Seminar on Environmental LawCARDS Project “Good Governance and the rule of Law in

Croatian Environmental Policy“

Zagreb, 23-24 November 2006

Environmental Law in Spain Ana Barreira

www.iidma.org

ENVIRONMENTAL LAW IN SPAIN

1.- BACKGROUND AND CONTEXT

2.- THE ACCESSION TO THE EEC

3.- SECTORS BRIEF REVIEW

4.- LEGAL MECHANISMS FOR THE DEFENSE OF THE ENVIRONMENT IN SPAIN

5.- LEGAL MECHANISMS FOR THE DEFENSE OF THE ENVIRONMENT AT THE EU

6.- CONCLUSSIONS

1.- BACKGROUND AND CONTEXT

THE ENVIRONMENT PREVIOUS TO THE 1978 SPANISH

CONSTITUTION

1972 UN Stockholm Conference on the Human Environment1972 EC Declaration on the Environment Decree of 13/04/1972 creating a Government Commission for the Environment comprised of 14 Ministers. It also created the Interministerial Commission for the Environment (CIMA)CIMA prepared and published the first report on the Environment in Spain published on June 1977. No much activity, actions as a response to the International

Community movement, not to forget the historical period

THE ENVIRONMENT IN THE 1978 SPANISH CONSTITUTION

Article 45:

“ 1. Every person has a right to enjoy a healthy environment for its own development and a duty to protect it.

2. The public authorities will ensure the rational use of the natural resources aimed at protecting and enhancing the quality of life and defending and restoring the environment.

3. Criminal and administrative sanctions will be established for those who violate the previous provision in addition to the obligation to repair the damage.”

Article 148

“ The Autonomous Communities will be able to acquire competences on the following areas:..... 9. Protection of the environment management”

Article 149

“The State has exclusive competence on the following areas:....

23. Basic legislation on environment protection, having the Autonomous Communities faculty to establish additional protection legislation...”

PRE-ACCESSION PERIOD

During 1983 and 1984 cooperation with EEC Member States was very intense and Spain attended the Environment Council of Ministries as observer on November 1985.Spain hardly had environmental legislation and the pieces of legislation on environment issues were roughly in line with EEC provisions:

1970 Hunting Law1972 Atmosphere Protection Act

1975 Domestic and Urban Wastes Act

1975 Natural Protected Areas

1985 Water ActInstitutions: Ministry of Public Works-Under Secretary for Territory and Environment created in 1977

2.- THE ACCESSION TO THE EEC

January 1, 1986: Portugal and Spain acceded to the EEC Accession to the European Communities Treaty Accession Act established the conditions for accessionTitle II of Part IV of the Act provided for transitional periods for Spain on the following issues:

a. Free movement of goods

b. Free movement of persons, services and capital

c. Agriculture

d. Fisheries

e. External Relations

f. Financial aspects

AT THE TIME OF ACCESSION, THE ENVIRONMENT WAS NOT INCLUDED IN THE TREATY OF ROME

Part V of the Act included a title on the applicability of the acts of the institutions in the new member states.

Unless a transitional period were negotiated, all secondary legislation was in force from the accession time. (Article 395).

Annex XXXVI , part III, contained the list of the Environmental Directives to which transitional periods were applicable BUT only Portugal negotiated such periods. Therefore, SPAIN HAD TO

COMPLY WITH THE ENVIRONMENTAL acquis communitaire FROM JANUARY 1, 1986

• Main Transitional periods for Portugal:

Deadline January 1, 1986-Directives on disposal of waste oils, water quality of drinking water and human consumption water and methods of measurements and frequencies.

Deadline January 1, 1993- Directive on quality of bathing water

• To adequate Spanish legislation to the EC legislation the 47/1985 Act delegated powers to the Government to pass the necessary Acts and amendments to existing Acts to comply with the acquis communitaire. Legislation to Ammend

Natural Protected Areas, Hunting, Domestic and Urban Wastes

Directives to implement into Spanish Law

Wild birds, EIA and packaging of dangerous substances

Portugal and Spain introduced the Mediterranean perspective to the EC( specific problems) and gave impetus to certain temporary exceptions. 1987 SINGLE EUROPEAN ACT-Environmental Chapter Three Spanish EU Presidencies

1.- 1988: to further advance in the 4th EAP, proposed more stringent ozone depletion measures, biotechnology proposals, soil erosion and habitats protection

2.- 1995: LIFE II; Euro Mediterranean Conference; Proposal for a

EU Desertification Strategy; Impetus for new EU water policy

3.- 2002: Launch of a Soil Strategy, Preparation of WSSD. Since the accession Spain needed and needs EU funds to

comply with environmental legislation:structural, LIFE,

Cohesion Funds (Maastricht)

THE COHESION FUNDS

• Art. 130 D Maastricht Treaty: Fund to develop environmental protection projects and transeuropean transportation infrastructure networks.

• Eligible countries: Greece, Ireland, Portugal and Spain

• Funds received by Spain: water sewerage, waste management, urban environment

Year M Euros

1994 858,4

1995 1.184,4

1997 1.514,2

1999 1.757,5

2000-06 12. 357

3.- SECTORS BRIEF REVIEW

Water Waste Management Biodiversity

Water•Authorities emphasised more on water quantity than in water quality due to precipitation patterns ( rainfall national average is about 690mm per year)

LEGISLATION AND ACHIEVEMENTSDangerous Substances: Directives 76/464/EEC on discharge of dangerous substances and 80/68/EEC on groundwater pollution implemented by 1985 Water Act, ammended by 46/1999 Act and its 1986 Implementing RegulationThe daughter Directives have been implemented through Ministerial Orders.•Drinking Water: D 75/440/EEC on drinking water and D 79/869/EEC on measurement methods implemented by1988 Ministerial Orders and 1985 Water Act ImplementingRegulations

•Bathing Waters D 76/160/EEC implemented by 734/1988Royal Decree and 1988 Implementing Regulation

•Urban Waste Water Treatment D 91/272/EEC implemented byRD 11/1995, RD 509/1996 provides rules to collect and treat urban waste water and by the 1995 National Sewerage and Waste Water Treatment Plan. 2004, 73% of the population in accordance D.• •Water Framework Directive implemented by the Consolidated Water Act 2001 through an amendment

Waste Management• Urban waste generation ranges from 300 to 400 kg per capita

• Management of urban solid is mostly by landfill though decreasing

LEGISLATION AND ACHIEVEMENTS

Spanish legislation on waste in line with the Community Strategy

for Waste Management

- Prevention principle

- Producer responsibility and polluter pays principle

- Proximity principle

- Hierarchy of waste management operations:

Prevention of waste, recycling and reuse, optimum final

disposal and improved monitoring

• Waste D 91/156/EEC on waste implemented by 10/1998 Act on Waste: all kind of wastes; wastes community list; contaminated land; selective collection for municipalities with 5.000 inh.; Hazardous waste also regulated by RD 952/1997Annual Hazardous Generation Waste Statements: 3.000 in 1994; 4820 in 1999; 10.806 in 2003Annual Hazardous Waste Managers Reports: 331 in 1999; 742 in 2003

Hazardous Waste Imports: 102.704 tns in 1997 113.663 tns. In 1999 232.667 tns. In 2003

• Hazardous Waste incineration D 2000/76/EC implemented by

RD 653/2003,

• Packaging and Packaging Waste D 94/62/EC implemt.11/1997 Act and 782/1998 Implementing Regulation:- return, collection, recovery and deposit system (charge)- Integrated management system (11.000 business accepted)

• Urban Waste National Plan 2000-2006

2004 Reuse goals:

25% mineral water bottles

35% refreshing drinks bottles

70% beer bottles

15% wine bottles

2006 Recycling goals: 50% minimum for packaging waste

Developed through National Plans on:

- Recovery and Recycling

- Packaging and Packaging Waste

- Compost

- Energy Valorisation

- Elimination

BiodiversityThe most outstanding feature of nature in Spain is its wide biodiversity. More than half of all European species can be found in Spain

- Flora : 8.000 vascular plant species; 3.500 lichens and 12.000 fungus species

- Fauna :118 mammals; 368 birds; 68 freshwater fish; 25.000 invertebrates

- High degree of endemism species: 1.500 vascular plants are endemic to Spain

- Wide diversity of habitats due to the geographical

heterogeneity

LEGISLATION AND ACHIEVEMENTS•Wild Birds D 79/409/EEC implemented by 1989 Conservation of Natural Areas and Wild Flora and Fauna Act (general goals of conservation in Spain)This Act established the Endangered Species National CatalogueOn species conservation this Act was amended by 40/1997 Act to allow derogations in accordance to art. 9 of the Wild Birds D and art. 16 of the Habitats Directive.

•Habitats 92/43/EEC implemented by RD 1997/1995 and RD 1193/1998.Spanish proposed contribution to the Nature 2000 Network includes sites of the 4 biographical regions: atlantic, macaronesian, alpine and mediterranean. It represents almost 17% of the Spanish territoryThe Macaronesian list is comprised of Canary Islands territories:

-176.537 has. marine - 283.627 has. land

The Mediterranean list is comprised of:-6.936.688 has. land- 146.834 has. marine

Balearic Islands have 29 community sites (4,69% of territory)-23.534 has. land-64.473 has. marine

4.- LEGAL MECHANISMS FOR ENVIRONMENTAL DEFENSE IN SPAIN

Access to informationLey 27/2006 of 18 july 2006 Public participation mechanisms for environmental defense

- Legislative Initiative- Right to petition- Petition to the legislative power- Complaints to the Ombusdman- Public information procedure within an administrative process

Access to justice- Access to administrative procedures- Reporting to the administration- Access to administrative courts of justice- Access to criminal courts- Access to civil courts- Access to the Constitutional Court (HRs procedure)

5.- LEGAL MECHANISMS FOR ENVIRONMENTAL DEFENSE AT THE EU

Access to information: access to documents of EU institutions

Public participation in the European Commission decision-making processes

Petition to the European Parliament Complaint to the European Commission Complaints to the European Ombusdman Access to the ECJ

6.- CONCLUSIONS

Accession to the EEC was an important impetus for Spain`s environmental policy. Legislation was further developed and brough into line with Community environmental law

It obliged Spanish authorities to take the environment seriously though it took some time

It contributed to the progressive establishment of an environmental administrative structure necessary for environmental management:

1996 MoE creationAutonomous communities environmental ministers

It contributed to raise awareness among spanish citizens and

companies Still there are difficuties for public participation: Difficulties for enforcement actions ( 6th EAP) Without doubt the new law on the three access rights will give

impetus to environmental protection in Spain

ana.barreira@iidma.org

www.iidma.org