- 1.Are there any environmental provisions in your constitution? If so, please describe the provisions and their implications.
- Supreme law: The Constitution of the republic of Ecuador;
- Second level law: the Law on the Environment;
- Second level law: the Law on Pollution Control;
- Second level law: Criminal Code;
- Third level legislation: general regulations containing administrative procedures for application of environmental laws on all kinds of activities that may have an environmental impact;
- Third level legislation: special regulations dealing with the environmental framework applicable to certain specific industries (ie, mining, hydrocarbons, power generation, etc); and
- Fourth level legislation: ministerial resolutions or municipal resolutions dealing with jurisdicctional or specific areas on environmental issues.
- 2.What is the environmental statutory and regulatory framework? Please identify the primary environmental statutes and regulations and the agencies (at all levels) with responsibility for environmental regulation and enforcement.
The legal and statutory framework is described above. The agencies with responsibility of environmental regulations and enforcement are as follows
- The Ministry of the Environment, as head of the environmental regulatory system.
- The municipalities and ‘prefecturas’, within their area of competence.
These public entities have administrative power to control environmental activities within their competence; they have authority to impose fines and to file accusations before civil or criminal courts in cases of infringements of the environmental law.
- Until recently, some ministries and certain autonomous state institutions had delegated the environmental competence granted by the Ministry of the Environment (ie, to the Ministry of Non renewable natural resouces, the National Council of Electricity, the Ministry of Health, etc). Nevertheless, in keeping with new policies applied by the Ecuadorian government, those delegations have been cancelled and competence has returned to the Ministry of the Environment.
- The ombudsman and the general comptroller of the state.
- 3.Please identify major environmental treaties and conventions that your jurisdiction has ratified or to which it is otherwise subject (eg, Kyoto Protocol, Basel Convention, POPs)?
Some, but not all, environmental international treaties ratified by Ecuador are:
- Convention on the Conservation of Nature and Natural Resources;
- International Convention Creating the International Union for the Conservation of Nature and Natural Resources;
- South Pacific Environmental Protection Convention;
- Supplementary Protocol to the Agreement on Regional Cooperation on Combating Pollution of the Southeast Pacific by Hydrocarbons and other Harmful Substances;
- Protocol for Protection of the Southeast Pacific of Pollution from Land-based Sources;
- Stockholm Convention on Persistent Organic Pollutants;
- Montreal Protocol on Substances that Deplete the Ozone Layer;
- Vienna Convention for Protection of the Ozone Layer;
- UN Framework Convention on Climate Change;
- UN Convention on Biologic Biodiversity;
- Kyoto Protocol to the United Nations Framework Convention on Climate Change; and
- International Convention Relating to Third Party Liability for Damages caused by Pollution of Sea Water by Hydrocarbons and Intervention on the High Seas in Cases of Oil Pollution Casualties (Brussels 1969).
- 4.What is the environmental permitting process in your jurisdiction? Are separate permits required for air, water and waste? Are permits required as a condition to construction of a facility? What is the average timeline for a facility to obtain environmental permits?
The permitting process, in summary, is as follows:
- Preparation the terms of reference of the EIA and approval by the competent authority.
- Approval of the EIA, which must include public consultations and presentation of the EIA, an environmental management plan and a contingency plan for the communities within the area of impact of the project.
- Once the EIA is approved by the competent authority or by the Ministry of the Environment, the environmental licence is issued by the Ministry of the Environment.
There are no separate permits required for air, water and waste, although there are independent parameters for each element.
Permits are required before the initiation of any construction or facility. Depending on the project and the authority granting the permit, the environmental licences may take several months.
- 5.Please explain the role of a ‘social licence to operate’ in your jurisdiction.
As explained in question 17, preparation of the EIA must include a public consultation process in order to hear all concerns and comments of the community within the area of influence of the project. The NGOs are also entitled to participate in such consultation process.
According to our constitution approved in October 2008, if there is a majority opposition to the project in a community, its execution will be decided by the head authority that regulates such activity.
Public consultation is a key element prior to approval of the environmental impact study.
- 6.Is there private ownership of oil, gas and minerals in your jurisdiction? If not, how are concessions granted and what environmental considerations apply?
No, according to our Constitution all non-renewable natural resources (including oil and gas and minerals) belong to the property of the state.
- 7.What is the regulatory environment for renewable and alternative sources of energy and fuels (wind, solar, nuclear, biofuels, synfuels)?
Our new constitution (2008) contemplates the state’s obligation to promote the development of renewable and non-polluting energies. There is a ministry in Ecuador partially dedicated to this activity (Ministry of Electricity and Renewable Energies).
Our legal system also allows CDM projects for CERs emission. Within this renewable energy sources, nuclear generation is forbidden.
- 8.How are environmental laws and regulations enforced in your jurisdiction? Describe the approach to enforcement and the roles of the authorities responsible for enforcement.
The remedies are included in the constitution (loss of profits, direct damages and reparation of environmental damages).
There are civil, administrative and criminal proceedings:
- Civil proceedings are applicable for damages inflicted to third parties and to the environment. The Civil Court is competent to address these issues.
- Administrative proceedings are applicable to violations of administrative regulations. Different decentralised public entities are competent to deal with these actions.
- Criminal proceedings are applicable to environmental criminal acts. These actions are regulated in the Criminal Code, and the competent courts are the criminal courts.
- 9.What types of administrative, civil and criminal penalties can be imposed for violations of environmental laws?
The main administrative penalties imposed according to the administrative system are monetary fines, suspension or cancellation of the environmental licence (if any), and temporary or definitive closing of the industry or business.
In the case of criminal penalties, imprisonment is the principal penalty and its duration may vary, depending on the seriousness of the criminal act.
- 10.How and under what authority are air emissions regulated in your jurisdiction?
Air emissions are regulated both by national and regional (municipalities) standards. The more stringent applies.
- 11.Who is liable for environmental contamination of soil, surface water and groundwater, and is the liability based on fault or on status?
Our legal system follows the principle of “the polluter pays”. The actual operator of the facility is responsible for the pollution and has the obligation to remediate the environment, regardless of its right to seek for indemnification from previous operators.
- 12.What is the law governing the remediation of contaminated property?
There are two different situations: the Constitution, the Law on Environment and other environmental secondary regulations govern the remediation of contaminated property, whereas the Civil Code rules the patrimony severance produced as a result of contamination to a property.
- 13.What is the nature of liability for damage to natural resources and who can enforce and recover for such damages?
A public action can be denounced by any individual or organisation or by any public agency. According to our Constitution, nature is subject of rights and is under the protection of the state and its inhabitants. Actions can be filed before administrative authorities or before the judges, depending on the nature of the damage.
- 14.How are environmental issues typically addressed in property transfers or mergers and acquisitions? Are there any specific laws that govern environmental aspects of such transactions?
No, but it has become a usual practice that, for these kind of transactions, an environmental audit is conducted before the business is closed, in order to determine environmental responsibilities. In the particular case of hydrocarbon concession contract transfers, the Environmental Regulations for Hydrocarbons Operations specifically provides an environmental audit before the transfer is authorised by the control agency.
- 15.What environmental laws apply to the shutdown or sale of a facility?
General law, general and local regulations apply. In some specific industries, special regulations apply.
- 16.Does your jurisdiction regulate or provide incentives to conduct environmental audits or assessments? If so, please describe.
In Ecuador, environmental audits are mandatory (in general cases) every two years. In addition, the authorities are entitled to conduct audits whenever they are considered justified or needed.
- 17.Are there any requirements for the conduct of environmental assessments or environmental impact assessments, such as a condition to obtaining a permit or in connection with a transfer of real property? If so, describe.
Yes, according to the constitution and the law, environmental impact assessments and environmental audits are mandatory on all projects that may have an impact on the environment.
- 18.What is the process and timetable for conducting and receiving approval of environmental impact assessments?
- 19.How are water rights allocated and transferred?
Water is considered by our Constitution as a strategic element, therefore it belongs to the state, is administered by the National Water Secretariat (SENAGUA) and is granted by a concession administrative resolution. It is transferred with the authorisation of SENAGUA.
- 20.What regulatory requirements apply to the discharge of industrial wastewater in your jurisdiction?
Both national and municipal regulations apply, and it also sometimes depends on the nature of the industry. The more stringent regulation applies.
- 21.Are greenhouse gas emissions regulated in your jurisdiction? If so, describe the regulatory regime.
No, green house gas emissions are not regulated specifically, although there are regulations regarding gas emissions to the environment. According to our Constitution it is a mandate to the state to seek the reduction green house emissions.
- 22.Are there any chemicals or products that are subject to special environmental requirements in your jurisdiction, such as asbestos or PCBs?
Yes, there are. There are lists of forbidden products or chemicals (among them, asbestos) and others of limited or restricted use.
- 23.What legal protections are afforded to patrimony or cultural heritage (protected areas, flora, fauna, species) and environmentally sensitive areas (wetlands, ecosystems)?
The legal regime includes the provisions of our constitution and those contained in the Law on Preservation and Conservation of Natural Areas. The law and its related regulations include preservation of national parks, reserves, endangered species, etc.
Development of activities such as oil, mining and logging activities (extractive industries) within the boundaries of a wildlife protected area in our jurisdiction is allowed in exceptional circumstances only, duly requested by the president of the republic to the National Assembly. This limitation does not include electric generation activities since electricity is not considered an extractive industry.
- 24.What constraints are there on availability of landfills for disposal of waste?
There are general legal constraints on availability of landfills for disposal of waste, specially those regulating activities in natural reserve areas, national parks, reserve forest and special territories duly qualified by local authorities.
- 25.What regulations or government initiatives are there in your jurisdiction relating to extended producer responsibility or to sustainability?
There are Constitutional provisions and also legal provisions regarding the obligation to incorporate in all economic activities the principle of sustainability and conservation of nature; to the best of our knowledge, there are no regulations regarding extended producer responsibility, except the ones dealing with its responsibility to remediate the environment as the actor of any activity that may cause an impact to the environment or to individual health and patrimony.
- 26.What right does the public have to access documents and reports filed with regulatory authorities? Describe the nature of and process for securing any protections for confidential business information.
There is free access to such information granted by our Law on Access to Public Information.
- 27.What are the rights of the public or NGOs/environmental groups to participate in environmental permitting or enforcement of environmental laws? Is such participation typical?
As any other individual or entity, they can participate in the public hearings, which are mandatory, prior to the approval of any Environmental Impact Assessment.
- 28.What are the most significant current trends in environmental regulation and enforcement in your jurisdiction?
The most significant current trends in environmental legislation were included in our 2008 Constitution; among them, we highlight the following:
- Nature becomes subject of rights (the right to be protected).
- Strict liability principle applies in environmental pollution cases.
- Reversion of the burden of proof applies in case of environmental pollution cases.
- No statue of limitation applies for environmental actions against polluters.
- 29.Identify and describe the significance of any noteworthy court litigation in your jurisdiction regarding the environment.
The judicial case initiated more than 20 years ago by a group of inhabitants of the Amazon basin against Chevron-Texaco that has a current award of $18 billion against the company. Such award is currently under appeal before the National Court of Justice of Ecuador and other judicial and arbitration actions before United State courts and international tribunals, accordingly.
- 30.What features of your jurisdiction’s environmental laws are not covered by the previous questions?
Galapagos Islands special legislation.
Contributing Author
Contributing Editor
Questions
- 1.Are there any environmental provisions in your constitution? If so, please describe the provisions and their implications.
- 2.What is the environmental statutory and regulatory framework? Please identify the primary environmental statutes and regulations and the agencies (at all levels) with responsibility for environmental regulation and enforcement.
- 3.Please identify major environmental treaties and conventions that your jurisdiction has ratified or to which it is otherwise subject (eg, Kyoto Protocol, Basel Convention, POPs)?
- 4.What is the environmental permitting process in your jurisdiction? Are separate permits required for air, water and waste? Are permits required as a condition to construction of a facility? What is the average timeline for a facility to obtain environmental permits?
- 5.Please explain the role of a ‘social licence to operate’ in your jurisdiction.
- 6.Is there private ownership of oil, gas and minerals in your jurisdiction? If not, how are concessions granted and what environmental considerations apply?
- 7.What is the regulatory environment for renewable and alternative sources of energy and fuels (wind, solar, nuclear, biofuels, synfuels)?
- 8.How are environmental laws and regulations enforced in your jurisdiction? Describe the approach to enforcement and the roles of the authorities responsible for enforcement.
- 9.What types of administrative, civil and criminal penalties can be imposed for violations of environmental laws?
- 10.How and under what authority are air emissions regulated in your jurisdiction?
- 11.Who is liable for environmental contamination of soil, surface water and groundwater, and is the liability based on fault or on status?
- 12.What is the law governing the remediation of contaminated property?
- 13.What is the nature of liability for damage to natural resources and who can enforce and recover for such damages?
- 14.How are environmental issues typically addressed in property transfers or mergers and acquisitions? Are there any specific laws that govern environmental aspects of such transactions?
- 15.What environmental laws apply to the shutdown or sale of a facility?
- 16.Does your jurisdiction regulate or provide incentives to conduct environmental audits or assessments? If so, please describe.
- 17.Are there any requirements for the conduct of environmental assessments or environmental impact assessments, such as a condition to obtaining a permit or in connection with a transfer of real property? If so, describe.
- 18.What is the process and timetable for conducting and receiving approval of environmental impact assessments?
- 19.How are water rights allocated and transferred?
- 20.What regulatory requirements apply to the discharge of industrial wastewater in your jurisdiction?
- 21.Are greenhouse gas emissions regulated in your jurisdiction? If so, describe the regulatory regime.
- 22.Are there any chemicals or products that are subject to special environmental requirements in your jurisdiction, such as asbestos or PCBs?
- 23.What legal protections are afforded to patrimony or cultural heritage (protected areas, flora, fauna, species) and environmentally sensitive areas (wetlands, ecosystems)?
- 24.What constraints are there on availability of landfills for disposal of waste?
- 25.What regulations or government initiatives are there in your jurisdiction relating to extended producer responsibility or to sustainability?
- 26.What right does the public have to access documents and reports filed with regulatory authorities? Describe the nature of and process for securing any protections for confidential business information.
- 27.What are the rights of the public or NGOs/environmental groups to participate in environmental permitting or enforcement of environmental laws? Is such participation typical?
- 28.What are the most significant current trends in environmental regulation and enforcement in your jurisdiction?
- 29.Identify and describe the significance of any noteworthy court litigation in your jurisdiction regarding the environment.
- 30.What features of your jurisdiction’s environmental laws are not covered by the previous questions?
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