Emergence of environmental jurisprudence in Iraq

Introduction
Impact assessment under 2009 Environmental Law
Penalties for non-compliance
International treaty obligations
Comment

Introduction

The 2009 Environmental Law (27/2009) replaces and repeals the earlier - and now obsolete - 1997 Environmental Law. The new law expands the role of environmental regulation in Iraq, specifically in the fields of oil and gas remediation, environmental impact assessments (EIAs) and penalties for non-compliance.

When taken in the context of the onerous terms of the 2009 petroleum bidding round contracts and the unexpected adherence to several international treaties on environmental remediation, Iraq has very quickly created a plausible, if tenuous, benchmark from which Iraqi environmental jurisprudence may develop.

Impact assessment under 2009 Environmental Law

The new law further expands the jurisdiction and enforcement of the previously chartered Ministry of Environment and adds several key definitions. It describes an EIA as:

"a study and analysis of the environmental feasibility of proposed projects that may affect the creation or the exercise of their activities on human health and environmental safety of present and future with a view to protecting them."

The new law also includes several criteria required in an EIA. According to Article 10, an EIA must include:

• determination of positive and negative impacts of the project on the environment and the impact of the environment surrounding it;
• the proposed means to prevent and address the causes of pollution in order to achieve compliance with environmental regulations and instructions;
• contingencies for pollution emergencies and potential precautions;
• possible alternative technology that is less harmful to the environment and the rational use of resources;
• provisions to reduce waste, such as the inclusion of recycled or reused materials when possible; and
• an assessment of the environmental feasibility of the project and an estimate of the cost of pollution relative to production.

The procedure for submitting an EIA is set out in Article 11. Before any work is to commence, the EIA must be submitted to the federal Ministry of Environment. Work may not commence until approval from the ministry has been received.

Penalties for non-compliance

The new law also sets forth additional penalties for non-compliance and environmental pollution. Article 3 states that:

"[a] polluter of the environment [must] remove the influencing factor during the 10 days from the date of notification warning. In the case of non-compliance, the minister may order the installation to cease operations or close for a term of not more than 30 days, which can be extended to the removal of the violation."

Furthermore Section II of Article 33 states that polluters must pay "a fine of not less than 1 million dinars and not more than 10 million dinars repeated each month until the removal".

Imprisonment and further fines are also allowed if the identified pollution is not remedied "for a period of not less than three months or a fine of not less than 1 million dinars and not more than 20 million dinars, or both".

International treaty obligations

Iraq has also acceded to a large number of international environmental conventions and agreements in the past few years and is committing new resources to assessments and plans to ensure their full implementation. With the new law requiring appropriate compliance with such international laws, a very different approach to future environmental legislation is starting to emerge. New Iraqi legislation implementing these international laws include:

• Law 3/2009 on accession to the Basel Convention;
• Law 7/2007 on accession to the Convention on Desertification;
• Law 7/2008 on accession to the Climate Change Convention and Kyoto Protocol;
• Law 12/2008 on accession to the UNESCO Convention;
• Law 31/2008 on accession to the Convention for Biological Diversity;
• Law 7/2007 on accession to the Ramsar Convention (wetlands); and
• Law 42/2007 on accession to the Vienna Convention and Montreal Protocol.

Comment

Although Iraq is a party to the treaties above, environmental regulation in Iraq has traditionally lagged behind international standards and there has historically been no overarching environmental body or significant legislation on the subject. In some cases, where Iraq has only recently signed up to a convention or treaty (such as the Convention on Biological Diversity, to which it acceded in July 2009), the principles of the treaty may not yet have been implemented in Iraqi law.

Furthermore, the recently published United Nations Development Assistance Framework (UNDAF) for Iraq 2011-2014 identifies "environmental management and compliance with ratified international environmental treaties and obligations" as the third of its five priority areas. The UNDAF has been aligned with the government's national development priorities as defined within the Five-Year National Development Plan 2010-2014. Other priorities identified in the UNDAF and national development plan relate to improved governance (including the protection of human rights) and environmental sustainability.

For further information on this topic please contact Thomas W Donovan at Iraq Law Alliance PLLC by telephone (+964 7 901 919 425), fax (+20 2 760 4593) or email (thomas.donovan@iqilaw.com).