(2010) Anual Environmental Report

Annual Environmental Report 2010 English Version Adriana Schiffrin Essay Award Eighth Edition Editors: María Eugenia Di Paola Federico Sangalli Authors: Martha Alonso de Vidal, Marcelo Arzelán, Luis Babbo, Daniel Blanco, Claudio Campagna, Gustavo Costa, Jorge Daneri, María Eugenia Di Paola, José Esaín, Belén Esteves, Sergio Federovisky, Pablo Filippo, Javier García Espil, Hernán Giardini, Gustavo Gómez, Pablo Herrera, Gerardo Honty, Luis Inostroza, Santiago Krapovickas, Carlos Lebrero, Cristina Lescano, Ernesto Lloveras, Diego Luzuriaga, Leslie MacColman, Ulises Martinez Ortiz, Diego Moreno, Andrés Nápoli, Eduardo Ortiz, María Lorena Portal, Jimena Psathakis, Carina Quispe Merovich, Jorge Ragaglia, Laura Rocha, Aldo Rodriguez Salas, Daniel Sabsay, Federico Sangalli, Agnès Sibileau, Pedro Tarak, Enrique Viana, Laura Vidal, Gabriela Vinocur y Bernardo Voloj. Prologue: Aída Kemelmajer de Carlucci Editors of English Version: Leslie MacColman and Elliott August Translators: Claudia Christensen, Ashley Chung, Diane Eikenberry, Agnes Hever, Eleanor Leshner, Courtney Miller, Jacob Petersen, Natalie Popovich, Dafne Regenhardt, Aaron Saunders, Sarina Sawyer, Tyler Schappe, Marina Solomon, Max Storto, Tamara Vatnick, Karl Wallulis Institutional Sponsors: Banco Francés, Coca-Cola Company, Natura, Walmart Institutional Support: Premio Schiffrin, ITBA, University of Palermo, University of Buenos Aires-School of Law, University of Buenos Aires-School of Architecture, Design, and Urbanism, National University of General Sarmiento The institutions that provided sponsorship or support of this publication are not responsible for its contents

FARN—2010 Annual Environmental Report – English Version

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Environment and Natural Resources Foundation Tucumán 255, 6 º A (CP 1049) Ciudad de Buenos Aires - Argentina Telephone Numbers: (+54 11) 4312-0788 / 4312-2422 / 4312-2183 / 4313-8631 [email protected] www.farn.org.ar This publication is available free of charge at: http://www.farn.org.ar Cover Design: Marta Biagioli www.lailustradora.com Layout and Graphic Production: Pablo Casamajor www.imagenimpresa.com.ar © 2010, Environment and Natural Resources Foundation ISBN: 978-987-25149-3-8 Annual Environmental Report 2010: Adriana Schiffrin Essay Award, Eighth Edition / Martha Alonso de Vidal… [et.al.]; Literary Edition Coordinators: María Eugenia Di Paola and Federico Sangalli; 1st ed. - Buenos Aires: Environment and Natural Resources Foundation, 2010. 856 p.; 23 x 16 cm. ISBN 978-987-25149-3-8 1. Environmental Law. I. Alonso de Vidal, Martha II. Di Paola, María Eugenia, lit. ed. III. Sangalli, Federico, lit. ed.

CDD 346.046


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About FARN FARN was created in 1985 with the mission of promoting sustainable development through policy, law, and the institutional organization of society. FARN envisions a democratic and engaged society with sustainable strategies incorporated in its public policy. FARN’s Institutional Objectives • To contribute to the creation of knowledge of sustainable development,

governance, environmental policy, pollution, conservation, commerce, corporate social responsibility, and social inclusion.

• To encourage consensus-building around relevant environmental policies in the public and private sector.

• To train social leaders from the public and private sectors in the subject of sustainable development.

• To participate actively in networks and create synergetic relationships with other institutional actors that share FARN’s vision both for Argentina and the world.

• To promote access to information and participation in decision-making processes.

• To spread, promote, and implement the strategic use of legal tools to encourage citizens to participate actively in defending their rights.

• To create tools that foster a higher level of compliance with environmental regulations among authorities and the citizenry, taking into account existing social and institutional inequalities in the different geographic and demographic environments in Argentina.

FARN’s Values • Sustainable development and application of preventative and precautionary

principles. • Institutionalism, transparency and rule of law. • Academic foundation of our opinions in our interdisciplinary, innovative,

and participative publications.


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FARN Board of Directors President: Daniel A. Sabsay Vice President: Albina L. Lara Secretary: Pedro Tarak Treasurer: Juan Manuel Velasco Representative: Silvia B. Ferrer Advisory Board Guillermo Acuña Adriana Bianchi Néstor Cafferatta (on leave) Mario Gustavo Costa Sergio Elguezabal Beatriz Kohn Victoria M. Matamoro Aldo Rodriguez Salas Daniel Ryan Jorge H.Schiffrin


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Staff Executive Director María Eugenia Di Paola Administration Assistant to the Executive Director: Ofelia Acosta Administrative Assistant: Diego Viegas Receptionist: María Victoria Villanueva Accounting: Brandstadter, Distasio & Dolisi Institutional Development Leslie MacColman Press and Communications Federico Sangalli Governance, Environmental Policy and Conservation Director: Carina Quispe Merovich Assistant: Jorge Ragaglia Citizen Participation Department Coordinator: Gabriela Vinocur Instructor of FARN Law Clinics: Agnès Sibileau Training: María del Carmen García Assistant: Juan Pedro Cano Riachuelo Department Director: Andrés Nápoli Assistant: Javier García Espil Commerce and Sustainability Department Coordinator: Bernardo Voloj Environmental Economist: María Marta Di Paola


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Contents

Prologue..................................................................................................................................7

25 Years of FARN.................................................................................................................12

2010: Challenges in the Bicentenary – Executive Summary ............................................21

Environmental Federalism in the Bicentenary – Executive Summary........................... 22

Justice and Sustainable Development: Environmental Jurisprudence in Argentina’s Two-hundred Years of History – Executive Summary..................................................... 23

Latin America after Copenhagen ....................................................................................... 24

The Botnia Syndrome - The Role of the Public Ministery and Access to Public Information on Environmental Protection – Executive Summary ................................. 45

Environmental Recomposition of the Matanza-Riachuelo Basin: A Historical Opportunity that Demands Political Commitment and Efficient Management............. 46

The Role of Civil Society in Contexts of Mining Conflicts................................................ 82

Legal Protection of Glaciers in Argentina.......................................................................... 99

Residential Waste: The Experience of Collaboration with the Urban Waste Collectors of the City of Buenos Aires..................................................................................................... 112

The Metropolitan Coastal Area: A Key to Regional Management – Executive Summary.............................................................................................................................................125

Gender and Environment: Natural and strategic resources and the living conditions of women.................................................................................................................................126

Environment, Penalties and Reparation: A complex relationship – Executive Summary.............................................................................................................................................142

Forum for the Conservation of the Patagonian Sea: Situation of the initiative and its area of influence in 2009...................................................................................................144

Conservation of Private Lands in the Province of Buenos Aires: The Experience in the Bay of Samborombón.........................................................................................................154

The Salas Case: A Legal Case for Forests..........................................................................167

Peatlands as Ecosystems that Provide Environmental Goods and Services..................169

The Illegal Embankment of the Iberá Wetlands: A paradigmatic case study for defense of the environment.............................................................................................................184

OECD Guidelines and the Environment – Executive Summary ....................................197

The Argentine Agricultural and Livestock Sector and its Environmental Challenges – Executive Summary ...........................................................................................................198

The Monitoring of Infrastructure Projects: Regional Challenges, Another type of Integration is Possible ......................................................................................................200

Green Business ...................................................................................................................215

Beyond the Environmental Ephemeris ........................................................................... 236


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The Evolution of Environmental Issues in the Media .................................................... 239

Investigation: The Environment in Graphic Media of Argentina, 2009....................... 250

The Work of the Environmental Law Clinic of FARN – An Analysis of Cases ............. 264

Environmental Governance and International Cooperation: The Situation of Argentine Social Organizations .........................................................................................................280


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Prologue By Aida Kemelmajer de Carlucci, Minister of the Supreme Court of Justice of the Mendoza Province Translated by Aaron Saunders In 2010, la Fundación Ambiente y Recursos Naturales (FARN) will have carried out twenty five years of service. One can be sure that this quarter century has not simply been spent, to paraphrase Eladia Blasco, “remaining and enduring.” On the contrary, the work over these years has been incessant, dedicated and fruitful. In this same year, our country will celebrate the bicentenary of the May Revolution. Both events, in timely coincidence, explain the reason for publication of this special edition, which describes the state of environmental law at the start of the new decade. The work has been divided into eight chapters. The first two are especially dedicated to the two events that justify this publication. The remaining six deal respectively with international and internal issues, Principle X of the Declaration of Rio, and themes related to conservation and business, to conclude with the absolutely essential subject of capacity building. A common theme unites all of the works herein: a concern for the efficacy of laws (both generally and specifically). It was well said by Ricardo Lorenzetti, a born leader in the development of Argentine environmental law, that “one of the most important dangers for environmental law is ineffectiveness.” That is why it is important that the doctrine can show results from particular experiences, as is the case with several of the articles in this work. Daniel Sabsay, in a poignant account, tells us not only how la Fundación was born, its working methodology, ulterior development, mode of funding, etc.; but also, in fulfilling the duty to honor one’s teacher, remembers one of the precursors of environmental law, Guillermo Cano, who even after his passing continues to enlighten those who embrace his cause. Pedro Tarak also speaks about these origins through an interview, in which he underlines how a journal worked to expand a task which now has an international reach. In commemoration of the bicentenary, Aldo Rodriguez Salas takes on one of the key questions of Argentine history, that of the National/Provincial relationship. He explains how obstacles related to this subject create underlying political problems, and the describes the impact of those obstacles in the resolution of legal issues, particularly the subject of contention. He explains the strong impact of the constitutional reform of 1994 and the resulting legislation. He reiterates his support of concerted federalism, the goal that beloved teacher


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Pedro Frias continues to fight for, and in that sense he strongly criticizes the work style of COFEMA (Consejo Federal de Medio Ambiente) and calls for more efficiency on their part. While Jose Esain carries out an interesting analysis of the evolution of living law, or in other words the law of the courts, Gerardo Honty reflects on climate change in the Latin American context subsequent to the Kyoto Convention, a theme whose difficulty was demonstrated in the recent Copenhagen Summit. For her part, facing the bicentenary, Maria Eugenia Di Paola departs from the reigning pessimism but critically discusses the central ideas which ought to be deepened and those that ought to be reversed. Enrique Viana, Attorney General of Uruguay, discusses a subject that is frequently visited upon but never worn out in national and international programs, conferences, and meetings: the role of the public ministry and access to public information on the subject of environmental protection. The importance of this issue is such that it has been the subject of various pronouncements by the European Court of Human Rights, which has condemned certain countries (such as Turkey, Russia, etc.) for not providing sufficient information to citizens who inhabit zones at risk. The author analyzes the issue through what he calls “the Botnia syndrome,” a theme well known to Argentines and Uruguayans as a paradigm of the problems that arise in the absence of sufficient information. Andres Napoli and Javier Garcia Espil reflect on the efficacy and execution of one of the most important sentences related to environmental protection in the Argentine jurisprudence of the new millennium, the Mendoza case. Looked upon favorably, the case relates back to the initial years of the Federal Court, when at the end of the 19th century it referred for the first time to police power in the case “Saladeristas Podesta.” The authors consider the works that are being developed through the Quilmes court. There is no doubt that the final result of that judgment will influence public confidence in the law and the judiciary, which is why any assistance which comes out of the doctrine is welcomed. That end is served by the tree diagrams and the report on the subsequent judicial decisions and their fulfillment. The environmental problems generated by mining activities are discussed by Jorge Ragaglia and Jimena Psathakis, who do so from the varied positions adopted by social groups faced with an activity that transforms regional economies, but can produce grave damages for future generations if the necessary precautions are not taken. They propose methods appropriate for a deliberative democracy, and they provide information about the stages which are or will be completed in the programs undertaken in Argentina by the EuropeAid Office of Cooperation.


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The debate over the Argentine glaciers has not quieted; on the contrary, government measures (such as the veto of Law 26.418, among others) have generated new and important battles among environmental protection associations. As a result, and of great current importance, is the work of Ernesto Lloveras which deals with the classification of glaciers within the legal regime, the roles that are assigned to each of the state authorities in their protection, and a detailed analysis of a new legal project presented to the parliament. It is well known that household wastes are a significant source of pollution. This explains the importance of the report by Carina Quispe and Cristina Lescano about their experience working with urban collectors en Buenos Aires. They critically discuss the work of government organizations and call for more activism, they propose concrete measures to turn the slogan “zero trash” into a reality, and they recount the work that has been carried out by civil associations, especially that done as part of the project in cooperation with Cooperativa El Ceibo. The three “R”s, which appear so often in environmental and bioethical subjects, are represented here with the words reduce, reuse, and recycle. Carlos Lebrero, a city planner, discusses the way in which the coastal metropolitan area can be vital for regional management. To that end, he explains the impulse behind the systematic studies performed subsequent to 1929, when Le Corbusier visited Buenos Aires, and he carries out a fascinating analysis of the politics of the different Argentine governments. It is in essence a socio-political study on an issue that is of interest to all types of readers. Chapter V deals with Principle X of the Rio Declaration of 1992 on the Environment and Development with respect to access to information, environmental justice, and citizen participation in public decision making. It has been said that this document is one of the most valuable that has been produced at the international level, having a significant impact on the legislation of various states. It is thus wise to deal specifically with one of its Principles. The contribution of architect Marta Alonso de Vidal titled “Gender and Environment” underlines the state of discrimination against women in various circles, and the effects that inclusive politics suitable for a democratic government could produce for environmental protection specifically. She explains the role played by women in the caretaking of potable water and other renewable and non renewable resources. Gustavo Gomez reflects on the extent to which penal law can support environmental protection. He points out the limited references in the original wording of the Penal Code, given the period of its institution. He reviews subsequent special laws such as the National Law(s) of Conservation of Fauna n° 22421, of Dangerous Wastes n° 24051, of Industrial Wastes Service Activities n° 25612, and other laws that protect designated


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species such as the huemul (law 24702) or the yaguarete (law 25463), and the scant number of complaints that reach a condemnatory sentence. To explain the phenomenon, he conducts a highly dynamic analysis of various judicial cases. Finally, Mario Gustavo Costa reviews the strengths and weaknesses of penal laws for environmental protection. Chapter VI deals with the fundamental issue of environmental conservation, from various perspectives. Claudio Campagna, Santiago Krapovickas and Pablo Filippo discuss the Patagonian Sea, and Agnes Sibileau focuses on the experience in Samborombon Bay in the province of Buenos Aires, on the subject of private land. The well known Salas case, currently in the Federal Court, is an alert as to the indiscriminate logging of trees in the Salta province and its probable impact on the tremendous flooding suffered in certain zones of that Argentine province. The issue is analyzed by three authors. Gabriela Vinocur takes advantage of the opportunity to note the importance of the concept of amicus curiae, of Anglo-Saxon origin, now regulated by the Federal Court. Hernan Giardini describes the geographic zone and the social conflict within. Finally, Diego Moreno complements the foregoing concepts. Daniel Eduardo Blanco, Laura Vidal and Carina Quispe illustrate the significance of the peat flats, those wetlands that are so important for the conservation of biodiversity. They describe the significant destruction that the peat flats have suffered from the effects of human activities, and they explain how the Convention on Wetlands or of Ramsar attempts to mitigate those effects. A highly didactic technical analysis provides assistance for comprehension of the entire problem. The chapter closes with an article by Andres Napoli on the problems surrounding the embankment constructed by the salt lakes of Ibera, problems which have turned into a new environmental case of national transcendence. Chapter seven is devoted to the environment and business. Belen Esteves and Eduardo Ortiz introduce us to the subject. For his part, Bernardo Voloj describes the harmful effects resulting from the lack of transverse public politics to direct agricultural development in general. He focuses on the debate caused by the so called “Carrasco Report” on the use of glyphosates, a product monopolized by individualized businesses within the market. The interesting article by engineer Diego Luzuriaga entitled Green Businesses describes varying models and discusses how businesses will be influenced as much by the low carbon economy as by the pressures related to sustainability that are affecting all existing businesses. The chapter ends with a report by Jorge Daneri on “Monitoring of Infrastructure Projects. Challenges for the Region.” The final part of the work can be divided into four segments. The first relates to the evolution of environmental themes within modes of communication through


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two articles, the first of which is by Laura Rocha. The other, of inestimable value, is by biologist and journalist Sergio Federovisky, and explains how environmental cases are framed by the press. He invokes the Slovenian philosopher Zlavoj Zizek, among other intellectuals, who holds that the main threat to the triumph of capitalism in the future is ecological catastrophe, and he provides the reasoning behind this assertion. Those two articles are completed by the work of Federico Sangalli on the environmental theme in graphic mediums. The second segment is taken by Gabriela Vinocur, Agnes Sibileau and a group of students who analyze relevant cases. The third consists of a work by Leslie MacColman in which she explains how international cooperation can serve as a valuable mechanism for strengthening and assistance in the development of improved environmental governability. She also provides information about the Schiffrin Prize activity, which demonstrates the continuing influence of FARN in search of excellence. It is clear to me that FARN celebrates while continuing to work. Once again, they demonstrate the principle that simple declarations are insufficient and in fact harmful. Thus we welcome this work, which brings together FARN’s magnificent archive of writings.


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25 Years of FARN By Daniel Sabsay Executive Director of FARN (1997-2007) Translated by Karl Wallulis I. Beginnings As I look back on the 25 years marked by this year’s anniversary of the Environment and Natural Resources Foundation (FARN), I am reminded of how integral a part the organization has played in my personal and professional trajectory during the last quarter century. With this in mind, I would like to begin by relating a personal story full of the sort of subjective impressions that arise when one is called upon to write about an organization which one knows so intimately, thanks to the experience within the “connecting pathways.” I would never have imagined that I would be the only member of the foundation to date who has climbed each and every rung of the institutional ladder, from starting out as magazine collaborator to volunteering with the organization for a number of years, acting as consultant, Director of Institutional Issues, Executive Director for ten years and, since 2007, President of the Administrative Counsel. A cursus honorum that has given me great pride as the various duties that I carried out in these positions made me feel like an indispensable part of my community. The commitment to an organization of the civil society gives me an enduring satisfaction and leads me to believe that what we are doing will have a lasting effect.

The point of departure of this particular story is the friendship I’ve had since my adolescence with Pedro Tarak, who was the spark that motivated me to enter the field of environmental law. We met through a musical project called “Music for Youth” put on by the Mozartuem Argentino, which he helped organize. Our paths met again a few years later as we returned to Argentina on various occasions after obtaining our postgraduate degrees abroad. Pedro (Peter for those who knew him as a boy) finished his Masters in environmental law at Pace University, one of the first schools in the world to offer such a program. In 1982, the frustration around the Falkland Islands war made us hopeful for a return to democracy as the era of the bloodiest military dictatorship in Argentina’s history came to an end. Our conversations centered on the possibilities that a new national political scene would offer our country, and how best to contribute to the institutional growth of our country as we made use of the perspective we gained from living outside Argentina. In this regard we agreed upon the existence of connecting pathways between constitutional law and environmental issues; we were not only facing the birth of a new generation of rights, which became known as collective, but moreover we saw that in order to defend these


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rights we would have to modify our representative democracy to open up avenues for citizen participation. All this for the sake of building a model of sustainable development - an area that to me was quite fascinating at the time. We strove to widen the reach of the constitution both in its dogmatic and its organic parts, with the aim of obtaining types of development that would take into account environmental, social, and economic variables with equal weight. For this reason I became acquainted with the maestro Guillermo Cano, who had molded Peter’s growth from the start of his environmental odyssey. II. The Mark of a Master Don Guillermo was a true Mendozan patriarch, grand doctrinaire, outstanding professor and public servant. The evolution of his ideas from the 1960s on was a testament to his scintillating intelligence. These ideas sprung from the root of traditional natural resource law and moved to environmental law – a concept that was practically nonexistent in those days - leading to a dramatic shift in the treatment of important issues from a totally different perspective, informed by a wealth of new concepts. Cano analyzed piece by piece the regimen of natural resource law, in particular regarding water, and left his mark by formulating a collectivist vision, transversal in nature, and integrally linked to human activity on the planet. All this demonstrated his extraordinary ability to anticipate and plan for the contingencies of the near future. It is also worth noting here that he was one of the few Latin Americans to participate in the UN conference on the Human Environment that took place in 1972, in Stockholm. This conference was the first large-scale international meeting dedicated to this topic and the cradle which christened urbi et orbi the nascent discipline of environmental law. III. Environment and Natural Resources It was at this precise moment that plans were set in motion for the first publication in Argentina (and almost certainly in all of Latin America) dedicated to environmental law. It bore the name “Ambiente y Recursos Naturales” (Environment and Natural Resources), and was published on a trimester schedule under the directorship of Guillermo Cano. The publication was a milestone for the subject’s recognition within Latin America. To this day I hear praise from specialists from all corners of the world who remember the moment with gratitude and nostalgia. Several years later it proved impossible to maintain, mainly due to cost concerns and difficulty with distribution, but the seed was planted that would later flower in the form of new publications that had a clear thematic link to our institution, such that our original ideals have endured with renewed vigor even to the present.


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From FARN’s first days it was decided that every program and project carried out by the institution should culminate in some type of published document. Additionally, the many forums, symposia, colloquia, and other meetings organized by FARN have been recorded for posterity in the dozens of publications that today constitute nothing less than an integrated and specialized library collection. This list also includes the “Suplemento de Derecho Ambiental” (Environmental Law Supplement), which has appeared uninterrupted in the legal journal entitled “La Ley” (The Law) for more than a decade now. Thanks to this periodic publication, we have succeeding in spreading awareness about diverse topics in environmental law, and building a solid platform of knowledge about current issues within the community of professionals dedicated to the law, including public servants, members of the judiciary, and practicing professionals, anxious to read about the most recent developments of doctrine, jurisprudence and legislation on the topic. Last but not least is our catalog of national and international events of importance to environmental law. Over the years FARN has grown its library, through the publication of numerous manuals and books, the most significant being our annual compendium of award-winning essays selected as part of the Adriana Schiffrin competition. This competition is named for one of the precursors of mediation in Argentina, and with respect to FARN’s involvement, the application of this field to environmental issues. The Adriana Schiffrin essay contest recognizes young specialists from diverse disciplines who are selected based on their ability to articulate an outstanding vision of sustainability on the topic of that year’s competition. A jury of prominent figures, which changes from year to year, is appointed to decide the winners. This is the only prize in Argentina that results in the publication of prize-winning essays along with monetary rewards. IV. The Birth of FARN It was shortly after the creation of the magazine that we were called upon to create a non-governmental organization (NGO), an obscure term in those days and one that signaled the dawn of a new era that was already underway in the northern countries. This era was marked by the growth of a civil society which was to use these brand new channels to consolidate its identity as a new actor on the political-institutional scene. In this way, another institution joined the ranks of Argentine civil society. At this moment, organizations were still few and in their majority had been founded to assist the victims of human rights violations and promote the protection of human rights. But now, for the first time, there was an organization dedicated to the protection of environmental rights.


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During a brief period of just over two years FARN was legally constituted as a simple civil association, until 1985 when it formally achieved status as a legal entity. At this point we began to outline a mission that would include many different lines of action. The establishment of environmental law in Argentina was unquestionably one of our primary objectives. The distinguished Dr. Cano led our efforts as the Executive Director; Tarak assisted him as Adjunct Director of FARN and brought to bear the many ideas he picked up at Pace University. Together, they tried to mold our representative democracy into a significantly more participatory model, and worked tirelessly in the development of new models of governance. The efforts of this fledgling organization led to the first discussions in Argentina about the legal frameworks of new institutions, such as public hearings, the right to freely access information, access to justice for the defense of “diffuse” or collective interests, and environmental impact assessments, among many others. It is not without nostalgia that I recall how, shortly after the start of the transition to democracy, Peter and I were invited to the town of Martín Coronado in the Province of Buenos Aires, at the request of a cooperative that provided drainage/sewage and sanitation services in said locality. Our task was to moderate and facilitate a hearing, in which the cooperative would discuss with its associates, users, and the general public a new set of rules and regulations related to the provision of services. We took on this task with enthusiasm but of course also with a fair amount of trepidation, acknowledging that our experience was more theoretical than practical and that the task at hand required us to take an model from academia and apply it in the field – working with an unfamiliar institution in the context of a new and different type of decision-making process. We could not have asked for better results; it was an unforgettable experience on a personal level that would repeat itself time and time again when we were invited to new parts of the country to strengthen institutional structures and contribute to sustainable development. My memory now turns to the program we developed in the early 1990s in Puerto Madryn, whose aim was to incorporate the figure of the public audience into the draft of the organic municipal charter, currently being reviewed by local authorities. We employed many of the techniques that we would later expand on and perfect over time, providing training for not only the community leaders but also local political authorities, organizing a demonstration hearing whose main topic was decided only after a community consultation. Finally, in light of the upcoming audience, we organized conferences with prominent figures and discussion forums which were facilitated by the use of new and novel consensus-building techniques. Little by little, FARN became one of Patagonia’s primary references in dealing with these issues. The Patagonia Nature Foundation (Fundación Patagonia


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Natural) worked with us for many years to develop their renowned coastal development program and the institutional component of said program entrusted to FARN. María del Carmen García is fighting to this very day for the protection of southern lands, leading workshops to teach the importance of public participation. We’ll always remember our visits to Ushuaia, where together with citizen participation we had the honor of taking part in the fascinating process of local and provincial democracy-building. The indefatigable Guillermo Worman is an intimate friend of FARN, whom we admire for his tenacity in leading this Southern project, which has over time spilled over to neighboring municipalities such as San Carlos de Bariloche. I would like to dedicate a few lines to the program titled “Dialogues with World Environmental Leaders,” which, thanks to the support of many embassies, allowed FARN to bring to Argentina a number of the world’s preeminent authorities on this issue. Among others, these leaders included Maurice Strong, Alexander Kiss, Bill Futrell, Jeffrey Miller, Michel Prieur, Konrad Von Molke and Wolfang Burenne, just to name a few. They spent a few days in the country leading classes and conferences both in the capital city of Buenos Aires and in the provinces, establishing dialogues with different decision-makers from the different sectors in accordance with an exchange system that we developed. The results where phenomenal, both in terms of their contribution to the public’s awareness of environmental issues as in the solid links they helped us to establish with other organizations. The program led to FARN’s induction into the International Union for the Conservation of Nature (IUCN), an organization with which we continue to work in the development of programs and the coordination of activities. V. Types of Work In order to meet our ambitious goals we found it necessary to work with a variety of actors in order to craft a model of sustainable development that would assure intergenerational equity, conscientious of our role as holders of both the right and the responsibility to advocate for the health of the natural environment. We worked in conjunction with other organizations, with different levels of government and in the corporate, academic, and scientific sectors, covering the length and breadth of the country and even the continent. We were convinced of the importance of networked action, in terms of building interdisciplinary models, combining strategies and efforts, sharing knowledge and resources, and accommodating a diversity of personalities, approaches, and perspectives. Our programs helped FARN gain solid footing on the international stage, in particular with regional organizations such as MERCOSUR, whom we helped meet their goal of an open international market while recommending strategies that would incorporate environmental concerns, so that commercial


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operations and other international exchanges that are part and parcel of this arrangement would include measures to ensure their sustainability. Prior to this we had become interested in the relationship that must inevitably arise and strengthen over time between the legal systems that regulate the environment and commercial groups. We also took an active interest in the environmental variables which must mark discussions of corporate social responsibility. The economic crisis that devastated Argentina beginning in 2001 compelled us to work toward its resolution. I recall the fruitful initiative we started with the organizations Poder Ciudadano, CELS, ADC, INECIP, and Unión de Usuarios y Consumidores (Users and Consumers Union). These organizations, together with FARN, heralded in 2000 a phase of “civic lobby,” which aimed to reform the Supreme Court, an institution which had lost much prestige. Our objectives included improving the designation process of the high tribunal, through a process characterized by participation and transparency, and by regulating and limiting the discretionary powers of the Executive branch and the Senate in the exercise of their respective faculties. Moreover, we proposed a list of strategies for improving the performance of the Court, such as publicity, the figure of the amicus curiae, and public hearings, among other things. The first publication to this end was titled “A Court for Democracy” (Una Corte para la Democracia) and the organizations involved came to be known simply as “The Six.” For FARN, this signified a step toward greater visibility in the important field of the construction of a citizenship, and we consider it to be an initial stage of developing sustainability in Argentina as it relates to the quality of governmental institutions. This initiative had a far-reaching effect throughout the 2001/2002 crisis and was adopted in other spheres, such as the “Political Dialogue” (Diálogo Político). In 2003, the new government used the initiative as a basis for drafting the now-famous 222/2003 decree, which limited the power of the Argentine President to name members to the Supreme Court. VI. My Period as Executive Director (1997-2007) In October of 1997 Peter left his position as Executive Director, a post which I then assumed for the span of ten years. It was an unforgettable chapter of my life, in which my role allowed me to usher in a new stage in the evolution of FARN, surrounded by people who never ceased to amaze me, both personally and professionally. I had the good fortune of working side by side with Daniel Ryan, who was Adjunct Director until 2005, along with another longstanding member, Alba Scally, as Assistant. From the very beginning, we set out to establish a solid pathway marked by teamwork, definitive institutionalization and professionalization of the organization, expansion of fundraising sources, improvement of communication and press relations, and expansion to programs, just to name a few.


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We were supported by a myriad of young professionals, among them the current Executive Director, María Eugenia Di Paola, and the Riachuelo Director, Andrés Napoli, both of whom continue to contribute to the renown and growth of FARN. We came to the conclusion that in addition to the coordination of policy-related and educational projects and the organization of meetings, conferences, and training sessions, it was necessary to begin litigating. This allowed us to wield a new instrument in our dealings with policy makers—a central part of our mission—as well as magistrates and political leaders, giving us the power to set precedents for laws and politics that continue to evolve with the changing times. In this arena we relied heavily on the experience and wisdom of sociologist Beatriz Cohen, who had already successfully led the justice program of Poder Ciudadano. In the way, over the last ten years, FARN has sponsored and advised a number of important legal actions, selected from the multitude of problems and conflicts brought before us by citizens. Andrés has been a particularly notable ally in these trials. We also began a period of concerted labor to promote the effective implementation of environmental norms through a specific program which provided training, established indicators of compliance, and allowed us to engage deeply with judges and attorneys. Our goal with this program was to build a culture of respect for the law, which would permit the principle of legality (so frequently cast aside in these latitudes) to take root, and would in turn lead to improved observance of environmental laws and the establishment of concomitant public policies. María Eugenia was and has been the main proponent of this initiative, urging us to develop massive collaborative networks, in which it is particularly important to highlight FARN’s work “elbow to elbow” with magistrates and other representatives of the judiciary in search of common solutions. I mustn’t forget to mention our breakthroughs in the field of conservation, in coordination and cooperation with a number of allied organizations, among them World Wildlife Foundation Argentina (Fundación Vida Silvestre Argentina), Aves Argentinas, and American Wetlands, to name a few. During this period, we also set our sights on topics related to communication and the press; after a few missteps we found the correct person to undertake this task. Federico Sangalli knew how to open up a wide range of contacts and strategies. Moreover, he was successful in integrating a number of visions and voices, such that the organization could reflect a deeper and more collective perspective. To this end he contributed to the “depersonalization” of FARN, working towards its consolidation as an institution.


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VII. Financing Thanks to the support of many national and international donors, we’ve been able to initiate programs that will lead us in many promising future directions. I take the precaution of not naming any of them, as the list is so large that I would inevitably forget more than I manage to remember; the complete list is available on our web site. What is important to point out here is the financial independence which has always characterized FARN. Commitment to this value has been fundamental in terms of establishing criteria for donations, and of course in deciding whether or not to accept contributions from certain sources. In other nations, financial support from the state comes from preapproved budget allocations assigned by the legislature to civil society organizations, and do not depend on the decision of a single government official. This allows organizations to accept resources without assuming personal commitments that later result in the loss of independence. The situation in our country is starkly different, representative of the spill-over of political clientelism in the NGO world. We believe that it is extremely important to consider this issue when it comes time to accept funding. The Future During her two years as Executive Director, Di Paola has brought an outstanding professional demeanor to the Foundation, with a renewed staff and a work ethic which adheres to the logic of teamwork that we have always considered to be essential in the growth of an organization of whatever size. She has led the development of a biannual strategic plan that lends predictability and stability in our activities, the product of participation and continual communication between all the members of FARN. We have recently replaced three of the five members of the Board of Directors who, having completed their two-term limit, have taken leave and moved over to the Consultative Counsel. Among the list of new Board members, I am happy to announce that my friend Peter has returned to the foundation after more than a decade of absence. His incredible journey finds him again reunited in our Environmental Sustainability ship with the same enthusiasm he had in adolescence, and flavored with the experience of many years of work. The Environment and Natural Resources Foundation has become an institution of undeniable importance in our society. We are proud of the past quarter century of work, which has been punctuated by resounding successes, the affirmation of values, and the establishment of what we like to call a “FARN culture.” This culture has forged in the heat, creating a mysticism shared by many valuable people whose enthusiasm has helped it to grow and spread. On


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behalf of these people I wish to remember the former presidents of the Board of Directors, Guillermo Cano, Germán J. Bidart Campos, and Andrea Rodríguez, whose contributions to FARN have inspired in all of us a commitment to continue tirelessly on, in the legal defense of a healthy environment and a model for sustainable development.


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2010: Challenges in the Bicentenary – Executive Summary By Maria Eugenia Di Paola FARN Executive Director1 Translated by Elliott August “He wanted to dream a man; he wanted to dream him in minute entirety and

impose him on reality” The Circular Ruins, Jorge Luis Borges

Executive Summary The bicentenary finds us faced with a broad list of challenges and a complex reality in terms of environment and institutions. The responsibility of distinct sectors is fundamental; nevertheless, one aspect must take primacy in the strategic vision of the distinct social actors: the integration of environmental issues into public and private decisions. The Conference of Parties on Climate Change in Copenhagen was a failure and our leaders still seem not to understand that the lack of consideration for environmental issues in their agendas brings direct and detrimental effects on social and economic activities. Despite this, there is growing number of institutions and people conscious of the need to reverse the course of reality. In this context, diverse trends and challenges present themselves in relation to international and local affairs, executive, legislative, and judicial authorities, the private and academic sectors, the media, and civil society and citizen organizations. Likewise, these trends and challenges are related to a series of environmental and institutional problems that give evidence of their implications. These include the international commitments which have yet to be fulfilled, the lack of public policies for sustainable investment and the production of an official annual environmental report, mining conflicts, a plan for the cleaning up the Matanza-Riachuelo Basin, native forest protection, and waste management, among others. In this sense, the present analysis presents an integrated vision which is much-needed. This vision calls for the transversal incorporation of environmental issues into the modalities and activities of distinct fields in an articulated, inclusive, and participatory manner and the establishment of a new model for development which reconsiders current lifestyle and consumption patterns.

1 I am grateful to the team at FARN for their dedicated help in the realization and revision of this present article. In particular I am grateful to Jorge Ragaglia, María Marta Di Paola, Bernardo Voloj, and Gabriela Vinocur.


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Environmental Federalism in the Bicentenary – Executive Summary By Aldo Rodriguez Salas Director, Department of Environmental Sciences, University of Congress, Mendoza. Translated by Elliott August Executive Summary Argentina’s General Environmental Law established the federal environmental system with “the objective of coordinating environmental policies, aimed at achieving sustainable development, among the national government, provincial governments, and the City of Buenos Aires.” One of the salient aspects of Law No. 25.675 is its ratification of federal environmental agreements – the Constituent Act of COFEMA (Federal Board of the Environment) and the Federal Environmental Pact - thus constituting the federal environmental system, as an axis for the adequate sanction and effective application of the laws of minimum standards and their complementary norms. This system, political in essence, moderates the inherent tension of federalism between local powers and the central power, establishing a space for concertation, by means of the Federal Board of the Environment (COFEMA), which the instrumental core of the federal environmental system. But the system established to resolve the fundamental problem of implementing environmental norms shows notable deficiencies. That is, the system brings about new doctrinal and institutional challenges related the means of implementation, in view of correct application and compliance. When speaking of the adequate sanction and effective application of environmental norms, we allude to the particularities of environmental planning in Argentina. These particularities are what need to be analyzed in order to confront the challenges of implementation. From the body of environmental regulations sanctioned under the new federal regime, it is possible to draw a series of conclusions with respect to the functioning of this system and the problems with its implementation. The updating of the Federal Environmental Pact should be considered a key political instrument for rectifying deficits in the implementation of environmental regulations. Coherence, solidarity, and cooperation constitute the directives for this new stage, and for achieving harmonic functioning of the federal environmental system.


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Justice and Sustainable Development: Environmental Jurisprudence in Argentina’s Two-hundred Years of History – Executive Summary By José Alberto Esain President of AMEAI (Asociación Marplatense de Estudios Ambientales Integrales/ Mar del Plata Association of Integrated Environmental Studies) Translated by Elliott August “When Neil Armstrong took his first step on the moon, he said it would not be a

stride but rather a giant leap forward in the history of mankind. Saving the distance, I believe that the two decisions of Federal Judge Oscar Garzón Funes

(h.) on which I comment in these notes constitute a similar milestone in the history of our country’s environmental law.”

Guillermo Cano, “A milestone in the history of Argentine environmental law,”

published in La Ley, 1983-D, 568. Executive Summary The present article takes us on a tour through the principal sentences of the Argentine legal system on matters of the environment. We must recall that one of the powers which has most contributed to the growth of the discipline has been the judiciary. In many cases, it has been the rulings of important judges which have permitted the discipline to move forward and which have later been included in today’s standing laws. We take advantage of this tour to address a number of different themes, which help to classify and organize the judicial rulings. Furthermore, each ruling is followed by an analysis of the points highlighted by the judge, the comments provoked in legal doctrine and the follow-up actions brought about by the sentence. In this way, this tour of the history of environmental jurisprudence can be thought of as a way to trace the evolution of sustainable development in Argentina.


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Latin America after Copenhagen By Gerardo Honty CLAES (Centro Latinoamericano de Ecología Social) Observer in the COP 15 of Copenhagen in representation of CAN (Climate Action Network) Member of the Plataforma Climática Latinoamericana Translated by Agnes Hevér Executive Summary The outcome of the COP 15 held in Copenhagen in December 2009 was disappointing compared to the mandate set out for it in the Bali Action Plan of 2007. None of the fundamental subject matters were resolved in Copenhagen. The formal negotiations did not reach any agreement. The “Copenhagen Accord,” a text produced at an informal reunion, was not adopted by the Convention. Nevertheless, this accord is open for signature by any country willing to adhere. This method was completely new, and, as such, it raised some concerns about the procedure and the legal form of the agreement. Drafting the Copenhagen Accord parallel to the working groups elaborating the official documents has, and will have, consequences not only regarding the actual content of the accord, but also the climate change negotiation process as a whole. For this reason the outcome of the COP 15 must be analyzed in three parts. First, it is important to look at the political and institutional repercussions of the adoption of the Copenhagen Accord. Second, the actual content of the agreement and its potential importance in Latin America and the developing countries should be addressed. Last, the progress made at the formal negotiations of the working groups. I. Introduction The countries of Latin America did not arrive to the COP152 with a common position. This is not a new phenomenon. It has always been difficult for the region’s countries to agree on a position and have a united voice in the negotiations. Obviously this is a result of the different economic, environmental and productive situations within the region, not to mention the ideological differences. While some economies in the region are highly dependant on oil exportation (Venezuela), others are predominantly agricultural (Argentina, Uruguay). Some countries are small vulnerable islands (such as those of the

2 15th Conference of the Parties of the United Nations Framework Convention on Climate Change in

Copenhagen, 7-19 December 2009.


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Caribbean) while others have large forests (Costa Rica, Paraguay, Brazil and all countries of the Amazon Basin). The economic capacities of the countries of the region show strong inequalities too. For example, the GDP per capita is relatively high in some countries, like Argentina (USD 14,280) and very low in others, like in Bolivia (USD 2,819)3. All these factors make the adoption of a common position in climate change negotiations an extremely difficult task. Generally the countries of Latin America developed alliances around specific topics. Nevertheless, during the last two years of negotiations, a quite permanent political coordination developed among the countries of the Bolivarian Alliance for the Peoples of Our America (Alianza Bolivariana para los Pueblos de Nuestra América, ALBA): Venezuela, Bolivia, Ecuador, Nicaragua and Cuba. As described later, this group was strongly opposed the Copenhagen Accord, and, for this reason, its position will be important next year during the negotiations of the COP 16 in Mexico. The outcome of the COP 15 held in Copenhagen in December 2009 was disappointing compared to the mandate set out in the Bali Action Plan of 2007. However, considering the scant achievements of the consecutive reunions in 2009 prior to Copenhagen, one could not expect better results. On the other hand, it is clear that the way the COP 15 developed, especially in decisive moments, implied an important step backward on institutional terms. None of the fundamental issues were resolved in Copenhagen. The formal negotiations did not reach any agreement. The Copenhagen Accord, a text produced at an informal reunion, was not adopted by the Convention. Nevertheless, this accord is open for signature by any country willing to adhere. This method was completely new, and, as such, it raised some concerns about the procedure and the legal form of the agreement. After two explanatory notes published by the Executive Secretary of the Convention during the month of January, the concerns seem to be resolved, and various countries joined the Copenhagen Accord by the time of writing this article (see Annex 1). Drafting the Copenhagen Accord parallel to the working groups elaborating the official documents has, and will have, consequences not only regarding the actual content of the accord, but also the climate change negotiation process as a whole. For this reason the outcome of the COP 15 must be analyzed in three parts. First, it is important to look at the political and institutional repercussions of the adoption of the Copenhagen Accord. Second, the actual content of the agreement and its potential importance in Latin America and the developing countries should be addressed. Last, the progress made at the formal negotiations of the working groups. 3 Human Development Index 2007-2008, UNDP.


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II. The political and institutional aspects of the COP 15 There is a general agreement that the COP 15 has not been well-led by the Danish government, which held both the presidency of the conference and acted as its host. Even before the COP, the Danish government made mistakes organizing the so-called pre-COP. This reunion was coordinated by Denmark a month before the COP 15 with around 40 ministers invited from other countries. The Convention had already held five consecutive official reunions during the year of 2009 (three in Bonn, one in Bangkok and one in Barcelona). The pre-session in Denmark was considered selective and unnecessary, especially by the countries who were not invited. Later, during the actual COP 15, the Danish presidency committed other mistakes, like announcing two days before the end of the session that two documents would be presented (that later did not appear), based on the texts being negotiated by the formal working groups. This created a great deal of uncertainty and uneasiness, as the working groups were still negotiating the documents and no one understood why the presidency assumed that an agreement would be reached. The last two days were especially complicated, and it became evident that the Danish presidency was not able to manage the conference. The presidency initiated the so-called “High-Level Segment” with the arrival presidents and prime ministers of almost all the UN member countries. As in previous meetings of the Convention in 2009, the negotiations had not advanced in Copenhagen, and many hoped the arrival of the country leaders would resolve the situation. While the leaders made speeches in the Plenary, the formal and informal meetings continued at the Bella Center4. The delegates were running out of time and all those who were not in meetings expected to be called at any moment. Meetings were held at unusual times, for example the last session of the Working Group on Long-term Cooperative Action was scheduled at 4:45am on December 16. The morning of December 18 (the official last day of the COP 15), the Danish Prime Minister and the President of the COP, Anders Fogh Rasmussen, called a high-level informal meeting of a selected group of countries5, but the this meeting did not produce any concrete achievements.

4 The venue of the COP15. 5 It is uncertain which countries participated at this reunion. According to various sources the following countries participated: United States, China, Ethiopia (representing the African Union), Brazil, Russia, India, Sweden (representing the European Union), Colombia, Japan, South Africa, South Korea, Granada (representing the AOSIS), Sudan (representing the G77 and China), the European Commission, Lesotho (representing the Least Developed Countries, Bolivia, Venezuela, United Kingdom, France, Germany, Bangladesh, Maldives, Saudi Arabia (representing the OPEC), Mexico, Australia, Canada, Indonesia, Spain, Norway, Algeria, Gabon, Papua New Guinea (representing the Coalition for Rainforest Nations.


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Early afternoon, while all those at the Bella Center started to accept that no agreement would be reached in Copenhagen, Chinese Prime Minister Wen Jiabao, Indian Prime Minister Monmohan Singh, Brazilian President Ignacio Lula de Silva and South African President Jacob Zuma met to discuss the draft of the Copenhagen Accord. The US President Barack Obama, who had been trying in vain to meet with the Chinese Prime Minister all day, arrived to the meeting uninvited. These five leaders produced a text and circulated it among the representatives of a few dozen countries in hope of gaining their approval. Later the text was presented to the Plenary. While the rest of the delegates continued to work on the “official” texts in the working groups, they were surprised and shocked when the monitors of the Bella Center showed Barack Obama announcing at a press conference to the international public the details of the agreement reached in Copenhagen. Soon after the press conference Obama and most of the country leaders left Copenhagen and returned to their countries. At 3am on December 19 the Plenary of the COP 15 started, where President Rasmussen gave an hour to the delegates to read the text of the accord. As expected, the text of the agreement and the way it was produced and presented raised important debates among the delegates. While the negotiation process and leadership of the COP was strongly criticized and questioned by some countries (for example Tuvalu, Bolivia, Venezuela and Sudan), others supported the agreement (like the European Union, Japan, Lesotho and the African Union). There was also a great deal of discussion about the juridical status of the agreement, and the way countries could join, as it was evident that the text would not be accepted unanimously and thus could not be adopted as a COP decision. Finally, it was agreed to annex the agreement to the official documents of the COP 15 and the Conference officially “took note” of its existence. After 2pm, on December 19, the Vice-President of the COP, Colin Beck, officially closed the conference.

a. Consequences

This brief narrative description of the last days of the COP 15 is not merely anecdotal. It is in fact evidence of the conditions in which the Copenhagen Accord was “approved” and the unforeseeable political and institutional consequences which it may bring. To start, it is still not clear exactly what legal status the Copenhagen Accord holds. Even if many countries adhere, it will not become an official document by the Convention and will not be adapted as a decision, since this requires the consensus of all parties.


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Secondly, the accord could have a profound influence on the G77 + China, a group of 133 developing countries who could not reach agreements among themselves during the negotiation process of 2009. The Copenhagen Accord was created by four of the most important developing economies (China, India, Brazil and South Africa), behind the back of their partners. At the same time, many members of the G77 rejected the agreement (among others Tuvalu, Sudan, Pakistan, Venezuela, Bolivia, Nicaragua and Cuba), while some important groups supported it (like the Alliance of Small Island States, the Least Developed Countries and the African group). Some analysts believe that this is the end of the global climate change governance. The consequences of the production and the presentation of the agreement irreversibly damaged the negotiation process. Others argue the Copenhagen Accord will be the basis of the COP 16 negotiations in Mexico and that the Convention will function as an institutional stop-gap in the meantime.

III. The Copenhagen Agreement

The so-called Copenhagen Accord had no official proponents or adherents at the end of the COP 15. The Secretary of the Convention gave the countries time until January 31 to sign the document. The Secretary also asked the countries to determine their emission reduction commitments and the amount of financial assistance they would be willing to contribute (the latter only for developed countries) and register them in two tables included as annexes to the text. As mentioned, the Convention only “took note” of the agreement. In an explanatory note from January 25, the Secretary of the Convention stated that “the Conference of Parties neither adopted nor endorsed the Accord… its provisions to not have any legal standing within the UNFCCC process even if some countries decide to associate themselves with it”6. This is to say that the Copenhagen Accord is an agreement that was reached during a COP, but is not approved by it. Formally speaking such an agreement is the minimum that can be achieved at a COP, and thus, it can almost be considered as a failure. The way the accord was produced and presented may lead to institutional and political problems in the Convention or become the base of further negotiations. In case it is the latter situation, it is important to analyze the content of the accord and its potential impacts on the developing countries and Latin America (see box).

6 Clarification relating to the Notification of 18 January. http://unfccc.int/home/items/5262.php.


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The Content of the Copenhagen Accord

The Copenhagen Accord is a two-and-a-half page document organized in 12 points. It

also includes an appendix of two empty tables where the Parties can determine their

emission reduction targets.

The first point emphasizes the necessity to hold the increase in global temperature

below 2 degrees Celsius, “on the basis of equity and in the context of sustainable

development”. The second point partly repeats the first point and adds that the peaking

of global and national emissions should be achieved “as soon as possible”. In this point

it is recognized that the time frame for peaking will be longer in developing countries.

The third point states that developed countries should provide financial resources to

support the adaptation of developing countries. Assistance should be provided

especially to the least developed countries, to small island developing states and to

Africa.

According to the fourth point the Annex Parties must determine their emission targets

for 2020. The targets should be submitted in the table of Appendix 1 of the Copenhagen

Accord, stating the emission reduction target and the chosen base year. This way the

emission reduction and financing by developed countries will be measured, reported

and verified internationally.

The fifth point is the most developed; it considers the mitigation actions of the Non-

Annex I Parties what must be expressed in the table of Appendix 21. Mitigation actions

shall be communicated every two years and are subject to “domestic measurement,

reporting and verification” and “international consultations and analysis”. The actions

receiving external financial assistance are subject to international measurement,

reporting and verification.

The sixth point recognizes the importance of a REDD-plus mechanism and the necessity

of its fast implementation. The seventh point recognizes the importance of market

mechanisms.

The eighth point states that developed countries must provide “new and additional,

predictable and adequate funding” to support the mitigation and the adaptation of

developing countries (in particular the least developed countries, the small island

developing states and Africa). For the period 2010-2012 the collective commitment

should reach USD 30 billion and USD 100 billion a year by 20201.

The ninth point establishes a High Level Panel under the guidance of the COP to study

the potential sources of funds. The tenth point establishes the Copenhagen Green

Climate Fund with the aim of administering the funds given to mitigation projects,

programs and actions in developing countries. The eleventh point establishes a

Technology Mechanism to accelerate technology development and transfer.

Finally, the twelfth point states that in 2015 the implementation of this accord should

be evaluated and the long-term goals in various matters should be considered including

in relation to temperature rises of 1.5 degrees Celsius.


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a. The value of the Copenhagen Accord

The Copenhagen Accord is a political declaration of the signatories. As the COP takes note of the accord but does not adapt it, the agreement worth just as much as any other document signed at a reunion of a group of country leaders such as the G8, G20 or the Major Economies Forum. The official declarations of association (the final date when countries can join is not determined) are not legally binding to the UNFCCC. Nevertheless, if a significant number of countries adhere to it, the accord can become the basis of negotiations in 2010. Formally speaking, the document includes the commitments of developed and developing countries in one single document. In previous declarations, the members of the BASIC group (Brazil, South Africa, India and China) recognized the necessity of maintaining the two tracks of negotiations (the Working Group on Long-term Cooperative Action and the Kyoto Protocol) and so create two separate documents. However, the format of the Copenhagen Accord is more a single accord considering together Annex I Parties and Non-Annex I Parties. In this sense this outcome is closer to the idea of the developed countries. Previously the developing countries strongly supported the idea of two separate agreements: one long term for all countries, and one only for the Annex I Parties as a continuation of the Kyoto Protocol. The balance of the evaluation of the content of the Copenhagen Accord is rather poor. Initially the necessity to hold the increase in global temperature below 2 degrees Celsius is recognized. However, the text does not determine quantitatively the emission reduction necessary to achieve this objective and does not set a deadline. The way the text states that the peaking of global emission must be achieved “as soon as possible” shows that the 2 degrees Celsius objective is only a hope. This objective is the least ambitious among those discussed by the Ad Hoc Working Group on Long-term Cooperative Action (1, 1.5 or 2 degrees, as described later), and so it does not show a clear progress. This was one of the most important points of the Bali Action Plan, which gave the objective to the COP 15 to decide on “a shared vision for long-term cooperative action, including a long-term global goal for emission reductions, to achieve the ultimate objective of the Convention”. One of the countries that showed the most resistance to determine targets was China. China also opposed that the Annex I Parties would determine their own commitments. The reasoning of China is that, once the 2 degrees Celsius goal is determined, the CO2 concentration in the atmosphere will be automatically determined7. Once

7 The objective of 2 degrees Celsius raised important political and technical debates. According to the last report of the Intergovernmental Panel on Climate Change, CO2 gas concentration of


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the Annex I Parties determine their commitment, the available atmospheric space for developing countries is determined. This way, indirectly, the limits of emission for developing countries are set, and China with other countries is against that. One of the most promising aspects of the Copenhagen Accord is the quantification of the financial assistance provided by the developed countries to the mitigation and adaptation in the developing countries. Although the developed countries committed to contribute less than expected by the Convention and by other international organizations, for the first time a sum appears in a decision project. Besides, we must keep in mind that the proposed sum ($30 billion in 2010 and 100 billion by 2020) exceeds the original offers of the industrialized countries at the beginning of the COP (see Annex 2). Another new element of the accord is that these contributions will be added to all those already promised. Another important point is the request of mitigation targets both from the Annex I Parties and the Non-Annex I Parties, although in a different way. The accord obligates the industrialized countries to determine fixed emission reduction targets for 2020. Sadly the accord does not determine a global limit, a minimum percentage requirement or any quantification, and for this reason, the reduction targets are likely to be insufficient. According to the text, the Non-Annex I Parties must establish mitigation methods and inform the Convention about the established methods. Fixed targets or characteristics are not defined for these countries either. It is stated that all projects receiving international financial support must be monitored internationally, but the rest of the projects can be monitored on the national level. Finally, the Copenhagen Accord mentions the establishment of the Copenhagen Green Climate Fund, a Technology Mechanism and a High Level Panel, in order to support the transfer of resources to the developing countries. However, the Accord does not determine the structure and operation methods of these establishments. The Copenhagen Accord did not resolve all problems. For example, it did not agree on the legal architecture of the future treaties of the COP 16. The United States and some other developed countries propose a new protocol to the Convention including the major developing economies (like China, Brazil and India), while these economies would prefer a revision of the Kyoto Protocol, keeping separate the commitment of developing countries and industrialized countries. This has been one of the most controversial topics of discussion, and, as a structural dilemma, it affects all other matters if discussion. Another

450ppm provides a 50% chance of limiting warming to 2 degrees Celsius. For a 85% probability, the

concentration should be reduced to 350ppm.


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problem, related to this one, is the fact that the COP15 was not able to establish a legally binding agreement. The signed accord does not even oblige the COP 16 to establish a legally binding agreement. China, India and Saudi Arabia firmly opposed to give the COP 16 such objectives.

b. Conclusions In conclusion, the ratification of this accord would only resolve two subject matters discussed in the Working Groups: the amount of funds provided by the Annex I Parties and obligatory mitigation for the Non-Annex I Parties. The uncertainty regarding all other subject matters remains, as the negotiation documents of the Working Groups do not define any action (discussed in the next section). Looking at the actual content of the document we can say that the developing countries have nothing to lose, considering their current situations. Their only new commitment is the establishment of mitigation methods, without quantitative targets, what probably would have been set if the negotiations had reached an agreement. But they gained something: the higher than expected new and additional quantified financial contribution commitment of developed countries. However, as mentioned earlier, this only considers the text itself and not the process. Given the method this accord was reached, signing it can mean the acceptance of a certain way of action within the Convention and set a precedent with possible negative consequences in the future. The developing countries may later pay an excessively high price for the financial assistance they receive if they sign the Copenhagen Accord. In the Convention on Climate Change two games are played simultaneously. One of them is the global climate future. The other one is the future of global governance. Probably the Copenhagen Accord is a step forward, although small and far from a satisfactory solution to the climate crisis. On the other hand probably it is an important step backward in the construction of global democratic governance.

IV. The Special Working Groups The COP15 did not only produce the text of the Copenhagen Accord, it also advanced in the drafting of texts on topics being discussed by special Working Groups, like the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol (AWG-KP) and the Ad Hoc Working Group on Long-Term Cooperative Action (AWG-LCA). The AWG-KP started to negotiate in 2006 and had its 10th meeting in Copenhagen. The AWG-LCA started to have session in 2008, Copenhagen being its 8th session.


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The achievements of these groups were not important, as they did not manage to resolve the fundamental problems. These results were foreseeable, as the working groups did not show any progress during the previous meetings. Nevertheless, the mandate of these working groups have been extended to the COP 16, the Convention has another year to reach an agreement. The initial 200 page draft of the AWG-LCA including different options and 2000 brackets8 was reduced to its quarter, suggesting some issues were resolved. The final report of the AWG-LCA after the Copenhagen conference is divided into 10 entries: a shared-vision on long-term cooperative action, adaptation, mitigation, financial resources, transfer of technology, capacity-building, REDD, adverse impacts of the implementation of response measures, carbon market and agriculture. The AWG-KP did not reach any significant agreement. Its principal objective was the establishment of the emission reduction targets of developed countries, one of the most important issues that were not resolved. Using these two final reports we can evaluate the situation at the end of the COP 15 of the issues relevant to Latin America.

a. Vision on long-term cooperative action Consensus on the most important long-term targets was not reached by the Parties regarding the quantity of emission reduction. The options being discussed are a maximum increase of 1 or 2 degrees Celsius in the global average temperature compared to the pre-industrial level. The possible emission reduction requirement levels for developed countries vary from 75% by 2050 (the least ambitious) to more than a 100% by 2040 (the most ambitious) compared to their emission level in 1990. The possible global reduction level ranges from 50% to 90% by 2050 compared to the emission level of 1990. The year of highest global emission is set to be in 2015 or “the earliest possible”. The paragraph determining these levels is in brackets, meaning the text with all the possible options may disappear from the final document; the final decision may not include any concrete numbers.

b. Adaptation

In the Adaptation chapter the Parties did not manage to agree on four basic points: A) The institutional structure of addressing Adaptation matters within the Convention; B) Whether the adverse impacts of the implementation of response measures to climate change should be included in this section (in addition to the 8 If a point is not agreed by all participants at the negotiation, it is bracketed.


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already existing specifications). Some countries whose national product is highly dependent on the exportation of carbon products (mostly oil) claim that restriction on the consumption of these products to fight climate change would have a negative impact on their economies. This should be included as an issue of Adaptation and, consequently, international financial support should be dedicated to these economies; C) Whether the developing countries receiving international funds for the Adaptation should be divided, for example the “most vulnerable countries”, the island states or the countries of Africa; and D) the amount of funding that the developing countries should contribute to Adaptation.

c. Mitigation

In accordance with the Bali Action Plan of 2007 the focus of the mitigation action is different for developing countries (Non-Annex I Parties) and developed countries (Annex I Parties). Annex I Parties The fundamental disagreements regard A) the required emission reduction of these countries (varying from 25% to 49%); B) the base year (1999 or 2005); and C) the deadline (2017 or 2020). The emission reduction targets of the Annex I Parties are not only important because they establish the probable global emission level and the increase in global temperature, but also because they determine the size of the future carbon market, as in case of ambitious emission reduction targets the industrialized countries would need to purchase more external emission reduction certificates. Besides, it could determine the emission limits for Non-Annex I Parties. If there was an agreement determining the global emission limit for a future date, for example 2050, the Annex I Parties’ targets would determine the “atmospheric space” available for the emissions of developing countries. As mentioned earlier, this is one of the reasons why China opposes that the developed countries determine their own emission reduction targets in the Copenhagen Accord. Another important disagreement is on the percentage of these reductions that must be completed domestically and the percentage that can be completed using the international carbon market (known as supplementarity). Obviously this decision would also have a great influence on the carbon market accessed by the developing countries equally. There is also no agreement regarding how land use, land use change and forestry can help meet the targets. Basically this determines the way Annex I Parties count and value carbon sinks.


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Non-Annex I Parties The Bali Action Plan established the Nationally Appropriate Mitigation Actions (NAMAs). According to this new mechanism developing countries can adapt voluntary mitigation actions with or without external financial assistance eventually subject to international monitoring. This new action could imply different commitments and benefits in function of the final rules regulating them. On principle it is a possible mechanism to transfer resources from industrialized countries to developing countries to support the development of economies with low carbon levels. However, the international monitoring of these actions is viewed by many countries as a threat to their national sovereignty, and, for this reason, they object many aspects of the monitoring process. Besides these core problems, there is no agreement on which activities or sectors should be included in this mechanism.

d. The carbon market

Another relevant topic for Latin America and other developing countries is the future structure of the Clean Development Mechanism (CDM), through which these countries participate in the global carbon market. This mechanism failed to achieve its objectives (contribute to the emission reduction of Annex I Parties and the sustainable development of Non-Annex I Parties) so it is necessary to revise its architecture. Among other criticisms of the mechanism, it is important to mention the poor regional distribution of projects (concentration of 3/4 of the projects in only four countries), the weak proof of additionality (many projects did not demonstrate a real emission reduction and much of the emissions reduction would have taken place without the projects) and the poor contribution to sustainable development in implementing countries. Various alternatives are being discussed to improve this mechanism, but an agreement has not yet been reached.

e. Financing The financial commitment of developed countries to support actions of mitigation and adaptation is another topic of interest for developing countries. While the Convention established the principle, the promised funds have not yet been supplied; the transfer of these resources remains one of the most important negotiating points for developing countries. The texts by the working groups do not determine the amount of funds to be provided for adaptation, mitigation and technology transfer in developing countries. It is specified that this financial assistance should be “predicable, new, additional and greater” and that it should be supplied principally by developed countries. One of the debated options would oblige some Non-Annex I Parties to contribute to these funds starting in 2013. There is no agreement on the institutional structure of the body


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that would distribute these funds or on the alternative sources of funds. On the other hand the Copenhagen Accord does include quantified financial commitments.

f. Technology transfer The countries agreed to establish a Technology Mechanism, an Executive Committee on Technology and a Climate Technology Center. However, they did not manage to agree on the specific functions of these bodies or on the activities included in the mechanism. The most important point of disagreement is related to the purchase of licenses and other questions related to intellectual property rights.

g. REDD (Reduced Emissions from Deforestation and Forest Degradation)

This mechanism provides developing countries with international financial assistance to avoid emissions from deforestation. This is one of the most relevant topics for the region, as deforestation is one of the most important emission sources in Latin America. It is difficult to reach an agreement because of the various political, technical and social aspects of the subject, including: A) Whether these emission reduction certificates can be traded on the carbon market or whether they will be financed as projects; B) the role of indigenous communities in this mechanism; C) Whether the emission reductions should be counted on a national or a sub-national basis; and D) Which activities are eligible for this mechanism (the idea of REDD-plus emerged to include activities such as forest, grasslands and land management, etc.)

V. Evaluation and perspectives “For all the discussed reasons a substantial agreement at the end of the Copenhagen Conference is unlikely. There are still large gaps between the various interests and all existing options involve high costs. Still, the UNFCCC must present some results after such a long and expensive negotiation process. Probably the agreement reached will not be ambitious: the developed countries will commit to low greenhouse gas emission reduction targets and include a wide range of flexibility mechanisms; the developing countries will accept voluntary commitments using NAMAs and the developed countries will provide limited funds to support technology transfer and adaptation in developing countries. Evidently, this agreement will not be able to achieve the ultimate goal of the Convention- to avoid dangerous levels of climate change- nor will it facilitate the sustainable development of developing countries. Just like in Kyoto, the necessary agreement will not be reached, but instead the one which is possible in within the current context of international politics. It will


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be one more step, but only a short step in the face of a global threat that demands long strides, if not a real race against the clock”9. The results of the COP 15 can be evaluated in terms of what is necessary (from the perspective of climate) or in terms of what is possible (from the perspective of politics). The previous paragraph was written in mid-2009 explaining the expectations at the starting point of the Copenhagen Conference. The final results clearly show that there is a large gap between the two perspectives and the COP 15 was not able to make progress. A substantial change in the scene by the COP 16 is unlikely. The possible agreements reached in Mexico at the end of 2010 will be still far from a real solution to the threat of climate change, unless developed and developing countries alike are ready to take ambitious steps. Clearly there are many controversial topics. Still, there are a few fundamental topics which block the achievement of consensus. Three conditions must be met in order to close the gap between the necessary and the possible: 1) developed countries must commit to reduce emission in accordance with an effective mitigation plan; 2) the major economies among developing countries must accept mitigation commitments altering substantially their future emissions; and 3) developed countries must provide sufficient funds to support the mitigation in developing countries. In keeping with the demands of developing countries, the commitments of developed countries must be more ambitious, regarding both their own emission reduction targets and their financial contributions, as they bear the historical responsibility for climate change. Still, in the world of international politics negotiations do not always follow rationality. The final agreement depends on the will of industrialized countries to accept commitments.

VI. The role of Latin America at the COP16 The developing countries strongly opposed to accept fixed emission reduction commitments, claiming their “right to develop” and consequently emit more greenhouse gases. Maybe it is time to reconsider this position to gain political influence in the negotiations and find alternative paths towards development. The available “atmospheric space for development” is excessively limited and does not allow for the development demanded by these countries (at least following the current model). The United Nations’ report on Human Development for 2007-2008 argues that nine planets would be necessary if all countries developed to the North American level. This objective is clearly illusory. It is therefore essential to design strategies for sustainable economies, not only sustainable for the global climate, but also generally speaking for the environmental. 9 Honty, G. (2009). El Nudo de Copenhague. Revista ALAI, Julio 2009


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We cannot ignore the fact that our pursuit of development is undermining our natural resources and, sooner or later, we will destroy the little we have left. Considering the need for transition, climate change negotiations can provide developing countries with an important opportunity on two levels. On one hand, developing countries can advance the negotiations of the Convention and help to reach an effective emission reduction agreement, deactivating the dangerous levels of climate change which can be foreseen. On the other hand, they can receive additional funds to finance their transitions. The developed countries promised to increase their emission reduction targets on condition that the major economies of developing countries accept some sort of emission reduction commitments. If this condition is accepted, the negotiating position of developing countries will improve, regarding both the emission reduction targets and the financial assistance. On the other hand, this would help the developing world to receive funds to finance their transition, which will be necessary anyway to avoid the foreseeable social and environmental debacle if the current development model remains. Not everything is lost in the fight against climate change. But in order to make a progress the countries must change their positions. Considering the developing countries, the only way to move the negotiations forward is by the commitment of the major economies to mitigate their emissions and start a transition to sustainable development forms. This means that the developing countries must accept that they are not all the same, and so their rights and obligations cannot be the same either. Those with greater emissions and greater economic capacities must make bigger efforts in comparison with those with limited resources. Obviously the developed countries should accept greater commitments also, in order to address their ecological debt to the developing countries. But this article focuses on Latin America and on what this region should do. Not everything is lost, but substantial changes in the region’s position are necessary. However, as described earlier, the consequences of the COP15 cannot be summarized only by the content of accords. Many countries rejected the Copenhagen Accord because of the way it came about. This issue is especially important for Latin America, since much of the opposition came from this region: Bolivia, Venezuela, Ecuador and Cuba10. However, one of the main architects of the Accord is from the region (Brazil) and many other expressed their support: Chile, Colombia, Costa Rica, Mexico, Panama, Peru, Uruguay and Trinidad and Tobago. This topic will be certainly discussed by the countries of the regions in the future months.

10 Ecuador has officially rejected the Copenhagen Accord by February 2010.


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The other blocs within the G77 and China also experienced divisions because of the Copenhagen Accord. The countries of the AOSIS11, the African Group and the Least Developed Countries adapted opposing positions at the end of the COP15. The G77 and China as such was challenged, as four of its powerful members worked to produce the Copenhagen Accord behind the back of the others. It is possible that as a consequence of this process new groups form among the countries negotiating and a new alliance system develops for the COP 16 and future conferences. Either way, the Copenhagen Accord is already adapted by a number of countries of the Convention. If it is not taken as the basis of future negotiations, probably no accord will be accepted at the COP 16 and we will have to wait for years to reach an agreement within the Convention. If there is a progress based on the three pillars mentioned earlier (greater commitments of the Annex I Parties, commitments of the Non-Annex I Parties and financial contributions) a conclusion can be reached at the COP 16. The big challenge for Latin America is to find ways to accept the content of the Copenhagen Accord as a step towards the final agreement (the climate change game) and, at the same time, question the way the Copenhagen Accord was produced (the global governance game). Besides, start transitions to ecologically sustainable development economies, as the current development model is not only unsustainable, but also impossible.

11 Alliance of Small Island States


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Annex 1 List of countries that sent communications regarding the Copenhagen Accord by 02/05/2010 (Source: www.unfccc.int) 1. Albania 2. Armenia 3. Australia 4. Bahamas 5. Bangladesh 6. Bosnia Herzegovina 7. Bhutan 8. Botswana 9. Brazil 10. Cambodia 11. Canada 12. Central African Republic 13. China 14. Chile 15. Colombia 16. Costa Rica 17. Croatia 18. Djibouti 19. Ethiopia 20. European Union (Belgium, Bulgaria, the Czech Republic, Denmark,

Germany, Estonia, Ireland, Greece, Spain, France, Italy, Cyprus, Latvia, Lithuania, Luxemburg, Hungary, Malta, The Netherlands, Austria, Poland, Portugal, Romania, Slovenia, Slovakia, Finland, Sweden and the United Kingdom)

21. Fiji 22. Georgia 23. Ghana 24. Lesotho 25. Iceland 26. India 27. Indonesia 28. Israel 29. Japan 30. Jordan 31. Kazakhstan 32. Macedonia 33. Madagascar 34. Malawi 35. Maldives


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36. Mali 37. Marshall Islands 38. Mexico 39. Moldavia 40. Mongolia 41. Montenegro 42. Morocco 43. Namibia 44. Nepal 45. New Zealand 46. Norway 47. Palau 48. Panama 49. Papua New Guinea 50. Peru 51. Philippines 52. Republic of the Congo 53. Republic of Korea 54. Russia 55. Rwanda 56. Samoa 57. Serbia 58. Singapore 59. Sierra Leone 60. South Africa 61. Tanzania 62. Trinidad and Tobago 63. United States of America 64. Uruguay


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Annex 2 The financial contributions offered by developing countries at the COP15 Country 2010-2012 2020 United States12 Agrees to contribute its

quota part of the $10 billion (Commonwealth leaders’ summit commitment, Nov 28)

Declares its agreement to reach the $100 billion per year by 2020 (contribution of all developing countries)

Japan13 $11 billion by 2012 from public funds, $15 billion in total

Not announced

Netherlands €100 million per year in addition to the ODA (Overseas Development Assistance)

Not announced

European Union14 15

€2.4 billion per year till 2012

Indicated that in total €22-50 billion per year till 2020 is necessary to support developing countries, and committed to contribute its part.

United Kingdom €500 million per year for the period 2010-2012

Accepts to pay its part of the $100 billion from public funds and using market mechanisms. Up to 10% could come from ODA.

Sweden €800 million in three years (refundable loan)

Not announced

Spain €125 million per year for 2010-2012. Not additional to the ODA.

Not announced

Germany16 €420 million not additional to the ODA. €110 million derived from the emission auctions of the EU Emission Trading

Not announced

12 Announced by Hillary Clinton, delegate of the United States, at a press conference (17 Dec 2009, Copenhagen) 13 Announced by the delegation of Japan at a press conference (16 Dec 2009, Copenhagen) 14 Point Carbon, 2009. EU Commits to Fast-Start Climate Finance. 11 Dec 2009: http://www.pointcarbon.com/news/1.1328216 15 Information on the promised individual contribution of EU members data from Climate Action Network Europe


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Scheme. €75 million from World Bank funds

Finland €110 million Not announced Czech Republic €12 million by 2012

(refundable loan) Not announced

Belgium €50 million per year (refundable loan)

Not announced

Italy €600 in three years Not announced Ireland17 Up to €100 million in three

years Not announced

France €1.26 billion in three years Not announced Australia18 Agrees to contribute its

quota part of the $10 billion (Commonwealth leaders’ summit commitment, Nov 28)

Not announced

Canada19 Agrees to contribute its quota part of the $10 billion (Commonwealth leaders’ summit commitment, Nov 28)

Not announced

New Zealand20 Agrees to contribute its quota part of the $10 billion (Commonwealth leaders’ summit commitment, Nov 28)

Not announced

16 Regierung Online, 2009. Europe Pledges Billions for Climate Protection. 11 Dec 2009: www.bundesregierung.de/nn_6538/Content/EN/Artikel/2009/12/2009-12-10-europaeischer-rat__en.html 17 Irish Times, 2009. Taoiseach Pledges up to €100 m to EU Aid Fund. 12 Dec 2009: www.irishtimes.com/newspaper/world/2009/1212/1224260596196.html 18 CHOGM, 2009. Port of Spain Climate Change Consensus: The Commonwealth Climate Change Declaration. 28 Nov 2009 www.chogm2009.org/home/node/210 19 Ibid 20 Ibid


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Annex 3 Possible quantified emission reduction objectives as submitted for the COP1521

Source: FCCC/KP/AWG/2009/10/Add.4/Rev.2

21 http://unfccc.int/files/kyoto_protocol/application/pdf/awgkpjointqelrosubmission091009.pdf


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The Botnia Syndrome - The Role of the Public Ministery and Access to Public Information on Environmental Protection – Executive Summary By Enrique A. Viana Ferreira National Attorney in Civil Law, Public Ministry of Uruguay Translated by Elliott August Executive Summary In our region, environmental law is at a crossroads related not only to the protection of the environment. Drama or effectiveness, responsibility or irresponsibility, neocolonialism or Republic: these are the alternatives that present themselves on a daily basis. The time has come to choose, to decide. I have been asked to present and analysis of what the problem of pulp mills has come to mean for Uruguay. In the opportunity afforded to me, I am going to refer to one unique aspect: juridical harm, that is to say, damages suffered by environmental law in the Oriental Republic of Uruguay as the result of certain acts; damages that have not been limited environmental law. It seems striking to speak of damages to the law based on acts or circumscribed behaviors. However, this is the least that can be said when, by means of organized irresponsibility, as ULRICH BECK would say, those who have the public responsibility to protect the environment do everything (or almost everything) possible to not comply with or not apply norms of environmental protection, or to minimize or reduce their enforcement. This is particularly true when the passive subject is a powerful transnational industry. “It is evident that he who is misinformed or informed in an inexact or partial manner, cannot participate adequately or under equal conditions, in a decision making process. The consequence will then will be negative for those who govern and those who are governed, as much for the current generation as for the future ones.”22 “To not prevent a result which one has the obligation to avoid is equivalent to producing it” (final oration of article 3 of the Uruguayan Penal Code).

22 Sabsay, D. (2006). El acceso de la información pública en el noroeste argentino. Buenos Aires: FARN, Fundeser, Embajada Británica.


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Environmental Recomposition of the

Matanza-Riachuelo Basin: A Historical

Opportunity that Demands Political

Commitment and Efficient Management By Andrés Napoli Director, FARN Riachuelo Department. Representative of said organization in the Collegiate Monitoring Body for citizen participation in sentence execution for the environmental protection and remediation of the Matanza-Riachuelo Basin. Javier Garcia Espil23 Legal advisor (2009), FARN Riachuelo Department Environment and Sustainability Department, Direction of Social Rights of the National Ombudsmen Translated by Sarina Sawyer

Executive Summary The grave crisis that the Matanza-Riachuelo Basin is suffering cannot simply be reduced to the pollution of its waterways, but includes diverse economic, social, environmental, political and cultural aspects. Decades of inaction and a lack of comprehensive treatment have converted the Basin into a symbol of contamination and the neglect in Argentina. On July 8, 2008, in a historic decision, the National Supreme Court marked an important turning point in the treatment of the Basin’s problems by sentencing the National State, the City of Buenos Aires, and the Province of Buenos Aires to implement a program of actions toward remediating the Basin’s environment, improving its residents’ quality of life, and preventing future harms. However, more than a year and a half has passed, very few advances have been made, and the situation remains the same. The Plan Integral de Saneamiento del Riachuelo (The Comprehensive Environmental Riachuelo Cleanup Plan) has not managed to translate into adequate management. The majority of the obligations and the planned payments are past due, because the responsible

23 We make clear that the statements and opinions voiced in this work should not be interpreted as belonging to the organization for which this person works, and are purely personal.


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authorities, who observed the arranged judicial mandates, are no longer doing so. The cleanup and recomposition of a basin such as the Matanza-Riachuelo requires the initiative of state policy, an aspect that persists as an unresolved matter.

I. Introduction24 Situated in the heart of the Buenos Aires metropolitan area, the Matanza-Riachuelo Basin (MRB) constitutes a region in which multiple socio-environmental problems converge. The grave crisis that the Matanza-Riachuelo Basin is suffering cannot simply be reduced to the pollution of its waterways, but includes diverse economic, social, environmental, political and cultural aspects. Decades of inaction and a lack of comprehensive treatment have converted the Basin into symbol of contamination and the neglect in Argentina. The Matanza-Riachuelo Basin runs through the jurisdiction of the national government, the Province of Buenos Aires, the City of Buenos Aires, and 14 municipalities along an area of approximately 2.240 km2. More than three and a half million people are concentrated in its interior, many of whom live in extremely poor conditions, without access to essential services such as clean drinking water and sewer systems, access to sufficient housing and adequate health care.25 The deterioration of the conditions of this habitat is produced as a consequence of diverse sources of contamination. Industries that currently have retrograde technology and a flagrant lack of adherence to the current regulation, open air landfills without the slightest preventative measures, and streams of raw effluent and spills of industrial toxins without sufficient treatment are examples of the risk we have grown accustomed to living with.

24 The authors are grateful for the collaboration of Federico Sangalli, Tyler Schappe, and Juan Pedro Cano in the crafting and revision of this article. 25 ACUMAR. Plan Integral de Saneamiento de la CMR. PISA December 2009 http://www.acumar.gov.ar/archivos/web/ACUsentencias/ile/2010_febrero/01/01/010210_PISA.pdf


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The lack of state planning, the absence of basic infrastructure, an inadequate controlling authority, and the irresponsibility of multiple sectors brought the region to a critical state of emergency which urgently necessitates responses to reverse this inertia of degradation which continues growing. In spite of this, the issue of the Matanza-Riachuelo Basin has been systematically absent from the public agenda, lost in a confused tangle of jurisdictions and shared responsibilities among the relevant authorities, with an inconsistent regulatory framework that never manages to comprehensively tackle the conflicts that cause it. The intervention of the highest national court of justice was necessary for the involved governments to begin working together on the development and the implementation of public policies aimed to reverse the prevailing situation of neglect. On July 8, 2008, in a historic decision, the National Supreme Court marked an important turning point by sentencing the National State, the City of Buenos Aires, and the Province of Buenos Aires to implement a program of actions toward remediating the Basin’s environment, improving its residents’ quality of life, and preventing future harms.26

26 CSJN sentence M. 1569. XL.


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However, more than a year and a half has passed, very few advances have been made, and the situation remains the same. El Plan Integral de Saneamiento del Riachuelo (The Comprehensive Environmental Riachuelo Cleanup Plan) has not managed to translate into adequate management. The majority of the obligations and the planned payments are past due, because the responsible authorities, who observed the arranged judicial mandates, are no longer doing so. This article is a continuation of a published work from early 2009, entitled “Una Política de Estado para el Riachuelo” (“A State Policy for the Riachuelo”), in which we present a detailed description of the current situation in the Matanza-Riachuelo Basin, and the different mandates and obligations instituted by the sentencing of the National Supreme Court.27 In this piece we will analyze the course of actions that developed over the last year, prioritizing the treatment of those themes which we understand as structural, with the objective of being able to bring the reader closer to the central themes that have marked the situation of the Riachuelo. II. The Supreme Court Mandates In 2006, as a result of a lawsuit brought on by a group of residents of the Basin, the National Supreme Court intervened, making it so the national state, the City of Buenos Aires, and the Province of Buenos Aires would all have to provide an active response to the problem. In the two years that the “Mendoza”28 procedure lasted, a series of public hearings were organized, generating a qualitative and quantitative leap in terms of the available public information. Finally, the Supreme Court met the demands of the plaintiffs, the National Ombudsman and the NGOs 29 who took part in the trial as representatives of the collective interests, and passed a definitive ruling with respect to the prevention and environmental remediation of the Matanza-Riachuelo Basin. In its pronouncement on July 8th, 2008, the court held the defendant states accountable for establishing the objectives, basic outlines and deadlines of an action plan to implement in the area of the Basin, which we synthesize in the following chart.

27 FARN, Nápoli, A. (2009) “Una Política de Estado para el Riachuelo”. Informe Ambiental Anual 2009. (pp.175-233). Buenos Aires: FARN. Available at http://www.farn.org.ar/riachuelo/documentos/informe_riachuelo_abr09.pdf 28 “Mendoza, Beatriz Silvia y otros c/Estado Nacional y otros s/daños y perjuicios (daños derivados de la contaminación ambiental del río Matanza – Riachuelo),” file number 1569/2004. 29 Environment and Natural Resource Foundation (FARN), Neighbors Association of La Boca (AVLB), Center for Legal and Social Studies (CELS), Greenpeace Argentina and Citizens’ Association for Human Rights (ACDH).


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Ruling of the National Supreme Court on July 8th, 2008 The ruling consists of a mandate which requires the completion of a public policy program, with the methods of compliance remaining at discretion of the relevant authorities. Objectives

1) Improved quality of life of the Basin’s residents. 2) The reconstruction of the environment in all of its components (water, air, and soil). 3) Prevention of damages with sufficient and reasonable degree of predictability.

Charged with the implementation of the program: The Matanza-Riachuelo River Basin Authority (ACUMAR)30, to monitor, without prejudice, the primary responsibilities of the national government, the Province of Buenos Aires, and the City of Buenos Aires. Contents of the Program: i) Creation of a public information system. ii) Quarterly quality reports for surface water, groundwater and air. iii) Control of industrial pollution through the restructuring of the sector, utilizing

inspections of all establishments, declarations of pollutants emitted, and closures/transfers.

iv) Industrial restructuring and relocation of the Petrochemical Hub, South Dock. v) Integrated management of solid urban waste and sanitation of landfills through

preventative measures, recovery of the area and relocation of slums established there. vi) Cleaning of the river banks and streams, converting them to areas for recreational use. vii) Improvement and development of the slums and shantytowns. viii) Infrastructure projects for the expansion of networks of drinking water, sewage

systems and storm Drains. ix) Emergency health plan from studies of diagnosis, epidemiology surveillance, and plans

specifically for medical attention. Compliance Control Adoption of an international measurement system of compliance Levying of fines to officials reluctant to fulfill their obligations Delegation of the execution process-in the Federal Court of First Instance of Quilmes Strengthening citizen participation through the establishment of a member group composed of the National Ombudsmen and the non-governmental organizations involved in the case: FARN, ACDH, AVLB, CELS and Greenpeace. Control of fund allocation and budget execution by the Office of the Auditor General.

30ACUMAR is an inter-jurisdictional entity created by the national government, the Province of Buenos Aires, and the City of Buenos Aires in order to coordinate collective action, for which it has been endowed with a wide breadth of power with respect to the activities with environmental impacts in the Matanza-Riachuelo Basin.


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III. Execution of the Ruling The National Supreme Court, in its landmark ruling, recognized the existence of a collectively violated right, one which could not merely remain dependent on and exclusively subject to the decision-making of the public powers, nor left to the discretion and interests of the administration. Therefore, it mandated the legal obligation to remediate the existing environmental damage in the Basin, imposing on the authorities the duty to achieve results that meet the targets set in the sentence, in order to simultaneously ensure the improvement of the quality of life of the population, the restructuring of the environment, and the prevention of future damages.31 The National Supreme Court left the discretion to the government how they will meet their obligations, notwithstanding any imposed obligation to carry out a series of actions whose achievements should be approved within a certain timeframe. On the other hand, conscious of the difficulties that often impede the effective completion of obligations forced on public powers by court rulings, and those which end up turning the mandates of the courts into mere expressions of will32, the Supreme Court devised a control scheme supported by the creation of a micro-institution33 in order to supervise the stipulations of the ruling, as outlined in the table above. Therefore, the process of executing the sentence is the central pillar on which rests the whole system structured by the Court, which has given rise to an absolutely novel situation as an implementation of a supervising policy aimed at the sanitation and restructuring of the environmental damage of the MR Basin. Principal Actors of the Implementation Process • ACUMAR: Represents the condemned states in the Mendoza trial and is charged with completing the mandated taxes in the sentence.

• Federal Judge of Quilmes: Charged with the implementation of the sentence and leads said process.

• Collegiate Monitoring Body: Represents the public interest in the implementation process.

The deadlines set by the court serve as an essential tool for achieving the set objectives. We must not lose sight of the fundamental reason for which the highest court should take an active role in the treatment Matanza-Riachuelo Basin’s problems—the critical state of emergency in which a large part of its

31 CSJN sentence M. 1569. XL. 32 Nápoli, Andrés. Op cit. 33Lorenzetti, R. (2008). Teoría del Derecho Ambiental. Buenos Aires: Editorial La Ley.


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population finds itself, and the absence of consistent policy implementation. These limits are part of a mechanism aimed at the progressive realization of the results, and are derived from successive presentations that the convicted states have publicly exposed. Nevertheless, ACUMAR questioned the rationality of such deadlines from the moment the sentence was delivered.34 In this regard, both the National Supreme Court, along with the Federal Judge of Quilmes, considered it relevant to not “modify deadlines a priori,”35 “without presenting strictly exceptional circumstances,”36 also stressing that the commencement of the case dates back to 2006 and not after the ruling in July 2008, therefore many of the actions should have already been in motion at the time of sentence.37 At an early stage, it was possible to carry out a special evaluation of the Basin Authority’s actions, the results of the evaluation of the agencies’ operations and state resources, and the need for this novel inter-jurisdictional body to become established in its functions. However, over time the delays in the fulfillment of their responsibilities and their limited commitment to promote action became apparent. This situation was exacerbated by the reluctance of authorities to undertake specific commitments regarding the required measures, actions and works, and the uncertainty as to how they would plan to comply with the judicial mandate. In this sense, the Collegiate Monitoring Body was forced to constantly insist on the need to generate a comprehensive approach to the problem, pointing out continuity of uncoordinated actions and the neglect of key components of sentencing. Also, the Federal Court, after several calls and summons to ACUMAR and other responsible authorities, had to resort back to the application of the fining the head officials38, and demanded to arbitrate the necessary means to achieve a “regional state policy for the Riachuelo.”39

34 Rulings 2103/2106 of the principle decisions and public hearing proceedings before the Federal Judge of Quilmes, July 23, 2008. 35 Federal Judge of First Instance of Quilmes. Public hearing proceedings of July 23, 2008. 36 CSJN, resolution of August 12, 2008, third paragraph. 37 In that respect, it should be noted that already in the initial decision of the Court (June 20, 2006) the presentation of a plan of action was solicited. 38 Fine placed on the President of ACUMAR, Dr. Homero M. Bibiloni, and the Mayor of Lanús, Sr. Darío Diaz Pérez. Resolution of October 27, 2009. See: FARN. Área Riachuelo. Special Edition Newsletter. Octubre 2009. http://www.farn.org.ar/riachuelo/newsletter_riachuelo/NL_riachuelo_especial.pdf 39 Federal Judge of First Instance of Quilmes. Resolution of 10/01/2009, Cons. 5.


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The Collegiate Monitoring Body In clause 19 of the July 8th, 2008 sentencing, the Supreme Court ordered the creation of a Collegiate Monitoring Body integrated with the National Ombudsmen, and the NGOs that took part in the trial in equal capacities.40 Specific Functions: • Represent public interest in the framework of the execution of the

sentence. • Monitor the completion of objectives, goals, obligations, and deadlines set

by the court in its July 8th, 2008 sentence. • Promote and strengthen citizen participation. Members: • The National Ombudsmen • Citizen Association for Human Rights (ACDH) • Neighborhood Association of La Boca (AVLB) • Center for Legal and Social Studies (CELS) • Environment and Natural Resource Foundation (FARN) • Greenpeace Unfortunately, more than a year and a half after the court’s ruling, the state of the Matanza-Riachuelo Basin has barely changed, evidenced by the lack of socio-environmental advances and the many issues that remain. Below, we will discuss some key aspects that make the integrated watershed management, evaluating the accomplishments of ACUMAR in the light of the Court’s orders and the examining judge, and in relation to the environmental policy instruments we consider essential for achieving sustainable development in the Matanza-Riachuelo Basin. a. The Matanza- Riachuelo Basin Authority (ACUMAR) The lack of coordination and consultation mechanisms in the development and implementation of public policies by the authorities within the field of the Matanza-Riachuelo Basin has resulted in one of the major causes of serious socio-environmental deterioration currently present in the region.41

40 Although certain confusion still persists regarding its naming, it is fitting to clarify that the Collegiate Monitoring Body is an organism absolutely independent from the Active Front, whose conformation was also effected by the Supreme Court in the Mendoza Case, in the opportunity to be transferred to the answering of the imposed demands in the cited decisions. 41 For further development see “Informe Especial sobre la Cuenca Matanza – Riachuelo 2003,”


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The creation of ACUMAR42, an inter-jurisdictional public body with broad power and authority with respect to all activities impacting the environment, has been a breakthrough on the way to overcoming the huge institutional fragmentation and unclear demarcation of responsibilities that for decades have prevented the adoption of integrated measures aimed at reversing the deterioration of the Basin. Unlike what occurred with other agencies and programs previously created for the cleanup of the Riachuelo43, ACUMAR works with powers to regulate, monitor and intervene in the prevention, cleanup, restructuring and sound management of the natural resources. The ruling also authorizes it to take preventive measures for hazards to the environment or the physical integrity of the inhabitants of the Basin, and in addition the prevalence of any other jurisdictional rules.44 Nevertheless, the institutional design chosen for its creation was not, in our opinion, the best way to fulfill the goals of coordination and control across jurisdictions. Already on the occasion of legislative protection of the Law No. 26 168 we express, through a presentation that we gave to the Honorable National Congress, that the creation of a river basin organization should have been created by a jurisdictional treaty, in accordance with that established by the first paragraph of Article 124 of the Constitution, respecting the division of powers, and not through the Convention Act which was ultimately chosen.45 We said further that the large number of inherent powers of the local courts concentrated in the hands of the State, far from promoting greater efficiency and functionality in its operation, was going to conspire against the necessary inter-jurisdictional coordination and would eventually overwhelm the jurisdictions.46 Unfortunately, our prediction was not wrong in this regard. The apparent hegemony of the national government in the direction of the organization47, the lack of leadership accorded to municipal authorities48, coupled with an apparent lack of willingness to implement mechanisms for citizen participation, have prevented ACUMAR from placing itself as the body for inter-jurisdictional coordination for that which it has been created. These structural mistakes have

available at www.farn.org.ar/riachuelo. 42 Law No 26.168, adhered to by the local legislatures through laws 13.642 (Pcia. Bs.As.) and 2.217 (CABA). 43 The Execution Committee for the Matanza-Riachuelo Basin (CEMR) was especially created to manage the credit granted in 1998 by the Inter-American Development Bank (BID). 44 Law No 26.168, arts. 5, 6 and 7. 45 FARN, Metropolitan Foundation and AVLB. Report available at http://www.farn.org.ar/riachuelo/index.html. 46 FARN, Metropolitan Foundation and AVLB. Op. cit. 47 Counted with 4 representatives of a total 8 in the Board of Directors. 48 They complete a “consultative” role through the Municipal Board, which has been convened on few occasions.


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been worsened in the presence of institutional weakness as shown by the Basin Authority from the constant turnover of authorities and officials within the body, which in just over three years of existence has modified its structure four times, which has affected its operation, generating a permanent discontinuity in its actions. Permanent Changes Within ACUMAR In the last year and a half ACUMAR’s Executive Director has changed four times and its President has changed twice. This is compounded by the fact that the officials responsible for each of the management areas still have not been designated, nor has the organization set out the mechanisms for regularizing the work situation of who will carry out tasks for the inter-jurisdictional body. Moreover, the Basin Authority has also been unable to develop an adequate management for the task, a situation that is untried if it evaluates the degree of fulfillment of the obligations as determined by the National Supreme Court ruling. The majority of these obligations and deadlines have already been disregarded, and in almost all the cases it is not yet known exactly how soon they will actually come to fruition. The Collegiate Monitoring Body has on numerous occasions signaled these failures in execution, and the noted unacceptable setbacks (such as the postponement of health activities49 and the progressive weakening of the water quality studies50), demanding that the Federal Court impose fines, as is provided in the Supreme Court’s ruling for these cases. In turn, the Federal Court also did the same through a set of resolutions, including those related to inspections to industries, health plans, information systems, landfill cleanups, opening of the towpath, among others, in which ACUMAR was summoned to comply with the provisions of the Supreme Court’s sentence under the threat of fines.51 In particular, ACUMAR continues without complying with the fundamental issues in their charge, including: • Generating concrete advances in the direct cleaning of the Riachuelo.

49Collegiate Monitoring Body, judicial document of 11/26/2009, among others. 50 Collegiate Monitoring Body, judicial documents of 2/23/2010, 12/04/2009, and 10/30/2009, among others. 51 The fines were stipulated in Art. 666 bis of the Civil Code, which says: “The judges will be able to impose the benefit of the law holder, warning condemnations of a pecuniary nature on whoever does not comply with the legal obligations placed in a judicial resolution. The sentences will graduate en proportion to the economic wealth of those who should meet them, and will be able to be left without effect or readjustment if they give up their resistance and totally or partially justify its proceeding.”


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• Addressing the needs of the at-risk population, which suffers as a direct consequence of pollution.

• Efficiently relieving and inspecting the industries established in the WRC. • Commencing the process aimed at relocating of Petrochemical Hub, South Dock.

• Environmentally planning and regulating the CMR territory. Neither have they generated initiatives and demands aimed at enabling people to become interested and involved in activities for the environmental recomposition of the Basin. ACUMAR’s management has been characterized by the isolation of the Basin’s population, which does not form part of the authorities’ priorities, evidenced by their limited physical presence, to the point that their decisions remain unknown to the vast majority of the CMR population. The agency has been reluctant to convene spaces for citizen participation, whose official announcement, it is worth remembering, is no longer at the agency's discretion; rather, Law No. 26 168 ordered the creation, in the sphere of ACUMAR’s responsibilities, a Social Participation Committee (Comisión de Participación Social), composed of organizations with interests in the area and advisory functions. The last meeting made by the same dates from 09/19/2008, can be found in the Basin Authority’s website.52 In this regard, we should note that it took the intervention of the Federal Court of Quilmes to make ACUMAR agree to work in conjunction with the Collegiate Monitoring Body to provide information and discuss various aspects which create compliance with the Supreme Court’s ruling, an issue that it refused successively.53 Citizen Participation and Access to Public Environmental Information constitute essential instruments for the realization of an environmental policy framed for sustainable development. This has been recognized internationally by the Rio Declaration on Environment and Development, and by Argentina in article 41 of the National Constitution and the General Law of the Environment (Law No. 25.675), among other regulations. We believe that, either by their structural weaknesses or the incapacity of their own actions, ACUMAR has not managed to mold itself into a real authority over coordination and articulation of policies for environmental recomposition of the Matanza-Riachuelo Basin, the improvement in the quality of life of its inhabitants, and the prevention future damage. Furthermore, it has not shown the commitment required by the dramatic socio-environmental situation in which millions of people are living, nor taken steps to engage them. 52 http://www.acumar.gov.ar/ 53 Federal Judge of First Instance of Quilmes. Resolution of 07/07/2009.


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In short, it is necessary that the jurisdictional body strengthens itself institutionally, achieving an efficient functioning that, along with the necessary resources and appropriate personal, allows the development of adequate watershed management. For this it is necessary to have a greater geographical presence, to coordinate actions with the various jurisdictions, and to provide the broadest space possible to encourage discussion between the various sectors involved. Once this is achieved, it will facilitate consensus building in the formulation of a comprehensive plan that, with continuity over time, will constitute an authentic state policy for the Riachuelo. b. The Role of the Federal Judge of Quilmes In order to ensure immediacy in decisions and effective judicial review of compliance with the ruling, the Court delegated the execution of the sentence to the Federal Court of First Instance of Quilmes, at the charge of Dr. Luis A. Armella.54 To this end, he was granted exclusive jurisdiction in all matters relating to compliance with the provisions of the 07/08/2008 ruling and all related cases linked to the environmental damage in the Matanza-Riachuelo Basin, additionally resulting in the revision of the administrative actions resulting from the ACUMAR. On the other hand, the Federal Court has the power to order a criminal investigation of breaches of the mandates established by the High Court, and to implement and establish the value of the penalty payments (fines) for breaches of the obligations. One aspect that has characterized the progress of Riachuelo sanitation process in 2009 has been the very intense judicial activity developed by the Federal Court of Quilmes, who took an active role, transcending purely legal and/or jurisdictional questions, and directing his actions towards achieving the substantive objectives set out in the Supreme Court ruling.55 The head of the tribunal has had a permanent presence in the territory of the Basin, holding numerous hearings for the purpose of listening to and exchanging views with ACUMAR, local authorities, public service businesses, the Collegiate Monitoring Body, and other stakeholders. In this sense, his contribution was crucial in the encouragement of comprehensive action planning for the Matanza-Riachuelo Basin, the institutional strengthening ACUMAR, the allocation of funds and budget for the inter-jurisdictional agency by the obliged governments, the initiation of infrastructure projects, and increased access to public information.

54 CSJN, M.1569. XL., ruling of 07/08/2009, Considering 15 and cctes. 55 Collegiate Monitoring Body (2009). Informe Cuenca Matanza-Riachuelo. Buenos Aires.


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On October 1, 2009 ACUMAR required the presentation of “integrating projects” for each of the components of National Supreme Court ruling, resulting in an updated Comprehensive Environmental Cleanup Plan (PISA), which was finally presented in February 2010. Likewise, from the beginning of his performance, the Judge has been monitoring the tasks driving the actions and determining the modalities for the implementation of the judicial orders, among which are the following:

CSJN Mandate

FEDERAL JUDGE OF QUILMES Resolutions

PUBLIC INFORMATION SYSTEM

Ordered the publication and actualization of all the information relative to the advancement of the Cleanup Plan (projects, plans, actions, essays) on the ACUMAR website.

INDUSTRY-ORIGINATED CONTAMINATION

Ordered the intensification of actions in relation to inspections, toward the goal of achieving an average of 20 daily. Required a bimonthly report with respect to the progression of the inspections. Requested the identification of those responsible for evaluating the Industrial Restructuring Processes. Intervened in the preservation of the ACUBA land for the future construction of a Curtiembres Hub. Gathered information relating to the existing Industrial Parks in the CMR.

WATER, AIR, AND SOIL QUALITY

Ordered an integrated analysis of the results, requiring the adoption of levels guide for its better understanding.

PETROCHEMICAL HUB, SOUTH DOCK

Urged the recovery of properties that continue being held usufruct in spite of finding their use permits expired. Solicited special attention and sufficient prediction, expressing that its complexity does not merit any delay in the initiation of its planning.


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CSJN Mandate


SETTLEMENTS AND TOWNS

Pointed out the necessity to avoid new shantytowns and proceed gradually with the urbanization of those already in existence. Solicited planned economic funds.

LANDFILL CLEANUP Requested details on the projected actions, those in progress and already completed, demanding to shorten the deadlines. Impelled the planning of the integrated Management of solid urban wastes in the High Basin.

CLEANING OF THE RIVERBANKS

Demanded the recovery of the “towline path” and its subsequent conversation, as well as work to maintain it.

EXPANSIÓN OF THE NETWORK OF POTABLE WATER

Gathered information with respect to the advance of projects for the expansion of the service, demanding that the water supply covers the entirety of the CMR.

STORM DRAINS Demanded the integration of the distinct projects presented by the jurisdictions.

SEWER CLEANUP Attended to the planned projects in conjunction with their impacts in the south waterfront of the Río de la Plata. Impelled a plan for the construction of the Sewer Drainage Plant of Berazategui. Gathered information with respect to the advance of projects for the expansion of the service, demanding that the water supply covers the entirety of the CMR.

EMERGENCY HEALTH PLAN

Demanded modifications to the present Health Plan, with the goal of implementing an integrated and singular regional health policy in the CMR.


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CSJN Mandate


OTHER ASPECTS Drove the Institutional Strengthening of the ACUMAR, affirming its supra-local standing, and urging the jurisdictions to assume a greater commitment with the PISA and to also ensure the planned funds to undertake the necessary actions for the completion of the sentencing. In that way he also solicited the advancement in the opening of centers in the distinct CMR zones, and the presentation of information with respect to ACUMAR’s personnel, as well as a projection for its final conformation and optimal performance. Required actions around the Territorial Regulation of the CMR. Urged the support of other institutions of the states (security forces, academic institutions, etc). Prioritized Environmental Education in the CMR.

The evaluation of the year 2009 closes with a strong positive balance with regard to the role played by the Federal Judge of Quilmes, given that the attitudes, as well as the measures taken, have contributed substantially to boost the few actions that have occurred in the territory of the Matanza-Riachuelo Basin. Nevertheless, the lack of commitment and the inefficiency evidenced by some of the agencies and authorities required to meet Court mandates make it likely that the task the implementing Judge faces in the future will be equally or more demanding than that from the past year, in applying the instruments provided by the ruling and the law to ensure effective implementation of the objectives set by the highest court of justice. IV. Principal sources of contamination The serious deterioration present in the Matanza-Riachuelo Basin is intrinsically related to the existing imbalance among the various urban, industrial and agricultural activities carried out in the absence of a model for sustainable development.


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a. Industrial Contamination

Discharges, emissions and disposal of pollutants by the industries in the Matanza-Riachuelo Basin contribute the major portion of toxins into the environment. These have a severe impact on the health of the population, and produce degradation in the ecosystems which is often irreversible.56 The Court’s ruling has been extremely proactive in this area, detailing the steps to achieve the sector’s conversion and the cessation of pollution discharges, so that production needs do not imply the sacrifice of the environment and health of the Basin population. In this regard, ACUMAR is required to: i) Carry out inspections of all industries in the Matanza-Riachuelo Basin. ii) Identify, through administrative action, the industries that are

considered “polluting” the environment of the Basin iii) Evaluate and monitor the implementation of training programs for those

companies identified as polluting. iv) Order the cessation of discharges and the closure of polluting facilities

not willing to engage in industrial restructuring. In the first place, the Basin Authority has determined which industries to inspect, for which a survey of 4103 industries was conducted based on existing documentation in the Ministry of Environment and Sustainable Development of the Nation (SAyDS). However, it is presumed that the number would not cover all establishments in the industrial areas of the Matanza-Riachuelo Basin. The 2005 Economic Census found a total of 12, 181 industries, and it is well known that there are numerous informal industries operating outside of any official record57, which has been acknowledged by ACUMAR in the updated Comprehensive Environmental Cleanup Plan (Plan Integral de Saneamiento Ambiental) presented in February 2010.58

56 FARN, Informe Ambiental Annual 2009. Op. cit. 57 Collegiate Monitoring Body, Informe 2009, Op. cit. 58 ACUMAR, PISA (2009), (p.1). Available at http://www.acumar.gov.ar/?idArticulo=8738.


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For its part, the pace of inspections carried out by ACUMAR has been extremely slow, with an average of only 10 inspections made per day, which has enabled the monitoring of barely 20% of the initial list of industries surveyed. In this regard, it should be noted that as long as the progression of inspections does not significantly increase, it will take more than three years to monitor all existing establishments in the Matanza-Riachuelo Basin. We must remember that in the first public hearings convened by the Supreme Court of the Nation (CSJN) for the “Mendoza” case, the former Minister of Environment, Romina Picolotti, affirmed that within 12 months all industries in the Basin would be inspected.59 The truth is that, more than three years later, this task is still pending. The Collegiate Monitoring Body has identified a need to undertake at least 20 inspections a day, which would significantly reduce the time needed to complete this task.60 This recommendation was accepted by the enforcement judge, who has urged the ACUMAR to achieve this objective, and has entrusted the jurisdictions to form a proper Inspector Body to achieve it.61 However, at the closing date of this report, the inspectors of ACUMAR62 have only 20 members on the task of visiting the establishments, so it seems that this is not feasible.

59 CSJN: Mendoza Decision: Public Audience realized on 09/05/2006. 60 The number of proponed inspections assumes the need to monitor a business daily for each of the municipalities of the Basin, the three districts of the City of Buenos Aires, and the three convicted states. 61 Federal Judge of First Instance of Quilmes. Resolution of 07/07/2009. Also it has demanded bi-monthly reports with respect of the progression of the inspections. 62 Created through ACUMAR Resolution 1/2009.


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The slowness demonstrated by the Basin Authority as the first link of the control chain logically delays subsequent actions. To date, the authority should have completed the inspection process, the identification of pollutants, and the assessment of recomposition.63 Owing to the fact that nearly two years have passed since the Court ruling, reality shows us that we are just beginning and that there remains a long way go to see the first results from the control of industrial pollution in the Riachuelo. On the other hand, despite having powers of regulation and legislation in the area of the Matanza-Riachuelo Basin64, ACUMAR has failed to build a solid legal structure that can meet the industrial restructuring and the cessation of pollution, a structure that should have been implemented. The goals set by the body correspond more to maintaining the status quo, than with a genuine process of environmental re-composition. The Member Group has observed repeatedly opportunities in the interaction of the Resolutions: 1/2007 (Consolidated Table of admissible limits for the discharge of liquid effluents), 1/2008 (Regulation of Contaminating Agents) and 3/2009 (Regulation of Use and Objects of Water Quality) tends to consolidate a system of pollution controlled / tolerated contamination which does not address the particularities of the receiving body (Riachuelo), already saturated with pollutants and anoxic conditions in several areas.65 ACUMAR has set a goal of achieving medium to long term water quality in the surface courses of the Basin allowing its use for passive recreation, i.e. without contacting the water. This is because, by failing to set an express restriction66, industries continue pouring heavy metals, causing major health risks. Also, control of industrial effluents is still made on the basis of a concentration criterion, without considering its mass load, so failure to analyze the flow makes it possible to pour large volumes of pollutants by simply diluting the pollutant load with a higher concentration of water.67

63 Programs of Industrial Recomposition along the terms of ACUMR Res. 2/2009. 64 Law No 26.168, arts. 5 and 6. 65 The total absence of oxygen. It hinders the existence of aerobic life (e.g. fish) for only those anaerobic organisms that can survive (e.g. bacteria) 66 It is well apparent that they should limit themselves in the source as much as is technically possible and economically viable. 67 As is explained in the 2009 report of the Collegiate Monitoring Body, the regulations equally treat, for example, and industry which dumps 100 liters of water with concentration X of chromium daily, and on that dumps 100,000 liters daily with the same concentration. However, it is evident that in the second case we are facing a greater contamination.


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Petrochemical South Dock deserves special mention. This industrial park has a great socio-environmental complexity. This is because a number of dangerous industries are located within it68, many of which operate despite the fact that their use permits have expired69. The dock is also notable because it is situated within walking distance of major population centers, as well as the south waterfront of the Rio de la Plata (source of drinking water for virtually all of the Metropolitan Area of Buenos Aires). ACUMAR has not submitted a comprehensive planning aimed at phasing out the use of the Petrochemical Dock. It reported, without specifying further details, the relocation of facilities at the chemical storage companies, and industrial restructuring of the oil industry facilities and producers of chemicals. The criterion used was based purely on the basis of owners the property of companies and not in studies that considered the environmental risks, so nothing has changed this extremely dangerous scenario.

b. Pollution from Sewage Spills One of the major sources of organic contamination in the Matanza-Riachuelo Basin is sewage discharges which receive little or no treatment before they enter the waterways. These come from both households and establishments that do not have public network access70, as well as those that are captured by the sewage treatment networks but for which the treatment is insufficient. The existing system is not large enough to cover the Basin’s population, and is

68 Among them, hydrocarbon and chemical industries, and even a coke plant, stand out. 69 A matter noted by the Federal Judge, who through the Resolution of November 12, 2009, has urged the Province to introduce measures toward the recuperation of the properties. 70 It is estimated that around 55% of the population of the CMR lacks sewage service.


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already overwhelmed, given that for decades it has not received funding for its enlargement, nor relevant extension and improvement. This causes liquid sewage to be spilled into the Matanza-Riachuelo River, or one of its more than 230 tributary streams, which is overflowing the bodies of water whose capacity to dilute is widely surpassed, and ultimately end up in the waters of south waterfront of the Río de la Plata. The Riachuelo and the Río de la Plata The exacted harms in the south waterfront of the Río de la Plata (which in its own right acts as a source of drinking water for practically the entire Metropolitan Area of Buenos Aires), have motivated numerous claims before the business dealer for collection and treatment of sewage wastes. The Municipality of Berazategui, where the Pre-treatment Plant which receives wastes from the entirety of the City of Buenos Aires and the majority of parties within Gran Buenos Aires is located, sued the former Aguas Argentinas S.A. (whose descendent is the state enterprise AySA) for the deterioration of the water resource, and for the product costs owed to the inefficient functioning of the plant.71 Adopting a holistic view of the problem, the CSJN resolved that the controversy should be treated along with the execution of the sentence for the environmental remediation of the CMR, given the link between the responses to both problems.72 The construction of infrastructure works required to address the shortfalls will necessitate major efforts from the community. In this sense, Argentina has agreed in 2009, a multi-million dollar loan with the International Bank for Reconstruction and Development (IBRD, World Bank), which will finance most of the drainage sewage projects.73 The funding agreement is part of the Master Plan prepared by AySA for the provision of water services and sanitation to all of its concession area, and has been analyzed in conjunction with the PISA document of convergence.74

71 Decision “Municipalidad de Berazategui c/ Aguas Argentinas S.A.” For further development consult: http://farn.org.ar/riachuelo/newsletter_riachuelo/NL_riachuelo2.pdf. 72 CSJN M. 2695. XXXIX and others. Decision of July 29, 2009. 73 Of a total of US $840 million in the first stage, US $ 693.9 million is destined to Component 1: Sewer Cleanup. 74 Presented in the file for implementation, October 31, 2008.


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Project for Sewage Cleanup

Source: World Bank, Report No 48433 AR

While we consider it a breakthrough that they will have guaranteed resources to carry out the necessary infrastructure, the history regarding this area forces us to be extremely wary at the hour of monitoring its execution. Do not forget that in 1998 our country signed a loan for 250 million dollars with the Inter-American Development Bank (IDB)75, which was poorly managed for years, resulting in higher costs due from penalty rates, and used mainly for purposes that do not relate to the problems of the Matanza-Riachuelo Basin. In addition, concern remains regarding the impacts that the planned works will produce in the south waterfront of the Rio de la Plata, which will not only receive a higher rate of organic pollution (with a prior treatment whose effectiveness is still under discussion), but also will see an increased toxic load as a result of the dumping of industrial wastes to sewage collectors under the concept that they result as “equivalent.” This aspect has not received sufficient attention from the authorities, whose attention is undoubtedly crucial for the preservation of the Rio de la Plata. The parameters of discharge of industrial effluents “equivalent to sewage” are set forth in the regulatory framework AySA76, but there are no studies to substantiate the tolerable percentage while using a criterion based on the concentration of the effluent rather than the mass load (actual amount of

75 BID loan 1059. 76 Law No 26.221


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pollutant load to reach the water). It is worrying that these parameters have not been reassessed in relation to the capabilities of the receiving body, especially as the plants do not possess technology designed for chemical treatment, and that recent investigations show a growing deterioration in the water quality of the Río de la Plata77. It remains to be seen that, although the tender for the left bank road, lower coast bypass collector, Riachuelo pretreatment plant, and Riachuelo sub fluent emissary plant has been opened, to the closing date for this report, the BIRF financing is still not operative, since Argentina has not complied with the preconditions stipulated in the agreement signed between the parties, one of which corresponds to the concession company AySA, which since 2006 has provided services without formalizing its situation.78 Finally, we should note that while AySA is in charge of sewage sanitation in most of the Matanza-Riachuelo Basin, there are jurisdictions that are not reached by its concession area. Thus, it took a hard injunction by the Federal Court for ACUMAR to consider the situation of the Township of Merlo, belonging to the area served by the company ABSA, which until then had reported little or nothing about its expansion plans.79 Also, the population of the municipalities of the Upper Basin (Cañuelas, General Las Heras, Marcos Paz, San Vicente and Pte Perón) majorly lacks the construction of sewer systems, notwithstanding whose situation was not foreseen by any government body. From the management spurred by Dr. Armella, there were a series of hearings and presentations in which it was concluded that there is a need to define a Plan Director for Water and Sewage of the Upper Basin, which in principle would be executed by AySA, but so far no advances have been reported.80

77Study conducted by the National University of San Martin, cited by newspaper La Nación on September 21, 2009. See http://www.lanacion.com.ar/nota.asp?nota_id=1177058 78 To this moment only works of minor importance have been executed, with financing from the remaining funds of the BID loan, principally assigned to the enlargement of the Southeast Plant, a loan from the Development Bank of Brazil, and resources from the receipts of the business. 79 Document presented by ACUMAR, September 29, 2009. 80 The PISA update presented in Febre 2010 does not contribute major precision in this respect, limiting itself to reporting preparatory works.


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Service Providers for Sewage Drainage

Source: World Bank, Report No. 48433 AR

c. Contamination from open air landfills Open air garbage dumps, in addition to contributing significantly to the pollution of soil, groundwater, and air, constitute infectious outbreaks that threaten the health of CMR population. The Court has ordered both the adoption of safety and prevention measures, along with its eradication, cleaning and decommissioning. In this regard, ACUMAR has submitted reports to the Government of the City of Buenos Aires and the Provincial Agency for Sustainable Development of the Province, which note the existence of 171 open dumps in the watershed.

Photograph taken by Javier García Espil in the secret dump existing in shanty-town 21-24,

around the Riachuelo, Barracas, City of Buenos Aires.


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While the Basin Authority proceeded to geo-reference and categorize the totality of surveyed landfills according to their complexity, action plans to address each of them have not yet been submitted, and projects to address them have only been developed for less than 20% of them. The programs of “prevention and cleaning the micro-landfills in neighborhoods without access to the municipal collection” and bid for sanitation of the 26 landfills in the presence of hazardous waste, have been successful in removing the waste in certain dumping sites. But more information regarding the progress of these programs is still lacking, as is the complementing of actions in such a way that the cleanup can achieve an effective recovery of the premises and not be limited to the mere removal of surface residues. Moreover, these tasks need to be complemented with a strong preventative action, the failure to do so being evident in the growing number of clandestine dumps.81 The generation of landfills, and the difficulties of putting an end to those already in existence, is directly related to the current inadequate waste management in the Basin. The present system, based mainly in the collection and subsequent disposal of waste in landfills in CEAMSE, has collapsed. The sustainable solution to this problem requires comprehensive planning that considers waste throughout all stages: generation, collection, transport and treatment, so as to minimize disposal by burial. For this it is essential that municipal authorities take responsibility for their networks, and under the coordination of ACUMAR promote integrated management of urban solid wastes, pursuant to the Finance Act No. 25 916, and minimum local laws No. 1854 (CABA) and No. 13 592 (Buenos Aires Province). The status of municipalities in the Upper Basin deserves special mention, given that their waste is placed into municipal landfills completely untreated, and without the slightest prevention. It is also common to find people and animals inside the landfills, as well as the open burning of waste there. Nevertheless, and despite the fact that efforts were made to build a Comprehensive Treatment Center by the consortium of municipalities of Cañuelas, General Las Heras and Marcos Paz, it was not possible to move together or propose alternatives. What is worse is the situation of the municipalities of San Vicente and Pte. Peron, which did not even have plans for eradicating the precarious existing dumps there.

81 Of the 105 landfills initially reported by CEAMSE in 2007, we have passed more than 170 in the month of November 2009.


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V. Quality of life in the Matanza-Riachuelo Basin Environmental degradation of the Matanza-Riachuelo Basin directly impacts more than three and a half million people living in its vicinity, most of whom live in meager conditions, with high rates of unmet basic needs and denied access to basic services for an adequate standard of living. ACUMAR, as provided by the ruling of the Supreme Court, should seek to improve the quality of life of the population of the Basin. This is essential to implementing inclusive and progressive public policies to address the critical living situation in which many people find themselves. In that sense, it is necessary to prioritize the emergency in which poor people are found, those who tend to suffer further environmental discrimination, forced to live in dangerous conditions, to move and / or suffer the direct impact of environmental degradation on their physical or psychological health, and with fewer possibilities to assert their rights.82 a. Health The deterioration of the socio-environmental conditions of a community involves severe damage to the health of its population. The impacts resulting from air, water and soil pollution coupled with the inherent vulnerability of poverty, put many inhabitants of the Matanza-Riachuelo Basin in a critical situation of risk, which requires the implementation of public policies for prevention, diagnosis and care. As supported by the World Health Organization (WHO), an integrated concept of health requires the creation of favorable environments for it.83 Thus, in prevention, treatment becomes especially relevant for environmental threats, in order to prevent illnesses caused by unsafe water, poor air quality, or contact with waste, among others. According to studies cited by INADI in its July, 2009 recommendation, improved environmental sanitation would prevent 41% of deaths from respiratory tract infections and 94% of deaths from diarrheal diseases in the world. The completion of the Survey of Environmental Health Risk Factors, ordered by the Court's decision, reported that 96.4% of the population of the Matanza-Riachuelo Basin is exposed to, at the least, a threat of environmental risk.84 They have been established in accordance with the characteristics of the Basin inhabitants’ place of residence, highlighting the lack of basic public services and the proximity to point sources of pollution. Thus, it is necessary that ACUMAR intervenes in conjunction with other components of PISA, in order to reduce the presence of contaminants in the environment and foster greater access to

82 INADI recommendation 07/2009. 83 www.who.int/topics/environmental_health/es/index.html 84 ACUMAR (2008). Plan Sanitario de Emergencia: Fase Diagnóstico. (p.15)


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potable water supply, sanitation, and adequate sewage waste management. It is also imperative to strengthen actions to improve the diagnosis of watershed health. The socio-demographic map presented by ACUMAR, while utilizing relevant information, is not sufficient to specifically identify the most vulnerable groups. It still lacks an appropriate tool to prioritize the implementation of specific programs. With respect to health care for the affected population, the addition of the Epidemiological Surveillance System (Sistema de Vigilancia Epidemiologica) and a greater geographical presence for the strengthening existing health centers will improve the situation. However, there remains a long road to ensure the creation of conditions which would assure medical service for all in the case of sickness.85 The monitoring of detected pathologies is not clear, and there are still vast areas of the Matanza-Riachuelo that lack care centers and whose distance from hospitals (only a few of which are able to respond to certain complex events) is too far.86 On the other hand, one can notice significant differences between the health services provided in different jurisdictions within the Basin, which not only reflects a lack of coordination between them, but also reinforces existing inequalities in the CMR. That is why, taking into account that about 40% of the Basin population has no other health coverage than Public Sector87, it is imperative that ACUMAR exercise its role as an inter-jurisdictional agency coordinating actions to develop a comprehensive health policy and to ensure for all the CMR inhabitants the effective exercise of their right to health. b. Drinking water Water is an essential element for human beings. Besides being a natural resource essential to the existence and sustenance of life, it is necessary for many activities, and as a result its availability or lack-there-of marks a constraint on development. In the Matanza-Riachuelo Basin it is estimated that 35% of the population lacks access to a safe water supply from a public network. This implies that they must find a water supply by their own means, either by purchasing drums or drilling into underground watercourses. The high cost of bottled water and the progressive decline in groundwater quality, highlighted by the discharge of industrial wastewater pollution and inadequate sewage disposal as a consequence of the lack of available sanitation

85 International Covenant Economic, Social, and Cultural Rights, art. 12, inc d). 86 For example, in all of the High Basin there is not a single provincial or national hospital, showing the lack of effort to attend to the health of the population in the proposed municipalities. 87 Plan Sanitario de Emergencia (According to the resolution of the Federal Judge of First Instance of Quilmes, 10/01/2009) p. 4.


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systems, would put many people in the Basin in an extreme situation of vulnerability and socio-health risk, violating their most elemental human rights.88 The extension of potable water supply networks is a key aspect to improving the quality of life of the inhabitants of the Basin and to preventing future damages.89 The Supreme Court ruling, and the target set by the Federal Court of achieving 100% coverage of water supply services and sanitation in the Matanza-Riacheulo Basin90, have been a powerful impetus for the planning the expansion of existing networks, which has materialized mainly through the “Director Plan” (Plan Director) and the program “Water + Work” (Agua + Trabajo)91 carried out by the state company AySA. However, the relevance of the works remains uncertain, and it is not known to what extent it will supply a greater number of people with access to drinking water, or how it will contribute to such access and in what timeframe.92 On the other hand, we must remember that AySA’s concession area does not cover all of the Basin, making it essential that ACUMAR’s specifically move forward in the planning for the Higher Basin93 (Master Plan for Water and Sewage of the High Basin) and for the Municipality of Merlo.94 Finally, ACUMAR has not taken steps to identify and attend to those people who are dependent on groundwater for their needs, and are living in places where it is unfit for human consumption, which constitutes on of the principle causes of disease in the region.95 In this regard, the Basin Authority has shown a weak territorial presence and lack of implementation of citizen participation mechanisms, by failing to respond to residents of different locations who have gone to ACUMAR for assistance with, among other things, the provision of safe drinking water.96 Consequently, there has been increased prosecution of claims,

88 As developed by the organizations ACIJ, CELS, and COHRE in their work, “El accesso al agua segura en el Área Metropolitana de Buenos Aires: una obligación impostergable” (2009), access to secure and potable water is a fundamental right which intrinsically relates to the rights to life, to health, sustenance, dignified life, education, and an adequate standard of living. 89 Collegiate Monitoring Body, Informe 2009, Op. cit. 90 Federal Judge of First Instance of Quilmes. Resolution of July 7, 2009. Cons. 28º). 91 Program for the extension of secondary networks through agreements with cooperative neighbors. 92 Collegiate Monitoring Body, Informe 2009. Op. cit. 93 Constituted by the municipalities of Cañuelas, Gral. Las Heras, Marcos Paz, Presidente Perón and San Vicente, approved by the Federal Judge of Quilmes, September 3, 2009. 94 Belonging to the concession area of the business ABSA. 95 According to a report by the Minister of Health of the Nation, gastrointestinal illnesses predominate in the CMR, contracted mainly from the consumption of unsuitable water. For a more complete exploration of the ill-effects of the consumption of unsuitable/unsafe water, consult the works realized by the World Health Organization at: http://www.who.int/water_sanitation_health/diseases/diseasefact/es/index.html . 96 CELS (2009). En busca de soluciones judiciales para mejorar la calidad de vida de los habitantes de la Cuenca Matanza-Riachuelo. Capítulo VII del Informe Anual 2009, Derechos Humanos en la Argentina.


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resulting in the issuance of precautionary measures to ensure access to essential provisions of water.97 c. Dwelling The Matanza-Riachuelo Basin, especially the lower basin and the central basin98, is affected by a severe housing crisis, with thousands of people living in shantytowns, transitional housing and informal settlements.99 This complex situation affects low-income sectors that are excluded from traditional modes of access to adequate housing, and in many cases are forced to live in highly contaminated sites, in precarious conditions, and with a glaring lack of state planning. In the Basin there are abundant populations settled in unfit places. Contaminated floodplains, riverbanks and streams, and even open dumps have been occupied as a result of the desperation to find a place to live. The National Supreme Court in its ruling of July 8, 2008 was not blind to this problem, as bettering the quality of life of Basin inhabitants was long established as one of the objectives of the cleanup plan. The court also requested information on the progress and the estimated timeframes for the urbanization of settlements and villages, and demanded measures to eliminate the dwellings on landfills and to prevent new ones.

97 Such is the case of the residents of Barrio San Ignacio, located in the municipality of Esteben Echeverría, who, sponsored by the organization ACU, managed the installation of water tanks. 98 Conforme lo resuelto por el Juzgado Federal en fecha 3 de septiembre de 2009, comprenden la Cuenca Baja, los Partidos de Lanús, Avellaneda, Lomas de Zamora, y la Ciudad Autónoma de Buenos Aires, la Cuenca Media los Partidos de la Matanza, Ezeiza, Merlo, Morón, Esteban, Echeverría y Almirante Brown, y la Cuenca Alta los Partidos de Marcos Paz, Cañuelas, General Las Heras, San Vicente y Presidente Perón. 99 Documents cited by CELS in its report “Más mercado y menos derechos: la respuesta del Estado a la crisis habitacional” (2008), point to a lack of dwelling for 400,000 people in the City of Buenos Aires alone in 2002.


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Distribution of CMR Shantytowns and Settlements

Source: ACUMAR - PISA 2009 The Federal Court, meanwhile, gave greater specificity to these demands of the Court to order that ACUMAR plan a comprehensive project before December 31, 2009, to prevent new settlements and to gradually proceed with the urbanization of existing ones. On the other hand, during the execution of the sentence other conditions emerged that pose additional challenges with regard to the housing situation for Basin residents not mentioned in the Court’s decision. Measures such as the release of the towpath, and the development of infrastructure, such as building plants and aeration of water projected by AySA, may require the removal or relocation of residents from their current residences.100 In relation to these points and through various pronouncements, the enforcement judge has ordered ACUMAR to do the following: 1) To present a report containing details of the actions and/or plans for

the final eradication of informal settlements, or failing that, the alternatives provided, so that their presence does not hinder the

100 Fairstein C. y Tedeschi S. (2009). El saneamiento de la CMR y el respeto del derecho humano a la vivienda adecuada de sus residentes, published in Newsletter 6 of FARN Área Riachuelo. See http://www.farn.org.ar/riachuelo/documentos/nota_fairstein_tedeschi_riachuelo_nov09.pdf


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achievement of the objective of the cleanup of the riverbanks, and any other necessary work that that is impeded or hindered.

2) To report on progress of works to transform the banks of the Riachuelo

into a park area, specifically requiring the exact details of the works and the amount of people that could be affected by them.101

3) To initiate the gradual eradication of the villages settled on the banks of

the river and dismantle the structures that are vacant, for which they must ensure the funds are sufficient, letting it be known to the economic departments of the National State, the BAC and the Province of Buenos Aires.102

4) The environmental remediation of the Matanza-Riachuelo Basin

requires the recovery of many damaged areas which host family dwellings, as well as the implementation of essential infrastructure that may require removal or relocation of residents from their homes. It is therefore necessary to look at this situation from a sustainable viewpoint, enabling a comprehensive response that contributes both to the objective of improving the quality of life of the inhabitants and of the Basin.

As pointed out by Fairstein and Tedeschi, this exceptional situation requires the need to address the problem in a way that considers the social impacts that will occur before, during and after the evictions, and strict enforcement of existing legislation and with respect to the principle human rights.103 “We must ensure the right to adequate housing, especially for those residents living in the most vulnerable situations, given that it must not be forgotten that in its decision on July 8, 2008, the Supreme Court ordered that the sanitation program of the Matanza-Riachuelo Basin be directed amongst other objectives to improving the quality of life of the inhabitants of the Basin. As the right to adequate housing is an essential component of the right to an adequate standard of living, the court order required the improvement and not the degradation of the current living conditions and housing for residents of the Basin.”104 Finally, we should indicate that the actions taken by various jurisdictions,

101 Federal Judge of First Instance of Quilmes. Resolution of 07/07/2009. 102 Federal Judge of First Instance of Quilmes. Resolution of 09/03/09. 103 Among those that were stressed from the Basic Principles and Directives about the evictions and displacement generated by the development produced by the Special Rapporteur regarding adequate shelter as an integral element of the right to an adequate standard of living and the right against discrimination, Sr. Miloon Kothari (A/HRC/4/18 February 5, 2007). 104 Fairstein, C. y Tedeschi, S., Op. cit.


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relating to the Federal Plan for the Urbanization of Shantytowns and Unstable Settlements (Plan Federal de Urbanizacion de Villas y Asentamientos Precarios)105 and other local plans are still in their early stages, and it is not possible to know in detail the scope thereof. As of March 2010, although the general policy guidelines to be implemented have been presented, they have not yet completed the surveys to quantify and identify people who should be relocated106, so it is not possible to measure the breadth of actions required and the budget required for this purpose. VI. Planning The complexity and magnitude of the tasks to be developed in the sphere of the Matanza-Riachuelo Basin, and the interdependence of the various conflicts that arise, require an approach which together considers all the components of the problems, which is essential for the development of comprehensive planning at the river basin level. The National Supreme Court, through the resolution in which it stated its original jurisdiction, expressly demanded the submission of a Comprehensive Environmental Cleanup Plan (PISA), establishing some minimum content that cannot be avoided.107 In this regard, there were a number of projects presented which were assessed108 by an Expert Committee from the University of Buenos Aires (UBA), whose conclusions were highly critical. Opinions of the UBA Expert Committee The plan lacks an integrated approach. Its structure is composed of a summary and reorganization of documents and proposals, some of which were planned in advance or in course with the execution of distinct levels of government. � There is not a consideration of future scenarios, nor a consensus vision of the river basin in the framework of the Plan.

� Different versions have been presented, and a consolidated structure for the plan has not been defined. At the same time, a classification or hierarchical

105 The same is developed by the Sub-Secretary of Urban Development and Housing of the Ministry of Planning, Public Investment, and Services of the Nation. 106 It should be noted that with respect to the City of Buenos Aires, that constitutes an evident failure to comply with that stipulated in art. 2 inc 1 of Law No. 2057 of the Environmental Emergency of the CMR. 107 Sentence of June 20, 2006. Following the criterion established by Law No. No 25.675, some of the central aspects that the Cleanup Plan should contain were marked, among those the following are stressed: environmental zoning of the territory, monitoring of the development of human activities, a program of environmental education, and a program of public environmental information. 108 Various versions and documents related to PISA were presented, among those that which are stressed: Plan Integral de la Cuenca Matanza Riachuelo. (August 2006) and the Informe de Avance del Plan de Acción desarrollado sobre la Cuenca Matanza Riachuelo. (02/20/2007).


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organization of the existing problems in the CMR is lacking. � Indicators which allow for the objective verification of the degree of progress for the proposed actions have not been defined.

� It has not passed that the plan is structured according to a logic aimed at achieving the stated objectives.

� Equilibrium in the manner of approaching the distinct components, programs, and activities does not exist.

� The presented action schedules are inconsistent. � Those people responsible for implementing the actions of each component/program have not been identified.

� Health is not considered as one of the central focuses of this work. The plan lacks a diagnosis of the health situation, as well as epidemiological studies which allow for the differentiation of pathologies produced by the contamination of the air, ground and water, from those which are not dependent on these factors.

� The total sum of money appropriated to health has not been specified, nor has the schedule of investments.

� The information presented in relation to the composition of the industrial establishments in the river basin is provisional, and there are no reliable state sources/references.

� The consulted sources for the drafting of the plan correspond to studies, figures, and estimations which do not reflect the current state of the situation in the CMR.

ACUMAR, through resolution 8/2007, subsequently approved the Executive Summary of a “Comprehensive Environmental Cleanup Plan of the Matanza-Riachuelo Watershed,” whose full text is still unknown, since it was never published. The sequence of documents produced by ACUMAR since its creation in 2007, more resembled bureaucratic instruments designed to meet the obligations imposed by the law, than a solid construction in which to state the objectives, projects and activities to be developed in the short, medium and long term in the region. The lack of a clear horizon in the policies implemented, as with the continuity of uncoordinated actions and the impossibility of fully knowing the mode in which ACUMAR planned to comply with the ruling of the National Supreme Court, spurred a Federal Court summons requiring the submission of “integrated projects” in relation to each of the ordered program components.109 a. The new Comprehensive Environmental Cleanup Plan (PISA) Finally, on February 1, 2010, ACUMAR presented before the Federal Court of Quilmes an extensive document entitled “Update to the Comprehensive 109 Resolution of October 1, 2009. See point III.-b)


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Environmental Cleanup Plan (PISA), December 2009”110, through which it assesses what has been accomplished to date and reports the objectives and action lines to be implemented in subsequent years. The PISA is structured around the demands set by the National Supreme Court, and whose formulation is expressly ordered by the JFQ on 10/01/2009, and consists of the following lines of action:

Since the closing date of this article coincided with the presentation of PISA, we will carry out only a preliminary analysis of it with the objective of placing emphasis on those aspects that are most relevant.111 PISA: Preliminary Observations � The complete text of the new version of PISA still has not been approved through a decision of the Directive Board, published officially.

� One can observe fallacies regarding the contents of PISA which determine its real scope. In that sense, the plan compiles a collection of documents and existing projects, presenting others which up to this moment had not been published, and which if well structured within the Logical Framework of

110 http://www.acumar.gov.ar/archivos/web/ACUsentencias/file/2010_febrero/01/01/010210_PISA.pdf 111 For a more detailed analysis of PISA see: FARN Área Riachuelo Newsletter. http://farn.org.ar/riachuelo/index.html.


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planning will not mange to interrelate in a comprehensive way, or at the least such interrelations will not be evident.

� Its conclusions result in repeated inadmissible opportunities for vagueness and ambiguity for a government instrument, avoiding giving precision with respect to the concrete actions and the timeframe in which they will be executed, being similar on occasion to mere expressions of desire.

� It tells with certain consistency in how it refers to the projected infrastructure projects, but lacks solvency and development in questions that relate to ACUMAR’s environmental management.

� It puts off the initiation of actions which already were planned previously (as happens in the case of attention to public health).

� The completion of activities is conditioned on assumptions whose event depends on the exclusive responsibility of the Basin Authority (as is seen in the case of dwellings and air and water quality studies).

� The presented plan for the monitoring of industrial contamination does not permit knowledge of how and when inspections will be in effect, nor the number of inspectors who will carry them out, nor the manner in which the project will subsequently proceed with the reconversion of industries.

� Though it does well in mentioning the need to re-adapt regulations, it does not specify which regulations need to be modified, or the objectives which it expects to achieve with these changes.

� It plans to culminate with the designation of those in charge of the different sectors of ACUMAR for the month of June 2012, which will make difficult the possibility of carrying forward projected actions.

� ACUMAR does not take on its leading role with respect to the Environmental land use planning. Far from proposing the achievement of the planning and implementation of this essential instrument for environmental policy112, the Basin Authority limits itself to promoting actions and drawing up technical documents. It is evident that they do not agree with the importance of conceiving the Matanza-Riachuelo Basin as a unified geographical unit, nor act with the authority that they have expressly been conferred in the 5th article of the law of their creation.

� In not specifying the estimated cost for each of the planned activities in the diverse components of PISA, it is evidenced that the planned projections have been achieved with broad strokes, without factual support, and without a correlation to the budget approved by the National Congress.

� ACUMAR’s recurring refusal to introduce mechanisms of citizen participation is worrysome. A plan which expects to become an authentic State Policy requires the construction of a consensus among the diverse actors involved. In this sense, the Basin Authority has limited itself to inter-jurisdictional and inter-ministerial consulting, without integrating in its debate the vision of the socials organizations that work in the Basin.

112 Expressly recognized and impelled by the General Law of the Environment (Law No. 25.675, arts. 9 and 10).


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The Collegiate Monitoring Body has urged ACUMAR, the national governments, and the governments of Buenos Aires Province and the City of Buenos Aires to form a broad consensus with other political forces, and the economic and social actors from the basin territory, to reach the decisions necessary to comply with the Supreme Court ruling.113 We hope that this matter effectuates itself, so that this new opportunity for the Riachuelo manages to transcend rhetoric and translate into concrete actions, ones that actually improve the quality of life of its inhabitants and lead to the remediation of the environment. VII. In conclusion No one doubts that the problem of the Matanza-Riachuelo Basin constitutes the principle socio-environmental conflict affecting our country, not only as a result of the serious pollution, but also for the number of people affected. Despite the complexity of the matter, its diverse political, social, economic, environmental and cultural variables had never been the subject of a joint approach among the involved jurisdictions. The few plans and policies that were undertaken, and those that were once announced, such as the famous “1000 Day Plan” during the administration of former Secretary of the Environment Maria Julia Alsogaray, failed miserably. The decision of the Supreme Court opened a historical opportunity to reverse the situation and achieve, ultimately, sustainable development in the watershed. This has helped elevate the consideration of the Matanza-Riachuelo Basin in the public agenda, and to mobilize greater activism by public authorities in its treatment. However, with over a year and a half which has passed since the Court held the national government, the City of Buenos Aires and the Province of Buenos Aires responsible and ordered them to recompose the Basin, there are few developments and many remaining issues. Even when one can note some positive aspects aimed at providing the necessary solutions for a population at critical risk that has already suffered sufficient delays and frustrations, the balance in terms of management is still strongly negative, as much with both the obligations and deadlines established by the Supreme Court, which have been for most part, ignored. The ACUMAR authorities have been unable to implement coordinated management policies at the watershed level, with few accomplishments in the PISA framework. This situation is exacerbated by the lack of a comprehensive strategic vision, particularly with respect to structural aspects such as environmental planning, industrial conversion policy, healthcare for the population, as well as the lack of solid long-term goals, especially those that 113 Collegiate Monitoring Body. Op. cit.


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relate to environmental remediation, and the total absence of instances for consensus building in which neighbors and interested parties can get involved in the process of reconstructing the Riachuelo. As we did in our report of 2009, we believe that the problem of the Matanza-Riachuelo Basin still requires the startup of a state policy and a clear political commitment from the highest authorities of the National Government, the City of Buenos Aires, and the Province of Buenos Aires; this is an urgent requirement because it still remains an unresolved matter.


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The Role of Civil Society in Contexts of Mining Conflicts By Jimena Psathakis Coordinator of the Extractive Industries Program at Fundación Cambio Democrático Jorge Ragaglia Assistant in the Governance, Environmental Policy and Conservation Department at FARN Translated by Jacob Petersen Executive Summary The increasing importance of extractive activities – especially mining – in Argentina and various countries in the Latin American region, has generated a rise in socio-environmental conflicts. The roots of these conflicts lies in the use of natural resources, essential for the subsistence of the communities that since ancestral times have inhabited the affected regions. The controversy that revolves around mining industries and their impact on the rights of the population to a healthy environment and to water give evidence of the insufficiency and/or inefficiency of the traditional problem solving mechanisms. They also generate the need to search for new strategies and approaches, which integrate the perspectives of all the social and institutional actors involved in or affected by these conflicts. Increasingly, a new and effective model for dealing with mining conflicts involves autonomous, organized and informed participation by the Civil Society Actors (CSA). Actions which strengthen the role of civil society, channeled through projects like the one mentioned in this text, are fundamental in providing legal tools and instruments that allow communities to exercise an effective social control over activities that are potentially harmful to the environment and the natural resources, and for which Argentine law demands the realization of environmental impact assessments with ample citizen participation. On the other hand, it is also becoming clear the need to propose innovative new approaches for the constructive treatment of socio-environmental conflicts. According to all prognoses, these conflicts will continue to increase due to the


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exponential growth in the demand for natural resources. The collective action of the CSA to promote public policies can without a doubt contribute in generating and consolidating a public institutionality, prepared to face, in an effective and democratic form, these complex conflicts associated with the access to water and mining activities, in particular, and with the environmental and territorial regulation, in general. At present, there is a favorable situation for the CSAs to assume a leading role in conflicts management, because of the institutional changes that have affected mining governance during the last years.

I. Introduction

Increasingly numerous and complex, public conflicts which emerge at a local level exceed the regulatory capacity of the traditional political institutions of our representative democracy (the Executive, Legislative, and Judicial powers), challenging us to search for new ways of approaching them. This is especially true for socio-environmental conflicts. In accordance with the prognoses which indicate that they are steadily increasing because of the exponential demand for natural resources, it becomes essential to consider their particular characteristics and recognize their complexity. Socio-environmental conflicts are characterized by the conjunction of diverse and heterogeneous actors, the presence of interests often not represented, the multiplicity of jurisdictions that form part of the dynamics, the extensive technical information at hand, the manifestation of impacts in different spacial and temporal scenarios and the new social movements that put the environmental themes on the public agenda. These characteristics make socio-environmental conflicts particularly relevant, in terms of governance and the search of consensus, both in situations of immediacy and in the larger process of generating public policy. In Argentina, among socio-environmental conflicts, the conflicts revolving around extractive industry, and more specifically around mining, have characteristics and attributes that distinguish them from the rest: their economic magnitude, their environmental impacts and their background and socio-environmental and institutional context. Conflicts revolving around mining and its impact on the human rights of the population – including the right to a healthy environment and to water – make evident the insufficiency and/or inefficiency of the traditional conflict-resolution mechanisms. They are also evidence of the need for new approaches that integrate the perspectives of all the social and institutional actors. Increasingly, a new and effective model for dealing with mining conflicts involves autonomous, organized and informed participation by the Civil Society Actors (CSA). CSAs are natural protagonists in the search for desired solutions


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to these conflictive situations because they: 1) attend to the necessities of the most vulnerable groups at the local level and have the potential to make alliances which optimize their social impact, 2) can serve as a channels to structure social demands towards other sectors, including public, private, academic, and 3) have the capacity to impact public environmental policy and contribute to environmental sustainability. CSAs thus play a key role in the framework of social change theory and conflict transformation. Essentially, they do this by exercising their capacity for social control and collaborative advocacy in public policies and articulating the generation of spaces for democratic dialogue aimed at finding solutions to socio-environmental conflicts.

II. Context: mining activity and conflict

a. The situation in Latin America Through reforms inspired by neoclassic economic models, during the decade of the ’80s and ’90s, public policies were oriented towards making the normative frameworks more flexible in order to promote external investment, among other purposes. The process of structural adjustment was common in all countries in the region. In this sense the majority of countries reformed the legislation regulating mining activity in order to favor such investment. The first was Chile (1983), followed by Peru (1991), Argentina (1993), Brazil (1996), Bolivia and Guatemala (1997), Honduras y Venezuela (1998) and Ecuador (2000). Parallel to this process structural economic reform and the opening of national markets, which was the product of the Washington Consensus and stimulated by the Earth Summit in Rio de Janeiro during the year 1992, there was a process of social mobilization. This mobilization involved a multitude of social and indigenous organizations and gave way to the manifestation and emergence of numerous socio-environmental conflicts related to large scale extractive industry projects, with a leading role played by foreign capital (hydrocarbons and metal mining). During the nineties, starting with changes in political majorities, constitutional reforms and other macro-oriented processes, mining also underwent a transformation. In this sense, many countries in the region, at the same time undertook structural adjustments, liberalization of state regulation, privatization and decentralization, also developed new constitutional legislation, in which they incorporated economic, social and cultural rights.


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These elements are characteristic of the Social State based on the Rule of Law and collective rights (or third generation rights), which include the right to a healthy environment, to access public information and to collective legal protections. Many such reforms introduced new mechanisms for participatory democracy and decentralization was promoted, giving governments and societies greater political capacity to define local models of development. These institutional changes had an impact on mining governance to the extent that they juxtaposed a stimulative framework for investment with new rights and means for participation by civil society114. This presented a scenario of debate and disputes between the social actors, with a state that needed to strengthen its institutional capacity in order to achieve the democratic transformation of conflicts. Technological developments in mining and a strong increase in the global demand for minerals and metals, since 2003 (in part thanks to the economic growth of China), has led to a significant increase in foreign investment for mining exploration and exploitation. As a result of this, Latin America has been the world leader for investment in mining exploration for almost two decades. b. The Situation in Argentina In Argentina, like other countries of Latin America, the 90s brought about the creation of a new normative framework for the mining sector, with judicial guarantees and fiscal incentives for investment. In the context of increasing global interest in mining, this opened the gates for a large scale investment process, dominated by multinational mining companies from the United States, Canada, Australia, South Africa and Europe, and oriented primarily towards the metal mining115. According to reports by the National Mining Secretariat,116 during the last years there has been a big increase in mining activities in the country.117 Projections

114 During the last years, new legal arrangements started appearing in some countries, which encounter the State with a renewed protagonism of regulation and development of the mining activity. For example, in Ecuador, in 2008, the Constitutional Assembly extinguished the mining concessions generated during the previous phase and in January 2009 issued a new Mining Law that promulgate the authority of the State of the mining recourses and leaves the private sector only as a delegated member. This new model of mining governance allows for the anticipation of new axis of conflict in the future and new challenges ahead. 115 This new fiscal framework was accompanied by a policy of state capacity strengthening with financing from the World Bank through the program Argentina Project for Technical Assistance for the Development of the Argentine Mining Sector (PASMA I and II) with the aim to develop and strengthen the system of public management of mining and to support the authorities of application (development of unified systems of information, capacitating personal, among other activities) 116 La minería en números, (2008); Secretaría de Minería de la Nación 117 ”Record levels of investment, exploration, export and generation of employment, added to an increase in projects, a greater development of local providers, the highest salaries in the industry and the execution of tasks in a framework of environmental and social sustainability”


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indicate that “the national production of metalliferous minerals will increase by over 40% during the year 2009, reaching a new historic record”118 In this scenario, the manifestation of conflicts related to mining has increased exponentially over the past few years, accompanying the growth curve of foreign direct investment for large-scale mining. The current situation of governance establishes patterns, structures and regulations around mining, which have become increasingly contentious. The main reason for this is that mining activity is stimulated without adequate and socially legitimate territorial and land-use planning. Secondly, this occurs because of the current institutional configuration gives mining organisms a central role in regulatory enforcement and minimizes the role of non-mining organisms and other public authorities in the evaluation and environmental control of the activity. In third place, conflicts occur because citizen participation in the decision-making process is discouraged. In fourth place, mining lacks an adequate system of access to public information which reduces uncertainties in relation to the development of the activity. Lastly, the activity lacks adequate channels for demands related to the social distribution of the economic resources associated with mining.

III. Collaborative advocacy and democratic dialogue for the transformation of socio-environmental conflicts

Conflicts based on the relationship between people and their environment, or so-called socio-environmental conflicts, have increased considerably in past decades. Such conflicts, including those related to mining, are social realities which, because of their nature and their impact on the public sphere, involve not only social and environmental considerations, but also economic, cultural and political implications. A multiplicity of factors linked to the operative development model can directly or indirectly contribute to the emergence of these phenomena. Among other drivers, it is worth mentioning the intensive exploitation of recourses, excessive consumption, access to land, population growth, unequal distribution of income and the scarcity or absence of adequate public policies, among others. A situation may be called a socio-environmental conflict when two or more interdependent actors are in disagreement about the distribution of specific material or symbolic elements linked to the control over, use of and access to natural resources and act based on these perceived incompatibilities. This definition integrates the diverse components which are characteristic of socio-environmental conflicts: a. Transformation. With the intrinsic implication of change, conflicts are dynamic and have an inherent energy that can manifest itself in negative or positive ways. The form that this energy assumes depends on the

118 http://www.mineria.gov.ar/01.htm


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decisions made by relevant actors over the course of evolution, in relation to the elements linked to the conflict.

b. Power. Power struggles between public, private and social actors across distinct sectors lead to lobbying and the formation of alliances and coalitions, which serve to strengthen their access to, use of and control over strategic resources. In this sense, power asymmetries are one of the most explicit causes in the emergence of conflict.

c. Culture. Conflict is a social construction, the product of different meanings and interpretations that the involved people ascribe to actions and events. The increasing revival and recovery of ancestral traditions, based on the relationship between humans and the natural environment, make visible the contrasts between different world-views: traditional and modern, native peoples, rural and urban communities and modern society. These differences in beliefs and principles generate specific worldviews which constitute a relevant factor in the dynamics socio-environmental conflicts.

Mining conflicts are understood here as a type of socio-environmental conflict, in which there is disagreement with respect to the valorization of the social, economic and environmental impacts of mining activities, and consequent confrontational behavior between involved actors. These controversies create a tense interdependence between multinational extractive companies, government organisms on the provincial and national level, distinct organized expressions and mobilizations of civil society and native peoples. This is the framework of analysis of the conflicts that emerges from large-scale mineral exploitation. Increased mining activity in the country has been accompanied by an increase in the polarization, and the escalation of conflicts surrounding the installation and the operation of the so-called mega-mining projects. Fearing that the mining projects will have negative impacts on land and local water sources, the affected communities and other social actors have tried to block them, expressing frustration, in many cases, with the absence of improvements in their life quality, despite the high profits generated by mining companies. From a transformative approach, the different stages of a conflict are recognized, and diverse strategies are weighted to facilitate the evolution towards constructive phases.119 Upon emerging and manifesting itself, conflicts traverse stages of confrontation create awareness of the problem at a societal level and equilibrate the power between stronger and the weaker actors. This

119 A transformative view on the management of conflicts, more than looking at isolated conflict episodes, tries to understand how these episodes are inserted in a larger pattern of human relations and institutions. The difference is understood both in the level of the most urgent or immediate themes like at the level of the most general patterns of interaction and of the structural problems above which they operate.


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stage generally involves strategies of confrontational advocacy, which empowers those who lack voice to demand changes in the existing structures, norms and policies. The transformative focus emphasizes the need to complement confrontational strategies with collaborative strategies. The transformative approach aims at moving the conflict from confrontational and violent dynamics towards other more constructive processes framed in democratic institutionality, operating in diverse spheres and on different levels simultaneously. It is not about implementing fast solutions for the most urgent problems, but about generating platforms for actors and institutions which can identify causes, operate at a crisis level and bring about change in social and institutional structures, as with the patterns of underlying relations. Dialogue favors processes of democratic and constructive transformation in mining conflicts. However, the conditions are not always ripe for dialogue to occur. Therefore, many processes referred to as dialogues are dysfunctional and end up frustrating the expectations of participants. In order to generate the proper scenario for dialogue and clear goals for those who participate, it is necessary to promote and construct minimum conditions which help to generate confidence in a process with clear rules. A few of these minimum conditions are described below:120

• Political will: An indispensible condition for dialogue about social conflict is the existence of legitimate and sustained will on the part of involved political actors and their commitment to the space of dialogue. Many experiences have been unsuccessful and have produced fatigue or disillusionment because the space of dialogue has been used as an electoral strategy or as a stage setting without the existence of real commitment by the officials from the state structures to transform the conflict in question.

• Legitimate Facilitators and Institutional Endorsement: Usually, to generate trust among diverse actors, spaces of dialogue require backing from more than one institution, since it is hard to find a single actor who recognized and considered legitimate by all the parties involved in the problem. For this reason, and depending on the actual case, it is sometimes useful for an external actor to call for dialogue, or a group of organizations as an “umbrella,” in order to generate the initial confidence needed for the actors to want to participate.

120 Pruitt and Thomas (2008). Diálogo Democrático, Un Manual para Practicantes. PNUD and others.


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• Inclusiveness: In order to guarantee a sustainable and transparent dialogue, it is important to identify the diverse perspectives that should be represented. This requires cautious work at identifying the actors (individuals and organizations). Depending on the strategy and the goal of the process, it is possible to decide to involve a microcosm of representative actors, a conjunction of strategic actors with representativity, or decision making capacity, or a model oriented towards wide participation. The choice will depend on the type of change that is sought, since it is not the same to design a strategy to address an escalating crisis as it is to design processes for the design and/or implementation of public policies.

• Access to relevant and dependable information: the goal of the dialogue implies that the participants have capacities and resources to increase their knowledge of the problem and of the diverse perspectives. This requires making information with these characteristics public, as elements to strengthen and enrich the deliberation decision-making process. When information on a particular topic is not available, or cannot be made to reach all in a dependable way, there is an absence of the minimal conditions to advance the understanding of the problem, and as a consequence, to promote responsible deliberation on options and decisions.

• Power equilibrium: An evaluation of the power dynamics among actors is also a condition for a genuine dialogue. In some cases, face-to-face dialogue is not possible until focused action is taken to equalize power and the capacities of the groups of actors to participate in the space in a constructive manner.

A good tool for the equilibration of power in a non-confrontational manner is that of collaborative advocacy. Collaborative advocacy is a type of advocacy that involves a variety of persons and groups in a collaborative process, planned, oriented towards the results and sustainability in order to advance a specific agenda oriented at social change. This differs significantly from the more traditional focus of advocacy that puts emphasis on the use of confrontational strategies in order to obtain its objectives, which generate multisectorial ties between actors and offers a process through which the non-governmental actors can initiate the change in a successful manner through the collaborative actions. When all the actors have a say in the policies that affect them, these policies are not only better, but also more feasible to implement and not obstructed by social and political blockades. Appropriate previous conditions for the democratic treatment of conflicts are important, since they make it possible to open spaces of dialogue and


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deliberation where information, impact and consequences of the conflict for all affected sectors can be requested and analyzed, in this way promoting mechanisms of agreement and institutional decision-making for the elaboration of policies that allow for the inclusion of affected actors. Democratic Dialogue approaches complex public problems in a form that is complementary to existing institutions. It is a tool to lead complex social processes and to resolve public conflicts. Its intent is to establish processes of consultation and consensus-building between the social actors who can find common ground on their perceptions and interests. The process is open and focused on the positive transformation of the relations between the parties and the construction of sufficient trust to reach agreement for collective action. Its application to environmental conflicts especially for generating public policy supposes the participation of different actors involved in a problem associated with accessibility and use of the natural resources in a given territory in a process of dialogue which can transform their relations and promote a sustainable development based on consensus. The architecture and the rules of the game for mining in Argentina appear to require the promotion of inclusive processes that integrate the perspectives of the different sectors, so that decisions can be made by those who suffer their impacts. From this projection, the field of dialogue and constructive conflict management seem to augur processes that contribute to the transformation of confrontational dynamics, with interaction with articulation that facilitates the generation of sustainable communities. Within this framework, the constructive transformation of the mining conflict means strengthening the key role that the non-state actors play in exercising their capacity for social control and collaborative advocacy for sustainable development policy. At the same time, it requires the articulation of new spaces aimed at democratic dialogue in the search for solutions to socio-environmental conflicts. The role of articulation indirectly allows for:

• The provision of transparent and publicly accessible information about the economic and environmental processes associated with mining.

• The strengthening of communities’ capacity for participation in decisions that made about local development and the environmental land use planning, as well as the evaluation of the social and environmental impacts of specific mining projects.

• An increase of the institutional capacity of the State to implement reliable regulatory processes.


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It seems very unlikely that all these changes in mining governance will be produced in the absence of democratic dialogue processes to generate the necessary consensus.

IV. Why Actors from Civil Society? As mentioned earlier, the multiplication of conflicts makes it clear that the environmental and social liabilities of mining has created enormous mistrust among actors from the affected communities. Furthermore, the local communities perceive scarce benefits from the activity, without seeing a sustainable local and regional development as a counterpart. As a consequence, they have begun to manifest their concern for the rights to access and use natural resources, for the management of the socio-environmental impacts, and for the distribution of costs and benefits of mining activities. Before the immense criticism confronted by large companies as a consequence of the current distribution plan for mining revenues, argue the high risk which this type of investment entails. They also emphasize the technologies used to mitigate environmental impacts, which are very costly but at the same time very effective. Actors of the mining sector point out that the multiplication and radicalization of the mining conflicts will halt investments, with negative consequences for national development and breach of judicial security. On the other hand, communities are questioning the capacity and the legitimacy of the State as a natural mediator to settle socio-environmental conflicts – since the State often lacks adequate tools - and questioning its obligation to protect the rights and interests of citizens before private interests121. They cite the lack of access to reliable information about environmental impacts and the weak enforcement of private sector activity, the deficiency of the public institutions to enable the institutionalized expression of citizen concerns, as well as the lack of inclusive and participative decision-making processes. There is a chronic lack of capacity and social trust in governments regarding the political and technical application of principles of public interests in the evaluation and control large-scale mining projects. This is accompanied by a

121 In this way, it does not seem odd that when the provincial governments contemplate possibilities for large investments in extractive projects – of hydrocarbons or mining – these are seen as being tempted to treat the environmental questions with the largest laxity possible, often by-passing them in the planning, for the purposes of imprinting a great flexibility to the procedures of granting the corresponding licenses. To the permanent deficit of capacity and social confidence in the governments surrounding the application of environmental norms for projects of large-scale mining, is added the disadvantageous position with respect to the State and the private sector in which civil society is found today, regarding the participation in these processes of informed and efficient manner, through which the possibility that environmental and social risks are generated, or irreversible damages are made, becomes evident.


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weakness in civil society to participate in the aforementioned processes in an informed and effective manner. This generates environmental and social risks in the short, medium and long term, for which an urgent solution must be found. This is associated with the necessities and limitations of the civil society actors in their work. A large number of civil society organizations do not even have legal recognition, and are simply groups of people united around a common set of problems. Because of this, they face countless difficulties in accessing genuine channels for participation and advocacy with a view to resolve these problems. This institutional precariousness is also what makes it difficult for them for establish links to other organizations or groups which could enable them to share experiences or work in networks to achieve a greater impact than through isolated actions. There is not a flow of communication and interaction with other sectors (public, private, academic) which contributes to the climate of distrust and reduces the possibility of undertaking joint actions or projects. The need to strengthen the role of these actors thus proves unequivocal. They are an essential part of this equation based on their potential to lead collaborative initiatives for conflict management and processes of democratic dialogue. Furthermore, a strong civil society is essential to achieving a better balance of power; a dosage of equity must be introduces into the framework that, during decades, has been notoriously unequal, in terms of the capacities and possibilities of involved actors. It is clear that when all can make their voice heard with respect to the policies that affect them, these policies will not only be better but they can also be implemented more easily, and the risks that they do not reflect the true necessities of the people will be much smaller. On the other hand, the organizations of the civil society are key actors for the purpose of achieving solutions for the problems that afflict communities. They attend to the necessities of the most vulnerable groups, maximizing their social impact by means of alliances, and can work as conduits for social demands directed at the aforementioned sectors (public, private and academic). They can develop the capacity to influence environmental public policy, contributing to improved application of the principles of sustainability and intergenerational.122 For these reasons, it is essential to promote links between the actors and organizations in the civil society. At the same time, organizations should be strengthened through tools for internal organization and common methods before shared environmental problems. It is important to promote synergies and to generate, strengthen and consolidate sectorial and intersectorial spaces (between the social actors and the other sectors) for the purpose of experience-exchange, dialogue and the construction of alliances in order to construct a common and sustainable strategic vision to have a bearing on the public policies that are oriented at sustainable development. 122 Principles worked out in art. 4º of Law 25.675.


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The promotion of an inclusive and empowered society will lead to the consolidation of its contributions and impacts on policies of sustainable development. A renewed conception of democratic dialogue in which social agents participate, empowered and conscious of their capacities and possibilities, where they in a decisive manner, can contribute to discovering ways of solution for the conflicts that hold the potential to permanently and irreversibly harm whole ecosystems and communities.

V. An Initiative for Strengthening Civil Society

a. Context

In the beginning of 2008, the European Commission – in the framework of the foreign aid programs sponsored by the Corporation Office EuropeAid – launched for the first time in Argentina the call “Non-governmental Actors and Local Authorities in Development.” This was an open initiative in which numerous non-governmental organizations participated by presenting projects. Those projects which were chosen would gain access to financing from EuropeAid for the execution and implementation of activities. In this opportunity and after and evaluation process performed by competent organs of the European Commission, FARN and the Foundation for Democratic Change (Fundación Cambio Democrático), partners in the elaboration of the project were selected for the subvention for the initiative “Strengthening the Actors of Civil Society for the Exercise of the Rights to Water and the Social Control of the Mining Activity in the Cuyo and NOA regions of Argentina.” The general objectives of the initiative were:

1. To promote the strengthening of the Civil Society Actors (CSA) in their capacity for social control and collaborative advocacy in public policies for sustainable development in the regions Cuyo and NOA.

2. To promote the construction of environmental citizenship based on the creation of spaces for democratic dialogue seeking to find solutions of the socio-environmental conflicts.

The specific objectives of the initiative were:

1. To strengthen capacities for action of CSAs on public policies linked to the exercise environmental and water rights and the impacts of mining activity.


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2. To foment, assist and monitor the production and joint execution of projects to mitigate the impact of mining activity on the exercise of the right to water.

3. To create awareness of the importance of collaborative approaches to environmental conflicts and promote the rights to water at a national and Latin-American level.

The objectives of this project were focused directly on addressing those questions that, being structural and deep, are the principal reason for the notable increase conflicts around mining, as well as the access and preservation of essential natural resources like water. Water is a resource that, in regions like Cuyo and NOA, carries great importance, since its shortage has been intensified by pertinacious and more and more permanent drought - strengthened by the already visible effects of climatic change and the desertification – and also by the use, with little and inefficient controls, by high mountain mining operations. When the project finalizes – which according to its schedule should happen in September 2010 – it is the hope that the actors of the civil society will have the capacity and responsibility to promote synergies, generate, strengthen and consolidate sectorial and intersectorial spaces of interchange of experience and of dialogue. This, through a better access to public environmental information, an extension of the participation in the decision-making process and access to the justice in environmental matters, as well as through the fomentation of a more symmetric relation between the civil society and the authorities which allows them to unite by means of democratic dialogue. So, the ultimate aim that the initiative pursues is to shape a network of civil society with the human, methodological and technical capacities to exercise the right to water, the right to a healthy environment and social control of the mining activity in the region. Furthermore, the aim is to open spaces for participation in formal decision-making processes for those whose role has been reduced to a minimal expression, since decision-making historically has been the patrimony of governments and companies or groups of companies with the exploitation rights. Those who have been excluded are, ironically, those who are most affected by the environmental and health damages produced by mining activity, which has often been undertaken with little regard for the basic principals contained in the laws of Minimum Standards of Environmental Protection.

b. Activities of the initiative 1. Stage – Diagnosis

Information was gathered at a provincial, regional and national scale. This was elaborated in a map and an observatory of situations of mining conflicts and


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their impact on water resources the region. The map allowed for the realization of an initial diagnosis of the political, social, environmental, economical and legal dimensions of the situation; in brief, about the principal conflict actors, processes and themes. This information made it possible to draw a static baseline around the principal mining conflicts in these regions. Concerning the Conflict Observatory, it implies a dynamic analysis of the variables that shape the baseline to detect the most adequate moments to realize different types of interventions, evaluating possibility and risk factors in the context, points of tension and agreement between relations, underlying values, among other questions. The investigation was based on primary and secondary sources, including interviews with key actors (by Skype, email or telephone) and different kind of documentation (legislation, evaluations of environmental impact, projects, news articles, provincial, regional and national statistic information, etc.). Surveys were designed and administered with the different CSA, authorities and academics so that they could present the required information. It was necessary to relieve, in order to integrate it into the diagnosis, the implementation of the environmental laws on a provincial level and specifically with respect to the access to information, citizen participation, access to justice, strategic tools in the environmental matter (environmental regulation in the territory and Evaluation of the Environmental Impact), legislation about water and the mining theme with the purpose of constructing the map and the observatory. In this way, the empowerment component of the project was based on a phase of diagnosis, in this case with a fundamental character, that bring forward the realities and critical situation, products of conflicting interests, whose results invariably have played a leading role in the generation of social, economical and environmental conflicts. On the one hand, we find ourselves with a formidable growth in investments and projects of large-scale mining, as a product of the great magnitude of the mineral reserves still existing in these provinces. On the other hand, the fact that the majority of these projects are situated in such regions as Puna and the High Andes – whose soils are characterized by their high aridity – motivate that the water is considered as a resource for the communities of extraordinary value for their development. Precisely the water that so many lack here, is one of the main components in the mining companies’ operations, that use it in such exorbitant quantities that their daily consumption number cause a genuine shiver to the common observer.

Stage 2 – Strengthening of capacities Once the necessary diagnosis has been completed in order to establish which are the mining conflicts in the regions and who are the CSAs with interests in or


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that are affected by them, the next step was to undertake the necessary capacity building in order to approach the different issues that presented themselves in relation to this theme. Two workshops were carried out, one in each region, for the exchange of experiences between the CSAs and the transfer of capacities and tools for the analysis and approach to local socio-environmental conflicts. These workshops sought to transmit fundamental tools for participation, access to the information and access to justice in such a way so as to achieve the empowerment of these actors in order for them to be able to collectively influence public policies on this topic. The training phase was carried out based on the methodology of the structured theoretical-practical workshops with a participative dynamic, in which the different tools (mentioned earlier), that emerge from the field of conflict resolution and of the present normative plexus.

Stage 3 – Response Fund

For the purpose of contributing at least partly to the mitigation of the negative aspects of serious mining conflicts, the project has a last stage consisting of an open call. This call was announced on November 30 2009 and allows the organizations or groups of people in civil society to present their own projects. Those that are chosen can gain access to financing that allows them to carry it out in practice. In this manner, once the first two stages were concluded, different groups of CSA identified the main conflicts in the region, and each group worked with one particular theme in order to design a strategy for a collaborative approach. There were two meetings (one in each region) for the analysis of conflicts and for the design of strategies for collaborative impact for the elaboration of specific projects. From the strategies of designed approach, it is the intention that at least two specific projects will emerge and there are 30.000 Euros set aside in total for their implementation. The selection mechanism uses as a reference some elements from the model “Response Fund. Helping effective interventions in socio-environmental conflicts,” developed by the Platform for Socio-Environmental Accords and supported by UNDP-Ecuador. The objectives of earmarking these funds to specific projects are linked to:

a. The facilitation of immediate responsive interventions to socio-environmental conflicts specifically linked to mining exploitation and its impacts on hydric resources, in order to avoid the escalation to levels where it will be very hard or impossible to intervene. With a few recourses invested at the right time it is possible to prevent violent situations.


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b. The functioning as a counterpart in order to further the acquisition of additional recourses that will enable the completion of these interventions and proceed until the resolution of the conflicts.

This will in turn allow the CSA to apply the acquired knowledge to the elaboration and implementation of concrete projects, encouraging long term articulated and collaborative work. Similarly, meetings with the representatives from public, academic and private sector are envisaged, who will then contribute to the implementation of the designed strategies.

V. Final thoughts The performed diagnosis certainly does not allow for an overly optimistic perspective on the immediate improvement of environmental norms and regulations. It does, however, provide a key indicator in terms of the relevance and necessity of undertaking these kinds of actions by means of cooperation and joint civil society projects, with support from non-governmental organizations and governments, through their exterior aid programs such as in the case of the European Union. If we rest upon the premise that “the CSAs have been part of the problem and should be part of the solution” with respect to the mining issues, it is important to keep in mind:

• If the institutional weakness of the CSAs has contributed indirectly to the escalation of conflicts in the region, their strengthening can be a key factor in their solution.

• If the lack of articulation between the CSAs and other sectors has diminished their influence or participation in the transformation of mining conflicts, their strengthening will improve their capacity to impact public policies and address common concerns.

• If the lack of articulation between the CSAs has brought a low performance from their resources and a low scale of their impacts, the construction of a space of exchange, dialogue and joined planning will lead to an optimization of the social impact of their projects.

The collective action of the CSAs around the promotion of public policies will contribute to the generation and consolidation of public institutions which are prepared to deal with the complexities associated with the access to water and mining in an effective and democratic fashion. This will have a spillover effect for larger land use planning and territorial processes. In the same manner, increased articulation between the provincial organisms and CSAs opens the possibility that problems and mining conflicts – which are by nature interjurisdictional and multisectorial – will be dealt with in a more democratic and holistic fashion.


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Today, there exists a conjuncture which encourages the CSA to take on a protagonist role in the transformation of mining conflicts. This context is due to institutional changes over the last years which have had an impact on mining governance and which stress, on one hand, a stimulating framework for investment and, on the other hand, new rights and means for participation by civil society. These changes undoubtedly constitute an opportunity for CSAs as catalytic actors in mining conflicts.


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Legal Protection of Glaciers in Argentina By Ernesto Lloveras Director of the Environmental Law Institute of the San Juan Lawyers Forum Translated by Marina Solomon Executive Summary The phenomenon of global climate change, and global warming as a specific chapter of current environmental transformations, has placed the matter of glaciers at the forefront of Argentina’s public agenda. In the framework of continuous environmental information, an ex candidate for the presidency of the United States123 circled the globe showing impacting images of the alarming recession of these blocks of ice; and the vital importance of their preservation as a limited source of fresh water. Our planet could suffer a considerable increase in median global temperatures in the short term (of between 2 and 5.8 degrees), which would cause the melting of polar ice caps and glaciers, provoking a rise in sea levels of between 11 and 88 centimeters, and affecting the millions of people that live in low lying coastal areas. This data was then confirmed by the UN Intergovernmental Panel on Climate Change (IPCC)124, which contains a number of Argentine scientists, led by Dr. Osvaldo Canziani, who testified in a Public Hearing at the National House of Representatives in March 2009 that “In the world there are currently 1.5 billion people lacking access to safe drinking water, which would mean that not to conserve the Andean glaciers would be crime against the nation.” He also added that “the median temperature of the planet has already increased by 1 degree Celsius, in the span of only a century, which means that if we wish to

123 Albert Arnold Gore was born in Washington, USA, on March 31st, 1948. He was the vice president of his country during the presidency of democrat Bill Clinton (1993-2001). His career in the White House was cut short in November of 2000, in a hard-fought election against republican George W. Bush. In 2007 he was awarded with a Nobel Peace Prize for his contribution to raising awareness and global actions against climate change; also winning the Prince of Asturias International Cooperation Award. In 2006, he starred in the documentary “An Inconvenient Truth”, in which he criticized governments and industry that have generated Global Climate Change, for which he won 2 Oscars from the Academy of Motion Picture Arts and Sciences in 2007. 124 The UN IPCC is made up of three thousand scientists from around the world and has been in existence since 1988. The panel was recognized with a Nobel Peace Prize along with the American politician Al Gore. Dr. Canziani, an Argentine physicist with a doctorate in Meteorology, and president of the “Working Group on Vulnerability, Impact, and Adaptation to Climate Change” for the IPCC, complained of the extremely scarce technical information on the situation of the glaciers of Latin America, and affirmed that the snow in Buenos Aires, the hail in the province of Misiones, and the instance of hurricanes in the Argentine Pampas provided evidence that climate change is already a reality. Additionally, he noted that in Bolivia they no longer have any glacial water.


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develop as an agro-industrial nation, we must sustain our water system and consider the glaciers as an ecosystemic unit.” This is how environmentalism was converted into a more popular movement, generating stronger social pressure groups. The “green” parties moved toward a more militant environmentalism; this is how the so-called Citizen Assemblies emerged. These activist groups do not have formal authorities or legal recognition of any kind, but have begun to make their demands and complaints in diverse decision-making arenas. On the other side of the environmental movement, Argentina has also seen an increasing number of mining companies with foreign capital attracted by flexible tax legislation and convenient monitoring arrangements for exploration. In the lax fiscal environment, these companies have increased their exploitation of metal deposits along the Andean Range, in the areas where majestic mountain ranges hold a significant number of glaciers. This has led to complaints and legal presentations from a number of environmental NGOs. The obvious question is whether or not the large-scale open-air exploitation of metals, with the use of chemical substances and with continuous mountaintop removal in search of disseminated minerals, will affect the glaciers of the Andean Range that feed 70% of the volume of the rivers in the Cuyo Region of Western Argentina. This question is the genesis of the current debate taken first to the Argentine Congress, and then transferred to all of society. Before such debate legal science must offer and immediate, concrete, equilibrated, and rational response to the conflicting issues and interests at stake.

I. The Benefits of a Systemic Focus Argentina suffers from serious environmental problems, of different natures, and associated to diverse human activities that endanger sustainable development in the nation. These include desertification, deforestation, receding glaciers, erosion, depredation of aquatic species, deterioration of ecosystems, pollution of rivers, and the certain threat of total disappearance of non-renewable resources, which have been unscrupulously managed with a clear prioritization of economic interests over the protection of life in its myriad manifestations. This discouraging panorama leads us to consider a systemic focus in which all actors can express themselves, but also propose viable solutions that overcome false antagonism: “Development vs. Healthy Environment.” In order to do so, the legal framework in place should be complemented by new norms in keeping with the country’s legal framework. These norms should not adopt confusing legal phrasing that later leads to incorrect interpretations by the authorities of


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application, or that lead to scarce protection based on the lack of effective penalties. We must recognize that such mistakes will allow investors to turn into true “legal” predators of the common goods of all Argentines. Perhaps the time has come to reflect upon whether the placement of Man—as the center of all legal frameworks developed throughout modern history—should not be ceded, in favor of a system which allows for the revaluation of the environment, which does not conform to impulsive or economic rules, or technological modifications without consultation. The problems derived from human abuses on the natural environment should no be taken on independently and autonomously, but rather should be integrated into a whole, since each element of the environment is an integral part of a self-contained ecosystem. A glacier, for example, is not alone at the top of a mountain; it is integrated into a complex natural scheme with lakes, floodplains, springs, underground tributaries that later form drainage basins, periglacial areas, and exquisite high altitude flora and fauna, whose survival depends on a biotic equilibrium that can not be replicated in other physical and climatic conditions, with a stable pattern of precipitation and wind that also regulates our own existence. Applicable norms should also be perfectly harmonized with these environmental factors. Laws and regulations for national parks should coexist peacefully with the General Law of the Environment, with the Water Management Law, and with the future Glacier Protection Law. The unique dispositions of each and every provincial jurisdiction should increase the levels of protection established by the national laws of Minimum Standards, never weakening their application. This systemic focus must be completed with efficient functioning of public institutions, manifested through the issue of Environmental Impact Statements (EIS), among other things. The administrative authority should monitor with scientific rigor and intellectual honesty all technical elements presented by the company through its Environmental Impact Report (EIR), earnestly applying current legislation and guaranteeing citizen participation through Public Hearings. The judicial power should guarantee impartiality and efficiency in cases in which environmental values are at stake. The legislative power should put public interest above sectoral interests in the process of law-making, pushing for open debates in which they can incorporate the technical expertise of universities, foundations, NGOs, and all public and private bodies with a legitimate interest in the defense of a healthy environment. This goal of greater efficacy in the public sector is not a simple expression of desire, but rather a bitter reflection of numerous instances of non-fulfillment of said requirements in concrete cases that were then denounced by environmental NGOs or citizens dedicated to the protection of the environment. The Provincial Environmental Authority should not by replaced by the Mining Authority in questions of an essentially


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environmental nature, which is what is happening in the province of San Juan, where the Environmental Secretariat has been literally displaced in all matters having to do with the environment and mining.

II. The Legal Nature of Glaciers Quite recently, the legislature has highlighted the importance of glaciers as an object of legal regulation, and it is because recent scientific studies confirm that fresh, drinkable water will be one of the scarcest resources in coming years. Currently, according to the United Nations Development Program (UNDP), “about one hundred million people in underdeveloped countries do not have access to safe drinking water, even entire countries have populations that receive a daily amount insufficient to satisfy their minimum basic needs.”125 Miguel Marienhoff126 considers the right to water as a natural right of all individuals, as an expression of the right to life, an inherent attribute to the human race. For this reason, she argues, the right to water is a preexisting right to the natural state of the individual, to whom it belongs as a consequence of his nature as a member of the human collective. Numerous international conventions and treaties subscribed to by Argentina consider access to water as a basic condition for exercising other human rights. Today, the human right to water has been explicitly recognized in a great number of international documents, showing a concrete tendency in relation to this issue.127 Nevertheless, though glaciers are formed of fresh water in a solid state, is it legal to directly equate this with potable water, even though it may be located five thousand meters above sea level in areas that are generally far from human populations, inhospitable, and difficult to access? The current trend is to consider a glacier as a body of ice, or water in a solid state, that later in a slow melting and draining process through natural channels creates liquid water. This is considered an “environmental service” that the glacier provides for hydration, irrigation and human consumption. It should be said that a glacier is a reservoir of fresh water that feeds inter-jurisdictional watersheds, thereby constituting a public interest despite its occasional location on private lands. Glaciers themselves do no have a legal statute expressly established in Argentine Legislation. According to Art. 2340 of the Civil Code, the following are defined

125 Human Development Report 2006; “Beyond scarcity: Power, poverty and the global water crisis”/UNDP 126 Marienhoff, Miguel; Regimes and legislation on public and private water; T.V, Ed. Abeledo, Buenos Aires, 1939, P. 729 127 Additional Protocol to the American Convention on Human Rights, on the subject of Economic, Social, and Cultural Rights. San Salvador Protocol, 1988; Art. 24 of the Convention on Children’s Rights; Art. 14 of the Convention on the Elimination of All Forms of Discrimination Against Women; Preamble to the Declaration of Mar del Plata of the UN Conference on Water of 1977; ECO-Rio Declaration/92; etc.


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as public goods: territorial seas, interior seas, rivers, their watersheds and other waters that flow in natural watersheds, and “all other water that has or acquires the capacity to satisfy uses of general interest.” If we base our interpretation on the assumption that a glacier is water in a solid state, we would have to infer what the Argentine legislator meant when he referred to “all other water that satisfies the general interest.” For some authors, it is more than clear that Vélez Sarsfield included glaciers in this general statement. Beyond this, they affirm that said bodies of ice should be incorporated into the category of public domain waters in the Civil Code.128 However, in Argentine law no legislation exists yet treating the issue of glaciers specifically.

III. Liquid and Solid Water Law 25.688 on the Environmental Management of Water establishes the minimum standards of protection for the preservation, utilization, and rational use of water. In Article 2, it lists the types of waters that are included and makes express reference to “Natural Bodies of Water,” which some authors take to mean glaciers. Nevertheless, due to the morphology and the characteristics of said bodies of ice, this interpretation is somewhat dubious. What the law does regulate, in detail, is the network of watersheds, which are considered indivisible (Art. 3) as environmental units of resource management. Without a doubt, the contribution that this law makes in terms of glaciers is establishing a criterion of inter-jurisdictionality concerning watersheds. It should be noted that it mandates the creation of watershed committees, like the one that already exists in the Matanza-Riachuelo River Basin, in order to coordinate the use of water flowing through different provinces. This is not a minor detail, since the possibility exists that a province would feel threatened by the improper use or destruction of the glaciers by another jurisdiction. They could decide to convene a watershed committee, in hopes of resolving the issue of whether the province holds responsibility, and reserving the right to legal action before the Supreme Court of Argentina, in its original jurisdiction, to claim that their legitimate interest in receiving the quality and quantity of water of those glaciers located in another jurisdiction has been threatened. Will this be the beginning of legal battles for the right to potable water? Whether water is in a liquid or solid state, it should always be considered a public good, and access and availability to water a human right.

128 Legal Aspects of the Conservation of Glaciers, Alejandro Iza and Marta Rovere, for the IUCN/2008.


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IV. In Pursuit of a Glacier Protection Law It is an irrefutable fact that Argentina does not have a law which specifically guarantees the protection of its glaciers, ordains reasonable land-use planning, or organizes an inventory of this resource. No one can protect that which he doesn’t know well, and this subject is new for all of Latin America. After confirming the unfortunate recession of ice mass all along the Andean Range, the parliaments of the Americas reacted, sparking a hemispheric debate on the serious consequences of the threat of global climate change. What was laid out in the General Law of the Environment (Nº 25.675) is insufficient in its generic assurance of: “The preservation, conservation, recuperation, and improvement of the quality of environmental resources…” This law could be of complementary importance since it does list the essential principles of environmental protection, such as sustainable management and development and the protection of biological diversity. We cannot, however, lose sight of the fact that glaciers are of great social, cultural, economic, and biological importance, and therefore must require special protection that takes into account their unique morphology and location, protecting them from destructive human activities with solely speculative ends.

V. The Contradictory Debate in Parliament: The Passage of Law 26.418

On November 13, 2007, the Natural Resources and Human Environment Commission of the National House of Representatives unanimously passed a law on Minimum Standards for the Protection of Glaciers and the Periglacial Environment, authored by the Representative Marta Maffei. There were two years of research with the advising of various scientific bodies, among them IANIGLA (Argentine Institute for Snow Studies, Glaciology and Environmental Sciences), under the auspices of the National Scientific and Technical Research Council. The Commission’s report was brought before the plenary session, without dispute or commentary, and it was UNANIMOUSLY passed by the House of Representatives on November 22, 2007. Following this, on October 22, 2008 it was again UNANIMOUSLY passed by the Senate. At this moment, the project became Law Nº 26.418. The Executive Branch never gave its support, but it came as a big surprise when President Cristina Fernández de Kirchner vetoed the law, leading to a series of confusing episodes, complaints and speculations that centered on purported pressures from mining companies and governors known for their commercial ties to mining activities. Even the National Secretariat of the Environment and Sustainable Development publicly recognized the existence of the activities that led to the presidential veto.


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VI. The Veto

The purpose of this short article is not to discuss the discretionary capacities contained in Article 80 and other parts of the National Constitution, but one aspect is relevant to our discussion. The ability of the President to “observe” a law is a constitutional right provided for by the system in place, but this has led to a phenomenon called RIGID HYPER-PRESIDENTIALISM. This has produced an exaggerated personalization of power that debilitates public consensus and debate, as well as eroding the political party system where parliamentary debate is hindered by the overwhelming power of the Executive. Far from the equilibrium designed in the spirit of the Laws of Montesquieu, the prevailing system in the National Constitution allows for the veto of a law which has been analyzed, developed, voted on in commissions, debated and approved by both the House of Representatives and the Senate, even assigned a number. This is a display of unipersonal power that leads us to question the real function of the Legislative Branch.

VII. Causes of the Presidential Veto Through Decree Nº 1837 of November 10, 2008, the President explained her opposition to the Glaciers Law, and for the first time, her relationship with the mining industry became clear. In one paragraph she wrote: “As the Secretariat of Mining points out, the establishment of minimum standards cannot mean the absolute prohibition of activities”; and later she added: “The prohibition of the activities described in Article 6 of the Law could affect the economic development of the provinces involved, making it impossible to develop any type of activity in mountain areas…” She continued: “The prohibition of mining and oil operations, including those that take place in the periglacial environment, saturated in ice, would give environmental concerns a priority over activities that could be authorized and developed with perfect care for the environment”. In this Decree, the Executive also criticizes Article 15 of the vetoed law for trying to “Subject activities already under way to new environmental auditing, which would lead to the transfer or ceasing of the activity, not considering that each activity being carried out in the provinces involved carries out pertinent environmental evaluations and authorizations,” and that “governors in the Andean area have expressed their concern about what is contained in the law that was passed, every time it would cause negative impacts on economic development and the investments received in these provinces.” The cited reasoning allows us to infer:


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1. That all advisors, technicians, lawyers and representatives who helped to draft the law never noticed the “serious” defects mentioned by the Executive Branch, despite belonging to the Commission on Natural Resources and Environment of the House.

2. That all of the legislators that voted unanimously, both in the House and the Senate, did not prioritize the governors’ arguments, which shows zero communication between and parliament and provincial governments.

3. That the economic criteria favored in the reasoning given by the Executive Branch was never analyzed by the legislators, who due to the respective shorthand version, emphasized only environmental principles and criteria, relegating commercial interests to second place.

4. That the relevance of the controls of provincial environmental bodies, exalted by the Presidential Decree, ignores the fact that in practice, the state organ DOES NOT INTERVENE IN CONTROLS AND AUTHORIZATIONS regarding environmental matters. The procedures and final decisions in environmental audits are in the hands of offices dependent on the MINING sector of the provincial government.

5. That the presidential veto gives priority to a speculative and commercial criterion. It fails to take into account the numerous international treaties and conventions that warn of the progressive decrease of potable water in the world. In 1996, the United Nations Convention on the Fight against Desertification to which 191 countries signed on, among them Argentina, declared officially that desertification is a “very serious socio-economic and environmental problem.” Nor does the decree seem to demonstrate concern about increasing desertification in Argentina, the eighth largest country in the world, but where 75% is composed of arid land and holds 30% of the population, according to data from the National Secretariat of Environment and Sustainable Development. According to recent data, desertification in Argentina has advanced to 650,000 hectares per year; data from the INTA (National Institute of Agricultural Technology)129 confirms this. It is also important to highlight that 60% of the currencies that enter in the country, as a product of exports, are a result of agricultural activity, which makes this sector vulnerable since no policy adequately address the conservation, prevention, and recuperation of their natural resources.130

6. The mega mining projects installed in the sources of rivers in the Andean Range consume millions of liters of water per day, to such a degree that the

129 “Desertification, a dangerous reality”, LA NACION, April 29th, 2006; interview with Engineer José Luis Panigatti, Coordinator of the Desertification Control Department on INTA. 130 “The role of the State in the fight against desertification”, INTA, March 2003.


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actual quantity is unknown, since methods do not exist for measuring on a large and permanent scale. The towns located near the waters below constantly complain that they have seen a worrisome reduction in the water they use to water crops and for human consumption. The same citizens have founded environmental organizations to defend their water, like the “Movimiento en defensa de la cordillera y el agua” (Movement in Defense of the Mountains and Water); the “Foro en defensa del Agua” (Water Defense Forum); “Hermanos de la tierra” (Brothers of the Earth), and the “Fundación Ciudadanos Independientes” (Independent Citizens Foundation, or FUCI) of San Juan, whose actions can be followed on their respective web pages.131

7. Numerous environmental organizations appeared before the National Congress on March 30, 2009 at a public hearing called by the authorities of the Natural Resources Commission. Among them was the scientist Osvaldo Canziani from the UN Intergovernmental Panel on Climate Change (IPCC). During the presentations, specialists used photographic projections to show the alarming retreat of several glaciers in Central Patagonia. Then they analyzed how the intense dust rising from the daily explosions carried out by mining companies, not far from these glaciers, produce a particulate material that is deposited on the glaciers. A gray layer is formed that attracts a greater intensity of solar radiation, accelerating the melting process of the ice, and causing a permanent erosion of these natural reservoirs of fresh water, as well as an artificial modification of the entire ecosystem. It is important to note that a glacier possesses a dynamic complex whose formation obeys unique and highly fragile environmental conditions. This is why any action developed on or near a glacier can create great vulnerability for the integrated systems of the mountain, putting all the populations that live off of glacial meltwater at risk.

8. In the Public Audience that took place in the Annex of the National House of Representatives, Raúl Montenegro, doctor in biology, winner of the Alternative Nobel Prize in 2004, and president of FUNAM (an environmental NGO in Córdoba), publicly admonished the mining companies for their unscrupulous behavior concerning their treatment of the glaciers. He related in detail a “ridiculous” proposal by one company to move three glaciers to the Chilean side. He was referring to the glaciers: Toro 1, Toro 2, and Esperanza. This idea did not prosper based on its “impracticality.” He also commented on the omission of most glaciers in the Environmental Impact Reports of mining projects Veladero and Pascua Lama, despite the company’s precise knowledge of their existence. This anti-veto argument was also shared by the environmentalist and ex Adjunct

131 See: [email protected]; www.fuci.org.ar; www.glaciaresandinos.org; www.proteccionglaciares.com.ar.


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Ombudsman of the City of Buenos Aires, Antonio Brailovsky, who opposed the argument expressed in the presidential decree that “The establishment of minimum standards cannot mean the absolute prohibition of activities.” He responded “This is not true, since a national law can prohibit a province from undergoing high-risk activities, and much more, in the case of the sources of water in the watershed that cut across various provinces.” He cited as an example the legislation that prohibits PCBs, toxic refrigerants that were once used in transformers. He then added, “The executive does not explain in its decree how the prohibition of mining could affect economic development of the provinces involved, if these towns later lack drinking water.”132

9. Representative Miguel Bonasso, in his role as president of the Environment and Natural Resources Commission, harshly criticized the third point of the presidential decree. He then invited the governors, senators, and representatives “to create an interdisciplinary forum to discuss measures to adopt in order to protect the glaciers.” However, he warned that “no forum exists that can substitute the National Congress, nor one which can achieve deeper consensus than that achieved through a law voted for unanimously in both houses of Congress.”133

VIII. The New Law a. The Partial Sanction of the Senate In September of 2009, a group of NGOs, among them FARN, Greenpeace, Friends of the Earth, Fundación Vida Silvestre, and Taller Ecologista, met to analyze the new law for the protection of glaciers, identified as S-2200-09, that at the time was in condition to be put before the National Senate. Considering that the initial law was more precise in its protection of the Periglacial area, the idea was to advance with a draft that would maintain the same spirit of the original law, authored by former national Deputy Marta Maffei, and try to incorporate the modifications deemed appropriate, under the premise that it is better to have a law for the protection of glaciers than to lack one altogether. The text in question was actually improved by the technical contribution of the cited institutions, although the suggestions were not fully applied, with several observations remaining. In the end the law was passed in the Senate on October 21, 2009, and several of the suggestions made by environmental entities were

132 See the shorthand version of the Public Audience organized by the Environment and Natural Resources Commission of the House of Representatives on March 30, 2009. It should be noted that almost all of the more than thirty presenters that intervened that day, adhered to the content of the vetoed law, save Pablo Milana, a geologist from San Juan, to coordinate a technical team that will carry out a study on the glaciers of the Cuyo province. 133 “Glaciers in Danger”, Le Monde Diplomatique, September 2009, P.15.


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incorporated. Some criteria that did not coincide in the final draft remained, but flaws could be overcome in the revision that the National House of Representatives will eventually produce. b. Elements to Emphasize 1) Minimum Standards There is no need to avoid the fact that this is a law based on Minimum Standards, meaning that provinces will be able to increase the framework of protection, but never decrease it. However, in relation to provincial jurisdiction, this is a special case, since the services provided by the glaciers benefit an entire network of water basins, whose waters flow through various provinces, making the issue more complex. This opens up the possibility that a state affected by damage to these bodies of ice could demand the formation of a watershed committee, established in Law 25.688, and incite judicial actions in defense of its shared water resources. 2) Periglacial Zone The list and definitions of glaciers that is provided in Article 2 is a bit superfluous, given that the most important element it contained in the previous draft was cut out. It has to do with protection in the PERIGLACIAL area, a term that was strongly questioned by the defenders of the presidential veto, with the excuse that it increased too greatly the prohibition of activities in an indeterminate and very large sector. Without a doubt, the omission of said term allowed businessmen in the mining industry that feared that this new law would be an insurmountable obstacle for their future exploratory and extractive activities to breathe a sigh of relief. It must be mentioned that there was a strong lobby of transnational companies and from the public sector that feared the passing of this law, as it could manage to limit the use of their large freight trucks, or prevent them from carrying out explosions in areas close to glaciers. In fact, several companies that provide mining services boast on their web pages “experience in the drilling and blasting of permafrost and glaciers located at altitudes of up to 4,000 meters,” with photographs of drilling machines, opening mining roads in the Conconta Glacier. One text continues: “We carry out operations for the opening and maintenance of roads in the middle of mountainsides at altitudes of up to 5,200 meters above sea level, at an approximate length of 600 km, including 95,000 m3 of blasting in a permafrost area with a high operative complexity (the Argentina-Chile border).”134

134 Revista Profesionales de Ingenio, No 18, Page 7, San Juan, 2009.


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3) Extension of Protection The environmental NGOs proposed delimiting the periglacial zone, using the annual isotherm of zero degrees, which would in practice facilitate the identification of frozen water that should be protected. However, the law that was approved with partial sanction uses the demarcation criterion, with the definition as “frozen debris and ice.” The concrete risk that this poses is that it leaves out the protection of masses of frozen water that control the water. 4) Inventory The law creates a National Glacier Inventory, but it does not contain the proposal to include areas of frozen soil that act as water reserves. 5) Inclusion of Provincial Bodies The inventory will not only be carried out by IANIGLIA, as provided by the original law, but now will include other competent national and provincial institutions, leaving open the possibility that each provincial government could exercise active intervention in said undertaking, increasing the monitoring and control capabilities of local authorities. 6) Prohibited Activities The new draft establishes a series of activities prohibited on glaciers (among them mining), meaning on top of glaciers but not including the periglacial areas, which was included in the original law. What matters is not what the law prohibits, but where it prohibits it, since no one would install a gold exploration plant on the central part of a glacier. In this sense, the law shows some serious defects in terms of its protective efficacy. 7) Environmental Impact Assessment The law states that “All activities planned in the protected bodies defined in Article 2 that are not prohibited will be subject to a process of Environmental Impact Assessment in which they will have to guarantee some instance of citizen participation…” Unfortunately, this article also does not mention the “Periglacial Area,” an issue that was set out in the vetoed law, which restricts the supervisory authority of the body that will carry out the Environmental Impact Assessment. 8) Sanctions - Environmental Audit


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The law foresees the application of sanctions for violators of the law, which range from fines to the definitive cessation of the illegal activity; but what brought about some debate is the new Article 15 that under the title Transitory Regulation states, “In a maximum period of 60 days, IANIGLIA will present to the national application authority a timeline for the completion of the inventory, which must start immediately…” It also states that: “The competent authorities must, in a maximum period of 180 days from the termination of the inventory of the provincial jurisdiction, subject the mentioned activities to an environmental audit…” The wording is clearly imperfect, given that that it lacks precise terms for the completion of the audit. In the original law, a period of 180 days was stipulated from the sanction of the law. In the new text, the time period for the fulfillment of both the inventory and the audit is up to the discretion of the provincial jurisdiction, which complicates the final objective of the current law.

IX. Conclusion This parliamentary debate reflected not only the absence of specific norms for the protection of glaciers in a period of serious crisis due to the scarcity of fresh water on the planet, but also evidenced the lack of public policies on the subject. Argentina got a late start, making it doubly important to arm ourselves with technical, legal, economic, and human tools to advocate for a whole new area of knowledge that will sustain future public policy on this subject, essential to the lives of all inhabitants of this country. The process of passing the future law for the Preservation of Glaciers has been meandering and difficult, both in terms of politics and institutions, similar perhaps to that of other laws. However, in this path toward the final drafting and passing of the law, fissures appeared in a hyper-presidential system that imposes the personalism of a veto on the democratic consensus of our political parties. We also showed that the wrestling of environment vs. development has not yet been overcome in Argentina, that that there are certain economic activities that possess not only great economic power, but sectors of institutional pressure that can manage to endanger the real environmental interests of our country, with serious global consequences.


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Residential Waste: The Experience of Collaboration with the Urban Waste Collectors of the City of Buenos Aires By Carina Quispe Merovich Director of the Area of Governance and Environmental Policy at FARN Cristina Lescano Member of ‘El Ceibo’ Urban Collector Cooperatives Translated by Tyler Schappe Summary El Ceibo has been working on the issue of the collectors and the solid waste for more than a decade with a tridimensional perspective - humanistic, environmental and economic, cemented in the empirical knowledge of the profound crisis of using ‘to the trash’ as a source of work. On the other hand, this is one of the major themes that the area of Governability and Environmental Politics of FARN has been working on in the last five years. The issue of solid urban waste, extended to the whole of Argentina, presents many edges, which demand integral work with ample criteria and even an analysis of the difficulties and opportunities that may arise. It is a condition, then, to guarantee the success of the public and private decisions, to deepen the analysis of the scene that is presented to us, adequately valuing, as was mentioned before, the human, economic and environmental dimensions of the issue. At the same time, it is our ethical duty to the people and the environment to apply an integrative analysis. Therefore, the political decisions, product of this analysis, in order to be ethical, must find an equilibrium between the different dimensions and should, of course, adjust themselves to the current laws. FARN started to interact within the sphere of the city of Buenos Aires in many diverse social sectors, mobilized by the great concern that effective implementation of the Law of Zero Waste caused and causes us. In this interaction, the urban collector cooperatives made it clear that, on the one hand, the single force that structured them was the clear objective of continuing forward with their activities within the bounds of the law; and, on the other


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hand, the unusual difficulties that they encounter, mainly through their daily routine or their non-governmental routine. In this scenario, the ‘El Ceibo’ Cooperative and the ‘Cooperative del Oeste,’ like other non-governmental organizations, have danced in an articulate and solitary manner, attempting to overcome the rhythm of the poor institutional reality which has not given even two firm steps towards the implementation of Law 1854 since the end of 2008. The political reality that affects the enforcement of the law and that demonstrates structural flaws, found FARN and ‘El Ceibo’ in common spaces in which, other civil service organizations also joined, it was possible to carry out orders and to interchange appearances with the shift functionaries, obtaining - on many, many occasions - a certain grade of response, and the majority of times, decisions frankly contradictory to the current laws of the city. This clearly shows - and it is what greater desperation and despair produces in those who work so that the right to a clean environment can be a reality in our city - that we find ourselves in an almost tragic situation where our politicians act outside of the theoretical, conceptual and ethical boundaries that a republic implies, in such a political system in which the tyranny of the law is one of its distinctive notes.

I. Introduction El Ceibo has been working on the issue of the collectors and the solid waste for more than a decade with a tridimensional perspective - humanistic, environmental and economic, cemented in the empirical knowledge of the profound crisis of using urban waste as a source of work. On the other hand, this is one of the major themes that the area of Governability and Environmental Politics of FARN has been working on in the last five years. The issue of solid urban waste, extended to the whole of Argentina, presents many edges, which demand integral work with ample criteria and even an analysis of the difficulties and opportunities that may arise. It is a condition then to guarantee the success of the public and private decisions, to deepen the analysis of the scene that is presented to us, adequately valuing and as was mentioned before, the human, economic and environmental dimensions of the issue. At the same time, it is our ethical duty to the people and the environment to apply an integrative analysis. Therefore, the political decisions, product of this analysis, in order to be ethical must find an equilibrium between the different dimensions and should, of course, adjust itself to the current laws. The previous thought is no smaller, with which we propose starting this extremely short chapter, when we see daily how the partial views of reality - from the various sectors of society - affect fundamental decisions for


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sustainability and particularly have affected it regarding the problem at hand in the City of Buenos Aires. FARN started to interact with the sphere of the city in many diverse social sectors, mobilized by the great concern that effective implementation of the Law of Zero Waste135 caused and causes us. In this interaction, the urban collector cooperatives made it clear that, on the one hand, the single force that structured them and the clear objective of continuing forward with their activities within the bounds of the law; and, on the other hand, the unusual difficulties that they encounter, mainly through their daily routine or their non-governmental routine. In this scenario, the ‘El Ceibo’ Cooperative and the ‘Cooperative del Oeste,’ like other non-governmental organizations, have danced in an articulate and solitary manner, attempting to overcome the rhythm of the poor institutional reality which has not given even two firm steps towards the implementation of Law 1854 since the end of 2008. This is the sad result of the third birthday of the law, which knew how to reunite all the political powers in 2006 for its approval - it was voted unanimously by the legislators of Buenos Aires - and even today confronts a serious crisis, no less than at its very heart, which is to say, in the source separation of the solid urban wastes and its differentiated collection, stages of the integrative process that are key to complete the objectives and goals that the law itself contemplates. While the successive governments of the City of Buenos Aires do not understand these basic concepts and are firmly decided to enforce and to obligate enforcement of the law, starting with the urgent necessity that the very governmental decisions be in tune with the current laws, the Law of Zero Waste runs the risk of emptying itself of content, even when it proclaims its enforcement to the pair of formal measures that do not modify the grave situation of the generation of waste in the city and its mass burial in city land. The political reality that affects the enforcement of the law and that demonstrates structural flaws, found FARN and ‘El Ceibo’ in common spaces in which, other civil service organizations also joined, it was possible to carry out orders and to interchange appearances with the shift functionaries, obtaining - on many, many occasions - a certain grade of response, and the majority of times, decisions frankly contradictory to the current laws of the city. This clearly shows - and it is what greater desperation and despair produces in those who work so that the right to a clean environment can be a reality in our city - that we find ourselves in an almost tragic situation where our politicians act outside of the theoretical, conceptual and ethical boundaries that a republic

135 “Zero Waste”, in the framework of Law 1854 means: “the principle of progressive reduction of the final disposal of solid urban waste, with concrete steps and goals, by way of the adoption of a collection of measures oriented towards the reduction of the generation of waste, selective separation, collection and recycling”.


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implies, in such a political system in which the tyranny of the law is one of its distinctive notes. In this context we think that apart from acting on the institutional spaces toiling for the enforcement of the current environmental laws, it seems necessary to stand up to a joint effort with direct impact on society which crystalized in the development of a manual (“ABC For the Revaluing of Solid Urban Waste”) and in the training of the key actors to contribute in a practical way to the implementation of the Law of Zero Waste. This is because if the government has a large list of unresolved matters without the fulfillment of which the goals of revaluation of the law will never be solidified - at the same time that a less healthy life in a more contaminated environment will be guaranteed for many years -; it is also fundamental to assume one’s own responsibilities regarding waste generation; certainly the citizens, the organizations of civil society, the private and academic sectors can see a difference, launching effective actions in favor of the environment and one’s neighbor. There certainly are many people, families, schools and businesses that separate recyclable wastes from non-recyclable ones and they have managed to articulate a ‘differentiated collection,’ whether it be with one of the cooperatives of the city or an independent collector, who punctually remove or receive the sorted wastes on-site. Therefore, and exactly as El Ceibo reiterates, source separation implies a fundamental ethical change of each one of us, of the very responsibility we have in relationship to the preservation of the environment, of public health and of public spending. This ethical change, as we mentioned earlier, affects many different spheres, even when the government has not effected a single concrete action for the concientization regarding the problem, to spread the knowledge of the existence of the law and its essential components, or to promote source separation, despite the fact that it is its duty: according to the Law of Zero Waste, the government is responsible for guaranteeing that “the implementation of clarifying and informational publicity campaigns, which should be held at such a time to encourage change in the habits of the citizens of the city and the benefits of source separation, of differentiated collection of solid, recycled and reusable urban wastes”136. This obligation can also be found in Law 992137.

136 Law 1854, article 39. 137 Article 3 of Law 992, in conjunction with article 2 of the same law, says that it is the Executive Power that should “e) Implement a permanent educative campaign with the objective of raising awareness of the citizens of the City of Buenos Aires regarding the following points: 1. The favorable impact that generates recuperation and recycling in its environmental, social and economic aspects. 2. The benefit that gives rise to the separation of wastes on site and/or before its final disposal, facilitating the work of the collectors, and contributing to the cleanliness of the City and the care of the environment.” Unfortunately, up until the present, the campaign “Play Clean (join the team)”, has only referred textually to the following actions: Throw papers in the waste baskets - Take out garbage from 8 pm to 0 pm Sunday to Friday -


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II. The Legal Framework and its Application

According to the National Constitution (NC), we all have the right to enjoy a healthy and balanced environment, and we are obligated at the same time to protect it. At the hand of this same constitutional clause, the authorities at all levels of government (national, provincial, municipal and of the City of Buenos Aires) should work on the design of rules and policies and carry out concrete actions so that the enjoyment of this human right can be effective and tangible since article 41 of the NC clearly establishes that “the authorities will provide for the protection of this right . . .”, which is to say, they should adopt decisions, resolve, facilitate everything appropriate so that the objective can be reached, by way of the stated regulations, the establishment of policies, the assignation of resources. Also, the City of Buenos Aires recognizes the right to enjoy a healthy environment, through the Constitution, when in article 27 it holds that “The environment is common property. All persons have the right to enjoy a healthy environment, and also have the duty of preserving it and defending it so that present and future generations may enjoy it . . .” As is common knowledge, the NC, starting since the constitutional reform of 1994, also includes the delegation of the legal authority to establish budgeting laws for environmental protection by parts of the national provinces which are applicable to the whole country; the provinces reserved, at the same time, the competence to complement said laws, a law which in turn applies also to the City of Buenos Aires. The complementary nature of the budget laws admits that the jurisdictions mandate laws that take into account local particularities: these laws can be more strict, but are never inferior to the protection that the nation grants. Because of this, an environmental protection budget implies basic legal protection for the entire country of Argentina and, therefore, places all citizens at the feet of equality in relation to environmental equality: we all have at least this basic protection. Along this line, the National Congress established in 2004 the environmental protection law on domestic waste, Law 25,916138. Taking the previous concepts as a starting point, the provinces and the City of Buenos Aires should at least honor what is established by this law, and they can also dictate more demanding laws for integral management of waste in their respective jurisdictions. The Legislature of the City sanctioned Law 1854 – Zero Waste – and recognized, beforehand and also through law (992), the roll of the collectors of recyclable

Group pet waste together - Take used batteries to the Management and Participation Center of your neighborhood. 138 BO. 09.07.2004


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wastes, incorporating them in the stage of differentiated collection of the public hygiene service of the city. It is worth mentioning that both laws establish a basic framework to consider in every action, law or policy that involves solid urban waste. If we consider the fact that the Law of Zero Waste aims mainly – and in conjunction with the national law – at the recycling of solid urban wastes (SUW); that it establishes goals of reduction for the final disposal of wastes in sanitary landfills (for the year 2010 the goal resulted today in an illusion139, the absolute prohibition of burying recyclable materials is anticipated) and it prohibits the incineration of these wastes. It is evident that without a integral step of the SUW’s, none of these objectives will be reached. Of course, the base upon which the reduction of the final disposal and revaluation of material are the first links in the chain of integral management: source separation and differentiated collection. Our main responsibility is to generate less waste and to separate well what we have generated140, the responsibility of our politicians – among many others – is to implement differentiated collection as part of the hygiene service of the city, formally including the collectors, according to the Law of Zero Waste and Law 992. It is clear that if differentiated collection does not exist as a part of this public service, the personal and institutional efforts to sort at the source, as well as the enormous daily effort of the collectors, turn out to be totally wasted. And here is where we return to the start of this article, where we referred to the integral boarding question: Is there a possibility that our politicians continue to evade the sustained work – at least since the economic crisis of 2001 – of hundreds of families that made a living organizing themselves, without resources, to be able to create their own job, which at the same time had an extremely positive effect on the environment and was framed by the law?141 We think the answer is no, and that whatever decision that ignores this reality will not only be infringing

139 For the year 2010, the number of tons disposed of in CEAMSE in the year 2004 (1,497,656) should be reduced by 30%, or 1,048,359 tons. Far from this, according to the official information – 2008 Annual Environmental Report of the City of Buenos AIres – , the city disposed of 1,884,460.2 tons in 2008. 140 The Law of Zero Waste says that “The generator of solid urban waste should carry out source separation and adopt manners of reducing the quantity of solid waste that he/she generates. Said separation should be in such a manner that the recyclable, reusable or reducible wastes should remain distributed in different receptacles or containers for differentiated collection and further classification and processing.” 141 In the case of El Ceibo, the cooperative is formed of approximately 63 people (and their families) of ‘cartoneros’ and unemployed, who have been working in the Palermo and Villa Crespo neighborhoods for more than 10 years on issues such as housing, health, responsible parenting, education and environment, enjoying integral answers for the necessities of the families. In the framework of the Socio-environmental Project “El Ceibo recovers Palermo. Source separate”, together with neighbors and businesses, recover material and later classify them and sell them to be recycled. This serves a double function: social inclusion, by way of the creation of sources of work, and environmental consciousness, contributing to recycling and environmental sustainability through source separation of solid urban waste.


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upon the current laws, but will be overlooking basic postulates which are present in argentine laws and also in relevant international instruments. For this reason we retake, in the joint work with El Ceibo, the concept of integral management incorporated into the Law of Zero Waste, which implies considering the waste from the moment of its creation until the moment of its revaluation or final disposal142. It is not possible, therefore, in our legal regimen to isolate the different stages that waste takes. The policies and management of the waste should reflect this criteria of integrality, and as much as this criteria is not met, not only will it be illegitimate but it will also not solve the problem at the root. Curiously, the Mayor of Buenos Aires in 2008 sent a project proposal for the elicitation of the urban hygiene service which proposed continuing for the next 10 years without differentiated collection in the city and did not include the collectors of the waste circuit, when Law 992 clearly states that “The Executive Power incorporates the collection of differentiated waste by collectors of recyclable wastes to the current city hygiene service” and that it should take place anticipating the completion of the objective of “Conceiving Integral Management of Urban Wastes of the City of Buenos Aires, which would permit the recovery of recyclable and reusable materials, and leave without effect, as its final disposal, the indiscriminate burying of the waste in landfills”143. We honestly asked ourselves if this solution is so clear for so many people, why is it not clear for public decision-makers? Confronted with a situation created by the presentation of the project proposal, many organizations worked in a coordinated effort so that a public audience could be created to expose the legislators to open contradiction of the project with respect to the current city laws, which resulted in the executive and legislative branches of the government refraining, even until today, from insisting in the sanction of the original project. This project not only did not establish differentiated collection but it also demanded that the recipients for public waste spills have a mouth that would permit throwing the wastes inside, but not collect those that are recoverable. At the same time, the logic of payment to the collection companies ‘per ton,’ did not allow the slightest analysis in the context of the Law of Zero Waste, which implies per se a clear incentive for collection companies to raise any material from the public view – recoverable or no – that appears in the road, since it would imply greater profit. 142 Law 1854 establishes in Article 3 that “The City guarantees the integral management of solid urban waste, understood by the collection of independent and complementary activities between itself, that make up a process of actions for the administration of a system that comprehends, generation, initial selective disposal, differentiated collection, transportation, treatment and transferring, management and use, with the objective of guaranteeing the progressive reduction of the final disposal of solid urban waste, through the recycling and the minimizing of generation.” 143 Law 992, articles 2 and 3.


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It is possible, then, to warn about the difficulties that cross the law by the hand of the authorities that simply do not see the importance of the enforcement of the laws and also the difficulties that face the collectors in the installation, the initialization and the equipment set-up of the ‘green centers,’ key means of integral management144. At the same time, from the civil society perspective, it is very difficult to understand the reasons for which the State, the natural guarantor of institutions and laws, turns out to be the main contributor - by action or inaction - to the lack of enforcement.

III. The Project Carried out with ‘El Ceibo’ Cooperative

a. Antecedents El Ceibo, Cooperative of Provision and Services for Collectors, was founded in 1997 with the objective of generating economic funding through the collection of recycled waste, - which were rejected and, to a large extent, continue to be rejected - through the formalization of the tasks performed by the urban collectors. It proposes a change in quality of life to workers: to participate directly and legally in this activity, encouraging cooperative work between its members who have been united, trained and professionalized with the goal of generating a productive activity, a genuine formal source of employment, for the collectors and their families, based on the collection, sorting and commercialization of solid urban wastes.

144 Green centers have been anticipated by the law for the sorting of the waste. This way, the sorting centers or green centers are those buildings and installations run by authorities to which arrive the dry solid urban wastes coming from the differentiated collection for more specific sorting. At these sites, the solid urban waste are received, sorted again and packaged with film wrap or compacted to be sold so that they may be used for new productive processes. Activities other than processing the recyclable waste for commercialization are not carried out in the green centers. Urban solid waste is neither recycled, accumulated or stored. They allow improvement of the results of source sorting by performing ‘professional’ sorting and they contribute in a significant manner to the reduction of materials that are buried, decreasing also the environmental and social impact of landfills. They also allow dignified work conditions for the collectors who can perform their tasks in a favorable and especially prepared environment compared to the risks involved in work on the public streets.

“In the area of public policy, we try to implement integral policies for the better functioning, management, commercialization and disposal of solid urban waste. We propose to centralize the different governmental sections that cover the issue and to incorporate a solution for all of the sectors involved: society, organizations, independent collectors, companies and the government. In the technical area, we intend to unify communication and publicity campaigns. It is necessary that true environmental education exist, that all companies commit to the challenge, that the government upholds the underwritten contracts. Transparency and control.”

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The activities of the collectors emerged in an extremely adverse economic context: let us recall that in early 1989, Argentina was suffering hyperinflation, in 1991 the Law of Austral Convertibility was sanctioned in order to stop it and at the same time steps were taken towards a neoliberal economic politic, supported by a wave of privatization, reduction of duties on imported goods and deregulation of markets. These measures contributed on one hand to significant increase in investment, in export and in growth with stable prices; and on the other hand they opened a process of deindustrialization before the impossible competence of the debilitated argentine industry; they made the economy more vulnerable to international crises and they increased unemployment, poverty and job insecurity. At the same time, an increase in the generation of waste in the City of Buenos Aires was produced, which constitutes a grave and urgent ecological problem to be solved, if it is taken into account the fact that the majority of the waste is buried, when around 50% of the waste could be recycled. This large percentage of potentially recyclable waste combined with the increase of unemployment and the exclusion of vast sectors of the population, has generated a proliferation of marginal and dangerous work, the work of the garbage collectors and their families, who have found themselves in a situation of extreme poverty and marginalization that deserves, without doubt, immediate attention. El Ceibo was created as a possible and concrete exit to this grave problem that plagued our country. The Socio-environmental Program “Source Sorting”, developed by the cooperative, positioned the organization as the pioneer of source sorting of wastes in Buenos Aires. It proposes a methodology of interaction that articulates participation and self-management, generating conscientiousness and resources in the community itself, in the execution and management of the projects. It encourages intervention through networks, collective work and consented planning of the alternatives to action, centered on interrelations and communication at the family, group and community levels. In this way, the work of El Ceibo promotes processes of social inclusion for people in vulnerable situations through the integration of the work that it develops. It aims to generate a change in the habits of the citizens of Buenos Aires (with strong initiatives of replicability towards other locations in the country), through source separation of solid urban wastes. With the implementation of this new culture of environmental protection from the household, not only is there space for awareness raising about the importance of the contribution of each person in the conservation of the natural and urban environment, but also awareness raising in the sense that new sources of employment will be generated with this initiative, ceasing to be a solidarity task. For the promotion of the Program and the correct sorting of the


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materials, the participating neighbors receive the necessary information and training about the protection of the environment and its benefits, as well as the social and economic repercussions from the Environmental Promoters beforehand. El Ceibo, in its work training, has three premises:

• To maximize the reduction of superfluous or unnecessary consumption, selecting products that imply a smaller environmental impact and that avoid generating large amounts of unnecessary garbage.

• To reuse, employing consumable products in repeatedly or in diverse ways.

• To recycle, using waste as a prime material for the production of a product that could be identical or different from the original. The recycling of materials is fundamental since it permits the conservation of prime materials and it reduces the generation of waste and the contamination that goes along with it. To recycle, it is necessary to carry out selective disposal of the waste that we generate through source separation of the different materials that we throw out.

Environmental promoters (a group made up of primarily young adolescents) coordinate the schedule when the collector will come to take away the separated materials145. Once the neighbors have joined the Program a logistical tour is carried out for the collectors in order to achieve maximum efficiency possible. The tour is done during the day (ceasing to be a nighttime task) on the schedule that was agreed upon beforehand. For this job, the participants are given a car, bags, a list of directions, a uniform and the appropriate identification as well as all of the security measures necessary to ensure a totally safe experience for the workers. After collecting the materials from the various households, the collectors return to the Logistic Center, located in the Palermo neighborhood, where they deposit the bags with the collected material to be later transported to the Sorting and Collecting Center (Green Center) by way of vehicle. It is necessary to point out that El Ceibo also receives recyclable material from companies that coordinate with our activities. In this case the wastes are transported in trucks and are dropped off at the Sorting and Collecting Center. The second phase of materials sorting takes place in the Green Center. The function of these centers focuses the ordering of the collection and reduction of the points of concentration of the collectors, as well as the conflicts that said

145 Kids and people underage do not work unless they are offered contention, promoting the continuation of their studies as a necessary condition for the families that want to belong to the Program.


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concentration creates. Later, the transformation of the material is carried out (for example packaged with plastic wrap, chipping, etc.) in order to sell it to companies dedicated to recycling.

b. The Project On the base of the issue of solid urban waste in the City of Buenos Aires, both organizations - FARN and El Ceibo - conceive of a project that, with perspective of gender, could incite the implementation of the Law of Zero Waste effectively, whose enforcement has been seen postponed, as was mentioned earlier, in various aspects and substantives146. Despite the sanction of this law and the necessity of the reduction of the amount of waste that is sent for final disposal to landfills, the same law proposes through stepped goals for 2010 and the following years, concrete and effective facts that could allow the goals to be reached have not been verified, but exactly the opposite. Many causes determine this situation, among which the lack of publicity of the issue, the scarce conscientiousness of the residential waste producers with respect to their responsibility of the waste generated, the non-existence of a public policy appropriate to the situation, which includes the lack of foresight with respect to material resources that should be assigned by the State to solidify the practice of the legal mandates. The discussion of a regional (metropolitan agenda) for more sustainable and reasonable management of solid urban waste is also a pending issue. Considering this, and in the framework of the project carried out by both organizations, we warn that the participation of women in the enforcement is a double role, inside and outside of the home, (as mother, administrator of domestic issues, worker, teacher) which could signify a differential contribution in the transmission of key concepts for the collection as well as in the implementation of source separation of the waste in the various settings where it applies. Three central activities were proposed in the framework of the project:

• The creation of a manual relative to the collection of the solid urban waste, which would include legal, institutional and practical aspects of the integral process of the waste and specifically the source separation.

• The realization of a training workshop to get to know the manual and to transfer tools and knowledge of the field to representatives of various sectors that later can launch separation campaigns in their respective fields of action;

146 This project was possible thanks to the support of the Swiss Embassy in Argentina and of Tetra Pak.


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• The distribution of the final product in order to transmit the necessity of source separation, how to do it and why. The manual, product of a joint effort between FARN and El Ceibo, also took as input the interchange between other non-governmental organizations and key actors involved with the issue. For its part, the workshop, which was successfully held in May of 2009, permitted not only the presentation of the manual and the focused training in terms of the current legal framework and the ABC of the source separation, but also a smooth interchange between the participants, which include authorities of the City and Province of Buenos Aires as well as representatives of other provinces, who found themselves facing similar problems. Without doubt, the project had an excellent impact in the governmental sphere, which has been manifested through a request for the products by the Secretary of the Environment and Sustainable Development of the Nation after the workshop was held. The private and union sectors also positively received the project and its products. Both FARN and El Ceibo have also continued to provide successive training and presentations of the material in schools, with extraordinary reception by the students and the faculty, who have started to separate the waste generated by the schools and who, without doubt, take this “concern-duty” to their respective homes. It is worth mentioning the expressed appreciation by the education community and by the students both for the content transferred and the values that they imply. Finally, and looking towards the future, it is worth mentioning that FARN has been selected in the framework of the Community Environmental Initiative of the Secretary of the Environment and Sustainable Development of the Nation, for a similar project in the municipality of La Plata. Last, and based on the experience gained by the project as well as by other actions and interventions, it is possible to warn that within the issue there are diverse and intertwined interests and actors, and that this requires commitment and action not only by the government but also by each and every one of us as individuals, by civil society and by the private sector. If the role of the government implementing policies that are framed in the current rights and promoting commitment to the enforcement of the laws and to environmental preservation – without this base it is practically impossible to achieve the integral processing of the solid wastes –, it is no less true that as citizens, fathers, educators, workers, leaders, we shoulder a huge responsibility: on one hand to demand of our representatives adherence to environmental laws and transparency of the process; and on the other hand, to be consistent in our private action with that which we demand. Only with the ethical conjugation of these two artists will we be able to begin enjoying the benefits of a more


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sustainable city, constructed on a foundation of individual and collective effort and on the hand of a government that looks out for the common good.

In the framework of a collective project with the El Ceibo cooperative, and that received support from the Swiss Embassy, FARN developed a manual for the revaluation of solid urban waste which was presented in a training workshop to promote source separation of waste. The workshop was held in May of 2009 and targeted women who, by the roles and activities that they carry out daily, can act to transmit the training and information acquired, effectively implementing source separation of waste.


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The Metropolitan Coastal Area: A Key to Regional Management – Executive Summary By Carlos Lebrero Founding director, Degree of Specialization in Metropolitan Environmental Management. Titled professor of the Urban Project and Postgraduate Secretariat, School of Architecture, Design and Urban Planning, University of Buenos Aires (FADU-UBA) Translated by Elliott August Executive Summary The city of Buenos Aires establishes relationships along its entire periphery, engaged in a direct fashion with nature, especially along the coastline. These exchanges with nature modify the limits of the city’s territory. The coastal border is a place of perpetual self-definition, with a high degree of heterotopia in comparison to other urban sectors. Historical justification allows for the understanding of the variability of the relationships between territory and culture. It also allows for recognition of the leaps made with the paradigm shifts of each period. Simple observation of these landscapes uncovers problems related to the subjugation of nature as a support mechanisms and its poor incorporation as a resource in the development of urban habitat. The challenge is to modify the tendency towards deterioration, replacing it with progressive recognition of the value and potential of the coastal area, with recognition of its organizational particularities.


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Gender and Environment: Natural and strategic resources and the living conditions of women By Martha Alonso de Vidal Arquitect, FADU, UBA and Senior Specialist in Gender and Public Policy, PRIGEPP, FLACSO. President of AMAI, Mujeres Arquitectas e Ingenieras Translated by Agnes Héver Executive summary The planning of environmental policies with gender equity in the Latin American region is embedded in the challenge of habitat, linking environmental and gender dimensions. These dimensions stem from different movements, but they are both structured on current criticisms of the economic development model adopted in the region over the last thirty years and based on the principles of sustainable development. The dominion over natural resources (water, hydrocarbons, food and primary inputs) is at the center of consecutive global crises leading to inhuman wars. Water is a partially renewable resource thanks to the constant flow between the sea, the air and the land. Yet, the violence unleashed by the use of inappropriate technologies is drying up the land and leading to the desertification of the planet. Historically, the traditional role of women in communion with the environment increased the availability of water and life resources, without altering nature. This has been replaced by agrochemicals, science and industry, decreasing water retention and land fertility. Vandana Shiva in Embracing Life: Women, Ecology and Development says: “Women, peasants and tribal people have firmly resisted… the masculine mentality aimed at dominating and domesticating all rivers”147. She refers to non-remunerated work, which makes up nearly fifty percent of humanity’s labor. There is only one way to survive and liberate nature, for women and men. It is the ecological way, based on balance and diversity instead of control, exploitation and harmful development. Exploring the role of women in the developing world, she describes them as the “saviors and the victims of harmful ecologic development” and states that “their non-sexist and non-violent fights… are the paradigm of sustainable progress.” It is essential not to squander the talent, capacity and management skills of half of 147 Shiva, V. (1989). Embracing Life: Women, Ecology and Development. Zed Books


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humanity: women. They have been and continue to be responsible for extending democracies through the construction of female citizenship, for the benefit of all of society.

I. Defining the Framework of Environmental Policymaking These reflections describe the process of legitimatization and institutionalization of environmental policymaking, with reference to the relevant symbolic, normative, and political factors, and taking into consideration gender equity as an undeniable dimension of social equality. They also reflect the connection of environmental policymaking to the Equality Plans and the propositions of Global Conferences with regard to gender, environment, and planning: Agenda 21, CEDAW, and various local norms, such as Law 474 of the Constitution of Buenos Aires: Equal Opportunities and Treatment to Men and Women148. The planning of environmental policies with gender equity in the Latin American region is embedded in the challenge of habitat, linking environmental and gender dimensions, and cutting transversely across urban plans and programs. Gender and environment stem from different movements, but they are both structured on current criticisms of the economic development model adopted in the region over the last thirty years and based on the principles of sustainable development.149

148 Adjustment to the local and international norms. The criterions I use are based on the information available from the UNEP, the United Nations Environmental Programme; the European Union indicators; the Istanbul+5; the urban indicators program of the UN Centre for Human Settlements; Fundación Forum Ambienta; Department of Environment of Cataluña; the European Environmental Agency; Colectivo de Mujeres Urbanistas: Concejalía de la Mujer del Ayuntamiento de Pamplona; Agenda 21 de Gijón, Spain; Forum Cívico para una Barcelona Sostenible; Instituto de Estadística de Andalucía; Sevilla and ECLAC, Economic Commission for Latin America and the Caribbean; as well as propositions of world conferences and international organizations. At a local level, the adjustments refer to the guidelines of the Buenos Aires Environmental Urban Plan; the Buenos Aires Strategic Plan 2010, Future; the local Agenda 21; the Constitution of Buenos Aires –art. 11; 21; 36; 38; 111– and law 474: “Equal Opportunities and Treatment to Men and Women.” The historical references start in the ‘70s with international documents like the “Limits to Growth”; the UN declaration of 1972; and continue in the ‘80s with the Cocoyoc Declaration, the “Theories of Green Development” and in the ‘90s with “Our Shared Future”. The Río Earth Summit in 1992 establishes the Agenda 21 and an action plan for sustainable development, incorporating this concept to the social and economic dimensions of the principles of interregional equality. The results of the second Earth Summit carried out in Johannesburg in 2002 are disappointing regarding environmental and poverty agreements. However, at this summit 189 countries reached an agreement at the last moment about Women’s Rights. Thanks to the remarkable lobbying of the Canadian delegation, the final Declaration does not include the paragraph leaving the right to sexual reproduction and reproductive health of women to the “national legislations and cultural and religious values”, but declares that these are “fundamental rights and liberties of women”. It is interesting how the subject matters of women, the environment and poverty are linked in the paradigm of sustainable development. Today the entire world is concerned about the global food crisis. FAO’s World Summit on Food Security organized in Rome in November 2009 meant to resolve this growing crisis. One of the best solutions would be financial assistance given to the poorest countries to develop sustainable agriculture, but France, Germany, the United Kingdom, Italy and Japan have still not invested the 20 billion dollars promised in 2008. 149 “Why should the issue of gender constitute a legitimate planning tradition in its own right? … For in the world of policy and planning where fashions come and go, women and development


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At the end of the 20th century the United Nations and the ECLAC revised the International Development Strategy and the models for economic planning. Recognizing that economic growth has not increased social welfare and justice, the concept of integral development was introduced. The organizations proposed governmental social policies in order to neutralize undesirable effects of the market, accepting that the social problems cannot be solved simply by a stronger economy. In those days the new global conditions profoundly changed the relation of women and the natural and constructed environment, creating new social and productive relations. The massive incorporation of women in the global economy, a characteristic of globalization, implies a dynamic of inclusion/exclusion within the market and a distortion of traditional gender roles. As a result of the identity crisis of men and women becoming consumers, the traditional gender system is modified and the symbolic order established by the nation state disappears. Globalization claims to connect the world, but it fails to connect the masses of people living in insecurity and struggling to encounter civic institutions that work to develop a plural society based on the inclusion of all citizens. Social dynamics and subjectivity are no longer a factor for the nation state. The movement from the state to the market led to an identity loss. Today citizens are free to develop their own initiatives based on their personal capacities. The state loses its identity derived from the experience of a shared territory, principles and past and becomes a simple administrator. In the so-called second wave of the feminist movement, the debate around the concept of gender150 is extended to the analysis of power relations and the ways that the exercise of power structures the social reality. As women enter the world of academia and politics, myths about the neutrality of economic and its differentiated gender effects begin to be questioned. Research about the role of women have shown that the gap between labor productivity of men and women has increased and labor training policies have led to the increasing disqualification of women, in terms of entering the labor market. The “basic

concerns are a peculiar anomaly. They resolutely refuse to disappear. However, unlike other recent contenders, such as the environment, they have not succeeded in attaining planning legitimacy. Why has it been so easy for environmental planning to gain identity as a separate planning tradition, and yet so difficult for the ‘women in development’ approach?” Moser, C.: Gender Planning and Development: Theory, Practice and Training. Routledge, New York, 1993 (original citation). 150 Gender: “a symbolic construction that refers to the social and cultural attributes given to people based on their sex. The concept of gender transforms the differences between men and women into social inequality. Gender differences are not biological, but mental and social-cultural, they have developed historically. For this reason, gender is not the same as sex, while the first term refers to a sociologic category, the second to a biological one.” Colectivo de Mujeres Feministas (2004).


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needs approach” generally adopted as the cornerstone for social planning is defined by the ILO as a way to guarantee fulfillment of the minimum needs for survival of a person and for which there exists basic public responsibility. The basic needs approach has a number of gender-related social and conceptual implications, among them, the notion of women as economic agents. Although the family remained the fundamental unit of analysis, women would later emerge as independent agents with specific and individual needs. With regard to gender relations in the 1990s151, the focus moved towards increasing institutionalization, cutting transversally across public policies in sectors such as environment and urban development, from planning to evaluation. The incorporation of gender in these processes was a relatively new phenomenon for the associations of women, guided by the informal, anti-hierarchical and politically active feminist culture of the 1970s, whose fundamental role is the maintenance and articulation of the expanding feminist movement in Latin America. Their theoretical bases touch on political, social and economic issues and should be incorporated in local and international public policies, as well as sectorial efforts related to urban planning. Similarly, these advances should be reflected in institutional structures and in juridical and ethical frameworks, as indicated by the documents produced at the United Nations conferences about women in Mexico City (1975), Copenhagen (1980), Nairobi (1985), Beijing (1995), Istanbul (1996), New York (2000, 2005), the conference on Human Rights in Vienna (1993) and on Population and Development in Cairo (1994). Environmental and gender-based analyses share the paradigm of sustainable development, and as such they provide us with an opportunity to promote changes in the practices of production and consumption and validate the role of new social actors, based on application of the principles of self-sufficiency, self-determination, participation, and cultural diversity in social planning and a vision of human development which includes liberty as an essential aspect.

II. Female citizenship

151 “The social movements of women consolidated and spread at the world summits during the 1990s.” (Guzmán, op.cit.) The great number of female participants from all around the world allowed women to become “protagonists in the process of law formulation and in international relations”. At the same time, they were exposed to “the ideas of autonomy, individualization, liberty and equality, changing their self-perception and their condition as individuals subject to rights… in order to live in “a world all together.” Vargas citing Virginia Guzmán. Vargas, Virginia (2002) “Globalización, Feminismo y construcción de la Ciudadanía.” at a PRIGEPP seminar titled “Comparative analysis of legislation, public policies and institutions with the aim of achieving gender equality.”


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As citizens women are subject to discrimination: they do not participate in the development of large urban-environmental projects, they are often excluded from work offers, they represent a relatively poor sector of population, they are more vulnerable to the negative environmental effects and they face difficulties trying to access land titles, housing, and credit. They are the principal victims of violence. For this reason, it is mostly in their interest to improve urban development, land-use planning, and environmental conditions. Increased female participation has positive effects, since it reinforces local democracy and the idea of responsible citizenship, expands the space for reflection on the environment and urban planning, and improves the use of local resources. In this sense, it is essential not to squander the talent, capacity and management skills of half of humanity: women. They have been and continue to be responsible for extending democracies through the construction of female citizenship, for the benefit of all of society. Global and local women’s movements have shown that gender relations express the contradiction between individualism and solidarity, between the principles of equality and inequality, between the value of independence and the experience of dependence, that is to say between the social realities of men and of women.152 The most important advantage of the equality of opportunities is its democratic legitimacy. A democratic state cannot deny or prevent equality for women, or deny their equal access to public space. However, there is a profound dichotomy between the universal notion of citizenship based on equal individual rights for all and the particularities that characterize and differentiate male and female citizens. To overcome these gender-related contradictions, we must dismantle the patriarchal concept of citizenship and of private vs. public life, a separation that creates the “natural subjugation” dividing the world of men and the world of women. The new features and connections between actors of today’s society - which is both more organized and more complex - influence political decision-making processes and public policymaking. It is this gender-based interaction that leads to increased interdependence between the social subsystems. They shape socioeconomic spaces with increased autonomy that are more difficult to regulate by the decentralized and fragmented states, whose heterogeneous functions span over public spaces, productive sectors, and diverse political-

152 It took a few years to accept that the best term to describe the relation between men and women is “gender,” a specific set of considerations in the larger framework of social inequality. Development specialists, policy planners and designers recognized even later that if the concept of development only referred to economic development, and not redistribution, well-being and democracy, a large segment of the population, women, were excluded from the benefits. The importance and necessity of incorporating a gender perspective in development programs and projects has been recognized. Barrig, Maruja (2002) “El genero en las instituciones: Una mirada hacia adentro”. PRIGEPP.


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administrative levels. Incapable of taking on the leadership of molding social spaces, states must turn to the expertise of non-state actors to establish a common space of action.153

III. The City and Women “Whereas cities are faced with major and unprecedented challenges for achieving the following objectives: environmental preservation and sustainable development, improved quality of life for all, including increased equality, solutions to urban malfunctions and the fight against exclusion, active and balanced democracy for a plural society, in which women are actively involved.” The European Charter for Women in the City (original citation). “The city, just like the society, has been based on the work of women throughout history, subordinated to men in the patriarchal family structure.154” Women have always engaged in both paid and unpaid productive work: domestic chores, taking care of the family, agricultural tasks and helping the paid work of men. “The history of humanity is the history of exhausting agricultural work, carried out by women all around the world. The history of industrialization has been written mostly by the factory workers.”155 Cities, countries and regions are challenged to build the desired kind of cities: integrated, modern, respectful of the environment, culture, patrimony and the arts, but at the same time flexible to changes, rich in opportunities, guaranteeing sustainable and durable development, promoting an improved quality of life, equal conditions to men and women, avoiding exclusion and securing the integration of public spaces. The notion of “inclusion” is a cultural construction and all public policies emerge from a social practice. The solution to public problems is the outcome of the interaction of individuals and groups, of various male and female actors through a network of compromises and agreements. In order to effectively consolidate an inclusive and harmonic social space three conditions must be met: equality of opportunities, the acceptance of diversity, and the recognition of the necessity of the sustainability of the natural and the constructed environment. According to Wangari Maathay, winner of the Nobel Peace Prize in 2004, “sustainability is peace.” She acknowledges three factors: women, environment and peace, as a wonderful value-triangle and a necessary condition to good life. And this can be used as a dimension of social equality. 153 AMAI-GCBA. (2003) Género y Ciudad. Edición GCBA. Buenos Aires. 154 Borja, J., Catells, M.: Local and global: The management of cities in the information age, 1997. 155 Op. cit. Borja


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However, this does not happen because of the lack of public policies facilitating accessibility and inclusivity in our cities. That’s why we must demand the equality of opportunities to create sustainable cities, without exclusion, so that the public place can be shared by all men and women, implying the mutual acceptance and the acknowledgement of all identities, different belongings, ethnic groups, multiculturalisms, genders and capacities. Leaders must provide the citizens with tools to link the environmental and the sustainable dimensions of the cities. In this context the demand for female participation in decision-making appears, being a special representative of the urban and regional dynamics, given that the public space has been energized by the women’s wish of autonomy, rejecting the dichotomy between private-domestic spaces owned by women and public territories dominated by men, and rejecting the antinomy between culture and nature. Local democracy is based on the citizenship, and without legal equality citizenship cannot exist. Citizenship cannot exist either if there is social exclusion, if the migrant population of the cities is confined to ghettos or if basic services do not reach all inhabitants, restricting the possibilities of work, progress and participation. The city must be for all men and women protecting the symbolism and identity of urban spaces. And most importantly the city must incorporate women in decision-making and the exercise of governance. This is a condition of the democratic reorganization of the urban areas, one of the most important challenges of the 21st century.

IV. Women, social movements, policies and ecology156 During the last quarter of the 20th century we experienced the emergence of a great number of social movements of women: peasants, rural dwellers, poor urban citizens, and migrants organized themselves peacefully, almost in silence, restoring the principles and demands of the historic women’s movements: equality of opportunities and of treatment, just retribution and acknowledgement, the acceptance of others, the rejection of violence, the protection of the environment, food sovereignty and the protection of life in

156 Frei Betto. (2009) “Madre ambiente”. Ed. ALAI Latina. “The word ecology comes from the Greek terms “oikos”, meaning “home” and “logos”, meaning knowledge. Science studies the conditions of nature and the relations between all existing things, as all what exists coexists, had existed before and will survive. Ecology is about the connections between living organisms, as plants and animals (including men and women), and their environment. Maybe it would be more correct, but not appropriate, to talk about “ecobionomy”. Biology is the science concerned with the study of life. Ecology is more than knowing the house where we live, it is about knowing the planet. As economy is the management of a household, “ecobionomy” is the management of the life of the home. And it is possible to call the environment mother environment, as it is ours, our root and our food. We come from the environment and we return to it.”


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order to create a sustainable world. The principles of solidarity, cooperation, reciprocity, diversity and equality have been the bases of the economic practices and contributions of the female population, having as a priority the integral reproduction of life processes and conditions. The search for more inclusion in the society is a particular aspiration of Latin American women, aiming to respect and recuperate the diversity of the peoples and overcome injustice and inequalities.157 Although there have been advances in areas like education, health, energy cooperation, articulation and political concertation, and conflict resolution, these have not been considered or appreciated by the media, governments or the market, even though they aim to transfer the national and regional environments and construct alternative societies. Women’s movements consider themselves the historical protagonists of non-commercial experiences, creating new societies on the basis of “the union of peoples, self-determination, economic complementarity, fair trade, the fight against poverty, the preservation of cultural identities, integration in the energy sector, the protection of the environment and justice. This way they unite forces to achieve the common objective of the construction of a region, based on solidarity and free from patriarchal relations.” They add that they wish to create “a place of political, economic, social, institutional and cultural sovereignty. The ultimate goal is to produce a fundamental change in the way of thinking, designing, deciding on and materializing public policies. It is about the construction of a new social paradigm, not only the reformulation of the existing one. This is a challenge that requires all available knowledge, understanding, and negotiation capacity between the governments of the region’s countries and its social movements, in a permanent and fluid way.” They believe it is possible to succeed if a feminist approach is adapted in initiatives and policies to promote the equality of women and eradicate patriarchal practices. They express a concern about the current growth model in the region based on megaprojects, carried out without the consent of citizens,

157 The coalition of women’s NGOs for the environment, the population and development, has been the host of global female lobbying. At the Rio de Janeiro Earth Summit of 1992 the coalition was called Women’s Planet. In the ‘80s, both the Women’s Conference in Copenhagen (1980) and the conference in Nairobi (1985) prepared for the Rio Earth Summit, where the environmental and the gender dimensions of economics met in the paradigm of sustainable development. The preparation of the European Charter for Women in the City of the European Union in 1994 and the IV Women’s Conference in Beijing in 1995 considered the experiences of third world NGOs. The new strategy considered both equality and the empowerment of women, realizing the origins of their peripheral situation. The aim was not to promote women’s participation in social relations from the position of the dominated, from subordination, but to transform the relations based on the concept of power. The capacity of empowerment depends on the cooperation of two autonomous bodies and the contribution of two different energy sources to a common goal. (Alonso Vidal, M. (2002) final dissertation: Gender equality in Urban and Environmental Public Policies. PRIGEPP. FLACSO.


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attacking their rights, sovereignty and self-determination. The boom of monumental infrastructure works, like the projects of the IIRSA and the Mesoamerica Plan, involving all countries of the Americas, supports the strengthening and extension of enclave economies, based on the logic of extractivism, predators in their relations with nature and reproducers of subordination in the community. These projects have a notable impact on women, especially in indigenous or impoverished communities, threatening food sovereignty, changing the geography, the ecosystem, and traditional consumption patterns. Some of the projects lead to the depredation of the local resources in the Amazon, in the rainforests of Central America, in the fertile lands of South America or the mineral resources of the Andean region. They recognize that the shared challenge for the countries of the region is to find ways to progress towards policies that recognize and fairly compensate productive labor and the unpaid work carried out in the private sphere (home, house), understanding that “that which is personal is also political”. They demand assistance and infrastructure from the state for the public and communal services to meet the basic necessities of all dependent groups (children, the disabled, adults and the elderly). They ask for adequate working hours, mutual responsibility and reciprocity of men and women in the domestic work and in family obligations. They also demand the extension of the social security system to all the population. Lastly, they promote sustainable and integral agrarian reforms, with a holistic vision of the land as the source of life, promoting economic and productive diversity, redistribution, and the prohibition of large land-holdings.158

V. Freshwater: A Strategic Resource - Seen from the perspective of “gender”

“Water in all of its forms is a common good and access to water is a fundamental and inalienable human right. Water is the patrimony of communities, of the people, and of humanity, the basic element of all life on our planet. Water is not a commodity… Management and control of water must be public, social, cooperative, participatory, equitable, and not for profit. It is the obligation of all local, national and international public institutions to guarantee these conditions from the planning stages through the delivery of water services… Sustainable management of ecosystems and the preservation of the water cycle is necessary by way of the proper administration of territories and the conservation of natural environments. Watersheds are fundamental units of public management, a factor in community identity and unity, where popular participation is effected. The defense of water implies recuperating the health of ecosystems from the catchment’s basin to the treatment of residual waters.”

158 Red Latinoamericana Mujeres Transformando la Economía –REMTE– Articulación de Mujeres de

la CLOC- Vía Campesina Federación de Mujeres Cubanas Federación Democrática de Mujeres.


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From the Joint Declaration of the Movements in Defense of Water, Mexico City, March 19, 2006 (original citation). The scarcity of freshwater is critical almost all over the world. Out of the 55 rivers of Europe, only five are not contaminated. The scarcity of freshwater in Europe is critical because of the irrational exploitation of resources, contamination produced by petrochemical industries, the use of agrochemicals, and the devastation of natural forests. In Asia, the situation is even worse, because of chemical contamination, the irrational diversion of rivers and streams to favor commercial cultivations, the construction of hydroelectric reservoirs without the evaluation of potential environmental damages, or in cases of multinational basins without the consideration for strategic environmental evaluations.159 Australia suffers from serious problems in the south. The overexploitation of the rivers and underground water resources concentrates significant quantities of salt on the surface, reducing the amount of arable land. Even though Africa has two giant aquifers (underground reserves of fresh water), the Nubia Aquifer of 75.000 km3 (Sudan) and the North Sahara Aquifer of 60.000 km3, the freshwater situation is critical in the north and south of the continent. Africa’s rivers and lakes are contaminated as a result of the human and economic overexploitation. A continent with substantial freshwater resources suffers from water scarcity, because of contamination and the technical mistakes made in terms of the use and distribution of water. In the Southern Cone of South America, the Guaraní Aquifer, an underground reserve shared by Argentina, Brazil, Paraguay, and Uruguay which covers 1.190.000 km2, providing 50.000 km3 of water, is in danger, even though it could cover the water needs of the planet for 200 years. An aquifer is like an underground cup with bottom and sides of sandstone and basalt, in which the water can move around without reaching the surface. The massive and intensive exploitation of the freshwater resources of the aquifer can lead to salination and as the chemical composition of water changes it can become undrinkable. Another danger is contamination, as the area does not have a sewage and sanitation systems. Water is a partially renewable resource thanks to the constant flow between the sea, the air, and the land, however the application of inappropriate development technologies - like the contamination of the water-catchment areas, the 159 Strategic Environmental Assessment (SEA) can be defined as a new environmental management

tool, a mechanism in the latest generation of environmental controls in urban areas and regions.

SEA, as its name indicates, aims to link strategic planning and environmental assessment. It was

developed because the previous mechanism, the Environmental Impact Assessment (EIA), was

proven to be inefficient and limited regarding the relative value of planning and quality. (Concepts

of Dr. Aqr. Roberto Fernández in “An introductory reflection about the Strategic Environmental

Assessment,” 2004 at a conference of the Strategic Plan, Future Buenos Aires).


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deviation of water as a result of dam construction, the exhaustion of the underground water resources in the process of river deviation, mechanical pumping and the excessive use of water in commercial cultivation, can lead to the drying up of the land and large scale desertification. The traditional work of women in communion with the environment increased the availability of water and life resources, without altering natural cycles. This has now been replaced by agrochemicals, science, and industry diminishing water retention and land fertility. All around the world women are responsible for providing their families and communities with water, dedicating great deal of time every day to the transportation of water. The economic focus applied by the governments and the market regarding water increases social injustice and complicates the access to water, declared a fundamental and inalienable human right by the United Nations. For this reason, one of the Millennium Development Goals of 2000 is to halve the proportion of people without sustainable access to safe drinking water by 2015. According to the Latin American and Caribbean Initiative for Sustainable Development, Latin America possesses 40% of the renewable hydro resources of the planet, yet 77 million people do not have an access to potable water. In addition, 100 million people still lack basic services and 256 million do not have sewage and potabilization services or processing plants. The “Political change in Latin America: a new water policy?” summit was organized in November 2007 in Mexico City to discuss the possible solutions to this problem. A hundred experts from 19 countries analyzed the importance of the gender perspective, privatization, financial resources, commercialization, legal frameworks, and the new opportunities of the whole process of water management, in order to find sustainable solutions. At the summit Ingrid Spiller, the regional coordinator of the Heinrich Böll Foundation for Mexico and Central America, pointed out that “Women, children, and indigenous and rural populations always suffer the most from the lack of access to water or simply from insufficient services.” She believes it is useful to analyze the local and regional context and look for differentiated solutions to provide access to water. Hilda Salazar, from the Gender and Environment Network stated that “the gender focus has allowed us to uncover and observe closely the social inequalities. In the case of water, there are two important aspects: the evident and increasing social inequality and the environment.” Ecological movements led by peasant women are aware of the connection between water and vegetation, thanks to their accumulated experience of centuries. For the agroindustrial companies, forestation is only a source of profit


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and trees are only for commercial use. For them, it is not about securing access to water. On the contrary, they use the water sources excessively. According to female environmentalist movements, trees should be planted in the regions affected by drought in order to protect the right to water. They also oppose the Western technocrats according to whom the dams and channels supply water. For these women the forests surrounding the plantations, rocks, rivers, and wells are the sources of water. The women who find water for their families on a daily basis possess the necessary knowledge to increase the availability of water for human survival without altering nature. As a result of globalization, this traditional society has been replaced by another one, believing in agrochemicals, science, technology and industry. Vandana Shiva in Embracing Life: Women, Ecology and Development says: “Women, peasants and tribal people have firmly resisted… the masculine mentality aimed at dominating and domesticating all rivers… The women living in rural areas have supported their communities with wells for centuries. As women are responsible for supplying their families with water, and using it at home and for cultivation, water scarcity increases their responsibility. Each river, spring, or well that dries out means longer walking distance for women to find water. The task is becoming more difficult, and the chances for survival are fewer and fewer.160” She refers to non-remunerated work, which makes up nearly fifty percent of humanity’s labor. Still, women only possess 1% of land. Shiva adds “There is only one way to survive and liberate nature, for women and men. It is the ecological way, based on balance and diversity instead of control, exploitation and harmful development.” Exploring the role of women in the developing world, she describes them as the “saviors and the victims of harmful ecologic development” and states that “their non-sexist and non-violent fights… are the paradigm of sustainable progress.”

VI. The age of women and food sovereignty “The Earth is polluted. And we suffer the effects of its devastation, as all we do is reflected in the Earth, and all that happens to Earth is reflected on us.” As Gandhi said, ‘the Earth provides enough to satisfy every man’s need, but not every man’s greed.’ The rich countries of the northern hemisphere contribute the most to the contamination of the planet. They are responsible for 80% of contamination. The United States is responsible for 23%, and insists on not signing the Kyoto Protocol. “When the last tree is cut down, the last river is poisoned, and the last fish is caught, we will realize we cannot eat money,” says a Native American. The most important problem today is not the pollution of air or waters. It is the threat of the extinction of humanity, as a result of poverty

160 Shiva, V. (1989). Embracing Life: Women, Ecology and Development. Zed Books


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and violence. Saving Earth means liberating people from all injustice and oppression.”161 The concept of food sovereignty was developed by the NGO Via Campesina, an international peasant movement, and formally introduced at the World Food Summit in 1996. The concepts of “food security” and the “right to food” were defined. Both concepts make states responsible for the generation of public policies which guarantee their populations’ access to food. According to these organizations it is necessary to extend the concept of food security. It is not enough to have sufficient amounts of food, it is also necessary to respect the culture of the local people in the food production process. The concept of food sovereignty is cultural and, among other things, questions the current model of agricultural production. “With this concept the cultural dimension of food is added. Food has cultural value, because of local alimentary traditions. There is a difference between Central America consuming beans or consuming wheat or fast food,” points out José Graziano da Silva, the regional representative of the Food and Agriculture Organization (FAO) of the United Nations. The debates regarding food security progressed at the Forum of Social Movements and at the World Summit of FAO in Rome, in November 2009. The delegates of peasant, shepherd, and fishermen organizations met to debate questions like “Who decides about food and agriculture? Who, how and for whom should food be produced? Who should control the resources of production?” Likewise, women, indigenous populations, and youth organizations met to discuss these questions, in order to present them later in collective spaces of debate. The Assembly of Women organized in November 2009 emphasized the central role of women in food production, and, at the same time, recognized their invisibility in the process. Women coming from Africa, Asia, Europe, North, and South America pointed out that despite their different backgrounds, their problems are the same: the difficulty to accessing land, means of production, and the recognition of women as producers, etc. Ester Vivas expresses this in “Rebelión,” in “Forum of Social Movements parallel to the FAO World Summit”. In the words of Maryam Rahmanian, an activist from Iran, “the age of food sovereignty, of women, and of agricultural workers has arrived.” According to the Iranian expert, “it’s not appropriate for the WTO, the IMF, or even Bill Gates to be deciding what kind of agricultural policies we need, because these institutions are themselves part of the problem” (original citation).

161 Frei Betto. (2008). Madre Tierra. Editorial ALAI Latina


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Food sovereignty is a polemic, especially regarding the way it should be put into practice. While local governments increase their efforts to fulfill their obligations and must fight with limited budgets to meet the demand, they resist the pressure from organizations claiming that agriculture is not for commerce. These organizations propose to exclude agriculture from the World Trade Organization (WTO) negotiations or, alternately, to extract the WTO from agriculture. One of the concepts which has generated the greatest amount of criticism is the idea that, taken to the extreme, food sovereignty may be in direct conflict with international trade. “Food sovereignty is an interesting concept, but it should be used carefully, as it can lead to a certain perversion. Some countries historically understood sovereignty as blocking the exportation of agricultural products, and this can reduce investments in agricultural sector,” points out Olivier Longué, the Executive Director of the Spanish NGO “Acción contra hambre” in BBC World. The world produces sufficient food for all, still the number of people suffering from chronic hunger reached the painful level of one billion in 2009. Since 1996, when the concept of food sovereignty was first defined, many alliances have been formed to reach this objective. Today, networks like the World Forum of Fisher Peoples, the West African Network of Peasant Organizations and Organic Agriculturalists, Friends of the Earth, the International Coalition for Habitat, and Vía Campesina propose solutions and alternatives to the agro-industrial model. There is still much to do, the food crisis implies drastic and immediate changes in agricultural and food policies. The need to reconcile the radically different positions of organizations, governments, and the market constitute a global challenge. The question is whether FAO is up to this challenge.

VII. Reflection and synthesis In this article I have tried to present a conceptual way of thinking about the role of women as participants and creators of the complex relations between discussion of the environment and gender equality. I have tried to show that these emerging processes are symbiotic, articulated by governments and markets, together with civil society, as well as participatory and symbolic, to the extent that they promote cultural integration and promote collective identities among the men and women involved in the difficult construction of a more just and equitable global society. Lastly, I have emphasized that this process must be lived as a democratic and responsible exercise of full citizenship. The task at hand is difficult, non linear, and open-ended, because of the diversity of conflicting interests. Still, I believe in the extraordinary cultural and conflict resolution skills of the people who work towards the adequate articulation of gender and environment. This way people will be able to live better lives and fulfill their real needs all over the world.


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Society must be understood as a large, communicational network. Similarly, the relationship between women and the environment must be conceived of as an argumentative, rather than an instrumental, action. For this reason it is necessary to develop narrative practices and policies, promoting participation and consensus, multi-actor management, and a framework of solidarity, symbolic mediators, and values in which the interests of those with the fewest resources and the least power can be adequately represented and protected. Achieving justice and gender equality in environmental management requires the strategic and qualified commitment from all those believing in feasible utopias. We, the women of the world, are already working on it.


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Bibliography AMAI-GCBA. (2003) Género y Ciudad. Edición GCBA. Buenos Aires. Borja, J. y Castells, M. (1997) Local y Global. La gestión de las ciudades en la era de la información. Taurus. Alonso Vidal, M. y Brandariz, G., compiladoras (2009) El Otro Urbanismo. Edición AMAI. Bifani, P. (2003) Género y Medio Ambiente. México: Edición Universidad de Guadalajara. Fernández, A. M. (2000). La Mujer de la ilusión. Pactos y contratos entre hombres y mujeres. Edición PRIGEPP. Fernández, R. (2000). La Ciudad Verde. Teoría de la Gestión Ambiental Urbana. Buenos Aires: Espacio Editorial. Mumford, L. (1959). La cultura de las ciudades. Buenos Aires: Emecé Editores. Shiva, V. (1995). Abrazar la vida; Mujer, ecología y desarrollo Editorial Horas y Horas.


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Environment, Penalties and Reparation: A complex relationship – Executive Summary By Mario Gustavo Costa Regular Adjunct Professor (UBA)—Retired Judge Member of FARN Consultative Board President of the Board of Director of the Argentine Bird Association /AOP (Aves Argentinas) Translated by Elliott August Executive Summary Based on the classic principles of the law - sanction against those who produce harm, liability of for the repair of damages, and, if possible, preeminence to the return of the original condition - this article shows that these principles of often ignored in everyday practice. Taking into account certain considerations of argentine penal law, it takes us on a journey through current penal legislation, examining different aspects of application and the problems faced. It also explains the projected reforms and makes a generic mention of the relationship between penal law and other areas of sanction, including misdemeanors and civil law. It goes on to analyze how, in the few instances in which sanctions are imposed, reparation does not usually follow (with comments relative to comparative law). Following this, it puts forth a series of criteria which could be used to promote environmental reparation, in keeping with recent emphasis on this issue by the Argentine Supreme Court. These criteria include the moderation or even the removal of sanctions, moving away from the traditional principle of legality a ultranza The article then analyzes a series of cases which seem to mark the general trend; In these cases, low priority has been given to environmental reparation. It goes on to postulate the need for formulas aimed at overcoming current loopholes or ambiguities in the legal code. Lastly, it explains the importance of contextualizing legal processes in the larger framework of social change, in order to generate a system in which Article 41 of the National Constitution, is not just a legal mandate but a physical reality.


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The Option of Criminal Environmental Law - Executive Summary By Gustavo Antonio Gómez Attorney General in the Tucumán Federal House Translated by Elliott August Executive Summary Evidently there is a disconnect. On the one hand, we have lawyers who dedicate themselves to environmental law in search of valid and effective instruments to protect the complex system of life, in every sense of the word. On the other hand, we have native peoples and average citizens, who believe that the lawyers cannot be trusted and are contributing to the exponential growth of contamination. This framework is further aggravated by the fact that access to justice is systematically denied by a legal bureaucracy which only yields before absurd and scandalous cases. For those not learned in the law, what remains possible is the defense of the environment through popular demonstrations, roadblocks, public denunciations, etc. The result of this deaf system is the criminalization of environmentalists and the marked deterioration of Gaya, the Earth. Based on the extremity of the situation, for more than twenty years we have insisted on the creation of the concept of environmental crime and for a specialization in criminal environmental law which activates the punitive authority of the State to prevent and to penalize with prison sentences those who contaminate the environment in a negligent or fraudulent manner. Still more, criminal environmental law might condemn as a crime against humanity those who make illegal usufruct in detriment of the health of our planet. Very little has advanced and the scarce written texts on the topic to not always favor the urgent advance of environmental penal law. The intention of this short work is to summarize some of the errors/negations and the consequences that arise from them. We also take note of two or three aspects — perhaps the most controversial — that should be better understood by our legal colleagues. Only by contributing to this understanding, might we be able to reconcile the two paths that bifurcate at an ever wider distance, to the detriment of all and the benefit of few.


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Forum for the Conservation of the Patagonian Sea: Situation of the initiative and its area of influence in 2009 By Santiago Krapovickas - Consultant on the project Modelo del Mar (Wildlife Conservation Society – CONICET) Claudio Campagna – Director of the Project Modelo del Mar (Wildlife Conservation Society – CONICET) and President of the Directive Body of the Foro para la Conservación del Mar Patagónico y Areas de Influencia Pablo F. Filippo – Coordinator of the Foro para la Conservación del Mar Patagónico y Areas de Influencia Translated by Eleanor Leshner Executive Summary The Forum for the Conservation of the Patagonian Sea and Areas of Influence is a network of NGOs that promotes the coordination of actions and the synergy between organizations dedicated to the conservation of marine biodiversity in Argentina, Chile, Uruguay and Southern Brazil. During 2009, the Forum continued to develop its project on the state of the marine ecosystem, partnering with experts across disciplines. Various outputs from this project have already been completed and circulated (ex. electronic book, synthesis book, public acts). The Patagonian Sea’s ecosystem continues to exhibit worrying signs related to the state of its biodiversity. The number of fishing boats in use has been reduced, while populations of some vertebrate species currently exhibit negative trends that have led to their inclusion in the IUCN Red List of Threatened Species. Certain marine and coastal habitats are being damaged by bottom trawl fishing, invasion of exotic species and contamination from urban or industrial origin. Public policies established in order to preserve the sea do not appear to be sufficient. However, recent advances in measures to regulate the Federal Fishing Authority, to implement better controls of deep-sea fishing vessels and to create protected marine areas are evident. The rapid changes in ecological, economic and social terms, in addition to the degree of deterioration of the Patagonian Sea, signal a critical moment to increase civil society organizations’ impact on public policy related to costal preservation.


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I. Introduction

The adoption of policies over the long-term that take into account the conservation of Nature as a public good, like natural public goods found in the marine ecosystem, pose a formidable challenge to society as a whole. In this article we intend to reflect on the actual role that social society organizations can play in the quest for long-term public policy on the conservation and sustainable use of such a vast and complex public good as the Argentine marine ecosystem. We provide updates on the Forum for the Conservation of the Patagonian Sea and Areas of Influence, a network of civil society organizations that has been created to promote collaborative work towards conserving this ecosystem. Furthermore, we have deemed it necessary to briefly inform the reader about the ecological characteristics of the Argentina Sea, which allow the reader to better appreciate the ecosystem services provided as well as to discern the challenges associated with the management of human activities connected to the sea. We include a review of innovations that occurred in 2009 related to the management of the sea. We conclude with a commentary on the Forum’s contribution to solutions to recognized problems. In a way, the present article is based on and complements the work of Filippo.162

II. The current situation of the Forum for the Conservation of the Patagonian Sea

The “Forum for the Conservation of the Patagonian Sea and Areas of Influence,” from now on referred to as simply the Forum, was created in 2004, during a workshop in New York hosted by the international organization Wildlife Conservation Society. The Forum’s (“Patagonian Sea”) area of interest includes the marine waters close to South America, from the South of Brazil until the South of Chile, spanning the whole of the Argentine Sea. The choice of this broad area can be considered a single unit from oceanographic and ecological points of view, which further promotes the idea of increasing cooperation between regional countries to accomplish conservation. The principal motive behind the creation of this initiative is the insufficient public debate on biodiversity conservation in the Patagonian Sea and adjacent oceanic areas. Challenges related to the conservation of marine life diversity, in the context of the sustainable and equitable use of ocean resources, are rarely analyzed publically. Government authorities as well as economic actors, civil society and the media should participate in the debate. One consequence of this lack of concern for the marine environment is reflected in the lack of

162 See Filippo, P.F. (2009). Los espacios marítimos argentinos, los desafíos de la conservación de su biodiversidad y los aportes de la sociedad civil. (pp. 339 – 344) in Di Paola, Sangalli and Caorsi (eds.) Informe Ambiental Anual 2009. Buenos Aires: FARN.


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coordination and integration in this ecosystem’s management by different regional governmental jurisdictions (from the local scale to national and international scales). The organizations that make up the Forum appreciate this area’s marine biodiversity, which they consider of high importance at the global level. The mission of the Forum is “to promote the synergetic collaboration between organizations in order to achieve ecosystem integrity and efficient management of the Patagonian Sea, in a genuine collaboration between public and private sectors.” The end goal has been presented as a “Patagonian Sea that is ecologically healthy and diverse, which provides for the needs, wishes and aspirations of people while maintaining one of the greatest wildlife sights and one of the most productive marine ecosystems in the world.” The organizations that make up the Forum all struggle with their different structures and degrees of development. They understand that the challenges that they are up against will go beyond their individual means, motivating them to unite in order to expand the scale of their work and to increase their impact with the objective of ocean conservation. The activities of the Forum are financed by contributions by member organizations, which must manage special donations from other sources on their own in order to help finance projects adopted by mutual agreement. Special characteristics of this Forum include:

� It is of non-governmental and international character. � To integrate the network of organizations the forum ordinarily engages in activities such as plenary meetings, communications and electronic bulletins, maintenance of a web page, publications, public acts and communication campaigns. Up until the date of publication, the forum has had seven plenary meetings, which are documented in bilingual reports.

� It has made efforts to integrate organizations from disparate territories, trying to place an understanding of the ecosystem as a priority above cultural, political and jurisdictional differences.

� In pursuit of boosting public debate and informing make management decision-makers, the Forum promotes exercises coordinate construction with knowledge (and fact-finding) from the scientific information available on the state of the ecosystem, with the help of recognized experts (see Fillippo 2009163 as an example).

Currently, the organizations that actively make up the Forum are: BirdLife International, Conservation International (Conservación Internacional, CI), Aquamarine Foundation (Fundación Aquamarina); Environment and Natural Resources Foundation (Fundación Ambiente y Recursos Naturales, FARN); 163 See Filippo, op. cit.


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Democratic Change Foundation (Fundación Cambio Democrático); Ecocentro Foundation (Fundación Ecocentro); Natural Patagonia Foundation (Fundación Patagonia Natural, FPN); Argentina Wildlife Foundation (Fundación Vida Silvestre Argentina, FVSA); Whale Conservation Institute (Instituto de Conservación de Ballenas, ICB); Wildlife Conservation Society (WCS) and the World Wildlife Fund (WWF). The Forum also counts on the participation of associated organizations like AROBIS, The Blue Whale Center (Centro Ballena Azul), The Karumbé Project (Proyecto Karumbé), Oceana, the Pew Environment Group, National Geographic Society, the Antarctic Research Trust and the International Union for Conservation of Nature (IUCN). In June 2009 the Forum held its seventh plenary meeting in Buenos Aires, at which principles were adopted that should guide the Forum’s new strategic plan.

III. Projects of the Forum

The Forum’s major activity during recent years has been the project “State of the Patagonian Sea,” which began in 2006 and continues today. The project purpose is to determine the important features of the current state of the ecosystem out of the whole knowledge base in order to produce a document that Forum members can use to design plans and strategies and transmit messages about conservation to different audiences. The project methodology has comprised of identifying experts and formulating specific questions by general consent among Forum members. From there, contacted experts have prepared articles that answer these formulated questions. These articles have been enriched and completed, until developing into a collection of 65 original texts that are available online in “electronic book” form.164 The list of authors and co-authors includes 87 people, belonging to research institutes, universities and NGOs of various countries. The large quantity of information prepared by these experts was summarized in a “synthesis book” prepared by the Forum as a whole (Forum for the Conservation of the Patagonian Sea 2008165). This thickly illustrated book contains a diagnostic assessment of the ecosystem with regards to its biodiversity, human uses and their consequences. It also offers a global vision of the Patagonian Sea in the context of the oceans of the planet, including the first collection of objective warning signs related to the current condition of the ecosystem.166 This work was presented publically in Buenos Aires in November 2008 and in Puerto Madryn in May 2009. Up until now, over 1000 printed

164 www.marpatagonico.org/libro 165 Foro para la Conservación del Mar Patagónico y Áreas de Influencia, Síntesis del estado de conservación del Mar Patagónico y sus áreas de influencia (2008). Puerto Madryn, Argentina: Edición del Foro. 166 The book “Síntesis del Estado del Mar Patagónico” can be downloaded free of charge from the website of the Forum, at www.marpatagonico.org, or requested from any of the participating organizations.


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copies have been distributed among public libraries, staff members, NGOs, the media, companies, members of parliament and other actors in Argentina, Chile and Uruguay. At least 90 members of the media from various countries communicated the book’s launch and its principal concepts over various months. The project was also declared of interest by the Argentinean Senate.167

IV. Some Conclusions of the Diagnosis of the State of the Sea a. The ecosystem and its biodiversity In the Patagonian Sea, the production of phytoplankton (microscopic algae) is concentrated in areas where different masses of water are mixed by currents and the tide, known as oceanographic fronts. Phytoplankton provide food to a number of herbivorous organisms, and is therefore considered the beginning of many marine food chains. The wide Argentinean continental shelf (the plain submerged from the coast until 200 meters of depth) and its surrounding area constitute one of the most productive areas of the sea in the Southern Hemisphere. It is thus easy to understand the abundance of life on its coasts and the existence of some important fisheries. Due to the combined effect of biological activity and physical-chemical phenomena, the sea under the Argentinean continental shelf absorbs large quantities of atmospheric carbon dioxide. It thus contributes to the mitigation of consequences of climate change produced by the global increase of the concentration of this greenhouse gas. Other ecosystem services provided by the sea, beyond this climate regulation effect, include nutrient recycling, the distribution and treatment of contaminants, maritime transport and the repopulation of fisheries. Mollusks (conchs, bivalves, squids, etc.) add to some 900 species in the Patagonian Sea. Other groups of invertebrate animals are perhaps less known, even though we know that they add various thousands of different species. Some 700 species of vertebrate animals have been registered, of which some 500 are fish and the rest are split among sea turtles, birds and mammals. In the Patagonian Sea, as it occurs in other cold-temperate seas, there are some species that have very abundant populations (high biomass). Some examples are the common hake (merluza común), the tailed hake (merluza de cola), the small anchovy (anchoíta), penguins and seals. The Magellan Penguin is the most abundant seabird with more than one million of reproducing partners. There are other species that live out at sea, like the black-browed albatross, of which we think exist 600,000 pairs in this sea, and that principally breed in the Falkland Islands. 167 See note VSP 388/09 of the Vicepresident of Argentina.


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The edge of the continental shelf constitutes an environment with large quantities of marine species on the ocean floor, the column of water and surface waters. The ecosystem has global importance as a source of food for migratory species of birds, fish, turtles and marine mammals that breed in the region or come from distant areas. b. Threats to biodiversity The diagnostic assessment presented by the Forum in 2008 shows that it is an ecosystem with obvious signs of human impact, despite that it is very vast and the coastal human population is generally less dense. From a biodiversity point of view, the study detected various problems that persisted in 2009. Some populations of species with commercial value are found to be decreasing due to overfishing.168 Among these species include the common hake, the pole (polaca), the black hake (merluza negra), the tope shark (cazón) and the white sea bass (corvine rubia). Throughout the last decade, the worrying indices of the numbers of common hake resulted in a fear of species collapse in these seas, translated as a drastic and practically irreversible population reduction. These predictions have not come true, even though the situation continue to be worrying. Dozens of species of fish and invertebrates are captured as “bycatch” during operations with less selective fishing equipment and returned to sea wounded or dead (“fishing discard”). Periodic evaluations of the volume of these captures do not exist, even though it has been estimated that they reach thousands of tons annually in certain fishing grounds. The most striking example comes from the crawfish fishing ground on the Patagonian coast. On occasion, during this kind of fishing, juvenile hake and other species of commercial value are captured and discarded.169 Other species of vertebrates, like sea turtles, birds and mammals also suffer from being captured incidentally in fishing equipment. The majority of the affected individuals die or suffer serious wounds that reduce their subsequent survival. Among the most affected species include the albatross, petrels (seabirds) and small coastal dolphins.170 The greater mortality rate of many species caused by unsustainable industrial fishing practices is further aggravated by the negative population trends at the global level. Groups of 168 Cañete, G.; Bruno, C. and Copello, S. (2008). “Estado actual de la actividad pesquera en el Mar Patagónico,” in Estado de Conservación del Mar Patagónico y Áreas de Influencia. Puerto Madryn, publication of the Foro, available for download at: www.marpatagonico.org. 169 See Cañete, op. Cit. 170 Rabuffetti, F.; Favero, M. and Tamini, L. (2008). “Captura incidental de aves, mamíferos y Tortugas marinas en las pesquerías del Mar Patagónico,” in Estado de Conservación del Mar Patagónico y Áreas de Influencia. Puerto Madryn, publication of the Foro, available for download at: www.marpatagonico.org.


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species – principally sharks and rays, sea turtles and albatrosses – have been included in the International Union for Conservation of Nature’s (IUCN) Red List of Threatened Species due to their high probability of extinction in the next ten years.171 Human activity introduces non-native species in costal-marine environments. Some of these species become invasive and cause ecological changes in certain environments, which in turn produce economic loses. Some examples include the reefs of sea worms of the Chiquita Sea coast lagoon, the Pacific oyster in San Blas, the golden mussel in the Plata estuary or Undaria kelp in Chubut.172 Another environmental change caused by human activity is the degradation and destruction of the marine floors caused by bottom-trawl fishing, which uses heavy equipment to catch fish and invertebrates that live in the ocean depths. Some biological communities, like those associated with banks of scallops and mussels, for example, might be destroyed locally, further affecting dozens of species.173 Contamination problems of urban or industrial origin are severe in some areas near human settlements.174 In many cases, ports aggravate the effect of the effluents and solid wastes from cities and industrial plants. Spills of combustibles and toxic goods can occur in ports along with trash disposal and emptying of ballast water of ships, which can transport species of foreign origin. Hydrocarbon contamination is presented as a chronic and persistent threat, possibly due to the quantity of small spills of crude oil, combustibles, lubricants and bilge waters, coming from all types of boats. Acute contamination by crude oil, from large accidental spills during cargo operations or maritime transport, possibly affecting thousands of seabirds175 and other animals happens less frequently than before.176 171 IUCN 2009. IUCN Red List of Threatened Species. 2009 version. www.iucnredlist.org. 172 Schwindt, E. (2008). “Especies exóticas en el Mar Patagónico y sectores aledaños,” in Estado de Conservación del Mar Patagónico y Áreas de Influencia. Puerto Madryn, publication of the Foro, available for download at: www.marpatagonico.org. 173 Orenzans, J. M.; Bogazzi, E. y Parma, A. (2008). “Impacto de la pesca sobre el subsistema bentónico,” in Estado de Conservación del Mar Patagónico y Áreas de Influencia. Puerto Madryn, publication of the Foro, available for download at: www.marpatagonico.org. 174 Esteves, J. L. (2008). “Contaminación,” in Estado de Conservación del Mar Patagónico y Áreas de Influencia. Puerto Madryn, publication of the Foro, available for download at: www.marpatagonico.org. 175 García Borboroglu, P. Boersma, D. Reyes, L. M. and Ruoppolo, V. (2008). “Contaminación por hidrocarburos y su efecto sobre el pingüino de Magallanes,” in Estado de Conservación del Mar Patagónico y Áreas de Influencia. Puerto Madryn, publication of the Foro, available for download at: www.marpatagonico.org. 176 One of the positive changes introduced by argentine authorities has been Maritime Ordinance Number 11/97 of the National Navy, which modifies the navigation routes and access to ports by petroleum tankers. There has been a notable decrease in the number of seabirds contaminated by hydrocarbons each year thanks to this measure.


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V. Updates on Ecosystem Use The worrying situation of the ecosystem and the decline of many biological populations show that the measures and governmental policies currently in place are not sufficiently effective to avoid unwanted consequences of human activity in the sea. As we have already noted, the marine ecosystem activity and its species’ movements exceed jurisdictional limits. An approach at ecosystem scale for the use of the Patagonian Sea requires the integration of the work of different jurisdictional authorities in the pursuit of common objectives. It thus follow that it is evident that the current levels of cooperation among the different jurisdictions (be they municipalities, provinces or nations) are not at the level of magnitude and complexity of the regional marine ecosystem. Systems of fishing administration are another example of public policies that require improvement. Despite that one of their objectives is to assure sustainable ecosystem use, they have not been able to stop various active fisherman from using excessive fishing equipment and generating other unwanted environmental effects. The fishing industry went through an unfavorable situation in all Argentine ports during 2009. The global economic crisis, which spread across the country, in addition to shortages of some fishing boat catches, were factors that fed social conflicts lead by fishing industry workers in various cities. The Argentinean government, however, responded to this with some remarkable actions. It implemented a new on board control system in order to verify the catches of deep-sea fishing boats and passed the Law of the Federal Fishing Authority,177 a measure that had been delayed for more than a decade. Both decisions were announced by the President of Argentina in public acts, which shows that the fishing boat theme is obtaining an unprecedented level of priority at the highest national authorities. The protected coastal and marine areas represent one tool for managing the marine environment. They can complement and strengthen other related policies that share the goal of preserving this ecosystem’s public goods. This type of protected areas began to be used in many countries around the world in recent decades and it has increased relatively rapidly in Argentina and its neighboring countries. Some recently completed diagnostic evaluations show, however, that there is still much left to be done. The majority of the reserves only protect coastal land areas. Few include a significant portion of the marine ecosystem to protect, at least partially, the lifecycle of species of interest (be they seaweeds, invertebrates, fish or penguins). Of the existing protected areas, there

177 National Law 24.922, promulgated in 1998.


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are few that have a fairly satisfactory or a superior grade of implementation178 (“effectiveness of use”). This means that the majority of the reserves are still not fully set up. The two Coastal National Parks that Argentina has (Monte León and Tierra del Fuego) are exceptions, since they demonstrate effective reasonable use. On the subject of protected areas one piece of news to highlight is the progress of the implementation of the “Inter-jurisdictional Parks” projects on the Argentinean coast promoted by the National Parks Administration. The inter-jurisdictional treaty on the creation of the Coastal-Marine “Patagonia Austral” Park on the coast of the San Jorge Gulf (Chubut) was passed by Congress.179 Now all that is left is its being put into effective operation. A similar treaty, in this case between Argentina and the Province of Santa Cruz, is in progress. The marine areas to protect have extraordinary social and ecological value in both cases. The recent creation, in 2008, of a permanent fishing ban on the Burdwood Bank (in front of Staten Island, la Isla de los Estados), established to protect a fragile biodiversity from the effects of bottom-trawl fishing, adds to these measures of protection.180

VI. Conclusions The Patagonian Sea continues to be a cause for concern not only due to the state of the ecosystem and the natural elements that it is formed by but also due to the efficiency of public policies that should preserve it. The Forum for the Conservation of the Patagonian Sea and Areas of Influence has developed activities up until now that allow its member civil society organizations to gather information, plan and coordinate activities. Communication and awareness-raising have contributed to motivating recent government measures (though it is difficult to quantify by how much). These advances in terms of government decisions on ocean management during 2009 seem to respond to two needs. On one hand they respond to the demands from companies and fishing workers in crisis. On the other hand, they respond to a budding demand from society for a more efficient and transparent use of marine resources. The degree of ecosystem deterioration, in addition to the interests of authorities and other actors, in the context of the local and international economic crisis, places an initiative like the Forum up against a great challenge. Everything indicates that it is now time to promote rapid development of civil society organizations in a way that allows them to behavior in a strategic, synergetic and constructive way to contribute to the preservation

178 Giaccardi, M. and Tagliorette A. (2007). “Efectividad del manejo de las áreas protegidas marino costeras de la Argentina,” Buenos Aires: Secretaría de Ambiente y Desarrollo Sustentable, Fundación Vida Silvestre Argentina y Fundación Patagonia Natural. 179 National Law 26.446, promulgated in January of 2009. 180 Disposition of the National Subsecretary of Fishing 250/08.


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of this ecosystem. Conserving the sea as a complete system requires that society itself create a list of principles to make demands of decision-makers. Some of principles are typically well-known (generation of profits, job creation) while others, like the precautionary principle, inter-generational equity, transparency and sustainable use, are still not well-known. Acknowledgements To the members of the Forum and to everyone that made the project “State of the Patagonian Sea” possible, especially the dozens of consulted experts and the donors (Lighthouse Foundation; Wildlife Conservation society; Liz Claiborne – Art Ortenberg Foundation; Pew Institute for Ocean Science; Fundación Patagonia Natural / Proyecto GEF PNUD ARG/02/G31; Conservation International). To FARN and to Federico Sangalli for encouraging us to public this piece.


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Conservation of Private Lands in the Province of Buenos Aires: The Experience in the Bay of Samborombón By Agnés Sibileau Professor of the Legal Clinic of Environmental Rights of FARN. In charge of the institutional and legal framework of the conservation project in the Bay of Samborombón that FARN is developing with FVSA. Translated by Courtney Miller Executive Summary Since the year 1990, in the province of Buenos Aires, there has existed a normative framework that allows for the union of forces between the State and the private landowner in order to achieve the conservation of private lands. This framework is in reference to the Law 10.907181 and its amendment law 12.459182, regulated by the decree 218/94183, a normative framework that regulates the “System of Protected Natural Areas” in the provincial territory. Although the law allows the recognition of private reserves within the system, the lack of regulation of some of its articles--among other factors—has prevented this union of forces until the present. In effect, the constitution of a private reserve protected by this legislation has yet to be achieved. However, the Wildlife Foundation of Argentina, with the participation of FARN and the financial support of the Wetlands Fund for the Future, has been working on the involvement of the private sector in the conservation and sustainable use of the Ramsar Site and the Wildlife Refuge of the Bay of Samborombón. This article reflects, in certain measure, some of the results obtained in the development of the project and endeavors to make an analysis of the normative framework cited. Also, it intends to provide a panorama of the existing situation in the Bay of Samborombón in relation to the conservation of private lands. 181

B.O. 06/06/90 N° 21.735. 182

B.O. 26/07/00 Nº 24.097. 183

B.O. 21/2/94 Nº 22.601.


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I. Introduction The importance of conservation in private lands Approximately 90% of the surface area of Argentina is found in private hands, areas in which abound cattle raising practices whose by-products form the most important basis of the national economy. Furthermore, the natural patrimony of our territory lies in these properties. Therefore, the identification of strategies to achieve sustainable livestock production, such as the combination of the sustainable management of these lands with their conservation, is imperative. In order to achieve this task it is necessary to understand and internalize that ecosystems are providers of goods and services that have values in the functions that they carry out, and that these values should be compensated. If we do not act urgently to repay the agricultural producers for the environmental services they have provided to the community through their practices of sustainable management, it is probable that the pressures of economic development will put an end to our natural patrimony. At present, both the public and private sectors are working to confront this situation. In Latin America, the non-governmental sector has been cultivating extraordinary work dedicated to the search for tools or legal and economic instruments for the conservation of private lands184. These organizations have concentrated their work in the achievement of alliances with the private proprietors by means of the implementation of legal instruments which, as with the public management categories, assure the fulfillment of the obligations arrived at by consensus to preserve the properties in question. In the same manner, these organizations have dedicated themselves to collaborating on the design and analysis of politics and legislation directed toward conservation in private lands without attempting to displace the legal authority of the State. For its part, the State has also been taking actions directed toward the preservation of the natural resources found in private properties. Proof of this is the sanction of the Law of Minimums Standards for the protection of the native forests (Law 26.331185) and its regulatory decree (Decree 91/09186). The law refers to the first minimum standard, which pertains specifically to the conservation of biological diversity. Likewise, there exists a provincial norm that addresses the conservation of the biological diversity existent in private

184 Wildlife Foundation Argentina (FVSA); Peruvian Society of Environmental Rights (SPDA); Center of Environmental Rights and Natural Resources of Costa Rica (CEDARENA), Pro-nature Mexico; FARN, among others. 185 26/12/2009. B.O.31310. 186 16/02/2009. B.O. 31595.


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properties187. More precisely, it refers to the laws that recognize within the systems of protected natural areas categories aimed toward the conservation and sustainable use of the biodiversity in said properties188. Generally, in these legislations the entity of the private reserve is regulated and defined in a different manner in each legal text189. The Province of Buenos Aires, for its part, possesses a law that regulates the system of protected natural areas under the category of private reserve. This article attempts to overturn some of the results obtained in the report “Challenges of the public and private sector for private conservation in the Bay of Samborombón”190, whose objective was to study in depth the analysis of the normative framework applicable to conservation in private lands in the Province of Buenos Aires, more precisely in the area declared as the Ramsar Site and the Wildlife Refuge of the Bay of Samborombón, and to generate guidelines for the future elaboration of a rule that considers, among other aspects, technical instruments and economic incentives that promote the strengthening of public politics and incentivize and facilitate the participation of the private proprietors in the conservation of biodiversity. To that effect, it was necessary to debate with the private proprietors of the Bay and the competent provincial authorities and to discuss the strengths and weaknesses that the referred normative framework presents, with the intention of increasing the participation that facilitates putting this legislation into practice.

II. The current normative framework applicable to conservation in private lands in the Province of Buenos Aires

187 A practical and exhaustive inventory of the provincial normative examined the contribution of the work “Voluntad de Conservar: Experiencias seleccionadas de Conservación por la sociedad civil en Iberoamérica”. The Nature Conservancy y Biodiversity Foundation. (2008). Editor Chacón, Carlos. See Chapter II: Moreno, D; Carminatti, A; Machaín, N. y Roldán, M. “Reseña sobre las reservas privadas en Argentina”. Law 12.175 of the Province of Santa Fé; Law 2032 of the Province of Misiones, among others. 188 Carminatti, A. and Quispe Merovich, C. (2009). “Situación actual y propuestas para el fortalecimiento de las reservas privadas voluntarias en Argentina”. Annual Environmental Report 2009. Buenos Aires: FARN. 189 The “private reserve” is usually defined as the portion of territory of a country which, under domain and private possession, is intended by wish of the proprietor for the conservation of the natural reserves existent within it (Mesquita 1999). 190 Report developed by the FVSA and FARN in the framework of the project: “Toward the involvement of the private sector in the conservation and sustainable use of the wetlands of the Bay of Samborombón” by the FVSA, financed by the Wetlands Fund for the Future of the Convention of Ramsar, the Department of State and Fish Services and Wildlife of the United States.


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Analysis of the case of the Wildlife Refuge of the Bay of

Samborombón

The law 10.907 and its amendment law 12.459 have the principle objective of “protecting the integrity, defense, and maintenance of the natural environment and its resources”. To that effect, promoting the declaration of natural reserves to all of “those areas of surface and/or subsoil and/or bodies of water that for reasons of general interest, especially those of scientific, economic, aesthetic, or educational nature, should be removed from free human intervention in order to assure the perpetual existence of one or more natural elements (…)”. Its regulation is governed by the decree 218/94. Although this legislation deals with the subject matter of the conservation of the environment in general, this article will execute an analysis from the perspective of private conservation, that is to say, it will reflect on the advantages and disadvantages that this rule presents when the time comes to extend the system of protected natural areas to incorporate reserves of private dominion.

a. Classification based on the patrimonial state and the category of use

The law 10.907 and its amendment law 12.459 present two large classifications. The first is related to the patrimonial state of the land, in other words, the natural monument or reserve is defined so as to satisfy the state of dominion of said area, namely: a) (public) if it pertains to lands in property of the State, i.e., provincial leases or municipalities--; b) (private) if it pertains to private lands or c) (mixed) if it pertains to extensions under dominion, in part private and in part public. The second classification is related to the category of use or type of reserve. Under this classification the law identifies five large groups of reserves, namely: provincial parks, integral natural reserves, natural reserves of defined objectives, reserves of multiple uses and wildlife refuges. This means that private property can enter the public system of protected natural areas as a private reserve under any of these categories, except as a provincial park because, as its name indicates, it must necessarily be fiscal property.

b. Categories of appropriate use in order to constitute private reserves

Article 20 of the law 10.907 and its amendment law 12.459 bestow a considerable series of prohibitions upon all of the categories of use except upon the category of Wildlife Refuge and the category of Natural Reserve of a Defined Objective. It is for this reason that these two categories will be analyzed in this article, as they are the only ones that, in principle, allow the execution of some


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type of use or activity that is sustainable, profitable, and compatible with conservation. In any case, it would be possible to constitute private reserves under some of the other categories of use, although these reserves would be related more to the concept of absolute conservation. Because the project that inspired this article intended for the promotion of conservation in private lands through the two aforementioned categories of conservation in order to allow for the continued use of the properties, the two referred categories are analyzed with the most profundity. The Wildlife Refuge

Article 10 of the law 10.907 and its amendment law 12.459 define the Wildlife Refuge as a category of use and as “Zones which in virtue of the necessity of the conservation of their fauna, or due to special characteristics, or due to containing critical habitats for the survival of threatened species, require protection”. In these areas hunting is forbidden in total and permanent form, except for hunting for scientific reasons or for zoological exhibition. This definition renders this category privileged when the time comes to create a private reserve in a property in which the execution of sustainable, profitable practices is being attempted. Regarding this, article 23 says: “In virtue of which the total and permanent ban on hunting is the only condition for the creation of a Wildlife Refuge, areas that include terrains of private property will be able to be declared as such, with regard to which: a) the Executive Power will not be able to limit or prohibit in any manner the activities or practices to which the occupants have legal right (…)” In any case, the category requires greater precision regarding its form of use; therefore there exists at date a reformatory project of articles 10, 12, and 31 of the law 10.907 and its amendment law 12.459. This project intends to expand the framework of prohibition of this category to include the extraction of communities of deforestation and of wild or exotic fauna. Likewise, it adds in this category the possibility of the development of programs to control exotic fauna. The incorporation of these matters would be wise. The issue of the harm done to native species due to the introduction of exotic fauna or the lack of programs to control exotic species –above all the wild pig—is a very recurrent theme among the proprietors of the zone. Another persistent theme among the proprietors is the absence of controls to avoid furtive hunting of protected species such as the deer of the pampas. Therefore, adding these specific prohibitions to the law would permit a more favorable management of the areas recognized under this category.


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The case of the Wildlife Refuge of the Bay of Samborombón

One of the principle objectives of the law 12.016191 of the year 1997 was the creation of two integral natural reserves: that of the Bay of Samborombón and that of the area of Ajó. Likewise, the Wildlife Refuge of the Bay of Samborombón was created as an absorption zone for the Integral Natural Reserve of the Bay of Samborombón. Lastly, the rule established that the aforementioned categories of use correspond with the definition established by the law 10.907. The law 12.016 created the Wildlife Refuge of the Bay of Samborombón above private surface areas without requiring the previous consent of the dominion holders. It has been made evident that, up to the present, there has been confusion about the implications of this law among the affected proprietors in the refuge. In effect, there are various unresolved questions, namely: a) The reason for which the consent of the proprietors of the Bay of Samborombón, to whom this category of use is imposed, is not required, b) The lack of registration in the Registrar of Real Estate Property of the category of Wildlife Refuge imposed on each of the territories of the Bay of Samborombón and c) The legislator’s lack of precaution regarding the tax implications given this category of use to such extension of land in private hands192. Currently there are a great number of proprietors who question why they cannot access the tax benefits offered by the law6 due to the fact that their properties are under the Wildlife Refuge of the Bay of Samborombón category of use. They also question the lack of control to impede furtive hunting in the properties that enjoy this reconnaissance (single legal prohibition), as well as the lack of material control of the deforestation of the tala forests (Celtis tala) for the extraction of conch shells. In this last aspect, and although it would ordinarily be the material of a specific analysis, it is necessary to mention –as far as it pertains to an increase of protection for the area—that this deforestation takes place at the margin of the territorial code of the Province of Buenos Aires, and that it should be urgently considered in the framework of the law 26.331 of Assumed Minimums for the Environmental Protection of the Native Forests.

191 07/11/1997 B.O N° 23.476. 192 Article 8 of the law 10.907 and its amendment law 12.459 establish that “The following benefits to the holders of particular properties will be able to be recognized, subject to the regime of the Reserve: 1. Exemption from or reduction of property taxes for the duration of the declaration of the Reserve; 2. Economic assistance on behalf of the Provincial government for the purpose of contributing to the maintenance, adjustment, refurbishment, etc. (…)”. This eliminates the possibility that the properties inside the perimeter declared as the Wildlife Refuge of the Bay of Samborombón would solicit tax reductions.


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Natural Reserves with Defined Objectives

This is the other category of use that could be chosen to constitute a private reserve if any form of sustainable, profitable activity is pursued within it. According to article 10, section 2, subsection c of the law 10.907 and its amendment law 12.459, this category includes “Reserves constituted with the aim of protecting the land, flora, fauna, natural or cultural sites or objects, in isolated form or in groups. Human activity can be permitted, albeit in regulated form, if the necessity of the conservation of the species or objects of interest is compatible with the possibilities of optimization and use of the remaining resources.” This category of use also presents sub-classifications in function of the type of defined objective that it attempts to protect, namely: botanical reserves, fauna reserves, geologic or paleontological reserves, reserves for the protection of land areas and/or watersheds, scenic reserves, educational reserves and reserves of mixed objectives. As in the Wildlife Refuges, in this category of use the established prohibitions in article 20 of the law 10.907 and its amendment law are not enforced. For its part, article 20 of the regulatory decree 218/94 establishes that, to allow for the execution of human activities in this type of reserve, the organization of application will dictate rules to regulate such activities and should state in the law of creation of surface area that it will be assigned to this task. According to that which has been stated, it is understood that this category allows for the execution of sustainable, profitable activities compatible with the conservation of the defined objective. The activities that can take place in the areas will depend on this objective and its regulation.

c. Constitution of a private reserve According to the law, the request to admit a private property to the category of private reserve can come from the State as well as from the private proprietor. In the first case, the Municipal or Provincial State solicits the recognition of a private property as a reserve under a category of use. In this case, it is necessary to require the express conformity of the private proprietor which, if denied, leaves open the process of expropriation (that of considering the declaration of natural reserve a matter of public utility). In the second case, it is the private proprietor who requests the recognition of his or her property as a private reserve. This possibility was recently discerned with clarity in the regulatory decree 218/94. In effect, this situation is determined in the imprecise drafting of the rule that fails to refer clearly to the private proprietor as a possible candidate to include his or her property in the system. The rule states that the Provincial or Municipal State requests the


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declaration of private reserve and solicits the consent of the private proprietor for said declaration. Just four years after its sanction, article 16 of the regulatory decree refers to the possibility for the private proprietor to solicit the recognition of his or her property as a reserve. Likewise, a specified requirement for the formalization of a private reserve is its recognition via a law of the provincial legislature. Even when the law permits that the reserve is created by decree at the end of the analysis of the process, it is required that at two years it is ratified. These two concrete matters cause us to believe that the provincial legislator perceived that it would be the State, and not the private proprietors, who would solicit the recognition of the properties as private reserves within the public system of protected natural areas. Perhaps this is one of the reasons, among other concurrent factors, for which this rule has not been made operative. In this same vein, it has been made evident from the queries made to the Board of Protected Natural Areas that there is no formalized administrative procedure through which the private proprietor can solicit the incorporation of his or her property to the provincial public system. This is to say, a model of solicitation of incorporation approved by the Provincial Organization of Sustainable Development (OPDS), or a simple outline of “steps to take”, does not exist. Although the decree 218/94 refers to a solicitation and to whom it should be presented, such a model for doing so has not been designed. According to the Board referenced, this model of solicitation could be designed and then approved by means of a disposition of OPDS, something that still has not been accomplished. However, there exists a rough draft of internal use that is utilized as a guide to these ends. In this sense, the lack of systematization of this procedure and the necessity of a suitable professional who could present a request of constitution of private reserve have been considered by the proprietors of the zone as very negative matters. In effect, a professional is required who can carry out a report and be responsible for the veracity of the information presented before the Authority of Application193. This requirement implies that in order to approach the Authority of Application so as to begin a procedure for the recognition of property as a private reserve, the proprietor should invest in resources beforehand; this is another obstacle to the promotion of conservation in private lands in the Province of Buenos Aires.

d. Plan of Use and Monitoring According to the text of decree 218/94, article 18, the plans of use of the private reserves should be approved by the organization of application. The execution of those plans falls on the professionals suitable for this work. To date there is 193

Decree 218/94: Art.16


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no defined list of authorized professionals for this objective. Furthermore, agreements with universities or institutions that could collaborate to this effect have not been sought. Another matter that was analyzed for the moment at which this legislation is put into practice is the lack of suitable personnel to approve and monitor plans of use in which some type of sustainable production is permitted; the majority of the reserves created to date have tended toward a use of absolute conservation. One possible, albeit challenging, solution that has been identified would be to work with other branches such as the Ministry of Matters of Agriculture, Tourism, etc. In this manner, the organization of application would be in charge of approving and monitoring the matters under its area of influence while the other branches would do the same in their own areas.

e. Period of Constitution The law does not refer to a period of constitution of a private reserve. The article mentions only the obligation to respect the system on behalf of the subsequent titles of dominion of a property declared as a natural reserve. However, the regulatory decree regulates this theme and stipulates in its article 17 that “The private natural reserves will be able to be declared as such for a determined period. If the law does not establish such a period, it will be interpreted that the declaration is valid for an indeterminate time.” From here it is interpreted that the determination of the period of constitution will be a matter of consensus among the parties and, once decided, should be expressed in the agreement signed as well as in the law that gives recognition to the reserve. Regarding this point there was equal consensus from the private sector and the governmental sector in that it is necessary to stipulate a minimum period of constitution for a private reserve. To that effect, the parties agreed that a minimum of five years would be required in order to be able to evaluate any results with regards to conservation. In this vein, it would be recommendable to abandon without effect the possibility of a declaration for an indeterminate time and stipulate that the acceptance of recognition will renew itself automatically after a stipulated minimum period, if there is not a contrary and irrefutable demonstration by the proprietor. For their part, the proprietors of the zone based this choice in the permanent economic and political uncertainty that prevails in Argentina. There was consensus about the fear of assuming compromises over a long period.

f. Disengagement from the system Another of the points analyzed was the need to clearly stipulate what procedure should be used to solicit disengagement from the system of the private reserve.


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This is to say it is necessary to determine in what form a private proprietor can resign from this system. Article 17 of the regulatory decree clarifies that the possibility to disengage from the system exists. Upon noting in the regulation that the recognition of a reserve for a determined period of time is possible, it is suggested implicitly that, once the said period has expired, the possibility to resign from the system exists. However, until the present the procedure that one should follow to this regard has not been specified. The proprietors that participated in the workshops along with the technicians of the authority of application considered the specification of this matter in the next regulation essential.

g. Restrictions on dominion and registration The law expresses in article 7 that “the authority of application will provide the annotation of the affectation of the property to the regime of Natural Reserves (…). Those who become new proprietors, in virtue of the prior transfer of dominion to the referred registration, will remain equally subject to the reserve regime.” The “affectation of the property”, according to this article, should be communicated to the Registrar of Real Estate Property. This signifies that it is necessary to register the existence of a law that recognizes a determined property as a private reserve under some category of use. This registration serves to make the recognition of the property as a private reserve enforceable in front of third parties. In this manner, the purchaser of the property should respect the restrictions of the category of specific use, in conformity with that which is established by the law 10.907 and its amendments. Likewise, according to that which is stipulated in the normative body, the proprietor will know that there is a plan of specific use regarding said property. Up until the moment there is no registered private reserve stated in the Registrar of Real Estate Property of the Province of Buenos Aires, the consulted proprietors of the zone demonstrated their concern regarding registration. A manner of actualizing this registration has yet to be identified. To that end, a consultation with the Registrar of Real Estate Property is necessary in order to execute an analysis regarding the advantages and/or disadvantages of the requirement of registration imposed by the law, considering that although a category or hierarchy of greater protection is offered, it is clear the proprietors do not view this requirement as beneficial.

h. Incentives Article 8 of law 12.459 specifies that it “The titleholders of the particular properties, subject to the reserve regime, will be able to receive the following benefits: 1)Exemption from payment of the Real Estate Tax or reduction of the


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total for the duration of the declaration of the Reserve; 2)Economic assistance on behalf of the Provincial Government for the purpose of contributing to the maintenance, treatment, refurbishment, etc. of the area declared as a reserve (…)” Likewise, the law invites the Municipalities to establish a regiment of tax exemptions or reductions and municipal contributions. This article is one of the most controversial in the current normative framework. This is because in order to achieve the implementation of this legislation as well as the achievement of all of the matters to which this article has reflected on repeatedly, it is essential to provide incentives to the proprietors so that they will voluntarily solicit the recognition of their lands as private reserves194. Some of the incentives identified in the workshops that took place as part of this project were: a) Valuation of the Private Reserve in consideration of the effects of authorizing other enterprises of significant environmental impact in the proximity: The recognition of a property as a private reserve under some category of use should take into account the effects of authorizing an enterprise of significant environmental impact. This was one of the central points addressed by the proprietors of the zone. The reflection centered in the illogicality of having the properties protected under the law 12.016 while being surrounded by enterprises with critical environmental effects such as feedlots, destruction for the extraction of conch shells, and open air dumps, among others. b) Compensation or economic asístanse: The consulted proprietors referenced the necessity of compensation or economic assistance for the lost profits that imply a change in profitable activity. In effect, this compensation was primarily related to the loss of profitability that would also lead to the abandonment of production of a determined form or changes in the executed practices in the property. On the same matter, and as part of this discussion, other proprietors referenced the necessity of compensation for the environmental services provided to the society through the conservation of natural resources, in this case resources of private dominion. c) Infrastructural support: Another incentive mentioned pertained to the difficulty the proprietors currently have in maintaining their properties. The costs of fencing, machinery, and materials for the construction of storehouses, among other things, are increasingly insurmountable every day. Therefore, it was estimated that a viable incentive would be a type of “payment in kind”,

194 There currently exists a project of regulation of article 8 that dates back to the year 2005 and was written by the Provincial Direction of Natural Resources of the Province of Buenos Aires. The project addresses the form in which the total or partial exemption from real estate taxes for the private properties subject to the Reserve Regime should be executed.


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consisting of payments to access construction materials, fencing, electric wiring, gas oil, etc. d) Ease or priority regarding credit: Concerning this incentive, the possibility of giving preference with respect to credit for agricultural activity to those proprietors who were able to demonstrate the realization of profitable activities compatible with conservation was referenced. e) Technical assistance: This demand from the sector can be thought of as a possible incentive at the time of the future regulation of the current normative framework, although it was identified as a general demand and not as one pertaining to private conservation. f) Tax exemption: Tax exemption was a matter central to the discussion, as it is the only incentive currently combined with legislation. As has been noted, the analyzed article recognizes the total or partial exemption from property taxes for the properties within the system of protected public natural areas under the category of private reserve. On the subject, the proprietors were not particularly attracted to this incentive. While it is worthwhile to note that there was disagreement with respect to the high values of the zone’s property taxes, in other words, on the economic strain demanded of the proprietors in the payment of these taxes, the proprietors did not prioritize this incentive over the others mentioned.

IV. Conclusions Recommendations for the achievement of an effective law in relation to conservation in private lands From the analysis it is apparent that it is necessary to initiate, in the medium term, a process of modification of the current legislation focused on the private reserve and its voluntary character in the Province of Buenos Aires. It is evident that the law as it is written does not hold a promising future for the conservation of lands under private domain. Among the themes that should be addressed are: a) the establishment of a procedure for the creation of practical and accessible private reserves, b) the establishment of the validity of the private reserve in the short term; c) a procedure of registration in consensus with the Registrar of Real Estate Property or an in-depth study of the assessment of whether to eliminate this requirement, d) redistribution of responsibilities in the development of plans related to management and monitoring, 3) permitted profitable activities, f) a procedure for the disengagement from the system, among others. A series of uses of the land compatible with conservation (including the conversion of natural areas to limited and precise areas) should be admitted in


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the private reserves. Nonetheless, these profitable activities should be regulated by a management plan and subject to a regime of monitoring on behalf of the Authority of Application. Cattle farming in natural lands, if managed under specific, defined criteria, can be compatible with the conservation of these private, protected areas. The project of regulation of article 8 demands the incorporation of other incentives such as technical assessment and infrastructural support. At the same time, the article should be clearer and more specific regarding how to access the benefits stated in the law as “Economic aid on behalf of the Provincial Government for the purpose of contributing to the maintenance, adjustment, refurbishment, etc. of the area declared as a reserve. (…)”. On the other hand, stronger links among the distinct technical organisms of the province are required in order to address the theme of conservation in private lands in integral form. The collaboration and coordination of the different areas that have problematic concerns, such as livestock, tourism, mining, and economic concerns, among others, are essential in order to be able to implement the figure of the private reserve in an effective manner. In a more general and transversal manner, work on the environmental ordinance of the Province of Buenos Aires and on the implementation of the Law of Native Forests is urgently required so that the measures concerning private conservation can be taken and can find a more favorable and appropriate framework for their realization and sustainability. Finally, it must be said that each of the recommendations outlined here attempt only to call attention to the aspects revealed in this investigation and require more in-depth analyses. Perhaps in the drafting of the next amendment law or regulatory decree some of these recommendations will not be able to be included as they are proposed here, but the mere fact that they have been contemplated in discussion, even if a different, well-founded form is opted for, implies progress for those who are forced daily to conserve our natural patrimony.


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The Salas Case: A Legal Case for Forests By Gabriela Vinocur Coordinator, FARN Area of Citizen Participation Hernán Giardini Coordinator, Biodiversity Campaign, Greenpeace Argentina Diego Moreno General Director, Wildlife Foundation Argentina (FVSA) Ulises Martinez Ortiz Coordinator, Gran Chaco Program, Wildlife Foundation Argentina (FVSA) Pablo Herrera Director of Conservation and Sustainable Development, Wildlife Foundation Argentina (FVSA) Translated by Elliott August Executive Summary In the last decade, Salta has become one of the provinces with the highest levels of deforestation in the country, affecting the rural and indigenous communities that inhabit its forests. The combined struggle of peasants, indigenous communities and organizations that work in defense of the environment succeeded in raising public awareness of a problem which had been practically ignored and drove the State to take measures to resolve the issue. The “Salas” case shows with clarity the different visions that exist in our society with respect to the value of ecosystems, the models for development, and the ways these two should be reconciled. These different visions must begin to agree on ways to coexist. The time to implement basic tools for the management of natural resources has run out. An important first step was taken with the passage of the National Forest Law in 2007. This law provides an interesting framework not only to begin developing land use plans for remaining native forests, but also for the creation of a fund that, for the first time in our country’s history, recognizes the economic value of ecological goods and services. The central issue which must be settled relates to an issue which our society has still not adequately addressed. This issue is: what type of development model do we want and what place do we want to give to the conservation of natural resources within that scheme?


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The proceedings of the Supreme Court of the Nation in the “Salas” case consolidates paths walked and sketches out horizons in the environmental process. It reaffirms the importance of participatory modes, such as public audiences, requests for access to information and the incorporation of qualifies outside opinions in the case, in this case by civil society organizations’ presentation of an “amicus curiae.” Without a doubt, this ruling contributes in a significant fashion to strengthening the public debate and the transparency of processes.


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Peatlands as Ecosystems that Provide Environmental Goods and Services By Daniel Eduardo Blanco Wetlands International South America Program Coordinator Laura Vidal Fundacion Humedales, Wetlands International Carina Quispe Merovich Director of Government, Environmental Policy, and Conservation, FARN Translated by Natalie Popovich Executive Summary Peatlands are wetlands which not only are fundamental to biodiversity preservation and climate regulation, but also the support human wellbeing. They cover over 400 million hectares in 180 countries and represent a third of the planet’s wetlands resources. Since 1800, the global area of peatlands has been reduced by 20% to 30%, primarily by human activity. At the same time, in the last few years, international recognition of the importance of preserving peatlands has grown. They are valuable ecosystems for storing potable water and sequestering carbon – a vital function for mitigating climate change. Although they only cover 3% of the planet’s surface, its peat contains as much carbon as the entire terrestrial biomass and twice as much as the global forest biomass. Among the causes of peatlands loss are drainage, conversion to agricultural land, afforestation, commercial production of palm oil and rubber, burning, over-grazing, extraction of peat for horticulture, and climate change. Furthermore, the degradation of peatlands becomes a source of greenhouse gas emissions, which is estimated to be 3,000 million tons annually. Of the estimated 115 million tons of peat reserves in Argentina, 110 million are located in the Tierra del Fuego Province, Antarctica, and the South Atlantic Islands. The demand for peatland exploitation in this province has significantly increased lately, generating the need to establish limits and decision-making strategies for the management and wise use of these resources. With the intention of outlining a strategy for the wise use of peatlands, the Fundación Humedales/ Wetlands International initiated a project in 2007 called “Strategy for the Wise Use of Tierra del Fuego Peatlands.” They worked with Fundación Ambiente y Recursos Naturales (FARN) and the provincial government of


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Tierra del Fuego, with the support of the National Ministry of Environment and Sustainable Development. This project resulted in a strategy proposal, which will be the base to advance environmental territorial planning, conservation, and wise use of peatlands in the province.

1. Introduction and Background Peatlands are some of the most important wetlands ecosystems on the planet, given their ability to preserve biodiversity, regulate climate, and support human wellbeing. They are vastly distributed across the world, covering, as mentioned, more than 400 million hectares in 180 countries and representing a third of all wetlands resources on the planet (CC-GAP 2005). They are found on every continent, at different latitudes and altitudes, and they provide vital functions for man, at the local, regional, and global level.195 Peatlands form in zones with humid climates and low evaporation, which generates conditions of permanent saturation; for this reason certain vegetable species are adapted to extreme conditions of low oxygen content and scarce nutrients, and water with a pH that is normally acidic becomes slightly alkaline.196 Peatlands are ecosystems with the ability to accumulate and store dead organic material, peat,197 derived from plants adapted to live in conditions of permanent saturation, low oxygen content, and scarce nutrients. The thickness of the peat cap that must exist for an ecosystem to be denominated peatlands varies according to the classification used (greater than 20, 30, 45, 50, or 70 cm).198 Since 1800, the global area of peatlands has been reduced by 20% to 30%, primarily due to human activity.199 Mountain peatlands in Latin America, Africa, and Asia are critical for the storage and provision of water and their degradation from drainage, grazing, and climate change is affecting rural communities that depend on them.200 There are two principal threats for peatlands ecosystems:

195 Joosten, H. and Clarke D. (2002). Wise use of mires and peatlands. Background and principles including a framework for decision-making. (p. 304). Finlandia (Saarijarvi): International Mire Conservation Group & International Peat Society. 196 Roig, C. and Roig, F. (2004). Capítulo 1: Consideraciones generales. En Blanco, D. y De la Balze (eds.): Los Turbales de la Patagonia. Bases para su inventario y la conservación de su biodiversidad. (pp.5-21). Wetlands International. Publicación 19. 197 Peat is defined as the accumulation of organic material which has not been transported following its death. (Roig and Roig 2004). Peat accumulates in environments with minimal drainage and low levels of oxygen, when conditions of saturation and anaerobiosis inhibit the activity of microorganisms which intervene in the decomposition of organic materials. 198 See Roig and Roig, op. cit. 199 See Joosten and Clarke, op. cit. 200 CC-GAP (2005). Peatlands, do you care? Coordinating Committee for Global Action on Peatlands. Gland, Switzerland.


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a) Direct Threats: drainage, conversion of peatlands for agricultural use, fires, over-grazing, pressure from tourism, and commercial peat exploitation b) Indirect Threats: contamination, excessive extraction of water, climate change These threats affect peatlands in many regions of the world, reducing both biodiversity and the benefits for people. Inadequate management of these ecosystems leads to large-scale degradation with significant social and environmental impacts. Conversely, the restoration and integrated management of peatlands can generate multiples benefits, including poverty reduction, the fight against land degradation, biodiversity support, and climate change mitigation. a. Peatlands and the Ramsar Wetlands Convention In the last few years, international recognition of the importance of preserving the peatlands ecosystems has grown. Currently, the need for wise use of peatlands is a relevant aspect of the implementation of the International Convention on Wetlands, or Ramsar,201 the United Nations Framework Convention on Climate Change,202 the Convention of Biological Diversity,203 and other international agreements. These international conventions are in the highest category of the law in the argentine system according to article 75, paragraph 22 of the National Constitution. The Ramsar Convention defines wetlands as "areas of marsh, fen, peatland, or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish, or salt, including areas of marine water the depth of which at low tide does not exceed six meters” (Article 1.1). In the Spanish version of this Convention, the term “turbera” is used indistinctly to refer to both peatlands and mires. According to Resolution VIII. 17 (2002), the term “turbera” covers what in English is called a mire. A peatland is a type of terrain whose surface has naturally accumulated a cap of peat. The term mire, on the other hand, designates a type of active peatland in which the layer of peat is still forming and accumulating. All mires are active peatlands but the peatlands in which peat is no longer accumulating cannot be considered mires. Ramsar promotes the protection of key wetlands through their inclusion on the Wetlands of International Importance List. Despite the urgent need to protect wetlands, these areas continue to be under-represented in the Ramsar List. In some countries, these environments are better represented, like Russia, for example, where peatlands cover around 20% of the surface area and there are numerous sites on the Ramsar List (T. Minaeva in litt.). The first peatlands Ramsar Site in Argentina, the Vinviguerra Glacier and associated

201 Law 25.335. 15/11/2000. B.O. 29526. 202 Law 24.295. 11/01/1994. B.O. 27805. 203 Law 24.375. 06/10/1994. B.O. 27991.


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peatlands, in Tierra del Fuego, was created in October of 2009, making it the country’s 19th Ramsar Site. According to Resolution VIII.11 (2002), “the reasons for which peatlands and other types of wetland are as yet under-represented in the Ramsar List are various. They may include lack of recognition of the existence of particular wetland types within a particular territory. In the case of peatlands, this is partly due to uncertainty about which category should be applied from the Ramsar Classification System for Wetland Type (since these habitat types fit in a number of different categories), as well as the lack of recognition that a wetland is a peat-based system if wetlands are assessed only for their vegetational characteristics.”

b. The Environmental Goods and Services of Peatlands Peatlands are valuable ecosystems for climate regulation at the local, regional, and global level, conservation of the biodiversity and hydrological integrity of ecosystems, potable water storage and carbon capture – a vital function for the mitigation of global climate change –, and as a means of conserving archeological and cultural heritage.204 These environments contribute one third

204 See Joosten and Clarke, op. cit.

Significant Features of Peatlands

(Resolution VIII.11 of the Ramsar Convention, 2002)

a) uniqueness of the peat-forming phenomenon and its ecological and natural resource functions;

b) dependence of peatlands on their hydrology and hydrochemistry;

c) interdependence between peatlands and their catchments and adjacent watersheds;

d) uniqueness of their vegetation;

e) provision of habitat for particular taxa of fauna and flora;

f) water regulation and buffering functions;

g) capacity to regulate local and regional climates;

h) capacity to sequester carbon from the atmosphere and store it for long periods of time;

i) ability to serve as geochemical and palaeo archives.


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of the stored soil carbon and 10% of the volume of fresh water on the planet, acting as important fresh water reserves.205 The benefits that peatlands provide to humans are reflected in the various uses people make of their resources. The extraction of peat for its ex situ use is common practice in many peatlands ecosystems. It is used as mulch and organic fertilizer in agriculture, as a horticulture substrate, for energy generation, as bedding for animals in stables, as a filtering and absorbing material (for example, in Canada, the thick and fibrous peat is used to clean water after an oil spill), as construction material and insulation, for balneology, therapy, medicine, and body care, as well as to highlight flavors. c. Extraction of Peat Resources The primary reason for peat mining in the world is agricultural and horticultural use. Since 1980, professional horticulture has been the largest global peat consumer.206 In 1999 approximately 40 million cubic meters of peat were consumed worldwide207 and some countries, like Holland and Germany, now import peat in increasing quantities, given that almost all European peatlands have been entirely exhausted. On the other hand, agriculture has been and continues to be the main cause of peatland loss in the world – especially minerotrophic peatlands, which contain more nutrients and are less acidic. Nevertheless, a massive abandonment of agricultural practices on peatlands is starting to occur, since these practices have caused serious drainage problems and soil degradation.208 It is also important to mention the use of peat as a fuel source – a common practice in Europe since Neolithic times209 – now practiced in countries where there are no alternatives, such as carbon, or where rural isolation and unemployment favor the exploitation of local peat resources. In Argentina, Sphagnum peat is used primarily for forming substrates, which they produce according to each crop; for example, for intensive horticulture, floriculture (azalea, flower bulb, and orchid cultivation), plowing, and hydroponics. Peat is also use as ground cover, to improve soils, and as organic matter in industrial mushroom cultivation chambers. In horticulture the value of slightly humified peat is in a unique combination of properties which allow it to retain large amounts of water and large volumes of air, as well as to retain

205 See Joosten and Clarke, op. cit. 206 Joosten, H. (2009) The Global Peatland CO2 Picture - Peatlands status and emissions in all countries of the world. Draft. Holland: Wetlands International. 207 See Joosten and Clarke, op. cit. 208 Joosten, H. 2000. Perspectivas del uso de la turba y los turbales en Europa. En Coronato, A. and C. Roig (eds.): Memorias del Curso-Taller Conservación de ecosistemas a nivel mundial, con énfasis en las turberas de Tierra del Fuego. (pp. 15-22). Ushuaia. Argentina. 209 See Joosten (2000), op. cit.


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nutrients in such a way that they are readily available to plants. Peat also has the advantage of having a low pH and low nutrient content, which facilitates substrate preparation for a wide variety of applications, from the addition of nutrients and other elements (Joosten 2000). Mixing peat with compost of vermicompost provides an excellent growing medium in greenhouses and seedbeds. Other uses of peat include utilizing it as a vehicle for highly soluble nutrients and the cultivation of nitrogen-fixing bacteria (Rhizobium) in industrial development of commercial inoculants. It also protects soil from extreme temperature changes, which prevents frost damage. d. Drainage and Land Use Conversion Another important cause of global peatland loss is commercial forestry, with an estimated 150,000 km2 of drainage annually. 210 In these cases, drainage is undertaken to allow for the commercial production of crops such as rubber, palm oil (on the rise because of its importance as a biofuel), or crops for wood pulp. In Indonesia and Malaysia, over 12 million of the original 27 million hectares of peatlands have been drained for various uses.211 In drained areas, fires start easily and can last for months, causing serious economic damage, affecting people’s health, and causing massive carbon dioxide emissions. In Indonesia, where 14% of peatlands are used for palm oil production, the oxidation of drained soil results in more than 500 million tons of C02 per year,212 making this country the third largest greenhouse gas emitter in world, behind the U.S. and China. Thus, the Kampar Peninsula is one of the last remaining stretches of green in central Sumatra, where forests have been felled to make way for palm oil plantations and forest plantations (Onishi 2009).213 Wetlands International maintains a strong position in favor of peatlands conservation and the end of policies that subsidize palm oil as bio-fuel, until a certification mechanism can be established which excludes palm plantations on peatlands.214 Wetlands International has established pilot projects in Indonesia that aim to conserve the natural and economic value of peatlands and return to communities the livelihoods that have been lost due to peatland degradation.215 They demonstrate the role of peatlands in climate change adaptation and mitigation (preventing saltwater intrusion and the impact of rising sea levels) in lowland and coastal areas, and provide information to the guidelines for reducing emissions from deforestation and forest degradation, in Indonesia

210 See Joosten (2000), op. cit. 211 Hooijer, A.; Silvius, M.; Wösten, H. y Pagem S. (2006). PEAT-CO2, assessment of CO2 emissions from drained peatlands in SE Asia. Delft Hydraulics report Q3943. 212 See Hooijer (2006) and Kaat, A. and Joosten, H. (2008). Factbook for UNFCCC policies on peat carbon emissions. (p. 26). Wetlands International. 213 Onishi, N. (2009). The road to Copenhaguen. New York Times, November 29, 2009. 214 See Hooijer, A.; Silvius, M.; Wösten, H. and Pagem S. (2006), op.cit. 215 See Hooijer, A.; Silvius, M.; Wösten, H. and Pagem S. (2006), op.cit.


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(REDD-I), and to the Working Group on Greenhouse Gases (GHG) of the Roundtable on Sustainable Palm Oil (RSPO). e. Mitigation and Adaptation to Climate Change Climate change is generating numerous impacts that contribute to peatland degradation, including (GEC and WI 2004): 1. Climate models predict an increase in extreme events such as drought, as well as higher evaporation rates that will cause peatlands to dry out, leading to more fires. During the 1997-1998 El Niño, fires burned 2 million hectares of peatlands in Southeast Asia, releasing 1-2 billion tons of CO2.

2. The estimated 5-8 º C increase in Arctic temperatures will cause the melting of peatland permafrost, the drying and decomposition of peatlands, and an increase in fire frequency. In Russia, Canada, and Alaska, meridional permafrost peatlands are already melting and drying and the frequency of fires seems to have increased.

3. The increased evaporation and reduced rainfall and runoff in arid or semi arid regions will put more pressure on peatlands. As an ecosystem with a good supply of vegetation and water, it is likely that peatlands are under pressure from grazing and other anthropogenic activities.

At the same time, peatlands contribute significantly to mitigating and adapting to global climate change. They are among the most efficient terrestrial ecosystems in carbon capture, though they cover only 3% of the earth’s land surface. As mentioned, peat contains as much carbon as all terrestrial biomass, twice the forestral biomass worldwide, and approximately the same amount as in the atmosphere.216 Peatlands degradation is a growing source of GHG emissions into the atmosphere. C02 emissions resulting from peatland drainage, fires, and exploitation is estimated to be at least 3,000 million tons per year – equivalent to more than 10% of global CO2 emissions from fossil fuels.217 Since 1990, peatland emissions have increased by more than 20%, with the major emitting countries being Indonesia, western Russia, China, U.S. and Finland.218 On the other hand, peatlands play a key role in water resource management by storing a significant proportion of global freshwater resources.219 The

216 Parish, F.; Sirin, A.; Charman, D.; Joosten, H.; Minayeva, T.; Silvius, M. and Stringer, L. (eds.) (2008). Assessment on peatlands, biodiversity and climate change: Main Report. Global Environment Centre, Kuala Lumpur and Wetlands International, Wageningen. 217 See Parish, F.; Sirin, A.; Charman, D.; Joosten, H.; Minayeva, T.; Silvius, M. and Stringer, L. (eds.) (2008), op. cit. 218 See Joosten (2009), op. cit. 219 See Parish, F.; Sirin, A.; Charman, D.; Joosten, H.; Minayeva, T.; Silvius, M. and Stringer, L. (eds.) (2008), op. cit.


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conservation of these ecosystems fills an important role in adapting to climate change, providing environmental services like minimizing the effects of changes in precipitation patterns, river hydrology levels, and microclimate changes. Similarly, peatland degradation can disrupt the water supply and flood control benefits.

III. The Experience of Tierra del Fuego

Patagonian peatlands provide important benefits to local communities, like a supply of peat and water for domestic consumption, wildlife habitat, carbon storage, and recreational areas.220 Of the country’s estimated 115 million tons of peat reserves, 110 million are in the province of Tierra del Fuego, Antarctica, and the South Atlantic Islands (Federal Investment Council 1962), with approximately 2,400 km2 of peatlands.221 The diversity of the peatland types found in Tierra del Fuego is globally unique, representing the southernmost concentration of these ecosystems in the world. As a result of extreme weather and biogeographic conditions on the island, there are species, associations of species, and types of peatlands that are not found

220 Blanco, D.E. and De la Balze, V.M. (eds.). (2004). Los Turbales de la Patagonia: Bases para su inventario y la conservación de su biodiversidad. (pp. 149 y Anexos). Buenos Aires: Wetlands International Pub. 19. 221 Office of Planning and Development of Tierra del Fuego. 2002. Project for the creation of a protected area in the extreme southwest of Isla Grande in Tierra del Fuego, Argentina. Ministry of Economy, Public Works and Public Services of the Province of Tierra del Fuego. Ushuaia – September 2002.

In October 2009, the Argentine government designated the Vinciguerra Glacier and associated peatlands as a Ramsar Convention Wetland of International Importance, making it the country’s 19th Ramsar Site (http://www.ambiente.gov.ar/?idarticulo=8191). The climatic and biogeographic conditions that exist in Tierra del Fuego have resulted in the development of species, associations, and types of peatlands that cannot be found anywhere else on the planet. The new Ramsar Site, covering an area of 2,760 hectares, includes glaciers, lakes, peat bogs (Sphagnum, sedge, and tree), Nothofagus forests (Lenga beech, cherry, or Magellan Coihue), and rivers at an altitude between 200 and 1300m. Vinciguerra Glacier and its associated peatlands are important for the regulation of Arroyo Grande Basin, the main source of drinking water for the city of Ushuaia.


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anywhere else. Peatlands in Tierra del Fuego and the landscapes which they form part of are a unique and irreplaceable part of Earth’s natural heritage.222 In addition to their unique characteristics, the peat bogs of Tierra del Fuego provide peat, which has been commercially exploited for horticulture and landscaping over the last 20 years – an activity which, until recently, was restricted to a few locations. This has changed in recent years and the demand for peat exploitation has significantly increased, creating the need for guidelines and a strategy for the management and wise use of peatlands.223 However, the lack of a strategic plan for the use and post-use of Tierra del Fuego’s peatlands is causing difficulties for all parties involved and has led to the inappropriate use of this valuable resource.224 In 2007, with the aim of contributing to the wise use of peatlands in Tierra del Fuego, the Foundation for the Wise Use of Wetlands (Fundación Humedales / Wetlands International) launched the project “Developing a Strategy for the Wise of Use of Peatlands of Tierra del Fuego.” This project aimed to contribute to the sustainable use of peatlands in the province of Tierra del Fuego, Antarctica, and the Southern Atlantic Islands, through joint efforts between the Environmental and Natural Resources Foundation (FARN), the provincial government of Tierra del Fuego, and the Working Group of Water Resources of the National Ministry of Environment and Sustainable Development. The financial support of the initiative came from the Wetlands and Poverty Reduction Project (WPRP) of Wetlands International. The first phase of the project includes a review of current normative and institutional framework applicable to peatland use and conservation. Based on a working document to promote the project’s objective, the second stage develops a strategy for the wise use of peatlands, as part of a workshop with multi-sectoral participation. a. Diagnosis of the Normative and Institutional Situation of the Tierra del Fuego Peatlands A first activity of the project was to identify the actors in public and private sectors involved in the conservation and wise use of the Tierra del Fuego peatlands. The governmental sectors in charge of peatlands management are the Provincial Department of Mining and Geological Resources, the Provincial Department of Water Resources, and the Provincial Department of Natural

222 International Mire Conservation Group 2005. Declaración de Ushuaia. Ushuaia, December 1, 2005. 223 See Blanco and De la Balze, op. cit. 224 International Mire Conservation Group 2005. Declaración de Ushuaia. Ushuaia, December 1, 2005.


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Protected Areas, all of which are under the province’s Ministry of Environment and Sustainable Development. In addition, the National Parks Administration and the Southern Center for Scientific Research, along with national and foreign universities and NGOs, have all addressed the issue of peatlands in the province. A series of personal interviews with various representatives of the province, from both public and private sectors and from academia, allowed a first approach to the different sectors’ representatives and their problems. The interviews were the basis for a diagnosis of the regulatory and institutional framework applicable to the conservation and use of peatlands of Tierra del Fuego.225 One central theme that emerged as a problem for the proper management of peatlands was the province’s incomplete land use planning, which made it difficult to identify the particularly valuable sectors from those that could be conceded for exploitation. Another important theme that emerged in the diagnosis was related to the implementation of the Argentine Mining Code as the only legal instrument for regulating peat exploitation, with important consequences in regard to its use and conservation. The first of these consequences is that the exploration and exploitation of peatlands are under this code, which includes all of the requirements and processes for mineral extraction, but not for the sustainable use of resources. This is related to the particularity of peatlands, because of their noted biological characteristics and important wetlands ecosystemic functions, the exploitation process differs greatly from that of other minerals. The second question that arises is that the Mining Code is not implemented in conjunction with other local regulations (ie, provincial and municipal) that focus on the protection and sustainable use of resources, resulting in a biased image of peatland exploitation as an exclusively extractive and productive activity. On the other hand, interviews with various authorities government agencies suggest that the greatest barrier to protection of peatlands as an ecosystem of natural value is precisely their consideration as a mineral under one of the categories of the Mining Code, although, as explained in the preceding paragraph, a review of the legal classification is needed, given the constitutional mandates and guarantees for sustainable ecosystem management, including the primacy of Ramsar (the International Convention on Wetlands) over the national laws, such as the Mining Code. It is clear that peatlands are not just regulated by the Mining Code. There is a network of international environmental regulations and laws for minimum standards of environmental

225 Machain, N.; Quispe, C. and Di Paola, M.E. (2007). Apuntes sobre los aspectos normativos e institucionales para el uso racional de las Turberas. Buenos Aires: FARN.


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protection that cannot be ignored for the management and protection of peatlands. b. Multidisciplinary Workshop to Develop a Strategy for Wise Use of the Peatlands of Tierra del Fuego A workshop, held in April 2008, was attended by more than 50 people, including government representatives from Tierra del Fuego, municipalities from the island, the National Ministry of Environment and Sustainable Development, the National Parks Administration, INTA, researchers, teachers, local and international NGOs, peat producers, tourist agents, and several colleagues from Chile. This workshop resulted in a document entitled the 2008 Declaration of Ushuaia, which was signed by representatives from every sector that participated in the event. This document, together with the other working documents from the workshop,226 have been the basis for the development of a Strategy Proposal for the Wise Use of the Peatlands of Tierra del Fuego,227 which delineates the following priorities: 1) Inventory. The inventory will allow the decision-making based on real data, which should be updated and scientifically-based, to allow for an evaluation of the resource and its conservation status and to define conservation needs and/or potential uses for different areas. The inventory is a starting point for the process of environmental planning (OAT). 2) Moratorium. As a temporary measure to prevent the advancement into unexploited peatlands, pending completion of the OAT process. This action is urgent and should be taken prior to the commencement of the OAT, operating as a tool in the process. 3) Economic Analysis/Evaluation of Environmental Services. The results of this analysis will be valuable information for the OAT, contributing to defining the areas to be strictly protected and those that can support certain uses. 4) Strategic Environmental Assessment (EAE). This tool, as a procedure with which to assess the environmental consequences or impacts of strategic governmental decisions, is of undeniable value when making decisions about

226 See Machain, N.; Quispe, C. and Di Paola, op. cit. and Cardone, I. and Worman, G. (2008). Los Turbales y su relación con la Comunidad. Tierra del Fuego: Vox Populi - Centro de Estudios Patagónicos. 227 Wetlands International and FARN (2008). Propuesta de estrategia para el uso racional de las turberas de Tierra del Fuego. July 2008.


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policies, plans, or programs that may present a risk to the conservation and wise use of peatlands in the province. At the same time, it will provide basic information for the discussion of the OAT. 5) Regional Environmental Planning (OAT). A vital process for the protection and wise use of peatlands. 6) Planning for Specific and Urgent Protection of Areas of Unique Value. Although this measure forms part of the OAT process, the workshop participants were in agreement that this tool, like the moratorium, should be implemented immediately to prevent further degradation. 7) Regulation of Peatland Use, as a measure consistent with the need to protect these wetlands in accordance with the citizen aspirations and local, national, and international regulations. 8) Implementation of Environmental Regulations, as a starting point for appropriate peatlands management under a comprehensive conception of the law. 9) Development and Implementation of Technical Standards, as a necessity for proper public and private management. 10) Capacity Building, in various aspects (including training, resources). This need was identified in the multi-sectoral workshop and was one of the main demands of participants. 11) Citizen Participation, as an indispensable prerequisite for the processes described. 12) Economic Instruments. This need was identified in the multi-sectoral workshop, going hand-in-hand with the demand for good practices. While good practices can become binding through sanction of laws, it is feasible to explore tools that can encourage even more sustainable production. 13) Working Conditions. The need to improve working conditions of laborers in the peatlands was identified in the workshop, in part based on the report by Cardone and Worman (2008). 14) Education, Information, and Scientific Research. This need was identified in the workshop from various aspects that were clearly reflected in the 2008 Declaration of Ushuaia. It is important to note the emphasis on strengthening the educational content for greater environmental protection and the need to increase scientific knowledge, particularly in regards to the contribution of peatlands to mitigating climate change.


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15) Reform of the Mining Code. This involves removing peatlands from the category that allow them to be exploited as a mineral. 16) Designation of Ramsar Sites to protect important peatlands in the province. 17) Mitigation of Climate Change and Preservation of Biodiversity. Given the importance of Tierra del Fuego’s peatlands in carbon capture, it is necessary to evaluate their contribution to mitigating climate change in relation to the effective implementation of relevant international agreements. These strategic guidelines are the basis for moving forward with regional environmental planning, conservation, and the wise use of Tierra del Fuego’s peatlands, in a joint challenge that will take place during 2010. Based on the information presented above and as a conclusion, it should be remembered that there are many valuable resources in Argentina whose proper management encompasses various environmental, social, economic, and institutional dimensions. In this line of thinking, the Tierra del Fuego peatlands project gave birth to a strategy for action on a resource in urgent need of protection, in the framework of a process of debate, dialogue, and consensus, which was only possible due to the commitment of involved actors. It is important to emphasize this feature, since the country’s General Environmental Law (LGA), in line with the Rio Declaration, recognizes that the importance of participatory and transparent processes which generate a flow of substantive information for public decision-making, based on scientific and popular knowledge of stakeholders. This is indeed the best path towards the sustainable use of peatlands in Tierra del Fuego.


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Bibliografía Blanco, D.E. and De la Balze, V.M. (eds.). (2004). Los Turbales de la Patagonia: Bases para su inventario y la conservación de su biodiversidad. (pp. 149 y Anexos). Buenos Aires: Wetlands International Pub. 19. Cardone, I. and Worman, G. (2008). Los Turbales y su relación con la Comunidad. Tierra del Fuego: Vox Populi - Centro de Estudios Patagónicos. CC-GAP (2005). Peatlands, do you care? Coordinating Committee for Global Action on Peatlands. Gland, Switzerland. Federal Investment Council (1962). Serie Evaluación de los Recursos Naturales de la Argentina (Primera etapa). Buenos Aires. Global Environment Centre and Wetlands International (2004). Peat for life? peatlands and adaptation to climate change. Hooijer, A.; Silvius, M.; Wösten, H. and Pagem S. (2006). PEAT-CO2, assessment of CO2 emissions from drained peatlands in SE Asia. Delft Hydraulics report Q3943. International Mire Conservation Group 2005. Declaración de Ushuaia. Ushuaia, December 1, 2005. Joosten, H. 2000. Perspectivas del uso de la turba y los turbales en Europa. En Coronato, A. and C. Roig (eds.): Memorias del Curso-Taller Conservación de ecosistemas a nivel mundial, con énfasis en las turberas de Tierra del Fuego. (pp. 15-22). Ushuaia. Argentina. Joosten, H. and Clarke D. (2002). Wise use of mires and peatlands. Background and principles including a framework for decision-making. (p. 304). Finlandia (Saarijarvi): International Mire Conservation Group & International Peat Society. Joosten, H. (2009) The Global Peatland CO2 Picture - Peatlands status and emissions in all countries of the world. Draft. Holland: Wetlands International. Kaat, A. and Joosten, H. (2008). Factbook for UNFCCC policies on peat carbon emissions. (p. 26). Wetlands International. Machain, N.; Quispe, C. and Di Paola, M.E. (2007). Apuntes sobre los aspectos normativos e institucionales para el uso racional de las Turberas. Buenos Aires: FARN.


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Onishi, N. (2009). The road to Copenhaguen. New York Times, November 29, 2009. Parish, F.; Sirin, A.; Charman, D.; Joosten, H.; Minayeva, T.; Silvius, M. and Stringer, L. (eds.) (2008). Assessment on peatlands, biodiversity and climate change: Main Report. Global Environment Centre, Kuala Lumpur y Wetlands International, Wageningen. Roig, C. and Roig, F. (2004). Capítulo 1: Consideraciones generales. En Blanco, D. y De la Balze (eds.): Los Turbales de la Patagonia. Bases para su inventario y la conservación de su biodiversidad. (pp.5-21). Wetlands International. Publicación 19. Wetlands International. Publication 19. Office of Planning and Development of Tierra del Fuego. 2002. Project for the creation of a protected area in the extreme southwest of Isla Grande in Tierra del Fuego, Argentina. Ministry of Economy, Public Works and Public Services of the Province of Tierra del Fuego. Ushuaia – September 2002. Wetlands International and FARN (2008). Propuesta de estrategia para el uso racional de las turberas de Tierra del Fuego. July 2008.


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The Illegal Embankment of the Iberá Wetlands: A paradigmatic case study for defense of the environment By Andrés M. Nápoli228 Director of the Riachuelo Department of FARN Translated by Ashley Chung Executive Summary The Iberá wetlands, whose name translates to “water that shines” in Guaraní, constitute one of the most important freshwater wetlands of South America. Much has been said and written about these wetlands’ extraordinarily rich and varied biodiversity, their scenic beauty, and even their strategic value of the territory as part of the mythical Guaraní Aquifer. Nevertheless, this fragile, important ecosystem is constantly threatened by the growth of agriculture and permanent human intervention, which has managed to change the natural dynamics of the basin through poorly planned roadwork that threatens the wetlands’ conservation. Approximately 60% of the area of the Natural Reserve of Iberá belongs to the private sector. The greater part of this sector’s establishments is dedicated to extensive stockbreeding, although crop-farming and forestry have also grown notably in the last few years. Unfortunately, most of the productive activities conducted in the area operate without the necessary environmental impact studies, resulting in detrimental alterations and negative consequences to the hydrodynamics that directly affect the entire Iberá ecosystem. One of the cases most emblematic of this predicament stemmed from the construction of an embankment, 22 kilometers in length, by the Haciendas San Eugenio S.A. (formerly known as the Forestal Andina S.A.) on company-owned land in the heart of Iberá. As we will see, the aforementioned embankment brought significant damages to the Iberá ecosystem, and completely breached the rules for preservation aimed at protecting the Reserve, leading to one of the most interesting environmental law-related judicial precedents in our country. Although the case encompasses a number of legal-environmental issues that would be rich for analysis, in this article we have chosen to put forth a summary

228 The present article is part of the environmental publication of the Colegio de Abogados de Mercedes that is currently at press. We owe thanks to the generosity of Dr. Amancay Herrera as well as to engineer Sergio Waldman.


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of the facts surrounding this interesting case that we consider crucial to understanding the implications of the case for the fragile Iberá ecosystem, which continues to require the tireless protection of environmental defenders.

I. The Iberá Wetlands Situated in the northeast of the Corrientes Province, the Iberá Wetlands cover an area of 1.3 million hectares. The Iberá Macrosystem is made up of a complex network of running and still water environments that blend together in vast areas of interaction and connection. The most significant wetland areas correspond to the lagoons of varying sizes that spread out along the length of the major axis of the basin.229 Locally, these types of wetlands are known as “esteros” (marshes) for the permanent presence of shallow water covered in vegetation along the extension of the lands.230 The diverse environments of Iberá together offer a unique habitat for a great variety of animals.231 There are at least 125 recorded species of fish, with abundant varying populations. Iberá has thus been recognized as a fish reserve in the Plata basin, contributing significantly to biological diversity and providing an important economic contribution to the region.232 Some 40 species of amphibians and 60 species of reptiles populate the region, including the black caiman and the broad-snouted caiman, which are the main predators of the wetlands. Additionally, 344 species of birds traverse the skies and lands of Iberá. It is common to find various species of birds co-inhabiting the interior and the borders of the wetlands: chaja birds, cormorants, storks, black and white herons, whistling herons, cutirí ducks, and jacana birds, among others. The Iberá ecosystem is also inhabited by a rich mammal population, within which one can find some the most charismatic animals of the Corrientes Province, such as the capybara, the maned wolf, the otter, and the swamp deer. Moreover, the pastures of the region offer one of the last habitats for the pampas deer, an animal at serious risk of extinction.233

229 Neiff, J. (2004). El Iberá en Peligro. (p15). Buenos Aires: FVSA. 230 The word “wetland” is used to describe areas that temporarily and permanently flood and where water plays a fundamental role in the ecosystem and its structure. Additionally, wetlands possess a number of characteristics that differ notably from other types of land, including their extreme variability in terms of time and space. This variability affects the plants and animals that inhabit the wetlands, forcing them to adapt in order to survive these changes, which can be quite extreme between periods of drought and periods of flooding. Neiff, Juan J. op cit. 231 See: www.theconservationlandtrust.org/esp/pa_ibera_esteros_06.htm 232 Where the Paraná river merges in course with the Corriente river is considered a sanctuary and possibly a breeding ground for several species of commercially important fish, such as the mahi-mahi (Salminus maxillosus), the shad fish (Prochilodus lineatus), and the boga fish (Leporinus obtusidens), among others. 233 See: www.theconservationlandtrust.org/esp/pa_ibera_esteros_06.htm


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a. The legal protection of Iberá The “Iberá Wetlands” have the highest protected legal status that can be granted under the provincial rule, having been declared a “Provincial Reserve” pursuant to Law (Ley) 3.771 of 1.983 and later transformed into a Provincial Park through the sanction of Legal Decree (Decreto-Ley) N° 18. The Provincial Reserve consists of approximately 800,000 hectares of private property on which productive activities are permitted, so long as they are compatible with conservation. The Provincial Park, or central zone, consists of 480,000 hectares of land under public dominion with restrictions on its use. Meanwhile, Article 65 of the recently amended provincial Constitution declares the Iberá Wetlands to be strategic, natural, and cultural heritage of Corrientes Province for the purposes of preservation, conservation, and defense. Additionally, in 2002, the Iberá ecosystem was recognized on the international level under the RAMSAR Convention on Wetlands, when it was incorporated into the List of Wetlands of International Importance (also known as Ramsar Sites) within the framework of the international convention protected by the United Nations.

b. A threatened ecosystem In spite of the current regime for legal protection, a plethora of agricultural activities is being pursued in the area, the majority of which require strict planning and control to refrain from harming the fragile ecosystem. Also, since the mid-20th century Iberá has been systematically threatened by the construction of infrastructure and the operation of productive activities lacking the precautionary measures required by law. According to an in-depth study by


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Dr. Neiff,234 the following are among some of the most important threats to Iberá: Embankments and canals that affect water flow The productive sections of Iberá are generally large areas where high lands are interspersed among lower sections of land that remain conducive to flooding. The need for vehicular access to every corner of these areas, as well as tourist activities with private access to mirrored lakes in the wetlands’ interior, has led to an increased number of embankments and artificial canals, which are constructed without state authorization or prior environmental impact studies and affect the water flow in the entire Iberá basin. The formation of gullies and erosion

On the coast of the department of Mercedes, numerous streams and gullies have been formed, leading to the permanent risk of erosion of fields in this zone if vegetative cover (grasslands and pastures) and forests are not carefully maintained. Low plant cover and trees absorb and retain the freely flowing rainwater that would otherwise sweep soil particles downstream to the heart of the Iberá. There are already numerous highly-eroded gullies that each year transport tons of soil toward the basin’s interior, contributing to build-ups and blockage which affects the whole ecosystem. Pollution The industrial agriculture model which is pursued in almost all of the Iberá fields dedicated to agriculture depends on chemicals to maintain the fertility of the land, eliminate weeds, and avoid plagues. The introduction of such chemical substances into the ecosystem can occur in different ways, and can cause distinct levels of harm. If their use takes place over water or on the marsh banks the effect is both more severe and more enduring, since chemicals are transported through the water affecting the extended region. At the same time, aquatic animals are susceptible to the absorption of chemical substances through their skin and introducing them into the food chain. In Iberá, the highest risk of chemical pollution of wetlands comes from rice-farming, since it involves flooding the rice fields during part of the crop cycle and then later draining the excess waters toward the Iberá basin. Extinction of species due to commercial and recreational hunting The commercial hunting of animals in has been historically important in Iberá, even contributing to a culture of “mariscadores” (hunters that stockpile hides that they later sell in the towns). Enormous quantities of animal hides and feathers were exported in the 60’s and 70’s from these wetlands. The drop in the number of animals was so noticeable that in 1983 it resulted in the decision to create a reserve. The situation has changed somewhat since then, since the 234 Neiff, Juan J. op cit. Ch. IV.


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worldwide demand for the majority of the animals has disappeared, but there remains a demand for capybara skins and the horns of the swamp deer. Poaching in the region is facilitated through the various access points to Iberá (including canals, old paths and crossings, embankments, and the Corrientes River itself), which often lack control by park rangers. This problem is exacerbated, in many cases, by the local communities’ apathy toward the value of the native fauna. Currently, out of the 1,300,000 hectares of the reserve, only Galarza and Laguna Iberá have park rangers present, where there have been ranger stations and eco-tourism for several years. Rainwater retention and creation of swamps The final large-scale threat to the region is “swamping,” which consists of a growth in marshy area caused by greater retention of rainwater. This increase in retention results from obstructions or dikes created by poorly planned road and waterway construction and by sediment blockage of usual drainage points (a consequence stemming from the drains created for forestry and rice-farming, which accelerate water run-off from the high lands causing erosion). Rainwater retention, groundwater saturation, and excess liquid infiltration generate underground water flows that sweep away the small sand particles that make up the soil. With time, this process accelerates and hollows out spaces underground, causing collapses on the land’s surface that, after several years, results in sinkholes. Once this has occurred, the soil loss is irreversible. As water retention continues, underground water run-off beneath the sandy layers grows, causing a chain of sinkholes that begin to take on the aspect of ravines. Swamping results in the loss of higher ground in the wetlands, whether through direct flooding or through collapsing of land (as with sinkholes). As the amount of high land and the heterogeneity of the landscape decreases, the land’s ability to sustain terrestrial and aquatic animals as well as the diversity of species also decreases, leading to the disappearance of animal sanctuaries, nesting, and breeding grounds. In economic terms, the “swamping” process is linked to the loss of productive fields, since the pastures that were once fit for livestock end up underwater, meaning the loss of hundreds, if not thousands, of hectares of land fit for stockbreeding.

II. The illegal embankment of Iberá In 2005, the company Forestal Andina S.A. began constructing an embankment on its privately owned land located near Paraje Yahaveré. The embankment currently stretches 22 kilometers in length at a height of 1 to 1.5 meters. The land in question included a large marshy area that was permanently covered in water. The embankment was meant to create dry terrain where cattle and livestock could sleep and to help increase the land’s agricultural output.


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The embankment was built without compliance with the region’s regulations governing such projects, which require presentation of an Environmental Impact Study and obtaining the corresponding Declaration of Environmental Impact (Declaración de Impacto Ambiental, or DIA). Additionally, the embankment construction project did not obtain a permit from the Corrientes Institute for Water and the Environment (Instituto Correntino del Agua y el Ambiente, or ICAA), the Application Authority on this matter. In the following images of the embankment, the effects of this construction over the natural drainage of water can be observed.


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a. Requirements that must be fulfilled for these types of construction projects

Water Code As was mentioned earlier, approximately 60% of the Provincial Reserve of Iberá is made up of privately owned land dedicated to agriculture and tourism along with a considerable number of hectares meant for private conservation. All of these activities are regulated under a system of rules with requirements that must be fulfilled in order to undertake such projects or activities. There are clear restrictions and guidelines on the management of properties in the region. Article 184 of the Water Code (Código de Aguas – Dto. Ley N° 191/01) is applicable to any and all constructions related to water works or any other project that may entail modification to natural water flow, whether through collection, measurement, storage, regulation, diversion, conduction, emergence from springs, conservation, use and decontamination of water or defense against water’s harmful effects. Implementing these types of projects depends on the prior approval of the Corrientes Institute for Water and the Environment (ICAA), taking into account the technical specifications for each type of project and the current legislation. Approval requires the effective presentation of the pertinent Declaration of Environmental Impact before the ICAA, along with other essential requirements (Art. 191, inciso I, Cód. de Aguas). One of the Water Code’s directives declares that “all utilization of water resources should be carried out in a manner that does not dangerously alter the ecological equilibrium nor affect present or future quality of life.” Similarly, the Water Code regulations, with reference to the constitutional recognition for defense of the environment, state that all persons shall always have a right to the common use of water when it does not infringe upon other uses or the legitimate rights of third parties or the environment (Arts. 70 and 80). Likewise, in the case of water subject to private ownership, Art. 183 of the Code prohibits harm to water resources, the environment, fauna, or third parties. Additionally, Article 3 of the Law for Environmental Preservation (Ley de Preservación del Ambiente, N° 4.731), imposes a similar obligation, establishing that “persons public or private, national or international, responsible for projects and/or actions that degrade or can potentially degrade the environment and affect the health of the population or of natural resources of the Province, must present a study evaluating the environmental impact at all stages of the development of the projects in question. Prior to its execution, each respective project plan must meet the approval of the Ministry of the industry…”


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Environmental Impact Assessment Article 57 of the Provincial Constitution states that: “the environmental impact assessment process is mandatory prior to all public or private undertakings which may potentially affect the environment.” Provincial law N° 5.067 defines an Environmental Impact Assessment in Chapter II as “…a set of studies and technical systems that allow estimation of the effects that carrying out the project in question and/or the use of the technology in question will have upon the environment and quality of life.” Article 22 of the same law goes on to say that: “If a project requiring an Environmental Impact Assessment proceeds without fulfilling the legal requirements, it will be suspended by order of the Application Authority, notwithstanding any other responsibilities [on the part of the project’s undertakers].” However, if the company in charge of the project ignores the Authority’s complaint, there is no other option but to resort to legal action. As the prominent theorist Ramón Martín Mateo pointed out in the Environmental Law Manual (Manual de Derecho Ambiental, 2nd ed., Civitas, Madrid, 1998), we can deduce from this definition that two aspects of the Environmental Impact Assessment (EIA) process that explain its functionality are: “prevailing preventative emphasis” (that is, the EIA aims to identify elements of risk in order to eliminate them, alleviate their impact, or, as in this case, advise for discontinuance of the action); and “consideration.” Similarly, it is worth noting that the General Environmental Law (Ley General del Ambiente N° 25.675, Art. 4th) also establishes “preventive principle” as one of the guiding principles by which to interpret and apply the aforementioned law and other rules related to environmental policy. This principal implies that “the causes and sources of environmental problems largely deal first and foremost with trying to prevent negative effects on the environment.” The purpose of the current authorization system is to verify fulfillment of provincial environmental rules, to protect and preserve the environment, and to protect the security of the population at large, ordering whatever actions may be necessary to mitigate environmental impact.

III. The Embankment in the Courts In October 2005, Mr. Bruno Leiva, a resident of Paraje Yahavare, commenced an amparo action seeking injunctive relief under Article 7 of Law 4.731, Article 182 of the Provincial Constitution, and Article 43 of the National Constitution. He alleged that an embankment was being illegally erected in the field owned by Forestal Andina S.A., located between the head of the Medina Lagoon and the Loma de Concepción, near Paraje Yahavare.


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Besides its damaging effect on the Iberá Reserve’s ecosystem, the embankment was also being built in breach of Law N° 5067, since the responsible party had neither carried out the necessary Environmental Impact Study (Estudio de Impact Ambiental, or EsIA) nor submitted the mandatory Declaration of Environmental Impact. This led the plaintiff to petition for the immediate cessation of the damaging activity and for repairs to the damage done to the environment. During the judicial proceeding, the defendant company claimed that it believed “there was no need to solicit permits of any time, since it considered the embankment to be a road work-type project with no effect on the water, put in place just so the company could freely travel within its recently acquired fields in order to operate them. Thus, as a road work, in no way could the embankment be considered harmful to third parties or to the environment.” There is no doubt that this opinion was completely unfounded, as was demonstrated at the various levels of decision in the courts, in light of the definition provided by the Water Code. This Code defines water-related works (hydraulic works) as: “any construction or projects implies the modification of natural water dynamics…”235

a. The decisions at each court of instance On December 2, 2005, Courtroom IV of the Civil and Commercial Appeals Chamber of Corrientes Province (Sala IV de la Cámara de Apelaciones en lo Civil y Comercial de la Pcia. De Corrientes) ordered an injunction to immediately suspend the construction of the embankment at issue in the suit, based on the initial opinion of Judge Carlos A. Rodriguez. Although the ruling of injunction was binding, the defendant company did not comply and instead moved forward with construction. At the time of this ruling, the embankment reached 1.5 kilometers in length, whereas by November 2007, the date when the Superior Tribunal of Justice (STJ) of the Province of Corrientes issued its ruling, the embankment was 22 kilometers long. On September 6, 2006, the Judge at the first level of appeal granted writ to the amparo action, ordering cessation of all activity deemed dangerous to the environment. He also ordered the partial demolition of the embankment in order to guarantee that water flow specified in the ICAA report included as an addendum (cf Res. N° 165 of May 19, 2006, ICAA). Moreover, considering the proximity of the rainy season, he ruled that in case the ICAA considered partial demolition an insufficient strategy, the defendant’s embankment should be totally demolished, based on the injunction granted by the Appeals Chamber. This judgment was appealed by both parties, and on April 25, 2007 the Appeals Chamber, with an opinion by Dr. Carlos A. Rodriguez, again recognized the 235 See Art. 184 Dto. Ley 191/01. Water Code.


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amparo action against the company Forestal Andina S.A., ordering cessation of the damage to the environment. Along the same lines, he ordered the defendant to destroy all construction that had been carried out subsequent to the original injunction ordered by the Tribunal. He also stipulated that, in case the company did not do so, the application authority (ICAA) would proceed to demolish it, either itself or through a third party, with all costs covered by the defendant and without barring any other relevant administrative sanctions against the company.236 The Chamber concluded that “the defendant, before starting a construction project like the one at issue here, ought to have carried out an Environmental Impact Evaluation for three reasons: a) Because the project is a water-related work with significant environmental impact;

b) Because the project entails significant environmental impact in the Provincial Reserve of Iberá; and

c) Because the project can significantly affect the environment in the town of Paraje Yahaveré, Dpto. Concepción, where the plaintiff is domiciled.”237

Additionally, the Tribunal strongly reprimanded the defendant for not promptly complying with the injunction when it was initially ordered. On this point, Judge Rodriguez stated that: “I cannot and ought not to downplay the fact that despite the order of the Tribunal to cease all construction in accordance with the injunction, the defendant company, which had not requested prior authorization for carrying out its construction, disobeyed the Tribunal’s orders and continued building the embankment.”238 The defendant gave notice of an extraordinary appeal against the Chamber’s decision before the provincial Superior Tribunal of Justice (STJ), in which, among other things, it alleged:

236 Likewise the judicial opinion ordered that, prior to completion of the embankment project by defendant company Forestal Andina S.A., it should comply with the relevant process of evaluation of environmental impact pursuant to Provincial Law (Ley Provincial) N° 5,067 and Law (Ley) 25,675 and the rationale of the present Sentence. In case the defendant failed to do so within sixty (60) days, the application authority (the Corrientes Institute of Water and the Environment, or ICAA) could proceed to demolish everything constructed before the injunction pronouncement of Res. N° 711 of December 12, 2005 (fs. 31/35 of the Injunctive Relief incident) either itself or through a third party, with all costs covered by the defendant. 237 Decision of the Civil and Commercial Appeals Chamber for the Province of Corrientes, Courtroom IV – April 25, 2007. (Fallo C. de Apelaciones Civ. Y Com. Ctes. Sala IV. – 25/04/2007. –) 238 From the opinion of Dr. Carlos A. Rodriguez.


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• That the plaintiff lacked standing to bring the lawsuit because he did not prove his status as an inhabitant of Paraje Yahaveré, and stated that he was in fact domiciled in Colonia Carlos Pellegrini.

• That the Executive Power had not set the physical boundaries of the Iberá Reserve and Park, nor had it dictated the relevant regulatory decree, meaning that one could not legitimately say that the defendant’s construction project at issue in the case affected a protected environment.

• That demolishing the embankment, far from being beneficial to the environment, would itself cause serious damages that the defendant had been seeking to avoid, which the defendant cited as its reason for petitioning the STJ to void the injunctive order.

The Superior Tribunal of Justice for the Province of Corrientes rejected the defendant’s claims and affirmed in all respects the April 25, 2007 judgment of Courtroom IV of the CACC, which ordered the demolition of the embankment and the environmental restoration of the zone to its previous state. In rejecting the defendant’s claim, the STJ, among other things, declared:

• That the plaintiff had legitimate standing to bring the lawsuit pursuant to art. 7 of law 4731, which authorizes a court to hear any amparo action to protect the environment brought by any inhabitant of the province that considers himself affected by any harmful activity. “Whatever may be the scope that one grants to this concept of ‘being affected,’ is completely evident that the plaintiff would be sufficiently affected by harm to the ecosystem of Iberá regardless of whether the plaintiff lived in Paraje Yahaveré or if the plaintiff lived in Colonia Carlos Pellegrini, since either way it similarly results in an harmful assault within the plaintiff’s ‘vital range.’”

• With respect to the defendant’s allegation that the construction in question should be excluded from injunction because at the time of the lawsuit the boundaries of the Iberá Reserve had not been clearly delineated, the STJ, following the precedent set by “Asociación Oikos Red Ambiental c/Provincia de Mendoza” in Courtroom I of the Supreme Court of Justice of Mendoza (Corte Suprema de Justicia de Mendoza, Sala I), ordered that “the lack of clear boundaries of the protected zone does not preclude application of a protective public order as part of legal doctrine.”

• With respect to the substance of the holding, commanding the demolition of the construction that occurred following the original grant of injunction, the defendant company alleged that to do so


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would cause even more harm to the environment in Iberá. On this point, the Tribunal set a highly relevant precedent with respect to environmental protection, following the line advanced on such matter at the national level, rejecting the aforementioned argument by the defendant, and affirming that “the judicial system” cannot allow those who disobey a judicial order to then reap benefits from their misconduct, which constituted the commission of an offense.

To hold otherwise would be to condone the defendant’s actions and to allow them to benefit from their reproachable conduct and judicial disobedience. In this sense, the Federal Court has stated that such an offense, once proven, cannot yield such benefits to the responsible party (C.S.J.N., in re, “Campbel Davidson”). On this point, the STJ declared: “it being proven that the defendant disobeyed the injunctive order, the administration of justice cannot tolerate that a party which disobeys a court mandate enjoy benefits from their conduct, which constitutes commission of an offense. If we allowed such rationalization, we would practically be leaving the protection of the environment in the hands of the harming agent, from which he would always be able to claim that retroactive compliance with the previously ignored injunction or court order would only cause more damage. This would render Article 182 of the Provincial Constitute and Article 43 of the National Constitution nothing more than a mere constituent’s promise.” In April 2009, the CSJN held that the source supporting the defendant’s allegation that the embankment’s demolition would cause serious environmental harm was admissible. The CJSN thus suspended execution of the STJ’s injunction, which had started to be implemented in late 2008, until they could definitively substantiate the abovementioned source. Finally, in October of that year, the CSJN unanimously rejected the source under Art. 280 of the CPCC, holding firmly that the STJ judgment completely ratified the April 25, 2007 pronouncement of the C.A.C.C. When the defendant company heard the ruling of the Tribunal Cimero, it made statements through its attorney, Hernán González, to the newspaper El Libertador of the Corrientes Province. It said that: “up to this point, there is no one that has proven that the construction on the company’s property generates environmental harm,” indicating moreover that the CSJN holding “never said that it was necessary to demolish the embankment,” but that it was limited to rejecting the defendant’s complaint and deferring to the action taken by the provincial court. Similarly, the defendant stated that the decision to demolish of some stretch of the embankment would only be undertaken only following completion of an environmental impact study.239

239 See http://www.diarioellibertador.com.ar/int-b.htm


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IV. Conclusions

The case of the illegal embankment in the Iberá has finally settled after more than four years of litigation. The response given by the court of the Province of Corrientes has been clear and resounding. Three intervening provincial levels of appeal determined the illegality of the construction and ordered first its cessation and later its demolition, which was, moreover, ratified completely by the CSJN. That is to say, four judicial levels and more than a dozen judges ruled in the same fashion. Nevertheless, the court’s holding continues without power of execution and the defendant company continues to disobey and ignore the court’s mandate, without incurring any costs by doing so. We have always said that the essence of environmental justice does not lie solely in court holdings that establish protection for the rights of persons affected and/or mere condemnations of whoever may be responsible for the harmful conduct to the environment, or the disregard of the powers of the legally established comptroller. Rather, it lies in fundamentally transforming these sentences into actions and/or policies that effectively result in compliance with these holdings and the protection of vulnerable rights. For this reason, the illegal embankment of Iberá has become one of the most paradigmatic court cases in environmental law, and its resolution will not only leave a distinct impression on the delicate Corrientes ecosystem, but it will also affect future environmental cases in our country.


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OECD Guidelines and the Environment – Executive Summary By Belén Esteves Lawyer specializing in environmental law Ex-Coordinator, FARN Commerce and Sustainable Development Area Current Scholar for the German Government in Renewable Energy Translated by Elliott August Executive Summary The OECD guidelines for multinational enterprises reflect the shared values of the 40 countries which have subscribed to them, the 30 members of the Organisation for Economic Co-operation and Development (OECD), and 10 other adhering countries, including Argentina, Brazil, Chile, Estonia, Israel, Latvia, Lithuania, Romania, Slovenia, and Peru. These governments have agreed on a series of principles and norms so that international companies that operate around the world comply with the law and operate in a socially and environmentally responsible manner. The guidelines bring together the basic components responsible corporate conduct, tackling a broad range of topics. Chapter five of the OECD guidelines is dedicated specifically to corporate environmental performance and reflects the principles and objectives outlined in international environmental instruments. This article explores chapter five of the guidelines, providing an analysis with examples, suggestions, and concrete cases in order to promote better understanding of this environmental chapter. Based on the importance of preserving and protecting the environmental, the OECD guidelines without a doubt contribute to this end, at the same time advancing the objective of sustainable development for present and future generations.


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The Argentine Agricultural and Livestock Sector and its Environmental Challenges – Executive Summary By Bernardo Voloj Coordinator, FARN Commerce and Sustainable Development Area Translated by Elliott August

“The most elemental reasoning suggests that there would be as much a utopia in trying to convert the productive, humid lands of the pampa into a

manufacturer of ecological services that naturally it does not have, as there would be in converting the valuable wetlands of Litoral Argentino into a food factory in place of promoting its capacity to provide irreplaceable ecological

services.”

Ernesto Viglizzo (2008)

Executive Summary The present article aims to tackle three aspects related to the persistent deficiencies and shortcomings in the formulation of a transversal public policy for the argentine agricultural and livestock sector: biofuels, the impact of agriculture on climate change, and judicial treatment of agrochemicals. The current scenario presents a series of external factors, such as the international financial crisis of 2008, which began in the financial sector but had negative repercussions on diverse economic sectors in a large number of countries, as well as problems at the local level, such as the Conflicto del Campo (dispute on soybean export taxes) and one of the most extreme droughts in Argentine history. This combination of events combined with the characteristics of the domestic market – with is notorious lack of stimulus policies - and a strong clash of powers between the national government and the organizations that represent agriculture has been a detriment for the formulation policies which are representative of all sectors and allow for the definition of a national agricultural model.


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Beginning in 2006, FARN began working on an analysis of the environmental, social, and economic aspects of the soy production chain in the region, and identifying the urgent challenges for public policy. It stressed as its axis the Environmental Land Use Planning, Strategic Environmental Evaluation, the analysis of biofuels, and policies on pesticides. Likewise, in the midst of the aforementioned Conflicto del Campo, FARN published the document “Agriculture and Environment,” which was also included in its 2009 Annual Environmental Report. Along these lines, the present article continues this analysis over three priority topics, which must be addressed in order to achieve sustainable policies in agriculture and livestock.


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The Monitoring of Infrastructure Projects: Regional Challenges, Another type of Integration is Possible By Jorge Oscar Daneri Project Coordinator at M’Bigua Foundation for Citizenship and Environmental Justice Translated by Max Storto Executive Summary This article aims to describe the current scenario of mega-infrastructure in the Río del Plata Basin, led by the Paraguay Paraná Waterway Initiative and the Garabí Dam system in the Uruguay River Basin, and other surrounding rivers. These large projects can be contextualized the mark of the IIRSA initiative, a series of projects inspired by the neo-liberalism of the 1990s. Now, with a new face and in an integrated fashion, these projects have been appropriated and accelerated by South American governments, further entrenching the current economic model with grave social and environmental impacts throughout the region. In this context, Parliaments and other bodies of control acquire a substantive dimension. This new reality also strains existing federalist agreements, leading us to reconsider of the role of COFEMA and its political and juridical efficacy (or inefficacy). The article closes with a proactive and positive perspective, describing conservation and sustainability initiatives in the wetlands of the Paraguay Paraná region, and demonstrating that another type of integration is possible among the towns in the river basin and the surrounding states. The reality in question depicts a deep tension between projects such as the Paraguay Paraná Waterway Initiative, supported by relevant economic and political actors, and conservation initiatives such as the one described above, led mainly by social and environmental organizations and a few key government offices linked to environmental policy and international environmental bodies, such as Ramsar. I. Introduction A group of social and environmental organizations in the Río del Plata Basin and other parts of South America have been monitoring the development of major infrastructure projects in the region for a number of years. This work


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began with the Ríos Vivos Coalition, which first articulated environmental networks around the infrastructure and energy processes in this area.240 The current article does not aim to reiterate the content of the excellent article on the monitoring activities carried out by social and environmental organizations in the region, written by Gabriela Vinocur and published in the 2009 FARN Annual Report.241 On the contrary, I take that article as a starting point, focalizing on the greatest challenges faced by organizations like ours. These challenges are linked to the larger development strategy in the region and the and specific infrastructure projects planned and in execution by governments, motivated by the multinational private enterprise, dam-building companies with links to the energy sector or, in some cases, the portuary sector which requires expressways and inter-oceanic corridors. Here, our aim is to outline the threats we perceive as real and pressing, based on the scale of the projects in question and the grave environmental impacts they will generate if they are implemented. However, we also with to advance positive proposals for regional integration, based on the initiatives led by other social and environmental organizations in the Río del Plata Basin. The idea is to explore other ideas and perspectives which may provide alternate paths for integration, based on respect for the natural territory, its people and its watersheds. II. Brief Reference about the Governmental Initiative and the International Financial Institutions for the South American Regional Infrastructure Integration (IIRSA) The Initiative for the Integration of Regional Infrastructure in South American (IIRSA) is the most ambitious infrastructure investment plan that has ever been proposed on the continent. The initiative’s goal is to strengthen the competitiveness and boost the productivity of the region through a series of steps aimed at physical integration of the South American territory and the reform of key sectoral processes. In order to manage such a large enterprise, IIRSA is being coordinated by all 12 South American governments, with technical support from three multilateral development banks,242 national development banks243 and private sector.

240 www.riosvivos.org.br - http://www.infraest-energ-sudamerica.org/home 241 Vinocur, G. (2009). The Civilian Participation in infrastructural project monitoring in South America. 2009 FARN Annual Report. (pp. 397-423). Buenos Aires: Editorial FARN. 242 The Interamerican Development (IDB), the Corporación Andina de Fomento (CAF) and the Financial Fund for the Development of the Plata River Basin (FONPLATA). 243 The initiative is partly directed by Brazil’s Banco Nacional de Desarrollo Económico y Social (BNDES).


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In the framework, the continent has been divided into 10 distinct axes of economic integration, in which different projects are identified and proposed based on the relative importance for regional integration. IIRSA’s first portfolio contained 41 projects identified as projects with potential financing. These projects are the basis for regional integration and they will spur the subsequent development of hundreds of related projects in the future. Investments for the first round of major activities totaled around 23,500,000,000 US dollars. The lack of transparency about the ways in which IIRSA projects are identified, evaluated and financed, as well as the lack of practical information about them is of serious concern for civil society organizations in the region and internationally. This concern is exacerbated by the lack of an established, constant, systematic and rigorous framework for the participation of civil society in the decision-making process, which has led to anxiety and skepticism about the initiative. It is particularly surprising that the majority of the projects proposed by the governments as part of IIRSA are the same ones proposed by previous governments during the neoliberal period of the 1990s. Previous governments, especially those of Brazil and Argentina, attempted to carry out these projects in the latter part of the twentieth century and met obstacles related to civic activism. Towns, communities, civil society organizations and the environmental movement found ways to detain or to stop the projects and this generated wide debate at the time. Now, the same megaprojects have reappeared, more potent and integrated into a vision which has been adopted as “our own,” despite being functional to the interests of extractive industries. This process has determined the acute facilitation of processes of alienation and dependency on concentrated capital, led by translational organizations which have little stake in the true interests of our people and in achieving a real, participative, and truly holistic Latin American integration. III. Background IIRSA is an initiative that was launched during the meetings of twelve presidents that took place in August-September of 2000 in Brasilia, Brazil. The vision of IIRSA was adopted by all 12 countries. The initiative’s motivation is based on the idea that development in the areas of transportation, energy and telecommunications will help overcome geographic barriers, strengthen markets and promote new economic opportunities in the region.


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In these historic meetings, the technical coordination and operations of IIRSA was delegated to three multilateral development banks: the Inter-American Development Bank (IDB), Corporación Andina de Fomento (CAF) and the Financial Fund for the Development of the Plata Basin (FONPLATA). These banks have jointly produced a 10-year plan of action to materialize the aspirations for regional integration. At the Presidential Summit (2000) it was agreed that the IDB would develop the outline of the Action Plan for the proposed integration. The study "A new impetus for the Integration of Regional Infrastructure in South America” and was presented by the IDB in December 2000, about three months after the summit in which the IIRSA initiative was announced. Since 2000, the multilateral development banks have had a very active role in financing studies and IIRSA-related projects, in addition to providing technical support and facilitating private sector participation in the initiative. Civil society organizations have not been given the same treatment and have had to take extraordinary measures in order to access relevant information on IIRSA-related issues. Only in recent years have we been able to acquire the knowledge and information necessary to take a position on the integration which has been imposed on us. According to the concepts and guidelines presented in the Subregional Seminar organized by IIRSA’s Committee for Technical Coordination, in September 2003, in Lima, Peru, the proposed integration focuses on three objectives: 1. Support market integration to improve intra-regional commerce, primarily taking advantage of physical integration opportunities.

2. Consolidate production chains to be competitive in major world markets. 3. Reduce the costs in South America through the creation of an articulated logistical platform, inserted into the global economy.

There is much debate among the 12 Latin American governments on which projects will contribute more to regional integration. This "debate" is expressed substantially in three spaces of decision-making: foreign ministries, ministries of infrastructure (whether they are dependent on ministries of economy or not) and in the private sector, particularly labor and financial. Nearly 300 investment projects have been identified in the three sectors and 189 feasibility studies have been initiated.244 The types of projects considered in the framework of IIRSA vary greatly, ranging from road improvements and the construction of new highways, to the establishment of new, high quality telecommunications services (more width band) which will help increase the competitiveness of Latin-American professional services worldwide. 244 Some of the 300 projects identified by IIRSA had been financed by the Bank before the launch of IIRSA in 2000, and were later considered essential to the development of regional infrastructure. It is quite difficult to determine which projects have been "adopted" under the auspices of IIRSA and which are being evaluated as a result of the initiative launched in 2000.


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IV. Large-Scale infrastructure projects proposed by governments and the IIRSA initiative in the Plata Basin Simple access to informational channels of IIRSA245 and the plans of relevant governments, beyond the management authority of the Treaty of Cuenca del Plata, CIC,246 offers the following picture with regard to the large-scale territorial interventions in the larger basin: 1. Expansion of the so-called Paraguay Paraná Waterway 2. Construction of the Uruguay River Waterway 3. Increased construction of public and private ports 4. Construction of new bridges within the Paraguay-Paraná wetlands system 5. Consolidation of inter-oceanic corridors, tied to new or other existing bridges 6. Corpus Hydroelectric Dam on the Paraná River 7. Garabí Hydroelectric Dams in the Uruguay River Basin V. Challenges Based on the input provided by environmental organizations which have been monitoring these advances closely, we can identify a number of challenges for improved implementation and enforcement of environmental legal frameworks and the role of civil society in all these cases. In this sense, it is important to keep in mind the scale of territorial interventions, the levels of economic investment, and the nature of environmental impacts.

a. National and Provincial Oversight Bodies The oversight of specific institutions, especially the National Auditor’s Office, the National Ombudsman’s Office and Provincial Ombudsman’s Offices, is both substantial and significant. These bodies have received numerous complaints filed by civil society on several of these projects, including Paraguay Paraná Waterway (HPP) and Uruguayan Waterway, and new dams. But their involvement requires greater protagonism, higher levels of intervention and increased public visibility of actions. It is civil society which must undertake a mission of advocacy, providing support and visibility to these institutions. Particularly in rural areas, greater citizen participation could be invoked in processes of research and monitoring compliance and this would be very beneficial. The examples laid out by Vinocur247 of access to information initiatives led by FARN and the M'biguá Foundation for Citizenship and Environmental Justice (Entre Rios), in the case Garabí Dam are a good point of 245 www.iirsa.org and prior access to the article mentioned in Note 2 above. 246 http://www.cicplata.org/ 247 Vinocur, G. (2009). Public participation in monitoring infrastructural projects in South America. Annual Report 2009 FARN. (Pp. 397-423). Buenos Aires: Editorial Farn.


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reference. By looking at the actors involved, the ways Environmental Impact Assessments (EIA) have been contracted, and their subsequent independent evaluations - all points in which the Argentine Environmental Authority has historically been quite weak - one can identify many gray areas and institutional weaknesses, as well as opportunities to demand, contest, expose and contribute.

b. Citizen Participation The organizations cited above and some provincial networks of social and environmental organizations are more active in monitoring infrastructure projects. But their limited resources and capacity for action are insufficient to provide the necessary guarantees for full compliance of provincial and national environmental laws, particularly those of minimum environmental standards. Access to justice has been significant in some cases, as in the Middle Paraná Dam, or the intervention of the Ombudsman in the case HPP. But the reality is that in the current scenario as stated above, few organizations are able to systematically monitor projects of this scale. This constitutes a major challenge, given the relevance of the territories and basins involves and based on the potentially negative impacts in question. In the case of the Garabí Dams, our focus must be on evaluating and acting before this organism and the judiciary, on how to intervene environmentally at a national scale, how this is being done, and the role assumed by the provinces and their environmental authorities, in conformity with Article 124 of the National Constitution and the established functions of the Federal Council on the Environment (COFEMA). Similarly, the potential expansion of the navigation channel of the Paraguay Paraná, from Santa Fe to the north, as well as the proposed new port of Santa Fe, and its potential environmental impacts of these projects are being monitored. This expansion must be understood in the context of the expansion of soybean monoculture model and mineral extraction in Brazil and Bolivia, as well as the strong intervention of the Government of Venezuela on the stage of the Paraguay Parana, which has enhanced its prioritization by the Argentine Government.

c. Participation of National and Provincial Legislatures With the new legislative arrangement, the National Congress has acquired substantial volume and the possibility of greater control and citizen monitoring of the above-mentioned cases. The public works and environmental commissions of the legislature have access to important tools, such as requests for information, and are in a position to demand compliance with the Law of Hydroelectric Projects, advance in the sanction of a national law of minimum standards for Environmental Impact Assessment (EIA) and monitor the performance of public authorities involved in megaprojects. Without doubt, the fight against corruption is paramount in this situation, given the magnitude of


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the investments and the actors involved. The provincial legislatures, for their part, also have an important role, since these infrastructure projects often require inter-provincial or regional agreements, based on the federal structure of Argentina and the legal competency over natural resources at a provincial level. As has become evident in the cases of Garabí and Corpus, the intervention of the provincial legislature constitutes a great challenge and is assuming importance in the IIRSA process.

d. Implementation and Enforcement of Environmental Minimum Standards Laws

The lack of a national law of Minimum Standards for Environmental Impact Assessment (EIA) is persistent problem, since it weakens the application of the principles laid out in the General Law of the Environment, in particular the precautionary principle. In the absence of an EIA law, the National Secretariat of the Environment acquires greater relevance and should adopt a more active and qualified institutional and public role, showing commitment and conviction. However, based on the responses to requests for access to information filed by FARN, M'BIGUA and other social and environmental organizations in the basin, the role of the National Secretariat is not clear. This institution’s participation in the preparation of the terms of reference for the EIAs of dams, waterways, and bridges has been secondary rather than substantive, and in the case of HPP, it did not even participate.248 Concretely, the role of the Environmental Secretariat is irrelevant and, in the preliminary phase of the projects, environmental organizations are denied participation. Terms of reference are extremely important for any EIA. Their simplicity of complexity has great bearing on whether or not a project is approved and, if approved, how it is carried out. In this context, the greatest challenge will be to gain access to EIA studies, to understand how they have been evaluated by the National Secretariat of the Environment and by provincial governments, how public audiences are designed, how mandatory plebiscites are carried out (in Misiones with the Corpus Dam and even Garabí). In other words, the greatest challenge will be monitoring the level of compliance with the General Law of the Environment at a national and provincial level.

e. Strategic Environmental Assessment

In the design of many of these projects and the funding of pre-feasibility studies, the IDB has assumed a central role. This has occurred most often when the content of the ideas are related to the IIRSA initiative. The IDB has recently added Strategic Environmental Assessment (SEA)249 to its arsenal of

248 According to the response recieved by the SAyDS Nro. 24-09. May 5, 2009. 249 Strategic Environmental Assessment (SEA) aims at evaluating the environmental consequences or impacts the framing of strategic decisions by the government sector, ie all


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environmental policies. We believe that this is a tool, when well used, can contribute substantially to the mitigation of mistakes made during project development. SEA provides the opportunity to see, consider and study environmental impacts at a regional level, taking into account watersheds, ecosystems and particular zones. It can also be used to evaluate impacts of not just one project but of multiple projects carried out in a determined geographic territory, offering perspective of potential scenarios and the opportunity to measure cumulative and synergistic impacts. This tool should be incorporated into the Minimum Standards Law on Environmental Impact Assessment. In response to a request to access of information about the Garabí Dam from the National Secretariat of Energy,250 it was noted that the execution of an Integrated Environmental Assessment (EAI) is being carried out, emphasizing an environmental study of basin. Nevertheless, the terms of reference for this study have not yet been elaborated. This is an example of the role that the Secretariat of the Environment should adopt, in the provinces of Misiones, Corrientes and Entre Ríos, contributing to the drafting of the terms of reference, for the reasons outlined above. Another point worth mentioning is a recommendation made by the National Ombudsman of Argentina (1998) with respect to the Paraguay Paraná Waterway. Based on requests by environmental organizations, the Ombudsman recommended implementation of an Integrated Environmental Impact Assessment as a tool for decision-making for large projects on the Paraguay and Paraná Rivers. VI. Another integration is possible. The main challenge

a. The Large projects and the fragmentation of knowledge

We are aware that the political conditions in the 20th century were not favorable for the generation and implementation of coordination mechanisms among the diverse countries that make up the Basin. Historically, they were not able to see the territory as a single unit and to advance based on an integrated management approach, with respect for the region’s ecological diversity, in order to achieve sustainability with regards to wetlands. One of the most important reasons for this has been the fragmented vision of the Basin, and this fragmentation has impacted the large hydroelectric projects and industrial waterways we address here. These government-led initiatives have deepened fragmentation and the lack of information-sharing based on closed institutional schemes and the inaccessibility of information to the public, organizations and even local governments. The lack of public information has also allowed corruption to

decisions made prior to the analysis of specific projects, such as the initiatives, policies, plans and programs. It is linked to the development of land policy and management plans that may prevail: to take the definitions, possibilities and limitations of such plans as starting points for their environmental analysis. 250 Answer S.E. note n. 05 818. Ref Inventory Studies of the Uruguay River. 08 Sep 2009.


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occur and has contributed to the violation of basic human and socio-environmental rights. The processes of fragmentation have been used to weaken the environmental authorities of national and provincial governments, robbing them of the power to monitor megaprojects. In the current context, a radical and substantive reform is needed. This requires the creation and strengthening of bi-national entities for dam management and other regional initiatives. Without such reforms, it will be nearly impossible to manage ecosystems and large projects in a responsible, serious, democratic and participatory fashion.

b. The Paraná-Paraguay Wetlands System A coalition of social and environmental organizations in the Rio del Plata Basin have come together to form the System Alliance. This alliance is leading an initiative for conservation and sustainability in the Paraná Paraguay Wetlands System. The Rio del Plata Basin is made up principally of the large floodplain of the Paraguay River and its continuation along the middle and lower Parana River. This large central depression provides hydrological and biological continuity for a system of wetlands, which extends from North to South from the Great Pantanal of the Upper Paraguay, through the swamps of the lower Chaco, the wetlands of San Pedro, Ypacaraí, Ypoa and Ñeembucu in Eastern Paraguay, the wide Parana River floodplain and the Esteros del Ibera, before draining into the Parana River Delta. It is the largest wetland system in the world. The system is connected by nearly 4,000 kilometers of dam-free rivers called "interconnected valleys". These interconnected valleys are made up of the estuaries of Yzozog in Bolivia and Mar Chiquita in the South of the Gran Chaco (both valleys are hydrologically disconnected from the Plata Basin at present) and the wetlands of the Upper Parana between Guaira and Porto Primavera. When we speak of the "interconnection" of these valleys, we do not only refer to a direct connection, hydrological or biological, but also their cultural interconnection, and shared conservation, restoration and sustainable ecosystem initiatives.


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c. Participatory processes for the Sustainable Management of Wetlands System

In 2003, member organizations of the Living Rivers Coalition (Ríos Vivos) together with certain sectors of the national government in MERCOSUR countries, managed to consolidate a powerful initiative aimed at the development of a shared vision for the management wetlands in the Paraná Paraguay system. Several events were held and resulted in background documents, letters and recommendations. In October of 2003, the Living Rivers Coalition, in partnership with the Pantanal Network, aimed to formalize the process by sending letters to the governments of five countries that make up the Central Valley, proposing to develop shared, integrated and sustainable management plan. The governments of Brazil and Argentina reacted positively to this proposal. There have been a number of historical achievements along the way, for the conservation of the Paraná Paraguay wetlands system. Among others, the following are noteworthy: The suspension, for many years, of the industrial waterway project on the Paraguay Paraná; the suspension of a dam in the Middle Paraná; the sanction of the “Free Rivers” law in Entre Ríos (1997); the designation of new protected areas and Ramsar sites; the struggle of riverside communities and NGOs to maintain the sustainability of small-scale fishing; the articulation of the Alliance System for the Pocono Act and the participation of governments in the development of a Strategy for Sustainability. These are all examples of the fact that conservation and sustainability of the wetlands system is feasible.


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In Argentina, the Secretariat of the Environment expressed its commitment to support the process, building a proposal for the vision and policies of the system. The Ministry of the Environment in Brazil also assumed an active role, based on the personal commitment of the former Minister of the Environment, Marina Silva. On July 7, 2004, the Living Rivers Coalition introduced the “Citizens' Initiative for the Social and Environmental System of Paraná Paraguay Wet Areas.” This initiative was formally presented to the Secretary of Environment and Sustainable Development of Argentina, Dr. Atilio Savino, during the debates of the National Environmental Agenda in the city of Santa Fe. Our aim was to achieve a common space of dialogue among the Ministers of Environment from MERCOSUR to advance on the path towards a shared sustainable management plan. Beginning in 2004, we formed the Alliance of Social and Environmental Organizations of the Paraná Paraguay Wetlands System. This alliance was based on the Living Rivers process but was more focused. Its aim was to advocate for political dialogue with and among the governments of the basin, to push forward, accompany and monitor regional agreements for a Program, Plan and/or Strategy to address the sustainability of wetlands. Member organizations began doing advocacy work in the Ministries of Environment and Foreign Ministries of their respective countries. After several months of work, with a strong initial leadership of the government of Brazil, a meeting between the social and environmental organizations of the Alliance System and the representatives of Brazil, Argentina, Bolivia and Paraguay was held. Uruguay was not present. Within this framework, the involved NGOs began a process of political advocacy which, in 2005, resulted in the Pocone Act. In this act, the five governments which form part of the Rio del Plata Basin affirm the need for integrated wetlands management as the basis for sustainable development. In the year 2006, an official Working Group (WG) was formed, with the primary goal of developing a work plan oriented towards creating a Sustainability Plan for the Paraguay Paraná system. To this end, the WG must now lead an institutional process between governments, searching for a new integration paradigm based on conservation, preservation, sustainable management of ecosystems, and the promotion of cultural and biological diversity of its peoples and territories. The Poconé Act and the formation of the Working Group are examples of the level government interest and consideration for alternatives approaches to regional integration, different from today’s model based on extractive industry and exports. At the same time, this constitutes a challenge for civil society, which must continue to participate, contribute to government efforts, and generate synergies with other initiatives in order to achieve the desired changes.


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d. The Poconé Act

The Poconé Act outlines the following relevant points for the development of a cooperation program for the sustainability of the wetland system;

• Conservation and protection of traditional knowledge; • Consideration of the initiatives already underway at national or regional levels;

• Coordination between international initiatives and local actions; • Participation of local communities; • The recommendations of the Conference of Parties to the Convention on Wetlands of International Importance and the guidelines established by the Convention for the Protection of International Cultural and Natural Patrimony and the MAB program of UNESCO, in the case of areas recognized by these treaties (Resolution VII.4 of Ramsar: Associations and cooperation with other conventions), and;

• The guidelines established by the Conventions of the United Nations on Biological Diversity, Climate Change, and Desertification (Resolution VII.4 of Ramsar: Associations and cooperation with other conventions)

The Poconé Act also mandates the creation of a working group could contribute to the establishment of an agenda for cooperation among countries of the system.

e. Institutional Legal Framework In the process of building the idea of this new system, research and proposals on the institutional framework for the conservation and sustainability of the wetland system were generated. This work showed that there are a number of national and international laws and treaties of significant importance upon which to build the legal and institutional framework for this new plan. Specifically, we refer to the International Environmental Conventions on wetlands protection (Ramsar), on the Conservation of biological diversity; on Combating Desertification, Convention on Climate Change and the ILO Convention on Native Peoples (ILO 169). In all the debates being carried out at conferences on these international treaties, discussions have arisen on how to create synergy and integrate public sector and civil society initiatives. Nevertheless, despite numerous speeches, the results have been poor when it comes to concrete policy actions. We believe that this initiative is part of what should be the goals of our nation states, in terms of the development of a democratic methodology for the for the


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establishment of national strategies for the sustainable use of wetlands. These strategies must take into account the priorities, targets, and actions that have been established through other national strategies, such as biodiversity action plans and action programs for the Convention to Combat Desertification.

f. Some alternatives to the rules concerning diversity and complexity of the moist areas of the system in the Pantanal, Paraguay, Paraná corridors

International Environmental Law provides several institutional alternatives relevant to the initiative: 1) A Protocol under the MERCOSUR Framework Convention for the Environment; 2) A specific convention, with hierarchy and autonomy, or potentially a new treaty; 3) An amendment and extension of the Treaty of the Rio del Plata Basin. All the alternatives must be discuss and agreed upon, with relevant actors determining the best tool based on operation and efficiency. This does not mean opting for one alternative or another, but instead on initiating the debate. What is clear is that we need something new and different from the supranational norms in place today. Past experience suggests that if this agreement is constructed in the same way as before by the five countries in the Basin, it will lead us astray. In other words, if the reconciling the laws of diverse nations and their peoples, leads only to the simplification, the unification and the de-territorialization of environmental law, this international agreement will lead to new frustration.

Complementarities should be sought in a creative and innovative fashion, with respect for the normative diversity of relevant provinces and nations. It should also recognize the complexity of ecosystems, their specific characteristics and their cultural diversity. This does not mean simplification, all the contrary. Similarly, the principal of federal concertation must be extended to the realm of nations and states, in search of democratic tools for decision-making, consensus, agreements, mediations and the resolution of conflicts. It is possible to work on a new scale of institutionalism within our democratic system and to achieve the agreements necessary. These agreements should not just be based on good intentions, but should involve substantive commitments from governments and citizens for the construction of new institutional spaces for the sustainable management of ecosystems, which are democratic, transparent and participatory.


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There is no doubt that the system we desire should be led by the environmental authorities of the countries which form part of the Basin. Nevertheless, it should also take into account mechanisms of participation and consultation with civil society, with the widest representation possible, including environmental organizations, native peoples, producers, peasants, fisherman and others. The main objective of institutional and legal frameworks is to facilitate the implementation of the largest possible number of programs and projects aimed at guaranteeing the conservation of biodiversity in this ecosystem and protecting its integrity through an ecosystemic approach, which also takes into account the cultural and productive diversity of its inhabitants. Such an international approach would allow us to consolidate the rights recognized under norms such as Agenda 21, the Convention on Biological Diversity and the Convention on Indigenous Rights. Despite commitments made by nations, these rights are all too often ignored. There is no doubt that the current proposal is in line with these pillars, since it has been generated and elevated for government consideration by a very diverse coalition of social and environmental organizations. The proposal’s legitimacy is based on grassroots support and it is both substantive and sustainable. It has been generated with the firm conviction that another type of integration is possible, at a human scale. VII. Final Comments The monitoring of initiatives such as IIRSA shows us the relevance of these projects and the way that they shape a nation’s destiny, over the course of decades or even centuries. The fashion in which these projects have been designed – with predominant inputs from the private sector and a deficit of participation by civil society, control agencies and provincial governments – makes us worry about their larger and cumulative impacts over the Uruguay and Paraguay-Parana River systems. In this context, it is necessary to revert the passivity of national parliaments and provincial legislatures, which have an essential role in the republican system of checks and balances, in order for them to assume a more active role monitoring large scale infrastructure projects and their associated budgets. In countries where the culture of centralized decision-making processes has too often determined the fate of nations, out biggest challenges are the implementation of land use planning at a regional level and the democratic management of basins, for and by local inhabitants. We must also learn to redefine the notion of integration, resisting the ideology espoused by centers of financial power, for which “integration” often looks more like disintegration and de-territorialization. In conclusion, the democratic transition towards


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sustainability requires conviction and commitment on diverse fronts, including access to information, access to justice and monitoring by parliamentary minorities. The economic interests at stake are so large, that the current work of control agencies, parliaments, ombudsmen, the judiciary and civil society has proven insufficient. This work must be sustained and strengthened in order to accompany the transition towards sustainability, as it has been determined by standing environmental law and it is imagined by citizens.


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Green Business

By Diego Luzuriaga Electronic Engineer, Buenos Aires Institute of Technology MSc in Management of Technology, Massachusetts Institute of Technology (MIT), USA Translated by: Natalie Popovich Executive Summary In the last few years, heightened awareness of environment problems has not only initiated a revolution in green technology, but has also changed the rules of the game for all existing business. In one form or another, all business will be affected as much by the low-carbon economy as by the pressure for sustainability. Therefore, green business not only involves new technology and new players, but also affects the whole spectrum of existing companies. It is truly difficult to know how each industry and which types of companies will be affected in the next few years with the advent of a new series of regulations, laws, and global commitments with the new low-carbon economy. What is clear, however, is that new business models for this economy will appear and that the majority of companies will have to adapt themselves, modifying and adjusting their assets to the new carbon emission requirements. In addition to these considerations, the present reality shows us that in developed countries, green business represents one of the most active sectors in the economy – particularly in venture capital inversions. The business sector leading this Green Movement is called cleantech and is defined as a group of products and services that greatly reduces or eliminates negative environmental impacts, promoting a more efficient and sustainable use of natural resources.251

I. Origins During the 1960s, the dominating idea in society that nations should be able to promote indefinite economic growth by means of continual industrialization, started to be questioned. It was during the North American years of counter-culture, characterized by the Vietnam War, the drug boom, and the emergence

251 Cleantech Group LLC


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of the concept of New Age. Little time had passed since Jimi Hendrix played the U.S. national anthem at Woodstock, when an English economist, E. F. Schumacher, published a book that would serve as inspiration for new movements for change. The book in question was called Small is Beautiful: Economics as if People Mattered. In this book, Schumacher, who had been influenced by Mahatma Ghandi, rejects that consumption is the only purpose of all economic activity, and that land, work, and capital are the only means of achieving it. Additionally, he believed that decentralized small-scale technology that would not require large amounts of energy would improve societies’ quality of life. In this same way, technology should be ecologically sustainable and based on renewable resources, utilizing solar and wind energy instead of non-renewable energy sources like fossil fuels. Inspired by this concept, two movements arose in the United States: The Appropriate Technology Movement and The New Alchemy Institute. The objective of these movements was none other than to create human life support systems in an entirely ecological and sustainable way. These were the origins of what is today considered Going Green. In the 1970s there was already research about alternative energy sources – like wind and solar – to replace fossil fuels, which spearheaded the movement currently known as cleantech. The first business developments in cleantech were linked to solar energy. One of pioneering companies in its development was Sharp, which was already investigating photovoltaic cells in the early 1960s. BP Solar, a subsidy of British Petroleum, also started researching alternative energy sources 30 years ago. Something similar happened with General Electric, through their subsidy GE Energy. Similarly, in 1985, Stanford University’s Doctor Richard Swanson developed a new highly efficient photovoltaic cell technology and founded the company Sunpower. Today, those former movements of the 1960s and 1970s have evolved and the force of advanced technology, social conscientiousness, public policy, and business developments have been mutating and integrating themselves into market customs. In a very interesting report by Clean Edge, one of the most important companies in the world that produces cleantech publications, they make a comparison between how leantech was yesterday (beginning of the 1970s) and how it is today252:

252 The Clean Revolution; Technologies from the Leading Edge, by Joel Makeower, May 14-16 2001, Global Business Network. Más información en el sitio: http://www.nbis.org/resources/clean_technology/clean_technology_revolution_global_business_network.pdf.


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Cleantech: Yesterday and Today Yesterday Today Return to nature Emulate nature Business is the problem Business is the solution Money is an element of destruction Money is an element of creation Be outside the network of interconnection

Increase the network of interconnection

Small is beautiful Small is profitable Be self-sufficient Be interdependent Think globally, act locally Think and act globally and locally Give power to the people! The people need power (energy)

II. The Evolution Beyond its interesting origins, clean technology had to fight for its place in the world, particularly due to a worldwide reluctance to recognize the existence of an unprecedented ecological crisis. The Kyoto Protocol, which was adopted by 55 nations in 1997 and entered into force in 2005, assumed that the majority of the world’s countries would recognize the precarious situation of the global ecosystem. At the same time, this fact implicitly gave footing to the development of new business models that were more comprehensive, socially responsible, and not harmful for the environment. Generally, this type of business model is known as sustainable business. Nonetheless, the predominating idea at the time was that these concepts were something futuristic, unrelated to the present reality. However, a report prepared by the U.S. Pentagon towards the end of 2003253, accelerated and consolidated the process of increasing awareness of the gravity of the situation. The report clearly established that the next important wars that occur on Earth will arise as a consequence of global warming and its implications for human life – particularly the scarcity of food and water. The present situation shows the cleantech sector in exponential growth, with bigger and bigger investments and a great diversity of players. Great competition also exists between alternative technologies to establish themselves as the great heroes of green business. A series of studies carried out in California,254 one of the most developed regions in the world on environmental issues, certainly demonstrates this tendency. Among other indicators, this study showed that:

253 An Abrupt Climate Change Scenario and Its Implications for United States National Security, October 2003, by Peter Schwartz and Doug Randall. See: http://www.edf.org/documents/3566_AbruptClimateChange.pdf. 254 Since 1978, the State of California has promoted public policies with energy consumption standards, incentives for waste reduction, public investment in the investigation of new Technologies and incentives for the adoption of clean technologies.


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• Investments in projects linked to cleantech grow exponentially year-to-year.255

2002: 0.8 billion 2003: 0.9 billion 2004: 0.9 billion 2005: 1.3 billion 2006: 2.9 billion 2007: 4.2 billion 2008: 5.9 billion

• The speed of creation of jobs in this sector is greater than the rest of the economy. While job creation in the entire state of California has grown 1% per year since 2005, growth created by cleantech companies has been 10% annually.

• The number of cleantech companies has grown 28% since 1995.

• The quantity of new clean technology patents grows continuously in the United States, showing a marked acceleration in the last few years.256

1990 – 1995: 2,000 new patents 1996 - 2001: 3,100 new patents 2002 - 2007: 4,000 new patents

Although the generation of alternative energy technologies is a fundamental concept of cleantech, it is not the only one. The following table shows the different spheres that make up the so-called clean technology: The four domains of Cleantech257 Energy Transportation Biomass Battery Storage Combustible cell Electropropulsion Microturbines Vehicles with combustible cells Photovoltaic Hybrid-electric vehicles

255 Cleantech Group LLC 256 U.S. Patent & Trade Office; Collaborative Economics. http://www.uspto.gov/;http://www.coecon.com/ and http://www.usatoday.com/money/industries/environment/2009-12-09-california-leads-green-jobs_N.htm. Analysis byDiego Luzuriaga. 257 Source: The Clean Revolution; Technologies from the Leading Edge, by Joel Makeower, May 14-16, 2001, Global Business Network. More information on the site: http://www.nbis.org/resources/clean_technology/clean_technology_revolution_global_business_network.pdf.


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Wind Solar energy vehicles Ocean wave energy Stirling Motors Small-scale hydrostatics Materials /Construction Water Biologically based materials Biologically filtered water Biomimicking Distributed systems Green building Small-scale desalination plants Green chemistry Ultraviolet purification Phytoremediation Marsh restoration

III. A Panorama of New Clean Technologies Cleantech is a generic term that involves not only the developers of this technology, but also the potential users. In order to better understand who is who in this new technological sphere, one can make a series of helpful maps. The following figure shows us a map of classification of companies according to their relationship to cleantech. As seen in this figure, companies linked with clean technology can be classified into two groups: Map of Classification of Companies According to Their Relationship with Cleantech

Final Consumers: Companies that use clean technology but do not participate in its development. Developers: Companies that develop clean technology (or an application for said technology).

Companies

Final consumers Cleantech

developers

Large energy

consumers

Normal energy

consumers

New technologies Applications of new

technologies


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a. Final consumers In order to understand the strategies that cleantech final consumers can adopt, we can classify these companies in the following manner:

In this way, final users can follow three types of strategies:

Make Operations Efficient to Reduce Energy Consumption

In the first place, companies can employ cleantech to increase the efficiency of their operations and reduce their energy consumption, such as lighting, heating, and refrigeration. In many companies, this can be achieved through traditional means such as installing energy-efficient lighting and automated lighting systems, and modifying work schedules. A growing number of consultants have emerged in this sector to assist companies in identifying potential sources of energy savings. Amongst other services, they offer an analysis of the energy efficiency of buildings, assessment of new tendencies and regulations, development of environmental conservation measures in the company’s operations, and implementation of these projects. Certification for green installation has already appeared, such as Leed (of the U.S. Green Building Council) that measures the grade of implementation of factors such as sustainable construction, energy and water use efficiency, recycling policies, etc. Although these policies can have an interesting impact on the majority of companies, they will not make a big difference for large energy consumers.

Final consumers

Large energy

consumers

Normal energy

consumers

Heavy industry

(for example metals

and manufacturing)

Transportation

(for example the

airline industry)

Industrial

(for example food

and beverage

Commercial

(for example

services)


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Recondition Productive Assets to Adapt to Clean Technology

This point, although valid for all final users, proves vital to large energy consumers. In this context, for example, companies can invest in the development of their own installations of solar energy generation. In 2008, around 95,000 million dollars were invested globally in the development of new types of renewable energy generation for companies, in place of fossil fuels. This figure represents approximately 60% of the 155,000 million dollars invested in clean energy development in the world. The Clean Development Mechanism258 of the Kyoto Protocol deserves special attention. Under a system of incentives, companies can invest in greenhouse gas emission reduction projects in countries on paths to development, as an alternative to reducing emissions in their own countries that might prove less attractive economically. An excellent example is the French business group, Rhodia, which invested 20 million Euros to drastically cut gas emissions in Brazil and South Korea. This investment would not have been possible without the credit generated by the sale of carbon credits. At the market value of said credits, the size of the investment return was around 2000 percent. In this way, carbon markets constitute a fundamental source of financing for the installation of large renewable energy generation projects.259

Design Business Models with Low Carbon Emissions from

Beginning to End

This means identifying providers of low-carbon inputs, optimizing manufacturing in all stages, reducing energy consumption and waste (using renewable energy whenever possible). Similarly, this strategy requires redesigning the distribution chain, optimizing routes, avoiding packaging that increases energy consumption and waste, and considering the final recycled product. The chart below shows the relevant considerations for designing a sustainable business model:

Relevant Considerations for Designing a Low-Carbon

Business Model

258 http://cdm.unfccc.int/index.html. 259 Global Energy Network Institute (March 2006). The Clean Development Mechanism: An Opportunity for Developing Countries, A source of Profits for Smart Companies. More information available at: http://www.geni.org/globalenergy/policy/international/clean-development-mechanism/executivesummary-clean-development-mechanism-2006-03.pdf.


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Product Design

• Is it designed to last? • Will it need to be replaced soon? • Will it be obsolete soon? • Will it be easy to use? • Can it be repaired at a low cost?

Inputs

• Are the product’s providers ethical? • Are the raw materials energy efficient? • Are the materials easily recycled? • Can the materials be recycled from other products?

Manufacturing

• Is the manufacturing process efficient? • Can waste be reduced to a minimum? • Is there any unproductive time? • Is it possible to use renewable energy to carry out the process?

Distribution and Sales

• Is the distribution route design optimal? • Have steps been taken to minimize waste? • Does the product have unnecessary packaging that increases transportation energy?

• Do the vehicles have low carbon emissions? Recycling

• Is the product reusable in other markets? • Is it predicted that the product can be recycled into other products? • Will the company take part in the recollection and recycling of discarded products?

• Will the company contract recycling companies as part of its business agreement?


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In 2008, British Standards Institution (BSI) published a methodology to calculate the carbon footprint of any business.260 More and more frequently, a sustainable product implies sustainable processes from beginning to end.261 An interesting example is that of the UK’s Remarkable Pencils, which collects disposable plastics cups and recycles them into pencils and school supplies. The toy maker Lego and watch company Swatch are also known for using recycled plastic in their products.

b. Developers of Clean Technology and its Applications In the previous section, we saw three green strategies that cleantech final consumer companies can follow. Now, we will present the companies that develop clean technology and their applications. In order for clean technology to establish itself definitively, two things are necessary: 1) a viable technology; 2) the development of applications of said technology. Similarly, companies can be classified by the sphere of cleantech that they work in: energy, materials, transportation, and water. The following chart shows this classification and some examples of cleantech development companies. Examples of Cleantech Development Companies (not exhaustive – just referential): Sphere Cleantech Developers New Technology Applications Energy First Solar Acciona Energía Siemens British Energy BP Solar Gamesa Sharp Enercon Lagerway wind turbines Edenspace Vestas Materials Dupont Phytokinetics Cargill Novozymes Genencor Studio eg Transportation Shell Hydrogen Honda Hypercar Inc Peugeot Exxonmobil Toyota Avista Labs Cummins Engines Neah Power Systems Enova ZAP Vehicles

260 The carbon footprints is a measure of the impact provokes by human activities over the environment, according to the amount of greenhouse gases emitted, measured in terms of carbon dioxide released. In some cases, it includes emissions related to commercialization, transport and processing of products or services. Source: Secretaría de Ambiente y Desarrollo Sustentable de la Nación. 261 PAS 2050:2008 - Specification for the assessment of the life cycle greenhouse gas emissions of goods and services More information available at: http://www.bsigroup.com/en/BSIGroup/sectorsandservices/Forms/PAS-2050-Form-page/.


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Water Ionics Inc – GE Water American Water Corp. Hydromatic New England Waste System

New Energy Sources

Without a doubt, new renewable energy development, like solar and wind, is the primary focus of investment funds. The great majority of investments are linked with new electrical generation technology. Other portions are designated for infrastructure and energy efficiency. Between the two, they represent about 80% of investments in new technology, as shown in the following graph, which shows the primary beneficiaries of investment in new technologies for the State of California (2008):

Many of the companies that develop clean energy are new. Others, like Siemens and Sharp, are traditional firms, and have been investing in these developments for a long time. Considering this framework, the case of British Petroleum is interesting. In effect, this leading operator in fossil fuels has been investigating solar energy for decades through its offshoot BP Solar. The Spanish Acciona Energía, one of the global leaders in wind energy installations, is also looking into other renewable energy sources. The case of biofuels is already a reality for many companies. There are two types of biofuels: bioethanol and biodiesel. Bioethanol comes from sorghum, sugar cane, corn, and beets. Biodiesel comes from soybean, sunflower, and rapeseed oil. The fact that these energy sources use grains as inputs has created an ethical conflict. Many hectares once used for food production are now being used for combustibles production. This dilemma could be solved by using seaweed biodiesel, given that it does not compete for the same land. Nevertheless, for the moment, the technology has not been developed to produce it on a profitable scale. Perhaps the future will bring other types of biodiesel. The company Edenspace, for example, has developed a cellulose-based combustible fuel out of grains unsuitable for human consumption.


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New Materials

The companies that develop organic materials (or clean materials) constitute one of the sectors with the highest potential and receive an increasing proportion of all investments in cleantech. In this context biotechnological experts develop, among other things, cellulose fibers, bioplastics, enzymes, and polysaccharide. Huge companies, like Dupont and Cargill, already dedicate substantial investments to these technologies. Genencor, a company from the Danisco group, is one of the largest industrial enzyme producers in the world. One of the branches of organic materials is the phytoremediation, which consists of using plants to remove ground pollution. By using vegetables, bacteria, and mushrooms, these companies can clean their floors of arsenic, lead, and other contaminants. Similarly, they have developed sunflowers that clean uranium, trees that absorb petroleum, and mustard plants that absorb lead. Not all clean materials are in biotechnology. The American company Studio eg, for example, makes all kinds of furniture with recycled materials and minimal energy use.

Clean Transportation The technological area of clean transportation is very active and depends on a large number of participants. Today, nobody doubts that current automobiles, with internal fossil fuel-based combustion engines, do not have a long future (possibly less than two decades). New technology has appeared to replace them based in electric, hybrid, and combustible fuel cell (hydrogen, for example) automobiles. Nearly all major automakers are actively working to develop new generations of vehicles with low or no contaminating emissions. There are various alternatives of this type of vehicle.

• Hybrid Electric Vehicles or HEVs: These automobiles combine the advantages of traditional propulsion (gas or diesel) with electric motors – achieving greater power with less consumption. One example is the Ford Escape Hybrid.

• Plug In Hybrid Electric Vehicles or PHEVs: PHEVs are like basic hybrids, but they can also be connected to a standard current. One example is the Toyota Prius Plug-In, the first hybrid vehicle available in Argentina.

• Pure Electrics: These automobiles have lithium-ion batteries and a range of 120 to 150 km. For example, the Mitsubishi i-Miev.


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• Super Electrics: The automobiles are still prototypes and have lithium-ion batteries and can go as far as 500 km. For example, the Opel Ampera.

• Fuel Cell Vehicles or FCV: These automobiles work on combustible cells (eg. Hydrogen) that generate electricity to run an electric motor. This is the case for the Honda FCX Clarity.

ZAP Vehicles,262 a very innovative Californian company, has developed a fleet of electric vehicles that includes sedans, buses, and scooters. Similarly, Enova is a company that produces technology for electric, hybrid, and combustible cell automobiles.

Water Treatment Treating water to obtain clean water is the last of the large cleantech spheres. Within this sector are two important activities: the biological filtration to purify water and the recycling and reuse of water. Unlike other branches of cleantech, where many different companies participate, here there are a small number of players. One of the leaders in the sector is GE Water, which acquired Ionics Inc in 2005, an expert company in water purification, reuse, and desalination. One of the technologies developed for treating residual water is that of artificial dry marshes (PSA). Said technology can be used to treat water with heavy metals, urban waste leaching,263 radiation, hospital waste, petroleum wastes, and waste from the food industry, inns, and farms. New England Waste Systems264 is a North American company that has already completed these treatments in various places on the globe. One successful example is that of Puerta Ayora in the Galapagos Islands. Through their local subsidiary, this company installed a purification plant in the Burzaco industrial park in Argentina. In a little over a month, the plant reduced more than 85% of the key contaminants, supplying water that meets all of the provincial regulation requirements. What is most interesting is that this technology does not require any kind of energy; it is 100% natural and based only in phytoremediation. Therefore it leaves no carbon footprint.

IV. Clean Technology as a Vehicle for Development In order for new technologies to become massive, they must be economically viable. Unfortunately, this cannot be achieved overnight, or without effort. In many cases, today’s successful clean technologies carry decades of enormous

262 ZAP stands for Zero Air Pollution. 263 This is the name given to the liquid wastes produced by landfills based on the breakdown of organic materials as the product of rainwater filtration. 264 http://newsusa.web.officelive.com/default.aspx.


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investments. Investment in research has been and still is the driving force behind the development of these clean technologies and their applications.

a. Clean - but Economically Viable - Technology Like many other technologies, those linked with cleantech development do not demand great economic risk, particularly in reference to the market accepting it as viable technology. To do business with clean technology is not essentially different from any other business. For potential business to exist, two things must exist: supply and demand of a product or service. To transform potential business into real business, it must be profitable. Therefore, it is reasonable to ask the following questions: 1. Is there a demand for environmentally friendly products and services? 2. Can they be produced in an economically efficient manner?

Demand for Environmentally Friendly Products and Services

Through an extensive market investigation, a recent study published by MIT Sloan Management Review265 showed that users would be inclined to pay more for ethically produced goods – up to a certain margin. The notion of ethical production includes, among other concepts: favoring sustainable production of goods, using organic components, natural fertilizers, minimal energy consumption, and no child labor. This list is only referential, not exhaustive. The following is a summary of their investigation’s findings:

• Clients would be more inclined to pay more for ethically produced goods • Similarly, they would be inclined to penalize companies that do not produce goods ethically, demanding a lower price for their products

• On average, the penalty for not producing goods ethically is higher than the premium that clients would pay for ethically produced goods

• Companies do not need to be 100% ethical to be compensated by their clients

As shown, even if a person is conscious of the implications of unsustainable consumption, he or she would only pay a certain additional margin for 100% environmentally friendly products, even though they would demand lower price from those that produce in an unsustainable manner. The consequences of this analysis are immediate: products made with clean technology still find themselves competing with the price of products made with previous technologies in the market. The supply of environmentally friendly products

265 Does it pay to be good? By Remi Trudel and June Cotte; MIT Sloan Management Review, Winter 2009.


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would greatly increase with a lower price. With accessible and competitive prices, “green” products would leave the niche market and become a massive industry. There are other elements to consider with the demand for “green” products. In addition to the product’s benefits, there are other traditional components of the companies’ value proposition266 that these products must fulfill: availability, service quality, after-sale service, maintenance serviceability, performance, etc. A “green” product, as green as it might be, will not enter the market if it is inefficient, expensive, and not easy to maintain. As far as energy, society has generally been accustomed to use abundant quantities of energy (fossil-fuel based) at very accessible prices. The economic incentive to use new forms of renewable energy is very low. In fact, in a recent publication, a group of scientists from the UK’s National Academy of Science (Royal Society)267 demonstrated that gas and electric energy is too cheap to combat climate change, indicating at the same time that government policy cannot provide sufficient incentive to pay for green energy.

Economic Production of Environmentally Friendly Products

All technology and the products derived from it, whether sustainable or not, invariably require time to produce them efficiently and, in any case, to replace previous, already developed technology. To illustrate this idea, let’s take a specific example: photovoltaic energy, which is made by using solar panels that generate electric energy from solar energy. It is a classic example of renewable and non-polluting energy. In order to understand how this technology can end up becoming viable, we must remember a few microeconomic concepts. 1. Learning Curve: the idea that experience always leads to more efficient production with a better design, increasingly lower associated costs, and, consequently, products that are easier to sell. As solar cell users increase, producers and designers of the cells can learn from the users about the cell’s performance, including problems, and can more productively improve the design. 2. Economy of Scale: the larger the quantity produced, the lower the unit cost. This occurs because automatic processors are necessary for producing large quantities, and they are much more efficient in large quantities than in small quantities. In the case of solar cells, there are two implications. The first is related to the cell: the greater the cell’s generation capacity, the lower the cost per Kwh generated. The other is linked to the factory that produces the cells: the greater the quantity of cells produced, the lower the cost of each cell unit. Mass production greatly reduces costs.

266 Value proposition is the reason that clients buy from one company and not another. 267 http://www.guardian.co.uk/environment/2009/jun/29/energy-bills-green-technology.


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3. The Entire System of Goods and Associated Services: basic goods generate new business ecosystems that are mutually beneficial. For example, given the large quantity of installed cells, experts are needed to maintain the solar-based systems. Furthermore, complementary products, like batteries and inverters, are necessary for the system to function. Perhaps, when the technology is well developed and economically competitive, new applications will arise, like solar-powered toys. All of these new applications accelerate the technology’s establishment and the learning curve. In order for this technology to work, it requires solar panels formed by silicon semiconductors, in addition to batteries and other components. In order for it to be appealing, this technology must be able to generate good amounts of energy at a reasonable cost. The problem today is that the cost of generation per Kwh is still higher than its fossil fuel-based alternatives. However, the cost of solar energy generation is getting closer and closer to that of fossil fuels (see chart on the following page). It is estimated that towards 2018, solar energy will be cheaper than fossil fuel-based energy. 268 More optimistic estimates say that – in certain parts of the world – the cost of generation will be equivalent starting in 2010.269 Historic and Estimated Evolution of the Price of Solar Energy (in cents per Kwh)270

268 The Clean Revolution; Technologies from the Leading Edge, Global Business Network. More information available at: http://www.nbis.org/resources/clean_technology/clean_technology_revolution_global_business_network.pdf. 269 http://www.solarplaza.com/article/solar-energy-becoming-a-cost-effective-way-of-gene. 270 Source: US Department of Energy DOE; Clean Edge.


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b. Public Incentive Policies to Invest in Clean Technology Upon analyzing the behavior of different governments and their relation to clean technology, two paradigmatic cases stand out: Japan and Germany. Both are countries with the massive amounts of solar energy installation and are cases studied for their successful technological innovation. They are also the countries with the greatest number of companies dedicated to manufacturing solar cells. Both countries’ success in solar energy development can be explained by public policy. Both nations have maintained strong investments in the development and application of solar energy technology.271 Germany was characterized for its strong economic incentives for solar energy through reimbursements for homes that installed the technology. Japan, on the other hand, concentrated its efforts in minimizing the cost of solar cell manufacturing, and, consequently, the cost of generation. Because of those efforts, Japan is now home to a variety of companies with many years of experience that are experts in the technology and world leaders in solar cell manufacturing. The following graphs clearly demonstrate the effect of these public policies on the cost of solar energy generation. Average Cost of Residential Solar Energy Kit in Japan for a Typical Installation of 4Kw (vertical axis shows cost, from 0 to 4,000 Yen, and horizontal axis shows time, from 1993 to 2003)

As shown in the graphs (previously and on the following page), the costs of residential solar energy installation in both countries fell around 85%. A study by the Friedrich Ebert Stiftung Foundation showed that in Germany, each time they doubled they quantity of cells produced, the cost decreased by 20%.272

271 Soaking Up the Sun: Solar Power in Germany and Japan; Case Studies in American Innovation; The Breakthrough Institute, April 2009. 272 Solar Energy in Germany; Fundación Friedrich Ebert Stiftung; http://www.feslondon.org.uk/.


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Average Cost of Residential Solar Energy Kit in Germany for a Typical Installation of 4Kw (vertical axis shows cost, from 0 to 25 Euros, and horizontal axis shows time, from 1980 to 2007)

Although the fall in cost is notable in both countries, there is still a ways to go before solar technology is truly massive. In order to do so, the focus will have to be on public policy. In addition to the investments, governments have a battery of extensive public incentives to promote the use of clean technology. Namely:

1. Directly or indirectly ensure demand: for example, requiring petroleum companies to offer an increasing minimum amount of biofuels or establishing a minimum percentage of renewable energy in the energy grid. 2. Establish a carbon credit market and a cap for total carbon emissions: This forces companies that surpass the emission limits to compensate by purchasing carbon credits. 3. Subsidies: subsidizing the use of renewable energy or even the substitution of clean technology for contaminating processes. 4. Tax credits: for example, providing large incentives for companies and final users that invest in renewable energy to modify their active products or generate their own energy. 5. End subsidies for combustible fossil fuels

In a study from February 2009,273 the Deustche Bank analyzed the impact of a series of government policies on a global scale. The study counted at least 250 policies of clean technology development incentives in the world between July of 2008 and February of 2009. During said period, governments committed to invest approximately $200 billion in clean energy development and other technologies like green construction, improvements in the electrical network, public transportation, etc. In the case of the U.S., President Obama signed the

273 Global Climate Change Regulation Policy Developments: July 2008- February 2009.


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American Recovery and Reinvestment Act of 2009 into law in February, which included over $70 billion of direct spending and fiscal credits for renewable energy and sustainable transportation projects. Most importantly, the objective of these public policies should simply be to help create the market conditions necessary for new clean technology to find its place and become self-sustaining.

b. Cleantech and Capital Markets Business based in technology follows, in general terms, the market rules of any technology. In order for the technology to be successful, there must be long-term public policy with a clear sense and direction that combines the innovative role of universities, who form and provide incentives for entrepreneurs, who, at the same time, take risks to create something new, supported by the investors that believe their project has potential. Learning and the economic benefits are revived in new university courses and new business models with highly innovative technology. The capital market, therefore, plays a fundamental role in supporting high-risk economic enterprise through venture capital funds. These funds, characteristic of Silicon Valley (although not restricted to the region) often specialize in specific types of technology. Thanks to capital contributions, inventions can mature and transform into commercializable products that enter the market at prices that appeal to the final users. Finally, funds recuperate their investment (usually with profits) when companies that have chosen leave the market with an initial public offering (IPO). With this, they acquire the resources to finance new innovation projects. In this way, venture capital funds permit the existence of a vicious cycle, as shown in the following figure:

Virtuous Cycle Generates economic resources to sustain a positive feedback loop

Innovation

Design/

invention Testing

Launch

Consolidation

IPO/ sales


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Although cleantech investment has grown dramatically, its history in terms of IPO firms is still limited. In 2005, a wave of high profile IPOs arose, particularly in the solar energy sector (with the IPO of Sunpower and Suntech). In the last few years, the quantity of IPOs has also grown substantially, entering in a new series of clean technology industries, such as biocombustibles. Additionally, they have created a new stock-market index: the Cleantech Index (CTIUS),274 which has performed well in the S&P 500, Dow Jones, and NASDAQ. Currently, 78 companies are listed in the index, combining new companies with traditional firms that have invested in clean technology, like Siemens and ABB. The following graph shows the evolution of the CTIUS index:

Additional information can be extracted from the graph: beyond the relative success of cleantech companies in the market, they have not been able to avoid the crisis that began in October of 2008. This data is key since this technological sector, given that it is still in its beginning stages, continues to be very vulnerable to the ups and downs of the capital market – its principal source of financing. During the last trimesters, and for the first time since the boom in 2004, investments in green technology projects declined in two consecutive trimesters. In the last trimester of 2008, it fell 33% below the previous trimester. In the first trimester of 2009, it fell 44%. This can be explained, among other reasons, by the greater need for capital due to the decrease in sales, added to the incertitude of the market, and by the fact that investors wait to invest until they can see the whole market picture. In any case, private companies and governmental and investment funds, have made substantial

274 The Cleantech Index called CTIUS was created with a value of 500 at the close of markets on December 31, 1999 by Cleantech Indices LLC. It is a registered trademark of this company.


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investments in clean technology around the entire world. A recent study275 looked in depth at the investments made by all sectors and arrived at the conclusion that in the last 3 years, no less than $1,248 trillion dollars276 have been inverted in clean technology globally, as the chart below shows: Real and Promised Investments in the Green Economy (2007-2009)277

V. Conclusions

Business in clean technology is not only a reality today, but, furthermore, it has transformed into a profoundly active economic sector essential to human survival. As any other type of business, there are regulations, competition, and complexities that need to be confronted. Moreover, the new technology is no longer an eccentric and niche phenomenon, but now constitutes the market sector with the greatest potential. One way or another, all existing companies today will be affected by new sustainable technology that, sooner or later, will be the global common currency. In this context, there are some companies that are more vulnerable than others and, without a doubt, will need to have a strategy to adapt to the new realities. Even today, a strategic plan that doesn’t take this into account is obsolete.

275 Global Climate Prosperity Scoreboard; Ethical Markets Media: http://www.climateprosperity.com/. 276 One trillion dollars is equal to 1.000.000.000 dollars or 1x10 to the 9th power. 277 Source: Global Climate Prosperity Scoreboard; Ethical Markets Media. Analysis by Diego Luzuriaga.


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Public and private investments play a fundamental role given that they channel human research and creativity towards the pursuit of concrete and competitive results. This reality reinforces a well-known concept: the need for governments to generate favorable conditions for research and investment in new technology. Additionally, the state must fundamentally generate, through its laws, regulations, and incentive system, a coherent framework for the development of a sustainable economy. But this is impossible without a strategic plan at the national level. Because of this, as a study about the impact of new green technology explains: “The green economy is not linked with a group of new technologies fighting to survive in underdeveloped markets; on the contrary, it has to do with the potential of the new technology combined with innovative public policy and strategic investment that promotes the development of markets apt for the use of environmentally friendly products and services.”278

278 Clean Technology and the Green Economy, California Economic Strategy Panel, Collaborative Economics. More information available at: http://www.labor.ca.gov/panel/.


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Beyond the Environmental Ephemeris By Laura Rocha Journalist at the newspaper La Nación President of the Argentinian Association of Environmental Journalists Translated by Diane Eikenberry Executive Summary The importance of the environment is not yet reflected in the media. An environmental issue is still far from becoming a magazine cover or the principal story, now it is just enough to remember when it is the Earth Day, or when there was a natural disaster. Argentina suffers the consequences of not having state policies that are commensurate with the circumstances; in all regions of our country there are ample examples of how to squander and destroy our natural resources while officers and governors on duty look away. However, not everything is lost. The cause (and verdict) about the clean-up of the Matanza-Riachuelo basin has been a breath of fresh air amongst so much pollution. We hope it is not too late. Are the important issues present in the mass media? Are environmental issues present on them? Two questions with two identical answers: no. It happens that on the eve of the bicentennial, Argentina is a unique country whose analysis deserves a fine treatment, possibly including some medication. The media are part of a broader agenda that ends up reflecting the paradox that we know we know, but we pretend we don’t know. And 2009 was not an exception. Yet another year in which journalists are dedicated to environmental ephemeris has passed by. Conflicts with nature seem to never be resolved: the chronicles remember anniversaries of disasters or significant events that only remain in memory. An emblematic case is the almost eternal pollution of Riachuelo. Not even a verdict of the highest court managed to make officials adhere to the provisions of the National Constitution in its article 41 to ensure a healthy environment. It even seems like a paradox. Our country depends on its natural resources. Since its foundation holds the agro-export model and from there the possibilities of development. However, virtually there is no resource that has not been misused in these 200 years, which shows that, in the same way as in developed countries it’s hard to live in terms of sustainability.


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The difference is in the nuances. The same agro-export model, whose powerful sector generates revenues to state Coffers, uses a polemic herbicide such as glyphosate, rejected even by scientific granted by the government. Government supporters and opponents are tearing their hair out at the time when everyone is heading the government, to criticize the laws enacted in the 90s that allow exploitation of the subsoil in search of mineral with royalties that are not always conducive to Argentines. However, in the moment of the truth nothing happens: last year the partial approval of a controversial law to protect glaciers and peri-glacial environments was achieved. But amidst the fight over what to protect and what not to protect hides an alarming fact: Argentina does not have an inventory of these giants of rock and ice, water reserves for the future. Do we need a law to know the natural resources we have? Meanwhile, mineral exploration and exploitation projects go on in several provinces. And what once attempted nourishes the purest federalism today became a double-edged sword: it is that the provinces raffle their destination to the ambitions of the governor on duty. To halt this progress, two women appear who, just as quickly are processed by the judiciary. How quickly some cases process sometimes, I reflect. But the contradictions do not end there: the world talks about climate change and the media describe as critical weeks the last summit celebrated in Copenhagen. Using this criteria, do we understand that the world has lost? That non-binding agreements and the lack of adherence to the commitment by developed countries is a price too expensive to be paid by the planet? The global temperature increase is scientifically proven; there was even an attack to this theory: weeks before some papers and private messages were known that seek to derail the push for renewable energy, the better quality of life and the use of natural resources in a sustainable manner. But there is a good thing: more and more people resort to products that respect the rhythms of nature and friend with behavior contrary to those generated by constant consumption of goods. These changes can be viewed especially among children. I mean those that have access to education. Not, of course, those millions who have to walk miles to get their water or food rations. Nor those that are part of an army of environmental refugees who fear to disappear from the map when the water rises. Last year, in a demonstration of what could happen, the President of the Maldives held a submarine cabinet meeting. But you do not go elsewhere to discuss the effects of climate change: wet? Pampa lives it. Speaking of natural resources and commodities; fields that by the advance of desertification, caused by improper land use and changes in rainfall and temperatures, appear covered in sand. On the North, waters and mudslides go along without any bush to stop them, on the West, glaciers melting generates droughts that may result, at any time, in an energy crisis. Its not that the South is saved from these atrocities; we still have to see how much territory


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survive the advance of DDT to give way to cyanide and gold discovery. Protected or unprotected areas? And in the midst of this melange, are the journalists, tired of publishing promises and disasters. But environment is magnetizing, it has a knowledge we do not have, but it is damaged by ours. Because of that everything seems to move hypnotized without managing the plot and the suspense. In the media, it is almost absent because it has no story and no state, and cannot be easily understood. What I can say with pride, is that with the exercise of tolerance, perseverance and even obstinacy, sometimes I have found a space that allows me to fully enjoy the profession. This space I share with colleagues, with people, with fellow argentines, and it is the Argentinian Association of Environmental Journalists (AAPA). For ten years we have written about the history of the environment. The AAPA is entering its first decade of life. Reports and opinions without further commitment to the impossibility of its own, this year we celebrate in the imprecise world. We believe that not everything is lost. That there are things that can be changed, that we can do better. Eloquently and with the way of utopia that has been molded, the cause for the Matanza-Riachuelo basin sanitation has got the leading property of a light that can illuminate a coast. The emergence of the supreme court of the nation set an alarm that sounds. Although after the very prominent high court intervention, the reality again presented its soap opera side. Unlike the television ones, this one has no actors but the story of villainy is tasty, if not sadistic. There are no secrets The worst of the elements here is not how it is told in the media. The worst thing is that this is the mirror where look a complex web of complicity against a story that seems that from the state is quietly forgotten. A basin entangled in industries and economic and political ties with the searing poverty as a result of the referral. Protagonists of this true drama are millions of people that seen by others find that data that is distinguished in the indifference. There are seven inspectors for 3000 industries. A few bottles for collecting samples is not the historical reparations spoken of in the newspapers. We hope it is not too late, and that the complete lack of power of the National Secretariat of Environment does not conspire against a company, that is not impossible. What I am sure of is that the environment will be one day the news of the day, the principal or the special report in any medium of communication. I would like this to happen because the renewable energy revolution is up and coming; the production of clean and efficient cars; natural resources that are shared and respected and generate wealth in places where they operate. This may be a utopia in a country where “la Macondo” of Gabriel García Márquez materializes.


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The Evolution of Environmental Issues in the Media By Sergio Federovisky Biologist, Journalist specialized in environmental affairs Producer of the program “Environment and the Media” Current president of the Environmental Agency of the City of La Plata Translated by Claudia Christensen Executive Summary Ever since the ecological crisis became a reality - at least twenty years ago - journalism and the media have been principal actors in the role of educating the sovereign populace to rise out of the depression. In the same way history teaches us that the lack of education and information makes us slaves to those who expect to maintain their message and thereby their mechanisms of domination, the utilization of common spaces, shocking but meaningless slogans, and proclamations of “the responsibility of all” have been constant dissemination of information on environmental affairs. In the social and geographic scale of humanity, one cannot deny that we are heading towards an abyss. We are in dire need of a system of truthful information that can steer us, with neither alarmism nor banal slogans, to know the truth so that we can adopt collective, democratic, and effective decisions. The world faces an ecological crisis of unknown global proportions. Argentina suffers serious environmental imbalances, rooted in our institutions and manifested by poor environmental indicators at all levels. In light of poor results in terms of reverting the environmental catastrophes that afflict us, the big question is: has the media risen to the challenge and have the means that they have adopted to tackle this problem has been the most pertinent? An honest answer would be no. The media and journalists have not met the challenge, nor have “the powerful,” to adopt the term used by U.S. journalist Ross Gelbspan for those who have the power to influence our common future. However, a well-founded criticism of the present is the best way to approach the future with optimism.


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I. Introduction There are two ways to write an article about the evolution of the environmental discourse in the Argentine media. Although, in many ways, the same could be extrapolated to almost any country in which the media “discovered” this subject matter in the last twenty years and is currently battling between the politically correct and the interests they truly defend. One way to approach this matter is politically correct. From this perspective we could identify- and substantiate- the motives for which journalists shows increased commitment to environmental issues and his or her predisposition to consolidate the subject matter grows in direct proportion to society’s demand. In this sense, it is certainly possible to recognize that the penetration of environmental coverage in the media is growing and that journalists are continually more aware of their role in educating society, in order to promote environmentally friendly practices. From this perspective, communication is an irreplaceable step on the path towards happiness purported by sustainable development. This argument points out our current failures. But rather than adopting a pessimistic vision of reality, it pushes us towards a bucolic conviction that everything will be better in a positivist worldview of the future. Unfortunately, the lack of critical thinking on environmental matters tends to result in a superficial analysis which neglects or ignored the interests that are truly at play. It also strains, to an almost intolerable degree, the relationship between what the media depiction should be and what it truly is on issues with this level of importance. The other way to face this task is with the truth, though this may in fact be harder. This is not - as will surely be pointed out by some critic who serves the side of “good” - because of this author’s personal pessimism or his inability to see the far-off horizon in which the environment finally succeeds (because it is established to do so). On the contrary, this author is convinced that the best way to reach a good port is to recognize that the situation is bleak and that if we do not change the direction in which we are navigating the boat, the future will not automatically manifest itself as paradise. Quite the opposite, if we do not recognize the current state of affairs, we run the risk of becoming fanatics to some quasi-religious hope that will never transform itself into reality. This introduction allows us to start the article with its conclusions. For the author of these lines, the evolution of the environmental discourse has been marked by anything but progress. Beyond a merely quantitative analysis – which starts and stops with the sum of journalistic notes that can be classified as “environmental” - the coverage, commitment and concrete results of the environment in the media show a marked regression.


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If educating and awareness-raising are in fact the objectives of the media when informing the public of environmental problems, there is a straightforward way to measure results. This is the proliferation and progressive worsening of environmental problems. If, for at least last thirty years, the media have been signaling the massive social paradigm shift which is necessary to halt and reverse the harmful effects of humanity on the planet, is not the systematic deterioration of environmental indicators on all levels a clear symptom of failure? While it is clear that the media does not hold the maximum responsibility in finding solutions to the environmental problems of our day, we cannot deny that their function to date on the national scene has been ineffective, at best. Is journalism meant to reflect reality, or to find tools to fix it? If the answer is the second, journalism must assume some degree of responsible for a reality which not only is not improving, but which is actually getting worse.

II. Quantitative or Qualitative? The Slovene philosopher Zlavoj Zizek is one of the contemporary thinkers who is most listened to by European leaders interested in understanding the direction the planet is heading. While frightening, Zizek’s opinions are also well-founded when he says that the principle threat to capitalism’s victorious future is an ecological catastrophe. Recently, on the commemoration of the 40th anniversary of the events of May 1968, and after admitting that the economic and power structures of the western model were never really in question during the famous uprising, Zizek yet again qualified the modern environmental threat. He characterized it as a threat that hangs like a shadow over the victorious future of the market economy which believed that, after the fall of the Berlin Wall, it greatest threat lay vanquished. “The catastrophe approaches,” wrote Zizek in an article published in the newspaper El País of Madrid. Naturally, the good readership, which always wants to read or hear that the future will be better and that ecology will invariably claim victory, dubbed the article “pessimistic” for forecasted catastrophe. Our question: Do journalism or the media – based on the attributions and functions which correspond to each of these institutions in the world of communication - have any responsibility in the description given by Zizek? Are they responsible in any way for the assertion made by Nicholas Stern – the economist who wrote the work entitled “The Economics of Climate Change” on the request of Tony Blair – that “the climate crisis is the biggest market failure the world has seen”? Once more: if we measure the evolution of environmental issues in the media is purely by the quantity of references, our analysis is bound to be partial and biased. A large part of this news existed before; only it could not be classified with an environmental logic and fit better under the section of General Information or even Police Stories.


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There are two examples of this “evolution” which in truth respond more to the environmental dye that varnishes today’s reporting by giving solid treatment of the subject matter from the corresponding angle. One is a geologic episode, the eruption of a volcano, which has existed for thousand of years but today constitutes a dramatic environmental event. In 1991, less than two decades ago but an eternity, in terms of ecology in the media, the Hudson Volcano covered the Patagonian locality of Los Antiguos in ash. Then, it was nothing more than a tectonic phenomenon. However, in April 2008 the Chilean volcano El Chaitén let loose with a cloud of ash on the city of Esquel, and the catastrophe was considered more ecological than geological, to the point that the state official who traveled to Patagonia was the Secretary of the Environment as the result of media demand. The second example is the death of seven people in Avellaneda in 1993, when cyanhydric acid filtered through the grates of their house. This occurred after two murderers dressed as businessmen illegally dumped dangerous substances into the sewage pipes and chemical recombination produced the lethal gas. In other circumstances, “traditional” journalism would have treated this episode as an accident or a criminal matter. Nevertheless, it was given an “environmental” headline, and in good time. The question that remains is whether journalism and media should be credited for such treatment, or if it was simply the response to a social demand that seems to search for ecological threats and traitors to the environmental in nearly all incidents. Thus, perhaps media evolution should be measured not merely by the number of “environmental” articles, but rather the treatment they bring, the depth of their analysis, and their efforts to deconstruct the problem to find its origins and its cause, rather than offering up an apocalyptic sensation with a dramatic environmental tint. The problem is that this requires a serious and qualitative analysis, and we are unaccustomed to this. Climate change is undoubtedly not the most serious environmental problem on the local agenda, although it is both socially (subjectively speaking) and at an international level. For this reasons, it provides a good case for analyzing the role of the local media tribune in dealing with environment issues. At the beginning of last year, the Konrad Adenauer Foundation conducted a study on the impact of publications on climate change in Latin America’s principle newspapers. This study came at time when journalism’s influence could not avoid the then unblemished trend of attributing biodiesel as the final solution to the drama of global warming. “We believed it was a good contribution to the understanding of environmental topics in the media, to know with certain precision how Latin American newspapers are informed regarding climate change,” said Karla Sponar, the director of the Latin American chapter for “Media and Democracy.” The evaluation was surprising. While some


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might expect that climate change envelops us, journalistically speaking, and that, like in the time of Aldo Cammarotta and the golpistas, today everything is to blame for global warming, actually the Latin American media – and especially Argentine media - choose to deny it. The conclusion of the study “Climate Change in the Agenda of Latin American Media” is profound. In the words of the Konrad Adenauer Foundation’s own evaluation: “If there were no information and international conferences on climate, the phenomenon would be close to disappearing completely from the media’s agenda. This matter, which according to experts will soon effect the global social and political situation like nothing before, occupies few headlines in the regional press.” The agency, Global News, which carried out the study with financing from Konrad Adenauer, analyzed some four thousand articles in each of the major newspapers of Brazil, Mexico, Peru, Venezuela, Chile, Bolivia, and Argentina between February 15, 2009 and March 15, 2010. In only one case, La Jornada de México, did the amount of news on climate change reach 1% of the total. In others, such as the Venezuelan paper Últimas Noticias, it was 0.22% of 2,300 articles analyzed. In Argentina’s La Nación of 3,900 articles analyzed only 18 (0.46%) contained references to climate change and in Argentina’s Clarín of 4,100 articles only eleven (0.27%) mentioned global warming. One of the conclusions from the study should sound an alarm bell for the media. The very same media and journalists who in their columns point out that the resolution of environmental problems, such as climate change, depend on political will, are the architects of the following conclusion: “While in Latin America the question of climate change is found on the General Information page, in Europe and the United States it is in the Political section. Climate change is understood as a phenomenon that requires political resolution.” But since we have decided not to linger on the quantitative – which itself offers little encouragement – we must move on to a more qualitative reading. Of the total news stories published about climate change, 74% are explanatory notes and barely 2% cover information or investigations. Close to 50% cite academic sources or multilateral organizations while, notably, 17% cite no sources. This indicator climbs to 24% of articles in the Argentine newspapers surveyed that fail to cite sources in their coverage of the subject matter. When we say that the treatment of environmental problems is complex, it is because any environmental problem rigorously examined has its cause elsewhere, generally in the prevailing economic structure. In fact, to continue with the example of climate change, as signaled by Stern in his report for Tony Blair, global warming is a consequence of market failure in the capitalist system. It is therefore surprising that, according to the same study commissioned by the


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Konrad Adenauer Foundation, 69% of articles on climate change published in Argentine newspapers make no reference to the causes of this phenomenon, which is instead qualified as a global environmental problem. However, since environmental problems mask other interests - or, in any case, unmask them - a true analysis of journalistic treatment should be centered not on references to the necessity of doing something to overcome the problems and invocations of the claim that “we are all responsible,” but rather on attempts to decipher the interests that drive the current situation of ecological crisis. Wittgenstein said that the ecological crisis undermines “objective certainty,” the sphere of evident certainties regarding which, in our established “way of life”, makes doubt illogical. And Ross Gelbspan, the Pulitzer Prize-winning journalist for his book Boiling Point on global warming, stated that “a society which does not itself feel responsible for, guilty about or capable of solving the chaos, reacts with a functional indifference to the lack of commitment of those in power”. But do these ideas shape the way the media handles environmental issues? Or are environmental concerns editorialized for political correctness and permitted publication only in topics which do not prove determinant while other interests are defended? If we read the pages of agenda-setting newspapers closely, we will see that the Society section can expound criticisms, for example, of the drama of advancing deforestation, while the Economy section - where true ideological battles play out- continues to tout the benefits of lining the country with soy. If we adopt a more local perspective, there are a number of questions to be asked regarding the responsibility of the media for the environmental situation in Argentina, a country where all indications - quality of air, water, rivers, fishing stock, native forests, etc. - are in the process of permanent decline. For example, since the crisis of 2002 until now Argentina has been debating what to do with its mining resources. This is keeping in mind that multinational companies, who have exhausted every remaining mountain mineral vein, now come to pulverize them in order to separate out infinitesimal quantities of valuable minerals through a high impact chemical process. In 2003, a city called Esquel offered a lesson on how to adopt decisions that will alter - or may alter - an urban environmental project. Before the unsubstantiated promise of a large gold-mining development, the population of Esquel voted in a plebiscite which massively rejected the project and give place to a mega mining resistance movement - now massive and geographically extensive. This movement visualizes mega mining as extremely threatening to the environment and to preexisting agricultural or tourism activities. The non-binding plebiscite took place on March 23, 2003 and more people voted than ever before, even compared to mandatory elections. The newspaper Clarín wrote a chronicle that began by saying: “In the end the people won: paralyzing


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the mining project in Esquel.” One might say that this expresses the commitment of this media source with sustainable development, ecology, and pure air; another may purport that it expresses the commitment of journalism. But, conversely, we must ask ourselves the following: Had the result been opposite and had the mining project been accepted, would Clarín still have written “the people won”? With its distinct social composition, it is likely that if a similar plebiscite were held in San Juan – a province co opted by mining interests - the result would be the opposite of Esquel. In this case: Who would have won, the people or the mining industry? It is worth mentioning that even a superficial review of Clarín (like almost all the other national papers) shows us this paper’s attachment to the outdated idea – inherent to the notion of decadent growth - that mining is a one way road to progress. When this article was finalized, in the last days of November 2009, the magazine Viva from the paper Clarín helped clear up any misconceptions regarding this point. A monumental report occupied the whole cover, offering a detailed description of the mining project of the company Barrick Gold, in Veladero, San Juan. Here, we must highlight two important details. The first is that those who have access to reliable information single out Barrick as the principle lobbyist which pressured the Executive power to veto the national glacier protection law. The second point refers to the good fortune of Clarín journalists, who have had full access the inner workings of the Barrick project in Veladero. This is something no other media outlet has attained and some journalists – such as the author of this article, when working for the program Informe Central Por América TV - were actually chased off the premises by security guards. Surely, the privileged access of Clarín must be the consequence of its commitment to what “the people” want. And now that we have mentioned the glacier protection law, it is worthwhile to call attention national media’s treatment of this issue. First, without much depth of analysis, the presidential veto of a law that was approved unanimously in Congress was interpreted as an act of despotism, in part based on the fact that the media has very little sympathy for the current administration. But later, when the true interests behind the presidential veto were revealed and it became clear that the move had not been made to safeguard the government, the media fell into a noteworthy silence. Now the glacier protection law receives no media coverage. Another similar example is that of the Botnia case. With an interesting nose for things that interest the people, through not necessarily with sufficient journalistic rigor, on May 5, 2005 - five days before forty thousand people marched on the Gualeguaychú-Fray Bentos bridge and brought national recognition to the pulp mill conflict for the first time -Clarín headlined a story titled “Contamination in the River in Uruguay.” At this point, neither of the two


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pulp mills which generated the protest (Ence and Botnia) had advanced past the project stage. “The installation of two large paper factories on the Uruguayan shore of the Uruguay River has generated extensive and understandable concern based on the likelihood of environmental contamination” wrote Clarín and finalizing the article with an ominous - or perhaps volatile - affirmation of the “likely contamination”. As time goes on, few people keep tabs on historical positions so little attention was given to the noticeable shift of the media, in relation to what was previously correct. On October 19, 2008, by which time people the majority of readers had changed their attitude about the roadblock at Gualeguaychú, Clarín published an article entitled “Gualeguaychú: Air quality study said Botnia does not contaminate.” The interesting characteristic of this taxative statement is that it is not, and cannot, be sustained throughout the short text of the same article, which goes on to mention that “It is an incompletes study which was done by the UBA [Universidad Buenos Aires] last year. The university says that ‘it is irrelevant.’” The big question that any journalist would ask – and which would never pass a good editorial filter - is the following: Why publish a headline article in the Sunday paper with information on a study whose own writers characterize as “incomplete,” out-of-date, and “irrelevant”? Is that the new approach to independent journalism?

Another example is that of the company Papel Prensa (which owns and manages large paper mills that produce newsprint for Argentina). Clearly, no one is obligated to incriminate him or herself. It is nevertheless shocking to observe the superficial treatment and willful silence of the nation’s main papers in relation to information which stresses the contamination that is resulting from the obsolete plants. These firmly established papers are shareholders, along with the Government, in Papel Prensa and control the day-to-day workings of the company. It is clear in this case that the State is not innocent and that the government has used the issue more to pressure the media than to achieve “ecological justice.” On April 13, 2008 the newspaper Crítica de la Argentina published an in-depth article based on data from a study conducted by UBA about the contaminants discharged by Papel Prensa in the river Baradero, as requested by a public prosecutor and a judge. Once again, silence fell over media outlets, the same ones who permanently highlight their commitment to the environment. There are hundreds of examples of this caliber and the majority are the direct result of the advertising, ideological, or business arrangements (these three categories often fuse into one) of the major mass media groups. We can cite, for example, the case of a business originally called Forestal Andina, managed by the CEO of Roemmers, which decided to mock justice and the law by elevating a 25-kilometer embankment, blocking the course of the Iberá estuaries in a


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provincial reserve. Five court orders were issued - the last one by the Supreme Court - ordering the company to demolish the embankment for environmental reasons. This open defiance of the law received only isolated media coverage, and did not even mention Roemmers, who regularly contacted the media asking them not to publish anything on the matter. Or in the case with Shell, which continues to disobey the judicial order and the sentence against the company for the contamination of hydrocarbons underneath a gas station on the streets of Lima and Independencia, in the center of downtown Buenos Aires. In another case against Shell, it has been ten years that they have used loopholes and tricks to avoid a sentence and avoid the remediation of the largest freshwater petroleum spill in history, which discharged five million liters of crude oil along the coast of Magdalena in the Río de la Plata. (The media has, in the meantime, focused its attention on Prestige and Exxon Valdéz, companies which have been forced to battle with responsible states- Spain and the United States- which have demanded millions in compensation. Similarly, these companies have been scrutinized my serious journalism which has investigates guilty parties instead of asking them to buy ad space). Perhaps the axis of the matter lies in what is considered an environmental problem and how best to approach it. Also, discovering society’s view of these issues and whether communication professionals, journalists, and media interpret this message or use it to further their business interests. According to the results of some polls, Argentine society now catalogues as environmental problems issues that were previously considered in a different category: flooding is no longer a hydraulic question, solid waste management is not just a public service, and in terms of agriculture – with the assimilation of soy as a weed – this is no longer simply a question of production. In 2005, the consulting company Poliarquic did a nationwide survey for Fundación Vida Silvestre on “The Environmental Situation in Argentina”. In this report, one of every two Argentines felt that the environmental situation had gotten worst. This leads us to conclusions, which are neither contradictory nor mutually exclusive: that society’s subjectivity has begun to effectively incorporate environmental concerns previously ignored and that the notion of “an imminent catastrophe” is not the absurd result of the social imagination. As if to confirm that the vision of global apocalypse is not relegated to the world of Zizek and Stern, on a list of Argentines’ principle environmental concerns third place is occupied by climate change. This is curious, in a country whose greenhouse gas emissions are still insignificant in comparison with those of the first world and where there is still infinitely more suffering from contamination than from the consequences of global warming. This is also notable in a country


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in which, according to the discourse of media of politicians, the principle national environmental problem comes from outside territory: Botnia. The question is whether the media, journalists, and those who form public opinion, understand the message that the climate sends, the anomalous functioning of the planet and societal perception. In particular, some of these actors should take note that 38.5% of Argentines consider pollution to be the principle and most serious environmental problem, 25 points above floods and the previously mentioned climate change. And of course the national sport is to situate the government (in various instances) as the principle player responsible for the deplorable environmental situation in Argentina, the second, as seen by the habitants of this country, is business people. Part of media and journalists’ dilemma, when it comes to the environment, is the archaic mentality that continues to structure the discussion of alternatives. The media continues distilling the idea that progress is a priority and that environmental politics are obstructive to progress. It is for this reason that we constantly read, in the economic and political sections where the true ideological sentiments on the media are expressed, that what is needed is more investment in petroleum and nuclear energy, which are wrongly associated with independent growth. We never read that what the nation needs are investments and subsidies for the generation of wind power, an alternative that only appears as an invocation to the politically correct. On the contrary some, such as the president of Simmons & Company, who observe business with a bit more perspective, attribute the obscene value of a barrel of oil to its condition as the next resource to be exhausted. They also recognize that the state of the global environment may force a phase out of petroleum significantly sooner than the anticipated moment of its exhaustion. But, are politicians, opinion-leaders, businesses and the media tuned into this debate? Apparently, they are not. As Argentina suffers the effects of an energy crisis, discussion seems to revolve around how many more thermal power stations will be constructed (technology evidently contraindicated to climate change) or how much fuel will continue to be imported. There is no “educational” or “formative” treatment of what the energy matrix in Argentina will look like thirty years from now or how the country might adapt to a planet afflicted by global warming and the persistent demand to abandon fossil fuels. Yet sometimes worse than this conspicuous absence are slogans and the indiscriminant and undiscerning “purchase” of illogical concepts advanced by some sectors and repeated to the point of saturation by the media as divine truths. For the last fifteen months, the media has used the word biodiesel as a synonym for the ideal remedy to energy production without environmental


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effects. There have been businesses that advertised, that is to say invested in marketing, to promote the use or fabrication of biodiesel as the transition with no return to a green planet and an environmentally conscious society. But the love affair didn’t last long. So fanatic and poorly founded (some might say, opportunistic) was these assertions sound quite untimely when one reads, for example, an editorial in the newspaper El País from Spain which announces that “biodiesels burn”, in reference to the doubts raised by the food crisis on the role of biofuels in energy and environmental security. Similar doubts are raised upon reading analyses by the OCDE and the FAO, two organizations widely understood to be in favor of “progress”, concluding that a third of the rise in prices of food over the next decade will be the result of pressures from biofuels manufactured with grains.

III. Some Provisional Conclusions Someone may rightly proclaim that journalists do not necessarily need to become accomplices to the agenda of mass media. Nevertheless, it is hard to determine to what extent is it is possible to exercise complete liberty in the media outlets that, for lack of a better explanation, defend economic and political interests. It is clear that the most sane, and at the same time most fragile, link is the journalist. But it also seems clear that activism alone will not resolve this dilemma, although environmental activism is commendable in its own regard. Most likely these dilemmas do not require “one” solution, but rather a strategy for dealing with them successfully. And that is called professionalism. Above other interests, the media must be committed to telling the truth. In journalism, truth can be achieved through professionalism, the use of solid sources and of reliable, cross-checked information and other systems which help avoid false tendencies. A true evolution of environmental media - understanding evolution as a progressive advance and not merely the passage of time - will be achieved when professionalism wins out over interests. Until this happens, this cannot occur. The history of the environment is the history of failure, inasmuch one writes history after ecological dramas are unleashed and cannot be “cured”. The history of the environmental journalism does not have to be a history of failure. But that is in the hands of the media and the journalists who work with it.


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Investigation: The Environment in Graphic Media of Argentina, 2009 By Federico Sangalli Head of Press and Communication at FARN Translated by Tyler Schappe Composition of the Investigation During 2009, the newspapers Clarín, La Nación and Página 12 were monitored, revealing all of the environmental articles that were published in the printed edition of each newspaper. Objectives

• To analyze the treatment and space that the graphic media gives to environmental issues.

• To detect different characteristics of the articles: issues, coverage, priority and quantity, which allows for further monitoring projects and for the evaluation of the tendencies on a long-term scale.

Acknowledgements This investigation and its analysis would have never been possible without the help of Tyler Schappe, María Victoria Adam and Marina Salomon.

I. Introduction Over the past few years, environmental issues have grown increasing popular within the public eye and have started to gain importance. The reason for this sudden increase of coverage in the media and subsequent surge of public interest does not have just one answer, despite the fact that the frequency and magnitude of various natural disasters, to which can be added those caused by humans, have clearly raised alarm about the future of our planet. As a result, civil organizations, the population in general and, to a lesser extent, governments, have started to develop and work for a greater consciousness of taking care of the environment in which we live.


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In this sense, the media is a direct channel of information to achieve this objective and can also be used as a sort of ‘thermometer’ to measure the importance that these issues have in society. As a result, FARN decided to monitor three national newspapers throughout 2009 in order to reveal all of the articles related to environmental issues that were published in the printed editions of Clarín, La Nación and Página 12. Once all the information was collected, an analysis was done to determine the most important issues, the frequency with which the articles were published, the sections of the newspaper in which they were found and the sources that were used. Its important to note that the this investigation is only a sample, and that even though it may contain a panorama view of the environmental issues in the media, it should not be forgotten that it is a limited analysis. We have established maintaining this analysis from year to year as a goal in order to determine if the environmental issues are permanently and definitely etched into the media (and therefore in society), which themes are most important, how the articles are written, which sources are used, etc. With respect to this, we hope that the information drawn from the data and the analysis of this investigation is useful for civil service organizations like FARN and we are looking for a way to insert these issues into the media which will help environmental protection become a issue for everyone and one that we should all support and work towards.

II. Research Methodology To effectively monitor the newspapers Clarín, La Nación and Página 12 throughout all of 2009 (including Saturdays and Sundays), only the main body of the printed edition of each newspaper was followed carefully. In other words, the investigation did not take into account the supplements that are published once or twice a week, for example sections like Economy, Health, Classifieds, World Business, or Women, to mention just a few. Clarín, La Nación and Página 12 were chosen because all three are nationally distributed, mainly Clarín and La Nación, which results in an effective way to cover the news of the entire country, even though were are conscious that the articles that are published in the three newspapers have a strong concentration in the City and Province of Buenos Aires, giving less emphasis to news from other areas of the country. The incorporation of provincial newspapers in order to achieve greater coverage and to give more federal impromptu mark to the next investigation is a proposal and a challenge.


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The criteria for the selection of the articles that formed the analysis were the following: articles that referenced environmental topics, either at the local (City of Buenos Aires), national or international level. Articles that mentioned topics that involve the environment but have nothing to do with its protection or with governmental or non-governmental environmental actions were left out of the category of environmental topics considered in the investigation. The clearest example of such an article is the weather: articles about floods, droughts, storms or heat waves, except those that linked one of these natural phenomena with global climate change, landslides, or processes that are associated with said issues were not included. The same is true with a few other topics such as agriculture (harvest, production) and dengue. As a contrast, it was decided to include articles about paper mills since they deal with a topic that started as an environmental complaint and have since transformed into a more political than environmental topic through the months and years (because of the blockade of the route between Argentina and Uruguay). However, this particular issue was analyzed in great detail in the investigation and will be mentioned later. It is also necessary to mention the criteria utilized for the categorizing of the local, national and international articles. The local articles are those which refer to a topic that does not extend beyond a city or town, whether it be a measure taken by the government or, for example, a natural disaster (floods in Tartagal and their link to the landslides), to mention two typical cases. Articles that deal with more than one province or city, or with general actions that involve the entire country were placed in the national classification. Last, the international articles are those that mention more than one country, global studies or news about other countries.

III. Environmental News in the Media We start with the basic fact that during 2009, the three media sources chosen for the analysis published a total of 631 articles dealing with environmental issues, or 1.7 articles per day, 12 articles per week or 52 per month. Neither the quality nor the quantity of articles is the same for all three newspapers. On the one hand, Página 12 has a fewer number of pages than Clarín or La Nación, from which it follows logically that it will publish fewer number of articles during the course of the year. Nonetheless, looking at Figure 1, one can observe that despite having fewer pages, Página 12 published more environmental articles than Clarín.


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La Nación has given twice the amount of coverage to environmental topics as Clarín and Página 12, contributing almost 50% of all of the environmental articles published during the year. As a result, La Nación has published practically 6 articles each week, while Página 12, having less space, published 3.3 articles per week and Clarín took third place with 3.1 per week (see Table 1). Figure 1 Number of environmental articles published by Clarín, La Nación

and Página 12 in 2009: Percentages (total of 631 articles)

.

Table 1. Number of environmental articles published by each newspaper, by

day, week and month. 2009. Figures and total percentages.

Being the first of such investigations ever done by FARN, it is not yet possible to compare these results with other years because of a lack of data to determine if the number of articles published in the selected newspapers has grown, remained equal or decreased.


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Despite this, it is still possible to make other comparisons that show the importance that each newspaper gives to environmental issues. Therefore, the total number of articles published averaged per newspaper per day was divided by the number of environmental articles published, giving the percentage of environmental articles published in each newspaper. The articles in the sections of each newspaper in which no environmental articles were published, for example Sports and Entertainment, were left out so that the analysis had greater accuracy. The analysis produced percentages that were at least worth bringing attention to: in Página 12, 2% of the total number of articles that were published in 2009 were environmentally related, while in Clarín and La Nación, the amount was less, only 1%. These numbers show that clearly there is a long way to go for the coverage of environmental issues in the media. However, it should also be recognized that up until a few years ago, the environmental coverage was even lower, and with time, as was mentioned at the beginning of the analysis, the tendency seems to be that environmental issues are gaining space in the media and the curve should continue to ascend in the years to come.

IV. The Sections of the Newspaper As mentioned at the beginning of this article, the eruption of environmental issues in the media began quite recently. Nonetheless, the coverage that the various environmental topics received was very sporadic, reacting to evolving conflicts, summits, meetings or natural disasters. One of the first major global events was the Earth Summit of 1992 (Cumbre de la Tierra) in Rio de Janeiro, Brazil. Over the years, journalists have developed who specialize in environmental issues and, even though they are few, the trend seems to indicate that it is a branch of journalism that has a growing number of experts. These ‘specialist’ journalists have, over time, cultivated a growing amount of space within their work spaces, although they recognize that introducing environmental issues in the daily agenda of the newspapers for which they work is a difficult task and that it requires much work to convince the editors and production managers the importance of these issues.


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Figure 2: Total number of environmental articles published by section of the newspaper. 2009. In percentages.

As Figure 2 shows, the majority of the environmental articles were found in the Society and General Information sections. It is important to note that each newspaper titles some of the sections differently. One example is the “Society” section, which can be found in Clarín and Página 12, while La Nación uses the title “General Information;” in all three cases, the articles published in the sections are the same. Other than this difference, two conclusions can be drawn from the diversity of sections in which the environmental issues can be found:

• On one hand it is clear that environmental issues are “transversal,” meaning that they are interrelated with different social, political and economic issues. For this reason environmental articles can be found in sections such as Economy, World, Politics, General Information and Science and Health.

• Along the same lines, on some occasions environmental articles are not written by journalists who specialize in the field, leaving it to the journalist who covers the section of the newspaper in which it will appear. Because of this, in many cases the journalist in charge of writing the article lacks the necessary background and contacts, not only since it is a topic that he/she does not specialize in, but also because months can pass before he/she covers another environmental story.


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Continuing with the analysis, we can see that the section ‘Nation’ in Clarín and Página 12 is similar to ‘Politics’ in La Nación, with the difference that ‘Nation’ includes economic news since Clarín does not include a section devoted to economics every day. The environmental articles that were published in these sections dealt mostly with the conflict over the construction of the pulp mills on the banks of the Uruguay River, which with time developed from being strictly an environmental issue to a political and social one as well. Last, La Nación published 29 editorials throughout the entire year that dealt with environmental issues while Clarín published 5 and Página 12 published none. La Nación is interesting since it published an average of 2.5 editorials per month and looking at the editorials reveals an important diversity in topics, including climate change, glaciers, landslides, environmental regulation, waste management, the Riachuelo, contamination and water conservation.

V. Scope of the Articles 53% of the environmental articles that were published in the newspapers that were analyzed were of international scope while 24% were local articles and 22% were national. The fact that more than half of the articles were international ones is due to two categories, climate change and pulp mills. In the case of climate change, the articles that are considered international are those that mentioned global issues, while those that dealt with the repercussion of climate change in Argentina were categorized as national or even local when they included government measures/actions or consequences of climate change in particular cities. It was decided to consider all of the articles about pulp mills as international since the conflict over the construction of the pulp mills transcends the local and national scopes. Its repercussion is mostly due to the blockage of the Gualeguaychú-Fray Bentos border route that divides Argentina and Uruguay. Furthermore, it is worth mentioning that 59% of the articles published in the ‘pulp mills’ category were due to blockages of the route during January 2009, a popular month to take vacation in Argentina, and that an important number of argentine tourists choose uruguayan beaches as their vacation destinations.


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Figure 3: Total number of environmental articles by scope. 2009. In percentages.

In the case of the national articles, the category with the greatest number of publications was Landslides, which was designated as a national article because it alluded to the lack of enforcement of the national law of Protection of Native Forests and also because some articles were published as a result of the ‘Salas’ judicial case which has reached the National Supreme Court of Justice against the National Government and the province of Salta for the indiscriminate landslides in the jurisdiction. The category ‘sustainable measures’ came in second place, mainly with articles connected with the prohibition of plastic bags, measures to conserve and save water, and renewable or alternative energy projects. As can be seen in Table 2 below, contrasting with the international articles, which focus on two categories, the national as well as the local articles can be found in almost every category, which indicates greater diversification and wider coverage of the various environmental issues in Argentina. Table 2. Number of environmental articles published by theme, divided by international, national and local scope. 2009. Total values.


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Finally, it should be mentioned that in the case of local news stories, the two most cited categories were Riachuelo and contamination. An analysis will be conducted in the future in which will provide details as to why these topics are the most widely talked about among the national articles. ‘Conservation’ came in third place, which is reasonable considering the majority of the stories referred to the protection of green space or native species of various regions in Argentina.

VI. Ranking of Issues One method of analysis, which is very effective, is to look at the issues that had the greatest impact in the selected media sources. In order to draw concrete and indisputable conclusions, we decided to create two different ranking systems. On one hand, there are the articles by theme from all of the environmental news stories that were published in 2009, in which appear in first place Climate Change with 29% of the total, followed by Pulp Mills with 22% and Contamination, Sustainability Measures, Conservation, Riachuelo and ‘Landslides’ by a considerable amount. Before continuing the analysis of the data collected, it is pertinent to clarify that these categories include a variety of issues that were grouped into the same category. As a result, it is necessary to briefly describe the issues and what is contained in each category, as follows:

• Climate Change: Copenhagen Summit, government actions and analysis and projections of global warming

• Pulp Mills: all the articles about the conflict of the installation of the pulp mills on the banks of the Uruguay River; the blockages of the highway during the summer, the hearing of the Court of the Hague, reports about possible contamination, analysis of the conflict.

• Contamination: Articles that refer to contamination to water or air, including noise pollution.

• Actions for Sustainability: In this category are the actions taken that encourage sustainable and responsible consumption, for example replacing incandescent light bulbs for lower consumption, the usage of biodegradable and non-plastic bags, renewable energy sources.

• Conservation: Protection of plants, animals, green spaces and nature reserves. • Riachuelo: Articles about the Riachuelo River, the recovery plan that should be carried out and legal actions.

• Landslides and Deforestation: Enforcement of the Native Forest Protection Law and the floods of Tartagal that occurred in February of 2009, whenever the article links landslides with the flooding.


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• Actions: Complaints, protests or actions taken by government or civil service organizations.

• Waste: Two main themes developed: the collection of waste in the City of Buenos Aires and the disposal of 10 tons of batteries, also in the City of Buenos Aires.

• Other: Issues that appeared few times, for example mining, agriculture or breaking news.

Figure 4: Total publications by issue. 2009. In percentages.

As Figure 4 shows, Climate Change and Pulp Mills were by far the issues that appeared the most in the selected newspapers. On analyzing the total number of published articles in the Climate Change category, two variables should be kept in mind. The first is that it is proven that the large number of articles published about this issue is due mainly to the Global Summit of Copenhagen in December of 2009. To confirm the importance of the summit, it is valuable to note that out of the total number of articles published in the ‘climate change’ category, 47% mentioned the summit in Copenhagen. Furthermore, to analyze the total number of Climate Change articles, 90% referenced global issues while 7% mentioned national news and 3% were about local issues. These values indicate an undeniable tendency, which is that the issue of climate change has had a large effect because of the global event and also because of reports published by analysts and international organizations that foreshadow the effects of climate change on the environment in general.


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a. National ranking

The issues and percentages change notably upon modifying the variable of ‘scope.’ In this case, only the articles that referenced national or local themes were filtered, analyzed and ranked by category. Figure 5: Articles published at the national and local level by theme. 2009. In

percentages.

As has been observed before, the Climate Change and Pulp Mills articles were predominantly international, and their percentage of appearance decreased considerably by disregarding that factor. As a result of the fall of these two categories, the others logically experienced an increase in percentage. Furthermore, the percentage of other articles increased due to issues such as water or mining, which are in that category, having a greater weight in the total of all the national/local articles. In the case of the Contamination category, the issue of contamination of rivers, lakes and supposedly potable water in the suburbs of Buenos Aires were reported on various occasions. Articles about the noise level in Buenos Aires were also found in this category, mostly due to the chaos of traffic and the consequences that citizens of Buenos Aires suffer because of it every day. In the case of the category Riachuelo, the good news, despite the shame of having one of the most contaminated rivers in the world, is the amount of exposure that the issue has gained in the media. The sentence of the National Supreme Court of Justice on July 8th, 2008, establishing concrete steps for the recovery of the river, has gained regular news coverage. Unfortunately, in general, the news consisted of the fact that those steps have not been carried


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out, but the fact that it maintains a presence in the newspaper exerts certain pressure on those who must make decisions about the issue. Also, the World Bank has given $840 million US dollars to pay for the recovery process, which was announced in May of 2009. In the remaining categories, it is interesting that Landslides is tied for fourth place in the ranking because of two interconnected issues: the floods that occurred in Tartagal in February of 2009 led to the association of the disaster to the apparently similar “natural” landslides of the region. The complaint about the lack enforcement and implementation of the Native Forest Protection Law, which had been sanctioned by the National Congress more than a year before, shared fourth place.

VII. The issues and the months On average, 52 environmental articles were published per month in the three newspapers used for the analysis, but looking at the quantity of articles published per month, we see that January, February, July and December stand out from the rest. Figure 6 shows clearly that the peaks that occur in these particular months has a concrete cause. In January, the issue of the blockages of the route due to the conflict of the pulp mills on the Uruguay River captured the attention of the media. Even though the blockage was maintained throughout the entire year, as we have already mentioned, January is the most popular month to take vacation and, as a result, a large number of argentine tourists travel to Uruguay by car. This is one of the main reasons that the blockage of the route received much more publicity than in other months.

Figure 6: Publications by month. 2009. Totals.


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In February, the flooding in Tartagal initiated the landslide problems in the north of Argentina. Upon investigating in the media the causes of this terrible tragedy, the civil service organizations were able to bring to the public’s eye the lack of enforcement and implementation of the Forest Protection Law, which was approved a few days later. The one year anniversary of the sentence dictated by the National Supreme Court of Justice about the contamination of the Matanza Riachuelo River was in July. As always, these anniversaries tend to be used to balance the accomplishments, the pending issues and the challenges. Finally, the 15th Conference of Parts of the UN Council on Climate Change (COP 15) in Copenhagen was in December, which had important coverage in the media in general and, obviously, in the three newspapers selected for the analysis. The negotiations held before the event already foreshadowed a summit that was going to be tense and provided a reserved prognosis in terms of the final agreement. That, plus the presence of President Obama and the pressure on developed countries to arrive at an agreement resulted in media coverage that lasted throughout the entire event.

VIII. Conclusions As with every analysis, the glass can be seen as either half-empty or half-full. We have already mentioned a number of times in this report that this analysis is only a sample and therefore the data collected and the opinions presented should be taken as a general panning, and never decisive. Nevertheless, it is possible to take conclusions from the findings. There are no doubts that environmental issues in general have gained relevance that was unheard of years ago. The coverage that the media gave to the COP 15 in Copenhagen was adequate for the occasion. The summit was held from December 7th to December 18th and during those days the three newspapers each published one article per day about the latest developments of the negotiations. 14% of the total number of environmental articles published during 2009 were about the Copenhagen Summit, which clearly shows the importance that the issue had for the argentine media. These numbers demonstrate that environmental issues have gained value for society in general and, in particular, for the media. It is also certain that if there had been no flooding in Tartagal and no blockage of the border route to Uruguay because of the pulp mill issue, the number of environmental articles published in the newspapers would have been notably less. These two issues alone accounted for 25% of the articles that were published in the newspapers, which when added to the 14% of the articles published about the COP 15 in Copenhagen add up to 39%. In other words, practically 40% of the total number of articles published in the selected


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newspapers were due to an issue that was more political and social than anything else, whether an environmental issue (pulp mills), a natural disaster (Tartagal) or a global meeting (Copenhagen Summit). If it weren’t for these three issues, there would have been only one article published per week in each newspaper instead of 12, or, in other words, 32 total articles instead of 52 published per month in 2009. All of these numbers show that even though there is a long way to go and that environmental issues have gained quite a bit of ground in the past few years, they still haven’t been able to take a definite place in the media. It is up for debate if now is the time for “environmental” issues to be given an entire section of the newspaper, which should inevitably go hand-in-hand with greater training and commitment towards these issues on the part of journalists, editors and publishers.


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The Work of the Environmental Law Clinic of FARN – An Analysis of Cases By Agnès Sibileau and Gabriela Vinocur Professors of FARN’s Environmental Law Clinic Translated by Courtney Miller Executive Summary This article reflects part of the work carried out by the students and assistants of FARN’s Environmental Law Clinic over the course of the 2009 year. This clinic was created by and functions through the Framework Agreement of Cooperation, Technical Assistance and Complementation signed between the Faculty of Law of the University of Buenos Aires (UBA) and FARN, in 2006. Thus, the authors have chosen to give three examples of similar cases with distinct approaches. The first consists in the preparation of an environmental appeal (amparo) for legal protection whose principle challenge resided in the necessary teamwork with a lawyer in Chubut, who is currently advancing the process with several of the parties involved. The second case describes the accompaniment of a group of residents to participate in a public hearing convened by the Government of the City of Buenos Aires. The hearing dealt with a project that would severely affect the use of public space. Some of the students expressed their opinions in this hearing, converting it in a genuine exercise in citizen participation. The last case refers to the search for a solution to the possible environmental contamination generated by a swimming pool factory in the municipality of Tigre in the Province of Buenos Aires.

I. Introduction The article from FARN’s 2009 Annual Environmental Report described the work done by the Environmental Law Clinic. From a theoretical perspective, it attempted to convey the clinic’s objectives, its methodology, and the challenges presented by the daily work of providing legal counsel. That being said, this year we have provided the opportunity for the students themselves to describe this. The intention of this article is to present and analyze three cases brought before us, leaving the development of each case to a group of students who assumed the responsibility of devising a legal strategy with which to address it.


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It is important to emphasize that one of the objectives of the Environmental Law Clinic is the generation of a space of learning which is propitious for the production and construction of knowledge, training students so that they can efficiently apply this knowledge in daily professional exercises upon graduating. In attention to the complexity presented by the environmental cases in general, it should be noted that this work is carried out in an interdisciplinary fashion. Although we are working to build a network of professionals from other disciplines, in each situation the students made use of all of their abilities to analyze and deal with these conflicts. Finally, we would like to comment that, in relation to the role of the lawyer, our ultimate goal in every case is to help to seek and construct solutions. The consultants (plaintiffs) often arrive only after consulting with a number of other organisms, full of questions and with the belief that a suitable response does not exist in this legal field. Therefore, as professors and lawyers we have proposed to form a team that is sufficiently capable and flexible, with the critical ability to address environmental conflicts from all possible sides.

II. The Sewage System and Sewage Treatment Plant of Carrenleufú, Chubut Province By María Laura Castillo Díaz, Amalia Faut, Verónica Fuente and Pablo Luis Schatz

a. Description of the case Beginning our final year of legal studies at the Faculty of Law of the University of Buenos Aires, the students of the Environmental Law Clinic had the opportunity to form part of a legal team which provides free counsel on environmental matters. This opportunity, offered by FARN, appeared like Manna from heaven to us, as students who already had special interest in putting our knowledge about environmental law to use, in order to guarantee the protection of the right to a clean environment and promote truly sustainable environment. In the Clinic we received various consultations, but the case presented here piqued our interest in a particular fashion. This case, brought to us by the residents of the rural town of Carrenleufú, a region situated in plain view of the Andes in the province of Chubut, raised a unique problem. The town, home to 300 people and with invaluable touristic and scenic value, had recently been chosen by the provincial authorities to be the beneficiary of a plan to sanitize household sewage outflows. To carry out the plan, a treatment plant would be installed in the town over one of the banks of the Encuentro River, a river shared with the Republic of Chile, which demarcates the periphery


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of the region. The project, which was satisfactory to the inhabitants of Carrenleufú at first, has turned into a source of anguish and complaint. This is due to the fact that the site chosen by the authorities for the location of the treatment plant is situated at an alarming proximity to the urban area of the town. Some of the inhabitants of the town noted that, as in many of the settlements of Argentinean Patagonia, the principle activities of the region are linked, directly or indirectly, with tourism and agro-ecological production. The same inhabitants were worried that these industries would suffer negative consequences if such a plant were installed in the epicenter of the town without adequate consideration of its socio-environmental impact. For these reasons, and out of concern for sustainable development of the region in the future and for the social, economic, and environmental impacts the town could suffer, some of the residents of Carrenleufú contacted the FARN’s Environmental Law Clinic, seeking advice on the means to channel their complaint and to determine legal strategies to address the problem. For our part, the first step to gather sufficient information on the various techniques in existence for the treatment of sewage outflows. This investigation, which highlighted the interdisciplinary approach necessary for environmental problems, led us to consult specialized engineers and technicians. All of them agreed that the topic in question, although quite complex, should rely on certain basic principles or “best practices,” as in any discipline. According to these best practices, adequate consideration of the unique physical, topographical, social, and environmental characteristics of the area in which the treatment plant is to be located is essential. Said consideration should be materialized and manifested through a complete and self-sufficient Environmental Impact Study (EIS). An Environmental Impact Study is a document that analyzes, in framework of current legislation, the possible consequences of a specific project on the humans, flora, fauna, and natural resources of an area. Through the elaboration of said document, the possible impacts are compared to the situation prior to the project. An EIS should also contemplate the mitigation measures that will be implemented in order to curtail negative effects on the environment, as well as future management monitoring plans, in the case of projects with sustained effects. According to Ramón Martín Mateo, an Environmental Impact Evaluation should be conceived of as “a participatory procedure for the previous consideration of the environmental consequences of a foreseen decision in the sphere of public law.”279

279 Mateo, R. (1992). Tratado de Derecho Ambiental. Madrid: Editorial Trivium.


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According to the local legislation of the province of Chubut,280 the EIS should be subjected to a public scrutiny in a special hearing convened for this purpose. If no observations or objections are received, or if these are rejected on reasonable grounds, the authority of application will dictate the order of approval, and will consider the Environmental Impact Evaluation process finalized. Although we had little previous technical knowledge on this class of project, a preliminary analysis of the EIS presented by the company led us to certain conclusions. We noted the conceptual insufficiency of the study, which more closely resembled a publicity brochure than a deep and complete analysis of environmental impacts and the measures for their mitigation. In the case in question, and with the advice of an engineer from Chubut, we concluded that the EIS had not adequately defended the need to establish a project of this size and impact; neither had it evidenced an argument that was sufficiently relevant to justify the selection of the plant’s presumed location. Prior to our arrival, the residents of Carrenleufú had made various presentations to diverse public office in order to obtain information related to the project and to formulate complaints. Faced with the lack of response from authorities, and with attention to the fact that construction was scheduled to commence immediately, the legal strategy that we considered to be the most appropriate was that of an amparo, along with a judicial injunction, demanding the immediate suspension or paralysis of building plans until the fundamental question was addressed by the court. This strategy would safeguard the right to a clean environment and quality of life, since damage to the same was considered imminent. The legally protected good -a clean environment—is inherently complex and difficult to repair, once it has been altered or damaged. Therefore it is important to emphasize that preventative and precautionary measures take precedence in environmental matters. These principles emphasize the need –and establish the possibility—to act in an anticipatory manner to prevent damages which are imminent to the environment. Aware of the town’s prevailing need to obtain an immediate solution to the existing sanitary problems related to the treatment of mentioned outflows, we could not help but take not of the numerous irregularities surrounding the proposed project. With the clear conviction that it is better to prevent than to cure, and conscientious of the urgency of the situation, we, the students of the Clinic, invested our energy in drawing up the written version of the appeal for legal protection, after investigation of the facts and legal precedents on the matter. 280 Law 4032 published in the Official Bulletin on January 9, 1996


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In this judicial writ we challenged the Environmental Impact Study based on the poor foundations in its analysis and questioned the location of the chosen site for the treatment plant. Our objective was not solely to attack one project in particular; we also looked to contribute to putting a stop to the form in which the authorities manage the natural resources of our nation. Furthermore, we supported the principle that a rational, integrated, strategic, and consensual management of the elements that compose the environment should be mandatory. After arduous days of collective work, with revision and coordination by our professors, we gave the final written version of the legal appeal, which placed equal shares of responsibility on the Province of Chubut, the Local Government of Carrenleufú and the firm responsible for the design of the management of the sewage outflow treatment plant. Here we must advance a brief reflection on the political implications of matters related to collective goods and collective rights. In the case analyzed here, an administrative decision that put a determined public policy in practice was challenged. From the start it was apparent that these types of matters, particularly in small towns, foster conflicts of interest that are often manipulated by local political powers. For this reason, the denouncement brought forward by the residents required a certain dose of courage on their part in order to confront a scenario that could potentially instigate social conflict when taken before the judiciary. Finally, and with the support of a local lawyer, the demand was presented in the month of October 2009 before the Judicial Power of the Province of Chubut. Shortly after this, the acting magistrate granted legitimacy to the injunction and ruled favorably on the precautionary measures that we had requested. Thus, the project was suspended and is on preventive hold at the moment. It remains to point out that the matter is being processed before the Criminal Justice of Esquel.

b. Precedents. Interest for the Clinic The case presented facets of a certain complexity. On one hand, it implied that constitutionally guaranteed rights, such as the right to a clean environment and the right to work and exercise all lawful forms of industry, as well as the quality of life of the residents and the collective in general, had been violated. On the other hand, the lack of adequate planning and rational management of natural resources were evidenced and have become evident in our country. The possibility of investing public income into planning for the future seems, in the case presented to us, to disregard the real and concrete necessities and problems of the community. Even if the public authorities had to comply with the determined figures, it was through capricious actions that did not take factual reality into account, which is that which should grant the directives of action


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with respect to management. Regarding the matter, it worried us that the project was attempted in spite of the plans for the town to become a touristic destination, categorized previously by its own authorities as the “Route of Good Living”. Given that one of the objectives of FARN is the protection of collective rights to a clean environment and since it is very involved with the design of adequate politics of governance, we considered that the case was not just in the interest of the Clinic, but that it implied questions of a greater amplitude that stimulated the investigation of diverse aspects of the sustainable use of natural resources. Under analysis, the case presented itself as a theme of complex facets, constituting a substantial challenge for us.

c. Perspectives Along with providing an extremely valuable experience for our career as future professionals, the case of “Carrenleufú” allowed us to materialize the will to do something to address a reality that was in urgent need of positive changes. The possibility to think and work in a concrete form and as a group in order to protect what we believe to be a legal, strategic good and a fundamental right has allowed us to feel that we have in our hands the possibility to make a difference. Understanding that one can contribute as an individual to the protection of the vulnerable and that his or her contribution can be strengthened by group and interdisciplinary work is a truly inspiring revelation that motivates one to continue working. In our case it will be the protection of and quest for a clean environment which permits human development through sustainable and rational management so as to protect present as well as future generations.


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III. “Santos Dumont Case. City of Buenos Aires. Green Spaces”

By Enrique Olceze, Lucas R. Figola and María Inés Gesteira

a. Description of the case A group of residents of the neighborhood of Chacarita of the Autonomous City of Buenos Aires281, alarmed by the growing activity in an area delineated by the streets Jorge Newbery, Rodney, Concepción Arenal, and Guzmán, decided to turn to the Legal Clinic of FARN. The objective of the consultation was to investigate the legitimacy of a project of the government of the Autonomous City of Buenos Aires that consisted in the opening of a street within said area and the extension of the street Santos Dumont. The concerns of the residents revolved around the following matters: a) Possible violation of the Code of Urban Planning282, ignoring the legal procedure required to carry it out; b) Lack of consultation of the residents, the majority of whom, during the development of participatory budgeting, had expressed support for the creation of a sports center that was never constructed and c) Lack of consideration of the situation of the neighborhood of Chacarita, which is among the neighborhoods with the least percentage of green space per inhabitant.

b. Interest for the Clinic It is well known that although there exists a growing demand for green space in urban areas, this demand is typically not attended to by the responsible officials, who often design the public policies of the City without taking into account the necessities of the inhabitants. In the analysis of this case, the Legal Clinic considered that the situation described violated article 41 of the National Constitution and article 26 in concordance with the Constitution of the City.

c. The Facts In the year 2005, the Executive Power of the Autonomous City of Buenos Aires, by means of the administrative file N° 15.915/2005 “PROYECTO DE LEY: DISPONESE LA APERTURA AL USO PÚBLICO DE LA CALLE SANTOS DUMONT ENTRE LAS CALLES RODNEY Y GUZMAN” (Legal project: ordering that the street Santos Dumont between streets Rodney and Guzman be opened to public use), initiated the administrative steps to make the stretch of land 281 Formed principally, but not exclusively, by the Civil Association Friends of the Reserve of the Andes, and also by different residents of the area. 282 Conf. Code of Urban Planning, Law 449 of the City of Buenos Aires and the zoning of the area corresponding to a District UP (Urbanization Park)


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between the streets Rodney and Guzmán, of a total of 17 meters in width, available for public use. On March 26, 2008, the document was sent to the Legislature of the City, under the file N° 411-J-2008. In said occasion they were received by the Parliamentary Secretary and then given to the Urban, Transit, Transport, Culture and Works, and Public Services Planning Commissions. At the request of the Commission of Urban Planning, the Executive Power of the City sent the file to the Legislature, integrating all of the factual and legal precedents that complied with the file N° 15.815/2005. Within these acts was a technical report in which the motives for the initiative were extensively developed. Subsequently, on September 16, 2008, the Commission of Urban Planning advised the approval of the initiative. In the following days, the other commissions of the Legislature assigned to the project gave their approval as well. On December 4, 2008 the project was approved, respecting the text sent by the Executive Power of the City, in accordance with that established in articles 89 and 90 of the Constitution of the Autonomous City of Buenos Aires.283 On the 23rd of December of 2008, the Parliamentary Secretary ordered that the act be sent to the General Direction of Management and Citizen Participation. On April 20, 2009, the President of the Legislature of the City announced the decree to the Public Audience, which would take place on June 10, 2009 in the Legislature building. The announcement was directed to everyone with an address in the Autonomous City of Buenos Aires that had invoked a right, a simple interest, a diffuse interest or an interest of collective incidence related to the theme. Also, it signaled that one could examine the act and enroll to participate in the Audience of the General Direction of Management and Citizen Participation of the Legislature. On the agreed date the public Audience took place; there the residents of the neighborhood of Chacarita, assisted by members of the Legal Clinic, had a role of active participation. There the diverse motives and foundations in opposition to the project were expressed. It became apparent that the Government of the City did not appear to pursue the general well being of the public and that it discretionally abused its faculties. On the other hand, it was highlighted that the project could only be executed once the Legislature had given its final approval of it.

283 Article 89 of the Constitution of the A.C.B.A. says citizens have the procedure to take the following subjects and their modifications twice: Code of Urban, Environmental, and Building Planning; imposition of names on public sites, dissociation of buildings of public domain and of the disposition of these, among others…Likewise article 90 of the cited legal body also establishes that the procedure of double lecture has the following requirements: Prior dispatch from the commission which includes the reports of the organisms involved; initial approval of the Legislature, publication and a public audience meeting in a period of 30 days so that those interested can present complaints and observations; consideration of the complaints and definitive resolution by the Legislature…; and also imposes the limitation that no governmental organization can grant exceptions to this procedure and if they do so they will be invalid. Basically, the procedure of double lecture has as its fundamental principle the participation of the citizenry regarding governmental decisions; it is one more tool that the sovereign citizen has to control and access the decisions taken by his or her representatives.


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The Government of the City took no notice of the arguments made by the residents and by the students of the clinic. During the moment of celebration of the Audience, the works had already been begun and had been practically finalized. Then, with the tranquility that impunity offers, the formal procedure for the realization of the project began. Analyzed from the view of administrative law, the conduct of the Government of the City constituted a non-legal recourse; this is, a material behavior of the Administration that, through coercion, implements its discretion without any type of control. On the other hand, it is worth pointing out that although the Public Audience is not of binding character, the considerations there should be taken into account by the Legislature. Likewise, and in virtue of republican principles, the dismissal of these considerations should be made with worthy foundation. Finally, in a second meeting of consultants and with the ample participation of the residents and members of the Clinic the archive of the project in this commission was given, moving towards the other commissions implicated in the treatment of the project such that each issued his or her office to the effect of being elevated to the building in its final treatment. Although the process has not yet concluded, the residents advised by the Clinic presented their proposals to the authorities.

d. Conclusions and Proposals A strict comittment from the general population is necessary so that the governing structures and public officials that represent us act within the framework of the law. It is very important that the citizens become involved in the use of the various tools and mechanisms of control and citizen participation, such as the public audience or participative planning. Among the ideas expressed by the residents to solve this conflict are:

a) Make the stretch of Santos Dumont between Rodney and Otero two-way: in this block there is little traffic, except for cars involved in accidents and the patrollers of the station N° 29, who can park in the parking lot of the Park los Andes.

b) Utilize the existent installations destined for a sports center. A proposal was made for the construction of a covered swimming pool for the eleven elementary schools in the zone that do not have physical space for development.

c) A space of cultural development: The installation of a library or place of artistic expression would be of great utility.


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With all of this we want only to demonstrate the diverse options the authorities have to employ a public space that involves us all in an adequate manner and with the participation of the citizens in making decisions.


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IV. Contamination by fiberglass waste. Municipality of Tigre,

Province of Buenos Aires By Tamara Carrera, Karina Varela, Diego Oliveto y Juan Pedro Cano

a. Description of the case In the month of August of 2008, a group of residents of the Municipality of Tigre, Province of Buenos Aires, presented themselves to the Legal Clinic of the Environment and Natural Resources Foundation (FARN). Their principal objective was to assess the environmental impact that they feared was being produced by a company that manufactured swimming pools made of plastic. Their greatest concerns were due to the fact that in the process of manufacturing the pools the company used elements and substances such as fiberglass, acetones, industrial resins and solvents, which have a high potential for contamination. Once all of the necessary facts were obtained in order to undertake the search for a solution to the matter, it was decided that the consultants would make a presentation before the Federal Attorney in charge of the Federal Attorney Unit for the Investigation of Crimes against the Environment (UFIMA). In this unit, the consultants succinctly described the disturbances and health problems that the residents faced daily due to being in permanent contact with the materials used in the manufacture, operation and treatment of the products manufactured by the company in question. Also, in the note reference was made to the actions that had been developed against municipal, provincial and even national organizations, which we will later describe in detail. Through said writing the prompt intervention of the organization was required so that the exhaustive and pertinent investigation could proceed, and consequently to guarantee the constitutional right of all of the inhabitants to enjoy an environment that is clean, well-balanced, and apt for human development (article 41 of the National Constitution of the Republic of Argentina). Immediately after the presentation on January 22, 2009, the UFIMA intervened in the case, proceeding to send official letters to all of the organisms concerned with the matter, so that they would ratify facts proportioned in the inquiry initiated and elaborate reports of technical, scientific importance. The investigative work included taking photographs of the piece of land in which the factory was installed as well as of the entire surrounding radius so as to be able to assess the direct impact on the surrounding neighborhood.


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Furthermore, a Risk Map of the affected zone was made, for which a questionnaire about the illnesses suffered after the initiation of the activities of the company in question as well as the increase in conditions suffered previously was elaborated. Through this a homogenous result was sought that could determine prima facie the direct link of the manufacturing activities with the problems suffered by the residents. The results, at the time of writing this article, are in the process of examination. Nonetheless, on February 3, 2009, the Municipality of Tigre sent an invitation to the consultants requesting attendance at an Audience of Community Mediation. It must be clarified that said method of conflict resolution lacks a binding force and that which is expressed in the prosecution of a posterior judgment cannot be used nor given to the knowledge of third parties as the content of these meetings is considered confidential. For this reason, we limit ourselves here to comment that, finally, the stage of Community Mediation carried out in the headquarters of the Municipality of Tigre concluded without an agreement among the parties. In any case, the owners of the factory had offered to take greater measures of security, hygiene, and mitigation. Yet, some of the residents viewed the definitive closing of the factory as the only solution to the problem. After analyzing what happened, we consider that although Community Mediation is a process that can generate positive results, in this case, as it involved a collective interest, perhaps a wider-reaching facilitating authority would have been more productive. However, the UFIMA continues to investigate the matter with the purpose of providing the necessary measures in the case of determining irregularities within its sphere of competence to act. In relation to such matters, all of the documentation that demonstrated the adaptation of the company to the new legal environmental parameters was required of the company. The updating of said legal requirements acquires a great importance, in the same way that it acquires the control that the official organisms should take over said readjustments.

b. Precedents The case in analysis began on January 19, 2001, when the consultants sent a note to the provincial deputy at the time, Sergio Massa (currently mayor of the Municipality of Tigre) which asked for his intervention in relation to the damage caused by a factory of swimming pools installed in his neighborhood. The letter was signed by dozens of residents angry with the situation in which they were forced to live. The letter solicited his collaboration with leading politicians, since said collaboration was not perceived by the Municipality and its functionaries.


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Similar letters were sent to the Secretary of Environmental Policy of the Province of Buenos Aires and to the President of the Block of Councilors of FREPASO. The residents were then assessed by the Foundation Pro-Tigre and Cuenca del Plata. During the following years, the Undersecretary of Environmental Policy made inspections of the offices of the consultants, following their complaints made with the objective of verifying the presence of strong odors emanating from the neighboring factory. On July 23, 2007, the consultants made a complaint against the Delegation of Ecological Prevention and Dangerous Substances dependent on the Legal Unit of Investigations of the Party of San Martín. In this complaint the consultants established the harmful presence of liquid and gaseous flows coming from the factory, and requested the immediate intervention of the organism to end the alleged contamination. During the year 2008, the consultants gave written presentations before the Defense Council of the People of the Argentine Nation, the Provincial Organism for Sustainable Development (OPDS), and the Administrative Division of Tigre. All of the notes urged the functionaries to collaborate for the reason that individual and collective environmental rights established in article 41 of the National Constitution of the Republic of Argentina could be violated in the case. Also, new inspections were made by the Secretary of Environmental Policy of the Government of the Province of Buenos Aires in the office of the consultants. This opportunity was used to inspect the particular fiberglass in suspension, whose existence was denounced on various occasions, and which would cause the presence of dermatitis in a high percentage of the population surrounding the factory.

c. Comparative examples at the national and international level Firstly, it is feasible to make a brief reference to the consequences that the use of fiberglass has on human health. It directly affects the respiratory system, generating pathologies related to pulmonological illnesses, such as: irritation of the nose and throat, difficulty in breathing, severe cough, inflammation of respiratory pathways. It can also cause dermatological conditions, with dermatitis being the most common. This is provoked by direct contact of the fiberglass particles with the person’s skin and through clothing or shoes. Therefore, it is advised that handlers of this material wear appropriate clothing that covers 100% of the body, including the eyes, which can also suffer irritation upon contact with fiberglass. Medical studies are currently being done at the global level on the possible carcinogenic effect of the material on humans. The contamination damages the health of individuals in different ways depending on the level of exposure to the contaminants, the individual’s


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capacity and his or her physical resistance. However, depending on these factors, one responds to the contamination of air in three ways:

• Rejection: coughing and sneezing • Physical exhaustion • Specific symptoms or illnesses

On the other hand the extreme complexity it takes for medical personnel to determine the direct link or causality between the presence of fiberglass in the atmosphere and the development of the cited pathologies is noteworthy, since there always exists the possibility that a medical symptom could be due to various environmental factors. As an example, we can cite several cases of contamination by fiberglass particles in suspension. This is due to the utilization of the material in the manufacture of a vast range of products, from swimming pools, dog houses, fiber sheets for roofs and office interiors, and filters, to the bodywork of ambulances and patrol cars. One of these examples occurred in the Teaching Center of Moreno Torroba, Spain. In said conservatory, hundreds of people who worked and studied there daily suffered symptoms and deterioration of health, such as: irritation of nose and throat, dermatitis, inflammation of the superior tract, and headaches as a consequence of the formaldehyde present in the fiberglass that covers the roofs of the classrooms and offices. The poor state of the fiberglass sheets supporting the roofs produces a constant rain of particles of this material on the people that work there. It has been scientifically proven that formaldehyde produces the same effects as asbestos, or the future consequences of direct exposure to the carcinogenic material. Facing this imperative situation, the workers of said educational institution presented a complaint against the National Director of the Public Foundation and the General Director of Human Resources, demanding the immediate removal of the fiberglass sheets, their substitution with other materials that did not put the health of the people at risk, and requiring that the institute be given continuous ventilation, natural or forced, for the purpose of protecting the health of the workers and students.284 Also, we can mention another comparative case at the international level, which occurred in the Commercial Institute of Panama, whose roofs incorporated fiberglass as an isolating material. In the year 2007, the Ministry of Education of Panama decided to replace the fiberglass platforms in the roofs in the athletic gyms of educational institutions. The inadequate removal of the platforms caused the detachment of the fiberglass of which they were composed. This directly and immediately contaminated the atmosphere of the educative

284 “Trabajadores de un conservatorio con problemas de salud por exposición a contaminantes” Format: PDF/Adobe Acrobat – Published in: http://ccoo8.trimedia.es/servlets/VerFichero?id=3008, 28/02/2008.


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community present in the area, with the effects of the particles in suspension: difficulty in breathing and irritation of the eyes and skin. Due to the damage caused to the educative community, the Assistant National Director of the Environment of the Ministry of Education of Panama decided to temporarily close the institution in order to develop a method to clean it and to replace the platforms with new ones composed of polyethylene, called Eliow, that would not affect human health as they lack contaminating properties.285

d. Revised proposals, trends and/or perspectives The air can be contaminated by a wide variety of particles. In this article we referred to fiberglass as a possible contaminant of internal and external spaces, as it has a heavy impact on the health of surrounding residents, such as in the operations of the company that manufactures swimming pools with fiberglass as its primary material. Here we are in the presence of particles in suspension (aerosols) of mineral origin and of solid character. To prevent the health problems that this material can produce in those that ingest it or simply enter in contact with it, we suggest a series of measures to take. In respect to the workers and operators that work with fiberglass, it is recommendable to use protective garments and equipment, particularly for protection of the skin, respiratory pathways, and eyes, such as gloves, masks, protective lenses, industrial suits, etc. Said materials should be dealt with by obligation in an environment sufficiently large enough so that the particles dispersed within the work establishment can be absorbed and transferred to a special basin in which they are immobilized and later properly treated for their final disposal. The most important part of the process is to avoid that the fiberglass particles filter outside of the work establishment, as this would produce the effects described throughout this article. To this end, we consider that it should be obligatory that the handling of this material always occurs within a closed environment that includes mechanisms of absorption and immobilization of fiberglass particles, in accordance with that written previously. Regarding the urban and socio-political aspects, we can say that currently in the Province of Buenos Aires and especially in the suburbs of Buenos Aires, the environmental management of the land is not consistent with that provided by article 8 of the Law 25.675 (General Law of the Environment). In this sense, the category of “mixed residential” currently predominates in the majority of the municipalities. This is to say that within the urban “mixed residential” area, residential houses and industrial establishments of the first and second

285 “Clases en aulas peligrosas”, Article published in the newspaper “la Prensa” of Panama, Sunday, January 13, 2008.


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categories can exist side by side, bringing about the conditions for socio-environmental conflicts such as those addressed in this article. For this reason, we understand that another method of avoiding this type of conflict is that the municipal governments, along with the national and provincial governments, adopt the corresponding measures to respond to their legal obligations and as such incorporate principles of sustainable development, implementing urban zoning codes that divide the territory according to its characteristics and separating the residential zones from the industrial zones.


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Environmental Governance and International Cooperation: The Situation of Argentine Social Organizations By Leslie MacColman Director of Institutional Development at FARN Translated by Dafne Regenhardt Executive Summary Since its creation in 1985, the Fundación Ambiente y Recursos Naturales (FARN) has adopted an approach that promotes good governance and sustainable environmental management as two essential and inseparable elements of the public good. Twenty five years after its foundation, our organization continues to work towards the protection and sustainable management of the environment through policy, law and the institutional organization of society. Nevertheless, the international context has profoundly changed, and, to accompany these changes, FARN has undertaken a similar path of transformation. For the same reason, it is necessary critically analyze of the prevailing context which constitutes our working environment, in Argentina and the rest of the world. In this sense, we must explore the recent tendencies of international cooperation for civil society organizations (CSOs), like ours, and to reflect on the relationships between environmental governance, cooperation and CSOs. From this vantage point, we can present a critical view - not necessarily discouraging - about the long path which still lies ahead. This article has multiple goals. First, we will present the theoretical and practical basis upon which we can affirm the necessary linkage between environmental governance and OSCs. Next, we will introduce the notion of international cooperation, as a mechanism of strengthening and support for improved environmental governance, analyzing its contributions at a national and regional level, identifying tendencies and reflecting on the challenges they present. Based on this diagnosis, we will finalize with a number of recommendations for the government, international donors and the community of OSCs which we form part of.


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I. Social Organizations role in environmental governance The concept of Environmental governance links two main elements of the public good, political institutions and shared resources. In traditional definitions of environmental governance we can find a “state-centric” approach which places its emphasis on the sum institutions, policy tools, financial mechanisms, laws, rules and procedures that regulate the use of natural resources286. Nevertheless, recent literature offers a wider definition that contemplates not only the State, but a diversity of other actors, including the private sector, non-governmental organizations and community organizations. Based on this constellation of forces, we can view environmental governance as “the resolution of environmental conflicts through the establishment, reaffirmation, or transformation of institutions of government”287. From either of these two perspectives, environmental governance represents an important political and administrative challenge because natural systems are dynamic, pressure on them is increasing and conflicts surrounding their management abound. Environmental governance calls for a legal-institutional arrangement that allows us to bridge the inherent tension between the protection of nature (based on its intrinsic value and as a provider of environmental services) and the satisfaction of human needs (of present and future generations). In other words environmental governance is a means towards the ultimate goal: sustainable development. When we speak of environmental governance we invoke certain ideals of political consensus, rule of law and a public administration system capable of responding to the needs of all citizens. To this, we add the axis of sustainability that emphasizes the primacy of nature as an economic-productive source of society and basic means of survival. In a country like Argentina, where democratic institutions are threatened by inefficiency, corruption and lack of adherence to the law that creates large gaps between what is said and done, this discussion is not minor. But in this panorama, what is the role of social organizations?

286 See “Global Environmental Governance: A Reform Agenda” de Adil Najam, Mihaela Papa y Nadaa taiyab, 2006, international institute for Sustainable Development (IISD), Available at: http://www.iisd.org/pdf/2006/geg.pdf. 287 This definition comes from the article: “Environmental Conflicts and institutions as Conceptual Cornerstones of Environmental Governance Research,” whose author, Jouni Paavola, also affirms that “this conceptualization suggests that the choice of environmental governance institutions is related more to social justice to economic efficiency, and implies a greater degree of public participation to ensure its political legitimacy”. Article available at: http://www.uea.ac.uk/env/cserge/pub/wp/edm/edm_2005_01.pdf.


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Environmental civil288 society organizations (CSOs) fulfill several functions in relation to environmental governance and their contributions occur at all levels (local, provincial, state, national and international). Faced with such a multiplicity of organizations and specific approaches, it is worthwhile to focus on those niches that are most critical in the national context. In the following pages, we will explore certain functions, such as: 1) the generation and transmission of knowledge, 2) the innovation and incubation of new models, 3) the representation of sectorial and social interests, and 4) the external control of the state. We will explore each of these functions in relation to the issue of environmental governance. We will see how they are manifested globally and, in particular, we will analyze the situation in Argentina.

a. CSOs as Generators and Transmitters of Knowledge Over the past 25 years, CSOs have emerged with force as agents of change, to the extent that they have been able to generate new knowledge and transmit this knowledge to society. The institutional mission and goals of many CSOs are aimed at research, training, education and/or public awareness-raising precisely because what they seek is to transform reality and people based on the introduction of new ideas and behavioral change. Such organizations have a double role in terms of environmental governance, since they produce independent analysis which feeds into public decisions and act as distribution channels to educate the public about their rights and obligations with respect to the environment. The contribution of powerful ideas developed by CSOs in the recent discussions on environmental governance is not wishful thinking, but fact. In the case of the COP 15 on Climate Change, held in Copenhagen in December 2009, the number and quality of contributions from CSOs in negotiations on REDD (Reduction of Emissions from Deforestation and Forest Degradation) was overwhelming. As detailed in the latest edition of the “The Little REDD Book”, published in 2009 by Global Canopy Programme289, out of 32 proposals under consideration by the

288 When we speak of CSOs, it is important that we do limit ourselves to the traditional definition of professional Non-Governmental Organizations (NGOs), but include also those social groups that share certain characteristics associated with their mission and non lucrative purpose, their constitution and voluntary membership and their conduits for participation. Therefore, this definition encompasses not only NGOs and also many social movements, neighborhood assemblies, informal organizations and other groups. 289The Global Canopy Programme is itself a clear example of the contribution of CSOs to building better environmental governance. GCP is defined as “an alliance of 37 scientific institutions in 19 countries around the world, which aims to contribute to the conservation of forest cover as well as education and research on the subject. Currently three of our major programs - science, policy and forest finance – aim to define and explore the range and economic value of the services rendered by forest ecological systems and share our findings with the authorities in the governmental and financial sectors”. The Little REDD Book is available at: http://www.globalcanopy.org/themedia/file/PDFs/lRb_lowres/lrb_es.pdf.


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United Nations Framework Convention on Climate Change (UN-FCCC), 19 were submitted by countries and 13 by non-governmental organizations (NGOs). At the same time, CSOs’s knowledge is not only used to influence public decisions, but also to train and inform people about environmental issues. Large environmental CSOs290 often have more than one million members, who regularly receive updated information, and they play an important role in the community and academic training. In the case of educational programs, environmental CSOs often fill gaps in the educational system, bringing environmental messages to the classroom in order to reach the upcoming generations. In Argentina, there is a network of environmental CSOs with a trajectory of work in research, training and dissemination. The information and material they produce is frequently consulted by the government, universities and the general public.

b. CSOs as innovators and incubators of new models A second contribution of social organizations to environmental governance is their ability to innovate and test new socio-environmental models, in a manner which is flexible, creative and appropriate to the local context. In many cases, the characteristics of CSOs (as opposed to the state, which tends to be more bureaucratic and centralized) allow them to generate creative solutions to socio-environmental problems, responding to the needs of the population and facilitating the sustainable management of resources. In Latin America, for example, several mechanisms of Payment for Environmental Services (PES) have been created, whereby the assignation of economic value to the services provided by forests, watersheds and biodiversity (carbon sequestration, water purification and diversity genetics, respectively) is transformed into periodic payments to their owners. This allows said resources to be conserved or managed in a sustainable manner, rather than exploited. Such PES mechanisms, although they have required state support, have often emerged from and been managed by CSOs, since they require flexibility and local knowledge. In best case scenarios, such as Costa Rica, the innovative models generated by CSOs are later incorporated into the state system where they can be formalized, expand and achieve continuity. A local example of the importance of CSOs in the incubation of new models is the work of El Ceibo, a cooperative of waste collectors in the City of Buenos Aires. El Ceibo was born as an answer to marginalization and poor working conditions in the urban poor - or so-called “cartoneros” (cardboard collectors) - who depend on waste collection for their income. Considering the serious

290 Just to give some examples, we mention the International Union for Conservation of Nature (IUCN), The Nature Conservancy, WWF, Natural Resources Defense Council and Greenpeace.


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environmental problems posed by waste in Buenos Aires, El Ceibo works to vindicate the recovery and recycling of material as a means for sustainable waste management. An ally of FARN, the joint work of our organizations is detailed in another article. However, it is worthwhile to note here that the new link between social justice and environmental sustainability exemplified by this work is the kind of model we refer to when we affirm the role of CSOs in environmental governance.

c. CSOs as Representatives of Sectorial and/or Social Interests

CSOs from all around the world give voice to different interests, such as human rights, health, education or economic-productive growth. For socially marginalized groups, the importance of CSOs is undeniable, as they provide a bridge and a channel to express the needs that otherwise would not be reflected in public decisions. In the case of the environment, the role of CSOs is even more striking based on the simple fact that nature cannot speak for itself. The pioneers of the environmental movement in the United States acknowledge this dilemma and, after several decades of work, were able to position themselves in the public debate as the voice of ecosystems and endangered species. Today, there are literally thousands of organizations dedicated to the protection of the environment and the promotion sustainable development, but not all of them adopt the same strategies. In the United States, organizations such as The Nature Conservancy, The Sierra Club, Conservation International and World Wildlife Fund work on a global basis, collaborate with governments and the private sector, and even receive funding from them to implement their institutional projects291. Others, such as Birdlife International and Wetlands International, adopt a similar methodology but on a more bounded topic292. On the other hand, there are also groups like Earth First! and Greenpeace USA that prefer to use mass media campaigns, public protests and acts of civil disobedience to spread an urgent message about conservation. Earth First! renounces to the conciliatory tactics used by the “professional” organizations previously mentioned, criticizing the influence of corporate interests on their institutional priorities and questioning their legitimacy as spokesmen of the environment293. More subtly, Greenpeace USA makes his position clear, saying that “in the exposure of threats to the environment and the search for solutions, we have no permanent allies or enemies. We ensure our financial independence

291 See the following we pages: the Nature Conservancy- http://www.nature.org/, the Sierra Club- http://www.sierraclub.org/, Conservation international - http://www.conservation.org/, and World Wildlife Fund- http://www.worldwildlife.org/. 292 See: Birdlife International - http://www.birdlife.org/ and Wetlands international- http://www.wetlands.org/. 293 To read more, see Earth First!- http://www.earthfirst.org/.


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from any political or commercial interest”294. Between CSOs committed to collaboration and CSOs committed to direct action there are deep ideological and strategic differences. But should any approach be prioritized over all others? We don’t think so. In FARN, we recognize that democratic deliberation requires a plurality of actors to operate and lead to political decisions that take into account the multiple needs of a complex society. If environmental CSOs (in The United States or Argentina) represent different interests - as well they should- the existence of conflicts between them, regarding the form and substance of their mandate, is entirely natural. In this context, our challenge is to find ways to channel these conflicts effectively and build alliances around the most important issues and those which are absent from the political agenda. This is where we find the largest national deficit. In Argentina, a multitude of different environmental CSOs295 struggle to elevate their demands to competent authorities and bring about changes in public consciousness. This is something positive. There are several examples of successful collaboration between ideologically heterogeneous organizations, for example the alliance between Greenpeace Argentina, Fundación Vida Silvestre Argentina (FVSA) and FARN which contributed to the passage and subsequent regulation of the Native Forests Law296. Similarly, it is worth mentioning the joint work of the organizations to confront the threats of pollution, overfishing and destructive fishing in the South Atlantic Ocean. In this regard, the Forum for the Conservation of the Patagonian Sea and its Areas of Influence (Foro para la Conservación del Mar Patagónico y Áreas de Influencia) gathers and coordinates the efforts of more than 15 environmental institutions, generating a tangible and significant contribution towards the sustainable use of marine resources and biodiversity conservation297. However, fragmentation among environmental CSOs is also visible and, sometimes, the lack of dialogue makes the recognition of shared objectives difficult. As organizations, we are all born from the same public concern for more sustainable policies and practices for the environment and for future generations. We should not expect our environmental movement to crystallize

294 “Core Values,” from the web page: http://www.greenpeace.org/usa/. To read more, see the general web page of Greenpeace USA - http://www.greenpeace.org/usa/. 295The Secretariat of Environment and Sustainable Development (SAyDS), based on numbers from The National Center for Community Organizations (CENOC) records no less than 870 environmental organizations across the country. See: http://medioambiente.gov.ar/?idseccion=211. 296See the article “The Law of Minimum Standards for the Protection of Native Forests: Analysis of its elaboration and current challenges”, pages 359 to 377 at “Annual Environmental Report 2009”, available at: http://www.farn.org.ar/informe/informe2009.html. 297 See official web page of “Foro para la Conservación del Mar Patagónico”: http://www.marpatagonico.org/.


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into a monolithic block, nor should we lose sight of the ideological foundations that give us a reason for being. But we must be practical, respectful of our differences and willing to seek common ground. Above all else, this means committing ourselves to strengthening the democratic system which, at least for FARN, must be the cornerstone for a sustainable national project.

d. CSOs as Agents of External Control of the State The final contribution of CSOs to environmental governance that we will explore here is external control. Perhaps more than any of the activities mentioned above, this point it is worth to be highlighted since it is an international trend. We do well to recognize that the globalization of recent decades, increased since the fall of the Berlin Wall, has created a system of international trade never seen before. This system, together with population growth and excessive consumerism among the wealthiest segments in all countries (including Argentina), has led to over-exploitation of the planet’s natural resources and consequent environmental degradation. The power of corporations has grown, while that of the state has shrunk. Without entering into a critique of neo-liberalism itself, it is worth mentioning the problems associated with an incapacitated public sector in relation to environmental issues, especially in countries where the desire for short-term economic growth and the imbalance of power between the State and the Private sector systematically leads to unsustainable development policies. The question arises, what is the role of CSOs? In almost all nations, the weakening of the state has not only been accompanied by the growth of the private for-profit sector, but also the nonprofit sector. Moreover, the last 30 years have seen the creation hundreds of social organizations dedicated to external control of both through “watchdogging”. Watchdog tactics applied to companies gained strength in the late 1980s, when organizations from Great Britain carried out a series of campaigns against companies linked to the South African government that supported the apartheid system. These organizations recognized that in order to dismantle apartheid, international pressure should not be limited to the political interests, but should generate an impact on commercial interests. They were right. Since then, the same watchdogging tactics implemented by environmental organizations have led significant achievements for the environment. Among others, it is worth highlighting the work of Oxfam to promote the sale of socially just and ecologically sustainable coffee, the campaigns of Rainforest Action Network (RAN) against the sale of illegally harvested timber and the boycott against tuna harvested with nets that are deadly to dolphins and other ocean mammals led by the Earth Island Institute. These are good examples of the strong pressure that CSOs can have on corporations through mass campaigns


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aimed at their most important clients: consumers. In Argentina, there are few comparable examples, partly due to the lack of public concern over environmental issues, but also because – engaged in the struggle to ensure their daily bread- our consumers simply have fewer choices. We must also recognize that external control of companies has limits and CSOs will never replace the State in its role as a regulatory agent. In fact, in countries like Argentina it may not be companies that require watchdogging, but the State itself. On several occasions, FARN’s research on issues of environmental governance has led us to the conclusion that the problem is not the legal framework, but it lack of implementation. Without looking beyond the Buenos Aires metropolitan area, we can take the case of Matanza-Riachuelo as an example. As sustained by FARN - in accordance with the decision of the highest Court of Justice of the Nation - the levels of pollution in this basin are the result of centuries of State negligence. And although there is shared responsibility with the companies that have systematically ignored environmental regulations, it is the State which must assume police powers to remedy this ecological disaster and prevent it from happening again in the future. In the same vein, the work of FARN and other members of Cuerpo Colegiado298 on Matanza-Riachuelo is worth mentioning as a local example of the role of CSOs in external control of the State. Several years before the intervention of the Supreme Court, a group of CSOs undertook a major initiative to shed light on the degree of contamination of the watershed and delineate the responsibilities of different state jurisdictions. They maintained an active role throughout the judicial process until achieving a historical verdict in Latin America. But their work did not end there. Over the past year and a half, FARN and other CSOs involved in the case have been devoted to the external control of the State, struggling for the correct implementation of the court ruling. Thanks to their work, the judge in charge of the implementation has taken note of several problems, the World Bank has improved the terms of its massive loan, and the media have not lost interest in the case. There is still a long way to go if we are to achieve the environmental restoration of the Riachuelo, but it is clear the importance that CSOs have had - and still have – in converting this dream into reality. In conclusion, we affirm that CSOs - in their role as innovators, trainers, replicators, representatives, spokesman and external control agents – fulfill important functions in the field of environmental governance. They generate knowledge, commitment and interest in environmental protection and, thanks to their community grounding, they are often able to spread their message in spaces where the State is simply not present. CSOs represent society’s collective

298 See the article “Una Política de Estado para el Riachuelo,” pages 175-233 of “Annual Environmental Report 2009”, available at: http://www.farn.org.ar/informe/informe2009.html.


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thrust for improved environmental protection and, in many cases, they provide the organizational structure to address issues of common interest. But CSOs also serve as a proxy for the level of democratic development of a nation, serving as guardians for the freedom of expression, press, assembly, participation and access to information. As such, they are an effective counterweight to state excesses. For the same reason, the agents of international cooperation have seen that CSOs can provide an effective channel for promoting a joint agenda of environmental protection and good governance in countries which receive aid. In the next section we will explore the mechanisms of international cooperation and we will explore some tendencies at the international level. II. International Cooperation and Environmental Governance: Global Trends Since several years ago, the international community has recognized the supra-national character of environmental governance problems. Deforestation and biodiversity loss, desertification, degeneration of water resources and climate change are not circumscribed to political boundaries. Nor can the environmental externalities of productive activities be limited to a national territory; they are issues that affect the whole world. In this context, sustainable management of resources (rivers, soils, ecosystems, and the planet’s atmosphere) requires a broader perspective of governance, which includes the harmonization of national laws and regulations, information exchange and the development of regional environmental plans. Based on the recognition of the environment as an international public good, cooperation between countries and peoples has emerged with force, and along with it, the participation of CSOs. International cooperation includes all the activities and programs that involve the transfer of resources - whether information and knowledge, technical expertise, financial assistance or donations in kind (scientific equipment, computers, etc.) - from one country to another with the aim of strengthening the recipient country and helping it achieve goals shared by both countries. Transfers may be direct (bilateral, from one country to another) or indirect (multilateral, through international organizations like United Nations) but whenever they are public funds, allocated by the State, this cooperation is considered part of the Official Development Assistance (ODA). ODA also includes repayable loans and direct assistance to CSOs. International cooperation also covers the activities undertaken by non-state actors, such as civil society organizations and private foundations, but since they are not included in the official aid system their contributions will be analyzed independently.


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Since the 1950’s, with the implementation of Marshall Plan to rebuild Europe, international cooperation has been guided by the Organization for Economic Cooperation and Development (OECD). Up to the present, this international body, composed of the 30 economically most powerful States, has been the authority on issues of cooperation for development. Through the Development Assistance Committee (DAC) this agency is responsible for the generation of guidelines on the flow of resources from the “North” to the “South”299 and promoting development in general. It also tracks the amount of official aid of its member countries on an annual basis. Another multilateral body of note is the United Nations Environment Programme (UNEP), created in 1972 by The United Nations Conference on the Human Environment300, to provide leadership in coordinating, monitoring and management of cooperation in environmental matters. Both the OECD and UNEP recognize the transfer of funds directly to CSOs as a necessary component of cooperation, in keeping with their contributions to environmental governance. International organizations play an important role to the extent that they are able to generate consensus about the most urgent environmental problems and coordinate interstate strategies to address them. However, in the day-to-day mechanics of cooperation, the state is still the predominant actor. In the last few decades there has been a huge opening in the field of bilateral cooperation (direct flows from one country to another) and environmental issues have become a priority for many donor countries. It is difficult to determine the exact amount of bilateral aid that flows from the North to the South, since there is still no common global scheme. Notwithstanding, OECD statistics provide evidence of significant increases in bilateral cooperation focused on environmental issues. For the years 2006-2007, this agency estimates the annual transfer of approximately U$S 8.9 billion for projects directly related to the environment. If we include projects that contemplate environmental improvement as a secondary objective, this number increases to U$S 31.4 billion301. Although the study in question does not allow us to compare this period’s flows with previous ones, the narrative analysis provided by the OECD indicates that this number is rapidly increasing. Recognizing the increase in funds assigned to environmental issues, we must still address the question “who receives the funds?” According to the same study, close to 9% (about U$S 800 million) of aid was for projects in the “government and civil society” category, which accounts for most funds given to 299 Conscious of the geographic and conceptual errors present in the North-South dichotomy, we nevertheless prefer this terminology over the traditional “developed / undeveloped countries”, as the latter has been proven to be obsolete by the emergence of economic powers like China, Brazil, Russia and India, among others. 300 For more about the history of UNEP visit: http://www.unep.org/Documents.multilingual/default.asp?documentid=97&l=en. 301 To consult the methodology or download the complete study, visit: http://www.oecd.org/dataoecd/53/54/43960145.pdf.


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CSOs. Unfortunately, the study does not contain disaggregated data on the proportions of aid provided to CSOs and state governments, respectively. However, other OECD statistics allow us to know, roughly, this ratio. The table below compares the total aid disbursed in the period 1998-2008 as Official Development Assistance against the direct flow toward CSOs302.

From this graph, two trends emerge clearly. First, the amount of official aid given to the CSOs is highly variable from one year to another. During the period under review, there was a variation of about U$S 3.7 billion; in 1998, when CSOs received the least amount of aid, this was about U$S724 million, while in 2006, when the highest amount was received, it reached U$S 4.43 billion (6 times more). For the year 2008, the sum had fallen back to U$S 1.27 billion. Second, the proportion of aid to the CSO’s (against the total from ODA) is minimal and does not seem to follow a pattern. The average was about 2.7% but the percentage varied from 5.6% (2002) to 1.1% (2008). However, talking of international cooperation and the work of CSOs without taking into account private contributions would be a mistake. Although CSOs receive a significant boost from to public inputs, their largest source of financing is often private. The relative importance of private organizations, donors and recipients, is an international trend that is worth analyzing because it is a sector in full expansion. According to World Bank declarations from 2001, “between 1970 and 1985 the amount of development aid disbursed by international NGOs was multiplied by 10. In 1992, international NGOs channeled over U$S 7.6 billion of aid to developing countries. It is now estimated that about 15% of total

302 Self-made graph based on QWiDS system, available at: http://stats.oecd.org/qwids/about.html.

Official Development Aid: 1998 - 2008

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aid is channeled through NGOs303.” More recent statistics from the OECD give evidence of the same phenomenon. In 1992, for example, a flow of about U$S 5.85 billion annual was estimated from private organizations from the North to the South. For 2008, this number had almost quintupled, reaching U$S 23.7 billions304. Although the study does not specify, we can assume that much of these resources were allocated to CSOs, who traditionally have less access to ODA. In some cases, contributions from private organizations are commensurate with official bilateral aid from a country. This trend is particularly marked in the USA, where the contributions of private institutions in 2007 were equivalent to 55% of official aid (U$S 12.1 billions against U$S 21.9 billions)305. The United States is nevertheless a special case. It stands out as the country that makes the highest net contribution to official development assistance (U$S 27 billion in 2008), but also as the one that is farthest away from international targets in relation to its Gross National Product (GNP). According to international agreements, OECD members should allocate about 0.7% of their GNP to Official Assistance. Sweden, Luxembourg, Norway and Denmark have exceeded this goal during the last decade, contributing nearly 1% of their respective GNP; the United States, despite the high amount contributed, gives only 0.02%. However, it is clear that for CSOs, the contributions channeled through private American organizations devoted to development cooperation are an important source of resources. III. International Cooperation and Environment: A National Radiography

Considering the trends identified in the preceding section, we must pose the questions: What is the current situation of Argentina? Who are the international actors with the greatest weight in terms of the environmental agenda? and, as CSOs, What is our role in the world of international cooperation? The answers to these questions provide not only a comparative basis for Argentina in the world, but also a starting point for the critical analysis of the system of international cooperation and its implementation in our country. While recognizing the valuable contributions of private institutions, it is particularly important to analyze the flow of public funds, as they are the ones responding to the international guidelines of the OECD and public deliberations. The opinions presented here are ours, but we owe a deep gratitude to the Red Argentina de

303 Extract from “World bank and NGO’s,”, Duke University Libraries NGO Research Guide: http://library.duke.edu/research/subject/guides/ngo_guide/igo_ngo_coop/ngo_wb.html 304 To consult OECD statistics see: http://www.oecd.org/document/9/0,3343,en_2649_34447_1893129_1_1_1_1,00.html (table 02e). 305 To consult OECD statistics, see: http://www.oecd.org/document/9/0,3343,en_2649_34447_1893129_1_1_1_1,00.html.


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Cooperación Internacional (RACI) team306 whose recent studies “The Flows of International Cooperation to Argentina: A Comparative Perspective” and “Donor’s Survey 2009” have offered useful data on this subject. Overall, Argentina must be considered a country of low participation in the international cooperation system, specially regarding to non-repayable contributions. It is not a member of the OECD and due to its classification as a “middle-high income country”307 does not receive large amount of ODA. After the crisis of 2001-2002, it experienced a spike in development cooperation, which lasted several years. Notably present during this period were international private organizations which, for the first time in decades, began to finance development projects or even opened local offices. The crisis has also rekindled the interest of bilateral donors in Argentina, attracting the support of several countries that for years had not been present. Since 2003, the OECD shows a relatively constant flow of ODA funds to Argentina, averaging in about 100 billion US dollars annually. However, today, it is known that several agencies of international cooperation are withdrawing, in part due to the inability to justify their presence in the face of the economic growth and poverty rates published by the National Institute of Statistics and Census (INDEC)308. Along with other CSOs with different thematic approaches, we highlight the weakness of the national statistics and the invisibility of the poorest in the calculations averaged as a first weakness in the national system of international cooperation. Argentina, despite its classification as a middle-high income country, still requires strong support from the international community. The vast majority of ODA intended to Argentina enters through the National Government through some government agency. There are also specific agreements of bilateral or multilateral cooperation with lesser dependences - provinces and municipalities - through which international funds can be applied to more local projects. However, it is difficult to know how much and what kind of foreign aid enters the country due to the lack of systematized information. According to a recent study by RACI “The results of mapping position Argentina as a host country with low levels of information on the flows of international aid

306 FARN is a member organization of RACI since October 2009. 307 See classification by income index from World Bank, available at: http://web.worldbank.org/WbSitE/EXtERNAl/DAtAStAtiStiCS/0,,contentmDK:20420458~menuPK:64133156~pagePK:64133150~piPK:64133175~theSitePK:239419,00.html. 308 It is worth some criticisms regarding the impact of the national statistics on national cooperation. In Chapter 6 of the book “Manual to facilitate the access to international cooperation”, the RACI team and Inés Castro from CIPPEC offer the following analysis: “the official statistics and the various reports from international organizations focused from the country’s macroeconomic indicators - which reflect only averages and global issues - promote an image that corresponds only weakly to the different realities that are found on the ground. Against the image these indicators show, the various actors in international cooperation redirect their efforts towards other countries that show different indicators or that are strategic to their countries of origin”. Available at: http://www.raci.org.ar/manual/contenidos.html.


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that it receives [...] At the time of this survey, it was possible to access only disaggregated aid flows from the European Union (provided by the General Direction of International Cooperation of the Ministry of Foreign Affairs). Among governmental institutions related to cooperation, we cannot find budgetary information broken down by project about non-refundable cooperation funds from other donors309. Following the methodology used by RACI and applied to various state agencies310 we explored the website of the Secretariat of Environment and Sustainable Development (SAyDS). There, we detected the existence of several projects funded through international cooperation, with the participation of multilateral agencies such as FAO, UNEP and IBRD, among others. Nevertheless, we found very little hard information and what information was there was scattered over different pages, hard to access and impossible to systematize. At FARN, we are aware of a number of valuable environmental governance projects carried out with the assistance of bilateral and multilateral donors, and we have participated in several of them. But given the scarcity of systematic data about the amount and application of funds, environmental CSOs can hardly know the percentage of ODA funds assigned to environmental issues or follow up on specific projects being carried out by the government, which stands out as a second weakness. If it is not possible to track the international cooperation funds from the inside, is it possible to trace them from outside? In many cases, yes. Multilateral agencies with offices in the country - such as the Organization of American States (OAS), the United Nations Development Programme (UNDP) and World Bank - often make available to the public with relatively complete information about the amount and type of projects they finance. Take for example the case of UNDP, one of the major international bodies on issues of environmental governance. Upon publication of this article, this agency registers 24 active or recently completed projects in the category “environment and sustainable development”. Among them (counting also the contributions of the Argentine Government) the portfolio reaches a total of about U$S 34 million. Out of these 24 projects, 7 fall within the scope of the Secretariat of Environment and Sustainable Development (SAyDS), 2 in the Ministry of Health of the Nation, 3 and in different provincial governments and 3 in municipal governments. About 5 of these projects are distributed among various government agencies, including the National Ombudsman, the National Institute of Technology (INTA) and the University of Technology of Mendoza. The 4 remaining projects have appointed

309 Rodriguez Patrinós, P. y Pomares, J (2009). “Los Flujos de la Cooperación Internacional hacia la Argentina: En Perspectiva Comparada”. (p. 60). Buenos Aires: RACI. 310 Ibid. Pages 41-42.


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an environmental CSO as the implementing institution, although in 2 cases, this responsibility is shared with a government entity. UNDP, as well as other multilateral agencies, presents clear and systematized information about the cooperation provided to Argentina. But, as appears from the data presented above, the majority of its assistance focuses on government initiatives. So we have here a third weakness. From the perspective of CSOs like FARN, it is impossible to refute the importance of international cooperation for the purpose of institutional strengthening and the implementation of environmental projects in situ. Clearly, the public administration has an undeniable responsibility as the highest protector of the public good, which includes the defense of the environment. However, Argentina is also young democracy where it is possible to detect serious shortcomings of environmental governance. As mentioned in the first section, our country still suffers from the harmful effects of corruption, the lack of judicial independence and the lack of access to public environmental information. To overcome these problems it is essential to build and sustain a strong social sector, capable of providing innovative solutions and independently monitoring state action. For professional CSOs like FARN, whose mainstay and source of social legitimacy are their political independence, technical soundness and continuity, it is impossible to operate without the active assistance (funding) of international institutions. Fortunately, there are several international agencies who share this same vision. In Argentina, one of the most important sources of financial aid to governance projects -including those of environmental governance - is bilateral cooperation. Grants are usually channeled through the embassies of donor countries (though not always) and in many cases they are given directly to the CSOs. Of the approximately 15 countries that grant funds to CSOs directly311 almost all have detailed information on their thematic priorities and the projects they have funded in recent years. Among them, a significant percentage considers the environment a “priority focus”. Similarly, the Delegation of the European Union in Argentina has demonstrated strong leadership, not only in its commitment to environmental issues, but through the allocation of differentiated resources for state actors (usually local) and “non-state actors” (CSOs). This approach is highly satisfactory, as it applies the same criteria, standards and rigorous evaluation processes for both types of institutions, strengthening them without forcing them to compete against one other. The type of direct support to CSOs mentioned above differs from the cooperation offered by other bilateral donors such as Japan, Italy and the

311 In particular, we should highlight the support to Argentine CSOs given by countries like the United Kingdom, Finland, Spain, Canada, Australia, The Netherlands, Ireland, Germany and New Zealand.


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United States. For the first two cases, there is a strong preference for channeling funds through CSOs situated in their countries of origin. This means that Italian CSOs are more likely to have access to international cooperation that comes from Italy and Japanese CSO to funds from Japan. FARN has collaborated with different projects implemented through these types of support mechanisms and we recognize their contribution to strengthening environmental governance in Argentina. But we also recognize that this institutional arrangement may work as a barrier to the development of a strictly national agenda. The necessity of generating projects that respond to both the priority interests of bilateral donors and the operational structures of international CSOs - and overcoming associated language barriers - ends up limiting the opportunities for collaboration within the framework of environmental governance, to the detriment of CSOs in Argentina and the national agenda. On the other hand, it is worth mentioning the weaknesses of environmental cooperation systems for CSOs such as the Fund for The Americas, supported by the United States of America. This fund comes from an agreement signed in 1993 between the governments of Argentina and the United States in order to promote “the preservation, conservation, protection and sustainable management of natural resources in the country, thereby encouraging child survival and development”. Annually, the fund provides about $1,000,000 Pesos to different argentine CSOs for projects compatible with the fund’s mission, providing an important opportunity for organizations dedicated to environmental issues. The fund contemplates a rigorous application and evaluation process, with participation by various representatives of the Embassy of the United States, civil society and the National Government, in order to generate consensus on initiatives of the greatest public interest in the national context. However, this institutional arrangement is not always beneficial for the CSOs tackling the question of environmental governance because the Argentine Government reserves the right to veto which we know has been invoked to intervene in the process based on political, rather than technical, criteria. Of course, FARN considers government cooperation important in the allocation of funds for CSOs. But faced with a shortage of financing opportunities for international environmental governance projects and the conflicts of interest inherent in the role of the Secretariat of Environment and Sustainable Development (SAyDS), which acts as judge and party in the context of The Fund for the Americas, it is important to highlight the weakness of this institutional arrangement. We hope the day comes when FARN will echo the voice of our Dutch colleagues, who have remarked on several occasions “We criticize the National Government a great deal because if we didn’t we would not be fulfilling our mission.


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Nonetheless, national public contributions are the most important source of funding of this institution. After so many years, the Government knows that our work is important for the national environmental agenda. Also, they know that such support would be impossible to withdraw from one year to another, because society would not allow it”312. These comments are the product of a CSO-State relationship and a degree of democratic development that, today, we have not yet achieved in Argentina. We are on the correct path, but there is still a lot to do. Meanwhile, it is essential to create spaces for critical collaboration between civil society and state institutions on the issue of environmental governance. At FARN, we believe that international donors can play a central role if they choose to do so. Before closing our discussion of the national context of international cooperation, it is necessary to formulate a self-criticism about our responsibilities as CSOs, and the role we can play in improving the situation of Argentina. At FARN, we estimate that there are about 20 CSOs working directly with international cooperation to implement projects related to environmental governance. However, this data is also difficult to verify as there is little information available. A survey of more than 10 CSOs that receive international cooperation for environmental projects shows that the majority do not have information on their website about them. The recent study of RACI supports this assertion, noting that “if we look to Argentine CSO recipients of international cooperation, we find low levels of information on the flows received [...] Overall, Argentine CSOs provide qualitative information on the projects they carry out and, when budgetary information is available, it is generally presented as accounting reports - which can be difficult to understand”. But it also emphasizes, “This trend, though daunting, is similar to that indicated for international CSOs and from abroad”313. Apparently, the lack of information and transparency on the use of funds is a problem shared by CSOs and Public Administration, and one we should address if we aim to improve accountability to current and future international donors. On the other hand, as has been highlighted by donors314, CSOs must also coordination with the State. Like so many other things, this requires a sustained effort on both sides. We are on the right track, but there is still a long way to go. IV. Conclusions and Recommendations

312 Observations made by representatives of the International Union for Conservation of Nature (IUCN)- Netherlands Delegation and Oxfam Novib, July 2009 and December 2009, respectively. 313 Rodriguez Patrinós, P. y Pomares, J (2009). Los Flujos de la Cooperación Internacional hacia la Argentina: En Perspectiva Comparada. (pp 41 y 42). Buenos Aires: RACI. 314 The Donors Survey 2009, published by RACI, shows that for 34% of donors, State-Civil Society coordination is one of the elements and/or strategies that should be modified to increase the quantity and quality of international cooperation towards Argentina.


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CSOs, to function as such, need the aforementioned freedoms. And they also need resources. In the so-called “social sector” nothing can be done without will, knowledge, commitment and continuity; no amount of money can build or replace these elements. But as CSOs assume greater levels of responsibility, professionalism and social leadership, the structure necessary to keep them functioning also increases. Having a body of qualified professionals with experience in various issues of environment, economy, development, law, technology and others, involves paying salaries. Having an office where all the documents concerning the work undertaken can be duly filed involves paying rent. Generating social impact means having the resources to invest in communication. The list goes on. But the generation of an adequate economic and financial structure is an enormous challenge for many CSOs, especially in countries like Argentina. First, Argentina shows very low rates of individual philanthropy and individual donations. The factors that contribute to this reality are multiple and exceed the scope of this article, although we are interested in the effects of this phenomenon. A study on the subject dating from 2004 concludes that “The low proportion of philanthropy in the financing of nonprofit sector is a major barrier to its development and partly explains its relative weakness in our country”30. Although there are examples, such as Greenpeace Argentina, of environmental CSOs that have managed to cover their annual operational budget solely through private donations, they are still a minority. Therefore, the majority of CSOs in Argentina depend, at least in part, on funds from institutions, whether public or private. In the case of private institutions (business or family foundations), again, a detailed analysis would exceed the scope of the present work. Nevertheless, it is our duty to emphasize that environmental issues are very low on the priority list of private and corporate donors. It therefore constitutes a major challenge to build awareness within this sector, in terms of the links between the environment and economic and social development. Setting aside, for a moment, sources of international funding, only the State remains, and this is problematic for several reasons. In Argentina, the chronic state budget deficits and the strong demands of CSOs dedicated to social services (health, education, child nutrition, etc.), creates a situation of undue competition between social and environmental priorities. Furthermore, accessing State funds may involve extended periods of bureaucratic waiting, a situation that not all the CSO can absorb, or even the early termination of contracts because of political changes. This situation leads to instability which is counterproductive for institutional initiatives of medium and long term. But there is also another major issue. In Argentina, one of the main roles of environmental CSOs is external control and, at least for now, it is difficult to ask the State to disburse funds to organizations pursuing this end.


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To overcome these difficulties, our recommendation is double, and it is directed to the state sector and the community of international donors, respectively. With regard to the duty of the State, we recommend deepening democratic dialogue with CSOs, respecting the important role they play in building an environmentally sustainable and socially inclusive national project and conferring them a proactive role as legitimate spokespersons of the public interest. This involves implementing more and better mechanisms for transparency, public access to environmental information and updated data on international cooperation projects in progress. It also implies the establishment of clear rules for the exchange of opinions and perspectives and the respect for the independence of criteria that characterizes a healthy relationship between the State and CSOs. For international cooperation agencies, both public and private, it is crucial to contextualize policies of support for CSOs, recognizing the persistent shortcomings of our young democracy and investing in an independent and informed social sector. This involves the deepening of direct dialogue with CSOs and the review of internal regulations that require government approval as a sine qua non condition for the approval of environment projects. These measures are considered essential to promote a growth and maturation process that will result in improved national environmental governance. To conclude our recommendations, it is essential to assume our own responsibilities as members of civil society and collective agents of change. As mentioned throughout this article, Argentine CSOs already play a leading role in the process of political and social transformation. Therefore, we should do everything possible to exemplify the changes we want to see at the State and societal level. This involves strengthening our own procedures and priorities, to ensure transparency and promote public access to records that show the sources and employment of the funds we receive. Similarly, we must listen to the criticisms we receive from the State and the international community, generating thematic and operational responses to overcome the obstacles that impede a more fruitful collaboration. Finally, as CSOs we must recognize the strength in our differences, and discard any discourse which purports to identify a particular methodology as the only one possible and the only one valid. This change in attitude also involves the construction of new practices for inter-institutional collaboration, including greater exchange of information and knowledge, possibilities for strategic alliances and the commitment to engage in dialogue, although we may not agree. If we assume all these duties collectively, the results will include new opportunities of collaborative advocacy and improved channels of citizen demands for a more democratic and sustainable Argentina in the medium and long term.