"Each and every citizen has the right to a human and ecologically balanced environment and the duty to defend it, being the State entrusted, through its departments and pursuant to popular and communitarian appeals, to promote the improvement of both individual and collective quality of life".
(Law n. 11/87, 4 April, article 2(1)).
Portuguese legislation on Environmental issues is very recent, being the Law n. 11/87 - "The Environmental Main Law"("EML") the starting point for all further legislation (despite an "right to the environment" previewed on the Portuguese Constitution of 1976 - article 66). In fact, since 1987 more than 200 statutes were published.
Furthermore, only in 1991 a Ministry of the Environment was created. This Ministry is however becoming more important and assigned with an increasing budget to achieve its goals. However, as we will see, there is still a lot to be done...
The mentioned EML has two main different aims: on the one hand, it intends to establish the major guidelines of the environmental policy and, on the other hand, to establish the legal relationship between the environment and the citizens and the Public Administration's duty to assure the preservation of this "good". Thus, the provisions of such law are generic, being necessary to specify the same through further specific regulations. However, there are a several areas that are not yet covered at all.
Notwithstanding the above mentioned, several important laws have been already enacted, v.g.: Decree Law n. 74/90 (water quality); Decree Law n. 46/94 (use of public waters); Decree Law n. 186/90 (obligatory environmental impact assessment for certain type of projects - this law is the transposition of the Directive 85/337/CEE, 27.07; however such transposition was very deficiently carried out); Decree Law n. 232/94 (restrictions to the use of hazardous substance and waste); Decree Law n. 310/95 (waste management); Decree Law n. 352/90 (air quality and protection); and, Decree Law n. 109/91 (industrial licensing).
PUBLIC PARTICIPATION ON ENVIRONMENTAL DECISIONS
Law n. 10/87, (published at the same time of the EML) governs the legal status of the Environmental Protection Associations, providing them with full legal capacity to sue in all type of jurisdictions (Administrative, Civil and Criminal). Such associations have also the right to participate in the preparation of all measures of environmental policy, and the right to request any information on the enforcement of such policies.
Besides the obligation of a public hearing whenever an environmental impact assessment occurs, citizens have now two very recently published instruments allowing them to participate in environmental issues: the right to participate in the administrative decision making process with environmental entanglement and the power to sue independently of having an individual and direct interest in the environment dispute - Law n. 83/95, August 31 - (those instruments were set forth in the Portuguese Constitution of 1976 - however, it took twenty years for such legislation to be enacted...).
According to the provisions of that Law, Public Administration shall hear any citizen, who can be affected in terms of its environmental rights by any important public project, before taking the decision of approving such project. On the other hand, any citizen as the capacity to go to court, and against public or private entities, "to protect" the environment itself, not being necessary to have a personal and direct interest. This instrument is very similar to the "public interest actions".
CRIME OF POLLUTION
A recent revision of the Portuguese Criminal Code (1995) defines, in Articles 278, 279 and 280, three types of "environmental crimes". Unfortunately, such provisions are deficiently drafted as they do not state criminal liability to collective bodies and its wording is too vague to be efficient.
We can see that an extensive legal framing has already been done in Portugal in environmental subject matter. Moreover, in the last couple of years, court decisions have focused more on environmental problems. However, and due to the many statute dealing with the environment, we can say that a very recent discussion exists in order to know whether an Environmental Code would be in order. On the other hand, public authorities are not yet well prepared to deal with environmental issues. Unfortunately, the same criticism applies to citizens...
The contents of this Article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
For further information contact Antonio Esteves da Fonseca or Manuel de Andrade Neves, Abreu, Cardigos & Partners, Lisbon, Portugal.