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Compensation in Spanish Law

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  1. Compensation in Spanish Law Carmen de Guerrero University of Zaragoza

  2. Article 45 Spanish Constitution • Everyone: • the right to enjoy an environment suitable for the development of the person • the duty to preserve it • public authorities (by relying on collective solidarity): watch over a rational use of all natural resources  • Protecting and improving the quality of life • preserving and restoring the environment • for those who break the legal provisions: • criminal or administrative sanctions • AND shall be obliged to repair the damage caused •  Principles governing Economic and Social Policy not a real right

  3. Spanish framework • Spain is organized as an autonomic state competences shared out among the central state and the 17 different autonomous regions (+ 2 autonomous cities) • Environment: • State: Basic legislation on environmental protection; basic legislation on woodlands, forestry projects, and livestock trails149.1.23 • Autonomous regions: Additional standards of protection + “Activities in matters of environmental protection” (148.1.9ª) + competences over other matters

  4. Liability regime in Spain • Directive 2004/35/CE on environmental liability with regard to the prevention and remedying of environmental damage • Environmental Liability Act 2007 • Before 2007: clearly insufficient e.g.: not preventing • Objective and limitless Liability • Precautionary and polluter pays principles • Compulsory financial guaranties

  5. Environmental assessment • Integrated environmental permit (IPPC) 2002 • Environmental Impact Assessment (EIA) 2008 • Environmental Assessment of plans and programs (Strategic environmental assessment, SEA) 2008 * Environmental assessment in special areas, 2006

  6. Spanish Water Act of 2001 • Article 118: • “Independently of the sanctions that are imposed to the offenders, these will be obliged to repair the caused damages and harms inflicted to hydraulic public domain, as well as replace things to its prior status (…)”

  7. 2. Mitigation  compensation • Generally speaking these measures are similar: • Scope: the protection of the environment in general (not only the Natura 2000 network of protected sites) • Time: before, during or after the damage • The main different comes from the hierarchy

  8. Measures to replace loss or adversely impacted environmental values that should have similar functions equaling existing environmental values Residual, irreversible harm. To ensure, at least “not net loss” Additional measures Measures to transform, reduce, minimize the environmental damage or the imminent threat for that damage to occur Case by case in plans and projects Mitigation Compensation

  9. Compensation measures • Related with the activity, plan o project and the damage caused or the imminent risk (environmental assessment) • Green corridor (Aznalcollar) • Improving of a habitat in part of the area of Natura 2000 • sewerage and waste water purification (Teruel)

  10. But… • In Spain there are not jurisprudence related with the application of compensation measures so it is hardly difficult to know it the measures related in the environmental assessment work or whether they are insufficient or useless

  11. Current legal debate • Environmental “banks” • They exists in USA and in some European countries like Germany, France… • Think on this possibility taking into account that it is not a real solution, but a compensatory measure, that, as we have said, must be the last option.

  12. Conclusion • In Spain we need to improve the monitoring of the application of compensatory measures. • Think on the ecosystem banks but always as an additional measure and based on a case by case approach