We address the main changes brought about by the forthcoming Law on Economic Crimes in relation to the criminal protection of the environment and the new offenses contemplated in this area.
How does the new Law on Economic Crimes change the panorama of environmental risks for companies?
First of all, the law incorporates into the Penal Code new criminal figures between articles 305 to 312. Thus, two “types” or classes of crimes against the environment are distinguished:
Pollution offenses: Within the first classification (i) several modalities of pollution are sanctioned with respect to those who do not have administrative authorization to exercise their activities; (ii) likewise, several other pollution assumptions are also sanctioned, but with respect to those who, having an administrative authorization, unlawfully transgress or seriously contravene the sectorial regulations; (iii) on the other hand, illegal extraction of water is also penalized, or those who carry out these activities in violation of the rules for its distribution and use; and (iv) a less serious offense is also established, when the amount discharged, released or extracted in excess does not significantly exceed the permitted or authorized limit, and when the offender has acted diligently to reestablish the emissions or extractions to the permitted value, in order to avoid harmful consequences.
Crimes that seriously affect the environment: Within the second classification, we find, for example: (i) crimes that punish those who carry out dumping activities or who deposit or release polluting substances or extract water or soil components causing a serious affectation, which requires, then, a harmful result to the environmental component. (ii) serious damage to the environment due to imprudence or negligence, in violation of regulations, is also punishable; and (iii) serious damage to a virgin region reserve, a national park, a natural monument, a national reserve or a wetland of international importance is also punishable. However, special consideration must be given to these types of places, since their damage may also give rise to other types of offenses, such as those related to damage to National Monuments in the category of Nature Sanctuaries.
On the other hand, the law incorporates what has been called “false information flow crimes” by introducing some criminal sanctions in Law No. 20,417 that creates the Ministry, the Environmental Evaluation Service and the Superintendence of the Environment. For example, the conduct of submitting false information that could lead to the incorrect approval of the environmental qualification resolution is penalized.
Serious impact on the environment
Regarding what is understood by “serious environmental impact”, the law indicates that it will be any adverse change produced in one or more environmental components. As you can see, this is a rather broad concept that, even when defined, allows the incorporation of diverse consequences (e.g., variations in pH, temperature or elements of the environmental component). However, in order to avoid problems related to the scope of the concept, since some adverse changes are not necessarily “serious” effects, some circumstances are established that limit the definition. Thus, a serious impact must:
- To have a spatial extension of relevance.
- To have prolonged effects in time.
- Be irreparable or difficult to repair.
- Reach a significant number of species.
- To affect species categorized as extinct, extinct in the wild, critically endangered, endangered or vulnerable.
- Serious risk of serious harm to the health of one or more people.
- Significantly affect the ecosystem services or functions of the environmental element or component.
Regarding the administrative activities that must be followed before the corresponding authority, for example, in relation to the delivery of information to the authority or what has to do with obtaining sectorial permits to develop certain activities, it will be necessary to review the processes that are usually developed for certain types of activities related to the delivery of information to the authority in the context of a response to administrative requests; or related, for example, to the extra care that must be taken in the administrative procedure that must be followed in order to be able to carry out authorized -by the authority- activities that affect some environmental component.
Role to be played by senior executives and senior management
With respect to environmental crimes, this is important because the directors and executives involved in “upstream” decision making are involved in certain processes or decisions that have a direct impact on the way in which controls are exercised and certain relevant risks are mitigated. It will not be acceptable for an area manager to learn that contractors are carrying out their activities without the permits required by the authority in advance, for example.
Although it is usual to say that environmental risks occur more in operational activities and, for example, in this case the worker who did not warn that one of the pipes was going to break is sanctioned, it must be taken into account that the design and structure of such processes depend entirely on the decisions previously taken to carry them out and in which members of senior management participate. Thus, for example, it can be argued that the responsibility may not only lie with the worker whose job it is to check that the pipes are in good condition, but also with those who participated in designing and approving this project by questioning, for example, that there was no weekly monitoring of the thickness of the pipe walls to detect early on the need to change them before the risk of breakage arose.
By this, we mean that, since these activities must be planned seriously and considering all risks, if they are not designed or structured with a view to compliance with the law, the risks are likely to be much more serious.