Policy Innovations Digital Magazine (2006-2016): Briefings: Laws Gone Wild in Ecuador

Ecuador's citizens voted recently in support of a new constitution, the nation's 20th since independence in 1860. Approved by roughly two-thirds of voters, the new document significantly expands social rights. Ecuador now boasts free universal health care, free education up to university level, and legalized same-sex civil unions.

The constitution also grants nature the inalienable right "to exist, flourish, and evolve," giving the Ecuadoran government and its citizens the "duty and right" to file lawsuits for any damage done to ecosystems and natural communities. Wild law, as it's sometimes called, has been enforced by a handful of municipalities in the United States to restrict corporate license to pollute. Ecuador is the first country to pass such a law, which expands the mandate of environmental protection beyond personal injury.

For resource-rich Ecuador, the difficulty of winning a case under the old legal system is all too familiar.

Indigenous groups living near the Colombia border are battling a 15-year-long case over environmental damages allegedly caused by the U.S. oil company Texaco. Texaco was accused of dumping up to 16 million gallons of toxic waste in the Amazon rain forest. A series of health studies found that the rate of cancer is 150 percent higher in oil drilling locations and that child leukemia is three times more prevalent there than in other parts of the country.

Chevron, which bought Texaco in 2001, claims the lawsuit lacks credible scientific evidence. The company attributes the high cancer rates to poverty and other problems in the community and blames environmental destruction on the state-run oil company, Petroecuador. Texaco operated in partnership with Petroecuador until 1992.

Opposition to resource exploitation is common in Ecuador, and mining policy was also amended in the new constitution to enforce stricter environmental controls and require mining companies to consult affected indigenous groups before launching projects.

Some of these environmental regulations may be seen as part of a broader move by Ecuador's President Rafael Correa to gain more state control over the economy. The country is facing lawsuits by foreign investors over a contract dispute with Occidental Petroleum and a windfall profits tax imposed last year.

Concerns have been raised that imposing strict regulations on corporations will negatively affect foreign direct investment (FDI) in Ecuador. A study by Tufts University's Working Group on Development and the Environment in the Americas, however, found that FDI alone didn't sustain economic growth in any Latin American countries. The paper recommends that FDI instead be worked into part of a "comprehensive development strategy aimed at raising the standards of living of the nation's population with minimal damage to the environment."

Ecuador's various indigenous groups, which together make up over 40 percent of the population, are the country's poorest inhabitants. According to the World Bank, 87 percent of indigenous Ecuadoreans live in poverty. Many receive little to no education and are disproportionately affected by child malnutrition.

Politically speaking, Ecuador's indigenous population has gained power in recent decades, securing representation in local and national government and pressuring the country to redefine itself as multiethnic in the 1998 constitution. Indigenous groups also played a large role in ousting two presidents since 2000. Backed by international organizations, various indigenous groups protested a pipeline project led by U.S.-based Occidental Petroleum, as well as Brazilian oil development in the rain forests of Yasuni National Park.

Despite the success of the new constitution, some in the indigenous community are skeptical of Correa. The Confederation of Ecuadorian Indigenous Nationals (CONAIE), Ecuador's main group of indigenous political and social organizations, split with the president in May on the grounds that the new mining regulation fell short of their demand to be given veto power over projects affecting their land. The group is skeptical of his commitment to a plurinational state, which would expand indigenous capacity to shape development policies.

The new constitution allows Correa to run for two more consecutive terms in office, and overhaul Ecuador's legislative and judicial systems. Correa says the new presidential powers will allow him to weed out a corrupt political class and institute rapid change toward a more equitable and just society.

Voters decided to give the constitution a chance to bring about the changes promised by Correa. For the president himself to lead those changes, he'll first have to win next year's election.

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