Jul 12 2011

Ecuadorian Court Recognizes Constitutional Right to Nature

Published by at 3:32 pm under Environmental Policy

[By Professor Erin Daly, H. Albert Young Fellow in Constitutional Law]
Download the opinion in PDF (6 separate pages):

A provincial court in Ecuador became the first court ever to interpret – and vindicate – the newly constitutionalized right of Nature. The Ecuadorian Constitution was amended in 2010 to recognize that Nature has enforceable rights. In four extensive paragraphs, the Constitution spells out that “Nature, or Pacha Mama, where life is reproduced and created, has the right to integral respect for her existence, her maintenance, and for the regeneration of her vital cycles, structure, functions, and evolutionary processes.” (Art. 71: “La naturaleza o Pacha Mama, donde se reproduce y realiza la vida, tiene derecho a que se respete integralmente su existencia y el mantenimiento y regeneración de sus ciclos vitales, estructura, funciones y procesos evolutivos.”). The section further confirms that this right is not merely hortatory by empowering each “person, community, people, or nationality” to exercise public authority to enforce the right, according to normal constitutional processes. (Art. 71: “Toda persona, comunidad, pueblo o nacionalidad podrá exigir a la autoridad pública el cumplimiento de los derechos de la naturaleza. Para aplicar e interpretar estos derechos se observaran los principios establecidos en la Constitución, en lo que proceda.”).

The litigation in this case resulted from the construction and expansion of a road in the mountains of southern Ecuador. About three years ago, when the provincial government began work on the road, it had neither environmental impact statements, nor environmental permits, nor, apparently, any plan as to how to dispose of the debris that would be produced by the construction. The rocks, sand, gravel, trees, and other debris from the excavation and construction were eventually dumped by the side of the road, along the river, narrowing the river channel to about half its previous width, thereby doubling its flow. This caused significant erosion and flooding to the lands downriver when the spring rains came. When the government began dumping anew last December, the landowners sued. Although the first petition was denied for failure to name the appropriate parties, the court that heard the case this spring was ready to interpret the new constitutional provisions in a sympathetic and expansive way, setting out several important principles that, one hopes, will become polestars for subsequent cases on the right of nature.

The heart of the six-page opinion lies in its wholehearted embrace of the right of nature. Recognizing that the constitutional provision (and this action) was unprecedented “in the history of humanity,” the Court unhesitatingly took responsibility for enforcing it: “Given the indisputable, elemental, and irremediable importance of Nature,” the court said, “and taking into account how notorious and evident is its process of degradation, the accion de proteccion is the only suitable and effective way to end and remedy in an immediate way a specific harm to the environment.” The need for judges to vindicate the right of nature is warranted by the “evident and indisputable” importance of the right: “[W]e can not forget that injuries to Nature are “generational damages” which are such that, in their magnitude have repercussions not only in the present generation but whose effects will also impact future generations,” the court said. The court then at length quoted Alberto Acosta, President of the Constituent Assembly: “Man can not survive at the margins of nature… The human being is a part of nature, and can not treat nature as if it were a ceremony to which he is a spectator. Whatever legal system tied to popular sentiment, sensitive to natural disasters that we, in our day, are familiar with, applying modern scientific knowledge — or the ancient knowledge of original cultures — about how the universe works, must prohibit human beings from bringing about the extinction of other species or destroying the functioning of natural ecosystems.”

The significance of the right of Nature has certain jurisprudential implications that will surely be noted by other courts. First, the court seemed to be sympathetic to the difficulties of pleading in the unusual context where plaintiffs are vindicating not their own rights but the right of nature; as a result, the court was not as rigid as the previous tribunal with regard to formalities but adopted instead a common sense approach. Second, the court held that the environmental damage is based not on certitude but on possibilities and probabilities and therefore the type and quantum of proof necessary in a case based on the right of Nature is probabilistic. The court then invoked the precautionary principle, putting the responsibility, however, on the court itself: “until it can be shown that there is no probability or danger to the environment of the kind of work that is being done in a specific place, it is the duty of constitutional judges to immediately guard and to give effect to the constitutional right of nature, doing what is necessary to avoid contamination or to remedy it.” Third, the court announced that in cases involving the rights of nature, the burden of proof to show no damage is on the defendants. This, the court said, was in accord with the practice in other Latin American countries as well as in Europe and is justified not only because the defendant is usually in the best position to have information about the likelihood of damage but also because it is the defendant who is asserting the inexistence of harm to the environment. This is also consistent with the explicit language of the Constitution, which states that “the burden of proof on the inexistence of potential or actual damage rests with the person responsible for the activity (manager) or the defendant.” (Art. 397(1): “ La carga de la prueba sobre la inexistencia de daño potencial o real recaerá sobre el gestor de la actividad o el demandado.”) Thus, it was up to the government to prove that the road construction was not causing environmental damage. And finally, the court said that even if there were a conflict between constitutional rights (which there was not in this case), the rights of Nature would prevail because a healthy environment is more important and affects more people.

In the particular case, the court indicated a willingness to assertively protect environmental interests with a multi-pronged remedial order that included a public apology of one-quarter page in a local daily; the presentation within 30 days of a Plan for Remediation and Rehabilitation for the affected areas in the Rio Vilcabamba and the properties of the affected settlers; and immediate action to present appropriate environmental permits, to protect against oil spills or leakage into the river and the surrounding soils caused by machinery, to clean up the damage already caused by spills, to implement a warning system to prevent future damage to the environment caused by the combustibility of the machinery, and to find appropriate sites for the dumping of debris as the construction continues. The court also ordered the government to comply with the recommendations of the Subsecretary of Environmental Quality of the Ministry of Environment and ordered the establishment of a committee composed of government officials to oversee the enforcement of the court’s order. (However, as is typical of environmental rights cases, a press release from some environmental groups involved in the litigation — The Global Alliance for the Rights of Nature, CEDENMA, and Fundación Pachamama – indicates that, as of June 2011, “ [t]he damage to the river has not been remedied nor has the material been removed.”)

One aspect of the case that is perhaps most interesting is that, in the facts of the case, the complaint could have been made on more traditional grounds: the government’s action did, after all, cause erosion and flooding that affected one-and-a-half hectares of valuable land, and that cost thousands of dollars to repair and resulted in a diminution in the value of the plaintiffs’ property. And yet, rather than rely on their own property rights, the plaintiffs challenged the court to take seriously the newly recognized rights of Nature, and the court willingly accepted the challenge.

A provincial court in Ecuador became the first court ever to interpret – and vindicate – the newly constitutionalized right of Nature. The Ecuadorian Constitution was amended in 2010 to recognize that Nature has enforceable rights. In four extensive paragraphs, the Constitution spells out that “Nature, or Pacha Mama, where life is reproduced and created, has the right to integral respect for her existence, her maintenance, and for the regeneration of her vital cycles, structure, functions, and evolutionary processes.” (Art. 71: “La naturaleza o Pacha Mama, donde se reproduce y realiza la vida, tiene derecho a que se respete integralmente su existencia y el mantenimiento y regeneración de sus ciclos vitales, estructura, funciones y procesos evolutivos.”). The section further confirms that this right is not merely hortatory by empowering each “person, community, people, or nationality” to exercise public authority to enforce the right, according to normal constitutional processes. (Art. 71: “Toda persona, comunidad, pueblo o nacionalidad podrá exigir a la autoridad pública el cumplimiento de los derechos de la naturaleza. Para aplicar e interpretar estos derechos se observaran los principios establecidos en la Constitución, en lo que proceda.”).

The litigation in this case resulted from the construction and expansion of a road in the mountains of southern Ecuador. About three years ago, when the provincial government began work on the road, it had neither environmental impact statements, nor environmental permits, nor, apparently, any plan as to how to dispose of the debris that would be produced by the construction. The rocks, sand, gravel, trees, and other debris from the excavation and construction were eventually dumped by the side of the road, along the river, narrowing the river channel to about half its previous width, thereby doubling its flow. This caused significant erosion and flooding to the lands downriver when the spring rains came. When the government began dumping anew last December, the landowners sued. Although the first petition was denied for failure to name the appropriate parties, the court that heard the case this spring was ready to interpret the new constitutional provisions in a sympathetic and expansive way, setting out several important principles that, one hopes, will become polestars for subsequent cases on the right of nature.

The heart of the six-page opinion lies in its wholehearted embrace of the right of nature. Recognizing that the constitutional provision (and this action) was unprecedented “in the history of humanity,” the Court unhesitatingly took responsibility for enforcing it: “Given the indisputable, elemental, and irremediable importance of Nature,” the court said, “and taking into account how notorious and evident is its process of degradation, the accion de proteccion is the only suitable and effective way to end and remedy in an immediate way a specific harm to the environment.” The need for judges to vindicate the right of nature is warranted by the “evident and indisputable” importance of the right: “[W]e can not forget that injuries to Nature are “generational damages” which are such that, in their magnitude have repercussions not only in the present generation but whose effects will also impact future generations,” the court said. The court then at length quoted Alberto Acosta, President of the Constituent Assembly: “Man can not survive at the margins of nature… The human being is a part of nature, and can not treat nature as if it were a ceremony to which he is a spectator. Whatever legal system tied to popular sentiment, sensitive to natural disasters that we, in our day, are familiar with, applying modern scientific knowledge — or the ancient knowledge of original cultures — about how the universe works, must prohibit human beings from bringing about the extinction of other species or destroying the functioning of natural ecosystems.”

The significance of the right of Nature has certain jurisprudential implications that will surely be noted by other courts. First, the court seemed to be sympathetic to the difficulties of pleading in the unusual context where plaintiffs are vindicating not their own rights but the right of nature; as a result, the court was not as rigid as the previous tribunal with regard to formalities but adopted instead a common sense approach. Second, the court held that the environmental damage is based not on certitude but on possibilities and probabilities and therefore the type and quantum of proof necessary in a case based on the right of Nature is probabilistic. The court then invoked the precautionary principle, putting the responsibility, however, on the court itself: “until it can be shown that there is no probability or danger to the environment of the kind of work that is being done in a specific place, it is the duty of constitutional judges to immediately guard and to give effect to the constitutional right of nature, doing what is necessary to avoid contamination or to remedy it.” Third, the court announced that in cases involving the rights of nature, the burden of proof to show no damage is on the defendants. This, the court said, was in accord with the practice in other Latin American countries as well as in Europe and is justified not only because the defendant is usually in the best position to have information about the likelihood of damage but also because it is the defendant who is asserting the inexistence of harm to the environment. This is also consistent with the explicit language of the Constitution, which states that “the burden of proof on the inexistence of potential or actual damage rests with the person responsible for the activity (manager) or the defendant.” (Art. 397(1): “ La carga de la prueba sobre la inexistencia de daño potencial o real recaerá sobre el gestor de la actividad o el demandado.”) Thus, it was up to the government to prove that the road construction was not causing environmental damage. And finally, the court said that even if there were a conflict between constitutional rights (which there was not in this case), the rights of Nature would prevail because a healthy environment is more important and affects more people.

In the particular case, the court indicated a willingness to assertively protect environmental interests with a multi-pronged remedial order that included a public apology of one-quarter page in a local daily; the presentation within 30 days of a Plan for Remediation and Rehabilitation for the affected areas in the Rio Vilcabamba and the properties of the affected settlers; and immediate action to present appropriate environmental permits, to protect against oil spills or leakage into the river and the surrounding soils caused by machinery, to clean up the damage already caused by spills, to implement a warning system to prevent future damage to the environment caused by the combustibility of the machinery, and to find appropriate sites for the dumping of debris as the construction continues. The court also ordered the government to comply with the recommendations of the Subsecretary of Environmental Quality of the Ministry of Environment and ordered the establishment of a committee composed of government officials to oversee the enforcement of the court’s order. (However, as is typical of environmental rights cases, a press release from some environmental groups involved in the litigation — The Global Alliance for the Rights of Nature, CEDENMA, and Fundación Pachamama – indicates that, as of June 2011, “ [t]he damage to the river has not been remedied nor has the material been removed.”)

One aspect of the case that is perhaps most interesting is that, in the facts of the case, the complaint could have been made on more traditional grounds: the government’s action did, after all, cause erosion and flooding that affected one-and-a-half hectares of valuable land, and that cost thousands of dollars to repair and resulted in a diminution in the value of the plaintiffs’ property. And yet, rather than rely on their own property rights, the plaintiffs challenged the court to take seriously the newly recognized rights of Nature, and the court willingly accepted the challenge.

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