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 . 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.
Students viewing this case will:
Gain a basic understanding of judicialization of environmental policy, and its effect on democratic accountability.
Develop an understanding of the relationship between the division of powers among the three branches of Government and tools of vertical and horizontal accountability
Gain an understanding of the challenges individuals and communities face when they attempt to hold different branches of government accountable for environmental disasters, specifically in the context of persistent policy failures.
Be introduced to an emblematic environmental case of persistent policy failures followed by a historic Supreme Court ruling in which the judiciary assumes a managerial role in resolving policy issues.
Gain an understanding of the needs and concerns of the different stakeholders in the Mendoza Case in Argentina and the extent to which they were met through judicialization.
The Matanza-Riachuelo River basin in Argentina (referred from here on as the Riachuelo River or the basin) is one of the most polluted areas on earth [2, 3]. It appears regularly in lists of top 10 most toxic sites, which include places such as Chernobyl in Ukraine and the Citarum River in Indonesia which affect millions of people. The basin covers 2,200 km2 and is situated in the middle of Buenos Aires, one of the most densely populated cities in the world . In 2006, the basin became the site of a historic Supreme Court ruling. After 200 years of mismanagement by municipal, provincial, and national governments, the Court accepted a case that brought the judiciary into the fore of an ongoing environmental disaster. The case was filed by 17 residents and health professionals of the Municipality of Avellaneda, who claimed extensive health damages as a result of the pollution in the river basin where they lived and worked . The Court ruled against the government and issued directions for the Executive branch to effectively remediate the vast contamination of the Riachuelo River.
In its 2006 and 2008 decisions, the Supreme Court transformed the original claim based on health damages into one solely based on environmental standards; it created a technical roadmap with specific deliverables and timelines that the government would need to follow; created a suprajurisdictional agency that would implement a Court-mandated Integrated Plan for environmental rehabilitation of the basin; and established a collegiate body of NGOs that would serve as a watchdog and advisory group to the Court. The Court’s actions were received with enthusiasm by the Argentine society and environmental scholars in general [5–7]. The case was hailed as a long-awaited victory for the almost eight million people who live in the basin, and as a means to assuage the continuously deteriorating environmental conditions of this watershed. However, 12 years after that landmark ruling, conditions in the Riachuelo have not improved significantly. Figure 1 shows that since the Court rulings the levels of oxygen in the river have remained low and that the most polluted parts of the basin still cannot sustain any living flora or fauna.
Figures 2–4 show the long history of contamination and its effect on people living around the basin. The first photo is taken in 1910 when the river basin was already heavily polluted. The second photo of the Riachuelo River was taken in 2008 after the Supreme Court’s decisions to accept the case. The third photo was taken in 2012 and shows the riverbed of the Matanza River. “Riachuelo” means small river in Spanish and “Matanza” means slaughter. That river acquired its name from the number of slaughterhouses that begun populating its banks in 1810. This environmental disaster begs the question of who is now accountable for these conditions: the Court, which set a detailed remediation plan that may not have provided an adequate solution for cleaning the basin; the suprajurisdictional agency the Court created and tasked with executing its plan; the industries that are located on the basin and continue to pollute the waters; or the elected officials in national, provincial, and municipal governments who were also responsible for implementing and financing the Court’s rehabilitation plan?
This article is based on archival research and interviews in Argentina, which were used to reconstruct the origins of the environmental problem, the basis for the legal case and its development, along with an assessment of its outcome from the perspective of the litigants, the Chief Justice of the Supreme Court, community organizations, and staff involved in the clean-up efforts a decade after the initial ruling.
The Argentine Constitution and tripartite structure of government involves checks and balances between the executive, legislative, and judiciary branches, and is modeled on the U.S. system . This case study investigates the different kinds of accountability relationships that emerge when governments repeatedly fail to address large-scale environmental disasters through regular government agencies that are part of the executive branch. In particular, the case examines the accountability challenges that arise when the Supreme Court steps in and becomes a “governor by default,” because the other branches of government have proved unresponsive to community demands. In so doing, the judiciary significantly exceeds its traditional function of adjudicating between parties and becomes a policymaker for the well-being of society. The case shows how this kind of judicialization entails a set of risks to the structural accountability relationships that exist horizontally, between the branches of government, and vertically, between the State and society. When the judiciary took over an active managerial role after so long a history of failed government policies, the public responded enthusiastically, since the Court was being responsive to political demands elected officials had long failed to address. The initial optimism faded when citizens realized they had no avenues for redress in a context where the Supreme Court’s own rehabilitation plan proved ineffective in cleaning up the Riachuelo basin.
The judiciary lies beyond the direct electoral process, and citizens cannot vote ineffective judges out of office in the same way they can vote out ineffective politicians. Judges, by design, have the last word. Therefore, when the Court inserted itself and mandated specific policies to rehabilitate the basin, it inadvertently created a vertical accountability gap between citizens and the State. Vertical accountability “refers to the controls that the electorate places on their government to ensure elected representatives adhere to the mandate they have received” (, p. 35). Free and fair elections are an example of vertical accountability mechanisms since they provide citizens an opportunity to sanction their representatives through the ballot box. In contrast, horizontal accountability “refers to the checks and balances that government branches place on each other to protect polities against monopolies of power, and ensure adherence to laws, jurisdictions, and remits” (, p. 35). The doctrine of separation of powers highlights the importance of checks and balances of political between the legislative, executive, and judicial branches . The judiciary is tasked with performing a horizontal accountability function, and when it finds that a government office has not performed its duties it can mandate it to carry out corrective actions.
In this context, judicial independence is viewed as an essential attribute of the courts because it allows them to remain autonomous from the other branches of the government and uphold the rule of law free from political pressures. In many countries, this independence is achieved by appointing-rather than electing-judges. However, as illustrated by the Riachuelo River basin case, unchecked judicial independence can quickly lead to judicialization, shifting decision-making power from the democratically accountable legislative and executive branches of government to the appointed judiciary. The courts can use this increased power to create public policy, and significantly overstep their core adjudicative role. This process is referred to as judicialization and involves the transfer of decision-making power from the legislative and executive branches of government to the judiciary [15, 16]. As a result, the judiciary not only plays an increased role in the creation of public policy but also begins to dominate political and social life. This case study focuses on the effects of judicialization of environmental policy on vertical accountability between citizens and the State.
Environmental Policy Failures and Judicialization in Argentina
The history of the Riachuelo River basin and the fate of millions of people who inhabit the polluted river banks illustrate the genesis of an environmental disaster that is the product of continual mismanagement and policy failures [17, 18]. Approximately 15,000 industries, primarily petrochemicals and pharmaceuticals, occupy the river’s 2,200 km2 . Approximately 40% of the population lacks water services and 60% lacks proper sewage . Water quality studies show that “discharge of industrial effluents, untreated or partially treated sewerage discharge, disposal of solid wastes and harbor activities represent the main sources of contamination in the basin” (, p. 301). The resulting health problems to the population living in the Riachuelo Basin have been thoroughly documented .
A study conducted by the Japanese International Cooperation Agency on the Health Status in the Matanza Riachuelo River basin, and particularly in the shantytown called Villa Inflamable (Flammable), showed an elevated and routine presence of lead and chrome in the blood tests of children, as well as the regular presence of 17 different toxic gases—including benzene, toluene, xylene, and carbon tetrachloride . Exposure to these toxins has led to cognitive deficits in the children of the river basin, spontaneous abortions, genetic mutations, convulsions, and respiratory and gastrointestinal problems . These problems were so severe and widespread that the National Ombudsman issued special reports on the conditions in the basin and a set of recommendations to mitigate the health crisis [23, 24].
In an ethnography of Flammable, which is located next to a petrochemical compound dominated by Shell, Auyero and Swistun  summarized the fear, confusion, and suspicion that have been the experience of the residents of the Riachuelo River area.
“Fears about the origins and prognosis of their (and their loved ones’) infirmities, uncertainties regarding the relocation efforts (un)coordinated by the local state, confusions stemming from physicians’ confusing interventions, suspicions and rumors concerning the actions of the most powerful company of the compound, Shell, all abound in the lives of the Romeros and of many a Flammable resident.” (p. 126)
All branches of the Argentine Government have attempted to address the appalling pollution and toxicity in the basin. Most recently during the 1990s, and as a result of renewed social and political demands, President Menem established a major government program with a US$250 million loan from the Inter-American Development Bank to finance environmental rehabilitation and clean-up of the basin [25, 26]. María Julia Alsogaray, then Minister of Natural Resources and Sustainable Development, vowed to ensure Riachuelo would be clean in 1,000 days-time, even publicly declaring she would personally swim in the river . Her publicity stunt did not work, and after 1,000 days the river remained polluted. In 2009, the World Bank loaned the Government another US$850 million to clean up the river . Despite these loans, the basin has remained polluted because the Executive, Judiciary, and Legislative branches of the Argentine Government have “little incentive to cooperate with one another over time, leading to myopic political and policy choices” (, p. 208). Coordination is vital not only between the three federal branches of government but also between national, provincial, and municipal jurisdictions. Figure 5 shows the multiple jurisdictions that need to harmonize the management of the watershed and some of the various sources of contamination from domestic and industrial origin across these jurisdictions.
In this context, residents of the basin became increasingly frustrated with the ineffectiveness of their elected officials and turned to the Supreme Court for help. Since traditional vertical accountability mechanisms, such as elections, were no longer enough to guarantee meaningful changes, they petitioned the Supreme Court to intervene and compel the Executive branch of the Argentine Government to act and meet their demands.
THE PROCESS OF JUDICIALIZATION
Transforming the Claim
The lawsuit became known as the Mendoza case, named after the first litigant Beatriz Mendoza, and was based on a claim of extensive health damages suffered by families and health workers from the contamination of the Riachuelo River. The case was brought against the federal, provincial, and city governments, as well as 44 private companies for their part in the pollution that caused these health problems. The Supreme Court issued two landmark decisions in 2006 and 2008. The first decision declined jurisdiction in the health claims but accepted the case on the basis of collective damages to the environment (, para. 1a and 1b). The second decision ordered the development of a basin-rehabilitation Integrated Management Plan, the establishment of a new interjurisdictional institution, and set up a Collegiate Body comprised a selected group of NGOs to advise the Court on the implementation of the Integrated Management Plan.
In its decisions, the Court chose not only to take on a managerial role as protector of the environment for current and future generations but also to take on core functions of the other branches of government. After many years of mismanagement, the residents of the Riachuelo River and the broader Argentine society celebrated the potential of achieving real change through the Supreme Court . Some people argued that this kind of judicial intervention was “crucial to the protection of economic, social and cultural rights” (, p. 22).
However, as the Court became more entangled in the process of developing effective policies for the rehabilitation of the basin it became clear that this role was more complex than originally assumed. In the following sections, this article focuses on how the judicialization of this environmental issue aggravated relationships of accountability between Riachuelo residents and the Argentine State.
Creating a Technical Roadmap
Following its first ruling, the Supreme Court mandated the Federal Government to develop a plan to clean and restore the Riachuelo River basin within 30 days. This set up an unrealistic timeline for a technical blueprint of major and complex watershed operations. Despite the rushed period set for compliance, the Government presented a plan to the Supreme Court. The Court consulted independent experts from the University of Buenos Aires, who openly criticized the Federal government’s proposal and provided recommendations. In response, the Court presented the Government with an alternative Integrated Management Plan. In the second ruling of 2008, the Court provided the government a specific execution strategy including timelines, deliverables, targets, and procedures. The goal of the Integrated Plan was to facilitate the effective rehabilitation of the basin, but many of the same mistakes that had produced earlier policy failures were repeated. The rigid plan could not correctly respond or adapt to local resident’s ongoing needs and concerns and failed to clearly identify appropriate targets.
Successive failures in meeting the Court’s initial execution targets were followed by many subsequent Court-mandated revisions of the Integrated Management Plan. None of these ultimately succeeded in achieving the desired environment goals or solving the health problems of the basin’s residents. As lead litigant, Beatriz Mendoza , stated in an interview in 2014:
“We have waited a long time since the case was filed, but we did not get what we wanted from the beginning: justice for the victims of pollution, including myself. We never asked for an Integrated Plan, or for a river basin agency. What we know is that our health was damaged at the time we filed the case in 2004 and since that moment we have never received government assistance to face those increased health care costs caused by the polluted rivers.”
If the Court had not taken on a managerial function and had instead directed the executive to fulfill its obligations in rehabilitating the basin, it may have not become involved in yet another round of policy failures. With no means to hold the Court accountable for its inability to resolve the environmental crisis, residents have been left with a dangerously polluted river basin and no democratic means of recourse.
Creating a New Bureaucracy
As Figures 5 and 6 illustrate, one of the obstacles in managing the basin has been the overlapping jurisdiction of 14 different municipalities as well as federal, provincial, and city governments. Therefore, the Argentine Supreme Court not only created an Integrated Management Plan to address the pollution in the Riachuelo River basin but also ordered the establishment of a new interjurisdictional agency, Autoridad de Cuenca Matanza Riachuelo (ACUMAR), to carry out its plan. This agency was meant to counter the multiple, often contradictory norms and actors operating in different jurisdictions, but mainly became an executor of the judiciary. It was required to implement the Court’s plan, rather than establish a technical approach of its own to fulfill the Court’s mandate. For example, when deciding on questions of implementation, ACUMAR had to consult a federal court judge appointed by the Supreme Court to oversee the execution of its judgment. Instead of being able to rely on technical or scientific criteria of its own, ACUMAR was obliged to follow Judge Armella’s instructions and guidelines. Armella, a newly appointed federal court judge, had no expertise in environmental law or management and did not have the appropriate number of employees required to support him in such a position. Furthermore, in 2011 he was separated from his functions in overseeing the enforcement of the Mendoza case ruling because of a corruption case that implicated him and his close relatives .
ACUMAR has not been able to design, execute, and enforce a set of technical solutions of its own since it was constrained to work within the limits of the Court’s mandated plan. ACUMAR continues to fall short of its objectives, and although it can be held accountable for the execution of specific activities it cannot be made responsible for the design of the overall plan. It is the Supreme Court that is answerable for the outcome of its plan.
Setting Up a Collegiate Body
The Supreme Court also created an innovative mechanism of consultation and compliance that has been called “cooperative judicialization” . It established a Collegiate Body led by the Ombudsman and staffed by representatives of NGOs who would provide feedback to the Court on the compliance of the ruling. Although initially celebrated for its inclusion of civil society, the Supreme Court restricted access to the Collegiate Body to five prominent NGOs and grassroots organizations. In a 2007 resolution, they also ensured that in the future no additional NGOs would be accepted as “third parties.” In so doing, they excluded NGOs and community organizations that had been working on environmental and social issues in the basin for many years. Rather than empowering less influential organizations that had traditionally advocated for the victims of the river basin, the Court’s design conferred special influence on powerful NGOs such as Greenpeace, and Fundación Ambiente y Recursos Naturales (FARN) to the detriment of community organizations such as Fundación Metropolitana and Fundación Ciudad.
When the citizens of the Riachuelo River basin were unable to hold their elected officials accountable for the environmental conditions of the basin, they turned to the Supreme Court. This initial crisis of vertical accountability indicates a failure of the ballot as an effective sanctioning instrument. Then, the Supreme Court neglected its main horizontal accountability function and chose to take on a managerial role. This generated a subsequent crisis of horizontal accountability. When the Court’s policy failed to clean-up the basin, residents had no way to hold the judiciary accountable for its failure in a now aggravated crisis . This process is summarized in Figure 7.
The Mendoza case has parallels in other areas of the world. For example, in the Philippines, 14 residents filed a case in a regional court after longstanding government failures to address the growing contamination of Manila Bay. The case made its way to the Supreme Court, which in 2008 sided with the litigants and penned a comprehensive management plan to rehabilitate the basin. The Supreme Court’s managerial actions, and continued jurisdiction over the basin, have been critiqued as instances of judicial activism . Despite the Court’s landmark decision and role, the water remains polluted, and 34 million people are still affected by the ongoing environmental crisis . Such cases raise questions about the effectiveness of the courts as environmental managers and offer a cautionary tale to civil society organizations that have looked to activist courts to remedy government policy failures. When a Supreme Court’s policy fails, citizens cannot vote judges out of office or appealing to another decision-making body, and in liberal democracies it is the people and not the judges who are supposed to have the last word.
CASE STUDY QUESTIONS
The following questions for engaging with this case study are designed in order of complexity, following Bloom’s hierarchical taxonomy of learning objectives. They require describing and discussing, followed by evaluating, then investigating and extending the case of the Supreme Court landmark ruling in Argentina to other jurisdictions.
Describe the risks and opportunities involved in judicializing environmental politics to catalyze environmental action. Discuss ways in which litigants and environmental advocates might try to ensure they retain channels of redress if a Supreme Court decides to judicialize an environmental problem and fails to solve the issue?
In a mock trial format, develop arguments on behalf of the residents of Riachuelo and counter arguments for the Supreme Court to decide if the case should be accepted by the highest Court on the basis of health claims, environmental protection, both or neither of those conditions. To prepare your arguments as representatives of the residents of Riachuelo, watch the video “Argentina: Dreaming of a Clean River (https://youtu.be/C6yFYeB6cUs),” and research the needs and concerns of the communities in the basin. To prepare the arguments from the Supreme Court, read below sections 41 and 43 of the Argentine Constitution and research the role of the judiciary in countries whose Constitutions enshrine the right to a healthy environment.
“Section 41—All inhabitants are entitled to the right to a healthy and balanced environment fit for human development in order that productive activities shall meet present needs without endangering those of future generations; and shall have the duty to preserve it. As a first priority, environmental damage shall bring about the obligation to repair it according to law. The authorities shall provide for the protection of this right, the rational use of natural resources, the preservation of the natural and cultural heritage and of the biological diversity and shall also provide for environmental information and education. The Nation shall regulate the minimum protection standards, and the provinces those necessary to reinforce them, without altering their local jurisdictions. The entry into the national territory of present or potential dangerous wastes, and of radioactive ones, is forbidden.
Section 43—Any person shall file a prompt and summary proceeding regarding constitutional guarantees, provided there is no other legal remedy, against any act or omission of the public authorities or individuals which currently or imminently may damage, limit, modify or threaten rights and guarantees recognized by this Constitution, treaties or laws, with open arbitrariness or illegality. In such case, the judge may declare that the act or omission is based on an unconstitutional rule. This summary proceeding against any form of discrimination and about rights protecting the environment, competition, users and consumers, as well as about rights of general public interest, shall be filed by the damaged party, the ombudsman and the associations which foster such ends registered according to a law determining their requirements and organization forms. Any person shall file this action to obtain information on the data about himself and their purpose, registered in public records or data bases, or in private ones intended to supply information; and in case of false data or discrimination, this action may be filed to request the suppression, rectification, confidentiality or updating of said data. The secret nature of the sources of journalistic information shall not be impaired. When the right damaged, limited, modified, or threatened affects physical liberty, or in case of an illegitimate worsening of procedures or conditions of detention, or of forced missing of persons, the action of habeas corpus shall be filed by the party concerned or by any other person on his behalf, and the judge shall immediately make a decision even under state of siege.” 
Conduct research on other comparable case studies:
The Manila Bay pollution case that resulted in a 2008 Supreme Court landmark ruling in the Philippines.
The Ganges River pollution case in India that resulted in the formation of the Ganga Project Directorate in 1985.
Outline the similarities and differences with the Argentina case. Apply the theoretical framework from this case study to investigate the state and society relationships of accountability that emerged in the Philippines and India after the Supreme Court intervened in both cases.
What effect do different legal systems have on the growth of judicialization of environmental policies? Whereas common law systems are thought to give judges a more active role in interpreting and applying rules, civil law relies more heavily on codes and statues which limit the role of judges . Yet, countries like Argentina use civil law, which should theoretically restrict judicialization. Using the map in Figure 8 and the source web link as a starting point, identify cases of judicialization in common law versus civil law countries.
The author is sincerely grateful to Abigail Lendvai for her excellent support as research assistant in the preparation of this case study and to the four anonymous reviewers of CSE who provided valuable comments to this article.
The authors have declared that no competing interests exist.