Winter 2006-03 Environmental criminal prosecution on the way

Number 62
Winter 2006

Environmental criminal prosecution on the way

Environmental compliance must be a high priority for the regulated community, in order to avoid the occurrence of any circumstance which can be defined as a “catastrophic risk” under the new Penal Code which came into effect on May 1, 2005.

Felonies

The new code specifically provides that any person that causes, directly or indirectly, emissions, radiations or spilling of any nature into the air, soil or the surface, underground or maritime waters, in violation of any applicable law, risking the health of persons or the equilibrium of the ecologic systems or the environment, will incur in a fourth grade felony.

If the environmental pollution felony is performed by a juridical person without the corresponding permit, endorsement, certification, franchise or environmental concession, or clandestinely, or said juridical person has not complied with the specific provisions of the environmental authority to correct or to stop any act in violation of the law or submitted false information or omitted the information required to obtain a permit, endorsement, certification, franchise or corresponding environmental concession or obstructed an inspection by the appropriate authority, said juridical person will incur in a third grade felony. In addition, the court may suspend the license, permit or authorization and impose the restitution penalty.

On the other hand, any person who may risk the life or health of persons by poisoning, polluting or spilling substances which can destroy the human health, into wells, bodies of water, pipings or waterways which are used for human consumption, will incur in a second grade felony. However, if the aforementioned acts are performed due to negligence the person will incur in a third grade felony. In addition, the restitution penalty can be imposed by the court.

Jail penalty

It must be noted that a second, third and fourth grade felony may implicate a jail penalty ranging from six months and one day to 15 years, depending on the specific felony category; being the second grade felony the worst case with a jail penalty of not less than eight years and one day and not more than 15 years. However, in cases involving third and fourth grade felonies, and attempts to commit the same, as well as those involving attempts to commit second grade felonies, the court may impose one or any combination of the following penalties as an alternative to jail:

therapeutic incarceration,

domiciliary incarceration,

parole and

community service.

Referral to attorney general

These provisions grant to the environmental protection agencies the authority to refer to the attorney general of Puerto Rico any event that may constitute a crime (misdemeanor or felony), for the filing of criminal charges against the pertinent natural or juridical person. As of the present time the Puerto Rico Environmental Quality Board has not made a referral of this type, even though it has been so empowered since at least 2004.

Catastrophic risk

The felonies classified as crimes involving a catastrophic risk include

devastation,

poisoning of public use water,

environmental pollution and

aggravated environmental pollution.

It is important to note that these felonies contain terminology that is not specifically defined in the Penal Code, leaving their interpretation to law enforcement officers and the courts.

Negligence vs. intentional act

Moreover, these felonies clearly establish environmental criminal responsibility for negligent acts. This contrasts with the federal criminal environmental laws , which restrict the jail penalty only to cases involving intentional acts, repetitive illegal conduct, or grossly negligent actions.

© 2006 Goldman Antonetti & Cordóva, LLC