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Peruvian Environmental Law

Overview

Overview

 


The Goverment

Peru has a unitary system of government. Unlike Federal systems where the power is devolved to different layers of government, the central government defines regulations for the whole country. However, it is a decentralized system in which the 25 regions of the country, within the unitary government, participate proactively in decision-making within their territories.

The Executive Branch guides and executes the government's policies through ministries (equivalent to departments in some other countries). These ministries, have environmental jurisdiction over different industrial and commercial activities in the entire country. Therefore, Peru has a sectoral approach to its environmental enforcement. There is no single enforcement agency with total jurisdiction over the entire country and every possible polluting activity.

At the local level, the Municipalities, through ordinances, are also entitled to regulate and to take action to protect the environment. According to the Municipalities Law, their jurisdiction over environmental issues is mainly in public health, safety, and sanitation.

National Policy

Article 67 of the Peruvian Constitution establishes that the Government (el Estado) shall determine the National Environmental Policy as well as foster sustainable use of natural resources. In 1990 the Environmental Code stated the aim of the National Environmental Policy as the protection of the environment and preservation of natural resources, facilitating development of Peru's citizen´s quality of life.

The Ministry of Environment is the agency in charge of managing the country's overall National Environmental Policy. Each action taken by a specific ministry at the sectoral level, e.g., energy and mines, health, fisheries, etc., must be consistent with the overall national policy.

Natural Resources

Articles 66 and 68 of the 1993 Peruvian Constitution establish the legal framework for the use of natural resources. The Constitution classifies natural resources into renewable resources and non-renewable resources. The Constitution also establishes that the conditions for the use of natural resources by private companies and individuals shall be established by "Ley Orgánica" (this is the term used for laws that have to be passed by one vote more than 50% of the total members of Congress). Law on the Sustainable Use of Natural Resources (Ley Organica para el Aprovechamiento Sostenible de los Recursos Naturales, Law 26821), enacted on June 26th 1997, fulfilled such role.

Article 3 of Law 26821 broadly defines natural resources as any component of nature which have a current or potential market value, and which can be utilized by people in order to fulfill their needs. Among others, this law addresses: surface or underground water; the ground, the underground, land as used for agriculture, forestry or protection; biological diversity: such as flora and fauna species, microorganisms, genetic resources, and ecosystems; hydrocarbon resources, hydroenergetic resources, wind power, solar energy, geothermal energy, and alike; the atmosphere and the radio-electric spectrum; and minerals. Natural landscape is also considered a natural resource, as far as it can be subject to economic use.

Law 26821 also created the concept of "free-access resources". This is a benefit granted to indigenous people (under Peruvian Law, communities located in the jungle are called "native communities", and the ones located in the highlands and the coast are called "peasant communities"). Indigenous people may take advantage, for survival and traditional ritual purposes, of the natural resources located within or adjacent to their areas. The use of such natural resources is not exclusive, however, it shall not affect third parties rights.

Article 954 of the Civil Code, establishes that any real estate right includes title to the corresponding subsurface and over the airspace, as long as it is useful to its owner. However, Article 954 makes it clear that such real estate property rights to subsurface do not include rights to natural resources or archeological remains existing in such an area.

Under Peruvian law, and according to Article 955 of the Civil Code, the subsurface and the airspace may be owned by a third party.

Enforcement

Environmental laws and regulations are enforced by the national environmental enforcement agency, OEFA (Organismo de Evaluación y Fiscalización Ambiental) which was created in 2008. Before OEFA, enforcement was carried out on a sector by sector basis by each Ministry.

Besides OEFA, Regional Governments enforce environmental laws and regulations at the regional level and for some specific small scale activities (the case of small mining).

The 2005 Environmental General Act establishes that administrative sanctions include: fines, partial or total closure of the operations, temporary or definitive closure of the operations; and cancellation of the license.

According to the Act, administrative liability is independent from criminal and civil liability. Therefore, civil and criminal liability may be imposed by the Courts, in addition to the applicable administrative sanctions.