Recent environmental law developments in Spain

Angel Manuel MORENO

In a nutshell, the main environmental law developments in Spain during the year 2000 may be summarised as follows:

1. Legislation

1.1. State legislation

From the political perspective, the year 2000 can be defined as a continuity period, due to the new victory of the Popular Party in the general elections held in Spring. However, after the elections a new Minister of the Environment was appointed.

1.1.1. Horizontal legislation

The most important piece of horizontal environmental legislation is the Decree-Law (Decreto-Ley) 9/2000, of October the 6th, on environmental impact assessment (EIA). This decree modifies the Spanish legislation on EIA, in order to comply with EU Law. As a matter of fact, Spain faces too infringement procedures for defective transposition of EU Law on EIA. One, for incorrect transposition and application of Directive 85/337, especially art. 4 (application filed before the ECJ on December the 14th, 1999) The other, for not having transposed Directive 97/11 in due time (application filed on Septembre the 15th, 2000).

This decree performs an important modification of the legal norms regulating this issue in Spain. Especially, article 4 of Directive 85/337 (in the version of directive 97/11) was - in our opinion - finally transposed in the correct way, introducing the requirement of establishing thresholds or criteria for those projects that are not subjected to a mandatory EIA. On the other hand, the Decree improves and enlarges dramatically the annexes listing the projects and activities that have to go through an EIA. However, many weaknesses remain, especially for what concerns the procedural aspects of the EIA.

The striking feature of this development is that, in Spanish Law, a "decree-law" is a norm approved by the Council of Ministers in the case of exceptional urgency, having the same force as an Act of Parliament. Later, it has to be confirmed by the Congress, which, if it sees appropriate, may decide to handle the text as a regular draft bill(and that has happened in this case). It is hard to understand that a norm that was due for a long time (since the date of the adoption of directive 97/11) had to be approved this way. Moreover, if we take into consideration that the norms that have been in force till today in this field have been approved also by the Council of Ministers (another Decree-Law -Decreto legislativo- of 1986 and a Decree of 1988), we come to the conclusion that Spain has never had a Parliamentary statute on EIA, but a series of "urgent" (but at the same "late", under EU Law) governmental regulations.

1.1.2. Sectoral legislation

At state level, the most important development is the approval of the National Plan on urban waste management (Spain had been condemned by the ECJ for not framing the plan in due time). Other noticeable developments are: Decree num. 995/2000, of June the 2nd, on water quality objectives for some polluting substances and Decree 403/2000, on the prohibition of the sale of leaded petrol.

1.2. Regional legislation

The high number of Regions (17) prevents any comprehensive listing of all regional environmental legislation. In any circumstance, the year 2000 can not be deemed to be a very fruitful one.

1.2.1. Horizontal legislation

By Decree 118/2000, Castilla-la Mancha has established threshold and criteria for some activities and projects, then developing its Act 5/1999, on environmental impact assessment. It is important to note that EIA legislation is a shared responsibility between the central government and the regions. Within the framework of State legislation, they can approve their own, especially for some kinds of projects which, under State law, do not have to go through a mandatory EIA.

1.2.2. Sectoral legislation

Murcia has approved a regional Act on the depuration of residual waters (3/2000, of July the 12th); the Council of Galicia has promulgated a Decree regulating the tax on atmospheric pollution; finally, Castilla-La Mancha has declared the park of the upper Tajo.

2. Case-law

It is obviously impossible to summarise all the environmental case-law produced in the different jurisdictions and courts. However, we will look at a couple of decisions that have deserved some public attention.

2.1. Constitutional case-law

In a decision rendered in December, the Constitutional Court declared unconstitutional a 1991 Statute of the Balearic Islands that established an environmental tax. The central government challenged that legislation in 1992 and, eight years later (!) the Court accepted its claim. The basic issue at stake was that this law violated the Organic Law on the Financing of the Autonomous Communities. According to the Court, the tax statute has been annulled because it encroaches on the competences of local governments. I addition, it is too broad and taxes the property of the industries irrespective of their actual environmental impact. As a consequence of this judgement, the Region of the Balearic Islands has to give back some 13.000 million pesetas to the taxpayers (166, 38 pesetas=1€).

2.2. Other relevant decisions

Possibly, the judicial environmental decision that has had the greatest impact on the public opinion is the one rendered in the last days of December by a district criminal court in the infamous case of the Aznalcóllar disaster: the Swedish company Boliden had been exploiting for several years different mines in Andalucía (Southern Spain). The highly contaminated sludge resulting from mining operations was stored for years in a damed-up artificial lake, which eventually collapsed. The accident caused a massive spill of toxic mud, that flooded an extensive area close to El Coto de Doñana, one of the most important protected wetlands in the world.

In its decision (auto), the district court (juez de instrucción), who is competent, under Spanish law, for the fact-finding and investigation process of the case, has found the company innocent of an environmental criminal violation (under the Spanish criminal code of 1995). The decision is strictly limited to the issue of criminal liability, and does not prejudice the existence and amount of Boliden´s civil liabilities, that have to be declared by the civil jurisdiction (then starting again a lengthy and cumbersome litigation). The case caused a lot of attention in the media. The plaintiffs (environmental groups, nearby municipalities, farmers, etc.) have announced that they would appeal. Two facts render this decision even more disappointing: (a) just a couple of months before the judgement ( in October, 2000) the company had announced that it would leave its operations in Spain for financial reasons; (b) in the previous years, the company had received more than 6.000 million pesetas in governmental subsidies.

3. Compliance with EU Law

By its judgement of April the 13th, 2000 (Case C-274/98), the ECJ condemned Spain for failing to establish action programs pursuant to article 5 of Directive 91/676, on the protection of waters against pollution caused by nitrates from agricultural sources.

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