Understanding Environmental Rights and Constitutional Interpretation
PEC2.2.1 Guiding Principle or Legal Right
Very briefly in the notes that give us the UOC for rights relating to the environment, there are three doctrinal positions on constitutional interpretation:
- Those that say the constitutional text reflects a subjective right (is a guiding principle).
- Those who say yes.
- Those who are somewhere between the two.
From here, we will try to see how we approach the subject and what is the current reality of the concept.
One of the traditional positions that deny the right to the environment as a personal right considers that the status of the person regarding the environment is a diffuse interest. Diffuse interests are characterized by the lack of subjective, objective, and formal attributes.
In the debate surrounding individual ownership of environmental law, Roca Escobar tells us that one of the defining figures of the traditional concept of the right is their attribution to individuals, or rather, concrete physical or legal entities. At this point, the construction of a right to the environment faces further consideration; it seems certainly difficult to identify (at least I understand that in all cases) individual environmental interests. He adds that its character is evidently partial and limited; in most cases, the characteristic of subjectivity is collective or diffuse right, because usually, the deterioration of the environment does not affect one clearly identified person.
This has been expressed to me, and I also say that this is not always the case because if we look at the case law, there are often judgments in which specific individuals who have been harmed as a result of environmental pollution are individualized and protected, condemning the states for people who have been affected in their well-being and quality of life.
What does this mean? It means that while there is a right of collective interest, the right to an adequate environment is individually owned. Among the many sentences, we can cite the case of the ECHR (Lopez Ostra case 9-10-1994) which condemned the Spanish government for violation of the European Convention on Human Rights due to pollution.
The importance is that this Court thus opens a new phase for environmental law.
Put another way, although (as many writers say) the right to the environment is not within the fundamental rights protected by the European Convention on Human Rights (and internally, at least in theory, is a guiding principle), this ruling sets a precedent for effective judicial protection of environmental offenses. In this context, applying indirect protection by concatenating the right to an adequate environment with other fundamental rights expressly granted by the said Convention.
In conclusion, positions recognizing it as a real individual right (the right to the environment) are becoming more common. Notably, the position of Jordano Fraga defines it as a real and fundamental individual right. Rota Loperena supports the claim that Article 45 gives way to individual protection of the environment in the courts of justice, asserting that we have a true legal right, albeit with real gaps in both legal and constitutional frameworks.
Despite the statement (and viewed from the law), we cannot forget that our Constitutional Court Rule 45 does not recognize it as a true constitutional legal right and never has. Sometimes it uses the term to refer to this right, but in a very loose (weak) manner. They would then, from this point of view, be guiding principles, albeit with special characteristics; the most important is to contain a mandate for public authorities to ensure the environment.
PEC2.1.2 Nature of the Right Under the TC
It is not misleading to say that this is a rather elusive concept. Referring to the question before us and in relation to the same definition that the TC makes, I think we can say that it adopts a dynamic concept of the environment, which is both objective and functional, and an incredibly vast concept.
In its capital STC 102/1995 of 26 June, the Constitutional Court provides a very broad concept of the environment:
“… the living environment of man in a scheme that combines the useful with the pleasant.” (FJ 4).
The environment is formed, continues the TC:
“… elements, agents geological, climatic, chemical, biological, and social surrounding living beings and acting upon them for good or bad condition its existence, its identity, its development and more than once extinction, disappearance or wasting” (FJ 4).
Highlighting that the concept of the environment is:
“… essentially anthropocentric and relative. There is and can be no abstract idea of the medium, utopian and timeless, beyond time and space. It is always a concrete concept, belonging to and working here today” (FJ 4).
The environment, says the High Court:
“… cannot be reduced to the mere sum or juxtaposition of natural resources and their physical basis but a complex web of relationships between all elements whose interconnection … gives them a higher meaning” (FJ 6).
According to the TC:
“… it is a structural concept (the environment) whose idea is to balance its factors” (FJ 6).
In addition to these definitions of the environment, there are other sets of circumstances, such as physical, cultural, economic, and social factors that surround people, offering a range of possibilities to enhance their lives.
As for its deepest nature, we can say following the STC 64/1982 (which was later also explained in 102/1995) that we are facing something that is conceptually a vague legal concept with a multidimensional mood and consequently interdisciplinary.
As to its nature in its most literal sense, we can say that we have a legal right. The TC defines it as a constitutional legal right (64/1982, 170/1989, 69/1991, and the already referred 102/1995) by a weighting of the environment with economic development, which is also a constitutionally protected legal right.