This is how environmental regulations are: whoever pollutes, pays

After several years of studies, the scientific consensus around the influence of human activities on climate change seems to be practically unanimous.

The Intergovernmental Panel for Climate Change (IPCC), the group of experts that analyzes all scientific publications on the subject, estimates that around the 97% of climate researchers agree when the Earth’s temperature is increasing.

And it does so, in all probability, by the emission of greenhouse gases derived from the production, activity and consumption of human beings.

From the private sector, companies such as Willis Towers Watson they are also involved in this game of probabilities. In these cases, it is not only analyzed what the physical consequences of climate change will be like, but also how environmental regulations to address it will affect, to a greater extent, to companies.

They are what is known as the physical and transitional risks of climate change. And both have economic and financial consequences.

García-Cubillana: Environmental regulations are designed to create environmental responsibility in the population

García-Cubillana: Environmental regulations are designed to create environmental responsibility in the population

In this context, it is therefore inescapable to study and deal with the protection of the environment. Subject to regulations in Spanish and European legislation which also establishes a series of sanctions for companies that fail to comply with environmental care regulations.

These sanctions can range from fines or suspensions to jail sentences, in the case of certain crimes included in the Penal Code.

Environmental Responsibility Law

At the national level, the reference standard to prevent, avoid and repair environmental damage from any operator is the Law 26/2007, of October 23, on Environmental Responsibility.

This regulation, whose last update is April 2021, is also the transposition into Spanish legislation of Directive 2004/35 / CE of the European Parliament that has been implemented in the rest of the countries of the Union.

In the items ranging from 35 to 40, this law establishes the sanctions for two types of infractions: serious and very serious. The serious ones include financial fines of 10,001 to 50,000 euros and the suspension of the authorization for a maximum period of one year.

It is essential that companies know what their obligations are and the consequences of non-compliance

The very serious ones indicate fines between 50,001 and 2 million euros, and the extinction of the authorization or suspension of this for a minimum period of one year and a maximum of two. The graduation of the sanctions will be done respecting the adequacy between the constitutive fact of the infraction and the sanction applied.

What’s more, serious offenses will prescribe after two years and very serious after three. The Environmental Responsibility Law contemplates, among others, serious punishable offenses such as not adopting the prevention measures required of the operator based on its activity, as stated in article 17 of the same law.

Also, not comply with the instructions of the competent authority when putting these preventive measures into practice; Failure to adopt the required remedial measures (reflected in article 19) in the event of environmental damage; Failure to inform the authority of imminent threats or environmental damage or to do so with undue delay.

Archive image of the 2002 Prestige spill

Archive image of the 2002 Prestige spill

Brais Cedeira

Brais Cedeira

And finally, not providing the information required by the competent authority as reflected in articles 18 and 21 of the law. The omission, resistance or obstruction of the operator to those actions that are obligatory according to the law.

On the other hand, the Environmental Responsibility Law includes the following very serious offenses, which can carry up to two million euros in fine and two-year suspensions. Some of them would be not to adopt the preventive measures required of the operator by the competent authority according to article 17 and cause the damage that was intended to be avoided.

Depending on the seriousness of the crime, the penal code includes prison sentences of between six months and four years

As well as not adjusting to authority instructions when putting into practice the mandatory preventive or avoidance measures and that the damage to be avoided with those occurs. Or not adopt by the operator the remedial measures required in articles 19 and 20 and that this reduces the remedial effectiveness of the measures.

But also not complying with the instructions of the authority and that this reduces the remedial effectiveness of the measures. In addition to Failure to inform the authority of the existence of the imminent threat or environmental damage and that, as a result, the effects are aggravated or the damage occurs.

Environmental crimes

The Spanish Penal Code contemplates throughout several chapters – collected under Title XVI – a series of punishable environmental crimes. Here are also included those crimes derived from the application of the Directive 2008/99 / EC of the European Parliament and of the Council, of November 19, 2008, regarding the protection of the environment through criminal law.

Thus, the Spanish Penal Code includes, among other crimes of an environmental nature, those on the spatial planning, against natural resources and the environment or related to the protection of flora, fauna and domestic animals.

García-Cubillana: the Spanish penal code includes as an environmental crime, those on the planning of the territory

García-Cubillana: “the Spanish penal code includes as an environmental crime, those on the planning of the territory”

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Depending on the seriousness of the crime, the code includes prison sentences – ranging from six months to four years–, fines and disqualifications or suspensions. The casuistry is very varied.

For example, the crime of emissions, discharges, radiation or extractions that could damage the environment will be punished – as stated in article 325 – with prison terms of six months to two years, a fine of ten to fourteen months and special disqualification from the profession. or office for a period of one to two years.

What’s more, these penalties may be increased if the industry or activity operates clandestinely or if the express orders of the administrative authority have been disobeyed.

But they will also increase in the event that information on environmental aspects has been falsified or hidden; if there has been a risk of irreversible or catastrophic deterioration; or if there has been an illegal extraction of water in a period of restrictions.

Definitely, environmental regulations are designed under the precept of whoever pollutes, pays. They are designed not only to prevent damage to the environment, but also to create awareness of environmental responsibility in the population.

Environmental regulations are designed to create environmental responsibility in the population

As such, they not only contemplate a wide range of sanctions for companies that fail to comply with environmental care regulations, but also a series of accreditation obligations, risk studies and quantification of losses.

It is essential that companies know what their obligations are and the consequences of non-compliance. To, thus, comply with the necessary preservation of our environment, and to anticipate the possible legal, economic and reputational risks that malpractice –in this sense– may entail.

*** Juan Garcia-Cubillana is Environment Director at Willis Towers Watson Spain.

Reference-www.elespanol.com

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