A Brief History and Current Trends of Environmental Legislation in Venezuela

By Elisabeth Eljuri & María Isabel Fleury Macloed Dixon
Caracas, Venezuela

Introduction and Current Legal Framework
Environmental matters in Venezuela have gained increasing importance to the Venezuelan government and its citizens. Venezuela is also ranked top ten in the world in biodiversity. For this reason, it has always been necessary to protect the extremely sensitive habitats that exist in the country. Accordingly, approximately 25 years ago, the government initiated a series of coordinated activities to protect Venezuela's environment and natural resources. In fact, Venezuela was one of the first Latin American countries to establish a Ministry of Environment.

The process began with the enactment of the Organic Law of the Environment ("OLE") on June 16, 1976, and the subsequent creation of the Ministry of the Environment and Natural Resources (the "Ministry"). The OLE sets forth the governing principles for the conservation, defense, and improvement of the environment for the benefit of quality of living standards of the nation. The OLE states that any activities capable of degrading the environment are overseen by the Executive Branch, as represented by the Ministry. In this regard, the OLE gives the Ministry the power to authorize the performance of activities that may degrade the environment, only in the event that: (i) the degradation caused by said activities is not irreparable; and (ii) such activities are deemed to provide economic and social benefits to the community. The OLE has not established penalties for infringement of environmental regulations. Thus, the Ministry's powers have not been sufficient to prevent infringement of the environmental regulations and resulting degradation.

It was not until December 5, 1991, with the enactment of the Criminal Environmental Law ("CLE") (effective as of April 1, 1992), that penalties could be imposed for infringement of environmental regulations and for causing environmental degradation. The main purpose of the CLE is to impose penalties on activities that infringe the provisions of the law relating to the conservation, defense and improvement of the environment, as well as on those that violate technical standards (contained in numerous Decrees). The CLE also provides measures to avoid, restore or repair the environmental damages already caused. The enactment of the CLE enables criminal courts to impose fines, to decree precautionary arrests and to send parties responsible for environmental damages to prison. The CLE introduced two very important concepts relating to corporate liability. First, it established liability for corporations whenever, as a result of a decision of their management bodies, an action categorized as a crime under the CLE is performed for their sole or preferential benefit. Second, the CLE permitted criminal sanctions to be imposed on management or the administration bodies of any company that has caused an environmental damage.

As a result of the increased awareness of, and concern for, the environment, the recently enacted Constitution of the Bolivarian Republic of Venezuela, which came into force on December 30, 1999 (the "Constitution"), regulates environmental matters more broadly than before. See Official Gazette No. 36,860 (Dec. 30, 1999), and reprinted in the Special Official Gazette No. 5,453 (March 24, 2000). In addition, a major reform of the current legislation is expected with the enactment of the Organic Environmental Code. Apart from the Constitution, the OLE, and the CLE, there are several other laws that have been enacted to regulate specific matters also related to the environment. Some of these laws are: (i) the Organic Health Law, (ii) the Organic Law for the Decentralization, Outlining and Transfer of Duties of Public Authorities; (iii) the Organic Law for Urban Planning; (iv) the Organic Law for Territorial Zoning; (iv) the Organic Law for Security and Defense; (v) the Law of Conservation and Reparation of the Beaches; (vi) the Biological Diversity Law; (vii) the Wildlife Protection Law; (viii) the Forestry Law of Soils and Waters; and (ix) the Agrarian Reform Law. Additionally, Venezuela has adopted a large number of international treaties, regulations, decrees and resolutions that regulate environmental matters. Under the Constitution, international obligations prevail over domestic law in case of conflict.

Innovations in the Constitution
The Venezuelan Constitution states that every person has the individual and collective right to enjoy a secure, safe and ecologically stable environment, and that every generation has the right and obligation to protect and maintain the environment. The State also has the obligation to protect the environment, biological diversity, genetic resources and ecological processes. Some of the most significant and innovative provisions contained in the Constitution are that: (i) it creates an obligation to conduct environmental assessments prior to engaging in any activity that may harm the environment; (ii) it provides that in any agreements or permits signed or granted by the State involving natural resources, a clause mandating the protection of the environment and its remediation in the event of damage is implied, even if not expressly established; and (iii) it provides that human genome cannot be patented.

Looking Ahead: The Draft Organic Environmental Code
The National Assembly is currently working on a bill of an Organic Environmental Code (the "Code"), which will be consolidated into a single text environmental regulation currently dispersed among international treaties, laws, decrees and regulations. The purpose of the Code is to establish the regulations related to conservation, defense, improvement and remediation of the environment, and to establish sanctions against infringers of said regulations. If the Code is approved, the OLE, the Organic Law for the Organization of Territory, the CLE, the Forestry Law of Soils and Waters (and its Regulations), the Wildlife Protection Law (and its Regulations) and several articles of the Criminal Code will be expressly repealed. Other provisions contrary to the Code will also be abolished.

The Code, in addition to being a compilation of environmental regulations, would contain numerous innovations. Among the most significant innovations are the draft provisions regarding public action ("acción popular"). Said provisions would allow any person or entity to: (i) bring lawsuits in the defense and protection of the environment before administrative tribunals or courts; (ii) request information regarding activities capable of causing the degradation of the environment; and (iii) oppose the granting of permits, authorizations, approvals or licenses for the use of natural resources. The draft Code also provides for economic and fiscal benefits and incentives to persons and entities carrying out activities related to the conservation, defense, improvement and remediation of the environment, and amends the current regime for the granting of authorizations related to activities capable of degrading the environment. With regard to penalties, the draft Code copies current provisions of the CLE, but also identifies certain new activities as crimes. In addition, the Code substantially increases the fines and grants more powers to criminal courts.