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SALESIAN TECHNICAL UNIVERSITY

Career: Environmental
Student: Jeniffer Cacuango Alba
Engineering
Mode: On-site Subject: Environmental legislation Level: Sixth

Period: 55 Teacher: Victoria Costa Unda Date: February 05, 2020

TITLE OF THE ESSAY:

THE STATE'S ENVIRONMENTAL POLICY
Towards the collapse of the conservation model?
INTRODUCTION
The purpose of this research work is to make known the state's environmental policies, since in
1993, on the occasion of the first Ecuadorian congress on the environment, the basis for
environmental management was established, which revolves around five strategic areas: biological
diversity, natural protected areas, forests and deforestation, coastal resources and important
ecological systems. The main characteristics of such management refer to the continuation of
existence, preservation (defence, protection), conservation (management) and research (Ministry
of Foreign Affairs). From the legal vision, environmental management corresponds mainly to the
State, as a derivation of the function it fulfills in matters of development. Environmental
management is currently understood as the set of activities aimed at managing the environment and
contributing to the establishment of a sustainable development model. The Yasuní park and the
Huao territory are inserted in this context, where in 2007, the multinational companies Andes
Petroleum, Repsol-YPF, Petrobras and Perenco, as well as the state-owned Petroecuador, operate.
However, the role of the State in the control of the conservation of biological diversity and of the
environmental management carried out by these companies has been technically evaluated by
private and governmental entities, which consider it questionable and insufficient. Our reading is
that the conservation model in Yasuni is on the verge of collapse.
First, the environmental regulations and conservation policies established by them are analyzed, in
order to highlight the legislation and policies for conservation and environmental management in
protected areas as a public objective. Then, it becomes evident how legal contradictions and
overlaps condition the conservation policies applied in Yasuní Park and the Huao territory, to the
point of generating conflicts that cannot be managed by public institutions.
DEVELOPMENT
Conservation and environmental management policies in the Yasuní Park
Management effectiveness and environmental legislation as a public objective
The Ecuadorian legal system is based on the Political Constitution of the Republic (or Fundamental
Charter), which prescribes as the primary duties of the State: to defend the environment and
promote sustainable development. Article 23, provides for the obligation to guarantee people "the
right to live in a healthy, ecologically balanced and pollution-free environment. The law shall
establish restrictions on the exercise of certain rights and freedoms in order to protect the
environment". Similarly, articles 229 and 233 determine the specific responsibility of autonomous
sectional governments, with respect to the enjoyment of legislative autonomy to issue ordinances
or for the promotion and execution of works in the environment, irrigation and management of
basins and micro-basins within their jurisdiction, among others.

In the discourse on public institutions, what the World Conservation Union (IUCN) notes is that in
order to guarantee optimal environmental management in protected areas, environmental, socio-
economic and institutional monitoring and auditing are essential components in order to provide
information, evaluate changes in them, monitor them, provide data and enable effective
conservation responses (IUCN and UNEP 2003).

In recent years, the discourse insists on the need for "evaluation of the effectiveness of protected
area management" and particularly of Yasuní Park, in order to achieve transparency, participatory
management, and a more logical basis for planning and resource allocation for management. The
4th World Parks Congress (Caracas, 1992) recommended that IUCN develop a system to monitor
the effectiveness of management in these areas. In 2000, it presented a technical and principled
framework for the realization of the purpose.

The Environmental Management Law, the Law for the Prevention and Control of Environmental
Contamination and the Environmental Regulations for Hydrocarbon Operations in Ecuador,
require the inclusion of environmental impact studies for the approval of specific industrial and
extractive projects. These studies are part of the environmental planning, allow visualizing the
possible impacts of the oil process and contain the applicable technical measures of prevention and
mitigation, including the reference of the legal norms and public institutions involved in the
compliance or control of such measures. They contain the environmental management plans, which
contain the description of the activities to be implemented in order to avoid impacts, mitigate
damages produced or restore. The relevant legislation also provides for mandatory compliance
with such instruments through the contractual mechanism, which is based on the principle that the
contract is law for the parties, contained in Article 1561 of the Civil Code.

The effectiveness of the environmental impact study implies two factors: the opportunity of its
realization and its applicability. The latter refers to the implementation of the environmental
management plan, accompanied by adequate monitoring, technical management procedures, a
legal framework establishing the mandatory application of the plan and providing for sanctions in
case of non-compliance. The environmental regulation is the main technical-legal instrument for
this purpose. From the above, it can be deduced that Ecuador has a legal environmental regulation
that governs oil extraction processes, in protected areas or outside them. Consequently, the public
environmental discourse appears to be in agreement with the constitutional precepts and
international environmental agreements signed by the State.
Conservation and environmental management policies in protected areas
In the 1970s the State already had an incipient conservationist and environmental management
policy. Later on, it abandons the emphasis on health and takes on the notion of ecodevelopment at
the end of the 1980s. Since the Rio de Janeiro Conference in 1992, it has initiated a process of
political and legal reforms that reached its highest level with the constitutional reform in 1998.
Article 86 of the Fundamental Charter prescribes that the State shall protect the right of the
population to live in a healthy and ecologically balanced environment, which guarantees
sustainable development.

Biological diversity is assumed to be a strategic resource of the country, to improve the quality of
life of the population and to enhance the associated social, cultural and economic benefits. In the
same way, it is established that the development of the national system of in situ conservation of
biodiversity will include: species, native varieties and genetic resources in general, and the
incorporation of conservation and sustainable management of biodiversity in national, regional and
local planning is declared a priority.

The policy of conservation and environmental management has been evolving at the same time as
the regulations on which it is built, therefore, from the discourse of institutionality, the State has
acted with a certain level of legal-political and programmatic coherence. What we need to do now
is to explain the antagonism between the institutional environmental discourse described above and
the concrete reality, characterized by the legal inconsistency of environmental regulations, the
crisis of the conservation model in Yasuní Park, and the violence that persists within the Huao
people as a result of these processes, which are mostly aggravated by the centralization of control
responsibilities regarding extractive activities in protected areas by the Ministry of the Environment
of Ecuador.

This situation is aggravated by the fact that the Ministry of the Environment acts subordinated to
public institutions of oil operational control with greater political weight, as is the case with the
Ministry of Energy and Mines. The latter directly executes environmental control activities,
through the Undersecretariat of Environmental Protection and the National Directorate of
Environmental Protection (DINAPA), citing reasons of a sectoral nature. The institutional
weakness of the Ministry of the Environment does not allow it to make the control by itself and
neither to submit to its political jurisdiction the sectorial character of the Ministry of Energy and
Mines.

Finally, the criterion that environmental law for conservation and management becomes unviable,
lies in the diffuse and contradictory character of the one it suffers, as illustrated in the following
section.

Contradictory conservation policies and environmental legislation

The lands that are part of the national system of protected areas are national "patrimony" and part
of the domain over which the Ministry of the Environment has the final decision-making power.
Here there is a fundamental problem for indigenous communities interested in maintaining
possession of their ancestral territories and strengthening their autonomy and freedom of self-
determination. For example, current laws do not fully express the "pluricultural" reality of Ecuador,
nor do they comprehensively assume the significant advances in international human rights and
environmental law, most visible over the last two decades - including the final declaration of the
1992 Rio Summit, the Convention on Biological Diversity and Convention 169 of the International
Labor Organization (ILO). From this perspective, it is not socially, politically or legally acceptable
to create protected areas without the active participation of local communities; Ecuadorian
environmental legislation should reflect this reality.

The Ecuadorian political structure lacks the capacity and incentives to generate opportunities for
citizen participation in the development of environmental legislation and the definition of "public
interest". The legal deficiency of the protected area system is due in large part to these factors that
minimize local contributions. The state has the authority to establish protected areas in the name
of the "public interest", however, state activities in this regard are not consistent with international
human rights standards, and require a clear and participatory process that takes into account various
factors. These include whether the proposed activity will achieve the specified objectives and what
its impact will be, and how it affects the rights of indigenous peoples and other local communities.

In November 2006, the Ministry of the Environment received from Ecolex, the draft regulation to
the Environmental Management Law on citizen participation and prior consultation, and this legal
instrument regulates this activity. In practice, however, Ministry of Environment authorities and
environmental lawyers agree that there are few real opportunities for local participation in the
development of environmental laws, as well as in the identification of the "public interest" in
environmental issues. In this sense for Metz (2006: 48), as long as the political participation of
indigenous communities is underrepresented, alternative spaces for local input and decision
making are even more important for the identification of a public interest that is truly national in
nature.

Contradictions in the law lead to its non-observance and render it ineffective. For example, Article
6 of the Environmental Management Law, which authorizes oil exploitation in protected areas,
states
"The rational use of non-renewable natural resources in accordance with national interests within
the heritage of the State's protected natural areas and in fragile ecosystems, shall take place by
exception after an economic feasibility study and environmental impact assessment. ”

On the other hand, between the Ministry of the Environment and the Ministry of Energy and Mines
there is an overlap of functions and competencies in the area of approval of the environmental
impact study, control of environmental management and extension of the environmental license.
Due to its political importance, the Ministry of Energy and Mines has a higher hierarchy and
subordinates the decisions of the Ministry of Environment in this matter. This gives grounds for
the Ministry of Energy and Mines to approve an extractive project over what the Ministry of
Environment has decided, although the approval of the environmental license for any project in
protected areas ultimately depends on the Ministry. Moreover, the Ministry of Energy and Mines
is the governing body of oil policy and prioritizes its institutional objectives such as promoting
hydrocarbon exploitation. Under these conditions, it is an operative and at the same time control
body of the state and private environmental business management, which does not leave it an
adequate margin of autonomy to guarantee transparency and efficiency in its control activities and
sanctioning decisions.
From this perspective, the environmental impact study becomes an irrelevant formality for the
approval of projects and the obtaining of environmental licenses. It is impossible to explain how
the extractive frontier in Yasuní Park and the Huao territory has expanded to the current level of
irreversible negative impacts that constitute crimes, such as crimes against humanity, in the case
of the violent deaths of groups of people from the Tagaeri and Taromenane as a result of increased
oil and timber extraction activities in their habitat.

CONCLUSIONS
It concludes by saying that Ecuador must have a concrete and real strategic planning model for each of its
natural resources that guarantees their adequate exploitation and thus ensures a natural environment in
optimal conditions for present and future generations.
The decentralized environmental management, both municipal and provincial, at the level of the GADs,
presents alarming deficiencies, since there is no specialized technical personnel nor the pertinent initiatives
to protect the environment, although both the State and the decentralized governments issue laws, decrees
or ordinances, sign regional and global agreements in favor of nature, and there are institutional deficiencies
in environmental control and management.
The State is in charge of dictating policies that guarantee the rights of nature which have been contemplated
in the Constitution, as well as the development of a harmonious relationship between the State, society, the
market and nature, considering that the purpose of political, economic and social activities is the human
being.

BIBLIOGRAPHY:
Narvaez, I. (August 2016). "The State's Environmental Policy". Retrieved from:

https:/..../flacsoandes.edu.ec/web/imagesFTP/8709.03._Capitulo_1_La_politica_ambiental_del_E

cuador pdf