CORRUPTION: ITS IMPACT ON THE ENVIRONMENT.

CORRUPTION:   ITS IMPACT ON THE ENVIRONMENT.

It is obvious that corruption in the public sector brings along serious consequences for the global economic as a whole – to the extent that the affected amounts are diverted from their legitimate goals – and for specific economic sectors as well. The Environment is not an exception.

Environmental management encompasses a large number of sectors where activities are subject to the granting of prior consents, licenses or authorizations, thus being fertile land for corruption. Water supply, exploitation of natural resources and management of toxic and dangerous waste are only a few examples of areas that are sensitive to the activities of corrupt public officials.

And corruption exists at all levels. From large corruption cases that are clearly visible in all media (construction permits for large infrastructure projects, licenses for the exploration or exploitation of hydrocarbons, mining permits, etc) to daily minor corruption cases at local level, this disease adopts a myriad of forms and ill procedures.

The so called “urbanistic corruption” in particular entails serious environmental consequences to the extent that it places the private illegal interests of corrupt public officials or civil servants (who “joint venture” with private construction companies) over and above public interest by re-qualifying rustic or protected land and natural spaces to become areas where luxury construction is permitted in furtherance of allegedly high goals such as “economic development” or significant “social benefits” such as increased employment levels in a given area; when the goal is actually nothing but the furtherance of private illegal benefits for a reduced number of individuals in high social layers.  Which activity is always to the prejudice of environmental balance and the sustainability of resources and species.  The  actual goal is obviously hidden to the eyes of the general public.

All of which results in a clear lack of protection of the territory for the benefit of those who are entitled to authorize the questionable activities. And, unfortunately, this disease exists all around the world.

While the European Commission considers that Spain ranks among those countries more heavily contributing to gross up the 120 million Euros that corruption drains from legitimate funds, Europe is not exclusive.

The devastation of Amazonian forests or the lumber illegal traffic in certain regions of East Asia – hosting perhaps some 7-8% of the the total mature forests in the world - rank on top of this special and corrupt competition for the gold medal in affecting the planet’s environmental balance and biodiversity through the joint illegal activity of all operators along the distribution chain of lumber resources; including but not limited to forged export and transportation permits, corrupt customs officials and a long etc.

A reduced forestry area implies less oxygen renewal and a correlative increase in carbon emissions.

In this regard, The European Commission has open breach procedures against Spain on the allegation that Spain has failed to comply with the european regulations (Regulation nº 995/2010  of the Parliament and Council called EUTR (European Union Timber Regulation) mandating that companies marketing timber and other forestry products within the EU must implement “due diligence” procedures (an assessment Protocol) preventing the importation of wood from companies, regions or countries implying a “considerable or high risk” that the wood would have an illegal origin due to any of the reasons foreseen in the regulations, that is, failure to comply with the applicable forestry regulations, corruption, lack of transparency, armed conflicts, or breach of human rights . Indicia exist that illegal wood keeps flowing into the country.

At the time of writing this report. the Spanish Government has allegedly received from Brussels the letter putting the breach procedures in motion. In which case the government would have two months to reply. Should such reply not be satisfactory, the European Commission would issue an "avis motivé" (reasoned opinion" itemizing the reasons why Brussels considers that the country is still in breach of the applicable regulations. The government would have a new two months period to comply. The subsequent step would be the filing of a claim before the European Court of Justice,

As far as water is concerned, figures indicate that corruption in the contracting processes of public works could increase the costs of infrastructure construction by as much as 40 per cent, thus demanding more than 12 billion US dollars more every year to provide drinking water, sanitation and agricultural products. Water is one of the most basic and essential supplies of human beings, who are made up by some 75% of water.

A large array of examples is available but a detailed description would probably exceed the scope of this report^.[1]

In a nutshell, corruption not only affects the environment but also has an extremely high social cost, to the extent that its impact on natural resources causes severe damage to the most disadvantaged social layers.

The benefits of corruption are shared among those having political or economic power thus producing an unfair (to call it someway) distribution of critical resources such as water and a clean environment.

At international level, a number of Conventions against corrpution have been signed in recent times:

(i) The UN Convention against Corruption^[2].

The text of the Convention against Corruption was negotiated during seven sessions of the Ad Hoc Committee for the Negotiation of the Convention against Corruption, held between 21 January 2002 and 1 October 2003.

The Convention approved by the Ad Hoc Committee was adopted by the General Assembly by resolution 58/4 of 31 October 2003. The General Assembly, in its Resolution 57/169 of 18 December 2002, accepted the offer of the Government of Mexico to host a high-level political signing conference in Mérida for the purpose of signing the United Nations Convention against Corruption.

In accordance with article 68 (1) of Resolution 58/4, the United Nations Convention against Corruption entered into force on 14 December 2005. A Conference of the States Parties is established to review implementation and facilitate activities required by the Convention.

(ii) The UN Convention against Transnational Organized Crime and the Protocols thereto^[3]

The United Nations Convention against Transnational Organized Crime, adopted by General Assembly Resolution 55/25 of 15 November 2000, is the main international instrument in the fight against transnational organized crime. It was opened for signature by Member States at a High-level Political Conference convened for that purpose in Palermo, Italy, on 12-15 December 2000 and entered into force on 29 September 2003.

The Convention is further supplemented by three Protocols, which target specific areas and manifestations of organized crime: the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children; the Protocol against the Smuggling of Migrants by Land, Sea and Air; and the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition.

Countries must become parties to the Convention itself before they can become parties to any of the Protocols; and

(iii)  The OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions^[4].

The OECD Anti-Bribery Convention establishes legally binding standards to criminalize the bribery of foreign public officials in international business transactions and provides for a host of related measures that make this effective. It is the first and only international anti-corruption instrument focused on the “supply side” of bribery transactions.

The 34 OECD member countries and seven non-member countries - Argentina, Brazil, Bulgaria, Colombia, Latvia, Russia, and South Africa - have adopted this Convention

It is possible to consult also the OECD Recommendation on Bribery and Officially Supported Export Credits adopted by the OECD Council on 14 December 2006

Interpol lists among offences against the environment (1) the illegal exploitation of wild fauna and flora; (2) contamination and (3) the illegal commerce and disposal of dangerous waste or materials against provisions of international as well as national legislation.

In addition to the presently known offences, some new illegal activities are popping up such as those related to Emissions Trading and ill Management of Water Resources.   And many of such unlawful activities are being carried out in an organized manner by despicable organizations at international but also at national levels (such as the Cosa Nostra  in Italy, namely, the illegal collection and disposal of hazardous waste) and featuring a sustained increase by contaminating public bodies controlled by given political parties.

The NGO Transparency International  considers that

“Environmental degradation is another consequence of corrupt systems. The lack of, or non-enforcement of, environmental regulations and legislation means that precious natural resources are carelessly exploited, and entire ecological systems are ravaged. From mining to logging, to carbon offsets, companies across the globe continue to pay bribes in return for a right to unrestricted destruction”.

Already in its report for 2006, this organization indicated that «the environment where corruption reaches its highest levels lies at local governments; namely on the coast or in the surroundings of large cities” in the form of “qualification of urban land”.

This is why Spain is the country where the price of housing has increased more in recent years.

It seems therefore mandatory to concentrate actions on a country by country basis with a particular focus being placed on those public institutions and official activities more easily corruptible because of their own administrative and political structures. Corruption is enrooted at national regional and local levels alike. The fight is expected to be fierce^.[5]

It is necessary to implement approved controls on the way public servants behave and act, by establishing clear criteria, principles and procedures.  The rules on Public Contracts[6] (certainly existing and not always easy to read and understand) must be strictly observed in order to avoid the unlawful drafting of bid terms and conditions and other contracting provisions that are often tailored made to fit a particular bidder who is likely to be aware of such terms and conditions in advance of other bidders and is given privileged access to the economic and other contents of competing bids.

The recent case involving the award by Public Bid of the exploitation of the Mine of Aznalcollar by the regional Government of Andalucía (Junta de Andalucía) seems to be a clear cut example of the sophisticated level of illegal procedures applied by corrupted officials in securing unlawful results.

While the case is still under judicial review, the reports issued by the police and the investigation carried out by judicial sources have -.according to press sources - identified a number of irregular behaviors affecting the formal as well as the substantive aspects of the Bid to the benefit of one of the two companies that were competing for the project. 

In reviewing the national press (El País, July 2nd, 2015) it is possible to read:

“The police consider that when calling the bid for tenders for the Aznalcollar Mine, the Board of Andalousía altered the criteria set forth by the Mining Law in order to make them less concrete, thus allowing for more discretional decisions and for awarding it to a pre-selected winner.

Researchers consider, further, that the technical staff in charge of the bid issued biased assessments intended to prejudice........”; in particular, with regard to the economic chapter and the budget for investigation per sector of mining grid. The Project of ^[7]………….. offered an investment of ............. million Euros while the alliance ….. offered [only] ………   in spite of which this latter was awarded the project with 75,9 points over the 73,6 points of the other bidder. The police construes that ................ was unduly deprived of at least 6,5 points.

Calculations made by applying unrealistic water volumes and the proposal of constructing pools for toxic waste (forbidden by the law) would have been enough to discard the allegedly winning bid; assuming that the insufficient documentation presented had not been regarded as being serious enough by itself to throw the bidder out of the competition.  But the reverse actually happened.

It will be necessary to see the outcome of the judicial investigation to clarify the reasons why the Regional government was involved in such a significant case having material importance for the Andalousian Region.

In any event, it would seem that we are facing a clear cut case of “prevarication” (that is, the action whereby a public official knowingly issues an unjust resolution) allegedly having some sort of economic compensation on the part of the awardee. The reasons may not necessarily be immediate but the officials involved  are probably looking for a “golden exile” once their public duties come to an end, by being retained by the same companies that benefitted from their illegal actions as public officials. This is what is known as “revolving doors”, a  practice that is usual in the electric sector that is far from being the only one, as most economic sectors are affected; including but not limited to, the management of the health system.

All these problems can be sometimes addressed by simply implementing (or improving) adequate regulatory controls capable of preventing abuses. Some other times it is a matter of granting judges, prosecutors and auditors enough authority to apply controlling actions (such as environmental audits) and resources to demand either strict compliance with the law or the public responsibility of the politicians and public officials vested with decision making authority in public contracts and awards, thus allowing for the right control and transparency of the process by all parties involved.

Corruption may come to an end if the criteria, structures and procedures applicable to the award of public contracts and the procedures for the implementation of large infrastructure projects are made public, thus putting an end to the “nothing will ever happen” feeling of superiority that still seems to prevail in spite of the many cases that are currently under judicial scrutiny.

The position of the entrepreneurs facing institutionalized corruption is certainly sensitive, as they start to consider that such illegal demands are a normal part of doing business; so that in order to survive in the market they may have to go along with them (“if you want to work here, you have to pay”)

The allegation that entrepreneurs should refrain from doing business in this manner is simple but – seen from the business perspective of the entrepreneurs – also unrealistic as it is well known that in case one refuses to pay in one region (and even worse, if one files a denunciation against the officials involved) you will be excluded from doing business in all regions.

Companies are slowly introducing anticorruption principles in their SCR codes and this should, in theory, improve the public perception about their activities and assist them in adopting common measures against corruption.

Any civil servant or public official who is aware that all his/her actions are under close surveillance would be extremely careful, as any damaging impact on his/her public profile could put an end to his/her political career or employment with the Public Administration.

We are therefore facing a fierce fight against practices that seriously threaten the world’s environmental balance and the sustainability of our eco-systems.

Our children do not deserve such dangerous heritage.

Madrid, August  2015