Turkey: The Barrel Brief: Environmental Law Overhauled

In March 2006, arguably the biggest environmental scandal to date in Turkey occurred. Upon an anonymous tip, the authorities discovered hundreds of barrels buried illegally by a creek in the district of Tuzla, İstanbul. The barrels contained various types of poisonous and hazardous chemical substances. Subsequent investigations pointed towards high profile industrial companies as the culprits with the public and the Government strongly reacting to the scandal. However, the damage was done and those responsible could hardly be punished due to procedural issues. The scandal heightened the Government’s, as well as the public’s, sensitivities to environmental issues and served to raise awareness regarding the need to update Turkey’s environmental legislation.

The Environmental Law No. 2872¹ is the primary legislation governing environmental protection and improvement of the environment, appropriate and efficient use and protection of natural resources and land, the prevention of pollution and the protection and maintenance of wildlife and plantations. In the wake of the scandal, on 26 April 2006, Law No. 5491 was passed; revising, modernizing and expanding the Environmental Law ("Revised Environmental Law"). While keeping the general outline and spirit of the original law, the Revised Environmental Law is more specific on various issues and embraces a more modern perspective regarding environmental issues, with a view to draw level with EU legislation.

The Revised Environmental Law introduces two principles as the main purpose of this law, namely a sustainable environment and sustainable development. The sustainable environment principle is defined as the "improvement, protection, and development of all environmental assets that constitute the environment of the present and future generation in every (social, economical, physical, etc.) way without endangering the existence and quality of the resources that will be needed by future generations." Similarly, the sustainable development principle is defined as the "development and growth based on the principle of establishing balance between the environmental, economical, and social targets, which ensure that future generations shall live in a healthy environment."

The expansion of the Revised Environmental Law’s definition section is noteworthy, not only due to its inclusion of these two core principles, but also due to its definitive coverage of various concepts and entities new to the Turkish environmental legislation, such as ‘biological diversity’, ‘ecological balance’, ‘sensitive lands’, ‘environmental management’ and ‘non-ionizing radiation’.

The High Council of Environment, members of which shall be appointed by the Prime Minister from amongst the Council of Ministers and shall be chaired by him, has replaced the former Central Environmental Council. The High Council of Environment is responsible for, and authorized to, among others, (i) determining the targets, policies and strategies to be implemented to ensure an efficient environmental management; (ii) adopting legal and administrative measures that enable environmental issues to be considered with respect to economical decisions under the sustainable development principle; and (iii) resolving disputes on environmental issues concerning different ministries.

The Ministry of Environment and Forestry ("Ministry") is the sole body authorized to inspect compliance with the provisions of the New Environmental Law. The Ministry may delegate this duty to the relevant City Private Administration, municipalities that established environmental management units, and certain other administrative bodies. The Ministry is also in charge of implementing all types of legal, technical, fiscal, and administrative measures to comply with national obligations that arise due to ratification of international treaties on the environment.

Turkish law prohibits the direct or indirect release, storage, transportation and dislodgement of any type of waste or residue in a manner that may harm the environment. Entities falling within the scope of the relevant prohibitions, are obligated to take preventive measures if there is a possibility of pollution; to stop pollution; and to lessen or restore its impact on the environment if pollution has taken place. The Ministry shall procure and implement country-wide zoning plans on the scale of 1/50,000 and 1/100,000 to prevent environmental pollution that may arise due to meeting various needs of urban and rural populations.

The protection of biological diversity and ecological balance are essential. Commercial activities regarding endangered fauna and flora as well as rare species, unless otherwise allowed by legislation, are prohibited. Similarly, marine fish farms cannot be established either in any closed coves bearing a sensitive-lands quality or within natural and archeologically protected areas. All types of resources, income, fees and fines that are collected and gained within the framework of environmental legislation shall be allotted towards environmental matters before all else.

Importing hazardous wastes into Turkey is strictly prohibited by the Revised Environmental Law and stringent provisions regarding the handling, production, storage, transportation, annihilation of hazardous chemicals and wastes are also introduced. Entities that produce, sell, store, use or transport hazardous chemicals; or those that collect, transport, store, recycle, re-use or annihilate hazardous wastes are severally liable in respect of various obligations for different types of wastes, as detailed in the Revised Environmental Law. For example, such entities must procure "hazardous chemicals and wastes financial obligation insurance" and obtain the Ministry’s permission before commencing their operations.

One of the most significant aspects of the Revised Environmental Law is the strict application with regard to doling out penalties and fines, which previously were often deserved but rarely applied. The Revised Environmental Law provides that, should the activities of any persons or entities be found to be in violation of the applicable environmental regulations, the Ministry², in its sole discretion, may grant such persons or entities a one-time-only grace period of less than one year. When a grace period has not been granted, the operations of such violating-party shall be immediately shut down; whereas when a grace period has been granted, operations shall be shut down if such violation has not been rectified at the end of such period.

Another equally important aspect of the Revised Environmental Law is the significant increase of administrative fines. For instance, those who produce, sell, store, use or transport hazardous chemicals or who collect, transport, store, recycle, re-use or annihilate hazardous wastes in violation of the relevant legislation, are subject to administrative fines ranging between 100.000 YTL and 1.000.000 YTL (approximately USD 75,000 and 750,000, respectively).³

A penalty of between six months and one year of imprisonment may be imposed on those who provide wrong or misleading information regarding environmental matters, in violation of the obligation to notify and provide information. The provisions of the (New) Turkish Criminal Code regarding "counterfeiting documents" shall be applicable to those who issue false or misleading documents in matters regarding the application of the Revised Environmental Law. Further, the provisions of the (New) Turkish Criminal Code, regarding intentional and negligent pollution of the environment, imposing monetary as well as imprisonment penalties, shall come into effect on 12 October 2006.

The Revised Environmental Law sets forth financial and fiscal incentives for activities focused upon the prevention and restoration of environmental pollution. Persons and entities that establish and operate treatment facilities and meet their various obligations under relevant regulations may receive a credit of up to 50% of their energy costs.

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