Environmental Law.

1. Environmental Law Journal
José H. Santos Aguilera
2022

2. Summary.
In order to make Article 9 of the Escazú Agreement viable, it would be advisable
to create a Registry of Environmental Lawyers. The work carried out by
environmental defenders would be known, especially when rights that belong to
the community are involved.
Since 2005, the author has practiced environmental law to protect diffuse
interests in Panama: Cruces Trail, Ancon Hill and Bastimentos Island Marine
National Park. He can be reached at the following email address:
josesantosaguilera@gmail.com
Cover design © José H. Santos Aguilera. Electronic publication. Panama City,
July 2022. Author/Publisher. All rights reserved.

3. Contents.
Ecological rights and diffuse interests p. 1
Wildlife Law p. 1
General Environmental Law p. 2
Representatives of civil society p. 3
Absence of environmental lawyers in EIS p. 4
Limits of environmental law p. 6
Human rights defenders in environmental matters p. 7

4. 1
Ecological rights and diffuse interests. The first major step taken by
the Republic of Panama in the field of environmental law was not through
the legislative branch, but through the judiciary, when the Supreme Court
of Justice recognized the active legitimacy of an association of nature
protectors (ANCON) to promote proceedings challenging logging
concessions and requesting measures to redress violated ecological rights.
By Resolutions of March 12, 1993 and June 22, 1994, the Supreme Court
of Justice recognized for the first time the judicial protection of ecological
rights and diffuse interests in Panama.
Wildlife Law. Law No. 24 of June 7, 1995, "Whereby wildlife legislation is
established in the Republic of Panama and other provisions are issued", is
one of the most important environmental legal bodies because for the first
time the government recognized the importance of having a representative
of the National Bar Association with suitability and professional experience
in their specialty, within a consultation body that had among its main
functions to submit for consideration of the former National Institute of
Renewable Natural Resources (INRENARE) scientific and technical concepts
on the seriousness of environmental crimes against wildlife. Based on the
Wildlife Law of Panama, the environmental public action is understood as
the right that legitimizes any person to bring a procedural action, even if
there is no individual or direct injury, to request the suspension,
prevention, or reparation of an act, of a public or private person, that
causes or may cause damage or endanger the environment, as a legally
protected good. In accordance with the Wildlife Law, INRENARE was the
agency responsible for the application of the international conventions on
wildlife signed by the Republic of Panama.

5. General Environmental Law. In 1995, an event had a negative impact
on the evolution of environmental law: in the midst of the process of
privatization, commercial liberalization and opening to foreign investment
in which the country was immersed, the national government vetoed the
draft of the General Environmental Law for being inadequate and for not
having been sufficiently consulted. It is not surprising, then, that the
unconstitutionality suit filed by the Panama Audubon Society against the
Law that allowed the construction of civil works in the Metropolitan Natural
Park did not obtain the expected result (Resolution of the Plenary of the
Supreme Court of Justice, September 13, 1996). In her dissenting opinion,
former Justice Aura E. Guerra de Villalaz explained that in the
aforementioned case, the various international agreements ratified by
Panama were not taken into account and the environmental impact studies
carried out by environmental authorities were disregarded, which indicated
better options for the design and layout of the road work that affected the
integrity of the metropolitan natural park, in clear violation of the
constitutional environmental order.
In July 1998, the General Environmental Law of the Republic of Panama
was finally approved. The National Environmental Authority (hereinafter
ANAM) was created as the autonomous governing entity of the State in
environmental matters. Although the public policies emanating from the
National Environmental Council and the National Environmental
Consultative Commission would have presidential features, the General
Environmental Law established a system of weights and counterweights to
curb any abuse of power by establishing that any natural or legal person is
obliged to prevent damage and control environmental pollution.
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6. Representatives of civil society. With the issuance of Executive Decree
No. 57 of March 16, 2000, "By which the conformation and functioning of
the Environmental Consultative Commissions is regulated", a step
backwards was taken from the legal point of view because, unlike the
Wildlife Law, the representative of the National Bar Association was not
expressly included, since the representatives of civil society that would
become part of the National Environmental Commission would be:
 Two representatives of the business sector, selected from two different
lists of three candidates presented by the National Council of Private
Enterprise (CONEP) to the President of the Republic.
 One representative of the workers' sector, chosen from a list of three
candidates presented by the National Council of Organized Workers
(CONATO) to the President of the Republic.
 Two representatives of the environmental and human rights non-
governmental organizations, chosen from two separate thirds proposed
by the environmental and human rights NGOs by common agreement
and presented to the President of the Republic.
 A representative of the academic sector, chosen from a list of three
candidates presented by the Council of Rectors to the President of the
Republic.
 A representative of the agricultural producers, chosen from a list of three
candidates presented by the National Union of Agricultural Producers of
Panama (UNPAP) to the President of the Republic.
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7.  A representative of the local governments, chosen from a list of three
candidates presented by the Association of Municipalities to the
President of the Republic.
 A representative of the professional associations, chosen from a list of
three candidates presented by the Federation of Professional
Associations of Panama (FEDAP) to the President of the Republic.
 Two representatives of the Comarcas (regions) chosen by the President
of the Republic from two lists of three candidates to be presented by the
representatives of the Indigenous General Councils.
Absence of environmental lawyers in EIS. Chapter II of Title IV of the
General Environmental Law of the Republic of Panama was regulated by
Executive Decree No. 59 of March 12, 2000. The new requirements
imposed on project promoters spoke of the need to have environmental
lawyers in the preparation of Environmental Impact Studies (hereinafter
EIS). For example, with regard to the minimum contents of category II
EIS, Executive Decree No. 59 of 2000 established that in the identification
and characterization of significant positive and negative impacts, the
project developer must ensure that national environmental regulations,
laws, decrees and resolutions are considered, or in their absence, existing
international regulations on the subject and in the geographic area
involved, those existing in other countries or those suggested by
international organizations that ANAM may determine as applicable will be
used as long as there is prior agreement.
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8. The participation of environmental lawyers in the preparation of category
III EIS also appeared to be contemplated in Executive Decree No. 59 of
2000. Regarding the identification, valuation and ranking of the positive
and negative impacts of a significantly adverse nature, derived from the
construction, operation and abandonment of the project, if the latter were
to proceed, when valuing the impacts and choosing the techniques, the
project promoter should ensure that they consider the national, primary
and secondary environmental norms, or in their absence, the existing
international norms on the matter and in the geographic area involved. If
there were no national environmental norms or norms for the geographic
area involved, then existing norms in other countries or those suggested by
international organizations would be used, which ANAM could determine as
applicable as long as there was prior agreement.
Although it was established that a multidisciplinary group of qualified and
duly coordinated professionals should prepare the EIS, the suitability
requirements that were established seemed to exclude environmental
lawyers. Certainly, if we review the EIS, category II, of the mid-2000s we
will still find the absence of environmental lawyers in these
multidisciplinary teams, in contrast to other professionals in civil and
forestry engineering, architecture, economics, sociology and environmental
sciences. The suitability requirements for natural persons established in
Decree No. 59 of 2000 were as follows:
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9.  Possess an academic degree or a professional degree related to
environmental, biological, physical or social sciences related or relevant
to the environmental impact assessment process; or one or more
postgraduate academic degrees leading to a specialization in the
sciences or disciplines described above or other related ones.
 Certification that accredits the completion of studies in environmental
impact assessment or proven experience in these processes.
While it is true that the suitability requirements for natural and legal
persons to be registered in the Registry of Environmental Consultants were
expanded (see Executive Decree No. 209 of September 5, 2006), the
minimum contents and terms of reference for EIS only refer to the
inclusion of the legislation and technical and environmental standards that
regulate the sector and the project, work or activity in category I, II and III
EIS, that is, there is no longer any express mention of the project
developer's responsibility to ensure compliance with international
environmental law standards.
Limits of environmental law. Unlike other countries in the hemisphere,
Panama still does not enshrine the right to a healthy environment in its
National Constitution. For this reason, it is difficult to create new processes
for the protection of human rights in environmental matters and specialized
courts to enforce the recognition of this right. Panamanian environmental
management is still characterized by a wide range of regulations and a lack
of economic resources to achieve its objectives.
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10. At law schools, environmental law continues to struggle against the
academic marginality. Despite the limitations, panamanian environmental
law has tried to respond to the impact of two socioeconomic phenomena:
 The process of privatization, liberalization and opening up to foreign
investment in the mid-1990s, and
 The reversion of the Panama Canal and the lands of the former Panama
Canal Zone in the mid-2000s.
Human rights defenders in environmental matters. When the
Ministry of Environment was created in 2015, it was given the attribution of
"keeping a registry of environmental organizations". Although the Supreme
Court of Justice has recognized the current importance of environmental
law, the Ministry of Environment does not have a Registry of Environmental
Lawyers, either to participate in the elaboration of EIS or to legally assist
communities- see Article 217 of the Constitution regarding The
Administration of Justice.
Panama has signed and ratified the Escazú Agreement, promoted by the
Economic Commission for Latin America and the Caribbean (ECLAC), which
aims to facilitate access to public information and promote citizen
participation in environmental policies in Latin America and the Caribbean.
To ensure a safe and enabling environment in which environmental human
rights defenders can operate without threats, restrictions and insecurity, it
would be advisable to develop a Registry of Environmental Human Rights
Defenders at the Ministry of Environment.
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