Critical Criminology (2023) 31:563–579

https://doi.org/10.1007/s10612-023-09685-w

Legal but Environmentally Harmful Practices Involved

in Gold Mining in Madre de Dios, Peru

Johanna Espin1,2

Accepted: 5 January 2023 / Published online: 5 March 2023

© The Author(s), under exclusive licence to Springer Nature B.V. 2023

Abstract
The aim of this research is to examine environmental harms produced by artisanal and
small-scale gold mining (ASGM) in the region of Madre de Dios, Peru. This study evalu-
ates explanations for legal but environmentally harmful practices involved in ASGM from
a sociological institutionalist approach, which offers a theoretical lens for considering vari-
ous political, social, and administrative explanations. Data are drawn from the Peruvian
legal framework relevant to ASGM, field observation, and key informants from different
sectors. The findings provide greater clarity as to the extent those specific institutional
explanations, such as regulatory capture and red tape, would account for lawful but awful
environmental harms produced by ASGM.

Introduction

Conventional criminological approaches to examine environmental harms tend to con-

sider only those practices that are regulated or forbidden by law and thus constitute crimes.
Green criminologists have however embraced a harm perspective and thus studied acts that
are lawful but awful (Passas, 2005; Wyatt and Brisman, 2017). There is a large body of
scholarship that can illustrate this perspective (Brisman et al. 2017; Brisman and South,
2013; Mol, 2017; White, 2013). Framed in this critical lens, this paper contributes to
extend current knowledge of environmental harms in Latin America, an area with very
fragile ecosystems, where a Green Criminology approach can be very beneficial in terms
of their conservation.
Environmental harms, whether as resource withdrawals or pollution additions, result
from various specific practices, for instance, legal loopholes regarding waste management
in rural areas. Such practices that give structure to an environmental harm have been less
examined in previous Green Criminology literature. The aim of this research is to iden-
tify the existence of these legal but environmentally harmful practices (EHPs) in one of
the largest extractive sectors in Latin America, the artisanal and small-scale gold mining

* Johanna Espin
johanna.espin@iaen.edu.ec
1
Instituto de Altos Estudios Nacionales (IAEN), Av. Amazonas N37‑271 y Villalengua, Quito,
Ecuador
2
Department of Sociology, Criminology and Law, University of Florida, Gainesville, FL 32611, US

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564 J. Espin

(ASGM) and, building on a sociological institutionalist approach, to explain the occur-

rence of these lawful but awful practices. The research focuses on the case of ASGM in the
region of Madre de Dios (MDD) in Peru because ASGM has caused well-known environ-
mental harms in this region, which have become the focus of considerable contention over
the questions of regulation.
Data are drawn from the Peruvian legal framework relevant to ASGM, field observa-
tion, and key informants. The data permit an analysis of those legal but EHPs involved in
ASGM. The findings provide greater clarity as to the extent that institutional explanations,
such as regulatory capture and red tape, would account for environmental harms produced
by ASGM.

Environmentally Harmful Practices (EHPs) from a Green Criminology Perspective

There are multiple approaches to explain what counts as crimes against the environment
(Lynch et al. 2013). From a legalistic perspective, a green crime is an unauthorized act or
omission committed by an individual or organization in violation of a law, endangering the
environment and people’s health and, therefore, subject to criminal prosecution and sanc-
tions (Situ and Emmons, 2000). The great limitation of this approach is that it fails to rec-
ognize as problematic those practices that are environmentally harmful but are not defined
as illegal by law. Alternative non-legalistic perspectives, framed on a Green Criminology
approach, focus on the critical study of environmental harms as opposed to crimes (Halsey
and White, 1998; Lynch et al. 2013; South, 2014a; South and White, 2013; White, 2008),
which underscore the highly political processes and contested nature behind the legal defi-
nition of what acts count as crimes (Quinney, 1970). In fact, Green Criminology has been
critical of the failure of states and law enforcement to apply regulations fairly and rigor-
ously, pointing out the need to discuss and attend the gaps between legality, legitimacy,
and justice (South, 2014b). This study therefore is located within the framework of Green
Criminology, because it aims to call into question the notion that legal activities are uni-
formly harmless, while revisiting the idea that power relations influence what is defined as
criminal and what is not.
From a Green Criminology approach, environmental harms are also classified based on
its effect, whether as primary (direct) or secondary (indirect) (South, 2014a; South and
White, 2013). Primary harms are acts that directly produce ecological degradation. By
contrast, secondary harms stand for the indirect environmental impacts generated by the
conditions that lead to a primary environmental harm.
However, an environmental harm usually results from the occurrence of multiple differ-
ent practices. In terms of their regulatory status, some EHPs are codified as illegal by law,
while others remain legal because a law states so or no laws prohibit them. Among legal
EHPs, the question arises as to why they are permitted or at least not prohibited. This paper
focuses on examining those EHPs that are legal because are not included in any law (legal
gap) or due to a legal ambiguity (legal loophole).

Sociological Institutionalist Explanations to Environmentally Harmful Practices

(EHPs)

This research adopts a sociological institutionalist theoretical because it permits to

focus on the complexity of the interaction between the political and the social, i.e., the
interplay between rules and practices (Dimaggio and Powell, 1983; Finnemore, 2021;

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Legal but Environmentally Harmful Practices Involved in Gold… 565

González and Healey, 2005; South, 2014b). In addition, this perspective offers con-
cepts for a comprehensive analysis, such as institutions and regulations. There is still
debate over the definition of institutions (Hodgson, 2006; Nielsen, 2001) but, relying
on a sociological institutionalist perspective, we used the definition of institutions as
an established set of social rules, not simple rules, that shape practices in daily life
and structure social interactions (Hodgson, 2006). Regarding regulations, this concept
potentially encompasses both governmental rulemaking and practices codified by other
non-governmental actors, but this research focuses on regulations that result from the
rulemaking functions of the State (Gunningham, 2009).
For explaining the occurrence of legal but EHPs in ASGM, we draw insights from
two different perspectives that can be framed on sociological institutionalism: regula-
tory capture and red tape. Regulatory capture theory states that laws are typically cap-
tured to serve the interests of those who should be regulated by them in detriment of
the public-interest (Etzioni, 2009). It means that the mandate of serving the public is
subordinated to benefiting specific groups instead. There are two practices that can be
interpreted as evidence of regulatory capture: exertion of influence in rulemaking and
seeking preferential treatment. The behavior of seeking preferential treatment is less
common because it permits only to obtain individual benefits, while a general removal
of rules, as deregulation, provides wider benefits (Durand, 2016).
Regulatory capture cannot be directly observed because, for instance, an inefficient
set of regulations does not necessarily equate to regulatory capture (Coglianese, 2016).
According to Carpenter and Moss (2014), it implies improper influence over the rules
by relying on interpersonal connections or access to key political positions, resulting
in regulations that are shaped so that specific interests may obtain more favorable out-
comes. Regulatory capture then can occur during rulemaking and afterward. During
rulemaking, it occurs by using interpersonal connections or accessing to key politi-
cal positions (Rodriguez-Goyes, 2018). If it is not successful, it can still be attempted
thereafter, focusing on getting a preferential treatment without altering the existing
regulatory framework, or also on influencing modifications of laws (Etzioni, 2009;
Heydon, 2019).
The second explanation concerns Red Tape, which implies that there are proce-
dural requirements that entail a compliance burden but are not useful for achieving
the objectives of a rule (Bozeman and Anderson, 2016). As compliance burden, stud-
ies refer to the resources (economic, human, time) expended in complying with a rule
(Bozeman, 1993). Due to red tape then a regulation may involve a suite of protocols
that must be followed, but do not have to do with the rule itself, rendering it singularly
ineffective.
Lastly, there are two forms of red tape. Rule-inception red tape, which refers to
rules made dysfunctional, whether because those who designed the rules did not have
sufficient understanding of the problem, or the rule was created only as a symbolic
solution. And, rule-evolved red tape that occurs when a functional rule evolves into red
tape, because of factors such as a changes in the original objectives, accumulation of
conflicting protocols, or misapplication of rules because they are difficult to interpret
(Bozeman, 1993; Bozeman and Feeney, 2011). An indicator of both forms concerns
the imposition of significant time-costs for compliance (Pandey and Scott, 2002). Red
Tape is then observed by looking at administrative delays produced by the state itself,
in terms of the amount processing time needed to complete an administrative task.

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566 J. Espin

Artisanal and Small‑Scale Gold Mining in Madre de Dios (MDD)

Since 2000, there has been significant debate over the regulation of gold mining in Peru,
which is the largest producer in Latin America (Kumah, 2006) and the fifth producer
worldwide (SPDA, 2015). The gold mining sector is important for national development
and weighs heavily in policy priorities, but the gold mining industry is diverse and strati-
fied into categories according to their size and capital invested. We can find artisanal,
small-scale, medium-scale, and large-scale or industrialized operations.
MDD is the third-largest producer of gold in Peru, which is extracted exclusively
through ASGM (SPDA, 2015). In 2015, ASGM accounted for 58.3% of regional economic
growth, resulting in the highest increase in economic growth and the lowest poverty rates
(INEI, 2015). The mining districts (Laberinto, Inambari1, Madre de Dios2, and Huepetuhe)
tend to have poverty levels below the regional average and better housing conditions3.
However, ASGM in MDD corresponds to extraction of alluvial gold deposits found
at the bottom of creaks, rivers, streams, or underneath riparian forests (Revoredo et al.
2010; Spiegel and Veiga, 2010). This type of extraction is generally characterized by the
exploitation of small deposits, unorganized occupation of lands, minimal use of technol-
ogy and mechanization, inefficient gold recovery, lack of long-term mine planning, poor
health and safety work practices, and virtually no environmental considerations (Hentschel
et al. 2003). Indeed, ASGM has produced many social and environmental problems in this
ecologically sensitive area (Arriaran and Gomez, 2007; Asner and Tupayachi, 2017; Díaz,
2010; Kuramoto, 2001; Mosquera et al. 2009; Salo et al. 2016; Yard et al. 2012).
Some environmental harms include air pollution by the use of toxic inputs, long-lasting
contamination of water sources used by rural communities and fauna alike, soil degrada-
tion, loss of wide swaths of forest by the removal of trees to seek gold in the underlying
alluvial soils, devastation of wildlife habitats, open of sensitive lands to further in-migra-
tion and settlement, and endangered public health (Alvarez-Berrios et al. 2016; Asner
and Tupayachi, 2017; Díaz, 2010; Yard et al. 2012). Most of these environmental harms
are attributed to the illegality that characterizes ASGM (Onumah et al. 2013; Salo et al.
2016). For instance, deforestation within protected areas is illegal but it also occurs by the
removal of trees within a mining concession, where it is legal. This example illustrates the
complexities regarding the legal status of ASGM practices, which may be legally accepted
despite their negative consequences for the ecosystems and human health.
Aiming to organize and promote the development of ASGM in MDD, in 2002, it was
enacted the Law of Formalization and Promotion of Small-scale and Artisanal Mining
(Law 27,651), which gives origin to the Peruvian legal framework for ASGM. Fifteen years
after its enactment, over 70 additional pieces of legislation have been issued with the pur-
pose of transforming ASGM into a viable activity for local economic development. Those
documents constitute the legal framework in Peru for artisanal and small-scale mining,
which should set regulations to prevent environmental harms. However, the widespread
occurrence of environmental harms produced by ASGM in MDD suggests otherwise.

1
There are two mining enclaves in Inambari: the town of Mazuco and the area known as La Pampa.
2
This district includes the largest mining towns in the region: Boca Colorado, Bajo Puquiri (known as
Delta 1), Delta 2, Delta 3 and Delta 4.
3
The poverty rate in 2009 in MDD was 15.7%. It reached only 9.5% in Inambari, 12.9% in Laberinto, 6.8%
in Madre de Dios, and 8.1% in Huepetuhe. The extreme poverty rate reached 4.2% in MDD, but it was 2.0%
in Inambari, 3.0% in Laberinto, 1.2% in Madre de Dios, and 1.5% in Huepetuhe (INEI, 2015).

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Legal but Environmentally Harmful Practices Involved in Gold… 567

Data Collection and Methods

This paper relies on a qualitative research approach. The qualitative strategy includes three
data collection methods: document analysis, in-depth interviews, and observation. The
methods are employed in a sequential, multi-step process. First, we reviewed legal docu-
ments to identify legal but EHPs. Second, we pursued an observational method, which per-
mitted documentation of those EHPs in the field. And third, we conducted in-depth inter-
views with key informants to obtain their explanations for specific practices.
Document analysis was used to understand the law as pertains to ASGM in MDD. We
examined the Peruvian legal framework for twofold reasons. First, it permits to identify
legal loopholes and gaps, and thereby discern legal but EHPs. Second, this also permits
to dig up governmental priorities in the construction of law. For selecting the legal doc-
uments, we relied on a purposive sampling strategy. The starting point was Law 27,651
enacted in January 2002, because it was the first document created to focus on regulation
of ASGM. We then sought every document issued up to 2017 (laws, decrees, or resolu-
tions) that directly address ASGM issues in MDD. We excluded documents with different
geographic scope, as those focusing on other regions of Peru. The resulting sample com-
prises 75 legal documents issued from 2002 to 2017 pertaining to ASGM in MDD.
We used an observational method to get an understanding of the specific settings in
MDD in which ASGM practices are carried out, and how EHPs fit in that context. Entering
the field for documenting legal but EHPs requires gaining access to miners for visiting their
concessions, which are private. For the selection of cases, we used a convenience sampling
strategy. From seven concession owners that were initially contacted, five agreed to par-
ticipate. The five small-scale mining concessions are in the districts of Huepetuhe, Madre
de Dios (Delta 1), Tambopata (community Tres Islas), and Inambari (Mazuco and km. 110
of the Interoceanic Highway). At each site, the concession owner or a manager walked us
through the different processes carried out in that ASGM operation.
We complemented the data with interviewing to understand how gaps and loopholes
in written rules may be exploited in practice. We conducted two sets of semi-structured
interviews with open-ended questions. Because ASGM is a sensitive topic in Peru, for
both sets of interviews, we conducted a question-and-answer session before each interview
to obtain prior informed verbal consent. While a written process for obtaining informed
consent is the norm, this is rare in Peru because it tends to cause distrust on the part of
participants. The informed consent process however followed ethical guidelines by obtain-
ing verbal consent and was approved before fieldwork by the Institutional Review Board
of the University of Florida. The first set of interviews was targeted at experts related to
ASGM, and the second set sought out key informants involved in ASGM. The purpose was
to include multiple perspectives from different sectors, which allowed for comparisons and
confirming of evidence. The five participants for the first set of interviews were selected
through purposive sampling in the fields of environmental and mining law, accounting and
taxes, and geology and mining engineering. The sampling strategy used for the second set
of interviews involved maximum variance sampling, designed to capture diverse perspec-
tives. The participants from government and NGOs were recruited through purposive tech-
niques and the ASGM producers through a snowball sampling technique. We conducted 65
semi-structured interviews, including 33 from the government, 17 from the ASGM sector
in MDD, and 15 from NGOs.
For data analysis and interpretation, the initial procedure was to transcribe the inter-
views and upload the transcriptions, legal documents, and fieldnotes into Atlas.ti. The data

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568 J. Espin

were then analyzed by relying on a combination of deductive and inductive (hybrid) cod-
ing, following a multistep process. First, from a review of previous research, we identified
22 forms of environmental harms produced by ASGM and classified them depending on
their primary or secondary impact to the air, forest and wildlife, or water. Based on that
information, we conducted a hybrid process of coding to identify specific EHPs employed
in ASGM in MDD that could generate one or more of those 22 environmental harms. From
that coding process, 12 categories of EHPs emerged: Two were illegal, one was legal and
clearly regulated, and nine were technically legal because they were unregulated. We then
pursued a new round of hybrid coding to dig deep into explanations for those nine legal but
EHPs. Lastly, the process we followed in choosing the quotations that are included in the
findings section did not attempt to be exhaustive but to synthesize multiple perspectives
from different participants. For this, we cite representative quotes verbatim from interviews
as evidence of a prevailing pattern among several interviewees.

Findings

In this section, we discuss the evolution of the Peruvian legal framework for ASGM under
which legal EHPs exist. Following that discussion, we present the main findings concern-
ing explanations about the legal status and occurrence of these practices.

The Legal Framework for Regulating ASGM

Legal documents are classified based on the authority of who enacted them. A law has the
highest rank and, as well as legislative decrees, can be enacted only by the National Con-
gress (the legislative branch). Through a special delegation, legislative decrees can also
be enacted by the executive branch. The executive branch regulates its activities through
supreme decrees or resolutions, created by ministries or commissions for administering
their responsibilities.
The most common means to regulate ASGM has been through supreme decrees, which
represent 45% of the documents enacted. Considering that resolutions and all legislative
decrees were also issued by the executive branch, then at least 87% of the regulatory frame-
work has been directly conceived by the executive power (Table 1). This accumulation sug-
gests a high concentration of political power in the executive branch. The implications of
this concentration are important because decision-making may become strongly dependent
only on who holds the executive power at a certain time. Also, if economic elites have easy
access to key political positions as ministries, this concentration of power may also facili-
tate the influence of economic elites in rulemaking.
Law 27,651 and decree SD-013-2002-EM set up the legal framework for ASGM. After
that, its development has not been uniform. For instance, 21 documents were issued in 10
years, while the same number of documents was created only in 1 year in 2012 (Fig. 1).
It is possible then to identify four phases in the evolution of the ASGM legal frame-
work: (1) Invisibility of the problem, (2) Concern and alarm, (3) Regulatory boom, and (4)
Environmental deregulation (Fig. 2).

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Legal but Environmentally Harmful Practices Involved in Gold… 569

Table 1  Legal norms included in the regulatory framework of ASGM in Peru

Legal document Frequency %

Law 7 9%
Legislative decree 11 15%
Supreme decree 34 45%
Resolutions 20 27%
Other norms 3 4%
Total 75 100%

During the first phase (2002–2008), the problem of environmental harms remained
invisible, and mining claims4 were allocated without any control. Few regulations were law
28,271 to regulate environmental liabilities, resolution MR-550-2006-MEM/DM for trans-
ferring mining responsibilities to the Regional Governments, law 29,023 to regulate the
use of cyanide, and decree LD-1040-2008 to differentiate placer mining and other methods
of extraction.
The high levels of conflicts in MDD led to a phase of concern and alarm (2009–2011).
This phase was driven by the creation of the Ministry of Environment, and the strong atten-
tion of mass media to studies reporting high mercury concentrations in MDD (Arana,
2005; Arriaran and Gomez, 2007; Kuramoto, 2001; Mosquera et al. 2009; Torres, 2007).
Key regulations were resolution MR-206-2009-PCM that created a Multi-sectorial Work-
ing Group to improve artisanal mining; emergency decree ED-012-2010 that declared the
ASGM formalization in MDD as national interest; and law 29,815 against illegal mining.
The third phase (2012–2014) brought a regulatory boom: Forty-four documents were
created, including nine decrees in three months in 2012, all focused on MDD. The main
ASGM policies were enacted in 2014: the National Strategy for the interdiction of Illegal
Mining, and the Strategy for Artisanal and Small-scale Mining. These regulatory efforts
can be grouped into actions aiming to (1) create institutions to lead processes and control
ASGM, (2) generate systems of information, as mining registers, and (3) define policies
and regulatory strategies.
The fourth phase (2015–2017) is characterized by an environmental deregulation.
Deregulation refers to reduce state regulations from the legal framework, not to a lack of
environmental regulations. For instance, some documents such as decree SD-061-2016-
PCM eliminated key agencies responsible for environmental regulations as the High Com-
missioner for mining formalization, interdiction of illegal mining, and environmental
remediation.

4
From 2002 to 2008, 445 mining claims were registered annually in MDD. It decreased 74% to 115 claims
annually from 2009 to 2016. In 2017, after the new process of formalization, the average number increased
again from 115 to 530 claims annually.

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570 J. Espin

Fig. 1  Legal documents for regulating ASGM enacted from 2002 to 2017

Fig. 2  Phases and timeline of key events in the legal framework of ASGM in Peru

Legal but Environmentally Harmful Practices in MDD

We identified a suite of nine legal EHPs employed in ASGM in MDD (Table 2). That
means that these practices are not included or addressed in detail in any formal rule.
Instead, they are barely mentioned or not mentioned at all, which makes them legal because
they are not regulated. The EHPs are classified based on the primary or secondary harm
produced.

Primary Environmental Harms

There are different practices for extracting alluvial gold. The most common are digging in
surface pits and the removal of gold-bearing gravel. Pit digging requires excavating through
loose sand or tightly packed soil to reach the layer containing the mineral. A site near a
river is chosen because the gold sand can be easily washed with a sluice box to separate the
gold. If the soil is packed, rivers are diverted into ditches to soften the gold-bearing sand.

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Legal but Environmentally Harmful Practices Involved in Gold… 571

Table 2  Legal EHPs involved in # Legal EHPs PEH* SEH*

ASGM
1 Pit excavation and digging X
2 Removal of gold-bearing gravel X
3 Clearcutting of forests X
4 Gold smelting without using retorts X
5 Inadequate mine tailings disposal X
6 Inadequate planning of environmental impacts X
7 Inadequate planning of mines closure X
8 Lack of activities of mine reclamation X
9 Inadequate solid waste disposal X

*Primary Environmental Harm (PEH) / Secondary Environmental

Harm (SEH)

Because digging is conducted close to rivers, this practice generates river course changes
and increases water turbidity. Despite these environmental harms, digging is not mentioned
in any legal document.
The legal gap that permits this practice is explained by the influence of the ASGM sec-
tor in rulemaking. Such influence was repeatedly mentioned by different actors, whose nar-
rative suggested that the close relation between miners and politicians is related to strong
personal connections, or because former miners became local politicians, as in the case of
several district mayors. Quote 1 describes the activities of the small-scale mining sector in
Lima to create new laws or modify existing regulations to fit their interests.
We have regular meetings with a group of congressmen in Lima or with the Minister
of Energy and Mines, because we have an important role to play in the changes to the
law. We do not like to protest or throw rocks. We prefer the dialogue and advise them
about how laws should be modified to represent us. (Representative of the largest
Small-scale Mining Organization in Peru, pers. comm. 2017. Quote 1)
This coziness between small-scale mining organizations and politicians suggests
the existence of regulatory capture. Politicians are expected by ASGM organizations to
respond to their agenda, which is to contain or remove environmental provisions. Evi-
dently, the problem is not the lobbying but the excessive influence of small-scale min-
ing groups in the construction of laws that benefit only their interests while jeopardizing
human health and the environment.
These issues also arise regarding the removal of gold-bearing gravel. No law forbids
that practice, despite it requires the use of high volumes of water and heavy machinery
against banks of gravel deposits, to wash away the hillside that conceals gold ore. The envi-
ronmental harm generated is significant, but it is not addressed in any law. In fact, decree
LD-1336 eliminated the requirement of getting an authorization of water use for obtaining
a license of operation. This modification to the law is also explained by regulatory capture.
However, EHPs also occur due to legal loopholes or contradictions, as in the practice
of clearcutting of forest. Clearcutting means that all trees in an area are removed, which
is a common practice when gold will be extracted for the first time, but its regulation is
still ambiguous in the Peruvian Law. Decree SD-013-2011-EM states that miners should
get a deforestation certificate, but it does not mention who should issue the certificate.
The National Service of Natural Protected Areas could grant the permit, but they argued

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572 J. Espin

that they are “only responsible for giving a technical opinion, not an authorization, and
only for protected areas and their buffer zones” (Representative of the National Service
of Natural Protected Areas, pers. comm. 2017). Another agency that could grant the cer-
tificate because it is responsible for controlling clearcutting of forest in the Amazon, is the
National Forest Service of Flora and Fauna, but there is no a local office in MDD. In the
meantime, “the deforestation certificate that is required for any extractive activity can be
processed only in the office in Lima” (Representative of the National Forest Service of
Flora and Fauna, pers. comm. 2017).
The ambiguity related to the agency responsible for granting certificates, along with a
concentration of processes in Lima, makes these requirements harder to be fulfilled and
more time-consuming. This is then explained by issues of red tape rule-inception because
the rules were made dysfunctional and vague, but it also shows that administrative delays
occur due to the concentration of oversight and licensing processes in Lima.
Another practice is the lack of adequate planning of environmental impacts during
ASGM operations. Efficient planning requires capacities to manage potential harms to air,
water, soil, forest, and biodiversity. This includes to collect baseline data and apply frame-
works for evaluating risks. These actions must be included in an environmental impact
assessment. However, the environmental assessments have not been implemented due to
administrative delays in the design of standardized templates. In 2012, the Ministry of
Environment was responsible for preparing a template within 30 days. Some guidelines
were available after 5 months and the template in one year. Meanwhile, ASGM continued
without any environmental control. In 2017, the responsibility for elaborating a new tem-
plate switched to the Ministry of Energy and Mines and there is still not a template ready
for use.
The constant changes in responsibilities are the most common factor for administrative
delays and conflicts. The representative of the General Directorate of Mining Formaliza-
tion from the Ministry of Energy and Mines discussed such changes: “The Regional Gov-
ernments are not approving Environmental Impact Assessments. For this, we decided to
take back our role as the leading authority, which was occupied by the Ministry of Environ-
ment. We will create an appropriate instrument for environmental assessment” (Represent-
ative of the General Directorate of Mining Formalization, pers. comm. 2017). It reveals
the tensions that these changes have created between the Ministry of Energy and Mines,
the Regional Governments, and the Ministry of Environment. Also, it shows that red tape
would be associated with organizational instability. The lack of regulations is explained by
administrative delays, but our data complemented the red tape explanation by suggesting
that administrative delays are also related to organizational issues, as high instability in the
assignation of responsibilities.
An inadequate post-closure planning can also cause significant environmental harms.
ASGM is a temporary activity with a limited lifetime because it depends on the extrac-
tion of a non-renewable natural resource. Although the closure should occur when gold
is completely exhausted or operations are no longer profitable, mine closure planning is
needed while the operation is still running. However, there are no provisions in the legal
framework regarding early planning for mine closure, there are only some provisions for
the case of liabilities.
The General Directorate of Environmental-Mining Affairs from the Ministry of Energy
and Mines is responsible for cleanup actions in mining sites with environmental liabilities.
However, this agency cannot take actions unless the site is declared as abandoned and clas-
sified as high priority. In MDD, there are mining sites with environmental liabilities, but

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Legal but Environmentally Harmful Practices Involved in Gold… 573

they are not classified as such because they are not abandoned. Quote 2 refers to the rea-
sons why the agency does not act in MDD.
We have 22 cases in MDD, but we do not intervene directly. We do keep a National
Inventory of Environmental Liabilities, but the responsible entities are Mining Assets
and the National Environmental Fund. However, they should implement actions only
in abandoned areas, and the mining areas in MDD are still active. Also, they imple-
ment remediation actions only when liabilities are considered very high-priority, and
the 22 in MDD are not even categorized yet. (Representative of the General Directo-
rate of Environmental-Mining Affairs, pers. comm. 2017. Quote 2)
Evidently, this rigid interpretation of the word abandoned is used to justify the inaction,
which is also justified on the argument that those sites are not classified as very high prior-
ity. These administrative procedures create a compliance burden, but they do not contribute
to the goal of preventing environmental harms. The inaction occurs due to red tape, which
constrains the State’s capacity to adequately regulate the planning of post-closure environ-
mental impacts.
Lastly, mine closure plans should also include the repurpose of the site for other uses or
the restoration (reclamation) to its pre-mining use. It involves various activities for restor-
ing the ecological integrity of the disturbed area to an acceptable standard, such as remov-
ing hazardous materials, reshaping the land, planting native grasses or trees, or restoring
topsoil by managing soil nutrient cycles (Sheoran et al. 2010). Such activities are rare in
MDD.
The reclamation obligation has begun to be fulfilled by NGOs. Their actions are focused
on planting native tree species in degraded lands to recover the soil components. Since
mining concessions are private, these pilot actions highly depend on the miners’ will-
ingness to participate. However, it is problematic that the mayor of a mining district and
owner of a mining concession (in a double role as a representative of the local government
and mining sector) explained that they see NGOs involvement not as technical support for
improving ASGM but as an obligation of those organizations.
The local government is interested in supporting the work of the NGOs. We assigned
a public area, where they will install a nursery to give plants to concession owners
who want to implement recovery activities. But it is not mandatory for us to include
reclamation information in our environmental impact assessments. (District Mayor
and Mining Concession Owner, pers. comm. 2017. Quote 3).
As expressed in Quote 3, miners argue that they do not have to plan reclamation activi-
ties. The problem is that there is only one resolution (MR-121-2013-MINAM), a lower-
level document, that mentions this obligation. This results in flexible standards for rec-
lamation that give ASGM bosses better conditions via fewer environmental obligations.
This practice corresponds to regulatory capture due to the influence of the ASGM sector
to create more favorable laws or to obstruct the creation of stronger environmental regula-
tions. Such influence was discussed for the cases of digging, removal of gravel, and gold
smelting. An additional element is the existing conflict of interest generated by a political
representative who is also an active mining producer. This type of conflict of interest is
commonly observed in MDD.

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574 J. Espin

Secondary Environmental Harm

The legal status of EHPs becomes more blurred when secondary environmental harms are
considered because the Peruvian law does not include any reference to secondary impacts.
The legal EHPs included here are gold smelting without using retorts, inadequate disposal
of mine tailings, and inadequate disposal of solid waste in mining towns.
Gold smelting without using a retort generates secondary harms due to the spread of
mercury into the air. The vapor released by burning mercury is extremely harmful to the
environment and human health. The use of less-contaminating methods is encouraged
by 14 different laws, but the smelting of the mercury-gold amalgam by using a retort is
only mandatory in MDD. It means that there is not a national law forbidding gold smelt-
ing without a retort. Due to the high levels of mercury pollution found in MDD, the use
of retorts became mandatory in the region, but miners argue that the process of smelting
takes more time when a retort is used. It is not surprising then that this provision has not
been added to the national legal framework, although the national government attempted to
do so in 2009. This was highly contested by the mining sector and several politicians. The
congressman who presides over the Commission of Energy and Mines referred to the rela-
tion with the ASGM sector during that conflict:
What happened with decree SD-005 in 2009 was serious! The executive issued
that decree without considering that the Congress has worked on that for 2 years,
but with the miners, who saw that decree as a threat. It was honestly shocking that
the Ministry of Energy and Mines proposed that norm when they knew that the
Congress, with the miners, was already promoting the formalization process. For
that, there were strikes and revolts. (Congressman, pers. comm. 2017. Quote 4)
At what point could this close connection be considered as regulatory capture? It is
evident that the public interest was affected by high levels of mercury pollution, while
flexible rules favored only private interests by permitting a faster process of smelting.
This evidence is strengthened by also looking at the evolution of the law from rules with
environmental regulations to symbolic rules without a real applicability. For instance,
key environmental management tools created in 2012 were repealed or modified later.
This deregulation left valid only symbolic rules as those that declared the state of emer-
gency in eleven districts in MDD due to mercury pollution but did not mandate the use
of retorts for smelting or included actions for being implemented.
Another practice is the inadequate disposal of ASGM tailings. This is one of the big-
gest environmental concerns facing a mining site because it creates long-term environ-
mental liabilities (Hentschel et al. 2003; Mosquera et al. 2009). Tailings are composed
of large amounts of toxic silt, including chemicals as mercury and cyanide, that are
flushed into waterways. There are other methods, as thickened tailings in standing piles
or backfilling of pits, but the most common is the dumping of tailing slurry directly
into streams since that form is most convenient and cost-effective. Although this method
severely impacts water quality, it is only partially addressed in the legal framework.
The Ministry of Environment is responsible for collecting information about the kind
of mine tailings produced by ASGM and how such waste will be disposed, but the infor-
mation provided does not need to be specific, as mentioned in decree SD-012-2013-MI-
NAM. That vagueness in the law suggests the existence of an improper influence of the
mining sector, and thus another case of regulatory capture. The representative of the

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Legal but Environmentally Harmful Practices Involved in Gold… 575

largest mining association in MDD, the Mining Federation, referred to their influence in
the modification of laws.
We had a meeting with the National President here in MDD. He met with us, the
miners. For this, a congressman was assigned specifically to make a report about
the failure of the mining formalization process and to work with us to modify
those limiting decrees. (Representative of the Mining Federation, pers. comm.
2017. Quote 5).
Quote 5 refers again to the close relationship between the mining sector and the national
government. That closeness strongly suggests that such relationship has a causal effect on
the design or modification of laws. It seems reasonable to suggest that regulatory capture
explains the inadequate disposal of mine tailings insofar this practice is barely regulated in
the legal framework, despite its clear harm to the environment.
The last practice is the inadequate disposal of solid waste. Generally, solid wastes are
taken to a sanitary landfill but, in areas without modern landfills, all waste produced is
move to dumping grounds where there is no treatment of any kind (Collin, 2015). In MDD,
there are no landfills, and in small districts, the residue is dumped directly in dry sewers or
open waterways. Some initiatives to solve this problem are recent.
Huepetuhe is a large town. But, in 2015, all garbage was thrown into the riverside.
For this, we bought a garbage collector truck to pick up household waste on a regular
basis and take it far away from here, so we do not smell the trash. (Representative of
the Local Government, pers. comm. 2017. Quote 6)
Due to the garbage problem in La Pampa, this municipality was sued. But that is not
our responsibility! We organized two meetings there, to plan strategies for picking up
that garbage, but we need allies. The Regional Government, the Tambopata munici-
pality, IIRSA Sur, Odebrecht and the Ministry of Environment are responsible. We
want to solve this problem, but it is complicated because it will affect the mining
activities, and our population depends on that activity. (Representative of the Local
Government of Inambari, pers. comm. 2017. Quote 7)
Both quotes refer to the inadequate disposal of solid wastes, whether in the riverside or
in the side of the highway. However, an important element that emerges from these views
raises questions about local organizational capacity. In Huepetuhe, the collection of solid
waste started in 2015, despite this town was created in 2000. Meanwhile, in La Pampa,
nobody wants to assume this responsibility. This suggests the existence of organizational
issues in terms of weak capacities of local organizations to face multiple problems caused
by a rapidly growing, disorganized, and unplanned urban development. These cases illus-
trate the effects that legal gaps along with weak local capacities can have on the emergence
of secondary EHPs.
One additional insight from Quote 7 tells us how difficult it could be to regulate pow-
erful mining interests insofar as they generate economic revenue for local populations.
This description can be applied for understanding the challenges facing the regulations of
EHPs. This is very problematic because it raises questions about the capacities of local and
national governments to regulate the opening, operation, and even closing of an environ-
mentally harmful activity if it produces economic benefits for the local population.

13
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576 J. Espin

Discussion and Conclusions

Following a green criminological framing, the legal but EHPs examined in this study
reveal that just because a practice is not illegal, it does not necessarily make it benign.
Legal EHPs generate significant environmental harms but are not considering as crimes
because of loopholes or gaps in the law and in their implementation via regulations. This
section evaluates the extent that sociological institutionalist perspectives as regulatory cap-
ture and red tape can help to understand the occurrence of these legal but environmentally
harmful practices.
The results suggest that Regulatory Capture is the leading cause of legal EHPs because
this perspective explains 5 out of 9 EHPs, while Red Tape explains three practices, and
there is one different explanation related to organizational capacity. Regulatory Capture
accounts for digging, removal of gold-bearing gravel, smelting without using retorts, inad-
equate disposal of tailings, and lack of reclamation activities. Red Tape explains clearcut-
ting of forests, inadequate planning of environmental impacts and deficient planning of clo-
sure. Organizational capacity would explain better the inadequate disposal of solid waste.
It is worth to highlight the relationship between regulatory capture and environmental
deregulation. The results show that there are some EHPs that have never been included in
any law (e.g., digging), and others that were suppressed (e.g., the certificate of water use).
Regulatory capture explains both types but, of particular interest, are the results that con-
firm the trend toward a deregulation of environmental standards because this is promoted
as a positive action to simplify procedures and improve the law.
The process of simplification (a euphemism for deregulation) aims to achieve a more
efficient use of resources and to cut down red tape issues. However, the problem is that the
simplification of rules is focused on eliminating environmental regulations, which benefits
the interests of the powerful elites and affects the public interests by reducing environmen-
tal standards for an extractive activity. The recent emphasis in legal documents to aspects
such as control of tax evasion, hydrocarbons use, or asset seizure, rather than to environ-
mental issues, also shows that the legal framework is going through a deregulation phase.
These results support claims that economic elites influence decision-making processes, not
only due to their economic power but also based on strong social relations and connections
with political actors (Durand, 2016; Gunningham, 2009; Rodriguez-Goyes, 2018).
Regarding red tape, the cases about administrative delays, rigid interpretations of law,
and contradictory rules are consistent with claims in previous research about the negative
effects produced by red tape in the effective performance of rules. For instance, the multi-
ple decrees created to address the elaboration of environmental impact assessments show
how rule-inception and rule-evolved red tape can produce legal EHPs. Rule-inception is
more related to factors as the lack of understanding about the local context of MDD, while
rule-evolved is related to the accumulation of contradictory rules.
An additional finding that arises from this research is the effect of organizational issues
such as institutional instability and weakness of the regulatory agencies. The changes in
responsibilities from one agency to another may not only continue to undermine regula-
tions but also hinder the stability of those agencies. Further work needs to be done to con-
firm this institutional outcome.
Considering implications for future research, we find evidence about some features of
institutional corruption that could converge with regulatory capture and red tape. Regu-
latory capture and red tape shape EHPs via interpersonal connections, access to politi-
cal positions, or administrative delays, but institutional corruption could intervene, for

13
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Legal but Environmentally Harmful Practices Involved in Gold… 577

instance, by using bribes to get preferential treatment or avoid administrative delays. Insti-
tutional Corruption then may complement explanations, but further research is needed to
determine exactly how it would affect the other explanations.
Another perspective that merits further research refers to the role of culture, as the influ-
ence of powerful elites on mass media and public opinion. Public relations efforts driven
by regulatory capture could be deployed to gain public support for deregulation or at least
weakening of environmental regulations. Further inquiry is still needed to show that cul-
tural capture could constitute a deliberate effort of regulated social actors to shape public
opinion in favor of their own private interest (Carpenter and Moss, 2014; Sabel et al. 2017).
In sum, the findings presented in this paper indicate that the sociological institutional-
ist explanations explored here do help to account for the occurrence of lawful but awful
practices that end up favoring private interests while producing significant environmental
harms. In that sense, this research also adds to a growing body of literature on Green Crim-
inology by furthering the understanding of environmental harms produced by an extractive
activity in Latin America.
Acknowledgements Special thanks to Dr. Stephen Perz for his continued support. Some parts of this
research were supported by research grants from the Tropical Conservation and Development Program from
the University of Florida.

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