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Safety in the use of chemical products in the workplace● Working exposure to Volatile Organic Compounds (VOCs) ● Ecological

footprint of the Campus de Vegazana ● Green taxes

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Safety in the use of chemical products in the workplace● Working exposure to Volatile Organic Compounds (VOCs) ● Ecological

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SEGURIDAD Y MEDIO AMBIENTE Nº 113 First quarter 20092

Summary

Safety in the use of chemical products in the workplace3

LEGISLATION

Ecological footprint of the Campus de Vegazana, LeónUniversity

8

Green taxes10

ENVIRONMENT

VOCs in working environments5

INDUSTRIAL HYGIENE

LEGISLATION

Legislation framework: the safety ofchemical products within theoccupational risks prevention system

In relation to employers and user firms

in general, the Occupational Risks Pre-

vention Act (Ley de Prevención de Riesgos

Laborales: LPRL) lays down a whole set of

legal provisions that aim to safeguard the

health and safety of workers. The basic te-

net is set forth in article 14, establishing

the «duty of employers to protect their

workers from occupational risks». Their

preventive action is to be based, among

other things, on an initial assessment of

the risks when choosing the chemical subs-

tances or preparations [articles 16.2.a) and

25.2 LPRL]. Article 4.2.a) of Royal Decree

(Real Decreto) 39/1997 of 17 January ap-

proving the Prevention Services Regula-

tion (Reglamento de los Servicios de Pre-

vención) then lays it down that if any of

the risks turn out to be unavoidable after

this initial risk assessment, then an addi-

tional assessment has to be made of the

jobs potentially affected by chemical subs-

tances and preparations, among other ele-

ments.

Nonetheless, the above preamble should

not be taken to mean that the buck always

stops solely with the employer, for it would

seem to be equally reasonable to hold ot-

her occupational-risk-prevention stake-

holders liable (such as the foreman, char-

gehand, designated worker, prevention

officer, inhouse or outsourced prevention

3Nº 113 First quarter 2009 SEGURIDAD Y MEDIO AMBIENTE

Safety in the use of chemical products in the workplace

LEGISLATION, CAVEATS AND LIABILITIES

Author: JOSÉ RICARDO PARDO GATO. Lawyer, HigherOccupational Risks Prevention Officer. Legal Consultantof the Galicia Association of Health-and-Safety-at-WorkProfessionals (Asociación de Profesionales deSeguridad y Salud Laboral de Galicia: APROSAL).

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service, etc.), while the workers themsel-

ves would also obviously be held ac-

countable for their obligations and con-

comitant liabilities. In due accordance

with their training and following the em-

ployer’s instructions, workers will inde-

ed be bound to use and handle hazardous

substances properly, in accordance with

their nature and likely risks (article 29.2.1

LPRL). That said, it should also be borne

in mind here that our legislation does not

flesh out or even sketch in the liabilities

to be met by the various operators inter-

vening in the wide range of preventive ac-

tivities. This has led to many difficulties

of interpretation, both from the jurispru-

dential and case-law point of view.

The liability of manufacturers, impor-

ters and suppliers is much less of a quag-

mire. These liabilities are at least fores-

hadowed in article 41 LPRL, where it is ge-

nerally laid down that manufacturers, im-

porters and suppliers of products, as well

as machinery, equipment and work uten-

sils, are bound to ensure that these do not

represent a source of danger to workers,

always on condition that they have been

properly installed and are also properly

used in due accordance with their right-

ful purpose.

The second paragraph of the article then

goes on to stipulate – now in a more spe-

cific manner – the actual safety obligations

incumbent upon manufacturers, impor-

ters and suppliers of chemical products

and substances used in the workplace.

What are the legal responsibilities of manufacturers, distributors and user companies of workplace chemicalproducts? This article aims to come up with the answer to this and other related questions about the use of this typeof products in the workplace, pooling the author’s research work from February 2006 to February 2007 (and thenbrought up to date) carried out on a FUNDACIÓN MAPFRE industrial-hygiene research grant.

LEGISLATION


They are expressly bound to «package and

label same so that they may be safely kept

and handled, clearly identifying their con-

tent and the handling or storage risks to

the health and safety of workers».

All these subjects are bound to furnish

employers with the necessary informa-

tion to ensure that the use and handling

of said products and also chemical subs-

tances and preparations by workers is ca-

rried out without health-and-safety risks

and employers are also bound to ask for

this information and pass it on in good

and due form to their employees.

The manufacturer of chemical products

and substances will be required to elimi-

nate risks at source and conduct an as-

sessment of any subsistent risks, while

manufacturers together with importers

and suppliers of such products and subs-

tances shall inform employers of the com-

plementary or additional safety measu-

res to be taken as well as the various oc-

cupational risks bound up in their normal

use and proper handling and employment.

Although some critical voices have be-

en raised against article 41 LPRL1, casting

doubts on its feasibility or enforceability,

usually on the basis of pre-existing laws

or concurrent legislation passed subse-

quently, I am of the opinion that the in-

clusion of this article in the law is in ge-

neral more than justified2, especially in

light of the fact that the complementary

nature of the work-safety and product-sa-

fety legislation does not discharge the obli-

gation to provide specific protection from

risks inherent to the working activity. Wit-

ness the obvious enrichment with the in-

corporation of the element of protection

and prevention from the risk implied in

the workplace chemical product.

We therefore believe that this article pro-

vides a nexus between both sets of legis-

lation and is also conducive to the overall

coherence and unification of the obliga-

tions incumbent on manufacturers, im-

porters and suppliers of workplace pro-

ducts, without detriment to the inclusion

of specific requirements for chemical pro-

ducts, the legal framework serving as the

overall nexus of union and rationale for

the rest of the legislation.

The obvious conclusion to be drawn

from these opening remarks is that the

work-safety and product-safety legislation

has to be taken into account together. The

legal basis for the latter, in terms of all pro-

ducts designed for consumer use, is Real

Decreto 1801/2003 of 26 December. No-

netheless, the aim of establishing the lia-

bility of manufacturers, importers and sup-

pliers of workplace chemical products ur-

ges us, as in the case of the employer, to

cast a look back at the classical postulates

of the Civil Code (Código Civil), bringing

into conjunction the general rules on con-

tractual and non-contractual liability with

the intrinsic implications of article 41 LPRL

in terms of the determination of the safe

product. Due consideration will also have

to be given to the social security legisla-

tion, albeit only in terms of a recargo de

prestaciones (employer-paid surcharge in

social security benefits) to cover damages.

The postulates of the Penal Code (Código

Penal) may also have to be taken on board

for those liabilities that may be invoked by

criminal action.

This panorama of compensation pos-

sibilities would also have to take into ac-

count recourse to industrial safety legis-

lation if any of these subjects should in-

cur in any breach thereof; we are referring

here specifically to the Industry Act (Ley

de Industria) 21/1992 of 16 July. Unlike

the general product safety law, this act ex-

tends its protection umbrella to all sub-

jects, whether or not they are consumers,

albeit circumscribing its radius of action

to industrial products, including chemi-

cal products.

All this legislation would have to be ta-

ken into account to try to plug the gaps in

prevention legislation in relation to these

agents. For although the aforementioned

article 41 LPRL lays down the general path

to follow in terms of the obligations of the-

se subjects, neither the LPRL itself, nor,

subsequently, Royal Legislative Decree

(Real Decreto Legislativo) 5/2000 of 4 Au-

gust approving the revised text of the La-

bour Infringements and Penalties Law (Ley

de Infracciones y Sanciones del Orden So-

cial) sets forth any precept whatsoever to

regulate the liability of manufacturers, im-

porters and suppliers of chemical work-

place products in the event of any breach

of these requirements. In default of the

necessary coordination between health

and safety legislation and the product and

industrial safety legislation, and the latter

legislation with the LPRL, this lack shows

the loopholes and patchy nature of a sys-

tem that should strive to be uniform and

coherent.

This clutch of circumstances, together

with the inconsistent case law dealing with

the liability of user companies, make the

study of the obligations and liabilities of

manufacturers and distributors of chemi-

cal workplace products a minefield of con-

flicting viewpoints and gaping loopholes.

As if that were not enough, due consi-

deration must also be given to the rest of

the legislation specifically regulating the

various aspects impinging on preventive

matters of products and chemical risk in

the workplace, not to mention what we

might call the current and future Europe-

an legal system applicable to chemical

substances and preparations. This ove-

rarching legislation exacerbates the alre-

ady complex legal situation to be taken in-

to consideration when tackling this analy-

sis, but leaving any of these factors out of

account would to some extent invalidate

the conclusions drawn. ◆

(1) See also, SEMPERE NAVARRO, A.V., GARCÍABLASCO, J., GONZÁLEZ LABRADA, M. and CARDENAL

CARRO, M.: Derecho de la seguridad y salud en eltrabajo, 3ª ed., Civitas, Madrid, 2001, p.67. Along the

same lines, and quoted in the above authors,CABEZA PEREIRO, J. and LOUSADA AROCHENA, J.F.:

Comentarios a la Ley de Prevención de RiesgosLaborales, Comares, Granada, 1998, p. 310.

(2) Opinion shared by RODRÍGUEZ SANZ DEGALDEANO, B.: Responsabilidades de los fabricantes

en materia de prevención de riesgos laborales, LexNova, Valladolid, 2005, especially p. 33.


INDUSTRIAL HYGIENE

and its two subsequent amendments (R.D.

1124/2000 and R.D. 349/2003) deal with

worker exposure to these carcinogenic

and mutagenic agents, while also overri-

ding earlier provisions (benzene and vinyl

chloride), laying down new permissible

exposure limits for both compounds. The

Spanish Health and Safety Executive (Au-

toridad Laboral), through the National

Health-and-Safety-at-Work Institute (Ins-

tituto Nacional de Seguridad e Higiene en

el Trabajo: INSHT) of the Employment

and Immigration Ministry (Ministerio de

Trabajo e Inmigración) has established

occupational exposure limits to chemi-

T he workplace presence of carci-

nogenic or mutagenic agents may

pose serious health and safety risks

to workers and is therefore one of the main

concerns of occupational risks preven-

tion. Royal Decree (Real Decreto) 665/1997

cal agents, as have Health and Safety Exe-

cutives in other countries through their

own technical bodies.

Volatile Organic Compounds (VOCs)

are one of the most important classes of

toxic, carcinogenic or mutagenic agents

present in the workplace and posing a

potential threat to workers’ health. Ac-

cording to the World Health Organisa-

tion, VOCs are defined as the group of or-

ganic compounds with boiling points

between 50 and 250 ºC. In a broader sen-

se, VOCs include not only thousands of

toxic chemical compounds but also pre-

cursors of photochemical smog, which

Different methodologies for assessing workplace risks caused by Volatile Organic Compounds (VOCs)

COMPARATIVE METHODS

Authors: JAVIER CARO HIDALGO 1, MERCEDESGALLEGO FERNÁNDEZ 2, ROSA MONTERO SIMO 3

1 Chemistry Graduate. Analytical ChemistryDepartment, Córdoba University. 2 Professor of theAnalytical Chemistry Department, Córdoba University.3 Doctor in Chemistry. Director of the OccupationalRisks Prevention Center of Córdoba, RegionalEmployment Ministry, Regional Council of Andalucí[email protected]

This study examines two different analysis and sample taking-methods for recording the workplace presence ofVolatile Organic Compounds (VOCs) to ascertain the risks run by four categories of workers (painters, furniturevarnishers, car painters and service station employees) exposed to toxic, carcinogenic or mutagenic chemicals.The study provides valuable insights for improving preventive activities in tasks of this type.

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INDUSTRIAL HYGIENE


given out even by water-based paint. In

this study a selection was made of a mix-

ture of glycol and ammonium ethers. The

results show no substantial differences

in three groups of volunteers: atopic, no-

natopic and painters. Other studies have

shown up psychological deviations such

as deficits in concentration, memory and

reaction time among car painters with

long-term exposure to solvents, as com-

pared to unexposed subjects.

The VOC exposure of service station

workers has also been studied by several

researchers. By way of summary, the most

notable result is the high level of airbor-

ne benzene, toluene and xylene in these

service stations while fuel refilling ope-

rations are underway, and a high corre-

lation between the airborne levels of the-

se compounds and levels in the air exha-

led by service station workers. In this

context aromatic hydrocarbons are worthy

of special attention given their well-esta-

blished mutagenic and carcinogenic pro-

perties. Exposure to benzene and deri-

vatives thereof is particularly important

in oil refineries in terms not only of inha-

lation but also of skin contact with the

fuel oil, with the intermediate products

(during the refining process) and with fi-

nal products such as petrol. A study has

recently been made of refinery workers

to find out the effects of exposure to ben-

zene, toluene and xylenes, based on uri-

ne samples (biological index) and perip-

heral blood (genotoxicity test). The urine

analysis shows that the metabolite level

in exposed individuals is below the bio-

logical limit and the higher levels seem to

bear a relation to tobacco consumption;

the comet test (genotoxicity test) showed

the genotoxic effects (DNA damage and

possible cancer risk) caused by exposu-

re to these compounds.

In light of all the above, this study tried

to compare the analysis and sample ta-

king methods, assessing the exposure le-

vels of workers in contact with VOCs, such

as house painters, furniture varnishers,

car painters and service station workers.

To do so samples were taken of the am-

bient air and the alveolar air of the wor-

kers; this latter reading is more trustworthy

than exhaled air because it is actually in

contact with the blood. The workers’ al-

veolar air samples were taken before (blank

samples) and after the work shift to assess

the workers’ real VOC contamination du-

ring same. Devices of proven validity in

taking alveolar air samples were used, na-

mely the Bio-VOC breath samplers. Si-

multaneous samples of workplace am-

bient air were also taken to test the effi-

cacy of the collective protection measures

and personal protection equipment and

also to establish possible correlations bet-

ween biological and ambient air samples.

The study presented in this paper as-

sessed the exposure of 24 workers, ascer-

taining the levels of 26 VOCs (basically es-

ters, benzene and derivatives, and chlo-

rethylenes) in the alveolar and ambient

air. The results presented show that the

alveolar air (as opposed to the exhaled

air) of the VOC-exposed workers might

contain high levels of the compounds exis-

ting in the ambient air, in proportion to

their real exposure. The VOC levels in the

alveolar air thus vary directly with the le-

vels existing in the ambient air, but the-

re are two very different absorption ki-

fuel the greenhouse effect and / or acce-

lerate the depletion of the ozone layer.

These substances are present in the gre-

at majority of working environments at

concentrations of a few ppm.

The Biological Limit Values (BLVs) of

the most common VOCs and also their

classification as category 1 or 2 carcino-

gens (C1, C2) are laid down in the docu-

ment «Occupational Exposure Limits for

Chemical Agents in Spain» («Límites de

exposición profesional para agentes quí-

micos en España»), 2008. Furthermore,

according to the International Agency for

Research on Cancer (IARC, 1971-2007),

experimental studies on animals and hu-

man beings have given ample evidence

for the mutagenic and carcinogenic ef-

fects of some VOCs in human beings. It

is currently estimated that between 60%

and 90% of human cancers might be trig-

gered by environmental factors, mainly

due to chemical carcinogens.

Workplace exposure to VOC mixtures

has been assessed in many trades, such

as painters, varnishers, polishers, cob-

blers, laundry workers, cleaners, etc. Se-

veral of these studies have dealt with car

painters, since these workers are sub-

jected to prolonged exposure to a great

variety of organic solvents at relatively

high levels. Fortunately, in the last 10-15

years the VOC exposure of these workers

has been reduced by application of stric-

ter standards including compulsory use

of collective protection measures and /

or personal protection equipment in the

workplace, together with the replace-

ment or reduction of the most toxic sol-

vents in these products. The use of wa-

ter-based paint, for example, has greatly

reduced car painters’ exposure to orga-

nic solvents.

This issue is so important from the oc-

cupational health point of view that an

assessment has recently been made of

the acute effects during controlled expo-

sure to some volatile organic compounds

Volatile Organic

Compounds (VOC) are one

of the most important

classes of toxic,

carcinogenic or mutagenic

agents present in the

workplace and posing

a potential threat to

workers’ health


INDUSTRIAL HYGIENE

netics, one for benzene-derived aroma-

tics (toluene, xylenes and alkylbenzene),

with mean absorption percentages of 50%,

and another for esters, with mean ab-

sorption percentages below 20%. In ot-

her words, the higher absorption rates co-

rrespond to the most toxic compounds,

benzene and its derivatives, which are al-

so the compounds that genotoxicity stu-

dies have associated with chromosome

aberrations and DNA damage. Special

mention must go to benzene, since it is

linked in many workers to the smoking

habit; thus, in house painters, varnishers

(barring worker 12) and car painters (ba-

rring workers 13 and 16), the benzene le-

vels in alveolar air are higher than or si-

milar to the ambient levels in smokers.

Service station workers show the highest

levels of benzene in alveolar air of all wor-

kers studied; this is related solely to am-

bient levels, for the workers concerned

were non smokers. Of all workers studied,

if we concentrate on mean values found

in alveolar air, the most exposed are car

painters, followed by the varnishers. As

regards the individuals exposed, no me-

aningful relationship has been found bet-

ween age, sex or exposure time (the ye-

ars that each individual of the group has

spent carrying out the same tasks). This

is because the alveolar air has been analy-

sed and existing toxic compounds are ge-

nerally eliminated completely after the

working day. Witness the fact that, at the

beginning of the working day (8 a.m.)

practically none of the 26 VOCs analysed

was found in the 24 workers (except ben-

zene in smokers). Quite another thing is

the harm done to the organism by these

solvents. Here, genotoxicity studies show

that exposure, even at low but continuous

levels (here the number of years in the

post does indeed matter), to many of the-

se solvents (especially benzene and de-

rivatives thereof) does carry a cancer risk.

This study also shows that the use of

spray booths and protection clothing and

masks is vital for cutting down or avoiding

completely VOC contamination in these

workers. The staff responsible for preven-

tive activity within the firm, by any of the

arrangements provided for by law, should

therefore keep an eye on this problem and

check the efficacy of this equipment and

fittings. Thus, although car painters are in

theory those who have the greatest con-

trol over airborne chemical agents by ge-

neral use of spray booths, the study has

shown that, if they do not wear protection

equipment while mixing the paint, there

might be dermal absorption of the VOCs.

They should also wear suitable protec-

tive clothing and gloves to prevent der-

mal absorption. Finally, contrary to com-

mon belief, service station workers are

not in fact a risk population, and the risk

rate is falling even further in view of the

spread of self-service establishments with

minimum handling of the petrol by the

employees themselves. In sum, preven-

tive activities in tasks of this type need to

be improved and workers trained in go-

od working practices. ◆

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Acknowledgements

This article has been subsidised by the researchgrant CTQ2007-63962 from the Ministry ofEducation and Science (Ministerio de Educación andCiencia), and research grant SC/UNI/00013/2007from the Regional Employment Ministry (Consejeríade Empleo) of the Regional Council of Andalusia(Junta de Andalucía). The authors wish to thank allworkers who collaborated in this study.

ENVIRONMENT


Introduction and backgroundIn recent decades many indicators and

methodological approaches have been

developed for evaluating the sustaina-

bility of a region or given social activity.

Some of these evaluation methods are

related to the Earth and the resources

used by a given society to live and carry

out an activity. Such is the case of the

ecological footprint indicator.

In the nineties William Rees and his

pupils (Bicknell et al., 1998) from the Ca-

nadian university of British Columbia

coined the concept of ecological foot-

print (hereinafter EF) as the new indi-

cator of a population’s degree of sustai-

nability. The main idea behind this re-

search is that each individual, each

process, each activity and each popula-

tion has an impact on the Earth, due to

the resources they consume, the waste

they produce and also the use of the ser-

vices furnished by nature. This infor-

mation can be converted into the bio-

logically productive area needed to me-

et these flows.

The footprint calculation method pro-

posed by Wackernagel and Rees (1996)

works from the assumption that each

unit of matter or energy consumed calls

Authors: PAULA ARROYO HERNÁNDEZ, JOSÉMANUEL ÁLVAREZ, JORGE FALAGÁN FERNÁNDEZ,CARLOS MARTÍNEZ SANZ, GEMMA ANSOLAGONZÁLEZ & ESTANISLAO DE LUIS CALABUIGEnvironment Institute (Instituto de Medio Ambiente).Ecology Area. Faculty of Biological andEnvironmental Sciences. Campus de Vegazana. León(Spain). Contact: [email protected]

A calculation approach. Implications for the sustainability of the university community

ECOLOGICAL FOOTPRINT OF THE CAMPUS DE VEGAZANA, LEÓN UNIVERSITYIn 1996, the Canadian Scientists Mathis Wackernagel and William Rees published the book Our ecologicalfootprint: reducing human impact on the Earth, defining a new sustainability indicator dubbed the ecologicalfootprint. This paper reports on the ecological footprint study made of León University’s Campus de Vegazana.The ultimate aim of this study is to determine this footprint and pinpoint the possible reduction measures.

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ENVIRONMENT

for a certain tract of land for providing

the resources consumed or dealing with

the waste produced. This is why the cal-

culation of this indicator involves an es-

timation of the necessary land for pro-

ducing each consumption element per

person. This area is obtained by dividing

the annual mean consumption of each

of these elements (Kg / inhabitant) by

the annual mean productivity (Kg /hec-

tare) (Mayor et al., 2003).

Objective: application of theecological footprint calculation tothe Campus de Vegazana of LeónUniversity

This paper presents the EF calculation

for León University’s Campus de Vega-

zana in 2006. Due to the particular fea-

tures of the study’s territorial sphere, the

methodology needed to be adapted in

certain aspects to bring it into line with

what some authors have called the «EF

of a closed economy», i.e. a community

engaging in no trade with other econo-

mies. This means that consumption do-

es not exceed interior production, be-

cause no more products can be consu-

med than those coming from the

biologically productive area available.

The EF would therefore offer no infor-

mation on the existence of any ecologi-

cal reserves or deficits and would hence

forfeit much of its utility (Penela and Vi-

llasante, 2007).

There are two standardised methods

for EF calculation, the compound met-

hod and the component method (see

Simmons et al., (2000) and Chambers et

al., (2000), for more information there-

on). This study has adopted the second

method.

EF calculations in other universities

would enable a comparison to be made

of the values obtained. Most studies of

León University concentrate on the Cam-

pus de Vegazana, located to the north of

the city of León. At the moment it offers

a total of 53 degree subjects taught in 17

centres by 26 departments. In the aca-

demic year 2006/2007 the total number

of students was about 14,000.

Drawing from the classic resource ca-

tegories established by Rees and Wac-

kernagel, this study has worked with a

total of 11 variables. Only the food cate-

gory has been left out, since there were

not enough data and methodological

motives to go on.

Ecological footprint of the Campus de Vegazana

Once we have worked out the global

consumption of Campus de Vegazana

for 2006, we turn to the calculation of the

biologically productive hectares neces-

sary for producing the resources used on

campus.

Calculated consumption figures have

been converted into global hectares by

dividing the total amount consumed of

each good by its biological productivity

and multiplying it by an equivalence fac-

tor. In the particular case of CO2 emis-

sions the total amount of emissions is

divided by the CO2-fixing capacity of wo-

odland masses and oceans and multi-

plied by the corresponding equivalence

factor. This gives us the ecological foot-

print of each good consumed.

Adding together the ecological foot-

prints of all the goods and dividing this

figure by the number of people making

up the university community of Cam-

pus de Vegazana gives us the total per

capita ecological footprint. This then re-

presents the necessary surface area for

satisfying the consumption and absor-

bing the waste of each campus member.

The final result shows an ecological fo-

otprint per member of the university

community of Campus de Vegazana of

0.45 gha/cap. ◆

Acknowledgements

This research work has been carried out under the2008 research grant scheme of the Institute ofPrevention, Health and Environment (Instituto dePrevención, Salud y Medio Ambiente) ofFUNDACIÓN MAPFRE.Our thanks also go to all the following:To all those persons and institutions that havehelped us in carrying out this research work, in allits phases.To URBASER and to GERSUL, especially to AntonioNicolás, José Manuel and Secundino Prieto, for theinput of figures on the waste generated by theCampus de Vegazana.To Vicente Fernández, for all the figures on theuniversity’s energy consumption.To Luis Roy, for the information on campusoccupancy and the buildings making it up. And toNacho and Miguel of SERCAR, who are ever willingto do everything they can to help.To Francisco Gallego, for his input of information onpaper consumption and photocopies of all thefaculties.And to all of you for your interest in how much weconsume and what our ecological footprint is. Andto all of you once again for starting, little by little, toapply the measures most conducive towards thesustainability of our university.

Jorg

e Fa

lagá

n Fe

nánd

ez

ENVIRONMENT


Taxes and climate change. The Spanish model

This article examines how the taxa-

tion system might help to combat cli-

mate change as a complement to the

trading scheme. Before going ahead with

this analysis we should point out that

there are already many taxation mea-

sures bearing on greenhouse gas emis-

sions 1. It is therefore vital to ensure that

any new measures are knitted into the

system in a coordinated way, otherwi-

se there might be a counterproductive

clutter of overlapping instruments. Wor-

king from this premise, we aim to show

how the taxation system could be used

as an ally in the fight against climate

change. In other words, we will analyse

how taxes may encourage or discoura-

ge the behaviour of private individuals

in this pursuit. As we will see later the

possibility of using the taxation system

to achieve certain public ends is what

has come to be dubbed by the Spanish

Constitutional Court (Tribunal Consti-

tucional) as the «función extrafiscal»

(non-fiscal function) of the tax.

We should make it clear, first and fo-

remost, that the implementation of the

greenhouse gas emission trading sche-

me does not rule out other environmental

policies, not even the fiscal policy. Ta-

xation measures are by no means in-

compatible with a greenhouse gas emis-

sion trading scheme, since the latter is

an economic instrument without any fis-

cal component, although its implemen-

tation might well have taxation knock-

on effects 2. Quite on the contrary, we ad-

vocate harnessing the synergy that might

exist between them, so that technical re-

gulations, taxation3 and environmental

agreements might all complement the

new mechanisms laid down in the Kyo-

to Protocol.

Specifically, in relation to air-emis-

sions taxation, we believe that this should

be complementary to the emission tra-

ding scheme with regard to those sec-

tors that do not come within the field of

application of Act (Ley) 1/2005: namely,

transport, housing, etc. The non-fiscal

function of the tax could come into its

own here for taxing diffuse emissions,

in view of their exclusion from the tra-

ding scheme on the grounds of the dif-

ficulty of controlling them. Reference

should be made here, among other me-

asures, to the new Special Tax on Cer-

tain Means of Transport (Impuesto Es-

pecial Sobre Determinados Medios de

Transporte), to energy taxation, to the

new CO2 tax for the aviation sector, to

the tax on the incorporation by electri-

city companies of the cost of their fre-

ely assigned emission right in the supply

price, etc.

When it comes to using tax benefits as

a means of encouraging conduct con-

ducive to sustainable development, re-

ference should be made to the corpora-

te income tax reductions for environ-

mental investments, tax incentives for

clean energy, exemptions for less pollu-

ting means of transport, etc.

As we will see later, the fight against

climate change cannot be left in the hands

of States alone, but must also involve ot-

her governmental levels such as the Spa-

nish regional authorities (Comunidades

Autónomas) and local authorities. Furt-

hermore, the measures to reduce global

warming cannot be directed solely at the

economic agents and main polluting in-

dustrial sectors but must also embrace

the whole set of citizens on a person-to-

person basis. Regional and local autho-

rities are especially suited to the pursuit

of this aim, mainly with regard to diffu-

se emissions from such sectors as trans-

port, commerce and housing. At times,

however, our hands will be tied by our

membership of the EU, making decision-

taking more difficult for harmonised ta-

xes that need to be monitored at Com-

munity level. Nonetheless, successful

pursuit of this aim will necessarily de-

pend on proper coordination with exis-

ting measures at state and regional le-

vel, to avoid overlapping legislation that

might balk the end in view.

The taxation system as a complement of the Kyoto Protocol economic mechanisms

GREEN TAXES

Author: IÑAKI BILBAO ESTRADA. Professor of theENDESA Chair of «Taxation and Climate Change».CEU Institute of Environmental Ethics and Law.

How might a country’s taxation system help to combat climate change? This article explores the use of taxes notto raise revenue but to mould people’s behaviour, encouraging favourable conduct and discouragingunfavourable conduct in the fight against climate change.

(1) INTERNATIONAL MONETARY FUND: The FiscalImplications of Climate Change, International

monetary fund, Washington, 2002, page 3.

(2) On this question see BILBAO ESTRADA, I. andMATEOS ANSÓTEGUI, A. I.: «Régimen tributario de

los derechos de emisión de CO2», Tribuna Fiscal190-191, pages 36 to 39.

(3) BUÑUEL GONZÁLEZ, M.: «Tributosmedioambientales frente a permisos de emisión

negociables en la lucha de la Unión Europea contrael cambio climático: la Directiva sobre comercio de

derechos de emisión de gases de efectoinvernadero», in the collective work Tributaciónmedioambiental: teoría, práctica y propuestas,

Civitas, 2004, pages 405 ff.


ENVIRONMENT

The non-fiscal purpose of the taxAs we have already pointed out, this

complementary function of the taxation

system with respect to the emission tra-

ding scheme is possible thanks to its non-

fiscal function. Along these lines, the Tri-

bunal Constitucional laid it down in jud-

gement 37/87 of 26 March that «it is

constitutionally sound for the remit of

states and Comunidades Autónomas to

include the establishment of taxes that,

without forfeiting or flouting the princi-

ple of economic or payment capacity,

correspond mainly to economic or so-

cial criteria geared towards the fulfilment

of purposes or the satisfaction of public

interests that the Constitution advoca-

tes or guarantees», stipulating even mo-

re forthrightly in its judgement 186/1993

of 7 June (FJ 4) that «constitutionally the-

re can be no objection to the use of ta-

xes with a non-fiscal purpose».

The use of the taxation system for en-

vironmental protection purposes 4 and

especially to fight climate change is fully

justified in light of the environment-pro-

tection obligations laid down in the Spa-

nish Constitution 5 and especially the pu-

blic authorities’ duty to watch out for a

rational use of all natural resources with

a view to protecting and improving the

quality of life and preserving and resto-

ring the environment. Furthermore, ar-

ticle 191 of the Treaty on European Union

(ex Article 174 TEC) from the consolida-

ted version of the Treaty on European

Union and the Treaty on the Functio-

ning of the European Union lays it down

that the union’s environmental policy

will be based, among other principles,

on the polluter pays principle.

Although it is not a constitutional ta-

xation principle, therefore, we do wish

now to stress its importance and the ne-

ed of studying its relationship to the duty

of contributing towards sustaining pu-

blic expenditure but eschewing its link

to the taxation system. This is because

the requisites involved in combatting cli-

mate change make new economic ins-

truments increasingly difficult to graft

onto the current taxation set-up. As Vi-

llar Ezcurra points out «maybe we can-

not graft today’s financial formulae on-

to yesterday’s repertory of taxation ins-

truments. Efforts are now being made to

free the Exchequer from the future obli-

gation of providing public services of ge-

neral interest, encouraging cooperation

in the private sector that might render

direct intervention of public authorities

unnecessary in the near future» 6. ◆

(4) BOKOBO MOICHE, S.: Gravámenes e incentivosfiscales ambientales, Civitas, Madrid, 2000;HERRERA MOLINA, P.M.: Derecho tributario

ambiental: la introducción del interés ambiental enel ordenamiento tributario, Marcial Pons, 2000;

VAQUERA GARCÍA, A.: Fiscalidad y medio ambiente,Lex Nova, 1999.

(5) See note 2.

(6) See VILLAR EZCURRA, M., «Exigencias delderecho comunitario a la metodología del derecho

financiero y tributario», Crónica Tributaria 100,2001, pages 23 ff.

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