Apolo Blogs
Constitutional Victory for the Shrimp Farming Sector: The Court Strikes Down the Environmental Fee in the Canton of Arenillas — by Andrés Solórzano
In July 2023, attorneys José Gabriel Apolo and Andrés Cervantes, together with APOLO Abogados’ Constitutional Law team, comprised of attorneys Ronny Rodríguez and the author, filed a public action for unconstitutionality against the Reforming Ordinance Regulating the Collection of the Fee for the Use and Occupation of Urban and Rural Land in the Canton of Arenillas (Official Gazette No. 475, September 15, 2022).
The ordinance established an “environmental impact” fee for the use and occupation of land, with specific rates for saltwater shrimp farms (20% of the unified basic salary per hectare) and freshwater shrimp farms (40% of the unified basic salary per hectare).
The constitutional challenge was based on two main grounds. The first was jurisdictional in nature: the Municipal GAD of Arenillas lacked authorization to regulate environmental matters, as it had never obtained the corresponding accreditation from the national environmental authority. It therefore assumed powers that did not belong to it, in violation of Articles 226 and 263.4 of the Constitution.
The second ground concerned tax law: the rates established for shrimp farms were technically and economically unjustified and disproportionate to the public service provided—which was limited to a simple document review—while creating a duplication of charges with those already collected by the Ministry of Environment, Water and Ecological Transition (MAATE). They also established different treatment between freshwater and saltwater shrimp farms without any objective justification. All of this violated the principles of equity, proportionality, equivalence, non-confiscation, and equality recognized in Articles 300 and 323 of the Constitution, as well as the right to legal certainty.
However, the Court only ruled on the jurisdictional challenge and, after finding it well-founded, deemed it unnecessary to rule on the tax-related claims, which therefore remained without substantive analysis.
The Constitutional Court’s judgment clearly established that:
- “...in order to enact regulations or carry out environmental quality activities related to the prevention or control of environmental pollution, a municipal GAD must have an express authorization granted by the National Environmental Authority. In the absence of such accreditation, municipal GADs lack substantive jurisdiction to create regulations or procedures to prevent, avoid, remedy, control, and/or sanction pollution, or to conduct impact assessments, control, and/or monitoring of pollution.”
Before ruling on the merits, the Court noted that the challenged ordinance had been repealed by a Replacement Ordinance (Official Gazette No. 1531, April 10, 2024). Nevertheless, it extended its analysis for two reasons. First, there was normative unity (unidad normativa) under Article 76.9.a of the Organic Law on Jurisdictional Guarantees and Constitutional Review (LOGJCC), since the replacement ordinance reproduced almost the entire text of the challenged provision, changing only the rates. Second, there were continuing effects under Article 76.8 of the LOGJCC, since the repealed provision could continue to produce effects with respect to taxable events occurring during the period in which it was in force.
The declaration of unconstitutionality takes effect prospectively and also extends to ongoing administrative assessment or collection proceedings and judicial proceedings based on either of the two ordinances. This means that the GAD of Arenillas may no longer continue collecting the environmental impact fee that significantly affected aquaculture producers in the sector.