Perspectives on Legislation and Regulation in Latin America and

the Caribbean

Keith E. RipleyTemas Actuales LLC

www.temasactuales.comwww.temasactuales.comkeith.ripley@verizon.net

Big Picture – The Takeaway Points

• Corporate environment polices need to avoid perception traps about LAC’s legislation, control entities and enforcement, and fully take into account its complexities (including the federal republics, the urge to harmonize, the growing role of media and NGOs, some unique factors in Brazil).

• LAC legislators borrow heavily from Europe, regulators heavily from international standards, but both increasingly from other LAC nations.

• LAC is already very active on batteries and packaging, increasingly so on WEEE and lamps. RoHS is lagging but that may change in near future.

Common Perception Traps about Environmental Policy in Latin America and the Caribbean (LAC):

• Many LAC nations lack primary environmental legislation (laws), and those that have it have not issued the necessary secondary legislation (decrees, regulations) to guide compliance, so they are not implemented.

• Most LAC nations lack a strong and technically competent executive entity to guide environmental policy.

• Most LAC nations do not do not “give teeth” to their rules through regular inspections or audits and meaningful penalties even where implementing regulations exist.

• LAC policymakers tend to copy mostly US environmental laws and regulations.

Perception Trap #1: Little Primary and Secondary Environmental Law in LAC

• Some LAC nations had framework environment laws as early as 1970s; most however adopted them in the 10 yrs. after the Earth Summit in 1992. Now all but smaller English-speaking Caribbean nations have them.

• Across LAC laws commonly claim to be take effect upon or soon thereafter being published in the official gazette.

• However, commonly not enforced until an implementing decree or regulation is issued providing compliance guidance. These are habitually late, sometimes taking years. But once in-place, you are on notice.

Perception Trap #1 - 2

• Notable exceptions to aforementioned rule-of-thumb: several cases in Brazil where direct application of laws themselves served as the basis of court, out-of-court and penalty actions even without full implementing legislation.

• Over the last few years LAC nations have steadily filled in gaps in implementing legislation. A notable remaining gap across-the-board, however: chemicals regulation.

Perception Trap #2 – Lack of Competent Executive Environment Entities

• Fairly true 10 yrs ago, when many had small, weak entities, if at all, with few technically competent staff.

• No longer the case, except for Haiti.• A few entities, however, remain tiny, with

limited clout and hindered by their subservience to Ministries with other political priorities.

Perception Trap #3: No “Teeth” to LAC Environmental Enforcement

• Several nations have adopted or are considering an environmental crimes law (as in Brazil’s 1998 law) or an environmental penal code.

• Many nations have toughened penalties to include long prison terms, high fines, and in some cases, the state’s right to seize property or shut down plant operations permanently in case of noncompliance.

• Several nations have created special environment police, or trained and funded special environment units of existing police.

• More and more nations have prosecutors devoted to environment issues; some are forming specialized courts too.

Inspection and Enforcement - 2

• Many are beefing up their inspection programs with help from US-EPA, EU, World Bank, IDB and PAHO in training national inspection teams and designing enforcement programs.

• Many LAC nations are active participants in the International Network for Environmental Compliance and Enforcement (INECE).

• Brazil and Chile allow citizen suits against institutions or firms not complying with environmental laws (Brazil even allows suits against government officials for failure to enforce environment laws). Other nations are considering similar legislation.

• Some (Argentina, Brazil, Chile, Mexico) are considering legislation to allow class action suits on environment issues.

Inspection and Enforcement - 3 • Enforcement authorities, still unable to scrutinize

everyone regularly, increasingly looking to “send a message” through enforcement actions against high-profile targets.

• Some notable examples: $6,000/day fines to get lamp industry to negotiate recovery agreements with Paraná; closing of Cancún beach; RJ raid of supermarkets with TV cameras to enforce plastic packaging law.

• This is one reason why more and more MNCswith high brand profiles are becoming proactive.

Perception Trap #4: LAC Simply Copies US Legislation

• Mexico is of course heavily influenced by US because of economic ties and environment cooperation via CEC. US hoping to do the same with Central America & DR via DR-CAFTA cooperation.

• Others influenced by US mostly in the technical norms and specifications used in implementing regulations.

• Outside of Mexico, legislators tend to be drawn to European models and regulators tend to look first for global standards. Europe particularly influences waste policy – examples: batteries, packaging, WEEE.

• LAC legislators and regulators also increasingly copying from each other – sometimes word-for-word.

Resist the Perception Traps

• While there are kernels of truth in each stereotype – they were widespread once, and persist in pockets across LAC – they should not guide or dominate compliance policy for the region.

• LAC is a mosaic of different environment regimes operating at different speeds, different strength levels and different levels of complexity.

Additional Complexities to Take Into Account in Policies/Programs for the Region

• The complexity of the federal republics

• The urge to harmonize

• The rising influence of third parties and the local media

• In Brazil, grappling with unique actors

The Federal Republics in LAC

• In Argentina, Brazil and Mexico, states/ provinces can and do affect legislative/ regulatory landscape, especially in policy areas such as waste.

• In Argentina, provinces (and CABA) have more power in environmental policy. The feds can only set general principles and minima. Provinces fill in the details, supplement or augment.

Federal Republics - 2

• In Brazil, states and municipalities can set own policies as long as not forbidden by Constitution or specifically preempted by federal legislation.

• Brazilian states often act first, since the Federal Congress tends to be slow. In fact, often state measures influence path of federal bills. More and more hearing industry say feds must act to make sense of the growing patchwork of state and municipal laws.

Federal Republics - 3

• In Mexico, where an issue has not been reserved for federal competence, states can enact their own rules.

• This creates some problems in areas such as waste: hazardous waste policy reserved for feds, household waste for states, “special” wastes (such as batteries, lamps, WEEE for both).

The Urge to Harmonize

• Central America and Dominican Republic have committed to harmonize in environment and public health through SICA. They are developing common model laws, and “technical norms” to reduce NTBs.

• Many of the model laws follow Mexican models.• The closer approximation urge is reinforced by

DR-CAFTA, and strongly supported by the USAID and EPA, AECI, GTZ.

The Urge to Harmonize - 2• MERCOSUR’s Environmental Protocol commits

Argentina, Brazil, Paraguay and Uruguay (+ Venezuela once it becomes a member) to work together on environmental standards

• 2006 Policy on Management of Special Universal Wastes includes lamps, cell phones, batteries/piles, electro-electronics. Member states are to take implementing measures to ensure post-consumer producer responsibility, waste management plans, product composition rules.

• MERCOSUR also working on a sustainable consumption and production (SCP) policy.

The Urge to Harmonize - 3

• Because of its work in the North American Commission on Environmental Cooperation (CEC), Mexican regulations increasingly reflect US and Canadian influences.

• Andean Community (CAN) and Union of South America (Unasur) not into environmental harmonization – yet.

Rising Influence of Third Parties and the Local Media

• 10 years ago local media in LAC was not very interested in environmental policy stories. Today many issues – such as WEEE and climate change – are being heavily influenced by local media coverage.

• Nongovernmental organizations (NGOs) are becoming increasingly adept at prompting, steering the policy debate on environmental issues. An NGO community to keep your eye on: consumer groups.

• In many environmental policy areas (esp. waste), foreign aid/technical assistance agencies such as Germany’s GTZ are driving issues behind the scene.

• In many nations, a big behind-the-scene influence is the local UNDP office (and there is one in nearly all LAC).

• IDB and World Bank loan programs, particularly when involving entire sector such as the WB waste loan in Argentina, can shape policy.

In Brazil, Additional Complexities

• Brazilian municipalities far more activist on environmental issues than those in other LAC nations. Action by a few large cities like São Paulo can influence national agenda.

• The National Environment Council (CONAMA) can set rules even without a clear Congressional mandate, and this power has survived legal challenges. CONAMA has already set rules on post-consumer batteries and tires, is working on lamps, and would like to do so on printer cartridges and packaging.

Brazil, Additional Complexities - 2

• The wild card of the fourth branch of the government, the Public Ministry (MP): can and does act on its own in the public interest (examples: TACs on packaging). Sometimes in direct conflict with the executive branch (examples: sulphur in diesel, mining in Santa Catarina), and increasingly seeks to get executive to implement and enforce current law.

About Temas Actuales LLCTemas was founded as a specialized consultancy to

1. track and assess legislative, regulatory and policy developments in Latin America and the Caribbean – whether at the national, sub-regional or regional level.

2. help clients adopt politically and socially aware policies with regard to such developments.

3. promote dialogue and cooperation between the private and public sectors in the region, with a view to forging alliances to tackle common policy concerns.

For more information, visit www.temasactuales.comwww.temasactuales.com

To regularly follow environment, health and consumer policy developments in LAC, read The Temas Blog at www.temasactuales.com/temasblogwww.temasactuales.com/temasblog

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