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Histórico fallo judicial en Argentina. El Caso Matanza Riachuelo

By Daniel Barragan (Posted: July 29, 2008) 

El pasado 8 de Julio la Corte Suprema de Justicia de la Nación, determinó en un histórico fallo, la responsabilidad del Estado Nacional, la Provincia de Buenos Aires y la ciudad de Buenos Aires, en la prevención y saneamiento del daño ambiental existente en la cuenca Matanza Riachuelo.

La cuenca Matanza Riachuelo cubre un área de 2.238 km2, abarca parte de la ciudad de Buenos Aires y 14 municipios. En esta zona se asientan más de 3.000 empresas, las cuales vertían cada día cerca de 88.500 metros cúbicos de desechos a la cuenca.

El daño ambiental generado –afecciones a la salud humana y la degradación de ecosistemas- por los efluentes y residuos industriales y domésticos, más la existencia de basurales clandestinos, ponía en grave riesgo a las poblaciones vulnerables y a la sostenibilidad de la cuenca.

En junio de 2004 un grupo de vecinos demandaron al Estado Nacional, a la provincia de Buenos Aires, al gobierno de la ciudad autónoma de Buenos Aires y a 44 empresas por daños y perjuicios.

Cronología de la causa

• Junio 2006: La Corte se declara competente en relación al Daño Ambiental Colectivo
• Septiembre 2006: 1° Audiencia Pública. Presentación del Plan de Saneamiento oficial
• Febrero 2007: 2° Audiencia Pública. Exposición de Picolotti sobre los avances del Plan
• Julio 2007: Fuertes críticas de la Pericia realizada por la UBA sobre el Plan de Saneamiento
• Julio 2007: 3° Audiencia Pública. Observaciones al Plan
• Noviembre 2007: 4° Audiencia Pública: exposición de todos los demandados
• Julio 2008: Sentencia de la Corte

La sentencia garantiza el acceso a la información y participación pública

Uno de los puntos más relevantes de la sentencia se relaciona con el acceso a la información pública. Se fija un plazo de treinta días hábiles para organizar “un sistema de información pública digital vía internet para el público en general, que de modo concentrado, claro y accesible, contenga todos los datos, informes, listados, cronogramas, costos, etc., actualizados…”

La sentencia también contempla la necesidad de que se instituyan mecanismos e indicadores adecuados que permitan a la sociedad civil controlar el cumplimento del plan de saneamiento, monitorear el avance y culminación de las obras y acciones comprometidas, identificar a sus responsables, así como denunciar posibles retrasos e incumplimientos. Sin duda este fallo es un gran precedente para la región.

The Grass is Going to be Greener This Year!

Posted By Ritwick Dutta (July 20, 2008) 

The benefit of Right to Information and citizens’ participation in environmental issues is not just limited to NGO’s and citizens. It can also be of great help to government officers, especially to those trying to implement the law and Judgments of Court but who face resistance from other departments.

The recent instance in the famous tea-growing Darjeeling Hills in India provides an interesting example. As the example of Darjeeling shows, the petitioner got the relief even before the case was heard by the Supreme Court special committee on Forests, in view of the strong evidence obtained through the Right to information Act, 2005.

The issue relates to an ecologically fragile part of the Himalayas located in Darjeeling viz the Senchal Wildlife Sanctuary which is home to several endangered species. A part of the Sanctuary comprising grasslands was used for dumping old vehicles by the local government, namely the Darjeeling Gorkha Hill Council. The dumping encroached upon 20 acres of land of the Protected Area. This was done in violation of the provisions of the Wildlife (Protection) Act, 1972 and even the orders of the Supreme Court.

The dumping of vehicles continued until April 2008. The forest officer in charge of the Sanctuary, Ms Sumita Ghatak, directed the Hill Council to remove the vehicles. The Hill Council resisted, and continued to dump its old vehicles thereby polluting and destroying the fragile ecology. The orders from the Forest Department not only met with strict resistance but also led to the Hill Council making a formal complaint before the government for strict action against the Forest Officer for harassment and undermining the authority of the Council.

It was at this moment that conservation groups and concerned citizens got together. Using the Right to Information Act (RTI), 2005, local citizens obtained all interdepartmental correspondence which revealed a shocking level of arrogance of the Hill Council to the provisions of law and to the orders of the Supreme Court. It was clearly seen that the manner in which the Hill Council responded to the direction of the Forest Officer, prima facie constituted contempt of the Court. The Hill Council sought to overlook the provisions of all conservation laws.

Using the various information obtained under RTI, a petition was filed by Wildlife Trust of India, a national level NGO, before the Central Empowered Committee (CEC) of the Supreme Court asking for initiation of contempt proceedings against the Principal Secretary of the Hill Council. As is required by the Court procedure, a copy of the petition was sent to the Hill Council.

Surprisingly, within three days of receiving the copy of the petition and without even the case coming up for hearing, the Hill Council wrote to the Forest officer that in view of the petition filed in the CEC, the Hill Council would like to surrender the entire 29 acres immediately and also take away all the vehicles dumped by it!

Within days (first week of May 2008), the vehicles were removed. The land is now back with the wildlife and Forest Department.

Is this a case of effective judicial remedy, or the benefits of RTI, or responsive civil society intervention? Well, it is a mix of all and the beneficiary is obviously the wildlife of Darjeeling hills which will get to munch in an extra 29 acres of grassland free of rusting vehicles!

Contributed by Ritwick Dutta (with inputs from Vyom Raghuvanshi, WTI) Ritwick (ritwickdutta@gmail.com) leads the TAI Himalayan Coalition and filed the above mentioned petition on behalf of Wildlife Trust of India.

The Human Right of Access to Public Information Strengthens in Paraguayan Courts

Published: 2008

On Friday, May 2, the Third Division of the Civil and Commercial Court of Appeals of Asunción overturned a First Instance decision and ruled in favor of a petition filed by the Ombudsman – with the legal assistance of IDEA’s lawyers- representing citizen Félix Picco Portillo, who had previously requested to access public information at the Municipality of Lambaré, without success.

The Court of Appeals, through the opinion of Judge María Mercedes Buongermini Palumbo –to which Judges Neri Villalba Fernández and Arnaldo Martínez Prieto adhered-, held that “the appearance of the right of access to information in the catalog of fundamentals rights is relatively recent”. That, “this right founds its justification on the more generic right –essential to deliberative and participative democracies- of having the freedom to form our own opinion and participate responsibly in public issues; it contributes to the formation of our own opinion as well as public opinion, which is closely linked to political pluralism. It constitutes, thus, in an essential tool for the issues that matter for citizen and collective life, and it is a condition for participation in the management of what is “public”, that is, the system of relations and interrelations that constitute the basic scheme that supports the democratic coexistence”.

The Court of Appeals also held that “any denial to provide information related to a public organization’s structure – even its personnel- or the allocation of public funds, not covered by an exception clause, (…) it is an unjustified measure that infringes the right of access to information established in our Constitution”.

Finally, explaining that it was obiter dictum – that is, an argument that is unnecessary to the decision in the case and therefore not precedential-, the Court of Appeals stated that “the circumstance that the plaintiff hadn’t exposed the object or the finality of his request, that is, the justification of his interest on the information he asked for, it is not an obstacle for the delivery of that information. Such an argument is not proper and it is strange to the exercise of the right of access to information, since this right is justified by itself according to the generic objectives of participation and control in the democratic life, and not in relation to a specific motivation. Demanding a citizen to provide an explanation would be a transgression to this right, imposing requisites not established by the legal norm for its compliance; on the contrary, it would have a secondary effect: it would open the door for a public entity to evaluate the adequacy of the request’s reason, because no other objective would be deducible or attributable to that requisite”.

The Court of Appeals also imposed the court costs to the Municipality of Lambaré and, on Friday, May 16, Mr. Picco Portillo finally got access to the information he had requested.

Mr. Picco Portillo initiated the amparo action* that ended in this Sentence with the support of the Ombudsman’s Access to Public Information Center – APIC. The APIC was created by Resolution 160/07, in response to a request presented by of the Environmental Law and Economics Institute – IDEA, given its Spanish acronym- within the framework of the “Center and Window of Access to Public Information” Project, supported by the Information and Resources Center for Development – CIRD, given its Spanish acronym- and the financial assistance of the United States Agency for International Development – USAID.

The Ombudsman’s Access to Public Information Center was created to:

Canalize citizen inquiries of access to information that public agencies generate or obtain with public funds. Receive denounces and complains of denial of access to public information. Bring to Justice cases of unjustifiable denial of access to public information.

Attached you will find the Sentence of the Court of Appeals in Spanish. For further information, please contact Ezequiel F. Santagada (ezequiel.santagada@idea.org.py), Coordinator of the “Center and Window of Access to Public Information” Project. Environmental Law and Economics Institute – IDEA, Asunción, Paraguay. Tel/Fax (595-21) 614-619/20.

  • Its parallel in the common law system could be the writ of injunction and the mandamus combined.

Greenwatch Uganda Champions Information Rights

By Lalanath de Silva (Posted: March 4, 2008)

Laws alone are not enough to ensure environmental protection. Civil society organizations often play a critical role in bringing those laws to life. In Uganda, Greenwatch has done exactly that for the country’s laws on access to environmental information, the first of which passed in 1998.

Under Ugandan environmental law, the public has several opportunities to make its voice heard about new development projects. Projects that might affect the environment of Uganda have to be approved by the National Environment Management Authority (NEMA). Before such projects are approved the developer must perform an Environmental Impact Assessment(EIA), which studies the environmental impacts and examines environmentally friendly alternatives. The law requires that the press announce that the assessment has been performed and that the written results are made available to the public for comment. If comment shows that a project is controversial, NEMA must hold a public hearing.

The public can also challenge NEMA decisions in the Ugandan courts, and that’s where the civil society organization Greenwatch, Uganda (Greenwatch) has distinguished itself. As early as 1999, the organization began suing the government to honor the regulations requiring the assessments.

Although the court refused to stop the signing of the agreement, Greenwatch and other advocates of greater public participation consider the case a partial victory: for the first time, a Ugandan court recognized that concerned advocates could bring a case to vindicate environmental laws. Justice Richard Okumu Wengi of the High Court of Uganda also declared that an assessment and NEMA approval were required before the project could go forward.Greenwatch’s first court challenge of a NEMA decision was to a hydro-electric project funded by the International Finance Corporation and other banks. A utility company – AES Nile Power – was attempting to sign a power purchasing agreement with the Government of Uganda, but the company had not performed an assessment nor had it obtained NEMA approval.

(Citation: NAPE VS AES Nile Power Ltd High Court Misc. cause No. 26 of 1999)

AES Nile Power then proceeded to perform an EIA, and NEMA approved the project. Yet when Greenwatch requested information on the project and the power purchase agreement, the Ugandan Government refused. Review of the power purchase agreement would tell the public if the electricity produced would be affordable and would ease the burden on the environment. Greenwatch sued the Attorney General of Uganda to obtain the document. The court decided that the power purchase agreement and all connected documents were both public documents and therefore ought to be made available to the public.
(Citation: Greenwatch Vs AG & UETCL)

A recent UN report concludes that while Uganda has made remarkable progress in the application of EIA procedures, there is a need to improve key aspects of its application. The report states that there is a “need to further develop approaches to ensure effective public participation in EIA, as well as need to create and strengthen regional and sub-regional EIA networks to complement national efforts for promotion of EIA.”

Greenwatch has also successfully used the space provided for public participation at EIA public hearings to stop the spraying of herbicides on Lake Victoria – the second largest lake in the world and the largest in Africa. Greenwatch produced convincing evidence to show the dangers of pesticide spraying. Greenwatch also showed that the entire operation might not be financially viable because the Ugandan company’s parent company in the U.S.A was bankrupt.

Greenwatch continues to advocate in the public interest today. Most recently, it obtained an interim order against Warid Telecom (U) Ltd., stopping the construction of a telecommunication tower in a residential area. The company had failed to perform an EIA and the residents had fears of a cancerous gas affecting them and the construction noise creating a nuisance. Warid Telecom has challenged these allegations saying that there is no scientific basis for any of them. The application for a temporary injunction will be heard soon.

Greenwatch has been closely associated with The Access Initiative coalition in Uganda and has blazed a trail championing citizen rights of access to information, public participation and access to justice (“access rights”) in environmental matters. It also works closely with the Government of Uganda to train public officers and judges in environmental law.

“Every person has a right to information under the Ugandan Constitution,” says Kenneth Kakuru, the Director of Greenwatch, Uganda. “An Environmental Impact Assessment is a public document.”

Resources and Legal Citations:

Full Judgments and more information can be obtained from the Greenwatch website, www.greenwatch.or.ug.

Audio – Interview with Sheila Abed, Executive Director, IDEA (Paraguay)

By Jospeh Foti (Posted: February, 2008) 

Access Initiative (TAI) partner Instituto de Derecho y Economía Ambiental (Environmental Law and Economics Institute, IDEA) is working to build government capacity to make sure that Paraguay’s growing soybean trade is good for the environment and for workers.

Ms. Abed stopped by WRI recently to talk about IDEA’s work on environmental governance issues in Paraguay and elsewhere.

Listen to Introduction

Current Work
  • How did IDEA come to work on soybeans as an issue? How is it representative of environmental governance issues in Paraguay more generally? Listen
  • IDEA’s current work on the Corpus Dam on the Argentina border. Listen
  • The persistent problem of corruption. Listen
Access Rights in Paraguay
  • Have there been successful examples of public participation in policy setting in Paraguay so far? Listen
  • Partnering with other NGOs and civil society. Listen
  • The benefits of working on local issues with the government ombudsman. Listen
  • A partnership with the Ministry of the Environment to stop illegal logging. Listen
Advocacy Tactics
  • How easy do you find it to work together with members of the government to make reform? Listen
  • Do you find it most effective to work on environmental issues at the national levels? Listen
The Access Initiative
  • How has being a member of the TAI network helped IDEA be more effective? Listen
  • Where The Access Initiative network should move in the future. Listen

Freedom of Information Victory in India

By Lalanath de Silva (Posted: January 28, 2008)

For the first time in its ten-year history, the National Environmental Appellate Authority* (NEAA) has overturned a decision by the Government of India, quashing an environmental clearance granted by the Ministry of Environment and Forests. In its decision, the Appellate Authority cited a failure of public participation and access to information.

On December 19, 2007, the NEAA quashed environmental clearance for the Polavaram Multipurpose project granted by the Ministry of Environment and Forests. The project, which would have displaced close to 3000 families (totaling about 200,000 people) in the States of Andhra Pradesh, Orissa and Chattisgarh, was to have included a hydroelectric power component of 960 MW and irrigation facilities. The project was proposed by the State of Andrah Pradesh.

The project was opposed by civil society organizations on the grounds that the required Environmental Impact Assessment had been performed inadequately, and the Ministry of Environment and Forests had failed to conduct any public hearings in the affected States of Orissa and Chattisgarh.

During the hearing, both States contended that the legally required environmental clearance was granted by the Ministry of Environment without considering the opinion of the states though they were affected by submergence.

Immediately after the Appellate Authority’s decision, the State Government (Andrah Pradesh) filed a petition for the Andra Pradesh High Court (the highest court in the State) to review the case. The Court has now temporarily suspended the decision of the Appellate Authority and fixed a hearing for February 11.

The NEAA found that:

  • People to be affected by the project had no access to the executive summary in the notified place
  • People to be affected by the project had no opportunity to participate in public hearings and express their view on the likely environmental impact of the construction of the project

The Appeal against the clearance was filed by Dr R. Sreedhar of Academy for Mountain Environics and represented by Ritwick Dutta. Dutta is a leader of the TAI network in India, and is preparing to launch a formal, TAI assessment of access to justice, public participation, and access to information in Northern India.

*The National Environmental Appellate Authority is the only competent Authority set up by Parliament through an Act to hear appeals from aggrieved/ affected persons against the grant of environmental clearances by the Ministry of Environment and Forests to different projects across the country.

Links

Cut and Paste Fraud Suspected in Indian EIA

By Lalanath De Silva (Posted: January 15, 2008)

A Right to Information request in India has revealed that an Environmental Impact Assessment (EIA) for a bauxite mining project in Ratnagiri, Maharashtra, was copied at least in part from a Russian EIA for a bauxite mine. Variables in surface water quality, precipitation, bird and mammal densities, number of species and impacts of the projects match. The Indian EIA even listed tree species found only in northern temperate regions, such as Alaska, Norway and Russia.

Since 2005, the Indian Right to Information Act has allowed citizens to expose corruption in government and fraudulent practices in decision-making processes. EIAs are required for certain development projects that have significant impacts on the environment. Hundred of EIAs are being filed throughout India for development projects that range from hydroelectric dams to roadways and mining. Monitoring EIAs to ensure that environmental impacts are considered and eliminated or mitigated has become a huge challenge for civil society organizations. The Right to Information Act has become a useful tool in this Herculean task.The fraud in Ratnagiri, Maharashtra was exposed by Ritwick Dutta, an environmental lawyer with the help of Mark Chernaik, a staff scientist in the Environmental Law Alliance Worldwide network. Ritwick Dutta is also a leader in the The Access Initiative (TAI) India network and will soon launch a TAI assessment for Northern India. The TAI assessment will reveal gaps in laws, institutions and practices relating to transparency, inclusiveness and accountability in government decision-making on environmental matters in Northern India.

The Access Initiative (TAI) seeks to ensure that people have a voice in the decisions that affect their environment and their communities. TAI partners promote transparent, participatory, and accountable governance as an essential foundation for sustainable development. To achieve this goal, partners form national coalitions, assess government progress using a common methodology, raise public awareness, and set priorities for improvements in policy and practice.

India was the site of a pilot TAI assessment; an assessment for the State of Karnataka is proceeding. TAI India partners have worked to achieve changes including intervening in Government efforts to abridge public information and participation rights in the environmental clearance process for development projects.

Freedom of Information Victory in Ukraine

By Lalanath De Silva (Posted: December 21, 2007)

An international NGO has set an important precedent for freedom of information in Ukraine by convincing a court that a Parliamentary advisory body should be subject to national freedom of information law.

The NGO Environment-People-Law (EPL)brought the case against the Accounting Chamber – a state body that executes control over the spending of funds from the State Budget on behalf of Ukraine’s Parliament. The Chamber had refused to disclose details about what it found when auditing a construction project partly funded by the government to build the Danube-Black Sea Canal through internationally recognized wetlands.

The Chamber had released some information about their audit, but not the level of detail sought by EPL. The Chamber had argued that the freedom of information law did not apply to them, and that they were only accountable to Parliament. EPL convinced the court that the Accounting Chamber in effect had not only a consulting function for the Parliament of Ukraine, but authority over members of the public as the Chamber owns the information that might be of public interest. The court ordered the Chamber to provide the information requested by EPL.

The ruling has two major implications, though they may not be articulated in the court decision itself. First, the function of investigating State expenditure (including possible corruption) was ruled to be a matter of public interest and public importance. Second, the court’s decision implied that because the Chamber performed a public function, it was subject to the national freedom of information act, even though the advisory group was not a part of the executive branch.

The case is a victory for advocates everywhere of freedom of information in environmental decision-making. A growing body of national laws and courts recognize that the public is entitled to know how tax revenues and aid funds are being spent and whether that expenditure meets accounting standards.

For more information on the case, visit the EPL website.

For background on this struggle, read about Olya Melen, the young EPL lawyer who won the prestigious Goldman Prize.

The Access Initiative (TAI) seeks to ensure that people have a voice in the decisions that affect their environment and their communities. TAI partners promote transparent, participatory, and accountable governance as an essential foundation for sustainable development. To achieve this goal, partners form national coalitions, assess government progress using a common methodology, raise public awareness, and set priorities for improvements in policy and practice. TAI partners in Ukraine have completed two assessments, and the World Bank has recently provided funds that will allow TAI Ukraine to implement Ukraine’s access rights commitments (made to the Partnership for Principle 10) and Aarhus Convention compliance mechanisms.

TAI congratulates EPL on their victory, and looks forward to working with its Ukrainian partners to further improve access rights.