By Alicia Ely Yamin and María Natalia Echegoyemberry
The first thing that strikes you when you arrive in Argentina’s Villa Inflamable (literally “Inflammable Slum”) is the noxious sulfur smell of the air that mixes with other acrid chemicals, which makes it difficult to breathe deeply. When a breeze picks up, the sands that have been used to extract contaminated water from the nearby Riachuelo, one of the ten most highly contaminated rivers in the world, rain down on everyone, filling eyes and lungs with toxic particulate matter.
As petrochemical tanker trucks parade through nearby paved streets, the unpaved lanes of Villa Inflamable alternate between toxic dust blowing through the air on dry days to flooding raw sewage on rainy ones. Everyone knows someone who died of cancer, or had pregnancy complications and children with birth defects. More than 600 children have been born and are growing up exposed to highly carcinogenic chemicals, such as benzene and toluene.
In these neighborhoods surrounding the river basin, deeply embedded corruption links the actions (and impunity) of local companies with global multinationals (e.g., Trieco, which is the Argentine subsidiary of the U.S. waste management company, Stericycle).
All of this is despite the fact that in 2008, the Argentine Supreme Court ordered the remediation of this very site, the highly polluted Matanza-Riachuelo River Basin.
Despite the Court’s orders, the expected impacts of the judgment have not yet been achieved. At our site visit to Villa Inflamable in June 2022, nearly fifteen years after the Court ruled in favor of the plaintiffs in the Mendoza case (Beatriz Mendoza was the named plaintiff of the community organization in Villa Inflamable that brought the case), we saw how this neighborhood still exists in a segregated social space, where household location, gender, and class determine how and when people get sick and die. The population living in areas surrounding the river basin continue to be exposed to historically-rooted injustices affecting the environment, health, and the right to life with dignity, which in effect constitutes structural violence and environmental racism.
The Mendoza decision is notable in that it exemplified Sabel and Simon’s theory of “experimentalist regulation.” Instead of issuing a black-letter ruling, the Court attempted to catalyze political action across a polarized political situation and among the overlapping jurisdictions of multiple levels of government (federal, provincial, municipal). The judgment established benchmarks, ordered a comprehensive plan for the remediation of the river basin, the improvement of the quality of life, and prevention of harms (including health), and called for relocation of residents, but left significant discretion to the various agencies involved. Notably, the decision left out private corporations, in effect shielding them from liability.
This experimentalist form of remedy arguably preserves the democratic and institutional legitimacy of the judiciary better than command-and–control remedies, but also importantly avoids the possibility of serious judicial error in the interpretation of a specific aspect of rights regarding health or a healthy environment, which have sprawling spider-web like impacts on policies and budgets. As Merlisnky asserts, after the judgment, the environmental questions involved became issues of public policy.
In attempts to trigger political action, the Court has held multiple public hearings since 2008, at first semi-annually and, later, annually. The sweeping nature of the recourse necessitated the creation of a new interjurisdictional agency — ACUMAR (Authority of the Matanza-Riachuelo River Basin), which was tasked with managing all the activities triggered by the decision — and a follow-up unit, which aimed to give both civil society organizations and, in theory, community members a voice in the proposed solutions and a stake in monitoring their implementation.
However, as our June 2022 site visit revealed, implementation has been far from satisfactory. Only a fraction of residents have been relocated, and more have subsequently moved into the neighborhood; many don’t want to leave and fight on for a life of dignity, the reconstruction of their neighborhoods, and the relocation of the contaminating companies.
In follow-up orders, the Court has called attention to a number of deficiencies that continue to hinder implementation efforts, including the failure of the ACUMAR to integrate human rights and environmental protection concerns sufficiently in its work. But it is unclear whether the members of the Court have examined conditions under which ACUMAR is functioning. On that June 2022 visit, we met extraordinarily committed neighborhood members and workers in ACUMAR, but the institution is evidently poorly managed, despite having funding. The agreements of ‘working groups’ composed of community members (regarding water, housing, sanitation, etc.) are rarely recorded, and there is negligible evidence of follow-up to the community’s recommendations by the Court.
To be clear: far from discarding such remedies, we are calling for ways to improve them in practice. At a time when the democratic legitimacy of courts is increasingly being questioned across a wide range of countries, including the United States, there is a resurgence of interest in what Roberto Gargarella describes as a “dialogical understanding” of the system of checks and balances, where, for example, courts set broad goals, deadlines, and implementation pathways, but leave substantive decisions and detailed outcomes to governmental agencies.
Comparative research suggests that there are countless variables that influence the effective implementation of such structural dialogical orders, including the nature of the protected population and the duty-bearers; the rights recognized and the extent to which their protection requires increased resources; the nature of the process and the meaningfulness of public participation ordered by the court; how actively the Court supervises both the deadlines it sets and the inclusiveness of the process; the Court’s allies in facilitating dialogue and implementation, including social movements and members of the political branches of government; and the social context in which the judgment was made.
And yet, it is difficult to think that if the Court had held its public hearings in situ, among the community, and experienced the actual lived reality of the inhabitants of Villa Inflamable, there would not be greater urgency to compel institutional and political action. The guarantee of rights to access education, health, justice, and meaningful participation in the collective socio-environmental struggles for remediation of the Riachuelo, must be the north star that guides the Supreme Court’s actions in this case. The only hope for understanding the multivalent impacts of the structural violence that continues unabated, and reversing it to uphold the aims of the original judgment, is for the Court to listen and act upon the expertise of the people who wake up day in and day out in Villa Inflamable.