Mendoza Argentina
On April 9, 2018, the NGO OIKOS Environmental Network filed a lawsuit challenging the constitutionality and international human rights standards of Decree No. 248/2018 issued by the Ministry of Economy, Infrastructure, and Energy of the Province of Mendoza. This decree regulates the environmental impact assessment procedure for hydrocarbon exploration and extraction activities in unconventional formations (fracking). Specifically, the lawsuit challenges Articles 2, 3, 4, 5, 7, 8, 9, 10, 11, 13, 14, and 16 of Decree 248 and requests the Supreme Court of Mendoza to uphold the minimum environmental standards that guarantee the validity of Article 41 of the National Constitution, which enshrines the right to a healthy environment.
Among the arguments, the plaintiff alleged irregularities in the process of enacting the Decree (citizen participation was not taken into account) and that it would allow, as part of the permitted fracking activities, the excessive and illegal consumption of water, a scarce and specially protected resource in the Province. The plaintiff also warned about the possible use of radioactive materials in fracking operations and the underestimation of the risks related to the volcanoes located in the Province. OIKOS invokes various legal grounds, including the Constitutional Right to a healthy environment (Article 41 of the National Constitution), the General Environmental Law (Law 25,675), the National Hazardous Waste Law (Law 24,051), environmental principles (progressivity, prevention, precaution, intergenerational equity), the Constitution of Mendoza, and the provincial environmental law (Law 5961).
OIKOS maintains that Decree 248/2018 deviates from the environmental policy principles established by Article 4 of the General Environmental Law No. 25675, arguing that it violates the principle of progressivity, ignores the principle of prevention, and transgresses the precautionary principle. Furthermore, they highlight the violation of the hazardous waste law, stating that Decree 248 makes no mention of any correlation with Law 24051 on hazardous waste, nor does it require the registration of generators or operators as part of the reports that must be submitted.
Concerns and arguments related to the climate impact of fracking activities were presented in the case through three amicus curiae briefs from the Environment and Natural Resources Foundation (FARN, December 2020), EarthJustice (January 2021), and the International Association for Environmental Defense (AIDA, February 2021). In these briefs, the environmental NGOs highlighted the climate impacts of fossil fuel production (both CO2 emissions from future combustion and CH4 leaks) and argued that these impacts were not adequately considered when the decision was made (cost-benefit analysis) and that they could imply a breach of Argentina's international commitments. AIDA's Amicus Curiae also noted that, in October 2018, the UN Committee on Economic, Social and Cultural Rights recommended that Argentina reconsider the exploitation of Vaca Muerta's oil and gas reserves in light of the Paris Agreement's climate commitments and the scarcity of the global carbon budget.
In 2023, the Center for Legal and Social Studies (CELS), the Center for International Environmental Law (CIEL), and the Environmental Law Alliance Worldwide (ELAW USA) also filed amicus curiae briefs. On August 26, 2024, the Supreme Court of Mendoza accepted the amicus brief submitted by the Environment and Natural Resources Foundation (FARN, December 2020) and rejected the others. The Court held that the rejected amicus curiae briefs did not constitute contributions of legal or substantive value to the case.
The lawsuit includes direct references to climatic elements when developing the control of conventionality and the interrelation between human rights and the environment.
In this regard, it refers to international instruments and precedents of the Inter-American Court of Human Rights that recognize that environmental degradation and the adverse effects of climate change affect the effective enjoyment of human rights.
In particular, when developing the precautionary principle in accordance with international standards, it mentions the United Nations Framework Convention on Climate Change.
Beyond these references, due to its connection with the topic of fossil fuels and the environmental, social and economic impacts of the controversial fracking technique, this case can be considered a climate dispute.
OIKOS Environmental Network
Government of the Province of Mendoza
Vaca Muerta, the unconventional hydrocarbon deposit in Argentina, has been considered the second largest source of gas and the fourth largest source of unconventional oil worldwide.
This geological formation includes part of the provinces of Neuquén, Río Negro, La Pampa and the southern tip of the province of Mendoza.
In Mendoza, the expectation of large economic benefits has encouraged oil companies and the provincial government to promote the development of these extractive activities, without adequately considering not only the impacts generated by the technique used for the exploration and extraction of this type of hydrocarbons, but fundamentally, the scenario of extreme drought that has been recorded for more than 10 years.
In addition, we must consider that in the area where fracking pilot projects have been carried out or where new projects are planned, there are indigenous communities belonging to the Mapuche People who have not been properly consulted about them, thus ignoring their ancestral territorial rights.
Standards
- National Constitution
- General Environmental Law No. 25675
- National Hazardous Waste Law No. 24051
- Hazardous Waste Law No. 24013
- Constitution of the Province of Mendoza
- Provincial Environmental Law No. 5961
- Provincial Water Law and complementary laws and resolutions
- Provincial regulations on hydrocarbons
Beginning
- Principle of progressivity
- Principle of prevention
- Precautionary principle
- Principle of intergenerational equity