Salvadoran Supreme Court agrees to hear environmental damage claims after bribery and heavy police violence fail to fracture opposition to the construction of private waste dump. This class action suit first in El Salvador’s history.
Salvadoran Supreme Court agrees to hear environmental damage claims after bribery and heavy police violence fail to fracture opposition to the construction of private waste dump. This class action suit first in El Salvador’s history.
On November 20, 2008 ten members of the Santa Gertrudis community of Cutumay Camones filed a class action lawsuit against the Minister of Environment and Natural Resources (MARN) for refusing to conduct a fair and impartial assessment of community concerns over the placement of a garbage dump. The government’s proposal is to construct the dump on a hill above a 10-hectare crop plantation and at a 700-meter distance from an aquifer that delivers water to the homes of more than 3,000 families. Construction began in June 2007 without community consultation and an adequate environmental impact statement to the MARN.
The court’s decision to hear the case came after a 17-month long conflict wherein 3,000 people from in and outside of Cutumay Camones mobilized against Presys LLC, the private company that was hired for the construction of the landfill. Physical clashes began on September 11th 2007 at 3:00am, when 100 members of the Salvadoran National Civilian Police’s Unit for Maintenance and Order (UMO) raided Santa Gertrudis in an attempt to break a community road blockade that was denying Presys workers access to the construction site. A representative from the company threatened protestors, saying they had "no idea what they were getting into." The September 11th incursion was the first of five police attacks in a period of two months. The UMO’s early morning raids grew from 100 to 300 to 500 officers, then into what protestors called a "sea of ninja turtles" in the final raid on November 22nd. None of the raids succeeded in breaking the blockade.
The Community Association of the Fountain of Blessing (ACOFUBEN), a collective decision-making body of 11 communities in Cutumay Camones who built the water tank in 2002, has been involved in every aspect of resistance to the project. "The community has been a lead actor in opposing the dump because they worked to build the aquifer," according to Carlos Eduardo Guzmán, Vice President of ACOFUBEN. "We started with 402 families and now there are 700. We created access the government refused to give. Now we have clean drinking water flowing into every home in 11 communities. We’re not going to let that go." 60% the population of Cutumay Camones are women and children. People had been transporting water from the Veruente River and surrounding wells until they completed construction of the water tank.
"Basically, they figured out a way to make money off of trash" – Carlos Eduardo Guzmán
"In May of 2007, we knew something strange was happening. People had come to survey the area and then the work trucks and equipment started coming," said Adonay Mendoza, ACOFUBEN’s Water Project Administrator. "We decided to go to the Mayor Orlando Mena’s office to find out what was going on, but he wouldn’t give us a meeting. In June, they began working without our permission."
After visiting the ACOFUBEN office in August to discourage resistance to the landfill, Mena’s Christian Democratic Party (PDC) began offering concessions to individuals in Santa Gertrudis, in exchange for their support.
"The Mayor told us that this was a model project that if they could open the dump, they could also build roads and a hospital," Mendoza said. The successful completion of the project would not only help the PDC score political points with Santa Ana’s political, corporate, and press elite, who have pressured the government to resolve trash disposal issues, but would also allow members of the PDC party to pocket millions of dollars through service rate increases – $14 per ton of garbage at 250 tons per day – and buy support for the privatization of water treatment and distribution services down the road. Mena has spent $600,000 on the project, which is 75% complete. The President of the PDC, Rodolfo Parker, is Presys’ largest shareholder and already "the government" has suggested taking control of the Santa Gertrudis’ aquifer.
Orlando Mena’s Dirty Money
Mena, created Presys out of a parent company in Los Angeles and a 300% imposed tax increase in 2006 and then awarded the company a rushed, no-bid contract in what was found by the Court of Auditors to be an illegal transaction. The Auditors report raised seven points of concern around "irregularities". The first stated that: "The award of the concession of public service treatment and disposal of solid waste in the municipality of Santa Ana was conducted by direct recruitment; it is a concession contract that was not made through public bidding, as stipulated in the Procurement and Contracting Act."
The project appears to have been contrived as one of the first in a series of large-scale business transactions that would essentially set the public up to subsidize the wealth of a few individuals while accepting tremendous risks to their health and environment. Before becoming the marketing manager for Presys, Alejandro Fuentes was the manager of municipal projects of Santa Ana; Erick Diaz, the engineer who proposed the Presys contract undertook the first environmental impact study, which was considered incomplete and unsound; and the company subcontracted by Presys for construction, L and C, is owned by the engineer Balmore Linares, a former acquaintance of Orlando Mena and broker of several public works projects in Santa Ana.
In September 2007, Mayor Mena was a guest on Mauricio Funes’ news show, "The Interview with Mauricio Funes, alongside ACOFUBEN president Filiberto Santéliz Peraza and director of the Salvadoran Ecology Unit, Ángel Ibarra. Mena claimed that he had felt some regret over questionable dealings surrounding the dump project, saying "As things stand, it might be best to invite you to my own funeral," and admitted that the environmental impact review failed to address community health issues. Journalist Georgina Vanegas reported on the interaction and commented that throughout the interview, "the Mayor seemed puzzled and extremely vague about allegations waged against him, and even resigned to the community’s rejection of his project," Vanegas suggested that perhaps Mena felt the victim of dark political and economic forces he was either unable or unwilling to identify.
"How is it that public functionaries work against the health of the people?" – Adonay Mendoza
In November 2007, sociology students from the University of San Salvador were invited by ACOFUBEN to investigate the water project because the Santa Ana government had, at that time, been refuting the existence of the aquifer. On November 22nd, over 500 members of the PNC and two police helicopters attacked the town for the fifth time. The raid resulted in 39 arrests and caused the death of 14-year old William Alfredo Ventura. All of the six students were arrested and called "terrorists". Large-scale violence on the part of the UMO and their attacks on two television reporters caused an immediate press sensation and forced the Salvadoran government to call for a suspension of the project.
It was then that PDC tactics turned from overt repression to political maneuvering within the MARN, in partnership with the U.S. government’s Environmental Protection Agency (EPA).
"The EPA sent their specialist, Kathy Gaynor, to do an environmental impact statement like we had asked the MARN to do from the start. So were very happy at first," said Santéliz Peraza. "But she didn’t take one sample of water away from the site. She was here for a day, looked around, and probably wrote the preliminary report in the same evening."
The MARN eagerly accepted Gaynor’s report, which essentially rubber-stamped the position of the Mayor and his business partners at Presys and L and C, building from the false premise that the dump area was already contaminated and recommending that a few minor design adjustments be made to "reduce risk to public health." In addition, Gaynor made a point of reporting her alleged discovery of some empty packages of Atrazine, an herbicide she claimed was responsible for "existing contamination".
Santéliz Peraza called the EPA report biased and unprofessional, "giving favor to Presys and a green light to the construction of the landfill." : "In regard to the contamination by manure and agricultural practices we do not understand why the [EPA] has contradicted us in this way. We use natural fertilizers that are recommended to us by technicians of the Center of Environmental Research and Agrarian Transformation (CENTA). We know that our water tributaries are clean. We treasure our water and that’s why we care about this; we have not made mistakes like that."
Signs of Democracy
Lawyers with the University of Central America’s Human Rights Office will try the Supreme Court case, which could take two or more years to review. The Court has placed a restraining order on Presys; technically no work can proceed on the dump until the case is decided. The Class Action suit is the first in El Salvador’s history and could not only give entitled water and development rights to the community of Santa Gertrudis but also prevent contamination of the Rio Veruente and the Rio Lempa, which provides water to all of Santa Ana and 55% of the population of San Salvador.
The case could also set a crucial precedent for broad community resistance to exploitation and privatization measures most rigorously imposed by CAFTA (Central American Free Trade Agreement). Plaintiffs of ACOFUBEN are asking the Court to call the MARN’s process on this matter into question and reverse the EPA’s findings in favor of a thorough, scientific, and impartial review.
Mena is running for re-election in January 2009. If elected, he will serve his fourth term. Mena was elected in 2000 and 2003 as a candidate for the Farbundo Martí National Liberation Front (FMLN) and defected to the PDC in 2004. In 2006, his candidacy with the PDC split the FMLN vote. The PDC won 37,350 votes compared to the Alianza Republícan National (ARENA) party’s 19,937 and the FMLN party’s 17,342. According to most recent electoral polls in Santa Ana, the FMLN party leads with 19.3% to the PDC party’s 18.2%, and ARENA’s 16.8% in elections to be held January 18, 2009; however, Mena’s popularity rating places him at a 7.2 point advantage.