New Environmental Sanctions Regime Announced

 Colombia has adopted a new comprehensive environmental sanctions regime, reports Bogota lawyers Alvaro Rodriguez and Alexandra Correa of Posse Herrera & Ruiz.  The new regime replaces what they describe as “an incoherent framework that made both enforcement of and defense against sanctions difficult and unpredictable.” 

The innovation, however, is controversial, as it presumes the fault of the alleged offender, reversing the supposedly constitutionally-guaranteed presumption of innocence. The alleged offender bears the burden of proof, which Rodriguez and Correa describe as “heavy procedural and economic burdens.” The new legislation extends the statutes of limitation, increases fines, increases the list of aggravating and mitigating factors considered, and, interestingly, creates a national register of offenders. 

As part of our comprehensive legal services please find below a brief summary of the key aspects of the New Colombian Environmental Sanctions Regime enacted by Law 1333 of July 21, 2009 (the “Environmental Sanctions Regime”). We will highlight the main novelties and address their legal implications.

Before the enactment of Law 1333 of 2009, the imposition of sanctions for violations of environmental regulations was subject to the procedure established in Decree 1594 of 1986, which was issued to enforce the sanitary measures related to water and effluent regulations contained in the same Decree. Additionally, articles 83 to 86 of Law 99 of 1993, which established preventive measures and substantive sanctions was applied. The result was an incoherent framework that made both enforcement of and defense against sanctions difficult and unpredictable.

The main innovation of the new Environmental Sanctions Regime is that it presumes the fault (negligence or intent) of the alleged offender.[1] This is a departure from Colombian legal tradition based on the civil law concept of fault, which has generated heated debate, considering that under Colombian law the presumption of innocence is constitutionally guaranteed. The Environmental Sanctions Regime reverses the burden of proof, shifting it to the alleged offender, who will have to bear the heavy procedural and economic burdens of proving its innocence. This legal presumption applies also at the preventive measures stage.    

Other important changes include:

[10]Ibidem, article 66

4.1.             Increase in Statute of Limitations of Environmental Investigations to 20 years[2]. This is a significant increase compared to the existing term, which was 3 years and could create a situation of legal insecurity as regulated parties could face investigations a long time after the relevant facts may have occurred, which coupled with the presumption of fault could make defending such investigations very difficult. On the other hand, it should be recognized that a 3-year statue of limitation was too short, especially for environmental matters where the effects of a violations could take many years to become evident. 

4.2.             New Extenuating and Aggravating Circumstances Established[3].  The latter include: (i) offenses against the threatened, endangered or protected natural resources as well as offenses against those covered by any type of ban, interdiction or prohibition; (ii) omissions or actions committed in protected areas or areas of special ecological importance ; (iii) to obtain economic benefit for the offender or a third party from the environmental offense; (iv) to obstruct the action of environmental authorities; and (v) to fail to comply with the obligations derived from the imposition of preventive measures.

4.3.             Violations of Licenses as Permits Included as a Punishable Offense.[4] There is an addition to the definition of article 84 of Law 99 of 1993[5] consisting in the inclusion of violations to obligations contained in administrative acts of Competent Environmental Authorities (including environmental permits and licenses), and other behaviors that cause environmental damage.

4.4.             Preventive Measures Not Subject to Appeal. 

4.5.             New and Tougher Sanctions. The Environmental Sanctions Regime adds some sanctions and modifies others[6]. For example, the amount of the daily fines was increased from three hundred (300)[7] current minimum monthly legal wages (“cmmlw”) to a maximum of five thousand (5000)[8]cmmlw. The law establishes the possibility of revoking  environmental licenses or permits as opposed to former regulations that simply provided for the suspension of the license or permit. The suspension is now a preventive measure that may be enforced by the authorities with preventive faculties. Finally, restitution in kind and community work were also included as new sanctions. Other sanctions like the temporary or definitive closing of the establishment, the confiscation of species and demolition of building, were kept in the Environmental Sanctions Regime.

4.6.             Clarification of Procedure. Tthe Environmental Sanctions Regime meticulously unifies the procedure. It creates a preliminary investigation stage[9] with a maximum duration of six (6) months, for the authority to determine the existence of an alleged violation. After the six (6) months, the authority will have to, either initiate the sanction process, or definitely close the investigation. Notwithstanding the above, the preliminary investigation shall not be extended to other facts different from those that led to the complaint or investigation.

4.7.             Register of Offenders. The law also creates a register of environmental offenders, with the purpose of keeping a detailed register of environmental offenders, and will be administered by the MAVDT. The register is still subject to detailed regulation of key aspects such as the term during which the offender will appear in the register and the conditions to be removed from it.

4.8.             Finally, it is important to take into account that the proceedings established in the Environmental Sanctions Regime are immediately enforceable[10], except for those cases in which charges have already been filed, where the former regulations will still apply.

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[1] Law 1333 of 2009, by which the environmental sanction procedure and other provisions are established, articles 1 and 5.

[2] Law 1333 of 2009, Article 10.

[3] Articles 6 y 7.

[4] Law 1333 de 2009. Article 5.

[5] Article 84 of Law 99 of 1993: When ever occurs violation of environmental law dispositions on renewable natural resources, the Ministry of Environment or the Local Environmental Authorities will impose sanctions consisting in (…)  

[6] Article 40

[7] For 2009, COL$149,100.000 or approximately US$72,917.

[8] For 2009, COL$2,485,000.000 or approximately US$1,215,283.

[9] Law 1333 of 2009, Ob. Cit. article 17.