Argentinian Supreme Court’s Pioneering Judgement on Environmental Rights

Section 41 of the Federal Constitution of Argentina (1994) includes “the right of all inhabitants to enjoy an environment which is healthy, balanced and suitable for human development”. This right was tested and affirmed in the Mendoza case (Mendoza Beatriz Silva v. National State and others on costs and damages resulting from the environmental pollution of the Matanza-Riachuelo river basin).

Section 41 of the Argentinian constitution stipulates that the Federal Government enact laws imposing certain minimum environmental standards, whilst provincial governments will enact supplemental regulations as necessary. The 2002 General Environmental Act, which sets forth minimum standards on environmental protection and the provincial development of regulations on water, air, waste, pesticides and other agrochemical products, can thus be seen as highly complementary.

There are robust elements in the wording of the environmental provision in the Constitution that have had a measurable impact on the judiciary and on environmental legislation at both national and provincial levels in Argentina. There are also strong elements to the design of the Supreme Court’s decision, which make this an exemplary political and legal precedent. These include good coordination across different levels of government, taking a long-term approach that initiated with collecting the necessary data to get a clear picture of the situation, a strong focus on preventing future damage and harm, a commitment to set up a monitoring system, and ensuring the provision of adequate budget allocations.

It is also highly innovative in its holistic approach to an environmental problem by additionally addressing social and health issues (access to drinking water and sewage, relocation of badly affected populations, primary health care provision) in a comprehensive set of actions.

While there is still much more to do to restore one of the most heavily polluted urban areas in Latin America, the implementation and impacts in terms of environmental restoration, improvements in quality of life, access to health care, sanitation and justice, participation and governance are significant.

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   Sustainable use of natural resources

• Section 41 of the Constitution enshrines the right to an environment which is healthy and balanced, and the duty to preserve it for future generations.
• The authorities must provide for the protection of this right, the rational use of natural resources, and the preservation of natural heritage.
• The budget secured for ACUMAR’s (Matanza–Riachuelo Basin Authority) basin clean-up was described by experts as ‘totally unprecedented internationally’ at US $762.90 million (2015).

• The budget has increased year on year. Contributions come from the National Government (86.3%), the Province of Buenos Aires (6.8%); the Autonomous City of Buenos Aires (6.3%), ACUMAR’s own resources (0.7%), and international donors.

   Equity and poverty eradication

• Section 41 of the Constitution and the Supreme Court’s decision place human rights and social justice at the core of its approach, taking into account the needs of future generations.

• Certain provisions that had a direct impact on poor local residents include the introduction of mobile environmental health clinics (which undertook lead testing for children), the closure of riverside slums and relocation.

   Precautionary approach

• Section 41 of the Constitution exemplifies the precautionary approach: inhabitants have a duty to preserve the environment; industrial activities must satisfy any current needs without compromising those of future generations; natural and cultural heritage and biological diversity must be preserved; and present or potential dangerous or radioactive wastes are forbidden from entering the national territory.

• ACUMAR publishes quarterly public reports on water and air quality, and as of 2014 has provided capacity-building, and workshops on prevention and health promotion involving 5 461 people.

   Public participation, access to information and justice

• Section 41 of the Constitution specifically stipulates the requirement for environmental information and education.
• This was further cemented by the actions of the Supreme Court, which held a series of 5 public hearings to gather evidence and increase participation.

• The Supreme Court continues to hold quarterly public hearings in which it questions the federal Environment Minister and the head of the watershed authority on progress towards fulfilling the court’s order.
• Access to public information is a priority for ACUMAR, and its performance is in this regard is improving according to a civil society interviewee. It also encourages civil society to provide input via its Social Participation Committee.
• NGOs are represented on the permanent body established to assist with monitoring, enforcement and enabling citizen participation. Civil society organisations working in the Matanza-Riachuelo watershed such as FARN (Fundación Ambiente y Recursos Naturales) are represented in the Social Participation Committee (Comisión de Participación Social) which is presided over by ACUMAR, and in the Affiliate Body (Cuerpo Colegiado) which was set up by the Court.

    Good governance and human security

• A new inter-jurisdictional agency – ACUMAR – was designated as the authority in charge of executing the clean-up plan to overcome problems of inefficiency, corruption and mismanagement.
• The Supreme Court delegated the enforcement process to a federal court to ensure ongoing monitoring and local authority.
• The federal Auditor General (Auditoría General de la Nación) is in charge of the budget allocation for the implementation of the restoration plan.

• The number of environmental inspectors and enforcement officials in the region has increased from three to 250; unprecedented internationally.

   Integration and interrelationship

• Both section 41 of the Constitution and the 2008 Supreme Court decision take a comprehensive and cross-sectoral approach, aligned to the UN Committee on the Rights of the Child (UN-CRC) principles of participation, protection and provision.

• They have also both measurably improved environmental protection and social justice in the face of long-standing unsustainable development.

   Common but differentiated responsibilities

• The Court’s decision acknowledged the existence of an abuse of collective environmental rights requiring action by the authorities, leaving open the possibility of promoting the human rights issue in the execution stage.
• These remedies are intended to restore past damage as well as prevent future degradation, factoring in the ‘polluter pays’ principle when imposing obligations.

• The Supreme Court’s decision is highly innovative in its institutional context, with great precedential value.

Like many countries undertaking Constitutional reform in the latter part of the 20^th century, Argentina introduced a new section into its Constitution related to environmental rights. Section 41 of the new 1994 Constitution incorporates the ‘right of all inhabitants to enjoy an environment which is healthy, balanced and suitable for human development.’ It also sets forth the duty to preserve the environment and correct and restore to its prior condition any damage caused to it (the ‘polluter pays’ principle). It also enshrines the precautionary principle with the stipulation that ‘productive activities shall meet present needs without endangering those of future generations’. Section 41 also requires that the federal government enact laws imposing certain minimum environmental standards, whilst provincial governments (who are granted principal and absolute domain over their environment and natural resources) will enact supplemental regulations as necessary, which federal laws will not alter.

In this regard, on November 6th 2002, the National Congress passed the General Environmental Act No. 25,675 (“GEA”), which outlines a general policy and sets forth minimum standards for the protection of the environment and the implementation of sustainable development. This Act establishes environmental principles that regulate the interpretation and implementation of environmental regulations.

Most provinces have additionally enacted their own environmental protection laws, which establish principles of provincial environmental policy, exercising their authority to develop regulations on water, air, waste, polychlorinated biphenyls (PCBs), pesticides and other agrochemical products. For instance, the GEA of the Province of Buenos Aires (Act No. 11,723) seeks to protect, preserve, enhance and restore natural resources and the environment in the Province of Buenos Aires.

Nature of the Case: The case was started in 2004 by Beatriz Mendoza, a health care worker living in the Matanza-Riachuelo river basin region, a poor and heavily polluted area of Buenos Aires considered one of the most contaminated urban areas in Latin America. For over 200 years, successive attempts had been made ​​to reverse the environmental degradation. Decades of fragmented local protests and ineffective government attempts to clean up the basin had resulted in little improvement, and pollution from the discharge of industrial effluents, untreated sewage and open-air waste dumps continued unabated. When her own health began to suffer, Mendoza enlisted lawyers and neighbouring residents in the Matanza-Riachuelo vicinity and filed a lawsuit (Mendoza Beatriz Silva et al vs. State of Argentina et al.) before the Supreme Court of Argentina against the national government, the Province of Buenos Aires, the City of Buenos Aires and 44 companies. The plaintiffs argued they had suffered damages due to the heavy pollution of the river basin, and asserted violations of the constitutional right to a safe and healthy environment and the right to health, water and sanitation, adequate housing, quality of life, based on the General Environment Act of the Province of Buenos Aires. They sought compensation for damages resulting from the pollution of the basin, an end to contaminating activities, and a remedy for collective environmental damage.

In 2006, the Supreme Court of Argentina ordered government and industry to provide detailed information about the state of the Matanza-Riachuelo watershed. In 2007, the court ordered the government to draft a clean-up and restoration plan. Recognising the limits of its own expertise, the court appointed leading scientists from universities to review and critique the government’s plan. The court also held a series of open hearings, where members of the public could contribute to the process.

The case was brought to seek the halting of contaminating activities, compensation for damages resulting from pollution of the Matanza-Riachuelo river basin, the restoration of past environmental damage, and the prevention of future degradation of the river system. Additionally the Court stated that the action plan’s objective should be to improve the residents’ quality of life, requiring specific health, water and sanitation programmes to be adopted to meet the needs of the basin’s population.

• Regular inspections of all polluting enterprises and implementation of wastewater treatment plans.
• Closure of all illegal dumps, redevelopment of landfills, and clean-up of the riverbanks.
• Improvement of the drinking water, sewage treatment, and storm water discharge systems in the river basin.
• Development of a regional environmental health plan, including contingencies for possible emergencies.
• Supervision, by the federal Auditor General, of the budget allocation for implementation of the restoration plan.
• Ongoing judicial monitoring of the implementation of the plan, with a federal court judge empowered to resolve any disputes related to the court’s decision.
• Notice that any violations of the timelines established by the court would result in daily fines against responsible politicians.

The Court established an action plan requiring specific measures to be fulfilled by the government agency responsible for the Matanza-Riachuelo river basin, ACUMAR – an inter-jurisdictional agency created in 2006 in response to the alarming situation of environmental degradation, whose function is to correct the issues of poor coordination among agencies and regulations, and to improve the oversight of polluting activities. It also includes a Social Participation Committee where NGOs are represented, aimed at promoting citizen participation.

In order to ensure adequate enforcement of its decision, a twofold monitoring and evaluation mechanism was set up by the Court:

• The first Federal Judge is mandated to oversee implementation based on the reports of a working group (Appellate Body, Cuerpo Colegiado), which is made up of the national Ombudsperson and five NGOs.
• A second Federal Judge is mandated to oversee budget allocations based on the reports of the National General Auditor (Auditoría General de la Nación, AGN).

The Court ordered the responsible government authorities to fulfil the objectives and schedules given in the decision. Throughout enforcement of the decision, the court in charge sought ways to single out concrete actions and expand the said objectives, and ACUMAR, through the Plan Integral de Saneamiento Ambiental (PISA) submitted in February 2010, has expanded the objectives further including detailed guidelines to be followed in management, prevention and control, aimed at reconstructing and preserving the river basin.

While there is still much more to do to restore one of the most heavily polluted urban areas in Latin America, significant on-the-ground progress has already been made in terms of environmental restoration, improvements in quality of life, access to health care, justice, participation and governance. According to ACUMAR’s 2014 impact report, progress by the end of that year included: three new water treatment plants providing clean drinking water to more than one million people; eleven new, upgraded, or expanded wastewater treatment systems serving millions of people; the creation of 211 sampling stations for monitoring water, air, and soil quality; 214 landfill sites cleaned up with an additional 37 planned for 2015; 99.5% industries inspected in the Matanza-Riachuelo hydric basin, 41% industrial establishments reconverted (with an approved reconversion plan), and 484 polluting companies closed.

These actions continue to have a positive impact on the local residents. A comprehensive EISAR (‘health evaluations in risk areas’) plan has targeted, among others, children under 6 years old (14 such operations had occurred as of December 2014). There are now 12 mobile health units, undertaking 46 operations and over 30 000 services in 2014 including testing of blood-lead levels in children. Over US $56 million has been invested in the Néstor Kirchner hospital in the river basin region, which was inaugurated in 2015 and expected to be fully functioning in 2016. Working with civil society groups, ACUMAR undertakes regular environmental education activities in schools (primary, secondary, high school and university) including on aspects of culture and equity in the basin. Nearly 18 000 families have also benefitted from the construction of new housing and relocation from some of the most heavily polluted areas.

In terms of governance and participation, some encouraging actions can also be highlighted. The Argentinian government established the watershed authority ACUMAR to implement a comprehensive action plan to coordinate and harmonise activities, and control and monitor environmental compliance. While there have been reports of mismanagement in ACUMAR and NGOs lament the pace of change there have also been some clear successes. Twelve environmental health units have been established and an inter-jurisdictional roundtable was held to review norms of water and air quality. 250 enforcement officials are now in place. ACUMAR has included the possibility of initiating proceedings online on their website, increasing to 81% the responses to requests for public information (2011-2014) and publishing responses online. The Supreme Court continues to hold quarterly public hearings in which it questions the federal Environment Minister and the head of the watershed authority on progress towards fulfilling the court’s order.

Financing is another area where our interviewees pointed to good progress. Argentina is spending over 750 million USD annually on improving the health of the river basin and surrounding communities. ACUMAR’s budget has increased from US $25 million in 2010 to $762.90 million in 2015 (2011: $387.48; 2012: $534.21; 2013: $514.90; 2014: $557.64). The commitment for 2015 is also largely from sustainable domestic sources: 85.5% from the National Government, 7.3% from the Province of Buenos Aires, 6.8% from the Autonomous City of Buenos Aires and 0.4% from ACUMAR’s own resources. In the past international donors have also played a significant role with the World Bank approving a US$2 billion financing loan for the Matanza-Riachuelo Basin Sustainable Development Project in 2009, directly triggered by the Supreme Court’s decision.

Beyond enforcement, this decision is slowly changing the way that politics is undertaken in the basin. Besides establishing ACUMAR’s authority in executing the clean-up plan, the Court’s decision opened spaces for civil society participation in policy-making and monitoring processes. An NGO working group (‘Appellate Body’) was formally involved on a permanent basis in monitoring the Supreme Court’s orders, replying to court requests and organizing meetings with grassroots organizations, serving to promote and expand citizen awareness, and to channel the concerns of the basin’s residents.

This case is considered by some – including the NGO and academic informants we interviewed – to be a potentially significant example of judicial precedence regarding the Constitutional right to a clean environment. There are a large number of innovations that our expert interviewees agreed could assist those in other countries undertaking similar environmental rights cases.

While it can take time for this type of decision to gain global awareness, a growing number of NGOs, high court judges, and legal professionals are becoming familiar with it. As the national constitutions of 149 countries now include similar references to environmental rights it is possible that more courts could uphold these rights. Already, the right to a clean environment has been the subject of judicial interpretation and enforcement in over 60 countries. It was also suggested that further recognition of the case could spur additional implementation in Argentina. NGOs like FARN that work in the basin have demanded the development of a long-term national policy, which would involve a more political commitment based on a cross-party agreement (involving the Government and the opposition) going beyond government mandates.

The research interviews conducted with experts on environmental rights highlighted that the most innovative aspect of this case was the Court’s approach to the enforcement of the ruling, and it is thus the court that is deserving of the highest praise. The key factors of success were the system of monitoring that recognised the difficulties often preventing the effective enforcement of obligations imposed on public agencies, and the coordinated inter-jurisdictional compliance mechanisms that were introduced. It is this type of alternative, creative model of court intervention that is most likely to lead to similar results in other jurisdictions in the future.

https://www.escr-net.org/docs/i/1469150

http://www.agirpourlesdesc.org/english/esc-rights-caselaw/article/supreme-court-of-argentina-uses

http://davidsuzuki.org/publications/2014/whitepapers/DSF%20White%20Paper%204.pdf

http://www.asse.org/assets/1/7/ArgentinaProfile.pdf

http://www.acumar.gov.ar/

http://farn.org.ar/