Last week the Magdalena Sugar Mill in Santa Ana spilled 900,00 gallons of hot molasses into the Magdalena River, causing an environmental disaster. The spill is a reminder of how impotent the Ministry of the Environment is in protecting El Salvador’s natural resources.
In August 2015, the Constitutional Court ruled that the Ministry of the Environment cannot to impose fines against persons or corporations that violate environmental laws. The Environmental Court can find someone guilty of polluting, engaging in harmful activities without an environmental permit, or any other violation, but they cannot impose a fine.
The problem is Article 89 of the Environmental Law. When the Environmental Court finds someone guilty of violating the law, Article 89 says the Ministry should impose fines based on the daily salary for urban workers in San Salvador. Day fines are a common tool in Latin American countries for measuring appropriate penalties. If a person or business cuts down a forest without permission, or spills molasses into a river, the court can (in theory) fine them the equivalent of 2-100 or 101-5,000 days salary depending on the severity of the crime. The dollar amount of the day salary is based on the minimum wage for urban workers in San Salvador. Unfortunately, the minimum wage decree does not have a category for urban workers in San Salvador, therefore the Constitutional Court said the Ministry cannot levee any fines.
Following the molasses spill, the Environmental court ordered the Magdalena Mill to issue a public apology by taking an ad out in El Salvador’s two largest newspapers. They also have to come up with a cleanup plan. But the Ministry cannot impose a fine or otherwise punish the Mill. Their only real loss is the revenue that selling 900,000 gallons of molasses would have brought in had they not spilled it. At $150/ton, that would be a $789,500 loss. That is definitely a hit to the Mill, but it is not punitive nor does it compensate locals or the State for the damage to an important common resource and the clean up. El Salvador is in water crisis and damage to a river like the Magdalena is more serious than ever, especially to the 450 families that depend on it for their survival.
In December 2015 and again this week Environmental Minister Lina Pohl asked the Legislative Assembly to fix Article 89 so the Ministry can levee fines. It seems like this would be an easy one – they just need to change a couple words so that fines are based on an actual minimum wage or some other measure.
Unfortunately, the Legislative Assembly has a bad record on doing the right thing when it comes to the environment, food, and water. The current arrangement is ideal for powerful business interests – there is an environmental law but no real consequences for ignoring it. They can skip environmental permitting processes and pollute with impunity. These businesses have a lot of influence over the Legislature and are likely to oppose any effort to change Article 89, just as they have opposed the General Law on Water proposed in 2005 and efforts to amend the Constitution to recognize food sovereignty and access to water as basic human rights.
Residents of the Bajo Lempa region of Usulután have seen the Ministry’s impotence in action (or inaction). In trying to stop sugarcane growers from planting crops near mangrove forests, community leaders asked Ministry officials to stop the project, arguing that the project did not have an environmental permit. The Ministry told the communities that they could only ask the growers to go through the permitting process but could not do anything to stop them.
The Ministry of the Environment is good at writing reports and declaring states of emergency, but their mandate is so much more than that. The Ministry is tasked with ensuring that Salvadorans enjoy their Constitutional right to a clean, healthy environment. The reports and states of emergency detail just how badly the Ministry has failed over the years.
This has to change if El Salvador is going to address the water crisis and other pending disasters. The Legislature must reform Article 89 to give the Ministry some teeth, but then the Ministry has to use those teeth to go after poluuters. Similarly, the Legislature has to pass the General Water Law as drafted by civil society organizations in 2005, and finally recognize that all Salvadorans have the right to food sovereignty and access to water.