Organizations and natural person vs. Committee of Ministers for authorization of hydroelectric plant on the Cuervo River

Location

Aysén Chile

Status
Resolved at first instance
Start date
September 20, 2016
Date of judgment or latest existing decision
On January 4, 2018, the Environmental Court of Valdivia issued its ruling.
Summary

The Private Corporation for the Development of Aysén (CODESA), together with the Corporation for the Defense of Flora and Fauna (CODEFF), and Hugo Díaz Manríquez, filed a complaint for non-compliance with their public comments against the resolution that approved the Cuervo Hydroelectric Plant Project, submitted by the company Energía Austral to the Environmental Impact Assessment Service (SEIA) on August 13, 2009, through an Environmental Impact Study. The project consisted of the construction of a reservoir hydroelectric plant on the Cuervo River, in the Aysén Region.

The plaintiffs argued that the project should have been rejected because the environmental impact assessment failed to cover its potential effects, including geological and seismological impacts, as well as violations of the right to physical and mental integrity of residents in the area. They also cited the lack of consideration for climate change in the project's evaluation, the inadequacy of the compensation measures for wetlands and forests, and the violation of the Convention on Biological Diversity and the Hunting Law (due to the impact on the habitat of the Huillín, an endangered species, and the Darwin's Frog, a vulnerable species). The plaintiffs requested that the Court overturn the decision and revoke the project's favorable environmental assessment.

The Court upheld the claim only with respect to compensation for forests and wetlands, rejecting the climate change arguments. The contested resolution was annulled, and the Committee of Ministers was ordered to reopen the appeals process.

Climate element

The project envisioned the construction of a reservoir between Lakes Yulton and Meullín, which would affect approximately 5,000 hectares of native forest and 11 wetlands, covering roughly 2,400 hectares. Among these, the Maca peat bog wetland, spanning 2,000 hectares, would be destroyed.

In light of the above, the claimants argued the importance of protecting wetlands and forests to address climate change due to their role as CO2 sinks, with wetlands being particularly noteworthy for their role as water reserves for humanity and natural centers for the conservation of biodiversity, flora, and fauna.

In its ruling, the Court rejected the climate change arguments, noting that the Law does not include climate change as an element of the Environmental Impact Assessment System (SEIA). Furthermore, the decision states: "It is desirable for the Administration to consider the positive and negative effects that a project may have on climate change management, but the current Law does not require it to do so."

Claimants
  • Private Corporation for the Development of Aysén (CODESA).
  • Corporation for the Defense of Fauna and Flora (CODEFF).
  • Hugo Díaz Manríquez.
Defendants
  • Committee of Ministers (Chile).
Supporting organizations
ONG FIMA
Social organizations in Puerto Aysén
Territorial context

The Cuervo Hydroelectric Power Plant Project is planned to be built on the Cuervo River, in the Aysén region, affecting the communities of Puerto Aysén and Puerto Chacabuco.

The Cuervo River Valley is located in a geologically and seismically complex area, associated with the Liquiñe-Ofqui fault system. This has influenced the evolution of glacial dynamics, fluvial landforms, and mass movements generated by tectonic activity. Furthermore, volcanic activity affects the basin drained by the Cuervo River, making the valley a highly unstable region.

Rules and principles invoked

Standards

  • International Covenant on Economic, Social and Cultural Rights.
  • Kyoto Protocol.
  • United Nations Convention to Combat Desertification.
  • Convention on Wetlands of International Importance especially as Waterfowl Habitat (RAMSAR).
  • Convention on Biological Diversity.
  • Political Constitution of Chile.
  • Law 20.600, which creates the Environmental Courts.
  • Law 19.300, on General Bases of the Environment.
  • Hunting Law.

Beginning

  • Precautionary .
  • Prevention.

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Instance
Judicial
Actor type
Civil society organization
Natural person
Topic
Fragile ecosystems
Environmental impact studies
Violation of human rights
Defendant type
State
Grounds for claim
Right to a healthy environment
Rights of consultation and participation
National legislation
Regional or international treaties