FARN v. Ministry of the Environment and Sustainable Development

On August 1, 2023, Fundación Ambiente y Recursos Naturales (FARN) (an ENGO) filed a judicial claim asking for a precautionary order that prevents national authorities, including the Secretary of Climate Change, the Ministry of the Environment and Sustainable Development and the Secretary of Energy, from providing consent for offshore seismic exploration and/or offshore fossil fuel exploitation until a proper environmental impact assessment and a strategic environmental assessment have been carried out, as the already conducted environmental impact assessment was described as deficient. According to the claim, these environmental assessments should include an assessment of activities’ cumulative and climate impacts, a consideration of energy alternatives and a cost-benefit analysis in the context of a just energy transition. Furthermore, FARN asked for the immediate halt of any already consented offshore exploration activity until the mentioned assessments had been conducted. This precautionary claim is an accessory to a future civil claim that FARN intends to file next with the aim to prevent environmental damages in the marine ecosystem and challenge the technical reasonableness of developing projects that are contrary to Argentina’s climate commitments. Among the deficiencies observed in already conducted environmental assessments, the claim mentions an underestimation of projects’ GEI emissions, including methane emissions due to leakages in the exploration and production stage and emissions due to the combustion of the extracted fossil fuels. Allegedly, this deficiency prevented authorities from properly considering the cumulative impacts of GEI emissions on the climate. Different legal grounds are alleged by FARN in the claim, including Article 41 of the Argentinean Constitution (right to a healthy environment), the duty to prevent environmental damage (Art. 2.g., Act 25.675), access to environmental information (Art. 16, Act 25.675), the duty to conduct environmental assessment (Art. 11 and 13, Act 25.675), the environmental principles (precaution, prevention, sustainability, intergenerational equity, non-regression), the Climate Change Act 27.520, the Paris Agreement, the Convention on Biological Diversity, the Escazú Agreement and the American Convention on Human Rights (as interpreted by the Inter-American Court in its Advisory Opinion 23/17). According to the claim, several transnational corporations are involved in the development of these activities together with YPF (the national energy corporation), including Equinor, Exxon Mobil, Qatar Petroleum Pluspetrol, Shell, Tullow, and Total Austral. This is not the first case challenging fossil fuel exploration and exploitation activities in the Argentinean Sea. On September 14, 2023, the Federal Court rejected the precautionary order on the grounds that the case presents a high degree of technical complexity that cannot be addressed in an interim instance. This decision was appealed by FARN on October 1, 2023, indicating that the court did not rule on the central aspect of the claim, which was to verify the cumulative impacts of the different offshore exploration and extraction projects according to the legal grounds alleged. FARN argued that the request did not require the determination of technically complex issues but the enforcement of compliance with the law in terms of environmental impacts. This appeal was rejected by the Court of Appeal on 22 November, 2023, on the same grounds: technically complex issues cannot be addressed in a precautionary claim. On December 5, 2023, FARN appealed this decision before the Supreme Court.