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RevCEDOUA A. 4, nº 7 (2001) >
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|Title: ||A Licença Ambiental no novo regime da PCIP|
|Authors: ||Dias, José Eduardo Figueiredo|
|Issue Date: ||2001|
|location : ||Local:Coimbra|
|Abstract: ||Res:O Decreto-Lei n.º 194/2000 aprovou o regime jurídico da prevenção e controlo integrados da poluição (pcip). Este artigo debruça-se sobre o principal acto jurídico praticado no contexto deste regime, com grande relevo nas relações entre o direito (administrativo) do ambiente e o licenciamento industrial: a licença ambiental. identificam-se alguns dos problemas relativos a este acto, sugerindo-se pistas para a sua resolução: as questões da natureza jurídica da licença ambiental, da competência para a sua emissão, da respectiva tramitação procedimental, das suas relações com a aia, da sua força jurídica e a problemática do seu indeferimento tácito. Em face das suas repercussões na licença ambiental, também a noção das melhores técnicas disponíveis (MtDS) é analisada, quanto ao seu sentido e relevo jurídico, procedendo-se à sua apreciação crítica.|
Res:Decree-Law n.º 194/2000 approved the legal regime regarding the prevention and integrated control of pollution (PCIP). In this manner, Portugal fulfilled its legal obligation vis a vis the European Union.
This articles does not seek to proceed through a comparative analysis between the national legal regime and the directive regime. The author does not also seek to make an exhaustive analysis of the national legal regime. The end is to look over the main legal act produced in the context of this regime which has profound effects on the relations between administrative and environmental law as well as industrial licensing: the environmental license.
Bearing this in mind, the author begins to examine the meaning and framework of the new legal regime: its relation to community law and environmental policy; the meaning of the new approach (instead of fighting against each source of pollution or safeguarding each one of the environments components, one proceeds to a global and integrated approach of the environmental problems); presenting some references to comparative law.
In order to describe the scope of PCIP application one resorts to the notion of installation (the act determines that it is subject to a PCIP). The activities that are subject to it are determined by a remission that the Decree-Law makes to an annex.
One then enters into the main part of the article: the study of the environmental license. This study is done through the identification of some problems relative to the environmental license suggesting paths for its resolution.
The following questions were considered:
– The legal nature of the environmental license: although the author does have doubts as to its qualification he holds that the respective legal regime leads us to characterize it as a true administrative act. It is not an opinion, information or any other instrumental act). More specifically, it is a prior administrative act, in that the environmental license consists in a final decision on isolated questions on which a global authorization may be attributed (which can be appealed and constitutive of rights);
– The competence to emit such a license: belongs to the General Directory for the Environment.
This authority has the most relevant role in the environmental license procedure;
– The respective procedures which are highly regulated in this new act as a reflection of the complex
nature of the procedure;
– The relations with the environmental impact evaluation (AIA): is an aspect of great practical importance for the PCIP in that the two regimes do not exclude each other. On the contrary, a positive decision in both procedures is a conditio sine qua non for a project to be licensed later.
When an installation is previously subject to an AIA, the procedure to grant an environmental license can only be initiated after the issuing of a declaration of a favorable environmental impact or conditionally favorable;
– Its legal force: the environmental license possess great legal strength, in that the issuing of this act is a necessary condition for the licensing or authorization of any installation subject to it. Beyond this, the administrative acts that are carried out contrary to these rules are expressly qualified as null;
– The problem regarding the tacit disapproval: there is no special disposition in the Decree-Law.
Therefore, the general rules of our administrative law should be adopted relative to tacit approvals and disapprovals. However, we do think that all human activities that pose a threat to the environment and subject to administrative authorization should be considered to be prohibited until authorized.
In this manner, when the administrative authorities do not emit an environmental license within the proper deadlines their silence must be considered as a disapproval: if the DGA allows the deadline to expire concerning the emission of the appropriate environmental license without an express answer, allowing the deadline to expire must be understood as a negative act.
The theme regarding the best available techniques (MTDS) constitutes one of the most important novelties of the new legal regime. Due to their importance and repercussions in the environmental license they were also examined in the article.
One begins with the legal relevance of this notion: its adoption is one of the operators fundamental obligations, the content of the environmental license should consider these techniques because the value limit of the emissions, the parameters and the equivalent technical measures should be based on the MTDS. MTDS are also relevant in what concerns the renewal of the environmental license.
One then tried to determine the meaning of this notion utilizing the definition given by the legislator although the legislator resorts to undetermined legal concepts that still allow for interpretative doubts.
Finally, one proceeded through a critical analysis of the notion and its legal relevance. Besides its importance and positive relevance (in translating the necessity of polluting installations to adapt to technological innovation), the taking into account beyond of economic criterium in the notion is criticizable. The cost-benefit rational can undermine the regime in that the level of protection acquired must compensate the costs involved (the marginal benefits must be greater than the marginal costs).
In conclusion, one fins it necessary to wait for the practical application of the new regime in order to determine if it will reach its ambitious objectives (in light of the evident advantages of this integrated approach).
The legislator has fulfilled his task. But the difficulties will be countless, namely in what concerns the application of the MTDS clause. One desires for an equally positive answer from private economic operators and from the administrative bodies, discharging their obligations and exercising their powers in the best possible manner. If that is accomplished the balance will surely be positive.
|Appears in Collections:||RevCEDOUA A. 4, nº 7 (2001)|
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