Jorge Femenías, Doctor of Law from the Universidad de Valladolid and Doctor of Law from the Pontificia Universidad Católica de Chile. Professor of Environmental Law and Administrative Law in Derecho UC. E-mail: firstname.lastname@example.org Director of the Contentious – Administrative Dispute Resolution Area at Philippi Prietocarrizosa Ferrero Du & Uría.
During processing the Draft Framework Law on Climate Change (PLMCC, spanish acronym) in successive sessions of the Senate Committee on the Environment and National Assets, opinions were received from scientists, unions, non-governmental organizations, and representatives of citizen associations. These comments legitimized the legislative process and demonstrated that environmental issues are a priority for all social actors in our country.
An interesting fact about the presentations: almost all of them referred to the legal principles of environmental law contained in the project.
Given that most of the participants focused their attention on this point, a series of questions immediately fit: what are legal principles? What are the legal principles of environmental law? How important are they for the discipline? Should they be present in the future Climate Change Law? All this considering that, as Jordano Fraga affirms, “the process of construction of environmental law as an autonomous branch has decided on some principles around which it coalesces.” (Cf. Jordano Fraga, Jesús, The Protection of the Right to an Adequate Environment, Bosch, Barcelona, 1995, p. 131).
Next, an attempt is made to answer these questions in light of the original draft of the Climate Change Framework Law, submitted for legislative processing to the Senate Committee on the Environment and National Assets in January 2020.
The first thing I would like to highlight is that legal principles can be conceived in three ways in law: (a) as a source of international law, (b) as a meta-legal category, and (c) as a positive rule.
This distinction is not usual in our legal system. Principles are only thought of “as these meta-legal categories” that should inspire the State administration, the courts of justice, and legislators’ activity. Alternatively, as expressed by Betancor, “consequently, they have an informative function of positive legislation, judicial practice and the actions of public powers (Cf. Betancor, Andrés, Environmental Law, La ley, Madrid, 2014, p. 144). They would, therefore, only be maxims that serve for the dictation of public policies or the interpretation and application of legal norms.
The principles will fulfill their most determining function when translated into positive rules: That is, when integrated into the law as part of a particular normative prescription, in addition to a rule that can be invoked to make a decision or resolve a conflict.
As García Enterría expresses:
The general principles have a heuristic capacity (to solve interpretive problems of laws and simple acts looking for a solution), an inventive capacity (to organize or discover new combinations), and an organizational capacity (to order heterogeneous, changing, and even contradictory of legal life). They are the ones who lend it its characteristic dynamism, innovation, and constant evolution. (Cf. García Enterría, Eduardo, Reflections on the law and general principles of law in administrative law, RAP, Madrid, N ° 40, 1963, p. 194)
Therefore, for legal principles to be an effective and helpful tool for compliance with this law, it is appropriate to integrate them into its regulations with precise prescriptions that apply them so as not to leave them alone as an interpretive framework of the articles. That is the real challenge and where the intellectual efforts must be turned.
In this sense, the determining factor is that these principles cease to be “meta-legal categories” and become “positive rules” that can be invoked and applied directly. That is the landing required by the principles in a specific regulation.
Environmental legal principles and the Draft Law on Climate Change
In this context, to answer the question that heads this brief note, we would say that the landing of the principles contemplated in the Bill could take place as follows:
The original Bill text states this principle, such as various international environmental law instruments (Principle 15 of the Rio Declaration or the Montreal Protocol). In this sense, it is reduced to “the lack of scientific certainty should not be used as an excuse for not taking measures, if there is a risk of serious and irreversible damage.”
However, this statement does not explain how the climate change principle should be applied or provide clear guidelines. Moreover, the above does not account for how this principle operates.
In this sense, as McIntyre and Mosedale argue:
Precaution must act when: (i) there is a vulnerability of the environment; (ii) science is limited to predict in advance and accurately the damage that the environment may suffer; and (iii) there are alternatives to carry out activities (processes, products) that are less harmful. (Cf. The Precautionary Principle as a Norm Customary International Law”, in Journal of Environmental Law, vol. 9, No. 2, 1997)
Thus, the formulation of Article 2 must be more precise and concrete, resolving: what is serious or irreversible environmental damage? Does it correspond to the definition of environmental damage in Law No. 19,300 but in a qualified hypothesis? Since there is no legal notion of severe ecological damage in our country, innovations that create insoluble antinomies between the various legal bodies that make up the environmental order cannot be generated.
It could be incorporated into Article 9 No. 2, particularly in letters c) and e), specifying that danger must be managed (its ability to produce damage, regardless of its risk, is the probability that such capacity is manifested in specific damage). (Cf. Betancor, Andrés, Environmental Law, La ley, 2014, p. 250).
Article 11 Letter a) could address that the Regional Climate Change Action Plans should consider climate change, its projections, and its potential impacts in the region. Also, in the face of a single threat of severe damage to the environment, one should not wait for an absolute scientific certainty to take necessary protective measures (Cfr. Femenías S., Jorge A. Responsibility for environmental damage, Ediciones UC, Santiago, 2017, p. 136).
Its absence in the Bill has been criticized, and, to some extent, those criticisms seem plausible. Before indicating why, it is necessary to clarify the relationship of this principle with the precautionary principle: the preventive principle deals with damage or adverse environmental effects that can be known in advance and, therefore, measures can be taken to avoid it.
This principle has three aspects: (a) It constitutes the legal basis of the environmental impact assessment, (b) refers to environmental authorizations being the inspiring foundation of quality and emission standards, and (c) as an obligation legal avoidance and repair of environmental damage.
Thus, it seems reasonable to include this principle in the Bill in article 2. However, its introduction in article 5 also seems appropriate to define the guidelines and directives of letters e, f, and g. In this sense, it would be desirable for the various literals to express what – materially considered action or omission – could cause a more significant contribution to the specific effects of climate change, establishing a more explicit guideline on how to manage dangers and risks to avoid them.
Likewise, a mention could be made of it in Article 5, Subsections 6 and 8, providing that if the guidelines are met, the respective ministry could demonstrate that its sector does not generate activities that mainly contribute to the effects of climate change. Principle parameters and guidelines should be used as the standard of compliance to apply the exception to the rule.
Article 11 Letter a) could point out that the Preventive Principle guidelines should be consulted to consider climate change, its projections, and its potential impacts in the region.
Finally, its express introduction in Article 13 is recommended since the preventive principle is precisely one of the foundations of emission and quality standards.
Polluter Pays Principle
Probably, from what its enunciation evokes, this principle has led to confusion or, at least, to consider only one of its aspects. Indeed, this principle has a preventive aspect and a restorative function.
Thus, the principle is much more than the obligation to pay for environmental repair or decontamination (which is the restorative aspect), but it implies:
The cost to avoid pollution or reduce it must be borne by those responsible for the same, without social subsidies of any kind that distort production conditions and consumer goods or lend themselves to distortions in commercial transactions or the location of investments. (Valenzuela, Rafael, Environmental Law. Present and past. Editorial Jurídica de Chile, 2010, Santiago, p. 311).
From this point of view, it seems reasonable that the Bill contemplates this principle. However, more than stating it in Paragraph 2 -which seems correct to us- incorporating it in the articles as a mechanism to ascribe the costs of greenhouse gas production greenhouse to a particular agent that causes them.
In this way, it could be incorporated in Article 5 for all its literals, particularly letter b, emphasizing that the reduction costs must be borne by those who cause them. The same in paragraph 5 of article 5, incorporating a phrase that states: “always considering the Polluters Pays Principle.”
In the same way, in paragraphs 6 and 8 of the same article 5, as a standard to demonstrate that a particular sector contributes very little.
Article 9, especially Letters c) and e), could indicate that the responsibility and the cost determination must consider the Polluter Pays Principle guidelines. That means not imposing more measures or expenses to a sector that end up distorting the market, granting implicit subsidies, or recording more onerously who does not correspond.
As Alonso García says, the principle seeks to avoid that the community has to be responsible for pollution-fighting measures -or in this case, with the production of greenhouse gases-. The cost of the measures for their elimination or reduction has to be attributable to the polluter.
As Guzmán Brito taught:
Research on the concept of some ‘general principles of Law’ usually omits the examination ‘principle’ itself, taking it for granted and known; worse, assuming that such an examination is irrelevant for determining the concept to be investigated. Therefore, it is not strange that, around the point of what the general principles of law are, we end up remaining in initial ignorance with such a method. In fact, not knowing what the genus is, it is impossible to know what its species are “(Guzmán Brito, Alejandro, The idea of the principle mentioned in the expression General Principles of Law, in General Principles of Law. Historical background and current horizon, Thomson Reuters – Aranzadi, 2014, Madrid, p.2).
It seems decisive that the incorporation of environmental legal principles in the articles of the future Climate Change Law “begins” by fully understanding what each one of them consists of. And then making an intellectual effort to develop the norms in light of concrete and precise prescriptions that reflect the application of these mentioned principles for the sake of better protection of the “common home.”
Regarding the precautionary principle:
The formulation of article 2 must be more precise and concrete, resolving: what is serious or irreversible environmental damage? Does it correspond to the definition of environmental damage in Law No. 19,300 but in a qualified hypothesis?
Specify in article 9, number 2, letters c and e, that what must be managed is the danger caused by an activity, that is, the probability that damage is manifested.
Express, in article 11, letter a, that the Regional Climate Change Action Plans must consider the context of climate change, its projections, and its potential impacts in the region.
Regarding the preventive principle:
- Include it in article 2 and article 5 (letters e, f, and g), stating what could cause a more significant contribution to the effects of climate change and how to manage it.
- Mention it in article 5, paragraphs 6 and 8.
- Indicate it in article 11, letter a, indicating that they will use the guidelines of this principle.
- Its express introduction in article 13 is one of the foundations of emission and quality standards.
Regarding the Polluter Pays Principle
- Include it in all the literals of article 5, particularly the letter b.
- Include it in paragraph 5 of article 5, incorporating the phrase: “always considering the Polluter Pays Principle.”
- Include it in subsections 6 and 8 of article 5.
- Include it in article 9, letters c and e, of number 2.
Current PLMCC text approved by the Senate Committee on the Environment and National Assets
Prepared by the Climate Change Law Observatory team within the framework of its legislative monitoring (modifications to the original text in blue)
Article 2. Principles. The policies, plans, programs, norms, actions, and other instruments that are dictated or executed within the framework of this law will be inspired by the following principles:
a. Scientific Principle: the instruments and mitigation or adaptation measures to face the adverse effects of climate change will be adopted and implemented based on the best available scientific information.
b. Cost-effectiveness Principle: climate change management will prioritize those measures that, being effective for mitigation and adaptation, represent lower economic, environmental, and social costs, considering the indirect costs of inaction for adaptation.
c. Equity and Climate Justice Principle: the State must ensure a fair allocation of burdens, costs, and benefits, safeguarding the ability of future generations to meet their own needs, with a gender focus and particular emphasis on sectors, territories, communities, and ecosystems vulnerable to the climate change.
Climate Justice seeks the fair treatment of all people and avoids discrimination that can lead to specific policies and decisions to address climate change.
d. Preventive Principle: the measures intended to comply with the object of this law must tend to anticipate and avoid the adverse effects of climate change, reducing its causes and mitigating them if they occur.
e. Precautionary Principle: when there is a risk or danger of serious or irreversible damage, the lack of scientific certainty should not be a reason to postpone the adoption of measures to avoid said risks or dangers or to prevent the adverse effects of climate change, following the Cost-effectiveness Principle.
F. Non-regression: the management of climate change may not be modified when the mitigation or adaptation objectives established are compromised or when this implies a regression in the levels of environmental protection previously achieved or established.
g. Progressivity: the instruments and measures for the management of climate change must advance gradually to comply with the purpose of this law, following the Non-regression Principle.
h. Transparency: the State must facilitate timely and adequate access to information on climate change, promoting the dissemination and awareness of the matter and reducing information asymmetry.
i. Transversality: State action for climate change management should promote coordinated government participation at the central, regional, and local levels, as well as the involvement of the private sector, academia, and civil society.
j. Participation: the State must have mechanisms that ensure the right of participation of every person or group in the management of climate change, both at the national, regional, and local levels.
k. Territoriality: policies, plans, and programs at the national level must take into account the diversity of each territory at the communal, regional, and macro-regional level, while the instruments of a local or regional nature must be adjusted and be consistent with the national instruments.
l. Ecosystem approach: considers the interrelation of species in a given area.
Modified letter e:
“Guidelines for the transversal adaptation actions to be implemented in the country, establishing objectives, goals, and indicators of vulnerability and adaptation at the national level, in the medium and long term, following the provisions of the letter i) of this article, which allow monitoring progress in this area and establishing priorities that guide sectoral and regional measures. Said guidelines must safeguard water for human consumption for subsistence and sanitation and biodiversity conservation. These guidelines will correspond to the National Adaptation Plan.”
Modified letter f:
“Guidelines for mitigation and adaptation measures to consider nature-based solutions, with special emphasis on environmental sustainability in the use of water in the face of threats and risks associated with droughts, floods and pollution, and the consideration of climate shelters.“
Betancor, A. (2014). Derecho Ambiental. La ley, Madrid.
Femenías, J. (2017). La responsabilidad por daño ambiental. Ediciones UC.
García Enterría, E. (1963) Reflexiones sobre la ley y los principios generales del derecho en el derecho administrativo. Revista de Administración Pública, (40), 189-224
Guzmán, A. (2014) La idea de principio mentada en la expresión Principios generales del Derecho. En Principios Generales del Derecho. Antecedentes históricos y horizonte actual (pp. 1-10), Aranzadi Thomson Reuters.
Jordano, J. (1995). La protección del derecho a un medio ambiente adecuado. Barcelona.
McIntyre, O. & Mosedale, T. (1997) The Precautionary Principle as a Norm Customary International Law. Journal of Environmental Law, vol. 9, N° 2, 221
Valenzuela, R. (2010). El Derecho Ambiental. Presente y pasado. Editorial Jurídica de Chile.