Santiago Chile
Residents of Tocopilla, accompanied by the environmental organizations Chile Sustentable, Greenpeace and the Inter-American Association for Environmental Defense (AIDA), filed a protection appeal before the Santiago Court of Appeals requesting that the immediate cessation of the forced and accelerated burning of the excess coal from the Norgener thermoelectric power plant (composed of the Norgener 1 and 2 units) of the company AES Andes SA, which amounts to 94,000 tons, be ordered.
The burning in Tocopilla began on February 18 and was authorized by the National Electric Coordinator (CNE). AES argues that this type of burning is the only viable alternative it has to dispose of the coal while complying with its environmental obligations, following the confirmation of the plant's early closure.
The protective action, which includes a non-innovation order to immediately stop the burning (equivalent to a precautionary measure), requests that the authorization granted to the company be revoked, that the economic dispatch order that governs the national electric system be respected, and that the company be ordered to comply with its obligation to prepare the corresponding Abandonment Plans for its retired Norgener 1 and 2 units.
The protection action also denounces the illegal actions of the CNE for having authorized the burning of coal surpluses without legal or environmental grounds, going over its obligation to follow the economic order of dispatch in the national electricity system, according to which it must always prioritize the cheapest energy, which is also the cleanest.
In addition to violating the human and environmental rights of Tocopilla's residents, the incident unfairly affects renewable and clean energy producers, who are displaced and forced to sell off their energy. This has repercussions for the feasibility and urgency of an energy transition.
All these facts must be acknowledged within the current context of Tocopilla, an area saturated with pollution and whose existing Decontamination Plan has failed to reverse the situation. Moreover, the area has been publicly designated an environmental sacrifice zone. Several studies demonstrate the disproportionate rates of morbidity affecting its inhabitants. Its population was already vulnerable even before the burning was authorized.
The Santiago Court of Appeals rejected the requested injunction, considering it unnecessary for the purposes of the appeal. Paradoxically, months later, ruling on the merits of the appeal, it decided to dismiss the injunction, arguing that it had become moot since the coal burning had already taken place and there were no urgent measures to order.
For its part, the Supreme Court, hearing the appeal filed by the appellants, confirmed the ruling of the Santiago Court of Appeals, without adding further grounds.
Although the final result was negative, the action taken had positive impacts that are worth highlighting:
First, both the Santiago Court of Appeals and the Supreme Court recognized broad standing to file the protection appeal, recognizing standing to individuals and foundations domiciled in Santiago, regarding situations that would be affecting the environment of the Tocopilla commune, more than 1,000 kilometers away.
Secondly, the present case had an important influence on the actions of the National Electric Coordinator, who, during the course of the trial, published an internal instruction entitled “Internal Procedure: Retirement Program of Conventional Thermal Generating Units from the National Electric System”.
This directive established internal guidelines for regulating the decommissioning of coal-fired power plants, requiring them to develop a Decommissioning Program. Among the issues addressed were extraordinary fuel stock purchases and authorizations for dispatching energy "outside of economic considerations" during the plant decommissioning process.
Regarding this extraordinary dispatch, two requirements are established: Having a document issued by the competent environmental authority, which indicates that the unit cannot be left with a remaining stock of fuel and that this cannot be transferred to another place, and presenting documentation that justifies that the remaining stock of fuel originates from justified reasons.
While the legality of authorizing shipments outside of an economic order is questionable, establishing guidelines to regulate this practice is positive and contributes to the transparency necessary to avoid future situations like those that originated this case.
Although the underlying issue is not climate change, but rather the protection of the rights of the inhabitants of the area who are subjected to high levels of pollution from the accelerated illegal burning of 94,000 tons of coal, the climate cannot be ignored when we are talking about the irresponsible closure of a coal-fired power plant.
Chile is currently undergoing a decarbonization process, which is very positive. In this context, the closure of thermoelectric power plants has been announced, something we hope to continue seeing until coal burning for electricity generation ceases in the country. However, this decarbonization process cannot be carried out unfairly, especially for the people living near the plants being decommissioned. This necessarily implies that companies closing operations must fulfill their obligation to submit closure plans, which must include plans for disposing of surplus coal (or other materials), ensuring that the solutions are environmentally and socially sound and just. In compliance with their constitutional obligations, government authorities must ensure that this is the case.
- Sebastián Tomás San Román Ramírez
- Florencia Ortúzar Greene
- Cristina Lux Acuña
- María Eugenia Ramírez Díaz
- Eliana Elizabeth Bascuñán Salas
- Sustainable Chile Foundation
- Greenpeace
- AES Andes SA
- National Electrical Coordinator
Tocopilla, located in the Antofagasta Region, was founded as a fishing cove in 1843, serving as a port related to mining from its inception. In 1915, a North American company built the country's first thermoelectric power plant in Tocopilla. Today, the area's economy is primarily based on energy and port activities, with a copper production plant, fishing industries, and seven coal-fired power plants, including the Norgener 1 and 2 units.
In 2007, the area was declared a pollution saturation zone, leading to the formalization of a Decontamination Plan in 2010. This plan established a series of measures for the main sources of emissions identified in the area. Unfortunately, this plan has not achieved any real environmental improvement. In 2016, a powerful mudslide affected the area, carrying toxic ash from thermoelectric plants, located 5 kilometers from the city center, all the way to the ocean.
Industrial activity in Tocopilla is concentrated in the city center, causing serious health problems for its residents, who suffer high rates of respiratory and pulmonary diseases, cancer, and poisoning from pollutants such as particulate matter, sulfur dioxide, nitrogen oxides, and heavy metals, among others. Several scientific studies have demonstrated the high mortality and morbidity rates in Tocopilla resulting from air pollution.
The purpose of the Writ of Protection is to safeguard fundamental rights guaranteed by the Constitution. In this sense, the action was based on the guarantee of the following constitutional rights:
Article 19 No. 1. The Constitution guarantees to all persons: The right to life and to physical and mental integrity. The law protects the life of the unborn.
Article 19 No. 8. The Constitution guarantees to all persons: The right to live in an environment free from pollution.
Article 19 No. 9. The Constitution guarantees to all persons: The right to health protection.
Article 19 No. 20. The Constitution guarantees to all persons: The equal distribution of taxes in proportion to income or in the progression or form established by law, and the equal distribution of other public burdens.