By Víctor L. Bacchetta
With a legal questioning of the conduct followed by the Uruguayan government with respect to the investment proposal and mining project of Zamin Ferrous, the prosecutor Enrique Viana presented before the Justice a request for urgent information to the Executive Power -preparation of possible actions in defense of the environment environment-, in order to determine the nature of the ongoing negotiations with said company.
In his brief, the Prosecutor describes the large-scale open-pit iron mine project of the company Aratirí / Zamin Ferrous (1), affecting an area of about 150,000 hectares in the center of the country, with a 230-km-long mine pipeline. long, which would cross the Palmares and the Rocha Wetlands, to a port on the oceanic coast, and its foreseeable and unpredictable environmental impacts, to later question, from the legal angle, the government's negotiations with the mining company.
The action was initiated on March 15 last before the First Law Court. Instance, where Enrique Viana, on behalf of the 3rd Civil Prosecutor's Office, requested that the ministries of Housing, Land Management and Environment, of Economy and Finance, of Industry, Energy and Mining, of Livestock, Agriculture and Fisheries be intimidated, of Transportation and Public Works and the Interior to report on the facts denounced in the written submission within ten days.
Predictable and unpredictable impacts
The Prosecutor maintains that "all these activities will involve significant foreseeable and unpredictable negative environmental impacts" and points out that already in the current prospecting and exploration activities in the Valentines region, where state environmental control has been absent, considerable damage has been recorded. Among the impacts that the exploitation will determine, Viana lists the following:
a) the extraction of non-renewable natural resources, and in addition to the raw material itself;
b) the irreparable and long-term devastation of large areas of the national territory dedicated to agricultural production, the removal of the soil, exposing large quantities of sterile material, various alterations of the terrestrial morphology, the formation of tailings ponds and huge dumps also with the occupation and consequent disabling of vast territories, erosion, the drop in the water table, subsidence, floods, formation of swamps, etc .;
c) the use of fresh water without any compensation, with alteration of the water source from which it is to be extracted; modifications in the regime of surface and groundwater, through the capture and channeling of water currents, serious deterioration in the quantity and quality of surface and groundwater, with alteration of the water balance, more contamination by infiltration of tailings, drying out of the surrounding soil, the desiccation and contamination of wells and cutwaters in the surroundings and losses in neighboring agricultural and livestock yields;
d) waste of varied chemical composition, the consequent production of acids, and various effluents such as sewage, muddy and contaminated;
e) imbalances in the vegetation due to the alteration of the surface and groundwater regime, the destruction of flora and the displacement of fauna;
f) atmospheric pollution due to dust formation from blasting and from exposed material;
g) changes in the microclimate;
h) noise pollution and vibrations in general due to detonations and the use of machinery, damage to nearby homes;
i) the inevitable and radical displacement of already established productive activities, agriculture and tourism;
j) the destruction of the rural and coastal ocean environment and landscape;
k) pollution from the use of the selected energy source (coal, nuclear, etc.);
l) the destruction of the territory due to the construction of the pipeline;
m) the alteration of the structure of the coast due to the construction of the oceanic port, the risk of contamination of the Laguna Negra (fresh water reserve), affectation and contamination of beaches;
n) conflicts and environmental disorder of the territory;
o) various social impacts such as population displacement, uprooting, unemployment, misery and poverty, marginalization, prostitution, irregular settlements, etc.
"Each and every one of these circumstances should determine the rejection of the installation of the aforementioned extractive industry in the national territory. Its gross collision with the distinctive principle of Natural Uruguay and with the constitutional protection of water as an essential right for the life and natural resources. However, the opposite is happening ", affirms the Prosecutor.
Violating national sovereignty
Viana lists the various statements in which government representatives have proclaimed approval and assured the installation of the aforementioned extractive industry in the national territory. These communications also allude to the existence of a negotiation of a memorandum of understanding or investment contract, by which safeguards and privileges would be provided to Zamin, without the project having yet undergone the environmental assessments required by current regulations.
The Prosecutor adds that although it is affirmed that there is a negotiation of an investment contract, it is kept under deep secrecy, outside of all public scrutiny. "Any possibility of access to information or public participation has been omitted, which, in a premeditated way, causes uncertainty and defenselessness, contributing to a policy of fait accompli, obviously, contrary to prevention and environmental and territorial protection", it states.
For the representative of the Public Ministry, if it is confirmed that the Executive Power is negotiating an investment contract with the firm Zamin Ferrous in order to ensure the installation and operation of its extractive industry in the national territory, "it would show that it is being violated environmental public order "and, also," the concepts of Republic and National Sovereignty would be seriously shaken, with the risk that the State would cease to be independent. "
Viana then goes on to substantiate the illegality or unlawfulness of the negotiation of these contracts, for which they would violate the constitutional order.
"From the mere elevation to constitutional rank of the assessment of the general interest of the protection of the environment, a higher level of protection and an insurmountable legal standard results: an environmental public order. Any functional action that falls below the protection thresholds environmental legal, which the Nation has given itself, is reprehensible, it becomes unlawful, "says the Prosecutor.
According to Viana, the prior negotiation generates "a kind of association, not clandestine, and, for that reason, apparently legitimate, but contrary to the fundamental duty to protect the environment" between the Public Administration, which is the one who must enforce the environmental control standards, and certain industries objected precisely because of their potential for contamination.
The alleged motivation for such an association is the imperative or absolute priority to attract foreign investment as an engine to promote the economic development of a country. "The dilemma is centered - Viana says - in knowing if the invocation of that urgent necessity can abolish with validity the protection of the environment", located this in the normative vertex that supposes a Constitution and with express declaration of general interest, that is to say, of public order.
For the Prosecutor, there is no imperative need to have more empire than normative public order, there is no absolute priority greater than the general interest recognized in a Constitution. If it is done in the opposite direction, it must be deduced that this public order is being violated and that what was done in this sense is of no value. "Acting in contravention of the aforementioned provisions," he adds, "implies doing so against public order norms, that is, intangible rules of law for authorities and individuals. Such violation enables them to act, impetrating the re-conduction of unlawful behavior, by reason of of that subjective public right "
Likewise, Viana points out that "if the negotiation of the aforementioned investment contract is confirmed, the policy of fait accompli would already be triumphing over the environmental preventive principle." For the Prosecutor, the preventive environmental principle obliges the State to act under a demanding duty of security, prior to carrying out a human work that will determine certain impacts, which, in turn, may cause possible or hypothetical environmental damage, and to avoid or mitigate them.
Interview with Enrique Viana: "We have an anti-environmental jurisprudence"
Enrique Viana must be today overcoming, as a Prosecutor, the 50 cases against companies and against the Executive Power for the application of environmental legislation. The first actions were in 2001, after the revelation of lead contamination in the La Teja neighborhood of Montevideo, which still affects the child population in that area, especially the one with the greatest economic difficulties. In the judicial environment, some call him "the madman", saying that they do not understand the meaning of his demands. If we are guided by the results obtained in the courts, his management seems a resounding failure. Let's see their approaches here:
V.B. - What is the receptivity of your demands in the judicial sphere itself? Are the judges prepared for these issues?
E.V. - The receptivity of the Uruguayan Judiciary has been varied. Indeed, the country did not have experience in environmental matters. A few years ago the then Director of the Environment said that Uruguay was a deindustrialized country and that if it wanted to develop it had to give itself or accept a margin of contamination. The phenomena of forestation, cellulose, GMOs, large-scale open-pit mining, etc., were unknown until recently. I have judicially denounced, more than once, that, strictly speaking, in Uruguay we have an "anti-environmental jurisprudence", and this has caused various anger. But it is enough to verify that regarding the Argentine and Brazilian jurisprudence, to mention the closest, we are with a delay of 20 and 30 years, respectively. We may or may not like the evolution of these jurisprudence, but they have evolved and in notable attempts to better protect citizens. Consult, for example, the decisions of the Supreme Court of the Argentine Nation.
- What is your reflection on the use in the country of current environmental legislation?
- If the rigorous Uruguayan Environmental Law is not complied with and is not enforced, as I believe it is happening, we run the risk of being in the presence of what the Brazilian jurist Antonio Benjamin calls "Theatrical State"; that is, of a State that when issuing regulations becomes emboldened by creating highly demanding and protective constitutional and legislative provisions (for example, Uruguay Natural, protection of water, etc.), but which then surrenders to certain very economic interests. powerful.
- Is there a jurist or authority that has defended the legality of these investment contracts or negotiations prior to the environmental authorization?
- Yes, in Uruguay, there are those who have argued that Environmental Law is negotiable. Dr. Marcelo Cousillas from MVOTMA has been one of them. In all fairness, when I have heard people speak in that sense, this idea of "investment contracts" was not mentioned, which were only provided for by a decree of the Executive Power No. 477, of October 7, 2008. My position for years is that Environmental Law is "of public order", ergo, non-negotiable, like the concepts of Republic or National Sovereignty. The MVOTMA denies it permanently. In my opinion, it is enough to take into consideration what article 47 of the Republic says. I am supported by the vast majority of international and national doctrine by the renowned Professors Dr. Ricardo Gorosito and Arq. Pablo Ligrone, in a common doctrinal work that they published in 2009. At the time, the Minister Arq. Saúl Irureta hinted that with Botnia there had been a negotiation process, back in 2004. And currently, Arch. Jorge Rucks, Director of DINAMA, has maintained the same with respect to Montes del Plata and Aratirí.
- Do you consider that your actions will cause a change or are you not guided by the results? How would you define your role in this framework?
- Unlike what legitimately happens with a private lawyer, a Prosecutor, as happens with a Judge, should not measure his decisions by the results, but by what he believes adjusted to his legal conscience. This is called technical independence, which is not always well understood, even by ourselves. But, obviously, when one acts in defense of the general interests of the Nation or the public cause, it does so to change a reality that it considers unlawful, and if it does so, it is because it does not lose optimism that at some point our jurisprudence will change. Hopefully it is not too late, since in environmental matters the delays in reacting are fatal. There are those who define Environmental Law as a "Right to the future", not even ours, that of our children and grandchildren. It is not a cliché, let's see what sadly happens in Japan.
Victor L. Bacchetta, Uruguay
(1) See "The company behind the mining project", OCMAL, 3/5/11.