PORTUGAL Law and Practice Contributed by: Andreia Candeias Mousinho, Diogo Duarte Campos, João Marques Mendes and Raquel Freitas, PLMJ
certain time of the day, on the grounds of noise emis- sion and/or the shadows from the wind turbines. The Portuguese courts have taken the view that, in these situations, there is a collision of rights at issue between: • the right to rest and sleep and the right of the resi- dents to tranquility; and • the economic right of the wind farm – whose wind turbines emit noise and/or shadows – to operate as a business. In the abstract, it is considered that the rights of the residents should prevail over the rights of the econom- ic operator. However, even if the economic activity is licensed, it has been held that this assessment should be made considering each specific case individually. Therefore, the residents are required to definitively demonstrate that the location in question is their home and that they are truly affected by such noise. Animal Rights Concerning the right to civil compensation, Law 90/88 specifies that the State is liable for compensating all citizens who are directly harmed by actions of Ibe- rian wolves (Canis lupus signatus). In this context, the court decided (Case No 00242/05.2BEMDL) that when Iberian wolves kill animals owned by citizens, this damage is eligible for compensation by the State, as is any emotional damage suffered by the owners. This is because the above law does not differenti- ate between property damage or personal injuries, although the complementary legislation in force at the time of the decision (Decree Law 139/90) referred to damage to animals. The current complementary legislation provides far more detailed rules on com- pensation for damage to animals. Furthermore, a decision from the court (Case No 00036/06.8BEPNF) established that the operation of a waste water treatment plant that is licensed for this purpose cannot be grounds under normal conditions to award compensation to people living nearby. The court stressed that the aim of these plants is to pre- vent the contamination of soils and water, and that a public interest objective of this type will prevail over any minor inconveniences that were eventually suf-
fered by these people. As such, it does not trigger the right to compensation. From another perspective, to protect a bat colony, the court decided in a protective order (Case No 06793/10) that a windmill on a wind farm could only be constructed and installed at certain times of the day and during certain months of the year. Moreover, its operation could only occur at a certain speed and in specific time periods. This demonstrates that the courts decide on environmental matters regardless of the presence of other legal institutions. On compara- ble grounds, similar measures have been imposed by the competent authorities under the EIA procedure on project sponsors. 11. Contractual Agreements 11.1 Transferring or Apportioning Liability It is possible to use indemnities or other contractual agreements to transfer liability to another party – these are subject to the general principles of the law, such as good faith and proportionality. These types of contracts do not have any binding effect on the regulators, who will always take into con- sideration the party responsible for the activity that harms the environment. This follows the accountability and “polluter pays” principles. The contracts might, however, have an influence on the regulators, especially in a scenario where the damaging activity is continued and where it may be difficult to locate in time the fact that gave rise to the damage and establish a causal link with an operator. In water legislation, in cases of non-compliance with the law, it is possible for adaptation contracts to be signed between the licensing authority and the opera- tor. These contracts provide a recovery plan that will allow the operator to remedy the illegalities, and may also provide the obligation to install an environmental management system and carry out periodic environ- mental audits.
364 CHAMBERS.COM
Powered by FlippingBook