How to force Spain to protect the right to the environment after COP26 | legal

DrThe saying goes that “the land is not an inheritance from our parents, but a loan from our children.” Against this backdrop, the Scottish city of Glasgow has just held COP26, the United Nations Climate Change Conference which once again highlighted the urgent need to move towards a carbon neutral economy.

Not surprisingly, as a result of industrial growth, the amount of gases in the atmosphere increased, which led to an increase in global temperature. According to NASA data, in 1880, the average temperature of the planet was -0.16 ° C and in 2016 and 2020, for the first time, this threshold rose above 1 ° C, therefore, climate change is the reality of its effects here: melting from the poles , extreme heat waves, the disappearance of species … Indeed, a report by the United Nations He points out that in just 60 years many Spanish cities could be “devastated by the sea.” The places most affected will be Santa Cruz de Tenerife, Cadiz and Barcelona.

In this latest effort to save the planet, the UK government has commissioned international law firm DLA Piper to provide legal services to COP26. According to Paz de la Iglesia and Joaquín Hervada, company partners and co-directors of the ESG practice in Spain, the challenges they faced “were many and very diverse, but perhaps the greatest were organizational. On the one hand, there is significant regulatory dispersal as a result of the large number of countries involved. On the other hand, there are still certain gaps and gray areas caused, in large part, by the difficulty of advancing regulation at the speed of technology and the economy.”

Specifically, representatives of about 200 countries participated in the summit, although there were some notable absences such as the absence of Chinese President Xi Jinping, the head of the country that generates the most polluting gases, or Russian President Vladimir Putin, the leader of the People’s Republic of China. The fourth country in the world in carbon dioxide emissions. Despite this, they sent their negotiating teams to Glasgow.

And it is, as the summit’s legal organizers warn, countries that “do not reduce their emissions will encounter difficulties in marketing their products, if only because of the operation of the supply chain itself, since the most ambitious countries from the point of view of sustainability, will not be able to achieve their goals if they accept the goods with a significant environmental impact.

without force of coercion

COP26, like other previous editions of the conference, was marked by declarations of intent by authorities, in some cases with few specific goals questioned by scientists and environmental organizations. Cutting methane emissions by 30% this decade to limit a 0.2 degree temperature increase in 2050, fight deforestation or promote clean energy, has focused a significant portion of the ads, although they are not binding from a legal point of view. Despite this, they are important. Garrigues experts explain that “their strength lies in the fact that the international community trusts that countries will respect them and in the negative reactions that would otherwise occur in other countries, financial markets, citizens and environmental organizations.” Sustainable, the platform that includes ESG law firm services.

They warn that “the United Nations Framework Convention on Climate Change does not have legal mechanisms to enforce enforced fulfillment of its provisions and agreements, so that non-compliance can be formally declared as such, but not sanctioned.” Pedro Boveda, partner in the environmental department of Gómez-Ibo and Pombo, and Eduardo Ortio, the company’s attorney.

In the case of Spain, the government committed to increasing climate finance by 50%, to 1.35 billion euros annually from 2025, to help countries with fewer resources in the energy transition. A feature of the internal legal system is that citizens are entitled to demand compliance with the right to “enjoy an environment suitable for the development of the person” enshrined in Article 45 of the Constitution.

Although it is not a “protected right before the Constitutional Court” as it does with other fundamental rights, citizens have “legal mechanisms to claim protection” before courts and tribunals. “Law 27/2006 recognizes certain non-profit legal persons whose objectives include the defense of the environment the right to appeal acts or omissions attributed to public authorities that violate the rules issued on this issue,” they pointed out from Sustainable Garrigues. Other regulations, of different scope, aimed at protecting nature can also be invoked, such as “Last Law 7/2021, on Climate Change and Energy Transition, the Consolidated Text of the Integrated Pollution Prevention and Control Law. Or Law 21/2013 on Environmental Assessment”.

compliance with the constitution

Moreover, “Any Spanish citizen can go to the contentious administrative jurisdiction if the obligations undertaken by Spain in the international agreements ratified by our country under the United Nations Framework Convention on Climate Change are not fulfilled,” explained Gómez-Ibo & Pompeo’s lawyers .

Namely, that “EU member states are obligated to comply with the Convention or, more precisely, with provisions incorporating and developing the Convention in the law of society. These obligations are enforceable on Member States before the Court of Justice of the European Union by the European Commission, the lawyers emphasized.

As the Constitutional Court has said since the 1980s, public authorities must “protect and improve the quality of life and defend and reform the environment.” Argument line in line with the statements of European justice.

Currently, there is an initiative to include in the Rome Statute of the International Criminal Court a new crime Ecocid It aims to punish certain actions that cause serious damage to the environment, so that we have to remain attentive to how this initiative is implemented”, warned Garrigues Sustainable.

Administrative offenses and offenses

Empty criteria. In Spain, attacks on the environment are punished by two large sets of rules: criminal and administrative. This means that the act can be punished as a crime or as an environmental crime. As the Supreme Court said, to determine this, it will be necessary to be in the specific case and see the seriousness of the damage or the severity of the polluting act. But in practice, this state of demarcation generates enormous “difficulty,” as Jesus Sedano explains, Lawyer Recorded by Uriah Menendez. In fact, the Supreme Court described the environmental offense under Article 325 of the Penal Code as a “partly empty” rule. This is because one requirement for it to occur is that it violates, specifically, “certain protective regulations for the environment” that may be of an administrative nature, says the attorney.

Nom twice at the same thing According to this principle, the same assumption cannot be punished more than once on the same basis. In practice, if the administration becomes aware that the facts may be criminally relevant, it sends the open administrative file to the Public Prosecutor’s Office. If there are signs of criminal liability, the procedure is suspended until the offender is resolved. If this ends with a conviction, the administrative file is saved. If not, it will be analyzed whether the administration can be reactivated and if any punishment can be imposed”, explains Urea Menendez’s lawyer. Which is that “recent reforms of the penal code have tended to facilitate its application when there are risks or damage to the environment” Thus, it is more and more frequent that there is a “leap into the criminal sphere”.