casebook

Asociación para la Protección del Medio Ambiente y Educación Ecológica 18 de Octubre v. Aguas Argentinas S.A. y otros

Argentina

In a significant legal battle, the Association for the Protection of the Environment and Ecological Education “October 18” secures a crucial win against Aguas Argentinas S.A. and other entities. The Court mandates preventive measures to restore environmental balance, emphasizing residents’ constitutional R2HE

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Casebook Info

In Quilmes municipality, residents grappled with health hazards and property damage arising from rising water tables and overflowing cesspools. The Plaintiff contended that water imports disrupted the water table equilibrium, the deactivation of water extraction systems compounded issues, inadequate effluent treatment persisted, and negligent management of the water distribution network exacerbated the situation. An amparo action was initiated to restore water balance and petition for precautionary measures to reinstate underground water extraction, crucial steps to uphold the affected individuals’ constitutional right to a healthy, balanced environment (R2HE), conducive to human development and productive activities.

Upon scrutinizing constitutional environmental law and the “polluter-pays” principle, the Court recognized the municipality’s duty to ensure safe public infrastructure and prioritize residents’ health. While affirming the validity of the precautionary claim, the Court made modifications. It underscored that under the National Constitution, plaintiffs possess the right to file an amparo action to safeguard third-generation human rights, encompassing collective rights aimed at preserving the environment, such as R2HE.

  • Year Filed /
  • Year of Most Recent Ruling 2003
  • Year of Final Ruling 2003
  • Jurisdiction Argentina
  • Court Name C. Fed. La Plata, sala 2ª
  • Plaintiff(s) Association for the Protection of the Environment and Ecological Education “October 18”
  • Ruling On Merits or Procedure
  • Respondent(s) Aguas Argentinas S.A., the Tripartite Entity of Works and Sanitary Services (Etoss), and the province of Buenos Aires and the Municipality of Quilmes
  • Outcome Decided
  • Decision Link to the decision/ruling

Background

The inhabitants of Quilmes municipality confronted severe health risks and property damage stemming from a rising water table. The situation demanded frequent repairs to floors and walls, along with the installation of home pumps, offering only minimal relief. Compounding the issue, the overflowing cesspools in affected buildings posed a significant public health hazard. The Association for the Protection of the Environment and Ecological Education “October 18” (the Plaintiff), representing the local residents, attributed these problems to several factors:

  1. Aguas Argentinas S.A., the company importing water from the Río de la Plata, allegedly disregarded the potential local water table imbalance caused by this practice.
  2. The concessionaire’s discontinuation of the underground water extraction system and reliance on local wells.
  3. Improperly treated effluent and sewage, instead of being returned to its source, the Río de la Plata, filtered directly into the groundwater.
  4. Alleged mismanagement of technical losses in drinking water distribution networks by the concessionaire and the overseeing body responsible for control.

The Plaintiff initiated an amparo action against both the local Sanitation Services and the municipal government (Defendants) with the aim of restoring the water equilibrium in the Quilmes district. Such actions are undertaken to safeguard the constitutional rights of the district’s inhabitants, in this instance, the Quilmes residents. The Plaintiff urged an immediate halt to the acts and oversights that infringed upon the constitutional R2HE. They requested precautionary measures to reinstate the extraction of underground water, essential to ensure an environment conducive to human development and the productive activities of the residents.

To achieve this objective, the Plaintiff proposed two steps: Firstly, urging Aguas Argentinas S.A. and the municipal government to resume water extraction from wells within their assigned jurisdiction or under their administration. Secondly, installing and activating depressant pumps to help stabilize the hydraulic system of the Quilmes district. These measures were seen as critical in restoring the district’s water balance and preserving an environment suitable for the well-being and livelihoods of its inhabitants.

The Court meticulously analyzed the National Constitution’s environmental law provisions and the “polluter-pays” principle. While affirming the Plaintiff’s precautionary claim, the Court introduced modifications to align with the prevention principle and underscored the judiciary’s authority. Recognizing R2HE as a fundamental human right demanding proactive and anticipatory protection, the Court emphasized the necessity for robust judicial involvement.

Given this imperative, the Court deemed it necessary to institute preventive measures to avert potential environmental and human rights infringements. The Defendants, through their actions or inaction, were found culpable for the harms suffered by the represented inhabitants. Consequently, the Court issued an order instructing the Defendants to implement, within a span of 60 days, the agreed-upon mechanisms and procedures previously negotiated by the companies and government. Additionally, the defendants were mandated to furnish regular progress reports to ensure compliance with the Court’s directives.

  • Principle of Prevention The principle obligated the Court to take an active role in ensuring the inhabitants’ R2HE and neutral possible harmful consequences.
  • Section 41 Constitutional provision that enshrines the R2HE, guarantees the right to sustainable development, and prioritizes reparations.
  • Diffuse Interests Interests shared by citizens attached to a ‘good’ of incalculable value, such as the environmental, can give a representative standing, regardless of whether they are directly harmed.

Plaintiff Strategies & Court Good Practices

Using an established domestic body of law

Using an established domestic body of law

Under the Argentinian Constitution, individuals have a legal avenue, the amparo proceeding, to address alleged infringements on their constitutional rights. This legal framework recognizes “diffuse interests,” granting standing to concerned parties. Moreover, cases can be initiated not solely when the public interest is directly impacted but also when advocates represent those personally and directly affected. Consequently, the Court deemed the standing of the Plaintiff organization as “unquestionable,” acknowledging their capacity to represent and advocate for those affected by the issue at hand.

Section 41 of the Constitution safeguards the right “to enjoy a healthy and balanced environment, conducive to human development and productive activities, meeting current needs without compromising those of future generations” (R2HE). Furthermore, the Constitution imposes an obligation to prioritize reparations in the event of environmental harm. Preceding the case, the Plaintiff and other entities extensively corresponded with the Defendants, engaged the media, and compiled reports on the environmental crisis. Building on these efforts, the Plaintiff pursued legal action to solidify these claims in court, seeking an effective resolution to the issue and seeking guidance on addressing the escalating water table problem. They urged the Defendants to implement precautionary measures.

The Court agreed that the constitutional and intergenerational R2HE and sustainable development required the Court to intervene as a preventative measure and mandate that the Defendants take precautionary actions to alleviate the environmental crisis.

Emphasizing the State’s duty to regulate or its failure to observe its due diligence obligations

Emphasizing the State's duty to regulate or its failure to observe its due diligence obligations

The Court emphasized the state’s obligations, encompassing the exercise of police power, to safeguard the health and sanitation of its inhabitants. This necessitated overseeing both public and private entities, ensuring their adherence to measures aimed at preserving resources and preventing resource mismanagement that could harm third parties. Ultimately, the Court determined that the actions or oversights of the Defendants had indeed contributed to the adverse effects experienced by the inhabitants. As a result, the Defendants were deemed responsible and obligated to remedy the situation.

Reinforcing the status of the R2HE as a fundamental and independent human right

Reinforcing the status of the R2HE as a fundamental and independent human right

The Plaintiffs brought the case under Section 41 of the Constitution, which enshrines R2HE as a fundamental human right that may be protected in an amparo proceeding. The Court concurred, highlighting the right’s national and international importance, and that it demands protection by the Courts and state.

Emphasizing international developments

Emphasizing international developments

The Plaintiff urged the company and local governments to tackle the escalating environmental crisis and address the infringement upon R2HE, as envisioned in the Constitution. The Court upheld the significance of the “polluter pays” principle, established during the 1972 UN Conference on the Human Environment in Stockholm, deeming it relevant. Additionally, the Court underscored that international treaties and national laws imposed an obligation for environmental restoration. Recognizing the evolution of international law and the growing significance of fundamental human rights, including R2HE, the Court emphasized the expanding importance of collective rights in contemporary society. This evolution necessitates active participation and protection by the judiciary.

Take Aways

The Argentine Constitution was amended in 1994 to include R2HE. A decade later, this case was argued and further articulated the standing requirements, the scope of R2HE, and the state’s obligations. At that time, R2HE, sustainable development, and the precautionary and prevention principles were being defined in new international agreements. The Court incorporated these definitions into domestic legal interpretation and established the courts’ role as an active participant in ensuring R2HE for the inhabitants of Argentina.

Terms

Element

Clean Air

Clean air is a critical substantive element of R2HE, justified by the profound impact that poor air quality can have on the right to a healthy environment and a wide range of other human rights, including the rights to life, health, food, housing and an adequate standard of living.
Element

Non-toxic Environments

R2HE includes protection against toxic environments among its substantive elements, and recognizes the entitlement of individuals and communities to live in environments free from harmful pollutants, toxins and hazardous substances. The right provides that governments and businesses should apply a human rights approach to regulations, legislation, policies and actions related to the production, import, sale, use, release and disposal of substances that may harm the environment or human health. Toxic pollution may include contamination of the land, air and/or water.
Element

Pollution

R2HE encompasses protection against pollution through its substantive elements – particularly the elements of Non-Toxic Environments, Clean Air, Safe and Sufficient Water and Healthy Biodiversity and Ecosystems – because pollution in excess of a certain standard may compromise the “healthy environment” to which all individuals have a right. Individuals are entitled to live in environments that are devoid of various forms of harmful pollution, including harmful contaminants, emissions and pollutants. Consequently, R2HE emphasizes the need for clean air, water, soil and surroundings that are free from contaminants detrimental to human health and well-being. It stresses the obligation of states to take action to prevent pollution. ‘Pollution’ may refer to air, water, marine, noise and/or chemical pollution.
Element

Safe and Sufficient Water

R2HE includes access to safe and sufficient water among its substantive elements. This internationally recognized right provides that every person must have affordable access to a supply of safe water in quantities adequate for essential personal and domestic uses, including drinking, sanitation, washing of clothes, food preparation and personal and household hygiene. When water is polluted, contaminated or overexploited, the right to adequate quantities of safe water is jeopardized.
Strategy

Emphasizing international developments

Referencing or examining recent international legal developments related to R2HE in order to support the protection of R2HE. International developments may include emerging case law, policy evolution, state practice, regional agreements or international treaties, among others. Commonly referenced international developments include, for example, the Paris Agreement and the UN Resolutions on R2HE.
Strategy

Emphasizing the State's duty to regulate or its failure to observe its due diligence obligations

Invoking a government’s affirmative obligations under national and/or international law to regulate and implement policy to advance and monitor the protection of R2HE. One common instance of this strategy appears in the climate change context, where a plaintiff might argue that the government has taken insufficient action to mitigate climate change or reduce emissions. Another common context is that of corporate pollution, which might prompt a plaintiff to argue the government did not do enough to ensure a polluter’s compliance with environmental standards.
Strategy

Reinforcing the status of the R2HE as a fundamental and independent human right

Recognizing R2HE as a standalone human right – that is, a human right that does not depend on or emerge from any other human right or source, but which exists independently and self-sufficiently. Recognition of R2HE as a fundamental and independent human right can be accomplished, for example, by invoking the UN Resolutions on R2HE.
Strategy

Using an established domestic body of law

Invoking well-established national laws, norms and/or legal principles in support of arguments related to R2HE. Where R2HE is present in a country’s constitution, the constitution will serve as the primary authoritative source for the right. Other, secondary sources of established domestic law commonly include statutory law and requirements governing public participation and/or the assessment of environmental risks. Environmental principles enshrined in domestic sources of law – for example, the precautionary principle – may also be emphasized to further the protection of R2HE.
Strategy

Utilizing a variety of legal arguments

Asserting numerous and diverse legal claims arising out of different bodies of law to increase the likelihood that at least one of the plaintiff’s arguments will succeed before the court. This could take the form, for instance, of a plaintiff bringing both an administrative challenge and a challenge based on the violation of their fundamental rights.
Good Practices

Expansive reading of the scope and content of R2HE

An expansive definition of R2HE refers to the broad and inclusive nature or interpretation of a particular concept, document, principle or legal provision related to R2HE. Legal definitions of the complex R2HE and associated concepts often lack specificity as applied to real-world circumstances, leading many courts to ‘fill in the gaps’ by situating the right within wider contextual frameworks of law, policy and science. As the triple planetary crisis of climate change, biodiversity loss and pollution intensifies, courts are increasingly reading the scope and content of R2HE broadly to address a growing variety and number of environmental harms. By providing inclusive and robust definitions of guarantees associated with the right – for example, by confirming R2HE ensures a safe climate, protects biodiversity and/or entails a duty to regulate – courts can help to ensure and further the right’s protections and utility.
Good Practices

Methods for ensuring baseline protections

Courts have employed various strategies, mechanisms and approaches to establish fundamental environmental safeguards, minimum standards and/or quality levels which are necessary to guarantee R2HE. These approaches aim to ensure a basic level of protection for individuals, communities and/or the environment. Further, courts have developed various methods to assess the appropriateness of government and corporate action relative to the baseline environmental standards. These methods can vary widely in form and across jurisdictions, but may take the form of a presumption in favor of the environment, the examination of long-term consequences or the application of environmental principles like that of non-regression.
Good Practices

Providing remedies

Provision of remedies is the process by which courts, after finding that a legal right has been violated or harmed, offer or provide a resolution or solution to address the harm or injustice suffered by the aggrieved party. Appropriate and effective judicial remedies play a key role in ensuring that R2HE materially protects individuals and all aspects of the environment. Remedies can vary widely in number, specificity, urgency and stringency, and those variations bear closely on whether a given remedy adequately redresses the original harm. Frequent remedies include protection and restoration measures, compensation and the creation of compliance or implementation mechanisms.

Polluter Pays Principle

This environmental law principle provides that it is the entities that pollute – whether it be land, air, water or food – who bear the costs associated with the prevention, control and cleanup of pollution, rather than passing those costs on to society, the environment or future generations.

Precautionary Principle

This environmental law principle provides that, where there exists a risk of serious and/or irreversible harm, scientific uncertainty about the extent of the harm or about the exact consequences of a particular action or process does not justify failing to implement measures to combat associated risks of environmental degradation or destruction. In other words, in the face of scientific uncertainty, authorities should still take measures to address environmental threats.

Prevention Principle

This environmental law principle provides that states and other actors must take meaningful steps to avoid environmental harms before they occur. In other words, if there is a tangible risk of environmental harm that is imminent and demands an emergency response, authorities are obliged to implement the necessary measures before damage is caused to the environment.

Sustainable Development

This concept provides that states should pursue measures that allow present generations to meet their essential needs without compromising the ability of future generations to do the same. Moreover, it recognizes the need for states to work towards their economic development while also ensuring the realization and protection of fundamental human rights. In some jurisdictions, sustainable development is regarded as a guiding principle, while in others, it is treated as a right with binding consequences.

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