Constitución Política del Perú 1993 (Spanish Edition)
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We grouped policies for the review as follows: General policies that apply to all projects: environmental acts, general EIA, and habitat-specific laws and regulations , and Sector-specific mining, hydrocarbons, energy electricity , transport infrastructure i. All the projects covered under these policies also have to follow the requirements set by general laws and regulations, so the sectorial provisions supplement the general ones.
Our assessment of the environmental licensing processes of the seven countries identified four Brazil, Colombia, Mexico and Peru that have developed specific policies that regulate offset implementation Table 1. For these four countries we focused on the following laws that dictated offset usage:. In Brazil projects subject to environmental licensing must offset their impacts on environmental assets.
Impacts on Protected Areas Law of , caves Decree of and coastal native vegetation Decree of shall always be offset, although the environmental authority IBAMA may require the developer to offset any other residual impacts identified. In addition to these laws, Law of on the Protection of Native Vegetation regulates offsets for impacts to native vegetation, although these are not required for obtaining an environmental license so we will not examine it in this paper. In this case, our review will focus on the framework first set by Law of see Table 1. In Colombia projects subject to EIA must offset their impacts on terrestrial ecosystems as regulated by Resolution of and freshwater Law 99 of , Decree of and Decree of In addition there are some offset requirements for impacts to forests Decree of as well as several specific activities Resolutions that implement TORs for elaborating EISs, see Table S1.
However, these latter policies only address a few aspects related to offset implementation, so they cannot be considered equal to the law focused on terrestrial ecosystems. For this country we will focus the review on this framework see Table 1. In Mexico the Sustainable Forest Development Act of requires offsets for impacts that result in land-use change to forested areas.
The recently enacted Environmental Liability Act also requires offsets, but only when impacts are not predicted or approved in the EIA and are deemed an environmental offence. Since this is not a part of the environmental licensing process we have not included it in our assessment. Neither of these two laws can be considered a specific offset framework since they only enable the use of offsets but do not make any specific requirements or guidance for when or how they should be used.
In Peru a new law about to be passed requires offsets for certain projects subject to EIA, and provides details on how such measures shall be implemented. Although the law is not currently enacted, we have included it in this study since it establishes a new offset framework that is different from the other country level programs. Offset design is a complex process that entails multiple challenges. Several principles have been outlined to guide this process, the most widespread being the ones set by the Business and Biodiversity Offsets Programme BBOP .
However, applying theoretical guidance into practice often proves difficult, as when trying to translate best practice principles into effective policy requirements. Several challenges, which may be especially tricky for policy making, have been identified and discussed in the scientific literature see  , . We want to contribute to this discussion by evaluating how the selected policies deal with these challenges, and how the theory we know may help improving legal frameworks. Following the approach outlined in McKenney and Kiesecker  and Bull et al.
Following these principles we identified twelve criteria which include most of the ones listed by the above cited references, plus two additional ones that we used to assess the current state of offset frameworks in our four target countries Table 2.
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All the surveyed countries have national-level EIA laws or regulations that cover all the habitats present in their territories. In addition some have also developed specific EIA or environmental management regulations for particular types of development, e. As Figure 2 shows, most environmental policies related to licensing processes in the reviewed Latin-American countries have been enacted in the last ten years. None of the countries have explicitly established a general goal of no-net-loss or net-gain for the EIA process.
Only the general EIA regulations of Chile, Colombia and Mexico specifically mention the complete mitigation hierarchy avoid, minimize, restore, offset although none of them explicitly requires adherence to it. The graphic represents the number of policies related to the environmental licensing system enacted per year on each of the studied countries. Revoked policies have not been included. Some sector-specific policies require the assessment of impacts from a landscape perspective see Table S1 , but for most the scale of impact assessment is not clearly stated.
Only Brazil, Chile and Peru include provisions for assessing indirect impacts as part of their general EIA policies, although Argentina and Colombia add that requirement in some of their sectorial policies roads and hydrocarbons, respectively. Although Argentina includes assessment of cumulative impacts under Law of on native forests and some sector-specific policies. When it comes to how to evaluate impact significance Argentina, Brazil, Colombia and Peru provide some guidance, although only Colombia and Peru include that in their general EIA policies.
In most cases, this guidance consists of a list of environmental assets that should be tackled in impact evaluation e. However, more detailed guidance can be found in some sector-specific regulations, especially in the case of Argentina see Table S2 for details.
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Avoidance: Our results indicate that environmental licensing provisions targeted at the hydrocarbon sector have the strongest requirements for avoidance of impacts followed by provisions targeted at all energy-related development. These sectorial policies frequently include guidance and recommend activities to avoid impacts, although these requirements vary greatly among countries.
The rest of sectorial policies do not seem strong regarding avoidance Figure 3 , and in some countries specific policies for certain sectors have not been found Table S1. Apart from this, most provisions related to impact avoidance are found in habitat-specific or protected areas policies, which establish general thresholds for what can or cannot be done in certain habitats such as wetlands or in proximity to protected areas.
Minimization and Restoration: Similar to avoidance it is laws directed at the energy sector that includes the highest percentage of provisions regarding minimization and restoration.
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For most countries no provisions for minimization or restoration requirements are found in the other sectors. Many of the provisions that refer to minimization or restoration in the general environmental licensing process occur in reference to habitat-specific documents. Most commonly, those policies set a list of environmental assets that shall be restored if negatively impacted.
While a few laws make specific recommendations for certain projects it is typically in reference to how those activities shall be carried out or establish performance standards to be met e. See Table S4 for details. Offsets: Although most countries enable the use of offsets only Brazil, Colombia, Mexico and Peru explicitly require their implementation for specific impacts. In Chile some basic provisions are established in the national EIA regulation see Decree 40 of , although more specific guidance is being developed by the Ministry of the Environment.
Detailed guidance is provided by Brazil, Colombia, Mexico and Peru all of which have specific regulations regarding offsets. These countries all include regulations that are already implemented or in the case of Peru are about to be passed into law. None of these regulations is sector-specific. While Brazilian and Mexican policies are aimed at impacts to specific natural assets, Colombia and Peru have a broader scope. For more details see section on offsets below.
Monitoring: While all countries require the use of EIA and many have requirements that emphasize the use of offsets few have explicit language requiring monitoring of development impacts and mitigation activities. Some countries add provisions specific to particular sectors explicitly requiring post-project monitoring, but such information is lacking in most general-scoped EIA policies.
Several of the documents that make provisions for monitoring require specific activities to be included in the plan schedule, indicators, human resources, etc. Some policies state when the monitoring activities should be performed e. Brazilian and Mexican schemes are the first for which specific offset policies were enacted and in turn include a relatively high number of policy documents especially in the Brazilian case.
In marked contrast the Colombian and Peruvian frameworks are recent, and have few policy related documents See Table 1 and Figure 4. Here we consider the aspects of country-level offset policies highlighting aspects that promote conservation outcomes. Table 3 summarizes the results that are described below with more detail. Includes both current and revoked policies.
Political Constitution of Peru , as amended to
In Brazil all projects subject to EIA can utilize offsets and those EIAs shown to cause negative impacts on protected areas must implement offsets according to the scheme set by Law The effective implementation of the offsets can be carried out either by the developer Normative Instruction 20 of , article 11 or by the agency responsible for managing the protected area ICMBio [Chico Mendes Institute for Biodiversity Conservation] in the case of Federal Protected Areas. In Colombia offsets are required for all projects subject to EIA that cause significant impacts on terrestrial ecosystems Resolution of , second article.
The developer of the project is responsible for implementing the offsets, although the location is decided by the National Environmental License Authority ANLA in accordance with the provisions set in the regulation . The newly enacted framework provides guidance for offset design and includes a series of rules developed for selecting offset sites that meet the conservation needs of potentially impacted biological targets i. In Mexico offsets are always required for land-use change in forest areas Ley General de Desarrollo Forestal Sustentable The agent responsible for offset implementation is the National Forest Commission CONAFOR by its Spanish acronym Reglamento de la Ley General de Desarrollo Forestal Sustentable , which decides the allocation of offset funds in projects implemented by different entities agrarian communities, land owners, public administrations, research and education institutions and NGOs among others.
There are no requirements for integrating offset activities into broader conservation priorities, and payment to the Mexican Forest Fund is the only tool enabled for developers to comply with the legal requirements regarding offsets Ley General de Desarrollo Forestal Sustentable In Peru most projects subject to EIA would be covered under the new law, although this is subject to the discretion of the Ministry of Environment and EIAs can be exempt from inclusion. The proposed law establishes that the developer be responsible for implementing the required offsets.
Offsets are not required to be integrated into existing conservation priorities. While the law enables the developer to directly implement offsets, it also makes provisions for the creation of conservation banks. Our review of the key offset criteria Offset Goal, Offset Currency, Equivalence, Offset Timing, Time lag, Offset longevity, Uncertainty, Thresholds, Additionality, Linking offsets to Landscape-level conservation goals, Monitoring suggests that relative to the idealized form of the regulations there are both situations when criteria appear to conform and many opportunities where regulations can be improved.
Offset Goal: not all the reviewed frameworks explicitly state the objective of compensatory mitigation, and only Peru and Colombia set no-net-loss and net-gain of biodiversity as goals for offsets. Offset Currency: acreage seems to be the most common currency for calculating the equivalence between impacts and offsets. None of the reviewed Latin-American frameworks incorporates ecological function e.
Regulatory guidance on this issue has yet to be developed for Peru.