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Portugal: New Environmental Policy

(Apr. 16, 2014) On April 14, 2014, the Government of Portugal published Law No. 19, which defines the basis for the country’s environmental policy pursuant to the terms of articles 9 and 66 of the Constitution. (Lei No. 19/2014 de 14 de Abril, DIÁRIO DA REPÚBLICA No. 73, 1ª Série, 2400, LEGIX; Constituição da República Portuguesa [2005], ASSEMBLEIA DA REPÚBLICA.PT.)

According to Law No. 19, the new environmental policy is designed to realize environmental rights through the promotion of sustainable development. That development is to be supported by the proper management of the environment, in particular ecosystems and natural resources, which must contribute to the development of a low-carbon society and a “green economy,” with rational and efficient use of natural resources. The economy must ensure the welfare and the gradual improvement of the quality of life of the citizens. (Law No. 19, art. 2(1).)

Law No 19 declares that government action on environmental issues is based on the following principles:

• sustainable development, which requires the satisfaction of present needs without compromising those of future generations and which requires the preservation of natural resources and cultural heritage; planning for the long-term production capacity of ecosystems; balanced and rational planning of the territory for the purpose of overcoming regional disparities; promotion of territorial cohesion and sustainable production and consumption of energy; and preservation of the biodiversity, biological and climate balance, and geological stability that harmonizes human life and the environment (id. art. 3(a));

• intra- and inter-generational responsibility, which requires the use and exploitation of natural and human resources in a rational and balanced way, in order to ensure their preservation for present and future generations (id. art. 3(b));

• adoption of proactive measures in order to remedy or alleviate, at the source, adverse impacts on the environment, whether of natural or human origin, both in face of immediate dangers or in contemplation of future risks. If there is uncertainty about the level of risk, the burden of proof lies with the party claiming the absence of hazard or risk (id. art. 3(c));

• adoption of a policy that requires the person responsible for any pollution to bear the costs associated with the polluting activity and that introduces internal measures designed to prevent and control the threats to and aggression against the environment (id. art. 3(d));

• for the purpose of rational use of resources, assumption by the users of public services of the costs of use of those resources, as well as of a fair proportion of the costs associated with making the resources available (id. art. 3(e));

• accountability of all persons who, directly or indirectly, intentionally or negligently, cause damage or pose a threat to the environment. It is the duty of the state to apply penalties, including the possibility of requiring payment for restitution under the law (id. art. 3(f)); and

• assignment of responsibility to whoever causes damage to the environment for restoration of the environment to its original condition as it stood prior to the harmful event (id. art. 3(g)).

Constitutional Provisions

The relevant parts of the Portuguese Constitution mentioned in the article state:

Article 9 (Fundamental tasks of the state)

The fundamental tasks of the state are:

a) To guarantee national independence and create the political, economic, social and cultural conditions that promote it; …
d) To promote the people’s well-being and quality of life and real equality between the Portuguese, as well as the effective implementation of economic, social, cultural and environmental rights by means of the transformation and modernization of economic and social structures;
e) To protect and enhance the Portuguese people’s cultural heritage, defend nature and the environment, preserve natural resources and ensure correct town and country planning; …
g) To promote the harmonious development of the whole of Portuguese territory, with particular regard to the ultra-peripheral nature of the Azores and Madeira archipelagos; … .

Article 66 (Environment and quality of life)

1. Everyone has the right to a healthy and ecologically balanced human living environment and the duty to defend it.
2. In order to ensure the right to the environment within an overall framework of sustainable development, the state, acting via appropriate bodies and with the involvement and participation of citizens, is charged with:
a) Preventing and controlling pollution and its effects and the harmful forms of erosion;
b) Conducting and promoting town and country planning …;
c) Creating and developing natural and recreational reserves and parks and classifying and protecting landscapes and places …;
d) Promoting the rational use of natural resources …;
e) In cooperation with local authorities, promoting the environmental quality of rural settlements and urban life …;
f) Promoting the integration of environmental objectives into the various policies…;
g) Promoting environmental education and respect for environmental values and assets;
h) Ensuring that the fiscal policy renders development compatible with the protection of the environment and the quality of life. (Constitution of the Portuguese Republic, Seventh Revision, 2005, ASSEMBLEIA DA REPÚBLICA.PT [English portal].)