2. It is not constitutionally possible to make exceptions to the environmental impact assessment (evaluación de impacto ambiental, EIA) based on general criteria or conditions established in laws and regulations, which would empty Article 50 of the Constitution of its content (see sentencia #2002-01220 of 14:48 hours on February 6, 2002); and,
\n3. By virtue of the precautionary principle, established in binding international norms of supra-legal rank, in order to provide due protection to the right to a healthy and balanced environment, the obligation of the EIA is imposed. At the United Nations Conference on Environment and Development in 1992, where Costa Rica subscribed, along with other nations, to the Rio Declaration, it is necessary to point out Principle 15: \"In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.\" and Principle 17: \"Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority\" (see sentencia #2002-05977 of 11:23 hours on June 14, 2002).-
\nV.- Of particular interest is what was considered by this Tribunal, in the unconstitutionality action #01-002886-0007-CO, brought against Articles 19 and 20 of Decreto Ejecutivo #26.228-MINAE, regarding urban development projects, in the sense that
\n\"Article 50 of the Constitution is the direct source of the right of 'every person' to a healthy and ecologically balanced environment, which binds the Public Powers in the protection of the environment, conceptualized in the broadest possible sense, in the application of the protective norm. Repeatedly, this Chamber has pointed out that the development of fundamental rights and public liberties is reserved to law; it is for this reason that in this field, the regulatory power that the Political Constitution itself reserves to the Executive Branch is unimaginable without the existence of a law. It has already been advanced that the Organic Law of the Environment establishes in Article 17, as a development of what Article 50 of the Constitution provides, the obligation to have an EIA to carry out activities or projects that by their nature may alter or contaminate the environment. As the Attorney General's Office correctly points out in its report, the EIA is conceived, by the legislator, as a technical procedure that allows controlling a possible environmental alteration with the consequent affectation of ecosystems. Without a doubt, it is a technical matter whose detailed regulation escapes the logic of the legislative procedure and can, as a thesis of principle and within the existing legal framework, be regulated by the Executive Branch. The Organic Law of the Environment clearly states that '...Human activities that alter or destroy elements of the environment or generate waste, toxic or hazardous materials, shall require an environmental impact assessment created in this law...', which allows affirming, in a correct reading, that no human activity that can alter or contaminate the environment can dispense with the referred EIA. The formula that the Executive Branch has devised so that it can be established, 'prima facie', whether the human activity undertaken can alter or destroy the environment, has been the presentation of the form called 'Preliminary Environmental Assessment'. It is not then, as the Administrative Environmental Tribunal maintains in its report, that the Executive Branch has absolute discretion to indicate the projects that must carry out the EIA, since by provision of the Political Constitution itself (Art. 50) and the Organic Law of the Environment, as a general principle, every human activity that modifies the environment 'shall require' the referred study. It is then the condition of the project or the work that will determine, in each case, whether the EIA is required or not, and not the establishment of arbitrary conditions through regulations. The regulation should only establish the manner in which the project's conditions will be known, and that is what will determine the appropriateness or inappropriateness of the EIA. This means that the defense and preservation of the right to a healthy and ecologically balanced environment, conceptualized in Article 50 of the Constitution, is the fundamental right of every person and operates as an unavoidable general principle, so that in this matter it is not possible to make generic exceptions (in urban development matters and other topics addressed by Articles 19 and 20) to exempt the fulfillment of environmental obligations, since doing so runs the risk of de-constitutionalizing the guarantee of state response in defense of the environment. Thus, the mechanism used by the Decreto Ejecutivo determining 'a priori' activities or works that are exempt from the EIA, in consideration of the size of the work, the existence of regulatory plans, the number of people in the operation or activity, the number of rooms, the project classification (social interest) or the land use, evidences an excess in the exercise of the regulatory power that surpasses the referral to Article 17 of the Organic Law of the Environment and that empties the content of the inhabitants' right for the Public Powers to exercise direct environmental control – not by delegation in environmental regents (regencias) – in the application of protective legislation. This is not to say that the Executive Branch cannot, via regulation, determine, based on precise technical studies, that a specific activity or project does not require the EIA; but this supposes that such a definition is duly motivated and justified. It should be remembered that in the case of exempting a higher-rank control (constitutional), the reasonableness and proportionality of the exceptional circumstance will be reviewable by the judge, whether through ordinary legal channels or constitutional control. But to the general regime conceived by the derived Constituent, a generalized exception that has no other motivation or foundation than the very existence of the norm that so declares it is inadmissible. (…) bear in mind that by legal provision 'all' human activities that transform the environment must be submitted to the preliminary assessment study. On the other hand, the Attorney General's Office maintains, regarding urban development projects, that the reformed norm violates the principle of reasonableness, and the Chamber must conclude, in application of its own jurisprudence on this topic, that this is so insofar as not a single technical justification has been presented before this Tribunal to 'preventively' and 'generically' exclude certain urban development projects from technical studies, with which we are additionally in the presence of an evident and manifest unreasonableness that this Chamber must declare. The Chamber must insist that it is the specific situation of the project or human activity that can originate the unnecessary presentation of an environmental study, but not the regulatory norm. Indeed, a very small area of land can be biologically important and therefore require all types of environmental control; and another area, immense, could lack that importance; moreover, the existence of a regional or cantonal regulatory plan that establishes land use does not exclude the obligation of the study, as the development company seems to understand, since the specific environmental control that has been established by numeral 17 of the Organic Law of the Environment is based on Article 50 of the Political Charter, which cannot be understood as disapplied by local norms; rather, they must be integrated in attention to that protective mandate\" (sentencia #2002-01220 of 14.48 hours on February 6, 2002).
\nVI.- Following the same reasoning of said judgment, the exclusion of the EIA and its approval by SETENA for minor and specific projects, provided for in Articles 129 and 153 of the challenged Decreto, constitute a defect in the exercise of the regulatory power, insofar as it does not fall within the assumptions of regulatory delegation provided for by Article 17 of the Organic Law of the Environment and developed by the Chamber in the referred judgments; thereby, it violates, by emptying it of content, the fundamental right recognized in Article 50 of the Constitution. To reach this conclusion, the Chamber has considered that the minor projects defined in the Decreto, regarding the possibility of environmental damage they may cause, do not differ in anything from the others contemplated in the Decreto, for which the approval, by SETENA, of the respective EIA is indeed required. The constitutionality of the challenged norms is defended by the then Minister of the Presidency and Minister of Environment and Energy with the argument that the special procedures for minor projects are defined by a quantitative extraction limit of 20,000 cubic meters, calculated based on the number of dump trucks that, during four months, can transport the materials to be used, over a distance between the extraction site and the utilization site whose journey does not exceed half an hour, for a period of four months, which does not constitute any reasoning adjusted to the rules of science or technique from which it can be derived that said mining exploitations do not produce significant negative impacts on the environment that justify the non-application of the respective study. On the contrary, in the same Decreto, the requirement is established for any other mining activities carried out by an individual, as well as for other exploitations by Municipalities and autonomous entities (Art. 112) of the State (Art. 141) and State contractors (Art. 160), regardless of whether or not they exceed 20,000 cubic meters. So the same Decreto provides sufficient reasons to consider that the EIA obligation in all these cases is reasonable and that mining activity implies an evident environmental risk, which, although, according to what the Ministers affirm, is not surmountable in all cases through the EIA, said study is effective in the majority of cases and, above all, is indispensable, in application of the precautionary principle, to the extent that mining exploitation constitutes one of the situations provided for in Article 17 of the Organic Law of the Environment, in that activities that alter or destroy elements of the environment or generate waste, toxic or hazardous materials, shall require an environmental impact assessment (evaluación de impacto ambiental), by SETENA.
\nVII.- The comprehensive reading of the challenged Decreto, in light of the Constitution, the provisions of the Mining Code on environmental protection (Arts. 98 to 104), and the jurisprudence of the Chamber, give rise to the conclusion that there is an evident unconstitutionality in Articles 129 and 153 of the Decreto, by omission, given that they did not include the mandatory requirement of the EIA approved by SETENA, in the cases contemplated in Articles 128 and 152, as it did in all others. The violation of the Constitution can be by action as well as by omission (Art. 73 of the Law of Constitutional Jurisdiction), and, in the present case, the unconstitutionality lies in the omission to include the EIA requirement. Therefore, it is appropriate to declare the action with merit in the sense that it is unconstitutional to omit requiring the EIA and its corresponding approval by SETENA as a prerequisite to the requests regulated in Articles 129 and 153 of Decreto Ejecutivo #29300-MINAE \"Reglamento al Código de Minería\", for which reason said requirement must be demanded for the effect of authorizing the minor and specific projects defined in Articles 128 and 152 of the same Decreto. The preceding declaration has declaratory and retroactive effect to the date of validity of the act or norm, without prejudice to rights acquired in good faith.
\nVIII.- However, the preceding decision obliges the Chamber to consider whether the nullifying consequences provided for in Article 88 of the Law of Constitutional Jurisdiction derive from said unconstitutionality or whether, on the contrary, it is appropriate to resort to other provisions to remedy the declared unconstitutionality, because the constitutional violation derives from an omission. This Tribunal, in the exercise of constitutional control, has applied the principle of conservation of norms, to issue annulment judgments when the constitutional violation is insurmountable, whether due to the confrontation of the text of the norm, its effects, its interpretation, or application by public authorities, with constitutional norms and principles (Art. 3). Insofar as the constitutionality of the norm is surmountable through its conforming interpretation or by another means, the drastic annulment solution can and should be avoided. The legislator did not provide specific regulations on the estimatory judgments in cases where the constitutional violation has been declared due to an omission, for which reason the Chamber, in some case, has analogically applied the second paragraph of Article 49 of the Law of Constitutional Jurisdiction, referring to the amparo remedy, which provides that 'if the amparo has been established for an authority to regulate, comply with, or execute what a law or other normative provision orders, said authority shall have two months to comply with the prevención' (see sentencia #1463-90 of 14:30 hrs. on October 30, 1990). However, the Chamber considers that said provision, although applicable to cases where there has been an omission to regulate, determined through the amparo or the unconstitutionality action, is not, necessarily, so in cases like the present, where the estimatory judgment for the action detects a normative omission, or a gap, which may even be a consequence of an error by whoever issues the norm, which is, precisely, the cause of the unconstitutionality and which can be remedied by other means. Indeed, the legislator left in the hands of the Tribunal the solution to unconstitutional omissions and unconstitutionalities by omission, for which the Tribunal must order what is appropriate, in accordance with Article 14 of the Law of Constitutional Jurisdiction, according to which, in the absence of express provision, the principles of constitutional law shall be applied, as well as those of general public and procedural law or, in their case, those of international or community law and, additionally, in order, the General Law of Public Administration, the Regulatory Law of the Contentious-Administrative Jurisdiction, and the Procedural Codes. As the unconstitutionality lies in said omission, but not in the content of the norms themselves, it is also not appropriate to apply the nullifying effects provided for in Article 88 of the Law of Constitutional Jurisdiction because said omission cannot result in an annulment judgment, since it is obvious that no annulment is applicable to omissions, but rather that the omission must only be repaired or satisfied.
\nIX.- Despite the simplicity of the underlying constitutional argument from which the indicated unconstitutionality derives, the matter entails a particular situation, from the point of view of the effects of the judgment, since a pure and simple application of what is provided in Article 88 of the Law of Constitutional Jurisdiction would lead to the drastic solution of ordering the annulment of Articles 129 and 153 of the Decreto; however, none of the requirements contemplated in those provisions is challenged, nor does the Chamber find any unconstitutionality. What occurs, from the point of view of the normative structure, is not that said articles are unconstitutional, but that the norm stating that the approval of the minor and specific projects provided for in Articles 128 and 152 of the Decreto requires the EIA was not provided, which norm exists in the legal system, derived from Article 50 of the Constitution, the international instruments cited supra, and the jurisprudence of the Chamber, with which, it must be interpreted, in the same way that this Tribunal has done through the amparo remedy, that the EIA is mandatory for other concrete cases, equally, for the minor and specific procedures.
\nPor tanto:
\n \nThe action is declared with merit, solely in that it is ordered that it is unconstitutional to omit requiring the environmental impact assessment (evaluación de impacto ambiental) and its corresponding approval by SETENA as a prerequisite to the requests regulated in Articles 129 and 153 of Decreto Ejecutivo #29300-MINAE \"Reglamento al Código de Minería\", for which reason said requirement must be demanded for the effect of authorizing the minor and specific projects defined in Articles 128 and 152 of the same Decreto. In all other respects, the action is declared without merit. This judgment is declarative and retroactive to the date said law entered into force, without prejudice to rights acquired in good faith. Sum up this pronouncement in the Diario Oficial La Gaceta, publish it integrally in the Boletín Judicial, and communicate it to the Legislative and Executive Powers. Notify.-
\n\n
\n
\n
\n
\n
Luis Fernando Solano C.
\nPresidente
\n\n
\n
Luis Paulino Mora M. Carlos M. Arguedas R.
\n\n
\n
\n
Gilbert Armijo S. Ernesto Jinesta L.
\n\n
\n
\n
Susana Castro A. Alejandro Batalla B.
\nArticle 88 of the Constitutional Jurisdiction Law
\\n\\n“(…) VIII.- However, the foregoing decision obliges the Chamber to consider whether the annulment consequences provided for in Article 88 of the Constitutional Jurisdiction Law derive from said unconstitutionality or whether, on the contrary, it is possible to resort to other provisions to remedy the declared unconstitutionality, because the constitutional violation derives from an omission. This Tribunal, in the exercise of constitutional review, has applied the principle of preservation of norms, to issue annulment judgments when the constitutional violation is insurmountable, whether through the confrontation of the text of the norm, its effects, its interpretation or application by public authorities, with constitutional norms and principles (Art. 3). To the extent that the constitutionality of the norm is surmountable through its conforming interpretation or by other means, the drastic annulment solution can and must be avoided. (…)” VCG03/2021
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\\nRes: 2003-10421
\\nSALA CONSTITUCIONAL DE LA CORTE SUPREMA DE JUSTICIA. San José, at sixteen hours and thirty-eight minutes on September seventeenth, two thousand three.-
\\nAcción de inconstitucionalidad filed by Edgar Emilio Araya Chacón, of legal age, single, businessman, identity card #2-378-252, resident of San Ramón against Articles 128, 129, 140, 141, 152 and 153 of the Regulations to the Mining Code (Reglamento al Código de Minería), Decreto Ejecutivo #29300-MINAE published in La Gaceta #54 of March 16, 2001. Appearing in the proceedings are Licda. Elizabeth Odio Benito, Lic. Danilo Chaverri Soto, at the time Minister of Environment and Energy and Minister of the Presidency, and Lic. Farid Beirute Brenes, Deputy Attorney General of the Republic. (SEE ACCIÓN 00-7814)
\\n\\n1.- By brief received in the Secretariat of the Chamber at 16:30 hrs. on October 5, 2001 (folio 1), the petitioner challenges Articles 128, 129, 140, 141, 152 and 153 of the Regulations to the Mining Code, Decreto Ejecutivo No. 29300 of February 8, 2001, considering that the omission of the requirement for approval of environmental impact studies (estudios de impacto ambiental), as a condition for granting authorization for special mining exploitation procedures called \\\"minor and specific projects,\\\" violates the principle of the hierarchy of laws, contained in Article 7 of the Constitution, in that, through regulatory means, special procedures are created that circumvent norms of International Law, ratified by Costa Rica, which require environmental impact studies to guarantee a healthy and ecologically balanced environment; thus, the Additional Protocol to the American Convention on Human Rights in the area of the Right to the Environment, whose Article 11 enshrines the right of every person to live in a healthy environment, and the principle that States Parties shall promote the protection, preservation and improvement of the environment; the Stockholm Declaration on the Human Environment, whose first Principle indicates that man has the fundamental right to enjoy adequate living conditions in an environment that allows him to live a dignified life and enjoy well-being, and has the obligation to protect and improve the environment for present and future generations; from the Rio Declaration, Principles 15 and 17. The petitioner also considers that the Executive Branch exceeded the regulatory power established in Article 140, subparagraphs 3) and 18) of the Political Constitution, thereby injuring Article 11 of the same normative body, which establishes –where relevant– that public officials are mere depositaries of authority and cannot arrogate faculties not granted to them by law. According to the petitioner, the Executive Branch injures said Article 11 because the challenged articles seek to nullify the legal precepts stipulated in Articles 3, 6 and 34, subparagraph ch) of the Mining Code, which –in relevant part– establish that mining explorations or exploitations may not be carried out without the permit or concession (concesión) granted by the Ministry of Economy, Industry and Commerce and the Directorate of Geology, Mines and Hydrocarbons, upon prior analysis and approval of the study conducted by the corresponding governmental oversight body on the environmental impact of such activities (Article 3); permits or concessions may be denied or conditioned according to the analysis of the social and environmental impact studies conducted, except in cases of express authorization by the Legislative Assembly (Article 6); and the holder of an exploitation concession is obliged to prepare a complete study on the environmental impact of the exploitation process (Article 34, subparagraph ch). Furthermore, the petitioner alleges that the challenged articles threaten the principle enshrined in Article 21 of the Constitution, which states that human life is inviolable, since said regulation injures human life and the physical integrity of persons, in creating special mining exploitation procedures without complying with the necessary environmental impact studies. Regarding Article 50 of the Constitution, the petitioner states that it guarantees the right of man to make use of the environment for his own development, which implies the correlative duty to protect and preserve the environment, through the rational exercise and useful enjoyment of the right itself. He also points out that the State must protect the environment by avoiding contamination and the alterations and injuries caused by man.
\\n2.- The petitioner bases his standing on the provisions of the second paragraph of Article 75 of the Constitutional Jurisdiction Law, regarding diffuse interests, as it concerns the right to a healthy and ecologically balanced environment.
\\n3.- By resolution at 9:45 hrs. on November 20, 2001 (folio 36 of the case file), the action was admitted, granting a hearing to the Office of the Attorney General of the Republic and the Ministries of the Presidency and of Environment and Energy.
\\n4.- The Office of the Attorney General of the Republic submitted its report (folios 52 to 88) with the recommendation to:
\\n1. Grant the action in relation to the provisions of Articles 128, 129, 152 and 153 of the Regulations to the Mining Code, Decreto Ejecutivo número 29300-MINAE, to the extent that the non-requirement of an environmental impact assessment (evaluación de impacto ambiental) for the activities regulated therein lacks a technical criterion justifying it. The foregoing, for violation of Articles 50, paragraphs 2 and 3, and 89 of the Constitution, as well as for violation of Article 7 of the Constitution and Article 11 of the Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights. Otherwise, dismiss the action in relation to these articles.
\\n2. Dismiss the action in relation to the provisions of Articles 140 and 141 of the cited Regulations.
\\n3. Dismiss the action in relation to all the challenged articles of the cited Regulations for violation of Articles 7, 11 and 140, subparagraphs 3) and 18).
\\n5.- Lic. Danilo Chaverri Soto and Licda. Elizabeth Odio Benito, at the time, Ministers of the Presidency and of Environment and Energy, responded to the granted hearing stating that the Regulations to the Mining Code have been the result of an effort by the Executive Branch to organize procedures previously scattered, contradictory, or non-existent, through a serious and responsible exercise of regulatory power, under the parameters of reasonableness, proportionality, and administrative discretion applicable to the matter. They state that ordinary activity has been differentiated from minor and specific projects –for extractions of less than 20,000 cubic meters with a duration of less than four months– in which the environmental impact study is not included as a requirement for authorization, based on technical and convenience criteria. These minor and specific projects require other additional requirements that ensure the activity will not be carried out without technical and environmental control parameters ensuring environmental protection. It suffices to review those included in Articles 129, 133 and 157 of the Regulations: a sketch of the extraction site, the site where the materials will be used, the works in which they will be employed, a report prepared by a geology professional on the extraction methods, equipment to be used, lithologies to be exploited, calculation of reserves and volume to be utilized), the designation of a geologist or mining engineer responsible for the extraction, a prior inspection to verify the information obtained, the obligation to keep a logbook where the main data is recorded, regarding the volume extracted, processed, and the destination of the materials, with monthly submission to the Directorate of Geology and Mines. Finally, it requires the submission of a final report of cessation of activities, and the consequences of failing to submit these reports are prescribed. They state that there is a fallacy in the petitioner's argument in considering that by the mere omission of the environmental impact study, this type of project jeopardizes the constitutional rights and guarantees he deems violated in his lawsuit. They consider the assertion inconsistent that the environmental impact study, in all cases, is the only way to safeguard and ensure the correct use and exploitation of natural resources. Furthermore, they consider that the petitioner forgets that Article 17 of the Organic Law of the Environment itself leaves a margin of discretion for laws and regulations to determine the cases in which, reasonably and proportionally, this type of study is required for the start of activities that may alter or destroy elements of the environment or generate waste, toxic or hazardous materials. The inconsistency of the reasoning is demonstrated by a twofold order of arguments: on the one hand, the law prescribes the environmental impact study when the activities, considered in themselves, suggest harmful results for the environment, but in this case it has been demonstrated that the type of activities called minor and specific projects have sufficient controls and represent such a specific impact on resources that the other required requirements can well make the authorization viable without the complexity represented by the environmental impact study procedure before SETENA. On the other hand, the mere fact of obtaining approval of an environmental impact study neither guarantees nor immunizes that the activities will not cause environmental damage. In fact, many orders for suspension of activities decreed by the Directorate of Geology and Mines are imposed because the administered party or the Administration itself has breached the commitments assumed for a specific project that has been previously approved by SETENA. It is not appropriate to establish an incontrovertible cause-effect relationship between projects approved with an environmental impact study and environmental protection. Just as environmental protection obligations cannot be neglected, neither can regulations be maintained that establish requirements that prove unjustified from a technical, logical, and scientific standpoint, when they are not necessary. Specifically, regarding the grounds for unconstitutionality, they state that: a) the environmental impact study does not ensure better oversight and environmental protection in all cases; there are alternate controls for minor and specific projects that ensure both environmental protection and measures to address eventual anomalous cases of extraction; b) the environmental risk of an extraction under this type of authorization is not left unexamined by MINAE authorities; the location, type of material, reserves, extractive technique are analyzed, and the works are commissioned and subject to the direction of a professional in the field; possible environmental damage can occur in any mining activity, even those with approved environmental impact studies; c) verification of the quantity of material to be extracted is not resolved only with the approval of the environmental impact study, nor with the assignment of an official to each and every authorized extraction; the petitioner starts from a distrust of the managers of this class of activities, and also ignores the scope of the liberal professions, which, as in the case of geology, exposes its members to serious sanctions for failing to comply with technical parameters; c) a numerical limit on applications for the type of minor and specific projects is not established, because it is logical that if the location of the source is requested, it implies the analysis of the areas that could be used for the indicated purposes and c), regarding the definition of the 20,000 cubic meters, they explained that it is justified by parameters calculated based on the load capacity of a wagon, multiplied by the number of trips in a four-month cycle.
\\n6.- The edicts referred to in the second paragraph of Article 81 of the Constitutional Jurisdiction Law were published in numbers 231, 232 and 233 of the Judicial Bulletin, of November 30 and December 3 and 4, 2001 (f. 38).
\\n7.- Given the existence of sufficient elements of judgment and, in accordance with the provisions of Article 9 of the Constitutional Jurisdiction Law, the oral and public hearing provided for in Articles 10 and 85 of the Constitutional Jurisdiction Law is dispensed with.
\\n8.- The procedures have complied with the prescriptions of law.
\\nDrafted by Magistrate Armijo Sancho; and,
\\nI.- The object of the action. The petitioner files a direct acción de inconstitucionalidad against Articles 128, 129, 140, 141, 152 and 153 of the Regulations to the Mining Code, Decreto Ejecutivo #29300-MINAE published in La Gaceta #54 of March 16, 2001, considering that the exoneration from the environmental impact study for the approval of minor and specific mining exploitation projects provided in those norms violates the provisions of Articles 7, 11, 21, 33, 50, 89, 140 subparagraphs 3) and 18) all of the Political Constitution, the Additional Protocol to the American Convention on Human Rights as well as Principles 15 and 17 of the United Nations Conference on Environment and Development, Rio Declaration.
\n\nThe challenged provisions state:\n\n**\"Article 128.—Definition.** Minor and specific projects are considered to be all those works or tasks necessary to address situations caused by geodynamic processes, such as: landslides, mudslides, erosive processes, culvert collapses, bridge collapses, approach fills, and others considered as such by the DGM and so justified by the requesting entity. The repair and maintenance of existing roads and highways are also considered minor projects.\n\nThe works must be specific, for a maximum period of four months, and with a maximum volume to extract or remove of 20,000 cubic meters.\n\nSituations duly declared as a national emergency by the Executive Branch are excluded from this procedure.\n\n**Article 129.—Application and requirements.** The application for authorization to extract material shall be submitted by the legal representative of the entity, duly accredited, who shall be responsible for the work to be performed. The application must be submitted in original and 2 copies, and shall be accompanied by the documentation detailed below.\n\na) Sketch on a faithful and legible copy of the Instituto Geográfico Nacional (IGN) sheet, scale 1:50,000, Lambert projection, size 22 X 27 cm (8 ½ X 11) with the cartographic coordinates in the margins and the sheet names clearly established. If the area is located on two or more cartographic sheets, they must be joined respecting the aforementioned size.\n\nb) Calculation of the fixed position triangle based on the coordinates of one of the I.G.N. landmarks and the coordinates of two consecutive stations of the polygon, or a topographic tie-in (amarre topográfico) to an existing civil structure in the area with a duration of more than 10 years.\n\nc) The site of the extraction work must be indicated, as well as the site where the extracted materials will be used. It must include a description of the work to be performed. This report must be signed by the geologist or mining engineer responsible for carrying out the work and contain, at a minimum, the following data:\n\n1- Methods and exploitation system to be employed.\n\n2- Description of the equipment to be used and characteristics of the machinery, including the crusher, if applicable.\n\n3- Exploitation period.\n\n4- Lithologies to be utilized, calculation of the available reserves at the source, and volume of material required.\n\nd) A responsible geologist or mining engineer must be designated for the duration of the project, who will maintain the pertinent controls of the exploitation process.\n\ne) In the case of quarries (canteras), permission from the property owner must be provided, accompanied by a property registry or notarial certification and the topographic map (plano topográfico) of the parent property and the topographic map of the area to be exploited. In the case of material extraction in public domain channels, indication of the access route to the river, and if said route is private, present the owner's permission and certification of ownership, whether notarial or issued by the Public Registry. If the route is public, a certification from the corresponding Municipality shall be provided.\n\nf) Indicate whether the work will be carried out directly by the requesting entity or by a third party, in which case, a copy of the contract signed between the entity and the contractor must be provided.\n\ng) Designation of an office for receiving notifications within the judicial perimeter of San José.\n\nIf said information is submitted incomplete, it will not be admitted for processing.\"\n\n**\"Article 140.—Application.** The application for authorization shall be submitted by the legal representative of the State body, who shall be responsible for the work to be performed.\n\n**Article 141.—Application requirements.** The application must be submitted in original and 2 copies, and shall be accompanied by the documentation detailed below:\n\na) Sketch on a faithful and legible copy of the Instituto Geográfico Nacional (I.G.N.) sheet, or a duly certified color photocopy, scale 1:50,000, Lambert projection, size 22 X 27 cm (8 1/2 X 11) with the cartographic coordinates in the margins and the sheet names clearly established. If the area is located on two or more cartographic sheets, they must be joined respecting the aforementioned size.\n\nb) Calculation of the fixed position triangle based on the coordinates of one of the I.G.N. landmarks, and the coordinates of two consecutive stations of the polygon, or a topographic tie-in (amarre topográfico) to an existing civil structure in the area with a duration of more than 10 years.\n\nc) SETENA resolution approving the environmental impact assessment (Estudio de Impacto Ambiental) corresponding to the proposed project.\n\nd) The exploitation system to be employed, indicating the work to be performed, accompanied by detailed flow diagrams covering all stages of the work.\n\ne) Equipment to be used.\n\nf) Required exploitation period (term).\n\ng) Lithology(ies) to be utilized, calculation of the available reserves at the source, and volume and use of material to be required, duly endorsed by a geologist or mining engineer who must be duly incorporated into the respective professional association.\n\nh) Name of the geologist or mining engineer in charge of the exploitation work, who must be duly incorporated into the respective professional association and shall be directly responsible for monitoring and controlling the use of the source.\n\ni) In the case of quarries (canteras), permission from the property owner must be provided, accompanied by a property registry or notarial certification. Topographic map (plano topográfico) of the parent property and topographic map of the area to be exploited. If the indicated information is not submitted complete, the application will not be admitted for processing. In the case of material extraction in public domain channels, indication of the access route to the river, and if said route is private, present the owner's permission and certification of ownership, whether notarial or issued by the Public Registry. If the route is public, a certification from the corresponding Municipality shall be provided.\n\nj) Place for receiving notifications within the first judicial perimeter of San José.\"\n\n**\"Article 152.—Definition.** Minor and Specific Projects are considered to be all those works or tasks that result from geodynamic processes, such as: landslides, mudslides, erosive processes, culvert collapses, bridge collapses, approach fills, and others that an Executive Branch body considers as such and so justifies. The repair and maintenance of existing roads and highways are also considered minor projects.\n\nThe works must be specific, for a maximum period of 4 months, and with a maximum volume to extract of 20,000 cubic meters.\n\n**Article 153.—Application and requirements.** The application for authorization to extract material shall be submitted by the legal representative, duly accredited, of the interested entity, who shall be responsible for the work to be performed. The application must be submitted in original and 2 copies, and shall be accompanied by the documentation detailed below:\n\na) Sketch on a faithful and legible copy of the Instituto Geográfico Nacional (I.G.N.) sheet, scale 1:50,000, Lambert projection, size 22 X 27 cm (8 ½ X 11) with the cartographic coordinates in the margins and the sheet names clearly established. If the area is located on two or more cartographic sheets, they must be joined respecting the aforementioned size.\n\nb) Calculation of the fixed position triangle based on the coordinates of one of the I.G.N. landmarks, and the coordinates of two consecutive stations of the polygon, or a topographic tie-in (amarre topográfico) to an existing civil structure in the area with a duration of more than 10 years.\n\nc) The site of the extraction work must be indicated, as well as the site where the extracted materials will be used.\n\nd) Description of work containing:\n\n1. Methods and exploitation system to be employed.\n\n2. Description of the equipment to be used and characteristics of the machinery.\n\n3. Exploitation period.\n\n4. Lithologies to be utilized, calculation of the available reserves at the source, and volume of material required.\n\nThis information must be signed by a geologist or mining engineer, who shall be responsible for the work to be executed.\n\ne) The Executive Branch body must designate a responsible professional for the duration of the project, who will maintain the pertinent controls of the exploitation process.\n\nf) In the case of quarries (canteras), permission from the property owner must be provided, accompanied by a property registry or notarial certification. Topographic map (plano topográfico) of the parent property and topographic map of the area to be exploited. In the case of material extraction in public domain channels, indication of the access route to the river, and if said route is private, present the owner's permission and certification of ownership, whether notarial or issued by the Public Registry. If the route is public, a certification from the corresponding Municipality shall be provided.\n\nIf said information is not submitted complete, it will not be admitted for processing.\"\n\n**II.- On admissibility.** From the very content of the challenged provisions, the inadmissibility of the action is evident regarding Articles 140 and 141 of the challenged Regulation, which refer to works executed by the Administration, not excluded from the environmental impact assessment (estudio de impacto ambiental); indeed, from their textual reading it is corroborated that they cannot be attributed the constitutional defects pointed out by the claimant, given that Article 140 does not contemplate any exemption from the environmental impact assessment and Article 141, subsection b), on the contrary, prescribes the approval of the corresponding study by SETENA, whereby the action proceeds solely against the remaining challenged articles. Given the nature of the matter, the claimant is legitimized to file the action directly, as it concerns the defense of the environment, in accordance with the provisions of Article 50 of the Constitution, Article 75, paragraph 2, of the Law of Constitutional Jurisdiction, apart from what has been recognized, on the matter, by the jurisprudence of this Chamber (see, among others, rulings #3705-93 of 3:30 p.m. on July 30, 1993, and #2001-8239 of 4:07 p.m. on August 14, 2001). The action is admissible in accordance with the provisions of Article 73 of the Law of Constitutional Jurisdiction.\n\n**III.- On the merits.** The fundamental issue to consider in this action is the constitutional validity of Articles 129 and 153 of the challenged Decree insofar as they incur in the omission of the requirement for an environmental impact assessment (estudio de impacto ambiental) for the authorization of minor and specific mining exploitation projects, both of the Municipalities and autonomous entities, and of the State, which are defined, respectively, in Articles 128 and 152 of the same Decree. The unconstitutionality claimed, in the case of these last two articles, does not arise, in itself, from the content of these provisions, which solely contain a definition of what is considered \"minor and specific projects,\" but from the fact that in the articles regulating the respective application and requirements (129 and 153), the environmental impact assessment is not included, and that, in general, no limitation is established on the number of exploitations authorizable through these procedures. The Chamber considers that the mere definition of the so-called minor and specific projects in Articles 128 and 152 of the challenged Decree does not entail, in itself, any unconstitutionality, because in them, the Executive Branch indicates a type of project that is considered minor and specific and that, as such, does not lead to any violation of the rights alleged by the claimant, except for its application or effects, by virtue of the exemption from the environmental impact assessment, due to the omission of including it in the correlative requirements of the authorization applications regulated in Articles 129 and 153, which do not entail any other constitutional defect than that of the indicated omission.\n\n**IV.-** The solution to the case is based on specific precedents of this Chamber, in which it has been made clear that:\n\n1. State institutions are the first called upon to comply with environmental precautionary legislation, without there being any justification for exempting them from compliance with environmental requirements, such as, for example, the environmental impact assessment (estudio de impacto ambiental), which the Organic Law of the Environment requires for activities undertaken by public entities that, by their nature, may alter or destroy the environment (see ruling #2001-6503);\n\n2. It is not constitutionally possible to make exceptions to the environmental impact assessment based on general criteria or conditions established in laws and regulations, which would empty Article 50 of the Constitution of its content (see ruling #2002-01220 of 2:48 p.m. on February 6, 2002); and,\n\n3. By virtue of the precautionary principle, established in binding international norms of supra-legal rank, in order to provide due protection to the right to a healthy and balanced environment, the obligation of the environmental impact assessment is imposed. At the 1992 United Nations Conference on Environment and Development, where Costa Rica signed, along with other nations, the Rio Declaration, it is necessary to point out Principle 15: \"In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation,\" and Principle 17: \"Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority\" (see ruling #2002-05977 of 11:23 a.m. on June 14, 2002).-\n\n**V.-** Of particular interest is what was considered by this Tribunal in the unconstitutionality action #01-002886-0007-CO, brought against Articles 19 and 20 of Decreto Ejecutivo #26.228-MINAE, regarding urban development projects, in the sense that:\n\n\"Article 50 of the Constitution is the direct source of the right of 'every person' to a healthy and ecologically balanced environment, which binds the Public Powers in the protection of the environment, conceptualized in the broadest possible sense, in the application of the protective norm. Repeatedly, this Chamber has indicated that the development of fundamental rights and public freedoms is a matter reserved for law; it is for this reason that in this field, the regulatory power that the Political Constitution itself reserves to the Executive Branch is unimaginable without the existence of a law. It has already been pointed out that the Organic Law of the Environment establishes in Article 17, as a development of the provisions of Article 50 of the Constitution, the obligation to have an environmental impact assessment (estudio de impacto ambiental) to carry out activities or projects that by their nature may alter or contaminate the environment. As the Procuraduría rightly points out in its report, the environmental impact assessment is conceived, by the legislator, as a technical procedure that allows controlling a possible environmental alteration with the consequent impact on ecosystems. Without a doubt, this is a technical matter whose detailed regulation escapes the logic of the legislative procedure and can, as a thesis of principle and within the existing legal framework, be regulated by the Executive Branch. The Organic Law of the Environment clearly states that '...Human activities that alter or destroy elements of the environment or generate waste, toxic or hazardous materials, shall require an environmental impact assessment created in this law...', which allows affirming, in a correct reading, that no human activity that may alter or contaminate the environment can dispense with the referred environmental impact assessment. The formula that the Executive Branch has devised so that it can be established, 'prima facie', whether the human activity undertaken may alter or destroy the environment, has been the presentation of the form called 'Preliminary Environmental Assessment' (Evaluación Ambiental Preliminar). It is not then, as the Administrative Environmental Tribunal maintains in its report, that the Executive Branch has absolute discretion to indicate the projects that must carry out the environmental impact assessment, since by provision of the Political Constitution itself (Art. 50) and the Organic Law of the Environment, as a general principle, all human activity that modifies the environment 'shall require' the referred study. It is therefore the condition of the project or work that will determine, in each case, whether the environmental impact assessment is required or not, and not the establishment of arbitrary conditions through regulations. The regulation should only establish the manner in which the project's conditions will be known, and that is what will determine the appropriateness or inappropriateness of the environmental impact assessment. This means that the defense and preservation of the right to a healthy and ecologically balanced environment, conceptualized in Article 50 of the Constitution, is the fundamental right of every person and functions as an inescapable general principle, so that in this matter it is not possible to make generic exceptions (in urban planning matters and other topics dealt with in Articles 19 and 20) to exonerate compliance with environmental obligations, as this risks deconstitutionalizing the guarantee of a state response in defense of the environment. This being the case, the mechanism used by the Executive Decree determining 'a priori' activities or works that are exempt from the environmental impact assessment, based on the size of the work, the existence of regulatory plans, the number of people in the operation or activity, the number of rooms, the project's classification (social interest), or land use, evidences an excess in the exercise of the regulatory power that exceeds the referral to Article 17 of the Organic Law of the Environment and empties the right of the inhabitants for the Public Powers to exercise direct environmental control—not by delegation in regencies—in the application of the protective legislation. This is not to say that the Executive Branch cannot, through regulations, determine, based on precise technical studies, that a specific activity or project does not require environmental impact assessments; but this implies that such a definition is duly motivated and justified. It should be remembered that in the case of exempting a higher-ranking (constitutional) control, the reasonableness and proportionality of the exceptional circumstance will be reviewable by the judge, whether through ordinary legal channels or constitutional control. But to the general regime conceived by the derived Constituent, a generalized exception is inadmissible that has no other motivation or foundation than the very existence of the norm that so declares. (...) it should be taken into account that by legal provision, 'all' human activities that transform the environment must undergo the preliminary assessment study. On the other hand, the Procuraduría maintains, regarding urban development projects, that the amended norm violates the principle of reasonableness, and the Chamber must conclude, in application of its own jurisprudence on this subject, that this is so insofar as not a single technical justification has been presented to this Tribunal to 'preventively' and 'generically' exclude certain urban development projects from the technical studies, with which we are additionally in the presence of an evident and manifest unreasonableness that this Chamber must declare. The Chamber must insist that it is the specific situation of the project or human activity that may cause the presentation of an environmental study to become unnecessary, but not the regulatory norm.\"\n\nIndeed, a very small area of land can be biologically important and therefore require all types of environmental control; and another area, vast, could lack that importance; furthermore, the existence of a regional plan or cantonal regulatory plan that establishes land use (uso del suelo) does not exclude the obligation of the study, as the development company seems to understand it, since the specific environmental control established by numeral 17 of the Organic Law of the Environment is grounded in Article 50 of the Political Constitution, which cannot be understood as displaced by local norms; rather, they must be integrated in consideration of that protective mandate\" (ruling #2002-01220 of 14:48 hours on February 6, 2002).\n\n**VI.-** Following the same reasoning of said ruling, the exclusion of the environmental impact assessment (evaluación de impacto ambiental, EIA) and its approval by SETENA for minor and specific projects, ordered in Articles 129 and 153 of the challenged Decree, constitutes a defect in the exercise of regulatory power, insofar as it does not fall within the assumptions of regulatory delegation provided for by Article 17 of the Organic Law of the Environment and developed by the Chamber in the referenced rulings; thereby, it violates, by emptying it of content, the fundamental right recognized in Article 50 of the Constitution. To reach this conclusion, the Chamber has considered that the minor projects defined in the Decree, regarding the possibility of environmental damage they may cause, do not differ at all from the others contemplated in the Decree, in which approval by SETENA of the respective environmental impact assessment is indeed required. The constitutionality of the challenged norms is defended by the then Minister of the Presidency and Minister of Environment and Energy with the argument that the special procedures for minor projects are defined by a quantitative extraction limit of 20,000 cubic meters, calculated based on the number of wagons that, during four months, can transport the materials to be used, over a distance between the extraction site and the usage site whose journey does not exceed half an hour, for a period of four months, which does not constitute any reasoning adjusted to the rules of science or technique from which it can be derived that such mining operations do not produce considerable negative impacts on the environment that justify the non-application of the respective study. On the contrary, in the same Decree, the requirement is established for any other mining activities carried out by a private party, as well as for other operations by Municipalities and autonomous entities (Art. 112) of the State (Art. 141) and by State contractors (Art. 160), regardless of whether or not they exceed 20,000 cubic meters. So the same Decree provides sufficient reasons to consider that the obligation of the environmental impact assessment in all these cases is reasonable and that mining activity entails an evident environmental risk, which, although, according to the Ministers, is not surmountable in all cases through the environmental impact assessment, said study is effective in the majority of cases and, above all, is indispensable, in application of the precautionary principle (principio precautorio), to the extent that mining operations constitute one of the situations provided for in Article 17 of the Organic Law of the Environment, inasmuch as activities that alter or destroy elements of the environment or generate waste, toxic or hazardous materials, will require an environmental impact assessment, by SETENA.\n\n**VII.-** An integral reading of the challenged Decree, in light of the Constitution, the provisions of the Mining Code on environmental protection (Arts. 98 to 104), and the Chamber's jurisprudence, leads to the conclusion that there is an evident unconstitutionality in Articles 129 and 153 of the Decree, by omission, given that they did not include the obligatory requirement of the environmental impact assessment (evaluación de impacto ambiental) approved by SETENA, in the cases contemplated in Articles 128 and 152, as it did in all others. The violation of the Constitution can occur by action as well as by omission (Art. 73 of the Constitutional Jurisdiction Law) and, in the present case, the unconstitutionality lies in the omission to include the requirement of the environmental impact assessment. Therefore, it is appropriate to grant the action in the sense that the omission to require the environmental impact assessment and its corresponding approval by SETENA as a prerequisite for the requests regulated in Articles 129 and 153 of Executive Decree #29300-MINAE \"Regulations to the Mining Code\" is unconstitutional, for which reason said requirement must be demanded for the purpose of authorizing the minor and specific projects defined in Articles 128 and 152 of the same Decree. The foregoing declaration has declaratory and retroactive effect to the effective date of the act or the norm, without prejudice to rights acquired in good faith.\n\n**VIII.-** However, the foregoing decision obliges the Chamber to consider whether said unconstitutionality gives rise to the annulment consequences provided for in Article 88 of the Constitutional Jurisdiction Law or whether, on the contrary, it is possible to resort to other provisions to remedy the declared unconstitutionality, because the constitutional infringement derives from an omission. This Tribunal, in the exercise of constitutional review, has applied the principle of preservation of norms, to issue annulment rulings when the constitutional infringement is insurmountable, whether by confronting the text of the norm, its effects, its interpretation, or its application by public authorities, with constitutional norms and principles (Art. 3). To the extent that the constitutionality of the norm is surmountable through its conforming interpretation or by another means, the drastic annulment solution can and must be avoided. The legislator did not provide concrete regulations regarding estimatory rulings in cases where the constitutional violation has been declared due to an omission; therefore, the Chamber, in some case, has analogously applied the second paragraph of Article 49 of the Constitutional Jurisdiction Law, referring to amparo, which provides that \"if the amparo had been established so that an authority regulates, complies with, or executes what a law or other normative provision orders, said authority shall have two months to comply with the order\" (see ruling #1463-90 of 14:30 hrs. on October 30, 1990). However, the Chamber considers that said provision, although applicable to cases where there has been an omission to regulate, as determined through amparo or the action of unconstitutionality, is not necessarily applicable in cases like the present one, where the estimatory ruling on the action detects a normative omission, or a gap, which may even be a consequence of an error by the person issuing the norm, which is, precisely, the cause of the unconstitutionality and which can be remedied by other means. Indeed, the legislator left in the hands of the Tribunal the solution to unconstitutional omissions and unconstitutionalities by omission, for which the Tribunal must order what is appropriate, in accordance with Article 14 of the Constitutional Jurisdiction Law, according to which, in the absence of an express provision, the principles of constitutional law shall be applied, as well as those of general public and procedural law or, as the case may be, those of international or community law and, in addition, in order, the General Law of Public Administration, the Regulatory Law of the Contentious-Administrative Jurisdiction, and the Procedural Codes. Since the unconstitutionality lies in said omission, not in the content of the norms themselves, it is also not appropriate to apply the annulment effects provided for in Article 88 of the Constitutional Jurisdiction Law because said omission cannot result in an annulment ruling, since it is obvious that no annulment is applicable to omissions; rather, the omission must only be repaired or satisfied.\n\n**IX.-** Despite the simplicity of the underlying constitutional argument from which the indicated unconstitutionality derives, the matter entails a particular situation, from the point of view of the effects of the ruling, since a pure and simple application of what is provided in Article 88 of the Constitutional Jurisdiction Law would lead to the drastic solution of ordering the annulment of Articles 129 and 153 of the Decree; however, none of the requirements contemplated in those provisions are challenged, nor does the Chamber find any unconstitutionality. What occurs, from the point of view of the normative structure, is not that said articles are unconstitutional, but that the norm stating that the approval of the minor and specific projects provided for in Articles 128 and 152 of the Decree requires the environmental impact assessment (estudio de impacto ambiental) was omitted, which norm exists in the legal order, derived from Article 50 of the Constitution, the international instruments cited supra, and the Chamber's jurisprudence, with which, it must be interpreted, in the same way this Tribunal has done through amparo, that the environmental impact assessment is obligatory for other specific cases, equally, for the minor and specific procedures.\n\n**Por tanto:**\n\nIt is declared that the action is granted, solely insofar as it is ordered that the omission to require the environmental impact assessment (estudio de impacto ambiental) and its corresponding approval by SETENA as a prerequisite for the requests regulated in Articles 129 and 153 of Executive Decree #29300-MINAE \"Regulations to the Mining Code\" is unconstitutional, for which reason said requirement must be demanded for the purpose of authorizing the minor and specific projects defined in Articles 128 and 152 of the same Decree. In all other respects, the action is declared without merit. This ruling is declaratory and retroactive to the date said law entered into force, without prejudice to rights acquired in good faith. Let this pronouncement be summarized in the Official Gazette La Gaceta, published in its entirety in the Judicial Bulletin, and communicated to the Legislative and Executive Branches. Notify.-\n\nLuis Fernando Solano C.\nPresidente\n\nLuis Paulino Mora M. Carlos M. Arguedas R.\n\nGilbert Armijo S. Ernesto Jinesta L.\n\nSusana Castro A. Alejandro Batalla B." }