May 01, 2017

Environmental protection in Puerto Rico: Island at a crossroads

Guillermo Silva-Wiscovich

Puerto Rico, a small, self-governing non-incorporated territory of the United States, has long struggled to keep pace with the mainland in basic matters such as governance, economic development, security, education, welfare, and—concerning the central tenet of this article— environmental protection. Recent developments, such as the election of a new Republican administration and a fiscal crisis that has crippled the island’s economy, threaten a rollback in federal and state environmental regulation and signal a shift in environmental enforcement priorities. These changes could have profound impacts on the island’s environment.

The best (and worst) of both worlds

Puerto Rico has a parallel system of laws. A national, centralized federal set of laws and regulations exists alongside a local framework dictated at the state level. However, the apparent similarities with other state jurisdictions are limited and do not account for the complexities and vagaries of Puerto Rico’s existing system of government. This complex relationship affects how federal law, including federal environmental laws, apply to the island.

The Commonwealth of Puerto Rico was created in 1952 and premised on a constitutional form of government. The laws of the United States have the same force and effect in Puerto Rico as in the rest of the country, unless a particular statute expressly does not apply in Puerto Rico or the particular conditions of Puerto Rico make a statute locally inapplicable. Congress has expressly provided that federal environmental statutes apply in Puerto Rico.

Puerto Rico’s unique brand of constitutional environmental protection and federalism

Despite the unique and sometimes convoluted political status of the island, Old World traditions, which still permeate everyday local life, have imparted environmental protection in Puerto Rico with a pioneering sense of responsibility and stewardship. For instance, the environment was afforded constitutional protection early on, and the Public Policy Environmental Act of 1970 (Act No. 9) established a relatively progressive environmental public policy, an environmental review requirement, and the executive-level Environmental Quality Board (EQB), all modeled on the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. Region 2 of the U.S. Environmental Protection Agency (EPA), based in New York City, alongside its Caribbean Environmental Protection Division (CEPD) office in San Juan, enforces all federal environmental statutes and regulations in Puerto Rico. EQB locally enforces Act No. 9 and the regulations promulgated thereunder.

Facilities on the island are thus subject to enforcement by both the federal EPA and the state EQB, except in those instances where EQB has primary enforcement authority. Similar to what occurs in other states, EPA retains enforcement authority, which it may decide to exercise if it concludes that EQB has failed to carry out its duties. Clearly, the foundation has been in place for Puerto Rico to protect its environment.

The fiscal crisis

The latest wrinkle in Puerto Rico’s evolving relationship with the United States came last year, when Puerto Rico faced an unprecedented (and still ongoing) fiscal crisis. The crisis was caused, and exacerbated, by heightened unemployment and poverty, a shrinking economy, a high debt-per-capital ratio, and the flight of its younger generation to the United States in search of better education and job opportunities. As the island’s finances plummeted and the effects of a 2006 recession lingered, former President Obama signed into law the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA) on June 30, 2016. The bill gave Puerto Rico some reprieve from its debtors and helped delineate a path forward for managing the debt crisis. At the same time, PROMESA established a financial-oversight board that is wholly independent of Puerto Rico’s elected officials, with sweeping powers including the authority to approve budgets and fiscal plans. It is too early to tell whether PROMESA will be the road map Puerto Rico needs. Heightened supervision, tighter budgets, and debt restructuring will not be enough to solve the island’s underlying problem—a stagnant economy devoid of obvious growth opportunities.

What lies ahead

Faced with the monumental challenges posed by the financial crisis, Governor Ricardo Rosselló has made a number of campaign promises designed to spur economic growth. These measures include, among others, infrastructure revitalization, public-private partnerships, permitting reform, energy sector transformation, and agency consolidations. These actions, however well intentioned, come at a critical juncture and are fraught with environmental risk. Specifically, we can expect minimal local environmental enforcement due to reduced budgets and limited personnel, which will make the island increasingly reliant on federal leadership, expertise, and oversight. The risk is that Puerto Rico will cease being at the forefront of its own environmental protection. Given the new Trump administration’s hostility (or at least antipathy) towards environmental protection and EPA, we are left to ask: Will tomorrow’s EPA be up to the task, and what is in store for Puerto Rico’s environment moving forward?

Guillermo Silva-Wiscovich

Guillermo Silva-Wiscovich is a partner with Morell Bauzá Cartagena & Dapena in San Juan, Puerto Rico.