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HidroAysén Opponents Appeal to Chile’s Supreme Court

The article as it appeared in The Santiago Times on December 16, 2011:

HidroAysén Opponents Appeal to Chile’s Supreme Court

Project approval last May was “irregular, arbitrary, and illegal” say environmentalists

A legal appeal to stop the US$10 billion HydroAysén dam and transmission line project will be heard today, Friday, by Chile’s Supreme Court. The appeal follows a ruling by a Puerto Montt court that supported the government’s approval in May of the HidroAysén project.

The May decision to greenlight HidroAysén sparked large public protest s throughout Chile. The project envisions five dams on the Baker and Pascua rivers in Chile’s Patagonia region and will require a 2,300-km transmission line to bring the 2,750 MW of power to central and northern Chile. Proponents cite Chile’s growing energy needs, while those against the project say “dinosaur” dam technology will destroy one of the planet’s few remaining pristine environments and further concentrate the nation’s
energy production in the hands of just three companies – assuring inefficient, costly energy prices well into the future.

Attorneys for Patagonia Sin Represas – the umbrella NGO that has worked against the HidroAysén project for the past five years with significant local, national, and international support – will argue that the government’s decision last May to approve construction of the dams was “irregular, arbitrary, and illegal.”

Lead attorney Marcelo Castillo is expected to present seven challenges to the approval process, arguing that the HidroAysén did not provide sufficient data or baseline information to permit approval. The government’s alleged failure to reject an incomplete study is at the core of Castillo’s appeal.

Castillo will argue that of the 36 public services who reviewed HidroAysén’s environmental impact statement, 22, including the Director General de Aguas (General Director of Water) and CONAF (National Forest Corporation), said they couldn’t evaluate the company’s statement because of deficient information. But instead of rejecting the company’s environmental study, regional authorities allowed 3,000 comments and concerns to be gathered and returned to HidroAysén so the company could
continue the process toward approval.

HidroAysén submitted four separate documents to the regional review body between August 2008 and April 2011: the original environmental impact study and three addenda in response to the comments received from the reviewers.

Even up to the third addendum, Rodrigo Solis Caro, Regional Ministry Secretary for Housing and Urban Development of Aysén, continued insisting that there was insufficient data and that he could not evaluate the project. But just two weeks later Solis wrote a final memo saying he was in complete
agreement with the project’s approval. This abrupt reversal is one of the many irregularities Castillo hopes to use to undermine the project’s approval.

In the other six articles of appeal, Castillo will emphasize the allegedly unscientific, dishonest, and unconstitutional methods used by HidroAysén and the reviewing authority to assure the project’s approval.

The attorney’s arguments are expected to center on the following issues:

1. HydroAysén’s approval violates an international treaty

Chile, as a signatory of the Washington Convention of 1940, has agreed to uphold and protect the sanctity of their national parks and reserves. But one of the dams proposed for the Baker River would flood 18 hectares of Laguna San Rafael National Park.

According to Pilar Valenzuela, environmental engineer and technical advisor for Patagonia Sin Represas, “The amount that would be flooded is not as important as the blatant violation of the principle of not touching national parks. The impact that has is unquantifiable.”

2. HydroAysén’s data is unscientific

Aerial surveys were used to tally the amount of huemuls, a near-extinct deer native species living around the Pascua River. Biologists say that this way of conducting a study is inappropriate, adding that the company’s proposed mitigation plan is inadequate and should have been rejected. “Huemul do not adapt quickly,” Castillo said. The conservation area that HidroAysen proposes building to recreate the deer’s habitat would be “like moving you out of your 1,000-square-foot apartment into a 100-square-
foot-apartment, and with none of the food you like to eat, and with new predators that you don’t know how to defend against. They won’t make it.”

3. The project is unconstitutional

Castillo will argue Friday to the Supreme Court that the approval of the environmental study violates the constitutional rights of Chilean citizens to live in a pollution-free environment, as well as to maintain the areas it has set aside for protection, such as Laguna San Rafael National Park.

4. Citizens excluded from review process

Castillo will also argue that the government’s reviewing authority “arbitrarily” shortened the length of the public participation phase in 2008 and did not consider the 10,000 comments that were submitted by private citizens.

5. Social impacts of HidroAysén have been ignored

The social impact of bringing 2,500–5,000 workers, mostly men, into the town of Cochrane was never satisfactorily addressed in HidroAysén’s report. Valenzuela summarized the unanswered concerns thusly : “HidroAysen says the workers will stay in their camp, completely apart from the town. But the
camp will be dry – no alcohol. No women, either, or few. And these workers are going to have days off. It’s ludicrous to assume that they won’t go into Cochrane and Coyhaique to recreate.”

6. Incomplete Assessment

The dams under discussion are only half of the project HidroAysen is attempting to complete. The project also envisions a 2,300-km transmission line to carry energy created by the dams to the central part of Chile and then northward. The transmission line project is expected to be submitted for the
same review process in March 2012. Patagonia Sin Represas maintains that because HidroAysen divided the project and presented the dams and transmission line as two separate projects, the environmental impact study was incomplete from the beginning, and should not have been approved.

The Supreme Court is expected to take one to three months to reach a decision on the appeal.

Proceedings begin at the Supreme Court at 9 AM and are open to the public.