Panama environmental law history, the General ...

An exploration: Panama environmental law history, the General Environmental Law and a pollution case in the Villa River Watershed. To what extend are Panamanian environmental laws applied?

Photo credit: TVN noticias/2014

Institution: College of the Atlantic Name: Anyuri M. Betegon A. Supervisor: Ken Cline Senior Project 2015 Key words: water, Panama, Azuero, la Villa River, environmental law, atrazine.

TABLE OF CONTENTS

TITLE………....………………………………………………………………………………………………………….PAGE

Abstract…...………………………………………………………………………………….….(3) Introduction………………………………………………………………………………….….(4) I. Panamanian Environmental law……………………………………………………………… (5) a)

International influence (Latin-American context)

b) c)

History of the establishment environmental law in Panama The General Environmental Law 41, Panama 1998: Summary of the Panamanian General Environmental Law.

d)

The Decree Law No. 35 of 1966: Summary of the law on the use of the waters.

II. Application: looking at different cases studies: studying their resolutions – Cases from 19962008................................................................................................................................................................(25) a) b) c) d) e)

Parks and Wildlife Refugees Fresh Water Oceans/sea shores Pollution EIA (Environmental Impacts Assessment)

III. The Case of Pollution of the Villa River: What things can we learn from water pollution of the Villa River about environmental law in Panama?…………………………………………..…....(42) IV. Conclusion…………………………………………………………………………………(60)

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Abstract Environmental law is considered a new branch of law that draws from the principles of other disciplines, and is closely related to public law and an important chapter in private law. In Panama, one of the major threats to the conservation initiatives is lack of environmental and ecological knowledge. This essay uses both primary and secondary literature to study Panamanian environmental law, understand its history, influences, and effectiveness. It illustrates this through the presentation of a case study on atrazine pollution of the Villa River in the Azuero region. Panamanian Environmental Law has been changing and evolving to encompass international, regional and local needs for environmental protection. The Panamanian courts apply the existing environmental laws when possible, however, it is still a developing body of law. This combined with the scientific complexity inherent in and uncertainty associated with environmental problems makes application difficult, as shown with the pollution case study of the Villa River where the rivers in Panama are often polluted from more than one source.

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Introduction

There is not a simple or unique answer to the application of environmental laws in Panama. This work is an attempt to further my understanding of Panamanian environmental law through an exploration of history, law cases, and a case study on atrazine pollution of the Villa River in the Azuero region. In addition, I will investigate the rationale behind texts called “General” or “Framework Environmental Laws” and the factors or events, which influenced the creation of such laws. In order to unravel in more detail the atrazine pollution case in the Villa River, I will present nine case studies of court rulings on the environment. From all of this, I will draw some conclusions about the effectiveness of environmental law in Panama. This work will illustrate the complex nature of pollution and the limitations of human constructed ideas and structures to deal with the problems arising from such events. This is also a work of translation of the laws and specific provisions and works originally in Spanish. In order to address these topics, I will divide this document in three parts as follows: I.

Panamanian Environmental law

II.

Application: summaries of nine cases studies from 1996-2008.

III.

The Pollution Case of the Villa River: What things can we learn about environmental

law in Panama from the water pollution of the Villa River?

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I. Panamanian Environmental Law

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Introduction to Environmental Law in Panama Environmental Law must constantly change and adapt to current challenges facing international, regional and national arenas. As expressed in the Judicial Agency (one of the three governmental powers in Panama) of Panama citing Argentina’s Constitution, an environmental law is “El conjunto de normas que regulan las relaciones de derecho público y privado, tendientes a preservar el medio ambiente libre de contaminación, o mejorarlo en caso de estar afectado” – “The group of norms that regulate the relationship between the public and private rights, which strives to preserve the environment free of contamination or to restore it if it is polluted” (Zarin, 1996). Environmental law is considered a new branch of law that draws from the principles of other disciplines, and is closely related to public law and an important chapter in private law. The redistributive dimensions of Environmental Law are related to the economics of law and its supranational character relates to principles of international law (Zarin, 1996). When studying the complex heritage of Latin American environmental law, one runs the risk of utilizing incomplete or outdated information. These laws always establish national environmental policy and legal instruments for implementation, including preventative instruments, which often provide for the general development of regulations. These instruments contain corrective, administrative penalties and, in some cases, criminal penalties. Many times these same laws governing the protection of the environment do so through the perspective of protecting certain natural resources such as: soil, water, air, and wildlife. The law describes the proper procedure for dealing with both conservation and resource usage (Casas and Martinez, 2008). As Panamanian citizens, we must know our environment, understand its operation, and thereby protect and conserve it for future generations. We have come to realize the urgency of these issues, problems,

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and illnesses that we have caused other humans and to the environment. In Panama, one of the major threats to the conservation initiatives is lack of environmental and ecological knowledge – as the urgency of protecting our environment increases, so do the environmental problems. a. International influence on the development of Latin-American environmental law The 1972 Stockholm Conference is considered a catalyst for conversations and action regarding environmental issues on the global agenda. The Latin-American region was highly influenced by it, resulting in a process of institutionalizing of environmental management since 1972 that brought major changes in public policies and the legal systems themselves (PNUMA (Programa de las Naciones Unidas para el Medio Ambiente – Environmental Program of the United Nations), 2001 and Alimonda, 2006). However, this is not to say that there were not laws already in existence addressing environmental issues in Latin American countries, they were simply expanded and systematized following the Stockholm Conference. Changes in legal systems involved the creation of standards that clearly were intended to protect the environment and promote sustainable development. This type of rule is commonly known as “environmental law.” Some standards from the PNUMA report in 2001 are listed below: “The common law environmentally relevant” or “environmentally relevant legislation casual,” composed by legal norms issued without any environmental purpose, but that regulate behaviors that significantly affect the protection of the environment. Its origins date back to the XIX century. The “environmentally relevant sectorial legislation,” composed of legal norms issued for the protection of certain environmental elements or to protect the environment from the effects of some environmentally destructive activities, which is typical of the early twentieth century. The “proper environmental law” composed of legal rules issued under the modern approach displaying the environment as a whole organization in the manner of a System” (PNUMA, 2001).

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Sometimes these principles have been incorporated into existing laws by amendments to the pre-1972 constitutions as has happened with the Mexican Constitution of 1917 (amended in 1987 and 1999), with the Costa Rican Constitution of 1949 (amended in 1994), with the Bolivian Constitution of 1967 (amended in 1994), and the Uruguayan Constitution of 1966 (amended in 1996). Other times, the established environmental principles have been adopted fully as has been the case of the constitution of Panama and Cuba (Rodriguez and Espinosa, 2002 and PNUMA, 2001). An indication of the State’s duty to protect the environment first appeared in the Constitution of Panama in 1972, “ The State has the fundamental obligation to guarantee that its population lives in a healthy environment, free of contamination (pollution), and where air, water, and foodstuffs satisfy the requirements for proper development of human life” (Article 118) and “The State, and all the inhabitants of the national territory, have the obligation of promoting economic and social development that prevents environmental contamination, maintains ecological balance, and avoids the destruction of ecosystems” (Article 119) (PNUMA, 2001). This idea was reproduced in all of the constitutions of the decade of the 70s in different ways; for example, the Cuban Constitution of 1976 provided that “... the State and society protect nature...” (Article 27 now reformed). The Chilean Constitution had similar wording when it stated, “it is the duty of the State to ensure that this right (to live in an environment free of contamination) is not affected and promote the conservation of nature (Article 19, No. 8). In other Constitutions of the decade of the 1980s, the state’s duty to protect the environment was provided in different manners (PNUMA, 2001). In the last three decades of the twentieth century in Latin America, States developed a legislative process to provide environmental law to their countries. This process resulted in the enactment of “general” laws or law “frameworks,” which influenced the development of

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environmental law by regulating and establishing many technical standards; some of these changes have been incorporated into criminal law (Leff, 2001). Below is Table 1 showing the general laws or framework environmental provisions in Latin America in chronological order:

Country

Year Title of the Law

Colombia

1974 National Code of Renewable Natural Resources and Environmental Protection

Venezuela

1976 Organic Law of the Environment

Ecuador

1976 Law on the Prevention and Control of Environmental Pollution

Brazil

1981 Law no. 6,938 available on National Environmental Policy; its purposes and mechanisms of formulation, implementation, and establishment of other provisions

Guatemala

1986 Law for the Protection and Improvement of the Environment

Mexico

1988 General Law of Ecological Equilibrium and Environmental Protection, which was preceded by two other laws (the Federal Law to Prevent and Control Environmental Contamination and the Federal Environmental Protection; 1971 and 1982, respectively)

Peru

1990 Code of Environment and Natural Resources

Bolivia

1992 General Environmental Law

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Honduras

1993 General Environmental Law

Chile

1994 Law no. 19,300: General Bases of the Environment

Costa Rica

1996 Organic Law of the Environment

Nicaragua

1996 General Law of Environment and Natural Resources

Cuba

1997 Law no. 81,1997: Environment (which was preceded by Law No. 33 on Environmental Protection and Rational Use of Natural Resources, 1981)

El Salvador

1998 Environmental Law

Panama

1998 General Law of the Environment

Dominican Republic

2000 Law no. 64-00: General Law on Environment and Natural Resources

Uruguay

2000 Law no. 17, 283: General Environmental Protection Act

The above laws were enacted during the period 1972-1992, nine of the seventeen countries developed comprehensive environmental laws from 1993 -2000 and were influenced by the Rio Conference in 1992 (Branez, 2000). In recent decades, international environmental law has played an important role in the development of national environmental law in many countries of the world. This has meant that 10

international law has driven the creation of national environmental laws. Unfortunately, the countries on this list have for many years participated in these scenarios secondarily; sometimes, agreed-upon international policies are not really a projection of a strong domestic policy that originates autonomously from national or regional interests. According to Mauri (2002) this point has never been explored enough, and it relates to the important problems of enforcement of environmental legislation, often called problems of “efficiency” and “effectiveness” (Mauri, 2002). According to PNUMA (2001) the factors that make inefficient environmental legislation are: 1) Lack of sustainable development in the legal system in general and especially in the economic legislation 2) Lack of appropriate application of laws, particularly those instruments of a preventive nature 3) Lack of consideration of the social and natural issues involved in environmental issues 4) Material and structural heterogeneity (this refers to the embedded differences /diversity and asymmetry in resources allocation). According to PNUMA (2001), other ways to categorize factors affecting environmental legislation are: 1) Insufficient social valuation or ignorance of environmental legislation by the citizens 2) The weaknesses in the institutions administrative and judiciary responsible for applying the environmental laws But as you will see from this paper the problem facing Latin-American countries is not coming up with new laws, but implementing those already in existence. b. History of the establishment of environmental law in Panama Before the 60s, environmental legislation in Panama is merely mentioned in Chapter 7 (Organic Regime) Articles 118-121 of the Constitution, which superficially refers to Environmental pollution and natural resources, and there is also vague references in the Health Code 1947 and the Land Code 1962 (Castro, 2006).

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In 1903, the year Panama was separated from Colombia; Panama signed a treaty with the United States of America called the Canal Treaty. While this treaty does not mention anywhere environmental, ecological or natural resources, the Canal Treaty of 1977, includes in the text one chapter (VI) on “Protection of the Natural Environment” (Canal Treaty 1977). However, this Chapter has three short articles covered with little detail to create a “Joint Commission,” where Panama-US would deal with everything related to the Panama Canal and its effects on the environment. In practice, this “Commission” never actually worked, even on the important issues of war materials contamination of some of the forested areas or pollution in the Canal Watershed by oil spills, and other contaminants caused by ships that used the Canal (Castro, 2003, Benavides, 2009, and Recio, 2010). The year 1966 saw the creation of Decree No. 35, which stated that water use is defined according to social interest ensuring the maximum public interest in the utilization, conservation, and management of the waters (Article 1-3 of the Decree No. 35). In the same year, Decree No. 39 was created to issue the forestry legislation in Panama, recognizing the link between forests and other renewable resources (Article 1 of Decree No. 35). The Decree is also important because it defined for the first time the need to establish a forest classification for: production, protection and special forest (Articles 6-9 of Decree No. 35). The Law 24 of 1992 “by which incentives are established and reforestation activity in the Republic of Panama is regulated”––replaced the previous forest Decree. A very important law was passed in 1994, Law No. 1 of 1994, this law establishing the forest legislation in the Republic of Panama and establishing other dispositions “Por La Cual Se Establece La Legislación Forestal En La República de Panamá y Se Dictan Otras Disposiciones.” This law created the National Institute of Renewable Natural Resources (INRENARE). Article 7 of this law also

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establishes the obligation of all private companies to submit an Environmental Impact Assessment when their work affects the environment. It provides as follows (with my translation of the Spanish, which in also included): La Ley No. 30 del 30 de diciembre de 1994 reforma el artículo 7 de la ley No. 1 de 3 de febrero de 1994. The law No. 30 of December 1994 amends article 7 of this law. Todo proyecto de obras o actividades humanas, financiado total o parcialmente con fondos públicos, privados o mixtos; o que debe ser autorizado por entidades públicas, deberá tener un estudio de Impacto Ambiental, cuando con dichas obras o actividades se afecte o pueda quedar deteriorado el medio ambiente, cuando con dichas con dichas obras o actividades se afecte o pueda quedar deteriorado el medio natural. All projects or human activities, financed completely or partially with public, private or mix funds, must submit and environmental impact assessment, when such activities could affect or detriment the environment or nature. Dicho documento será revisado y aprobado por el INRENARE, siempre que en el mismo, se hayan adoptado las medidas y previsiones para evitar, eliminar o reducir el deterioro del ambiente. The document will be revised and approved by the INRENARE, only when the environmental impact assessment had addressed and adopted preventative measures to eliminate or reduce adverse impacts in the environment. El incumplimiento de lo establecido en el estudio facultará al INRENARE para suspender dichas obras o actividades, sin perjuicio de la aplicación de las sanciones correspondientes. If the requirements are not fulfilled INRENARE could terminate such activities. Los inventarios y planes a que se refiere el párrafo anterior, deberán ser elaborados por profesionales idóneos en ciencias forestales (Artículo 7). The surveys and plans should be elaborated by suitable professionals in forestry sciences. Law No. 1 of 1994 Art. 7.

In July 1998, Law 41 (known as the “General Environmental Law”) was passed. It replaced the old INRENARE agency with the National Environmental Authority (ANAM). ANAM has the primary responsibility to ensure the implementation of the following laws: •

Law No. 1 of 3 February 1994 (Forest Act),

•

Act No. 24 of 23 November 1992 (Reforestation Incentives Act),

•

Act No. 24 of June 7, 1995 (Wildlife),

•

Resolution No. JD 022-92 of 2 September 1992 establishing the National System of Protected Areas, Resolution No. JD 09-94 of 28 June 1994 (which defined management categories, 17 in total),

•

Decree Law No. 35 of 22 September 1966 (on the use of water).

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The General Environmental Law also makes many more laws regulations and international agreements related to environmental issues and natural resources (Acuna, 1999). There are other laws concerning environmental issues that have been passed since 1998, one worth mentioning is the Law No. 44 of August 5, 2002, which establishes the special administrative regime for the management, protection and conservation of watersheds of the Republic of Panama. General Legislative Terms in Panama In Panama, a legal document may be called by different names depending on the place where it was promulgated. A “Law” is defined as compulsory permanent social norm, issued by the Legislature for better implementation or enforcement of legal norms of secondary character, and must be sanctioned by the President and published in the Official Gazette. “Decrees-Laws” are “binding legal rules established with permanent character on specific matters of law by the Executive body in exercise of a constitutional mandate” (Article 195 of the Panamanian Constitution as cited in the Environmental Laws Manual of Panama, 1999). c. Summary of the General Environmental Law 1998 The General Environmental Law consists of 131 articles addressing issues such as the following; the purpose of the law, the national environmental policy, the administrative organization of the state for environmental management, instruments for environmental management, protection of health from hazardous wastes and substances, natural resources, environmental responsibility, the investigation of environmental crime, the judiciary, and others (ASLAP, 1999). The following table is a summary of the different provisions and articles of the General Environmental Law. 14

Table 2: Summary of the General Law of the Environment in Panama Law 41

Number, denomination & structure of the titles

Title I: Ends, objectives and basic definitions.

Articles

1-2

Subject

It establishes the obligation of the State in relation to the administration of the environment, defines the objectives of the law, which can be summarized as:

Consists of 2 chapters

Title II: From the National 3 - 4 Environmental Policy. Consists of 2 chapters

•

To establish principles and basic norms to protect, conserve, and recover the environment, promoting the sustainable use of human resources.

•

To organize environmental management, and integrate social and economic objectives for achieving sustainable human development.

•

To define basic concepts for interpretation and application of the Panamanian environmental legislation, such as: quality of life, pollution, conservation, sustainable development, environmental impact assessment, and biological diversity.

●

Defines national environmental policy, principles and guidelines, and provides for their inclusion in public policies for economic and social development.

15

Title III: Administrative Organization of State for Environmental Management.

5 - 21

Refers to the basic state administrative organization for environmental management. ●

Creates the National Environmental Authority (ANAM), defines its nature and powers, and lists the requirements for Administrator and their functions.

●

Creates the National Environmental Council and establishes its functions and forms of integration.

●

Establishes and defines the Interagency Environmental System, SIA, integration, objectives and principles for operation.

●

Establishes that the ANAM creates and coordinates of the Network of Sector Environmental Units, defines the basics for integration as well as the Environmental Sector Environmental Units.

●

Creates the National Advisory Committee on Environment, CCNA; define their nature, objectives general aspects for integration and operation.

●

Create the Provincial, Regional and District Advisory Committees, defines its nature and objective.

●

Provides general aspects concerning integration and operation.

Consists of 5 chapters.

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Title IV: Instruments for Environmental Management. Consists of 9 chapters.

22 - 55

Sets the main instruments for environmental management, defines its objectives and establishes the basic mechanisms for implementation: ●

Regarding the Environmental Management Homeland, establishes the responsibility of ANAM to promote the establishment and the fundamental elements to be considered for this purpose.

●

The Process of Environmental Impact Assessment, provides the steps that comprise the general aspects of the content of the EIA and the basic rules for processing.

●

With regard to the process for the preparation of environmental quality standards, establishes the basic rules for the preparation of proposals for environmental quality standards, the basic principles for application (gradual, phased, self-regulation, voluntary compliance) certification process and environmentally clean products, and orders its regulation.

●

Regarding Supervisory Control and Environmental Control, provides the basics of these management tools, basic principles and tools for implementation.

●

The Environmental Information, establishes the National Environmental Information System, objectives and basic mechanisms for its implementation.

●

Environmental Education is another tool for environmental management established by law, and its implementation is established as a state duty. As basic aims and basic rules for its implementation. (Act 10 of 1992 - Transverse incorporation of Environmental Education).

●

Orders the State to promote programs for scientific and technological research applied to the environmental area, with the aim of which contribute in making decisions on national environmental management through contributions resulting from its implementation. Furthermore, encourage the ANAM to assist in the development and implementation of a Permanent Program for Scientific and Technological Research aimed at understanding the basics of environmental management and natural resources.

●

On the mechanisms of disaster prevention and environmental emergencies mandates the State and civil society together with the ANAM have the duty to ensure the existence of contingency plans and assist in its implementation.



Sets the state’s obligation to assess the economic, social and ecological, environmental and natural heritage of the nation and incorporate it into the National Account value. It also establishes the obligation to assess the relative cost/benefit to the environment of any activity, work or project involving full or partial use of natural resources of the State or to warrant an environmental impact.

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Title V: Health Protection 56 - 61. and Hazardous Wastes and Hazardous Substances Consists of 2 chapters.

●

Contains key provisions regarding the State’s responsibility to regulate, monitor, control, and regulate everything related to human health and waste management and hazardous substances.

●

Also maintains mechanisms to ensure compliance with the Basel Convention; the Regional Agreement on Transboundary Movement of Hazardous Wastes, the Montreal Protocol and any other treaty to which the Republic of Panama is a signatory.

Title VI: Natural Resources.

62 - 95

Consists of 10 chapters.

Title VII: Counties and Indigenous Peoples.

96 -105.

Establishes general provisions and basic principles on the management of natural resources, especially related to: ●

Protected Areas and Biological Diversity

●

Forest Heritage status

●

Land Use

●

Air Quality

●

Water Resources

●

Hydrobiological Resources

●

Energy Resources

●

Mineral Resources



Coastal marine resources and wetlands

Provides special rules for environmental and natural resource management in areas called districts or indigenous peoples territories (Comarcas), to ensure respect for their culture, their participation in decision-making and the benefits derived from the sustainable use of resources located on the territories in which it sits.

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Title VIII: Environmental Responsibility.

106 119.

Consists of 3 chapters.

Establishes the fundamental principles and rules on environmental liability. Defines the obligations of natural and legal persons regarding the prevention, mitigation and remediation of environmental damage and pollution control. Establishes strict liability and establishes the independence of the administrative, civil damages to the environment and criminal whatsoever arising from punishable or prosecutable facts. Collective and diffuse interests are recognized. Introduces the possibility of environmental liability insurance. Sets the normative basis for the imposition of penalties for violation of environmental regulations, and civil action.

Title IX: Ecological Research offense.

120 124.

Consists of 2 chapters.

Title X: the judiciary.

Contains basic provisions on competition and procedures to process preliminary investigation of environmental crime. Environmental Prosecutors (1 Superior and Circuit 5) are created, and the requirements for the posts of prosecutor in each instance.

125 126.

Environmental courts or courts (1 of 1 Civil and Criminal Circuit) are created, and the requirements for the position of judge in both cases.

Title XI: Transitional.

127 128.

It contains two transitional provisions: one concerning the functions of the Environmental Advisory Committees, and one that has the transfer of assets from INRENARE to ANAM.

Title XII: Final Provisions.

129 133.

Consists of 1 chapter.

Lays down additional rules and establishes the mandate of the Executive Law regulating organ in a term not exceeding 12 months from its promulgation.

Written in July 1998, the General Environmental Law creates the National Environmental Authority (ANAM), and provides that this agency is the leading independent entity for the State’s natural resources and the environment and to ensure compliance and enforcement of laws, 19

regulations and national environmental policy (Article 5). The General Environmental Law states that the national environmental policy is the set of measures; strategies and actions established by the state to determine the behavior of public and private sector economic agents and the general population (Article 3). The ANAM is the national coordinating body and environmental management authority for Panama, which very recently (February 2015) was upgraded to be the Ministry of the Environment through the Law Project 25 (Asamblea Nacional de Panamá, 2015). About 35 civil society groups participated in the formulation of Environmental Agenda 2014-2019 by proposing the creation of the Ministry of Environment as the main action to improve and recover the environmental institutions in the country (Asamblea Nacional de Panamá, 2015). The project was discussed throughout the Republic for four months to reach consensus (Asamblea Nacional de Panamá, 2015). This new law changes specific parts of the General Environmental Law, this step forward in Panamanian environmental legislation, may or may not change the effectiveness of the application of environmental law in Panama. Under the scope of the ANAM, the General Environmental Law requires that national environmental policy and the use of natural resources must be consistent with the development plans of the State. The ANAM directs, oversees and ensures the implementation of policies, strategies and environmental programs of the government. It prepares bills to be presented to the Legislature or to the Executive Body and likewise makes public consultations and drafts and decrees to be submitted to the Executive Body for signature and promulgation (Cohen, 2012). The General Environmental Law provides a technical and financial toolkit that should contribute to the implementation of environmental policy; including the process of preparing Environmental Impact Assessments (EIA). EIAs are designed to prevent, mitigate, remediate or 20

compensate for adverse effects that activities, works or projects can have on the environment. Articles 23 to 31 of the Law established the EIA process in Title IV, Chapter II, “Process of Environmental Impact Assessment” (Alvarez, 2000).

Citizen Participation in the General Environmental law

The degree of citizen participation in environmental management is determined by the opportunities granted to them by the State as well as the legal scope of such interventions (such as bringing a compliant about an environmental crime in their community). Here we must distinguish between political participation and participation in environmental administrative management. The first category includes all forms of direct participation of citizens in public affairs established in the Constitution, such as the popular initiative, referendum, plebiscite, and consultation forums that have been established in many countries in Latin America. The second covers the mechanisms that allow managed intervention in the administrative decision-making, according to the laws governing environmental matters such as mandatory consultation with affected communities, the establishment of advisory boards, citizen complaints, participation in the process of completing an EIA, and others (Rodriguez and Espinosa, 2002 and Leff, 2001). I will focus in the second form of participation. A form of participation that can be illustrated by the General Environment Law is the creation of advisory boards that integrate members of civil society. This is considered a permanent equity method that guarantees a certain continuity of social participation in environmental law enforcement.

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The General Environmental Law also includes among the instruments of environmental policy, the National Environmental Information System, providing that the National Environmental Authority periodically draws up reports on the state of the environment (Articles 45 and 46), but does not establish a right to environmental information. The Law also in its Title VIII, chapters II and III alludes at the right for any citizen to denounce an environmental crime.

d. Summary of Panamanian law on the use of the waters The legislation related to water in Panama is dispersed throughout different bodies of law, which together or individually do not reflect a full understanding of the limited, finite, and vulnerable aspects of the water resource. Many issues related to water are still not regulated because of the lack of reinforcement of the law. The most important instruments of law that regulate water are the General Environmental Law 41 of 1998 and the Decree-Law No. 35 of September 22, 1966 or Water Law. The importance of both laws is determined more through their holistic and integrated characters about nature and the natural resources than the profundity and density of their articles. The General Environmental Law 41 of 1998 reorganizes the objectives of environmental protection of Panama and contains a chapter dedicated to fresh water: “TITLE VI: NATURAL RESOURCES CHAPTER VI: WATER RESOURCES Article 80. Any one may carry out activities that vary the scheme, the nature or quality of waters or alters the channels, with the authorization of the National Environmental Authority, in accordance with the provisions of Article 23 of this Law. Article 81. Water is a public good in all states. Conservation and use is of social interest. Its uses are contingent on the availability of the resource and the real needs of their intended purpose. Article 82. Users who exploit water resources are required to perform the work necessary to preserve, in accordance with the Environmental Management Plan and the respective concession contract.

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Article 83. The National Environment Authority will create special programs for watershed management, which, by the level of deterioration or strategic conservation, decentralized management of water resources, by local authorities and users is justified. Article 84. The administration, use, maintenance and conservation of water resources in the watershed of the Panama Canal, the Panama Canal Authority in coordination with the National Environmental Authority, based on strategies, policies and programs related to sustainable management of natural resources in the basin” (The General Environmental Law 41, 1998). As noted earlier in this paper, Panama adopted a specific water Decree-law in 1966 that provides dispositions specifically to water management. Although modified by the General Environmental Law, some of the provisions are still in force.

The following table is a summary of the different provisions and articles of the Decree-Law no.35 of 1966 (this does not include any amendments to the original law). Table 3: Summary of the Decree-Law no. 35 of 1966: The water law in Panama

Titles

Objectives and Principles

Articles

1-3

Subject

·

The exploitation of the waters of the State shall be regulated for its utilization in accordance with the social interest. Therefore, the objective of the utilization, conservation and administration of the same is to achieve the maximum public well-being.

·

All waters are of public domain of the State (within Panama’s jurisdiction – including marine waters and atmospheric).

·

It includes waters utilized for domestic use, public health, agriculture, industries, and any other activity that uses water.

23

The Water Commission

4 -14

·

It creates the Water Commission under the Ministry of Agriculture, Trade and Industries, (now under ANAM) with the purpose of applying and developing dispositions established in this law decree.

·

The Commission will coordinate and oversee the activities of the various departments and state institutions directly or indirectly involved or may be involved in the use and diverse water use and shall, pursuant to this Decree. The Committee shall consist of 7 people, all engineers representing a specific ministry or department. Members of the Commission, with the exception of the Ministry of Agriculture, Trade and Industry and his Deputy, Principal and Alternates will be selected and appointed for a period of four (4) years by the Executive Organ.

· ·

Rules for the use of Water

15 – 31

·

The Executive Branch will include annually in the budget of the Ministry of Agriculture, Commerce and Industries the necessary basis for the functioning of the Commission.

·

The right to water can be given only through a permit.

·

The good use of water is one that benefit the licensee and it is rational and in accordance with the public and social interest. It includes the necessary use for animal life and recreational purposes. Any use that fall under the previous mentioned will be granted a permanent restrictive concession. If the systems used for the collection and use of water in the public domain are defective or irrational change causing damage of water supplies other users. The Commission shall instruct the user responsible for correcting deficiencies. If it does not execute the given order, within the period stated previously, the commission may declare temporary suspension of the right to water use or elimination of pollution sources. The provisional suspension shall become final if the user does not correct the deficiencies.

· ·

·

·

The Commission may request the competent court expropriation of any works or projects of private property related to the use of waters in the public interest defined by the law.

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Permits and concessions

32 - 43

·

The right to use water or wastewater discharge can be acquired: a) For permission b) For temporary concession; and c) Permanent concession. The rights granted for agricultural purposes will be closely linked to the title to the land without being able to transfer the one without the other. In these cases the concession is granted to the property and not the owner or user. Permission to use water or wastewater discharge is a revocable and valid authorization for not more brief period of one year and for the use of a given flow rate. It may be renewed in the discretion of the Commission. The Commission shall examine, as soon as possible, applications for permits or concessions to grant or deny them. Any person intending the beneficial use of water or wastewater discharge, request a permit or concession to the Commission and shall not commence the execution of works for use until issued the permit or concession. Any application for a permit or concession to use wastewater will be accepted, if the wastewater is treated and will not cause pollution to the environment.

· · ·

·

·

Easement of waters

44 - 52

For purposes of this Decree the use of water regards public health, which considered as preferential use or of greater benefit to the public and social interest.

·

The water easement is a tax lien on a property in favor of another property under different ownership.

·

The right to an easement extends the means to exercise, which includes the installation and maintenance of the system for the use of the waters. The right to the beneficial use of water from a source, through neighboring properties, implies the right of transit and all those essential rights to use, even though no express or previously established. The owner of a servant estate may not alter, diminish or make it uncomfortable for the dominant estate. Neither the servitude, nor the owner of a dominant estate may increase the lien created for the servant tenement.

· ·

·

The provisions of this Decree governing bonded water include easements established to output and direction to surplus or waste water and to drain swamps and natural seeps through the use of works or structures indicated to this end.

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Salubrity and Health of the waters

Infractions and Penalties/fines

53 - 55

56 and 57

·

·

When people of farms or villages, are provided for domestic consumption of water from a ditch, stream or river, it is forbidden to establish in the upper part launderers or run any operation that can alter the composition of water for good or for bad.

·

It is also prohibited to throw water currents commonly used, whether or not permanent, or sea, offal or industrial waste, dirt or other materials that may contaminate or make harmful to the health of humans, domestic animals or fish.

·

Awarded public action to enforce compliance with Articles 53 and 54 of this Decree and for the competent authority to impose penalties commensurate with the spirit of this Decree Law and the existing health regulations or establish

The Commission is empowered to impose a fine of twenty balboas (BI 20.00.) to two thousand balboas (BI 2,000.00.) In the following cases: 1. Any natural or legal person who, without obtaining the appropriate license or permit, use water resources to this Decree contracts. 2. The holder of a license or permit to use water as distinct from under that license or permit. 3. The holder of a license or permit in violation of such license or permit in a manner which, in the opinion of the Commission, not sufficiently serious for the declaration of forfeiture under the provisions of Articles 20 and 22. 4. The holder of a license or permit who violates the provisions of Articles 23, 24, 26, 48, 50 and 52.

·

The person fined by applying the previous article have the resources for reconsideration, appeal and avocamiento (the act of removing a lawsuit to a superior court) the terms provided in the law that regulates the governmental process and, additionally, of the administrative-resources that are coming. In the case of administrative appeal, the recount must make the deposit referred to in article 49 of Law 135 and 1935.

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General Dispositions 58 - 63

Final Dispositions

64 and 65

·

Ministry of Work will be responsible for anything related to health and hygiene of the waters, but its decisions must be notified to the commission.

·

The users of the affected areas will have preference on water use.

·

The Ministry of Agriculture, Trade and Industries will develop and contribute to the habilitation of land for agriculture where water is used adequately and rationally.

·

The Executive Organ will dictate the rules for each case.

This law follows specific articles from the Law no. 37 of 1962, and some from the Administrative Code.

The most prominent features of this decree law are that it describes in detail the responsibilities of the water user in relationship to the water resource. It is also worth noting that this law set the basis for the Water Commission. Some parts of the law have been derogated (partially eliminated) and edited in more detail. However, it is overall the water use law of the Republic of Panama. The General Environmental Law only creates the ANAM, which deals with the application of this law and others, but does not make any substantial changes on the provisions of the law from 1966.

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II. Application: looking at different cases studies: studying their resolutions –Cases from 1996-2008

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II. Application of Panamanian Environmental Law – Cases from 1996-2008 An exploration of cases where Panamanian environmental law has been applied may reveal the major trends in its implementation and its effectiveness. Any citizen can bring a complaint or accusation to the ANAM (Brañes, 2000). This complaint can also be brought to any local attorney (public attorney), the national police, or to the representatives of the towns. To organize and process complaints, the ANAM created a Citizen Accusation Unit. Each case uses the General Environmental Law as the base. The cases presented here have been categorized according to major topics discussed in their resolution: parks and wildlife refuges, freshwater, oceans/sea shores, pollution, and EIA (Environmental Impact Assessment). This is not a comprehensive survey of all the environmental cases applying Panamanian Environmental Law. Because of the resources available to me, I have mostly included cases that ruled in favor of the environmental plaintiff

A. Parks and wildlife refuges a) May 30th, 1996 – Dispute over a Wildlife refuge in Chiriquí Constitutional complaint formulated by Morgan and Morgan against the JD- 016-94 Resolution issued by the board of National Institute of Renewable Natural Resources (INRENARE— the old ANAM). Magistrate: Eligio A. Salas. a. Claimant: Morgan and Morgan b. Respondent: INRENARE c. Facts: INRENARE set aside land to create a wildlife refuge in Chiriquí. Morgan & Morgan brought the case in representation of themselves and other affected parties. Morgan & Morgan alleged that the resolution (a document stating the outcome of an environmental settlement under the INRENARE) was made without consulting or communicating with the owner of

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the farm, that the operations made by INRENARE negatively affected the agricultural productivity of Alanje, and that INRENARE has thus interfered with their rights of ownership.

In May 30th, 1996, the Plenum of the Supreme Court noted that resolution made by INRENARE (today ANAM) was constitutional; wherein the refuge of wildlife of the beach called La Barqueta Agricola in the province of Chiriquí was established. Among the most important aspects of the case are: 1) The court noted that there are justified motivations that led to the resolution and its implications for the use of private land. The resolution obeys the constitutional duty of the State to ensure the preservation, renovation, and permanence of wildlife and flora within the national territory, for which the competent institution is required to take the necessary measures in due time. 2) Morgan & Morgan declare that it recognizes the regime of private property and possession of land nearby by Beach Agricultural Barqueta. 3) INRENARE declared the beach and other surrounding areas as a wildlife refuge because it is both a seabird nesting area and part of a migration route. 4) INRENARE also emphasized that this area is important for nesting sea turtles. In view of this fact and circumstances that white or green turtles are a species in danger of extinction, the court held that it was valid to execute a project in that area for the protection and conservation of turtles, which was entrusted to the Municipality of Alanje and some NGOs under the guidance and supervision of INRENARE.

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b) February 9, 2006 – On Construction of the Boquete-Cerro Punta Eco-trail a. Claimant: Magister Giovanni Olmos b. Respondent: Ministry of Public Works (MPW) c. Facts: Between 2002 and 2003, the Ministry of Public Works (MPW) approved the construction of an eco-trail in the Volcan Baru National Park (part of the Friendship National Park between Costa Rica and Panama). This trail would have a highway going from Boquete to Cerro Punta. The contractual resolutions were issued regardless of environmental impact studies for the eco-trail Boquete-Cerro Punta. The Magister Giovanni Olmos, in his capacity as Attorney Fifth Circuit First Judicial Circuit, challenged the MPW cabinet Resolutions No. 123 of December 4, 2002 and No. 10 January 29, 2003 – on the basis of Article 5 of the Decree Nº 40 de 1976 (which creates the national park and prohibits explorations and constructions within the park). The contract concluded between the MPW and Constructora Urbana, SA for the design, financing, environmental impact study and construction of the Boquete-Cerro Punta Eco-trail in 2003. The court ruled in 2006 against the construction of the eco-trail. The Judge Winston Spadafora declared that Cabinet resolutions No. 123 of December 4, 2002 and No. 10 of 29 January 2003 were illegal, including the Administrative Agreement between the Ministry of Public Works and Urban Construction Company SA, Financing Design, Environmental Impact and Ecological Construction of Boquete Camino Cerro Punta. In this judgment, the Board of the Supreme Court of Justice stressed the importance of the Baru National Park and its natural and biological wealth. The Board also noted that UNESCO (United Nations Educational, Scientific and Cultural Organization) declared areas of the park as State Forest Heritage, part of La Amistad Panama, and a biosphere reserve. Panama has ratified two conventions

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with a priority to protect the park: the Convention on Biological Diversity and the Convention for the Conservation of Biodiversity and Protection of Wild Areas in Latin America. The Board of the Supreme Court of Justice stated that the project aimed to enhance economic development in the highlands of Chiriquí and the tourist nature of Boquete, without preserving the ecological wealth of the park. It was noted that the administration of the Park did not have any urgency to build a road that crossed the Volcan Baru National Park The court held that this case violated several laws including: 

Article 5 of Decree No. 40 of 1976, the occupation, exploitation, grazing and slash and burn in the area is prohibited because it was destined for park referred to this Executive Order.



Board Resolution 021-88 INRENARE “Whereby the La Amistad International Park is set in the provinces of Bocas del Toro and Chiriqui,” article 4 protects the integrated parks of this international park the Volcan Baru National Park, any construction of high magnitude is not permissible in this area without infringing the provisions prohibiting logging and any activity that results in the destruction of renewable natural resources of the park.



Article 1 of the General Environmental Law, which establishes the obligation of the government to protect, conserve, and restore the environment.



Article 23 of the General Environmental Law, which states, “The works and projects that can generate environmental risk require an environmental impact assessment.”



And there was no EIA (environmental impact assessment study of the project and it was not proposed to the ANAM.

c) November 27, 2008 – On Tourism Project in Bastimentos, Bocas del Toro, affects a National Park. a.

Claimant: Environmental Advocacy Center (CIAM) on behalf of Rutile Milton and Delfino Hooker 32

b.

Respondent: ANAM

c.

Facts: In the 2008, ANAM approved a tourism project in Bocas del Toro, this project had an Environmental Impact Assessment (EIA), however, the importance of buffer zones were not included into the EIA, this was the basis for the Judge to reconsider the legality of this project.

The National Environmental Authority (ANAM) approved the Environmental Impact Assessment (EIA) of the Red Frog Beach Club project (a number of beach hotels besides a National park – the areas beside a national park are considered really important buffer zones, any construction besides them impact the biodiversity conservation efforts of the parks) considering not only the interests of the community, but also that the broad aspects of ecological impacts would affect the residential and tourist site in the short, medium and long term. The three judges of the Third Chamber of the Supreme Court Justice Winston Spadafora, Adan Arnulfo Arjona and Victor Benavides presented to outlaw Resolution No. 218-2007 1A-Anam, by which the Environmental Impact Assessment (EIA) for the second phase of the Red Frog Beach project in Bastimentos Islands province of Bocas del Toro was approved. The judgment was made due to an application for annulment presented by the Environmental Advocacy Center (CIAM) in November 2007 on behalf of Rutile Milton and Delfino Hooker, neighbors of the park. The demand suggests that ANAM violated national and international legislations that protect the environment against the violation of national and international laws. 1) Judge Winston Spadafora, the Third Chamber, declared the Resolution No. 218-2007 illegal. The resolution was issued by the General Manager of the ANAM through which “the Environmental

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Impact Study Category III” is hereby adopted for the execution of a project called Red Frog Beach Club Phase in Bastimentos, Bocas del Toro. 2) The Board considered that the buffer zone of Isla Bastimentos National Marine Park is a barrier to external influences that can endanger the environmental richness object of protection and limits. This area should be sufficiently broad and absorbent to protect the habitat of the park from pollution of air, soil, water, fire, and poaching and uncontrolled tourism. 3) The Board also noted that the use of such areas for tourism projects of significant environmental impact (direct, indirect and synergistic) affecting qualitatively and quantitatively the average space adjacent to the Marine National Park Isla Bastimentos, undermine the importance of areas adjacent to a marine national park system which are incorporated into the protected areas of Panama. 4) The Resolution No. 218-2007, issued by the General Manager of the ANAM, was declared illegal for violating the following legal rules, namely: •

The art 22, 75 and 95 of the General Environmental Law.”

•

The art. 1 and 4 of Act 24 of 1995 “On Wildlife in the Republic of Panama,”

•

Articles 22 (literal e.2, e.4y e.5), 25 (literal and g), 41 and 52 of Executive Decree No 59 of 16 March 2000 (which regulated until September 2006, Chapter II of title IV of the Law 41 of 1998, “General Environmental Law.”

•

The articles 7, 10 and 12 of Law 13 of 1986, “approving the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean”

•

Articles 6, 8 and 10 of Act 2 of 1995, “That Adopts the Convention on Biological Diversity”

•

Articles 10, 11, 15 and 18 of Law 9 of 1995, “That proves the Convention for the Conservation of biodiversity and Protection of Priority Areas in Central America.” article 4 of Act 10 of 1995, which approves the United Nations Framework for Climate Change (UNFCCC).

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B. Fresh water a) Judgment of 14 May 2004 – Pollution of the source of water for the streams that go to the Villa River a.

Claimant: Varela Hermanos, SA

b.

Respondent: ANAM

c.

Facts: The 7 of August of 2000, the Quebrada de Pese and the Villa River were polluted; the source was found to be Varela Hermanos Company (alcohol producer).

The Third Chamber of the Supreme Administrative Court confirmed Resolution No. AG0206-2000 of August 7, 2000, issued by the General Manager of the National Environmental Authority (ANAM), which imposed a fine for the sum of fifty thousand balboas (B / 50,000.00) on the company Varela Hermanos, SA. The fine was issued because of evidence that the company had polluted water sources in the Quebrada de Pesé and the Rio La Villa, located in the Township and Pesé District, Province of Herrera. The Chamber found that the company was negligent because they had knowledge about the limitations of storage capacity of their oxidation tubs. The court held that Article 108 of the General Environmental Law requires the agent of environmental damage or human health arising out of use of a resource or the exercise of an activity to compensate for damage. Thus forcing the responsible party not only to repair the damage, but also to take preventive steps towards mitigating the harmful effects measures and assuming its incurred costs.

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b) June 24, 2001. Blue Ribbon Products, Inc. Pollution in the Caño River. a.

Claimant: ANAM

b. c.

Respondent: Blue Ribbon Products, SA Facts: In 2001, heavy rains in the region of Western Panama caused the retaining walls of the oxidation tubs of the pigsty owned by Blue Ribbon Products, SA to break. Located in the township of Arosemena, District of Chorrera, within the watershed of the Panama Canal, ceded by the lack of a pump to draw water spilling its contents into the Rio Canoa Quebrada, the natural source of drinking water for the residents of the community of Cerro Cama aqueducts processed by a filter located on its banks.

The waste dumped in the river by the pigsty caused the death of large numbers of aquatic species, ill health of the people who consumed contaminated water, and shortages of drinking water for more than 10 days in the community of Cerro Cama. The inaccessibility of drinking water generated many inconveniences and shortcomings, as residents had to move from the center of the District of Chorrera. The contamination of the Rio Canoa Quebrada produced serious damage to the community. The filtration of the aqueduct was valued at approximately fifty thousand US dollars. The company confirmed that the excessive rains caused damage to one of the dike in the pigsty, and therefore assumed the costs of adapting the rural water supply, which included changing the sand used in the filter and the chlorinating the concrete bowl. The Regional Administration of ANAM West Panama fined the company for twelve thousand balboas (B /. 12,000.00), same in US dollars, for damages resulting from this incident, demanding that the development of an Environmental Management Plan to mitigate the effects that this activity

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could cause to the environment, and granted within 30 days for the submission of an environmental audit. The Regional Administrator of ANAM in Panama West justified the penalty amount based on the following damages: • Pollution of the Canoa River • Deforestation of one hectare of secondary forest • Contamination of Water used in household (in toxic state) In this case, the company Blue Ribbon paid the amount of the fine but appealed the decision of the Regional Administration of the ANAM to the National Court of Justice. However, the court decided to maintain the sanctions because the company’s lawyers did not provide specific arguments to show that the company deserved reduction or elimination of the fine. Following this incident, members of the community of Cerro Cama were afraid to use river water from Canoa Stream. For this reason, they have built thirty-two wells curbs to meet part of the needs of the community. Currently, members of this community are very concerned that the company continues to build galleys for rearing pigs, without providing explanations to the people on the procedures used for the treatment of waste generated by the pig farming.

C. Ocean/seashores a) April 27, 1986 – Panama by oil spills in Mine Bay (Bahia las Minas) a.

Claimant: National Port Authority

b.

Respondent: Oil Refinery Panama

c.

Facts: On April 27, 1986 storage tank of Oil Refinery Panama, located in the province of Colon, bordering Mine Bay, broke and spilled 38.3 million of liters of oil 37

into its waters. The consequences were devastating to mangroves, grass, marine life and the quality of life of the inhabitants of this part of the Atlantic sector. This incident was well known for being the largest spill occurred in the tropics. After this event, Oil Refinery Panama returned to be involved in another accidental oil pollution when the June 29, 1995, due to the heavy rains that fell in the sector, three wells that stored water and oil overflowed, causing again pollution in Mine Bay, which produced a slick of fourteen kilometers of oil. For the first incident the company cleaned and dredged contaminated material from the affected areas, but the only measures taken against the company for the latest incident was a fine of two hundred thousand balboas (B / 200,000.00) by the National Port Authority (APN currently AMP).

D. Pollution a) March 31, 2000 – Nitric Acid Spill a.

Claimant: Regional Administration ANAM in Colon

b.

Respondent: Marine & Ocean Products Co., S.A.

c.

Facts: In 1999, the Panama Marine & Ocean Products Co., S.A. Company spilled 30 gallons of nitric acid in the dock of Panama Ports Company. The incident caused damage to the environment and human health because fourteen people inhaled fumes from the acid referral.

The Chamber confirmed 014-2000 Resolution of March 31, 2000, issued by the Regional Administration ANAM in Colon, which sanctioned the applicant company to pay a fine of ten thousand balboas (B / 10,000.00) because of the spilled 30 gallons that contained nitric acid in concentrations of 68 percent, on December 11, 1999, in one of the platforms of the Panama Ports

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Company. This fine was based among other legal basis in Article 53 of the General Environmental Law (1998). The Third Chamber of the Supreme Court considered that the staff of the company had badly handled shipment of fifty-eight containers of the nitric acid in the spring near the Panama Ports Company. Thirteen of the containers suffered puncture causing the discharge of the substance. The company did not take the appropriate contingency measures, which could cause damage to the environment or ecosystems, as refer in Article 2 of the General Environmental Law the “environmental risk.” The court also found that the company violated the law regarding prevention and safety concerning the protection and conservation of the environment and human health, specifically, Article 108 of the General Environmental law (1998).

b) March 2006, Case of Coca Cola Bottling Company of Panama, SA -Toxic Spill in the Bay of Panama a.

Claimant: ANAM

b.

Respondent: Coca Cola Bottling Company of Panama, SA

Facts: In 2003, the Coca Cola Bottling Company of Panama, SA discharged 1252 gallons of dye, which was used to prepare Delli-Tutti drink, near a ravine. This dye reached the river Vista Matasnillo through the ravine Vista Hermosa and ended in the Bay of Panama, causing discoloration, which greatly alarmed the Panamanian population. ANAM sanctioned the COCA COLA Bottling Company of Panama, S.A. for the spill and fined them. The Third Chamber approved the resolution issued by ANAM (Resolution NO. AG-01742003 of May 7, 2003), and fined the COCA COLA Bottling Company of Panama, S.A. three

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hundred thousand balboas (B / 300,000.00) for failure or violation of Articles 106, 107, 108 and 109 of Law No. 41 of 1998. It also ordered the Company Coca Cola Bottling Company of Panama to initiate cleanup and mitigation measures and compensation of environmental damage. As prevention and control for the conduct of its activities, the company was ordered to proceed as follows: Make an Environmental Audit, develop a Program for Environmental Management, and focus on an Accident Prevention Plan and Contingency Plan which shall be subject to the approval of ANAM no later than sixty (60) days.

E. Environmental Impact Assessment (EIA) a) February 1, 2000 – On the project called “Hidroelectrica Tabasará II” a. Claimant: N/A (information not found) b. Respondent: Tabasara Hydroelectric Project c. Facts: ANAM approved the Tabasara Hydorelectric Project II, which affected to flood 10 hectares of indigenous territory.

The Tabasara Hydroelectric Project is located in the district of Tolé province of Chiriquí, using the waters of the river Tabasará with effect in the district of Muna and the regions of Kädriri, and Ngobe-Bugle, flooding about 10 hectares of indigenous territory. The catchment area is home to indigenous and peasant communities, as was confirmed by the report of the verification mission. The National Court of Justice Board provisionally suspended the effects of Resolution No. 1A-0480-2000 of February 1, 2000, issued by the ANAM in order to prevent the regulation authorizing the Concession and stripping work that would force indigenous people to migrate and flood their lands, without their prior informed consent. 40

The Board’s ruling was also informed that the proposed Hydroelectric Project would cause noticeable and significant changes in the ecosystem within the provinces of Chiriquí and Veraguas well as farms located in the indigenous Ngobe-Bugle Comarca. The National Court of Justice board made the following arguments: 1. The flooding of 514.2 hectares will cause a series of ecological alterations such as changes in the river, changes in topography, major changes in wildlife habitat in the affected areas (animal species likely will be affected and die with the flood and dam building), loss of biodiversity, water pollution, erosion and sedimentation. 2. Intense and significant population displacement of indigenous communities living in the areas under the project, which will mean a big change in their lifestyles and means of subsistence food (habits, customs and traditions). 3. The creation of the reservoir will result in the loss of important archaeological sites (indigenous cemeteries and petroglyphs) in the area of Tabasará as a result of flooding and would involve reducing future opportunities to conduct scientific studies on archaeological resources in such sites. The Order of the ANAM did not take into account some of the requirements and provisions enshrined in the General Environmental Law. Those provisions specifically related to participation and acquiescence must be obtained from indigenous communities in cases where projects are developed in areas occupied by these ethnic groups and involving significant population displacement because of the impacts of the construction of the dam. And the EIA for the construction of the Tabasará II project was deficient because it did not contemplate the seismic zone information for the construction of the dam and its hinterland. The court held that the protection of the environment, respect for cultural and ethnic tradition of national indigenous communities, and the preservation of sites and artifacts that are

41

testimony to the Panamanian past are valued higher than a development project such as the hydroelectric Tabasará. This order was subsequently challenged and a request to lift the provisional suspension ordered on 6 December 2000 was filed by the Hydroelectric Tabasará Consortium. The Third Chamber of the Supreme Court refused to lift the provisional suspension of Resolution I A-048-2000 of February 1, 2000, issued by the ANAM. The Board refused to lift the injunction. The Supreme Court of Justice listed a series of injuries that, in its opinion, were not assessed in the EIA, namely: Impacts due to construction of the dam and reservoir: a. Changes upstream in the valley to the reservoir. b. Changes in the morphology of the riverbed, banks, delta and estuary. c. Changes in water quality, such as temperature, nutrient loading, turbidity, concentration of heavy metals, among others. d. Reduction of biodiversity and species distribution. Changes due to the operation of the dam to: a. Changes in downstream hydrology b. Changes in seasonal river flow c. Changes in water quality d. Changes in river morphology alterations on the runway. e. Reduction of Biodiversity, especially sludge disposal. (Resolution I A-048-2000 of February 1, 2000).

Synthesis What are the central lessons to be learned from all of these cases? •

The nature of the investigations or issues pursued by the ANAM, Public Ministry or the civil court direct their success or failure when it comes to applying the specific environmental provisions. In each of this dispute settlement spaces, the involved political authorities are obligated to apply the corresponding laws when necessary. In the last few years, cases have been brought to the National Court of Justice (which is one of the last spaces to resolve environmental disputes). 42

•

Nature of the laws themselves (the depth not the breath of the law), even though the laws aren’t as extensive as in other countries, the specific articles that describe what constitute an environmental crime in the General Environmental Law (1998) and the Penal Code (20072010) express the importance and relevancy of the conservation of our natural resources.

•

The immediacy of the evidence; most cases here presented contained physical and written evidence that allowed the court to rule in favor of the environment.

Most of the cases reviewed here are cases where a resolution made by ANAM was challenged either because it did not go in accordance to the General Environmental Law or because companies alleged the rulings were unconstitutional. It is apparent that most of the cases presented here were brought by members of the different national authorities and not by members of civil society, even though it is possible for people to bring a case to the ANAM. Some of these cases even though divided into different topics seem to deal with issues related to the lack of preventative measures to avoid polluting bays, or rivers (e.g. the Coca Cola case (2006), the Pollution of the Villa River (2004), Oil spill in Mine Bay (1986)). In other cases the Environmental Impact Assessments (EIA) were null or defective, which allowed the courts for clear rulings in favor of the environment (e.g. Boquete-Cerro Punta Eco-trail (1996), Tourism Project in Bastimentos (2008), and the Tabasara II Hydroelectric Project (2000)). The General Environmental Law has very clear provisions on the EIAs and any violations to these provisions may impair the construction or development of any economic inclined project, if they are at the expense of both human well-being and the environment.

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II. The Pollution Case of the Villa River: What things can we learn about environmental law in Panama from water pollution of the Villa River?

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Location and importance of the Villa River The Villa River flows through the most populous and economically important part of the Azuero Peninsula, in the south-central region of Panama. Its main population centers are Chitre (capital of the Province of Herrera), La Villa de Los Santos (Provincia de Los Santos) and San Juan Bautista (Provincia de Herrera). This river is of great importance for the region of Azuero because it provides drinking water to the population within and near its watershed, whose activities contribute generally to the development of the country (ANAM, 2009). The Villa River provides water to a population of 92,925 people. This watershed is one of the largest national priorities and ANAM is responsible for mitigating environmental degradation in the region.

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A. Background information about the Villa River: hydrology, past issues 1. Environmental Issues of the study area According to studies developed by ANAM in 2008, the main environmental problems of the region include: poor water quality and quantity, air pollution, loss of vegetation, and loss of biodiversity (ANAM, 2009). The water problems of the Azuero Region are exacerbated by the lack of a collective awareness of the impacts that mismanagement of activities can have on water, which then affects the population and soil erosion and increases sedimentation in the Villa River and its tributaries. The threat to water availability for human use is a huge issue in the region, made more pressing because of the difficulty finding the sources of the pollution. The river flow undergoes considerable variation with the changes of the seasons. This limited availability of water for human consumption is caused by alteration in river flows and increased demand. The poor water quality (an assessment level of “bad”) is caused by human actions such as: landfills (without handling leachate) and other activities such as livestock, soil erosion, and overuse of agrochemicals and industrial activities that do not meet established standards (Information obtained at the regional office of ANAM in Herrera, January, 2015). The latent threat of poor air quality is affected by similar sources like in the case of water: a) The poor management of wastes that cause odors, as the garbage is dumped in the open and sometimes burned on the landfill. b) The overuse of agrochemicals – this activity takes place throughout the basin and even some producers have replaced the traditional slash and burn by the use of chemicals. There is a little industry located within the watershed; however, many of the existing non-compliant discharges, and in the case of pigs, these mostly include sedimentation basins. These tubs are not properly managed and discharges cause odors and pollute the water. The

46

ANAM, which is in charge of monitoring, does not have enough human resources to be accomplishing the necessary monitoring. (ANAM, 2008). Loss of vegetation cover is another problem that arises in the basin, as most of the land has been deforested for agricultural activities. This activity was conducted without planning (taking into consideration the geochemistry of the upper, middle, and lower parts of the watershed) and this has contributed to the problem. On the other hand, there has been intensive land use even in those areas designated to maintain protection. Especially in the middle and lower parts of the watershed the people have not respected the forest that protects the riverbanks as buffer zones. Moreover, the loss of vegetation cover occurs due to unplanned production activities that are not suitable for the terrain. The loss of biodiversity is closely related to the loss of vegetation and low productivity of the land. Biodiversity loss is associated with the excessive use of agrochemicals and the destruction of habitat through deforestation. (ANAM, 2008). 2. Hydrology of La Villa River

The watershed of the La Villa River is a predominantly hilly area, but its slopes are not very high except the mountains of El Montuoso, for which its geomorphological and geological characteristics indicate that the basin has a defined pattern of a surface run parallel and rectangular type. In addition, the riverbeds are carved on consolidated rocks, which can increase the speed of peak flows. The distribution of precipitation is 91% between the months of May to November, with the remaining 9% between the months of December to April. (ANAM, 2008). The lower basin has an annual average of 1,350 mm of precipitation; the middle basin an average annual rainfall of 1,760

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mm. The upper basin an average rainfall of 2,325 mm. Therefore the average annual rainfall is 1,785 mm (ANAM, 2008). If we consider that there is an evapotranspiration of 1,000 to 1,200 mm in the basin, it could be said that there are limitations in some areas of the basin due to less chance of runoff and water storage (including a limited ecological flow) and that there are other areas where the high rainfall allows a potential climate favorable balance for water harvesting, water catchment or aquifer recharge. According to the Plan del Ordenamiento Territorial (2008), a study done by the ANAM in an attempt to understand the issues and uses within the watershed (a land reorganization plan), the measured average flow rates range from 17.80 m3/s to 29.20 m3/s which indicate good water availability, however, when the water balance is recoded in by smaller units – basins, microwatersheds and streams there are important limitations. In six sampling stations on the Villa River, established by the National Environmental Authority (ANAM) between 2004 and 2005, it was reported that the top of the river was only slightly polluted, while sites evaluated in the middle and lower sections have contaminated water. (ANAM, 2008). So these lower sections are not suitable sites for human consumption or for recreational use. Industrial and agricultural use is restricted in those sections, according to the categories set out in the Water Quality Index. (ANAM, 2008).

3. Social Issues This summary is a simplification of what constitutes the social issues of the region, but it is important to at least mention them in this essay even though they are not going to be explored thoroughly. Environmental problems are closely related to social issues and this will come to light once we have laid down the background of the pollution event in La Villa River in 2014.

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The major social problem in the region is poverty. In the Villa River watershed jobs are scarce and are concentrated in the lower middle part of technical expertise, the education system is traditional (memorizing text directly from textbooks), and students are not prepared for university level education. Although students graduate from high school, practical skills are limited, and it is not easy for them to find jobs or undertake other activities. People’s educational levels are low; many of the corregimientos (towns) having up to 30% illiteracy rates. (Information obtained at the regional office of ANAM in Herrera, January, 2015).

Land tenure is another factor contributing to the level of poverty in the region, given that much of the basin is in the status of “possessory right”, which limits access to credit. Possessory rights are defined as the material rights a person can hold on a rural portion of state-owned land. These privileges confer ownership land use rights to those persons to whom the relevant government authority has recognized the physical occupation, maintenance and use of the land for a certain period time. It should be noted that the possessory rights recognized gives no title to its owner but only the right to occupy the land; however, it allows the holder of such rights to begin a process of qualification to register their property in the Public Registry. (ANAM, 2008).

The proposed General Indicative Land Use Plan for Panama indicates that the causes of the deterioration of surface water is “lack of planning and integrated management and/or optimization programs of water resources, which makes the country lack water jobs with a magnitude to mitigate the acute problems of storage and distribution in critical areas such as Arco Seco (Azuero). The proposed plan also talks about how seasonal droughts, make water supply increasingly difficult in the cities of the provinces of Cocle, Herrera and Los Santos.” Droughts in the region affect the

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country and impact the production of food, and quality of life of the population, especially those who live in Azuero. (ANAM, 2008). 4. Existing water management plans and laws Most of the following water management plans are or were not followed by the regional or local authorizes, but were created to deal with specific problems of areas such as la Villa River. The Decree No. 35 (1966) is relevant to the Villa River management, because it sets out the different permits required to use and enjoy the water resources of the country. The General Environmental Law, formally introduced the concept of environmental management of the national territory, defining it as: The process of planning, evaluation and control program aimed to identifying any human activities compatible with the use and management of natural resources in the territory national, respecting the carrying capacity of the natural environment, to preserve and restore the ecological balance and protect the environment and to ensure the welfare of the population (Article 2 of the General Environmental Law – basic definitions). Additionally, the General Environmental Law provides that the environmental management of the country will run progressively by the competent authorities, to promote actions to improve the quality of life (Article 22). Article 22 of the General Environmental Law is implemented through Executive Decree No. 283 of November 21, 2006 “Whereby Article 22 of Chapter, Title IV of Law 41 July 1998,” which regulates and provides definitions related to skills, effective systems plans, and guidelines governing each management plan. The environmental planning is an ongoing and continuous process to be carried out following a progressive work program and has three main objectives: to prevent, repair and protect the environment as a means of ensuring the welfare of the population, which is closely linked to the mandate on Ecological System of the Constitution, and to maintain for the public a healthy environment to secure their general welfare.

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Another important instrument is Law No. 44 of August 5, 2002, establishing the special administrative regime for the management, protection and conservation of watersheds of the Republic of Panama. This law assigned ANAM the responsibility for setting watershed level criteria and indicators for the elaboration of the Territorial Planning and Environmental Management Plan, Development, Protection and Conservation watershed (Article 4). In this sense, land use is an instrument of essential importance for the integrated management of natural resources as needed to promote “sustainable development.” In addition to the National Environmental Strategy (1999), which highlights environmental protection in priority areas including the Villa River basin, the Diagnosis Critical Areas Affected by Severe Drought and Desertification in Panama (2004) recognizes that in the basins of Arco Seco or Azuero present a severe reduction in the productivity of soil and water resources. (ANAM, 2008). The same was reported on the decline in agricultural yields, soil degradation, reduction of surface and groundwater, and in general loss of biodiversity. Likewise, the First National Communication on Climate Change (2000) for the Arco Seco, indicates yields lower than the models scenarios on which they based their expectations. Likewise, the Policy Guidelines of the National Environmental Authority 2004-2009 stress the need to promote environmental zoning of the country as an immediate action for integrated water resources management among others. (ANAM, 2008).

C. Atrazine Pollution of La Villa River In this section I am going to present more or less chronologically what happened in the region of Azuero on the Villa River. After presenting the background information for the case I will give a brief background on atrazine. The river was contaminated with the discharge of atrazine and a liquid by-product of the process of distillation of cane juice called vinasse. The water supply was suspended during the months of June to August last year, about 80,000 people were affected.

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La Villa River was contaminated with atrazine in the months of June and September 2014. In June 20th, 2014, an anonymous report was made to the National Authority of the Environment, claiming that the Villa River was contaminated with a pesticide. The official investigation started June 21st and found atrazine in the Villa River at concentrations of 40 ppb and 500ppb (Barahona, 2014). On Saturday June 21st, the Azuero people awoke to find that their water service had been cut off. While the appearance of dead fish in the river concerned the authorities, no one knew what was happening. An investigation led by the Public Ministry (MP) was initiated. On Sunday June 22 samples were sent to the Panamanian Laboratory of Toxicology. On Wednesday June 25th, it was announced that the color of the river was due to contamination by vinasse, a product arising from the fermentation of ethanol. The responsible company, Campos de Pesé, is the only one to produce this biofuel in the country and is based in Azuero. The situation was tense; people began to buy bottled water in shops, which led to bottles in the streets as there is close to no recycling in the region. On June 29th, the levels of atrazine were 16 to 20 ppb. (Barahona, 2014). The reported coloration in the river was due to a contamination with vinasse but once the water was analyzed they found atrazine. On Monday June 30th, ten days after the complaint was placed, the Ministry of Health (MoH) confirmed the presence of atrazine in the river. The public was requested to cease tap water consumption. This news sparked the water crisis of the region; newspapers said that roughly about 85,000 people were affected (Red Cross, 2014). In July, the concentrations were still above the recommended concentrations (3 ppb). People were without water for a month, schools were closed,

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and hospitals worked with water provided by the state. On July 2nd, atrazine levels were in a range between 13 and 28 ppb. By July 4th, atrazine levels in the water were decreasing but not enough to be consumed by people. (Barahona, 2014).

Reports from the National Civil Protection System (SINAPROC) stated that the districts affected in Herrera Chitré were La Arena, Monagrillo, Llano Bonito and San Juan Bautista. And in Los Santos were Guararé header, El Espavé, La Enea, La Villa header, Los Olivos, Llano Largo, Santa Ana, Las Tablas and El Cocal (see map on page 47). The Villa River watershed provides water to towns outside the watershed limits in both provinces.

In mid-July and August, the Ministry of Health confirmed that atrazine was no longer in the water and that people could start drinking the water coming from the tap—people did not believe that, but had no other choice but to consume it. In September, another incident was reported and atrazine levels had reached the 13ppb, when the permissible level was 3ppb. The Health Minister announced that the 14 districts located in the provinces of Herrera and Los Santos should not consume water from the water treatment plants, this was suggested as a preventative measure until the levels of atrazine were lower (Ministry of Health, 2014).

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54

Map showing the water treatment plants were water was sampled to monitor changes in atrazine levels in June and September.

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D. June-September 2014 – Campos de Pese, contamination of the Villa River Case

1. Brief Background on Atrazine Atrazine is a Restricted Use Pesticide (RUP) and can only be applied by registered professionals, as it is not available to the general public in the United States (under FIFRA – Federal Insecticide, Fungicide, and Rodenticide Act 1910). Atrazine is a general use herbicide and is used commonly on corn crops, sugarcane crops, roadway grasses, golf course turfs, and residential lawns. Atrazine does not biomagnify, meaning that it does not move up the food chain. (EPA, 2007 and WHO, 2011). The primary impact of atrazine in humans and animals is the endocrine (hormonal) system. Atrazine is considered an endocrine disruptor (Deb, 2006). An endocrine disruptor is an agent that has been shown to alter the natural hormonal system in animals (Deb, 2006 and EPA, 2007). Endocrine disruptors represent a challenge to policy and law enforcement, especially environmental agencies that have to implement the law, because of their scientific complexity and the related uncertainty in establishing exactly how endocrine disruptors work. Atrazine exposure has been shown to result in delays or changes in pubertal development in experimental animal studies (EPA, 2007). Recent studies of atrazine exposure of frogs suggest that atrazine may impact sexual development; though the U.S. EPA concluded that data are currently insufficient to draw conclusions and implications of these data for children’s health remain unclear (EPA, 2007). There is minimal evidence suggesting possible carcinogenic effects of atrazine exposure. Atrazine’ s effects reported in adults (human and experimental animals) include shortening of estrous cycle length, attenuation of the LH (leutenizing hormone) surge, decreases in pituitary

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hormone levels, ovarian histopathology (changes in ovarian tissue), and liver effects including increased serum lipids and liver enzymes, and liver histopathology (U.S. ATSDR, 2003). “Several experimental animal studies reported reproductive and endocrine effects following atrazine exposure” (Stoker et al. 2000, Ashby et al. 2002, Rayner et al. 2005 as cited by EPA, 2007). Reproductive studies with experimental animals reported increased incidence of preterm delivery and intrauterine growth retardation. Delayed onset of puberty occurred in young male and female rats exposed to atrazine. Chlorinated metabolites of atrazine (e.g., diethylatrazine (DEA), di-isopropyl-atrazine (DIA), and diaminochlorotriazine (DACT) are generated in animal tissues, soil, and water, and are considered equal in toxicity to atrazine (WHO, 2011). The U.S. EPA posted a draft of the Carcinogenicity Hazard Assessment and Characterization and classified atrazine as not classifiable due to insufficient evidence for carcinogenicity (EPA, 2007). The World Health Organization International Agency for Research on Cancer (IARC) classifies atrazine as not classifiable as to carcinogenicity in humans (WHO, 2011). In summary, there are contradictions on the severity of the effects that atrazine can have in organisms and this is due to the lack of precision in the knowledge we have about this herbicide. It seems that while atrazine does not have carcinogenic effects, it disrupts the hormonal pathways of vertebrates, and its long-term implications need to be further studied.

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2. The parties and their position Once the complaint brought to the Public Ministry by an anonymous person about the contamination of la Villa River was confirmed, a case was opened to investigate the case and find the perpetrator (from investigations at Herrera and Los Santos January 5- 21 of 2015). Atrazine is an herbicide widely used for many years within River Basin La Villa. It is used in subsistence agriculture as well as the production of exports such as agricultural crops, cattle and swine, corn, and sugarcane for ethanol production. Many farmers that grow corn and cane sugar mainly use Atrazine in Panama because of its cost. The product is sprayed on the areas to kill undesirable weeds before cultivation takes place. It may be sold under different names, but its composition is the same. a. Claimant: ANAM b. Respondent: Campos de Pesé According to investigations done by the Public Ministry, the pollution source that contaminated La Ville River with atrazine was Campos de Pesé. They found vinasse and atrazine in high concentrations in the area around the company. Campos de Pesé was immediately informed of the information found by the authorities. For the Public Ministry there was no doubt that Campos de Pesé was responsible, as there was plenty of evidence. (MINSA (2015), ANAM (2015), La Prensa newspaper articles from June 22 to September 30). Campos de Pesé, an agribusiness dedicated to the production of ethanol from sugar cane, stated that they had a spill of vinasse, which they did not realize because it was very small. They stated that they were not responsible for the pollution of the river La Villa; in their words, “we did not pour atrazine in the river.” According to the president of Campos de Pesé, they used atrazine to remove weeds in the fields of sugar cane, but had not spilled any of it in the river. 58

The president of the company said that the company conducted an analysis by an independent laboratory and it showed that there was no presence of atrazine in the river. They said that this analysis is only part of all documentation submitted in their defense and added that the situation is detrimental to the company and especially the workers. The company reiterated that atrazine is used in low quantities, under the limits set by the manufacturer (Syngneta). They are willing to change products and technology used to attack the weeds in crops.

c. Is any significant information missing?

The Public Ministry found that the high concentrations of atrazine in the month of September was not coming from the company’s site, but as the analysis by the Institute of Legal Medicine and Forensic Sciences indicated atrazine contamination upstream of the point where the company is located. The pollution in September cannot be attributed to Campos de Pesé, because the company had ceased the use of atrazine since late June. We surely cannot be certain that the company really closed and stopped all its activities. The most significant pieces of information missing are the locations of the other sources of atrazine pollution. The Public Ministry only investigated a singular company, instead of making a careful study of the entire area, including the micro-enterprises and farmers that also use Atrazine.

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3 Framing the issue a. Legal Framework In Latin America, water was initially regulated by the civil code, although sometimes concurrently by rural codes or just by these in the absence of a civil law provision. Special laws on water, which began to establish systems to protect them, later replaced the relevant rules. In Panama, there is no single regime regulating water pollution, but there are several aimed at preventing water pollution. As discussed earlier, the relevant legislation and regulations include: ● Law Decree No. 35 of 22 September 1966, on water use. ● General Environmental Law 41, 1998. ● Resolution AG-0026-2002 of 30 January 2002, which establishes a schedule of

compliance for the characterization and alignment of technical regulations DGNTICOPANIT 35-2000 and DGNTI-COPANIT 39-2000 for waste water discharge. ● Resolution AG-0466 of 20 September 2002, which establishes the requirements for

permit or authorization requests for discharge of wastewater or sewage. ● Penal Code (Article 339).

But as mentioned before, the most important laws for this case are General Environmental Law, 1998 and Law Decree 35, 1966. In order to use the water on their cane sugar plantations for either irrigation or wastewater disposal, Campos de Pesé needed an EIAS (environmental impact assessment study), a permit, a temporary concession (three to five years) or a permanent concession issued by the Water Commission. Prohibited activities in a water body include: ●

The variation of the regime, nature or quality of water, or the alteration of its channels, without the authorization of ANAM. 60

●

The pollution of water in violation of the limits established by law.

● The discharge of substances that: ○ Affect or may affect human health; ○ Damage the environment; ○

Damage the quality of life of the population.

(Decree Law No. 35 of 1966, Penal Code 2010) In addition to any criminal or civil liability that may apply, ANAM can order cleanup, mitigation and compensation costs to the polluter. Individuals that breach the environmental regulation concerning water pollution are subject to administrative, civil and criminal liability. Administrative liability. ANAM can impose fines of up to US$10 million. Individuals that destroy, pollute or degrade natural resources in breach of environmental regulations may incur a penalty of up to six years’ imprisonment (Article 339 of the Penal Code). However, I did not find a case where imprisonment was imposed.

b. Process

What has happened since the case was open, where are we in the process? When a complaint is brought to the ANAM, the alleged offenders are generally notified that the investigations have started and that the case will proceed if enough merits are found in order to continue. Through the General Environmental Law, the offender has the right to defend itself through contributions with evidence before the final decision. The accused may file a motion for reconsideration and otherwise exhaust available administrative remedies. Notably, if prior to decision-making, ANAM considers the challenged activity harmful to the environment it may suspend the activity.

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In cases where the defendant is proven guilty of the offenses committed against the environment, it is important to note that the defendant can be subject to civil, administrative and criminal liability as applicable. Furthermore, it should be noted that each of these responsibilities is the responsibility of different authorities – the criminal court (depending on the amount of damage), the Public Ministry, and ANAM (administrative matters). In June, Campos de Pesé operations were suspended as a result of the investigations done by the Public Ministry, which ordered the temporary suspension of operations for 30 days. IDAAN (the Institute of Aqueducts and Sewers) reports indicate that when the water crisis started in the region of Azuero the concentrations of atrazine in the Villa River was 40 ppm (La Presnsa, 2014). The Judge Guarantee adversarial criminal proceedings decided to imposed personal precautionary measures against the Spanish Rafael Gonzales Pacheco, President and representative of the company Campos de Pesé; Nicaragua Gustavo Martín Aparicio, farm manager; and María Isabel Chitreana Lao, manager of fumigation. The accused were required to appear before the office of the Prosecutor’s Circuit de Herrera the 21st of each month until the process culminates and a final decision is rendered (they cannot leave the country).

Seven months have passed since the month of July, when the prosecution was given six months to complete the investigation. The case is still open and in the investigation phase.

c. Discussion of the arguments in favor and against Campos de Pesé 1. Arguments in favor Even though Campos de Pesé accepted their responsibility for contaminating the Villa River with vinasse (which is a harmful agrochemical), this agrochemical did not cause an environmental crisis in the regions as the discovery of atrazine did. Also their dictum might be less

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than expected because, even though thought as guilty for the first incident, Campos de Pesé cannot be hold accountable for the second incident which happened in September, if it is true that Campos de Pesé stopped its operations once the order was issued in July. 2. Arguments against The pollution of la Villa River with atrazine affected about 80,000 people; these people did not have water for a long period of time, which is considered both an offence to the environment and an offence to human health. Campos de Pesé accepted their responsibility in polluting the river with vinasse, this proves that they did not take preventative measures to avoid release agrochemicals into the river. The public attorney found enough evidence to pursue the case, however, there has been no ruling to this date. d. Decision: Conclusion for the case Applying the General Environmental Law 41 of 1998, and the Law Decree No. 35, 1966. As in cases of pollution discussed in section II of this paper, Campos de Pesé has violated articles 108, 109, 112, 114 of the General Environmental Law (1998), in addition to articles 54 and 55 of the Decree-Law No. 35 (1966), see below for the language in each of the articles: Article 108. Whoever, by the use or exploitation of a resource or the exercise of an activity, causes harm to the environment or human health, is obliged to repair the damage, implement prevention and mitigation measures, and assume the corresponding costs. Article 109. Any natural or legal person who issues, pour, or download available substances or wastes which affect or may affect human health, endanger or cause damage to the environment, affecting or likely to affect the essential ecological processes or quality of life of the population, have strict liability for damages that could cause serious damage, in accordance with the dispositions of the special laws related to the environment. Article 112. Failure to comply with environmental quality standards, the environmental impact study, the program of environmental remediation and management, this Law, laws and executive orders Complementary and regulations of this Law shall be punished by the Authority National Environment with written reprimand, temporary or permanent suspension of the activities of the company and fine, as is the case and the gravity of the infringement.

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Article 114. The violation of the rules contained in this Act, constitute an administrative offense, and sanctioned by the National Environmental Authority with a fine not exceeding ten million dollars with zero hundredths (B / 10,000,000.00) (General Environmental, 1998). Article 54: It is also prohibited to throw water currents commonly used, whether or not permanent, or sea, offal or industrial waste, Basaras, dirt or other materials that may contaminate or make harmful to health man, domestic animals or fish. Article 55: Awarded public action to enforce compliance with Articles 53 and 54 of this Decree and for the competent authority to impose penalties commensurate with the spirit of this Decree Law and the existing health regulations or establish. (Decree-Law No. 35, 1966).

As I found out, in addition to the General Environmental Law 41 of 1998 and the Law Decree No. 35, 1966, the Penal Code in its XIII title “ Crimes against the Environment and Territorial Planning,” Chapter I: Crime against natural resources, states in its article 399 that: Article 399. Whoever in violation of rules established to protect the environment destroy, remove, pollute or degrade natural resources shall be punished with imprisonment of three to six years. The penalty under this Article shall be increased by one third to one half in any of the following cases: 1. When the action falls within protected areas or fully or partially marine and coastal ecosystems and wetlands are destroyed. 2. When cause direct damage to watersheds. 3. When a declared of special biological, historical, archaeological or scientific value damaged area. 4. When the surface or underground water resources have negative effects on the ecosystem are significantly affected. 5. When it endangers the health or life of people. 6. When using explosive or toxic substances for fishing. 7. When the conduct is carried out by an industry or activity that works without obtaining proper authorization or approval of the competent authority. 8. When the conduct mediated false or withheld information on the environmental impact of the activity, or has hampered the inspection ordered by a competent authority. 9. When the damage is irreversible. Irreversible effects involving the inability to return to the previous situation

If I were to decide on an outcome for the case, Campos de Pesé would have been found guilty and would have to develop contingency plans for this kind of incidents, and it would have to cease the use of restricted herbicides such as atrazine. In addition, the company would have to pay for the damages caused to the people of the region and the environment.

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Whether or not this case can be legitimately seen, as an offence to human health because of atrazine contamination is a complex question to ask due to multiple conflicting peer reviewed results regarding the effects of atrazine on human health. This uncertainty allows the offender to undermine accusations against their potentially inhumane use of the compound. e. Acute Incident or Non-point Source Pollution Atrazine has regularly seeped into groundwater or run off of fields, therefore the contamination events in the region (where the basin is located) are sources of diffuse pollution or non-point pollution. A “non-point pollution can be defined as the introduction of pollutants into surface water course or underground water system, through indirect means, such as washing contaminants through the soil, or from sources that cannot be established accurately in a place or specific site. The diffuse pollution can be continuous or intermittent, the latter being the most common because it is related to own seasonal activities in agriculture, as the time of fertilization or pesticide application” (Carpenter et al., 1998). However, the approach used by the Public Ministry was a narrow approach, looking for one specific polluter and only one likely source of contamination. This did not allow for a deeper investigation and assessment of the pollution of the river. As mentioned before, after the responsibility was put on Campos de Pesé and their activities halted, there was a second spike in atrazine concentrations in the water during the month of September (although not as high as in June). The public attorney of the Herrera province opened the case to find again “the source” of the contamination. I point this out not to exculpate Campos de Pesé of initial responsibility, but to bring into the equation the larger picture of possibilities that are happening in the region in terms of contamination.

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Conclusion Even though the scope of this project is limited, there are two major things that I discerned about the effectiveness of Panamanian environmental law. Limitations to its effectiveness are related to the differences between the amount of time to solve a legal case and the urgency of timing related to environmental and social problems arising from an infraction to nature. The strengths of Panamanian environmental law are in the language of the provisions, which address environmental offences. Even though the process may take years, the laws in light of the evidence will produce a desirable outcome, unless in there is corruption in the process (which I did not perceive in any of the cases presented in section II of this paper). Another strength is the existence of different spaces where contestation can take place, and that the resolutions issued by ANAM can be challenged after the projects have been approved. In the case of the Villa River, it might be easy to point at one source or pollutant and believe that we have solved the problem. However, atrazine may in this case be a small tree that is preventing us (Panamanians) from seeing the forest of dynamic and complex interactions between socio-environmental and economic activities in relation to the pollution issues of the Villa watershed. It is worth noting that these occurrences happen in other regions of Panama as well. This is just an isolated event that indicates the need for a nuanced re-assessment of how we envision sustainability, conservation, water, climate and social issues for present and long-term thought and action. The General Environmental Law can help us re-assess how we view and treat the environmental and social issues mentioned above, which illustrates the shortcomings of our current assessments on pollution cases such as the one presented. The Panamanian environmental law has the potential to keep improving, both through the specific dispositions within the law and through the administrative structures that enforce those

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dispositions. However, some components of the General Environmental Law (1998) can create challenges to improving Panamian environmental law. These components include provisions of a preventative nature, like the EIA, as well as provisions for monitoring protected and not protected areas. Improving these components will depend on the availability of staff of ANAM to use more consistent procedures and techniques to assess proposals and current activities, especially around watersheds such as the Villa River. Because the improvement of these components is dependent on the above factors, it is unlikely that they will be significantly improved. There is still a lot that needs to be done in the preventative realm of environmental law in Panama, otherwise we won’t be able to see farther than the tree. Environmental law should guide us towards long-term thinking and not just about quick fixes to environmental problems – which are local, regional, and global.

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