Wendy Ancieta (ELP 2024) | Legal Advisor, Environmental Policy and Governance Program, Peruvian Society for Environmental Law, Peru
“Ventanilla”, “Cuninico” and “La Oroya”, are not merely names of places in Peru. For many Peruvians these names are symbols of the most emblematic cases of pollution in our country.
In June 2014, an oil spill of more than 2 thousand barrels of oil in the Cuninico river in Loreto occurred due to oil transportation activities. According to the Environmental Assessment and Enforcement Agency [Organismo de Evaluación y Fiscalización Ambiental (OEFA)] this spillage was caused by the obsolescence and lack of maintenance of said pipeline, which is operated by the national company Petroleos del Peru S.A. After 10 years, research shows that several members of the community of Cuninico keep finding remains of oil, and that the population experiences health conditions directly attributed to the spillage, such as dermatological problems and spontaneous abortions.
In January 2022, the Peruvian shore suffered the worst environmental disaster in history. More than 10 thousand barrels of oil were spilled in the ocean during the discharge of oil due to the activities of the La Pampilla Refinery, led by the international oil and gas company, Repsol. More than one thousand wildlife animals perished, and more than 100 fishermen lost their jobs. What is worst, since that date, not one ordered remediation plan has been approved yet, which means that in the more than 2 years after the spillage, there have been no remediation measures implemented.
In March 2024, the Inter-American Court of Human Rights ruled in favor of more than 80 victims of the pollution in La Oroya city, stating the responsibility of Peru for failing in its duties to protect the environment. According to the Court, Peru did not properly oversee the implementation of the environmental impact instruments, allowing constant extensions, and not being stern enough with the companies that used to operate in the Complejo Metalúrgico La Oroya, a refinery for metals. In 2011, La Oroya was declared as the second most contaminated city in the world after Chernobyl.
The readers of this blog may think that Peru has a poor environmental regulation and enforcement system; nevertheless that is not the case. Peru has developed environmental regulations since 1990 in the main sectors. For example, the mining, oil and gas sectors have had environmental regulation since 1993. Also, the environmental institutionality of Peru has grown over time. In 2008, the Ministry of Environment was created, in 2011, the EAEA, and in 2012 the Agency of Environmental Certification for Sustainable Investment.
The EAEA is like the “environmental police” in Peru, so one can ask: do companies need the environmental police to keep complying with the environmental regulation? This is a complex question with a complex answer. For instance, many of us do not need a policeman next to us to not steal something, we just have ethics or know how to control the desire to have something that is not ours. Nevertheless, we cannot deny that the “idea of the police” acts like a deterrence for said type of conduct. The same thing happens in Peru, even when there is an entity “sanctioning” companies, they still break the law.
But why do companies break the law? The reasons may be numerous, and it is hard to address all of them; however, if we appeal to the “ethics” of the companies, maybe they can “self-regulate” their activities and prevent the non-compliance of the environmental regulations, which ultimately serves the goal of protecting the environment.
In Peru, to prevent antitrust felonies, the National Institute for the Defense of Competition and Intellectual Property, elaborated an Antitrust Compliance Guide that contains several recommendations for companies to incorporate in their business scheme to prevent the commission of antitrust felonies. These recommendations include the necessity of a Chief of compliance, the training of all the employees in such a topic, and the implementation of whistleblower channels, among other
Regarding environmental affairs, because of the oil spill in Ventanilla, the EAEA ordered the La Pampilla Refinery to implement an environmental compliance scheme in its operations, however, the entity never gave guidance regarding the minimum requirements of said compliance scheme.
In my opinion, the Peruvian Ministry of Environment should bet on a measure such as an Environmental Compliance Guide, so companies can implement said scheme. This could be helpful to prevent environmental disasters because companies will have more tools to assure the compliance of the environmental regulation. The guide could follow the recommendations of the Antitrust Compliance Guide, but also be tailored to environmental regulations. Nevertheless, giving more tools to the “environmental police” is still necessary, so the guide will act as a powerful tool of prevention, which is key in the environmental field.
[The blog post is an original by Wendy Ancieta. Blog image sourced from Wikimedia Commons, and is available for free use.]
