By Diana Rodríguez López
The way in which the unconventional hydrocarbon boom impacts on Argentina is more than relevant, since, according to the US Energy Information Agency (2013), it is a global power in shale resources: second in gas and fourth in oil. The Vaca Muerta formation is designated by the same agency as the play with the best potential outside North America. Its importance has caused major companies in the sector to focus on northern Patagonia in recent years, advancing in different projects.
The regulatory gaps and the lack of regulatory will of the State allowed the introduction, on a massive scale, of the technological package known as fracking, granting greater facilities to companies in the business sector, such as those contemplated in decrees 929/13 of the National Government and 1208 / 13 of the Neuquén Executive. In this sense, the advance had a correlation in reforms that restrict collective environmental rights, such as Decree 422/13 of the Government of Neuquén, which exempts unconventional wells from an Environmental Impact Study –therefore from a public hearing- and, instead, demand an Environmental Report. The promotion of these projects also violates collective indigenous rights, as mechanisms for consultation and prior, free and informed consent are not implemented in the affected indigenous territories.
In Colombia, meanwhile, the National Development Plan 2010-2014, adopted through Law 1450/11, imposes the use of national wealth in terms of natural resources in the mining-energy sector in order to "generate sustainable growth and greater Social equity". Through different guidelines, such as Agreement 03 of 2014 of the National Hydrocarbons Agency, the identification and establishment of the Contracting Regulations for the Exploration and Exploitation of hydrocarbons applicable to the development of unconventional deposits is proposed. The National Government has endeavored to show Colombia as an attractive destination for companies in the sector, alluding that it is a country with clear and stable regulations that offers legal and political security to investment companies.
The Precautionary or Precautionary Principle Set forth in the 1992 Rio Declaration, in art. 15, this principle establishes that when there is a danger of serious or irreversible damage, the lack of absolute scientific certainty will not be a reason for not taking effective measures that prevent the degradation of the environment. In Argentina, it is part of the body of the General Environmental Law 25,675, art. 4, as a principle of environmental policy. Although this principle emerges from environmental law, the legal doctrine associates it specifically with the law of damages: “the precautionary principle is a tool for the defense of the environment and public health, which greatly expands the limits of action of the Law of Damages, with a sense of prevention, strongly interventionist, in order to prevent the consummation of serious and irreversible damage. An environmental damage of vast proportions ”(Cafferatta, 2013).
Environmental damage is not characterized as common damage. Among other things, it is impersonal, it is not current but uncertain future, it is massive damage. It is linked from the point of view of cause and effect to collective or anonymous causality. It is a difficult test damage. At the same time, it has no limits or borders in time, in geographical space or in the people (crowds, groups, communities) it affects. The precautionary principle operates in relation to potential environmental damage, for this there must be: “a) risk, threat or danger of serious or irreversible damage; b) uncertainty or absence of scientific information ”. According to the above, one of the requirements for applying the principle is the scientific evaluation of risk, which in Argentine legislation is defined with a broader formula: lack of scientific certainty or lack of information, being thus, “uncertainty does not necessarily it must be qualified ”(Cafferatta, 2013).
In the coffee-growing country, the principle was included in Law 99 of the Environment of 1993, in the general principles of environmental policy. The principle was sued before the Constitutional Court; This, in Sentence C-293/02, concluded that “when the environmental authority must make specific decisions, aimed at avoiding a danger of serious damage, without having absolute scientific certainty, it must do so in accordance with the environmental policies outlined by the law". Additionally, it established the following requirements for its application: (i) That there is a danger of harm; (ii) That it is serious and irreversible; (iii) That there is a principle of scientific certainty, even if it is not absolute; (iv) That the decision that the authority adopts is aimed at preventing the degradation of the environment; (v) That the act in which the decision is adopted is motivated. In this ruling, he recalled that the exploitation of natural resources and the exercise of economic activities cannot violate the right to a healthy environment, regardless of how important these are for the country's economy. The right to the environment is fundamental for the existence of humanity and cannot be separated from the right to life and health of people. Roles and controls
In September 2012, the Office of the Comptroller General of the Republic, the highest Colombian fiscal control body, sent a statement to the Ministries of the Environment; Minas y Energía and the National Environmental Licensing Agency, in order to warn the administration so that in the technical environmental regulation of unconventional hydrocarbons the Precautionary Principle is taken into account, given the latent risk to environmental heritage due to the possible contamination of groundwater, the affectation of water sources, the risk for urban centers, public health and geological risk (07/09/2012). The Comptroller's Office carried out a detailed analysis of the Colombian potential, of the studies carried out, of the potential risks, among others, to strengthen the need to apply the principle and thus not affect the commons. In addition, he made comments on the National Development Plan 2010-2014: the diagnosis he gave on the mining-energy sector drew attention, specifically on the favorability of mining investment and exports with exemptions, soft environmental laws and little rigor in the inspection - This is reflected in the already serious environmental situation produced in at least 26 large-scale exploitation projects (12/15/2010). The organization understood that if fracking is given free rein in a similar framework, the aforementioned problems would deepen.
In the case of Argentina, no warnings have been issued from any control body, neither provincial nor national. The leading voice of the National Government has been supported by the provincial institutions and their executives. In Neuquén, the province that commands the exploitation of Vaca Muerta, the Ministry of the Environment endorses the projects without any questioning or toughening of controls, nor does it raise the existence of doubts or potential environmental damage. Resistances and achievements
In Argentina, the principle has recently been manifested in more than 30 municipal ordinances prohibiting and moratorium on the hydraulic fracturing technique, a domino effect generated by the ordinance sanctioned in December 2012 in Cinco Saltos, Río Negro province. These regulations have not had an easy path, some have even been vetoed by local executives. The hardest setback occurred in the municipality of Allen, Río Negro, where the provincial government demanded the unconstitutionality of the regulation before the Superior Court of Justice of Rio Negro, considering that the municipalities do not have the power to legislate on hydrocarbons, as these property of the province. This argument had already been made throughout the country, even though the ordinances did not prohibit exploitation but the use of fracking, as a technique, and alleged the absence of the application of the precautionary principle by provincial officials. The highest provincial court resolved the case by turning its back on the social claim, which also required democratic participation in the planning of the territory (Cabrera, 2014).
On the other hand, the justice of the province of Chubut has paralyzed, by means of precautionary measures, two YPF wells: La Greta, in June 2013, and El Trébol, in March 2014, admitting two appeals filed by a Mapuche resident who argued the lack prior consultation and the possibility of contamination of the water tables when fracturing the rock (Door E, 06/23/2013).
The application of this principle, by public officials, goes hand in hand with active social participation. Thus, in Colombia, popular consultations were held on mining and energy, in the municipalities of Tauramena and Piedras, departments of Casanare and Tolima respectively, in order to know the position of its inhabitants. In both they voted overwhelmingly: "No to the projects." Subsequently, the Ibagué Prosecutor's Office opened an investigation against the mayor of Piedras and the members of the Municipal Council for having exceeded their functions by having called a popular consultation to decide whether the extraction activities of non-renewable natural resources are prohibited, since, this It is the exclusive competence of the national mining and environmental authorities (El Tiempo, 04/02/2014). The numerous studies that denounce the damages linked to fracking, and the moratoriums and prohibitions around the world cannot be unknown in Latin America. The doubt remains latent in the context of the dispute between the advance of this exploitation and the resistance of the local communities for not being sacrificed. This is where resorting to the precautionary principle can help resolve the dispute.
Southern Petroleum Observatory