Exclusive Interview with Marcelo Castillo, Lawyer for the Patagonia Without Dams Campaign

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Marcelo Castillo, an environmental lawyer in Santiago, represents the Council for the Defense of Patagonia (CDP), a coalition of Chilean and international organizations campaigning to stop the HidroAysen project, an ambitous plan to build five large-scale dams in southern Aysen and send the power to Santiago via an enormous electric transmission stretching nearly 2,500 kilometers. At the end of June, HidroAysen is due to file a second addendum to its environmental impact study at the request of regional environmental authorities. The second half of this year, then, will be a critical time for determining the fate of this project. 
 
Recently, I spoke at length with Marcelo about the HidroAysen legal battles, including the formal complaints currently being reviewed by the Environmental Cooperation Commission of the 1997 Chile-Canada Free Trade Agreement. In those complaints, CDP charges that the Chilean government has violated a 1991 bi-national treaty with Argentina concerning “shared waterways.”  That treaty states that any project which affects the shared waterways of both countries must be coordinated with the other country as well as approved by both countries. Yet, instead of first seeking approval from Argentina, CDP says that Chile’s  Electricity and Fuels Agency has already “illegally” given HidroAsyen, owned by the Italian-based Enel, Endesa and Chile’s Colbun energy company, a provisional electricity concession so that it might proceed with the preliminary work necessary for any eventual construction of the dams. Excerpts from the interview:
 
LANGMAN: The Environmental Cooperation Commission in Canada finally accepted your complaint about the HidroAysen project. Congratulations. 
CASTILLO: It is excellent news because these citizen complaint processes in international treaty agreements are not common. Usually, such issues are dealt with only between national governments. In this case, we have one of the few exceptions in international law, any person can file a complaint if they have reason to believe a government is not complying with its environmental legislation.
 
LANGMAN: If their decisión is ultimately in your favor, what can they do to enforce their finding?
CASTILLO: As with any international laws, they do not have precedence over an ordinary domestic tribunal but they do have strong consequences. If a state is found not to have complied with its own legislation, obviously the state will lose respect in the international community. 
 
LANGMAN: Has Argentina raised the issue with Chile yet? 
CASTILLO: What we know is that the Argentine Foreign Ministry has requested that the Chilean Foreign Ministry explain the project’s impact on their shared wáter resources. In general, its also clear from public statements that we know about that the Chilean state has said that in their opinión it will not affect shared wáter resources. That is the answer the Chilean state has given publicly, but we are not privy to the prívate diplomatic declarations between the countries. Nevertheless, we do know the Argentine state is concerned about this matter. 
 
LANGMAN: You also have lawsuits underway in Chile’s courts about the HidroAysen project?
CASTILLO: Yes, we have various lawsuits pending against this project and authorities. For example, we have underway a trial in the government’s anti-monopoly commission against HidroAysen for its attempt to monopolize the wáters of the Baker and Pascua rivers. We also have other administrative legal complaints before the National Environmental Commission to reject HidroAysen because it does not comply with environmental laws. We have other administrative complaints in which we ask the government to reject additional wáter rights that this company is soliciting on the Baker and Pascua rivers because they are requesting rights which are not compatible with existing wáter rights. We also have other legal complaints of the administrative kind that are more formal issues that deal with questionable actions by government officials and so forth. There are a variety of legal actions already in process. 
 
LANGMAN: Do you trust that the new government will make its decisión on the project in the right way?
CASTILLO: I don’t have a lot of trust in this government. There are a lot of ministers and high oficials of the regional environmental commissions that were advisers or worked for HidroAysen. They are a little too close to this project. Recently we have seen declarations from Energy Minister Ricardo Ranieri in which he has expressed his support for the approval of HidroAysen. 
 
LANGMAN: The new environment minister also has questionable ties to Endesa, right? 
CASTILLO: With respect to the new environment minister, we know that she provided some services to Endesa but not specifically for HidroAysen. In any case, the fact that she worked for Endesa is a weakness in her ability to intervene fairly in this issue. She formerly acted as an advisor to a company that is trying to implement this project under the government that she now leads. 
 
LANGMAN: Has Chile President Sebastian Pinera spoken with environmental groups about HidroAysen? 
CASTILLO: No, President Pinera only has said in general terms that he is in favor of hydroelectricity but specifically about this project he has not given his views. We hope that as the president of the country he will apply the country’s laws in this project. Because our opinion is if the law is applied there is only one road to go down which is to reject the dam proposal. 
 
LANGMAN: Historically, Chile’s government does not outright reject projects like this, but only requests changes. 
CASTILLO: In 1998, I wrote a book called “Critical Analysis of the Environmental Impact Evaluations.” You are right, I arrived at the conclusión in my book that more than 90 percent of the projects in our country that enter the environmental impact evaluation system are approved. Rejections are very few but there were projects rejected on legal grounds. The situation from 1998 till now has not changed. The rate of approval of projects in the environmental impact system is very high because generally the governments have more sympathy for the businesses than applying the law. 
 
LANGMAN: Then, if history continues that way, the government will most likely approve HidroAysen. 
CASTILLO: I believe the political will of this government is to approve it but that political will has brakes which are our laws. The laws establish on what basis to approve or reject a project, and if a project like this for example does not have at mínimum a baseline to predict the environmental impacts that it will have, evidentally what must happen is it will be rejected. They can not approve a project that has no right to speak as they do not even have the basic information required in order to evaluate it from the environmental perspective. 
 
LANGMAN: They also still must approve a very controversial electric transmission line. 
CASTILLO: Exactly, we also are surprised that a project of that magnitude is being decided on separately from the dams because the logic is that for five hydroelectric dams, that power has to travel somehow and that has to happen with an electric transmission line that in this case is more than 2500 kilometers long. We would hope that that they will suspend environmental evaluation of HidroAysen till we have clarity on how they can make this electric line. 
 
LANGMAN: Will the conflict over HidroAysen be similar to what transpired with the Bio Bio dams?  
CASTILLO: Yes, very similar, but we are going to have a different ending. Because in the case of the Bio Bio we did not have a legal position like we have now. Its been practically two years since this project was submitted for evaluation and they have yet to solve the project nor do they have an electric line in place. In the case of the Bio Bio, when the environmental impact study was presented they had a large part of the project done already. The scenario is different this time.