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Ecuador

Last Verified on Monday 25th March 2019

    • Ecuador

      Ecuador is a pioneer in the rights of nature movement. In the Constitution of 2008 our legal framework in environmental law was strengthened by granting many rights that would defend nature without the need for previous requirements.

      First, our Constitution grants the right to live in an ecologically balanced environment free of pollution, a right we carry from the previous Constitution (1998).

      Second, Ecuador became the first country to grant rights to nature in its Constitution, taking the ecocentric approach of legislation to the highest possible stratum. It grants nature the right to have its existence respected, as per its cycles, evolutive processes and structure. Nature has a right of restoration and also the state has an obligation to halt and restrict certain activities that could lead to the extinction of species, destruction of ecosystems or the permanent alteration of natural cycles. It also states that nature is not subject to appropriation, it can only be used according to state regulations.

      Lastly, Ecuador considers the conservations and protection of the environment of public interest, water is considered a strategic element for life and it is a constitutional obligation for every Ecuadorian to respect the right of nature.

      Last verified on Monday 25th March 2019

    • Ecuador

      As stated above, Ecuador has a very strong legal framework that covers all areas of interest in Environmental Law. In 2017, the Environmental Organic Code (EOC) was enacted, it came into full effect and force on 12 April 2018. Since then it has become the primary environmental statute in Ecuador. Nevertheless, the Constitution also contains many important environmental principles and policies that shape not only the EOC but the entire statutory and regulatory environmental framework.

      Environmental requirements are imposed on a national basis. The national environmental agency is the Ministry of Environment, which has national jurisdiction and exclusive authority to control matters such as hazardous waste and chemical substances, it also manages the environmental regulations of the country. There are also regional and local agencies with enforcement power, given to them by law and delegated by the Ministry of Environment, which can enact regulations and regional or local laws to be enforced in their territory. This are all enacted within the national statutory framework, which is, the Constitution, the EOC and the Ministry of Environment’s regulations.

      Last verified on Monday 25th March 2019

    • Ecuador

      The major environmental treaties and conventions that Ecuador has ratified are the following:

      • United Nations Framework Convention on Climate Change (UNFCCC) (ratified on 23 February 1993);
      • Kyoto Protocol (ratified on 13 January 2000);
      • Convention on Biological Diversity (CBD) (ratified on 23 February 1993);
      • United Nations Convention to Combat Desertification (UNCCD) (ratified on 6 September 1995);
      • Ramsar Convention on Wetlands of International Importance especially as Waterfowl Habitat (ratified on 7 January 1991);
      • Indigenous and Tribal Peoples Convention 1989 (ratified on 15 May 1998);
      • Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITIES), also known as the Washington Convention (ratified on 12 July 1988);
      • Convention on the Conservation of Migratory Species of Wild Animals (CMS), also known as the Bonn Convention (ratified on 1 February 2004);
      • Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (ratified on 23 February 1993);
      • Stockholm Convention on Persistent Organic Pollutants (ratified on 7 June 2004);
      • Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (ratified on 4 May 2004); and
      • International Whaling Commission (IWC) (reactivated in March 2008).

      Ecuador has ratified ILO 169 since 15 May 1998. Additionally, the Constitution recognises and guarantees to communities, indigenous peoples and nationalities, the collective right to free, prior and informed consultation, within a reasonable time, on plans and programs for prospecting, exploitation and commercialisation of non-renewable resources that are found on their lands and that may affect them environmentally or culturally; participate in the benefits that those projects report; and receive compensation for any social, cultural and environmental damage caused to them.

      In 2018, a Constitutional Protection Action regarding the Rio Blanco Mining Concession Contract was adjudicated. The judge held that the requirements of good faith prior consultation provided in ILO 169 Convention were not met, mainly because the consultation process did not include the legitimate representatives of the community. The judge ordered the suspension of all mining activities and ordered the authorities to conduct a new process of consultation with the communities, following the ILO 169 Convention. It will be for the Constitutional Court to settle recent cases in which prior consultation rights are at issue.

      Last verified on Monday 25th March 2019

    • Ecuador

      A corporation is required to obtain an administrative authorisation to operate their business. Under our statutory framework most activities require a prior environmental authorisation. There are different types of authorisations depending on the type of business or project, the reach and the environmental impact it may have. Every authorisation process begins with registration in the environmental data service. A certificate stating that the activity or project does not interfere with protected areas must be obtained.

      There is no need for separate air or water permits, since this are covered within the environmental authorisation. There is an additional requirement for hazardous waste, where the person requiring the authorisation will have to register as a hazardous waste generator.

      An environmental authorisation is required to begin the construction of a facility, since the environmental permit process covers not only the operation of a facility but also the construction and any prior acts that may impact on the environment, community or third parties.

      There are different types of administrative authorisations that must be obtained to begin a project, construction or operation of a business. The environmental impact that these activities have is decisive on which type of authorisation is needed. Projects that can have a significant impact (eg, oil and gas, metallic mining) require an administrative authorisation called an environmental licence.

      The type of administrative authorisation determines whether it is obtained within a short period of time or it could take up to a year to be granted by the competent agency.

      Last verified on Monday 25th March 2019

    • Ecuador

      A “social licence to operate” is very important in Ecuador, since communities play an important role in the successful development of a project or activity. 

      For those activities with a medium or high probability of negative environmental impact, it is mandatory to conduct a process of socialisation with the communities, in which informative sessions are planned to make the project known to the community and gain their point of view. All the information coming from these efforts are presented to the competent authority. It falls to the competent authority to decide whether or not to grant the authorisation.

      In the administrative process for obtaining an environmental authorisation, an environmental management plan (EMP) is approved and the licensee must comply with it during the execution of the project. This EMP contains a Community Relationship Plan, which in turn includes the measures that the licensee will have to observe and take in regard to the relationship with the community and compliance with applicable regulations enacted to enable communities to benefit from the projects.

      Last verified on Monday 25th March 2019

    • Ecuador

      There is no private ownership of oil, gas and minerals. Ecuador’s Constitution provides that non-renewable natural resources are inalienable assets of the state. The exploration and/or exploitation of oil and gas can be delegated to private companies under different types of E&P contracts, such as production sharing contracts or risk service contracts, in which the private company assumes the operation of the area. These contracts are awarded under a bidding system that is conducted by the Hydrocarbons Bidding Committee under the provisions of the Hydrocarbons Law. Once a contract is awarded, the operator is obliged to apply for and obtain environmental authorisation for the exploration, development and production activities. If the area awarded was operated before by a third party or by the National Oil Company, and an environmental audit will be performed within the first year of the contract to establish a base line of existing environmental and social liabilities, for which the operator will not be liable.   

      Metallic mining concessions are granted by the Ministry of Energy and Non-Renewable Natural Resources. In addition to the mining concession, large-scale mining projects require the execution of an exploitation contract with the Ecuadorian State. Prior to the execution of mineral activities, the mining concessionary must apply for and obtain (i) an environmental licence granted by the Ministry of Environment and (ii) a favourable report and water use permits from the Water Secretariat.

      For oil, gas and minerals environmental authorisations, the only competent authority is the Ministry of Environment.

      Last verified on Monday 25th March 2019

    • Ecuador

      There is no specific environmental regulation for renewable or alternative sources of energy and fuels. All projects in these areas must obtain prior environmental authorisation from the Ministry of the Environment. 

      Last verified on Monday 25th March 2019

    • Ecuador

      In Ecuador the enforcement of laws and regulations is done by the Ministry of Environment. The Secondary Environmental Legislative Code (TULSMA) establishes the role of the Ministry of Environment in the enforcement of laws and enactment of regulations. Through the Decentralised National System of Environmental Management, it entrusts the regional and local authorities to do the same in their territories.

      The competent authorities take two approaches to enforcement. First, the control and monitoring of environmental obligations; and, secondly imposing administrative sanctions and fines to the responsible party.

      Last verified on Monday 25th March 2019

    • Ecuador

      Penalties and fines for violations of environmental laws can be imposed in administrative, civil and criminal proceedings alike. In Ecuador, these proceedings may be interposed at the same time.

      Administrative penalties are regulated by the COA, the TULSMA and the Administrative Code. The COA and the TULSMA establish such breaches that are subject to penalties. The Administrative Code determines the procedure for such penalties to be imposed. An administrative penalty can be imposed in three different ways: first, there can be a suspension of the authorisation; second, there can be a fine; and, third, the authorisation can be revoked.  

      Civil liability is regulated by the Constitution, COA, Civil Code and by the Organic Procedural Code (COGEP). Ecuador’s constitution in regards of environmental damages provides that strict liability applies, the burden of proof shits to the entity or individual that has allegedly caused the damage, and it is not subject to any statute of limitations. It also provides for the obligation of integrally restoring the ecosystems and compensating the affected persons and communities.

      Criminal penalties can be found in the Organic Penal Code (COIP) where environmental crimes are codified and regulated. There are penalties for crimes against biodiversity, crimes against pets, crimes against natural resources, crimes against environmental management, crimes against non-renewable natural resources and crimes against fossil fuel activity. For these crimes there are two types of penalties, the first one is imprisonment, if the guilty party is a natural person, and the second one is a fine, if the guilty party is a corporation.

      Last verified on Monday 25th March 2019

    • Ecuador

      The statutory and regulatory framework take care of air emissions. The EOC presents the policy and principles regarding air emissions and the regulatory framework, contained in Ministerial Agreement 061 presents the technical process by which air emissions are measured and controlled.

      It falls within the competent authority to monitor air quality and enforce the law regarding air emissions in their respective territories.

      Last verified on Monday 25th March 2019

    • Ecuador

      The person liable for the contamination of soil, surface water and groundwater, is the one exercising the activity that caused the contamination. For environmental damages strict liability applies.

      Environmental authorisations require the reporting of spills and releases within a “reasonable” time and they have three days from said notification to present an emergency plan to combat the pollution. For oil spills, the regulations provide that the operator is obliged to provide notice within 24 hours. 

      Historical contamination is harder to control and also determine who is responsible of conducting the remediation. Notifications in these cases must be made as soon as knowledge of them is acquired.  

      Last verified on Monday 25th March 2019

    • Ecuador

      The law that governs remediation of contaminated property is the COA. Remediation is mandatory for any activity that negatively impacts the environment.

      The standard that is used to determine clean up levels is integral reparation. The Constitution, the COA and the TULSMA all state that the standard for remediation is integral reparation, meaning that it is expected for the environment to be taken back to its state before the violation occurred. This can be done by a series of reparations, clean-ups, reforesting and any other actions appropriate to the individual case.

      Last verified on Monday 25th March 2019

    • Ecuador

      The standard of liability for damages to natural resources is strict liability. Compliance to environmental laws and regulations is no exception and does not excuse strict liability.

      The mere fact of being responsible for damages makes the person responsible for them and the only remedy is to integral reparation, without prejudice to any administrative, civil or criminal penalties that may arise from the negative environmental impact on the natural resources.

      Because Ecuador’s Constitution recognises that nature is subject to rights, any individual has standing to file a lawsuit against polluters.

      Last verified on Monday 25th March 2019

    • Ecuador

      Environmental issues in property transfers and acquisitions are in the core of any business transaction. The importance of establishing responsibility of any environmental liability lies with the fact that the TULSMA establishes that whoever is the owner of a property is responsible of remediation if contamination is found.

      The same standard is true for mergers and acquisitions because once a business is transferred or acquired the new owner is responsible for any environmental non-compliance or the lack of appropriate permits.

      There are no specific laws that govern the environmental aspects of these kinds of transactions, but the standards of responsibility are stated in the COA and TULSMA.

      Last verified on Monday 25th March 2019

    • Ecuador

      The shutdown of a facility is regulated by the administrative environmental authorisation that the project has. According to environmental statutory framework a facility cannot shut down without doing a shutdown audit, which needs to comply with the Abandonment and Shutdown Plan (which is included in the environmental management plan approved within the administrative procedure in which the authorisation was granted).

      The sale of a facility does not require any additional environmental practices. The only requirement in the Ecuadorian legal framework is to change the holder of the authorisation. Regarding oil and gas projects, when the operation of an area is transferred, a “change of operator” audit is required. The purpose of this audit is to determine the base line of the area at the time when the operation is transferred.

      Last verified on Monday 25th March 2019

    • Ecuador

      The Ecuadorian jurisdiction does not provide incentives to conduct environmental audits or assessments. These are mandatory as per the statutory regulations and the environmental authorisation.

      In Ecuador environmental audits and assessments are regulated by Ministerial Agreement 061, which is part of TULSMA.   

      There are several types of environmental audits, such as compliance audits and environmental assessments such as the ones required to obtain an administrative authorisation. Each one has specific requirements, established according to the activity or the authorisation emitted to the holder.

      Last verified on Monday 25th March 2019

    • Ecuador

      There are several requirements for the conduct of environmental assessments and environmental impact assessments (EIA). First, an EIA is required to obtain an administrative authorisation for any activity or project. When the impact is not significant, a less extensive assessment, known as the environmental management plan, is required.

      Second, EIAs are required to maintain the good standing of an authorisation. The competent authority is entitled to revoke the environmental authorisation if these compliance assessments are not submitted for approval of the competent authority. 

      Last verified on Monday 25th March 2019

    • Ecuador

      EIAs are needed in two moments of the licensing process. First, they are needed to obtain the administrative authorisation for the operation of the project or activity. This approval is done within the general licensing process. Second, EIAs are required, according to applicable statutes, to be presented every two years after the issuance of the authorisation.

      The approval of the EIA depends on the complexity of the audit. Usually the timetable for approval is six months.

      Last verified on Monday 25th March 2019

    • Ecuador

      Ecuador’s Constitution acknowledges that water is considered a strategic element for life and is fundamental to guarantee food sovereignty; it is the sole and inalienable property of the State and access to it by the inhabitants of the Ecuadorian territory is granted as a constitutional right. Ecuadorian legislation prohibits any form of water privatisation. The public entity that is in charge of the national strategic water system is the Water Secretariat (SENAGUA).

      The order of priority for the different destinations or functions of the water according to Ecuadorian law is the following:

      • human consumption;
      • irrigation that guarantees food sovereignty;
      • ecological flow; and
      • productive activities.

      Special water rights are issued by the authority through authorisations regarding the nature of its destination and are classified as:

      • authorisations for the use of water, when its use is intended for human consumption or irrigation that guarantees food sovereignty; or
      • authorisations for the productive use of water, when its use is destined to economic uses according to the following order of priority: (i) irrigation for agricultural production, aquaculture and agro-industry for export; (ii) tourist activities; (iii) generation of hydroelectricity and hydrothermal energy; (iv) projects of strategic and industrial sectors; (v) mineral, medicinal, treated or enriched waters; and (vi) other productive activities.

      The authorisations are conferred exclusively to the user of water and are non-transferable, with the exception of cases of succession upon death or the sale of the land, as long as the destination for which the authorisation was granted is maintained.

      Last verified on Monday 25th March 2019

    • Ecuador

      The Environmental Management Plan regulates the discharge of industrial waste water. The EOC states that the competent authority is required to monitor and control water discharges. TULSMA provides for water quality standards that the discharged water has to comply with depending on where the discharge will be made (different standards apply if the discharge is made to a public sewage system or if the discharge is made directly to surface water).

      Last verified on Monday 25th March 2019

    • Ecuador

      Although climate change receives attention in the Constitution and the COA, there are no specific regulations addressing the matter.

      Ecuador’s Constitution provides that the state shall adopt adequate and cross-cutting measures for the mitigation of climate change, by limiting greenhouse gas emissions, deforestation, and air pollution; it shall take measures for the conservation of the forests and vegetation; and it shall protect the population at risk.

      In 2018, the Ministry of Environment created the Undersecretariat of Climate Change, in addition to the Committee on Climate Change. The Undersecretariat together with the local authorities (municipalities) are in charge of planning and developing strategies and policies to effectively respond to the effects of climate change. Ministerial Agreement No. 137 establishes the general guidelines for plans, programmes and strategies for climate change that local authorities have to observe. 

      Last verified on Monday 25th March 2019

    • Ecuador

      In Ecuador Hazardous chemicals are subject to special environmental requirements. These are codified in Ministerial Agreement 192, where the National Directory of Hazardous Chemical Substances was published.

      Nevertheless, the TULSMA provides that hazardous waste and substances are regulated even if they are not listed in Ministerial Agreement 192 if they comply with one of the characteristics that define hazardous substances, the CRTIB, or substances that are corrosive, reactive, toxic, flammable, biological or radioactive.

      Last verified on Monday 25th March 2019

    • Ecuador

      The Ecuadorian legal system clearly codifies protections to patrimony or cultural heritage and it also protects environmentally sensitive areas.

      Patrimony or cultural heritage is protected by the COA and the TULSMA, these areas are declared to be of national importance and are in control of the state. Once an area is declared to be of cultural heritage it cannot be used, be exploited or developed and its integrity must be respected.

      Environmentally sensitive areas are also protected by the COA and TULSMA. An environmentally sensitive area such as wetlands, forests or beaches are protected by our laws if needed, this means that if the National Environmental Authority deems an area to be environmentally sensitive, it can be protected, and, just as the cultural heritage areas, this cannot be exploited or developed. They can only be used in responsible ways with minimum impact, for recreation, tourism or scientific research.

      Last verified on Monday 25th March 2019

    • Ecuador

      The Organic Code of Territorial Organisation, Autonomy and Decentralisation determines that the provision of public solid waste management services is an exclusive competence of each local municipal authority, which has the exclusive competence to manage sanitary landfills within its jurisdiction. Therefore, the legal restrictions that exist in relation to the availability to establish a landfill system depends on each local municipality regulation. Certain municipalities allow the possibility to delegate or contract private entities for activities related to the final disposal of solid waste, such as landfills.

      Last verified on Monday 25th March 2019

    • Ecuador

      Ecuadorian jurisdiction has established, as part of its environmental principles that extended producer responsibility applies to everyone that is part of the life cycle of a product through joint and several liability. The manufacturer of the product is responsible for it throughout every phase of commercialisation until its final disposal.

      Sustainable development is another principle on which the entire environmental law framework is modelled. All activities are assessed and every administrative authorisation is approved taking into account this principle.

      Last verified on Monday 25th March 2019

    • Ecuador

      Ecuador’s Constitution recognises the right to all persons, individually or collectively, to freely access information generated in public entities, or in private entities that manage state funds or carry out public functions. There is no reservation of information except in the cases specifically established in the law; when there is specific regulation for the handling of information; or when there is a prior qualification of reservation or confidentiality. Additionally, the Ecuadorian regulations provide that, in the case of violation of human rights, no public entity may deny access to information.

      For environmental matters, there is no specific law or regulation that regulates the nature or process for securing protection for confidential business information or trade secrets. Such regulations are in place for certain industries and administrative permits, such as permits to market and distribute pharmaceutical or food products.

      Last verified on Monday 25th March 2019

    • Ecuador

      An NGO, without being an active part of an environmental licensing process, can be involved on it as an interested party. An NGO can request the Ministry of Environment to be included in the licensing process of projects that are of interest. It is often the case that NGOs become involved in environmental licensing processes when the project to be developed is near or within protected areas.

      NGOs, as any individual, have standing to file actions for the enforcement of environmental laws.

      Last verified on Monday 25th March 2019

    • Ecuador

      The following are the most important issues related to environmental policy, regulation and enforcement of environmental law: 

      • reduction and remediation of water pollution;
      • reduction and remediation programmes of pollution related to the hydrocarbons industry;
      • reduction national deforestation;
      • reduction of hazardous waste generated; and
      • evaluation of regulation and, if necessary, enacting new regulation, for activities related to large-scale metal mining.

      Last verified on Monday 25th March 2019

    • Ecuador

      As mentioned above, recent noteworthy litigation has been related to mining activities and the role of prior consultation to communities in the context of ILO 169. 

      There are no environmental courts in Ecuador nor any movement to create such courts.

      Last verified on Monday 25th March 2019

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