Peruvian environmental legislation in intensive care

Tomorrow marks one month since the spill of 11,900 barrels of oil in the Ventanilla Sea, and the person responsible for this ecocide has not yet been found for sure. Repsol insists on blaming the “anomalous waves” for the incident, despite the fact that the captain of the ship that was transporting the oil assured the authorities that the ship had no incidents and that La Pampilla officials hid information about the event from him.

Last week, the Agency for Environmental Assessment and Enforcement (OEFA) imposed a first fine of 100 UIT (S/ 460,000) related to the identification of the areas affected in the environmental emergency.

According to OEFA figures, environmental complaints since 2014 exceed four digits (see infographic).

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What happened this year on the Peruvian coast could join the list of ecological accidents that are not punished in an exemplary manner. The reason for this: the weakness of our environmental legislation, according to experts consulted by La República.

little rigor

Former Vice Minister of Environmental Management Jose de Echave He argued that the legislation is insufficient, since it has been seriously hit for nine years with measures such as the “environmental packages” promoted by the Executive through the Ministry of Economy and Finance (MEF).

“What happened in Ventanilla should mean a before or after to discuss in depth what legal framework and environmental institutions we need in the country. Because today the companies themselves say that the State is not playing its control and oversight role, when for years the business sector has sought to hit the environmental institutions,” de Echave clarified.

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And it is that in the year 2013 the modifications of environmental procedures were decreed with the supreme decrees 054 and 060. The first one applied the administrative silence for environmental and cultural heritage matters, for approval procedures of Environmental Impact Studies (EIA) of the sector energy and mines; the second reduced the EIA approval procedure from 120 to 83 days.

De Echave recalled that the Supreme Decree 054 brought with it the supporting technical reports, “a very simplified process that is approved in 15 days without any mechanism for citizen participation,” and through which the green light was given to the contingency plan for Repsol.

Then would come the Law 30230issued in July 2014, in order to reactivate the economy and which established tax measures, simplification of procedures and permits for the promotion and revitalization of investment in the country.

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“This law brought us that the sanctioning regime of OEFA lost validity and left us as a great lesson that we cannot interfere with the power of the State, because we need it to be present with all the necessary tools to exercise its control actions,” he explained. Caroline Moradirector of Policy Program of the Peruvian Society of Environmental Law (SPDA), recalling that the fines could not exceed 35% of the total.

The moratorium established that in three years the OEFA would not punish the environmental violations of the operators. Mora says that this was the reason why many oil spills in the Amazon “go unpunished.” The so-called environmental packages lost validity in 2017.

Firm hand

De Echave stated that the fines in Peru are not dissuasive, so it should be a matter of reflection by the authorities on how to strengthen the sanctioning capacity. To date, the fines by subsector amount to 209,550 UIT.

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One of the specialist’s proposals implies that “penalties can revert to regulatory bodies in environmental matters”, but without questioning the economic aspect “because it is largely insufficient”. For this reason, he stressed that it should be the State that has to prevent, regulate and supervise permanently.

On the other hand, the judicialization of fines is a resource used by firms in order to cancel or cut them. Repsol itself took refuge in the Peruvian justice in 2014, to reverse a fine of 138.80 IUT filed by the OEFA, a year earlier, for a spill that occurred on Cavero beach (Ventanilla). The entity confirmed the corrective, but reduced the penalty by half by applying Law 30230, so that in 2015, the company paid a total of S/ 277,301.19.

“Many companies prosecute fines to postpone the payment of what should be an obligation, there the processes must be simplified, since it is a very long period that affects or dilutes an exemplary sanction for those who act responsibly”, remarked De Echave.

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He is also a former consultant to the International Labor Organization (ILO) concluded that the rule that guarantees that environmental damage remediation expenses are not deductible from the composable income tax base should also be reformed.

They seek to specify non-deductible expenses

Peru Libre seeks to modify article 44 of the Single Ordered Text (TUO) of the Income Tax Law in order to establish as non-deductible the payments incurred in the repair of environmental damage, health, the rights of indigenous peoples or others that affect the public interest.

Together for Peru proposes the incorporation of two subsections to the aforementioned article. The first seeks to specify that expenses for compliance with corrective measures imposed by the competent environmental authority are not deductible. While the second will try to make compensation from court orders and out-of-court transactions for damage to wild flora and fauna not discountable.

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The word

José de Echave, xvice minister of the Minam

“Environmental institutions must be strengthened and the Ministry of the Environment should not be a decorative element, because today it is, and that the organizations attached to it such as OEFA, Senace and others are also strengthened”.