I. Health Impacts of Pesticide Spraying in Argentina

In 2016, Argentina was the third largest producer of genetically modified organisms (GMOs) in the world after the United States of America (USA) and Brazil, with 23.8 million planted hectares (18.7 million hectares of soybeans, 4.9 million hectares of maize and 0.4 million hectares of cotton).Footnote ¹ A series of regulatory decisions enabled Argentina to obtain this position. Since 1996, the country has approved 47 biotech crop products for commercial planting.Footnote ² According to the Argentine non-governmental organization (NGO) Fundación para la defensa del ambiente (FUNAM, Foundation for the Defence of the Environment) and the Campus Cordoba of the Right Livelihood College (RLC), Argentina has been transformed since 1996 into a ‘country of sacrifice’ through dubious systems of governmental authorization for GMOs and pesticides, exponential growth of surfaces covered with GMOs, rising use of pesticides (over 300 million litres/kilograms in 2010) and lack of governmental controls and monitoring.Footnote ³ Authorization of pesticides by the government agency Servicio Nacional de Sanidad y Calidad Agroalimentaria (SENASA, the National Food Safety and Quality Service) and authorization of GMOs by the Comisión Nacional Asesora de Biotecnología Agropecuaria (CONABIA, the National Advisory Committee on Agricultural Biotechnology) and SENASA are mostly decided on the basis of documentation provided by interested corporations, among others, Bayer-Monsanto, Syngenta and Dow AgroSciences.

More than 12 million people (among them tens of thousands of schoolchildren) living near crops in Argentina are exposed to terrestrial and aerial spraying of pesticides or drift from such spraying. However, the country’s entire population is exposed to ‘cocktails’ of pesticide residues through polluted water, soils and particularly foods.Footnote ⁴ In Argentina, regulatory authorities have never considered the cumulative content of pesticides in the environment – including crops, urban lands and natural protected areas – or the accumulation of residues in peoples’ bodies as a limiting factor for industrial agriculture. Nor have they taken into account the transfer of pesticide residues from mothers to embryos, foetuses and infants, mainly through trans-placental means and breastfeeding, which dramatically aggravates the process of accumulation.Footnote ⁵

When developing, testing and approving pesticides for use, both the Argentine government and corporations fail to consider that people and ecosystems are exposed to internal and external cocktails of pollutants. These include the pesticides that are originally sprayed ‘over’ crops and their additives, pesticides produced ‘by crops’ like Cry1Ab insecticide protein in MON 810 genetically modified maize, derivatives of pesticides and additives, a long list of other non-pesticide chemicals (e.g., drugs, polychlorinated biphenyls (PCBs), dioxins, furans, heavy metals and metalloids) plus ionizing and non-ionizing radiation.Footnote ⁶ Besides health effects, industrial agriculture with GMOs in Argentina has produced chains of negative environmental effects, such as disruption and destruction of natural ecosystems, deforestation, serious loss of desirable biodiversity and an increase in undesirable biodiversity, loss of soil nutrients, disruption of water basins, surface water and underground run-off, the elevation of groundwater layers and increased vulnerability to storms in a context of global climate change.Footnote ⁷

In Argentina, large-scale landowners engaged in agribusiness tend to hire private companies devoted to terrestrial and aerial spraying. Small-scale landowning farmers frequently do terrestrial spraying themselves (or have it done by rural workers) with big tractors, or contract private companies to disseminate pesticides for aerial spraying.

This piece discusses landmark litigation in Argentina to hold both commercial pesticide sprayers as well as landowners accountable for specific negative impacts of pesticides on human health and the environment. First, the piece describes the mobilization by women in the neighbourhood of Ituzaingó Anexo that led to the collection of relevant scientific evidence of pollution. Second, it highlights a range of criminal prosecutions. Third, the piece concludes with a reflection on the lessons that can be drawn from the Argentine experience for similar cases elsewhere. This contribution shows how litigation has the potential to secure accountability of actors in agribusiness for the adverse effects of their operations.

II. The Case of Ituzaingó Anexo

In 2002, the neighbourhood of Ituzaingó Anexo in the city of Cordoba in Argentina had 5,000 inhabitants. As in thousands of other neighbourhoods and rural settlements across the country, crops and houses in Ituzaingó Anexo exist in close contact.Footnote ⁸ In a local grocery store on 14 February 2002, three women found themselves discussing unusual cases of leukaemia in the neighbourhood. After this conversation, nine women – who later organized themselves as the ‘Mothers of Ituzaingó Anexo’ – interviewed most of the families in the vicinity and obtained a first record of diseases and deaths thought to be linked to pesticide use in the area.Footnote ⁹ After presenting their cases and a map to the media and government, neither the municipality nor the provincial government of Cordoba took steps to investigate or remedy the situation. In February 2002, the same group of women requested an assessment from FUNAM and the Chair of Human Evolutionary Biology in the Faculty of Psychology at the National University of Cordoba. In an open lecture on 21 April 2002, FUNAM and the Chair shared methods and techniques for organizing, campaigning, contacting the media and defending the community’s rights.

Working together, the Mothers of Ituzaingó Anexo and experts produced a protocol for studying the area that included collecting environmental samples from the soil, drinking water, water reservoirs and underground water; measuring ionizing and non-ionizing radiation levels; and carrying out a selection of laboratory procedures. This protocol was accepted by the Ministry of Health, which provided analytical services through the province’s laboratory Ceprocor.Footnote ¹⁰ Neighbours from Ituzaingó Anexo and their technical advisors controlled the sampling and measurements. Since 2002, Ituzaingó Anexo has transformed into one of the most studied neighbourhoods in Argentina.

Among preliminary results of the successful campaign chaired by the Mothers of Ituzaingó Anexo, FUNAM and Servicio Paz y Justicia (SERPAJ, Service for Peace and Justice), three municipal ordinances were approved: no. 10,505 declaring a sanitation emergency in Ituzaingó Anexo (21 May 2002), no. 10,589 prohibiting the aerial spraying of pesticides in the jurisdiction of Cordoba City (9 January 2003), and no. 10,590 banning all terrestrial and aerial spraying of pesticides in Ituzaingó Anexo at a distance of less than 2,500 metres from houses. Furthermore, during 2003, the Mothers of Ituzaingó Anexo, FUNAM and SERPAJ chaired an investigation to identify environmental hazards as possible causes of morbidity and mortality in Ituzaingó Anexo.Footnote ¹¹ Using a methodology adapted from the US Agency for Toxic Substances and Disease Registry, the Ituzaingó Anexo study identified six main routes of hazards, nine critical pollutants and seven main pollution routes.Footnote ¹² Some families were permanently exposed to most of the routes and pollutants, while other families experienced fewer environmental pressures (less routes, less pollutants). Each family was exposed to a particular cocktail of pollutants, within which pesticides were among the most disseminated agents. One of the epidemiological surveys detected 40 cases of cancer within a thirty-hectare area of the neighbourhood.Footnote ¹³

In Ituzaingó Anexo, human exposure to chemicals was thus more complex than expected.Footnote ¹⁴ A focus on single pollutants could not explain most of the health and environmental impacts because people were exposed to multiple pollutants contained in their bodies (in tissues and organs) and to multiple environmental pollutants (in air, water and food). The real menace shown by the Ituzaingó Anexo case is the mixture of pollutants with unpredictable interactions.Footnote ¹⁵ According to Montenegro, the geographical distribution of diseases and deaths in Ituzaingó Anexo could be associated with three main cocktails of pollutants that are usually under-estimated or neglected by traditional pesticide regulations: the drinking water cocktail, the open-air cocktail, and the food cocktail (which also includes soil intake by children).Footnote ¹⁶

III. Unprecedented Judiciary Actions

The research initiated by the coalition of the Mothers of Ituzaingó Anexo as well as university-based scientists at FUNAM and SERPAJ thus led to a far better understanding of the negative health impacts and composition of the cocktails of pollutants to which people in Argentina are exposed. On the basis of their findings, the coalition also initiated a number of administrative and criminal complaints in order to hold those responsible for releasing the pollutants into the environment accountable, including business actors. The defendants in the litigation included key actors in Argentine agribusiness, namely, landowners, individual sprayers and, in the most recent case, owners of spraying companies. Over the past two decades, this litigation has achieved a number of judicial milestones.

FUNAM pioneered the first judicial claim against sprayers of pesticides whose activities potentially affected the vicinity.Footnote ¹⁷ This move originated the so-called ‘Mothers’ Case’. Shortly thereafter, the lawyer María Elba Martínez from SERPAJ added 38 neighbours to FUNAM’s claim. Regrettably, jurisdictional disputes between federal and provincial courts delayed the case for many years. In 2008, new episodes of illegal pesticide spraying affected Ituzaingó Anexo. In response, a public official from the Municipality of Cordoba, Medardo Ávila Vázquez, presented a criminal complaint at the Provincial Court of Justice against pesticide sprayers. After a complex shifting around of dossiers and involvement of a range of judicial actors, the investigation came to the public prosecutor Carlos Matheu. His work was essential for investigating the claims presented in 2002, 2004 and 2008, which facilitated a historic trial against land owners and pesticide sprayers in 2012.

The criminal trial against land owners and pesticide sprayers started on 11 June 2012 in Cordoba. Three judges directed the hearings and media outlets from all over the country covered all of the testimonies and debates. Outside the court building, more than a hundred people, among them neighbours and environmentalists, maintained a permanent camp. The core of the accusation was infringement of Article 55 of the National Law 24,051 on dangerous residues. The judgment was read on 22 August 2012 in front of the accused – Francisco Rafael Parra (landowning farmer) and Edgardo Jorge Pancello (pesticide sprayer) – who both received a suspended sentenced of three years, to be served on probation. The defendants appealed the case, but in 2017, the Supreme Court of Justice upheld the judgment.

This case was the second trial in South America in which those responsible for polluting the environment with pesticides were convicted. The first judgment came from Paraguay, where a judge ruled on 7 July 2005 against Alfredo Lauro Laustenlager and Hernán Schlender, who in the course of spraying glyphosate, directly sprayed an 11-year-old child, resulting in his death.Footnote ¹⁸ Despite these enormous judicial victories in Argentina and Paraguay, none of those convicted has ever been imprisoned.

Prosecutor Matheu also became a key player in the resumption of the ‘Mothers’ Case’, which had been originally filed in 2002. The Mothers’ Case of Ituzaingó Anexo will start in 2019 with a core accusation that differs significantly from the previously discussed 2012 case. While the 2012 trial focused on the procedural infringement of the National Law on Dangerous Residues, the Mothers’ Case will deal specifically with the impact of pesticides on human health. The prosecutor in the case will try to prove that the defendants – one farmer (Francisco Parra), two pesticide sprayers (Jorge Pancello and Gustavo Alejandro Peralta), two owners of the company Tecnocampo that applied pesticides (Javier Eduardo Amuchástegui and Fernando Ramón), and one agricultural engineer (Alejandra del Carmen Mendizábal Pizarro) – affected the health of exposed people.Footnote ¹⁹ The Mothers’ Case was initiated by FUNAM in 2002, but due to later filings, now involves the spraying of pesticides between 2003 and 2004. FUNAM and 70 neighbours of Ituzaingó Anexo are the complainants, with the lawyer Carlos Nayi representing the victims. The trial is to take place in Cordoba and will mark the first trial in Argentina to analyse the relationship between the use of pesticides and deleterious health effects among exposed people.

As Argentine criminal law only allows for corporate liability for a limited number of crimes, the criminal prosecution in these pesticide cases has sought accountability through individual criminal liability of pesticide sprayers: mainly private specialized spraying companies, landowners and those renting lands for industrial agriculture, as well as farmers that spray by themselves. The pesticide manufacturers and the governmental authorizing body have appeared as witnesses in these trials, but they were not themselves held accountable for their roles in distributing the pesticides. Nevertheless, the Mothers’ Case will provide an important precedent for agribusiness on the whole, as it will contribute to enforcing the obligatory precautionary measures for the spraying of pesticides and the need to take into account its effect on bystanders and communities.