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Cuba's New Law of the Environment: An Introduction

Tulane Institute for Environmental Law and Policy By Oliver Austin Houck

On July 11, 1997 Cuba adopted a "framework" environmental law and vested primary responsibility for its implementation with the Ministry of Science, Technology and the Environment (CITMA), an agency that was itself created only in 1994. Sweeping in its scope and detail, the Law of the Environment provides a blueprint for environmental programs that are now emerging, and will play a central role in Cuban economic development and in the management of natural resources unique to the Caribbean and, indeed, the world. The English translation which follows is the first undertaken by United States scholars and Cuban officials responsible for the passage and implementation of the new Law. This introduction offers to put the law in the context of its history, its administration and its emerging implementation.
History
The natural environment of Cuba, one of the most altered in the western hemisphere, retains unusual biological significance. Native forests that blanketed ninety percent of the island two centuries ago were decimated by tobacco and sugar production and cover roughly twenty percent today. These alterations notwithstanding, Cuba's remaining natural landscapes host nearly 7000 species of plants, roughly one-half of all those identified in the Caribbean and more than one third the number of plant species identified in America and Canada combined. Equally rich in animal life, the island supports twelve times as many mammal species per hectare as the United States and Canada, 29 times as many amphibians and reptiles, 39 times as many birds. In short, this is an environment where accidents of geography and development have concentrated rare life forms in pockets across the landscape, the highest rate of species endemism in the hemisphere. It is also an environment, unlike those of other Latin American countries, where these resources are relatively well known to science and whose protections began at a relatively early time.
Cuba approaches environmental protection with considerable scientific expertise. Its living resources were initially described in the 1830s by the German naturalist and geographer Alexander Von Humbolt, whose works remain a benchmark in the field. At the turn of the century, following Cuba's independence from Spain, Cuban and American scientists began extensive surveys of Cuban biological resources. Cuban plant specimens from that era form the backbone of collections of the New York Botanical Garden. Until the 1960s Harvard University's Botanic Station at Cienfuegos contained the largest living collection of tropical plants in the western hemisphere, and was a leading center for educating US students in tropical biology. The University of Havana has trained natural scientists for the Caribbean and Latin America for more than one hundred years. In 1962, the Cuban Academy of Sciences was formed, birthing, in turn, specialized institutes and quasi-governmental scientific societies. These scientific interests would stimulate efforts in conservation, and provide a foundation for environmental protection to come.
Environmental policy began in Cuba, much as it did in the United States, from efforts to protect natural areas. A decree in 1930 established the Pico Cristal National Park, and succeeding years saw the addition of nearly a dozen similar refuges. In spite of these additions, and the adoption in 1976 of a constitutional provision committing the government "to protect the environment and natural resources," Cuban natural areas remained largely without management until 1981 with the enactment of a Law for the Protection of the Environment and the Rational Use of Natural Resources. Long on objectives, this law, too, was short on implementation and, while the 1980s saw some advances in the coordination of agencies with disparate environmental responsibilities, the absence of a coherent program became increasingly apparent. Internally, Cuba was experiencing obvious pollution as near to its capital as the Port of Havana and development pressures from investments in tourism and mining. At the same time, Cuba was participating in international agreements calling for increased management of hazardous materials, wildlife and other natural resources. In 1992 Cuba attended and signed the Rio Convention on Biodiversity; tracking the Convention, it amended the Cuban Constitution to include an article committing the government to "social and economically sustainable development." In 1993 Cuba formally adopted the environmental principles of the United Nations Agenda 21.
All of which created momentum for the more important and difficult domestic task, the creation of a meaningful environmental authority and a meaningful law.
CITMA
The authority came first. In 1994 Cuba incorporated many of the functions of its environmental bureaus and institutes into a central authority, the Ministry of Science, Technology and the Environment (CITMA). While the environment is but one mission of this Ministry, the reorganization made it a placeholder among the more than two dozen ministries that make up Cuba's executive branch. CITMA co-exists, for example, with a separate Ministry of Agriculture, (and a separate Ministry of Sugar); a Ministry of Planning and the Economy, and the Ministry of Finance and Prices, which functions somewhat analogously to the US Office of Management and Budget as an instrument of fiscal control. While the full extent of CITMA's authority viz a viz these other ministries has yet to be tested, it is clear that the influence of this new agency will extend far beyond that of its predecessors. CITMA will be the prime mover in environmental planning and law.
CITMA itself is composed of several primary directorates and related institutes and agencies, outlined in an appendix to this introduction. Of most note to this inquiry are the Environmental Policy Directorate and the Environmental Agency. The Directorate has overarching responsibility for developing policy initiatives and for coordination with other agencies. It was, for example, the prime mover in the creation and approval of the new Law of the Environment, and is the lead entity in developing its implementing laws and regulations. The Environmental Agency, while also participating in legislation and policy, is primarily responsible for the implementation of environmental laws including inspections and permitting, environmental impact assessment, and the management of protected areas.
CITMA's authority is external as well. Included in its organic decree are the following mandates:
Steer and control the implementation of the policy aimed at guaranteeing the protection of the environment and the rational use of natural resources, integrated with the sustainable development of the country. Propose and establish the national strategies required for the protection of the specific natural resources and biodiversity. Draw up and control the implementation of the programs that will allow for a better environmental control, an adequate management of agricultural and industrial wastes and the introduction of clean production practices.
Supervise and demand from the corresponding institutions the fulfillment of the regulations established for the protection, conservation and rational use of natural resources. Settle the disagreements between the Institutions and other entities concerning environmental protection and the rational use of natural resources, adopting the pertinent decisions or submitting to the Government the proposals of measures relevant in such case...
CITMA would begin exercising this authority at once.
The National Environmental Strategy
As CITMA was evolving, personnel who would direct its environmental agencies were also drafting a National Environmental Strategy, coordinated and negotiated for more than a year with other ministries and government bodies. Formally adopted in 1997, the Strategy is a consciously-aspirational document, identifying the full range of Cuban environmental problems (e.g. soil degradation, deforestation), potential solutions (e.g. "apply poly-cultivation and an adequate crop rotation in a consistent manner"), and potential mechanisms to achieve these solutions (e.g. "enforcing differentiated duties for the import of products detrimental to the environment"). The strategy also presents frank criticism of the status quo.
[T]here have been mistakes and shortcomings, due mainly to insufficient environmental awareness, knowledge and education, the lack of a higher management demand, limited introduction and generalization of scientific and technological achievements, the still insufficient incorporation of the environmental dimension in the policies, development plans and programs and the absence of a sufficiently integrative and coherent juridical system.
... and recommends a number of specific actions, (e.g. television programs for environmental education, a National Environment Fund to fund projects for environmental protection) the execution or failure of which will, among other things, be capable of measurement.
The National Environmental Strategy launched a process of implementing strategies that will continue for years. Following adoption of the national program, CITMA personnel met with other ministries to draft, approve and begin the execution of subsequent "daughter" strategies for all government agencies, game plans for achieving their more specific environmental goals. As of this writing, plans for the Ministries of Basic Industries and Fisheries have been concluded. At the same time, CITMA began work with provincial governments towards the development of regional and local strategies, and expected to play a larger role in a projected, less-centralized Cuban government.
Related to these strategies and as important to their implementation has been the participation by CITMA staff with other agencies in the Cuban Annual Plan, a process and document similar to the US budget but with more specific description of government activities and goals. CITMA personnel consult with each agency on its budget and targets for environmental protection, which can be as specific as remedies for discharges from a particular production facility. These same personnel gather to review progress with the plan, in effect a continuing process of jawboning towards environmental goals.
As influential as CITMA's involvement in these planning activities may (or may not) prove to be, however, the ultimate authority of this new Ministry and its effectiveness in environmental management would hinge on the next step in the process, the new Law of the Environment.
The Law of the Environment
With CITMA established as Ministry-in-fact and with its goals provided by the National Strategy for the Environment, the stage was now set for the adoption of a new framework law. Commensurate with the importance Cuba accorded this initiative, the Law of the Environment was coordinated for more than two years among CITMA, other ministries and local officials prior to its passage in 1997.
The Law is more ambitious in its goals and its details than any comparable legislation in the United States or Western Europe because, among other reasons, it was starting relatively de novo. Its 163 separate articles embrace what would be, in the United States and the European Union, separate programs in air, water, waste, noise, toxic substances, historic preservation, biological diversity, national parks, forests, and wildlife refuges, coastal zone management, education, research and technology, and environmental impact assessment and planning. Additional chapters deal with the authorities of sister ministries in, for example, energy and agriculture. The translation that follows this introduction speaks to this comprehensiveness for itself. This is a sweeping initiative. It is hard to think of a significant environmental issue omitted. Which makes the task ahead, the implementation of these provisions, all the more daunting.
The Law of the Environment also empowers CITMA in ways new to Cuba. The first is to elevate to the status of law an environmental impact review process managed by CITMA itself that will, on its face at least, include both individual projects and, as in for example the United States, the plans and programs of other agencies. To the extent that CITMA approves the environmental impact review process for all agencies and the adequacy of the reviews themselves, the Ministry's authority is, obviously, considerable. The second authority, also elevated to law, is an environmental license required by CITMA for specific proposals affecting the environment, in addition to whatever approvals are required by other agencies (e.g. for facility siting by the Ministry of Planning, and for pollution permits by the Institute of Water Resources). Environmental impact assessment in Cuba, therefore, as in many developing countries, has a strong substantive element; it is not, as in the United States and Europe, a purely procedural requirement. This difference may have significant consequences.
Implementation
Environmental programs around the world, and with particular relevance those of Latin America, combine vigorous promises of environmental management with markedly less vigorous performance. Implementation will be a severe test of the Cuban government's commitment to the law it has enacted and the reader is about to examine.
Implementation of Cuba's new Law of the Environment will take place through several legal instruments, in accordance with the Cuban legislative and administrative process. At the top are full implementing Laws (Leys), presented to and approved by the Cuban National Assembly. This was of course the process described above for the Environmental Law, and it offers the highest degree of consensus and authority to the measures adopted. Several programs implementing the new environmental law, such as those for coastal zone management and environmental impact review, will go through this extended process. A second instrument is the Decree Law (Decreto Ley), which may be proposed by CITMA or another ministry but is presented to and approved by the Counsel of State (Consejo de Estado), the executive body of the Assembly which sits in permanent session. Third in order authority is the Decree (Decreto), proposed by a single ministry but approved by the Council of Ministers (Consejo de Ministro), a body composed of the executive agencies themselves. Last in order is a Resolution, adopted by an agency on its own initiative and with, as a rule, effect limited to the agency itself or to issues within the agency's legislated jurisdiction. While proceeding by Resolution has advantages in moving expeditiously on specific issues, particularly on an interim basis, given the government-wide impacts of environmental management and the obvious need for buy-in from affected parties, CITMA can be expected to opt for the more formal, if more time-consuming, instruments as it sets the new Law in motion.
Early in motion, and targeted for presentation to the Counsel of Ministers in 1999, are Decree Laws related to the management of protected areas and administrative sanctions and responsibilties. In earlier stages of drafting and review are programs for Coastal Zone Management, Biological Diversity Protection, Terrestrial Water and Administrative Process. It is an ambitious agenda and its implementation will involve a process of give-and-take among government agencies, trade unions and other affected parties that will be familiar to anyone involved in the development of environmental policy and law.
Issues and Reflections
While it is premature to evaluate or predict the success of Cuba's new Law of the Environment and its initiatives, several issues critical to their success will arise in the months ahead. Among them is the Cuban administrative process and the questions of participation, review and compliance endemic to all environmental law. Broader issues stem from particular conditions of the Cuban economy and governance and their impact on environmental management. While obviously related, these issues bear separate attention.
Environmental law imposes difficult responsibilities on all who touch it and are touched by it including, on the part of government, the responsibility for open and rational decision-making. For some countries, this responsibility alone is sufficient reason to resist the adoption of environmental laws; for many countries, ineffective administrative procedures are a serious impediment to their execution. Permit systems based on poor information, little public participation and outright political favor are not, unfortunately, uncommon. Nor are environmental impact systems without standards and the means to ensure objective review. The challenge here is not substantive law, but process.
In the United States, federal environmental decision-making is guided by the Administrative Procedure Act, the Freedom of Information Act and other open meeting and disclosure laws. It is supplemented by the provisions of individual environmental statutes and enforced by government agencies, states and by ordinary citizens (including affected industries and development interests) who are specifically empowered to participate in and to appeal government decisions administratively, and through courts of law. The United States system is time-consuming, and has been criticized as adversarial and inefficient as well. On the other hand, it tends to produce decisions that are at least cognizant of the facts and responsive to citizen and environmental concerns.
The idea of environmental administrative law is relatively new to Cuba. Environmental permitting and licensing is new. Concepts of citizen participation and of administrative and judicial review of agency decision-making are likewise new. The enormous volume of rules which will need to be adopted in coming years to implement the various sections of the Law of the Environment law will put unprecedented burdens on CITMA's rule-making process. It is both a challenge and an opportunity for CITMA to define how these systems will work, including the important elements of access by all affected elements of Cuban society, and of the transparency that will ensure their credibility.
These are new burdens, but not impossible ones. Environmental law is raising these same questions throughout Latin America and, indeed, the world. While each legal regime contains its own history and direction, it is fair to say that minimum levels of open disclosure, public participation and dis-interested review are becoming accepted principles of national and international environmental law. As they will need to become in Cuba.
Also new to Cuba through the Law of the Environment and related developments will be new concepts of governance. For the past thirty years the Cuban administration has been highly centralized. Cuba is now looking to decentralize authority in many sectors, including the environment, and here CITMA may lead the way. The Ministry maintains sub-units of environmental protection in each of the fourteen provinces of Cuba, specialists in certain media and liaisons between Havana and the field. CITMA is now placing environmental specialists in each of the 169 municipalities, a project still at an early stage. These decentralization efforts and the appropriate role of local governments in decisionmaking raise questions of federalism that confront administrators and scholars in the European Union and the United States on a daily basis, and will present the same issues in Cuba as well.
Another challenge to environmental management is the relationship of the Cuban government to industry and business which for the past thirty years have been state-operated and state-owned. While this ownership may relieve CITMA of some of the difficulty faced by, for example, the United States Environmental Protection Agency in meeting the objections of private industry, it presents special problems of incentives and sanctions as well. Recent world history teaches that it is at least as difficult to bring state-owned enterprises into compliance with environmental requirements as it is to assure compliance in the private sector, for a variety of reasons, not the least of which is enforcement. The U.S. experience, for example, with Hanford, Fernald and other government-owned nuclear facilities, with the federal Bonneville Power Administration, or for that matter with locally-run municipal sewage treatment plants, has been difficult and only partially successful. In dealing with these same types of government enterprises, CITMA has few obvious mechanisms to encourage compliance, and few obvious sanctions such as injunctions or fines. The problems of achieving acceptable environmental performance in government industries become most acute when these enterprises are losing money or are only marginally profitable. Cuba, with its heavy concentration of aging, state-owned enterprises, has a significant task ahead.
At the same time, and in part for these reasons, Cuba is taking steps to put its public enterprises on a more independent footing and to encourage new private-sector development. Questions of equity will here arise over the allocation of resources and pollution loadings with the older, state-owned facilities. The answer may lie in the same compromise reached on these questions in United States and European environmental laws, imposing stricter standards and requirements on new sources and new development.
A final, obvious, and indeed controlling factor in the success of any environmental program in Cuba is the Cuban economy itself, long supported by the Soviet Union and now struggling to find a new base in the face of its abrupt demise and of significant United States trade restrictions. Capital investments needed for sewage treatment, clean transportation and the basic infrastructure of pollution control are massive and will require resources beyond those of Cuba itself to address. Cuba's environmental policies will need to encourage and accommodate new public and private development through predictable zoning, technology requirements, market incentives and other measures that provide investor security and assurances of where and how this development may take place. Cuba, as many developing countries, will not often have the luxury of saying "no."
On the other hand, these same conditions of the Cuban economy have had the unintended effect of retaining a landscape largely intact, biological resources of great variety and scientific importance, a coastline where rational planning can still make a difference, and cities relatively free from auto emissions and smog. Cuba has been spared by the very fact of its economic isolation the devastating effects of industrial pollution and the irreversible impacts of Florida-style suburban sprawl, albeit at the expense of the economic growth which is clearly an aspiration of the Cuban people. The temptation to jump-start this economy with the type of short-term and unsustainable projects that have plagued the developing world is all but overwhelming. For perhaps only a short time - but for a time of critical importance in which both CITMA and the new Law of the Environment have appeared - Cuba has the opportunity to set things straight for sustainable development at the front end of a wave of investment that is coming, indeed, that is literally hitting the beach.
It is this author's hope that Cuba will rise to the challenge of environmental protection, and that the reader will be better able to understand Cuba's responses through this introduction and the translation which follows.