December 15, 2021

In Ecuador, a Major Win for Wild Spaces and Wild Animals

On December 1, Ecuador’s Constitutional Court issued a landmark decision on the rights of nature. In our latest blog, Nicholas Fromherz, Senior Staff Attorney of our Global Law Alliance for Animals and the Environment, and Clinical Professor and Director Erica Lyman explain why the decision brings good news for wild animals and the habitat they call home.
  • A brown-headed spider monkey is in the jungle
    iStockphoto

On December 1, Ecuador’s Constitutional Court issued a landmark decision on the rights of nature, with consequences both immediate and precedential. The decision brings good news for wild animals and the habitat they call home.

As readers of earlier posts may recall, the rights-of-nature doctrine subverts orthodox approaches to environmental law by treating nature as a rights-holder. Whereas environmental law traditionally begins from the premise that humans need a healthy environment for their own purposes (e.g., to enjoy fresh air, clean water, and the many benefits of biodiversity), the rights of nature concept flows from the notion that nature is itself entitled to rights regardless of human interests. The shift is significant: nature moves from being an object of the law to being a subject of the law and a holder of its own rights.

In the case at hand, the Ecuadorian Constitutional Court’s decision is anything but academic. In fact, it scuttles plans to mine one of the most biodiverse environments on earth: Los Cedros biological reserve. A cloud forest situated along the lower flanks of the Andes in northern Ecuador, Los Cedros is home to spectacled bears, several species of endangered frogs, more than 350 species of birds, 180 species of orchids, 600 moth species, and the critically endangered brown-headed spider monkey. Los Cedros also provides critical ecosystem services, acting as a buffer zone for the much larger Cotacachi-Cayapas Ecological Reserve and its four major watersheds.

But all this was set to be lost – or at least significantly damaged – if not for the action of Ecuador’s judiciary. In 2017, the Ecuadorian Ministry of Mining granted metallic mining concessions to Enami EP (a state-owned mining company) in two-thirds of Los Cedros. Later that year, the Ministry of Environment approved exploratory mining and the associated use of water in the concession area. Local citizens and NGOs challenged the latter decision in court, eventually convincing a provincial tribunal to vacate the Ministry of Environment’s go-ahead.

On appeal, the Constitutional Court upheld the lower court’s ruling, holding that the government’s conduct ran afoul of the rights of nature, the precautionary principle, the right to water, the right to a healthy environment, and procedures concerning prior consultation with local communities.

In its analysis, the Court made several important observations. First, the Court emphatically declared that the rights of nature, as constitutional rights, are legally binding and have an operative effect, in a blow to the oft-repeated critique that the rights of nature are only aspirational. Throughout the case, and specifically in its analysis of rights of nature, the Court outlined the many species that inhabit the area and that depend on the resources of the area.

Second, the Court embraced a strong version of the precautionary principle, particularly as it relates to the right to water. With local communities relying on water within Los Cedros for human consumption, the Court expressed concern over the possible impact of mining activity on water quality and quantity. In light of the evidence suggesting potentially significant impairment to local water sources, coupled with the uncertainty surrounding the ability of the government and the mining concessionaire to mitigate the risk, the Court determined that the precautionary principle counseled against the authorization.

Finally, with respect to prior consultation with local communities, the court held that (1) the consultation must be as broad and democratic as possible, (2) consultation is a non-delegable obligation of the State, which must conduct the consultation in collaboration with the Ombudsman’s Office (an independent agency mandated with protecting the public) and local government authorities, (3) the government must complete the consultation before granting an environmental permit or license, (4) the consultation must satisfy, to the extent possible, the principles of free, prior, and informed consultation, and (5) an improper consultation renders void the associated decision or authorization.

At a higher level, we see at least two features of this case that augur well for the future of the rights of nature and, as a result, legal protections for wild animals and their habitat. As mentioned in previous blogs, we believe that the rights of nature can be applied not just to places (like Los Cedros) but also to wild animals. Although the Los Cedros decision does not go so far – at least not explicitly – the Court took pains to describe the wild fauna inhabiting Los Cedros. At a minimum, the Court’s analysis suggests a recognition that nature, and the rights it enjoys, is inextricably tied to wild animals.

Separately, this case shines a light on a growing problem all around the world: government action (or inaction) that is inconsistent with the legal status of protected areas. On maps, protected areas (under a variety of different names and classifications) impress as broad swaths of land and water cordoned off from the most destructive of human activities. In practice, however, governments and corporations incessantly maneuver to penetrate these areas for financial gain – and they often succeed. Against this background, Los Cedros stands as an important victory.

Nick Fromherz is a senior staff attorney at the Global Law Alliance. Previously, Nick served as a Visiting Assistant Professor, teaching courses within Lewis & Clark’s Environmental, Natural Resources, and Energy Law program. Since 2015, Nick has taught Administrative Law at Lewis & Clark Law School during several summer sessions. Combining this experience with his considerable time living and working in Latin America, Nick expands the Global Law Alliance’s footprint in the Americas while building on its international wildlife practice.

Erica Lyman is the Director of the Global Law Alliance for Animals and the Environment (the Global Law Alliance), a collaboration between CALS and the #1 ranked Environmental Law Program at Lewis & Clark Law School. She is a Clinical Professor of Law at Lewis & Clark Law School. Erica’s practice has included 15 years of work advocating for wildlife within the Convention on International Trade in Endangered Species of Wild Flora and Fauna and work on-the-ground to stop wildlife trafficking.

 

The Center for Animal Law Studies (CALS) was founded in 2008 with a mission to educate the next generation of animal law attorneys and advance animal protection through the law. With vision and bold risk-taking, CALS has since developed into a world-renowned animal law epicenter, with the most comprehensive animal law curriculum offered anywhere. In addition, CALS is the only program that offers an advanced legal degree in animal law (both in person and online) and three specialty Animal Law Clinics. In 2020, CALS launched the Global Law Alliance for Animals and the Environment, as champions for wild animals and wild spaces, in collaboration with Lewis & Clark Law School’s #1 ranked Environmental Law Program. CALS is a fully self-funded nonprofit organization operating under the Lewis & Clark College 501(c)(3) tax-exempt status, and is only able to provide these educational opportunities through donations and grants.