In Portugal the Legislative Branch consists of a single parliamentary chamber elected every four years. The Prime Minister is the head of the executive branch (Government) and is appointed by the President of the Republic, in accordance with general elections results. The Government establishes and enforces general policies in all areas and is the primary body of public administration. The President of the Republic is independent from the government, represents the country, and has an important constitutional role that includes the capacity to promulgate and veto legislation.
Like in other areas of Portuguese law, with regard to environmental legislation Government and Parliament are the major legislators. In Portugal, any statute - whether it is a Law from the legislative branch or a Decree Law from the executive branch - is applicable to the whole country (see endnote 1).
Within the central government, the Ministry of Environment deals with environmental issues (see endnote 2). The Ministry of Environment competencies are performed by the Minister herself and by two Secretaries of State: the Secretary of State of Natural Resources and the Adjunct Secretary of State of the Minister of Environment.
The Ministry of Environment is divided in two main departments: the General Secretary (see endnote 3), and the General Environment Department (see endnote 4). The Environment Ministry drafts legislation that has to be approved by the Legislative Branch or by the Government (under specific delegated powers by the legislative branch) (see endnote 5).
Five decentralized regional departments cover the continent's five regions: the Regional Environment Departments of North, Center, Lisbon and Tagus Valley, Alentejo and Algarve (see endnote 6).
Also under the supervision of the Ministry of Environment, there are six specific Institutes with delegated authority and functions. The Water Institute (Instituto da Agua); the Meteorology Institute (Instituto de Meteorologia); the Institute for Nature Conservancy (Instituto da Conservacao da Natureza); the Institute for Environmental Promotion (Instituto da Promocao Ambiental), the Institute for Consumer (Instituto do Consumidor) and the recently created Waste Institute (Instituto dos Resduos) (see endnote 7).
It is expected that the structure of the Portuguese Ministry of Environment will soon be modified by means of new legislation that will review Decrees Laws now in force concerning the administrative structure of the Ministry. However, it is not predictable that this revision will cause significant changes on the Ministry's major competencies.
It can be said that there is already a great amount of legislative acts in Portugal related to environmental issues. This has been particularly significant since Portugal joined the European Community and, consequently, its legal framework. Indeed, most legislative acts in Portugal are the result of European regulatory standards.
Concerning permitting procedures, different environmental issues are subject to different, such as a permit for Public Water Domain use, a permit for the exercise of industrial activities, different building permits and permits for the installation of new landfills and sizable combustion units (see endnote 8).
The following tables present an overview of the different permits that can be required, giving special reference to the competencies of the Ministry of Environment in each one.
TABLE 1: Overview Of Different Permits In Which The Ministry Of Environment Is The Competent Authority
PERMIT DEPARTMENT OF THE MINISTRY OF ENVIRONMENT Public Water Domain administration and (there are 13 Regional Environment utilization permits - see Departments chapter 3.3 - "Wastewater")
TABLE 2: Overview Of Different Permits In Which The Ministry Of Environment Is Only Requested To Give A Formal Opinion
PERMIT DEPARTMENT OF THE MINISTRY OF ENVIRONMENT Exercise of Industrial Regional Environment Activity Departments Building in areas with a distance less than 500m from Regional Environment the coast (where there are no Departments approved planning instruments) Building when there is a direct implication on Public Water Regional Environment Domain administration and Departments utilization Installation of new landfills Waste Institute Installation of sizable Meteorology Institute combustion units
Although the Ministry of Environment is not the competent authority to issue a permit for the exercise of industrial activities, its opinion is of extreme importance, mainly because of the environmental impacts that can result from these activities. Such opinion is particularly relevant when law requires EIA.
Decree Law 109/91, of 15 March, amended by Decree Law 282/93, of 17 August establishes the rules to discipline the exercise of industrial activity in Portugal. The main objectives of this Decree Law are to prevent the risks of industrial activity, protect public and workers' health and promote urban and regional planning, as well as environmental quality.
These legal documents are considered to be crucial instruments to promote the implementation of less pollutant technologies within the industrial sectors and also to assure better options concerning location and operation conditions of industrial sites.
Indeed, these diplomas seem to be an efficient way to integrate environmental issues into the global industrial policy.
According to the above-mentioned acts, a permit is required for those installations which, due to their activity, could damage the environment or otherwise harm the public good.
Within the retionale of this legislation, the figure of a Coordinator Entity was created, in order to coordinate the global industrial activity permitting process, including the relationship with the industrial sector.
Following these trends, Regulative Decree 25/93, of 17 August (Regulation for the Exercise of Industrial Activity) defines classes of activities that must pass through the ordinary permitting procedure, as well as those classes that require only a simplified procedure. This simplified permit procedure applies to specific types of activities which, either by their nature or by their scope of production, are less likely to generate hazardous emissions, and because of this do not require performing an Environmental Impact Assessment (EIA) (see endnote 9).
Ordinance 744-B/93, of 18 August defines the various classes of industrial activities for the purposes of obtaining industrial permits. Under the terms of this Ordinance, industrial activities are divided in four classes, according to the risk they represent to the environment and public health: class A, B, C and D (Class A for higher risk potential and class D for lower risk level) (see endnote 10). Both the permits for the exercise of industrial activity and the exercise itself are regulated according to the classification above. If, in the same industrial site, there are different classes of industrial activities, this site will be classified according to the global risk of all activities performed.
Installation and changes of activity on industrial plants need previous permission granted either by the Ministry of Agriculture and Fisheries or by the Ministry of Economy, depending on which is responsible for the relevant industrial activity.
In addition, in order to prevent accidents from occurring in large industrial installations, Decree Law 282/93 establishes strict safety standards for the operation of industrial installations that are likely to cause serious accidents. The operation of most installations is subject to specific safety measures.
The permit must include an authorization regarding the location of the facility and an Environmental Impact Study, if needed.
Regarding the need for an Environmental Impact Study and Environmental Impact Assessment, Council Directive 85/337/EEC, of 27 June has been implemented in Portugal by Decree Law 186/90 of 6 June (see endnote 11). According to this Decree Law, activities included in Annexes I and III may have to be submitted to an Environmental Impact Study and, consequently, to an Environmental Impact Assessment, in order to be approved (see chapter 3.8 - "Environmental Impact Studies").
According to Decree Law 189/93 (that defines the generic competencies of the General Environment Department), environment inspection authority is committed to the Services of Inspection and Audit, which are part of the General Environment Department.
A total of eleven inspectors, covering the national territory, perform such inspection. The inspectors are always authorized access to industrial sites or other polluting sources, providing they are duly identified with a special card authenticated by the General Environment Director. During the inspection procedure, the management of the industrial sites shall give all necessary information to the inspectors. Indeed, law may punish any refusal to co-operate or any attempt to obstruct the inspector's work.
The inspection act of an industrial site may have different results, depending on the dimension and significance given by the inspector to non-compliance:
- If the inspector considers that there is nothing to register because the industry is in compliance, an inspection record is issued with no further implications.
- On the other hand, should emit a notification record, in which the reason for non-compliance must be duly explained. This notification record is subject to dispute by the presumed offender.
- With the information given by the inspector and the defense of the offender, the Legal Services of the General Environment Department issues an administrative decision, according to general and specific tort law requirements. Depending on the situation, the Legal Services can decide to close the process or apply a fine, previously determined by the General Environment Director.
- Once the fine is established, and if the offender does not proceed with the payment, the process will have to be concluded in a court of law.
- Concerning water issues, Decree Law 74/90 allows a specific procedure, which the inspector can follow in case of non-compliance. In such cases, the inspector takes note of the non-compliance and defines a deadline (in the short term) for the offender to get back in compliance.
KEY ENVIRONMENTAL ISSUES, TRENDS AND DRIVING FORCES
Decree Law 11/87, of 7 April is known in Portugal as the Environmental Framework Law. It is the first legal document that established the basis for an environmental policy in Portugal, pursuant to Articles 9 and 66 of the Constitution of the Republic.
Following the provisions of this law and the guidelines of the European Community Program for Policy and Action on Environment and Sustainable Development, the Portuguese Government has been producing, since 1987, an annual Report on the State of the Environment. Since 1993 this report has been a competence of the Ministry of the Environment.
In 1994, the Ministry of Environment developed the National Plan for Environmental Policy, approved by Minister's Council Resolution 38/95, of 21 April, which defined the major guidelines for an adequate environmental policy in Portugal. This Plan, which should be reviewed until the end of 1997, also entails the future development of several other plans of specific aim within the sectors of environment.
In 1995, the Ministry of Environment develops the first draft of a National Waste Plan. Although its final version has never been concluded, this first draft was later used in 1996 as the major guideline for the development of the Strategic Plan on Solid Urban Waste, by initiative of the Secretary of State of Environment.
In spite of the great volume of legal documents produced until now, which resulted mainly from the transposition of European Directives, Portugal still deals with the problem of monitoring and verifying compliance with legal requirements. Indeed, there is an urgent need of domestic capacity building on human and technical resources, in order to assure that effective inspection bodies and sanction measures discourage non-compliance. These problems of non-compliance become more serious when dealing with the industrial sector, in which there are still a great number of sites working without a proper permit or with absolutely no guarantee of compliance with legal requirements.
Particularly since the last few years, great efforts have been made in order to promote the use of other kind of instruments, based on voluntary schemes that can also contribute to achieve environmental quality standards.
Among these instruments, one of most significance within the Portuguese environmental policy is the signature of voluntary agreements between the government and industrial sectors.
There has also been a progressive development regarding the introduction of the Community Eco-label award, particularly within the paints and varnishes sector.
Concerning other voluntary schemes, such as EMAS and International Standard ISO 14 001, significant efforts are being made in order to implement a suitable and efficient national scheme.
Regulation EEC/1836/93, of 29 June, allowing voluntary participation by companies in the industrial sector in a Community Eco-Management and Audit Scheme (EMAS) entered into force in 1993. According to this Regulation, Portugal should have defined the competent body until June 1994, but the Decree Law that establishes these decisions is still waiting for government approval. It is expected that the competent body will be the General Industry Department (Ministry of Economy).
Regarding ISO 14001 there has already been nominated a national Certification Body for environmental issues, named APCER (Portuguese Association of Certification), although its accreditation process is still in course.
When dealing with environmental issues, the successive Portuguese governments have also considered of major importance to promote participation of all intervening interests. This includes governmental competent bodies, industrial associations, consumers associations, media, civil society and non-governmental organizations (ONG). In Portugal, the most important NGOs are Quercus, League for Nature Protection and Geota. The first of those NGO has the widest scope and is the most influential.
In order to decentralize its own competencies, the government approved Decree Law 259/92, of 20 November confers delegated powers to previously accredited entities (public or private)
According to this Decree Law, organizations may exercise their activity within the sectors of water, air, solid waste and noise, subject to previous request from the public authorities or the industrial sector requests them.
1. With the exemption of specific adaptations to the two autonomous regions of Azores and Madeira, which take into consideration their specific regional problems.
2. Decree Law 187/93, of 24 May approved the organic law of the Portuguese Ministry of Environment.
3. The General Secretary of the Environment Ministry is the central co-ordinating department providing (1) specific information, (2) administrative and technical support to the various divisions and institutes of the Ministry. Decree Law 188/93, of 24 May approved the organic law of the General Secretary of the Environment Ministry.
4. The General Environment Department is responsible for the ministry's (1) co-ordination, (2) planning, (3) supervision, and (4) policy-related research (including an environmental information planning system), (5) collection of information necessary to develop and implement laws and the preparation of legislation and administrative regulations. Decree Law 189/93, of 24 May approved the organic law of the General Environment Department.
5. Decree Law 190/93, of 24 May approved the organic law of the five Regional Environment Departments.
6. The Water Institute organic law was established by Decree Law 191/93, of 24 May. It deals with national policies on water resources and basic sanitation.
The Meteorology Institute organic law was established by Decree Law 192/93, of 24 May. it regulates national activities in areas such as meteorology, seismology and air quality.
The Institute for Nature Conservancy organic law was established by Decree Law 193/93, of 24 May. The institute promotes natural preservation activities and controls environmentally protected areas.
The Institute for Environmental Promotion organic law was established by Decree Law 194/93, of 24 May. It promotes training activities, citizen information and gives support to environment protection associations or NGO.
The Institute for Consumer organic law was established by Decree Law 195/93, of 24 May. This institute promotes the policies to prevent and protect consumers' rights and undertakes the effective measures to protect, inform and educate of the consumers and consumers' associations.
The Waste Institute was recently created by Decree Law 142/96, of 23 August. The institute regulates pollution prevention and waste management policy guidelines in with regard to those wastes not subject to municipal competence.
7. The Ministry of Environment does not issue every permit. Indeed, with the exemption of the public Water Domain, this Ministry is only called to participate in terms of formal opinion.
8. The permit application is submitted to the regional authority (Regional Industry and Energy Department). The request should be accompanied by the project of installation, certificate of installation granted by the municipality or by the co-ordination commission, the environmental impact study, declaration of safety standards and the payment of all applicable fees.
9. Classes A and B relate to the automobile industry.
10. The demand for the necessary permit requested by the industry to the co-ordinating authority is instructed with a document given by the Municipality of the area or the Regional Co-ordination Commission with the approval for the requested localisation. In those cases when environmental impact assessment is required, the respective document is also requested.
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.
For further information contact Manuel de Andrade Neves, Abreu, Cardigos & Partners, Lisbon, Portugal.