COSTA RICA Law and Practice Contributed by: Germán Pochet Ballester, BioIuris
those directly involved and cannot be contractually waived. Even if a buyer and seller agree on indemni- fication terms, regulators may still hold either or both parties responsible for remediation and sanctions. While indemnity clauses are valid in private law to determine internal financial responsibility, they have no binding effect on public authorities and cannot limit the state’s power to enforce environmental obligations or demand environmental restoration. 12. Contaminated Land 12.1 Key Laws Governing Contaminated Land The key laws governing contaminated land and reme- diation obligations are the Environmental Organic Law, the General Health Law and the Waste Management Law, as well as several technical regulations issued by the Ministry of Environment and Energy and the Minis- try of Health. These instruments establish the duty to prevent, mitigate and remediate environmental dam- age, including soil and groundwater contamination. The general approach of regulatory authorities is to apply the polluter pays principle and require respon- sible parties to restore the affected environment to its prior condition. When contamination is detected, authorities may order technical assessments, environ- mental remediation plans, and long-term monitoring, all of which must be carried out by certified profes- sionals and approved by the competent agencies. 12.2 Clearing Contaminated Land Responsibility for cleaning up or remediating contami- nated land lies primarily with the party responsible for causing the contamination, in accordance with the Environmental Regulations. This obligation is ground- ed in the polluter pays principle, which establishes that anyone who causes environmental damage must bear the costs of prevention, mitigation and restora- tion of the affected area. While the duty to remediate is legally non-transferable under public law, the practi- cal execution of clean-up activities may be delegated to third parties, provided that the responsible entity ensures compliance with technical and legal stand- ards and obtains approval. In essence, the polluter pays principle ensures that environmental restoration duties remain with those who caused or perpetu-
ate contamination, regardless of private contractual arrangements. 12.3 Determining Liability In Costa Rica, when more than one party has con- tributed to environmental contamination, liability is generally determined on the basis of the proportional and integral restoration of the damage caused. The primary objective of environmental liability in such cases is not merely to impose sanctions, but to ensure the full restoration of the affected environment to its original condition, in accordance with the principles of integral reparation and environmental restoration established by the Environmental Organic Law and relevant jurisprudence of the Constitutional Chamber. Authorities, such as the Environmental Administrative Tribunal, assess the extent of each party’s contribu- tion to the contamination based on technical, scien- tific and causal criteria. While liability can be apportioned among the respon- sible parties according to their degree of participation, Costa Rican environmental law also recognises the principle of joint and several liability in cases where it is difficult to precisely determine each actor’s con- tribution. This ensures that the restoration obligation is effectively fulfilled and prevents environmental damage from remaining unremedied due to disputes among responsible parties. Therefore, even when mul- tiple polluters are involved, the restoration measures and economic valuation of damages must be com- prehensive, proportional to the total environmental harm, and guided by the overriding goal of ecological recovery rather than solely by punitive or compensa- tory considerations. 12.4 Proceedings Against Polluters The locus standi (legal standing) requirements in environmental proceedings are broadly interpreted in favour of access to justice, following the jurisprudence of the Constitutional Chamber and the constitutional mandate which guarantees the right to a healthy and ecologically balanced environment. According to this jurisprudence, when a case involves public envi- ronmental interests, the concept of standing must be extended to include the protection of collective, supra-individual or diffuse rights. This means that any individual or entity, whether public or private, natural
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