Environmental Law 2023 Comparisons

The Constitution of the Republic of Kazakhstan

The environmental policy and law in Kazakhstan is based on the Constitution, which specifies that the state shall aim to protect the environment in favour of human life and health (Article 31) and that every citizen is obliged to safeguard nature and protect natural resources (Article 38). Unlike many European jurisdictions, the Constitution of Kazakhstan does not contain any greater detail in terms of environmental protection or sustainable development ‒ although the preamble refers to “realising our high responsibility before the present and future generations”.

Key Environmental Laws

The main legal act for the protection of the environment in Kazakhstan is the Environmental Code of the Republic of Kazakhstan (the “Environmental Code”), which was adopted on 2 January 2021 and became effective on 1 July 2021. The Environmental Code consists of three parts:

• the General Part ‒ containing goals, principles, key definitions and other general provisions, as well provisions on the main regulatory tools (such as the environmental impact assessment, environmental permits, environmental damage, public monitoring and control, etc); 
• the Particular Part ‒ regulating specific subject matter, such as the protection of ambient air, land, forests, wildlife, climate, greenhouse gases, and waste; and
• the Special Part ‒ containing basic provisions on international co-operation and environmental liability, final and transitional provisions, as well as four annexes.

The Environmental Code is the cornerstone of environmental policy and law, but certain specific environmental regulations are also dispersed in other laws. By way of example, certain issues related to the use of natural resources (if not conflicting with the Environmental Code) are regulated by the Law on Specially Protected Natural Areas, the Water Code, the Land Code, the Forest Code, the Subsoil Use Code, the Law on the Protection of Wildlife and other laws. The administrative procedures in relation to environmental protection are also regulated by the Entrepreneurial (Business) Code and the Administrative Procedural and Process-Related Code.

Kazakhstan is also a party to and has ratified many international treaties in the environmental field, including:

• the Stockholm Convention on Persistent Organic Pollutants;
• the Basel Convention on the Control of Transboundary Transportation of Hazardous Wastes and their Disposal;
• the Rio Convention on Biological Diversity;
• the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters;
• the Montreal Protocol on Substances that Deplete the Ozone Layer; and
• the Paris Agreement.

Ratified international treaties take precedence over national laws.

Environmental Law Principles

The Kazakhstan environmental law is based on the following ten key principles (as listed and explained in more detail in Article 5 of the Environmental Code):

• the prevention principle;
• the remediation principle;
• the precautionary principle;
• the proportionality principle;
• the “polluter pays” principle;
• the sustainable development principle;
• the integration principle;
• the access to information principle;
• the public participation principle; and
• the principle of the ecosystem approach.

Environmental Policy

The country’s environmental goals, priorities and target indicators can be set in policy papers as approved by the President or the government from time to time. By way of example, the following strategic documents are in effect:

• the Concept of Transition of the Republic of Kazakhstan to the Green Economy (approved by the President in 2013);
• the Republic of Kazakhstan National Development Plan until 2025 (approved by the President in 2018);
• the National Project “Green Kazakhstan” (approved by the government in 2021); and
• the Strategy for Achieving Carbon Neutrality in the Republic of Kazakhstan by 2060 (approved by the President in 2023).

In Kazakhstan, environmental policy-making and regulatory competencies are mostly centralised at national level, while the enforcement competencies are divided between the central and municipal authorities. At the national level, the primary “policymaker” is the government of Kazakhstan; its powers include the development of the main directions of the state environmental policy and approval of certain principal regulatory legal acts in the field of environmental protection. Such environmental regulatory acts, however, are commonly drafted by the Ministry of Environment and Natural Resources of the Republic of Kazakhstan (MENR). Municipal executive authorities (akimats) also act as local enforcement agents in the respective territorial units ‒ for example, by issuing local environmental permits and regulating the municipal waste management.

The MENR is the central executive authority responsible for enforcing the state environmental policy and providing leadership and intersectoral co-ordination in the field of environmental protection, meteorological and hydrological monitoring. The MENR adopts a multi-pronged approach to co-operation, both on a national and international scale, particularly:

• national stakeholder collaboration;
• public engagement and participation;
• international co-operation;
• co-operation with international organisations;
• research and knowledge sharing; and
• engagement in regional initiatives.

Kazakhstan, given its vast geographical spread, hosts a diverse range of environmental assets. The protection of these environmental assets is paramount not just for environmental balance but also for the overall well-being of its inhabitants.

The primary legal instrument is the Environmental Code, which outlines the regulatory and legal framework for environmental protection and use of natural resources. It encompasses multiple aspects such as air protection, water conservation, waste management, flora and fauna conservation, and more.

Additionally, in Kazakhstan there is a network of protected areas, including nature reserves, national parks, and wildlife sanctuaries to conserve biodiversity, natural habitats, and landscapes. These areas restrict certain human activities that might be detrimental to the environment, including subsoil use activities.

The consequences of breaching the environmental protections depends on the act committed – although Kazakh legislation more often provides for liability in the form of a fixed fine for acts committed against the environment. However, Kazakh legislation also provides for criminal liability for violation of environmental safety. Today, there is a growing trend in the development of Kazakhstan’s legislation towards an increase in fines and the amount of punishment for violation of natural conditions in Kazakhstan.

The MENR has a subordinate entity, the Committee for Environmental Regulation and Control (CERC), which is the key enforcement body that issues environmental permits and monitors and supervises environmental compliance. The CERC has departments in all regions of Kazakhstan. The CERC’s specific investigative and access powers depend on the type of environmental incident or offence.

The Environmental Code does not specifically regulate the investigative powers of the regulatory authorities with regard to environmental incidents when the assumed infringer is unknown. However,  in practice, the CERC would respond to such incidents and its officers would visit the public place where the environmental incident occurred to collect evidence (instrumental measurements, laboratory samples, photo and video materials, witnesses’ interviews, etc). Such investigations would be initiated when the CERC reveals environmental incidents it has uncovered on its own or from publications in the mass media or on social networks, from a written or electronic complaint from individuals or legal entities, or when instructed by the prosecutor’s office.

Investigative powers in respect of a specific person as well as access powers either in case of environmental incidents or breaches of law/environmental permit are strictly regulated under the Entrepreneurial (Business) Code, which applies to any type of state supervision of business ‒ although certain specific provisions may be found in the sectoral statutes (eg, in the Environmental Code with regard to environmental compliance, or in the Tax Code with regard to tax obligations). There are three types of state supervision that the CERC can use to investigate a specific person.

• Preventive control without accessing the site – conducted by analysing data obtained from the mass media, social networks, the automated system for monitoring emissions, documentation and reporting submitted to the CERC/the MENR. This type of supervision does not require registration with the prosecutor’s office or the sending of a notice to the concerned person. No liability can be imposed on the concerned person even if the CERC reveals breaches. The CERC shall issue an information notice specifying the revealed breaches of law/environmental permits (if any) and the concerned person shall propose its plan as to how and when such breaches shall be eliminated.
• Preventive control with site access – includes the right to visit the site and premises. This form of supervision is conducted according to the risk assessment system (target persons are divided into four levels of risk) and based on the schedule approved by the prosecutor’s office. The CERC shall issue an administrative order prescribing that the person concerned must eliminate the revealed breaches and giving the deadlines for doing so. As a general rule, the CERC would not be allowed to impose fines or other administrative sanctions in this case (the only exception are I category objects, ie, the major polluting facilities).
• Unscheduled inspection – conducted in a limited number of cases, including based on complaints received from individuals or legal entities or when instructed by the prosecutor’s office. As a general rule, unscheduled inspections must be preliminarily registered with the prosecutor’s office.

There are special instances when the CERC would be allowed to conduct a “surprise” inspection or preventive control with site access with post factum registration with the prosecutor’s office.

Access powers include the right to:

• interrogate experts and specialists;
• demand the provision of documents relevant to the case;
• demand audits and checks;
• collect material evidence;
• use audio and video recordings;
• make measurements;
• take samples; and
• other procedural actions.

Legal entities shall be required to obtain an environmental permit if their activities fall under Section 1 or 2 of Annex II to the Environmental Code (“Annex II”). Annex II contains the lists of activities and quantitative criteria, according to which a facility is allocated to Category I, II or III (ie, facilities that have either a significant, or moderate, or insignificant negative impact on the environment, respectively). An environmental permit must be obtained for the construction and/or operation of Category I or II facilities. Category III facilities can be built and operated based on a notification sent to the relevant permitting authority (“Declaration”).

There are two types of environmental permits: an integrated environmental permit and an environmental impact permit. The environmental permits for Category I facilities are issued by the CERC or its territorial departments (for Category II – by local executive authorities) in electronic form through the e-government web portal (the “Portal”). To obtain a permit, a person must submit an application to the permitting authority with supporting documents such as project documentation for the construction and/or operation of facilities, draft emission limits, a draft waste management programme, a draft programme of industrial environmental control and other documents. As part of issuing an environmental permit, the permitting authority conducts a state environmental expert review of the project documentation for the construction and/or operation of the concerned facility. The general public can express their opinions and comment on the proposed application and the project documentation in the process of the state environmental expert review.

Integrated Environmental Permit

As a rule, an integrated environmental permit must be obtained for facilities that have a significant negative impact on the environment to ensure integrated pollution prevention using the best available techniques (Category I). Operators of Category II facilities are also allowed to apply for an integrated environmental permit if there are approved Best Available Techniques Conclusions applicable to the relevant facility.

An application with documents is also sent to other concerned state bodies for their comments and proposals regarding the necessary environmental conditions. Such interested bodies may include the Committee for Sanitary and Epidemiological Control of the Ministry of Health of the Republic of Kazakhstan, the local executive body of the region on whose territory the facility is located, the line ministry/department, and other state bodies.

The integrated environmental permit is issued by the CERC or its relevant territorial department. The issuance of a permit is free of charge and takes no more than 55 business days.

Environmental Impact Permit

An environmental impact permit must be obtained for facilities that have a moderate negative impact on the environment (Category II). Category I facilities that existed when the Environmental Code became effective (1 July 2021) are also allowed to obtain an environmental impact permit, instead of the integrated environmental permit.

An environmental impact permit is issued by local executive authority (for Category II) or by the CERC (for Category I), based on an application with supporting documents attached. The issuance of a permit is free of charge and takes no more than 30 business days. The conditions of an environmental impact permit are less extensive compared with an integrated environmental permit.

The system of legislation is based on human rights and freedoms, as well as the protection of the environment. Among other things, the basic principles of environmental legislation and the approach to its enforcement are as follows.

• Prevention ‒ any activity that causes or may cause environmental pollution or degradation of the natural environment that results in environmental damage and harm to human life and/or health is only allowed within the framework established by Environmental Code if all necessary measures are provided at the source of environmental impact to prevent the occurrence of these consequences;
• Correction ‒ environmental damage must be eliminated in full. If it is impossible to completely eliminate the environmental damage caused, its consequences should be minimised as far as possible at the current level of scientific and technological development. To the extent that the consequences of the environmental damage caused have not been eliminated or minimised, their replacement is ensured by alternative remediation in accordance with the Environmental Code.
• Precautionary ‒ if there is a risk of environmental damage due to any activity that has significant and irreversible consequences for the natural environment and/or its individual components, or there is a risk of harm to human life and/or health, then effective and proportionate measures should be taken to prevent the occurrence of such consequences at economically acceptable costs, despite the current lack of scientific and technical knowledge or the ability to accurately assess the probability of the occurrence of these negative consequences.
• Proportionality ‒ environmental protection measures are provided to the extent that they are sufficient to implement the goals and objectives of the environmental legislation of Kazakhstan. As such, preference is given to the option that is the least burdensome.
• “Polluter pays” ‒ a person whose activity causes or may cause environmental pollution or degradation of the natural environment, resulting in environmental damage in any form or harm to human life and/or health, bears all costs for fulfilling the requirements established by the environmental legislation of Kazakhstan for the prevention and control of negative consequences of their activities, including the elimination of environmental damage caused (in accordance with the principle of correction).
• Sustainable development ‒ nature and its resources constitute the wealth of Kazakhstan, and their use should be sustainable. The State ensures balanced and rational management of natural resources in the interests of present and future generations. When making decisions on environmental protection, priority is given to preserving natural environmental systems and ensuring their sustainable functioning, water conservation, energy conservation and energy efficiency, reducing consumption of non-renewable energy and raw materials, using renewable energy sources, minimising waste generation, as well as the use of such natural environmental systems as secondary resources.
• Integration ‒ the state policy of Kazakhstan in all spheres of economic and social activity is formed and implemented subject to a balance between the objectives of socio-economic development and the need to ensure the environmental foundations of sustainable development of Kazakhstan, including a high level of environmental protection and improvement of environmental quality.
• Accessibility of environmental information ‒ the State, based on international treaties signed by Kazakhstan, ensures compliance with the right of the public to access environmental information on the grounds, conditions and within the limits established by law.
• Public participation ‒ the public has the right to participate in decision-making involving issues of environmental protection and sustainable development in Kazakhstan, on the terms of and in accordance with the procedure established by the Environmental Code. Public participation in decision-making concerning these issues is enabled at an early stage, when various options are open to consideration and when effective public participation can be ensured. State bodies and officials ensure the publication of decisions planned for adoption that may have an impact on the environment, on the condition that the public are allowed to express their opinion, which is taken into account when making these decisions.
• The ecosystem approach ‒ when planning and making decisions by state bodies and officials, which may lead to negative consequences for the environment, the integrity and natural inter-relationships of natural environmental systems, living organisms, natural landscapes, other natural, natural-anthropogenic and anthropogenic objects, and the need for conservation should be taken into account, along with the natural balance of the natural environment. At the same time, priority should be given to the preservation of natural landscapes, natural complexes and biodiversity, as well as the preservation and sustainable functioning of natural environmental systems, and the prevention of negative impacts on the services provided by such environmental systems.

The transfer of an environmental permit can be carried out in the event of a change of the operator of an object that has a negative impact on the environment, as well as in the case of reorganisation of the legal entity of the operator of the object. The new operator is obliged to submit an application to the MENR for the renewal of an environmental permit within 10 business days.

Violation of the terms of environmental permits may lead to administrative liability, as provided by the Code on Administrative Violations. The violator may also bear criminal liability, depending on the reason for the violation of the permit conditions ‒ although criminal liability is rarely involved in practice.

Administrative Liability

The Code on Administrative Violations contains several types of environmental administrative liabilities:

• fixed fines;
• fines based on the amount of the pollutant;
• suspension or prohibition of activities; and
• revocation of permit or suspension of its validity.

Fines

The Code on Administrative Violations defines the fines for violation of environmental laws. In certain cases, fines are fixed and set based on the monthly calculation index (MCI) (1 MCI equals to USD7.5). In others, the fine is calculated as a percentage of the applicable rate for environmental damage due to excess pollutants or a percentage of the economic gains resulting from the violation, among other methods.

Revocation and suspension of activities

In specific situations, violating environmental rules can lead to the suspension or revocation of an environmental permit or can potentially halt the operations of the involved company. Typically, these consequences apply when there are multiple violations within a year.

Criminal Liability

For more on criminal liability, please refer to 5.1. Key Types of Liability.

Causing environmental damage or committing a violation of environmental legislation may entail civil, administrative and/or criminal liability, depending on the circumstances.

Civil Liability

In the environmental sphere, civil liability arises in connection with civil claims, which can be divided into three categories:

• a claim submitted by the MENR for remediation of environmental damage (either to make the infringer remediate the environmental damage at their own cost or to compensate the cost of remediation performed by the State);
• a claim submitted by individuals to compensate for death or personal injuries caused by environmental damage or other violation of environmental legislation; and
• a claim submitted by individuals or legal entities to compensate for property damage caused by environmental damage or other violation of environmental legislation.

Persons subject to administrative or criminal liability are not exempt from civil liability and the obligation to eliminate the breach.

Administrative Liability

Administrative liability mainly entails warnings, fines, the recall of environmental permits, or suspension of activities. The Code on Administrative Violations prescribes administrative liability for a number of violations in the environmental field, including operation of a facility without an environmental permit, exceeding the emissions limits, unauthorised waste dumping, failure to remediate environmental damage and other violations. Both individuals and legal entities can be subject to administrative liability.

Criminal Liability

The Criminal Code specifies a number of criminal acts that involve a violation of environmental requirements and are associated with certain gross consequences (death, personal injuries, mass disease, environmental catastrophe, mass wildlife kill, other environmental damage and so on). Criminal liability may entail the imposition of a fine, community service, imprisonment, restraint, or deprivation of the right to hold certain positions or engage in certain activities. Only individuals can be held criminally liable in Kazakhstan.

Kazakhstan’s environmental legislation is based on the principle of transparency of the entire environmental sphere. The public has the right to make certain decisions concerning objects that have a negative impact on the environment.

The Environmental Code contains the obligation that the draft report on possible impacts is submitted to public hearings. The draft report on possible impacts should be available for review on the official website of territorial local executive bodies for at least 30 calendar days following the date of publication.

Public hearings are accessible to any person, regardless of their place of residence. During public hearings, any person participating in them has the right to voice their comments and suggestions on the draft report on possible impacts.

Concealment of the facts of environmental impact is something of a rarity in environmental practice in Kazakhstan. As a rule, all environmental proceedings related to violations of environmental protection requirements are accompanied by full disclosure of the facts, in compliance with the procedure for resolving legal disputes.

The Environmental Code specifically regulates cases of historical environmental pollution or damage. The civil liability for remediation of environmental damage shall be borne by the infringer or its legal successor(s). If the infringer or its legal successors cannot be identified or have ceased to exist, the civil liability will be shifted to the person who was the landowner at the moment the wrongdoing was or had stopped being committed. The current landowner can bear civil liability if the MENR can prove in court that, at the time of acquiring the rights to the specified land plot, such landowner was aware of the presence of environmental damage caused by actions or activities previously carried out on this land plot. Criminal and administrative liability cannot be shifted to other persons.

The submission of the following reports in the environmental field is obliged where necessary to obtain an environmental permit:

• report on the environmental action plan;
• report on the results of industrial environmental control;
• waste inventory report;
• report on the protection of atmospheric air; and
• report on the costs of environmental protection.

Types of liability applicable to environmental incidents or damage are described in 5.1 Key Types of Liability. The defences, limits and conditions to such liability may include the following.

Statutes of limitation apply as follows:

• civil liability (remediation of environmental damage) – 30 years;
• civil liability (death, personal injury, property damage) – three years;
• administrative liability – one year for individuals, three years for legal entities; and
• criminal liability – depends on the gravity of offence.

In civil, administrative and criminal cases, the main defence would be proving that: 

• the act or failure to act was not unlawful; 
• there is no harm; or 
• there is no cause‒effect relation between the act (or omission) and the harm.

In civil cases, the main defence would be: 

• proving that the liability must be shared with third parties; 
• proving that the environmental incident or damage was due to an unlawful act (or omission) by a public authority; and
• proving the contributory guilt or negligence in cases of death, personal injury, property damage.

In terms of administrative and criminal liability, the following applies:

• a person cannot be subject to administrative or criminal liability if they prove that the offence was committed in the circumstances of extreme necessity; and
• a person can be released from administrative liability if they prove that the offence was “insignificant”.

Please refer to 5.1 Key Types of Liability. The legislation does not provide for special rules for bringing legal entities to liability, except that legal entities cannot be subject to criminal liability.

The fee for the negative impact on the environment is charged for emissions and discharges of pollutants (emissions into the environment), the placement of sulfur in open form on sulfur maps, and waste disposal carried out on the basis of an appropriate environmental permit and environmental impact declaration. The payers of the fee are operators of objects belonging to the I, II and III categories provided in Annex II of the Environmental Code.

Under the Environmental Code, emission taxes are calculated using the base levies for various emissions (including those from flaring) provided in the Tax Code, which was adopted on 27 December 2017. Basic tax rates for emissions are determined per ton and range from 0.01 MCI (approximately USD0.075) to 13,402 MCI (approximately USD100.515), depending on the type of pollutant. The local governing bodies (Maslikhats) have the authority to increase the tax rates by up to 200% of the base rate, except for in the case of emissions from flares.

From 1 January 2025, the tax rates for all types of negative impact will double. Increasing coefficients will begin to be applied to tax rates for all types of negative pollutant, except where payments are for emissions of pollutants into the air from mobile sources.

Moreover, on 1 April 2022, the government of Kazakhstan approved a list of 50 Category I objects (“List of 50”) ‒ the largest in terms of total pollutant emissions as of 1 January 2021. Objects included in the List of 50 will be required to apply an appropriate increasing factor when calculating the amount of payment, which will increase by two times every three years until 1 January 2034. For businesses that have been granted Integrated Environmental Permits as per the Environmental Code, there are no charges for the negative impact.

The Tax Code also contains taxes for the use of water resources, for the use of wildlife, for forest use, and for the use of specially protected natural areas.

There are no such mechanisms in Kazakhstan. Any polluter pays.

Civil Liability

Under Kazakhstan law, as a general rule, the shareholder or parent company is not liable for environmental damage or breaches of environmental law committed by the legal entity they own or control. The exemptions to this rule are where: 

• the owned/controlled legal entity is a full partnership, an additional liability partnership or a kommandit partnership (although these organisational forms are almost never used in Kazakhstan);
• the shareholder/parent company of a legal entity organised as a limited liability partnership has not contributed to the charter capital in full (in which case, they will be jointly liable within the value of the share they have failed to contribute);
• the subsidiary company became bankrupt owing to a fault on the part of the parent company (in which case, the parent company may be held liable); 
• a founder or a shareholder were found guilty of deliberately bankrupting the company they own/control; and
• the shareholder or the parent company provided a corporate or personal guarantee towards the subsidiary company’s debts and obligations.

Administrative and Criminal Liability

Criminal and administrative liability cannot be shifted to other persons, including the shareholder or the parent company.

ESG requirements in Kazakhstan differ from their representation in other regions. Kazakhstan’s legislative framework addresses ESG requirements through separate channels for environmental aspects, social aspects and governmental aspects, thereby lacking a unified structure to consolidate them.

Specifically, the Environmental Code and associated regulations set out requirements concerning environmental protection, including standards for emissions, waste management, water usage, and biodiversity protection. Companies, especially those in sectors with significant environmental footprints (eg, mining and energy), must comply with these regulations.

Labour and employment laws in Kazakhstan address several social issues, such as workers’ rights, safety standards, and non-discrimination. Additionally, there are laws and programmes aimed at promoting social welfare, health, and community development.

Governance in the ESG context typically refers to the system of rules, practices and processes by which a company is directed and controlled. Kazakhstan’s corporate law outlines basic governance structures for businesses operating in the country. These include rules about shareholder meetings, board compositions, audit requirements, and disclosure norms.

Legislation does not provide for mechanisms for mandatory environmental audits for companies. However, a technical audit is possible if the best available techniques are implemented. Moreover, an audit can be understood as an environmental impact assessment – ie, a permit document, which refers to the process of identifying, studying, describing and evaluating possible significant environmental impacts during the implementation of the planned activities based on relevant studies.

Directors and other officers can personally be jointly and/or severally liable for environmental damage or breaches of environmental law committed by the company if:

• such a violation is caused by their actions and/or inaction, as well as being a result of the provision of information that is misleading or known to be false;
• there has been a violation of the procedure for providing information;
• the company incurred losses on a transaction concluded as a result of dishonest actions and/or inaction of an official; or
• the violation is caused by improper management of officials, leading to bankruptcy.

Officials can voluntarily insure against liability for violations of environmental legislation by the company and associated penalties. However, this type of insurance is not common in Kazakhstan.

Environmental insurance is a type of economic regulation of environmental protection. The order of the Minister of Environment approved the list of environmentally hazardous activities, which provides for the mandatory availability of environmental insurance.

This list includes activities related to:

• use of land and subsoil;
• use of water resources;
• implementation of oil operations;
• metallurgical production;
• use of nuclear and thermal energy;
• impact on atmospheric air, climate, and the ozone layer; and
• handling of hazardous waste.

The Kazakhstan legislation does not provide for financial institutions’/lender liability for environmental damage or breaches of environmental law committed by their debtor.

Lenders do not face legal risks arising from violations of environmental legislation by the debtor.

Types of civil claims in the case of environmental incidents or damage are described in 5.1 Key Types of Liability.

To file a civil claim for environmental remediation, the CERC must prove all of the following conditions:

• the existence of a violation and the possibility of identifying a specific person(s) whose actions caused the violation;
• clearly determined and measurable damage; and
• a causal link between the violation and the occurrence of damage.

The Civil Code provides for the option of filing a civil lawsuit to suspend or terminate the activities of persons that cause or threaten to cause damage to the environment or human life and health.

Civil law in Kazakhstan does not provide for exemplary or punitive damages in civil cases. The defendant is liable only for the damage they cause. The punitive function is implemented through administrative sanctions. However, it is worth noting that the court may obligate the defendant to compensate the plaintiff for lost profits – that is, lost income that the plaintiff would have received under normal conditions of turnover if the defendant had not violated their rights – as well as legal and other associated fees of the claimant, in addition to direct losses.

In the case of claims to suspend activities that have a harmful effect on the environment, the court may additionally obligate the defendant to take actions aimed at eliminating the source of harmful influence – for example, repair, reconstruction, installation of new treatment facilities, the introduction of new production technologies, and change in environmental management conditions.

The law allows group action for environmental-related civil claims, but only provides for the possibility of class actions in environmental disputes where all the claimants are personally identified. Environmental NGOs have the right to submit claims to protect the rights and interests of the public at large, although this excludes any compensation for personal harm or environmental damage.

The most high-profile case of compensation for environmental damage was that of North Caspian Operating Company. The MENR claimed for approximately USD5.1 billion against the giant Kashagan oil venture for keeping more than double the amount of sulfur permitted on the site. This was the largest amount of environmental protection fines claimed by the State.

One recent significant case was that of state enterprise Atyrau Su Arnasy. On the Ural River, large numbers of fish were dying owing to the discharge of water with a high chlorine content. The directors of the enterprise were found guilty in this case. In addition to criminal liability, the company was obligated to recover damages in favour of third parties. It is rare to encounter environmental disputes that involve both criminal and civil liability in practice.

In Kazakhstan, litigation involving persons who refuse to provide information to interested parties is uncommon, so the case relating to the obtention of environmental information about the return of illegally issued nature protection plots in Almaty is also noteworthy. Representatives of the local authority refused to issue documents regarding environmental information, referring to the fact that the documents affect the interests of citizens. However, the court forced the local authority to issue the environmental information, referring to the Aarhus Convention. It is also significant that the claimant was the Green Salvation Ecological Society, which is a non-profit environmental society that does not often participate in lawsuits in Kazakhstan. This is an excellent precedent for other state bodies.

The private parties may use contractual agreements to apportion liability for incidental damage or breaches of law, although only between them and by way of recourse. Such contractual arrangements do not have any binding effect or influence on the regulator. It should be also considered that Kazakhstan law does not provide for the concept of indemnities or warranties, as in many common-law countries.

Kazakhstan legislation provides for mandatory and voluntary environmental insurance. Mandatory environmental insurance is regulated by the Law on Mandatory Environmental Insurance. Individuals and/or legal entities engaged in “environmentally hazardous activities” (as per the list approved by the MENR) must have an environmental insurance coverage against civil liability to remediate environmental damage caused by an accident. Insured events under a voluntary environmental insurance contract are determined by the parties independently. In practice, voluntary insurance covers third parties’ property claims.

Contaminated land is regulated by the Environmental Code and the Land Code. Land pollution, which creates a significant risk of harm to public health, is considered an environmental damage. Causing the destruction of soils is also recognised as a form of causing environmental damage to land, along with other actions that lead to the degradation or depletion of soils.

Remediation and the “polluter pays” principle require that a person who caused environmental damage to land is obliged to fully and at their own expense remediate the components of the natural environment that suffered environmental damage. According to the Environmental Code, the person responsible must carry out direct remediation of the damage caused to the land by restoring the land to its basic condition or instead carry out alternative remediation by protecting and improving the land. In addition to direct and/or alternative remediation, the guilty person is also obliged to take additional compensatory measures to improve the territory of the land that has suffered environmental damage.

The person responsible is required to discuss and approve the remediation programme with the MENR. Following the completion of the remediation programme by the achievement of the goals set, the person responsible must perform periodic monitoring of the state of the restored land. If the results of such monitoring reveal that the targets of the remediation programme have not been fully achieved, an additional remediation programme shall be required.

As described in 13.2 Clearing Contaminated Land, the person who caused the contamination is responsible for environmental damage. In cases where more than one party contributed to the contamination, each party responsible for the contamination is jointly and severally liable.

Civil Liability

Please refer to 11.1 Civil Claims.

Administrative Liability

Please refer to 4.1 Investigative and Access Powers. The Code on Administrative Violations provides that the CERC and its territorial departments have the authority to consider cases of administrative offences.

The following officials (generally, CERC employees) are authorised to review administrative violations and impose administrative fines:

• state environmental inspectors;
• lead state environmental inspectors;
• head state environmental inspectors of regions, significant cities, and the capital; and
• head state environmental inspectors of the Republic of Kazakhstan (and their deputies).

The Environmental Code defines an “operator of an object” as an individual or legal entity that owns or utilises an object that has a negative impact on the environment. Traditionally, operators have an obligation to obtain an environmental permit and to comply with industrial environmental control and with the waste management programme, etc. Those with an environmental permit are allowed to release emissions within the boundaries of the permit.

Administrative fines (up to the suspension of the operator’s activities) are provided for the violation of operators’ obligations. The harm caused by an unauthorised discharge of a specific contaminant (or kind of waste) is determined based on the amount of the pollutant released beyond the allowed limit and the corresponding fee rate for that pollutant.

As described in 4.1 Investigative and Access Powers, the investigation of environmental accidents is regulated under the Entrepreneurial (Business) Code.

Preventative Control With Side Access

The CERC must notify the subject (eg, head of a legal entity or their representative) in writing about an upcoming inspection at least 30 days in advance.

Inspection durations are set based on workload and assigned tasks. Micro-businesses are inspected for up to five business days, with a possible five-day extension. For other businesses, inspections can last up to 15 business days, with a possible 15-day extension.

During inspections, the CERC typically conducts sample analysis, measures emissions, and monitors adherence to operational guidelines and industrial environmental control. Based on the results of the inspection, the CERC issues a report on the results of preventive control with side access and – where violations are identified – issues  an administrative order.

Unscheduled Inspection

The CERC must notify the subject in writing about the unscheduled inspection at least one day before its start, indicating the subject of the inspection. Unscheduled inspections are undertaken for up to ten business days, with a possible ten-day extension. The inspection method and results are consistent with the inspection conducted under preventative control with side access.

General provisions regarding climate change are contained in the Environmental Code. Additionally, in response to the tangible threats of climate change, the government is working on the adoption of the Strategy for Achieving Hydrocarbon Neutrality in the Republic of Kazakhstan by 2060.

Kazakhstan has also ratified the following international treaties in the field of climate change:

• the Paris Climate Agreement;
• the Convention on Long-Range Transboundary Air Pollution;
• the Vienna Convention for the Protection of the Ozone Layer; and
• the Kyoto Protocol to the United Nations Framework Convention on Climate Change.

One of the main tasks of Kazakhstan’s environmental legislation is ensuring the contribution of Kazakhstan to strengthening the global response to the threat of climate change, through the implementation of international, regional and transboundary programmes for environmental protection, the adaptation to climate change and transition to a “green” economy, as well as the protection of the ozone layer of the Earth’s atmosphere. In accordance with the Environmental Code, the sectors of agriculture, water and forestry – as well as the area of civil protection – are priorities for the adaptation to climate change.

At the same time, adaptation to climate change is based on the following principles:

• the obligation to consider the impacts of climate change in medium- and long-term development plans;
• the phased implementation of the process of adaptation to climate change;
• the intersectoral approach of local executive bodies to adaptation to climate change; and
• the existence of a link between the measures taken to adapt to climate change and the reduction of the adverse impacts of climate change.

The State also takes measures to ensure public access to environmental information on climate change, trains specialists in the field of adaptation to climate change and conducts environmental scientific research.

By 31 December 2030, Kazakhstan aims to reduce its carbon balance by at least 15% from the 1990 level. As described in 14.1 Key Policies, Principles and Laws, Kazakhstan is also committed to achieving hydrocarbon neutrality by 2060. According to the draft strategy, target indicators for emissions and absorption of greenhouse gases by types of emissions have been set.

In addition, in order to reduce greenhouse gas emissions, the Environmental Code establishes carbon quotas for carbon dioxide emissions. In simple terms, hydrocarbon quotas mean the volume of free carbon units distributed by the MENR based on the benchmarking methodology. Installations in the sectors of electricity, oil and gas, mining, metallurgical and chemical industries, as well as manufacturing industries in terms of the production of cement, lime, gypsum and bricks are subject to carbon quotas if they emit more than 20,000 tons of carbon dioxide per year.

Despite the fact that Kazakhstan has one of the largest asbestos deposits in the world, there is no separate legislative act in the country that regulates the extraction and use of asbestos. Separate provisions regarding asbestos are contained in the Environmental Code.

The Environmental Code stipulates that the production of asbestos or asbestos-based products is an activity that has a significant negative impact on the environment. Asbestos mining requires an environmental impact assessment, and asbestos manufacturing or asbestos manufacturing facilities require an activity screening procedure. Kazakhstan has also ratified the International Labour Organization Asbestos Convention of 1986. In addition to this convention, the Sanitary Rules for Working with Asbestos No 1.07.085-97 and Methodological Recommendations for the Implementation of State Sanitary Supervision at Enterprises Producing and Using Asbestos No 10.7.065/P-94 were adopted.

The Environmental Code contains an entire section on waste management, including hazardous waste, mining waste, municipal waste, and radioactive waste. Separate aspects of waste management are addressed in the Subsoil Code (in terms of waste during subsoil use operations) and in the Water Code (regarding the protection of water objects from clogging).

The owner or shipper of waste is obliged to ensure the safe disposal of waste by third parties in a manner that does not pose a risk of environmental damage or a risk of harm to human life and/or health and, in particular, is without:

• risk for waters (including underground), atmospheric air, soils, flora and fauna; and
• negative impacts on landscapes and specially protected natural areas.

The owner or the shipper of waste retains liability for waste until it has been transferred to a third party carrying out waste recovery or disposal operations with an appropriate licence issued by the MENR. This rule does not extend to household waste.

Individuals and legal entities engaged in production in Kazakhstan and/or importation into Kazakhstan of certain types of goods are obliged to ensure the collection, transportation, preparation for reuse, sorting, processing, processing, neutralisation and/or disposal of waste generated following the loss of consumer properties of such goods. Legally, such goods are referred to as “goods subject to extended producer obligations”.

The list of goods subject to extended obligations of manufacturers is established by order of the authorised body and includes land transport vehicles (apart railway or tram rolling stock), rubber (and products made from it), electric accumulators, oil and oil products (except crude oil) obtained from bituminous rocks, antifreezes and other chemical products, polymer, glass, paper, cardboard, metal packaging, large electrical and electronic equipment and other goods.

The extended producer obligations are fulfilled either by creating their own waste collection and management system (although this option is not available for motor transport). The entire extended producer responsibility system in Kazakhstan is currently under extensive review.

The following persons are required to notify the MENR on their own:

• the person who caused environmental damage is obliged to notify about the potential fact of causing environmental damage, along with a preliminary assessment of its nature and scale; and
• the operator of the waste storage facility is obliged to notify about the occurrence of a major environmental incident.

The public has the right to request environmental information from any state body and other (public or private) owners of environmental information at any time without providing any justification. The public may be denied environmental information only in cases strictly defined by law – for example, if this entails a violation of IP rights or the confidentiality of primary statistical data.

The owners of environmental information in the public sector are:

• bodies and institutions of the legislative, executive and judicial branches of government;
• local government and self-government (eg, courts, local executive bodies, and the MENR);
• government institutions that are not government bodies and whose activities or services are related to the environment (eg, the Information and Analytical Centre for Environmental Protection); and
• entities of the quasi-public sector whose activities or services are related to the environment (eg, Zhasyl Damu JSC).

Kazakhstan ratified the Kyiv Protocol on Pollutant Release and Transfer Registers, which requires certain corporations to publicly disclose information on their emissions and waste on an annual basis.

Kazakhstan has been working with international organisations, including the United Nations Development Programme (UNDP) and the European Bank for Reconstruction and Development (EBRD), to develop green finance initiatives and access expertise and funding. Kazakhstan is also focused on aligning its financial sector with the United Nations Sustainable Development Goals. This includes promoting investments that contribute to these goals, such as reducing poverty, protecting the environment, and supporting clean energy.

The Environmental Code includes a taxonomy of green projects, as well as providing a legislative definition of green financing and for specific instruments. Green bonds and green loans are used in Kazakhstan. Currently, some green bonds (including ESG bonds) are listed at Astana International Exchange and Kazakhstan Stock Exchange.

The government of Kazakhstan approves the classification (taxonomy) of green projects, as well as the rules for the recognition of technologies as green technologies.

Environmental due diligence is a common practice in M&A, finance and property transactions in Kazakhstan. Often, such due diligence is carried out in relation to the conclusions of environmental expertise, compliance with the conditions of environmental permits, analysis of waste management programmes, verification of environmental insurance and so on. In rare cases, the environmental due diligence includes site visits.

In Kazakhstan, the principle applies that a person who has environmental information is obliged to provide it at the request of the interested person, except in cases where the provision of information should be refused (eg, if it may violate IP rights). Therefore, a company seller may potentially be required to disclose any environmental information it has about the company to a purchaser.

As described at 1.1 Key Environmental Protection Policies, Principles and Laws, Kazakhstan has adopted the concept of the transition to a green economy. Within the framework of this concept, various measures of state support for the transition to a green economy are provided. However, the legislation does not provide for any “green” taxes. The main tax payments in the environmental sphere are:

• payment for the use of surface water resources;
• payment for the negative impact on the environment (eg, emissions into air and water, waste disposal);
• payment for forest use; and
• payment for the use of specially protected natural areas.

Environmental disputes can be settled through administrative, civil, and criminal courts. However, it is rare to see environmental issues leading to criminal charges.

Generally, the judicial system of Kazakhstan is structured into three levels:

• Supreme Court (highest court, cassation instance);
• local regional courts and courts with equivalent regional court status (appellate instance); and
• local city and district courts (courts of first instance, with some exceptions).

Civil Courts

Please refer to 11 Civil Liability. Civil environmental cases are considered in local city and district courts in first instance. The review of a case in civil courts typically lasts between two and 12 months on average.

Although traditionally not as common for environmental matters, ADR methods such as mediation and participatory procedures are available at civil courts.

Administrative Courts

The majority of cases of environmental dispute resolution are heard in administrative courts. Typically, administrative fines imposed by the CERC and other government bodies are appealed in specialised inter-district administrative courts.

In practice, individuals and legal entities can challenge the actions of the CERC inspectors, whether on the grounds of procedural oversights or disagreements about the fines imposed or their values. Nonetheless, a significant number of decisions typically lean in favour of governmental bodies.

Since the enactment of the Environmental Code on 1 July 2021, government bodies and businesses have been actively engaged in adapting to the regulations outlined within it. Occasionally, disagreements may arise, leading to potential revisions. These revisions primarily aim to clarify any ambiguities present within the Environmental Code.