Administrative law is based on legislation that creates, organizes and defines the responsibilities of government agencies. As such, the regulatory apparatus of the modern state is the product of laws creating agencies that oversee various aspects of the national economy, such as basic utilities (water and sanitation), financial services, air traffic control and telecommunications, as well as both non-renewable and renewable natural resources. In practice, regulatory agencies tend to allocate most of their resources to issuing rules (command), but they also have coercive powers to enforce those rules (control).

The venue for enforcement varies. Theoretically, it should occur via monitoring by the regulatory agency that leads to actions that force a transgressor to pay a fine and remediate the infraction. For example, a pollution incident should cause the regulator to order a cessation of operations until the problem is resolved and, in most cases, levy a fine. Usually, there is a recourse mechanism (such as an administrative court) for appealing the ruling, requesting a delay or filing an exemption based on circumstance. Eventually, failure to comply with the rules should lead to the revocation of an operating license and judicial action, either civil or penal.

Infractors can appeal a regulatory decision in court via a civil suit, alleging innocence or procedural deficiencies that limit their culpability. They can also argue that the fine is exorbitant or unfair. The courts of almost all Pan Amazon countries are renowned for their inefficiency, and most have an enormous backlog of cases; consequently, infractors can escape legal liability by pursuing a tactic of delay through litigating technical issues until the statute of limitations terminates the fine or ruling. Nonetheless, in high-profile cases, the system can impose fines on even the most powerful institutions, which are brought to heel by a combination of regulatory action and a desire to limit a public relations calamity.

An example of successful regulatory action was the outcome following multiple oil spills from the main pipeline in Peru’s Loreto region in 2015 and 2016.  The national environmental regulatory authority, Organismo de Evaluación y Fiscalización Ambiental (OEFA), determined that the state-owned oil company (PetroPeru) was in violation of several provisions of the environmental code and forced the company to suspend operations and implement a series of mitigation and remedial actions. The company was fined US$22 million for failure to take appropriate preventative action before the oils spills, and for delaying cleanup operations after discovering spills. Key to the finding was the documentation of negative impacts on the livelihoods of several dozen Indigenous communities. Unfortunately, the monetary penalty was not paid to the impacted communities, because administrative fines in Peru are paid into the national treasury; presumably, Indigenous communities were compensated by the remedial action that was also ordered by OEFA. Unsurprisingly, the inhabitants of the region are not satisfied and continue their campaign to shut down the 47-year old pipeline, which again suffered spills in 2022 and 2024.

Colombia has created a legal system to adjudicate administrative law through a specialized court system referred to as Jurisdicción Contenciosa Administrativa, which has its own maximum authority known as the Consejo del Estado. This system was established via the same law that created class-action civil suits (see below) and has been used successfully to halt or modify infrastructure projects that threatened rivers, protected areas and fragile habitats, as well as to fight illegal mining and challenge questionable environmental licenses. Approximately half of these procedures were decided in the plaintiff’s favor, which leads to a type of arbitration where the judge obligates the parties to agree to a Pacto de Cumplimento, which resolves the issue and provides compensation.

These procedures should be sufficient to motivate producers into compliance, at least for industrial facilities that operate within the formal economy. The regulatory apparatus is less successful when applied to medium-scale operators who simply ignore the rules and assume they will not be confronted by agencies with underfunded enforcement divisions. Regulators could file a civil suit demanding both compliance and compensation. This option is rarely pursued in the Andean Republics, partly because the laws themselves are contradictory or poorly conceived, but also because bribery is often less expensive and more convenient for both the infractors and the regulator.

The most active and effective environmental agency in the Pan Amazon is the Instituto Brasileiro do Meio Ambiente e dos Recursos Naturais Renováveis (IBAMA), an autonomous federal agency linked to the Ministério do Meio Ambiente e Mudanças Climáticas (MMA). The agency’s authority stems from the Brazilian Constitution of 1988, which mandates protection of the environment for present and future generations. The agency was formally established in 1989 as an autarquia, a quasi-autonomous agency, which empowers it to act with a degree of independence (theoretically) from the political process.

Among its many responsibilities, IBAMA oversees the system that commissions Environmental Impact Assessments (EIAs), which are required for most (large-scale) industrial or commercial development; it also issues the licenses that allow those projects to proceed and monitors their commitments to mitigate any impacts identified by the EIA. The agency operates monitoring programmes to track key environmental phenomena (air and water quality, wildfire, deforestation), which allows it to identify incidents that may be in violation of environmental regulations, conduct investigations and initiate legal proceedings, if necessary. IBAMA has police-like powers to seize equipment and initiate legal proceedings, but its most potent authority is the power to levy fines on individuals or enterprises that have failed to comply with environmental law.  IBAMA possesses various coercive powers to collect fines levied against environmental offenders.

Coercive Action Available to IBAMA

Administrative Enforcement

Civil Lawsuits and Fines

Source: https://www.ibama.gov.br/index.php

Banner image: Giant anteater captured in Bolivian jungle. Image by Rhett A. Butler.

“A Perfect Storm in the Amazon” is a book by Timothy Killeen and contains the author’s viewpoints and analysis. The second edition was published by The White Horse in 2021, under the terms of a Creative Commons license (CC BY 4.0).

To read earlier chapters of the book, find Chapter One here, Chapter Two here, Chapter Three here, Chapter Four here,  Chapter Five here y Chapter Six here.