Constitutional Court of Ecuador upholds as constitutional a decree developing the principles of protection and conservation of the Iberian Wolf.
The 83/2022 ruling, known as the Portuguese Iberian Wolf ruling, marked a significant milestone in the protection of wildlife on the Iberian Peninsula. Issued by the Constitutional Court of Portugal, the judgment established stricter conservation measures for the Iberian wolf, an emblematic species threatened by decades of persecution and habitat loss. This ruling recognized the ecological and cultural importance of the wolf, ordering the review of management plans and the implementation of more effective protection measures. Additionally, it set a crucial legal precedent by considering the intrinsic value of nature and the need to balance human development with biodiversity conservation through the protection of the right to a healthy environment (R2HE).
Law 90/88 of August 13 was passed in 1988 and established the legal system for the protection of the threatened Iberian wolf, laying down “the bases for the protection, conservation, and promotion” of the wolf. Decree-Law no. 54/2016 of August 25 was passed to amend and further develop the principles of protection and conservation of the wolf. The Decree imposed on the State the obligation to review and compensate the public for damage caused by the wolf’s attacks on livestock, assigning this responsibility to the Ministries of the Environment and Agriculture, Forestry, and Rural Development.
The Attorney General asked the Constitutional Court to declare Decree-Law no. 54/2016 and any related decrees unconstitutional. The Attorney General specifically claimed that the restrictive nature of the compensation scheme for wolf attacks on livestock kept the State from fulfilling its duty to fully compensate those harmed by the wolf’s actions. In addition, the Attorney General argued, the decree bestowed the government ministries competences – namely the determination of the framework for access to compensation and its amount – reserved for the legislature. The decree therefore violated citizens’ constitutional guarantees of the democratic rule of law, equality before public burdens, proportionality, the responsibility of public entities, private property and fair compensation in the event of intentional deprivation.
Largely based upon the State’s constitutional duty to fulfill R2HE, the Court disagreed. It therefore upheld Decree-Law no. 54/2016 and other related statutes.
The Court dismissed the Attorney General’s arguments by undermining his primary argument that the restrictive nature of the payment framework – with strict requirements for compensation, capped compensation amounts and progressive payment reductions over time – amounted to “sacrificial expropriation” of the right to property of citizens, deserving full “expropriation compensation.” To do this, the Court relied on the R2HE and held that the decree had a valid constitutional purpose.
The Court first established that “although, of course, the Constitution does not specify the particular situation of the wolf or the ban on its slaughter, it does provide for the right to a healthy environment,” placing the protection of nature and the environment as one of the fundamental tasks of the State. The Court emphasized the dual nature of the R2HE – enshrined in Article 66(1) – as both a right and a duty, and explained that the duty dimension of the R2HE encompassed the promotion of a balanced, harmonious and sustainable relationship between the human species and its environment. The conservation of nature mandated by the R2HE would therefore be endangered by a decline in biodiversity.
In light of this, the Court first cleared any questions regarding the ban on the killing of the Iberian Wolf, claiming that the ban was necessary for the State to meet its constitutional obligations. And because there was no recognized “right to kill” the Iberian wolf, the Court concluded, this activity could not operate as a counter-value to environmental protection. Having established its duty to protect the wolf, the Court moved on to address the adequacy of Decree-Law 54/2016 for these purposes.
The Court first clarified that Decree-Law no. 54/2016 framed the compensation framework in question as one of state aid – meaning that it could be reasonably limited – as opposed to one of “compensation for expropriation.” The Court held that this was the correct framing of the compensation framework for a number of reasons. First, the lack of a direct link between the State’s action (i.e. the prohibition of harm to the wolf) and the damage (i.e. the damage caused by wolf attacks) meant that the effects of Decree-Law no. 54/2016 could not be interpreted as a State taking of private property, and therefore payment for livestock loss did not need to meet the constitutional requirements for “compensation for expropriation.” Second, the damage caused by the wolf also did not meet the definition of an “abnormal damages,” also required for “compensation for expropriation.” This is because the killing of livestock by the wolf was a “normal risk (albeit undesirable, from the producer’s perspective) that is imposed on any activity that takes place in close proximity to the natural world: the risk that the course of nature itself, with the dynamic relationships that characterize it, which are fundamentally predictable (for example, it is foreseeable that wolves, roaming in their natural habitat, will encounter and attack cattle, goats and sheep), will interfere with the organization and economic exploitation.” This inherent risk of the profession also annulled plaintiff’s secondary claims regarding the principle of equality of citizens in the distribution of public burdens. In other words, it is the protection of the R2HE and not compensation for livestock that is constitutionally demanded of the State.
Further, the Court explained that restrictive nature of Decree-Law 54/2016 was meant to encourage producers to protect their livestock as effectively as possible, discouraging the killing of the wolf for self-protection or monetary gain by not protecting livestock. Since the purpose of the decree was to ensure the protection of a species that was demonstrably endangered and persecuted despite over thirty years of legal domestic and international efforts, the Court deemed the decree to possess a clear constitutional basis and therefore to be legitimate. In other words, the decree was in accordance with the R2HE.
Aside from this, given data proving the wolf’s relatively insignificant harm to livestock and to the farming economy, the non-severe nature of the damage would also keep the harm from meeting the severity of “sacrificial expropriation,” therefore nullifying the need to protect economic and property rights over the protection of animals and/or land.
The Court explained that since the payment framework of Decree-Law no. 54/2016 did not qualify as “compensation”, the legislator was “faced with a wide margin of freedom when it comes to configuring the compensation mechanism in question, without affecting the state’s constitutionally-provided compensation function […].” In other words, because the domestic compensation scheme and other domestic law did not apply to Decree-Law no. 54/2016, it was proper for the drafters of the decree to mold the payment framework according to international and regional law. This was not an arbitrary measure, as it served to avoid a possible breach of international and regional that bound Portugal, particularly the Treaty on the Functioning of the European Union (TFEU) and various EU Directives, Regulations and Resolutions.
More generally, the Court also emphasized that the protection of biological diversity has long been a concern in the international community, and that several legal instruments bound the Portuguese state to protect vulnerable or endangered species. These included the United Nations Convention on Biological Diversity and the Convention on the Protection of Wildlife and the Natural Environment in Europe – that provide general and specific measures for the conservation and sustainable use of biodiversity. It particularly highlighted provisions that obliges states to adopt, as far as possible and as appropriate, economically and socially sound measures that act as incentives for the conservation and sustainable use of the components of biological diversity. The Court also highlighted the Court of Justice of the European Union’s rulings highlighting the need for states to implement a comprehensive system composed of normative measures of a general scope and concrete measures of a specific scope that can effectively prevent illegal capture and killing.
With its duty to protect the R2HE in mind, the Court also held that there was “nothing arbitrary, unreasonable or simply disproportionate about the limit in question, which was based on the need to ensure uniformity […] and to guarantee some legal certainty for the state, which is burdened with the payments, so that it can foresee, prepare and execute them rationally.” In other words, the limitation of compensation also served to ensure that the State could fulfill its due diligence duty of implementing the payments.
Moreover, the Court held logical the fact that under Decree-Law no. 54/2016, the determination of certain aspects of the payment framework were delegated to government ministries responsible for nature conservation and agriculture. This made sense, the Court opined, as such issues were highly technical and in constant flux, therefore better belonging to specialized ministries.
In applying the principle of equality of citizens in the distribution of public burdens, the Court pointed to the shared responsibility that the State and its citizens held should a wolf attack take place. It particularly held that the principle of the self-responsibility of livestock producers does not cease to apply in case of a wolf attack. It concluded that “it cannot therefore be considered unreasonable, it concluded, to determine that part of the costs incurred by producers as a result of wolf attacks should be borne by the producers themselves. It corresponds to a sharing of costs and a limit to their socialization.” Consequently, at the end of the day, “it is still primarily the responsibility of livestock producers to protect their property.”
At the international level, it is important to note that of Decree-Law no. 54/2016 emphasizes Portugal’s heightened responsibility to the international community. This was due to the fact that, unlike what had taken place in other European countries, Portugal’s protection of the wolf means that it had never disappeared from its national territory. The Court continued, “this circumstance confers upon the country an added responsibility, particularly in the context of the European Union, until a favorable conservation status is achieved, which depends on the coexistence between human activities and the presence of the wolf.”
The R2HE, as a right that safeguards both ecocentric and anthropocentric interests, can serve as a tool to reconcile the needs of both human communities and biodiversity.
