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Historic Supreme Court Ruling on Argentine River Clean Up

Controversial Decision Draws Reactions to Judicial involvement in Environmental Policy

Buenos Aires – July 15, 2008. In a case involving the cleanup of one of Latin America's most polluted urban river systems (the Riachuelo River Basin), the Argentine Supreme Court ruled last week that the Riachuelo River Basin Authority (headed by National Environment Secretary Romina Picolotti ) must work to meet three core objectives, i) improve the lives of the inhabitants of the basin, ii) repair the environmental harm caused by over a century of industrial, solid waste, and sewage pollution, and iii) prevent future damage to the basin, …. o, and by the way, the Environment Secretary, will be personally fined for non-compliance with the targets and time frame set by the Supreme Court for the multiple actors involved in the clean up plan!

The ruling is as historic as it is controversial. Jurists, government reps and environmentalists are divided on its nature, some criticizing it as being a myopic, uninformed, ignorant of governance constraints, and even legally unfounded, while others are claiming it is the best thing that could have happened to the local communities affected by over a century of contamination from irresponsible business activity.

Whichever side you fall on, it's the first time in Argentine history that the Supreme Court is engaging directly in defining public environmental policy, which has also led to criticisms that it is judicial intromission into Executive duties and responsibilities, and that the personal penalties as well as the time frame for compliance are onerous. Yet others say the intromission is the only way to ensure the long term political commitment needed to guarantee the implementation of much needed environmental policy and programs.

The environment became a national priority in Argentina , in 2006 during the buildup of an internationally touted case involving a controversial Finnish pulp mill investment on the Argentine-Uruguayan border which pitted the Finnish pulp mill company Metsa Botnia, the Argentine and Uruguayan governments, and local communities against one another. Then Argentine National Government graduated the Environment Secretariat (which was then under the Health Ministry) to ministerial level directly under Presidential supervision, tripled the budget, and assigned the task of cleaning up one of the region' s worst environmental disasters, the Riachuelo River Basin, contaminated for over 150 years, by sewage, solid waste, informal human settlements, and mostly by some 3000 companies spewing heavy metals, petrochemicals, and other toxic waste into the Riachuelo and Matanza rivers, which form the basin.

The major challenge facing the State was to cohesively bring together and coordinate the three political levels of government, which could never agree on what to do with the Riachuelo, or how to converge politically, not only on environmental policy, but on very sensitive issues such as how to hold the corporate sector to account for their contamination which could mean plant closures, fines and other corporate reprimand, decisions that most local governments critical to a successful program, refuse to take up seriously.

To resolve the quandary, Picolotti created the Riachuelo River Basin Authority , comprising representatives of each government level, and gave the National government majority-power in the decision-making over the policy that would guide the new cleanup program, effectively ending any divergence over what policy to follow. She hired and trained 120 new inspectors, buttressed local environmental municipal budgets, negotiated and aligned local political commitments, ensured that the River Basin law passed in all of the basin's jurisdictions (16), brought the international finance institutions like the World Bank and IDB aboard to secure large environmental infrastructure financing needs (like water and sanitation investments), purchased a fleet of inspection vehicles, laboratory equipment and modern technology to inspect the basin using subfluvial and aerial images and put her team to work on implementation.

The Environment Secretariat has since carried out 2600 inspections in 24 months, sanctioned violators on 479 occasions, taken 442 preventive measures, and carried out 86 temporarily or permanent facility closures to some heavy hitters such as Shell, Danone, Firestone, Petrobras and several others; also ordered the relocation of the petrochemical industry, one of the key contaminating industries in the basin. It has launched riverside cleanup programs, has started relocating residents, is working with the Health Ministry to address health needs, has started numerous public infrastructure works and has major sanitation works set to launch.

For the first time in Argentine history, the Supreme Court, the National Government, the University and ongs engage to participate in setting the priorities of the Environment policy that would guide and follow the river cleanup. The Secretary presented the clean up plan in detail to the Supreme Court judges on several occasions, walking through content and objectives. The Court bought in, and decided to push the bar even higher, calling on the National University to engage with the clean up plan Further securing commitment and control over the plan, the Court also ordered that the clean up plan's budget be monitored by the National Audit Agency, and include public participation, to be arranged through the National Ombudsman.

But last week's Supreme Court ruling, many are already saying, has set some impossible targets for the Government to uphold. Some technical aspects of the decision are also questionable from a governance standpoint. The Court ordered that the River Basin Authority “must adopt one of the internationally available systems [it is unclear to what the Court refers] to measure environmental harm within 90 days”, “establish a public information system within 30 days”, “carry out inspections in all of the businesses of the basin” [of which there are more than 3000] within 30 days. The Court orders companies contaminating the river, including: Shell, Orvol (petrochemical), Quilmes (the national beer company), Daimler Chrysler, Danone, Dow Chemical, Odfjell Tagsa, Petrobras, to present within 30 days, their own clean up plans to the River Basin Authority. The ruling also establishes that measures be in place within 6 months to end all clandestine waste dumping and illegal settlements in the basin area”, a historically endemic problem, not only in the river basin, but throughout urban communities in all of Latin America.

Besides the fact that some of these objectives are easily acceptable in theory but structurally (and in terms of governance and social engagement) extremely complex, the contentious point which has left many in awe is that all of these points, if not complied with (including those that companies must comply with), according to the Supreme Court decision, could result in fines against Picolotti. Many say the terms are unreal, the task and time frame monumental, and the fines unrealistic, but the residents of the Basin and the non-governmental groups that presented the case are extremely pleased with the verdict and hail it as a step forward in a move to revert the environmental wrongs that have taken place for over a century.

The court also established environmental policy objective requirements on the issues of: garbage sites, riverbank cleanup, expansion of freshwater provision, watershed programs, wastewater treatment, and sanitation emergencies and for each of these, holds the River Basin Authority President, liable for fines in case of non-compliance.

The court decision is also being criticized soto voce by some jurists and government officials for placing the Supreme Court in the position of policy-maker on environmental matters. The ruling also brings with it an onerous charge to the post of Environment Secretariat, which acts, according to law, as the Basin Authority President. The post, and the authority, which are central to the strategy to clean up the river, following the Court verdict, will likely not draw willing candidates for future mandates if they are to respond with their personal patrimony for non-compliance. This could be a major setback for future administrations that want to carry the river clean up plan forward to fruition.

But what is perhaps most notorious of the decision and the overall process that started with an entirely new environmental chapter for is that Environment has become a top priority for politics and governance; that policy makers, jurists, and non-governmental groups are engaged, many for the first time, in learning how to build more collective agreements on national environmental objectives and policy, and that the necessary guarantees in policy, monitoring, and compliance are beginning to appear to address some of the most pressing environmental problems faced in a region that has historically been impervious to the environmental agenda.

The judgment in the original Spanish version is attached

More Information

For more information contact:

Jorge Daniel Taillant
Center for Human Rights and Environment (CEDHA)