Constitutional Limitations and the Rights of Nature
What we learn when we compare mining concessions in Ecuador and the United States.
On December 1, 2021, the Ecuadorian Constitutional Court delivered a landmark ruling revoking two previously-granted mining concessions from companies seeking to expand into the exceptionally biodiverse Los Cedros cloud forest. The decision, upheld by the Court with seven affirmative votes and two abstentions, obligates the Ecuadorian government to prevent mining and other extractive exploration within the protected forest area by repealing permits granted to ENAMI, Ecuador’s state mining company, and Cornerstone Capital Resources, its Canadian partner.
In voiding 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,” held by the Los Cedros forest (Articles 10 and 73); ii) Human rights to water (Articles 12 and 313) and a healthy environment (Article 14); and iii) The right of local communities to consultation and public participation regarding state authorization that affect the natural environment (Articles 61.4 and 398).
Informed by these constitutional protections, Judge Agustín Grijalva Jiménez opined: "To resolve this case…the Court considers it essential to analyze the rights to the 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 aligns with goals 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 upon the Constitutional Court to protect Los Cedros by enforcing its rights to existence and restoration, along with the corresponding rights of the intervening Magdalena River. In his statement, Jiménez affirmed that "the rights of nature, like all the rights established in the Constitution Ecuadorian law, have full normative force. They are not only ideals or rhetorical statements, but legal mandates."
As Ecuador affirmed its commitment to ecocentric legal paradigms in November and December of 2021, U.S. President Joe Biden opened up 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 climate agenda. Following Biden’s January 2021 executive order to pause U.S. entry into new oil and natural gas leases on public lands and offshore waters, 13 states filed a lawsuit in the U.S. District Court for the Western District of Louisiana declaring that the mandate violated provisions of the Administrative Procedure Act. Siding with the plaintiff states, Judge Terry A. Doughty wrote: "A President may not transgress constitutional limitations. Courts determine where constitutional boundaries lie." Unlike Ecuador, the U.S. 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 along with the rights of ecosystems to thrive and regenerate, perhaps 'constitutional boundaries' would be broadened enough to reverse Doughty's decision.
Without adequate protections for Nature, cases like the aforementioned effectively legalize environmental harm, exacerbating climate change and contributing to biodiversity loss. The precautionary principle, which has not yet been fully integrated into U.S. law and policy, guides decision-makers to take precautionary measures where detailed information about environmental impact has not been scientifically established. Time and time again, literature on environmental impact assessment suggests that this practice rarely results in any significant changes to developmental plans. The plaintiffs in the Louisiana v. Biden case argued that the postponements of the lease sales based on "an additional need for further environmental analysis" was "pretextual in order to give a reason (other than Executive Order 14008) for the Pause," implying that the need for robust environmental impact analysis does not provide sufficient grounds to apply 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 v. Biden case centers around the Outer Continental Shelf Lands Act (OCSLA), which directs the Secretary of the Interior to make the Outer Continental Shelf available for expeditious and orderly development, subject to environmental safeguards, in a manner which is 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 drilling leases in the Gulf of Mexico led to an immediate short-term loss for projected funds under OCSLA, threatening a key source of funds for Louisiana's $50 billion coastal recovery and restoration program. Ironically, it is extractive practices like oil and gas drilling that lead to climate change, exacerbating the flooding and extreme rainfall events that are directly responsible for the degradation of Louisiana's coastline.
That the plaintiffs in Louisiana v. Biden successfully convinced the Court that economic damage as a direct result of the pause on leases for drilling was concrete, particularized, and imminent points to an overarching failure of the U.S. legal system to adjudicate with an eye toward long-term environmental consequences; after all, environmental destruction caused by drilling and other extractive activities is also concrete and increasingly imminent over time. Even when the U.S. Department of Justice released a memorandum stating that the Doughty order "enjoins and restrains Interior from implementing the Pause, it does not compel Interior to take the actions specified by Plaintiffs," the Biden administration chose to proceed with the lease sales anyway, netting $191.6 million dollars 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 the permitted mining activity were unclear violates the rights of Nature to exist and regenerate, constituting a violation of the ecosystem’s rights to existence and regeneration. Codifying protections for Nature that extend to U.S. waters would transform the relationship between humans and the global ocean by treating the ocean as a rights-bearing entity rather than merely a resource to be exploited, providing additional legal grounds to pause lease sales in the process.
Moreover, the incorporation of standards accounting for the intrinsic worth of biodiversity as well as externalities and overall lifecycle impacts within cost-benefit analyses of ocean mining operations would provide a more inclusive and realistic perspective on the need to maintain the balance between human economic activity and oceanic capacity. Although it often remains invisible to the human eye, oceanic mining does not exist in isolation; these activities have dire consequences for the health of species—including humans—and ecosystems as well as future generations who will inherit the destruction.
Globally, Earth Law Center and partners continue to advocate for ocean rights in both territorial seas and international waters. ELC's "Framework for Marine Protected Areas" applies Rights of Nature principles to the governance of Marine Protected Areas (MPAs), calling upon law and policymakers to recognize that marine ecosystems "own themselves and have intrinsic value apart from human uses; have the right to perform all of their natural functions; and have the right to have a voice in decisions that may affect their health, including the right to legally defend themselves for damage caused (through human representation)." While the resumption of drilling leases in U.S. national waters is disheartening, Ecuador's ban on mining in Los Cedros provides legitimacy and hope for the future implementation of Rights of Nature protections across the world.
posted by Satish Sharma at
04:40
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