The Dulcepamba River gets its day in court – rights of nature and Constitutional law in Ecuador

The following guest post is by Great Lakes Environmental Law Center student fellow Shannon Nelson. Shannon is a University of Michigan Law School student and graduate of Wesleyan University. Prior to law school, she was the operations manager for Floating Doctors in Bocas del Toro, Panama. Shannon has led our project in Ecuador, working with local advocates and attorneys to protect the Dulcepamba River and support the people most affected by its destruction.  

In 2008, Ecuador became the first nation to recognize rights of nature in its Constitution. And in the coming months, Ecuador’s Constitutional Court will for the first time decide how rights of nature should be applied to protect the Dulcepamba River from state-sanctioned damming and destruction.

As Ecuador is a civil law country, judicial decisions affect only the parties at bar and, even at the appellate level, do not carry the precedential weight of cases in common law systems. The Constitutional Court is the one exception to this rule. The Court, which sits in Quito, is the singular body tasked with Constitutional interpretation in Ecuador. The Court may hear as a court of appeal cases that present novel questions of Constitutional law or where Constitutional mechanisms have been denied.

Although the Court has heard cases involving the rights of Nature before now, the Dulcepamba River case represents the first time the Court will interpret the rights of Nature recognized in the Constitution and begin to define the substance of those rights for the country.

For over a decade, the community of San Pablo de Amalí in the Bolívar province of Ecuador has been engaged in seemingly endless litigation with Hidrotambo, S.A. over their hydroelectric project on the Dulcepamba River. In 2003, the company applied for a license to utilize the river to generate power to serve the Ecuadorian grid. The national water authority (“SENAGUA”), in turn, granted them a water right for 6.5 cubic meters of water year-round.

In 2005, Hidrotambo began construction on the 8MW run-of-river style dam despite persistent objections from community. To build the intake works for the dam, the company determined that they would need to reroute the river channel about 200 meters closer to the town. Community members warned that rerouting the river so close to the town would pose a significant risk of flooding; however, their concerns were dismissed, and construction continued. The fears of the community played out in March 2015, when a totally normal weather event resulted in a devastating flood that killed three people and washed away several homes. In the years since, the community has been fighting for the enforcement of human and nature’s rights in the face of corporate power with close ties to the central government.

For a more in-depth account, see San Pablo de Amalí: un pueblo sin agua (Spanish) and Run of the River by Kat Kerlin (English).

Ecuador has led the world by recognizing Nature as a rights-bearing entity in its Constitution. This acknowledgment of legal personhood grants Nature standing to bring cases—or, more accurately, for others to bring cases on its behalf—against violations of its rights in court. Among the rights enumerated in Ecuador’s Constitution are the right to integral respect for [Nature’s] existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes and the right to be restored.

The Constitution also imposes obligations on the State to apply preventive and restrictive measures on activities that might lead to the extinction of species, the destruction of ecosystems, or the permanent alteration of natural cycles. These rights and obligations are distinct from, yet intrinsically connected with, several anthropocentric environmental rights recognized in the constitution, including the right to live in a healthy environment, the right to water, and the right to food sovereignty. The constitution also provides that, while the State will encourage sustainable development, when development conflicts with the rights of others to water and food sovereignty, those basic needs must come first. Taken in tandem, these rights and obligations create an expansive framework of environmental and social protections, consistent with the foundational principle that humans are part of the natural world and should strive to live in harmony with nature. Ecuador’s Constitution refers to this as the sumak kawsay, or good living, an indigenous principle, similar counterparts of which exist in other Indigenous nations throughout the region.

I began working on the Dulcepamba River case in October 2018, just over a month into my first semester of law school. I could not have imagined at that time the profound impact the case would have on me and my nascent legal career. Apart from a love of the outdoors and a penchant for rock walls, my only environmental training was an AP Environmental Science class in high school (which was longer ago than one might think looking at me). Having worked as Operations Manager for a global health NGO that provides primary care services for indigenous communities in Panama before coming to law school, I initially got involved with the project because of the indigenous rights issue it presented. Many of the communities in the Dulcepamba Watershed identify as indigenous and the hydroelectric company failed to consult the communities prior to beginning the project as required by both international and Ecuadorian law.

Our work, however, focused on four other provisions in Ecuador’s Constitution: the human rights to water, food sovereignty, and a healthy environment and, most centrally to this case, the rights of nature (“RoN”). When I began working on the case in October, I was as perplexed by the idea of Nature having rights as anyone. I struggled envisioning what such a legal system would look like. The more I immersed myself in the subject, however, the more evident the need for RoN became.

In December, Professor Hall and I traveled to Ecuador to visit the team in San Pablo de Amalí and to see the actual site of the dam. I learned just as much swimming in the Dulcepamba River and sitting in community members’ homes listening to their stories as I did pouring over law review articles, UNGA resolutions, and constitutional provisions. The interdependence between the community and the river illustrated just how important RoN is as an ideology and legal theory—it is impossible to truly protect one without the other.

The Dulcepamba River Litigation-

We have written amicus briefs for two cases being brought by members of the community of San Pablo de Amalí, on their own behalf and on behalf of Nature. The first case addresses the exorbitant water use authorization granted to Hidrotambo. Simply put, the current authorization amounts to a total wipeout of the Dulcepamba River. In 2018, over 291 applications for water use (some representing dozens of individuals) by the upstream community have been denied or held pending by SENAGUA due to the current concession to Hidrotambo. Community members have requested an exhaustive revision of Hidrotambo's water right, citing irregularities in the authorization process, including the failure to complete empirical studies before granting the concession. A study conducted by researchers at UC Davis Center for Watershed Sciences and presented by the plaintiffs demonstrates that the water right allocated to Hidrotambo exceeded the actual flow of the river 83% of the time over the last ten years. That is before factoring in any of the water needs of community members in the watershed. This case is still pending despite prior assurances from SENAGUA that it would be resolved by the end of 2018. We expect to file our amicus brief in the administrative case in the coming month.

The second case, a protective action brought the Public Ombudsman and the Ecumenical Human Rights Commission (CEDHU) against several Ecuadorian government agencies for failing to protect the constitutional rights of the community of San Pablo de Amalí and Nature, has progressed much more rapidly through the courts.

The protective action, which was filed in January 2019, addresses the negligent manner in which the hydroelectric project has been executed, from the initial planning to regulation of operations. Most notably, when the company rerouted the river channel closer to the town during construction, they failed to complete any hydrological or hydraulic studies and restricted the floodplain in such a way that the river was unable to evacuate sediment and debris. This resulted in the devastating flood in March 2015 that killed three people and completely washed away several houses. Beyond the incalculable harm suffered by the community, in constructing the dam, Hidrotambo completely altered the ecosystem of the river in violation of Article 71 of Ecuador’s Constitution. (See full text of Brief of Amicus Curiae in Support of the Protective Action, available at - https://www.greatlakeslaw.org/files/Dulcepamba_protective_action_amicus.pdf)

Hidrotambo has maintained that the flood was a natural event that their management of the dam played no role in; however, the UC Davis study revealed that the return interval for a weather event like the one that resulted in the March 2015 flood is only six years. This supports the community's assertion that the flood was not a freak natural disaster and would not have been nearly as destructive but for the rerouting of the river and the negligent maintenance of the dam. It also means that the community remains in danger as long as Hidrotambo refuses to take the necessary steps to mitigate the risks.

In February, a lower court in Chillanes, Ecuador held that there was not a demonstrable causal relationship between the actions of Hidrotambo and the various government agencies and the devastating flood, and as such there was no violation of constitutional rights. (See full text of decision from the Court of First Instance in Chillanes, available at - https://www.greatlakeslaw.org/files/Dulcepamba_Chillanes_decision.pdf)

On appeal, the Provincial Court of Bolívar also denied relief, affirming the lower court’s holding that there was no violation of constitutional rights and also advancing an administrative exhaustion argument. According to the court, the record demonstrates that the agencies named as defendants have requested that Hidrotambo implement protective measures. While recognizing that none of these demands have been complied with, the court nevertheless held that a protective action is not the right method to compel the agencies to enforce compliance. (See full text of appellate decision from the Provincial Court of Bolívar, available at - https://www.greatlakeslaw.org/files/Dulcepamba_Bolivar_decision.pdf)

The Constitutional Court’s acceptance of the case indicates that the Provincial Court’s administrative exhaustion argument may not be sound. Even at this procedural stage, it represents an important step in RoN jurisprudence. The Court was not compelled to accept the case—it has broad discretionary authority over its docket. The decision to review the case suggests that the Court is prepared to begin developing a substantive RoN as a matter of Constitutional law. In the decision announcing its acceptance of the case, the Court said that it would address the standards and limits regarding the exploitation of renewable and nonrenewable resources managed by the State, the conduct of licensed companies, and the impact on the rights of the community and of Nature. The Constitutional Court’s decision in Dulcepamba River case could then frame the issues and standards for future RoN cases from the Galapagos to the Amazon. 

An alliance of environmental organizations (including the Earth Law Center, International Rivers, CEDENMA, and the Great Lakes Environmental Law Center) along with several leading international experts in environmental law (including Professors Oliver Houck, Zygmunt Plater, Patrícia Galvão Ferreira, and Noah Hall) filed an amicus brief in the Constitutional Court on the Dulcepamba River case. An English translation of the Constitutional Court amicus brief is also available.

Why we need Rights of Nature (and why simply recognizing a human right to a healthy environment won’t cut it)-

When I began my studies in September, I did not plan on becoming an environmental lawyer. After spending the last several months supporting those fighting on behalf of the Dulcepamba River, I cannot imagine not being one. I have to believe that it is possible to solve the environmental problems we have created. However, it is clear that our current system will not provide the answer. The Community Environmental Legal Defense Fund has keenly observed that one should not expect more from a permitting system; by its very name, it is clear that such a system is designed to permit harm, not prohibit it.

Over the years, many have pressed to formally recognize a human right a healthy environment. While I am certainly supportive of such an action, I do not believe it goes nearly far enough. More than 100 countries already recognize a human right to a healthy environment and yet we are still faced with mounting environmental crises of epic proportions. According to the latest IPCC report released in October 2018, we are poised to exceed 1.5 degrees above preindustrial levels by 2040. While we cannot yet fully appreciate the effects this increase will have on the planet, the prognosis is certainly bleak. Earlier this month, the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services released a global assessment on Biodiversity finding that nearly 1 million species are at risk of extinction, many within mere decades. Radical situations call for radical solutions.

Of course, in order to solve the problem, we need to know what is causing it. David Boyd, the UN Special Rapporteur on Human Rights and the Environment, has identified three damaging ideas that have led to our current environmental crisis:

The first is anthropocentrism—the widespread human belief that we are separate from, and superior to, the rest of the natural world… The second is that everything in nature, animate and inanimate, constitutes our property, which we have the right to use as we see fit. The third idea is that we can and should pursue limitless economic growth as the paramount objective of modern society.

If we are to address the environmental harms we have caused and make meaningful change, we first need a change of perspective. The defining characteristic of RoN, of course, is the shift from the anthropocentric ideology that has enabled us to treat the natural world as property to be extracted and exploited, toward a recognition that as humans we are very much a part of the natural world.

For further discussion of the need for RoN check out this podcast from CELDF or Fighting for Our Shared Future by Earth Law Center.

While RoN is still on the outskirts of the mainstream environmental movement, it is gaining momentum internationally and at the grassroots level. Bolivia, New Zealand, India, and Colombia have all recognized RoN in national laws and court decisions. We have seen pockets of RoN spring up throughout the United States with varying degrees of success. Over three dozen communities across the United States have already passed local laws and ordinances recognizing RoN. There also are campaigns underway to amend state constitutions in Colorado, Ohio, Oregon, New Hampshire and Vermont. To that effect, perhaps most promising in all of this, are the individuals and communities coming together to demand and defend Nature’s rights. It is worth remembering that RoN did not always exist in Ecuador. In fact, Ecuador faced many of the same obstacles in recognizing RoN that we might anticipate here in the United States. Ecuador’s economy was largely dependent on the extraction and exploitation of natural resources and property law in the country was quite similar to ours. It took a massive social movement, led by Indigenous groups and environmental advocates, to include RoN in the 2008 Constitution. Over the past 9 months, I have also gotten to work alongside and learn from skillful and fierce advocates both in Ecuador and across the United States and Canada, from the community members of San Pablo de Amalí and their attorneys at CEDHU, to the growing network of professors and students across the United States and Canada committed to advancing the rights of Nature and communities. Although there is still a long way to go and the stakes have never been higher, I am hopeful that RoN may actually save the world.

Photos: 1) Don Manuel Truijillo, president of the farming community of San Pablo de Amalí, sits with his daughter by the Dulcepamba River; 2) SENAGUA offices in Quito; 3) the Hidrotambo dam; 4) Don Manuel, accompanied by a project team member, standing on the dam spillway with his threatened home in the background.