Silence reigns but not stillness. The leaves shake vigorously on each of the trees in the bush. It's almost noon, but the sky in San José Tipceh, a town of just over 500 inhabitants belonging to the municipality of Muna, is no longer the shade of summer blue that characterizes it. Now the clouds, of an intense metallic gray, cover the mountain and with gusts of wind they threaten to break the tranquility in the form of a storm.
The residents of the community have been experiencing a tense calm since last year. After filing an application for amparo to prevent the construction and operation of the Ticul A and Ticul B photovoltaic parks in its territory, the Collegiate Court for Criminal and Administrative Matters in Yucatán decided to suspend the permits granted to the owning company.
“All that remains is to wait for the verdict. Once we have the sentence, it's all over,” Aurelio Mugarte, an ejidatario from San José Tipceh, and one of the initiators of the lawsuit, explained in an interview with Causa Natura Media.
The solar parks that were intended to be installed in that location are part of the flood of clean energy megaprojects that arrived in Yucatán with the Long-Term Energy Auctions (SLP), held from 2015 to 2017, on the grounds of avoiding the use of fossil fuels.
That seemed like a breakthrough. However, some companies violated the rights of the Mayan communities where they intended to establish themselves. Some villages organized themselves to prevent photovoltaic plants from coming into operation, but after more than four years of struggle, they are still in suspense, without obtaining justice.
This is how “progress” came
Rumors of the establishment of clean energy parks in Yucatán emerged in 2013, following the identification of ideal sites for the installation of wind or solar farms, according to environmental engineer Jazmín Sánchez, who is part of Articulación Yucatán, a group made up of specialists from different areas in response to the massive arrival of energy megaprojects.
However, the wave of projects came with the Energy Reform of 2015, when the Wholesale Electricity Market (MEM) opened and the SLPs started, so that the private sector could generate and commercialize energy.
The first auction was held in 2015 and, of the 18 winning projects, half were allocated to Yucatán. The auctions were held for three consecutive years until the one corresponding to 2018 was canceled by the Federal Government, but the arrival of megaprojects did not stop there.
“These are not isolated processes. Generally, there are intersections with other megaprojects that are being observed in the region. For example, the real estate development that occurs in high-impact tourist areas: we see more of this type of development, but they don't go in isolation, it's a set of projects that are related,” explained engineer Sánchez.
In the case of clean energy parks in Yucatán, the “boom” is related to the strong demand for electricity in the Southeast, partly caused by the tourism industry in Quintana Roo, said Rodrigo Patiño, a researcher at the Center for Research and Advanced Studies of the National Polytechnic Institute (Cinvestav), and member of Articulation.
The geographical characteristics of the state also make it attractive to this type of investment, as there is strong wind and solar potential in the region, said Sánchez.
Until 2021, there were at least 29 large scale energy projects registered in the entity: five of which were already operating in that year, 14 had environmental impact assessments and authorizations from the Energy Regulatory Commission (CRE) and 10 did not have any permits or were in the middle of their efforts.
Of the total, 17 were wind farms and 12 were photovoltaic: two were in operation; eight were authorized and two did not have permits or had them partially, according to data provided by the Yucatan Articulation.
Violations of the rights of the Mayan peoples
“After the [energy] reform, the territory became a resource for making energy merchandise, and that is already a watershed, because the applications and the issuance of permits from the CRE begin, then it becomes a process like that of parceling,” said anthropologist Ivett Reyes, a member of Articulation.
This was evidenced by the actions of companies when they arrived in the state. Articulation specialists detected a pattern in these processes. To begin with, wind and photovoltaic farms require large tracts of land. The companies then turned to communities far from the state capital, which are mostly the territory of the Mayan people.
Although indigenous consultations were organized in some towns, they did not fully comply with the requirement to report properly and then ask if they approved the installation of a megapark, as established by Mexican laws supported by the parameters of the Inter-American Court of Human Rights (Inter-American Court of Human Rights), or Convention 169 of the International Labor Organization (ILO).
“They see it as a procedure, because it's not done properly, it's not reported correctly and, finally, it's a simulation,” Patiño said.
Another factor that is repeated is that of the conflicts generated by ejido lands, because they are socially owned, decisions about what to do with them tend to be complicated for entire communities.
“Some people agree to receive an amount for the usufruct of land and others don't. This generates tension within the ejido and between the community, because there are people who are not part of the ejido, and no one asks them what they think,” Patiño said.
San Jose Tipceh
In 2016, in San José Tipceh, the then ejidal commissioner Gabriel Fuentes informed the ejidatarios that two individuals, Ignacio and Mario Salomón, would establish a project to plant citrus and stevia. The three organized meetings to convince the ejidatarios to give up 30 hectares of ejido land for this purpose, but there were concerns about it and the rural men did not accept it.
After one of these meetings, the commissioner handed them an attendance list, which supposedly would serve to confirm that they participated in the meetings. The ejidatarios signed, not knowing that this sheet would later be used to falsify two acts of ejidal assemblies, in which they approved a usufruct contract for 300 hectares of forest, Mugarte recalled.
They found out months later, when they noticed machinery opening a gap in the terrain. This sparked the conflict, as some did not want to grant their land. However, the commissioner began to pressure them to access, and threatened that if they did not accept, they would lose their land completely. The majority signed.
Meanwhile, anthropologists began to arrive in the community to do interviews, but the population was not sure what these were for.
Ejidatarios learned that the land in both San José Tipceh and Plan Chac, a community in the Sacalum municipality, was not for a planting project, but for installing two photovoltaic parks: Ticul A and Ticul B.
The first would require 440.75 hectares to install 774,300 solar panels and the second, 234,744 hectares to install 409,200 panels.
The projects were carried out by the companies Vega Solar 1 S.A.P.I. de C.V., and Vega Solar 2 S.A.P.I. de C.V., respectively. Both winners in the 2015 SPL and subsidiaries of SunPower Corporation.
Causa Natura Media contacted SunPower. Marketing personnel from one of its subsidiary companies, Maxeon, denied having information about it. He suggested looking directly at the company in the United States. Until press time, the email sent to him had not been answered.
Land conflicts
When it became known about the use that would be provided to the land, conflicts broke out over land usufruct contracts. The ejidatarios were offered a payment of 10,000 pesos for each hectare, but they rejected the offer.
In mid-July 2016, the Solomons offered a payment of 3.2 million pesos for the sale of the land, allegedly intermediaries of the energy company, according to a report by the Foundation for Due Process (DPLF) and the X'pujil Popular Indigenous Regional Council (CRIPX).
Subsequently, anomalies occurred in the negotiations. The company indicated that a first lease payment of 4 million pesos had already been made. However, they only gave 3.2 million for the purchase of the land, which they proved with the falsified certificates.
When the problems escalated, the villagers sought advice from human rights organizations and asked the Secretariat of Environment and Natural Resources (Semarnat) for a public consultation for information.
Thanks to this request, at the end of 2016, a meeting was held at Cinvestav, in which environmental specialists, human rights defenders, representatives of the company, as well as residents participated.
The ejidatarios tried to renegotiate the terms of the contract directly with the company, without intermediaries. Several meetings took place until an agreement was reached, but in the end the company did not give a copy of the contract to the landowners.
Knocking on the door of the IACHR
In December 2016, the case was presented at a thematic hearing before the Inter-American Commission on Human Rights (IACHR), and there a representative of the Secretariat of Energy (Sener) acknowledged that the parks were authorized and planned without a free, prior, informed and culturally appropriate indigenous consultation.
Thanks to this strategy, the Secretariat committed itself to carrying out the indigenous consultation, and in April 2017 the first informational meeting was held. At the same time, the company began paying 3,700,000 pesos a semester for land rent. Negotiations to establish a contract continued, but the agreed terms were constantly being modified.
The process culminated in the consultative phase in November 2018, when the community gave its consent for the construction of the solar farms.
However, in their DPLF and CRIPX report, they reported several irregularities, including: carried out, changes of address, votes of the dead, physical assaults and threats.
Two people were injured, and since then “the community was completely divided, and the meetings became processes of simulation or appearance of business and institutional 'good practices'”, as specified by the document.
In 2019, the Office in Mexico of the United Nations High Commissioner for Human Rights (UN-DH) issued comments on the consultation process: establishment of interests based on pre-consultation lease agreements; lack of culturally appropriate information, without translation into Mayan or resolution of doubts or disagreements.
“The consultation process was quite tense, because it confronted and ended with a community rupture,” said Felipe Romero, a lawyer at the Mexican Center for Environmental Law (CEMDA), who advises the case against photovoltaic companies Ticul A and Ticul B.
The threat to the Mayan rainforest and aquifer
Requiring very large areas to install solar panels is not a serious problem in clear or desert areas, but in Yucatán, a biodiverse state with fragile ecosystems, covered with low jungle, karst soil and an important aquifer system with a poor state of health, it is.
The parks planned to operate in the entity contemplated the deforestation of several hectares of underdeciduous jungle. This would not only endanger various animal species, such as migratory birds that find refuge in the state. According to Sánchez, from Articulación Yucatán, clearing is related to soil erosion, due to the loss of vegetation. This represents a danger, since Yucatec soils are thin and permeable.
In this way, deforestation would not only put flora and fauna at risk, it could also affect the quality of the aquifer.
On the other hand, the jungle plays an important role for the region as a temperature regulator: vegetation generates cooler microclimates. If we add to this that the panels, although they capture radiation, also generate pockets of hot air in the lower part, it is practically a fact that the temperature would increase, and that is of vital importance in an entity where it exceeds 30 degrees Celsius and which has been hit by heat waves in recent years.
All this not to mention that the jungle is linked to the modes of production and care of the Mayan populations, so clearing would mean the loss of income for many people.
“The propaganda of usufruct contracts is that they are land rents, but that's not the case, because ejidatarios don't have land when they need it. They no longer have access to land and other people are profiting from the territory,” he said.
Not satisfied with not providing complete information to the population, photovoltaic companies also resorted to traps to avoid evidencing the true environmental impact that solar parks would have, according to Articulación Yucatán, which identified cases of companies that provided environmental impact assessments without scientific standards, solely for the purpose of complying with the procedure.
No cumulative analysis
At the time, the Ticul A and Ticul B parks in San José Tipceh were promoted as one: “the largest in Latin America”.
But to obtain the corresponding authorizations for land use change, the company SunPower did not declare that it would occupy 675 hectares to install one million 183,500 solar panels, but divided the project in two, according to a person who collaborated in environmental impact assessments of those parks and asked to protect his identity for security reasons.
“It was a project that was fragmented. That reduces the level of impact you're going to have. Obviously, a 600-hectare project involves a much greater impact than a 300-hectare project when vegetation changes,” he said.
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In addition, the company failed to report the quantity and origin of the water that the project would require; and there was not enough information on the management and monitoring of terrestrial and flying species in the area, some of which are protected by the Official Mexican Standard (NOM) 059, according to lawyer Romero.
In its environmental impact assessment, the company SunPower admitted that there would be effects related to soil quality and loss, altered sound comfort, air pollution caused by the dust that construction machinery would lift, loss of vegetation cover, damage to protected species and changes in the landscape associated with the modification of the natural landscape.
However, according to the person who participated in the survey and who asked to keep his identity, the management of hazardous waste, changes in climate, the impacts on water resources and those caused by habitat fragmentation were not considered; nor were the effects on the jungle, its capacity to capture carbon and protect species.
Causa Natura Media asked this person how the company obtained the permits despite so many irregularities.
“It was an omission of authority. They decided to go through all these irregularities in the project, which could have been rectified at the time. The project, as proposed, violates environmental legislation. From there, it's already unfeasible,” he said.
None of the companies that intended to establish themselves in Yucatán submitted any global impact study, cumulative, synergistic or residual impact, so there is no way to know what the environmental effects of keeping a solar park operating for 30 years could be. This is important since there are already photovoltaic projects operating in the entity.
Articulación Yucatán noted that until now a comprehensive analysis of energy needs and socio-environmental capacities and conflicts has not been carried out on a regional basis, despite the fact that the Energy Reform mentioned the implementation of an instrument called “Strategic Environmental Assessment”, in areas with high energy potential such as Yucatán. Therefore, they recommended doing it as soon as possible.
In the same way, they emphasized that if the energy transition seeks to reduce the consumption of fossil fuels, projects should be redistributed, be community, neighborhood or bet on self-consumption, so that they do not require large areas of land or generate serious environmental or social impacts.
“Don't think of energy as a commodity. Forms of production should be reviewed and ways to reduce consumption, especially for large consumers, should be sought. To do it fairly: think about the access of domestic consumers and those who do not have access to energy. If we think that energy is a public good, we stop thinking as consumers and assume ourselves as managers, we can think of community projects,” said anthropologist Reyes.
Mayan peoples in struggle and suspense
Faced with the outrages, the residents of San José Tipceh and Plan Chac filed a lawsuit for amparo against the construction of the Ticul A and Ticul B parks, before the Fourth District Court of the State of Yucatán, in May 2019, accompanied by CEMDA.
They called for the violation of the rights to a healthy environment, to territory and to the self-determination of peoples.
Although the judge rejected the request for a precautionary measure, the communities appealed to the Collegiate Court in Criminal and Administrative Matters, which in June 2022 ordered the immediate suspension of all works until the end of the amparo trial and a repeat hearing.
CEMDA noted that this hearing has already taken place, and is therefore awaiting resolution. News is expected in a couple of months, although there is no set deadline.
Agrarian trial
The ejidatarios of San José Tipceh also promoted an agrarian trial in December of 2018 to defend the collective rights of their lands. He is currently in the Second Instance after an appeal for review has been filed.
However, the signatories are in total uncertainty, since their advisor was Ricardo Lagunes, an environmental defender who disappeared in Colima in January of this year.
“Just as I am, I am blind. I don't see anything. After Ricardo disappeared, a colleague [who was also in the project], Sergio [Oceransky], spoke to me and he only told me 'we'll be away for a while'. Now I mark him and he doesn't answer me,” said Don Aurelio.
Since last year, the company stopped making lease payments. Rumors broke out in the community that the company had suspended the projects, that it sold them. Although this brought calm back to the population, the truth is that as long as there is no sentence, there are no certainties.
“They can't be trusted, because the permissions are still in effect. The company could transfer rights, that is, sell the project,” Romero said.
Populations seek to ensure that their rights are guaranteed. They hope that the Courts will not delay in issuing a judgment, so that they can regain their calm and be certain that their territory will continue to be healthy.
In the opinion of lawyer Romero, if the judges rule in favor of communities, an excellent precedent will be set with respect to renewable energy.
“We talk about how they are beneficial, that they are a necessity, and that's true, but we don't talk about how they should be implemented. It is important to begin to look at and recognize that renewable energies can also generate environmental impacts and violate human rights if they are not implemented as required by legislation and with respect for the rights of communities: providing them with information, implementing effective mechanisms for access to information and participation,” he said.
Since 2016, the population of San José Tipceh has been fighting to prevent the installation of a photovoltaic park in their territory. Photographs by Aurelio Mugarte and Lilia Balam
Populations seek to ensure that their rights are guaranteed. They hope that the Courts will not delay in issuing a judgment, so that they can regain their calm and be certain that their territory will continue to be healthy.
In the opinion of lawyer Romero, if the judges rule in favor of communities, an excellent precedent will be set with respect to renewable energy.
“We talk about how they are beneficial, that they are a necessity, and that's true, but we don't talk about how they should be implemented. It is important to begin to look at and recognize that renewable energies can also generate environmental impacts and violate human rights if they are not implemented as required by legislation and with respect for the rights of communities: providing them with information, implementing effective mechanisms for access to information and participation,” he said.
*This article corresponds to the Energy Challenges series published by Causa Natura Media.
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