Snapshot

In March 2022, Chile filed a lawsuit against mines owned by Albemarle, Antofagasta, Barrick Gold and BHP, for allegedly causing environmental damage through excessive water extraction in their copper mines and lithium operations in the northern Atacama salt flats. The companies deny the allegations. The lawsuit is ongoing.

Factual Background

The Atacama Desert and Chile’s largest salt flat, Salar de Atacama, has several copper mines: Escondida (majority owned by BHP) and Zaldívar (50/50 joint venture between Antofagasta and Barrick Gold); as well as the Atacama Salt Flat Plant - for lithium - operated by Albemarle. For their operation, the companies have been extracting groundwater from the Monturaqui-Negrillar-Tilopozo aquifer – a body of permeable rock which contains water. In this region, water is scarce. Local communities and environmentalists have accused mining companies of putting a strain on available water resources. As Chile has been facing unprecedented droughts, regulation of the use of water in the Atacama region has become an important political issue. President Gabriel Boric, who took office in March 2022, signed a new water code prioritising human use in the first month of his presidency. Chile is the world’s largest copper producer and the second-largest exporter of lithium worldwide. Both metals are critical components in the manufacture of batteries essential for electric vehicles and other products.

Legal Argument

The State Defense Council (CDE) argues that the damage caused by the excessive extraction of groundwater by the mining companies was foreseeable, as they were aware of the maximum limit of descent that the aquifer could have. This exploitation allegedly harmed not only the groundwater source itself, but also the Tilopozo plains, the fauna, and the life systems and customs of the Peine Indigenous Community. The CDE is seeking repairs to the environmental damage, as well as the implementation of dialogue and socio-environmental management measures by the mining companies and asks the mining firms to take steps to ensure that such events are not repeated.

The companies deny wrongdoing. Antofagasta has affirmed that the water for its Zaldívar copper mine had been extracted in accordance with its permits and that there was “no evidence of environmental damage”. The company operating the BHP-controlled Escondida mine said that it had acted in accordance with its obligations and that its technical studies had shown no evidence of deterioration in the area surrounding the aquifer.

Legal Proceedings

In March 2022, Chile’s environment agency SMA fined BHP’s Escondida mine for exceeding the maximum level allowed for water extraction since 2005. SMA also filed charges against Albemarle for irregularities in its lithium operation in the region.

On 30 March 2022, the CDE subsequently filed a lawsuit against the companies in an Environmental Court, which was admitted to proceed on 8 April 2022. The companies deny the allegations.

In July 2023, the evidentiary hearings against the companies began and CDE presented evidence to the Environmental Court. In August 2023, the Court visited the aquifer. The case is ongoing.

News Items

Primer Tribunal Ambiental ya tiene fechas para inspeccionar acuíferos del Salar de Atacama, Fundación Terram, 10 August 2023

Calama: Comienza la audiencia de prueba por demanda conjunta contra Escondida, Zaldívar y Albemarle, Soy Chile, 24 July 2023

Chile Sues Mine Operators Over Aquifer Damage, The Water Diplomat, 21 April 2022

Chile: Legal action against Albemarle, Antofagasta, and BHP for alleged environmental damage in Salar de Atacama, Mining Technology, 11 April 2022

Chile: BHP, Antofagasta and Albemarle sued over alleged excessive water use and environmental damage, Reuters, 8 April 2022 

Chile sues BHP, Albemarle, Antofagasta over water use, Mining.com, 8 April 2022

Boric signs new Water Code into law, Mining Journal, 28 March 2022

Court Documents

Consejo de Defensa del Estado demanda a tres mineras por daño ambiental en Salar de Atacama, Primer Tribunal Ambiental, 8 April 2022

Demanda de reparación por daño ambiental, Primer Tribunal Ambiental, Consejo de Defensa del Estado, 30 March 2022