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appropriate injunctive order from the Court to eliminate it. 756 This Article
applies exclusively to “contingent” harm, that is, harm that has not yet
occurred, and it gives individuals a mechanism to prevent the harm, by
means of a suit against the party that is negligent in failing to remove the
threat. Article 2237 entitles plaintiffs to be reimbursed for the expenses
they have incurred in their preventive lawsuit under Article 2236, 757 but it
does not otherwise permit the recovery of any monetary damages.
Repeated decisions of the former Constitutional Tribunal (now the
Constitutional Court) confirm this principle in a similar context dealing with
injunctive relief (amparo): “[I]t is inappropriate to request compensation by
means of a claim for constitutional relief [amparo].” 758
5.3.2.2 Post-1990 Causes of Action
The plaintiffs cite several legal provisions that post-date TexPet’s operations in
Ecuador:
i. In 1998, Ecuador adopted a new Constitution. Articles 23 and 86, cited in
the complaint, reiterated each citizen’s right to live in a clean environment,
with the State having the obligation to “protect” this right. This is
equivalent to the provision in the prior Constitution, which is discussed in
the preceding section. The plaintiffs also allege that, under Chapter 5,
Title III of the 1998 Constitution, a person may file a claim for violation of
this right and may demand reparation. But this provision does not itself
create a cause of action for private parties; one must instead be provided
by law. This did not occur until the enactment of the EMA in 1999. To the
extent that the changes in the 1998 Constitution allowed an environmental
action by a private party, it would only authorize injunctive relief necessary
to “protect[]” the environment, and not the recovery of alleged damages. 759
Moreover, even if the 1998 Constitution otherwise provided a basis for the
756 Article 2236 of the Civil Code provides: “As a general rule, a ‘public action’ is granted in all
cases of contingent harm that threatens indeterminate persons because of imprudence or negligence.
However, if the harm only threatens determinate persons, only one of them may file the action.”
757 Article 2237 of the Civil Code provides: “If the public actions granted by the preceding articles
seem well founded, the plaintiff shall be compensated for all the costs of the action, and he shall be paid
for the value of the time and energy spent on them, without prejudice to the specific remuneration granted
by the law in specific cases.”
758 Judgment of the Constitutional Tribunal, Third Chamber, Mar. 18, 2003, Decision No. 0334-
2003-RA, published in Official Gazette 195, Oct. 22, 2003. Regarding this issue, an illustrative judgment
states that “popular actions, although they sort out the judicial protection of these concrete interests and
collective rights, cannot be established or exercised to obtain subjective or plural remedy of the possible
damages that may be caused to them by the action or omission of the public authority or of the
individual.” Judgment of the Council of the State, Administrative Division, Third Section, dated April 25,
2002, Filing No. 05001-23-31-000-2001-2012-01 (AP-0388) (citing Decision No. T-508 of 1992).
759 Article 91 of the 1998 Constitution references “Without prejudice to the rights of those directly
affected . . . [an individual] may file the suits provided for in the law for protection of the environment .”
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