key Issues
The new LGPA, when systematizing the different elements of environmental management by establishing Objectives, Principles, and Instruments, refers to the main topics on the subject in Uruguay. Likewise, Section 2 of the law defines a series of objectives of general interest. Some of these areas are examined in greater detail below.

Objectives to be given priority include the protection of air, water, soil, and landscape quality. As is usual in matters of environmental law, the water issue has been a key area of national environmental concern for a very long time. The Code of Waters currently in force was passed in 1978, and the principal set of provisions on industrial sewage and treatment of effluents was enacted in 1979. In this area, the MVOTMA shares its jurisdiction with at least three other Ministries and a state-owned company. The Ministry of Public Health is in charge of the packaged water destined to human consumption. The Ministry of Transport and Public Works, through the Hydrographic Division, is the authority that applies the Code of Waters; the Administration of State Sanitary Works ("OSE") has jurisdiction on any kind of water course that is used for the extraction of drinking water, and finally, the Ministry of National Defense, through the National Naval Prefecture, has jurisdiction with respect to pollutant spills. The plurality of public actors, which has been so many times pointed out as a characteristic of the environmental matter, is hereby verified in a particularly strong way.

In the list of objectives of the LGPA, the preservation of the biological diversity and the configuration of the structure of the sea coast or of the river sides is also important. In the past few years, special attention has been paid in Uruguay to the issue of the defense of the coastal line. The MVOTMA's action in the area of Cabo Polonio (a seaside resort on the Atlantic Ocean), by ordering the demolition of buildings, gave rise to several lawsuits, in addition to the great impact it had on the mass media. The courts confirmed the MVOTMA's powers to implement said measures. Nevertheless, in certain occasions the position of the individuals was protected by considering that the Ministry had not guaranteed due process to the owners of the construction sites subject to demolition. These controversies presumably led to the inclusion of Section 26 in the LGPA, which defines the concept of harmful modification of the coastline, as well as the procedural mechanism of the hearing prior to the implementation of the resolution. With regard to the issue of biological diversity, on the other hand, Uruguay has made the International Agreement of 1992 part of its legislation in 1993.

Another objective of the LGPA is the reduction and adequate handling of toxic or dangerous substances and waste. The issue of dangerous waste has been regulated since October of 1999 by Law No. 17,220, which prohibits "the introduction of any kind of dangerous waste in any way or under any regime in the areas under national jurisdiction" and expressly adopts the definitions contained in Basel Convention.

The fourth main objective listed in the LGPA is "the prevention, elimination, mitigation, and the compensation of negative environmental impacts." This issue has several precedents in Uruguay. Section 3 of Law No. 14,466 (Jan. 3, 1994) established the duty to abstain from "all act that causes environmental impact which implies serious depredation, destruction or pollution to the environment" and contained the obligation to carry out previous studies on environmental impact for several works, constructions and activities. Such legal provision has been regulated by a Decree since 1994. The requirement of a previous Environmental Authorization applies to works and activities such as construction of motorways, rail-ways or bridges, extraction of minerals, exploitation of fossil fuels, construction of complexes or the installation of industrial or agricultural-industrial units (provided their surface exceeds 10,000 square meters of the total factory development), and construction of public terminals for loading and unloading and passenger terminals, among others.

With respect to the instruments of environmental management set forth by the LGPA in its Section 7, the so-called National System of Protected Natural Areas should be pointed out, in addition to the (aforementioned) economic and taxing incentives. This system, created by Law No. 17,234 (Feb. 10, 2000), establishes a series of protection measures for those "natural areas of the national territory . . . representative to the ecosystems of the country, that due to their particular environmental, historical, cultural or landscape values, deserve to be preserved as the nation's property, even if they have been partially transformed by man." Among the protection measures provided by the LGPA, there is the possibility to prohibit construction in said areas or to prohibit the introduction of fauna or flora species which do not originate from said place, and the possibility to limit the use of the hydro resources of the area, among others.

Conclusion
A brief look at the LGPA offers a view of the current major trends in environmental law in Uruguay. On the one hand, the development of environmental legislation since 1990 to date seems to reveal an important qualitative growth. From the legislative and competence dispersion that existed at the beginning of the 1990's, the country has slowly moved to a regulatory system that is more organized. Functions are also concentrated largely in the MVOTMA. The LGPA is an essential step on the way to better regulatory and institutional organization. On the other hand, this general provision ratifies the principle of progressive incorporation of the environmental demands which is already implicitly contained in the Constitution. Therefore, even though the situation is not excellent and criticism of the LGPA is possible, it is true that the Uruguayan environmental legislation seems to be growing in a reasonable direction, presumably not only because of what the LGPA currently sets forth, but because of what is expected from the course it points toward.Introduction
The last days of the year 2000 were important ones for Uruguayan environmental law. The new General Law on Environmental Protection ("LGPA"), No. 17,283, enacted on November 15, 2000, established a series of "basic general provisions" that are essential to systematize a subject-matter in which the specific legislative and regulatory experiences of the past (especially those of the 1990s) undoubtedly required coordination. The LGPA, according to its objective stated in Section 5, stands out firstly by the generic character of its provisions and secondly, by its continuous reference to other regulatory texts. This article will examine the structure of the LGPA, and its significance for the current state of Uruguayan Environmental Law.

The Constitutional Mandate and the "Gradual" Model
The Constitution of the Republic of Uruguay contains a specific provision concerning the environment since its latest amendment. Section 47 states: "environmental protection is of general interest" and "all persons shall abstain from any action that causes serious depredation, destruction or pollution..." The same constitutional provision establishes that "the Law shall regulate said provision and may establish sanctions for those who infringe it." The LGPA has come to comply with said mandate.

Like the constitutional provision, the LGPA has chosen a gradual model. In the same manner as Section 47 of the Constitution, which establishes the duty to abstain from causing "serious" damage to the environment, Section 3 of the LGPA, when defining the concept of "environmental damage," restricts it to "any kind of significant loss, diminishing or detriment that may be inflicted to the environment." This option for a model of gradual integration of environmental aspects finally becomes explicit in Section 6 of the LGPA, which states that "the gradual and progressive incorporation of new demands constitutes an assumption for the effective integration of the environmental dimension to the economic and social development..."

Authority for Environmental Matters
In the institutional field, the LGPA reinforces the main role in this area that the Ministry of Accommodation, Territorial Order and Environment ("MVOTMA") has played since 1990. Since the enactment of the Law that created it, the MVOTMA is in charge of formulating environmental protection plans and of the implementation of the national policy concerning such matters. The new LGPA strengthens the MVOTMA's position even further. On the one hand, Section 8 of the LGPA grants the MVOTMA the "exclusive co-ordination of the integrated environmental management of the State and the public entities in general." Moreover, it grants the agency subsidiary jurisdiction in any environmental matter "which is not legally assigned to any other public entity." On the other hand, the MVOTMA is now assigned new and powerful punitive and fiscal incentive powers.

Fiscal Benefits and New Punitive Mechanisms
With regard to incentives, Section 13 of the LGPA brings along presumably one of the most interesting novelties. It indicates that "personal property destined to the elimination or mitigation of the negative environmental impacts" and the "fixed improvements affected by the treatment of the environmental effects of the industrial, agricultural and farming activities" could be included by the Executive Branch within a regime of fiscal benefits that may include exemptions from the Ownership Tax up to regimes of fast depreciation to the effects of Income Tax and exemptions from the Value Added Tax for imports, among others. On the other hand, the LGPA introduces new punitive mechanisms within the jurisdiction of the MVOTMA. To fines ranging between 10 and 5,000 "Unidades Reajustables" (Index-tied Units) have been added the possibility of preventive suspension of presumably dangerous activities, the confiscation of items or of the produce of an illegal environmental activity "regardless of who the owner of such property is," and the possibility to impose penalties ex officio, without the need for a court order whatsoever. The possibility that the LGPA grants the MVOTMA to establish the public spreading of the punitive resolutions is also related to the main role assigned by the LGPA to environmental information and to awareness and training as management instruments.

Other Key Issues
The new LGPA, when systematizing the different elements of environmental management by establishing Objectives, Principles, and Instruments, refers to the main topics on the subject in Uruguay. Likewise, Section 2 of the law defines a series of objectives of general interest. Some of these areas are examined in greater detail below.

Objectives to be given priority include the protection of air, water, soil, and landscape quality. As is usual in matters of environmental law, the water issue has been a key area of national environmental concern for a very long time. The Code of Waters currently in force was passed in 1978, and the principal set of provisions on industrial sewage and treatment of effluents was enacted in 1979. In this area, the MVOTMA shares its jurisdiction with at least three other Ministries and a state-owned company. The Ministry of Public Health is in charge of the packaged water destined to human consumption. The Ministry of Transport and Public Works, through the Hydrographic Division, is the authority that applies the Code of Waters; the Administration of State Sanitary Works ("OSE") has jurisdiction on any kind of water course that is used for the extraction of drinking water, and finally, the Ministry of National Defense, through the National Naval Prefecture, has jurisdiction with respect to pollutant spills. The plurality of public actors, which has been so many times pointed out as a characteristic of the environmental matter, is hereby verified in a particularly strong way.

In the list of objectives of the LGPA, the preservation of the biological diversity and the configuration of the structure of the sea coast or of the river sides is also important. In the past few years, special attention has been paid in Uruguay to the issue of the defense of the coastal line. The MVOTMA's action in the area of Cabo Polonio (a seaside resort on the Atlantic Ocean), by ordering the demolition of buildings, gave rise to several lawsuits, in addition to the great impact it had on the mass media. The courts confirmed the MVOTMA's powers to implement said measures. Nevertheless, in certain occasions the position of the individuals was protected by considering that the Ministry had not guaranteed due process to the owners of the construction sites subject to demolition. These controversies presumably led to the inclusion of Section 26 in the LGPA, which defines the concept of harmful modification of the coastline, as well as the procedural mechanism of the hearing prior to the implementation of the resolution. With regard to the issue of biological diversity, on the other hand, Uruguay has made the International Agreement of 1992 part of its legislation in 1993.

Another objective of the LGPA is the reduction and adequate handling of toxic or dangerous substances and waste. The issue of dangerous waste has been regulated since October of 1999 by Law No. 17,220, which prohibits "the introduction of any kind of dangerous waste in any way or under any regime in the areas under national jurisdiction" and expressly adopts the definitions contained in Basel Convention.

The fourth main objective listed in the LGPA is "the prevention, elimination, mitigation, and the compensation of negative environmental impacts." This issue has several precedents in Uruguay. Section 3 of Law No. 14,466 (Jan. 3, 1994) established the duty to abstain from "all act that causes environmental impact which implies serious depredation, destruction or pollution to the environment" and contained the obligation to carry out previous studies on environmental impact for several works, constructions and activities. Such legal provision has been regulated by a Decree since 1994. The requirement of a previous Environmental Authorization applies to works and activities such as construction of motorways, rail-ways or bridges, extraction of minerals, exploitation of fossil fuels, construction of complexes or the installation of industrial or agricultural-industrial units (provided their surface exceeds 10,000 square meters of the total factory development), and construction of public terminals for loading and unloading and passenger terminals, among others.

With respect to the instruments of environmental management set forth by the LGPA in its Section 7, the so-called National System of Protected Natural Areas should be pointed out, in addition to the (aforementioned) economic and taxing incentives. This system, created by Law No. 17,234 (Feb. 10, 2000), establishes a series of protection measures for those "natural areas of the national territory . . . representative to the ecosystems of the country, that due to their particular environmental, historical, cultural or landscape values, deserve to be preserved as the nation's property, even if they have been partially transformed by man." Among the protection measures provided by the LGPA, there is the possibility to prohibit construction in said areas or to prohibit the introduction of fauna or flora species which do not originate from said place, and the possibility to limit the use of the hydro resources of the area, among others.

Conclusion
A brief look at the LGPA offers a view of the current major trends in environmental law in Uruguay. On the one hand, the development of environmental legislation since 1990 to date seems to reveal an important qualitative growth. From the legislative and competence dispersion that existed at the beginning of the 1990's, the country has slowly moved to a regulatory system that is more organized. Functions are also concentrated largely in the MVOTMA. The LGPA is an essential step on the way to better regulatory and institutional organization. On the other hand, this general provision ratifies the principle of progressive incorporation of the environmental demands which is already implicitly contained in the Constitution. Therefore, even though the situation is not excellent and criticism of the LGPA is possible, it is true that the Uruguayan environmental legislation seems to be growing in a reasonable direction, presumably not only because of what the LGPA currently sets forth, but because of what is expected from the course it points toward.Introduction
The last days of the year 2000 were important ones for Uruguayan environmental law. The new General Law on Environmental Protection ("LGPA"), No. 17,283, enacted on November 15, 2000, established a series of "basic general provisions" that are essential to systematize a subject-matter in which the specific legislative and regulatory experiences of the past (especially those of the 1990s) undoubtedly required coordination. The LGPA, according to its objective stated in Section 5, stands out firstly by the generic character of its provisions and secondly, by its continuous reference to other regulatory texts. This article will examine the structure of the LGPA, and its significance for the current state of Uruguayan Environmental Law.

The Constitutional Mandate and the "Gradual" Model
The Constitution of the Republic of Uruguay contains a specific provision concerning the environment since its latest amendment. Section 47 states: "environmental protection is of general interest" and "all persons shall abstain from any action that causes serious depredation, destruction or pollution..." The same constitutional provision establishes that "the Law shall regulate said provision and may establish sanctions for those who infringe it." The LGPA has come to comply with said mandate.

Like the constitutional provision, the LGPA has chosen a gradual model. In the same manner as Section 47 of the Constitution, which establishes the duty to abstain from causing "serious" damage to the environment, Section 3 of the LGPA, when defining the concept of "environmental damage," restricts it to "any kind of significant loss, diminishing or detriment that may be inflicted to the environment." This option for a model of gradual integration of environmental aspects finally becomes explicit in Section 6 of the LGPA, which states that "the gradual and progressive incorporation of new demands constitutes an assumption for the effective integration of the environmental dimension to the economic and social development..."

Authority for Environmental Matters
In the institutional field, the LGPA reinforces the main role in this area that the Ministry of Accommodation, Territorial Order and Environment ("MVOTMA") has played since 1990. Since the enactment of the Law that created it, the MVOTMA is in charge of formulating environmental protection plans and of the implementation of the national policy concerning such matters. The new LGPA strengthens the MVOTMA's position even further. On the one hand, Section 8 of the LGPA grants the MVOTMA the "exclusive co-ordination of the integrated environmental management of the State and the public entities in general." Moreover, it grants the agency subsidiary jurisdiction in any environmental matter "which is not legally assigned to any other public entity." On the other hand, the MVOTMA is now assigned new and powerful punitive and fiscal incentive powers.

Fiscal Benefits and New Punitive Mechanisms
With regard to incentives, Section 13 of the LGPA brings along presumably one of the most interesting novelties. It indicates that "personal property destined to the elimination or mitigation of the negative environmental impacts" and the "fixed improvements affected by the treatment of the environmental effects of the industrial, agricultural and farming activities" could be included by the Executive Branch within a regime of fiscal benefits that may include exemptions from the Ownership Tax up to regimes of fast depreciation to the effects of Income Tax and exemptions from the Value Added Tax for imports, among others. On the other hand, the LGPA introduces new punitive mechanisms within the jurisdiction of the MVOTMA. To fines ranging between 10 and 5,000 "Unidades Reajustables" (Index-tied Units) have been added the possibility of preventive suspension of presumably dangerous activities, the confiscation of items or of the produce of an illegal environmental activity "regardless of who the owner of such property is," and the possibility to impose penalties ex officio, without the need for a court order whatsoever. The possibility that the LGPA grants the MVOTMA to establish the public spreading of the punitive resolutions is also related to the main role assigned by the LGPA to environmental information and to awareness and training as management instruments.

Other Key Issues
The new LGPA, when systematizing the different elements of environmental management by establishing Objectives, Principles, and Instruments, refers to the main topics on the subject in Uruguay. Likewise, Section 2 of the law defines a series of objectives of general interest. Some of these areas are examined in greater detail below.

Objectives to be given priority include the protection of air, water, soil, and landscape quality. As is usual in matters of environmental law, the water issue has been a key area of national environmental concern for a very long time. The Code of Waters currently in force was passed in 1978, and the principal set of provisions on industrial sewage and treatment of effluents was enacted in 1979. In this area, the MVOTMA shares its jurisdiction with at least three other Ministries and a state-owned company. The Ministry of Public Health is in charge of the packaged water destined to human consumption. The Ministry of Transport and Public Works, through the Hydrographic Division, is the authority that applies the Code of Waters; the Administration of State Sanitary Works ("OSE") has jurisdiction on any kind of water course that is used for the extraction of drinking water, and finally, the Ministry of National Defense, through the National Naval Prefecture, has jurisdiction with respect to pollutant spills. The plurality of public actors, which has been so many times pointed out as a characteristic of the environmental matter, is hereby verified in a particularly strong way.

In the list of objectives of the LGPA, the preservation of the biological diversity and the configuration of the structure of the sea coast or of the river sides is also important. In the past few years, special attention has been paid in Uruguay to the issue of the defense of the coastal line. The MVOTMA's action in the area of Cabo Polonio (a seaside resort on the Atlantic Ocean), by ordering the demolition of buildings, gave rise to several lawsuits, in addition to the great impact it had on the mass media. The courts confirmed the MVOTMA's powers to implement said measures. Nevertheless, in certain occasions the position of the individuals was protected by considering that the Ministry had not guaranteed due process to the owners of the construction sites subject to demolition. These controversies presumably led to the inclusion of Section 26 in the LGPA, which defines the concept of harmful modification of the coastline, as well as the procedural mechanism of the hearing prior to the implementation of the resolution. With regard to the issue of biological diversity, on the other hand, Uruguay has made the International Agreement of 1992 part of its legislation in 1993.

Another objective of the LGPA is the reduction and adequate handling of toxic or dangerous substances and waste. The issue of dangerous waste has been regulated since October of 1999 by Law No. 17,220, which prohibits "the introduction of any kind of dangerous waste in any way or under any regime in the areas under national jurisdiction" and expressly adopts the definitions contained in Basel Convention.

The fourth main objective listed in the LGPA is "the prevention, elimination, mitigation, and the compensation of negative environmental impacts." This issue has several precedents in Uruguay. Section 3 of Law No. 14,466 (Jan. 3, 1994) established the duty to abstain from "all act that causes environmental impact which implies serious depredation, destruction or pollution to the environment" and contained the obligation to carry out previous studies on environmental impact for several works, constructions and activities. Such legal provision has been regulated by a Decree since 1994. The requirement of a previous Environmental Authorization applies to works and activities such as construction of motorways, rail-ways or bridges, extraction of minerals, exploitation of fossil fuels, construction of complexes or the installation of industrial or agricultural-industrial units (provided their surface exceeds 10,000 square meters of the total factory development), and construction of public terminals for loading and unloading and passenger terminals, among others.

With respect to the instruments of environmental management set forth by the LGPA in its Section 7, the so-called National System of Protected Natural Areas should be pointed out, in addition to the (aforementioned) economic and taxing incentives. This system, created by Law No. 17,234 (Feb. 10, 2000), establishes a series of protection measures for those "natural areas of the national territory . . . representative to the ecosystems of the country, that due to their particular environmental, historical, cultural or landscape values, deserve to be preserved as the nation's property, even if they have been partially transformed by man." Among the protection measures provided by the LGPA, there is the possibility to prohibit construction in said areas or to prohibit the introduction of fauna or flora species which do not originate from said place, and the possibility to limit the use of the hydro resources of the area, among others.

Conclusion
A brief look at the LGPA offers a view of the current major trends in environmental law in Uruguay. On the one hand, the development of environmental legislation since 1990 to date seems to reveal an important qualitative growth. From the legislative and competence dispersion that existed at the beginning of the 1990's, the country has slowly moved to a regulatory system that is more organized. Functions are also concentrated largely in the MVOTMA. The LGPA is an essential step on the way to better regulatory and institutional organization. On the other hand, this general provision ratifies the principle of progressive incorporation of the environmental demands which is already implicitly contained in the Constitution. Therefore, even though the situation is not excellent and criticism of the LGPA is possible, it is true that the Uruguayan environmental legislation seems to be growing in a reasonable direction, presumably not only because of what the LGPA currently sets forth, but because of what is expected from the course it points toward.