Central and South America Overview: Emerging Trends in Latin America

• Author: Madeleine B. Kadas and Russell Fraker
• Pages: 365-395

CHAPTER 20

Central and South America Overview:

Emerging Trends in Latin America

MADELEINE B. KADAS AND RUSSELL FRAKER

I. Introduction

As a result of rapid industrialization, enormous population growth,

increased economic power, and compelling environmental and natural

resources challenges, environmental law in Latin America has never been

more dynamic or perhaps important. Although framework laws have

existed in many countries for decades, most have mandated aspirational

standards marked by sparse enforcement, leaving adrift their potential for

meaningful impact. The past decade has been one of extensive regulatory

evolution and implementation, a trend not likely to reverse. Several juris-

dictions, especially among the more developed economies, now boast

mature environmental regimes supplemented by complex technical stan-

dards, robust licensing and enforcement mechanisms, and new or expanded

private remedies for the redress of environmental harms. The region’s legis-

lative activity and standardization in the fields of climate change and prod-

uct stewardship rivals that of Europe and surpasses the United States. This

chapter provides an overview of the landscape of environmental law in

Latin America, with brief accounts of its legal and institutional structure

and selected substantive areas of interest in the region.

II. Constitutional Underpinnings

of Environmental Laws

Latin American countries are civil law systems, and provisions governing

the environment are set forth in national constitutions.1 The range of consti-

tutional rights and protections is diverse in scope and substance, with some

constitutions guaranteeing a right to a healthy environment and others sim-

ply establishing state jurisdiction over natural resources.2 The overall trend

is increased environmental protections and guarantees. Bolivia is a global

365

leader, recently adopting Mother Earth (Pachamama) protections into its con-

stitution and environmental laws.3

The constitutional underpinnings of environmental legal systems in

Latin America have practical implications. First, several constitutions estab-

lish shared jurisdiction over natural resources between national and local

(state, municipal, or regional) bodies. In many cases, subnational jurisdic-

tions can impose more stringent requirements than those of the national gov-

ernment, leading to separate and significant layers of environmental law,

licensing, and potential enforcement.4 Second, the constitutional foundations

of environmental laws usually provide for redress of environmental harms

and protection of the environment as constitutional claims (e.g., amparo);5 the

use of these claims is increasing.6 Third, as a matter of constitutional law,

patrimony over natural resources is often reserved to the nation and private

rights to use natural resources are accorded through concessions systems.7

Negotiation of private resource concessions, in particular for water use,8 will

likely become significant to future regional development.

III. Laws, Regulations, and Technical Standards

Constitutional environmental provisions are implemented through a variety

of legal instruments. Although the hierarchy of laws and their nomenclature

varies from country to country, a typical environmental legal structure will

include a governing law (adopted by a legislative body); implementing regu-

lations (adopted by a government agency, sometimes in multiple layers,

issued at different organizational levels within agencies); and technical stan-

dards (adopted by agencies, but in many countries developed and issued by

a separate, non-governmental technical standards organization). For exam-

ple, Mexico9 has in place a comprehensive waste law governing solid urban,

special management, and hazardous waste;10 an implementing regulation to

that law;11 and a set of technical standards that provide significant defini-

tional contours including, among many others, hazardous waste listings and

definitions of hazardous waste characteristics;12 hazardous waste landfill sit-

ing requirements;13 and hydrocarbon remediation standards.14

In many jurisdictions, there are also framework environmental laws that

cover a wide range of environmental media, jurisdictional, licensing, and

enforcement provisions.15 Many of these framework laws were the first envi-

ronmental or natural resources legislation adopted in these countries, or

their successors.16 While the general regional trend is toward media-specific

laws, these framework laws continue to remain important to the regulatory

landscape and are often cited as authority for subsequent laws, regulations,

and agency actions.

It bears emphasis that states and municipalities, especially in heavily

industrialized areas, are typically active in exercising jurisdiction over envi-

ronmental matters. In many places, local environmental laws either augment

or implement provisions of national laws. For example, Brazil has a national

waste law, the National Solid Waste Policy Act, adopted in 2010;17 however,

366 INTERNATIONAL ENVIRONMENTAL LAW