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An unfortunate ruling for Ralco project

May 23, 2003

A Look At The Controversy Surrounding The Project To Build A Dam In Region VIII

(Ed. Note: Last week, a Santiago-based court handed down a surprising ruling involving the Spanish energy company Endesa and its controversial plan to build a hydro-electric plant in the upper basin of the Bio-Bio river (Region VIII). Finally ruling on a law suit filed six years ago by Nicolasa and Berta Quintremán, two elderly sisters of Pehuenche origin who have led a decade-long grass roots campaign against the plan, the court nullified the project’s years-old environmental impact studies ­ thus challenging the legal basis upon which the electric company has relied en route to completing roughly 80 percent of the project.

The ruling does not mean that work on the project, which will eventually mean flooding the Bio-Bio river’s upper basin and submerging the Quintremán family’s ancestral homelands, will be immediately halted. Endesa will no doubt appeal the ruling. The court decision does, however, complicate an already delicate situation, as local Pehuenche residents continue to meet with both government and Endesa representatives in an effort to negotiate suitable compensation for their soon-to-be-flooded properties. The feature below, published as an editorial in the conservative daily El Mercurio, explains the origins of the surprising court decision and offers a bit of insight into the history of environmental-based regulations in general. How the decision will play out in the long-run, however, will remain to be seen.)

The latest ruling proclaimed by Santiago's Sixth Civil Court puts in doubt the environmental permits given six years ago to the Ralco hydro-electric plant. This dam project, located near the upper basin of the Bio-Bio river, could have started in June 1997, when CONAMA gave its approval to the project's environmental impact study (EIA) and accepted the mitigation and compensation plan drawn by the company for the communities that would be affected by the work. This plan included the resettlement of more than 500 people, mainly of Pehuenche origin, from the land they had so far occupied, which would be submerged by the water.

Pehuenche families and non-governmental organizations fought against this plan, arguing that it would territorially fragment their community, preventing them from enjoying the same life conditions on new lands. This movement led the sisters Berta and Nicolasa Quintreman, along with Mercedes Huenteao, who initiated that same year in 1997, a judicial action against the above mentioned EIA, with the support of various ecological associations. The latest decision, announced a few days ago, did not object to the EIA presented by the company, but rather declared that the administrative acts related to the Ralco project's EIA system lacked public justification. It put particular emphasis on the annulment of the general agreement act signed on Sept. 1, 1995 between CONAMA and ENDESA to carry out the EIA for the Ralco project.

Considering the fact that 80 percent of the project has already been completed, this ruling, as well as putting the works on hold, will affect the outcome of ENDESA's negotiations with the families affected by the project. This judicial resolution seems to ignore the context of the environmental impact study system (SEIA) these days. The law on environmental bases passed in March 1994 formally established the necessity to submit investment projects to an EIA. The norms that govern this evaluation system were only clearly defined by another law, which was passed on April 3, 1997. Until then, evaluations were carried out according to a voluntary SEIA.

While this voluntary system continued to function, it had to gradually adapt to the successive versions of what would eventually be the future SEIA and, for not having a definite institutional stamp, it required amiable agreements between the various parts involved. Between 1992 and 1997, 135 projects were submitted to this voluntary system, which represent investment of around US$17.6 billion. The actors involved in the projects generally acted in good faith.
As a matter of fact, the various agreements reached according to this system led to the improvement of environmental engineering design and management procedures, making it possible to increase the participation of the citizens. Thus, this voluntary system served as a model for the obligatory SEIA, implemented by the law on environmental bases and allowed for a gradual adaptation of the various public institutions to the new environmental institution. This situation, which was certainly inappropriate, explains the eventual imperfections that are the subject of the court's objection. We can only suppose that the court will keep this in mind.

Translated by Catherine Makereel

Monti Aguirre
Latin American Campaigns
International Rivers Network

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