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LAW: Following Pa. mining town's example, Ecuador OKs constitution giving rights to nature

by Jennifer KoonsGreenwire
September 30th, 2008

Ecuador has become the first country to approve a constitution that, among other reforms, recognizes certain inalienable rights for nature.

Under five provisions in the new constitution's Rights of Nature chapter, an ecosystem has the "right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution," and "every person, people, community or nationality, will be able to demand the recognitions of [these] rights."

Pat Siemen, director of the Miami, Fla.-based Center for Earth Jurisprudence, hailed the constitution's passage Sunday as "a major step forward in recognizing the intrinsic rights of the natural world to exist and not be subject to solely economic purposes for humans."

The inspiration for Ecuador's environmental provisions came from an unlikely place, Pennsylvania, where the Community Environmental Legal Defense Fund (CELDF) is working on litigation and legislation with U.S. cities and towns.

Last November, the San Francisco-based Pachamama Alliance, a nongovernmental organization that works with indigenous groups in Ecuador's Amazon region, asked the Chambersburg, Pa., group to help the Latin American country's constitutional assembly draft a legally enforceable Rights of Nature section.

"The folks in Ecuador wanted us to build off our work in the U.S.," said Mari Margil, CELDF's associate director. "We have been doing work over the past several years in local communities in the United States, and we've come to recognize that the way we treat nature now as property under the law is not a way to protect nature."

In 2006, CELDF helped Tamaqua, a coal-mining town in eastern Pennsylvania, draft a sewage-sludge ordinance that recognized natural ecosystems as legal persons for the purposes of enforcing civil rights. The ordinance in Tamaqua, which has a population of about 7,000, also stripped corporations that engage in the land application of sludge of their rights to be treated as "persons."

Ecuador's Rights for Nature

Article 1. Nature or Pachamama, where life is reproduced and exists, has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution. Every person, people, community or nationality, will be able to demand the recognitions of rights for nature before the public organisms. The application and interpretation of these rights will follow the related principles established in the Constitution.
Article 2. Nature has the right to an integral restoration. This integral restoration is independent of the obligation on natural and juridical persons or the State to indemnify the people and the collectives that depend on the natural systems. In the cases of severe or permanent environmental impact, including the ones caused by the exploitation on non-renewable natural resources, the State will establish the most efficient mechanisms for the restoration, and will adopt the adequate measures to eliminate or mitigate the harmful environmental consequences.
Article 3. The State will motivate natural and juridical persons as well as collectives to protect nature; it will promote respect toward all the elements that form an ecosystem.
Article 4. The State will apply precaution and restriction measures in all the activities that can lead to the extinction of species, the destruction of the ecosystems or the permanent alteration of the natural cycles. The introduction of organisms and organic and inorganic material that can alter in a definitive way the national genetic patrimony is prohibited.
Article 5. The persons, people, communities and nationalities will have the right to benefit from the environment and form natural wealth that will allow well being. The environmental services are cannot be appropriated; its production, provision, use and exploitation, will be regulated by the State.

Under the ordinance, which passed in September 2006, Tamaqua officials or individual residents have the ability to file a lawsuit on behalf of an ecosystem to recover compensatory and punitive damages for any harm done by the land application of sewage sludge. Damages recovered in this way must be paid to the town and used to restore those ecosystems and natural communities.

In March 2008, two New Hampshire towns passed local laws recognizing the rights of nature and specifically restricting the rights of corporations. Nottingham passed an ordinance banning corporations from mining and selling the town water, and Barnstead added the Rights of Nature to a similar ordinance that had been in place since 2006.

"Right now we have to fight to get standing to try to get damages for, say, the pollution of a river," Margil explained. "We have to show that we have been harmed -- and it's very difficult to show that you yourself have been harmed.

"What we have done in the United States, and now on a much larger scale in Ecuador, is very different," she said. "The ecosystem -- rather the river or otherwise -- will automatically have standing under the law. And the way it's written here and in Ecuador, individuals and communities also have standing to represent ecosystems that are harmed."

Tests loom

Expect the Rights of Nature approach to face a test in Ecuador, said Robert Percival, the director of the University of Maryland School of Law's environmental law program.

"The constitution outlines broad principles, and what impact they will have depends on how they are treated by the president, the Legislature and the courts," Percival said in an interview. "Certainly, a number of courts have taken very vague environmental provisions and used them as justification for intervention in environmental matters. This constitution goes even further by offering much more extensive and explicit provisions, but it will still require action by the president, lawmakers and the courts to implement."

Margil said CELDF has already been asked to begin developing a legislative framework for how to implement the provisions in Ecuador.

Percival said another key to the success of the provisions turns on the durability of the constitution as a whole. This is the Andean nation's 20th constitution, and critics are warning that it puts too much control in the hands of leftist President Rafael Correa.

"The real impact of this constitution will probably depend upon political stability in the country over a period of time," he said. "Ecuador has had so many constitutions that it can't be seen as a durable document in the same way as, say, the U.S. Constitution. We'll have to wait and see how long this holds."

Interest in enacting similar frameworks for protecting nature, however, shows little sign of dissipating soon.

Since CELDF began working with Ecuador, Margil said other countries, including Nepal, which is writing its first constitution, have expressed an interest in passing similar provisions.