Mining Exploitation and the Environment

Asociación Multisectorial del Sur en Defensa del Desarrollo Sustentable, an association fighting for sustainable development filed a complaint to obtain a declaratory judgment under Section 322 of the Argentine Civil and Commercial Proceedings Code “in order to establish whether the National Atomic Energy Commission (Comisión Nacional de Energía Atómical or CNEA) must abide by the terms of Section 41 and 43 of the Argentine Constitution and Minimum Standards Law No. 25,675.” In addition, this association requested the ordering of a cautionary measure. To this end, it pointed out that “The great harm inflicted to the environment by the San Rafael Industrial Mining Facility operator…, requires the immediate ordering during the proceedings, of the immediate ending of said harmful effects though the awarding of the measure deemed most appropriate by Y.T.” The claimant also requested the court to order the defendant to refrain from persisting on the award of an authorization to resume activities in the San Rafael Industrial Mining Facility during the proceedings, without previously complying with the corresponding environmental restoration, since otherwise, the alleged harmful activities would continue damaging the environment, gravely affecting current and future public health.

The Court Judge awarded the cautionary measure requested and consequently, issued a restraining order instructing CNEA to abstain from altering the current state of the Sierra Pintada mineral deposit. 

Federal Court of Appeals “A” of the Province of Mendoza vacated the restraining order mentioned above. In order to reach this decision, the Court a quo judged that: (a) legal plausibility and peril in the delay had not been proved, both being requirements for the issuing of the cautionary measure; and (b) there was no connection between the restraining order issued and the purpose of the complaint for declaratory judgment filed. 

Challenging the above decision, the claimant filed an extraordinary appeal, whose denial gave place to the filing of a complaint before the Argentine Supreme Court of Justice.

On May 26, 2010, the Argentine Supreme Court of Justice decided that the extraordinary appeal filed by the association does not challenge a firm decision or a decision comparable to it (Law No. 48, Section 14) and consequently, rejected the association’s complaint. Despite the above, and considering that the environmental matters at hand allow judges to study the case disregarding formalities, our highest court added that “legal plausibility and peril in the delay had not been proved, these being requirements for the issuing of the cautionary measure requested; and that there is no connection between the restraining order issued by the court judge and the purpose of the complaint for declaratory judgment filed; conclusion that has not been sufficiently and adequately overturned and by the appellant.”