Environmental Law

By Arthur & Castillo (info@aclaw.com)

 

I. Environmental Law Overview

The framework for the protection of the environment and the natural resources in the Dominican Republic (DR) is first regulated under the Environment and Natural Resources Law 64-00 enacted on August 18th of 2000.  (Hereinafter, Environmental Law 64-00).

The Dominican Republic due to its island condition and its geomorphological characteristic has singular ecosystems and a splendorous biological diversity that need to be protected in order to be contemplated and enjoyed by current and future generations.

The aim of Law 64-00 is to establish the norms for the conservation, protection, enhancement and restoration of the environment and the natural resources, assuring its sustainable use. The legislation has also established that the environment and the natural resources are the common heritage of the Dominican Republic as well as the essential element for the sustainable development of the country.

According to Law 64-00, the freedom of using the natural resources that each citizen has, is based on the right of enjoying a healthy environment. Therefore, the Government must assure the participation of local communities and the inhabitants of the country in the conservation, management and sustainable use of natural resources and the environment.

Law 64-00 has particular objectives that are essential for the application of its provisions, among the particular objectives are the following:

  • The prevention, regulation and control of any consequences or activity that may cause damage to the environment, contamination of ecosystems and the degradation, alteration and destruction of the natural and cultural heritage;
  • The establishment of means, ways and opportunities for the conservation and sustainable use of natural resources;
  • The strengthening of the national system of protected areas;
  • Guarantee the rational management of water systems, assuring their sustainability.

In order to understand the concepts and technical meanings of some provisions, Law 64-00 includes definitions.  Among the basic concepts defined are: environmental risk, sustainable use, protected areas, human settlement, environmental audit, biodiversity, environmental quality, life quality, conservation, sonic contamination, ecological criteria, sustainable development, toxic waste, environmental license and among other concepts.

Before the enactment of Environmental Law 64-00, there was no specific environmental authority of the Dominican Government in charge of environmental protection, in this sense, Law 64-00 establishes the Ministry of Environment and Natural Resources as the entity in charge of regulatory and managerial aspects for the environment, ecosystems and natural resources of the Dominican Republic.

Depending on the areas of its competence and functions, the Ministry of Environment and Natural Resources it is divided in the following five (5) divisions: 1) Environmental management; 2) Soil and water; 3) Forest resources; 4) Protected areas and biodiversity; and 5) Coastal and marine resources.

II. Environmental evaluation for the establishment of projects

In order to prevent, control and mitigate possible impacts on the environment and the natural resources produced by works, projects and activities, Law 64-00 has established the environmental evaluation procedure, which may be based on the following instruments:

  • Environmental impact statement (DIA)
  • Strategical environmental evaluation
  • Environmental impact study
  • Environmental report
  • Environmental license
  • Environmental permit
  • Environmental audit; and
  • Public consultation.

Pursuant Law 64-00, among the projects or activities that require the submission of an environmental impact evaluation, are:

  • Airports, bus and train terminals, railways, highways, lanes and public walks;
  • Projects for urban development, human settlements and urban regulation plans;
  • Industrial plants, including sugar industries, cement works, liquor industries, chemical industries, textile industries, paper industries, beer industries, among other;
  • Agroindustry and slaughterhouses, farm houses, milking and weight gaining of animals on industrial dimensions;
  • Mining projects;
  • Importation, exportation, formulation, transformation, use, trading, stored, transportation, disposition of, toxic, explosive, radioactive, flammable, corrosive or reactive substances and any other dangerous substance;
  • Installation of hotels or touristic developments; and
  • Installation of industrial parks, transformation industries and free zones.

Any project, installation and works, carried out by the Government or private sector it is subject to the social and environmental impact evaluations established by law and the requirements imposed by the Ministry of Environment and Natural Resources. The activities, works and projects that do not require any permit and environmental license are listed in the corresponding Environmental regulations, but shall nevertheless comply with the environmental rules established by the Ministry of Environment.

III. Environmental Licenses and Permits

It is under the responsibility of the Ministry of Environment and Natural Resources the issuance of Environmental licenses and permits.  Therefore, any natural or legal person that needs a license or a permit or both, shall submit a formal request before the Ministry of Environment.

Law  64-00 provides that if a natural or legal person has obtained a permit and/or an environmental license, it shall: i) Assume administrative, civil, and criminal responsibility over the damages caused to the environment and to natural resources if such damages are the result of a breach on the terms established on the environmental license and permit; ii) observe the provisions established in the norms and current special regulations; iii) execute the environmental management and adaptation program; and, iv) allow the competent authority to undertake the environmental supervision.

IV. Specialized prosecution office

The Attorney General’s Office for the defense of the environment and natural resources is the specialized department created by Law 64-00 in charge of the execution of legal actions and representation of public interest on prosecution processes before any judicial court as a result of the commission of a felony established by law.  It is also in charge of the execution of representative actions by the Dominican Government deriving from damages to the environment, independently to those actions promoted by individuals who have suffered a damage to their person and property.

V. Administrative Sanctions under Law 64-00

Pursuant Law 64-00, the Ministry of Environment and Natural Resources is the authority in charge of the imposition of administrative sanctions, which may include the following:

  • Fines from half (1/2) of the minimum wage to three thousand (3,000) minimum wages, based on the date in which the breaching of Law was carried out, in regard of the economical capacity of the natural or legal person and the magnitude of the damage produced.
  • Limitation or restriction on the activities that cause the damages or risk to the environment;
  • Seizure and/or confiscation of objects, instruments, items, vehicles, raw materials and products used to cause the damage; and
  • Prohibition or provisional or temporal suspension of the activities that generates the damages or the environmental risk; and in extreme cases the partial or total closing of a venue or establishment where the activities that generate the damages are carried out.

The administrative resolutions adopted by the Ministry, are separate from the civil or criminal liability that may be derived from breaking the law provisions.

VI. The judicial competence

The corresponding district courts at the competent jurisdictions are the courts in charge of judging in first instance, the felonies committed against the disposition of Law 64-00. According to the Environmental Law, any person or association of citizens has the legitimate capacity of enunciating and bringing actions against any fact, action, factor, process, or omission of facts that have caused or are causing damages, degradation and contamination to the environment and the natural resources.

Any natural or legal person that has a legitimate interest on the adoption of the measures established by law, could bring actions by providing proof on the pertinent case.

VII. The civil liability (Tort)

According to Law 64-00, any individual that causes a damage to the environment or to the natural resources, will have an objective responsibility for the damages that may be caused, in this sense it will be obliged to materially repair, if possible, at its own cost, the damages caused. The repair of the damages consists on the restoration to the state prior the damages were made, if were possible.

VIII. Felonies against the environment and the natural resources

As per the provisions of Law 64-00, any individual that involuntarily or maliciously, by action or omission break Law 64-00 and any other complementary provision, commits an offense against the environment and the natural resources. Hence, it could be liable of fines from five thousand (5,000) to twenty thousand (20,000) minimum wages and depending on the magnitude of the damage, could be prohibited of undertaking the same activities that caused the damage for a period from one (1) month to three (3) years.

Law 64-00 also provides that if the damages produce the intoxication of human groups, species habitats destruction, or irreversible extensive contaminations, the judge will decide whether to close an establishment or to prohibit its activities definitely.

IX. Criminal sanctions

The corresponding district court at the competent jurisdiction in cases of crimes committed against the Environmental Law, may dictate by sentence the following criminal sanctions or obligations:

  • Six (6) days to three (3) years of imprisonment and if as a result of breaking the Law a person is killed, the Dominican criminal code dispositions are the applicable; and/or
  • Fines from a quarter (1/4) part of the minimum wage to ten thousand (10,000) minimum wages; and/ or
  • The confiscation of raw materials, tools, equipment, instruments, machinery, transport vehicles, as well as products and items that came from the breach committed or were used for the perpetration of the illicit actions or could constitute a danger for the natural resources, the environment and human health;
  • The obligation to compensate economically the damages and damages caused to the persons involved; and/or
  • Temporal or definitive removal of the authorization, license or permit granted for the exercise and execution of the activities that have caused the damages or may cause a damage or prejudice; and/or
  • Destruction of, neutralization of or provision of substances elaborated, manufactured, processed or offered on sale, susceptible of causing damages to human health and to the environment; and/ or
  • The obligation of modify or demolish the construction that is breaking the law provision regarding the protection, conservation and defense of the environment and human beings; and/or
  • The obligation to return to their country of origin the substances and elements or dangerous combinations of that have been imported to the country breaking the law; and/or
  • Installation of the necessary equipment to contain or avoid the contaminations, diminution or degradation of the environment;
  • The obligation of repair, replace, compensate, restore, or to restore to its previous state, when possible, the natural resource eliminated, destroyed, decreased, deteriorated or negatively modified.

In applying the sanctions, the judge will take into account the magnitude and transcendence of the breach; the malicious intentions of the individuals; the relapse of the breach and the socioeconomic conditions of the persons who caused the damages to the environment.

Questions about this information can be directed to Our Team (info@aclaw.com).

This AC Law Publication is for informational purposes only and is not intended to be construed or used as general legal advice. Any transaction related to any of the described aspects shall require adequate legal assistance in the appropriate jurisdiction. Arthur & Castillo. © 2017. All rights reserved.