Ombudsman issues a damning report on the regulation of environmental impacts

27 February 2017

The Peruvian Obudsman’s office, the Defensoria del Pueblo, has just published a noteworthy piece of work entitled El camino hacia proyectos de inversión sostenibles, Balance de la evaluación de impacto ambiental en el Perú.

In 266 pages it reviews in great detail how far the national legal framework for monitoring the environmental effects of economic activity is ‘fit for purpose’. It concludes with 64 recommendations directed at specific agents in the public sector in all its relevant spheres.

It is extremely critical of how legislation governing environmental impacts, brought into being in 2001 (Ley 27446) but only put into effect eight years later, has been implemented. Many of the deficiencies are specific, especially those concerning the lack of decrees to implement the norms and procedures required for any serious environmental evaluation to take place.

Some of these concern illogicality or even contradictions in the legislation, such as assigning responsibility for approving environmental impacts to agencies that lack the powers to act (p.251).

Others are broader, taking the form of declarations on non-performance, such as the failure to carry out prior consultation and (more broadly) activities to promote citizen participation. The remedies it offers in these cases are general in character, including those relating to the norms and capacities that need to be put in place (recommendations 34-36).

The document has some Important insights about decentralisation. The primary legislation requires regional and local authorities to play a key role in monitoring and evaluating environmental protection. In practice, though, the powers, capacities and resources of local government to undertake such responsibilities are often absent. Again the recommendations are dauntingly grand, urging that the powers, resources and capacities be put in place (recommendations 12-19). Some regions are currently acting without the appropriate powers and, the report argues, this needs to end.

A particularly insightful part of the report concerns citizen participation and ‘Prior and Informed Consent’ (FPIC). For the Defensoría, it is essential that these procedures are put into practice, given the high degree of social discord arising from raised expectations and the general lack of consultation provided.

The Defensoría sent questions to all the relevant ministries about the procedures in place for citizen participation. The legislation specifies the need for workshops, registers of participation and so forth. Of the twelve ministries questioned only five said they had any procedures in place, while the ministry of production (industry plus agriculture) responded that it had no such procedures. Yet to the next question (‘have you effectively enabled citizen participation?’) the ministry's answer was ‘yes’.

The Defensoría reveals that this response was based on the fact that the sector said they had published information on consultation oppportunities on their web sites. The Defensoría responds to this with a useful essay on how while transparency is important, guaranteeing and monitoring effective participation is something quite different (pp96-98).

Another important section relates to the controversial ‘Informe Técnico Sustentatorio’ (ITS). This was an instrument created in 2013 as one of a number of measures designed to simplify the procedures for approval of major projects, particularly in extractive industries. This means that where a modification to an Environmental Impact Assessment (EIA) is not considered ‘significant’ in its environmental impact, there is no need to review the EIA or to consult the population concerned. The time-span in which the validity of an ITS can be challenged is a mere 15 days.

The current conflict at Las Bambas arose from the use of an ITS, and the Defensoría cites this as an ‘emblematic case’. The Defensoría is clear that the measure has been poorly regulated, that there is no effective control by the oversight agency (the environment ministry), that the criteria used are unclear and inconsistent across different sectors, that the exclusion of citizen participation is not justifiable, and that the 15-day time limit for objections is wholly unacceptable (pp31-32).

Another important point made refers to contingency plans that have to be included in all EIAs. All such plans need to detail the measures required in case of accidents arising from the operations of a given project that have adverse effects on the environment, infrastructure and the health of people living nearby.

The Defensoría cites the case of the oil spills caused by fractures in the northern Peruvian pipeline as a second ‘emblematic case’. The OEFA, the entity responsible for environmental evaluation and oversight, has reported that between March 2011 and 14 November 2016, it attended at least 30 emergencies arising from pipeline leakages, 21 of them in the Amazon region.

A key deficiency that has come to light from these leakages is the inadequacy of emergency responses to protect affected people from the consequences of oil spills, including ill health, lack of food and water, and insecurity. This, the Defensoría suggests, arises from the lack of any express obligation on the company responsible (the titular de los proyectos) to respond to such occurrences in the contingency plans. This undercuts the power of the state to demand accountability and has ended up making the state responsible for meeting the costs arising.

Peruvian environmental law expressly states that any company, whether private or public, must assume the risks or damages to the environment generated by its activities, and this is not currently reflected in contingency plans. The Defensoría recommends that all such plans should specify the actions to be carried out by the company concerned in the event of an emergency and the methodology to be used.

While difficult to read for its level of detail, the document provides many useful insights into what ‘good governance’ should be, particularly the detailed follow-up to the passage of legislation. ‘Institutional capacity’ is probed in the report and is found alarmingly wanting. It posits that there are elements of culture and commitment that are essential to take into account in ensuring that a law really works in practice.

It would be helpful for the Defensoría to provide a shorter and more readable version of its recommendations for wider public discussion.

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