"Environmental values will be seriously endangered during the execution of Repsol's soundings and need protection." That is what the dissenting opinion issued by one of the magistrates of the TSJC, Luis Helmut Moya, who was in favor of temporarily halting the explorations, maintains.
Against the criteria of his other five colleagues in the Chamber, the judge has issued his own vote in which, throughout eleven pages, he includes harsh questions to Repsol and the central Government, especially to the Ministry of Environment. In addition, he also disagrees with the other magistrates of the TSJC who have decided to reject the request of the Government of the Canary Islands to temporarily stop the soundings.
In this regard, the judge regrets that "in order to avoid prejudging" (given that the merits of the appeal have not yet been resolved), what the Court has done is "renounce" its "function of controlling administrative activity." And that, according to this magistrate, is equivalent to "a violation of the right to effective judicial protection of the plaintiff", that is, the Government of the Canary Islands.
Among other things, Helmut Moya emphasizes that "the presumption of validity of administrative acts is not a sufficient justification" and questions that it has not been taken into account that "the process will be without object when an eventual judgment is issued upholding the claims of the plaintiff", since by then "the company Repsol will have finished the explorations and the judgment will be deprived of any effect." Therefore, he questions that the Court, "pretending to give guarantees to the parties of its impartiality", what it has done by rejecting the precautionary measures is "resolutely favor the position of one of the parties and ensure the complete satisfaction of its claim to complete the explorations.
What "suits Repsol"
Regarding the weighting of interests at stake (the interest of the State in knowing the energy resources, versus the protection of the environment), the judge considers that "however much there is that national interest in investigating natural resources, nothing suggests that it can only be satisfied if the soundings are carried out immediately." In this regard, he emphasizes that who is "convenient" for that is Repsol, "which is in a hurry to consolidate its position in the area, before the imminent declaration of the same as a place of community interest Marine area of the East and South of Lanzarote-Fuerteventura, and to place itself in an optimal position to become entitled to the exploitation rights of the deposits."
Therefore, he insists that "a stoppage of the soundings for a relatively short period" would not have "harmed the national interest at all", so he considers that this is not a reason "to endanger relevant environmental values." In the opinion of the magistrate, the precautionary stoppage "only affects the interests of Repsol, which are not the general interests".
In addition, he adds that "the economic losses that Repsol would suffer due to the interruption of the soundings would only be a consequence of having wanted to impose itself by the force of facts." And he argues that "the speed with which the soundings were planned, despite the fact that it was foreseeable that appeals would end up being filed against the authorization of the same, is indicative that this situation has been deliberately sought and cannot be invoked as an interest worthy of protection." "Whoever, knowing that their actions may produce negative consequences and yet decides to act, must face the damage that their conduct generates," warns the judge.
For all this, he considers that "a calm weighting of the interests at stake, without thoughtlessly raising the flag of national interest and without giving in to a hurry that only benefits Repsol, should have opted to protect environmental interests in a preferential way, the very valuable natural heritage that belongs to all humanity, which is endangered because there is no certainty that the decision to authorize the soundings has been taken with the necessary independence and objectivity."
"Naive" statements by the Undersecretary of Energy
In addition to questioning the Ministry of Environment, of which he goes so far as to say that it has "changed its criteria" on the need to protect those waters and the marine species that live there, the judge also questions the arguments of the Ministry of Industry and Energy.
"The statements made in the resolution of the Undersecretary of State for Energy on the effect that the exploitation of the resources will produce in the reduction of crude oil imports, as long as there is freedom for the operator to sell it in the way that brings him the greatest benefit, and it may well be that he decides to do so in the international crude oil markets, are a bit naive," the judge points out in his dissenting opinion.
In addition, although he admits that the exploitation of these resources will bring benefits to the state coffers through the fee provided for in the hydrocarbons law, and will even "indirectly generate jobs and boost some sectors of the local economy", he also points out that "perhaps not to the extent that is expected in the forecasts that are made under the influence of an incipient black gold rush."
Arguments without "a minimum of rigor"
Regarding the different reports presented by the Government of the Canary Islands in its appeal and the content of the Environmental Impact Statement approved by the central Executive, this magistrate has entered to assess them in his dissenting opinion and concludes that "there is not sufficient certainty about whether the corrective measures proposed" in that Statement "satisfactorily guarantee the environmental values present in the sounding area."
In addition, after arguing that the project does endanger environmental values, the magistrate adds that "it cannot be argued with a minimum of rigor that these values are guaranteed by the establishment of a financial guarantee of 20,000,000 euros, however much this is the maximum that the environmental liability law allows to establish."
In this sense, the judge emphasizes that "in the case of an oil spill, the cost of cleaning the coast that could be affected and the value of the material damage that would be caused would be immensely higher, without it being necessary to make a more extensive argument on this point." And to this, he adds that considering the existence of endangered species in the area, "certain damages would probably be irreparable."
"Serious doubts" about the Environmental Impact Statement
In addition, the magistrate also has "serious doubts" about the Environmental Impact Statement. On the one hand, because he considers that it has not taken into account all the factors and that there are plans that "have not been examined." On the other hand, because he understands that there is "a significant endangerment of outstanding environmental values", and therefore questions that this Statement has been positive.
"From the environmental point of view, a project should be assessed considering the worst possible scenario and issue a judgment on it taking into account the values endangered and the irreversible nature of the damages that could be caused. If the assessment is negative, especially when it affects places of community interest, it will be the Council of Ministers who must assume the responsibility of authorizing the project," argues the magistrate, who also questions that the final decision has fallen on the General Directorate of Energy Policy and Mines and the Secretary of State for Energy, and not on that Council of Ministers.
Regarding the Ministry of Environment, he points out that its attitude "seems to imply an abandonment of the precautionary principle", which also enters "in contradiction with its previous actions" regarding the protection of cetaceans. Thus, he refers specifically to the agreements that were promoted to avoid the damages caused by military maneuvers in the area.
Now, however, the judge suggests that the Ministry seems to be "embracing the postulates of the oil company, interested in setting minimum precautions in the protection of the environment."