Envío Digital
Central American University - UCA  
  Number 163 | Febrero 1995



Environmental Law: For the Future of All

Will it be possible for Nicaragua’s political forces to reach consensus about defending our environment with a law? The process has stagnated, while society and nature are waiting.

Raquel Fernández

When the Spanish conquerors reached what is today Nicaragua, they marveled at the opulence of life here: gigantic trees, unknown multicolored birds, majestic rivers. Gonzalo Fernández de Oviedo, who ventured through these lands some 50 years after their "discovery" left evidence of all this beauty in his chronicle.

Albeit with some changes in which nature usually came out the loser, things remained reasonably in balance until about 1940. In the little more than 50 years since that time, the pillage of our natural wealth has reached such velocity that scarcely 12,000 square kilometers of forest just over 9% of national territory remain.

Goodbye Trees and Water

According to the Ministry of Natural Resources and Environment (MARENA), 20 tons of firewood are used up daily in Managua alone, mostly for cooking. Given that Managua has more energy alternatives such as gas and electricity than any other part of the country, it is estimated that national firewood consumption is well over 80 tons a day. Since Nicaragua has no tree plantations for energy purposes, almost all of this wood comes from our natural forests. To meet the demand just in the capital and its surrounding areas, huge eucalyptus plantations should have been planted on the outskirts of Managua at least 12 years ago, but no such work has even been started yet. Meanwhile, our forests are shrinking by 120,000 hectares a year. If we continue at this same rate, within 10 years not a square meter of forest will remain anywhere in the country; Nicaragua will be a desert.

As long as plenty of trees were around to be felled, no one denounced the fierce depredation of the forests. Besides, trees were considered an obstacle to development. Even national hero Augusto C. Sandino dreamed of seeing the forests of Las Segovias cut down and the land used for crops and cattle pasture, believing that this was the way to develop the zone. The forests had to be reduced to a minimum before Nicaragua began to understand that they have a right to exist. And not only that, humanity's right to exist depends on the existence of forests. It also began to be understood that the land where forests were is no good for agriculture or cattle; it's good only for trees and, if used well, can produce five times more than if it is given over to agriculture.

The disappearance of the vegetable cover along with the forest's retreat has dried up 180 bodies of water rivers, streams and lagoons in the past three years alone, leaving the communities settled along their shores without fish or water. The rivers and lakes that still survive receive incalculable quantities of all sorts of contaminants, both organic and industrial, because untreated waste water seeps into nature. There's the irrigation runoff that carries sizable concentrations of agrochemicals with it, the poisonous mining waste full of cyanide, domestic waste, sewage, industrial chemicals, and much more.

All the abuse of Nicaragua's trees and waters was and is carried out without violating a single law. No document whatever defends nature's right to exist.

Biodiversity in Danger

The disappearance of these bodies of water and forests implies destroying many of other forms of life whose utility is not even imagined yet by most people. Only three examples: the humble armadillo has aided in treating the greatly feared leprosy; the howler monkey collaborates with humans in dealing with malaria; and tempate, an ugly tree that almost became extinct because it didn't even give shade, has a treasure in its seeds they produce diesel. Three life forms that "weren't good for anything," without which humanity seemed like it could still get on quite well, thank you very much, but which we know today help answer some of our most serious problems.

Nicaragua's biodiversity is impressive. Just in Río San Juan's natural reserve called SI A PAZ, 40 times as many bird species live as are found in all of Europe. But the advance of the agricultural frontier is intruding on the reserve's limits, and each tree that the peasant's machete hacks down means the loss of another life source for birds, monkeys, sloths, insects and innumerable plants that need the forest's giants for their own survival. With each tree felled, many forms of life die and many others will have trouble finding another appropriate place to reproduce during the next life cycle. And with fewer individuals of a given species, genetic poverty becomes more acute, with the risk that future generations will be even weaker and less fit for survival.

In Nicaragua, no law protects the multiple forms of animal and vegetable life.

Which Way Is Progress?

At the beginning of the 1980s, the department of Carazo was covered with ancient coffee bushes growing in the shade of century old trees. The coffee groves were economically profitable and the diversity and age of the vegetation had made possible ample if unrecognized genetic earnings, given the diversity of animals and plants living in that particular ecosystem. But then the Minister of Agricultural Development decided that those old plants were not profitable enough and should be replaced with more modern varieties. Without compassion, 10,000 hectares of coffee groves were uprooted. The project was called CONARCA, and was conceived to bring progress to the zone.

The variety introduced produced greater volumes of coffee for export, but what was earned from exporting the coffee was lost by having to import fertilizer, machinery and other inputs. Today, Carazo's average temperature has risen four degrees centigrade due to the loss of so many trees. And in nearby and even hotter Managua, the temperature has gone up a degree and a half. Many water flows dried up in this experiment as well.

The dream of "progress" comes to all fields. To that of industrialization at all cost, for example. In 1993, a paper processing plant was set up near huge Lake Cocibolca (Lake Nicaragua) with the promise that its wastes would be treated before being emptied into the lake. The promise was not always fulfilled, and the lake now has a major new source of contamination. But what these businessmen are doing is not a crime, because what is not contemplated in the laws is not illegal.

Another illusion of progress: the Chamorro government has been granting concessions to various international mining companies to explore our subsoils. If they find anything, they will exploit it and get huge earnings. There are many indicators that these concessions permit their holders to perforate virtually anywhere in the national territory. Only the land under the cities has not been conceded to these companies.

No Protection in 176 Laws

At this late date, Nicaragua is finally seeing the need to legislate some protection for its already deteriorated environment. Many pieces of disperse legislation are linked one way or another to this issue a full 176 laws, decrees and regulations since 1905 but few of them favor nature. Many either created state institutions or gave those that already existed some attributes in relation to nature. Or they were decrees that established national parks or natural reserves. Or various health dispositions. Not one established environmental protection as a whole.

In addition, Nicaragua has signed at least eight international treaties and conventions related to the environment and has participated in various ecological summits. In the most recent one, the Presidents of the Central American isthmus met with US Vice President Albert Gore in Managua in October 1994 to sign the very ceremonious "Alliance for Sustainable Development.

Looking at this body of legislation drafted over a period of nearly a hundred years, its contents can be seen to be contradictory; in some cases laws even annul each other. Almost all are antiquated, because they were written before the current criteria about the environment existed, or at least before they became common patrimony. The most serious thing is that the bulk of them only regulated sales: they didn't protect nature as much as set areas and prices for exploitation by the mining or lumber operations that destroy it.

Something Must Be Done

In 1990 the need was expressed to pass an overall bill that would serve as a framework, a reference point something like an Environmental Constitution. Work got underway to draw up a "General Environmental and Natural Resource Law."
That law is the child of the FSLN's electoral defeat, but, save in a few verbal statements, the Sandinista government never demonstrated much ecological sensitivity. It did not have a depredatory attitude; its problem was just ignorance. It demonstrated its good will by creating the Institute of Natural Resources and the Environment (IRENA) shortly after taking power. IRENA was promoted to ministerial status in 1994, becoming MARENA.

Curiously, the war during the revolutionary years had a somewhat positive effect on the forests. Nobody dared deforest the dangerous and extensive war zones, and the fighting put a brake on the advance of the agricultural frontier. It was a costly form of defense, however, and was only partially effective since the same war also created enormous bald spots of land roasted by bombings or land mines. It will take a long time before anything will grow again in these calcinated soils.
In any case, the accelerated "desertification" is one of the tragedies that has made Nicaraguans more aware of the problem, more conscious that something had to be done. In November 1991, the Nicaraguan Environmental Movement (MAN) began to promote an environmental law with strong input from civil society. The first step consisted of gathering and studying all the existing legislation on the theme. Then, with textbooks and the experiences of other countries at close reach, a bill was drafted.

A Democratic Law

With this draft in hand, MAN called on civil society to contribute through its organizations unions, high schools and universities, churches, the media and business associations, among others. And the call got back an echo: housewives and technical specialists attended the assemblies, as did rural and urban unions, business leaders in COSEP, forestry engineers and neighborhood associations. In total, over 50,000 individuals participated, making more than 1,000 verbal contributions. Several hundred written suggestions also arrived at MAN's Managua headquarters.

Not all comments were supportive: four associations of cattle ranchers, for example, expressed their fear that application of the law would increase their operating costs. Farmers, in contrast, generally had very positive attitudes. The proposal that sparked the most frontal and public opposition was that smoking in public places be prohibited; most of the opposition came from Tabacalera Nicaragüense, British American Tobacco's Nicaraguan subsidiary.

MAN also solicited the criteria of various specialized organizations: the Institute of Territorial Studies on atmosphere related aspects, the National Autonomous University's Department of Water Resources on water issues and various departments of MARENA on the issue of forest soils and resources. All these technical contributions were very valuable.

It was not an easy task to put this flood of contributions from different sectors of society into order. After intense work, the 214 articles of the bill, distributed under 18 titles, were edited and readied for presentation to the National Assembly. To "return it" to the society that had participated in its preparation, 35,000 copies were printed. It had to be reprinted several more times.

Plant Ten Trees a Year

The bill's first and main characteristic is its stress on citizens' participation in the care of and responsibility for the environment. This emphasis runs through all the articles. The philosophy is that all Nicaraguans will suffer the consequences of each Nicaraguan's environmental behavior, whether as an individual or a company. All citizens should thus have the right and duty to bring action against anyone who attempts a crime against nature.

The first article of the bill empowers any citizen to file suit with a judge against anyone who commits an environmental crime. The bill raises any attack on nature to the category of crime with jail sentences of several years, fines and appropriate reparations. On the other hand, it contemplates tax benefits for those who protect nature and establishes various dispositions to involve every citizen in environmental care. Any Nicaraguan between 6 and 65 years of age will have the duty to plant 10 trees a year in areas defined and prepared for that purpose by the municipalities. The municipalities will also be responsible for maintaining nurseries to supply the demand arising out of the law.

In addition, any young person who wants a bachelor's degree must give 100 hours of environmental service as a prerequisite. Creating company or municipal forests, or forests on farms, provides advantages to their owners. For example, farmers who have a forested area on their land and take care of it will be eligible for a tax discount; the same discount also applies if there is no existing forest but the farmer reforests part of the land. Another important aspect involving civil society is that if someone wants to set up a company whose activity could have some environmental impact, a study will be made and communities that could be affected will have the right to be heard and to carry out activities to avoid ecological damages.

Power to the Municipalities

Following the suggestion of the popular wisdom, "the master's eye fattens the horse," the bill's drafters put a strong accent on territoriality: 40 of the 214 articles confer major responsibilities on municipalities and their authorities. The bill also grants the municipalities economic means for dealing with these additional responsibilities: once the law goes into effect, half of the resources produced through sustainable use of the environment must stay in the municipality and be reinvested in local improvements. This disposition would save the majority of the municipal governments; of the 143 municipalities into which Nicaragua is divided, only 4 receive enough money to cover even their basic expense monthly personnel salaries.

If the law ever goes into effect, all the neighbors will be interested in knowing exactly what resources are being exploited, how and at what price. It will be hard to do any sleight of hand with the resources. because many eyes will be watching, and very closely.

Deadlines and facilities are contemplated in the bill to get businesses that develop environmentally threatening activities such as dumping toxins into the water or contaminating the air to convert their systems to innocuous ones.

An Environmental Comptroller

Ever since it was founded as IRENA, what is now MARENA has had a foot in two camps, carrying out contradictory functions. It is the government entity charged both with overseeing environmental protection and approving the licenses for natural resource exploitation.

In the new law, MARENA would be defined as an institution responsible only for monitoring and safeguarding the environment. Granting licenses would be shifted to the municipalities, the Ministry of Economy and Development or some other respective entity, depending on the case.

The bill also establishes the creation of a body to act as a kind of environmental comptroller, with participation by civil society universities, municipalities and others. This entity would have power over MARENA and even over the Presidency in relevant matters.

Given its character as a general framework, this environmental law will need to be fleshed out later with additional and more specific laws on forests, mining and marine life, among others. There is, in fact, already a fishing bill, aimed at regulating one of the country's most valuable resources, and thus one particularly vulnerable to national and international greed. The idea was to put the army in charge of protecting this resource. The bill was last heard of gathering dust in the President's drawer, since one member of her extended family is a major stockholder of a fish processing plants on the Atlantic Cost. Among other laws that could foreseeably evolve from this framework law is one that would give the armed forces an active role in defending all natural resources.

The Law's "Five Dangers"

After two years of work, the bill was ready for legislative debate. Since only the National Assembly and the Presidency have the faculty to promote legislation, the Environmental Law, as the initiative of an organization of civil society, could have ended up a beautiful effort shelved forever. But MAN turned to the same society that had participated in one way or another in preparing it, and in record time had gathered 97,000 signatures to accompany the bill. The National Assembly's Natural Resources Commission presided over by Sandinista representative José León Talavera accepted it with great interest.

But that was when its problems really began. And they were serious. The Presidency viewed the democratic spirit of the bill with real concern, and promptly charged some specialists to draft an alternative proposal without the five "dangerous" characteristics it perceived in this bill. These elements are: 1) grassroots participation in its implementation, 2) territoriality, 3) the separation of MARENA's functions, 4) the creation of an environmental comptroller, and 5) the tendency toward successive laws that would fine tune this one and adjust it permanently to the changing reality.

The Chamorro administration, which always alleges its shortage of funds, somehow scraped together $20,000 to finance the drafting of the "other" environmental bill. But, in the end, it didn't get enough positive response, and the version civil society had worked on was introduced into the National Assembly in November 1993.

A Bill That Doesn't Fly

Despite the anguishing environmental situation, the legislature's Natural Resources Commission has only succeeded in passing one new environmental law also in November 1993. It prohibits any traffic in toxic waste through national territory.

Since that time, two new bills have been submitted: the general one on fishing mentioned above and MAN's general law on the environment and natural resources. After MAN's bill was approved in general terms, it too was shelved, this time in the National Assembly itself, with only the first five of its articles passed in the article by article debate.

Why did this happen? Was it pressure from the executive branch? Or the excessive politicization and polarization in the Assembly around the constitutional reform issue, which has absorbed so much of everyone's energy? The political shortsightedness that ignores issues requiring broader, more strategic and long term vision?
All three have played their part, but it seems that the real reason for the delay in discussing and approving the bill is to be found in the breadth of the sphere it affects. It in fact touches all of the national reality: society, the economy, culture in its broadest sense, customs, ways of life and even of death.

The Natural Resources Commission has had other activities that reflect its own good will, among them one that regulates the protection of the two beaches where turtles massively deposit their eggs, and another that establishes annual national water fairs to call attention to water resources in general and a given body of water in particular. Two fairs have already been held about the country's two major lakes: Cocibolca and Xolotlán (Lake Managua). But the environmental they hope, issue is so big and so serious that even the greatest efforts seem small.

If We Defend It, It Will Defend Us

Despite all the murky but real obstacles that constantly trip up the environmental bill, it seems to enjoy consensual support at least at the level of lip service, in which everyone claims to be "green."
Given this consensus, the Commission members think that the environment could be a key theme around which to achieve some harmony and understanding among the political forces, and which could later be reflected in other, more polarized arenas of the national reality. In discussing and defending the environment, they hope, we could reach some agreements and gain experience in tolerance, negotiation and dialogue.

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