The Mendoza Supreme Court’s differential treatment occurred in a lawsuit over the authorization of fracking, or hydraulic fracturing, for extracting oil and gas from the Vaca Muerta formation in the Argentinian province.
Civil society groups express concern about the Mendoza Supreme Court’s refusal to receive information about the dangerous impacts of using fracking to extract oil and gas on indigenous peoples and the environment in Mendoza. The Court rejected the participation of seven organizations--including an organization of the Mapuche Indigenous People and both Argentinian and international groups on human rights and the environment--in a case that will impact the regulation of the oil and gas industry in Mendoza.
The court has instead shown preference toward the fossil fuel industry, having allowed the participation of several groups representing the interests of oil companies in the same court case.
The court is weighing a decision involving the authorization of hydraulic fracturing--also known as fracking--to extract oil and gas from the Vaca Muerta formation in Mendoza. Although fracking has not been widely used in Mendoza, the technique has caused public health and safety risks in other countries because of its impact on the environment.
The organizations requested to participate in the case as "Friends of the Court" (amicus curiae). This is a common practice permitted in Mendoza and many countries around the world that allows people not otherwise connected with litigation to share information with the courts in cases that affect the public interest.
One justice dissented from the Supreme Court's decision, criticizing that this ruling "is far from the level of listening that ought to demand the judge's attention in the resolution of cases of undoubted social interest, such as the one at issue here." Furthermore, the justice pointed out that "[t]he entities requesting this Court to grant them participation as amicus, have vast experience and specialization in environmental issues."
So far, the Supreme Court has rejected the interventions of the following organizations: Organización Identidad Territorial Malalweche (Mendoza); Xumek (Mendoza); Centro de Estudios Legales y Sociales (national); the Interamerican Association for Environmental Defense (international), the Center for International Environmental Law (international); Earthjustice (international) and the Environmental Law Alliance Worldwide (international).
Ana Laura Piccolo, executive director of XUMEK:
"At Xumek, we are concerned by the provincial Supreme Court’s repeated rejections of the participation of civil society organizations through the figure of the 'Friend of the Court.' The organizations that have come forward to collaborate have established experience in the subject matter of the case and we make our contributions from a serious and objective perspective, in accordance with the technical and legal knowledge and expertise we possess. In addition, we have participated as amicus curiae in numerous judicial proceedings, both local and international".
Ñushpi Quilla Mayhuay Alancay, attorney in charge of the Indigenous Peoples Area of XUMEK:
"As expressed in the dissenting vote, ignoring all the voices of civil society in a case of high social complexity affects the dialogue between the judiciary and the citizens, thereby weakening the democratic process in cases of social interest where the human rights of society can be affected".
Erika Schmidhuber, attorney with the Center for Legal and Social Studies (CELS):
"We consider it essential that the province complies with international human rights standards on free, prior and informed consultation with indigenous peoples for development projects in their ancestral territory, regardless of whether or not that territory is formally recognized. The Argentine State has already been condemned internationally for not complying with these standards. It is necessary for the Mendoza court to evaluate the arguments we have presented as they reflect the obligations that Mendoza must comply with."
Jacob Kopas, attorney at Earthjustice:
"Strong scientific evidence from other countries shows that fracking generates serious contamination risks, particularly by leeching toxic chemicals into nearby water supplies. It is essential that the Supreme Court of Mendoza take this evidence into consideration along with the support for fracking it has received from groups that profit from oil extraction."
Sofía Barquero, attorney with AIDA's Ecosystems Program:
"Our interest in this case stems from our desire to ensure that environmental protection and the rights of indigenous peoples are an integral part of any decision that may affect these communities. In that sense, we respectfully call on the Court to reconsider its decision and allow for the inclusion of civil society voices in this judicial process. We trust that the Court will take into consideration the importance of listening to all stakeholders in this case."
Upasana Khatri, attorney at the Center for International Environmental Law (CIEL):
"Fracking poses long-term environmental and health hazards that outlast production. It is essential that the Court hears from civil society experts on the evidence of such harms and the legal duty to prevent them - not just from industry actors with a stake in fossil fuel production - to ensure an informed decision on the risks and regulation of fracking in Mendoza."
Organización Identidad Territorial Malalweche, Werken Gabriel Jofre, +54 2604592679
XUMEK Asociación para la promoción y protección de los derechos humanos, Ñushpi Quilla Mayhuay Alancay, +54 9 2616807798
CELS, Martina Noailles, [email protected], +54 9 11 6562-6566
AIDA, Víctor Quintanilla, [email protected], +521 5570522107
Earthjustice, Jacob Kopas, [email protected], +1 5862924603
CIEL, Press Office, [email protected]
