Organización de Ambientalistas Organizados v. Ministry of Environment and Sustainable Development

Summary:

On December 30, 2021, the Ministry of Environment and Sustainable Development published Resolution 436/2021 approving the implementation of an offshore seismic acquisition project submitted by the Norwegian company Equinor. This approval of offshore fossil fuel exploration resulted in several lawsuits seeking an injunction to halt the project and an order declaring the approval’s regulations null and void. Some of those lawsuits are, partially, grounded on climate concerns. Other relevant cases can be found here and here.

On January 7, 2022, the NGO ‘Organización de Ambientalistas Organizados’ sued the Ministry of Environment and Sustainable Development for its approval of the offshore exploration activities. Initially, the claim was presented as a habeas corpus for the protection of the Southern Right Whale and its habitats, but after the dismissal of the claim by the Federal Court, the Court of Appeal admitted it and asked for its conversion into a constitutional collective action (amparo ambiental colectivo). The main focus of the new claim remained the protection of the Southern Right Whale, but also introduced concerns regarding the climate impacts of the project. On these issues, the lawsuit refers to the urgency raised by the IPCC reports, the project’s incompatibility with the available carbon budget (citing the 2021 International Energy Agency reports), the Argentinian NDC, and, more generally, the Paris Agreement and Sustainable Development Goals.

On January 14, 2022, all the three climate lawsuits against the offshore exploration activities (together with other non-climate related cases) were combined, and the court will hand down a single judgment for all.

On February 11, 2022, the Federal Court of Mar del Plata ordered a halt to the fossil fuel exploration activities. The order does not make any mention of climate change concerns. Instead, the judge focuses on failures regarding procedural rights (participation and information) with explicit mention of the Escazú Agreement, lack of strategic environmental assessment, and possible risk to marine biodiversity. In the decision, the precautionary principle plays a key role. On February 15, 2022, the government filed an appeal to the injunction order. In its appeal, the government is also asking for the removal of the judge from the case. On February 18, 2022, a different judge (Federal Court of Mar del Plata N.4) allowed the appeal to proceed with suspensive effect. That means that the exploration activity can go ahead until the Federal Court of Appeal revises the injunction order.

On June 3, 2022, the Federal Court of Appeal (Federal Chamber of Mar del Plata) annulled the injunction relief delivered by the Federal Court on February 11, 2022. However, at the same time, the Court ordered the Ministry of Environment and Sustainable Development, as a new injunction, to issue a new complementary environmental impact assessment that considers possible cumulative impacts of the activities. In this new assessment, the spatial and temporal scope of the project's implementation must be analyzed and weighed. It is also mandatory to include the participation of the National Parks Administration and to consider the results of the public consultative hearings, organized at both local (public hearing initiated on 30 May 2022), and national levels (public consultation which ended on 19 May 2022). Finally, the Court asked for the inclusion of the Ministry of Environment and Sustainable Development in the control and monitoring of compliance with the Environmental Impact Statement and its corresponding Environmental Management Plan (a task before assumed only by the Secretary of Energy). In this sense, exploration activities should stop (again) until all these requirements are met. Climate arguments were not developed by the Court of Appeal.

On December 5, 2022, the Federal Court of Appeal (Federal Chamber of Mar del Plata) considered that the authority had met all the requirements asked in its order of June 3th. That implies the termination of the injunction and, therefore, the exploration activity can go ahead until a final decision on the merits is delivered. Climate arguments are, once again, absent in the Court of Appeal's decision. The plaintiffs announced their intention to appeal this decision before the Supreme Court.

At Issue: Whether the Ministry of Environment and Sustainable Development decision to approve the offshore exploration of fossil fuels must be halted and declared null and void for its impacts on the Southern Right Whale and climate change.