The Right to Environmental Protection in the Spanish Constitutional System

Angel Manuel Moreno

The question whether there is a "constitutional" right to environmental protection in Spain is a rather controversial one. The solution to this problem has to start from a textual approach to the Spanish Constitution of 1978. Relevant case-law, legislation and academic contributions have also to be considered.

1. Environmental protection in the Spanish Constitution. Preliminary approach

The Spanish Constitution of 1978 refers to environmental issues in several articles:

(a) the key provision is article 45, which states that:

1.- Everyone has the right to enjoy an adequate environment for the development of the person, as well as the duty to preserve it.

2.- Relying on the indispensable collective solidarity, the public powers will watch over the rational use of all the natural resources, with the aim of protecting and improving the quality of life, as well as defending and restoring the environment.

3.- In the manner provided by the law, criminal and, where appropriate, administrative penalties will be established for those who would violate the above paragraph, as well as the obligation to compensate for the damage caused"

(b) other articles also refer to environment-related issues, such as art. 40 (occupational safety and health) , art. 43 (the right to health protection), art. 46 (historic and cultural heritage), and art. 51 (consumer protection)

c) finally, in article 149.1.23, the Constitution allocates the powers on environmental issues between the central government and the Autonomous Communities (regions).

The interpretation of article 45 is the center of the debate. On the one hand, the constitution uses the word "right" (derecho) and that could lead us to understand that there is such a constitutional right. However, a more comprehensive approach should not disregard the place of that article in the Constitution, the so-called, systematic legal interpretation. From this perspective, it has to be pointed out that the First Title of the Spanish Constitution (devoted to the "rights and liberties") goes from article 14 to article 55. However, every one of these provisions does not recognise a "right" in the sense of "fundamental" or "subjective right". On the contrary, within this title we should distinguish between different kinds of "rights" and protected goods. It should be noticed that it is somehow difficult to address these questions without using our respective own national terminology and legal background (for there is a noticeable terminology maze is this field: civil rights, civil liberties, human rights, fundamental rights, basic rights, public subjective rights, simple statutory rights, etc.). Anyway, we will try to circumvent this nominal problem by using a literal translation.

The First title of the Spanish constitution includes:

  1. True "fundamental" rights: articles 14 to 29 (the non discrimination clause, the right to life, liberty, privacy, etc.) These rights have the strongest legal protection: they can only be regulated by special Parliament Acts (called "organic statutes"), which can eventually be held unconstitutional if they disregard the core of that right. and they have a complete set of legal remedies: any citizen can claim judicial protection through a special, summary judicial proceeding, and they can even have direct access to the Constitutional Court (recurso de amparo), after exhausting the appropriate judicial proceedings before ordinary courts.
  2. "Simple" constitutional rights and duties (articles 30 to 38): for instance, the right to private property, to free economic initiative, to form professional associations, to collective bargaining, etc. These rights and duties have a weaker constitutional protection: they have to be regulated by regular Parliamentary Acts, which can eventually be declared unconstitutional if they disregard their essential features. However, they can´t be protected neither through the above mentioned special, summary judicial proceeding nor by the individual access to the Constitutional Court.
  3. Finally, the "guiding principles of social and economic policies", from article 39 to 52 (among them, environmental protection). The sole support accorded by the Constitution is that (1) "the recognition, respect and protection" of those principles "will shape positive legislation, judicial practice and the activities of the public powers", and (2) they can only be alleged in courts in the way provided for by the statutes and regulations that develop them (article 53).
  4. From that systematic approach to the First Title of the Spanish Constitution, it can be said that, at first sight:

    Of course, this is a controversial provision, so it is necessary to check the constitutional interpretation as well as the contributions from scholars.

    2. Case-law of the Spanish Constitutional Court

    The Spanish constitutional court has addressed the interpretative problems stemming from article 45 in several occasions (examples: decisions 64/1982, 227/1988, 66/1991, 243/1993, among others). Perhaps the judgement that best summarises its position is decision 199/1996, of December the 3rd. After talking several times of the "right to the environment", saying that it is of crucial importance today, and that it has been enhanced by the European Court of Human Rights case-law, the constitutional court eventually concluded saying that "we can not ignore that article 45 of the constitution enunciates a guiding principle, but not a fundamental right."

    Another example of the understanding that the Spanish Constitutional Court gives to the "right" to environmental protection enshrined in the Constitution is the Lopez Ostra case (adjudicated by the European Court of Human Rights on December the 9th, 1994). The facts of this well-known case took place in the Region of Murcia (Spain). Before arriving to the Strasbourg court, the applicant had to exhaust all available legal remedies under Spanish law (Territorial Court of Murcia and Supreme Court), and she eventually arrived to the Constitutional jurisdiction (appeal in amparo). However, this latter Court (as the others had done previously) dismissed the case because, among other reasons, it did not see a violation of constitutional rights. The appelant even did not claim article 45 of the Spanish Constitution. Instead, she relied on other provisions: article 15 (right to physical integrity), article 18 (right to privacy) and article 19 (right to chose freely a place of residence) of the Constitution.

    Summing up, the constitutional court understands that the "right to an adequate environment":

    1.- Clearly, it is not a fundamental right

    2.- Undeniably, it is a guiding principle, and even more: a special figure which is on the fringe between a mere principle and a "peculiar" or singular right, having some kind of constitutional relevance.

    3. The contribution of scholars

    The interpretation of article 45, and of the legal nature of the "right" to an adequate environment, has produced an important scholar debate. Of course, the debate is very dense and pervaded by a lot of dogmatic and terminology strive, which could not be easily and concisely explained outside the Spanish academia.

    In a nutshell, some authors believe that art. 45 is the basis of a real subjective right, which would: (a) give individuals a great capacity for litigation, participation and legal activism; (b) empower them for demanding positive action from government; (c) entitle them to oppose both private and public action. Other, however (with whom we agree), support a more restrictive understanding. To begin with, they point out that the classical figure of subjective rights is unsuitable for environmental protection. The classical subjective right is thought to defend the individual against intrusions of the public power in their vital sphere (right to liberty, communication, freedom of speech, etc.) while an "adequate environment" is not a "right" that we can oppose against governmental action. Instead, it involves precisely a diligent, careful a comprehensive activity of administrative agencies through licensing, screening, prosecuting, and so on. Such a "right" to an "adequate environment" would be equivalent to the right to ask positive, specific, permanent action from administrative agencies, in any case and circumstance in which we understand that the environment is not "adequate". Do we have the "right" to ask (and obtain) that the nearby polluting factory be closed just because it pollutes? Can we ask that the infamous tourist skyscrapers of Benidorm be demolish because they are the perfect example of an irrational use of natural resources? In the end, this is undeniably the main question, and the fact is that, under current Spanish environmental law, this is not possible. On top of that, the clear internal system of the constitution and the case-law of the constitutional court leaves little room for discussion. Unfortunately, environmental protection is not a fundamental right.

    On the other hand (and this point is not usually stressed by scholars) there is also a "duty" to preserve the environment. That provision can be construed in a way to make possible a strong governmental intervention in business.

    4. Environmental protection as a right, and Spanish environmental legislation

    Besides the abstract academic arguments, it is useful to turn to "regular" environmental legislation in order to check what is the extent of that "guiding principle". This is important since, as seen above, the "right" to an "adequate environment" has to be developed by statutes and regulations, which will provide for the actual profile and format of that right. From that perspective, environmental legislation is peculiar in the sense that, contrary to the usual rule, it usually gives a wide participation and litigation capacity to individuals and groups, something called "public action" (acción pública). The examples (both in national and regional legislation) are too numerous to be even summarized: national parks, land use law, etc.

    On the other hand, article 19 of the Law of 29/1988, of July the 13th 1998 is another key legal provision. This statute is of great relevance, for it is the central cog in the Spanish system of judicial control of administrative action. Article 19 deals with the issue of standing to sue, and opens the door to challenging administrative action (both positive or negative) to anyone having "a right or an legitimate interest". The combined force of this provision and article 53 of the Constitution, which states that judicial practice should be inspired by the "guiding principles" (such as the "right" to an "adequate environment") trigger a highly relevant development: in any given law-suit, the judge has to interpret in a "progressive" and extensive way the possible standing of the claimant, then opening, in fact, to a large extent environmental litigation. However, it doesn´t mean that anyone has standing in Spain to sue any Administrative agency or private corporation, since the sectoral legislation can restrict the access to courts. For instance, the Spanish Supreme Court has held that the environmental impact assessment of a given project can not be challenged independently from the main administrative authorisation required for its construction or inception.

    5. Conclusions

    The systematic and textual interpretation of the Spanish Constitution prevents from understanding that there is a "fundamental", "subjective" or even a "simple" constitutional right to a decent environment. Despite the fact that it uses the word "right", that wording has to be put in the context of the internal system of the Constitution. It results from it, at first sight, that environmental protection is only a "guiding principle" that shapes public policies in the social and economic fields.

    However, it can also be said that environmental protection, without being a genuine constitutional fundamental right is something more than just a simple "guiding principle". On the one hand, the Constitutional Court, in some obiter dicta, has recognised that the principle dealt with by article 45 has a genuine, specific force, very close to the substance of a "right" having some kind of constitutional relevance. On the other hand, modern environmental legislation regularly gives wide participation and litigation standing to groups and individuals. Finally, courts are obliged to follow article 53 of the constitution and, accordingly, must solve standing problems on the basis of an extensive interpretation of the Law on judicial control of administrative action (article 19).

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