Spain

• Author: Héctor Rodríguez Molnar
• Pages: 665-704

CHAPTER 33

Spain

HÉCTOR RODRÍGUEZ MOLNAR

I. Overview and Political Structure

A. Spain and Its Political Subdivisions

In Spain, the duty to protect the environment is vested in the various levels

of government.1 Taking into account the territorial (regional) organization of

the Spanish state established by the Constitution of 1978, one can distinguish

between the central government, the 17 regional governments (autonomous

regions), and the local (municipal) authorities as well as the two autono-

mous cities of Ceuta and Melilla, located on the north coast of Africa.

The adequate operation of the legislative allocation of authority in Spain

as a civil law country (see below) depends mainly on the coordination

between the central government and the autonomous regions, which is

sometimes far from being efficient. Moreover, the state is the sole responsible

representative before the European Union (EU) at the international level on

environmental matters. As a result, even in the case of authority that per-

tains to the autonomous regions, it is the central government that is eventu-

ally responsible before the EU for the autonomous regions’ action (or lack of

action). This is a source of various conflicts.

B. The Central Government and Autonomous Regions:

Scope of Authority

Pursuant to Articles 148 and 149 of the Constitution, the central government

is vested with the authority to enforce the nation’s basic legislation on envi-

ronmental protection. The autonomous regions, however, retain the author-

ity to enact additional and/or more stringent regulations and to take action

to enforce national environmental legislation at the regional level.

This allocation of authority was established by the different statutes of

autonomy (corresponding to the 17 autonomous regions), which were all

enacted between 1979 and 1983. These statutes define different levels of leg-

islative and/or enforcement authority. While some statutes (among others,

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Cataluña, Madrid, and País Vasco) specifically acknowledge the authority of

their regional governments to enact additional protective regulations, other

statutes (as, among others, Asturias, Cantabria, and Aragón) restrict the envi-

ronmental role of the communities to the enforcement of the central govern-

ment legislation within their respective territories. The different approaches

adopted by the different regions stemmed basically from the economic

strength of each region and the human resources and knowledge available in

each of them.

The autonomous regions created regional environmental agencies and/

or inspection agents vested with delegated control and inspection authority,

while the distribution of responsibilities on environmental matters also

includes a large degree of authority that is vested in and exercised only by

large municipalities.

As a result of the above political allocation of environmental authority,

the practitioner facing a project in Spain should always compare the particu-

lar details of the regional regulations of interest with the contents of the gen-

eral national framework to identify those aspects that are critical to his/her

business and may be more stringently controlled or regulated at the regional

level. The environmental agencies of the different regions normally have

specific departments dealing with all the areas relevant to the granting of

Integrated Pollution Prevention and Control (IPPC) permits.

These comments are valid for almost all the subject matters discussed in

this chapter.

C. Municipal Authority

The legislation on the local entities regime (Law 7/1985 on the Regime of

Local Entities—Ley de Bases de Régimen Local—as repeatedly amended2)

provides for different levels of municipal authority on environmental mat-

ters based upon the number of inhabitants. In general, only cities with more

than 50,000 inhabitants are responsible for assuring full environmental pro-

tection. Under existing rules, all municipalities are bound to provide for

street cleaning, the supply of drinking water, sewage, control of foodstuffs

and beverages, and collection of household waste. Municipalities with popu-

lations in excess of 5,000 inhabitants must also provide for the selective col-

lection of waste. The autonomous regions have reached agreements with the

different municipalities within their jurisdictions to delegate some of the

above-mentioned obligations.

D. Environmental Litigation

In connection with transboundary civil liability of a European scope, the

jurisdictional aspects are dealt with in the Convention on Civil Liability for

Damage Resulting from Activities Dangerous to the Environment (Lugano,

June 21, 1993) (Lugano Convention). The Lugano Convention is based on the

“polluter pays” principle and provides that actions for compensation may be

666 INTERNATIONAL ENVIRONMENTAL LAW

brought under the convention by a party with a legitimate interest in the

subject matter of the lawsuit before the courts of the place where (1) the

damage was suffered, (2) the dangerous activity was conducted, or (3) the

defendant has his usual place of residence.

At the national level, environmental protection rules can be found in the

criminal code, the civil code, and administrative legislation, setting forth

their own jurisdictional principles. See section XII, infra. In general, litigation

is based on the principle that jurisdiction is vested in the courts and tribu-

nals of the place where damage was caused. These would normally be the

courts of the domicile of the defendant, but this is largely contingent upon

the nature of the damage caused, as the principle of the “place where dam-

age occurred” must be assessed in light of the rules governing the interna-

tional protection of the environment. However, particular jurisdictional rules

may exist.

The practitioner must be aware of the existence of one particular court in

Spain: the Water Court of Valencia, Spain, which is a sophisticated court sys-

tem with historical roots, adjudicating disputes between the members of the

regional Community of Water Users (Comunidad de Regantes) and having

its own procedural rules. The participation of an expert local counsel is man-

datory. The sections of this chapter deal with the constitutional and legal

allocation of authority between the central and regional governments in each

of the subject matter areas to be reviewed.

II. Air and Climate Change

Spain is bound by a number of international treaties and conventions, such

as the U.N. Framework Convention on Climate Change (UNFCCC) and the

Montreal Protocol on Substances That Deplete the Ozone Layer. Likewise,

the EU has implemented a number of rules, such as Directive EC/84/360 on

atmospheric pollution from industrial facilities and Directive EC/2008/50 of

May 21 on air quality.

At the central government level, the key rule on protection against atmo-

spheric contamination is Law 34/2007 of November 15 on Air Quality and

Protection of the Atmosphere,3 which was subsequently implemented through

Royal Decree 100/20114 and Royal Decree 102/2011,5 of January 28, both

intended to implement EU directives into Spanish law and reflect the new

scenario resulting from the existence of Spain’s 17 autonomous regions.

However, perhaps because of the extremely complicated nature of the

environmental issues raised by air contamination (including, but not limited

to, transboundary pollution), only a few regions have implemented regional

legislation on this subject matter.6

In connection with the allocation of authority on air pollution, the central

government is responsible for the monitoring of air quality and for establish-

ing maximum emission levels. In turn, the autonomous regions are vested

with material constitutional authority, such as (1) developing and imple-

menting national legislation at the regional level, including the authority to

Chapter 33: Spain 667