Compensation in Spanish Law

Carmen de Guerrero

University of Zaragoza

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

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 trails 149.1.23

Autonomous regions: Additional standards of protection + “Activities in matters of environmental protection” (148.1.9ª) + competences over other matters

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 principlesCompulsory financial guaranties

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

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 (…)”

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

Mitigation Compensation 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

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 2000sewerage and waste water purification

(Teruel)

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

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.

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