368 / 432
R. EMERJ, Rio de Janeiro, v. 20, n. 79, p. 348 - 376, Maio/Agosto 2017
368
Diffuse claims differ radically from their individual counterparts. The
former pertain, indivisibly, to society and are independent of any individual
rights that citizens may hold. The latter belong to particular individuals and
involve matters that concern them personally, rather than the collectivity.
93
For example, the community may have claims to a sound environment
that transcend those of any of the members. It may, accordingly, demand
redress for the contamination of a remote, uninhabited, and inaccessible
territory. A citizen who represents the collectivity under these circumstances,
assuming a traditionally governmental function, seeks to vindicate an
entirely different kind of entitlement than when she pursues compensation
for the pollution of a piece of land that she owns.
Hence, the suitor would be hard pressed to portray, with plausibility,
the transition from a regime of private entitlements to one of diffuse
entitlements as purely procedural. In light of this difficulty, she could try
a different strategy. First, she could acknowledge that the environmental
legislation does touch upon substantive matters. Then, she could contend
that, in a deeper sense, the statute simply empowers a new class of litigants
to vindicate a long-established, formerly state-enforced entitlement and, as
such, operates mostly procedurally.
In proceeding down this path, however, the complaint starts by
conceding that the relevant provisions of the environmental law do bear
upon substance. Hence, it renders irrelevant the question whether the statute
might, from a more profound perspective, have an adjective character. After
all, the Civil Code in Ecuador denies any retroactive effect whatsoever to
substantive laws even if they partially regulate or constitute procedure.
At the end of the day, the empowerment of citizens to exercise the
diffuse entitlements, whose vindication was formerly the state’s prerogative,
would seemingly entail,
per se
, a substantive change in the law. It would
not only increase the number of potential lawsuits by a sizeable margin but
also introduce a significantly different type of plaintiff. The corresponding
incentives, requirements, and restrictions differ considerably when private
parties, as opposed to the authorities, file the action. In comparison with
the state, individuals and non-governmental entities may,
inter alia
, find
more of a motivation in the prospect of a substantial monetary reward,
need to disclose less about the suit under freedom-of-information or other
93
See generally
Ángel R. Oquendo,
Justice for All: Certifying Global Class Actions
,
W
ashington
U. G
lobal
S
tudies
L. R
ev
.
(2017) (forthcoming), IV(E)(3) (distinguishing societal from individual claims).