A primer for companies on organizing for environmental compliance in Latin America and the Caribbean

1. Perspectives on Legislation and
Regulation in Latin America and
the Caribbean
Keith E. Ripley
Temas Actuales LLC
www.temasactuales.com
keith.ripley@verizon.net

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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 MNCs
with high brand profiles are becoming proactive.

10. 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.

11. 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.

12. 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

13. 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.

14. 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.

15. 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).

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

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

23. Thank You!