L a t i n  A m e r i c a

The Dawn of Environmental Justice

By Pilar Franco

Latin America's environmental disputes theoretically can be resolved by new laws that focus on protecting the region's ecosystems. But there are still numerous pending issues, such as creating courts, designating experts and winning recognition of collective rights.

The process that is painting Latin America's Constitutions an environmental green has kept a steady pace for the last two decades, opening the way for debate on legal solutions to the region's growing ecological deterioration.

But this nascent environmental law faces enormous challenges that hinder the achievement of its objectives: to protect natural resources and promote sustainable development.

The great scientific and technical complexity of environmental cases, which often demand unique solutions to new types of problems, points to the need for specialized courts, agree political and environmental experts.

Though they have certain common foundations, Latin American countries have each set their own pace in designing legal mechanisms to defend ecological interests, which are often collective and diffuse.

Jurists from Latin America and the Caribbean gathered earlier this year at a symposium in Mexico City to discuss environmental justice. They concluded that governments, together with civil society, must urgently study the challenges of the current environmental situation and ''how the law can contribute to confronting those challenges."

Changes in Latin America's legal systems have begun to bear fruit, which is evident in court intervention in major environmental cases, says Raúl Brañes, president of the Latin American Association of Environmental Law (ALDA).

Brañes told Tierramérica that the region is going through ''a dawn of environmental justice, characterized by rapid and promising advances - but the challenges and responsibilities pending problems pose for legislators and judges must not be forgotten.''

International law plays an important role in the development of environmental justice, to the point of becoming the ''engine that drives the train,'' Brañes explained.

Since 1994, laws, decrees and treaties related to the environment have permitted the creation of an important legal branch in Costa Rica, said Ricardo Zeledón, a Supreme Court justice in that country.

But many years before, international treaties and accords led to the construction of a constitutional environmental framework that integrated individual rights with economic and social rights, the judge told Tierramérica.

''In Costa Rica there is open access to justice, bestowed in the Constitutional Court through agrarian and environmental jurisdiction. The legislation is in place, but lacking is the creation of judicial bodies with power to implement justice,'' Zeledón pointed out.

The right of all Costa Ricans to live in a healthy and ecologically balanced environment is part of this nation's culture. Over a century ago lawmakers created a solid legal system for nature reserves, reinforced by the State's commitment, since 1970, to protect extensive areas of natural wealth for future generations.

In Mexico, where some 600,000 hectares of green area are lost annually to deforestation, there have been some important advances in the environmental arena.

The Federal Procurator's Office for Environmental Protection (PROFEPA) now recognizes the problems afflicting the nation's forests, for example. Its latest report concludes that close monitoring of industry has led to a major reduction in pollution. Today just one of every hundred factories is found to have serious environmental infractions in its operations, compared to one of four factories two decades ago.

Environmental justice in Mexico faces ''problems in the effective application of the law due to institutional and budgetary reasons and the lack of political will,'' explained Marielena Mesta, of the Mexican Center for Environmental Law. ''The legal framework also needs to be perfected,'' she added.

PROFEPA has the ability to impose sanctions and take coercive action, but ''it has declared its role is not to prosecute crimes. The obstacle does not lie in the institutions but in the lack of political will to exercise legal authority,'' Mesta told Tierramérica.

The Mexican Constitution establishes the right of the population to an environment that is adequate for its development and welfare. It is essential, therefore, that ''appropriate administrative and legal mechanisms and proceedings are provided for the application'' of that precept.''

However, access to justice is difficult in Mexico because ''secondary laws establish a framework for defendants who are injured directly, which in practice create limitations for environmental law,'' stated Mesta.

A person can only protect him or herself in Mexico if his or her individual legal guarantees have been violated, ''but in environmental cases the effects are usually not direct, but collective or undetermined, and there is no possibility of interposing that legal entity in environmental cases.''

In that sense, it is essential to reform certain laws. Compliance with the goals of protecting the environment and promoting sustainable development also requires an ''effective system for placing responsibility on public servants'' when they fail to exercise their authority, said Mesta.

''Currently, the public ministries lack specialized training and the judges need greater knowledge of environmental law, as well as greater sensitivity to environmental issues,'' she said.

In Brazil, meanwhile, there is much easier access to the justice system to defend the environment. Legislation on this issue in Latin America's largest country is recognized in the region as one of the most advanced.

The legal framework for environmental cases in Brazil largely dates back to the 1970s and 1980s, but its implementation did not really gather strength until the 1990s, mostly due to the efforts of civil society.

In 1981, the Law on National Environmental Policy gave the government ministry authority to issue rulings in environmental defense and protection cases.

Seven years later, the Brazilian Constitution empowered the Ministry of the Environment to conduct investigations and to pursue civil actions to defend the environment, while in most Latin American countries such powers rest only with the Attorney General or the Ministry of Justice, according to Brazilian judge Vladimir Passos de Freitas.

He explained that criminal proceedings require proof of illegal action, which is difficult to produce in cases of environmental damage because police forces do not have access to experts in this field. Civil actions face the same obstacle.

Brazil's advanced environmental law has not been able to prevent a series of environmental disasters, however, like the recent oil spills in the nation's territorial waters. But some of the cases have meant steep fines for the responsible parties.

In August, the state-run oil giant Petrobras was hit with a penalty of almost 100 million dollars for the July spill that dumped four million liters of crude into the Iguazu River, causing extensive damage to local plant and animal life.

Environmental catastrophes in neighboring Bolivia, meanwhile, pushed José Luis Carvajal, minister of Environment and Sustainable Development, to petition Congress to revise legislation so that laws include sanctions for those responsible for ecological harm.

Last January, the Transredes company, a partnership of the US-based Enron and the British-Dutch Shell multinational corporations, caused a 29,000-barrel oil spill (159 liters per barrel) in the Oruro region in southern Bolivia.

* The author is editor of Tierramérica.

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