The citizen participation processes for environmental consultation are reactivated

The Constitutional Court, by means of a judgment in Case 51-23-IN, dated November 9, 2023, notified on November 17, 2023, declared Presidential Decree 754 unconstitutional, considering that it violates the constitutional rule of reserve of law.

The effects of the ruling will be deferred until the National Assembly issues the corresponding law. Therefore, Decree 754 may be applied to carry out the Citizen Participation Processes for Environmental Consultation, provided that the guidelines and standards determined by the Court in paragraphs 196 to 205 of the decision are applied in such processes.

Among the guidelines and standards, the following stand out:

Regarding the subjects consulted, Decree 754 determines that they are the community or communities, regardless of their ethnicity, whose environment may be affected by any decision or permit in environmental matters, which will be determined according to the area of direct social influence of the decision or permit. Those people who can demonstrate, in a technical and/or legal manner, the environmental impact that could be caused to them, may also be considered as consulted subjects. The subject consulted must be determined in a broad and representative manner, so that any person who considers, in a substantiated manner, that the measure affects them must be included in the process.  The direct impact analysis should not demand technical requirements that are difficult to comply with for a community to be considered potentially affected.

With respect to financing, although Decree 754 determines that the costs or values demanded by the citizen participation process for the environmental consultation will be assumed by the operator of the project, work or activity, and that the latter will provide the necessary facilities and resources for the execution of such process, the Court determines that the State may not delegate the environmental consultation process, in any aspect (i.e. provision of inputs or financing) to the operator of the project, work or activity to be carried out.

The Ombudsman’s Office is obliged to promote the bills on environmental consultation that it has presented and that are being processed in the Assembly or, failing that, to draft a bill regulating the matter. It also establishes that the National Assembly must approve, within a period of one year, counted as of the moment of the impulse or presentation of the new project.

Finally, the Court emphasizes that the process of environmental consultation should not be confused with that of prior, free, and informed consultation, and therefore the content of Decree 754 should not be applied to communes, communities, indigenous people, and nationalities.

Carlos Torres, Senior Associate at CorralRosales
ctorres@corralrosales.com
+593 2 2544144