Therefore:
The action is dismissed. Magistrates Armijo Sancho and Cruz Castro dissent, and would uphold the action in all its aspects.-
Gilbert Armijo S.
President
Ernesto Jinesta L. Fernando Cruz C.
Fernando Castillo V. Paul Rueda L.
Nancy Hernández L. Luis Fdo. Salazar A.
Exp. 14-008641
Magistrates Armijo Sancho and Cruz Castro dissent and would uphold the action in all its aspects, authored by the latter.
For the reasons we express below, we consider that this action should be upheld in all its aspects, and not dismissed, as the majority opinion does.
The amendment to Article 7, subsection A, sub-item 3 of Decreto Ejecutivo No. 36551-S-MINAET-MTSS “Reglamento sobre Emisión de Contaminantes Atmosféricos Provenientes de Calderas y Hornos de Tipo Indirecto”, by Decreto Ejecutivo 37301-S-MTS-MINAET, certainly entails a weakening of the maximum emission limits for boilers installed before March 26, 2007, to 220 mg/m3 (TPN), establishing others that are less rigorous. All in contravention of the principles of objectification of environmental law and non-regression of human rights. It is also observed that there are no studies to support the reversal of the regulation.
As this Chamber has stated regarding the principle of progressivity of human rights, it drives the progressive protection of the State, in pursuit of their development, especially economic, social, and cultural rights, whose recognition is made through international instruments and national legislation, in order to guarantee stability to the achievements made and impose rationality on the exploitation, use of natural resources, and production of goods, which must be accompanied by a certain gradualness, as it does not operate without support and logistics from the State, through resources and policies, often imposed unilaterally against the will of individuals, especially if the established measure is reasonable and proportional to the rights involved. But one of the most important elements is its gradual increase so as not to affect other individual and social rights. The principles of environmental law serve to integrate and systematize this legal branch with the other branches of Law, where, although the balance normally tilts towards gradual progress, it demands a balanced exercise guided by technical and scientific studies. The principle of non-regression of social achievements is also not absolute in this field; it has—for example—those limits, even recognized by international human rights bodies when they admit—in limited cases—the possibility that they can be modified, restricted, and even suppressed. On this point, the Inter-American Court of Human Rights, in its judgment of June 1, 2009, in the case of Acevedo et al. (“Cesantes y Jubilados de la Contraloría”) v. Peru, stated regarding the Progressive Development of economic, social, and cultural rights, that:
“… a duty—albeit conditional—of non-regressivity emerges, which should not always be understood as a prohibition on measures that restrict the exercise of a right. In this regard, the United Nations Committee on Economic, Social and Cultural Rights has indicated that ‘deliberately regressive measures in this area will require the most careful consideration and must be fully justified by reference to the totality of the rights provided for in the [International Covenant on Economic, Social and Cultural Rights] and in the context of the full use of the maximum resources available to [the State]’. Along the same lines, the Inter-American Commission has considered that to evaluate whether a regressive measure is compatible with the American Convention, one must ‘determine if it is justified by sufficiently weighty reasons’. For all the foregoing, it is possible to affirm that regressivity is justiciable when it comes to economic, social, and cultural rights.”
Applying the foregoing to this case, the sufficiently weighty reasons for the relaxation of boiler emission limits are nowhere to be found. As is rightly noted in the majority opinion, the reform indeed returns the operation of certain boilers to a previous situation (taking into account indirect-type furnaces, for the first time, by the Ministry of Health), in order not to impose a greater sacrifice on companies, due to the environmental burden generated by their productive work. Hence, to make such regression possible, it was imperative to obtain the backing of technical and scientific criteria that shield the administrative decision. However, that is precisely what we miss; we do not find technical and scientific backing. The fact that the majority opinion indicates that those criteria were produced and sufficiently demonstrated in the administration's view seems insufficient to us; the Administration should have fully justified said criteria in the decree's own statement of reasons. Which leads to the fact that in this case, an exception (relaxation of emission limits) was incurred without having a founded and duly justified technical criterion.
In the same vein as expressed by the Procuraduría General de la República in its report, we therefore consider that the decision to exclude boilers predating March 26, 2007, from the maximum limits for the emission of suspended particles established in Decreto Ejecutivo 36551, is inconsistent with the state duty of environmental protection and guardianship established in Article 50 of the Constitution. The modification of the regulation challenged in this unconstitutionality action decreases the level of protection and violates the principle of non-regression in environmental matters, due to a lack of technical and scientific justification to support it. The reform is clearly a worsening of the level of protection, with the additional problem that the decree lacks technical and scientific information to determine to what extent this exemption may lead to a decrease in the level of protection. Therefore, the reform introduced, adopting emission limits that worsen the levels that were in force for over four years, violates the principle of non-regression, and constitutes a disproportionate and irrational measure, where the levels of protection decrease. Thus, as there is no scientific and technical certainty that the increase in the reference oxygen levels for data reporting does not imply a greater risk to human health or the environment, this provision would be unconstitutional in light of the principle establishing the state duty of its guardianship and protection, as indicated in rulings 6322-2003 and 7294-1998 of the Sala Constitucional.
Even in his report, the Minister of Environment and Energy requested an assessment of the constitutionality of the regulation, since the technical observations noted by the Dirección de Gestión de Calidad Ambiental were not incorporated. This fact strengthens the unconstitutionality, because it reiterates the lack of technical criteria, as there is no criterion from the specialized body.
In conclusion, as there is no scientific and technical certainty that this increase in the reference oxygen levels for data reporting does not imply a greater risk to human health or the environment, this provision would be unconstitutional for infringing the right to the environment and to health, ignoring the state duty of its guardianship and protection, as indicated in rulings 6322-2003 and 7294-1998 of the Sala Constitucional.
We consider that the reform to point A.3) of Article 7 of the Reglamento sobre la Emisión de Contaminantes Atmosféricos Provenientes de Calderas y Hornos Tipo Indirecto, introduced by Decreto Ejecutivo 37301, is unconstitutional, as is the reform to point C.2) of Article 7 of Decreto Ejecutivo 36551.
Gilbert Armijo Sancho Fernando Cruz Castro
Magistrate Magistrate
EXPEDIENTE N° 14-008641-0007-CO
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