Environmental risks in major projects in Spain: overview
A Q&A guide to environmental risks in major projects in Spain.
This Q&A provides a high level overview of the key environmental issues and processes in major projects in Finland and looks at key practical issues including the reporting requirements to regulators, liability for historic environmental damage and the main environmental licence/permit requirements.
Due to the economic crisis, the Spanish economic activity has been very limited in recent years.
Most significant deals
The most significant deals are transactions (mainly divestments) in the renewable energy, construction and waste management sectors.
Major projects developed or under development in the environmental field, or with environmental effects, include:
Waste treatment plants.
Landfills for waste disposal.
High-speed train infrastructures.
New mining activities.
Legal framework and authorities
Domestic laws and regulations
In Spain, the fundamental principles underlying environmental protection are enshrined in Article 45 of the Spanish Constitution of 1978, which provides that everyone has the right to enjoy an environment suitable for personal development, and the duty to preserve it. The public authorities must safeguard the rational use of all natural resources with a view to protect and improve the quality of life and to preserve and restore the environment, through reliance on collective solidarity. Persons who violate these principles are liable to criminal or administrative sanctions, and must repair the damage caused in accordance with the applicable legal provisions.
The central state, the regions (that is, 17 autonomous communities) and local entities share legislative and enforcement powers (Articles 148 and 149, Constitution).
The central state passes the basic, primary legislation and holds certain exclusive powers, including the power to issue:
Legislation and regulations relating to the concession of hydraulic resources (subject to certain exceptions).
Basic legislation on environmental protection, woodlands and forestry.
The regions are responsible for the legislative and regulatory implementation and enforcement of primary legislation. They can also establish additional rules on environmental protection.
Local entities hold environmental competences in matters such as:
Urban waste prevention and management.
Atmospheric and noise pollution.
Granting local licences authorising construction and the operation of certain activities.
Use of the local public domain.
Most Spanish environmental laws and regulations implement EU legislation.
The main central primary legislation is outlined below.
Air quality and atmosphere protection. Law 34/2007, of 15 November 2007, on Air Quality and Atmosphere Protection (Law 34/2007) aims to prevent air pollution and to monitor and protect air quality. Law 34/2007 provides that both state and regional authorities must:
Establish limits to air emissions.
Establish air pollution prevention plans.
Create an authorisation/notification system for potentially polluting activities that are not covered by the Recast Act on Integrated Pollution Prevention and Control (passed by Royal Decree Legislative 1/2016, of 16 December 2016) (IPPC Law).
Law 34/2007 was implemented by Royal Decree 102/2011, of 28 January 2011, on Air Quality Improvement.
Other significant regulations include:
Royal Decree 795/2010, of 16 June 2010, on Substances that Deplete the Ozone Layer.
Royal Decree 227/2006, of 24 February 2006, on Volatile Organic Compounds.
Law 37/2003, of 17 November 2003, Royal Decree 1513/2005, of 16 December 2005, and Royal Decree 1367/2007, of 19 October 2007, which all relate to noise assessment and management, and to environmental noise maps.
Royal Decree 795/2010, of 16 June 2010, on Fluorinated Gases.
Environmental impact assessment (EIA). Law 21/2013, of 9 December 2013, on Environmental Assessment governs the administrative procedure for evaluating:
The anticipated effects on the environment of a proposed development, activity or project (EIA).
Draft plans or programmes (strategic environmental assessment).
If the likely effects on the environment are unacceptable, design measures or other relevant mitigation measures must be taken to reduce or avoid those effects.
In Spain, two regulatory authorities take part in this administrative procedure, the substantive competent body (for example, the mining regional authority in the case of a mining project) and the environmental body. The substantive body grants the authorisation for the activity, while the environmental authority sets out environmental conditions (which are incorporated in the authorisation).
Environmental liability. Law 26/2007, of 23 October 2007, on Environmental Liability (Law 26/2007), sets out an administrative environmental liability regime that is based on prevention and on the "polluter pays" principle. The objectives of Law 26/2007 are to:
Reinforce prevention mechanisms to avoid accidents with harmful consequences on the environment.
Ensure the remediation of environmental damage caused by economic activities, even when they fully comply with the law and all the available preventive measures have been taken.
Guarantee that the responsible operator(s) are responsible for the prevention and remediation of environmental damage.
Law 26/2007 has been implemented by Royal Decree 2090/2008, of 22 December 2008.
Integrated environmental control. The IPPC Law aims to achieve a high level of protection of human health and the environment as a whole, by reducing harmful industrial emissions, in particular through the application of "best available techniques". The IPPC Law also requires installations undertaking industrial activities listed in its Annex to operate in accordance with an integrated authorisation, which contains conditions for the protection of air, waste, soil and water (see Question 12, Integrated environmental authorisation (IPPC authorisation) and Question 15).
Natural heritage and biodiversity protection. Law 42/2007, of 13 December 2007, on Natural Heritage and Biodiversity (Law 42/2007) establishes the basic legal framework for the conservation, sustainable use, improvement and restoration of natural heritage and biodiversity. It is based on the duty to safeguard, and the right to enjoy an environment appropriate for personal development.
Law 42/2007 was implemented by Royal Decree 139/2011, of 4 February 2011, which sets out the:
List of Wild Species under Special Protection Regime.
Spanish Catalogue of Endangered Species.
Law 45/2007, of 13 December 2007, on Sustainable Development of the Rural Environment regulates and establishes basic measures to:
Promote rural economic, social and environmental development.
Improve the quality of life of inhabitants in rural areas.
Promote the protection and appropriate use of ecosystems and natural resources.
Soil contamination and waste. Law 22/2011, of 28 July 2011, on Waste and Contaminated Land (Law 22/2011) sets out the regulatory regime for soil contamination and waste.
Regarding soil pollution, Law 22/2011 has been implemented by Royal Decree 9/2005, of 14 January 2005. This regulatory framework covers potentially soil polluting activities and facilities handling significant amounts of chemicals, or handling and storing big quantities of fuel. The regime provides for:
Initial declarations of potentially polluting activities.
A tiered system for selecting soils requiring a proper site-specific risk assessment.
An administrative proceeding for the declaration of soil pollution.
Regarding waste prevention and management, Law 22/2011 sets out the basic concepts and definitions such as waste, by-product and "secondary raw material" (end-of-waste criteria). It also provides for the following:
Basic waste management principles (including the "polluter pays" principle).
Extended producer responsibility.
Waste management hierarchy.
Recycling and recovery targets.
The obligation of the state and the regions to adopt waste management plans and waste prevention programmes.
Other relevant regulations include the:
Royal Decree 110/2015, of 20 February 2015 on Waste Electrical and Electronic Equipment.
Royal Decree 106/2008, of 1 February 2008 on Waste Batteries.
Royal Decree 679/2006, of 2 June 2006, on Waste Oils.
Royal Decree 1481/2001, of 27 December 2001, on Landfills.
Water. Royal Legislative Decree 1/2001, of 20 July 2001, which approves the consolidated text of the Water Act, regulates the:
Hydraulic public domain.
Use of water.
Exercise of powers attributed to the state in this field.
This Legislative Decree prohibits any direct or indirect discharge of waste water into the hydraulic public domain, except for waste water covered by a water discharge authorisation.
The Natura 2000 network represents approximately 27% of the total area of Spain. Spain is the first EU country in terms of contribution to the Natura 2000 network, representing nearly 17% of the network. Therefore, the conservation of these areas and of biodiversity is a major concern.
Two important international agreements are pending ratification:
The Minamata Convention on Mercury 2013 (Mercury Convention), which aims to protect human health and the environment from the adverse effects of mercury. The Mercury Convention provides for:
a ban on new mercury mines;
the phase-out of existing mercury mines;
the phase-out and phase-down of mercury use in a number of products and processes; and
control measures on mercury emissions and on releases of mercury into land and water.
The United Nations Framework Convention on Climate Change (UNFCCC) Paris Agreement 2015, which was signed by Spain on 22 April 2016. One of the first actions of the new government was to submit the Paris Agreement to Parliament for its ratification under a fast-track procedure. Additionally, the new government declared that it will push through (among other actions) a climate change law that contains all the commitments and instruments necessary for the Spanish economy to become a low-carbon economy that enjoys growth and creates jobs.
Law 42/2007, of 13 December 2007, on Natural Heritage and Biodiversity provides for the adoption of a royal decree governing its implementation regarding both:
Access to, and utilisation of, genetic resources.
The authorities responsible for the application of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity 1992.
A Draft Royal Decree was published on 22 February 2016 and is expected to be approved in 2017.
Additionally, the following domestic regulations are currently being examined:
Draft Royal Decree amending the Public Water Domain Regulation approved by Royal Decree 849/1986, of 11 April 1986, covering flood risk management, ecological flows, hydrological reserves and waste water discharges.
State Plan for Waste Management and Strategic Environmental Study (initial version).
Draft Royal Decree on Waste Oil
International conventions and agreements
International conventions and agreements
The main international environmental agreements ratified by Spain that are relevant to major projects are the:
Convention on Long-Range Transboundary Air Pollution 1979 (Air Pollution Convention).
Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal 1989 (Hazardous Wastes Convention).
Convention on Biological Diversity 1992 and Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (Nagoya Protocol).
United Nations Framework Convention on Climate Change 1992 (UNFCCC).
Convention on the International Trade in Endangered Species of Wild Flora and Fauna 1973 (Endangered Species Convention).
Convention on Wetlands of International Importance especially as Waterfowl Habitat 1971 (Wetlands Convention).
Montreal Protocol on Substances that Deplete the Ozone Layer 1985 (Montreal Protocol).
Other numerous environmental international conventions and agreements have been implemented through EU legislation and specific national laws.
Implementation into domestic law
The main environmental international agreements have been implemented by the following national laws:
Air Pollution Convention:
Law 34/2007, of 15 November 2007, on Air Quality and Atmosphere Protection; and
Royal Decree 102/2011, of 28 January 2011, on the Improvement of Air Quality.
Hazardous Wastes Convention:
Law 22/2011, of 28 July 2011, on Waste and Contaminated Land; and
Royal Decree 180/2015, of 13 March 2015, regulating Waste Transportation within the Territory of the State.
Convention on Biological Diversity 1992 and Nagoya Protocol:
Law 42/2007, of 13 December 2007, on Natural Heritage and Biodiversity;
Royal Decree 1424/2008, of 14 August 2008, regarding the State Commission for Natural Heritage and Biodiversity;
Royal Decree 1274/2011, of 16 September 2011, on the Strategic Plan for Natural Heritage and Biodiversity 2011-2017; and
Royal Decree 556/2011, of 20 April 2011, on the Spanish Inventory of Natural Heritage and Biodiversity.
Law 1/2005, of 9 March 2005, on Greenhouse Gas Emissions Trading Scheme;
Royal Decree 1722/2012, of 28 December 2012, which develops aspects related to the allocation of allowances within the framework of Law 1/2005;
Royal Decree 301/2011, of 4 March 2011, on mitigation measures equivalent to participation in the emissions trading scheme for the purpose of excluding small installations;
Royal Decree 101/2011, of 28 January 2011, which establishes the basic rules that govern the accreditation and verification systems of greenhouse gas emissions and the tonne-kilometre data of aircraft operators;
Royal Decree 1315/2005, of 4 November 2005, which sets out the bases for the monitoring and verification systems of greenhouse gas emissions in facilities within the scope of application of Law 1/2005; and
Royal Decree 1264/2005, of 21 October 2005, regulating the organisation and operation of the National Register of Allowances.
Endangered Species Convention:
Royal Decree 1739/97, of 20 November 1997, on measures to implement the Convention on International Trade in Endangered Species of Wild Fauna and Flora;
Resolution of 5 May 1998, of the General Directorate of Foreign Trade, which authorises the Centres and Units of Technical Assistance and Inspection of Foreign Trade (SOIVRE) to issue permits and certificates;
Royal Decree 1456/2005, of 2 December 2005, regulating the Territorial and Provincial Directorates of Commerce;
Royal Decree 1333/2006, of 21 November 2006, regulating the destination of specimens seized from endangered species of wild fauna and flora protected through the control of their trade;
Law 32/2007, of 7 November 2007, for the Care of Animals, in their Exploitation, Transportation, Experimentation and Slaughter; and
Royal Decree 630/2013, of 2 August 2013, regulating the Spanish Catalogue of Invasive Alien Species.
Royal Decree 435/2004, of 12 March 2004, on National Inventory of Wetlands;
Law 42/2007, of 13 December 2007, on Natural Heritage and Biodiversity;
Royal Decree 1424/2008, of 14 August 2008, regarding the State Commission for Natural Heritage and Biodiversity;
Royal Decree 556/2011, of 20 April 2011, on the Spanish Inventory of Natural Heritage and Biodiversity; and
Royal Decree 1274/2011, of 16 September 2011, on the Strategic Plan for Natural Heritage and Biodiversity 2011-2017.
Montreal Protocol: Royal Decree 795/2010, of 16 June 2010, on the marketing and handling of fluorinated gases and equipment based on them, and on certification of the professionals who use them.
At the central state level, the Ministry of Agriculture and Fisheries, Food and Environment is responsible for the proposal and implementation of the government's policy on the following matters:
Combating climate change.
Protection of natural heritage, biodiversity and the sea.
Livestock and fisheries.
The Ministry is divided into three secretariats:
The Secretariat for Environment, which directs and co-ordinates the execution of the Ministry's powers relating to the following matters:
the formulation of environmental quality policies;
the prevention of pollution and climate change;
environmental assessments; and
the promotion of clean technologies and of consumption habits that are less polluting and more sustainable.
The General Secretariat for Agriculture and Food, which is the governing body responsible for:
the Common Agricultural Policy;
the development and co-ordination of multilateral relations in the field of agri-food policies;
research and innovation in agri-food and irrigation;
the sustainable development of the rural environment; and
the forest policy.
The General Secretariat for Fisheries, which is responsible for:
the planning and implementation of the policy on marine fisheries in external waters and aquaculture;
the basic management of the fisheries sector;
setting out the bases for the marketing and processing of fishery products; and
taking part in the planning of the fisheries research policy.
The Secretariat for Environment is divided into the following departments:
State Meteorology Agency.
Water General Directorate.
Spanish Office for Climate Change.
General Directorate for Evaluation and Environmental Quality.
General Directorate for Sustainability of the Coast and the Sea.
There are also specialised bodies that are subordinated to the Ministry of Agriculture and Fisheries, Food and Environment, such as the:
Hydrographical Confederations (Confederaciones Hidrográficas), which are responsible for the main river basins in Spain.
National Parks Authority, which is in charge of the network of state-administered natural parks and natural protected areas across Spain.
The regions (Comunidades Autónomas) also have environmental protection powers (see Question 2, Overview). The regulatory authorities in autonomous regions mirror the central state structure.
For contact details of the above authorities and their websites, see box, The regulatory authorities.
Environmental incidents and damage
The main risks of liability faced by operators for the construction and operation of major projects relate to contamination and the impact of their activities on natural habitats, biodiversity and waters.
Operators are liable for any environmental damage and must take preventive and corrective measures.
Types of liability
Environmental damage can give rise to civil, criminal, administrative and environmental liabilities.
Civil liability. Civil liability arises in the case of damages caused to third parties in breach of private contract law (Article 1101, Civil Code) and tort law (Articles 1902 and 1908, Civil Code). A person must repair the damage caused to another by its action or omission due to its fault or negligence, provided that there is a causal link between the action/omission and damage.
Criminal liability. Criminal liability arises from the commission of environmental offences established in the Spanish Criminal Code (Articles 325 et seq.). Criminal penalties include imprisonment, fines, closure of facilities, suspension of activities and disqualification.
The Spanish Criminal Code also provides for the criminal liability of legal entities (Article 31bis). To mitigate this liability, many corporate entities operating in Spain (including subsidiaries of multinational companies) implement programmes to prevent, detect and correct all risky actions that could result in criminal prosecutions and convictions. An effective and appropriate programme can be used to avoid criminal liability if the corporate entity can prove that it exercises proper control over the actions of its employees.
Administrative liability. Administrative liability arises from the commission of administrative infringements. Administrative sanctions are set out in various environmental laws. They include fines, closure of facilities and suspension of activities.
Environmental liability. Environmental liability derives from certain types of damages caused to the environment. The aim of Spanish law, under the "polluter pays" principle, is to prevent and remedy environmental damage (that is, damage caused to protected species, natural habitats, water and soil).
Law 26/2007, on Environmental Liability, distinguishes between:
Operators carrying out dangerous activities (listed in an Annex), who fall under a strict liability regime.
Operators carrying out other activities, who are liable for fault-based damage.
Operators can avoid bearing the costs of the prevention, avoidance and reparation measures if one of the following applies:
They prove that the damage was caused by a third party.
As a result of a mandatory order.
An instruction was issued by a competent public authority.
Most environmental laws and regulations in Spain provide for the obligation to report environmental damage immediately to the relevant authorities.
Operators must inform the relevant authorities (mainly regional bodies) without delay on the occurrence of environmental damage, or where there is an imminent threat of damage occurring (Law 26/2007, on Environmental Liability). The notification must contain all the information necessary to take the appropriate actions.
Additionally, operators have various reporting obligations in relation to soil contamination (Law 22/2011, of 28 July 2011, on Waste and Contaminated Land and Royal Decree 9/2005, of 6 June 2005).
Defences to criminal and administrative liabilities usually include:
Evidence that the offence or infringement do not constitute a crime or infraction.
Lack of correspondence between the conduct and the legal infringement.
Statute of limitations.
Expiry of the procedure.
Tort liability can be contested by providing evidence of any of the following:
The alleged damage was not caused by the operator through negligence or wilful misconduct.
The claimant did not suffer damage or did not prove the alleged damage.
Lack of causal link between the action/omission and the damage.
Under the "polluter pays" principle, the party responsible for environmental damage must repair the damage. However, there are exceptions to this rule. For example, the owner or possessor of land has subsidiary liability in the case of soil pollution (Law 22/2011, of 28 July 2011, on Waste and Contaminated Land).
Generally, liability is imposed on the polluter/operator (typically a company or a corporation). However, liability can be imposed on other parties in the following circumstances:
When the operator is a corporate entity and is part of a group of companies, liability can also be allocated to the parent company if the parent company committed an abuse of law or made an abusive use of the operator corporate entity.
Managers and directors of the polluter/operator have subsidiary liability when their conduct has resulted in the polluter's/operator's liability (Law 26/2007, of 23 October 2007, on Environmental Liability).
In the event of death/dissolution of the person/entity responsible, monetary obligations pass in the same way as tax obligations, that is, to the person's heirs or to the entity's shareholders, participants or co-owners.
Regarding criminal liability, a person who acts as legal or de facto director of an undertaking, or who acts in the name of, or as a legal or voluntary representative of another, is personally liable. This applies even when the conditions, circumstances or relations required to constitute a criminal offence or civil wrong are not met by the legal/de facto director or representative, when those conditions, circumstances or relations are met by the individual or undertaking on whose behalf the director/representative acts (Article 31, Spanish Criminal Code).
A director who is convicted of a criminal offence can also be subject to a civil action for tort or contractual liability, and be required to pay damages.
Contractual allocation of liability/risks
Criminal and administrative liabilities cannot be transferred. However, the economic obligations arising out of those liabilities (for example, to restore and clean up certain environmental damage) can be freely allocated among the parties to a transaction.
In a sale of real estate assets, the buyer commonly assumes the obligation to perform any necessary remediation activity to clean up contamination that has already been detected. However, the seller will bear the remediation expenses, unless the buyer agrees to bear them in exchange of a discount on the purchase price.
The allocation or transfer of environmental liability only operates between the parties, and is not enforceable against public authorities and third parties.
The offer of environmental insurance policies is very broad. Most insurance companies have specific policies for environmental liabilities.
Typically, liability under the Law 26/2007, of 23 October 2007, on Environmental Liability (Law 26/2007) is covered by specific policies. General civil liability insurance policies usually cover other types of environmental liabilities. General civil liability policies usually exclude liability arising from Law 26/2007. It is therefore advisable to take out both types of insurance policies.
Major projects usually entail a number of actual or potential impacts on the environment. The most common impacts include the following:
Consumption of water.
Waste water discharges.
Emissions into the atmosphere.
Production of waste (some of which may be hazardous waste).
Greenhouse gases emissions.
Potential pollution of soils and/or groundwater as a result of accidents, leakages or spillages.
Impact on wildlife, plants, forests, protected areas and so on.
Due to those environmental impacts, major projects are normally subject to a number of environmental controls, requirements, limits and obligations.
Major projects also usually require certain environmental licences and are subject to procedural requirements. Those requirements must be met before an operator can start construction and other activities.
As a result of the distribution of powers on environmental matters (see Question 2, Overview), the applicable legal framework comprises legislation and regulations at the national, regional and local levels.
National legislation and regulations contain the basic rules on proceedings and licences. Regional and local regulations can establish their own rules, proceedings and licences, provided that they comply with the minimum national requirements (that is, regional and local regulations can require different environmental licences and impose stricter obligations than those established at a national level). Additionally, regional and local regulations are not harmonised.
Consequently, different rules, proceedings and licences can apply to the same project depending on its location. The location of a project is therefore one of the main factors for determining the applicable environmental regulatory framework.
This answer focuses on the most common environmental procedures and licences at the national level.
An EIA is not an environmental licence, but a proceeding that is required in certain cases to analyse the impacts of a particular project. EIAs are regulated by Law 21/2013, of 9 December 2013, on Environmental Assessment.
The EIA includes an analysis of the effects that a project may have on the people, health, plants, wildlife, biodiversity, geo-diversity, soil, subsoil, air, water, climate, climate change, landscape, goods and cultural heritage.
The authority that processes the EIA varies depending on the authority competent to grant the relevant activity licences. For example, the Energy Ministry of the Spanish Government is responsible for granting licences to construct and operate oil refineries. In those cases, the Environment Ministry of the Spanish Government will therefore process the EIA. If the competent authority is a department of a regional government or a municipality, that authority will deal with the EIA.
The EIA procedure concludes with the issuance of an environmental impact statement (EIS), which is published in the relevant official gazette. The environmental authority must issue the EIS within four months (extendable for two additional months) from the date the operator submitted the complete information and documentation on its project. If the competent authority does not issue the EIS within that timeline, the EIS is deemed negative (although the EIS can be issued after the deadline).
The EIS can impose conditions and obligations that the operator must observe (including preventive and corrective measures). Those conditions and obligations are included in the relevant environmental licences.
The EIS does not have a determined term of validity. However, if the project construction works are not initiated within four years, the operator will need to apply for a new EIA, unless it obtains an extension.
The competent authority usually processes the EIA while processing other files relating to the granting of environmental licences. If the EIA is mandatory, the environmental licences cannot be granted unless the EIS is issued and concludes that the project is compatible with the environment.
If the project requires an EIA, an operator that commissions the project without having previously obtained a favourable EIS may be liable to an administrative fine of up to EUR2.4 million, among other sanctions.
See Question 13 for further information on EIAs.
Integrated pollution prevention and control authorisation (IPPC authorisation)
The IPPC authorisation involves an integrated procedure under which the competent environmental authority collects the reports and permits from the different authorities involved, including those relating to waste water discharges, air emissions and waste production. The IPPC authorisation integrates the EIA procedure, and the relevant municipality delivers a report on the aspects of the project that are within its competence, including town planning provisions.
The environment department of the regional government where the project is located is responsible for granting IPPC authorisations.
The IPPC authorisation procedure comprises various stages, including:
The hearing of any affected administration and public entity.
A one-month public disclosure stage, during which any person can submit allegations against the project.
A period during which the operator can make allegations and observations on the reports submitted by administrations and public entities, and on the claims submitted by any third party during the disclosure stage.
The total period for the processing and granting of IPPC authorisations is nine months from the date the operator submits all the required documents. If that term lapses and the competent authority has not granted the IPPC authorisation, the application is deemed rejected (however, the IPPC authorisation can be granted after that deadline). The IPPC authorisation is published in the relevant official gazette.
Once the mandatory reports and permits have been issued and granted, the competent environmental authority grants the IPPC authorisation. If the result of the EIA is negative, the IPPC authorisation will be rejected.
The IPPC authorisation includes the mandatory environmental licences relating to waste water discharges, air emissions and waste production.
The IPPC authorisation imposes conditions and obligations for operating the installations and performing the activity (for example, thresholds, preventive and corrective measures, periodical reporting, implementation of best available techniques and so on).
IPPC authorisations are granted for an undetermined term. The competent authority can revise and update IPPC authorisations.
If the operator of the project intends to make substantial modifications to it after the granting of the IPPC authorisation, a new IPPC authorisation will be required. If the modification is not substantial, the operator will only need to notify the authority that granted the IPPC authorisation, which will be entitled to impose new conditions and obligations in light of the intended modifications.
If the project falls with the scope of the IPPC authorisation, but the operator commissions the project without having previously obtained it, this may entail an administrative infringement punishable with fines of up to EUR2 million, and additionally as ancillary sanctions:
Total or partial (temporary or definitive) closure of the facilities.
Prohibition on carrying out the project for a maximum term of two years.
The IPPC authorisation procedure is governed by the Recast Act on Integrated Pollution Prevention and Control (IPPC Law), and Royal Decree 815/2013, of 18 October 2015.
If the project does not fall with the scope of the IPPC authorisation, the operator will need to separately apply for, and obtain, the relevant environmental licences from each competent authority.
Wastewater discharges. Any direct or indirect discharge of waste water requires a waste water discharge authorisation.
The authority responsible for granting waste water discharge authorisations is the relevant water authority, except in cases where the water is discharged into the municipal sewage system (in which case the competent authority will be the municipality).
The procedure includes a one-month public disclosure stage, during which any person can submit allegations. The total processing time is one year from the date the operator submitted the complete information and documentation. If the relevant authority has not granted the authorisation within that period, the licence application is deemed rejected (however, the authorisation can be granted after that deadline).
The waste water discharge authorisation sets out the quantity and quality thresholds. The authorisation can also impose conditions and obligations, including the implementation of best available techniques and conditions relating to the pre-treatment of waste water and related facilities.
The waste water discharge authorisation is granted for a five-year term, which can be renewed for additional periods of five years.
The modifications of the discharges can be subject to revisions, and new authorisations may be required.
If the operator starts its activity and discharge waste water without having previously obtained a waste water discharge authorisation, this may entail an administrative infringement punishable with fines of up to EUR1 million and other ancillary measures.
The legal framework governing waste water discharge authorisations is set out in the Recast Act 1/2001, of 20 July 2001, on Waters, and Royal Decree 849/1986, of 11 April 1986, passing the Regulation on water public domain.
Air emissions. There is a list of activities that are considered to be potentially polluting. This list includes different categories of activities that are categorised in groups (A, B or C), depending on their potential polluting impact (activities within group A being the most potentially polluting, and activities within group C the less potentially polluting). Therefore, the conditions and obligations (including maximum emission thresholds) are more restrictive for activities within group A.
Operators of activities within groups A and B must obtain an authorisation from the environmental department of the autonomous region where the activity is intended to be located. The authorisation is granted for a maximum term of eight years (renewable). The competent authority has nine months to process the authorisation application. If that term elapses and the authority has not granted the authorisation, the application is deemed rejected (however, the authorisation can be granted after that deadline).
Operators of activities within group C must file a communication with the regional environmental department before operations commence.
If there is a substantial modification of the activities, the operator will need to obtain a revised or a new authorisation (for activities within groups A or B) or to file a new communication (for activities within group C).
If an operator starts its operations without having obtained an authorisation or without having previously filed a communication (as applicable), this may entail an administrative infringement, punishable with fines of up to EUR2 million and other ancillary sanctions.
Air emission authorisations and communications are governed by Act 34/2007, of 15 November 2007, on Air Quality and Atmosphere Protection, and Royal Decree 100/2011, of 28 January 2011, updating the list of activities potentially polluting for the air and setting out the applicable basic provisions.
Waste production. An operator that produces hazardous waste, or non-hazardous waste exceeding 1,000 tonnes per year, must file a communication before starting its operations. The communication must be filed with the environmental department of the autonomous region where the operator intends to install its facilities.
The operator must both:
Comply with certain obligations relating to the storage, packaging and labelling of hazardous waste.
Submit a plan for the reduction of the production of hazardous waste (except if the production of hazardous waste does not reach 10 tonnes per year).
Starting operations without having previously filed a communication may entail an administrative infringement that is punishable with fines of up to EUR1.75 million and other ancillary sanctions.
Waste production communications are governed by Act 22/2011, of 28 July 2011, on Waste and Contaminated Land.
Greenhouse gases emission authorisation (GHG authorisation)
Facilities that produce greenhouse gases emissions must obtain a GHG authorisation from the environmental department of the autonomous region where the facilities are located.
The competent authority must grant the GHG authorisation within three months of receipt of the application documents. If the authority does not grant an authorisation within that period, the application is deemed rejected (although the GHG authorisation can be granted after that deadline). An operator can start its activities without a GHG authorisation if the three-month deadline has expired and the operator establishes a system to monitor emissions.
Once the GHG authorisation is granted, the competent authority sends a notification to the National Registry of Emissions Allowances.
The competent authority can revise GHG authorisations at least every five years, and can make amendments to them.
Starting operations producing greenhouse gases without having previously obtained a GHG authorisation is an administrative infringement punishable with fines of up to EUR2 million and other ancillary sanctions.
GHG authorisations are regulated by Act 1/2005, of 9 March 2005, on Greenhouse Gas Emissions Trading Scheme.
Municipal environmental licences
In some autonomous regions, municipalities can grant environmental licences under certain circumstances. Those municipal environmental licences can be mandatory in addition to the IPPC authorisation (although in some cases a municipal environmental licence may not be mandatory if the IPPC authorisation is required) and other environmental licences.
The procedure and requirements to obtain municipal environmental licences, and the conditions and obligations that they can impose, are set out in the applicable regional legislation.
Projects can be subject to one of the following types of EIAs (Article 7, Law 21/2013, of 9 December 2013, on Environmental Assessment (Law 21/2013)):
projects included in Annex I to Law 21/2013;
projects included in Annex II to Law 21/2013, when the competent authority so decides according to the environmental criteria set out in Annex III;
any modification of projects included in Annex I or II, when those modifications meet the thresholds set out in Annex I; and
projects subject to a simplified EIA, when requested by the developer.
projects included in Annex II;
projects not included in Annex I or II that may affect protected areas from the Natura 2000 Network; and
any modification of projects included in Annex I or II, other than the modifications subject to the ordinary procedure, already authorised, implemented or in the process of being implemented, which may have significant adverse effects on the environment.
Projects that can be presented in a segmented form but that jointly reach the thresholds of Annexes I or II require an EIA.
The following activities usually require a mandatory EIA:
Major civil engineering works (such as roads, railways, wind farms, power lines and transformer stations and power stations).
Energy projects (for example, oil refineries, gasification and liquefaction facilities, thermal power stations and other combustion plants with a thermal power of at least 300 MW, nuclear power stations and other nuclear reactors, and so on).
Ski tracks and resorts.
Dredging works on rivers.
Construction of forest tracks and paths.
Waste disposal and recovery facilities.
Ordinary EIA procedure
The stages of the ordinary EIA procedure are as follows:
The promoter requests the substantive body (see Question 2, Overview: Environmental Impact Assessment (EIA)) to determine the scope of the environmental impact study, and submit the initial documents on the project. Once it has verified the adequacy and conformity of the documents submitted, the substantive body sends them to the environmental body (optional).
The environmental body determines the scope of the environmental impact study, after consulting the public administrations concerned and interested parties (if applicable).
The project promoter submits its environmental impact study to the substantive body.
The substantive body carries out public information and consultations procedures with the relevant public administrations and interested persons. Both procedures can be performed simultaneously:
the public information procedure consists of disclosing the environmental impact study and the project to the public for a period of at least 30 days;
the consultation procedure involves the administrations and interested parties that have been consulted in relation to the scope of the environmental impact study (see above).
The substantive body submits the results of the public information and consultation procedure to the promoter.
The substantive body requests an environmental impact statement from the environmental body.
The environmental body issues an environmental impact statement.
However, if after the technical analysis, the environmental body considers that the information submitted is insufficient, it will require the responsible person (that is, the substantive body or the promoter, via the substantive body) to submit additional information.
Simplified EIA procedure
The stages of the simplified EIA procedure are as follows:
The promoter requests the initiation of the simplified EIA procedure to the substantive body, and submits the environmental documents of the project. Once it has verified the conformity of the documents submitted, the substantive body sends them to the environmental body to initiate the procedure.
The environmental body issues an environmental impact report after consulting the public administrations concerned and any interested persons.
The decision (authorising or rejecting the project) is made public and takes into account the outcome of the consultations.
The environmental body can determine that the project is subject to the ordinary EIA procedure. In that case, the environmental body must inform the promoter of the scope of the environmental impact study and provide the answers received during the consultations carried out, so that the promoter can prepare an environmental impact study.
Targets and technologies
See Question 12 for details on the main types of environmental licences.
Major projects usually entail a number of environmental impacts, which require mandatory environmental licenses.
This answer provides information on the projects that are covered by the integrated pollution prevention and control authorisation (IPPC authorisation) procedure (see Question 12, Integrated pollution prevention and control authorisation (IPPC authorisation)).
An IPPC authorisation is not mandatory for projects that do not fall within the categories outlined below, but those projects may require other authorisations (for example, waste water discharge authorisation, air emissions authorisation or communication, and/or waste production communication) (see Question 12, Environmental licences). Greenhouse gases emission authorisations and municipal environmental licences may also be required.
Commercial/residential building projects
Commercial/residential building projects do not require an IPPC authorisation, but may require other authorisations.
Oil and gas
The following activities require an IPPC authorisation (paragraph 1.2, Annex I, Recast Act on Integrated Pollution Prevention and Control (IPPC Law)):
Installations for refining oil or mineral oil.
Installations for the production of gas other than natural gas and liquefied petroleum gases.
Other oil and gas projects may require other authorisations.
An IPPC authorisation is required for the following combustion installations with a rated thermal input equal to, or higher than, 50 MW (paragraph 1.1, Annex I, IPPC Law):
Electric power generation installations powered by fossil fuels, waste or biomass.
Cogeneration plants, boilers, steam generators or any other combustion equipment or installation in an industrial plant, regardless of its activity.
Other power projects may require other authorisations.
Mining projects do not require an IPPC authorisation. Those projects may require other authorisations.
Transport/infrastructure projects do not require an IPPC authorisation. Those projects may require other authorisations.
Other projects that require an IPPC authorisation are listed in Annex I to the IPPC Law.
Cap and trade schemes and others
Greenhouse gas emissions trading schemes
Law 1/2005, of 9 March 2005, on Greenhouse Gas Emissions Trading Scheme implements the EU Emissions Trading System (EU ETS) in Spain. The EU ETS has entered phase III 2013-2020 (second commitment period of the Kyoto Protocol), which is stricter than the previous phases. Therefore, less free allowances are allocated to industrial activities, to push them to further reduce their greenhouse emissions. The free allocation methodology is determined through harmonised standards adopted at the EU level.
There are environmental taxes under the regional governments' (autonomous communities') fiscal systems. The main environmental taxes are:
Sanitation and water charges, the objective of which is to regulate the discharge of sewage and to fund sewage treatment infrastructures.
Taxes on atmospheric pollution, which are levied on the emission of certain pollutants into the air (for example, emissions of sulphur oxides and nitrogen oxides in Galicia, and emissions of a large number of industrial facilities in Andalusia).
Taxes on waste disposal in landfills (for example, dangerous waste in Andalusia and Castilla-La Mancha, and solid waste in Madrid and Catalonia).
On 9 December 2016, the Spanish Government included new environmental taxes in the revised budgetary plan (Update of the Budget Plan 2017, Kingdom of Spain) submitted to the European Commission. The Governments wants to raise EUR500 million from new environmental taxes as part of a package of fiscal measures to meet EU budget deficit goals.
Corporate responsibility/best standards
Generally, Spanish legislation complies with the highest international standards regarding corporate responsibility.
Although operators have no legal obligation to apply certain international standards, these are commonly used by operators and lenders in a wide variety of projects (for example, the Equator principles in project finance).
A seller/licence holder has no express obligation to disclose potential liabilities (including environmental issues) to the buyer, contractor or joint venture participants. However, the parties to a transaction must act in good faith. Failure to disclose relevant information (of which the seller is aware) may therefore be considered as a breach of the duty of good faith, entitling the buyer to seek damages or the nullity of the contract (in certain circumstances) under the Spanish Civil Code.
A company must include all relevant information regarding the environmental impact of its activities in the company's annual accounts, by means of an annual environmental report (Royal Decree 1514/2007).
The annual environment report must include the following information:
Description and characteristics of the most significant systems, equipment and installations included in the company's property that are aimed at minimising the company's environmental impact, and at protecting and improving the environment.
Expenses incurred during the year for the protection and improvement of the environment.
Risks relating to environmental actions, with a special mention of the risks arising from pending litigation, indemnities and others.
Contingencies related to the protection and improvement of the environment.
Investments made during the year for environmental reasons.
Compensations to be received from third parties.
Corporate entities do not have a general obligation to disclose environmental information to the public, except under the public information procedures in the context of environmental impact assessments and certain permits/authorisations (see Question 12). However, it is very common for major corporations to publish an annual environmental report.
Public authorities must grant access to environmental information to any person, as required by Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage (implemented by Law 27/2006, of 18 July 2006). This includes information on:
The state of natural resources.
Biological diversity and its components.
Emissions affecting or likely to affect the environment.
Environmental policies and legislative measures.
Reports on legislation implementation.
State of human health and safety.
The regulatory authorities
Ministry of Agriculture and Fisheries, Food and Environment (Ministerio de Agricultura y Pesca, Alimentación y Medio Ambiente)
Secretariat for Environment (Secretaría de Estado de Medio Ambiente)
General Secretariat for Agriculture and Food (Secretaría General de Agricultura y Alimentación)
General Secretariat for Fisheries (Secretaría General de Pesca)
Regions (Comunidades Autónomas)
Council for the Environment and Country and Town Planning (Consejería de Medio Ambiente y Ordenación del Territorio) (Junta de Andalucía)
Department of Rural Development and Sustainability (Departamento de Desarrollo Rural y Sostenibilidad) (Gobierno de Aragón)
Agriculture, Fisheries and Food Council (Consejería de Medio Rural, Pesca y Alimentación) (Gobierno de Cantabria)
C/ Albert Einstein, 2; 39011 – Santander (Spain)
T +34 942 207 853
Agriculture, Environment and Rural Development Council (Consejería de Agricultura, Medio Ambiente y Desarrollo Rural) (Gobierno de Castilla-La Mancha)
Development and Environment Council (Consejería de Fomento y Medio Ambiente) (Junta de Castilla y León)
C/ Rigoberto Cortejoso, 14; 47014 – Valladolid (Spain)
Department of Territory and Sustainability (Departamento de Territorio y Sostenibilidad) (Generalitat de Catalunya)
Avda. de Josep Tarradellas, 2-6; 08029 – Barcelona (Spain)
T +34 934 958 080
Environment and Sustainability Council (Consejería de Medio Ambiente y Sostenibilidad) (Ciudad Autónoma de Ceuta)
C/ Teniente Olmo, s/n; 51001 – Ceuta (Spain)
T +34 956 528 200
Co-ordination and Environment Council (Consejería de Coordinación y Medio Ambiente) (Ciudad Autónoma de Melilla)
Council for Agriculture, Rural Development, Environment and Energy (Consejería de Agricultura, Desarrollo Rural, Medio Ambiente y Energía) (Junta de Extremadura)
Avda. Luis Ramallo, s/n; 06800 – Mérida (Badajoz) – Spain
Council of Environment and Country and Town Planning (Consellería de Medio Ambiente e Ordenación do Territorio) (Xunta de Galicia)
Environment, Agriculture and Fisheries Council (Consejería de Medio Ambiente, Agricultura y Pesca) (Govern Illes Balears)
C/ Gremi de Corredors, 10 (Polígon Son Rossinyol); 07009 – Palma de Mallorca (Spain)
T +34 971 176 666
Council of Territorial Policy, Sustainability and Security (Consejería de Política Territorial, Sostenibilidad y Seguridad) (Gobierno de Canarias)
C/ Prof. Agustín Millares Carló, 18 - Ed. Usos Múltiples II, Planta 5ª; 35071 – Las Palmas de Gran Canaria (Spain)
T +34 928 306 550
Agriculture, Livestock Breeding and Environment Council (Consejería de Agricultura, Ganadería y Medio Ambiente) (Gobierno de La Rioja)
Council of Environment, Local Administration and Town and Country Planning (Consejería de Medio Ambiente, Administración Local y Ordenación del Territorio) (Comunidad de Madrid)
C/ Alcalá, 16; 28014 – Madrid (Spain)
Department of Rural Development, Environment and Local Administration (Departamento de Desarrollo Rural, Medio Ambiente y Administración Local) (Gobierno de Navarra)
C/ González Tablas 9; 31005 – Pamplona (Spain)
T +34 848 426 698
Department of Environment and Territorial Policy (Departamento de Medio Ambiente y Política Territorial) (Gobierno Vasco)
C/ Gran Vía, 85; 48011 – Bilbao (Bizkaia), Spain
Infrastructure, Territorial Planning and Environment Council (Consejería de Infraestructuras, Ordenación del Territorio y Medio Ambiente) (Gobierno del Principado de Asturias)
C/ Coronel Aranda, 2; 33005 – Oviedo (Asturias), Spain
Water, Agriculture and Environment Council (Consejería de Agua, Agricultura y Medio Ambiente) (Región de Murcia)
Pl. Juan XXIII, s/n; 30008 – Murcia (Spain)
T +34 968 362 000
Council of Agriculture, Environment, Climate Change and Rural Development (Conselleria de Agricultura, Medio Ambiente, Cambio Climático y Desarrollo Rural) (Generalitat Valenciana)
C/ Castán Tobeñas, 77, Ciutat Administrativa 9 d'Octubre. Edif. B; 46018 – Valencia (Spain)
Description. This website provides access to the legislation database of the Official Gazette.
Spanish Constitution (English version)
Description. This website provides access to the English version of the Spanish Constitution.
Santiago Garrido, Partner
Professional qualifications. Spanish Bar
Areas of practice. Administrative and public law; energy and natural resources; environmental law. (Recognised by the international directories Chambers and Partners, Legal 500 and Who's Who 100 Top Lawyer as a leading lawyer (Band 1 for environmental law)).
Languages. Spanish, English
Olga Serrano, Senior Associate
Professional qualifications. Spanish Bar
Areas of practice. Administrative and public law; energy and natural resources; environmental law.
Non-professional qualifications. Doctor of Law; lecturer in leading Spanish Universities such as the Universidad Autónoma de Madrid (UAM) and the Universidad de Alicante
- Litigation: representing several multinational companies in administrative, civil and criminal proceedings related to liabilities for environmental damage.
- Advising public and private entities, mainly in the fields of waste, soil pollution and climate change and on the greenhouse gas emissions allowance trading scheme.
- Assisting regional and local authorities in the formulation of laws and regulations (waste prevention and management, soil pollution, climate change mitigation, integrated pollution control and permits, and so on).
Languages. Spanish, English
David Antón, Senior Associate
Professional qualifications. Madrid Bar
Areas of practice. Administrative and public law; energy and natural resources; environmental law.
- Advising clients in administrative and judicial proceedings at national, regional and local levels, including challenging regulations (accustomed to deal with public authorities).
- Advising clients on the processing and grant of environmental permits, the implementation of environmental monitoring systems and other preventive and corrective measures, and defending clients in proceedings relating to the revocation of permits and the imposition of sanctions.
Languages. Spanish, English