A Constitutional Analysis of Drilling for Oil in Ecuador

Ecuador faces a dilemma that troubles many environmentally conscious countries: to drill or not to drill.  It all starts at Yasuní National Park, one of the most biologically diverse places on earth.  Yasuní is rich in amphibians, reptiles, invertebrates, trees – you name it, Yasuní has it.  The biodiversity hangs in a tenuous balance, and any man-made interference is likely to have serious consequences on the local habitat.[i]

Yasuní National Park sits atop nearly 900 million barrels of oil which is worth an estimated $10 billion,[ii] about one-eighth of Ecuador’s current GDP.[iii]  But President Rafael Correa cannot just tap the oil reserve, since Ecuador’s Constitution grants nature the Constitutional Right to exist undisturbed.[iv]  The Rights of Nature, as they are called, give nature the “right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes.”[v]  President Correa found himself stuck in between two visions of Ecuador.  Ecuador’s indigenous heritage respects nature above all else, but the future of Ecuador needs to be funded somehow.

Initially, President Correa tried to strike a creative balance.  In 2007, he set up the Yasuní-ITT Trust Fund in the United Nations, which effectively declared to the world that Ecuador would leave Yasuní National Park undisturbed in exchange for $3.6 billion.[vi]  The solution was clever, but ill founded for a couple of reasons.  The fund rested on the erroneous belief that the world outside of Ecuador valued an intact Yasuní Forest as much as it did.  Furthermore, many diplomats were hesitant to participate in a fund that manipulated their environmental compassion into what was essentially blackmail.[vii]  The fund was a failure.  When President Correa closed the fund at the end of 2012, there was only $13 million in its reserves, less than half a percent of its goal.[viii]

Immediately after scrapping the fund, President Correa announced that they would begin to drill with Chinese backing.[ix]  But given Ecuador’s Constitution, President Correa should not be able to drill so easily.  The jurisprudence was not in President Correa’s favor; cases have held that work as benign as road expansion projects cannot be completed without considering environmental impact assessments and receiving the consent of local residents.[x]

And yet, President Correa has found a way to authorize drilling.  In keeping in line with the applicable case law, the Ecuadorian government has promised to perform environmental studies.  And in order to ensure that no indigenous tribes are harmed, the government has redrawn its tribal territory maps, moving the Taromenane and Tagaeri tribes off of oil-rich areas.[xi]  Clearly President Correa’s administration is not as environmentalist-bent as it claimed to be in the past.  Further evidence of Correa’s hypocrisy is found in a document unearthed by The Guardian that demonstrated that the Ecuadorian government was involved in side-negotiations with the Chinese government while the Yasuni-ITT Trust Fund was still alive.[xii]

President Correa has gone from being a blackmailer to a hypocrite.  So while he promises to keep the environmental damage as minimal as possible, it is hard to trust him at this point.  Anecdotal evidence from the forest floor indicates that the roads being constructed in Yasuní National Park are already disturbing the fragile ecosystem.[xiii]

So where does that leave us?  Ecuador’s Constitution may be going through growing pains, but Ecuadorians have the power to preserve its original purpose.  Activists are trying to force a referendum on oil drilling.  With a month to go before the mid-April deadline, activists sit 50% short of the 600,000 signatures required to force the vote.[xiv]  Ecuadorians need to brush aside all the cynicism that Correa attracts and demonstrate to the world that they above all else, they value nature and the protection of the Ecuadorian ecosystems.  If activists eventually succeed, they will not just have saved the Yasuní, but they also will have proven to the world that Ecuador possesses a constitutional model for a sustainable future.

 

-Percy Olsen is a General Member on MJEAL. He can be reached at polsen@umich.edu.

 


The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

[i] Bass MS, Finer M, Jenkins CN, Kreft H, Cisneros-Heredia DF, et al. (2010) Global Conservation Significance of Ecuador’s Yasuní National Park. PLoS ONE 5(1): e8767. doi:10.1371/journal.pone.0008767.

[ii] Tim Fernholz, Ecuador Abandons Rain Forest Protection to Pay its China Debts, Quartz (Aug. 19, 2013), http://qz.com/116321/ecuador-terminates-a-3-6-billion-plan-to-protect-the-amazon-from-oil-drilling/#/.

[iii] Trading Economics: Ecuador GDP, http://www.tradingeconomics.com/ecuador/gdp (last visited Mar. 21, 2014).

[iv] Constitution of the Republic of Ecuador, http://pdba.georgetown.edu/Constitutions/Ecuador/english08.html, (last visited Mar. 21, 2014).

[v] Id.

[vi] David Kestenbaum, Ecuador to World: Pay Up to Save the Rainforest. World to Ecuador: Meh., NPR (Sep. 2, 2013), http://www.npr.org/blogs/money/2013/09/02/216878935/ecuador-to-world-pay-up-to-save-the-rainforest-world-to-ecuador-meh.

[vii] Kestenbaum, supra note 6.

[viii] Fernholz, supra note 2.

[ix] Rob Wile, The Chinese Have Bought Out An Entire Country’s Oil Sector, Business Insider (Nov. 26, 2013), http://www.businessinsider.com/china-buys-out-ecuador-oil-2013-11.

[x] Ecuadorian Court Recognizes Constitutional Right to Nature, http://blogs.law.widener.edu/envirolawblog/2011/07/12/ecuadorian-court-recognizes-constitutional-right-to-nature/, (last visited Mar. 21, 2014).

[xi] Nick Miroff, In Ecuador, Oil Boom Creates Tension, The Washington Post (Feb. 16, 2014) http://www.washingtonpost.com/world/in-ecuador-oil-boom-creates-tension/2014/02/16/f790d2f4-8f6d-11e3-878e-d76656564a01_story.html.

[xii] David Hill, Ecuador Pursued China Oil Deal with Pledging to Protect Yasuní, Papers Show, The Guardian (Feb. 19, 2014) http://www.theguardian.com/environment/2014/feb/19/ecuador-oil-china-Yasuní.

[xiii] Ecuadorian Court Recognizes Constitutional Right to Nature, supra note 10.

[xiv] Robin Llewellyn, Yasuní Petition Reaches Halfway Point in Bid to Force Referendum, The Guardian (Feb. 21, 2014) http://www.theguardian.com/environment/2014/feb/21/Yasuní-petition-ecuador-oil.

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