H. Albert Young Fellow in Constitutional Law Writes on Decision Validating the Rights of Nature
Web Editor - Published: July 14, 2011
A recent decision by the Provincial Court of Loja in Ecuador made that court the “first court ever to interpret – and vindicate – the newly constitutionalized right of Nature,” writes Professor Erin Daly, the H. Albert Young Fellow in Constitutional Law, in the blog post Ecuadorian Court Recognizes Constitutional Right to Nature on the Widener Environmental Law Center blog.

The decision follows a 2010 amendment to the Ecuadorian Constitution that recognizes that Nature itself has enforceable rights. The case focused on the problems caused by a project to widen the Vilcabamba-Quinara road in the mountains of southern Ecuador. The project – begun three years ago without a study of the environmental impact it would cause – resulted in rocks, gravel, and other debris from the excavation and construction being deposited by the side of the road, causing a narrowing of the river channel to roughly half of its previous width.

“Given the indisputable, elemental, and irremediable importance of Nature, and taking into account how notorious and evident is its process of degradation,” wrote the Court in its six page opinion, “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.”

“This is an extremely important decision that could have significant worldwide implications,” says Professor Daly, adding, “It is important to note at the outset, though, that this is a lower court opinion and could well be overturned or modified by an appellate court in this case or in a later case. However, the opinion itself is so forceful, that it is likely to influence jurists across the globe.”

Professor Daly has been working with Professor James R. May on a book provisionally titled Environmental Rights and Constitutional Protections: Implications for Present and Future Generations that deals with the “question of how national constitutions protect environmental rights.” Given their interest on the subject and the case’s importance to the greater environmental law community, Distinguished Professor and Environmental Law Center Director John C. Dernbach suggested that they write about the Ecuadorian case, prompting Erin to write the blog post.

“One of the things that I love most about law is how creative it can be, always seeking new solutions to the problems that we as people face,” states Professor Daly. “The diversity and creativity of law is most clearly seen in comparative law, where we can see how different nations approach similar types of problems in dramatically different ways. This case exemplifies that: Ecuador tried a novel approach to protecting its environment in it's constitution and a court found a way to enforce that – one that is in no way radical but consistent with the trends and practices of traditional legal doctrine.”

“The reason the case is so important is that Ecuador was the first nation ever to protect the rights of nature in a national constitution – not the rights of people to enjoy nature but the rights of nature itself,” she says.

“Given the globalization of constitutional law,” she concludes, “It is very likely that judges around the world will see this decision and follow it. Moreover, those who are involved in drafting constitutions and constitutional amendments will also be interested to see that the rights of nature can be justiciable; that is, you can have a far-reaching provision in a constitution that takes a novel and innovative approach to promoting environmental protection, and a judge can enforce it and make it real.”

Read Professor Daly’s full post analyzing the decision at the Environmental Law Center’s blog.