This law continues to develop the many institutions created by the Constitution of 2008
The Ecuadorian Constitution of 2008 introduced a new environmental regime. This law established three main and important changes; nature as a holder of rights, strict liability for environmental damages, and conservation of the biodiversity as a matter of public interest. Meanwhile, the Ecuadorian environmental legislation was not congruent with the institutions created in the aforementioned Constitution. The need for new legislation was imperative.
On April 2017, the Ecuadorian Congress approved the Environmental Code, which came into force on April 12, 2018. This Environmental Code overturned all previous environmental legislation and incorporated most of the environmental issues, consolidating them into one law.
The Composition of the Environmental Code
The Environmental Code is composed of 8 main chapters:
- Preliminary Concepts
In this first chapter, the Environmental Code develops the objectives and goals of the law. It delineates the concept of the right to a healthy environment, which includes the conservation of natural resources, the preservation of natural protected areas, and the implementation of clean technology. This chapter also includes the recognition of the rights of nature, previously established in the Constitution; these rights are: 1) conservation and 2) restoration.
The Environmental Code also establishes definitions for various environmental principles such as precautionary, prevention, restitution in kind, environmental liability and in dubio pro natura (this principle states that in case of doubt regarding the application of a law or regulation, the ruler must apply the one that favour nature). Finally, this chapter recognizes the application of strict liability for the cases of environmental damages.
- Institutional Regime
The Environmental Code develops an institutional regime in which the National Environmental Authority ("NEA") (currently the Minister of Environment) is the highest authority. The NEA has many faculties, for example dictating the national environmental policies, grant, suspend or revoke environmental permits, create new protected areas, among others. Many of these faculties can be delegated to the provincial or municipal government (GADs).
- Natural Heritage
The Environmental Code develops the main framework for conservation in situ by establishing the National System of Protected Areas. It also establishes a regime for the conservation ex situ; this includes the regulation of zoos, aquariums, botanical gardens and others involved in the conservation of flora and fauna. The Natural Heritage chapter also regulates access to genetic and biological resources, which is considered as a primary and protected area. Regulation of bio trade, biosecurity, and environmental services are an important matter in this chapter. Finally, the Environmental Code develops regulations and protection for the urban flora and fauna.
- Environmental Standards
Throughout this chapter, the Environmental Code develops regulations, procedures, and standards for the different environmental permits. The permit needed will depend on the activity and the environmental impact of the same. The NEA is the highest authority, who will oversee the establishment of the procedures and permits to guarantee a good environmental standard. GADs will also have the faculty to grant environmental permits once they are approved by NEA. All the activities that could have an environmental impact, must have an environmental permit as well. The environmental authorities are entitled to control the fulfillment of the obligations derived from the permits and the law, through various instruments such as environmental audits, environmental reports, inspections and other instruments determine by NEA. The chapter also regulates the disposal of hazardous, non-hazardous and chemical wastes. Most of these regulations will be developed in secondary regulations issued by NEA.
- Climate Change
The objective of this chapter is to establish the main legal framework for climate change adaptation and mitigation. The objective is to protect people that are under the poverty line, which are considered vulnerable and at-risk groups. NEA is the authorized authority for establishing the environmental instruments and policies for mitigation and adaptation to climate change.
- Marine and Coastal Zones
NEA and the GADs that have coastlines will be in charge of developing regulations and procedures to protect these areas. Activities such as tourism, conservation of natural heritage, urban development (within the coastline) will be regulated. Fisheries will be regulated as well.
- Environmental Incentives
NEA will grant incentives to the activities and industries that comply with environmental standards. NEA will take into consideration the reduction of environmental impacts, implementation of clean technologies within the procedures, good management of waste and others determined by NEA for an incentive to be granted. The incentives will be economic, non-economic, fiscal (tax) and honorific. NEA must develop the incentive regimes, in secondary legislation.
- Reparation of Environmental Damages and Penalty Regime
Finally, the last chapter of the Environmental Code focuses on repairing environmental damage, the administrative procedure and the environmental infringements and penalties. NEA will provide the guidelines to determine the existence of environmental damage and the adequate measures for restoration. The Environmental Code extends the liability of environmental damages to parent companies, shareholders, administrators or directors, in the event that the company responsible for the environmental damage cannot restore the environment. Force majeure will be considered as an exception to the environmental liability, exclusively for administrative sanctions; this does not include the obligation to restore the environment. Since the Ecuadorian Constitution recognizes nature as a subject of rights, any person or community may represent and request the enforcement of these rights. Finally, administrative sanctions include: suspension or termination of the environmental permit, destruction of the assets that produced the environmental damage, economic sanctions, among others. These administrative sanctions will be independent of the obligation for the restitution in kind or restoration of the environment, indemnities and compensation for the people and communities affected by environmental damage.
The new Environmental Code introduces various environmental institutions that follow the Constitution approved in 2008. The enforcement of this code will depend mainly on the National Environmental Authority, and its development will need clear regulations and guidelines given by the National Authority.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.