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PERU: Government under Fire for Waiving Environmental Certificates for Dams

Milagros Salazar

LIMA, Feb 10 2011 (IPS) - The Peruvian government has been forced to offer talks with governors, the ombudsperson’s office and Catholic Church leaders, to stem the outcry over two emergency decrees that waive the requirement for environmental certificates for 33 investment projects, including hydroelectric dams in the Amazon rainforest.

But lawmakers and experts told IPS that the dialogue offer came too late, and that the only solution is to overturn the decrees.

“We are neither blind nor deaf,” said Justice Minister Rosario Fernández, after a Council of Ministers meeting Wednesday that discussed opposition to the decrees by civil society, the Catholic bishops’ conference, and the ombudsperson’s office, which argue that they are unconstitutional.

The decrees issued by the government of Alan García on Jan. 18 and 21 state that environmental certificates will no longer be a requisite for obtaining government permits for investment projects.

Environmental certificates are awarded by state agencies upon approval of environmental impact assessments (EIAs), which evaluate the possible negative effects of a project on the environment, and outline prevention, mitigation and treatment measures to be taken.

The ombudsperson’s office argues that granting permits without previously taking into account possible environmental and social impacts will hurt “the rights of people and communities.”

In a statement, the independent state body also says the decrees turn the EIA into “a mere administrative formality, which is unacceptable.”

That is because the decrees allow the EIA to be presented just before the start of the project and not, as up to now, at the very beginning of the planning process, which makes it possible to analyse all of the possible implications and angles.

For example, the environmental certificate will no longer be a prerequisite for obtaining a water use permit, not even in the case of hydroelectric projects.

The government had already attempted to achieve this in the case of projected hydropower dams, when it presented a draft law in November, which stalled in Peru’s single-chamber Congress.

Minister Fernández said the governors of the regions where the dams and other investment projects are planned will be called to meet with the central government within the next three days.

These areas include regions in Peru’s Amazon jungle, where the decrees would favour five hydroelectric dams to be built under an energy agreement signed by Peru and Brazil. The dams would involve the destruction of nearly 1.5 million hectares of trees over the next 20 years.

More than 1,000 km of new roads will have to be opened in the jungle to build the hydroelectric plants and put up power lines, according to a study by engineer José Serra for ProNaturaleza, a local environmental organisation.

“There is a logic behind the steps that projects like hydropower dams have to follow, because they require water to be properly managed and they require a technical approach to the question of the environment from the very start, especially in sensitive areas like the Amazon jungle, because of its biodiversity and the presence of (indigenous and other) communities,” Iván Lanegra, assistant director for the environment, public services and indigenous people at the ombudsperson’s office, told IPS.

Other controversial projects are gas pipelines in the southern regions of Cuzco, Arequipa, Moquegua and Puno, and ports in the coastal regions of Callao, Ica and San Martín.

Fernández said Ombudswoman Beatriz Merino and the president of the bishops’ conference, Archbishop Miguel Cabrejos — who are among the voices calling the decrees unconstitutional — would be invited to the meetings with government officials.

But representatives of environmental and human rights groups that have expressed similar concerns will not be included.

“The dialogue should have happened before,” Mariano Castro, with the Peruvian Society for Environmental Law (SPDA), told IPS. “Going ahead with the projects should not mean undermining the constitutional order or environmental sustainability. These meetings will not change the unconstitutionality of the decrees, unless they are repealed.”

The ombudsperson’s office says the decrees do not meet the requirements of “extraordinary considerations” or “urgent need” established by the Constitutional Court as a requisite for the government to issue emergency decrees.

“Nor was it explained what irreparable damages would be caused if the decrees weren’t issued,” the statement adds.

Consequently, the decrees are unconstitutional, it says, before urging Congress to fulfil its oversight duty.

The SPDA and the Legal Defence Institute (IDL), another non-governmental organisation, also stated in a communiqué issued Wednesday that “it has not been clearly established that the projects mentioned are in the national interest, nor is the constitutional right of indigenous people to prior consultation, as outlined by ILO (International Labour Organisation) Convention 169, guaranteed.”

Opposition legislator Yhony Lescano of the Popular Action (AP) party told IPS that despite the government’s offer of a dialogue, he was standing firm in his decision to present a legal challenge against the decrees on the grounds that they are unconstitutional.

“The only way is to leave the decrees without effect, to put an end to the economic interests that are behind them,” he argued, reporting that he had collected half of the 30 signatures of lawmakers needed to bring the case before the Constitutional Court.

In Lescano’s view, legal action is a better way to challenge the decrees than a draft law, because Congress is practically at a standstill due to the campaign for the April legislative and presidential elections.

The decrees have been rejected by the majority of the presidential candidates, and the Confederación General de Trabajadores trade union federation held a protest against them in the capital on Wednesday. “There is a stench of rot, of corruption. Congress should overturn them,” said the union’s secretary, Mario Huamán.

Nor did the offer of dialogue keep Merino from sending letters Wednesday to the ministers of the environment, Antonio Brack, and transport, Enrique Cornejo, demanding that they clarify their criticism of the position taken by her office.

In the letters, to which IPS had access, she asked Brack, for example, to explain his assertion that he knew who had written the statement released by the ombudsperson’s office — a remark that called into question the institution’s autonomy.

From the start, Peru’s business leaders have defended the decrees as positive measures that will expedite investments. But in the face of the outpouring of criticism, the National Confederation of Private Business Associations (CONFIEP) acknowledged the need to preserve the environment.

Other business associations recognised the especially sensitive nature of hydroelectric projects, but some of their leaders expressed surprise at the criticism of decrees similar to others that were issued in 2008 and 2009, which drew no protests.

Lanegra explained to IPS that the 2008 decrees did not have implications for the environment, and that they were issued in the context of a global economic crisis.

Furthermore, Castro said, “the projects are not the same, nor can one irregularity be justified by an earlier one.”

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