Court partly accepts complaint against Cerro Colorado

Monday, February 11, 2019

The environmental court of Santiago decided to partially accept one of the claims filed against the committee of ministers in relation to the environmental assessment process that culminated in the approval of the "Cerro Colorado operational continuity" project in the Tarapacá region of Chile. With this decision, the environmental qualification resolution (RCA), is annulled for part that is flawed, with only that aspect going back to the environmental assessment phase.

"In this regard, this court does not share the conclusion of the committee of ministers when validating that the measures and conditions approved are "appropriate "to take charge of the impact in question, given that, with its sole adoption, without a proper technical assessment, it is not possible to establish to what proportion the expected reduction in the recovery times of the Pampa Lagunillas ecosystem would occur, leaving an uncertain residual impact. Therefore, these arbiters understand that the resolution opposed is not sufficiently well-founded on this point, since the conditions imposed and which were aimed at reducing the recovery times had to be evaluated in terms of their effects," the ruling states.

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Regarding the accepted claim, the ministers considered as an inescapable antecedent, at the time of resolving the case, the previous context in which the mining project was developed, the continuity of which was submitted to the environmental impact assessment system (SEIA). They explain, in first place, the circumstances that led to the application of a sanction against the mining company, due to the effects of its operation on decreases in the groundwater levels of the Pampa Lagunillas aquifer, which in turn affected the overlying wetland¡, and secondly, the conditions previously imposed by the environmental authority at the time to recover the environmental heritage, which were established in Exempt Resolution No. 67/2011 of the environmental assessment commission of Tarapacá.

The ruling explains that this situation and the need to achieve the recovery of the groundwater levels of the aquifer are essential elements in an appropriate environmental evaluation of any project that intends to affect in some way the natural resources in an environmental recovery zone, as in this case.

"In the opinion of the court, the civil observation regarding the environmental impact that it will have on the recovery of the groundwater levels of the Pampa Lagunillas aquifer, the operational continuity of the project in question has not been addressed in a complete, precise and sufficient manner during the process of environmental assessment, not having, therefore, duly considered the observation as mandated by law, which justifies accepting the claim on this point," the ruling adds.

Criteria for environmental conservation

The ruling discusses the duty of observance of both the project owner and the SEA regarding the recovery of the aquifer that feeds the affected wetland. This in light of the application of preventive principles and the polluter pays concept, and concepts of sustainable development, environmental protection, preservation of the environment and preservation of nature defined in Law No. 19,300.

"That, indeed, having inspired this administrative act for the protection of environmental components - aquifer and wetland - that had been the object - at least - of significant environmental effects due to the extraction of water associated with the mining site, the term of recovery of groundwater levels of the aquifer, which in turn sustains Pampon Lagunillas wetland - year 2050 in Well LA-2 - was not available to the owner to propose, nor to the environmental authority to approve something different without suitable environmental considerations. Indeed, the objectives of environmental protection and recovery that underlie Exempt Resolution No. 67/2011 meant its possible modification will not be grounded solely in productive-economic considerations for the extension of the lifespan of the associated project, " the ruling adds.

Climate change

Likewise, the ministers reflected on climate change and the effects it will have on the recharge of aquifers on a global scale, due to the alteration of precipitation and temperature patterns. In the specific case of the Chilean highlands, the statement indicates, the predictions indicate an increase of between 0.5 to 1.5 °C in average temperatures and a decrease of 5% to 15% in annual rainfall by 2040.

With these considerations and after analyzing the evidence presented during the complaint process for the Cerro Colorado Operational Continuity project, the ministers observed that "the simulations carried out to evaluate the effects of both the groundwater pumping, and the measures and/or conditions established for their control, did not consider the influence of climate change on the recharge of the aquifer and therefore on the expected recovery times," this being a situation that must be remedied.

"In conclusion, when complying with the provisions of this ruling, the environmental authority must evaluate the effect on the Lagunillas ecosystem of the extraction of groundwater for the mining activity of CMCC, considering the climate change scenarios used by the experts on this matter," the court said.

The judgment of the Santiago environmental court rejected the claim lodged by the San Isidro de Quipisca indigenous agricultural association, as its claims diverged from what it had observed in the indigenous consultation process.

Both parties went to the Santiago environmental court once the environmental authority rejected the appeals that had been filed against the RCA that approved the project, because - it was asserted at the time - the observations presented in the environmental assessment process of the project were duly considered.

The court was comprised of the ministers Alejandro Ruiz and Juan Escudero Ortuzar. The ruling was drafted by the former.

This release was published using an automatic translation system