The implementation of this type of liability is due to an undertaking to fight current, ongoing and unsustainable tendencies: reduction of biodiversity and the contamination of water and soil.
It seeks to establish a framework based on environmental liability for the purpose of guaranteeing the prevention or the reparation of future damage to the environment.
The public authorities must ensure that the operators responsible take or finance the necessary corrective measures in the event of environmental damages.
Groups, governmental and non-governmental organizations will be authorized to demand action from the public authorities.
Environmental liability may be defined as the obligation of indemnifying damages caused or harm resulting from actions or inactions that lead to environmental damage.
The concept of environmental liability must include, where possible, civil, administrative, penal liability and environmental liability insurance.
The description is as follows:
- Administrative Environmental Liability
Administrative liability is that which is derived from the infraction of the administrative environmental normative; it is put into effect by the application of an administrative sanction of the action or inaction of the offender and, from it, emerges the obligation of repairing the environmental damage caused, applying preventative and mitigating measures and assuming the corresponding costs.
- Penal Environmental Liability
Penal liability is that which is derived from conduct characterized as an offence and it is put into effect by the application of a ruling on the fraudulent or culpable action or inaction of the author of one or the other.
- Civil Environmental Liability.
Civil liability is that which is derived from the damage or harm caused by conduct which damages or puts the environment at risk; nevertheless, it is put into effect by the environmental damage suffered by a specific person, as a consequence of the contamination of an environmental element (intoxication by drinking water from an industrial contaminated source) or when it causes damages to his goods (death of fishes due to the residue contamination of the river).
It is important to point out that administrative and civil liability fit into the objective theory of liability, which does not take into account the elements of intent and wilfulness on the part of the author of the action or inaction that results in damage or harm; but rather, only the causal nexus between the action or inaction of the subject and the damaging results is considered.
- Environmental Liability Insurance.
The insuring companies should establish insurance for civil environmental liability, so that the businessman may utilize it as a means of security for the economic indemnification of the damage caused.
Scope of application
The application of this type of liability must be with reference to the following points:
- the types of damages to be covered are damages to the environment, that is to say, damages to biodiversity and contamination of places as well as the traditional damages: health and material damage occasioned by a dangerous activity.
- the activities that cause these damages.
Types of liability
There are two existing possibilities: liability with cause or without. It seems adequate to opt for the objective liability for damages derived from activities considered dangerous and apply fault-based liability when the damages to biodiversity are derived from a non-dangerous activity.
The environmental liability regime must hold responsible the person who carries out the activity.
The polluter must be obligated to make payments of indemnification or compensations for restoration or decontamination.
Request for liability
The qualified entities (public interest groups, including NGOs), along with persons who have sufficient interest, that is to say, persons who have suffered some damage, may request that the competent authority takes the appropriate measures and may seek recourse of the action or inaction of these competent authorities so that the public may supervise and influence the competent authorities in their role as the administrators of the environmental assets.
Examples at the international level
In different legislations
Example 1: The European Commission has adopted a proposal on environmental liability, which has as its objective the prevention and restoration of environmental damages. This proposal will cover water contamination, damages to biodiversity and soil contamination which are seriously harmful to human health. The operators of determined dangerous or potentially dangerous activities that cause damages to the environment will be considered liable for the reparation of these damages or the financing of their reparation. All operators who cause damage to biodiversity, by action or inaction, will also be obligated to remedy these damages.
The Environmental Commissioner, Margot Wallström, has declared: “The idea that the polluter has to pay is a cornerstone of the communitarian policy. With the proposal today, the Commission sends a clear message: the moment has arrived for the UE to put into practice the principle of ‘the polluter pays’”. She adds: “We are all interested parts in what is referred to as environmental protection and the prevention of damages. The citizens, industry and the NGOs have waited for this important proposal for a long time, with great expectations. Today, the European Commission has adopted the first specific measure geared towards the creation of a complete european regime of environmental liability”.
CONSTITUTIONAL COURT OF THE SUPREME COURT OF JUSTICE
San José, at four minutes past eleven on the morning of the fifteenth of February in Two Thousand and Two.-
Remedy of relief filed by JOSE MARIA PENABAD BUSTAMANTE, once divorced, Lawyer and Notary, resident of San José, holder of identification number 1-641-343; against THE COSTA RICAN INSTITUTE OF TOURISM, THE MUNICIPALITY OF AGUIRRE AND PARRITA, HOTEL "SI COMO NO", THE MINISTRY OF ENVIRONMENT AND ENERGY, THE GENERAL SECRETARY OF THE NATIONAL TECHNICAL ENVIRONMENTAL SECRETARIAT OF THAT MINISTRY (SETENA, in Spanish), THE MINISTRY OF HEALTH, THE DIRECTOR OF THE HUMAN ENVIRONMENTAL PROTECTION UNIT OF THE CENTRAL PACIFIC REGION OF THAT MINISTRY AND THE EXECUTIVE PRESIDENT OF INSTITUTO COSTARRICENSE DE ACQUEDUCTOS Y ALCANTARILLADOS.
- Received in writing in the Secretariat of the Court at thirteen hundred hours and forty five minutes on the sixteenth of September of two thousand and one (folio 1), the petitioner files a remedy of relief against the COSTA RICAN INSTITUTE OF TOURISM, THE MUNICIPALITY OF AGUIRRE AND PARRITA AND HOTEL "SI COMO NO" and manifests that, the Hotel "Si como No" is located in the center of Manuel Antonio and, in addition to tourism recognition, it possesses a four star categorization at the international level. He indicates that in past days, he interviewed citizens from the area who externalized their concerns about the hotel in reference, as an aggressor of the environment, the reason being that it does not have a treatment plant for waste matter, technically known as a Sewage Treatment Plant. He points out that, in light of this, the riverbeds of the bordering streams have been contaminated, during the period March 1992 to the present. He affirms that this situation is known to the Municipality of Aguirre who, in Ordinary Session number 183, on the seventh of September 2000, denied said entity the construction permits, pending the correction of the sewage problem. However, that Municipality has allowed the Hotel to continue operating. He clarifies that this remedy is equally filed against the Department of Public Works of the Costa Rican Institute of Tourism because it should be vigilant of all anomalies with regard to the hotels that offer "eco-tourism" as their principal attraction. The petitioner requests that the remedy be declared with merit.
- RUSSEL CHARLES JENSEN, in his capacity as MANAGER OF HOTEL "SI COMO NO" (folio 30), responded to the audience granted and manifested that the legal person and owner of Hotel "Si como No", is called ECOVISIÓN S.A., which has not been summoned by the Constitutional Court, but in the documented evidence presented, numbered 1 through 94, duly certified, concerning the investments in the installation and maintenance of wastewater or sewage treatment, it is affirmed that ECOVISION S.A, on behalf of hotel "Si como No", has invested in excess of one hundred and twenty five thousand dollars, equivalent to more than forty million colones. He clarifies that said Hotel is located between Quepos and Manuel Antonio Beach and not in the center of Manuel Antonio. He manifested that the petitioner makes reference anonymously to the discontent of a group of residents, but has not provided any proof of the situation. He adds that the highest governmental authorities have conferred awards on Hotel "Si como No" with Certifications of Tourism Sustainability, including one signed by the very Ministry of Tourism on February 28, 2001. He affirms that it is not true that said Hotel is an aggressor of the environment and that, as is demonstrated in the evidence provided, neither is it true that it does not have a sewage plant. He continues, indicating that it is also not true that since 1992, the Hotel has contaminated the riverbeds of the bordering streams, but to the contrary, because ECOVISION S.A, has contracted the specialized services of companies recognized in the field of sewage treatment such as AMANCO, ASESORES AMBIENTALES-SIEL S.A, CONSULTORIA Y CONSTRUCCION RODAS S.A, etc. He points out that the Municipality of Aguirre has always inspected the Hotel and given it the corresponding construction permits and so too have other institutions like SETENA, THE MINISTRY OF HEALTH, ACQUEDUCTS Y ALCANTARILLADOS, THE COSTA RICAN INSTITUTE OF TOURISM, including the office of the PUBLIC MINISTRY OF Aguirre and Parrita. He explains that there is a Judicial File number 00-200 307-457-P.E.-S- in the District Attorney’s Office of Aguirre and Parrita, concerning the supposed infraction of Wildlife Law, and for exactly the same reasons that they have gone to the Constitutional Court, they went to the District Attorney’s Office of Aguirre and Parrita to file a claim against the legal person of the legal owner of Hotel "Si como No", which they presented on August 14, 2000. Participating was the Attorney General and the accused was investigated on April 20, 2001. Finally, he affirms that a prima facie matter under judicial discussion in the Public Ministry of Aguirre and Parrita has been brought before the Constitutional Court, the intention of the petitioners being to ultimately create contradictions among the different offices of the Judicature. He requests that the remedy solicited be dismissed.
- ALVARADO HERRERA GUILLERMO, in his capacity as MANAGER AND REPRESENTATIVE OF THE COSTA RICAN INSTITUTE OF TOURISM, in the absence of Mr. Walter Niehaus Bonilla, Executive President of the Institute and Ministry of Tourism and, SALAS ROIZ ALBERTO, in his capacity as HEAD OF THE DEPARTMENT OF PUBLIC WORKS OF THE COSTA RICAN INSTITUTE OF TOURISM (folio 39) declare under oath that there does not exist a legal obligation for hotel companies of this kind to have a sewage treatment plant. He clarifies that what is required by the health standards is a safe system for the disposition of sewage, but not a sewage treatment facility, which is a complex and burdensome thing that is required only for certain types of industries of high levels of contamination. He indicates that said Institution is not the legal competent organ to determine the existence of environmental contaminating actions on the part of the tourism companies or to prosecute them for such circumstances; the obligation of said organ is to ensure that the companies comply with the current normative that regulates their functions; however, if the specific incompliance requires a field of action from other dependencies of the State, then the corresponding matter is referred to them. In situations like the one described, the procedure is to take the necessary steps before the companies in order to resolve the matter and refer it to the competent legal instance, such as the Ministry of Health and the Ministry of Environment and Energy. He explains that the Institute awarded the accused company the Certificate of Tourism Sustainability in the month of February 2001 and, in addition, on September 11, 1998, a classification of said company was done and resulted in a positive rating of 2.3 which signifies that "The company has a functioning wastewater treatment system to avoid its raw disposal in the national water system”, as well as a rating of 2.4 which indicates that "The sewage, which is of acceptable quality, is disposed of without producing alterations to the environment". He indicates that on August 23, 2000, the Public Works Department received a copy of a lawsuit against the Ministry of Environment on the part of Erick Roberto Gallo García, concerning the apparent sewage contamination of a nearby stream on the part of Hotel "Sí como No". That same day, it was forwarded to the Department of Natural Resources for its attention, study and possible coordination of actions between both units and the Complaints Section. The same claim was sent to Natural Resources for it to be investigated and to the Ministry of Health which gave instructions to the Regional Director who in turn passed them on to the corresponding technician. He clarifies that the technician sent a response to Laura Chacón, of the Complaints Section, in which he explained the follow-up that was done on the matter with the hotel, and indicated the actions taken to remedy the contamination. He adds that the Department of Natural Resources conducted its own investigation and obtained explanations from the accused company, which coincided with the explanations of the Regional Health technician. Finally, he believes that the Department of Public Works and the institution acted promptly through its Department of Natural Resources and, furthermore, the Ministry of Health took action in the matter and have done the follow up that corresponds to the problem. He requests that the remedy solicited be dismissed.
- SOLANO MARTÍNEZ MIGUEL, in his capacity as MUNICPIAL MAYOR OF THE MUNICIPALITY OF AGUIRRE (folio 70), declares under oath that, according to visual inspection carried out by municipal inspectors on October 1, 2001, it was confirmed that Hotel "Si como No" does have a treatment plant for sewage and wastewater and a tank for the treatment of soapy water coming from the laundry facility. He clarifies that the construction relating to the expansion of the hotel was halted due to the fact that it did not meet all the requirements of the Municipality and in extraordinary session No. 183, held on September 6, 2000, a commission was named to deal with the matter of the hotel expansion and not the matter of the sewage treatment plant. He points out that in extraordinary session No. 221, held on January 3, 2001, the construction permit was granted for the first stage of the hotel expansion as it did meet all the requirements and that in ordinary session No 245, held on June 11, 2001, the construction permit for the second stage of the hotel expansion was granted. He requests that the remedy solicited be dismissed.
- By resolution, at 9:45 the morning of October 31, 2001 (folio 78) audience was given to the Ministry of Environment and Energy, the General Secretary of the National Technical Environmental Secretariat of that same Ministry (SETENA, in Spanish), the Ministry of Health, the Director of the Human Environmental Protection Unit of the Central Pacific Region of the Ministry of Health and the Executive President of the Instituto Costarricense de Acqueductos y Alcantarillados.
- PARDO EVANS ROGELIO and SALAZAR MORENO ROLANDO, in their capacity as MINISTER OF HEALTH and HEAD OF THE HUMAN ENVIRONMENTAL PROTECTION UNIT, CENTRAL PACIFIC REGION respectively (folio 87), declare under oath that, before the Ministry of Health (regional and local level), a formal claim has not been filed neither by the petitioner nor by any other person, but that the steps taken by the Ministry were initiated as a result of a claim filed by Robert Quincy Reid before the District Attorney of Aguirre on August 14, 2000. He is the owner of Hotel "Villas Nikolás", located adjacent to the northern coast of Hotel "Sí como No", and in the claim, he manifested that the mentioned hotel, in disregard of the environment, discharged in a ditch or ravine located underneath his property. He indicates that from the joint inspection with regard to the longstanding case, and carried out by an environmental sanitation technician of Aguirre and a representative of the Microbiological Laboratory of A y A of Puntarenas, a document UPAH-79-00 was prepared on September 18, 2000, which indicates that, in effect, there existed a tributary of wastewater which first passed through a sanitary infrastructure for treatment, without determining the level of contamination carried by these waters. By request of Mr. Arnoldo Gamboa Carmona, Environmental Sanitation Technician of Aguirre, on September 20, 2000, Mr. Russ Jensen, Resident Manager of Hotel "Sí como No", issued a document without number, in which he informs Mr. Gamboa Carmona about the progress in the first and second stages of the construction of the Sewage Treatment System of his company, as well as the status of the application to the Ministry of Health for the corresponding permit. He indicates that another claim against Hotel "Sí como No" was filed before this Office by Mrs. Laura Chacón, of the ICT office in Quepos, which was answered through the documents JUPAH-439-2000 of October 31, 2000, signed by Mrs. Siria Chavarría Valverde, Head a.i. of the Human Environmental Protection Unit. They indicate that in their archives they have documentation "Descriptive Report and Operation and Maintenance Manual" of the Wastewater Treatment Plant of Hotel "Sí como No", prepared by the company AMANCO DE COSTA RICA, Water Treatment Division. As the facts show, the Wastewater Treatment Plant of Hotel "Sí como No" has actually been constructed and is operating without any problem since, according to the report of the technician, Arnoldo Gamboa, there is no damage to the environment because everything is ultimately disposed of in the drainage system constructed for that purpose, as established by the General Health Law. Finally, they show that the actions of the Ministry of Health are in accordance with the law, always seeking to protect the health of the population and, on each occasion, it was shown that neither the petitioner nor the residents of Quepos have filed a claim before the health authorities. Nevertheless, they have followed up this case as a result of claims filed by other petitioners. He requests that the remedy be declared without merit.
- CESPEDES ALVAREZ LIGIA, in his capacity as SUB MANAGER OF THE INSTITUTO COSTARRICENSE DE ACQUEDUCTOS Y ALCANTARILLADOS (A y A) (folio 138) declares under oath that, to date, his representative has not received any claim in its central offices in San José, nor in the Province of Quepos, by the residents of said place against Hotel "Si como No", for the supposed contamination of the environment with sewage and wastewater. He indicates that, due to the present remedy of relief, he gave the instructions of the case to carry out an inspection in the place of the events, and it was carried out by Licenciada Mayra Garita Chinchilla, Head of the Provincial Office of A y A in Quepos. From said inspection, it was discovered that the hotel mentioned has a Sewage and Wastewater Treatment Plant. A y A does not have Treatment Plants for sewage and wastewater in that zone and, for this reason, the homeowners as well as the commercial businesses utilize septic tanks and drainage gutters or percolation. In terms of the regulation of the discharge of water in receptacles, it is standardized in the Executive Decree No 26367-S, MINAE of April 14, 1997, published in gazette No. 117 of June 19, 1997, Rule for the Discharge and Disposal of Wastewater, in relation to articles 132 of the Wildlife Law and 285 and onward of the General Health Law, with regard to the disposition and sanitary evacuation of excrement and wastewater. He indicates that A y A is not authorized to act in the specific case; said action is the competence of the Ministry of Health which will act in accordance with the disposition of the Law. He requests that the remedy filed be dismissed.
- ODIO BENITO ELIZABETH and CERDAS BRENES HUMBERTO, in their capacity as MINISTER OF THE MINISTRY OF ENVIRONMENT AND ENERGY (MINAE, in Spanish) and THE GENERAL SECRETARY OF THE NATIONAL TECHNICAL ENVIRONMENTAL SECRETARIAT (SETENA, in Spanish), respectively (folio 151) declare under oath that there is no legal obligation for tourism projects of this nature to have a treatment plant for sewage; what is established is the obligation to comply with a system for the disposition of sewage, as set forth in article 3 of the Discharge and Disposal of Wastewater Law, Decree No 26042-S-MINAE. In order to obtain environmental viability, Hotel "Si como No" submitted to SETENA on July 5, 2000, an application for exoneration from an Environmental Impact Study for its expansion Project. Through document S.G.718-2000 of July 6, 2000, having analyzed the application for exoneration, it was agreed that the cited project conformed to what is established in the Executive Decree No 26228-MINAE article 20 section a), and for this reason, said hotel was exempted from the presentation of the PEEF (Preliminary Environmental Evaluation Form). On October 17, 2000, document SG-1141-2000 was issued, which determined that the Process of Evaluation of the Environmental Impact was complied with and it was established that the stage of environmental control and follow up remained open, which would be done through trimestral reports from the person with responsibility for the environment. Having consulted on the process of Environmental Auditing and Monitoring, document ASA-545-2001 was issued, in which he established that in the first Report by the person with responsibility for the environment, the Environmental Director, it was indicated that "… the company only generates regular wastewater which separates into sewage and soapy water through a system of independent pipes. These pipes carry the wastewater to two separate treatment system which are in the process of being redesigned and reconstructed by AMANCO". It was learned form the foregoing that the company still has not presented operational reports of the Wastewater Treatment System to the Ministry of Health, because it is waiting on the completion of the implementation of the system to test its effectiveness and to comply with the dispositions of the Rule for the Discharge and Disposition of Wastewater, attached document from the Ministry of Health UPC-PC-940-00 of September 20, 2000 in which the location of the Wastewater Treatment System of the Hotel was approved. Once the environmental viability of said project is awarded by SETENA, it is through the Director’s reports that compliance with the environmental undertakings is determined. Form the foregoing, the correct action as much from the Ministry of Environment and Energy as from the National Technical Environmental Secretariat is demonstrated. They point out that as an immediate measure, SETENA will proceed to carry out a site visit with the objective of verifying the veracity of the Environmental Liability Reports and, at an opportune time, a copy of the inspection report will be provided. They request that the remedy filed be declared without merit in all its extremes.
- In the procedures following, the legal prescriptions have been observed.
Magistrate Calzada Miranda writes; and,
- Proven Facts. Of importance for the decision in this matter, the following facts are considered as duly demonstrated, be it that have been accredited or because the petitioner has omitted to refer to them in accordance with the provisions of the initial writ:
- On August 16, 2000 Roberto Gallol García, on behalf of the Committee for Clean Ravines of Manuel Antonio, solicited the intervention of the Ministry of Environment and Energy (folio 48).
- On August 14, 2000 Roberto Quincy Reid, before the District Attorney’s Office of Aguirre, filed a penal claim for contamination against James Spyros Damalas and José Miguel Alfaro Rodríguez, in their capacity as Managers of the Company known as Si Como No Villas del Mar number three limited (folio 50).
- The National Water Laboratory of the Instituto Costarricense de Acqueductos y Alcantarillados carried out a Microbiological analysis on July 20, 2000 and one of the samples was from the discharge of Hotel Sí como No (folio 57).
- The Office of Complaints of Legal Advice of the Costa Rican Institute of Tourism received complaints from the residents of Manuel Antonio Quepos concerning the supposed contamination of water caused by Hotel Sí Como No, and that office informed the Ministry of Health of the matter, through document OQ-416-00 of August 29, 2000 (folio 68).
- Due to the claim filed before the District Attorney’s Office of Aguirre, in the month of September 2000, Arnoldo Gamboa Carmona, Environmental Sanitation Technician of Aguirre and Juan Carlos Calvo Mora, representative of the Microbiological Laboratory of A y A of Puntarenas, carried out a visual inspection of the Hotel in question (folio 87, 102).
- In the month of January 2001, the representative of Ecovisión S.A. communicated to the Municipality of Aguirre that SETENA had approved an Environmental Management Plan through its representative in document SG-1141-2000 of October 17, 2000 (folio 73).
- The Hotel "Sí como No", in the month of October 2001 had available a treatment plant for sewage and wastewater, as well as a tank for the treatment of soapy water coming from the laundry facility and which it is currently in operation (folios 22, 60, 77, 89, 91, 91, 94, 106, 107, 139, 143).
- The expansion construction of the hotel was halted due to the fact that it did not meet all the requirements of the Municipality (folios 22, 24 y 25)
- In extraordinary session No 183 of the Municipal Council of Aguirre, held on September 6, 2000, a commission was named to deal with the matter of the expansion of the hotel Sí Como No (folio 22).
- In extraordinary session No 212 of the Municipal Council of Aguirre, held on January 3, 2001, the construction permit for the first stage of the expansion of the hotel was granted due to the fact that it was in compliance with the Municipal requirements. (folios 22 and 26)
- In ordinary session No 245 of the Municipal Council of Aguirre, held on June 11, 2001, the Hotel in question was granted the construction permit for the second stage of the expansion of the hotel due to the fact that it was in compliance with the requirements solicited. (folios 23 and 27).
- The substance. The petitioner alleges that the Hotel Si como No, lacks an adequate treatment plant for sewage, a fact which has caused the contamination of the riverbeds of the bordering streams. He accuses the Municipality of Aguirre of having full knowledge of the situation and of having allowed the hotel to continue operating. Likewise, he indicates that the Department of Public Works of the Costa Rican Institute of Tourism should be vigilant of all anomalies presented by the hotel.
- In the first instance, it is necessary to clarify with the representative of the company responsible for the administration of the Hotel Sí Como No, that the protection of the Law for a Healthy and Ecologically balanced Environment, contemplated in article 50 of the Political Constitution, is incumbent on this Court and that the fact that a penal action 00-200287-457-PE-S is currently being processed against Kurt Rainer and another in judgement of the Wildlife does not impede this Court from making a pronouncement with respect to the actions or inactions in which the public authorities, as defendants, may incur in relation to the facts alleged by the petitioner.
- This Court in its ruling number 3705-93 at 15:00 hours on July 30, 1993 indicated:
"It is important for the Court to prepare, prior to the considerations strictly of the substance, a general analysis which establishes the constitutional framework and the conditions and interests that nowadays the preservation of the environment awakens, as its study constitutes a novelty of this last century. It is fundamental to remember that for many centuries man believed that he should dominate the forces of nature and put them at his disposal because, in some way, he considered the natural resources as inexhaustible and that industrialization was a desirable objective, without evaluating the impact that the economic activity would have on the environment. In fact, the distinction between renewable and non-renewable natural resources is a modern one, considering that, even the economic sciences which are concerned with the administration of the surroundings to achieve maximum satisfaction of human needs, did not take into account the erosion and deterioration of the environment as a tool of its economic analysis, until quite recently....The environment, therefore, must be understood as a force of development to be used adequately, acting in an integrated way in their natural, socio-cultural, technological and political relationships, because otherwise, its productivity will be degraded for the present and for the future and the patrimony of future generations could be put at risk. The origins of the environmental problems are complex and correspond to an expression of natural and social processes in the framework of the style of socioeconomic development adopted by the country. For example, environmental problems occur when forms of exploitation of the natural resources give rise to a degradation of the ecosystems far greater than their capacity of regeneration which results in wide sectors of the population being harmed and generates a high environmental and social cost which resonates in the deterioration of the quality of life; certainly, the fundamental objective of the use and protection of the environment is precisely the obtainment of the favourable development and evolution of human beings. The quality of the environment is a fundamental parameter of the quality of life; other parameters of no lesser importance are health, nutrition, work, housing, education, etc. But more important than that is the understanding that if man has the right to make use of his environment for his own development, then he also has the right to protect it and preserve it for the use of present and future generations, which is not a novel idea, because it is no more than a translation to this matter, of the principle of “damage” already consolidated in the common law, by virtue of which the legitimate exercise of a right has two essential limits: On the one hand, equal rights of others and, on the other, the rational exercise and the useful enjoyment of this right...."
IIIo.- This Court has also recognized that the right to good health as well as the right to a pollution free environment, without which the first would not be possible, are fundamental rights, so therefore, it is the obligation of the State to provide for its protection, whether through general policies to achieve this objective or through specific acts on the part of the Administration. Sustainable development is one of these general policies that the state dictates to broaden the possibilities of everyone being able to fulfil their aspirations to a better life, increasing the productive capacity or very well opening up the possibilities of achieving progress that is equitable between a demographic growth or between that and the natural systems. It is the sustainable development, the process of transformation in the utilization of resources, orientation of investments, canalization of technological development, institutional changes and all that which contributes to the attendance to the present and future needs of human beings. (Number 3705-93 at 15:00 hours on July 30, 1993) "
- In that order of ideas, it has been defined that the competent authorities, in environmental matters, must comply with the functions that the ordering imposes on them in a timely and efficient manner, due to the serious consequences of actions that are damaging to the natural resources, as oftentimes these damages are irreparable. In the present case, from the file study and the alleged evidence, it is discovered that, in effect, an anomalous situation occurred in relation to the disposition of the waters of Hotel Sí Como no, which was documented by the National Waters Laboratory of the Instituto Costarricense de Acqueductos y Alcantarillados, whose Microbiological analysis of July 20, 2000 concluded that "the discharges of Hotel Sí Como No have a greyish colour and sewage odour, and feeds into a river which empties into the sea". At the same time, before the filing of this claim before the District Attorney’s Office of Aguirre, for the supposed contamination as a result of the operation of the Hotel mentioned, a visual inspection was carried out on September 7, 2000 in which the Environmental Sanitation Technician of Aguirre pointed out that there is a tributary of wastewater which first passes through a sanitary infrastructure for treatment, without determining the level of contamination of these waters. In that same inspection, it was verified that the hotel was carrying out the first stage of the project for the construction of a Water Treatment System, in accordance with the construction and location permit granted in document UPC-PC-D-940-00 of September 20, 2000. In the Court’s judgement, the foregoing elements reveal that, prior to putting in operation the new water treatment system of Hotel Sí como No, whose construction and implementation began in the month of September 2000 and, according to statements given by various respondent organizations, in the month of October of 2001 it was completely constructed and operational and yes, damage was done to the right to a healthy and ecologically balanced environment and this could have been avoided by the defendants if they had provided adequate supervision of the activities of the hotel in question. The defendants allege that neither the petitioner nor the other residents filed a claim against the situation and that the actions adopted obeyed the petition of other public dependencies. However, as indicated, such actions were tardy as the contamination of the stream in question had already occurred. In any event, it could not be alleged that the defendants are not obligated to intervene because there did not exist any timely claim, for the simple reason that in the Democratic State of Law, the success of the effective protection of the fundamental rights, is rooted not only in the constitutional consecration of the same, but also in its direct applicability. This guarantee implies that the precepts contained in the Constitution enjoy a special character which not only allows, but obligates their direct application, without need for a subsequent norm to develop them or a claim to drive them. The rights and liberties acknowledged in the fundamental norm connect the public authorities to the citizens. A constitutional mandate exists, derived from article 50, which obligates the effective protection of the environment, understood in its broadest sense. That is to say, in the case being studied, the defendants are obligated by virtue of their mandate, to ensure the preservation and better utilization of the natural resources. As it is said, in this matter the damages are oftentimes irreparable and, therefore, the preventative supervision by the administration and the celerity of the measures adopted directly impact the magnitude of the damage caused to the environment. On this occasion, in the judgement of the Court, their actions were not sufficient to guarantee its protection and, for this reason, regardless of the date on which the briefs were submitted to this Court, the problem of the adequate disposition of the waters produced by Hotel Sí Como No was controlled through the investment by the hotel in a water treatment system and the remedy must be declared with merit for the violation of the right to a healthy and ecologically balanced environment. The Court appreciates that the Hotel in question obtained the approval of an Environmental Management Plan from SETENA for the improvement of its water disposition system, but what is certain is that there is evidence that the contamination claimed did occur as a result of the activities of the Hotel. Therefore, the remedy must be declared with merit, joint and severally against the defendants, as is disposed in effect.
The remedy of relief is declared with merit. The Costa Rican Institute of Tourism and the Municipality of Aguirre and the State are ordered to pay the costs, damages and harm caused, which will be settled during the execution of judgement of the contentious administrative proceedings.
Eduardo Sancho G.
Carlos M. Arguedas R. Ana Virginia Calzada M.
Adrián Vargas B. José Luis Molina Q.
Susana Castro A. Gilbert Armijo S.
- Proven Facts. Of importance for the decision in this matter, the following facts are considered as duly demonstrated, be it that have been accredited or because the petitioner has omitted to refer to them in accordance with the provisions of the initial writ:
The content of this article is intended to provide a general guide to the subject matter. Speacialist advice should be sought about your specific circumstances.