Reviews | Constitutional limitations and rights of nature

On December 1, 2021, Ecuador’s Constitutional Court issued a landmark decision revoking two mining concessions previously granted to companies seeking to expand into the exceptionally biodiverse cloud forest of Los Cedros. The decision, confirmed by the Court with seven affirmative votes and two abstentions, obliges the Ecuadorian government to prevent mining and other extractive exploration in the protected forest area by repealing the permits granted to ENAMI, the mining company of State of Ecuador, and Cornerstone Capital Resources, its Canadian partner company.

In canceling these mining concessions, the Constitutional Court ruled that the permits violated three key sets of rights granted by the Ecuadorian Constitution: i) The rights of nature, or “Pachamama“, owned by the Los Cedros forest (articles 10 and 73); ii) Human rights to water (articles 12 and 313) and to a healthy environment (article 14); and iii) The right of local communities to public consultation and participation regarding state authorizations that affect the natural environment (Articles 61.4 and 398).

Informed by these constitutional protections, Judge Agustín Grijalva Jiménez said, “To resolve this case…the Court considers it essential to analyze the rights to existence of the animal and plant species of Los Cedros, as well as the right of this ecosystem to maintain its cycles, structure, functions and evolutionary process” (translated from Spanish). This decision is in line with the objectives of the amicus curiae brief filed in September 2020 by Earth Law Center, Global Alliance for the Rights of Nature and the Center for Biological Diversity calling on the Constitutional Court to protect Los Cedros by enforcing its rights to existence and restoration, as well as the corresponding rights Magdalena River stakeholders. In his statement, Jiménez affirmed that “the rights of nature, like all rights established in Ecuadorian constitutional law, have full normative force. They are not just ideals or rhetorical statements, but legal mandates”.

As Ecuador affirmed its commitment to ecocentric legal paradigms in November and December 2021, US President Joe Biden opened more than 80 million acres in the Gulf of Mexico for auction to oil and gas drilling companies in direct opposition with his campaign promises and his climate programme. . Following Biden’s January 2021 executive order to suspend U.S. entry into new oil and gas leases on public lands and offshore waters, 13 states filed suit in U.S. District Court for the District West Louisiana stating that the warrant violated provisions of the Administrative Procedure Act. Siding with the plaintiff states, Judge Terry A. Doughty wrote, “A president cannot transgress constitutional boundaries. The courts determine where the constitutional boundaries lie.” Unlike Ecuador, the United States has not yet adopted constitutional protections for nature. If the country expanded its bill of rights to include the human right to a healthy environment as well as the rights of ecosystems to thrive and regenerate, perhaps the “constitutional boundaries” would be expanded enough to overturn the decision of Doughty.

Without adequate protections for nature, cases like the above effectively legalize environmental damage, exacerbating climate change and contributing to biodiversity loss. The precautionary principle, which has not yet been fully integrated into United States law and policy, prompts decision-makers to take precautionary action when detailed information about environmental impact has not been scientifically established. . Time and time again, the environmental impact assessment literature suggests that this practice rarely leads to significant changes in development plans. The complainants in the Louisiana vs. Biden argued that postponements of lease sales based on “an additional need for additional environmental analysis” were “a pretext to give a reason (other than Executive Order 14008) for the pause”, implying that the need for sound environmental impact analysis does not provide sufficient grounds for applying the precautionary principle when approving a project that has been described by environmentalists everywhere as a “carbon bomb”.

Much of the argument in the Louisiana vs. Biden the case centers on the Outer Continental Shelf Lands Act (OCSLA), which directs the Secretary of the Interior to make the outer continental shelf available for speedy and orderly development, subject to environmental safeguards, in a manner consistent with “the maintenance of competition and other national needs. Louisiana State Representative Jerome Zeringue, a Republican, argues in the lawsuit that Biden’s attempted cancellation of the leases of drilling in the Gulf of Mexico has resulted in an immediate short-term loss to funds earmarked under the OCSLA, threatening a key funding source for Louisiana’s $50 billion coastal recovery and restoration program. Ironically, it is extractive practices like oil and gas drilling that drive climate change, exacerbating flooding and extreme rainfall that are directly responsible. es of Louisiana coastal degradation.

that the plaintiffs in Louisiana vs. Biden succeeded in convincing the Court that the economic damages resulting directly from the suspension of drilling leases were concrete, specific and imminent, indicating an overall failure of the American legal system to adjudicate with regard to long-term environmental consequences; after all, the environmental destruction caused by drilling and other extractive activities is also real and increasingly imminent over time. Even when the U.S. Department of Justice issued a memorandum stating that the Doughty order “directs and prevents Interior from implementing the pause, it does not compel Interior to take the actions specified by the plaintiffs”, the Biden administration opted to proceed with the lease sale anyway, raising $191.6 million in the process.

Meanwhile, in Ecuador, the court ruled that the government’s failure to conduct studies analyzing the fragility of Los Cedros when the effects of permitted mining activity were unclear violates nature’s rights to exist. and to regenerate, constituting a violation of the rights of the ecosystem to exist. and regeneration. Codifying nature protections that extend to U.S. waters would transform the relationship between humans and the global ocean by treating the ocean as a rights-holding entity rather than just a resource to be exploited, which would provide grounds additional legal grounds to suspend lease sales in the process.

Additionally, incorporating standards that consider the intrinsic value of biodiversity as well as externalities and global life-cycle impacts into cost-benefit analyzes of ocean mining operations would provide a more inclusive and realistic perspective. on the need to maintain the balance between human economic activity and ocean capacity. Although often invisible to the human eye, ocean mining does not exist in a vacuum; these activities have dire consequences for the health of species – including humans – and ecosystems as well as for future generations who will inherit the destruction.

Globally, Earth Law Center and its partners continue to defend ocean rights in territorial seas and international waters. ELC’s “Framework for Marine Protected Areas” applies principles of the rights of nature to the governance of marine protected areas (MPAs), calling on laws and decision-makers to recognize that marine ecosystems “own and have intrinsic value apart from human uses; have the right to exercise all their natural functions; and have the right to have a say in decisions that may affect their health, including the right to legally defend themselves for damages caused (by human representation).” As the resumption of drilling leases in the US national waters is disheartening, Ecuador’s ban on mining at Los Cedros lends legitimacy and hope for the future implementation of nature rights protections around the world.

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