For the past few weeks, a few of us at EarthRights International’s Peru office have been spending hours researching, studying, and analyzing the international law requirements for sustainable development and environmental protection. Specifically, our focus has been on the international requirements for conducting, reviewing, and approving environmental impact assessments (EIAs). Our goal has been to produce an amicus brief challenging the way in which the EIA for Yanacocha’s Conga gold mine project was approved, to support a legal challenge to the project currently pending before the Constitutional Tribunal of Peru.
The results of our research have been clear: international law requires that in order to protect the environment from irreversible harm that will hurt future generations, the review and approval of EIAs should be conducted by a government authority with sufficient independence to ensure that legitimate concerns for environmental protection are not ignored in favor of purely short-term economic considerations.
This level of independent scrutiny was completely lacking with the EIA for the Conga project. The Conga EIA was approved by the Ministry for Energy and Mines—the same government agency promoting the project—despite serious criticism by independent experts, including those at the Ministry of the Environment.
Outcry over this process with respect to Conga led to the creation of a separate government entity under the Ministry of the Environment called SENACE (which stands for Servicio Nacional de Certificación Ambiental para las Inversiones Sostenibles or National Service for Environmental Certification for Sustainable Investments) to review EIAs in the future. The changes are to be progressively rolled out throughout 2014, and Peru would ostensibly join the rest of the region in adopting a system in compliance with international law obligations. That is at least what we thought until last week.
On June 11, President Ollanta Humala announced that his cabinet had approved a set of reforms to administrative agencies intended to increase private investment in Peru, reduce costs, and “reactivate the Peruvian economy.” How did the cabinet propose to achieve those goals? By ensuring that environmental protection would never get in the way of development.
Amongst other changes, the cabinet proposed limiting the ability of the Ministry for the Environment to protect the environment through levying fines on corporate violators, creating protected reservations, and reviewing EIAs. The promise of SENACE, and a shift towards greater environmental protection in development initiatives, is now seriously in doubt.
Thus, after seemingly taking a step forward in environmental protection, the government sent to Congress a plan to virtually eliminate government oversight over environmental protection.
The plan was met with swift condemnation from a group of over 30 civil society organizations in Peru — including indigenous federations, NGOs, and human rights groups – and a group of over 100 civil society organizations internationally. The irony was not lost on these groups that it is Peru that is also in the midst of preparations for hosting the United Nation’s Climate Change Conference and Twentieth session of the Conference of the Parties — and legislative action like this suggests the country is not interested in leading by example. Even the UN weighed in to express its concerns over what this means for Peru’s compliance with international environmental obligations.
Nonetheless, on July 3, the Permanent Commission of the Congress – which meets when the full Congress is not in session — approved the reforms ignoring the objections of Civil Society, the Office of the Ombudsman, and key congress members. The latter argued that at the very least, the vote should be postponed until the Congress could have a more robust debate, informed by the review of key congressional commissions that weren’t given the chance to review and comment on the reforms. The final was vote 11 in favor, 3 opposed, 7 abstentions, and 2 absences. In other words, the reforms were approved by a single Congressional commission, without even a majority of its members affirmatively voting in its favor.
Our NGO allies are still trying to figure out the best approach to stop these reforms from going forward. There are serious questions about the constitutionality of the provisions and the procedure by which they were approved by Congress. Furthermore they appear to fly in the face of the very same principles of international environmental law that are the subject of our upcoming amicus brief in the Conga case.
Depending on the strategy adopted, we may be quickly putting together another amicus brief pointing out that these “reforms” are in violation of Peru’s international law obligations, and taking the country in exactly the wrong direction.