Chapter 2. Policy-making environment
This chapter assesses progress in environmental governance over the last decade. It provides an overview of the institutional framework for environmental management, touching upon horizontal and vertical co-ordination mechanisms. It discusses land use planning and examines Peru’s innovative approach to environmental licensing. Finally, it discusses enforcement of environmental law and the provision of environmental information.
Key findings and recommendations
Significant progress has been made in the legal and institutional framework for environmental policy in Peru in the period under evaluation. That progress has occurred in two main directions: (i) the bulk of environmental responsibilities, which had been in the hands of sector authorities, were transferred to a new environmental institution, the Ministry of the Environment, created in 2008; and (ii) as part of the decentralisation process, environmental responsibilities were transferred from the national government to subnational and local authorities. The effect of these reforms has been to modernise environmental policy and bring about a better balance between Peru’s sustainable development objectives and its sectoral and territorial aspirations.
As part of this process, Peru has created a number of new technical agencies specialised in environmental issues. These include the National Water Authority (ANA), the Agency for Supervision of Forest Resources and Wildlife (OSINFOR), the National Forestry and Wildlife Service (SERFOR), the National Service for State-Protected Natural Areas (SERNANP), the National Service of Environmental Certification for Sustainable Investments (SENACE), and the National Institute for Research on Glaciers and Mountain Ecosystems (INAIGEM). At the same time, the Ministry of the Environment has significantly strengthened its policies and institutional arrangements for coping with climate change.
In the framework of the decentralisation process, the sector authorities have transferred their environmental and land-use planning functions to the regional and local governments. The Ministry of the Environment co-ordinates with these bodies, primarily through the Regional and Municipal Environmental Commissions, which serve as a forum for dialogue and co-ordination among State entities and civil society for addressing environmental issues of regional or municipal concern. The assumption of responsibilities by subnational and local bodies has yielded uneven results, depending on regional and local capacities and resources. Some regional governments have been very pro-active in developing environmental and territorial governance tools, while others have achieved rather poor outcomes. For this reason, it is essential to foster a better territorial balance by supporting those regional governments most in need of strengthening in their technical and financing capacities.
In the context of transferring environmental responsibilities from sector authorities, two important institutions have been created in key areas of environmental management: SENACE is the environmental certification agency, combining the granting of environmental permits with environmental assessments, while the Environmental Assessment and Enforcement Agency (OEFA) conducts environmental audit and enforcement activities.
There are three types of environmental assessment, depending on the impact of investment projects: the Environmental Impact Statement (DIA), the Semi-detailed Environmental Impact Study (EIAsd), and the Detailed Environmental Impact Study (EIAd). In each case there are legally determined time limits for completing the assessment process. SENACE was created in December 2012 and, as an integral part of its mandate, it evaluates the environmental impact of larger-scale projects, i.e. those that require an EIAd. The transfer of assessment functions from the sector authorities is still a work in progress. In this transition stage it is very important to carry over technical know-how, good practices and lessons learned from the institutions previously responsible for this area.
This institutional change, as a result of which environmental certification is now handled at a single window, encourages intersectoral co-ordination. Nevertheless, the expedited processing of environmental certification to promote investment and economic growth must not be allowed to jeopardise the objective of environmental protection pursued by the environmental impact assessment system. Environmental certification time limits, participatory processes for environmental assessments, and amendments to environmental impact assessments should all be the subject of detailed examination, taking into account the objectives of green growth as well as the outcomes of the assessments under way.
In recent years, Peru has made a significant effort to strengthen environmental enforcement through OEFA, the lead agency in the National Environmental Assessment and Oversight System (SINEFA), whose purpose is to enforce environmental legislation. OEFA supervises compliance with environmental regulations directly in four sectors: (i) medium- and large-scale mining, (ii) hydrocarbons and electricity, (iii) commercial fisheries and large-scale aquaculture, and (iv) the brewery, papermaking, cement and tannery industries. It also supervises the 12 environmental enforcement entities of national scope, the 25 entities of the regional governments and the local entities (1 838 provincial and district municipalities). The environmental enforcement budget rose from USD 16 million in 2012 to USD 71 million in 2015. This has allowed OEFA to significantly increase direct auditing of firms in the four sectors under its responsibility, as well as supervision of the other environmental enforcement entities. The maximum level of fines for non-compliance has also been increased threefold.
Official government policies include a commitment to promote a strategic, integrated, effective and efficient process of land-use planning and management which will ensure human development and the sustainable use of the territory. Many references to territorial governance of a political, legal and technical nature are rooted in the Constitution itself and in the 2002 constitutional reform that paved the way for decentralisation.
Land-use planning makes use of tools such as Ecological and Economic Zoning (ZEE), a technical tool for characterising territories, in particular their physical and biological aspects, and Specialized Studies (EE), which can identify and analyse social and economic dynamics, changes in land use and population. The integration of ZEE with EE constitutes an Integrated Diagnostic Territorial Assessment (DIT). This chain of technical instruments has been planned with a view to preparing Land-use Plans (POT) that will identify the potentials and limitations of a territory and its natural resources.
Yet there are a great many legal provisions relating to land-use planning, which apply to different fields and overlap, making it difficult to understand their legal scope and force. Those legal rules include the Bases for Decentralisation Law, the Organic Laws for Regional Governments and Municipalities, the General Environment Act, the regulations to the framework law on the national environmental management system, as well as provisions governing domestic and foreign investments. With respect to policies, there is the National Environmental Policy, the Policy Guidelines for Land-use Planning and the Proposed National Strategy for Ecological-Economic Zoning. There are also guidelines of a technical nature.
Among the issues concerning effective application of land-use planning are: (i) legal dispersion, which creates uncertainty as to the true legal scope of the Land-use Plans, especially when they are seen as obstacles to investment projects; (ii) the leadership of the environmental authority has been key in driving the processes, but there needs to be closer articulation with other areas of the national government and with subnational and local bodies, as development planning processes go well beyond the environmental perspective; and (iii) problems with the delimitation of responsibilities and co-ordination between the national government and the subnational and local authorities. There has been significant progress: 13 of the 24 regions and the Province of Callao have already approved their ZEE. Nevertheless, there is a need to define clearly a national land-use planning strategy and to devise a law which will integrate many of the issues that today seem dispersed, which will clarify its legal force vis-à-vis other government policies, with broad institutional backing, and which will allow articulation both among sectors and with the subnational governments.
Some of the most pressing environmental problems, such as deforestation (between 2003 and 2013 some 1.3 million hectares were lost in Amazonia) and land degradation, are directly related to the lack of formalised ownership of the land. This lack of legal certainty increases the likelihood of predatory behaviour in search of immediate profits, eschewing long-term investments that would boost productivity while conserving natural capital. It is also a source of disputes and occasionally of violence.
According to the Peruvian Agricultural Census, in 2012 there were around 1 million farmers (45% of the total), 1 000 indigenous communities and 800 rural communities without land title. The Sierra and Selva regions are home to the majority of farmers in this situation.
The process of formalising land ownership has seen some important institutional changes since 1991, including the creation of an umbrella institution associating the Special Project for Land Title (PETT) and the National Superintendency of Public Registries (SUNARP). Responsibilities for issuing land titles were shifted to the Ministry of Housing (2007) and subsequently to the local governments (2010), prior to creation (in 2014) of the Directorate for Rationalization of Agrarian Property and Rural Land Registry (DSPACR) within the Ministry of Agriculture. At the present time the third stage of the project Cadastre, Titling and Registration of Rural Lands in Peru is under way, with the objective of enhancing rural landholding security in the Selva and in targeted zones of the Sierra.
The Ministry of the Environment is the body responsible for administering the National Environmental Information System (SINIA). SINIA embraces the regional and the local environmental information systems (SIAR and SIAL, respectively), administered by the respective government bodies at the regional and local levels. The legal standards provide that public institutions that generate information at the national, regional and local levels must provide the Ministry of the Environment with information that is relevant for SINIA. Other agencies also contribute to SINIA: these include the National Water Authority, which is responsible for the National System of Information on Water Resources (SNIRG) and the National Meteorology and Hydrology Service (SENAMHI), responsible for hydrometeorological information. The creation of the National Institute for Research on Glaciers and Mountain Ecosystems (IANIGEM) has been an important step, considering the strategic nature of these natural features in the context of climate change. Furthermore, data from OEFA are interoperable with SINIA. Peru has begun to implement the Pollutant Release and Transfer Register (PRTR) and is developing a national system, known as INFOCARBONO, to prepare greenhouse gas inventories. Information from SINIA is used to prepare an annual report on environmental figures, entitled Cifras Ambientales, covering a number of environmental variables, and the Peruvian government publishes a national report on the state of the environment every two years.
There are still however some major information gaps which hinder policy design and implementation. An example is the system for monitoring air quality in zones where there are atmospheric pollution problems. There is also plenty of room for greater collaboration with the sectoral spheres, which generate useful information from the environmental viewpoint and which could play a more active role in supplying information to SINIA.
Access to environmental information is guaranteed by the Law on Transparency and Access to Public Information, established in 2003 and binding on all public institutions. At the regional and local levels, with support from the Ministry of the Environment, efforts are under way to create and implement regional environmental information systems (SIARs) and local environmental information systems (SIALs). At the end of 2013, a total of 21 regional governments (out of 24 plus the Constitutional Province of Callao) had begun to implement regional environmental information systems, although only 25 local governments (out of around 2 000) had taken steps to implement their local environmental information systems. Despite the existence information transparency mechanisms, the district and provincial municipalities have implemented very few measures to ensure transparency and access to public information. According to a report published by the Office of the Ombudsman, more than half (55%) of complaints filed against municipalities refer to lack of transparency in information.
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On the basis of the existing mandates and legal obligations, implement the horizontal and vertical institutional co-ordination necessary to improve the country’s environmental policy and management towards sustainable development, incorporating partial and sector-based perspectives. Strengthen the funding and technical capacities of subnational and local agencies with environmental responsibilities.
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Continue the process of strengthening and implementing the National Service of Environmental Certification for Sustainable Investments (SENACE) so it can facilitate efficient and independent environmental management through a one-stop window system and serve as a technical reference point for environmental impact assessment (EIA) studies. Ensure its financial sustainability (e.g. through licensing fees) and incorporate the technical know-how, best practices and lessons learned built up by the institutions that previously had responsibilities in that area.
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Consolidate and strengthen the oversight and control over activities that impact the environment and people’s health and quality of life. Ensure the financial and operational sustainability of the Agency for Environmental Assessment and Enforcement (OEFA) and the National Environmental Assessment and Oversight Service (SINEFA), and improve their co-ordination with the public prosecution service and the judiciary.
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Continue with the Ministry of the Environment’s efforts to pursue the processes of Ecological and Economic Zoning and Specialized Studies to direct them towards Integrated Diagnostic Territorial Assessments and Land-use Plans; enact a land-use planning law that consolidates the institutional framework and the existing instruments and integrate those processes to align the economic, sociocultural and environmental potential of territories with the use actually made of them. Complete the pending land-use planning processes and enforce the existing governance instruments. Ensure co-ordination with the watershed management plans of the National Water Authority.
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Step up efforts to rationalise the growth of cities through binding urban development master plans, preventing the illegal occupancy of areas of urban sprawl and ensuring co-ordination with transport planning at the local (urban traffic) and national (infrastructure) levels.
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Address the problems created by the informal sector, bearing in mind its impact on the ability to properly manage the conservation and protection of the environment and natural resources. Capitalise on the potential of activities related to the environment and the sustainable use of natural resources for job creation and increased formality.
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Continue strengthening the construction of the environmental information system and its use in public policy. Ensure the continuous, representative and mandatory reporting of basic environmental information with adequate and internationally standardised coverage (for example, records of pollutant emissions and transfers, levels of emissions and quality of media, biological indicators). Ensure the public’s timely and transparent access to environmental information published in the public domain, in compliance with existing legislation.
1. Environmental management governance structure
Peru is a constitutional republic with a unitary and decentralised system of government (Box 2.1). The Ministry of the Environment is primarily responsible for drafting and implementing environmental policies, although other areas and levels of government are involved.
1.1. Background and environmental policy changes
The legal and institutional framework for Peru’s environmental policy is rooted in the conservation and management of natural resources. The National Office for the Assessment of Natural Resources (ONERN) was created in the 1960s to foster agricultural development through investments in integrated watershed management, including erosion control and reforestation (World Bank, 2007). Major legal instruments of a sectoral nature were adopted in the 1970s, including the General Water Act and the Sanitary Code. In 1979, environmental considerations were included for the first time in the Constitution and the right to live in a healthy environment was recognised. The relevant provisions were ratified in the 1993 Constitution (Charpentier and Hidalgo, 1999), Chapter II (Title III, “The environment and natural resources”) of which stipulates that natural resources, renewable and non-renewable, belong to the nation and that the State is sovereign in their exploitation and promotes their sustainable use. The Code on the Environment and Natural Resources entered into force in 1990, setting forth principles and criteria for environmental management, including the prevention and “polluter pays” principles. It also establishes the obligation to carry out environmental impact assessments.
The National Environment Council (CONAM) was set up in 1994, a decentralised body attached to the Office of the President of the Council of Ministers and the lead agency for environmental policy. CONAM is the product of the State’s endeavours to create a body to co-ordinate environmental policymaking, although these policies were still the responsibility of sector institutions. The National Environmental Management System Framework Law (law No. 28 245 of 2004), adopted to ensure the effective achievement of the environmental goals of public entities, strengthened the institutional framework in this area and was consolidated in 2008 with the creation of the Ministry of the Environment. In the context of the decentralisation of environmental roles, this meant restructuring the relevant responsibilities without reducing those already assigned to regional and local governments.
During the period under consideration in this assessment, significant changes were made to the environmental legal and institutional framework. These changes had two main objectives: (i) to transfer the bulk of environmental responsibilities, including key sector audits and environmental assessments previously performed by sector authorities, to new environmental institutions; and (ii) to transfer environmental responsibilities from the central government to subnational and local authorities. The effect of these reforms has been to modernise environmental policy and to bring about a better balance between Peru’s sustainable development objectives and its sectoral and territorial aspirations.
As part of this process, Peru has created a number of new technical agencies specialised in environmental issues. These include the National Service for State-Protected Natural Areas (SERNANP), the Environmental Assessment and Enforcement Agency (OEFA), the National Service of Environmental Certification for Sustainable Investments (SENACE) and the National Institute for Research on Glaciers and Mountain Ecosystems (INAIGEM), all of which fall under the Ministry of the Environment. The Ministry of the Environment is also represented on the governing bodies of other new agencies under the Ministry of Agriculture and Irrigation, such as the National Water Authority (ANA) and the National Forest and Wildlife Management System (SINAFOR), which is overseen by the National Forestry and Wildlife Service (SERFOR). The Agency for Supervision of Forest Resources and Wildlife (OSINFOR), attached to the Office of the President of the Council of Ministers, also has important links with the Ministry of the Environment. Within the Ministry of the Environment, policymaking and efforts to develop institutions to tackle climate change have been strengthened considerably.
In addition, strategic environmental management instruments have been adopted at all three levels of government, including the State Policy on Environmental Management under the National Agreement (2002), the National Biological Diversity Strategy (2001), the National Climate Change Strategy (2003), the National Environmental Policy (2009) and the National Environmental Action Plan (PLANAA, 2011-2021) (2011).
In order to ensure the environmental and social sustainability of development, the Government of Peru adopted the strategic pillars of environmental management in 2012, which reflect national priorities and act as a framework to co-ordinate State involvement. The sector was strengthened by the adoption of the main guidelines of the 2013-2016 multi-year sectoral strategic plan (PESEM) and, in 2013, of the National Environmental Action Agenda, 2013-2014.
The decentralisation process, whereby sector authorities have transferred their environmental and land-use planning functions to regional and local governments, began in 2002 and has gone through different stages. The first stage, which ended in 2005, was to establish the institutional framework, but little progress was made on decentralisation. In the second phase, from 2006 to 2009, measures were taken to simplify procedures for transferring sectors’ functions, but resource allocations for this phase were insufficient. Since 2010 and in a reversal of the process, there has been a growing trend towards centralisation, particularly in public spending and, within that, investment spending. The 2015 budget shows an 11% reduction in resources allocated to local governments for environmental activities, together with a 5% increase in resources for the central government (Peru, Congress, 2015).
In this context, the results of regional and local governments taking on environmental responsibilities have been very heterogeneous. Subnational authorities with greater technical and political capacities and greater resources, have developed environmental and land-use planning instruments. Meanwhile, the results of other regional and local governments are disappointing, so support should be given to those whose technical and financial capacities need to be strengthened. The Ministry of the Environment works with subnational authorities, primarily through the regional and municipal environmental commissions, which serve as a forum for dialogue and co-ordination among State entities and civil society for addressing environmental issues of regional and municipal concern. Important milestones in the policymaking process and the establishment of institutions responsible for managing various aspects of the environment are set out below (Table 2.1).
Peru’s legal and institutional systems are described below (Box 2.1).
The Government of Peru is unitary, representative and decentralised. It is rooted in the principle of the separation of powers and is composed of an executive, a legislative and a judicial branch, which are all autonomous and independent.
Executive power rests with the President, who acts as Head of State and symbolises and represents the country’s permanent interests, and with the two Vice-Presidents. In his or her capacity as the Head of Government, the President is the driver of government policy and acts with the support of the representative of the political majority. The Council of Ministers and those Ministers whose portfolios cover certain areas are responsible for the oversight and management of public services.
Legislative power is exercised by Congress, composed of a single chamber that comprises 130 members elected by direct suffrage from multimember electoral districts, proportional to the population of each region. All congressional seats are contested every five years and the terms of office of the President and parliamentarians have the same duration.
The power to dispense justice emanates from the people and is administered by the judiciary through its constituent bodies, in accordance with the Constitution and laws. The Constitutional Court, responsible for overseeing compliance with the Constitution, is autonomous and independent, and is guided exclusively by its rulings and legislative provisions. This branch of the State is headed by the Supreme Court of Justice, which has jurisdiction over the whole country and is divided into judicial districts overseen by the Superior Courts of Justice. The justice system also comprises first instance courts, established in nearly all of the provinces. Justices of the peace are responsible for the administration of justice at the district level.
The National Judicial Council is an autonomous and independent body, responsible for the selection, appointment, confirmation and removal of judges and public prosecutors at all levels, except for those elected by popular vote, in which case the Council is only empowered to confer the title of judge upon them and remove them from office, when necessary, in accordance with the law. The Ombudsperson defends the constitutional and fundamental rights, of both individuals and communities, and ensures that public administration and public service officials perform their duties.
The Public Prosecutor’s Office is an autonomous State body, whose main responsibilities are to defend the law, citizens’ rights and the public interest, and to represent society at trial, by defending the family, minors and those declared to be incompetent, and the social interest, by safeguarding public decency, prosecuting crimes and obtaining civil redress. The Public Prosecutor’s Office has created, inter alia, prosecutors’ offices specialised in environmental matters, charged with preventing and investigating environmental crimes1. Their powers are largely preventive and refer in particular to the defence of the environment and natural resources, in accordance with the recognition that a healthy environment is a fundamental right. Their offices are at the headquarters of the judicial districts and are headed by a specialised provincial prosecutor. In 2016, there were 39 public prosecutors’ offices specialised in environmental matters and 14 offices for the criminal prosecution of environmental crimes.
As specified in law No. 27 785, the Office of the Comptroller General is the technical body responsible for the National Oversight System, which has administrative, functional, economic and financial autonomy and is tasked with efficiently and effectively managing and supervising government oversight, by focusing efforts on promoting managerial transparency and institution-building; promoting the values and responsibilities of public officials and civil servants; supporting the branches of State in decision-making processes; and helping citizens to participate in a timely manner in social oversight.
The territory of Peru is divided into departments, provinces, districts and population centres. It is composed of 24 departments and two provinces with special status —the Constitutional Province of Callao and the Province of Lima—as well as 196 provinces, which as of mid 2016 were further divided into 1 874 districts. A process of regionalisation is currently underway supported by incentives, chiefly fiscal, with the aim of creating new regional entities by merging two or more departments, to be confirmed by binding referendums. Meanwhile, the administrative decentralisation process also affects the economic sphere, most notably in the transfer of mining tax revenues to regional and local governments, which has led to an increase in municipal and regional investments. The National Decentralization Council, established pursuant to the Decentralization Act, is an independent body attached to the Office of the President of the Council of Ministers, which is responsible for overseeing and guiding the process.
Note1: [Online] http://www.mpfn.gob.pe.
Source: Organization of American States (OAS), “Legal System of Peru”, Hemispheric Information Exchange Network for Mutual Assistance in Criminal Matters and Extradition, 2009 [online] https://www.oas.org/juridico/mla/en/per/en_per-int-description.pdf.
1.2. Institutional framework
The Ministry of the Environment, created in 2008, is the lead agency for environmental management and, as such, is charged with formulating and implementing national policies on the environment and enforcing them. It also promotes the conservation and sustainable use of natural resources, biological diversity and protected natural areas, and carries out activities foreseen in national environmental regulations, which can be delegated to the relevant public bodies (Figure 2.1).
The national environmental policy (supreme decree No. 012-2009-MINAM) consists of four pillars. The first is the conservation and sustainable use of natural resources and biological diversity. The second (integrated environmental quality management) is linked to the “brown agenda”, which includes objectives related to pollution, air quality, chemical substances and hazardous materials. The third pillar (environmental governance) provides policy guidelines on institutional frameworks and environmental culture, education and citizenship. Lastly, the fourth pillar (international environmental commitments and opportunities) addresses trade and competitiveness.
Source: Ministry of Environment (MINAM), “Organigrama y funcionarios”, 2016 [online] http://www.minam.gob.pe/?el-ministerio=organigrama-equipo-funcionarios.
The National Environmental Management System (SNGA), headed by the Ministry of the Environment, brings together State institutions, bodies and offices of various ministries, decentralised public agencies and national, regional and local public entities responsible for matters related to the environment and natural resources, and regional and local environmental management systems. Both private sector and civil society entities can participate in the system (Figure 2.2).
The National Environmental Management System is composed of the National Environmental Impact Assessment System (SEIA), the National Environmental Information System (SINIA), the National System for State-Protected Natural Areas (SINANPE), the National Water Resources Management System (SNGRH) and the National Environmental Assessment and Oversight System (SINEFA). It is responsible for managing the natural resources in its area of specialisation, specifically biodiversity and climate change, and performs other environmental functions in accordance with the law.
The National Environmental Management System is made up of regional and local systems responsible for adapting environmental policy and standards to their jurisdictions. Related activities are carried out by the 25 regional governments of Peru and local governments, which are the environmental authority in their respective jurisdictions, and include the implementation of the regional government programme in the metropolitan area of Lima.
As part of the assessments of environmental policies and plans, a cost-benefit analysis is applied to regulations that have the force of law, general administrative regulations (supreme decrees), environmental management instruments (including, decontamination plans) and the methodology used to calculate environmental fines. When an economic value cannot be put on costs or benefits, they must be ranked in order of magnitude or importance.
Note:SRGA stands for Regional Environmental Management System.
Source: Ministry of Environment (MINAM), Sistema Nacional de Gestión Ambiental, Lima, 2013.
Since 2005, plans and programmes have been the subject of strategic environmental assessments (EAE), considered to be policy instruments, at the development stage. A draft regulation on the matter is currently being processed for approval and some EAEs have been carried out in the areas of transport, energy, mining, tourism and other territorial-level sectors, but, at the time of writing, the Ministry of the Environment had not approved any of them.
In addition to the Ministry of the Environment, two important institutions have been created as part of the process of transferring environmental responsibilities from sector authorities: the National Service of Environmental Certification for Sustainable Investments (SENACE) and the Environmental Assessment and Enforcement Agency (OEFA).
Environmental assessments and oversight
Environmental impact assessments are one of the most important environmental policy instruments and are carried out for three types of projects. If the investment project is a category I project, the relevant authority must issue an environmental certification, by virtue of which the preliminary assessment is approved, which becomes an Environmental Impact Statement (DIA). This is the case for projects whose implementation would not cause significant negative environmental impacts. Other public investment projects may be classified as category II or III projects by the relevant authority, which then approves the terms of reference that will be considered when preparing a Semi-detailed or Detailed Environmental Impact Study (EIA). All assessments must be carried out within the legally determined time limits established for each category. Category II includes projects whose implementation may cause moderate environmental impacts and whose negative effects can be eliminated or minimised through easily applied measures. Category III refers to those projects that may cause significant quantitative or qualitative environmental damage. Between 2003 and 2014, 6 816 environmental studies were approved, 54% of which were environmental impact statements, 25% were detailed studies and the rest were semi-detailed studies (Table 2.2). Of those studies, 41% focused on the mining sector and 29% on the energy sector account. Assessments prior to 2003 were carried out by the relevant sector authorities.
The National Service of Environmental Certification for Sustainable Investments (SENACE) is responsible for examining and approving the environmental impact studies for public, private and mixed capital investment projects that, due to their larger scale, must be the subject of a detailed environmental impact study. Before SENACE was created, sector authorities were responsible for carrying out these project assessments, which gave rise to conflicts of interest. That role is now being transferred following a predetermined timetable. As SENACE was set up in 2012, its performance cannot be assessed yet, although some observations on its operations are set out below.
The environmental impact assessment system must provide technical and independent assessments of investment projects; it must be agile, equipped with the necessary means for making decisions in a reasonable time and must encourage active social participation. The environmental certification one-stop window service provided by SENACE complies with these requirements and boosts intersectoral co-ordination through its governing body, comprising the relevant ministries. In order for the system to work properly, it must have technical capacities and financial resources to meet the legal deadlines. As part of the transition process, it is crucial to incorporate the technical know-how, best practices and lessons learned built up by the institutions that previously had responsibilities in that area. The institutional changes made, according to which the responsibility for defending stakeholders’ interests is spread more equitably, should help to reduce socio-environmental conflicts.
The Environmental Assessment and Enforcement Agency (OEFA), which ensures compliance with sector legislation, is the governing body of the National Environmental Assessment and Oversight System (SINEFA). In addition, it directly oversees the application of environmental regulations in four sectors: (i) medium- and large-scale mining; (ii) hydrocarbons and electricity; (iii) commercial fisheries and large-scale aquaculture; and (iv) the brewery, papermaking, cement and tannery industries. It also supervises the 12 environmental enforcement entities of national scope, the 25 entities of the regional governments and the local entities (1 838 provincial and district municipalities). The environmental enforcement budget rose from US$ 16.3 million in 2012 to USD 71.3 million in 2015, which has allowed OEFA to significantly increase direct auditing of firms in the four sectors under its responsibility—up from 1 042 in 2011 to 2 834 in 2014. The number of firms audited by other oversight bodies in the same period rose from 249 to 980.
Direct audits can identify alleged infractions, classified as moderate, critical or major. In the case of critical or major infractions, an administrative procedure must be carried out to impose sanctions. Figure 2.3 sets out the cases resolved by OEFA. In 2014 and 2015, most of the resolved cases involved the mining and hydrocarbon sectors (a total of 84% in 2014 and 73% in 2015) (OEFA, 2016).
Source: Environmental Assessment and Enforcement Agency (OEFA), Memoria Anual, 2011, 2012, 2013 and 2014.
OEFA is authorised to impose fines and corrective measures. When calculating the fines, a specific methodology is used, taking into account aggravating and mitigating factors, so that the process can be adapted to objective criteria and limits the discretion with which fines are imposed. Some of the mitigating and aggravating factors considered are the severity of the damage, determined inter alia by whether they can be reversed, their geographic extent and the effect on protected areas; the economic impact, which depends on the level of poverty in the area and the number of sources of pollution or elements of the environment involved; and the offender’s behaviour (repeat offender, voluntary remediation and intent). Figure 2.4 presents quantitative information on fines imposed by OEFA in 2011-2014.
Note: In 2014, a tax unit (TU) was equivalent to 3 800 Peruvian sol. The value is updated every year on 31 December.
Source: MINAM (2015).
Note: Measures as of 31 August 2015. a) Prior to the entry into force of law No. 30/230. b) After the entry into force of law No. 30/230
Source: MINAM (2015).
Corrective measures require those responsible for an infraction to contribute economically to the rehabilitation of the environment, so that, as far as possible, it is returned to its original state. Failure to comply with a corrective measure leads to a fine being imposed on the offender. Law No. 30230, enacted in 2014, prioritises the adoption of corrective measures and states that fines shall only be imposed in the event that offenders fail to comply with those measures. Since the law entered into force, the number of corrective measures imposed has increased considerably (Figure 2.5), while the number of fines has decreased.
Horizontal and vertical co-ordination
There are institutional mechanisms for co-ordination, consultation and decision-making in environmental matters at all levels of government. Both public and private entities participate in those mechanisms. The main horizontal co-ordination mechanisms between the Ministry of the Environment and other national institutions are described below.
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The Council of Ministers: responsible for making decisions related to the national environmental policy, establishing protected areas and drafting environmental legislation.
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The Co-ordinating Committee of Deputy Ministers: responsible for approving draft multisectoral legislation, linked to the portfolios of at least two ministries or that must have the consent of the Council of Ministers.
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The Multisectoral Environmental Committee: responsible for technical co-ordination and consultation on environmental issues among different sectors and levels of government.
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The Advisory Environmental Committee: a standing body that reports to the Ministry of the Environment and promotes dialogue and co-ordination on environmental matters between the State and society. It is also responsible for providing advice and opinions on the policies, strategies and plans submitted by the Ministry of the Environment for the Committee’s consideration, and for reviewing and responding to the Ministry’s queries. This Committee is composed of professionals or experts from the sectors involved in implementing environmental policies and achieving their objectives.
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Multisectoral committees: responsible for monitoring, co-ordinating and assessing multisectoral matters. In the past, committees of this type were set up to examine, in a concerted and co-ordinated manner, matters linked, inter alia, to the development of strategic guidelines and socio-environmental conflicts. In early 2016, the Ministry of the Environment was represented on 119 multisectoral committees on environmental issues, most of which were standing committees.
With regard to vertical co-ordination, the main inter-institutional mechanisms in which subnational entities participate are the following:
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Regional and municipal environmental commissions: forums for dialogue and co-ordination among the State and civil society for addressing environmental issues of regional or municipal concern. Currently, all regional governments have such a commission.
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Technical groups on environmental matters: technical co-ordination bodies, such as the groups for carrying out technical environmental studies on air quality (GT-GESTA Zonal de Aire) and water resources councils, among others.
As is the case at the regional level, local environmental institutions are in the process of being strengthened. Before 2013, 342 municipal environmental commissions were created through municipal ordinances, covering around 19% of the country’s provincial and district municipalities.
In connection with horizontal and vertical co-ordination, the National Climate Change Committee is composed of several ministries and agencies, representatives of non-governmental organisations, universities, the National Assembly of Regional Governments and the National Council of Chairs of Professional Associations, among others.
Environmental information
The National Environmental Information System (SINIA) is a mechanism to support the implementation of the National Environmental Management System. It is composed of networks and databases that can be grouped into two broad categories: (i) thematic information, which includes aggregated data on certain aspects of the environment; and (ii) territorial information, which includes aggregated data on the environmental situation in specific geographical units. The Ministry of the Environment is responsible for managing SINIA, which includes regional and local environmental information systems, administered by regional and local governments.
SINIA compiles environmental information produced by the following bodies: the National Water Authority (ANA); the National System of Information on Water Resources (SNIRG); the National Meteorology and Hydrology Service (SENAMHI), responsible for compiling hydrometeorological data, and the Geological, Mining and Metallurgical Institute (INGEMMET). It also has links with international services, including that of the United States’ National Aeronautics and Space Administration (NASA) to monitor heavy rains and forest fires. The National Institute for Research on Glaciers and Mountain Ecosystems (INAIGEM) was created recently, in view of the vital importance of those natural features. The Ministry of the Environment is developing a national system to prepare greenhouse gas inventories, called INFOCARBONO, which complements the database on the volume of emissions. The Pollutant Release and Transfer Register (RETC) was launched in 2014, which contains information on both aspects, especially pollutants from economic activities, particularly the most dangerous one, and the associated risks. In Peru, all companies not listed as small or micro-businesses must report on this matter. This standard is being gradually introduced, as new economic sectors are constantly being added.
The SINIA webpage provides information on elements of the environment, biodiversity, solid waste and mining activities, among other things. The information consists of environmental indicators, thematic maps, entire documents, reports on the state of the environment, reviews of environmental legislation and related material. SINIA also publishes an annual report on environmental figures, entitled Cifras ambientales, and the government produces the national report on the state of the environment every two years. As part of the process of transferring sector authorities’ responsibilities to the Ministry of the Environment, there is room for greater collaboration between SINIA and sector authorities, which generate useful environmental information. Meanwhile, although noteworthy advances have been made in providing information, there are still gaps that hinder policy design and implementation. A good example of this is the limitations of the air quality monitoring system in areas affected by air pollution.
In accordance with the provisions of the Law on Transparency and Access to Public Information of 2003, all public institutions shall guarantee access to environmental information. Regional and local environmental information systems are being established with the support of the Ministry of the Environment. In 2016, 24 regional governments and 65 local governments had such systems, authorised by and interconnected with SINIA. Despite the existence of information transparency mechanisms, the district and provincial municipalities have implemented few measures to ensure transparency and access to information. According to a report published by the Office of the Ombudsperson, more than half (54.6%) of complaints filed against municipalities refer to the lack of in information. Of all complaints filed, 17.4% referred to education entities, 6.2% to healthcare providers and 4.8% to regional governments.
Land-use planning
Land-use planning is mentioned in the constitution, in documents related to the 2002 constitutional reform that paved the way for decentralisation, and in multiple political, legal and technical texts. It is a process led, in most cases, by an environmental authority and that, in addition to the unquestionable progress made, shows political and legal problems, related mainly to its applicability and to the uncertainty surrounding the hierarchy between the process and other legal instruments.
Land-use planning in Peru is overseen by the ecological and economic zoning processes (ZEE), which identifies the potential and limitations of a territory and its natural resources. The following categories are established on the basis of various criteria (productive, bioecologial and cultural value; vulnerability; conflicts over land use; and suitability for urban and industrial use): (i) zones most suitable for productive use; (ii) ecological protection and conservation zones; (iii) special treatment zones; (iv) rehabilitation zones; and (v) urban or industrial zones. There are three categories in geographical terms: (i) macrozoning (national, macroregional and regional); (ii) mesozoning (regional spaces, river basins or specific areas); and (iii) microzoning (local areas). ZEE is the basis for developing territorial governance policies and plans which, in turn, become national, regional and local development plans.
There are a great many legal provisions relating to land-use planning, which apply to different areas and overlap, making it difficult to understand their legal scope and force. These provisions range from laws on decentralisation and the environment to regulations on regional and municipal governments’ powers and on domestic and foreign investments. In this context, law No. 30230 is of particular interest, as it made it possible to adopt tax measures and to simplify the mechanisms for granting permits in order to give a greater impetus to investments, but which limits land-use planning. On the normative front, the National Environmental Policy, the Policy Guidelines for Land-use Planning and the proposed National Strategy for Ecological-Economic Zoning are notable. There are also technical guidelines, such as those in the Guía Metodológica para la elaboración de los instrumentos técnicos sustentatorios para el ordenamiento territorial (MINAM, 2010) and in the “Directiva guía metodológica de la zonificación ecológica y económica” (MINAM, n/d).
Important questions have been raised with regard to the effective contribution of land-use planning to sustainable development, which allude to the following issues, among others:
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legal dispersion and uncertainty about the true legal scope of land-use plans, especially when they are seen as obstacles to investment projects;
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environmental bias in land-use planning, as it is the responsibility of environmental authorities. This must be corrected by strengthening co-ordination with other areas (economic and social, among others) of the national government and with subnational and local bodies;
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problems with the delimitation of responsibilities and co-ordination between the national government and subnational and local authorities.
As shown in Figure 2.6, significant progress has been made in the ecological and economic zoning process in several departments. Nevertheless, a national land-use planning strategy must be clearly defined, to integrate many of the issues that today seem dispersed and to clarify its legal force in relation to other government policies. It should also have broad institutional backing and facilitate co-ordination both among sectors and with subnational governments.
Bibliography
Charpentier, S. and J. Hidalgo (1999), Las políticas ambientales en el Perú, Lima, Agenda Perú.
MINAM (Ministry of the Environment) (n/d), “Directiva guía metodológica de la zonificación ecológica y económica”, unpublished.
(2015), ESDA. Estudio de desempeño ambiental 2003-2013, Lima [online] http://www.minam.gob.pe/esda/.
(2013), Sistema Nacional de Gestión Ambiental, Lima.
(2010), Guía metodológica para la elaboración de los instrumentos técnicos sustentatorios para el ordenamiento territorial, Lima.
OAS (Organization of American States) (2009), “Legal System of Peru”, Hemispheric Information Exchange Network for Mutual Assistance in Criminal Matters and Extradition [online] https://www.oas.org/juridico/mla/en/per/en_per-int-description.pdf.
OEFA (Environmental Assessment and Enforcement Agency) (2016), Tribunal de Fiscalización Ambiental. Memoria 2014-2015, Lima.
Peru, Congress (2015), Evaluación del proceso de descentralización. Informe anual 2014-2015, Lima.
World Bank (2007), Environmental Sustainability: A Key to Poverty Reduction in Peru, Lima [online] http://documents.worldbank.org/curated/en/896441468296943537/pdf/401900PE.pdf