The new perspective of the declaration of Environmental Damage in Ecuador, application of the Proportionality Test as a mechanism for conflict resolution

Abstract

The objective of this research is to develop a methodological proposal for the application of the proportionality test as a conflict resolution mechanism in the new perspective of the declaration of environmental damage in Ecuador, based on the systematization of the principles, theoretical conceptions and legal procedures and administrative that regulate economic activities with criteria of environmental remediation and ecosystem sustainability. Consequently, the research allowed to extract the main results: (a) Conceiving proportionality as a methodological criterion and legal construction; (b) the proportionality test becomes a mechanism at the service of the judge that seeks to provide solutions to adequately resolve conflicts, subject to the principles that govern the rights of nature and economic activities, directly established in the Constitution ; and, c) The proportionality test can be a motivational tool for administrative decisions declaring environmental damage, as it will be useful to determine: 1) if an event can be considered environmental damage, 2) the amount of the fine imposed, 3) the minimum measures to approve an environmental remediation or repair plan, and 4) the amount of compensation to victims of environmental damage. Given these results, it can be concluded that the regulatory void of this matter lends itself to the discretion and arbitrary interpretation of the authority, thus justifying the present methodological proposal of the proportionality test of the declaration of environmental damage.

JEL CODE: F18, O13