Monday, October 9, 2023.- The Ministry of Law, Environment and Natural Resources (DAR) has sent contributions to the Presidency of the Council of Ministers to the Proposal for the Regulation of the Law on the Creation of the National Infrastructure Authority (ANIN), which sets out the measures by which the newly created authority will be governed.
As we know,
the ANIN Law (Law No. 31841)
it was approved by the Standing Committee of the Congress of the Republic despite the observations sent by the Ombudsman’s Office and civil society, which warned of the inclusion of measures that weaken environmental certification, the exclusion of the Ministry of the Environment as the governing body in environmental matters and the absence of a sustainability approach to infrastructure management within the framework of the ANIN.
Likewise, this law did not have the opinion of the Commission of Andean, Amazonian, Afro-Peruvian Peoples, Environment and Ecology of the Congress, nor did it ensure timely spaces for citizen participation for contributions, especially from indigenous peoples, who have been denouncing serious impacts and threats in the territory due to the construction of roads.
After the approval of this law, the Presidency of the Council of Ministers disseminated the draft Regulations of the law, granting only a period of 12 days for the sending of contributions, which was insufficient for an adequate socialization of the proposal in the territory, and does not guarantee the participation of the populations directly linked to the activities of the entity. such as indigenous and native peoples.
What should the National Infrastructure Authority Regulations consider?
To ensure sustainability and respect for rights in the investments prioritized by the National Infrastructure Authority, the Regulation must:
- Be aligned with the sustainability approach established in the National Sustainable Infrastructure Plan for Competitiveness (PNISC). The PNISC 2022-2025 includes the sustainability dimensions of the Inter-American Development Bank (IDB) (economic, social, environmental and institutional sustainability). In this sense, the Regulation should take into account the sustainability criteria of the PNISC.
- Include the low-carbon development management approach as well as the management of climate and disaster risks in the formulation of public and private investment projects, established in the Framework Law on Climate Change and its Regulations (Law No. 30754
).
- Safeguard environmental certification processes
The objective of environmental impact studies is to prevent the negative impacts of investment projects, in order to safeguard life, health and the sustainable use of natural resources. However, the reduction of the period to obtain environmental certification from 120 to 90 days established in the Regulation does not have a technical basis disseminated to the public and does not respect the regulations established in the National Environmental Impact Assessment System (SEIA). It is necessary for the ANIN Regulations to establish adequate deadlines to ensure the quality of the technical opinions of public institutions and the citizen participation processes that are part of the environmental certification process, among others established in the SEIA.De the other hand, the approval of the ANIN project portfolio should not include projects in the Amazon whose environmental certification warns of risks of generating serious social and environmental impacts in the Amazon region. the territory and the population, nor road initiatives related to areas with the presence of illicit activities, such as drug trafficking. - Maintain negative administrative silence in environmental assessment procedures for investment projects and programs, in accordance with the provisions of Article Number 38 of the Single Harmonized Text of the General Administrative Procedure Law, which establishes negative silence in procedures that can significantly affect health, the environment, natural resources, among others.
- Establish transparent governance spaces and mechanisms in ANIN’s decision-making. It is necessary to make transparent the agreements and actions of the spaces that ANIN conforms for the management of the infrastructure portfolio. To this end, it is essential to ensure the participation of sectors with competence in infrastructure and environmental matters, such as the Ministry of the Environment and organized civil society, mainly indigenous peoples, and to promote timely processes of citizen participation for the socialization of information.Likewise, it is necessary to make the project financing process transparent, making public the source of financing, background and trajectory, in order to avoid bad practices. In the same vein, it is recommended to comply with the environmental and social safeguards of multilateral banks; For example, complying with their access to information policies, which allow the approval and proper functioning of the projects they finance. This is due to the fact that different policies, plans, programs and infrastructure projects in the country are financed by multilateral banks (CAF, IDB, WB, among others).
- Respect the collective rights of indigenous peoples, such as prior consultation, in investment projects subject to the ANIN. In this regard, the recent judgment No. 29126-2018 LIMA is recalled of the Supreme Court of Justice on the obligatory nature of prior consultation in public services such as the construction of roads, transmission lines and other types of infrastructure, as well as the contents of Law No. 29785, which regulates the right to prior consultation, which states in Article No. 2 that citizens must be consulted on both administrative and legislative measures.