14 October 2022

The Mar Menor Lagoon Enjoys Legal Standing: and now, what?

On 30th September, the Spanish Parliament has completed the ‘Mar Menor Act’ (ley 19/2022, of 30 September), granting legal personality to the lagoon of the Mar Menor and its basin. It is the first legal text in Europe which gives rights and legal standing to a natural body. Notably, the process was initiated by a public campaign triggering the legislative procedure. As legal scholars, we fear that this move, although it constitutes a strong expression of ecological awareness, will not solve the lagoon’s serious environmental deterioration.

Decades of Foreseeable Deterioration

The Mar Menor lagoon is located in Murcia in Southeastern Spain. It is the largest permanent saltwater lagoon in Europe, a unique natural enclave of great ecological value. Years before, it was characterised as a paradisiacal destination, surrounded by nature, indigenous species and crystal-clear waters that created a very unique ecosystem. However, the current situation reflects an increasingly alarming reality that requires urgent action to overcome this permanent environmental crisis.

The ecosystem has long suffered from deterioration. In particular, the eutrophication of its waters has been a problem, resulting in episodes of anoxia. Continuous political errors and flagrant breaches of environmental law are made responsible for this catastrophic result, multiplying popular expressions of distrust in our legal-political system. Facing these events, environmental lawyers have long reported many of these political and legal blunders that have caused this disastrous result.

The first historical reference to this foreseeable degradation is to be found in the Proposition of a Declaration of the Mar Menor and its Riverbanks as a Natural Park, presented for debate in the Plenary of the House of Deputies by the Socialist Parliamentary Group of Spanish Congress already in October 19th 1979. This initiative was rejected. Fifty years later, it is amazing to hear the same arguments for and against the protection of natural sites. In recent years, social media have continuously echoed references to the alarming situation of the Mar Menor in the chronicles of environmental policy and legislation of the Region of Murcia that appear every six months in the Revista Catalana de Dret Ambiental and, among others, in the journal La Verdad (also here and here).

Intergenerational Justice and Climate Litigation

These analyses, moving far beyond the strict frame provided by our legal system, have also explored the question in its ethical background, considering the consequences to future generations. According to the principle of intergenerational justice, present generations are demanded to hand over a healthy environment to future generations. This concern for future generations, consubstantial with the very birth of environmental law as a new branch of law, has prompted civil society, as Borras Pentinat reminds us, to demand the creation of ethical tribunals to determine the causes of climate change and to judge the states and companies primarily responsible for its effects on human rights and nature. When environmental damage is also presented as an ethical problem, linked to human rights, it reinforces the scope of the right enshrined in Art. 45 of the Spanish Constitution. This right to a healthy environment should belong to each individual by the mere fact of its existence, such as the right to life, the right to health or personal integrity, both to present but also to future generations.

It should be noted that this trend that recognizes rights to future generations, well rooted in our legal tradition, encounters little opposition from traditional lawyers. The theory, based on the principle of Intergenerational Justice, is enshrined in the genesis of environmental law and finds its roots in fundamental rights as they are recognised in most international legal instruments, serving lately as an argument to justify the responsibility of states for not adopting sufficient measures to curb climate change and encounter environmental damages.

This phenomenon of climate litigation, throughout the world, and recently in Europe and Spain, is demonstrating the strength of the courts when it comes to accepting innovative proposals that support and reinforce public diligence as a parameter of responsibility, without the need for these rights of future generations to be expressly recognised in the rules, beyond the principles of justice and intergenerational solidarity. Finally, these theories, which have already taken root in law, avoid the risk of anthropocentrism being replaced by “anthropomorphism”, which implies the projection of human characteristics on other non-human beings. Moreover, in the words of Peter Singer, given the urgency of the global ecological crisis, it is vital to find synergies to maximize the possibilities of reform because “ethical theories must be capable of being implemented in the real world”.

These proposals try to face the present “crisis of environmental law”, which has multiple causes: its lack of application, its lack of effectiveness, its reduction to a set of formal procedures, its lack of crystallization in the social conscience, the regressions in its standard of protection… all these facts are forcing us to rethink many of the foundations and legal tools offered by present environmental law.

Recognising Nature’s Rights: Yeas and Nays

There are other tendencies that try to solve the aforementioned crisis of Environmental Law, taking the recognition of legal status to natural entities a possible way to move ahead. This is the way taken in the Mar Menor drama as the Recognition of the legal personality and rights of the Mar Menor and its Basin Act establishes.

This trend, inspired by iusphilosophical Ecological Justice, occupies lawyers all over the world and finds its rationale in the intrinsic value of nature and in the principle of equality, attempting to transcend the paradigm of human rights as a conception inspired by an anthropocentric vision of “old” environmental law. In general terms, the recognition of rights to nature is based on three ideas that are identified with the aforementioned criticism of anthropocentrism, of property rights and of unlimited economic growth, and proposes, as opposed to this paradigm, an ecocentric perspective that prioritises the intrinsic value of nature and the limitations imposed by the capacity of the Environment to satisfy present and future needs, which are erected as a moral duty (Vicente Giménez/Salazar Ortuño). Trying to evaluate this point of view, Belloso suggests that “the attribution of rights to non-human realities must be placed in the appropriate context (cultural and philosophical) to understand in due measure the reason for certain legislations, constitutional designs, judicial decisions and doctrinal constructions”. And he adds that in the face of an inflation of rights holders, to the detriment of human rights themselves … “it is not so much a question of recognizing them as subjects of rights but of taking advantage of such legal fictions to provide them with full and effective protection. In any case, a strategy that moves from the moral to the juridical plane, and that protects nature and the ecological sphere in general, is imperative and urgent, so as to facilitate the adequate coexistence of human beings with all other living beings on Earth. Ecology, as the interaction of mankind with the planet Earth, is part of a whole, and makes it necessary for the law to adopt this approach” (Belloso Martín).

In our view, environmental law, by the very nature of its object, must be dynamic and adapt to new realities. All theories, reflections, research results and new proposals that seek to explore new ways need to be welcomed. Having said that, these proposals should not mean abandoning the multiple instruments already designed in our environmental regulations that are waiting for the opportunity to demonstrate their effectiveness. Nor it should mean disdaining the environmental acquis already achieved, selling new merchandise, which can entail serious risks and negative results if all its consequences are not properly weighed (Álvarez Carreño). Specifically, proposals that give legal personality to elements of nature are flourishing in some legal systems. However attractive it may seem at a first glance, and without despising the sentimental adhesion of broad layers of society to it, “it engenders the serious inconvenience of patrimonializing nature, covering legal businesses that, outside the scope of public authorities, imply at the end the definitive loss of collective control of the actions that affect our environment”. Prieur, a French scholar who has paid attention to this trend recognising rights to natural entities in Latin America argues that there are already enough legal tools in the law to fix the many cases of lack of protection and non-compliance, without being forced to resort to the creation of these figures or create new instruments that may, moreover, entail dangers of regression.

The Mar Menor Regulation Is Imprecise and Incomplete

In the particular case of the Mar Menor, the environmental catastrophe caused by decades of obvious political neglect has been denounced in multiples forums and has finally managed to mobilise the public, in need of solutions, generating the ideal breeding ground for hopes to be deposited in innovative formulas that allow us to get out of inaction and passivity in the face of the harsh reality of a dying sea.

In this context, where mistrust in the effectiveness of the set of instruments in force in our constitutional system for the protection of nature is mixed with the belief in new philosophical paradigms carrying messages of hope, the Plenary of the Congress of Deputies (Congreso de los Diputados) approved on Tuesday, April 5, 2022, with the votes in favour of all political parties except the far-right Vox, the taking into consideration of the Popular Legislative Initiative (I.L.P. in its Spanish acronym) to recognise the legal personality of the “Mar Menor” lagoon and its basin, which finally crystallised in the Act 19/2022, of September the 30th. The Act codifies the lagoon’s right “to exist as an ecosystem and to evolve naturally” and recognises its right to protection, conservation and restoration. The law provides in its Art. 3 the creation of three new bodies: a Committee of Representatives, a Monitoring Commission and a Scientific Committee, which among the three make up the so-called “mentorship” of the Mar Menor. The legal powers of each of these bodies are not clearly defined in the Act beyond monitoring the lagoon and making recommendations to the competent public authorities.

It is an unprecedented legislative text in Europe with strong public support, which promises to place the protection of the Mar Menor at the forefront of comparative law, bypassing the reasoned proposals that have emerged from environmental doctrine for years and that is aligned exclusively with the movement fighting for the recognition of rights to nature.

Without ignoring the value of the contributions that have arisen in the genesis and processing of the popular initiative, which have managed to put the pitiful situation of the Mar Menor lagoon on the national agenda, in our opinion, and following Prieur, we believe that it was enough, if the current environmental legal system was effectively applied from now on. Moreover, it is not only the inaction of the responsible public authorities, but also the weak political and social conscience that is to blame for the development of uncontrolled activities, such as irrigated agriculture, disregarding their harmful effects in the long term.

From our point of view, the imprecise and incomplete regulation provided by the Act of 2022 will not advance an effective conservation and restoration of the Mar Menor. A detailed analysis of its wording supports our current critical opinion, as it incurs in serious errors that imply ignorance of the constitution itself and EU Law. The recognition of legal standing of the Lagoon and its watershed does not contain, by itself, any guarantee of the effectiveness of environmental law. In fact, many technical-legal deficiencies which were already detected in the initial version of the Popular Legislative Initiative are maintained, such as the lack of coordination with other rules also applying to the Mar Menor, including European regulations. Moreover, for the Mar Menor Act to be applied it would have been also due to design the powers of the new bodies it creates in accordance with the powers already exercised by other public administrations, which are also endowed with rights and duties, in accordance with the Constitution, the Statutes of Autonomy, the basic legislation on local government and the Water and Coastal Acts, among others.

Will the Far-right Benefit from the Sloppy Work?

This lack of good legal technique in the making of the Act could have been improved, as we have advised elsewhere (Álvarez Carreño/Soro Mateo) during parliamentary debate. Unfortunately, we fear that in its present wording, an eventual appeal before the Constitutional Court will be successful which could frustrate the new strong ecological awareness of the people. The far-right political voices, in turn, will see their dreams confirmed.

It seems to us that it would have implied a really step onward if the popular action in environmental and climate issues had been generalised as a guarantee of effective public participation against the inaction of the public authorities in the face of climate and environmental risks. With only this technical change of procedural rules, citizens would have seen that they have won a truly powerful tool to achieve the effective protection and conservation of threatened biodiversity and to restore the broken environmental legality.

SUGGESTED CITATION  Soro Mateo, Blanca; Álvarez, Santiago: The Mar Menor Lagoon Enjoys Legal Standing: and now, what?, VerfBlog, 2022/10/14, https://verfassungsblog.de/the-mar-menor-lagoon-in-spain-enjoys-legal-standing-and-now-what/, DOI: 10.17176/20221014-230645-0.