Blog Entry
September 3, 2020
Laguna del Carpintero: Progressive interpretation of the human right to a healthy environment in Mexico.
By Alejandra Rabasa Salinas*
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Photo: IIJS
In Mexico, the jurisprudence of the Supreme Court of Justice of the Nation (SCJN) has been building a progressive system of interpretation of the human right to a healthy environment, recognizing it as an indispensable prerequisite to guarantee other rights such as access to water and health. It defines it as an autonomous right of individual, collective, present and intergenerational incidence. The central object of protection is nature by its intrinsic value.
In this case two women residing in the city of Tampico, Tamaulipas filed a lawsuit against a tourist and urban project in which the wetlands of Laguna del Carpintero were affected. In first instance, the case was dismissed on grounds of the applicants not having a legitimate interest to claim protection, since they did not demonstrate that the damage to ecosystems had caused a direct impact on their human right to a healthy environment or their health. However, the neighbors of Laguna del Carpintero did not give up. They filed a request for review in which they argued their legitimate interest and standing by asserting that mangrove damage caused by the construction of the project deprived them of the environmental services provided by the ecosystem and on which their right to a healthy environment is dependent.
In its emblematic decision in constitutional protection action in review (Amparo en Revisión) 307/2016, the First Chamber of the SCJN clearly explains some of the guiding principles of environmental law that must inform the judicial interpretation of the human right to a healthy environment, such as those of precaution, in dubio pro natura, non-regression and citizen participation under the Escazú Agreement. The SCJN accepted the case, granted the protection and ordered various actions to repair to ecosystem damage. To understand in detail the effects of the judgment, the Court sought expert advice from the National Commission for the Knowledge and Use of Biodiversity to define how the affected mangroves and their environmental services should be restored, a necessary condition for redressing the violation of the right to a healthy environment. Among the most important contributions of this judgment are the following:
In addition to being a women-promoted case, the ruling highlights and nuances the impact of inequality that often exists between the parties to an environmental dispute, as a result of the asymmetry in political, economic or scientific power that may exist, for example, between an indigenous community and a transnational company or the state authorities, which are confronted in the judicial process. In application of the precautionary principle, judges may use tools such as reversing the burden of proof by the potentially responsible and obtaining of its own motion all the evidence necessary to identify environmental risk or damage.
The remedy for the violation of the human right to a healthy environment found in the shelter of Laguna del Carpintero does not end with the restoration of wetlands and environmental services that are the ecological lung of the city of Tampico. The ruling has an effect that will continue over time with the surrender and publication of reports by the authorities on the progress and involvement of communities near the Lagoon to demand compliance with environmental legislation. The Environmental Constitutional Jurisprudence in Mexico is ultimately moving forward with this precedent towards the effective application of the right to a healthy environment, access rights and the precautionary principle. *Original: Spanish
In this case two women residing in the city of Tampico, Tamaulipas filed a lawsuit against a tourist and urban project in which the wetlands of Laguna del Carpintero were affected. In first instance, the case was dismissed on grounds of the applicants not having a legitimate interest to claim protection, since they did not demonstrate that the damage to ecosystems had caused a direct impact on their human right to a healthy environment or their health. However, the neighbors of Laguna del Carpintero did not give up. They filed a request for review in which they argued their legitimate interest and standing by asserting that mangrove damage caused by the construction of the project deprived them of the environmental services provided by the ecosystem and on which their right to a healthy environment is dependent.
In its emblematic decision in constitutional protection action in review (Amparo en Revisión) 307/2016, the First Chamber of the SCJN clearly explains some of the guiding principles of environmental law that must inform the judicial interpretation of the human right to a healthy environment, such as those of precaution, in dubio pro natura, non-regression and citizen participation under the Escazú Agreement. The SCJN accepted the case, granted the protection and ordered various actions to repair to ecosystem damage. To understand in detail the effects of the judgment, the Court sought expert advice from the National Commission for the Knowledge and Use of Biodiversity to define how the affected mangroves and their environmental services should be restored, a necessary condition for redressing the violation of the right to a healthy environment. Among the most important contributions of this judgment are the following:
- Who has standing to file an environmental protection lawsuit? A person with legitimate interest is one who can argue a link between their right to a healthy environment and the environmental services provided by the ecosystem that may be claimed as affected by a project or activities.
- How is legitimate interest proven? It may be established, among other criteria, that there is standing and legitimate interest when the person requesting protection is a beneficiary of the environmental services of the threatened ecosystem, which its deemed to occur when the person inhabits its adjacent environment or areas of influence or use, which may have a local, regional or global scale.
- Is it necessary to demonstrate environmental damage? According to the established criterion, it is not necessary to demonstrate damage to environmental services as a condition for standing. Judges should make the assessment by taking a precautionary approach.
In addition to being a women-promoted case, the ruling highlights and nuances the impact of inequality that often exists between the parties to an environmental dispute, as a result of the asymmetry in political, economic or scientific power that may exist, for example, between an indigenous community and a transnational company or the state authorities, which are confronted in the judicial process. In application of the precautionary principle, judges may use tools such as reversing the burden of proof by the potentially responsible and obtaining of its own motion all the evidence necessary to identify environmental risk or damage.
The remedy for the violation of the human right to a healthy environment found in the shelter of Laguna del Carpintero does not end with the restoration of wetlands and environmental services that are the ecological lung of the city of Tampico. The ruling has an effect that will continue over time with the surrender and publication of reports by the authorities on the progress and involvement of communities near the Lagoon to demand compliance with environmental legislation. The Environmental Constitutional Jurisprudence in Mexico is ultimately moving forward with this precedent towards the effective application of the right to a healthy environment, access rights and the precautionary principle. *Original: Spanish
Alejandra Rabasa Salinas
Jurisprudence researcher at the Center for Constitutional Studies of the Supreme Court of Justice of the Nation of Mexico.
Currently responsible for research agendas on law and environment and scientific evidence at the Center for Constitutional Studies of teh Supreme Court of Mexico. Alejandra has a Master’s Degree in Sustainability Sciences from the National Autonomous University of Mexico, where she is currently pursuing her Ph.D. in the same field. She also has a degree in Law from Universidad Iberoamericana. She was Director of the Program of Studies on Judges and the Environment at the Environmental Law Institute in Washington, D.C. and Legal Director of the National Commission of Protected Natural Areas in Mexico. She is President of the Interdisciplinary Center for Biodiversity and Environment, A.C. (CeIBA).