Project
Stopping the spread of fracking in Latin America
“Fracking” is short for hydraulic fracturing, a process used to extract oil and natural gas from historically inaccessible reservoirs.
Fracking is already widespread in the global North, but in Latin America, it is just beginning. Governments are opening their doors to fracking without understanding its impacts and risks, and without consulting affected communities. Many communities are organizing to prevent or stop the impacts of fracking, which affect their fundamental human rights. But in many cases they require legal and technical support.
What exactly is fracking, and what are its impacts?
A straight hole is drilled deep into the earth. Then the drill curves and bores horizontally, making an L-shaped hole. Fracking fluid—a mixture of water, chemicals, and sand—is pumped into the hole at high pressure, fracturing layers of shale rock above and below the hole. Gas or oil trapped in the rock rises to the surface along with the fracking fluid.
The chemical soup—now also contaminated with heavy metals and even radioactive elements from underground—is frequently dumped into unlined ponds. It may seep into aquifers and overflow into streams, poisoning water sources for people, agriculture, and livestock. Gas may also seep from fractured rock or from the well into aquifers; as a result, water flowing from household taps can be lit on fire. Other documented harms include exhausted freshwater supplies (for all that fracking fluid), air pollution from drill and pump rigs, large methane emissions that aggravate global warming, earthquakes, and health harms including cancer and birth defects.
AIDA’s report on fracking (available in Spanish) analyzes the viability of applying the precautionary principle as an institutional tool to prevent, avoid or stop hydraulic fracturing operations in Latin America.
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Organizations concerned by Mendoza Supreme Court rejecting their Participation while allowing that of the oil industry in litigation over fracking
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). Statements from the organizations 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." press contacts 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]
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The Mapuche: in defense of ancestral territory in Argentina
In the south of the province of Mendoza, Argentina, several communities belonging to the Mapuche people—one of the 39 self-recognized indigenous peoples throughout the country—have come together in the Malalweche Territorial Identity Organization to defend their rights, way of life and territorial integrity from extractive, energy and tourism activities and projects. One of the threats that these communities are currently facing is the advance of the exploration and exploitation of unconventional hydrocarbons through fracking. In 2018, the government of Mendoza issued Decree 248, which regulates fracking activities in the province. Before issuing the norm, it overlooked the right of the Mapuche communities in the area to be consulted and to give their free, prior and informed consent. It then made the consultation conditional on the communities having legal recognition of rights over their territory. Since then, the Malalweche Territorial Identity Organization has been fighting a court battle to have the decree declared unconstitutional. The lawsuit, initiated by the Oikos Environmental Network Association, is backed by national and international environmental organizations, including the Association for the Promotion and Protection of Human Rights-Xumek, the Environment and Natural Resources Foundation (FARN), AIDA and Earthjustice. The Mapuche communities are tireless in their struggle. The reason is simple: their strength comes from what they protect. It comes from their intimate connection to the territory and all that it holds. A broader vision of territory As in the case with indigenous peoples across the American continent, territories of the Mapuche people are rich in natural resources, which causes large interests to set their eyes on them, ignoring or wanting to ignore those who legitimately inhabit them. For the indigenous communities, territory is not limited to geographical space, but is conceived as the wider space from which human activities, such as grazing paths, emerge and converge. Rivers, mountains and animals are essential elements of the ancestral territory of the Mapuche people. They are distinctive parts of their culture. "These elements also make up the transhumance—a type of pastoralism that consists of seasonal movement along migratory routes—of the people who move, who go from one place to another," explains Gabriel Jofré, a traditional authority and spokesperson for Malalweche. "Today the territory is limited by private property, which makes you settle in a place; our parents used to say that you go where the territory takes you.” The intrusion and territorial usurpation by dominant and oppressive elites —at the beginning of the 20th century—led to the exodus of members of the Mapuche people, the dispersion of others and the silence of many more for fear of repression. In defense of community life Faced with the environmental, social and economic impacts of the intrusion of business activities in the ancestral territory of the Mapuche, the organization Malalweche promotes access to indigenous community property. Although the Argentine State recognizes in its Constitution the ethnic and cultural pre-existence of indigenous peoples and has ratified international conventions that oblige it to respect and guarantee their rights, the legal recognition of the rights of Mapuche communities to indigenous territories faces administrative obstacles and delays due to bureaucratic processes. "That is why, to avoid legal obstacles, we have developed the strategy of creating productive cooperatives," explained Gabriel. Kume Matru food products factory, a cooperative enterprise, was inaugurated on June 23, the date on which Winoj Tripantu, or the beginning of the Mapuche year, is celebrated. Kume Matru is a clear example of the versatility of these communities to walk the path of sharing and bringing together their own needs and those of others; to deliver not only food, but also the whole chain of hands that made it possible. "The people who recover these processes are a reflection of the ancestral forces that are in the territory of the pullü, the spirit of our grandparents," said Gabriel. "It is our children who begin to recover what at some point was cut off, these are processes that must be protected in order for that to happen." In line with this need, last March, the Inter-American Commission on Human Rights established that, in a context of climate crisis and environmental deterioration, "the States have the duty to title, delimit and demarcate the collective ancestral territory, attending to the particular characteristics of the specific human group and avoiding granting concessions for projects that may affect the territories in titling, delimitation and demarcation processes without a process of consultation and consent". The norms are clear, both domestic and international. States must guarantee the rights of indigenous peoples, avoiding governmental acts and/or judicial rulings that could affect them, and ensuring that economic development is sustainable and respectful of environmental integrity. Let us recover the legacy of the original peoples, who teach us to live in harmony with nature, as parts of the whole, interconnected with their forces, from which our own must also emerge as a renewed impulse to defend our common home.
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In regressive decision, high court endorses fracking in Colombia
Bogotá, Colombia. Colombia’s highest administrative court, the Council of State, on Thursday ruled against a lawsuit that sought to nullify the government’s regulation of fracking, effectively endorsing the controversial technique’s implementation in the Andean nation. The nullity lawsuit was filed by the Public Interest Law Clinic of the Universidad del Norte—which was jointly advised by AIDA, Corporación Podion, and the legal clinics of Universidad Javeriana and Universidad de los Andes—in an attempt to challenge the legality of the rules that would allow for fracking operations in the country, found in 2013’s Decree 3004 and 2014’s Resolution 90341. This decision means the suspension of Colombia’s judicial moratorium on fracking, which has been in place since 2018, when the when the Council preventively suspended the rules based on the precautionary principle and due to the lack of certainty about the risks of irreversible damage that the technique implies for the environment, climate and public health. Fracking has been assessed by national and international academics and scientists as an experimental technique that threatens air, water, human health, democratic participation, social fabric and culture, traditional knowledge systems, biodiversity and, in the long term, economic, seismic and climatic stability. In addition, it creates atmospheric pollution due to the emission of methane—a potent gas whose warming potential is 84 to 87 times greater than carbon dioxide on a 20-year scale. While the Council of State's ruling ratifies the government's regulations and lifts the moratorium, it does not exonerate national and local authorities from protecting the environment and respecting the fundamental rights of the population as they consolidate the mining and energy policy. Legal experts who brought the case before the Court respond to the ruling: "In Latin America and around the world, many countries have banned fracking because of its impacts on the environment and on the protection of human rights. The ruling of Colombia’s Council of State is regressive and goes against international advances on environmental, climate and human rights issues.” - Yeny Rodríguez, attorney with the Interamerican Association for Environmental Defense (AIDA) "The Council of State has issued a decision contrary to the facts proven in the litigation. They have ignored the survey conducted by the National University of Colombia, the report of the expert commission, the concept of the Attorney General's Office, and the rest of the documentary evidence and scientific texts that clearly demonstrated the need to prohibit this technique under the precautionary principle. In addition, the ruling ignores Colombia's international climate commitments and the principle of intergenerational solidarity, as it ignores the fundamental rights of future generations." - Juan Pablo Sarmiento, plaintiff’s attorney in the case. “The Council of State lost a great opportunity to strengthen, through the courts, a regulation that many experts considered too weak to protect the environment and public health. Its now is in the hands of the national government and the legislature to guarantee society the protection of the precautionary principle and democratic participation in environmental matters" - Juan Felipe García, attorney with the Law and Territory Clinic of the Universidad Javeriana “The decision of the highest administrative court in the country is not an open invitation to carry out fracking in Colombia. The government must fully guarantee the right to participation and the voice of communities in decision-making about projects that may generate environmental impacts in their territories, as well as guarantee the safety and protection of environmental leaders who defend their territories". - Silvia Quintero, legal advisor to the Environmental and Public Health Legal Clinic of the Universidad de Los Andes “The lifting of the judicial moratorium on fracking leaves open the possibility of moving forward with such projects whose contracts were previously suspended. It’s necessary that fracking have a social license because several regions of the country have been considered as potential areas for its implementation." - Lizeth Gómez, attorney with Corporación Podion Contactos de prensa: Juan Pablo Sarmiento, [email protected], +573005514583 Yeny Rodríguez, AIDA, [email protected], +573107787601 Juan Felipe García, Clínica en Derecho y Territorio de la Universidad Javeriana, [email protected], +573125588889 Lizeth Gómez, PODION, [email protected], +573176430036
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