Considering gold mining permits

In my post titled How Pacific Rim has been treated, I raised a series of questions about the process. Roddy Hughes at Voices on the Border provided me with a set of thoughtful responses to those questions which I reproduce here:

1. Pacific Rim has apparently provided (I have not seen it) an environmental impact assessment which it believes shows that the environmental risks will be minimal. Shouldn't Pacific Rim be allowed a fair hearing on that environmental impact statement? If it has not been given that fair hearing, why not? If it has not had a fair hearing, what is the message which El Salvador is sending to those who might want to invest in the country in the future?

A few years ago Pacific Rim filed an environmental impact statement with the Ministry. It was a half-hearted effort to satisfy requirements under the law on the environment and the law on mining. The government, in an equally half-hearted manner, complied with their requirement to make the EIS available for comment by making a single copy of the 1000-plus-page document available in an office in San Salvador for ten business days. They strictly prohibited visitors from copying or reproducing any part of the document, so that I am aware, few outside the government have actually seen it.

In 2005, ADES, a Salvadoran organization in Sesuntepeque that opposes the mining projects, brought down Dr. Robert Moran to review the EIS during the short period it was open to the public. In his final report, Dr. Moran concluded that it was impossible to review such a large document in such a short period of time, and that the “public comment and review period” was insufficient. He also concluded that the EIS lacked sufficient information to determine what the impact of the mining process would be, and that the EIS conclusions were based on incomplete data.

If Pacific Rim has not had a chance to speak out at a formal public hearing, it was their choice. Activists and communities have been calling for real public hearings for years, but as far as I know the government has never organized an earnest opportunity for Pacific Rim or its opponents to present their cases. I am confident that if Pacific Rim wanted government officials to organize a real public hearing they would. Instead, Pacific Rim has used an extensive PR campaign in order to gain the support of local communities. These have included Equipo Maiz-style cartoon booklets and other brochures explaining the economic benefits to the local communities, and making derogatory commentaries about those that oppose the mines.

El Salvador doesn’t have much to worry about at this point as far as their message to foreign investors. The overwhelming majority of foreign firms that set up in El Salvador are able to skirt environmental and labor laws with impunity.

2. How do we define what is a fair hearing? How is the hearing also made fair to the citizens who may be impacted positively and negatively by the mining operations? Who should decide the final outcome of Pacific Rim's application? Environmental experts in El Salvador's Ministry of Natural Resources? The National Assembly? The winner of the 2009 elections? An international arbitration under CAFTA?

According to the Law on Mining, the Ministry of Economics has authority over mining, specifically the office of Hydrocarbons and Mines. They have the authority to grant or deny permits and oversee all aspects of mining. I am sure that the Legislative Assembly could pass legislation overriding their final decision, and certainly the next administration would be able to appoint Ministry officials that would approve the permits. As far as the CAFTA system, we’ve still not seen how that will play out. The environmental provision of CAFTA gives citizens the right to sue the government when it fails to apply its environmental laws. So if the Ministry approved the permits without a proper EIS or consultation process, or for accepting an inadequate EIS, the CAFTA system could then intervene. Or conversely, if the Ministry denied Pacific Rim permits and did not comply with the environmental permitting process as set forth in the law, citizens could consider taking action in the CAFTA system. Under NAFTA, some companies have been successful with claims filed under Chapter 11, claiming that environmental provisions were tantamount to the government appropriation of their capital investment. But NAFTA is not applicable and I am not sure that CAFTA has a similar provision.

As for a fair hearing, it seems as though there are three components: 1) people affected must have access to enough information to consider how the proposed policy, project, or activity will impact their lives; 2) they must have a way of communicating their concerns and opinions in a manner suitable to them to those who have the authority to make the final decisions; and 3) the decision makers have to give fair consideration to all of the opinions rendered.

The process was not fair and decisions, or lack thereof, are based on political interests not the merits of the arguments presented or the best interests of the people. The Ministry did not give citizens sufficient access to information they needed to make their own decision about the mining project. Nor did they hold the public hearings necessary for citizens (whether for or against) or Pacific Rim to voice their arguments. Instead the debate has been a struggle between public relations campaigns trying to sway public opinion. Pacific Rim has been able to argue (seemingly with a straight face) that the mines will have no adverse environmental impact, and opponents have been able to argue that there will be no positive economic benefit at the local level. Instead of the Ministry making a decision based on the best interests of the country and the citizens that live around the mining area, they have once again allowed politics drive their decision-making. The mining has been very unpopular among Salvadorans and approval of permits would have had significant political consequences. While I am opposed to the mining, El Salvador would have been better served had the MARN arrived at a decision after careful consideration of the facts, the interests of the country as a whole, the opinions expressed by citizens, and their role as protectors of the environment. Though I think it would be a bad idea, if the government wanted public opinion to decide the fate of the permits, they could have held a referendum.

3. What does El Salvador have a right to request from Pacific Rim as a condition of permitting a gold mine for the extraction of the precious metal under the country's soil? What level of financial guaranty is required for cleaning up environmental consequences and the eventual closing of the mine? What level of tax levy should be imposed? What commitments should be required of Pacific Rim with respect to use of local contractors and investment in local infrastructure?

Article 29 of the Law on the Environment requires that if the environmental permits were approved, Pacific Rim would have to make a deposit in the amount equal to the total costs of the project or the investments required to complete the environmental management plans. The government will hold onto the deposit until the project is completed in accordance with the environmental management plan. The purpose of the deposit is to give the project managers an incentive to follow their environmental plan and provides the MARN with the resources to repair any damage they cause. The law on mines clearly gives the Ministry of Economics control over mining issues, so I am unsure if this requirement in the Law on the Environment would apply or not (and I am unable to reach my colleague who would know).

The Law on Mines requires that a mining company pay fees to the government based on the number of years of exploration and the area being explored. In addition, the Law requires that Pacific Rim pay the national and local governments each 1% of the sale of the minerals mined.

4. How does El Salvador balance economic development versus environmental risks? How do you balance a hundred or a thousand jobs in a country with desperate under-employment against the potential environmental contamination in a country where significant amounts of surface water are already polluted?

In principal, the Law on the Environment (Article 2) requires that the government and all Salvadorans balance the need of economic growth with environmental protection, adopting policies that promote sustainable use of environmental resources. Unfortunately, that’s all the guidance the law provides. According to international treaties, the international community is supposed to be assisting countries such as El Salvador attain the technology necessary to achieve sustainable levels of development and meet international environmental standards, but there are few signs of compliance. Sadly, any assistance provided by the international community often serves their own interests more than those of Salvadorans, and seldom generates motivation within the Salvadoran government to find a sustainable balance between environmental protection and economic development.

In addition, El Salvador is a country of great extremes and political polarization. Few in the development/business community are willing to work with environmentalists, and vice versa. Politicians, who have historically been tied to business interests, have had little interest in applying environmental regulations that will adversely affect their own economic interests, or those of that support their political campaigns. And environmentalists that face an intimidating number of issues with scarce resources, have little time or energy to propose viable alternatives that serve economic and environmental interests. The legal system, which lacks independence from the executive branch, has yet to serve as an honest broker between the development/business and environmentalists, or even municipalities wanting to protect their community. In place of healthy debates, it remains an all or nothing fight.

As El Salvador is approaching tipping points for both environmental degradation and economic development, the next administration will have to find the balance that the Law on the Environment requires.


El-Visitador said…
«In 2005, ADES, a Salvadoran organization in Sesuntepeque»


You are being unserious. Give me a break. Ades Sensuntepeque is a marxist organization. Go ahead, visit their website.

Check out their "bulletin":

- "Treveris the home city of Carlos Marx" (volume 11)

- "Jenny Marx's bio" (volume 4).

- "The life of Lenin" (volume 6)

- "Engels: 184th Anniversary" (volume 2)

- "Elections in Cuba, again ignored by the world" (volume 9)

- "Guerrilla song, from Santa Marta" (volume 9)

- "The Western model is incompatible with life on Earth" (volume 10)

- "The fall of the Dollar as Imperial Currency" (volume 6)

- "The great evil of El Salvador is wealth, private property" (volume 8).

- Why did Ford, General Motors, and Exxon arm Hitler? (volume 4).

- "Education and Class Warfare" (volume 2)

These gems of course peppering all sorts of articles about the heroic feats of Communist terrorism in the 1980's, about how evil the US is, about how good the Cuban and Palestine governments are, and all kinds of anti-development propaganda, particularly against mining.

The facts are that Salvadorean law clearly provides for a government review process and a public review process, both of which were completed. In this case, the government has elected to not grant nor deny the permits four years into the process.

So, if you are spreading misinformation generated by ADES, kindly consider the source and the context within which it operates.
Anonymous said…
I believe the point was that the environmental impact statement was not sufficiently available to the public for review in violation of the national environmental law. While disagreeing with ADES's writings and political leanings is fine, I'm not sure how that contributes to the discussion.

Even if you leave ADES and Dr. Moran's report out of the discussion, the government still didn't provide sufficient access to the EIS. If Pacific Rim and the government were really interesting in transparency, they would have posted their EIS online a long time ago, or at very least allowed people to make copies of it.

Have you seen a copy of the EIS? Have you seen Pacific Rim's plan to prevent contamination of soil and water, or clean up in case of an accident.

Unfortunately, because the public did not have access, all we have to go on is this one report published by Dr. Moran and ADES. Perhaps given more opportunity, organizations or professionals of your political leanings may have come to the same conclusions.

So trash ADES all you want - but that doesn't argue the point that there was no review process.
Anonymous said…
Good to see that E-V is both a free market neoliberal, actually believes that something called the "free market" actually exists, and that he stoops to using red baiting.
Anonymous said…
One of the biggest barriers to El Salvador advancing its development is the name calling and adversarial approach (as perfected by Karl Rove, inc.)taken by el-visitador.

Instead of providing substantive commentary or criticism on today's post, el-v calls ADES marxist?!?

Aren't there more important things to discuss than ADES's political leanings - they're nice folks and deserve our love and attention, but come on...

How about discussing whether or not the public participation provisions of the environmental law really apply in this case, or does the mining law (which does not have a PP provision) trump? Or why (why not) the PP provisions in the Env. law are sufficient, and whether El Salvador should suck it up and create a comprehensive law on public participation.

Instead of calling ADES names and pointing out articles you don't agree with, be a big boy (or girl) and make a substantive argument why you disagree with ADES's position on mining. Why not discuss the extent to which ADES and other organizations like them represent the people of Cabanas. From there you could even go off on a tangent about the role of NGOs in El Salvador and whether or not the Ministry should regulate NGOs more or less (personally I think they should make it easier to register an NGO, but do better to make sure they are fulfilling their missions).

Instead of name calling, argue whether or not the risks of environmental degradation are outweighed by the need for the jobs mining will provide. Tim brought up some great points - and I'm sure there is more to comment on that calling ADES a Marxist organization...

Having said all that, I'm sure they (ADES) appreciate your careful reading of their materials, and appreciate your sending people to their website.

I'm glad you're engaged and keep up on this stuff. But do us all a favor and provide real arguments and leave the Karlrovian name calling at home.
El-Visitador said…
Since we have one or more doubting Thomases, I'll bite by analyzing as demostrably biased the first verifiable sentence in the propaganda piece Tim published:

«The government, in an equally half-hearted manner, complied with their requirement to make the EIS available for comment by making a single copy of the 1000-plus-page document available in an office in San Salvador for ten business days»

The law mandates that the public must be consulted in the localities to be impacted, according to a protocol designed ad hoc by the ministry. Environmental Law General Regulations, Article 32, Decree 17, March 21st, 2000. The gubm't must record people's opinions. This was done.

The law then gives 15 days for the govm't to "consult" with ONG's, businesses, and the media. These privileged worthies have a "fatal limit of 15 calendar days" (10 biz. days) to opine. Environmental Law General Regulations, Article 12, Decree 17, March 21st, 2000. This was done.

Done. Period. Within the timelines set by law in 2000. It would be fricking illegal to do more days than what the law stipulates as a "fatal" term. The commie propagandist can go and eat his heart out with his biased statements about "half-hearted" whatevers.

- * -

The law then states that the "opinions received must be considered under strictly technical criteria", whatever that means. Naive people may think this means the government must think of the birdies and the flowers. I, on the other hand, am pretty sure it simply means that the bureaucrat is empowered to metaphorically burn the opinions and then do whatever the hell it is the bureaucrat wants to do.

Look, if anyone does not like enough the public consultation process, get your own assemblymen and get them to change the law. I know I don't like the law, for it has (as I predicted 10 years ago) created a bureaucracy answerable to no one.

But don't be a marxist and come and say that the law was violated in regard to the public consultation process. Read the law, the language is plain.

- * -

Calling these propagandists "marxists" would be name calling only if it weren't true. They love Marx, therefore they are marxists. Sheez.

- * -

The law does establish timelines for GOES to approve or else the project is considered approved. The regulation (having been written by the [$&!!#] bureaucrats themselves) is a lot more vague. But I think the miners have a case. I hope they do like Coastal that took the bureaucrats to court and got $90 million.
Anonymous said…
Wow - commie propagandist... so 1980's. If you're going to use names, at least step into the 20th C. Terrorist propagandist might be more in line... but commie propagandist does flow a little better.

The government can follow the letter of the law in a half-hearted manner... unfortunately it happens more often than not.

The law does not prohibit people from making copies of the EIS; the law doesn't keep the Ministry from making more than one copy of an EIS available during the 15 days; the law doesn't prohibit the EIS from being posted on the MARN website; the law doesn't prohibit the Ministry from making the EIS available for review in the communities affected.

The Ministry could have done a lot more to ensure the public had access to the EIS and other documents, but they didn't. They made one copy available in San Salvador and prohibited its reproduction.

You're analysis only makes the point that the government fulfilled its requirement, but that point was conceded in the original comments: "The government, in an equally half-hearted manner, complied with their requirement to make the EIS available for comment by making..."

What you failed to do was demonstrate how the these efforts were "half hearted", a description that apparently made you conclude the author of the remarks is a commie propagandist.

You seem to agree that the participatory process is broken - I infer that from the 6th paragraph in your last comments. I think the author of the comments was making the point that because the participatory process is broken, that left both Pacific Rim and opponents to the mining to wage PR campaigns to sway public opinion (and political pressure) one way or another. Do you agree or disagree with that point?
Anonymous said…
El-Visitador said…
«The law does not prohibit people from making copies of the EIS; the law doesn't keep the Ministry from making more than one copy of an EIS available during the 15 days; the law doesn't prohibit the EIS from being posted on the MARN website»

WRONG: the law states that the protocol for what is/is not allowed is designed by MARN for each case. If MARN in its absolute incompetence decided no-one can make copies, then that is the law of the land.

You don't like it? Me either. I have for over a decade made clear to whoever would listen that MARN is an absolute and perverse waste of money and top Salvadorean economists already call it "the biggest bottleneck to private and public investment.

«the law doesn't prohibit the Ministry from making the EIS available for review in the communities affected»

Actually, if you bother to read the law, you will find that if the EIS contains propietary info, the law prohibits MARN from making pubic the EIS.