Speakers: John Walsh, Felicia Ellsworth, Kelsey Quigley, Romina Picolotti and Jessica Lutkenhaus

Walsh: Welcome to In the Public Interest, a podcast from WilmerHale. I'm John Walsh.

Ellsworth: And I’m Felicia Ellsworth. John and I are partners at WilmerHale, an international law firm that works at the intersection of government, technology and business.

Walsh: Today's episode focuses on the important intersection of climate justice and human rights and highlights the work of environmental defenders around the world and the threats that they sometimes face.  We’re joined by renowned environmental activist and former Argentine Secretary of the Environment and Sustainable Development Romina Piccolotti.  Romina has filed a claim before the Inter-American Commission on Human Rights challenging Argentina criminal prosecution of her for a crime she didn't commit in which she alleges is politically motivated and filed in retaliation for her groundbreaking environmental justice efforts.  The case has been stagnating in the Argentine courts for nearly 15 years.  It's just one example of how judicial and criminal processes around the world have sometimes been used to threaten and intimidate environmental defenders like Romina.  At a time when they were fighting, the climate crisis is ever more important.

Ellsworth: We are also joined by Jessica Lutkenhaus and Kelsey Quigley, two of the attorneys on Romina’s WilmerHale legal team in her case before the Commission.  The WilmerHale team also includes attorney Steven Bowker and Courtney Murray.  Both of whom deserve special thanks for all of their work on this piece.

Walsh: We're honored to welcome Romina, Jessica and Kelsey on today's episode of In the Public Interest and now on to the episode.

Quigley: Thank you all for joining us today.

Picolotti: It's great to be here in the WilmerHale broadcast Public Interest Podcast.  Happy to join you and looking forward to speak in this interview.

Quigley: I'd like to start by introducing our listeners to your record, not only as a lifelong environmental defender, but also as Argentina's first ever cabinet level Secretary of the Environment which is a post that you held from 2006 to 2008.  So, to start off, could you please tell us a little bit about how you became Secretary?

Picolotti: Yes, well I was always a human rights activist.  During the dictatorship my grandfather was first disappeared.  So, I became a human rights activist.  I don't have any other option during the dictatorship really.  When I came to the US Law Fellowship, I was within the humerus program of a very important human rights organization in Washington and doing my master’s degree at the same time and running through a weight class, an environmental law class.  And then I realized how important was to link human rights with this environment.  That was, I don't know maybe 30 years ago.  And so I went back to Argentina, created with my husband and NGOs College Center for Human Rights and Environment and began defending people providing free access to justice to people which environment was threat or where human rights were abused because they were trying to defend their environment.  The President of Argentina pay attention.  He asked me if I could lead the Environmental Secretary of Argentina and at that moment, obviously I was not involved in politics at all and I told him only if you take this work seriously and this is basically how I came to be an Environmental Secretary in Argentina.

Quigley: And you mentioned how important the link between the environment and human rights is, and in fact your work was groundbreaking in linking human rights in the environment, which is now a fundamental principle in human rights law.   and unsurprisingly, during your tenure as Secretary, you continued this revolutionary work, including by launching Argentina's first ever environmental compliance actions.  Could you please describe to us some of these initiatives that you focused on as secretary?

Picolotti: Yes, I see your point out a very important issue which is the link between environmental human rights and how these have developed over the time.  I mean, we cannot defend the human beings if we are not defending the earth at the same time.  Our dignity is connected to the fence of the earth, and this is how I also approach my time as Secretary of the Environment.  So, one of the first things that we did, obviously was creating the environmental police; Argentina did not have an environmental special police at that moment, so we create a force that was able to conduct choosing, in 9 months we conducted 9000 inspections on site and we began putting signs and closing companies that we want to abide by the laws.  So, it's not that the laws did not exist at the moment, but we they were not enforced.  So, this is why we create an enforcement as the Secretive of Environment.  And let me tell you, I enjoyed the ride a lot.

Quigley: And during your tenure, you focused on some of the most polluting industries in Argentina.  Could you please tell us about this?

Picolotti: One of the things that we did was um we went after the fossil fuel industries because um they were contaminating the air and the water in poor neighborhoods.  So we did a lot of inspections on all of the fossil fuel big companies in Argentina, and we find many violations obviously.  So when we find violations our approach was not to close it down immediately but was to give them an opportunity to abide by the law with a specific plan, an investment plan we subject is that we will follow through and they will sign an agreement with the Secretary of Environment and we will make sure that that agreement was followed through.  And so obviously when you touch this kind of interest, um they’re very powerful, they’re very connected, they’re connected with in ways that you don’t even think they can be and they have sometimes they have a strong um grip in the judiciary, in the media and it’s very very very difficult to stand in front of them. So um when nothing works you know, uh then they use all these connections to try to intimidate your work.  And part of that was is you know to use threats.

Quigley: Thank you for that and I know that this is a difficult subject to discuss, but could you please share some of the intimidation and harassment that you and your family survived in Argentina.

Picolotti: I would receive phone calls to my cellular phone saying we know that you're not at home and that your children are on this school and this is the time schedule of your children.  And then my children at that moment were three year old and six year old so it was extremely frightening for a mother to receive this kind of call with a very specific schedule of matching activities, so I need to go to school, speak with the director of the school, and ask them to please pay special attention to my children, a lot of kind of measures to ensure that when we picked them up, you know we were paying attention if there were cars around, I mean it was, it was just crazy.  Then one night when I was coming back from the airport from work and the car of the Secretary of Environment who had a plate of presidency everybody knows this is a car that is satellite surveillance it's an official car, a car from the government.  We’ve had people behind us following us in front and behind, and then the person who was driving the car say listen, we’re in an international situation here.  And then I said, yeah, you know, no worry we'll be fine.  Just park at home, leave me at home and everything will be fine.  So, he left me at home, and five minutes later he was kidnapped with a gun on his head, you know, and he was given a strong message against me that I should be careful that the next person will be me.  And so, they took the car and this guy was knocking my house, it was the middle of the night, said, listen, this happened to me he was trembling.  We went to the police station obviously, but I will arrive to my office, I mean, it's a federal building with federal police, and I will arrive to my office and on my desk it will be threats written.  I will take the elevator and on the mirror of the elevator you know will be a threat written.  Obviously anonymous threat, you know an all were about me stopping doing enforcement work.  Then my daughter received sexual threats.  The level of violence you know and I keep saying to my husband if dogs are barking because we're doing what would work.  This is what we should be doing, so we keep working, you know we're very difficult in violent times.

Quigley: And in fact, there were a number of dogs barking, including the media, and one especially powerful enemy that you made in your work as Environmental Secretary was a media conglomerate known as Grupo Clarín, and many of our listeners may already be familiar with Grupo Clarín as they are the owner of the National Newspaper Clarín and back in 2007 Romina, you were investigating a paper mill owned by Grupo Clarín for its pollution of a local Buenos Aires River in reaction to that enforcement action in that investigation, the Clarín newspaper featured a front page article that falsely and baselessly accused you of corruption.  And prosecutors used solely this article to open a criminal investigation against you.  Romina, the connection between your environmental work and the false Clarín article and the prosecution against you seem quite obvious.  But what was your reaction to the Clarín article and the prosecution that resulted?

Picolotti: That's correct, I mean part of our work was to enforce environmental laws on the public sector, which is one of the most polluted sectors, it’s not controlled.  And I want to say that the owners of Grupo Clarín, they got this pulp mill during the dictatorship this is the pulp mill that say 100% of papers to newspapers.  So, if you want to have a newspaper you to buy from them, there's no other way around.  They are a media giant.  They didn't like that we went there with environmental police to see if they were complying with environmental loss at the pulp mill.  They didn't like it at all, but we had a lot of complaints concerning the pollution in the river.  The River Barradaro, and obviously there were big pipes going just straight to the river, and we took samples so we had all the evidence that we show they were not complying with environmental laws, as soon as we got there and we initiate legal actions against them with this evidence, they put this newspaper article during Sunday and one of the most important media there was echo chamber by other media outlets that they own, and it was a nonsense article that didn’t make any sense.  Like two months before that, I received a call from a friend that is inside the federal judiciary in Argentina, so he said you be careful because anything can happen, including planting drugs in your car.  And I say that's not possible.  Then a month later, there's an article in one of the magazines of his conglomerate, saying that I was doing parties of cocaine in my house.  That was the beginning; little things here and there that didn't make any sense but began eroding the image of me and environmental activists or me you know they were saying, for example, in one of the magazines they had not thought of me with a pen and President Bush saying that I was signing off the water of Argentina to the US.  Even if I want to do that, I couldn't.  I couldn't sign the water of Aquifer Juanita to President Bush, I mean, that was naturally impossible.  But these little things, right, that I was sold out to big interest outside the country that I worked for the CIA that I had partners of cocaine that I was not faithful to my husband that I was going to strip these bars.  I mean, all these things were building an image that was completely out of the reality.  When we received this article or, you know we were just laughing about them because they were so ridiculous.  But then you see this is the beginning of a smear campaign that was moving toward having the main newspapers and saying she's corrupt, she has done this, she has done that, using polling money to buy Champagne she’s using public money to go to see naked girls in bars, I mean it's so crazy that you don't even know how to respond to these allegations.  When you read the article, it was, you know, oh my God, but I knew that that was the beginning of hurting the Environmental Secretary and everything they were trying to build.  So, my first reaction was call the president and say listen, there's so much important project here that we're trying to build.  I'm the face of that, but I don't want to hurt the project.  I present my resignation to you because I want the project to continue and then attack in the face and the face is South., maybe the person will be able to continue without me.  The person said this is. Nonsense, and you know, we're not, I'm not accepting resignation.  But that's as I said, you know, that was the beginning of this ridiculous accusation that has been going for a long time and began to erode the world that we were trying to put together.

Quigley: The way that you put that the entire point of all of this was erode your reputation and engage in a smear campaign against all of your work is  exactly what environmental defenders across the world are facing today.  And you mentioned your husband Daniel, who is also an environmentalist, has been a staunch supporter for the past 15 years and a staunch supporter in your effort to continue fighting for environmental justice.  And he knows as well as anyone that you will fight for what you believe in and in that spirit, you teamed up with a group of pro bono WilmerHale attorneys and in March 2018 a petition was filed before the Inter American Commission on Human Rights that challenged this retaliatory prosecution against you in Argentina.  And Jessica Lutkenhaus a leader on that attorney team is here to discuss some of the background for that legal action.  Now Jessica, could you please give us a little background on how WilmerHale connected with Romina on the Commission and on the goals for filing the petition before the Commission?

Lutkenhaus: We were introduced to Romina more than five years ago, now by our friend Luis Gordon of the Environmental Defender Law Center and by that time Romina had already been facing these retaliatory unjust criminal proceedings in Argentina for 10 years.  When we first got involved with our partners, David Bowker and David Ogden, we were providing advice on U.S. law related issues.  Mostly concerned with the possibility of an unjust extradition request, which thankfully never came.  But then, after getting to know Romina, getting to know her story and in consultation with her we decided to take more of an offensive approach.  We drafted a petition file in the Inter-American Commission on Human Rights.  The Commission is an international body within the organization of American states dedicated to protecting human rights in the Western Hemisphere.  The Commission rules on cases brought by individuals trying to vindicate their human rights against the actions of states.  For Romina, we believed that the retaliatory prosecution against her in Argentina violated her human rights under the American Declaration of the Rights and Duties of Man.  The extreme delay in the criminal proceedings, again by the time we got to filing the petition, they had been ongoing in Argentina for 11 years.  That violated Romina’s right to have a trial within a reasonable time.  We also set out violations of her right to due process to a fair trial, giving a variety of irregularity in the proceedings; times when evidence boxes inexplicably disappeared from police custody; they reappeared unsealed with new evidence inside of them and we sought to vindicate Romina’s rights through filing that petition in the Commission. 

Quigley: And after filing the petition, a number of very impressive individuals came out in support of Romina, including high level former U.S. government officials and high-level non-government officials, along with former presidents of the Inter-American Commission on Human Rights and Special Rapporteurs of the United Nations and rapporteurs of the Commission.  And even though the Commission process is ongoing the team and Romina have had some very substantial initial successes before the Commission.  The petition first and foremost has helped to shed light on the threat to environmental defenders that is presented by this kind of criminalization that is criminalization of environmental defense work with the goal of chilling environmental defense work going forward.  One thing that helps shed light on this grave threat to environmental defenders was in September 2019.  The Commission granted a thematic hearing on the criminalization of environmental defenders.  Jessica, could you please tell us a little bit about this thematic hearing.

Lutkenhaus: Criminalization is the misuse of a state’s criminal justice system to retaliate against environmental defenders.  Exactly what was happening to Romina.  We want on the Commission to realize that Romina case was not isolated.  Rather, criminalization is a phenomenon that environmental defenders around the hemisphere have been facing for their work to defend the planet.  We were joined in our request to the Commission for a public hearing on this issue by more than 35 organizations and individuals, including several former Commissioners, the UN Special Rapporteur on Human Rights and the Environment, grassroots groups in Argentina, Chile, Ecuador and other countries in the Americas, and the Commission agreed to hold the public hearing and ultimately did so in September 2019.  At the hearing itself, former Commission President Dina Shelton opened the hearing by talking about the importance of this issue and providing some context for it.  Romina and three other environmental defenders:  Eduardo Mesquita, Milton Sanchez, and Belen [inaudible] testified, then for the Commission, sharing their stories about how criminalization had affected them and their families.  It was very moving process to be there and a good signal that the Commission was taking note of this brave thread and raising its profile.

Quigley: That's right, and Romina could you tell us a little bit about what this thematic hearing meant to you?

Picolotti: Well, in the context of the climate crisis environmental defenders, we are being attacked more than ever.  So, this is what I think is extremely important and I want to be so thankful to the WilmerHale team David, Jessica Kelsey [inaudible].  You have done an amazing job, not only putting this skill together but also providing us the space to keep working to defend the earth.  One thing that happened is the manipulation of the criminal process is that environmental defenders, not only they undermine because they need to dedicate their time and resources to defend themselves in these criminal procedures, but also it has a chilling effect on environmental movement.  Because if this can happen to you, it can happen to me.  Before during dictatorships, tanks would run on the streets to harass and to stop civil liberties and violate human rights massively, etc.  They were interest behind these tanks.  Now they don't come with tanks anymore they come with a criminal code and there is a network of connections between governments, prosecutors and judiciary that work together in a sense, to use the criminal process.  To a stop and silence environmental activism and it's very difficult from outsiders to understand that the general public all OK, so she or he has been accused of some wrong-doing, they might have done something wrong.  I'm not saying here that we environmental activists are above the law.  We are not above the law, but we cannot defend ourselves in a process where there's not an impartial judiciary, there's no objectivity, and where all the power of the criminal social processes are used to persecute.  Then when we discussed this idea of putting this hearing together, WilmerHale surprised me because I was saying, you know there is a limit to what you can do as pro bono lawyers right?  But you always want to step farther, I will always step farther and there we were, you know with indigenous leaders from the America's human rights leaders working for Environmental Protection all in Washington and WilmerHale and the WilmerHale office brainstorming about this hearing and then the hearing happened and we got document and we got the attention of the Commission and well, we know, you know that this is an ongoing fight, but just to have a talent team of lawyers next to you with all the tools that log and provide it makes your fight stronger and builds these social specific space again, so you can continue working and, and I again I want to thank you to thank you profoundly for everything that has been done.  What a wonderful team and it has been a pleasure to work with young woman in the team as well.

Quigley: Romina working with you, I know I speak for the whole team has been a real highlight of the whole team's career here.  For the thematic hearing I did want to say that there was a report issued in connection with the thematic hearing in both English and in Spanish, and if listeners are interested we will link to that report in connection with this podcast release and that report includes hundreds of testimonials from environmental defenders who have also been the victims of criminalization in their own countries.  Now from the thematic hearing moving forward the team also made some big strides in your individual petition before the Commission.  Most recently, in March 2021, the Commission finished its initial review of your petition, which means that the case was officially transmitted to the State of Argentina, now Jessica, as our Commission expert, could you please tell us about what that means for Romina's case before the Commission?

Lutkenhaus: Transmission of the case to Argentina was a key step really welcome step.  It signifies that the Commission has accepted the petition is going to issue a ruling on it, and it forces Argentina to review the petition and draft a response to the Commission.  We want to cite a statistic from a renowned human rights lawyer Ignacio Alvarez, who is a former Commission repertoire and a dear friend, and along with Daniela Rivera, someone who WilmerHale, owes a great deal of gratitude according to these experts, only about 17% of the petitions submitted to the Commissions are ever transmitted to the state.  So, back in March 2021, when the Commission transmitted our petition to Argentina that itself speaks to the grave and urgent nature of Romania's case, and to the importance that this case has for environmental defenders around the world.

Quigley: Thanks Jessica, and with this petition and the case before the Commission ongoing WilmerHale's work on behalf of Romina and on behalf of environmental defenders remains ongoing.  But in the meantime, as we know about Romina, she continues to forge ahead in her critical environmental work.  So, Romina, could you please tell us a little bit about your most recent work?

Picolotti: Yes, the past 15 years or two decades my work has been really focused on climate change and fast mitigation.  So, basically how to slow down the rate of warming.  It was an IPCC report has come out again and again warning us that we're very close to the cliff on climate and the fragility song that we are on.  So, that's, that's enormous impasse for justice for the most vulnerable ones, but also give us an opportunity, you know, we can follow knowledge and follow science, and we see frameworks of law.  We're seeing institutions we will need to do this there is no other way because there is no planet B.  So, there's a lot to do and I'm looking forward to this new world.  I do believe we can do much better on everything you know.  I do believe in a world where the air is cleaner where the transportation is electric, or we don't have plastic on the ocean where we can enjoy nature because we have nature to enjoy and you know where we can swim in a lake.  So, I do believe a better world is possible and I think we are on the track to building it.  You know, obviously there are some people that will rely hard on the old world, because they make a lot of money on that old world, but they know changes in the movement and that we're going to succeed.  I mean, there's no other way that to succeed on this because we need this planet to live.  That's as simple as that.

Quigley: Thank you Romina, that is so very inspiring now as a parting word we would just like you to share what's one thing that a listener today can do to support you or your work to protect our planet?

Picolotti: First is to inform yourself you know of what is the current climate emergency situation.  I think people inform is the best thing that can happen to us.  I know sometimes in the US there's a lot of controversy around climate and I just ask people to read scientific reports with an open mind and let the information sink in you, because it's very clear in the situation that we are in this is not political. This is factual information.  That's one thing.  I also think anything that you can do to support the youth movement, I think it's important youth are mobilized around the world.  They see this.  They see this very clearly.  They're angry and they must be because we have screwed their future and they’re demanding.  They are demanding that we fix the mess that we have with the war on and I think to support the youth movement is crucial.  I mean, I know some law schools may be listening to this and I want to applaud and congratulate the students and law schools that are mobilizing, demanding their school to disinvest from fossil fuels, so I think that's an important thing and the last thing is that each time that you have a choice take a choice per planet.  If you run a 10 blocks away, do not take an uber, you know.  Just walk every time that you have a choice.  Please do the choice for the planet and just take it.  You will feel happier at the end of the day because this is hard to do with happiness.  Happiness is not buying things.  Happiness is doing good every day you go to your bed with a smile because you did something good today.  Not because you buy a new pair of shoes.  So that's my main message.  You have an option, so choose the option for planet and that is again an option for your happiness too.

Quigley: Thank you Romina.

Walsh: Thank you Romina and thank you team for sharing this moving story and for giving us all some inspiration for the day.  That's it for this episode.  As always, thank you for tuning into in the public interest.

Ellsworth: If you enjoyed this podcast, please take a minute to share it with a friend and subscribe, rate and view us wherever you get your podcasts.  We hope you'll join us next month.