COMMENTS ON THE CC’S DECISION IN CASE 51-23

1. On November 17, 2023, the Constitutional Court (“CC”) made public the ruling in case No. 51-23-IN/23 (“CC Judgment”) that resolves the unconstitutionality action filed against the Executive Decree 754 (“Decree 754”), which reforms the Regulations to the Organic Environmental Code. The rules of Decree 754 regulate the environmental consultation necessary to obtain environmental licenses for any project that requires it.
   
   

2. The CC declares that Decree 754 is unconstitutional due to its form since it transgresses the principle of reservation of law in Articles 132 and 133 of the Constitution. However, it declares that the effects of the CC Judgment will be deferred by Article 95 of the Organic Law of Jurisdictional Guarantees and Constitutional Control until the National Assembly issues a law that develops the content of the environmental consultation by Art. 398 of the Constitution. The CC annuls the provisional suspension that weighed on Decree 754.
   
   

3. It is not good news that the CC, persisting with its line of environmental activism, declares the unconstitutionality of Decree 754 at the request of the Confederation of Indigenous Nationalities CONAIE. However, after a detailed analysis of the CC Judgment, we have identified not only harmful but also positive aspects, which we outline below. The aforementioned will allow us to define the actual effects and risks associated with such a judicial decision.
   
   

Positive Aspects of the CC Judgment:

4. Although the unconstitutionality of Decree 754 is declared, the aforementioned instrument will remain in force for at least one year until the National Assembly dictates a new law regulating environmental consultation. In other words, current and future environmental licensing procedures can use this standard to advance their respective projects. The CC recognizes (paragraphs 191 to 195) the following: i) Decree 754 responds to a general interest; ii) Decree 754 makes it possible to grant environmental authorizations for the execution of productive projects; iii) The purpose of Decree 754 is the protection of the environment and citizen participation; iv) A regulated procedure is required to facilitate the exercise of environmental consultation; and, v) With the deferred effects of the CC Judgment, a regulatory vacuum can be avoided.
   
   

5. In addition to the above, the CC Judgment would protect from future challenges against environmental licenses and permits obtained under the validity of Decree 754 since the CC itself recognizes its validity until there is a law that develops environmental consultation.
   
   

Negative Aspects of the CC Sentence:

6. As mentioned at the beginning, the CC Judgment sends a new message reaffirming the activist/environmentalist position of the majority of the CC magistrates. The CC issuing rulings with an ideological bias, framed within an agenda to specific interest groups in society, is detrimental to Ecuador’s image and its promotion in international markets.
   
   

7. It is contradictory, among other things, that the CC concludes that Decree 754 violates the legal reserve. The right of consultation is enshrined in both the Constitution and the Organic Code of the Environment. Limiting its implementation at the regulatory level would be constraining the regulatory power of the Executive in this matter. The development of constitutional or legal rights regulations occurs in all areas, and the difference marked by the CC concerning collective environmental rights reaffirms the ideological burden of its rulings.
   
   

8. The CC excepts the application of Decree 754 to communes, communities, peoples and indigenous nationalities who, by numeral 7 of article 57 of the Constitution, have the right to prior, free and informed consultation. Notably, there is currently no regulation in place for prior, free and informed consultation, and the CC takes advantage of this Judgment to draw the attention of the National Assembly to this effect. It is essential to note that the CC has developed in several standard rulings on characterizing prior, free and informed consultation without prejudice to the above.
   
   

Risks of the CC Judgment:

9. The CC Judgment not only fails to resolve the existing social conflict in several regions of the country but also aggravates it. The social and political groups behind the unconstitutionality action against Decree 754 announce the CC Judgment as a victory (this is what CONAIE has already pronounced on social media).
   
   

10. As a result, projects that were attacked during their environmental consultation processes under the licensing procedures governed by Decree 754 are highly susceptible to becoming targets of radical anti-mining groups. These groups may use the CC Judgment to prevent the development of environmental consultations in the communities surrounding these projects by initiating constitutional protection actions.
    
    

11. Furthermore, in the absence of a law on prior, free and informed consultation, conflicts can easily be anticipated in certain provinces as anti-mining political movements work with indigenous organizations seeking to reclaim territories, even when such condition does not meet such characteristics.
    
    

12. Decree 754 must be applied according to the guidelines/precedents set by the CC Judgement. The CC leaves the door open for constitutional protection actions to be filed in cases of non-compliance with CC standards and jurisprudence (not only the rules of Decree 754) until a new law is in force.
    
    

13. Finally, the CC grants the National Assembly a one-year deadline to enact laws regulating environmental consultation and free and informed consultation. It is essential for the CC Judgment to clarify the consequences if this deadline is not met, as has occurred in the past.
    
    

Contact: César ZUMÁRRAGA (czumarraga@tzvs.ec)

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This publication contains information of general interest and does not constitute legal opinion on specific issues. Any analysis will require legal advice from the Firm.