Environmental Protection in Spain: Rights and Duties
Constitutional Duty to Protect the Environment
One feature of the social state that accompanies the recognition of social rights is the recognition of the right itself, which implies the duty of all to endure sacrifices for the better performance of the duty. The imposition of an environmental duty to exercise the right reinforces the protection of the environment. The independent constitutional duty to regulate is more closely linked to everyone in the task of preserving the environment. With the duty of individuals joined the conservation of environmental assets, forcing them to contribute, to the extent that the legislature determines, to the ultimate goal of achieving the proper environment for personal development. Individuals are the subject of a constitutional duty, not only to omit any harmful activity of the right to enjoy the surroundings, but they are required to more fully contribute to their preservation.
While enshrining the right to “enjoy the environment suitable for the development of the individual”, Article 45.1 of the Spanish Constitution (EC) features the “duty to preserve it.” We note that, in contrast to what appears on other rights, here (Article 45) the requirement is reinforced by the duty of protecting the environment, an unnecessary repetition in principle because if there is a right, then there is a duty to protect it as protected by the Constitution. This is clear from the fact that the environment is a subjective right.
If it were not regarded as such until there is no law, then it could not be required to develop individuals (whether public authorities are obliged in any case). In this case, we see the requirement already included in the duty to preserve its own constitution by forcing everyone (Article 9 EC) and obviously even more if it is regulated by specific law.
The conclusion would be that the environment would be a duty for citizens and a clear mandate to the government.
Constitutional Court Judgments (STC):
- STC 102/1995, of 26 June: “… Is configured as a right for all to enjoy and a duty incumbent on all maintenance, plus a mandate to the government for protection.” (FJ.4)
- STC 199/1996, of 3 December: “…. And is recognized by the Constitution in article 45, which proclaims the right of everyone to enjoy an adequate environment for the development of the individual and the duty to preserve.” (FJ.2)
State Competence in Environmental Matters
The Spanish Constitution, the result of consensus under which it was prepared, does not devote specific articles to the environment in the articles on the distribution of powers. If we refer to the introduction, we highlighted that one of the essential notes of the environment was their mainstreaming, its horizontality, that is, that it affects various matters, which is applicable to both Article 148 EC and Article 149 EC. Then I will make reference to the paragraphs as integrators, from various perspectives, of the legal environment as well.
On this basis, the interpretation that has been done by the Constitutional Court in relation to this competition has proved decisive. In it, we can distinguish two phases:
Initially, the jurisprudence of the Constitutional Court allowed the State to make an extremely detailed regulation on the basis of competence in basic environmental legislation, ignoring the powers granted to the Autonomous Communities. It should be highlighted:
- SSTC 64/1982
- 69/1982
- 227/1988
- 148/1991
- 149/1991, among others.
The latter, which is the Coastal Act, expressly states that the environment in the state’s duty to leave a margin of developing autonomous legislation is lower than in other areas and therefore can not be said the unconstitutionality of the state standards, arguing that by the detail with which they are intended not allow any development.
This state of affairs will undergo a fundamental change with the STC 102/1995 of 26 June, which will mean a turning point in constitutional jurisprudence. In its FJ 8 it provides that in relation to the environment, the state’s duty to leave room for the development of basic legislation for the regional rules, yet still smaller than in other areas not reached, compared to what is stated in the STC 149/1991, of which we have to deviate at this point, so much detail that does not allow any legislative development of the autonomous communities with competence in environmental matters, and emptying them of content. This new doctrine was timidly pointed out in FJ 2 of STC 170/1989 of 19 October and subsequently consecrated by the SSTC 156/1995, 163/1995, 16/1997, 28/1997, 14/1998 and 115/1998.
But the new doctrine outlined a limit that can not ignore the basic laws that play they operate, as they come to fix the precise scope in which the Autonomous Communities may legitimately exercise its powers as canon in the constitutional control regional laws (SSTC 137/1986, 27/1987, 156/1995, 163/1995).
A second problem that emerges necessarily from the basic legislation is the concept that derives from its formal dimension. The Constitution refers to the concept of bases, basic conditions and basic rules. At this time the dispute arises: when it comes to basic legislation, can rules of regulations come into play? That question was one of the reasons that several Autonomous Communities appealed the Law 4/1989 of March 27, Conservation of Natural Areas and Wildlife. The FJ 8 of STC 102/1995 has resolved the dispute by providing that it incorporates the basic meaning of a main support base or something, with a vocation for the essence, not of the phenomenal or circumstantial.
Consequently, the basic legislation provides a broad scope for its generic formulation of an essentially regulatory nature.