The new perspective of the declaration of Environmental Damage in Ecuador: Application of the Proportionality Test as a mechanism for conflict resolution
| Autor | Carlos Andrés Izquierdo Apolo |
| Cargo | Pérez Bustamante & Ponce Law Firm |
| Páginas | 123-156 |
Izquierdo, C. The new perspective on the declaration of Damage Environmental
123
Revista Facultad de Jurisprudencia RFJ No.10 Diciembre 2021
The new perspective on the declaration of Damage
Environmental in Ecuador: Application of the
Proportionality as a conflict resolution mechanism
The new perspective of the declaration of Environmental
Damage in Ecuador, application of the Proportionality Test
as a mechanism for conflict resolution
Carlos Andrés Izquierdo Apolo
Pérez Bustamante & Ponce Law Firm
City: Quito
Country: Ecuador
Original Article (research)
RFJ, No. 10, 2021, pp. 123 - 156, ISSN 2588-0837
ABSTRACT: This article aims to develop a methodological
proposal for the application of the proportionality test as a
conflict resolution mechanism in the new environmental
damage declaration procedure in Ecuador, based on the
systematization of theoretical conceptions and legal and
administrative procedures, and constitutional principles that
regulate economic activities with criteria of environmental
sustainability, and the recognition of the rights of nature.
Consequently, the research allowed us to extract the main
results: (a) to conceive proportionality as a methodological
criterion and legal construction; (b) the proportionality test
becomes a mechanism at the service of the judge that seeks
to provide solutions to adequately resolve conflicts, subject to
the principles that govern the rights of nature and economic
activities, directly established in the Constitution; and, (c)
the proportionality test can be a tool for the motivation of
administrative resolutions of declaration of environmental
DOI 10.26807/rfj.v10i10.380
Izquierdo, C. The new perspective on the declaration of Damage Environmental
124
Revista Facultad de Jurisprudencia RFJ No.10 Diciembre 2021
damage, as it will be useful to determine: 1) whether a fact can
be considered environmental damage, 2) the amount of the fine
imposed, 3) the minimum measures to approve remediation
or environmental reparation plan, and 4) the amount of
compensation to the victims of the environmental damage.
Because of these results, it can be concluded that the normative
vacuum in this matter lends itself to the discretion and arbitrary
interpretation of the authority, justifying, therefore, the present
methodological proposal of the proportionality test for the
declaration of environmental damage.
KEYWORDS: Environmental legislation, resources,
environmental law, sustainable development, energy resources.
ABSTRACT: The objective of this research is to develop
a methodological proposal for the application of the
proportionality test as a conflict resolution mechanism in
the new perspective of the declaration of environmental
damage in Ecuador, based on the systematization of the
principles, theoretical conceptions, and legal procedures and
administrative that regulate economic activities with criteria
of environmental remediation and ecosystem sustainability.
Consequently, the research allowed to extract the main results:
(a) Conceiving proportionality as a methodological criterion
and legal construction; (b) the proportionality test becomes
a mechanism at the service of the judge that seeks to provide
solutions to adequately resolve conflicts, subject to the principles
that govern the rights of nature and economic activities, directly
established in the Constitution ; and, c) The proportionality test
can be a motivational tool for administrative decisions declaring
environmental damage, as it will be useful to determine: 1) if an
event can be considered environmental damage, 2) the amount
of the fine imposed, 3) the minimum measures to approve an
environmental remediation or repair plan, and 4) the amount
of compensation to victims of environmental damage. Given
Izquierdo, C. The new perspective on the declaration of Damage Environmental
125
Revista Facultad de Jurisprudencia RFJ No.10 Diciembre 2021
these results, it can be concluded that the regulatory void of this
matter lends itself to the discretion and arbitrary interpretation
of the authority, thus justifying the present methodological
proposal of the proportionality test of the declaration of
environmental damage.
KEYWORDS: environmental legislation, resources,
environmental law, sustainable development, energy resources.
CÓDIGO JEL: F18, O13.
INTRODUCTION
In Ecuador, environmental regulations have undergone
recent changes because of a new constitutional policy that
recognizes rights to nature. The action for environmental
damage has been one of the institutions that have undergone
the greatest changes.
A short time has passed since the issuance of the Regulations
to the Organic Environmental Code, this body of law does not
fully regulate the procedure for environmental damage actions;
and little or nothing has been written in the doctrine regarding
the change in the procedure for declaring environmental
damage included in this regulatory framework.
This article will provide background information on the
recognition of nature as a subject of rights, with special emphasis
on the context of the 2008 constitution, and the perspective
with which it conceives of coupling extractive industries with
respect for the ‘Pacha Mama’; likewise, a brief historical account
will be given of the evolution of environmental law centered
on the institution of environmental damage, and how it has
evolved in Ecuadorian legislation.
Similarly, basic concepts for understanding environmental
damage will be analyzed, and then a comparison will be made
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