The application of the procedural rules of the General Environmental Law

1.   Facts

The Asociación para la Protección del Ambiente y Educación Ecológica "18 de Octubre" (an environmental NGO), initiated amparo(2) proceedings before a federal court of the City of La Plata against Aguas Argentinas S.A. (the water utility providing services in the City of Buenos Aires and the greater Buenos Aires area), the Ente Tripartito de Obras Servicios Sanitarios (ETOSS) (the water regulatory agency), the Province of Buenos Aires and the Municipality of Quilmes.

The purpose of the action was the restoration of the hydraulic equilibrium of the district of Quilmes by means of the immediate cease of the facts, acts and omissions which, according to the claimant, blatantly breach the right of the neighbors to enjoy a healthy and balanced environment that is suitable for human development and productive activities.

As alleged by the claimant, the inhabitants of the district of Quilmes face high risks to their health and suffer material damages to their properties as a consequence of the increase of the underground water level.

The NGO requested an injunction in order that underground water extraction is reestablished by the rehabilitation of certain extraction wells operated by the water utility, the Muninicipality of Quilmes and the Province of Buenos Aires and by the installation of all pumping devices required in order to restore the equilibrium of the Municipality of Quilmes’ hydraulic system.

The lower court granted the injunction and all three claimants filed an appeal before the court of appeals. The appeal filed by the Municipality was rejected on the grounds that it was filed after the date on which the appeal was due.

2.   The injunction

On July 8, 2003, the Federal Court of Appeals of the City of La Plata rejected the appeals and confirmed the injunction issued by the lower court. However, the Court amended the injunction because, given the high concentration of contaminants in the underground waters, fulfillment of the injunction as issued may worsen the situation. To avoid this, feasibility assessments must be performed so as to identify the extraction wells that should be put back in operation, the quantity of wells, the way they should be operated and the place and the manner in which the extracted waters should be disposed.

For said reason, defendants were required to take all measures needed to implement the pumping and extraction works as provided for in an agreement entered into in 2002 between the Province of Buenos and the Municipality of Quilmes that was subsequently approved by the ETOSS and the water utility.

This agreement set forth the following remediation works: (a) the evaluation of the conditions of the underground waters in various districts of the Province of Buenos Aires (b) diagnosis of the situation of the underground waters in said districts and (c) the definition of the priorities for the remediation works. Extraction wells must be drilled in various areas to be identified in the above assessment. The location of said wells would be determined on a map of the underground waters. Besides, the conditions of the sewer and rain gathering systems must be checked in order to assure that the extracted waters could be disposed through said systems.

The above works are without prejudice to the liability that may correspond to each defendant for the damages that they might have caused to the inhabitants of the districts of the southern greater Buenos Aires area.

The novelty of the injunction rendered by the Court of Appeals is the application of certain procedural rules set forth by the General Environmental Law No 25,567.

According to the second paragraph of section 33 of the General Environmental Law, res judicata effects of judgements rendered in connection with damages to the environment are erga omnes (i.e. apply not only to the parties to the lawsuit but also to third parties). The only exception contemplated by the law to this principle is when a lawsuit is rejected on the grounds that the evidence produced was insufficient to demonstrate the defendants’ liability.

On the basis of section 33 of the Environmental General Law, the Court of Appeals extended the territorial effects of the injunction to include not only the Municipality of Quilmes but other districts that were not expressly included in the lawsuit among the defendants. In spite of not having been included as a defendant in the lawsuit, the effects of the injunction were also extended to the Argentine State in its capacity as grantor of the water service concession and water regulatory agency for environmental matters.

In this respect, the Court of Appeals sustained that once initiated by an affected party, the proceedings benefit third parties. This because “having determined the existence of the alleged contamination, a judgement that, on the basis of the individual nature of the action limits its effects to the bilateral procedural relationship existing in individual proceedings and orders to cease contamination only in respect to the claimants but not in respect to the rest of the affected community members would be vain and absurd; it is obvious that said judgment must have erga omnes effects” (1st. Court of Appeals on Civil and Commercial Matters of the City of La Plata in re "Sagarduy, Alberto", rendered on November 15, 1994). The satisfaction of the fragment or portion of the interest corresponding to each member of a community is by nature extended to all affected members of said community, in the same way that a damage affects each member and, simultaneously and globally, affects the rest of the community (Court of Appeals of the City of Azul in re "Municipalidad de Tandil v T.A. La Estrella S.Aa and other", rendered on October 22, 1996).

Finally, the Court considered that the extension of the effects of the injunction to all individuals involved in the matter addressed in these proceedings do not affect the right to defense of those who were not able to participate in the proceedings because to issue the injunction the court took into account the evidence offered by defendants and defendants have similar interests to the third parties to which the effects of the injunction were extended.

(2) The amparo is a fast and summary proceeding.