Using the Courts to Protect the Environment in Argentina: Accountability Pitfalls When Judges Have the Last Word

In July 2006, 17 neighbors and health professionals living in the basin of one of the most polluted rivers in the world—the Matanza-Riachuelo—brought a case before the Supreme Court of Argentina. They claimed extensive health damages due to the level of contamination of the basin. The lawsuit was filed against the federal, provincial, and city governments, as well as 44 private companies [1]. This case study introduces readers to the growing pattern of judicialization of environmental policies. This trend was initially celebrated by many activists since a Supreme Court responsive to people’s demands and focused on protecting the environment could address long-standing policy failures of the executive and legislative branches of government. However, this case study examines two main ways in which judicialization may generate an accountability crisis for communities affected by environmental disasters. First, it raises a theoretical argument that a Court that takes on managerial functions beyond its adjudicative role distorts the normal horizontal accountability functions that are part of the division of powers between the three branches of government. Second, it empirically demonstrates that a Court’s involvement in policy formulation does not guarantee effectiveness and precludes vertical accountability, since citizens cannot vote judges out of office. The case suggests that judicializing environmental politics is fraught with risks to democratic accountability. These must be considered carefully before embracing the judiciary as a band-aid remedy to an executive branch that fails to protect people and the environment.