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Examining the obstacles to energy transition in Latin America
The climate crisis and its impacts on human rights require the governments of Latin America to design and implement laws, public policies, and other measures aimed at protecting the lives and integrity of their people. In the region most threatened by global warming, they must do so through mitigation, adaptation and attention to the losses and damages already caused. Given that the current energy system based on fossil fuels is the main cause of the climate crisis, as well as the inequalities that are closely linked to it, the framework for climate action in the Americas must be that of a just energy transition. The energy transition is an opportunity for the continent to abandon old energy production models characterized by large social and environmental impacts, and to move towards environmentally and climatically sustainable methods, while respecting the human rights of the communities and sectors involved. Several countries in the region are failing to integrate this perspective. The case of Colombia exemplifies a risky trend for the region—the government is currently promoting a host of climate-aggravating projects, which deepen dependence on fossil fuels, as useful to the energy transition. Such regressive measures include: the expansion of coalmines in operation or the opening of new mines under the argument that the export of the mineral will finance the transition; and the favoring of natural gas exploitation through tax benefits and the easing of environmental permitting processes, under the false premise that gas is a clean energy source. Sounding the alarm Given the worrying panorama in Colombia, AIDA will be drafting and distributing a series of Urgent Alerts that call attention to projects, public policies and regulations that hinder a just transition, and deepen dependence on fossil fuels. They will be collective alerts, ed by other international organizations that, like AIDA, seek climate justice and work in defense of environmental and human rights. Each alert will be sent to the national authorities in charge of the measure in question. Geared toward promoting reflections on how to advance in the just energy transition, each alert will include public policy and regulatory recommendations based on the State's international obligations and commitments on climate, environmental and human rights issues. In each case, the message is clear—by continuing with the promotion, extraction and use of gas and coal, the Colombian State would be failing to comply with these obligations. The first alert calls attention to the potential definitive diversion of the Bruno stream in the department of La Guajira to expand production at and revenue from El Cerrejón, the largest open-pit coal mine in Latin America and one of the ten largest in the world. The project not only implies an increase in greenhouse gas emissions—coal is responsible for 44 percent of global carbon dioxide emissions—but is also a threat to the rights to water, food security and health of the Wayuu indigenous communities that depend on the stream. A regional scope The measures adopted by the Colombian State may well reflect the situation in other countries of the region, or be replicated in them. Several alerts will refer to the exploitation of hydrocarbons through fracking, a controversial technique advancing blindly in Colombia and other Latin American countries. Another will warn of the use of hydrogen, promoted as a viable and clean energy alternative. In Colombia there is already a public policy route to advance with its implementation and two pilot projects underway. Hydrogen production results from burning coal or gas at high temperatures. Recent studies warn that this requires capturing and storing carbon dioxide, so the alternative depends on being able to store carbon indefinitely and avoid leakage into the atmosphere. In addition, hydrogen production is energy-intensive and involves the emission of gases during the heating and pressurization process, as well as the use of natural gas as fuel. As a region, we cannot afford to delay the energy transition and the achievement of climate justice, both urgent and necessary goals, with options that will only tie us more and more to fossil fuels and to an energy system that only intensifies social inequalities and environmental degradation.
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What is a just energy transition?
It is possible to propose real solutions to current problems. The various crises facing humanity—climate, energy, food, environment, health—as well as the enormous inequalities that cause, and are deepened by, them can be overcome if we manage to rethink the systems in which we live. In 2021, the energy sector contributed 73.2 percent of total global greenhouse gas emissions. The current energy system, based on fossil fuels, is unequal and inequitable. It is concentrated in large private or state-owned companies, is particularly conflictive in of access to resources, and is closed to social participation in decision-making. For these reasons, progress on the energy transition is urgent. There is no single view of energy transition; it is a concept in dispute. Toward what? For whom? How? Conservative views focus the transition on a process of technological substitution toward a change in the energy matrix focused on renewable resources and the search for energy efficiency. On the other hand, the most complete proposals warn that a change in the energy matrix is necessary, but not enough. They see the transition as a process of integral transformation, territorially situated and plural, which implies the creation of new socio-political conditions that restructure the organization, ownership and distribution of the current production and consumption systems. The goal is advancing the right to energy. If we consider the transition as a systems change, it is essential to build another type of relationship between human beings, nature and means of production. Guidelines for thinking about the energy transition in Latin America Based on the arguments of Pablo Bertinat, an expert on the subject, to walk this path in the region requires that we: Build the right to energy as a collective right, in congruence with the rights of nature. We must: take into the damages to territories and communities created by energy development; eradicate Sacrifice Zones by recognizing their vulnerability; and guarantee respect for human rights during the transition. Solve energy poverty problems with clean, accessible, reliable and affordable energy. Energy projects must benefit the territory in which they are installed in of creation, supply and work force, in order to achieve the redistribution of wealth. Advance a process of energy reduction in the face of a scenario of restriction in which resources do not cover the demand. This implies an integral transition. A new productive model based on the availability of energy must be considered, as well as rethinking transportation systems, agriculture, infrastructure, etc. Deepen the change of the energy matrix from processes of resignification of technologies to those that are adequate, that is to say, that allow social inclusion, that are built from the communities, that are oriented to solve their problems, and that take into the processes of acceptance of new energy enterprises. Promote energy democratization processes through the participation of diverse actors, particularly excluded sectors, in decision-making regarding the transition and the creation and implementation of policies, guaranteeing the rights of access to timely and complete information, quality participation and access to environmental justice, in order to ensure energy autonomy at the local level. In conclusion, speaking of a just energy transition implies recovering energy as a tool to satisfy human needs in a context of finite resources and inequalities. We must not start from scratch. Local communities, academic institutions, non-governmental organizations, social organizations and governments have already taken important steps towards a just, democratic and popular energy transition in the region. With this momentum, the transition is not only desirable, but possible.
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5 reasons to end coal extraction and use
The use of coal to generate energy began two thousand years ago. Today, its role as a fuel must come to an end: the negative impacts of its exploitation and use far outweigh the benefits. The solution to the climate crisis lies, in large part, in ending dependence on coal. Across the region, we’re seeing a growth in coal projects that conflicts with global emissions reduction targets. In a post-pandemic context, nations must commit to an economic recovery that keeps coal in the ground. As governments and companies across Latin America continue to promote the industry and ignore the true costs of coal, we’re offering them five reasons why the mining and burning of coal is a bad decision – economically, politically, environmentally, for human rights and the climate. 1. Coal is economically unviable due to the high costs of its impacts. The current production chain fails to consider the external costs derived from coal’s climate and environmental impacts, and social damages and it causes, which could double or even triple the price of electricity generated. For example, exporting a ton of coal from Colombia to Europe, the United States or Asia entails estimated external costs between $144.64 and $210.95 per ton, three times the market price of coal (which was $47.80 per ton in August 2019) (1). The exploitation and use of coal becomes economically unviable because the market price is not enough to cover the repair of the damage caused. The most serious aspect is that since the companies in the industry do not assume these costs, they are left in the hands of States, communities and ecosystems. 2. Coal projects create unemployment Arguments that coal mining stimulates development wherever it is carried out are a myth. The pollution created by coal mining impacts the health of the people exposed to it, affecting their work effectiveness and putting them at a disadvantage in accessing other work options. This results in up an unemployment rate of up to 40 percent in populations located near coalmines. In addition, the non-conventional renewable energy industry currently employs many more people than the coal industry. According to the International Renewable Energy Agency, that industry generated 11 million jobs worldwide in 2018, while the 10 countries with the most coal-dependent labor sources only generate approximately 225 thousand jobs. According to UN estimates, switching to renewable energies could generate up to 35 million additional jobs between 2020 and 2050. 3. Investing in coal is increasingly risky Both banks and insurance companies are ceasing to invest in the coal sector because of its high costs, high risks and low profitability. Today, 26 of the world's 35 largest banks have policies restricting financing for projects related to coal mining or coal-fired power generation. In fact, a group of OECD countries recently announced that they will end financial for coal-fired power plants. Similarly, at least 18 of the world's largest insurance companies have decided to restrict activities linked to the coal industry. This shows that, thanks to public pressure, the industry is being de-financed and its market is no longer insurable. 4. Coal use aggravates the global climate crisis The extraction and burning of coal aggravates the climate crisis and causes vast human rights impacts: among them floods that displace residents, fires that destroy villages and ecosystems, and droughts that destroy crops. According to the Intergovernmental on Climate Change, coal is responsible for 44 percent of carbon dioxide (C02) emissions from fossil fuels. Just nine countries are responsible for 85 percent of global emissions from its combustion. Coal mining also emits methane, a gas with 67 times more power than CO2 to warm the planet over a 20-year period and whose emissions are responsible for about 25 percent of global warming. Building new coal-fired power plants implies catastrophic climate change. This is why the UN proposed urgently accelerating the decarbonization of all aspects of the economy. To stay on track toward limited warming just 1.5°C by 2050, 90 percent of coal must remain in the ground. 5. Coal mining and use violate essential human rights, such as health. The entire cycle of coal—from its extraction, transport and export, to its burning or combustion—causes irreversible damage to people. One of the main impacts of coal mining is the degradation of air quality, which in turn violates the rights to health, life and a healthy environment, generating high rates of morbidity and mortality. The damages caused by coal mining include pneumoconiosis (black lung), known as "the miner's disease", which considerably reduces the life expectancy of those who work in mines and the surrounding communities, where children are the most affected. Likewise, pollutant emissions from coal-fired power plants are mainly responsible for the formation of microscopic particles (PM10 and PM2.5) capable of penetrating the respiratory and blood systems, increasing the rates of serious diseases such as lung cancer, and causing premature deaths. These five reasons are at the same time arguments for the decarbonization of Latin America's energy matrix. The region can and should direct its efforts towards a matrix based on non-conventional renewable energies that are environmentally friendly, people-friendly and sustainable over time. For more information, see our report Carbón, un combustible condenado al entierro. El final de una era y la promesa de una transición justa. (1) Precios actualizados a 2019 tomados de Cardoso A. Behind the life cycle of coal: Socio-environmental liabilities of coalmining in Cesar, Colombia. Ecological Economics 120 (2015) 71- 82, y Cardoso A., Santamaria R,. Peñalver L. (2019). Thetrue cost of coal in Colombia.
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Latin American fisheries are at risk
By Magie Rodríguez (AIDA) and Ernesto Fernández Monge (The Pew Charitable Trusts) Fishing is fundamental to the Latin American economy and, for of our region’s people, their way of life. It’s a centuries-old industry at risk. According to the Food and Agriculture Organization of the United Nations, the region produces 21.5 million metric tons of fish each year, a quarter of the world's annual production. Roughly 2.3 million people are involved in fishing activities. However, the industry is losing out to aggressive foreign fleets, mostly from Europe and Asia, fishing within Latin America's exclusive economic zones (EEZs) and in areas just outside them. Unlike domestic vessels, these fleets often benefit from substantial funding from their home governments, which allows them to fish outside their own countries' waters. These fishing subsidies, intended to increase capacity, are harmful. They pay for fuel and other expenses, artificially reduce the cost of fishing, and allow fleets to fish in areas where it would otherwise be unprofitable to do so. After more than two decades of talks, the 164 member governments of the World Trade Organization (WTO) are closer than ever to agreeing on a new globally binding treaty that would curb harmful subsidies that allow fleets to fish both in other countries' waters and on the high seas. Fishing offshore, on the periphery of another nation's waters, can harm a country's fisheries in part because it allows foreign vessels to catch migratory species, such as tuna or billfish, before they enter the EEZ. As trade ministers prepare to meet in Geneva for a WTO ministerial conference June 12-15, Latin American leaders must push for a fisheries subsidies agreement that will help their countries' fishermen better compete with foreign fleets. To do so, the agreement should eliminate all capacity-enhancing subsidies that prop up so-called distant-water fishing and allow more fishing than the market would otherwise sustain. Each year, governments around the world dole out $22 billion in harmful subsidies to fisheries and, of that amount, nearly two-thirds comes from just six countries and the European Union. About one-third of that amount, $7.2 billion, is targeted to help countries fish in other nations' EEZs and offshore at the edge of those territorial waters, according to a new research-based tool developed by scientists at the University of California, Santa Barbara, with funding from The Pew Charitable Trusts. The increase in distant-water fishing is driven by a sad reality: having depleted fish stocks in their own waters, major fishing nations are looking elsewhere to fill their nets. Ecuador's Galapagos Islands made headlines last year when research revealed that in just one month, 300 Chinese vessels spent 73 thousand hours fishing off the EEZ surrounding the Galapagos. In addition, the tool shows that, for example, 180 vessels from just four countries (China, South Korea, Chinese Taipei and Spain) spent a total of 84 thousand hours fishing in Argentina's EEZ in 2018. That's the equivalent of 9.6 years on the water. That undertaking was made possible by nearly $92 million in harmful subsidies. Encouragingly, leaders across the region have long ed reducing subsidies in distant waters: Argentina, Chile and Uruguay co-sponsored a WTO proposal in 2019 to ban such subsidies and, in July 2021, Uruguay's foreign minister stated that such a ban would have "enormous potential to have a significant impact on the state of the oceans and the livelihoods of fishing communities." However, major fishing nations are seeking to water down the text of the potential WTO agreement so that they can continue fishing in other countries' waters. That’s why Latin American trade ministers must continue to push for the elimination of subsidies in distant waters, helping to ensure that fish from their waters primarily reach their vessels, restore competitive advantage to the region's fishermen, and sustain a vital industry—and livelihood—across the continent.
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The indigenous resistance, told in their own voice
It’s vital that indigenous and traditional communities have the opportunity to use and strengthen their voices not only to denounce the systematic violation of their rights, but also to share the ancestral knowledge that is key to addressing the current environmental and climate crises. For a variety of reasons, organizations that accompany indigenous struggles, as well as the media and journalists who portray them, often speak on behalf of these peoples. While this intermediary work can help increase the visibility and impact of the frontline defense of territories, there is no better way to hear and understand their stories than from the people who live them. The Intercultural Encounter of Indigenous Communicators represents a step forward in this sense, as it amplifies the work of six indigenous defenders who have made communication a valuable tool for protecting their territories. The project brings together of indigenous communications collectives from across Mexico, Central and South America to share their experiences defending land, culture and ancestral ways of life. Their stories are of strength and self-determination. Juana Ramírez Villegas, an indigenous woman of the Mixe or Ayuuk people in Oaxaca, Mexico, is part of a communications collective that has enabled coordination between different affected communities and elevated their demands for respect of their territory and defense of their rights to the national level. Together they’re resisting the construction of a massive port and railway infrastructure project across the Isthmus de Tehuantepec known as the Interoceanic corridor. Elvia Bo, a Mayan woman from Southern Belize and part of the organization SATIIM, has kept remote indigenous communities in southern Belize informed of their rights. She is working to install a radio signal powerful enough to reach the many remote indigenous communities of her area through her broadcasting. Her work has been key in confronting repeated attempts by governments and large companies to implement extractive megaprojects within indigenous territory. Laura Brito Boriyu is a member of the Wakuaipa Communication Collective, a group of youth from the Wayúu indigenous community in Colombia. Their communication and audiovisual production skills have served to denounce the impacts suffered for more than 40 years by the Wayúu people in La Guajira as a result of one of the largest open-pit coal mines in the world. Their stories are subverting the heavy investment in propaganda that the company makes while it destroys Wayúu ancestral territory. Mitã Xipaya, a young communicator from the Xipaya people of the Medio Xingu in Altamira, Brasil, is part of the UJIMX collective. They’re denouncing the socio-environmental damages of the Belo Monte megadam, built deep in the Amazon rainforest, which has destroyed not only the natural environment but also the region’s social structure and, particularly, young peoples’ mental health. In that sense, collectives like UJIMX are using communications to motivate youth to envision a better future and work to transform Altamira. Arewana Juruna and Kujaesage Kaiabi are indigenous communicators and filmmakers who live in the Indigenous Territory of Xingú in Mato Grosso, where 16 indigenous communities live and protect the forests of the Xingú river basin. Faced with government policies that favor deforestation, they and other indigenous communicators of the Amazon play a vital role in raising awareness about the need to protect this critical ecosystem. This project has enabled the teams and efforts of these collectives to grow and strengthen. You can read more about each of these indigenous communicators and see the work they produced on the project’s website. They and their people are united by the great history of resistance that indigenous peoples have and continue to show to the current global development model, which prioritizes extractive megaprojects and destructive policies over ancestral knowledge and preservation. Truly understanding their stories and listening to them, from the voices of their protagonists, is fundamental if we as a society wish to move towards a better way of living, in harmony and balance with nature. Preserving the only planet we know from the climate crisis, humanity’s greatest threat, requires incorporating the ancestral knowledge of indigenous peoples in the design and implementation of solutions. This project was spearheaded by AIDA with the of the Swift Foundation, Tierra Poderosa and organizations that directly these communities, including the Centro Mexicano de Derecho Ambiental (CEMDA), the Colectivo de Abogados José Alvear Restrepo (CAJAR), the Movimiento Xingú Vivo para Siempre, the Sarstoon-Temash Institute for Indigenous Management (SATIIM), the Unión de Comunidades Indígenas de la Zona Norte del Istmo (UCIZONI) and the União da Juventude Indígena do Meio do Xingú (UJIMX).
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In Peru, a High Court’s Opportunity to Combat Oil Spills in the Amazon
In 2014, 2500 barrels of oil flowing through the Norperuano Pipeline in the heart of the Amazon leaked in the Cuninico River. For native communities, the consequences of the spill persist to this day, affecting the life and integrity of the people of San Francisco, Nueva Esperanza, Cuninico and Santa Rosa, who are still struggling to find clean water to grow their crops. In 2018, accompanied by the Instituto de Defensa Legal, they filed an injunction (known as an amparo in Peruvian courts) in an effort to prevent further spills, calling for the maintenance of the Norperuano Pipeline. Currently, their case is before the Constitutional Court of Peru, which has an unprecedented opportunity to stop oil spills in the Peruvian Amazon and, with them, prevent the systematic violation of the rights of the indigenous peoples who live there. The Court could do both by ruling in the favor of the petitioners and ordering state-owned oil company Petroperu to perform maintenance on the pipeline. AIDA ed the case with an amicus brief detailing the international obligation of the Peruvian state to guarantee the adoption of the necessary measures—istrative, legal, political and cultural—to protect the rights to a dignified life and a healthy environment. A systematic problem with oil infrastructure Sadly, what happened in the Cuninico basin is not a one-time occurrence; it is a systematic problem facing oil infrastructure in the Amazon. Oil spills in the Peruvian Amazon are putting entire families and communities at risk: compromising food security, contaminating ecosystems, and affecting the cosmovision and ways of life of the Amazonian peoples. According to The Shadow of Oil, an OXFAM report from 2020, 65 percent of the 474 spills that occurred in Amazonian oil fields and from the Norperuvian Pipeline between 2000 and 2019—affecting the territory of 41 indigenous communities—were due to pipeline corrosion and operational failures; only 28 percent were caused by third parties. Complementary data from the Organismo de Evaluación y Fiscalización Ambiental and the Organismo Supervisor de la Inversión en Energía y Minería—both public entities—confirm that, for the most part, oil spills derive mainly from a lack of supervision and oversight by the State and the absence of due diligence by the companies. It’s evident that the responsibility for the vast majority of spills lies with the operating companies. This has generated a structural scenario of threats and violations to the human and environmental rights of Peru’s ancestral populations. Broader causes of the continuous oil spills in Peru include a dependence on the extraction of fossil fuels, the lack of maintenance of facilities, institutional weakness, and gaps in corporate responsibility. Strategic litigation: a way forward The courts in the region have been, on many occasions, valuable actors in the protection of the right to a healthy environment and human rights more broadly. In Colombia, courts have prevented the advancement of several projects that were implemented without prior consultation, affecting the rights of indigenous peoples. In Mexico, courts have recognized the rights of indigenous communities to participate in the use and istration of minerals in the subsoil of their territory. In Ecuador, the Constitutional Court (Ecuador's highest court) ordered the Ministry of Environment to remedy the damages caused by palm oil plantations and to take measures to control and mitigate future and potential damages. Now it’s the turn of Peru’s Constitutional Court to defend these rights by moving to protect the Amazon from future oil spills. Undoubtedly, a positive decision would be an important regional precedent for the protection of the Amazon, an indispensable ecosystem. The Amazon region is majestic. Stretching over 2.7 million square miles, it is the largest tropical forest on the planet and is home to at least 10 percent of known biodiversity, much of it endemic. Since ancestral times, it has been home to more than 470 indigenous peoples, quilombolos and traditional communities; among its trees and rivers you can hear more than 86 languages and 650 different dialects. The Amazon is a vital ecosystem in times of climate crisis. It functions as a large carbon sink that stores between 90 and 140 billion metric tons of carbon dioxide, one of the most important greenhouse gases that, if released, would further accelerate climate change. What happened in Peru highlights the importance of strategic litigation to preserve the Amazon as a key ecosystem to confront climate crisis, and to defend the peoples that call it home.
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What you should know about the trinational alert to save the Pantanal from wildfires
In recent years, fires have seriously damaged and endangered the largest freshwater wetland in the world, the Pantanal, which sits at the shared border of Brazil, Bolivia and Paraguay. Given the urgency of the situation, civil society organizations alerted the Secretariat of the Ramsar Convention, the intergovernmental treaty for the protection of wetlands, about the damages to the Pantanal and requested its in the search for solutions. In the current context of climate crisis, the protection of key ecosystems like wetlands and the curbing of large carbon dioxide emissions caused by forest fires is an urgent task. Here's what you need to know about the crisis facing the Pantanal wetlands and recent efforts to bring about their recovery through transboundary cooperation. An epicenter of biodiversity at risk In its nearly 20 million hectares, the Pantanal is home to species of at least 3,500 plants, 600 birds, 150 mammals, 175 reptiles, 40 amphibians and 300 freshwater fish. Some of these species are endangered in other regions. It is home to the highest concentration of jaguars and caimans in the Americas. The destructive force of fire In 2019 and 2020, the Pantanal burned at an unprecedented rate. In 2020, fires devastated 4 million 300 thousand hectares of the Pantanal region, the highest number recorded since 1998. That same year, 100 percent of Brazil's Pantanal Matogrossense National Park burned. Fires there have become a transboundary problem. Aggravating the global climate crisis In addition to the loss of forests, the death of animals and the direct impact on the health and livelihoods of local communities, fires in the Pantanal aggravate the climate crisis. A study published by the Brazilian Academy of Sciences estimates that the 2020 fires in the Pantanal region of that country released around 115 million tons of carbon dioxide into the atmosphere, more than 20 percent of the carbon dioxide emissions generated in Colombia during that same year. International alert for urgent measures On February 2, World Wetlands Day, AIDA—together with the Center for Biological Diversity and Ecologia e Ação (ECOA)—requested the Ramsar Convention Secretariat to send an advisory mission to six Pantanal wetlands located in Bolivia, Brazil and Paraguay. The organizations also requested that the sites, considered internationally important under the treaty, be inscribed on the Montreux Record, the global list of wetlands at serious risk. They urged the three governments to implement measures to preserve the Pantanal as a transboundary ecosystem. Specialized for rescue "The advisory mission consists of a visit by international experts who would provide highly specialized recommendations to Brazil, Bolivia and Paraguay to overcome the conditions that generate risk for the conservation and wise use of the Pantanal, as well as to develop innovative management and protection measures," explained AIDA attorney Claudia Velarde. The inscription of the sites on the Montreux Record implies financial assistance, as well as and technical advice, for the recovery of the Pantanal in the three countries. In July 2021, in the Brazilian state of Mato Grosso alone, the burned area of the Pantanal was five times larger than that of São Paulo. With appropriate and timely actions, it may be possible to prevent the degradation of the ecosystem from recurring in June and July of this year, when forest fires season begins. The alert represents an important opportunity for the countries that share the Pantanal to manage its ecological wealth in a collaborative and sustainable manner, ing efforts for its preservation.
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In Chile, progress for indigenous participation in decisions affecting their territories
In January, Chile’s Supreme Court ruled that indigenous communities have the right to be informed of and participate in decisions affecting their territory and way of life. The high court ordered industrial salmon farmer Nova Austral to engage in public participation processes prior to authorizing the relocation of four farms into the Kawésqar National Reserve. The government's Environmental Evaluation Service had authorized the relocation of those farms without implementing mechanisms for consultation with the Kawésqar communities, and later rejecting their requests for public participation. It did so by arguing that the farms posed no harmful environmental impacts. The case at hand Since 2018, AIDA has been working in strategic alliance with Greenpeace Chile and FIMA to exclude industrial salmon farming from protected areas in the Magallanes Region, in the heart of Chilean Patagonia, and to defend the rights of the Kawésqar peoples, ancestral inhabitants of the area's canals and fjords. By approving the relocation, the environmental authority ignored the effects that salmon farms have had in the Los Lagos region, in the extreme north of Patagonia, demonstrating the serious risks posed by the industry's expansion into the extreme south of Patagonia, still a pristine natural area. These effects include biological contamination from the introduction of exotic species, the indiscriminate use of antibiotics, and frequent mass salmon escapes, as well as the accumulation of food and feces on the seabed, generating total or partial loss of oxygen and red tides. The environmental agency also overlooked the fact that salmon farming is incompatible with the protection objectives of the Kawésqar National Reserve, one of which is "to comply with the fundamental demands of the Kawésqar people." In fact, when the reserve was created in 2018, an indigenous consultation process chose to exclude industrial aquaculture, considering the fragility of the ecosystems of the area and the indigenous cultural legacy, closely linked to the sea. An appeal for improvement Faced with the government’s authorization of salmon farming in their territory, Kawésqar communities—with the of the coalition formed by AIDA, Greenpeace Chile and FIMA—filed an appeal before the Supreme Court for the protection of constitutional guarantees. The judgment in favor of public participation was significant due to the fact that Chile has often been questioned for its low standard of compliance with ILO Convention 169, the most important international instrument for guaranteeing indigenous rights, including the right to prior consultation. One of the main criticisms is that the regulation for incorporating indigenous consultation into the environmental assessment encourages this not to take place. This is particularly relevant in projects evaluated by Environmental Impact Statements, for which a consultative mechanism of lesser incidence is applied and which is subject to a great deal of discretion on the part of the authority to be carried out. Moreover, in precisely those cases—including the relocation of salmon farms— public participation is not mandatory, as it is for projects evaluated by environmental impact studies. This further diminishes the possibility for communities to have their voices heard in this type of procedure. The future of participation in Chile The Supreme Court’s decision in this case is a contribution to the deepening of public participation as a tool to improve environmental decision-making. It highlights the voice of indigenous communities in matters affecting their ancestral territory. It also broadens the geographic scope of citizen participation by recognizing that these communities exercise a legitimate interest in environmental conservation, thus breaking with the idea that direct involvement depends only on their proximity to where people live. We hope that this is the first step to completely rejecting the installation of salmon farms in the Kawésqar National Reserve, in any protected area and, in general, in the seas of Chilean Patagonia.
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Reaffirming the legitimate protection of the right to a healthy environment
In December 2016, two women from Veracruz decided to defend the Veracruz Reef System in court. They sought to protect the largest coral ecosystem in the Gulf of Mexico from the expansion of the port of Veracruz, which would cause serious and irreversible impacts on the reef’s biodiversity and, by extension, the local population. Residents of the Veracruz metropolitan area, represented by the Centro Mexicano de Derecho Ambiental (CEMDA), filed an injunction against the project because its environmental permit resulted from a fragmented impact assessment that did not consider the full range of risks to the reefs. AIDA ed our partners at CEMDA by filing an amicus brief with detailed information on the important services the reefs provide: sequestering carbon, generating oxygen, producing food, and protecting coastal areas from storms and hurricanes, among others. In April 2017, the court that heard the case rejected the injunction and, with it, the request to suspend work on the port expansion. The court argued that the plaintiffs failed to demonstrate that the project had "a real and relevant impact" on their rights and that they lacked a "legitimate interest" in the case. Legitimate interest—also known as legal standing—refers to a person’s capacity to claim damages before a court of law, in any scope. In a traffic accident, for example, only you have the legitimate interest to claim the damages your vehicle may have suffered, which must be individual and quantifiable. However, in matters of environmental damage, the situation is more complex. The degradation of an ecosystem affects more than one person and even transcends generations. The residents of Veracruz appealed the judicial setback and their case arrived before Mexico’s highest court, the Supreme Court of Justice of the Nation. Given the lower court’s limitations in recognizing in its ruling the right of all people to equal access to justice in environmental matters, AIDA and Earthjustice filed a second legal brief before the Supreme Court, requesting an expansion of the requirements for legitimate interest. We provided legal and technical evidence regarding the human right to a healthy environment and access to justice, enshrined in international law. These rights mean that the Mexican government must ensure that anyone whose fundamental rights are threatened by environmental degradation has the possibility of achieving justice, regardless of whether their connection to the threatened ecosystem is indirect or remote. The Environmental Law Alliance Worldwide also contributed a brief that analyzes court decisions from various jurisdictions recognizing the right of any person, civil society organization, or local resident to file lawsuits against projects and decisions that may negatively affect the environment. Finally, on February 9, 2022, more than five years after the original lawsuit was filed, the residents of Veracruz won an important victory for the area’s reefs. In a unanimous decision, the Supreme Court found that government authorities violated the right to a healthy environment of the people of Veracruz by authorizing the port’s expansion. Since it was unopposed, the ruling creates a binding precedent for all courts of the nation. The Veracruz decision is a landmark ruling, valuable for not just Mexico but for the entire region because it: Ratifies that proximity to a project does not define who the affected people are or who can claim protection of their right to a healthy environment before the courts. Reaffirms that it is not necessary to prove quantifiable and individualized damage in order to have access to environmental justice; it is sufficient to demonstrate that a project or activity, by degrading an ecosystem, damages or threatens to cause damage (economic, social, cultural, health, etc.) to a community. Recognizes an expanded legitimate interest, as well as the collective nature of the right to a healthy environment and public participation in environmental assessment processes. Sets a precedent with the capacity to transform the way in which environmental impact assessments are carried out in Mexico, incorporating the principles of prevention and precaution. Points to Mexico's international obligations, including those acquired under the Regional Agreement on Access to Information, Public Participation and Access to Justice in Environmental Matters in Latin America and the Caribbean (Escazú Agreement). As an organization and individuals, we are celebrating this important step toward strengthening the defense of the right to a healthy environment in the region. We are proud to have contributed to this achievement, and hopeful that the implementation of the ruling will be carried out according to the highest standards.
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Climate litigation in Latin America and the Caribbean: Launching a regional platform
By Maria Antonia Tigre, Florencia Ortúzar and Javier Dávalos* With the largest rainforest in the world, the largest freshwater reserves on the planet and the most significant amount of arable land where food is produced, the importance of Latin America and the Caribbean in the fight against climate change is undeniable. Unfortunately, however, the region is also highly vulnerable to the damaging effects of the climate crisis, despite not being significant emitters of greenhouse gasses. As a result, human and environmental rights are being threatened in a context where defenders are constantly at risk. Sadly, the region has been recognized as the most dangerous for environmental and human rights defenders. Strategic climate litigation has slowly grown in the region as a critical tool to complement the work for the defense of the environment, the territory, and the protection of the rights of peoples and communities. Litigating in the Global South and Latin America is different from litigating in the Global North, with particular challenges that must be addressed strategically. Cases in some of the most dangerous countries for environmental defenders might render them more vulnerable to attacks and threats. A lack of resources might leave plaintiffs, who bravely stand up for the cause, unprotected, and not only from violence but from subtler maladies, such as emotional stress or stigmatization. Another huge obstacle is the grave corruption that affects the region, which implies excessive power for extractive companies. Corruption is a widespread and deeply rooted phenomenon, especially in multimillion-dollar industries such as fossil fuels and extractivism. There’s a risk that companies or governments might co-opt academics, and proving and battling corruption is extremely difficult and dangerous. Finally, one of the most severe obstacles to making climate litigation effective in Latin America and the Caribbean is the difficulty litigators face when implementing favorable decisions. LAC presents some encouraging but at the same time alarming statistics around climate litigation. Although the vast majority of cases that have been resolved so far have had favorable decisions, the implementation of these has, so far, been unsatisfactory. There is much to be done on this front, including identifying istrative deficiencies of States that influence the difficulty of enforcing decisions; and considering, from the planning stage of cases, which remedies are sought and how implementation will be demanded. Despite these challenges, climate litigation is already showing the power it beholds in promoting change. In Peru, a group of young people sued the government for failing to formulate and execute a national policy and plan to curb deforestation in the Peruvian Amazon (Álvarez et al. v Peru). In Colombia, the Wayúu indigenous communities promoted an action to annul the environmental permit of a colossal coal mine (Mina Cerrejon). In Mexico, Greenpeace promoted an injunction to stop atmospheric pollution and improve air quality in the State of Mexico (Greenpeace v Secretaría de Medio Ambiente). In Argentina, the Organización de Ambientalistas Organizados demanded that the Ministry of Environment halts the approval of offshore exploration of fossil fuels for its impacts on whales and climate change (Organización de Ambientalistas Organizados v Ministry of Environment and Sustainable Development). In Ecuador, a group of nine girls questions the Ecuadorian State for authorizing oil companies to burn gas in the Ecuadorian Amazon (Caso Mecheros). In Chile, the NGO Defensoría Ambiental sued the government and all the companies operating in an emblematic sacrifice zone for the environmental damage caused after years of operations (Daño Ambiental en Ventanas). And these are only some examples. The Climate Litigation Platform for Latin America and the Caribbean has been created in this context. The Interamerican Association for Environmental Defense (AIDA), a regional NGO that uses the law to protect the environment and the human rights of communities, has been leading the effort in close collaboration with regional organizations and litigators who have been behind some of the cases in the region. AIDA launched the platform in a webinar, the recording of the event is available here. The Platform, which is maintained in Spanish, offers information on the judicial cases in the region that use climate arguments in a friendly and intuitive manner. It also includes a section of able resources that might be useful for stakeholders who are planning on using the law to advance their cases. The goal is to promote more cases and better outcomes. Thus, the Platform is a tool to deliver, share strategies, experiences, and arguments on climate litigation, help create and strengthen alliances and facilitate between people who work in favor of the environment and climate. This initiative emanates from a collaboration with different organizations. It is a cross-cutting and participatory initiative that feeds on collective work. AIDA’s initiative fits well within the collaborative endeavors of the Sabin Center. In December 2021, the Sabin Center launched the Peer Review Network of Global Climate Litigation to enhance the field of study and practice in climate litigation and ensure broad and equal geographic representation in our Global Climate Litigation Database. The Network includes national rapporteurs who help us ensure the database is comprehensive and up-to-date. In addition, the Sabin Center is continuously partnering with regional initiatives that specifically analyze climate litigation within a national or regional context. As part of this ongoing effort, the Sabin Center has partnered with AIDA to share information and facilitate the exchange between collaborators of the two projects. The launch of this regional Climate Litigation Platform is not only great news for Latin America and the Caribbean but also for the whole active global community that uses the Courts in favor of the planet. Visit the Platform *Maria Antonia Tigre is Global Climate Litigation Fellow at the Sabin Center for Climate Change Law, Florencia Ortúzar is a senior attorney at AIDA and Javier Dávalos is coordinator of AIDA's Climate Program.
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