Colombian Administrative Tribunal Ruling
Official English translation No. 297/04 of a Colombian State Council ruling dated 19 October 2004.
State Council Plenary Administration Section
Presenting Councillor: Nicolas Pajaro Penaranda
Bogot�, D.C., 19 October 2004
Public Interest Action
Plaintiff: Claudia Sampedro Torres and Another
The Plenary Administrative Section hereby proceeds to issue the ruling in the abovementioned case which it is required to, in view of the legal importance thereof.
1. The suit was filed before the Cundinamarca Administrative Court with a view to winning protection for the collective rights to enjoy a healthy environment and to guarantee, exploit and restore natural resources, animal and vegetable species and diverse areas of ecological importance, and so that the necessary decisions might be made to prevent these elements being harmed through the use of biological controllers on the pretext of eradicating illicit crops.
The plaintiff points in a tedious manner to the various places in the country where coca and poppy crops have increased. She likewise gives details of since when fumigation has taken place by means of aerial spraying with Paraquat in some cases and with Glyphosate in others, with disastrous results for the country. These illicit crop eradication measures have nevertheless continued to increase, and the Ministry of the Environment has failed to carry out controls and follow-up on the use of Glyphosate in order to guarantee personal health and to conserve ecosystems.
The suit maintains that the public are of the opinion that manual procedures should be used for eradicating crops, since aerial spraying destroys the environment and increases the human tragedy of those who suffer the effects of the chemicals that are sprayed, not to mention the fact that the methods used lead to crops being moved elsewhere and that the government goes on ignoring duties and rights, the defence of which is enshrined in the political constitution and in Law 99 of 1993.
The plaintiff likewise states that the government, through the Ministry of the Environment, has promoted the use of micro-herbicides which act like biological weapons.
2. The Ministry of the Environment, Housing and Regional Development denies the facts on which the suit is based, states that Paraquat has not been used in fumigation activities for more than twenty years and that micro-herbicides which act like biological weapons have not been either employed or manufactured, and maintains that studies have been demanded, which have been evaluated, and that judicial orders have been issued to prevent, mitigate and compensate for the harmful effects which are stated in the introductory petition to the proceedings.
The National Narcotics Council, National Narcotics Division, and the Ministry have taken the necessary steps and adopted other measures for ensuring that the effects of aerial spraying with Glyphosate are kept within the guidelines set out for preserving the environment.
The Ministry put forward the plea that there was a lack of integration in the adversarial action, since ICA, the Presidency of the Republic (because it manages El Plante) and those responsible for planting illicit crops had to be brought into the proceedings; it states that the National Narcotics Council is responsible for deciding on the fumigation of illicit crops.
3. The National Narcotics Division explained the procedures that are followed for eradicating illicit crops, and concluded its answer to the suit by stating that the order to destroy such crops has been based on technical opinions from the Ministry of Health and Inderena, and that it is not true to say that aerial spraying leads to an environmental catastrophe or increases it; so much so that illicit crops have been replanted in areas where aerial spraying has taken place.
4. ICA, meanwhile, referred to the role it plays in ensuring that farming is protected and in adopting measures which prevent Glyphosate from being used badly.
5. The Anti-Narcotics Division of the National Police Force intervened in the proceedings, supporting the defendant.
THE FIRST LEVEL DECISION
The Administrative Court agreed that the rights invoked by the plaintiff should be protected, applied the precaution principle with respect to the chronic toxicity caused by aerial spraying with Glyphosate, ordered the aerial fumigation activities referred to in the suit to be temporarily suspended, arranged for the Ministry of Social Security, the National Health Institute and the National University, in conjunction with the National Pesticides Council, to undertake studies which would determine the impact of the chemicals Glyphosate, Poea and Cosmoflux on the lives of Colombian citizens, gave the National Narcotics Division orders to identify the damage caused by aerial fumigation, including morbidity records, and appointed the Office of the Attorney General to see that its decision was complied with through the corresponding delegate thereof.
POSITION OF THE OFFICE OF THE ATTORNEY GENERAL
It accepted that the fumigation referred to in the suit could harm the rights invoked by the plaintiff, added that the Ministry of the Environment should demand that an environmental management, recovery or restoration plan be submitted, stated that the National Narcotics Division was not meeting its obligations to mitigate or prevent the impact of the aerial fumigation referred to in the proceedings, stated that fumigation with Glyphosate with a view to eradicating illicit crops represents a risk to human health because of the acute and chronic toxicities it can cause, and concluded that, on the basis of the precaution principle, aerial fumigation with Glyphosate should be suspended because it constitutes a serious risk to the health of humans.
JUSTIFICATION FOR THE APPEAL
The National Narcotics Division maintains that the suspension decreed by the Court leaves the country defenceless against the mafia and guerrilla and paramilitary groups, that spraying with Glyphosate has led to a considerable reduction in illicit crop levels from 102,000 to 30,000 hectares, that coca crops have destroyed 1,700,000 hectares of wet tropical forest, that illicit crops have a harmful effect on the environment, that evidence indicates that the Environmental Management Plan has indeed been complied with, that the evidence which is on file moreover does not lead to any suspicions that the environmental rights stated are under any imminent threat of being transgressed, and that it has not been demonstrated either that the omissions incurred are a cause of damage to the environment and health.
As becomes clear from the background details given above, the litigation or conflict of interests stated in the introductory suit to the proceedings relates to two clearly-defined situations: the first is the aerial spraying in certain parts of the country of chemical components (Glyphosate, Poea and Cosmoflux 411F) for destroying illicit crops such as poppies and coca, which the plaintiff maintains represents a threat to collective rights or a contingent danger thereto. The second refers to the duty which the state has, and particularly its authorities, to safeguard interests which are unquestionably collective, such as preserving the environment, protecting the lives and health of the country's inhabitants, and protecting wildlife and watercourses, so that these are not destroyed or polluted as a result of acts or omissions by the authorities or private individuals with public duties, all for the unmistakable purpose of guaranteeing the well-being of the joint associates and allowing them to lead a healthy life, with natural and social resources that facilitate the economic and cultural development that is necessary if state progress and evolution are to be assured.
The questions which therefore need to be answered are, on the one hand, whether or not the said spraying constitutes a real or contingent danger or harms the rights stated in the text of the suit, and on the other hand, whether the authorities against which the action was filed have acted in line with constitutional and legal mandates for achieving the goals of a state, such as serving the community, guaranteeing its rights, defending lives and goods, and in general terms, ensuring that the social duties of the state are performed.
This Section confines itself to the case in question, which requires a prompt solution, and no reference is therefore made to any other type of collective right that could be violated by virtue of diverse activities which it can serve no purpose to refer to in the considerations relating to this judgement.
It nevertheless should be pointed out that public interest actions are regulated in the first paragraph in Article 88 in the Constitution, which sets out the general objectives for this type of judicial mechanism. This Article reads as follows.
"The law shall regulate public interest actions for protecting collective rights and interests relating to public health, security, equity and spaces, administrative morals, the environment, free economic competition and other similar rights and interests defined therein".
Article 9 in Law 472 of 1998, meanwhile, states the following.
"Applicability of Public Interest Actions. Public interest actions are applicable against any act or omission by public authorities or private individuals which has violated or threatens to violate collective rights and interests".
And Article 15 in the same law establishes that public interest actions derive "from actions, acts or omissions by public entities and private persons engaged in administrative duties, in accordance with what is determined in current provisions governing such matters".
In line with the aforementioned norms, if the public interest action in question is to prosper in its entirety, it has to be fully demonstrated and proven that an act or omission occurred which infringed the collective rights and interests invoked, or threatened to do this, originating in the persons stated in the body of laws.
The next step is accordingly to review the evidence on three fundamental points that are directly related to the litigation.
Firstly, the file contains a document, translated into Spanish, which relates to FAO Specifications and Evaluations for vegetation protection products, and this refers to the composition of Glyphosate and its different uses. This document concludes that the acid and salts thereof have low acute toxicity levels in certain laboratory animals, indicated by weight, and that they likewise do not cause irritation when they come into contact with the skin, but that the acid does cause severe irritation when it comes into contact with a rabbit's eyes, although less so in the case of the salts. Despite the fact that Glyphosate is used worldwide, there is no evidence of it having carcinogenic effects in humans and the risk is low in animals like birds, mammals, bees, etc.
The work "Environmental Health Criteria for Glyphosate" by scientists from the National Public Health and Environmental Hygiene Institute at Bilthoven states on the subject of health dangers that Glyphosate absorption from the gastrointestinal tract is 36% and through the skin 55%, that 99% of it is evacuated in seven days, and that residues are minimal in breeding animals and products; similarly, that the Glyphosate toxicity level is low when absorbed orally or through the skin, not to mention the fact that Glyphosate is neither carcinogenic nor mutagenic or teratogenic; that the danger is small in water animals and the changes which occur in aquatic micro-organisms are only transitory; and finally that the same low toxicity levels apply in bees, mammals, birds, etc.
The study entitled "Evaluation of Safety and the Risk to Humans of the Herbicide 'Round-Up' and its Active Ingredient, Glyphosate" (page 43), which studies the effects of these elements, concludes that there is nothing to suggest that human health is endangered in any way, that Glyphosate and AMPA do not accumulate in the organism, and that Round-Up causes temporary irritation of the eyes but does not lead to genetic changes or hereditary or somatic mutations in human beings; it adds that there were no signs that Glyphosate, AMPA and Poea were teratogenic or toxic, or that they affected fertility or reproduction. The study stated that Poea is not used in concentrated form and that only lower concentrations of it are found in its final product (Round-Up), and that as stated in the study attached to the FAO report, Glyphosate is not absorbed well by organisms and is quickly excreted.
The research that was carried out by the Uribe Cualla Toxicology Clinic and the Toxicological Advisory Centre (CAI) entitled "Retrospective Study into the Possible Effects on Human Health of Exposure to Glyphosate due to Aerial Spraying under the Illicit Crop Eradication Programme and/or of Exposure to Other Pesticides Employed in Furtherance of Coca Growing in the Towns of Orito, la Hormiga and San Miguel, Putumayo Province" (Volume 97 of the file) reached the principal conclusions that are detailed below after attending 1244 people and studied 448 at the request of the Narcotics Affairs Section of the American Embassy.
83% of people interviewed who had been exposed either directly or indirectly to aerial spraying with Glyphosate suffered eye complaints such as soreness and reddening, digestive system problems like diarrhoea and vomiting, and skin complaints with scabiosis (32%), bio-dermatitis (25%) and poly-parasitism symptoms, although these skin complaints were not necessarily related to Glyphosate exposure, since their cause could lie not only in action by chemical agents but also in infections and allergies. The eye problems and coughs, amongst other illnesses, were due to acute, accidental exposure to undiluted Glyphosate. Finally, these complaints improved with pain-killers or home remedies and evolved in a satisfactory manner over a short period of time; no cases were discovered of deaths caused by Glyphosate exposure, but one deformed birth was reported. 84.9% of the people interviewed had been in the area over which the spraying had been carried out or less than one kilometre away. Of the 448 people studied, 382 were found to handle agricultural chemicals for growing coca, and ten of the twenty six such products were in toxicology category I (highly toxic), while 91.1% of those who used pesticides did not wear any type of personal protection.
The final report by the above-mentioned Clinic on areas in Nari�o Province concluded in general terms that no link was found between the state of health of the people examined and aerial spraying with Glyphosate Tests were performed on rats (with 44% Glyphosate + 1% Cosmoflux + 55% water), and with oral doses of 5000 mg/kg, 2500 mg/kg and 1250 mg/kg of DL 50, and the mortality figure in males and females after three doses was 0% during the fourteen days that the study lasted. On the question of acute skin toxicity in rabbits, no pharmacological or toxic sign whatever was found apart from a drying of the skin and erythema, although the skin began to recover from the fifth day; moderate irritation was observed in the eyes, and no primary skin irritation caused by the product was noted.
Dr. Camilo Uribe Granja, Scientific Director of the Uribe Cualla Toxicology Clinic, said that if Glyphosate is inhaled, it produces sub-acute toxic effects (cough - bronchial spasm) which die away without treatment after the over-exposure to the concentrated product has ceased, and that Glyphosate molecule liposolubility is low and can cause delayed toxicity, although the studies showed that farmers handle 38 agricultural chemicals, some of which are highly toxic, without any protection.
The Court took into account, amongst other things, the 1984 recommendations and opinions of the Experts' Committee and those of the company Ecoforest Ltd., which expressed the view that the chemical method that was used for fighting illicit crops "should be the last thing to be considered", adding that aerial spraying with Glyphosate was not advisable, as application on land or by helicopter, rather than by fixed-wing aircraft, was recommended, since the "drift" effect could have a highly polluting effect on watercourses and could represent an even greater danger to human beings, life forms and wildlife; the aerial spraying method therefore required expert guidance from qualified personnel. The aforementioned studies also reveal that as Glyphosate increases nitrogen and carbon production in the soil, and because of the chemical processes that go on in soil, carcinogenic substances are produced which affect animals.
The Court also based its decision on statements by Drs. Elsa Nivia and Mar�a Elena Arroyave, who concluded that "Glyphosate has also been found to be toxic in the long term in studies with animals. With high doses in rats (900-1200 mg/kg/day". They stated that in order to determine whether or not it caused cancer, twenty or thirty years would be needed to see the effects.
It should be stressed that the aforementioned opinions do not specify the conditions under which exposure to the herbicide should occur. Furthermore, in order to corroborate the criteria stated, the Court had recourse to the words of the Executive Director of the Pesticides and Alternatives Action Network - Latin America (RAPALMIRA, after its initials in Spanish), an Agronomy and Chemical Biology expert who said in one fundamental section of a document that Glyphosate can combine in the environment with nitrate, an element which, like all nitrous ones, is carcinogenic.
This document, as well as the "Lymphoma Case and Pesticide Exposure Control Study" which was taken into account by the Court when making its decision, does not refer to the intensity or duration of the exposure, features which are of vital importance to a decision in this instance.
The Court likewise disregards the statements by Magdalena Tavera and Dr. Camilo Uribe Granja, scientific director of the only institution specialising in toxicology, namely the Uribe Cualla Clinic, to the effect that Glyphosate is harmless for acute toxicity. The reason for this is the statement by Minister of Health Sara Ordo�ez, whose version nevertheless corroborates the two previous ones, since what she says is limited to situations of acute intoxication, which arises only rarely and in cases of extreme exposure.
But it should be pointed out that according to this official, Glyphosate is eliminated rapidly through urine, 90% of it in the first 48 hours, which coincides with the FAO study, which states that Glyphosate particles are too large to be inhaled.
The serious mistake made by the earlier court was to not take into account the fact that the function of Poea (amino polyexethylene), which is also to be found in Round-Up, when used for spraying illicit crops, is to expand hydrophilic channels and thus make it easier for Glyphosate to enter.
Also on file are an International Agency Research - Cancer - World Health Organisation (IARC) monograph, a statement by biological chemist Hector Hernando Bernal Contreras, and Ministry of Health toxicology details, all of which, when taken in conjunction with the evidence stated above, allow the following conclusions to be reached.
a. Glyphosate, even in its Round-Up form under the conditions stipulated for use, does not cause serious and irreparable damage to human health, since 99% of it is excreted and is not retained in the organism.
b. Experiments have been carried out on animals and the effects were not serious, only transitory, with the animals recovering quickly, in a matter of a few days.
c. There is no convincing evidence, despite the scientific work that has been done, which enables it to be concluded that spraying with Glyphosate represents a danger to human beings. Despite this, however, this Section is of the opinion that certain control measures should be adopted, so that an idea can be gained of how the situation evolves over time, given that the method used by those who conducted the corresponding research was inductive, as was only to be expected, where the aim was to arrive at generalisations on the basis of particular cases and an examination of groups of individualities, relating both to man and to other animal and vegetable species.
d. Peasant groups use many chemical products other than the different forms of Glyphosate in their daily agricultural activities, and some of these chemical products are highly toxic and could be the fundamental cause of complaints.
e. Despite the fact that only one case of deformation was found, there is no convincing argument to relate this directly to the aerial spraying referred to in the suit.
f. Certain digestive tract or skin complaints caused by Glyphosate have been seen to last only a short time and to even be eliminated by home remedies or painkillers.
g. It is feasible to use Glyphosate to eradicate illicit crops without harming human beings, provide that the respective precautions are taken.
Reference should be made to the following arguments on the question of environmental pollution.
a. Statement by Tom�s Le�n Sicard, Master's Degree in Environmental Sciences, National University.
He is of the opinion that in view of its wide spectrum, Glyphosate attacks a wide range of plants, especially grasses, herbaceous and leguminous species and commercial crops, and it can eliminate vegetation cover and eventually lead to erosive processes; but he is not aware of any studies into possible effects under the conditions in which fumigation takes place. In his opinion, the nitrogen in Glyphosate may migrate, pollute water sources, and lead to products being carcinogenic.
b. Statement by Ernesto P�rez Ruiz, Environmental Supervisor, Illicit Crops Programme.
He is of the opinion that spraying causes damage that is restricted to the illicit crops, as it does not affect the soil from the agronomic point of view, since sprayed areas recover perfectly in a matter of just a few weeks. In his opinion, what Cosmoflux 411F does is allow the herbicide to penetrate. And he adds that there is no data about serious and irreversible soil damage.
c. Statement by Luis Eduardo Parra, Environmental Consultant and Forestry Engineer.
He explains that if the spraying guidelines for Round-Up are followed, it kills poppies in seven to ten days and coca in between seventy five and ninety days, without endangering the environmental quality of ecosystems and leading to a regeneration process in the sprayed forest area. He adds that no pollution was observed in water samples, and that forest destruction is the result of felling by those who grow illicit crops.
d. Statement by Hernando Bernal Contreras, chemist and biologist.
He says in the most important part of his statement that he bases himself on National Narcotics Division research, which leads him to the conclusion that because of the components of Glyphosate and the processes which take place after spraying, it is very difficult for Glyphosate to have a residual effect on future crops, and its use is recommended, in accordance with certain technical details, for preparing the ground before new plantations are begun.
e. Statement by Rodrigo Velaidez Mu�et�n, Agronomic Engineer and CEFISAM Officer, member of the San Vicente del Cagu�n Apostolic Vicariate.
His experience with the Amazon Regional Development Programme called "Amazon Family Farm", which includes coca-growing peasants, has shown him that that these latter do not use Glyphosate on a localised basis, and grassland areas are therefore washed. He also says that the hair of young cattle was seen to fall out, although they recovered later, and that if the yards of houses are washed with Round-Up, birds die and because the product falls into the pond, the deaths occur of a number of young fish.
f. Also on file is a document entitled "Effects on Health and the Environment of Herbicides Containing Glyphosate", by agronomic engineer Elsa Nivia, the content of which is in line with her statement in the proceedings and which was referred to earlier, since it is one of the cornerstones of the ruling that is appealed against.
It cannot be accurately inferred from the evidence outlined that Glyphosate causes irreversible damage to the environment when it is used for eradicating illicit crops; on the other hand, a number of facts lead to the conclusion that sprayed areas regenerate in a relatively short period of time and that many hectares of forest are destroyed when trees are felled by growers of illicit crops.
Clearly, the guidelines stated by the environmental authorities should be followed when illicit crops are being sprayed, and not even the slightest deviation from these should be permitted, which means that it is therefore necessary for permanent controls to be undertaken, with continuous evaluations, of any effects which might begin to appear. This nevertheless cannot lead to fumigation activities being suspended, since such a measure could weaken the state and at the same time would reinforce the different groups which finance themselves by illicit drug trafficking, something which without any shadow of doubt is a scourge on Colombian society and on mankind as a whole. The fact is not overlooked - because the evidence clearly demonstrates it - that certain problems and complaints do arise, but these are not as serious as the plaintiff claims, and this means that permanent and strict controls of fumigation activities are required.
It should be stressed that there is no evidence whatsoever on the file to accredit any failure to comply with the measures that were imposed on the National Narcotics Division by the Ministry of the Environment in Resolution No. 341 of 2001, whereby decisions were made in connection with the Illicit Crop Eradication Programme using Aerial Spraying with Glyphosate, and that there is therefore no reason whatsoever to reproach the Ministry of the Environment for not penalising the National Narcotics Division for such alleged default.
Finally, it should be said that Article 6 in Law 99 of 1993 cannot be used as legal justification for concluding that the suspension of aerial fumigation activities should be decreed, as referred to in the suit, as an effective measure for preventing degradation of the environment, since there is no valid reason under the current circumstances for claiming that the danger exists of serious and irreversible damage, which such an extreme measure would imply. It is nevertheless advisable to order the Ministry of the Environment to continue to comply strictly with the Environmental Management Plan, and furthermore to not stop carrying out studies with a view to obtaining even more details of the effects of the chemical compound that is used in the spraying, with verification by the National Narcotics Division.
By virtue of the foregoing, the State Council, Plenary Administration Section, administering justice on behalf of the Republic and as authorised in the law, hereby
1. The first-level ruling is hereby annulled.
2. Instead thereof, the Ministry of the Environment, Housing and Regional Development is hereby ordered to continue its verification activities in order to ensure that the Environmental Management Plan is strictly adhered to, as stipulated in Resolution No. 1065 of 2001, and also the obligations stated under Articles 2, 6, 7 and 8 in Resolution No. 341 of 2001, both issued by the same Ministry.
3. The Ministry of Social Protection should undertake studies involving groups exposed to Glyphosate, plus Poea, plus Cosmoflux, and a control group (not exposed), to include morbidity and mortality records, with a view to determining the effect of the chemicals in question on the health and lives of Colombians in sprayed areas, especially in the area of influence of the Sierra Nevada de Santa Marta and in other areas where spraying is done, as chosen by the Ministry of Social Security, which should nevertheless include areas sprayed at different times.
4. The National Narcotics Division should verify the environmental effects of aerial fumigation with Glyphosate, plus Poea, plus Cosmoflux, for eradicating illicit crops in the fumigated areas selected as samples, so as to provide areas fumigated at different times, and this work shall receive the necessary supervision for ensuring that follow-up is carried out of the effects of fumigation.
5. As a result of this fina l ruling, the file should now be returned to the original Court.
The above ruling was duly read, discussed and approved by the Section at its session on the said date.
TARSICIO CACERES TORO
RUTH STELLA CORREA PALACIO
REINALDO CHAVARRO BURITICA
MARIA ELENA GIRALDO GOMEZ
MARIA NOHEMI HERNANDEZ PINZ�N
ALIER HERNANDEZ ENRIQUEZ
|FILEMON JIM�NEZ OCHOA
JES�S M. LEMOS BUSTAMANTE
LIGIA L�PEZ D�AZ
GABRIEL E. MENDOZA MARTELO
OLGA IN�S ORT�Z BARBOSA
NICOL�S PAJARO PE�ARANDA
JUAN ANGEL PALACIO HINCAPIE
|DARIO QUI��NES PINILLA
HECTOR J. ROMERO D�AZ
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I hereby declare under oath that the foregoing is a true translation from the original, that I am well acquainted with the English and Spanish languages and that I am an Official Translator authorized by Resolution No. 01016 of October 2, 1998, issued by the Ministry of Justice of the Republic of Colombia. I am also certified as an English-Spanish translator by the American Translators Association (ATA).
Bogot�, D.C., 19 November 2004.