Injunction granted by the Federal Court of Mar del Plata (in Spanish)

On December 30, 2021, the Ministry of Environment and Sustainable Development published Resolution 436/2021 approving the implementation of an offshore seismic acquisition project submitted by the Norwegian company Equinor. This approval of offshore fossil fuel exploration resulted in several lawsuits seeking an injunction to halt the project and an order declaring the approval’s regulations null and void. Some of those lawsuits are, partially, grounded on climate concerns. Other relevant cases can be found <a href="https://climatecasechart.com/non-us-case/guillermo-tristan-montenegro-v-ministry-of-environment-and-sustainable-development/">here</a> and <a href="https://climatecasechart.com/non-us-case/organizacion-de-ambientalistas-organizados-v-ministry-of-environment-and-sustainable-development/">here</a>.

On January 13, 2022, a group of NGOs filed a constitutional collective action (amparo colectivo ambiental) against the Argentinian National State and the Ministry of Environment and Sustainable Development for its approval of the offshore exploration activities. This case presents the climate impacts of the projects as the main grounds for its claims. Among others, plaintiffs mention that the project breaches national and international climate commitments and affects intergenerational equity, that the NDC to the Paris Agreement is insufficient, that the State is responsible not only for emissions within its territory but also for emissions arising from future fossil fuels exports, and that the Environmental Impact Assessment is flawed because it did not consider climate impacts. Notably, this claim refers to high-profile climate cases in other jurisdictions, like Urgenda (the Netherlands), Neubauer (Germany), Sharma (Australia); Earthlife Africa Johannesburg (South Africa); Gray and Gloucester Resources (Australia) and Greenpeace Nordic (Norway). 

On January 14, 2022, all the three climate lawsuits against the offshore exploration activities (together with other non-climate related cases) were combined, and the court will hand down a single judgment for all.  

On February 11, 2022, the Federal Court of Mar del Plata ordered a halt to the fossil fuel exploration activities. The order does not make any mention of climate change concerns. Instead, the judge focuses on failures regarding procedural rights (participation and information) with explicit mention of the Escazú Agreement, lack of strategic environmental assessment, and possible risk to marine biodiversity. In the decision, the precautionary principle plays a key role. On February 15, 2022, the government filed an appeal to the injunction order. In its appeal, the government is also asking for the removal of the judge from the case. On February 18, 2022, a different judge (Federal Court of Mar del Plata N.4) allowed the appeal to proceed with suspensive effect. That means that the exploration activity can go ahead until the Federal Court of Appeal revises the injunction order.  

On June 3, 2022, the Federal Court of Appeal (Federal Chamber of Mar del Plata) annulled the injunction relief delivered by the Federal Court on February 11, 2022. However, at the same time, the Court ordered the Ministry of Environment and Sustainable Development, as a new injunction, to issue a new complementary environmental impact assessment that considers possible cumulative impacts of the activities. In this new assessment, the spatial and temporal scope of the project's implementation must be analyzed and weighed. It is also mandatory to include the participation of the National Parks Administration and to consider the results of the public consultative hearings, organized at both local (public hearing initiated on 30 May 2022), and national levels (public consultation which ended on 19 May 2022). Finally, the Court asked for the inclusion of the Ministry of Environment and Sustainable Development in the control and monitoring of compliance with the Environmental Impact Statement and its corresponding Environmental Management Plan (a task before assumed only by the Secretary of Energy). In this sense, exploration activities should stop (again) until all these requirements are met. Climate arguments were not developed by the Court of Appeal.

On December 5, 2022, the Federal Court of Appeal (Federal Chamber of Mar del Plata) considered that the authority had met all the requirements asked in its order of June 3th. That implies the termination of the injunction and, therefore, the exploration activity can go ahead until a final decision on the merits is delivered. Climate arguments are, once again, absent in the Court of Appeal's decision. The plaintiffs announced their intention to appeal this decision before the Supreme Court. 

On January 25, 2023, the Court of Appeal declared inadmissible the appeal.

On October 4, 2023, the plaintiffs (Greenpeace et al.) asked for a new precautionary measure in response to a further governmental authorization (Resolution 19/2022, December 2022) of an exploratory activity (exploratory drill, ‘‘Argerich-1’) and changes in the exploration timeline (Resolution 17/2023, June 2023). They asked the Court for its immediate halt. Although the submission primarily focused on foreseeable impacts on biodiversity and the sea, including impacts of extraterritorial scope, it also reiterated arguments regarding the climate impacts of further producing fossil fuels. It mentioned the IACHR’s Resolution 3/2021 on Climate Emergency and the REDESCA’s Report on Business and Human Rights. 

On 4 December, 2023, the Public Prosecutor expressed his opinion on the precautionary measure requested by Greenpeace et al. Notably, the Public Prosecutor fully supported (and went even further) Greenpeace et al.’s request, focusing most of his opinion on the climate dimension of the lawsuit. Of particular interest here are his acknowledgment of the soundness of climate science (including climate attribution science) and the prominent role of fossil fuel in the problem; and his mention of the global proliferation of climate litigation, particularly right-based cases against the State and corporations. The Prosecutor referred to human rights treaties, the Paris Agreement, IPCC reports and the national Constitution as legal bases for this kind of case and observed that the IACtHR’s Advisory Opinion 23/17 reinforced this legal framework. He also noted that there is a global (transnational) consensus that climate issues are not exempt from judicial scrutiny, regardless of whether the courts’ decisions reject, support, or are deferential to the governments’ behaviours. Specifically regarding the issue at stake, the Prosecutor conducted a preliminary compatibility assessment between the State commitments under the climate regime (NDCs, long-term strategy, national mitigation plans) and the expected emissions of the consented projects. In this assessment, on the one hand, the Prosecutor noted that Argentina’s climate commitments are highly insufficient (referencing Climate Action Tracker reports) and, on the other hand, that it is not clear how the expected emissions will be consistent with the 2030 goals and the 2050 net-zero pledge. Those emissions are not speculative but foreseeable. Furthermore, according to the Prosecutor, even if the fossil fuels produced were exported, their emissions must be considered (referencing the People v. Arctic Oil case). In sum, the State must explain how the offshore fossil fuel initiatives are consistent with its climate and human rights commitments before continuing the exploratory activity. The Prosecutor also challenged a tax discount provided to the companies by the government, noting that this goes directly against the alleged reasons that justified the projects in the first place: financing the energy transition. 

On December 27, 2023, despite the Prosecutor’s opinion, the Federal Court rejected the precautionary measures requested by Greenpeace et al. In what matters here, the Court found that halting an exploratory activity is, at this point, excessive and premature. Notwithstanding this, the Court, in response to the Prosecutor’s concerns, asked the State to inform about its mitigation goals, the compatibility of the exploration and exploitation projects with those goals, and how this issue was dealt with in the environmental impact statement. 

On February 7, 2024, the plaintiffs and the Public Prosecutor appealed. These appeals were rejected by the Court of Appeal on May 10, 2024.

On March 14, 2024, the defendants —corporations and the National State— submitted their written replies to the complaint. Among other arguments, the State argued that the fossil fuel development will bring the wealth needed for the transformation of Argentina’s energy matrix. In its reply, the State alleged to have answered the Court’s petition for information. 


Greenpeace Argentina et. al., v. Argentina et. al.

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Greenpeace Argentina et. al., v. Argentina et. al. - order

Filed

Argentina

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Greenpeace Argentina et. al., v. Argentina et. al. - order

Policy instrument

Risk

Impacted group

Just transition

Fossil fuel

Economic sector

Finance